author: BILLINGS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Henry J. WOODS, Defendant-Appellant.
    No. 10676.
    Missouri Court of Appeals, Southern District, Division II.
    Jan. 5, 1979.
    Motion for Rehearing Denied and Transfer Denied Jan. 25, 1979.
    Application to Transfer Denied March 13, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    David Robards, Public Defender, Joplin, for defendant-appellant.
   BILLINGS, Presiding Judge.

Defendant Henry J. Woods was tried and convicted in Jasper County of stealing a motor vehicle. He claims error was committed by the trial court in denying his request for a continuance, in failing to grant him a new trial because of newly-discovered evidence, in refusing to declare a mistrial following the answer of a witness, and in permitting a remark made by the prosecutor in his opening statement. We affirm.

In mid-afternoon, after the state had rested its case and the defendant had presented alibi testimony, defendant orally requested the trial be continued until the next morning so that three more alibi witnesses, all non-residents, could be present and testify. The request was denied. Defendant and his counsel were aware of the trial date and voiced no objection nor lodged any motion for continuance when the case was called for trial. Additionally, the record in this case clearly shows that the testimony of the proposed witnesses would have been cumulative. Moreover, there was no compliance with Rule 25.08(b), V.A.M.R., which governs the matter of continuances. State v. McDowell, 525 S.W.2d 444 (Mo.App.1975). The trial court is vested with broad discretion in granting or denying a continuance. State v. Davison, 545 S.W.2d 723 (Mo.App.1977). We find no abuse of discretion and the point is denied.

The trial court also has broad discretion in the matter of granting a new trial on the basis of newly-discovered evidence. Rule 27.19, V.A.M.R., authorizes the grant of a new trial for newly-discovered evidence, but such grants of new trial are not favored by the courts. State v. Harper, 473 S.W.2d 419 (Mo. banc 1971); State v. Lindley, 545 S.W.2d 669 (Mo.App.1976).

In support of his claim of newly-discovered evidence, the defendant offered testimony of his sister, his brother, and the chief witness for the state. The sister corroborated defendant’s alibi defense. The brother stated it was he, not the defendant, who stole the automobile. The state’s witness confirmed his trial testimony that it was defendant, not the brother, who took the car.

“In order for an appellant to secure a new trial on the ground of newly-discovered evidence, the evidence must have come to his knowledge since the trial; he must not be guilty of a lack of diligence in discovering it; it must be material and probably produce a different result on a new trial; it must not be merely cumulative; and its object must not be to impeach the character or credit of a witness.” State v. Burton, 544 S.W.2d 60, 66 (Mo.App.1976).

There was no evidence presented by the defendant to demonstrate that the newly-discovered evidence, the brother’s “confession”, came to defendant’s knowledge subsequent to the trial. There was trial evidence that another brother might confess to the car theft before trial. No evidence was introduced to show that the delay in obtaining knowledge of the brother’s post-trial “confession” did not result from defendant’s lack of due diligence. The trial judge, having carefully scrutinized the brother’s testimony, concluded that such testimony would not produce a different result if a new trial were granted, and demonstrated by his remarks that he did not believe the brother’s testimony. We find no abuse of discretion in the trial court’s refusal to grant the defendant a new trial on the basis of newly-discovered evidence.

Defendant’s next complaint concerns the answer of a witness that was called in his behalf. The witness, a Joplin policeman, testified on direct examination, without objection or motion to strike, that he was involved in an investigation of a suspected auto theft ring out of Tulsa, Oklahoma. He was then asked the origin of three sets of pictures which were used in the identification of defendant as the person who stole the automobile in this case. As the following question demonstrates, defendant kicked the door wide open for the answer of which he now complains:

“Q: Okay, why pick on Henry Woods?
A: Through our investigations of an auto theft ring, we weren’t particularly picking on Henry Woods, we didn’t know who had perpetrated the theft of this vehicle at the time, but through the investigation of that auto theft ring, we came up with several people who we felt were involved with one another in that ring and members of that ring, we did have pictures of them and these were shown to various people, not only in this case, but in other cases as well.”

Defendant moved for a mistrial, contending the answer of the policeman was unresponsive and prejudicial. His motion was denied. No motion to strike the answer was made, and even if it be assumed that the answer of the witness was inadmissible, we do not believe the trial court would have been guilty of an abuse of discretion in denying defendant’s motion for a mistrial. State v. Collett, 542 S.W.2d 783 (Mo. banc 1976); State v. Walker, 531 S.W.2d 55 (Mo. App.1975). Furthermore, defendant’s motion for new trial failed to properly particularize this point and preserve it for appellate review. State v. Grey, 525 S.W.2d 367 (Mo.App.1975); Rule 27.20(a), V.A.M.R. For that reason, we have reviewed this matter to determine if the plain error rule is applicable. We hold it is not and deny the point.

Defendant’s final point concerns a comment of the prosecuting attorney in his opening statement to the jury. This point is not preserved for our review because defendant’s motion for new trial does not set forth in detail and particularity his complaint. State v. Grey, supra; Rule 27.20(a), V.A.M.R. The motion for new trial avers: “The Court erred in failing to rule a mistrial in view of the prosecutor’s improper remarks and conduct.” Such a broad, sweeping generalization hardly complies with the requirements of Rule 27.20(a).

The judgment is affirmed.

HOGAN and MAUS, JJ., concur.


source: Caselaw Access Project

author: SNYDER, Presiding Judge.

license: Public Domain

text:
    Leon REEVES and Martha Carter, Petitioners, v. Edward MORELAND, Acting Director Department of Welfare, Respondent.
    No. 39911.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 16, 1979.

      Francis L. Ruppert, Ruppert & Schlueter, Clayton, Bernard Edelman, Jerry J. Murphy, Joseph A. Fenlow, Jr., St. Louis, for petitioners.
    Byron A. Roche, Special Prosecutor, Bridgeton, amicus curiae.
    Burton Halpern, Bridgeton, Thomas W. Wehrle, St. Louis County Counselor, Andrew J. Minardi, Associate County Counsel- or, Clayton, for respondent.
   SNYDER, Presiding Judge.

In this habeas corpus proceeding, petitioners Leon Reeves and Martha Carter contest their convictions for indirect criminal contempt. St. Louis County Circuit Judge Robert Lee Campbell found petitioners willfully and deliberately violated a valid restraining order issued by him on June 6, 1977. Both petitioners were sentenced to twenty days imprisonment in the custody of the St. Louis County Department of Welfare.

The conduct for which petitioners were found to be in violation of the restraining order occurred in connection with a strike by members of the United Steel Workers of America, AFL-CIO, Local 13889, against Hussmann Refrigerator Co., Inc. Petitioners were Hussmann employees and members of Local 13889; Reeves was the elected Recording Secretary of the Local and Carter a rank-and-file member.

On the morning of August 1,1977, 300 to 400 striking Hussmann Refrigerator employees gathered within 100 yards of Huss-mann’s chain-link fence in a demonstration against the company. Police officers from St. Louis County, Bridgeton and surrounding municipalities were called to the scene. The temporary restraining order and warnings that the demonstrators violating it would be arrested were read two or more times over a bullhorn or loud-speaker to the assembled crowd. Finally, an order to arrest the demonstrators was issued. Petitioners were among the approximately 100 persons arrested.

Petitioner Reeves argues the evidence presented failed to establish beyond a reasonable doubt that he was guilty of criminal contempt. Petitioner Carter makes no challenge to the sufficiency of the evidence supporting her conviction, but argues she was denied a fair and impartial trial in violation of her due process rights because Judge Campbell had personal knowledge, prior to the presentation of evidence, that she had actual knowledge of the restraining order.

The contempt convictions are affirmed, the writs of habeas corpus previously issued are quashed and the petitioners remanded to the custody of respondent.

LEON REEVES

Is there substantial evidence to support the finding, beyond a reasonable doubt, that Leon Reeves violated the restraining order?

Judge Campbell found Reeves had violated the temporary restraining order by:

1. picketing the property at a time when two other persons were picketing at an entrance to the Hussmann property;
2. blocking egress and ingress by his presence in the crowd of 300 to 400 persons;
3. seeking to coerce or intimidate Huss-mann employees from entering or leaving the plant by shouting, “Go home scabs”;
4. assembling in a crowd of 300 to 400 people within 100 yards of Hussmann’s chain-link fence; and
5. blocking egress and ingress by instructing pickets to keep walking and slow traffic.

Before discussing the evidence and the charges against Reeves, some of the principles applicable to appellate review of habe-as corpus and criminal contempt proceedings should be set out.

First, the elements of criminal contempt that must be proved are actual knowledge of the restraining order and willful conduct in violation of its terms. Ramsey v. Grayland, 567 S.W.2d 682, 686 (Mo.App.1978); Chemical Fireproofing Corp. v. Bronska, 553 S.W.2d 710 (Mo.App. 1977). Although a criminal contempt proceeding is sui generis [Osborne v. Purdome, 244 S.W.2d 1005 (Mo. banc 1951) cert. denied, 343 U.S. 953, 72 S.Ct. 1046, 96 L.Ed. 1354 (1952)], the state has the burden of proving the elements of criminal contempt beyond a reasonable doubt. Ramsey, supra, 686.

Second:
In a habeas corpus proceeding involving a challenge to the sufficiency of the evidence, we do not review the record de novo, but must determine whether the trial court’s findings are supported by the evidence. Ex parte Neal, 507 S.W.2d 674 (Mo.App.1974); Mechanic v. Gruensfelder, 461 S.W.2d 298 (Mo.App.1970). In making this determination, we view the evidence in the light most favorable to the court’s judgment, giving consideration to all favorable inferences which reasonably may be drawn from the evidence. All facts and inferences to the contrary are to be disregarded. State v. Franco, 544 S.W.2d 533 (Mo. banc 1976). It is not our function to weigh the evidence where it is in conflict or to resolve issues of credibility; rather, we look to see whether there was substantial evidentiary support for the court’s findings. State ex rel. Girard v. Percich, supra [557 S.W.2d 25 (Mo.App.1977)]. Criminal contempt may be proved by circumstantial evidence so long as the facts are consistent with one another and with the hypothesis of guilt, and are inconsistent with a reasonable hypothesis of innocence. Mechanic v. Gruensfelder, supra; Ex Parte Miles, 406 S.W.2d 107 (Mo.App.1966).

Ramsey, supra, 690.

Petitioner Reeves, as Recording Secretary of Local 13889, was named as a defendant in the restraining order issued by Judge Campbell. As Reeves concedes in his brief, “there is no question [but] that he had actual knowledge of the existence of the temporary restraining order.” Therefore, we proceed to the second element of criminal contempt — willful conduct in violation of the restraining order.

From midnight until 8:00 a. m. on August 1, 1977, Reeves served as one of three union “picket captains.” Their duties included keeping picket attendance records, being present for picket shift changes, visiting pickets on the picket line at the Huss-mann gates and bringing them refreshments. Although pickets served four hour shifts, Reeves and the other picket captains normally served eight hour shifts.

About 6:30 a. m. on August 1, Reeves received a call at union strike headquarters informing him that demonstrators were assembling across the street from the Huss-mann plant. (Reeves denied having any prior knowledge that a demonstration had been planned.) In response to the call he drove to the Hussmann plant but could not reach it because traffic had been stopped by the demonstration. He parked his car on the south side of St. Charles Rock Road, approximately 500 feet from the intersection of Taussig Road and St. Charles Rock Road, and walked toward Hussmann Gate No. 1, the scene of the demonstration. When he tried to cross over Taussig Road to Gate No. 1, he was stopped by police officers and told to stay on the west side of Taussig. He did so, and was arrested shortly thereafter while he was standing directly across from Gate No. 1 in the main body of demonstrators. The evidence presented at trial clearly established that Reeves: (1) picketed the property at a time when two other persons were picketing; (2) blocked egress and ingress by his presence in the crowd; and (3) assembled in a crowd of 300 to 400 demonstrators within 100 yards of Hussmann’s chain-link fence.

It is unnecessary to consider all of the specifications found as to Reeves. Since the purpose of the writ of habeas corpus is to test the legality of the restraint, “ ‘[i]t follows that if the determination . is supported as to even one of the several specifications contained in the judgment . then that petitioner is not illegally restrained . . . ” Ramsey, supra, 687, quoting Curtis v. Tozer, 374 S.W.2d 557, 581 (Mo.App.1964). Substantial evidence supported the finding, beyond a reasonable doubt, that Reeves violated the restraining order as stated in specifications (1), (2) and (4) of the judgment.

The real issue, however, is whether Reeves possessed the criminal intent necessary to support a conviction on these specifications. This court has recognized in other contempt cases that the element of criminal intent “is traditionally the most difficult to establish” [State ex rel. Girard v. Percich, 557 S.W.2d 25, 36 (Mo.App.1977)] and may amount to “a nearly impossible burden on the prosecution.” Ramsey, supra, 691. Because “[djirect evidence of criminal intent is rarely obtainable” it must more frequently “be inferred from the evidence of defendants’ conduct.” Ramsey, supra, 691.

Further complicating the issue, as the court recognized in Chemical Fireproofing Corp., supra, 717[15], “It is not clear whether the intent required is the intent to do the specific act which is prohibited by the court or the intent to defy the court.” The court there finally decided “the requisite intent for a criminal conviction is somewhere in between—an intent to do the prohibited act not only with the knowledge that it will harm the other party but also with a careless and imprudent disregard for the power and authority of the court which buttresses the prohibition.”

Reeves had actual knowledge of the temporary restraining order when he joined the crowd of strikers on the west side of Taussig Road within 100 yards of Huss-mann’s chain-link fence. Although he was a union officer, Reeves did nothing to persuade the crowd to disperse and comply with the court order. Instead, and in spite of warnings by the police to the demonstrators to disperse or face arrest, Reeves remained in the crowd, blocked egress and ingress and picketed while two lawful pickets were present. Reeves would have this court view his action in a vacuum, without regard to the events of the morning of August 1, and the actions of the other demonstrators. The trial court could reasonably infer from Reeves’ conduct and the attending circumstances that Reeves engaged in contemptuous activity in knowing and willful violation of the court’s restraining order.

Reeves raises the argument that his status as a picket captain somehow negates the element of criminal intent because he only meant to perform his duties and “talk to the pickets at Gate No. 1.” Again, this argument wholly ignores the events of the morning of August 1, 1977. Further, while this motivation may have amounted to a legitimate reason for Reeves’ initial presence, once it became obvious that he could not accomplish this purpose, it ceased to serve as a valid excuse. When Reeves’ purpose was frustrated he had the choice of leaving or staying. He chose to stay and joined the crowd of demonstrators. Whatever Reeves’ initial intentions may have been, there is no doubt that at the time of his arrest he knew his conduct violated the restraining order and chose to remain on the scene in “careless and imprudent disregard for the power and authority of the court . . . Chemical Fireproofing Corp., supra, 717.

Because the court’s finding as to these specifications is supported by substantial evidence beyond a reasonable doubt, Reeves’ confinement is lawful. Curtis, supra; Ramsey, supra.

MARTHA CARTER

At trial, counsel for petitioner Carter filed a motion to disqualify Judge Campbell from sitting to hear the contempt charges, alleging that: (1) Campbell’s interest or prejudice would prevent a fair and impartial trial and (2) the judge had visited the Hussmann plant on two occasions prior to August 1, 1977 and was, by reason of those visits, prejudiced. The motion was denied.

Judge Campbell did visit the Hussmann plant on June 5 and 6, 1977. On the latter occasion he personally read the amended temporary restraining order to a crowd of strikers assembled across from the Huss-mann plant. Near the end of petitioner’s trial, counsel for petitioner, with the court’s permission, questioned Judge Campbell as he sat on the bench. Judge Campbell acknowledged that he remembered Carter as one of the strikers present in the crowd when he read the temporary restraining order on June 6. He also admitted he could “very distinctly remember her because she came out of the crowd and relieved one of the pickets at the gate. And, we had a little dispute about the speed with which she crossed the entrance in front of cars.” Counsel at this point renewed his motion to disqualify. Judge Campbell again denied the motion.

Petitioner argues she was denied a fair and impartial trial in derogation of her due process rights because Judge Campbell had formed an opinion, based on his personal knowledge prior to the presentation of evidence, that Carter had actual knowledge of the restraining order. Since actual knowledge of the order is an element of the offense of criminal contempt which must be proved beyond a reasonable doubt by the state, it is argued that Judge Campbell’s knowledge relieved the state of the burden of proving this element of the offense and rendered him incapable of impartially deciding the case on the evidence presented. These arguments are rejected.

Rule 35.01, which governs criminal contempt proceedings, does not provide for disqualification under these circumstances. The rule provides for disqualification only where fhe contempt involves disrespect or criticism of the judge. Rule 35.01(b). This indirect criminal contempt proceeding does not involve disrespect or criticism of Judge Campbell.

No change of venue lies in criminal contempt. Osborne, supra. In contempt proceedings, change of venue includes the term “ ‘disqualification of the judge.’ ” Houston v. Hennessey, 534 S.W.2d 52, 55 (Mo.App.1975). “[7] ‘The right to a change of venue, including objections to the judge, is a statutory privilege . .’ ” Houston, supra, 55, quoting Erhart v. Todd, 325 S.W.2d 750, 752[1] (Mo.1959). “Absent a specific rule or statute, litigants in a contempt proceeding have no right to disqualify a judge.” Houston, supra, 55. As in Houston, petitioner has cited no rule or statute granting her the privilege of disqualification.

The court in Houston, supra, noted at page 55, there is language in some of the cases “to the effect that where by the nature [of] facts of the case the judge cannot give the accused an impartial trial, that judge should not sit but should call for another judge [citing cases in footnote 3]” and “that failure to grant a change would deprive the accused of due process.” However, the court concluded this latter statement was dictum based on a misapplication of the law of criminal cases. The court specifically rejected the application of the criminal rule for disqualification to a contempt proceeding. Therefore, Rule 35.01(b) applies and Judge Campbell properly denied the motions to disqualify. Houston, supra.

If petitioner’s argument were accepted, a judge could not sit in any contempt proceeding involving a contemnor who was named as a defendant in the restraining order because the judge would have personal knowledge that the contemnor had actual knowledge of the order. It would not have been proper, under petitioner’s theory, for Judge Campbell to hear the contempt charges against petitioner Reeves. Such a result is inconsistent with the principle that a contempt proceeding is ancillary to the action from which the contempt arose and that one court may not try contempt of another court. Osborne, supra. The court in Ramsey, supra, recognized, at page 688, that “the judge who issues a valid restraining order may be expected to have an interest in ensuring compliance with that order and, accordingly, will have some knowledge of the circumstances and activities which form the basis of later contempt prosecutions.”

Most important, the state proved through the testimony of eyewitnesses to the events of the morning of August 1,1977 that petitioner Carter was present in the crowd of demonstrators while the temporary restraining order and the warnings to disperse were read. Petitioner’s presence when the restraining order was read is sufficient to establish actual knowledge, Mechanic v. Gruensfelder, 461 S.W.2d 298, 312 (Mo.App.1970). The prosecution met its burden and proved the element of actual knowledge of the restraining order by independent evidence. There was overwhelm ing evidence in the record to support the trial court’s finding that Carter knew of the order and violated it by her conduct on the morning of August 1, 1977. State Trooper Julien and police officers Warner, Hencken, Kuykendall, Yoisey, Bishop and Jamison all saw Carter within 100 yards of Hussmann’s chain-link fence. Officers Kuykendall and Reeder stated Carter was walking in a circle with the other demonstrators. Officers Reeder and Jamison specifically testified Carter was shouting, “Scabs go home!” through a bullhorn. Officers Hencken, Kuykendall and Bishop confirmed Carter had the bullhorn and was singing, chanting or encouraging the demonstrators through it. Any argument that Judge Campbell had to rely on his personal knowledge to support the finding or was punishing Carter for her conduct on June 6, must be rejected in light of the uncontroverted evidence presented by the prosecutor.

“[Jjudges are expected to faithfully and judicially carry out the duties of their offices. State ex rel. Heimburger v. Wells, 210 Mo. 601, 109 S.W. 758, 761 (1908). Judges therefore are accorded the presumption that they will not undertake to preside in matters in which they will have a personal interest or where they cannot be impartial. Houston v. Hennessey, 534 S.W.2d 52, 55 (Mo.App.1975).” Ramsey, supra, 688. This court must presume Judge Campbell could render a decision based solely and exclusively on the evidence presented in the courtroom. Nothing in the judge’s conduct during trial indicates he had prejudged the case of any of the contemnors or decided petitioner Carter’s case prior to hearing all the evidence against her. In fact, Judge Campbell’s impartiality is attested to by his not guilty finding in the cases of 12 of the 21 contemnors who were tried with Reeves and Carter. One example of his evenhand-edness is shown by the absence from petitioners’ appeal of any claim of error as to evidentiary rulings in a trial in which 27 witnesses testified, 15 for the prosecution and 12 for the defense. “In a case of indirect contempt, where the offense occurs outside the presence of the court, and arises ‘out of no colloquy or encounter with the judge that would tend to arouse his passion or ill will.’ Osborne v. Purdome, 244 S.W.2d 1005, 1013 (Mo. banc 1951) cert. den., 343 U.S. 953, 72 S.Ct. 1046, 96 L.Ed. 1354 (1952), evidence of bias must be the more compelling.” Ramsey, supra, 688. Petitioner has failed to make a compelling showing of bias.

Therefore, petitioners Carter and Reeves are not illegally restrained. The writs as to both petitioners should be, and are, quashed and petitioners are remanded to the custody of respondent.

WEIER, C. J., and SMITH, J., concur.

      .The temporary restraining order of June 6, 1977 ordered the named defendants and all others to desist and refrain from:
      1. Picketing the property occupied by Huss-mann Refrigerator Company or in any manner aiding, assisting or abetting therein, at any time two (2) persons are picketing at or near any entrance to said property, or at any time blocking or attempting to block in any manner any of the driveways to said Hussmann Refrigerator Company’s property or from blocking or attempting to block in any manner, egress or ingress to said property.
      2. Seeking to coerce or intimidate by physical acts or words, plaintiffs employees, customers and persons making deliveries or pickups to or from said plaintiff entering or leaving said property in transacting business with Hussmann Refrigerator Company.
      3. Damaging in any way property of Huss-mann Refrigerator Company or property of any person lawfully present at or near Huss-mann Refrigerator Company’s said property.
      4. Assembling, grouping, loitering, standing, congregating, convening, gathering, mustering, meeting, massing, thronging, crowding, rallying or collecting of any person or persons within one-hundred (100) yards of plaintiffs chain link metal fence which extends along the boundaries of plaintiffs property adjacent to Taussig Road, Enterprise Way and St. Charles Rock Road, in the City of Bridgeton, St. Louis County, Missouri.

      . For a more complete account of the procedural history of the restraining order and the events of the morning of August 1, 1977, see Ramsey v. Grayland, 567 S.W.2d 682 (Mo.App.1978).


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. James W. VAUGHN, Appellant.
    No. 39615.
    Missouri Court of Appeals, Eastern District.
    Jan. 23, 1979.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 16, 1979.

      Shifrin, Treiman, Bamburg & Dempsey, Dave Banford, Clayton, for appellant.
    William C. Mcllroy, Pros. Atty., Bowling Green, for respondent.
   CLEMENS, Judge.

Defendant James W. Vaughn, having been previously convicted of driving while intoxicated, was again so charged and found guilty by a jury. Pursuant to the verdict the court sentenced him to eighty days in jail. (§ 564.440(2) RSMo 1969). Defendant has appealed, his sole contention being that the trial court erred by admitting into evidence documents concerning defendant’s breathalyzer test because the documents had not been previously disclosed to him in response to his request for discovery.

For the state, patrolling deputy sheriffs Cox and Wells testified they saw defendant driving erratically at night without headlights; that when defendant got out he staggered, smelled of alcohol, his speech was slurred, his eyes bloodshot and watery and he admitted having recently drunk four bottles of beer. The officers arrested defendant and took him to jail where sheriff Cox, a licensed breathalyzer examiner, promptly gave defendant a breathalyzer test which showed .23% alcohol, only .10% being necessary to prove intoxication. (§ 564.442 1.(3), RSMo 1969).

The state’s first witness, Sheriff Cox, who had arrested defendant and given him the breathalyzer test, was asked to state the test results. Defendant objected on the ground that there was “no foundation” for the result of the test. Rightly or wrongly, the court sustained the objection and witness Cox was withdrawn. In response to the court’s ruling the state then proceeded to lay the foundation by introducing the documents about which defendant now complains. Thereafter, the state recalled Sheriff Cox and without objection he answered the original question about defendant’s test by stating it showed an alcoholic content of .23%.

Defendant contends he was surprised by the introduction of these documents because they had not been disclosed in response to his pre-trial request for discovery. Thereby — so far as pertinent here — defendant requested the names and addresses of prospective state witnesses and reports of the results of scientific tests. By its written response the state gave defendant the names of all witnesses to be called, except that of chemist Durham, whose name had been endorsed two months before trial, a copy of Sheriff Cox’s Alcoholic Influence Report showing detailed questions to and answers by defendant as to his physical condition when arrested, and the sheriff’s detailed observations showing symptoms of defendant’s intoxication, the sheriff’s arrest report giving details of defendant’s conduct and physical condition when arrested, and the result of the breathalyzer showing intoxication at .23% alcohol.

By these documentary responses it is not clear the state did fail to meet defendant’s pre-trial request for disclosure. By its written response the state named the witnesses it intended to and did call. And, as seen above, the state disclosed the only scientific test by reporting the result of defendant’s breathalyzer test.

The challenged documents concerning the breathalyzer test, heretofore itemized, were not clearly called for by defendant’s request for discovery. None was a report of “the result of a scientific test.” Instead, each concerned the qualifications of the officers connected with the breathalyzer test equipment and the state had previously informed defendant of the result of the test. We further note the state did not introduce the challenged documents voluntarily but did so at defendant’s request.

To support his appellate contention that the challenged exhibits should not have been admitted in evidence because not previously disclosed, defendant relies on Rule 25.32, V.A.M.R., which calls for disclosure of requested information. As pointed out, defendant’s request was for “reports of scientific tests.” None of the challenged documents was a “report of scientific tests,” but was merely background testimony about administering the breathalyzer test, the result of which defendant had pre-trial knowledge. This evidence came in to meet defendant’s asserted contention that there was no foundation for testimony about the breathalyzer test result. The challenged evidence was admitted in response to defendant’s objection of no foundation and we hold that admitting it was not error on the stated ground of non-disclosure.

Assuming arguendo that defendant was entitled to pre-trial notice of the challenged qualification documents, we note that under Rule 25.45, V.A.M.R., the sanction of “excluding such evidence” for failure to comply with the discovery rule is discretionary with the trial court. See State v. Moten, 542 S.W.2d 317[2, 3] (Mo.App.1976), so holding and adding: “Basically, the question is whether or not the failure to produce as required by the rules results in fundamental unfairness to the defendant . . . The Court here saw and considered the evidence, engaged in a fair exercise of discretion and concluded not to impose the requested sanction. The appellant has not shown that the action on the part of the trial court was an abuse of discretion.” We so hold here.

Judgment affirmed.

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

      . The challenged documents: Sheriff Cox’s Type Three permit to administer breathalyzer tests; Rules and Regulations of the Board of Health concerning such tests; the Type One permit of state chemist Durham, who testified as to the method of administering such tests; an instruction manual for giving the tests; Type Two and Three permits of Highway Patrolman Donald Bizelli, which authorized him to test and maintain the breathalyzer in question.


author: CRIST, Judge.

text:
    Roderick Tituson HARVEY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40316.
    Missouri Court of Appeals, Eastern District, Division Pour.
    Jan. 23, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.
    Application to Transfer Denied March 13, 1979.

      Robert C. Babione, Public Defender, Linda Murphy, Asst. Public Defender, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Michael Elbein, Paul Robert Otto, Katherine Marie Krause, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Robert O’Blennis, Asst. Pros. Atty., St. Louis, for respondent.
   CRIST, Judge.

Movant appeals the denial of his Rule 27.26 Motion after an evidentiary hearing with appointed counsel. We affirm.

Movant claims he was denied effective assistance of counsel because his attorney coerced him into pleading guilty. He seeks to have his guilty pleas on four counts of armed robbery and concurrent fifteen year sentences vacated.

Our inquiry is the extent to which counsel’s actions affected the voluntariness of the pleas. Haynes v. State, 565 S.W.2d 191 (Mo.App.1978). Movant testified that his attorney sought to have him plead guilty because “they had too much evidence against me”, that movant “would not have a chance” if he went to trial, and because of the high sentence he could have received following a jury trial, particularly if sentenced under the Second Offender Act. He testified that “the Judge, the lawyer and prosecutor guaranteed to give me fifteen years.”

Movant’s mother testified that the attorney pressured her to persuade movant to plead guilty but supplied no details of coercion. She said the attorney was successful in reducing the agreed-upon sentence from eighteen to fifteen years. He then told her “he’d better go on and take that because . if you take it to jury trial, he would get thirty or forty years, or life.”

The evidence persuades us to conclude that the attorney was justified in believing a plea of guilty was the best alternative. He then became obligated to urge that course of action. And the mother’s actions were the result of a rational determination of the best alternative. Wright v. State, 549 S.W.2d 554 (Mo.App.1977); Shepherd v. State, 540 S.W.2d 619 (Mo.App.1976); White v. State, 530 S.W.2d 444, 447 (Mo. App.1975).

The findings, conclusions, and judgment of the Rule 27.26 trial court that movant’s pleas were voluntarily and knowingly made are amply supported by the record.

The judgment is affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: FLANIGAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Alonzo LIGHT, Appellant.
    No. 10715.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 29, 1979.

      Jay V. White, Rolla, for appellant.
    John D. Ashcroft, Atty. Gen., Stanley Robinson, Asst. Atty. Gen., Jefferson City, for respondent.
   FLANIGAN, Presiding Judge.

A jury found the defendant guilty of manslaughter (§ 559.070) and a sentence of three years’ imprisonment was imposed. On this appeal defendant makes the sound contention that the evidence is insufficient to support the conviction and that the trial court erred in failing to sustain his motion for judgment of acquittal.

The events giving rise to the prosecution occurred on July 5, 1976, on which date Robert Bradshaw, age 18, was electrocuted. At the time of his death Bradshaw and defendant were jointly engaged in an unsuccessful attempt to steal some wire. In pursuance of their common design Bradshaw climbed a telephone pole, near an abandoned house in a remote rural area, for the purpose of stealing some wire attached to its top. In so doing, and before any larceny had been completed, Bradshaw came into contact with a high voltage line, received the fatal shock, and fell to the ground.

The state’s evidence showed that defendant was the originator of the larcenous plan. Defendant was present at the scene when Bradshaw climbed the pole and met his death. There was no claim nor proof by the state that either Bradshaw or defendant knew that any of the wires attached to the pole was energized.

Section 559.070, which contains the “only definition” of manslaughter in this state, State v. Williams, 442 S.W.2d 61, 64 (Mo. banc 1968), reads: “Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter.”

The state’s verdict-directing instruction required the jury to find the defendant guilty of manslaughter if they found beyond a reasonable doubt “that on or about the 5th day of July, 1976, in the County of Howell, State of Missouri, the defendant caused the death of Robert W. Bradshaw by procuring the said Robert W. Bradshaw to do an illegal act, to-wit: stealing some copper wire and that while the said Robert W. Bradshaw was engaged in attempting to perpetrate said illegal act, he received a severe electrical shock therefrom and died as a direct and proximate result thereof.” The instruction was essentially consistent with the factual allegations of the information.

At the time of the instant offense stealing property of the type here involved having a value less than $50 was punishable by a fine or confinement in the county jail for not more than one year. Stealing property having a value of at least $50 would support a punishment of imprisonment. The information did not state and the evidence did not show the value of the wire which was the target of the intended larceny.

The conduct of the defendant, as charged in the information, is labeled by the state, in its brief, as “unlawful-act manslaughter” and “involuntary manslaughter.” The state refers to State v. Foster, 338 S.W.2d 892, 896 (Mo.1960) where it is said, “Involuntary manslaughter is the unintentional killing of another while doing some unlawful act not amounting to a felony.” It is apparent that the state concedes that Bradshaw and defendant were co-misdemean-ants rather than co-felons.

Neither side has cited any authority holding that a defendant may be guilty of manslaughter for the accidental death of his accomplice taking place during the perpetration of a misdemeanor. It has been said that “the unlawful-act type of manslaughter is often referred to, somewhat loosely, as the ‘misdemeanor-manslaughter doctrine,’ a sort of junior-grade counterpart of the ‘felony-murder doctrine.’ ” Criminal Law, LaFave-Scott, § 79, p. 594 (1972).

At common law a person committing a homicide in the perpetration of a felony was guilty of murder. In Missouri, if a homicide occurs in connection with certain felonies enumerated in § 559.010, it is murder in the first degree, whether or not the death was intended. The commission of, or the attempt to commit, the felony is the legal equivalent of premeditation, deliberation, and malice. If the intention is. to commit some felony other than one of those enumerated in § 559.010, such homicide, although unintentional, is murder in the second degree (assuming, of course, that the evidence is otherwise insufficient to show the elements necessary to a finding of murder in the first degree). State v. Jasper, 486 S.W.2d 268, 270 (Mo. banc 1972). An incidental and unintentional homicide, committed during the perpetration of a misdemeanor, is manslaughter. State v. Robinett, 279 S.W. 696, 700[12] (Mo.1926); State v. Lindsey, 333 Mo. 139, 62 S.W.2d 420, 425 (1933); State v. Foster, 338 S.W.2d 892, 896 (Mo.1960).

Missouri has recognized and invoked the felony-murder rule in instances where the person killed is one other than an accomplice of the defendant. See, for example, State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975), where fleeing car thieves collided with another vehicle and four occupants of the latter died as a result. Missouri has also recognized that a defendant would be guilty of manslaughter where he engaged in a drag race and the vehicle of his co-participant struck and killed an innocent third person. State v. Fennewald, 339 S.W.2d 769 (Mo.1960).

Most jurisdictions have refused to invoke the felony-murder doctrine against the defendant where the death involved was that of his accomplice and it resulted from forces over which the defendant had no direct control. Thus the doctrine was held to be inapplicable where a co-felon of the defendant was killed by police, Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958); People v. Antick, 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43 (banc 1975); Wright v. State, 344 So.2d 1334 (Fla.App.1977); or by the intended victim, State v. Canola, 73 N.J. 206, 374 A.2d 20 (1977); Sheriff, Clark County v. Hicks, 89 Nev. 78, 506 P.2d 766 (1973); People v. Austin, 370 Mich. 12, 120 N.W.2d 766 (1963); People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130 (1965); People, v. Morris, 1 Ill.App.3d 566, 274 N.E.2d 898 (1971).

Redline a leading authority in the field, holds, 137 A.2d at 476, that “the mere coincidence” of homicide and felony is not enough to satisfy the requirements of the felony-murder doctrine, and that it is necessary to show that the conduct causing death was done in furtherance of the design to commit the felony. The court pointed out that the shooting of the accomplice by the policeman was justifiable and that the defendant, “no matter how much of an outlaw he may be,” could not be charged, with respect to the death, for the consequences of the lawful act of another person.

In Antick the court said, 123 Cal.Rptr. at 480, 539 P.2d at 48, “It is not enough that the killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of the killing.” The court also said, 123 Cal.Rptr. at p. 481, 539 P.2d at p. 49: “[Njeither the felony-murder doctrine nor the theory of vicarious liability may be used to hold a defendant guilty of murder solely because of the acts of an accomplice, if the accomplice himself could not have been found guilty of the same offense for such conduct.” In support of that proposition the court cited People v. Ferlin, 203 Cal. 587, 265 P. 230 (1928) where the defendant was charged with felony-murder based upon the accidental death of one Skala, whom defendant had hired to commit arson. Skala accidentally killed himself while perpetrating the arson. In holding that the felony-murder doctrine would not be invoked, the court, in Ferlin, said: “It would not be seriously contended that one accidentally killing himself while engaged in the commission of a felony was guilty of murder. If the defendant herein is guilty of murder because of the accidental killing of his co-conspirator, then it must follow that Skala was also guilty of murder, and, if he had recovered from his burns, that he would have been guilty of an attempt to commit murder. ... It cannot be said from the record in the instant case that defendant and deceased had a common design that deceased should accidentally kill himself. Such an event was not in furtherance of the conspiracy, but entirely opposed to it.” (Emphasis added.)

In Canola, 374 A.2d at 30 the court said it would be “regressive” to extend the felony-murder rule “to lethal acts of third persons not in furtherance of the felonious scheme.” (Emphasis added.)

In arson cases, the majority of jurisdictions have refused to invoke the felony-murder doctrine where the death was that of defendant’s accomplice (himself the arsonist) and the defendant was not present at the scene of the arson. People v. LaBarbera, 159 Misc. 177, 287 N.Y.S. 257 (1936); Woodruff v. Superior Court of County of Los Angeles, 237 Cal.App.2d 749, 47 Cal.Rptr. 291 (1965); People v. Earnest, 46 Cal.App.3d 792, 120 Cal.Rptr. 485 (1975); People v. Ferlin, 203 Cal. 587, 265 P. 230 (1928); State v. Williams, 254 So.2d 548 (Fla.App.1971). Contrary results have been reached where the defendant was present at the scene of the fire which resulted in the death of his accomplice. Commonwealth v. Bolish, 391 Pa. 550, 138 A.2d 447 (1958). State v. Sotteriou, 132 N.J.Super. 403, 334 A.2d 47 (1975).

In LaBarbera the court said that the death of the accomplice occurred by his own act, and therefore was not by the act of another and did not come within the definítion of criminal homicide. In Woodruff the court said that the accomplice’s act of accidentally killing himself was not an unlawful killing. In Williams the court held that the felony-murder statute was applicable “only when an innocent person is killed as a sequential result of events or circumstances set in motion by one or more persons acting in furtherance of an intent or attempt to commit one of the felonies specified in such statute.”

It should be noted that in the cases heretofore discussed, where the felony-murder doctrine was held to be inapplicable, the defendant was excused from any culpability for the death of his accomplice; that is to say, not only was the defendant not guilty of murder, he was not guilty of manslaughter.

Bolish and Sotteriou did invoke the doctrine of felony-murder against an arsonist based on the accidental death of his co-arsonist. In those eases, unlike the arson cases previously cited, the defendant was present at the scene of the fire.

It is doubtful, however, that defendant’s criminal responsibility for the death of his accomplice should depend upon whether or not defendant was present. Any causal connection with the death, and any culpability therefor, would seem to be the same whether defendant was or was not a witness to the unintended demise of his co-perpetrator. If, under the facts in La-Barbera, Woodruff, Earnest, Ferlin, and Williams, the defendant had sent two arsonists to the scene, could it be plausibly maintained that the defendant was blameless for the death but that the companion of the decedent was culpable? It seems unlikely. Note also that in the foregoing cases, where the underlying felony was one other than arson, the defendant was present at the time of the death of his accomplice.

In drag racing cases several jurisdictions have refused to invoke the “misdemeanor-manslaughter doctrine” where the death was that of a participant in the drag race. Thacker v. State, 103 Ga.App. 36, 117 S.E.2d 913 (1961); Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961); State v. Petersen, 270 Or. 166, 526 P.2d 1008 (1974).

In Thacker the court emphasized that the state had failed to prove that the death of the accomplice was not due to the act of the deceased himself. In Root the court said at p. 314 of 170 A.2d that the defendant’s “reckless conduct was not a sufficiently direct cause of the competing driver’s death to make him criminally liable therefor.” In Petersen the Supreme Court of Oregon adopted, as its opinion, a dissenting opinion of Chief Judge Schwab who, in the court of appeals, voted to reverse the manslaughter conviction. The adopted opinion (appearing in 17 Or.App. 478, 522 P.2d 912 at 921-22) said, “[T]he issue is not causation, it is responsibility. In my opinion, policy considerations are against imposing responsibility for the death of a participant in a race on the surviving racer when his sole contribution to the death is the participation in the activity mutually agreed upon. Of course, all participants could be prosecuted if their reckless conduct constitutes some other offense. And all participants could be prosecuted if their reckless conduct results in the death or injury of a nonparticipant. Drawing the line at that point, however, seems to be a sufficient deterrent to me.” (Emphasis in original.)

The court, in Petersen, disapproved of the holding in Commonwealth v. Atencio, 345 Mass. 627, 189 N.E.2d 223 (1963). In Aten-cio three persons were playing “Russian roulette” and one of them shot and killed himself. A survivor’s conviction for manslaughter, i. e., recklessly causing the death of another, was affirmed. The Petersen court said that it would not impose liability for manslaughter under the facts in Atencio because the participants “had knowingly and voluntarily joined in a reckless course of conduct.”

Two brothers of Bradshaw participated in the unlawful venture and were present when he met his death. If defendant is guilty of homicide, would it not follow that the brothers were guilty of fratricide? Ordinarily a defendant may not complain of the fact that other people have not been prosecuted for the same offense. It seems clear, however, that if the brothers had been charged with manslaughter, a jury would be reluctant, if not unwilling, to convict them.

If a would-be burglar on the roof of a house fell to his death because he slipped on a loose shingle, would his accomplice, keeping a lookout below, be criminally answerable for his death? If not, would the result be otherwise merely because the lookout, rather than the decedent, originated the idea to commit the burglary? The paucity of authorities in this area may be explained by the fact, if it be a fact, that homicide charges simply are not filed in such circumstances.

Cases heretofore cited have held that a felon is not criminally answerable for the death of his co-felon where it is caused by the direct act of the resisting victim or law enforcement officers. Such counteractions can hardly be said to have been unanticipated but they are calculated to thwart, rather than to further, the criminal purpose. The courts which have reached these results have usually not done so on tort concepts of contributory negligence or assumption of risk on the part of the decedent. Some of them expressly rejected the applicability of the tort theory of proximate cause.

Analysis of the authorities seems to justify the conclusion that a combination of two factors will lead to the result that the court will not invoke the felony-murder doctrine. These factors are:

1. The decedent was a willing participant in the underlying felony; and

2. The death was caused by an outside agency, human or natural, which had the effect, calculated or accidental, of thwarting rather than furthering the commission of the underlying felony.

In the instant case both factors are present. The thwarting force, the electrical charge, was no more within the control of the defendant and no more predictable than resistance by a victim or intervention of the police. If a felon is not responsible for the death of his co-felon under the latter circumstances, a misdemeanant is not responsible for the death of his co-misde-meanant under the facts at bar.

The judgment should be reversed and the defendant discharged. It is so ordered.

TITUS, J., and KENNEDY, PYLE and CAMPBELL, Special Judges, concur.

      . Unless otherwise indicated, all references to statutes are to RSMo 1969, V.A.M.S.

      . Section 559.070 is now § 565.005 V.A.M.S.

      . See § 560.161. Under § 560.156 “property” which may be the subject of larceny includes “everything of value whether real or personal, tangible or intangible . .

      .See State v. Holliday, 546 S.W.2d 38 (Mo. App.1976) dealing with an attempt to steal property of unstated value.

      . In the instant case, although defendant was present at the time of the death of Bradshaw, the fact of his presence was not charged in the information nor was it included in the state’s verdict-director as essential to a finding of guilt.

      . The same court which decided Atencio later said, in a case where the felony-murder doctrine was attempted to be invoked with respect to the death of an innocent victim, “The basic question is whether a felon can be heid criminally liable for the death of any person killed by someone resisting the commission of the felony. We hold that he cannot be.” Commonwealth v. Balliro, 349 Mass. 505, 209 N.E.2d 308, 314 (1965).

      . In the instant case the state did not charge or prove a violation by the defendant of that portion of § 559.070 dealing with “culpable negligence.” For a discussion of that prong of the manslaughter statute see State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84 (1944).

      . “It has already been noted that, for manslaughter liability of the criminal-negligence sort, perhaps one is not liable for an unintended death which happens to a willing participant in the decedent’s criminally negligent conduct. If this limitation upon liability is valid as to the criminal negligence sort of manslaughter, it is, on principle, equally so as to the unlawful-act-causing-foreseeable-death type of manslaughter; if it is unjust to punish a person for the death of his willingly participating colleague in the one situation, it is equally unjust to do so in the other.” Criminal Law, LaFave-Scott, § 79, p. 598 (1972).


author: WASSERSTROM, Judge.

text:
    Allen Edward HARRIS, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28825.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.
    Kevin R. Locke, Asst. Public Defender, Clifford A. Cohen, Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Harris was indicted on five counts. His case went to trial, but at the close of the State’s evidence Harris changed his plea to guilty. The plea was accepted, and sentence was imposed of twenty years on each count to run concurrently. Thereafter Harris filed this 27.26 motion. The trial court appointed counsel, held a hearing, made findings and overruled the motion. Harris appeals. We affirm.

Harris’ first point is that he received ineffective assistance of counsel. The trial court found representation by trial counsel to have been adequate, and that finding is not clearly erroneous. An extended opinion on this point would have no precedential value and Harris’ Point II is therefore overruled under Rule 84.16(b).

Harris’ second and final point is that his conviction under both Counts I and III subjected him to double jeopardy. Count I alleged that Harris assaulted Emmett F. Walls with a .38 caliber revolver and did rob Walls of $200 by force and violence to his person and by putting him in fear. Count III alleged that Harris assaulted Walls with a deadly weapon by shooting and maliciously wounding Walls with the purpose of killing him.

The trial court found that Harris had waived any objection based on double jeopardy by pleading guilty. That basis for the ruling is unsound, because a plea of guilty cannot of itself constitute waiver of double jeopardy. Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); State v. Cody, 525 S.W.2d 333 (Mo.banc 1975).

There are numerous Missouri cases saying that double jeopardy is a personal privilege which may be waived by appropriate action or inaction (other than a mere guilty plea). Ex parte Dixon, 330 Mo. 652, 52 S.W.2d 181 (banc 1932); State v. Paglino, 319 S.W.2d 613 (Mo.1959); State v. Harper, 353 Mo. 821, 184 S.W.2d 601 (1945); State v. Reynolds, 345 Mo. 79, 131 S.W.2d 552 (1939). So, it has been held that an objection of double jeopardy is waived if not timely raised. Ex parte Dixon, supra; Williams v. State, 567 S.W.2d 370 (Mo.App.1978). Harris did not make any objection based on double jeopardy at any time during the course of the principal proceedings, and the cases just cited would support the application of this variation on the trial court's theory of waiver.

However, a cloud has been cast upon the foregoing analysis due to the opinion in State v. Cody, supra, which holds that double jeopardy is a “jurisdictional defect.” If so, such objection is not subject to waiver. The Attorney General seeks to distinguish Cody, but this matter need not be pursued.

Even if the reason given by the trial court for a ruling may not be supportable, the ruling may nevertheless be affirmed if sustainable on any proper ground. Turner v. State, 559 S.W.2d 555 (Mo.App.1977); Tollison v. State, 556 S.W.2d 455 (Mo.App.1977). Such a supportable ground for affirmance does exist here in that Counts I and III have not been shown actually to be duplicitous.

There are cases which hold that the state may not use a single act of force on the part of a defendant as the basis upon which to convict him of both robbery and assault. State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970); State v. Neal, 514 S.W.2d 544 (Mo.banc 1974). However, those cases acknowledge and others expressly hold that a defendant may be charged and convicted of both robbery and assault where separate acts of force were employed to commit the respective crimes. For example, there are separate acts of force and therefore no double jeopardy where the defendant shot the victim after the robbery had already been completed. State v. Ross, 523 S.W.2d 841 (Mo.App.1975); State v. Collett, 526 S.W.2d 920 (Mo.App.1975).

In the present case the indictment does not show on its face that there was only a single act of force used to commit both the robbery and also the assault. Indeed, there is some slight indication to the contrary in that Count III (charging assault) alleges shooting and wounding, whereas Count I (charging robbery) makes no such allegation. Nor has Harris shown by any evidence that both counts rest upon a single act of force.

Rule 27.26(f) expressly places the burden of proof upon Harris to establish his grounds for relief. He has wholly failed to carry this burden of showing a violation of the double jeopardy rule. His second point must therefore be overruled.

Affirmed.

All concur.


author: PER CURIAM:

text:
    Frederick Tyrone GANT, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29413.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.
    Kevin R. Locke, Asst. Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   PER CURIAM:

On April 22,1971, Appellant, by jury, was convicted of first degree murder. Sentence was affixed at life imprisonment. Appellant’s conviction and sentence were affirmed on direct appeal, State v. Gant, 490 S.W.2d 46 (Mo.1973), and reference to that decision makes recitation of the facts herein unnecessary.

On September 6, 1976, Appellant filed a motion to vacate his sentence under Rule 27.26. On December 16, 1976, Appellant filed an amended petition under Rule 27.26.

Appellant was represented by learned counsel and an evidentiary hearing was held on December 20,1976 upon the amended motion, at the conclusion of which the trial court made findings of facts and conclusions of law satisfying the rule in Fields v. State, 572 S.W.2d 477 (Mo. banc 1978).

Appellant raised three points on appeal.

I

Denial of due process and equal protection, occasioned by the use of hearsay testimony.

This point may be summarily dispensed with, for in Appellant’s brief he admitted and agreed that the ruling upon this question by the trial court was accurate.

Appellant’s first point is without merit.

II

Denial of effective assistance of counsel through counsel’s failure to object to such hearsay.

After a lengthy hearing, upon Appellant’s amended motion wherein counsel for Appellant, the prosecuting attorney and an additional state witness were examined by Appellant’s counsel, the record clearly shows the out-of-court statement was unknown to counsel until after this case had been determined on direct appeal.

The question raised by Appellant’s second point is not supported in the record of the 27.26 hearing. At most, the failure to object was trial error, which is a matter for direct appeal and does not support Appellant’s contention for post-conviction relief.

Appellant’s second point is without merit.

III

Denial of due process through the use of perjured testimony.

While the court must ever safeguard the right of due process and especially its violation by use of perjured testimony, Appellant has the burden to prove that the testimony upon trial was deliberately false and known to be false, that the prosecution used the testimony and that the conviction was secured on account of the perjured testimony. Duncan v. State, 520 S.W.2d 123 (Mo.App.1975).

The record clearly shows that defense counsel did not even learn of the statement (the alleged perjury) until months after the decision on appeal. Further, counsel for Appellant during the 27.26 hearing examined the police officer, who, upon oath, denied he had lied upon the trial of the case. He further explained the use of photographs and “line up” identification of the Appellant by an eyewitness in the case. Examination of the prosecutor also revealed that while he was surprised by the testimony, he did not attribute any implication of falsehood to the testimony.

Appellant has failed to prove that the testimony was deliberately false, that the prosecution used the testimony knowing it to be false and that his conviction was obtained by its use, thus failing to meet the standard required in Duncan v. State, supra.

Affirmed.


author: PRITCHARD, Judge.

text:
    Moneer M. RAHHAL, Appellant-Respondent, Vo Nabeha MOSSIE, Respondent-Appellant.
    Nos. KCD 29488, KCD 29491.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.

      William C. Paxton, Independence, for Rahhal.
    Keith Wilson, Jr., and George E. Kapke, Independence, for Mossie.
    Before HIGGINS, Special Judge Presiding, WELBORN, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

The appeal of Nabeha Mossie arises from a judgment upon the verdict of a jury for $49,863.00 on Count I granted to her brother, Moneer M. Rahhal, upon his claim for a share in the proceeds of a promissory note, payable to both, given by Mr. and Mrs. Roberts in partial payment of the purchase price of an apartment building at 3431-3433 Holmes, Kansas City, Missouri. Count II prayed for punitive damages, but that issue was not submitted to the jury. The court also entered judgment for Moneer upon his Count III for partition of the remainder of the Roberts’ note, and ordered distribution of the balance of the note and of an account containing payments received from the Roberts after Moneer filed his action. Upon the facts, and for the reasons following, Nabeha’s appeal must be dismissed because not timely filed.

Judgment upon the verdict of Count I was entered January 6, 1977, and upon Count III for partition January 10, 1977. Nabeha filed her motion for judgment notwithstanding the verdict or for a new trial on January 21, 1977, and the motions were overruled on April 22, 1977. Thus, under Rule 81.04, the time for filing the notice of appeal, and depositing the $20.00 docket fee, in the trial court, was fixed as of May 2, 1977. The notice of appeal shows this filing stamp: “1977 May — 3 PM 3:44 PILED CIRCUIT COURT JACKSON COUNTY, MO. By P.G.” This is one day late. Nabeha, however, seeks to impeach the foregoing record before this court by her counsel’s affidavit that the notice of appeal was timely filed on May 2, 1977. Under the cases, neither the affidavit nor the counter affidavits filed herein avail anything. In Lloyd v. Grady, 180 S.W. 1032 (Mo.App.1915), under existent statutes, plaintiff had four days after taking a voluntary nonsuit with leave to file a motion for new trial. The fourth day fell upon a Monday, a legal holiday, which was not then excluded in computing time as it is now under Rule 44.01(a). Plaintiff filed the motion to set aside the nonsuit and for new trial on Tuesday, held not to be timely. The court said, page 1033[2], “We cannot consider the evidence plaintiff incorporated in the bill of exceptions to impeach the record by showing that the motion, in fact, was filed in time. If the record does not show the true fact, plaintiff should have moved for its correction nunc pro tunc. We must take the record as it is.” In Hendershot v. Minich, 297 S.W.2d 403 (Mo.1956), it was sought to show by affidavits, pro and con, concerning the supposed consent or lack of consent on the part of defendant’s counsel to any hearing of a motion for new trial outside of Henry County, the county of trial, by a specially assigned judge thereto from Jasper County. The court rejected a consideration of the controversial affidavits filed months after the appeal was taken, saying, page 410[12-15], “We do not think that it was intended, or that it is proper, for an appellate court to hear or consider evidence, orally or by affidavit, to complete, correct, or impeach a transcript. Our appellate courts have on various occasions rejected affidavits and other extraneous writings, submitted for such purposes. See generally: (citing cases) * * *; nor was there an application for a nunc pro tunc order * * * or to employ any other traditional method to cause the record of the trial court to reflect correctly what had transpired.” In Linneman v. Whitley, 402 S.W.2d 76 (Mo.App.1966), it was sought to show, in seeking to set aside a default judgment, by affidavits that appellants’ counsel had abandoned them. It was said, page 78, “In the case of Dennison v. City of Kansas, 95 Mo. 416, 8 S.W. 429, the court was asked to consider certain affidavits which were filed in the Supreme Court after the cause was transferred to it by appeal. The court declined to do so saying: ‘Our rule and duty are to determine a cause upon the record as it comes to us from the trial court.’ ” Compare also Bonadonna v. Bonadonna, 322 S.W.2d 925, 927 (Mo.1959). Not only was there never a motion filed with the trial court to correct the clerk’s record of the filing, if it was in error, by order nunc pro tunc, but there was never any application to this court to allow the filing of a notice of appeal out of time, within six months from the date the judgment became final under Rule 81.07(a).

Nabeha suggests also that a trial court entry of May 4, 1977, “Order for Specific Performance of Judgment Under Rule 74.20” set the date for finality. That order is not a part of the transcript of the record filed herein, and may not be noticed. Holt v. Rabun, 519 S.W.2d 561 (Mo.App.1975). But regardless of that, the judgment entries of January 6 and 10, 1977, disposed of the issues and rights of the parties, and the May 4, 1977, order added nothing more. Rule 74.20 is inapplicable.

The filing of a timely notice of appeal is mandatory and is jurisdictional. Holmes v. Navajo Freight Lines, Inc., 488 S.W.2d 311 (Mo.App.1972). This court is therefore prevented from considering Nab-eha’s contentions of error because her notice of appeal was not filed within ten days of the date the judgment against her became final.

Moneer appeals from a judgment against him in favor of Nabeha upon her counterclaim. That counterclaim (Count I) was founded upon a written instrument between the parties evidencing a debt due from Moneer and wife to Nabeha, dated October 1, 1963, for $15,000.00 with 5% interest, “to be paid from the equity of the house on 719 N.W. 34.” To this counterclaim Moneer pleaded the bar of the statute of limitations, § 516.110 RSMo 1969, and his testimony was that he had made no payments on the note. The payment, i. e., the due date of the note, was by its terms fixed to the sale of the house on 719 N.W. 34, which occurred in 1964. The counterclaim was filed on February 5,1976, so to survive the plea of the bar of the statute of limitations, Nabeha’s evidence must show that she received some payment thereon within 10 years prior to that date. Welborn v. Southern Equipment Co., 395 S.W.2d 119, 124[4, 5] (Mo. banc 1965). The burden of proof to show by substantial evidence that payments were made within time to toll the statute was upon Nabeha. Locke v. Warden, 179 S.W.2d 624, 627[1] (Mo.App.1944). Her testimony was this: She had never received any payments on the note, but she had received interest payments in 1965 and 1966, which was less than the interest amounts due. On cross-examination, she expounded: “Q * * * [A]nd as I recall from your deposition, you said something about getting $500.00 when you went down [to Oklahoma] to the funeral of your brother in ’66? A Yeah. Q He died in January— A January 11th. Q January 11th, 1966? A Right.” There was no other testimony of interest payments, and the date mentioned, January 11, 1966, when the payment was made is more than 10 years prior to February 5, 1976. The defense of the statute of limitations was good as to Nabeha’s counterclaim on the note, and the court erred as a matter of law in submitting it to the jury. Moneer’s motion for directed verdict, based upon the running of the statute of limitations should not have been overruled.

Nabeha’s appeal is dismissed because the notice thereof was not timely filed. Her judgment on her counterclaim against Mo-neer is reversed and the case is reversed with directions to enter judgment against Nabeha and in favor of Moneer thereon.

All concur.


text:
    STATE ex rel. Nancy L. NEELY et al., Relators-Respondents, v. Beverly VANDERPOOL, Secretary to the Board of Education of Cowgill School District, No. R-VI, of Caldwell County, et al., Respondents-Appellants.
    No. KCD 29654.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.

      A. V. McCalley, McCalley & Thiebes, Richmond, for respondents-appellants.
    Max W. Foust, G. Spencer Miller, Lloyd L. Messick, Morris, Foust & Beckett, Kansas City, for relators-respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

This is a mandamus action to compel the Secretary and Board of Education of Cow-gill School District R-VI (hereinafter referred to collectively as “Cowgill”) to submit to the voters of that district a proposition to change the boundaries between the Cowgill District and Braymer School District No. C-IV. The trial court ordered Cowgill to submit the proposition as prayed. Cowgill appeals. We affirm.

Cowgill School District is a six-director district covering 34 square miles which includes the town of Cowgill. It presently serves 54 elementary students, 31 high school students and 2 special education students. The property valuation now is $1,618,990. It is bordered on the east by the Braymer School District which is also a six-director district.

In 1976, the requisite ten percent of the voters of the Cowgill District petitioned for a change of boundaries of the Cowgill and Braymer Districts under the provisions of Section 162.431, RSMo Supp.1973. By the change requested, 23 square miles of the Cowgill District, including the area of the town of Cowgill and also the area on which the schoolhouse is located, would go to the Braymer District, leaving to the Cowgill District only 11 square miles. Also, under the change requested, the Cowgill District would be left with only 5 elementary students, 3 high school students and no special education students, and the amount of the property valuation left in the Cowgill area would be reduced to $405,075.

Upon presentation of the petition to the Board of the Braymer District, an election was held and the proposition was passed by the voters of that district. However, on presentation of the petition to the Board of the Cowgill District, the Board refused to submit the proposition to a vote. That refusal led the petitioners to file the present mandamus action to force Cowgill to do so, and the trial court issued its alternative writ.

Cowgill presented evidence at the trial which showed that if the boundaries were changed as requested, the revenue of the Cowgill District would be reduced to $13,-164.93; that the cost of operating the District would be greatly in excess of that amount; and that it would be impossible to operate a school under those circumstances, particularly with the schoolhouse being taken away. Relators (petitioners for the change) on the other hand submitted evidence that the Cowgill District was already paying tuition in order to send its high school and special education students to other districts and that Cowgill, after the requested change of boundaries, could do likewise for the 5 elementary students remaining, or it could proceed to annex the remainder of the Cowgill District to either the Braymer District or to the Polo School District. At the conclusion of the evidence, the trial court made its alternative writ of mandamus peremptory.

On this appeal, Cowgill makes the single point that the proposed change would be an inappropriate use and a perversion of Section 162.431, in that it would obliterate the Cowgill District, would not permit the continuation of both the Cowgill and Braymer Districts, and would not leave a sufficiently substantial area in the Cowgill District to permit its effective operation. In support, Cowgill relies upon England v. Eckley, 330 S.W.2d 738 (Mo. banc 1960).

Because of the heavy reliance by Cowgill upon the England decision and the importance of that opinion to a decision of the present case, a rather detailed statement of the facts and holding in that case is in order. In England there were petitions to change the boundaries of two school districts so as to take from District C-2 and to give to District No. 6 69% of the territory of District C-2 and $2,630,590 out of $3,587,-120 of the C-2 assessed valuation. The trial court in England issued an alternative writ requiring District C-2 to put the proposition to a vote of its voters, but upon completion of the evidence the court quashed the writ. On appeal, the St. Louis Court of Appeals affirmed upon the ground that the extent of the taking from District C-2 was so substantial as to constitute an annexation rather than a mere change of boundaries, and it therefore held that the only procedure available was that provided by the statute relating to annexation. However, upon transfer, the Supreme Court reversed.

The Supreme Court opinion sets forth an extensive review of the history of the school statutes relating to changes of boundaries between districts. The opinion points out that prior to 1955 there had been an express restriction upon the extent to which a change of boundaries could reduce the school district whose area was taken by reason of the boundary move. However by the 1955 statutory revision, that restriction was eliminated from a related statute and no such restriction was put in Section 165.-294, which was the section directly in controversy in England and which section was the direct predecessor of the present Section 162.431, in issue in the present case.

The court in England went on to say that the procedure for annexation and that for “change of boundaries” have been used more or less interchangeably and that there has been an historical trend toward broadening and extending the application of the change of boundary procedure. The opinion states that it is not the function of the court to pass upon the necessity for any change of school district boundaries, although there is an “implied injunction that both districts shall continue to exist.” The narrow holding of the opinion is that “[b]y any test it [the balance left to District C-2] would constitute a substantial part of the whole district, both in area and assessed valuation.” The court went on, however, to venture the following speculation by way of dictum: “It may be that since a change of boundaries contemplates the continued existence of both districts, and in the absence of any specific limitation in section 165.294 [now Section 162.431], a sufficiently substantial area should remain to permit its effective operation as a school district.” The court also observed that the England decision “leaves some remaining ambiguity for the future” and that “[t]he legislature will have an opportunity to consider section 165.294 again in view of these developments.”

We can assume, favorably to Cowgill, that the speculative dictum referred to immediately above should be considered as a ruling (under the statutes then in force) that a change of boundary should not be so drastic as to reduce one of the districts so far as not to permit it to continue effective operation as a school district. We can further assume that under the facts of the present case, Cowgill would be so stripped. Even so, the England decision does not control the present case, because since 1960 when England was decided, the legislature has responded to the invitation of that opinion to further legislate upon this subject.

In 1963 the school statutes were subjected to major revision. Section 165.294 became Section 162.431 and remained essentially unchanged. However the 1963 revision added a new Section 162.071 which introduced with respect to school boundary changes a new concept which is crucial to the decision of this case. This new section appears in Laws of Mo.1963, p. 216, as follows:

“ * * * Whenever * * * a change in the boundaries of an existing school district leaves the remaining part of a district containing, less than twenty children of school age and either less than eight square miles of territory or an assessed valuation of less than fifty thousand dollars, any three taxpayers of the * * * remaining part of the district may call a meeting of the voters of the territory to vote on the proposition of annexation to an adjoining school district by giving notice of the meeting and the purpose thereof in the manner prescribed by section 3-6 as determined by the taxpayers. The voters at the meeting shall thereafter proceed as provided in section 3-43. If no proceedings to attach such remaining part of a district to an adjoining district are instituted within sixty days, or if the proceedings are unsuccessful, the county board of education shall order its annexation to an adjoining district. * * *”

Still further extensive changes in the school statutes occurred in 1973. At that time, Section 162.071 was amended to further provide that it would apply when the change in the boundaries of an existing school district leaves one of the districts “without a schoolhouse.” By reason of this last addition, the present case falls squarely within the ambit of Section 162.071.

The pattern of these changes shows a new approach to the problem involved in the England case and here, as compared to what had previously obtained. Prior to 1955, the legislative approach was to prohibit a change of boundaries if it would result in unduly weakening one of the school districts. Under the new statutory approach adopted in 1963 and furthered by the 1973 amendment, the concept is to permit changes of boundaries even when the change is so drastic as to make one of the districts affected inoperable; but if so, the solution is to be the annexation of the nonviable school district to one of its larger neighbors.

Therefore, under the present statutes, Cowgill may not resist placing before its voters the present proposition even though that proposition if adopted will leave it with too few students, too small an assessed property valuation, and an underfi-nanced condition. That does not leave Cowgill without recourse. It may still undertake to convince the voters of the district as a whole that the proposition is unnecessary and unwise and should not be adopted. If a majority of the voters in the district agree and vote down the proposal, then the matter may be taken to arbitration under the provisions of Section 162.431, but in that case Cowgill will have full opportunity to persuade the board of arbitration of the justice of its position. Only if the arbitration goes against it, will it be faced with the necessity of annexation pursuant to Section 162.071.

The trial court was correct in ordering Cowgill to submit the proposition in question to the voters of the district. That judgment is therefore affirmed.

All concur.

      . Appended to Section 162.071, RSMo Supp. 1973 is an editorial note that the source of this statute is RSMo 1959, Sections 165.167, 165.-287 and 165.685. However, none of those statutes dealt with the situation where the drastic reductions in question were caused by “a change in boundaries” procedure under former Section 165.294 (currently Section 162.431) or former Section 165.170.


author: PER CURIAM.

text:
    SHAW ELECTRIC SUPPLY CO., Respondent, v. W. C. HAAS REALTY MANAGEMENT, INC., Appellant.
    No. KCD 29667.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.

      Charles C. Shafer, Jr., Kansas City, for appellant.
    Michael R. Roser, Berman, DeLeve, Ru-chan & Chapman, Kansas City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   PER CURIAM.

W. C. Haas Realty Management, Inc. appeals the judgment of the trial court awarding Shaw Electric Supply Co. $525.76 on account for merchandise supplied and interest accrued from the due date. The case was tried without a jury and is reviewable under Rule 73.01.

Upon an examination of the entire record, this Court finds the judgment to be supported by substantial evidence and not to be against the weight of the evidence in conformity with the standard for review in cases tried to the Court. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). It further appearing that no error of law has been shown and that an opinion would have no precedential value, the judgment of the trial court is affirmed. Rule 84.16(b).


text:
    Cyrus SEE, Respondent, v. ST. PAUL INSURANCE COMPANY, Appellant.
    No. KCD 29771.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.
    Dean F. Arnold, B. W. Jacob, Kansas City, for appellant.
    Henry H. Fox, Jr., John R. Coffin, Kansas City, for respondent.

      Before SOMERVILLE, P. J., and DIXON and TURNA&E, JJ.
   PER CURIAM.

We have before us defendant insurance company’s appeal from a judgment for plaintiff in the sum of $400.39 representing the value of a citizens band radio and microphone stolen from plaintiff’s pickup truck. Plaintiff contends and defendant denies that the loss was covered by an insurance policy issued by defendant. It is admitted that the policy was in force, and that the loss was sustained.

The case was tried to the court without a jury upon a written stipulation of facts.

By the terms of the policy the loss was covered “only if the equipment at the time of the loss . . . [was] permanently installed in or upon” plaintiff’s vehicle.

The loss occurred while plaintiff was eating breakfast in a restaurant, having left his locked pickup truck on the street nearby. Before leaving the truck, he had removed the radio and microphone from their mounting bracket on the dashboard and had placed them on the floor behind the driver’s seat. (A supplemental stipulation, filed directly in this court, adds that this procedure involved the disconnection of electrical and aerial wires, and that the equipment was hidden from view behind the seat.) On plaintiff’s return he found the truck had been broken into and the equipment missing.

It will be seen from the foregoing that the equipment at the time of the loss was not permanently installed in or upon plaintiff’s vehicle.

It follows that the loss was not covered by the insurance policy, and judgment should have gone for defendant upon plaintiff’s claim.

Plaintiff is not aided by the oft-iterated principle that ambiguities in insurance policies are resolved in favor of the insured. The contract language as applied to the circumstances of plaintiff’s loss is plain and unambiguous. Moskowitz v. Equitable Life Assur. Soc. of U. S., 544 S.W.2d 13, 16 (Mo. banc 1976); Hamiltonian Fed. S. & L. v. Reliance Ins. Co., 527 S.W.2d 440, 442 (Mo. App.1975).

Nor is there any place for deference to the trial court’s findings of fact, which in the absence of specific findings are deemed to have been found in accordance with the result reached, Rule 73.01(b). The rule of deference arises from the trial court’s superior opportunity to gauge the credibility and value of oral testimony. This case was submitted upon a stipulation of facts, which we are able to consider as well as the trial court. Mid-Continent National Bank v. Bank of Independence, 523 S.W.2d 569, 573 (Mo.App.1975). The application of plain contract language to a given factual situation calls for the resolution of a question of law rather than one of fact. Renois v. Di Franco, 512 S.W.2d 411, 413 (Mo.App.1974).

The judgment is reversed and the cause is remanded with instructions to enter judgment in favor of the defendant and against plaintiff.

      . The Rule relating to the supplementing of transcripts (Rule 81.12(c)) does not contemplate the presentation, even by stipulation, of additional evidence, which the trial court had no opportunity to consider. We do not believe the facts so presented affect the result in this case and we have considered the stipulation only ex gratia. The stipulation was entered into and filed at plaintiff’s request, who at the time was not represented by counsel.