text:
    STATE of Missouri, Respondent, v. Eugene MINOR, Appellant.
    No. 59840.
    Supreme Court of Missouri, en banc.
    Sept. 27, 1977.
    Rehearing Denied Oct. 11,1977.

      Lee M. Nation, Kansas City, for appellant.
    Nanette R. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
   RENDLEN, Judge.

Charged by indictment with robbery first degree with a deadly and dangerous weapon and felony-murder: robbery, defendant was convicted on each count and sentenced under the Second Offender Act to consecutive terms of fifty years and life imprisonment, respectively. Defendant appealed to the Missouri Court of Appeals, Kansas City district, and raised questions of constitutional construction falling within the exclusive appellate jurisdiction of the Supreme Court under Mo.Const. Art. V, § 3, as amended in 1976. The cause was transferred here prior to opinion.

Seven assignments of error are presented: (1) Failure to quash the jury panel because Missouri’s jury selection process systematically excludes women; (2) Erroneous joinder and refusal to sever the two felony charges; (3) Wrongful refusal to grant mistrial following improper prosecu-torial statement; (4) Improper sentencing under the Second Offender Act when the trial court failed to make findings sufficient to invoke its application; (5) Failure to give defendant’s requested verdict directing instruction to the effect that defendant had withdrawn from the robbery before the murder and hence was not guilty of felony murder; (6) Failure to give instruction MAI-CR 1.08 before each recess; (7) Failure to give instruction MAI-CR 2.70, admonishing the jury to consider the law and evidence as to each count separately.

Sufficiency of the evidence not being raised, a brief statement will suffice at this point, though additional facts pertinent to individual points will be supplied when necessary. On January 2, 1975, defendant entered Traxler’s Pharmacy in Kansas City with an accomplice; brandishing a revolver, he ordered the store owner and a customer to get down and began to rake drugs into a pillow case. During the robbery another accomplice entered, warning that the police had arrived. The robbers ran into the back room where the rear door was located but it was firmly locked. Two officers of the Kansas City Police Department had come to the scene and one covered the back door from outside, the other officer, Mestdagh, entered the store. Mestdagh went through the store to the back room where scuffling was heard followed by the sound of three shots. Almost immediately defendant and another of the robbers emerged from the room and were apprehended near the store as they attempted to flee. Mestdagh’s body, riddled by three bullets, was found in the back room.

I

Defendant first contends the trial court erred in failing to quash the panel because Missouri’s jury selection process, Mo.Const. Art. I, § 22(b) and § 494.031(2), RSMo Supp. 1975, systematically excludes women from jury service and is therefore unconstitutional, citing Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). State v. Duren, No. 59914, 556 S.W.2d 11 (Mo.banc 1977), decided concurrently with the case at bar, upheld the challenged constitutional section and its implementing statute which permit women the privilege of declining jury service and that decision is dispositive of this defendant’s sex based challenge to the facial validity of the cited sections.

The remaining question is whether from the evidence it has been shown that the Jackson County jury selection process resulted in criminal venires not “representative of the community” and “almost totally male”, as those constitutional standards were delineated in Taylor, requiring reversal in this case. By stipulation the evidence presented in the proceeding to quash the jury panel in State v. Lee, 556 S.W.2d 25 (Mo.banc 1977), another case decided concurrently herewith, was introduced in the case at bar. Defendant also introduced the list of jurors summoned during the week of trial (December 8, 1975), however, this exhibit was not filed with this court nor included in the transcript on appeal. The panel of 55 in defendant’s case had 6 women (10.9%) and the final 12 were men. The evidence does not differ significantly from Lee, hence the contention is denied.

II

It is next contended the court erred permitting joinder of charges in a single indictment and compounded the error by denying severance, forcing defense of both in a single trial. The murder of Mestdagh and the drugstore robbery were simultaneous or sequential parts of a single escapade occurring at the same location, constituting different criminal offenses. The state has not attempted to present unconnected crimes in the same trial and joinder of the charges was permissible under Rule 24.04 as amended in 1971. See State v. Baker, 524 S.W.2d 122 (Mo.banc 1975).

In State v. Duren, supra, this court considered a constitutional challenge to Rule 24.04, essentially the same as that made by this defendant. That ruling controls here and as in Duren, defendant has neither suggested nor has our examination of the record disclosed abuse of discretion in denial of the requested severance. This allegation of error is denied.

Ill

Defendant complains the trial court erred denying defendant’s request for mistrial, prompted by the prosecutor’s opening statement that defendant’s companion, John Francis, admitted complicity in the robbery. The court overruled the motion but warned the prosecutor, out of the jury’s hearing, “ . . . don’t make any more statements like that.” The objectionable statement was as follows: “The evidence will further be that at police headquarters that night, detectives in the Crimes Against Persons Unit interviewed John Francis and they identified this defendant, Eugene Minor; that they were told several stories, but ultimately after this defendant was permitted to talk to John Francis in private, both John Francis and this defendant, Eugene Minor, admitted their complicity in this robbery. Each of them denied being the one to shoot Russell Mestdagh, but each admitted their participation in this robbery.”

It first should be noted the state may not show that a non-testifying co-in-dictee has been convicted or pled guilty to the same crime as that which the defendant stands charged, State v. Fenton, 499 S.W.2d 813 (Mo.App.1973), nor may the state introduce evidence implicating only the co-in-dictee, State v. Mullen, 528 S.W.2d 517 (Mo.App.1975). See also State v. Castino, 264 S.W.2d 372 (Mo.1954). Further, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) condemned the prosecutor’s introduction of an accomplice’s confession by a third party implicating the defendant because defendant was denied the opportunity of cross-examining the accomplice and confrontation of his accusers.

Here, no attempt was made to introduce evidence of Francis’ confession, instead the prosecutor’s statement referred only to admission of complicity in the robbery and the fact that Francis denied having shot Officer Mestdagh. The prosecutor claimed the investigating detectives and Francis “identified this defendant, Eugene Minor; that they were told several stories but ultimately after this defendant was permitted to talk to John Francis in private, both John Francis and this defendant, Eugene Minor, admitted their complicity in the robbery.” (Emphasis ours.) Use of the third person plural possessive ‘their’ indicates that Francis and Minor both admitted the others’ as well as his own complicity. However, in the next sentence the prosecutor stated, “each of them denied being the one to shoot Russell Mestdagh, but each admitted their participation in this robbery.” (Emphasis ours.) From this ambiguity it can reasonably be argued the prosecutor, by the colloquial usage, intended to state that each admitted his participation but not that of the other. Regardless of the interpretation of the prosecutor’s remarks, i. e., whether Francis implicated only himself or Minor as well, the statement was objectionable. Nevertheless we do not believe it was prejudicial, requiring mistrial. The remedy of mistrial is a drastic one, State v. Johnson, 504 S.W.2d 23 (Mo.1973) and is to be exercised only in those circumstances where the alleged prejudice can be removed in no other way. State v. Goff, 490 S.W.2d 88 (Mo.1973); State v. Pruitt, 479 S.W.2d 785 (Mo.1972); State v. Blockton, 526 S.W.2d 915 (Mo.App.1975). As stated in State v. Camper, 391 S.W.2d 926, 928 (Mo.1965):

“ . . . the declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who has observed the incident giving rise to the request for a mistrial, and who is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal by action short of a mistrial.”

Though defendant’s motion for mistrial was overruled, his objection to the statement was in effect sustained by the trial court’s warning to the prosecuting attorney against further “statements like that”. The defense made no request that the court instruct the jury to disregard the prosecutor’s statement or for similar remedial action. Moreover defendant’s guilt was established by abundant evidence. There is no question of identity, indeed defendant did not deny his presence at the scene but claimed only that he did not participate in the robbery; that he was merely a disinterested bystander. He explained his running from the drugstore as an effort to escape being hit by stray gunfire. Two witnesses (the owner and a customer) with ample opportunity for observation inside the drugstore, positively identified defendant at a lineup and in court as one of the non-masked robbers. Each saw defendant with a gun and the owner, who was ordered to open the cash register, saw defendant stuff a pillowcase with drugs and while in the front room, fire his pistol. Both witnesses saw defendant and one companion flee to the rear of the store when the police arrived and shortly after Officer Mestdagh pursued the robbers into the back room, they heard scuffling followed by gunfire. Immediately after the gunshots, one witness saw defendant leave the back room and another (who had taken cover) heard footsteps of someone leaving the store. Officer Gaugh, seeing defendant as he emerged from the store with a handgun, gave chase and was able to catch and arrest him. Five other witnesses identified defendant as the man running from the store and chased by Officer Gaugh.

After defendant was taken to police headquarters and informed of his Miranda rights, he admitted participation in the crime in the presence of two detectives and two employees of the prosecuting attorney’s office, but later refused to sign a typewritten statement containing his confession.

Our function is to determine, whether as a matter of law, the trial court abused its discretion to the prejudice of defendant in refusing to grant a mistrial. The prosecutor’s somewhat ambiguous comment was not followed by further objectionable reference in opening statement, during testimony or in closing argument. The trial judge observed the incident and has the better position to assess its effect and determine measures necessary to cure it. In this case where the evidence of guilt is strong we cannot find prejudice spawned by the prosecutor’s improper opening remarks warranting reversal. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); State v. DeGraffenreid, 477 S.W.2d 57, 65 [15] (Mo.banc 1972). The point is denied.

IV

Tried under the Second Offender Act (§ 556.280, RSMo 1969), defendant contends the trial court’s findings were inadequate to invoke the court’s sentencing authority. The court found appellant had a previous felony conviction for which he served time in the custody of the Missouri Division of Corrections and that § 556.280, RSMo 1969, was applicable. In State v. Blackwell, 459 S.W.2d 268 (Mo.banc 1970) such findings were approved as sufficient under the Act. See also State v. Bolden, 525 S.W.2d 625 (Mo.App.1975); State v. Abernathy, 515 S.W.2d 812 (Mo.App.1974); State v. Shumate, 516 S.W.2d 297 (Mo.App.1974). The point is without merit.

V

The trial court refused a proffered instruction concerning defendant’s alleged withdrawal from the robbery before the murder of Officer Mestdagh. The proposed instruction was as follows:

“If you find and believe from the evidence that on January 2, 1975, Eugene Minor withdrew from his participation in the robbery of Traxler’s Drugstore and that after his withdrawal from the robbery of Traxler’s Drugstore Officer Mest-dagh was killed by another party acting without the aid or encouragement of Mr. Minor, you must find Mr. Minor not guilty of felony murder.”

The only evidence (buttressed by all favorable inferences) supporting defendant’s contentions may be summarized as follows: When defendant saw Officer Mestdagh coming into the store, he ran into the back room to escape, but was unable to do so. The officer entered the back room to and drew his revolver from its holster. Defendant then crawled from the back room to the front door and ran outside. Witnesses then heard several shots fired in the rear room of the store where Mestdagh’s body was found.

A remarkably similar fact situation is found in State v. Johnson, 524 S.W.2d 97 (Mo.banc 1975), reversed on other grounds. There two robbers entered a store, the co-indictee bound the owner in a back room, while defendant rifled the cash register and looted the store. When finished, defendant said, “Come on, let’s go, I have got the stuff,” and the owner heard him leave. The co-indictee remained to take the contents of the safe, but was interrupted by two police officers, one of whom he killed in the ensuing shootout. This court approved a felony-murder instruction given in the defendant’s trial, noting that “the killing occurred ‘in flight from the scene of the crime to prevent detection or promote escape’ ”.

It has uniformly been held in Missouri, as in Johnson, that escape from a robbery or robbery attempt is part of the crime, State v. Glenn, 429 S.W.2d 225 (Mo.banc 1968); State v. Engberg, 376 S.W.2d 150 (Mo.1964); State v. Jasper, 486 S.W.2d 268 (Mo.banc 1972); State v. Adams, 98 S.W.2d 632 (Mo.1936), and “If two or more persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal, if the other (or others) commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose, or as a natural or probable consequence thereof.” State v. Chernick, 278 S.W.2d 741, 746 [2] (Mo.1955) (Emphasis added). See also State v. Paxton, 453 S.W.2d 923 (Mo.1970); State v. Williams, 548 S.W.2d 227 (Mo.App.1977); State v. Sneed, 549 S.W.2d 105 (Mo.App. 1977). The murder resulting from the attempted escape was a natural and probable consequence of the original crime especially when firearms were employed in the underlying felony. It matters not whether defendant or his accomplice shot the police officer, under the interpretation of the evidence most favorable to defendant, the proffered instruction was properly refused.

VI

Defendant complains the court erroneously failed to give MAI-CR 1.08 before each trial recess as required by Rule 20.02(a). Rule 20.02(e) provides that failure to give a required instruction “shall constitute error, its prejudicial effect to be judicially determined.” Since the rule’s adoption it has been held that giving instructions containing the substance though not the form of MAI-CR 1.08 is non-prejudicial, absent a showing of jury misconduct. State v. Gaye, 532 S.W.2d 783 (Mo.App.1975); State v. Abbott, 547 S.W.2d 853 (Mo.App.1977). See also State v. Brown, 502 S.W.2d 295 (Mo.1973), and State v. Vernor, 522 S.W.2d 312 (Mo.App.1975).

In Abbott, supra, the trial court failed in one instance to give MAI-CR 1.08(b) before a trial recess. In response to an allegation of error it was held no prejudice occurred because: (1) the jury had, prior to the omission, been admonished as required by MAI-CR 1.08(a) & (b), (2) the jury was instructed at all subsequent recesses and (3) counsel for defendant did not object to the omission or seek remedial action. The court of appeals noted the deference due the trial court’s action in overruling defendant’s motion for new trial because of its vantage point for observing the jury’s conduct. Here the effect of the court’s failure to give the instruction at the noon recess before the petit jury was sworn was ameliorated by the following: (1) the panel had a short time earlier received the court’s admonition of somewhat similar character through MAI-CR 1.02, (2) at the first recess following the noon recess the court gave a slightly modified form of MAI-CR 1.08(a), (3) at the first recess after the jury was sworn the court gave MAI-CR 1.108(a) verbatim, (4) at the seven subsequent recesses the court instructed the jury on substantially the same subject matter as MAI-CR 1.08(b) and in some instances went beyond the requirements of 1.08(b). There was substantial compliance with the Rule and defendant failed to object to the omission or variance in the instructions given from MAI-CR 1.08. The state has shown by the record no prejudice occurred and we find the error harmless.

VII

Finally defendant claims the court’s failure to give instruction MAI-CR 2.70 in this two count indictment case constituted reversible error. The notes on use to MAI-CR 2.70 declare that when multiple counts are submitted, the instruction’s purpose is to apprise the jury that evidence as to each count is to be considered separately. See State v. Johnson, 537 S.W.2d 816 (Mo.App.1976). The robbery and the murder were parts of the same transaction and the testimony concerning each offense related to the other. All evidence concerning the robbery was essential to the felony-murder charge and most relating to the murder was relevant to the robbery, as the murder occurred during the attempted escape phase. It is difficult to see how the jury could have been misled by considering testimony as to either crime. To assist the jury separate verdict directors were submitted for the robbery and for the murder, each carrying the proviso directing acquittal if the jury did not believe every submitted element. The issues were further pinpointed by four appropriate verdict forms referencing the counts and crimes. These factors weigh heavily against a finding of prejudice stemming from the omission of MAI-CR 2.70. State v. Johnson, supra; State v. Nelson, 532 S.W.2d 855 (Mo.App.1975). In addition, an incident occurred demonstrating that the jury considered the law and evidence as to each count separately. During its deliberations the jury sent a note to the court asking “If a person participates in an armed robbery and a murder results in an escape attempt — is that person guilty of murder even though there is no evidence he did do the shooting? The instructions are not clear on this point. Roy L. Dickerson, Foreman.” Manifest in this inquiry is the jury’s sharp attention to the separate elements of each crime and an awareness that evidence concerning the shooting, which followed the central acts of the robbery, was not accompanied by direct evidence of who fired the shots. It is apparent the jurors understood the evidence and rationally considered each crime, but had questions concerning the law of felony-murder which they later resolved by their separate verdicts. See State v. Boyington, 544 S.W.2d 300 (Mo.App.1976). The purpose of MAI-CR 2.70 to assure that the jury, in reaching its verdict, applies the law and evidence to each charge independently, was fulfilled. The state has shown by the record and reasonable inferences therefrom that no prejudice occurred and we find the error harmless. However, this result in this case does not indicate necessarily the same result in other cases wherein MAI-CR 2.70 is not given. The directions in MAI-CR provide that it is to be given in all cases wherein there are multiple counts and trial judges are admonished to follow that direction.

The judgment of the trial court is affirmed.

MORGAN, C. J., and HENLEY and FINCH, JJ., concur.

DONNELLY, J., concurs in result.

BARDGETT, J., dissents for reasons stated in the dissenting portion of his opinion concurring in part and dissenting in part in State v. Duren, No. 59914, 556 S.W.2d 11.

SEILER, J., dissents for reasons stated in his dissenting opinion in State v. Duren, No. 59914, 556 S.W.2d 11.

      . Rule 24.04, effective July 1, 1971, provides in part: “All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute.”

      . In such cases when “their” is used colloquially with the singular antecedent “each”, the use of the pronoun “their” is intended as the third person singular possessive “his”. See Webster’s New World Dictionary, Second College Edition 1974, p. 1474.

      . The first three sentences of Rule 20.02(a), with numbers and emphasis added, require:
      [ 1] “Prior to voir dire examination of the jury the court must read to the jury MAI-CR 1.02.”

        [ 2] “after the jury has been sworn but before the opening statements, the court must read to the jury MAI-CR Nos. 1.06, 2.01 and 2.02.”
      [ 3] “before each recess or adjournment of the court the court must read to the jury MAI-CR 1.08.’’

      The chronology of items as set forth in the cited portion of the Rule would suggest that MAI-CR 1.08 need not be given except at recesses declared after the jury is sworn and after opening statements. Such an interpretation would cure the omission here. However, we interpret the Rule to require giving 1.08 before each recess or adjournment of the court after the jury panel is sworn for voir dire examination.

      . At the commencement of voir dire, the court read MAI-CR 1.02 advising the array that the 12 selected for jury duty “will be instructed later that you are not to discuss this case with anyone or among yourselves until the case is concluded and you are sent to the jury room with written instructions of the law and to deliberate upon your verdict.” The instruction contained the further admonition that attorneys for the state and the defendant, as officers of the court, will avoid saying anything to the jury other than formal salutations and “the same applies to witnesses and to the defendant. They have been or will be instructed to avoid all contacts with the jury even to talk about matters wholly unrelated to the case.”

      . The court replied in writing: “To the jury: Read all the written instructions. Judge Hall.”


source: Caselaw Access Project

author: RENDLEN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Emerson E. HARLIN, Appellant.
    No. 59913.
    Supreme Court of Missouri, En Banc.
    Sept. 27, 1977.
    Rehearing Denied Oct. 11,1977.

      Lee M. Nation, Kansas City, for appellant.
    Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
   RENDLEN, Judge.

Defendant, convicted of robbery first degree (§ 560.135, RSMo Supp. 1975) and sentenced to twenty years of imprisonment, appealed to the Missouri Court of Appeals, Kansas City district. The cause was transferred here prior to opinion as defendant raised issues of constitutional construction falling within the exclusive appellate jurisdiction of this court under Mo.Const. Art. V, § 3, as amended 1976.

For his sole contention defendant charges as error the trial court’s failure to quash the jury panel because Missouri’s jury selection process, prescribed by Mo.Const. Art. I, § 22(b) and its implementing statute § 494.031(2), RSMo Supp. 1975, systematically excludes women.

It is stated in defendant’s brief that he had “moved to strike the jury panel . as violative of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. A hearing was held and evidence was received.” No record appears of such motion having been made prior to or during trial. That being so, the court had no opportunity to correct the alleged error and the point is not preserved for review. State v. Anderson, 375 S.W.2d 116,120[8] (Mo.1964). However, the following appears in the transcript of the hearing on defendant’s motion for new trial:

“MR. MERRITT [defense counsel]: If it please the Court, I made a motion during trial before the jury was sworn to the effect that — to ask for the quashing of the jury for the reason that the jury panel was unconstitutionally — -that is, by the United States Constitution, designed to omit female members. They were allowed to excuse themselves from jury duty. That ruling was over — that motion was overruled by the Court. I did not include that in the motion for new trial. I should have. I would ask the Court to allow the inclusion of that point in the motion for new trial. (Emphasis ours.)
THE COURT: Of course you may.”

Following the granting of defendant’s oral request to amend his motion for new trial, the court permitted introduction of evidence relative to the Jackson County jury selection system and gender composition of the challenged panel. While the trial court’s ruling and its subsequent action permitting the evidentiary hearing more than ten days after verdict runs counter to this court’s decision in State v. Tucker, 451 S.W.2d 91 (Mo.1970) and Rule 27.20(a), such action is supportive of defendant’s assertion that he had in fact moved to quash before the jury was sworn, the transcript reveals no such pretrial motion. If defendant believed the transcript deficient in that regard, it was incumbent upon him to bring such deficiencies to the attention of the trial court under Rule 81.12 affording it the opportunity to correct such omissions and misstatements, or point out such deficiencies to the appellate court following filing of the transcript there. Having failed so to do, defendant’s contention is denied since matters contained in appellant’s brief or elsewhere, but not incorporated in or made a part of the officially approved transcript, may not be considered on appeal. State v. Burrington, 371 S.W.2d 319 (Mo.1963). Nevertheless, because of the above described matters occurring in connection with defendant’s motion for new trial, we examine for plain error under Rule 27.20(c).

Defendant contends that Mo.Const. Art. I, § 22(b), and its implementing statute, § 494.031(2), RSMo Supp. 1975, permitting women the option of declining jury service, have been rendered invalid by the decision of the United States Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). There the Court struck down provisions of the Louisiana Constitution and its implementing statute requiring women to file a written declaration with the clerk of the district court expressing their desire or intent to be subject to jury service before their names would be included in jury wheels or panels. The question, of whether the cited Missouri constitutional provision and its implementing statutory section are facially valid after Taylor, was fully considered and ruled against what is essentially this defendant’s contention, in the companion case State v. Duren, No. 59914, 556 S.W.2d 11 (Mo.banc 1977), decided this date.

The only question remaining is whether from the evidence it has been shown that under the Jackson County jury selection process the resulting criminal ve-nires were not “representative of the community” and were “almost totally male”, as those constitutional requirements have been delineated in Taylor. Though proof of Jackson County’s population gender distribution is essential to compare those figures against women’s percentage representation in jury wheel and panels, this indispensable proof is missing. Without it defendant is unable to demonstrate the system failed to meet the community cross section requirement of Taylor. Neither was there evidence concerning gender composition of the jury wheel or panels before or following the week of trial. The only statistical data offered relate to the number summoned and those appearing during the week of trial, which falls far short of the proof required.

Defendant failed to establish a constitutional challenge to either the facial validity of the Missouri jury selection process or the consequences of that system as demonstrated in the jury venires of Jackson County. We find no error, and nothing suggestive of manifest injustice requiring a determination of plain error.

Judgment affirmed.

MORGAN, C. J., and BARDGETT, HENLEY, FINCH and DONNELLY, JJ., concur.

SEILER, J., dissents for reasons stated in his dissent in State v. Duren, No. 59914, 556 S.W.2d 11.

      . Mo.Const. Art. I, § 22(b) — “No citizen shall be disqualified from jury service because of sex, but the court shall excuse any woman who requests exemption therefrom before being sworn as a juror.”

      . § 494.031, RSMo Supp. 1975 — “The following persons shall, upon their timely application to the court, be excused from service as a juror, either grand or petit: ... (2) Any woman who requests exemption before being sworn as a juror; . . . .”

      . Shortly before the jury was sworn defendant moved to quash the panel when the state peremptorily struck a number of black veniremen. This motion, not pursued as a point in the case on appeal, was unrelated to his later claim of systematic exclusion of women from the jury process.

      . Of 227 persons summoned during the week of trial, 59 (or 26%) were women and of the 108 persons who appeared, 10 (or 9.2%) were female. Defendant also alleges in his brief that his panel of 37 included 5 (or 13.5%) women and his jury of 12 included 2 (or 16.66%) women, but these statements are not supported by the record.


author: RENDLEN, Judge. SEILER, Judge

text:
    STATE of Missouri, Respondent, v. James L. DAVIS, Appellant.
    No. 59850.
    Supreme Court of Missouri, en banc.
    Sept. 27, 1977.
    Rehearing Denied Oct. 11,1977.

      Lee M. Nation, Kansas City, for appellant.
    Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
   RENDLEN, Judge.

This cause was transferred here after opinion by the Court of Appeals, Kansas City district, under Rule 83.02. The Court of Appeals identified issues of constitutional construction falling within the exclusive appellate jurisdiction of the Supreme Court by virtue of Mo.Const. Art. V, § 3, as amended 1976, and properly ordered the transfer. Defendant, tried and convicted under the Second Offender Act for stealing more than $50, was sentenced by the circuit court of Jackson County to four years imprisonment.

Two assignments of error are raised in this appeal. Defendant first contends the trial court erred in failing to strike the jury panel because Missouri’s jury selection process, Mo.Const. Art. I, § 22(b) and § 494.031(2), RSMo Supp. 1975, systematically excludes women from jury service and is therefore unconstitutional, citing Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). State v. Duren, No. 59914, 556 S.W.2d 11 (Mo.banc 1977), decided concurrently with the case at bar,' upheld the challenged constitutional section and its implementing statute which permit women the privilege of declining jury service and that decision is dispositive of this defendant’s sex-based challenge to the facial validity of the cited sections.

The remaining aspect of defendant’s contention concerns the results of the Jackson County jury selection process. In this regard defendant has failed to demonstrate that criminal venires in the county were not “representative of the community” and were “almost totally male” as those constitutional standards were described in Taylor. During the week of defendant’s trial, 350 persons were summoned as jurors in Jackson County and of that number 99 (28%) were women. Of the 154 who appeared, 23 (15%) were women. Defendant’s panel of 28 included 6 (21%) women and one sat as a juror. No statistical data pertaining to the percentage of women in the community population or any information showing gender distribution of venires for periods prior to or following the week of trial were offered. The proof does not support the contention of systematic sex-based exclusion and the first assignment of error is denied.

Defendant next contends the trial court erred admitting certain state’s exhibits which though requested prior to trial under Rule 25.32 had not been made available to defense counsel for inspection. The incident precipitating criminal charges against him occurred when defendant and his wife entered Macy’s department store in Kansas City on the evening of November 8, 1974. The store security manager observed them in the linen section putting double bed sheets and satin pillowcases into shopping bags and concealing the bags between display beds on the floor. Defendant and his wife left the linen department to visit the budget section of the store and at this point the manager, Mr. Wilk, called Mr. Taylor, a security officer, informed him of the incident and showed him the hidden bags of merchandise. Subsequently the couple returned, retrieved the bags and without paying, exited onto the parking lot where they were apprehended by Wilk and Taylor. The stolen property was delivered to the Kansas City Police Department where it was held until trial.

Soon after the information was filed defense counsel served a request for discovery under Rule 25.32, stating “The Defendant, . requests the following within 10 days and/or throughout the duration of this cause: . . . (6) Any . . . objects which the State intends to introduce into evidence at the hearing or trial or which were obtained from or belong to the Defendant”. The stolen articles were admitted in evidence over defendant’s objection and testimony as to value was adduced from Macy’s buyer who had purchased the items for the store. The wholesale value of each package of pillowcases was $4.75 or $47.50 for the lot, plus 20 packages of sheets at $7.50 wholesale, totaling $150.00 or a grand total of $197.50 for all items stolen. Defendant offered no evidence but contends the trial court erred admitting the exhibits because the state had failed to produce them for examination prior to trial, effectively denying him the opportunity to show the value of the stolen goods was less than $50.00, which could have defeated the felony charge and have avoided conviction under the Second Offender Act.

Rule 25.32(A)(6) provides that on written request the state shall disclose to defendant’s counsel “objects, which the state intends to introduce into evidence at hearing or trial or which were obtained from or belong to the defendant”. The state argues that because defendant knew the state held the stolen materials and because defendant had photocopied the state’s file, this sufficed to meet the disclosure requirements of the Rule. This narrow construction is in-consonant with Rule 25.32(C) which in particular situations requires the items be “made available to defense counsel” and Rule 25.36 which provides that “Unless otherwise ordered by the court, disclosure under Rules 25.32 through 25.35 shall be: . (B) By the party making disclosure notifying opposing counsel that the material and information to be disclosed may be inspected, obtained, tested, copied or photographed at a specified time and place and whether suitable facilities are available.” The court under Rule 25.40 may issue protective orders to control the manner, place and time for such procedure.

While defendant by virtue of his request was entitled to inspect the proposed evidence, during opening statement the prosecuting attorney explained the stolen merchandise had been in the control of the police department and he had no authority “to take them out” prior to trial. This appears counter to the requirement of Rule 25.32(C) that if the requested material is “in the possession or control of other governmental personnel, the state shall use diligence and make good faith efforts to cause such materials to be made available to the defense counsel . . . .” The state was under a continuing duty to make the materials available for defense counsel’s inspection. It strains credulity to believe the prosecutor could not have obtained the items from the police department prior to trial and yet with apparent ease produce them for presentation in evidence. However, it was defendant’s responsibility to call this failure to the court’s attention and request appropriate orders under Rule 25.45 for disclosure of the material, exclusion of the same from evidence, for continuance or other relief. Defendant served his request for discovery within a week following filing of the information. During the ensuing four months he pursued discovery photocopying pertinent portions of the state’s file and was aware the stolen merchandise had not been made available for inspection, yet he sought no orders requiring disclosure or other relief under Rule 25.45 nor for subpoenas duces tecum as provided by Rule 25.19. Neglecting these procedures, defendant now contends preparation of his defense was thwarted by the state’s noncompliance with the request for discovery.

While it seems the state’s action (or inaction) is violative of Rule 25.32, exclusion of the evidence not produced for inspection was a matter for the trial court’s discretion and defendant has shown no error in the exercise of that discretion, State v. Moten, 542 S.W.2d 317 (Mo.App.1976); State v. Johnson, 524 S.W.2d 97, 101 (Mo.banc 1975), or that the failure to produce resulted in fundamental unfairness or prejudice to the substantial rights of the defendant requiring reversal under Rule 84.-13(b). See United States v. Cole, 453 F.2d 902 (8th Cir.), cert. denied 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972); State v. Gibson, 502 S.W.2d 310 (Mo.1973); State v. Smith, 534 S.W.2d 604 (Mo.App.1967). The unrebutted testimony of two witnesses to the wrongful taking was coupled with the fact of defendant’s apprehension outside the store with the stolen property in his possession. Testimony of the items’ value came from Macy’s purchasing agent who bought the merchandise and personally knew its wholesale price. Defendant argues that if he had inspected the articles he might possibly have developed credible testimony that the 30 items (10 satin pillowcases at $4.75 per package and the 20 double bed sheets at $7.50 per package) were of a value less than $50.00 or approximately ¼ of the wholesale price. We are asked to regard the loss of this possibility as a basis for reversible error though defendant sat by during the four months prior to trial ignoring available procedures to force the desired inspection. Defendant appeared content to proceed with trial, object to the evidence when offered and if overruled, claim error in the event of an unfavorable verdict. Such oversight or trial strategy should not serve as a basis for reversal. We are also mindful as stated in State v. Degraffenreid, Mo., 477 S.W.2d 57, 65, “that error which in a close case might call for reversal may be disregarded as harmless when the evidence of guilt is strong.” Because the evidence of guilt was strong and the alleged violation in the discovery proceedings could have readily been corrected by timely action of defendant, we find nothing requiring reversal.

The judgment of the trial court is affirmed.

MORGAN, C. J., and HENLEY, FINCH and DONNELLY, JJ., concur.

SEILER, J., dissents in separate dissenting opinion filed.

BARDGETT, J., dissents and concurs in separate dissenting opinion of SEILER, J., except as to the female juror issue.

SEILER, Judge

(dissenting).

While I agree wholeheartedly with the principal opinion that the state should have made the stolen property available to defense counsel and that it strains credulity to believe the prosecution could not have obtained the items from the police department for defense counsel’s inspection prior to trial, I am unable to agree that the failure on the part of the state to comply with the discovery rules should be excused so readily. I fear the end result is that the prosecution is rewarded for its disregard of the discovery rules and a dangerous precedent is established whereby future prosecutors can with impunity avoid compliance with the discovery rules.

We are signalling prosecutors that even though defense counsel has made the necessary written request, the state need not comply unless the defendant makes additional requests for that for which he has already asked once and to which he is entitled without further request. We are also telling prosecutors that if defendant cannot show that the prosecutor’s recalcitrance resulted in “fundamental unfairness or prejudice” to the defendant, the prosecutor escapes scot free. When we consider that defendant is entitled to discovery without first having to show that there would be fundamental unfairness or prejudice unless the requested discovery is made, it seems inconsistent to require that kind of a showing when defendant is complaining about the state’s failure to comply with the discovery rules. The state ought to be the one to do the explaining. Additionally, it is most difficult, after verdict, to prove that the state’s failure to produce resulted in fundamental unfairness or prejudice. By this time, the jury has already spoken and who can say for sure what would have happened had discovery been made on schedule as called for and defendant been able to have used the information or material or what could have been developed therefrom before the jury?

If discovery in criminal cases is desirable and this court, after lengthy and painstaking consideration, has by the adoption of the criminal discovery rules decided that it is desirable, then we should vigorously insist upon discovery at the proper time, which is prior to trial, while the defendant is still presumed to be innocent, and when he is entitled to a decent opportunity to prepare. If we permit the prosecution to maneuver the case to the point where discovery is judged in the light of hindsight, after defendant has been convicted without the required discovery having been made, we will destroy pre-trial discovery and turn it into a game of how much discovery can the prosecutor safely evade, secure in the knowledge that if he can nevertheless obtain a conviction, his omissions will probably be overlooked.

The majority opinion says: “While it seems the state’s action (or inaction) is viola-tive of rule 25.32, exclusion of the evidence not produced for inspection was a matter for the trial court’s discretion and defendant has shown no error in the exercise of that discretion, State v. Moten, 542 S.W.2d 317 (Mo.App.1976); State v. Johnson, 524 S.W.2d 97, 101 (Mo.banc 1975) . .

I do not find Johnson or Moten to be supportive of the contention for which they are cited.

In Johnson, we reversed and remanded a conviction wherein the prosecution had introduced, “in the guise of impeachment testimony”, 524 S.W.2d at 101, a statement it had not disclosed during discovery. We specifically noted that the action of the trial court in permitting the introduction of this evidence “does not evidence a proper exercise of discretion” and hence was not subject to review only for abuse of discretion. We went on to decide the case on the application of “fundamental fairness”. Id. at 103. That same distinction applies here. It was fundamentally unfair to defendant to keep from him the items of merchandise in question until a point in the trial when it was too late for him to dispute the values placed thereon by the state.

In Moten, the court of appeals determined that “the appellant has not shown that the action on the part of the trial court was an abuse of discretion.” 542 S.W.2d at 321. The facts there were as follows: “[Djefense counsel objected on the grounds that the photographs had not been produced in response to his discovery request. The prosecutor was not certain that the photographs had been in his file when he exhibited them to appellant’s counsel, but he further stated that it was not his original intention to use the photographs and that he decided to do so as a result of the cross-examination of Mrs. Pennington on the lineup. The trial court overruled the objection, stating that the photographs were in the nature of rebuttal and their use produced no unfairness rising to constitutional proportions.” Id. at 320.

We are not dealing here with a case in which the proffered undisclosed evidence was used in rebuttal or impeachment only, or where it was the subject of facts which were “proved independently” of the disclosed evidence. State v. Dayton, 535 S.W.2d 469, 478 (Mo.App.1976). The value of the allegedly stolen merchandise was a principal element of the criminal charge. Whether prejudice results in such a case “depends upon the nature of the charge, the evidence presented by the State, and the role the undisclosed testimony would likely have played,” Id.

While exclusion of the evidence produced may have been a matter for the trial court’s discretion, I believe that a violation of rule 25.32 by the introduction of such evidence in the presentment of the state's case, where it “strains credulity to believe the prosecutor could not have obtained the items from the police department prior to trial and yet with apparent ease produce them for presentation in evidence,” should be deemed fundamentally unfair. We would then avoid what I fear is the unintended invitation to prosecutorial abuse which the majority opinion presents.

Nor do I believe we should take the position that because the state has a strong case, failure to disclose thereby becomes harmless. If that is to become the rule, then the state can safely ignore the discovery requests of the defendant any time it has a strong case. In such instances, the prosecutor should scrupulously abide by the rules. Otherwise, we will drift into the rationalization that since the defendant is obviously guilty, why bother with the niceties of compliance with rules and safeguards? Furthermore, how can we be certain the state has such a strong case? It is for the jury to decide which witness will be believed. The fact that to us the testimony of the Macy buyer seems unimpeachable and conclusive does not mean that the jury would not have believed some other qualified witness who, had he been given an opportunity to inspect the stolen merchandise, might have been convinced it was overpriced and testified that it was worth much less, perhaps under $50.00. Defendant’s claim of prejudice should not be defeated by our high opinion of the credibility of the state’s witness. This is for the jury. McQueen v. Swenson, 560 F.2d 959 (8th Cir.1977).

State v. Degraffenreid, 477 S.W.2d 57 (Mo.banc 1972), relied upon by the principal opinion, did not involve discovery matters and the statement quoted therefrom was dicta, as the case was a close one on the issue of guilt or innocence and the conviction was reversed and the cause remanded.

For these reasons, in addition to the reasons given in my dissent in State v. Duren, No. 59914, 556 S.W.2d 11 (Mo.1977), on certain Other points which also apply to this case, I respectfully dissent.

      . The questioned constitutional section and statute are in pertinent part: Mo.Const. Art. I, § 22(b) — “No citizen shall be disqualified from jury service because of sex, but the court shall excuse any woman who requests exemption therefrom before being sworn as a juror.” § 494.031, RSMo Supp.1975 — “The following persons shall, upon their timely application to the court, be excused from service as a juror, either grand or petit: ... (2) Any woman who requests exemption before being sworn as a juror; . . . .”


author: STEWART, Judge.

text:
    Rose SHACKMAN, Appellant, v. LINCOLN PROPERTY CO., etc., et al., Respondent.
    No. 37173.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 16, 1977.

      Samuel A. Goldblatt, Fox, Goldblatt & Singer, William R. Kirby, St. Louis, for appellant.
    Wilburn A. Duncan, Clayton, for respondent.
   STEWART, Judge.

Plaintiff appeals from an adverse jury verdict in this action for personal injuries resulting from a fall on defendant’s premises. Plaintiff’s contentions of error are confined to the contributory negligence instruction given by the court on behalf of defendant. We reverse and remand for a new trial.

We review the facts in the light most favorable to defendant, the prevailing party. Manley v. Horton, 414 S.W.2d 254 (Mo.1967).

Mrs. Shackman, plaintiff, was injured on the night of January 16, 1972. Plaintiff and her husband had visited plaintiff’s mother at the Charter Oak Apartment Complex in St. Louis County and were walking down a driveway toward their car when she fell.

The weather was bitter cold. There were patches of ice and snow on the streets but they did not hamper driving. There were also patches of ice on the parking areas and on the driveway at the apartment complex. When Mr. and Mrs. Shackman arrived at the apartment complex, Mr. Shackman drove up to the steps leading to his mother-in-law’s apartment and let plaintiff out of the car. He could not find a parking space on the complex so he drove across the street and parked.

It was dark upon their arrival and their departure. The parking lot and driveways are lighted with dusk to dawn lights and there were spotlights on the apartment buildings. The area was well lighted. There was sufficient light so that a person could see the ground. There were patches of ice on about one-third of the asphalt driveway. Mr. Shackman saw patches of ice with sand on them in the driveway. The defendant’s maintenance personnel had scattered salt and sand over the driveway.

Plaintiff was aware that there were patches of ice on the drive. When she left her mother’s apartment, she was holding on to her husband’s arm. They proceeded over the drive toward the street in the direction of their car. There is no sidewalk from the apartments to the street, persons on foot must use the driveway. The driveway declines as it approaches the street. There is a drop of about three feet in forty-five feet. When Mrs. Shackman got about one foot from the junction of the driveway with the street, she felt her foot slip, causing her to fall. She was not looking for anything as she walked along. She was not looking down before she fell. She testified as follows:

“Q. If looking could you have seen sand down there, Mrs. Shackman?
A. If I was looking I probably could have.
Q. If there was some sand there you could have seen it if you were looking down?
A. If I was looking down; yes sir.
Q. Was there anything to keep you from looking down?
A. No. I was looking ahead.”

Plaintiff contends that the contributory negligence instruction, Numbered 4 and designated as MAI 32.01 (Modified) was erroneous in many respects. MAI 32.01 is captioned “Contributory Negligence — Generally.” In reading MAI 32.01 it is clear that the committee was primarily concerned with motor vehicle cases. This was recognized in Helfrick v. Taylor, 440 S.W.2d 940 (Mo.1969), a landlord and tenant case, in which the court approved a contributory negligence instruction which closely followed MAI 28.01 now MAI 32.01, and which is similar to the instruction under consideration. We set out those portions of each of the three instructions material to our review for ready comparison:

MAI 32.01 Helfrick Shackman
“Your verdict must be for the defendant . if you believe: “Your verdict must be for the defendants if you believe: “Your verdict must be for the defendant . if you believe:
First, plaintiff either: failed to keep a careful lookout, or drove at an excessive speed, or First, plaintiff Patricia Helfrick, failed to keep a careful lookout; First, plaintiff failed to look and observe where she was walking and stepping, and
drove on the wrong side of the road; and
Second, plaintiff’s conduct, in any one or more of the respects submitted in Paragraph First, was negligent; and Second, plaintiff’s conduct, as submitted in paragraph First, was negligent; and Second, plaintiff was thereby negligent, and
Third, ...” Third, . Third, .

Plaintiff first argues that the instruction misstates the substantive law of the case citing Taylor v. Hitt, 342 S.W.2d 489 (Mo.App.1961), and Lewis v. Gershon, 335 S.W.2d 522 (Mo.App.1960). These cases merely point out that in a landlord and tenant case as distinguished from the business invitee case, the tenant, or those standing in his right, are not foreclosed from using the premises even though they have knowledge of the defect or dangerous condition. Knowledge of the defect does, however, bear upon the issue of contributory negligence. They must still “ . . . exercise due care in view of the hazard.” Taylor, 342 S.W.2d at 496. The instruction before us requires the jury find that plaintiff failed in some respect and that in so doing the plaintiff failed to exercise due care. In this respect, the instruction did not misstate the substantive law of the case.

Critical to our consideration is the question of whether the use of the words “look and observe” have placed upon plaintiff a greater duty than that required by law.

It is generally said that a person walking is “not required to look down at his feet or the pavement at every step or to survey the pavement with a ‘critical eye’ or walk with his eyes ‘glued upon’ the pavement.” Cun ningham v. Bellerive Hotel, Inc., 490 S.W.2d 104, 108[7] (Mo.1973). Instruction Number 4 not only requires that plaintiff “look” but imposes an additional duty to “observe”. One of the definitions given for the word observe is: “5. to see or sense esp. through directed careful analytic attention.” Webster’s Third New International Dictionary (1969). We find the requirement that plaintiff “look and observe” to be tantamount to a requirement that plaintiff survey the driveway with a “critical eye.” This is not the duty that the law imposes upon the plaintiff. In this respect the instruction is erroneous and requires reversal. Because this case is to be tried we shall also consider other questions that have been raised concerning this instruction.

We also critically observe that the phrase “walking and stepping” in the instruction is redundant and is a move toward the prolix which MAI seeks to avoid.

In Helfrick, a landlord and tenant case, the Supreme Court approved an instruction that permitted the jury to find that the failure of plaintiff to keep “a careful lookout” was negligent, as that term was defined in other instructions. The instruction in fact, followed the exact wording of the first submission in paragraph “First” in what is now MAI 32.01. The only modification is that it eliminated the next two alternative submissions of negligence.

The purpose of the Missouri Approved Jury Instructions was to simplify the instruction so that they could be “easily understood by the average juror.” The Supreme Court Committee on Jury Instructions sought to eliminate instructions that were prolix and served as written argument of the parties. Another objective of the Rules 70.01 and 70.02 is uniformity of instructions.

The instruction in Helfrick submitted plainly and simply the ultimate factual issues; it was approved by the Supreme Court and the instruction was available for use by the defendant. Improvements on instructions which have been approved are best left to the Supreme Court working with the Supreme Court Committee on Instructions.

Plaintiff contends that modifying paragraph Second to read: “[Pjlaintiff was thereby negligent” rather than, “[Plaintiff’s conduct as submitted in paragraph First, was negligent” was erroneous as a deviation from MAI 32.01. The Supreme Court has specifically ruled that this submission is proper in the case of a single act submission. Rickman v. Sauerwein, 470 S.W.2d 487, 490[4] (Mo.1971).

Plaintiff next attacks the instruction because it fails to require a finding that plaintiff had “[Ajctual or constructive knowledge that stepping on the sand would cause her to slip and that it was thereby dangerous to walk on.”

As was well stated in Gitterman v. Danella, 356 S.W.2d 52, 54[2] (Mo.1962):

“An essential element of contributory negligence is that the person charged acted or failed to act with knowledge and appreciation, actual or constructive, of the danger of injury which his conduct involved; and a corollary to that fundamental is that one’s knowledge of the general condition from which the danger arose does not necessarily constitute knowledge and appreciation of the danger.”

However, a finding that plaintiff knew or should have known and appreciated the danger is not required where plaintiff’s own testimony admits the fact. Weisman v. Herschend Enterprises, Inc., 509 S.W.2d 32, 37 (Mo.1974). The question presented is whether or not sand on a driveway which has a decline equal to 3 feet in 45 feet was such that plaintiff upon seeing the condition would have appreciated the danger inherent in the condition.

In this case plaintiff did not personally concede that she would have appreciated the dangerous condition, had she known of it. She did, however, introduce evidence which would tend to show that sand spread upon a driveway was a dangerous condition. The expert witness called by plaintiff testified that there were three hazardous conditions present and that “the most important of all was sand spread all around.” He also testified that “it was a very bad mistake to place sand on that surface because it presents a very slippery condition.” He further testified that “sand is a dangerous element to the human foot, to the feet.” Inasmuch as plaintiff conceded this element, it was unnecessary to include it in the contributory negligence instruction.

Plaintiff also argues that the evidence in the case did not warrant the giving of an instruction on contributory negligence. She again relies upon Lewis v. Gershon, 335 S.W.2d 522 and Taylor v. Hill, 342 S.W.2d 489. As stated above, these cases hold that plaintiff, in her status as a guest of a tenant was entitled to traverse the driveway even if she were aware of a dangerous condition provided she exercised due care in view of the hazard. Lewis merely states that general proposition and holds that plaintiff, in that case, was not contributorily negligent as a matter of law in using steps which she knew to be hazardous. In this case defendant does not contend that Mrs. Shackman was contributorily negligent as a matter of law in using the driveway. Plaintiff testified that she did not see what she stepped on, that if she had been looking she would have seen sand on the driveway. On the record before us, whether plaintiff exercised due care under the circumstances was for the jury. Helfrick, 440 S.W.2d at 945.

The cause is reversed and remanded for a new trial.

McMILLIAN, P. J., and RENDLEN, J., concur.

      . Supreme Court Committee on Jury Instructions, 1963 Report to Missouri Supreme Court 1, April 19, 1963, reprinted in Foreward to Missouri Approved Jury Instructions at XXIII (2d ed. 1969).

      . She testified that she knew she had slipped on sand because she felt it underfoot.


author: CLEMENS, Presiding Judge.

text:
    Helen B. SURBER, Appellant, v. Bruce R. SURBER, Respondent. Bruce R. SURBER, Appellant, v. Helen B. SURBER, Respondent.
    Nos. 37763, 37790.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 16, 1977.

      Shaw, Howlett & Schwartz, Joseph How-lett, Clayton, Gregory O’Shea, St. Louis, for Helen B. Surber.
    Cox, Moffitt & Cox, Dallas W. Cox, Jr., St. Louis, for Bruce R. Surber.
   CLEMENS, Presiding Judge.

Appellant-husband cross-appeals from the amount of monetary allowances granted to respondent-wife in their decree of marital dissolution. We affirm the judgment of the trial court for the reasons stated in the companion opinion, No. 37,763, handed down this date.

DOWD, and SMITH, JJ., concur.

CLEMENS, Presiding Judge.

Plaintiff-wife Helen B. Surber appeals from the decree dissolving her marriage with defendant-husband Bruce R. Surber and granting her monetary allowances. We affirm the decree and, further, grant defendant’s motion for damages for frivolous appeal.

Plaintiff filed for dissolution of her marriage to defendant. The parties were married in 1951 and had three children, two of them emancipated and one a 15-year-old child.

Plaintiff is unemployed and not actively seeking employment. In the past she had done factory work and recently substantial housework for herself and a neighbor. She testified the parties’ differences are irreconcilable and the marriage irretrievably broken. She prayed for and was granted a decree dissolving the marriage, awarding her custody of the minor child, child support, maintenance, costs and attorney’s fees. We first consider the monetary allowances.

Plaintiff has been receiving $25 per week for child support from defendant and $140.22 a month on the child’s behalf as a result of defendant’s participation in the social security program. She has also been receiving $140.22 monthly social security payments for herself.

Defendant had worked for 40 years but is now certified as totally and permanently disabled by the Social Security Administration. He receives benefits from social security and the American Can Company to-talling $1,122.50 per month. He has been contributing to the support of the minor child. Defendant asked for and was awarded his tools, coin collection, fishing equipment, rings, and other personal items, to which he has had no access since plaintiff changed the locks on the door of the family home when he was hospitalized for a heart attack. Defendant also has had no access to money in the parties’ joint savings account, which plaintiff had withdrawn just before she filed for dissolution. Defendant prayed for his “fair share” of approximately $20,000 that had been in the joint account.

The trial court granted the dissolution, awarding plaintiff custody of the minor child, and substantially the monetary awards she sought: $25 a week child support, $57 a week maintenance, $750 for attorney’s fees and court costs. The court set aside to plaintiff $3,500 of the savings account as her separate non-marital property. Plaintiff was also awarded the family home and furniture, the 1972 Chevrolet automobile, the balance of the savings account after deducting a specified sum awarded to defendant, her checking account and her personal clothing and effects.

Plaintiff filed an appeal from “the judgment dissolving the marriage” and monetary allowances, but in her brief she does not challenge the trial court’s order dissolving the marriage. She contends, abstractly, that the evidence supported larger monetary awards as to separate property, marital property and maintenance.

We have examined the record and find it fails to support plaintiff’s contentions of inadequate awards. Since an extended opinion herein would have no prece-dential value we apply the standards of review declared in Murphy v. Carron, 536 S.W.2d 30 [1-3] (Mo.1976) and affirm the judgment as to the challenged monetary awards. Rule 84.16(b).

We turn now to defendant’s motion for damages for frivolous appeal from that part of the decree dissolving the marriage. He contends her appellate action has forestalled the reversion to him of monthly social security benefits which are still being paid to plaintiff. These payments would have been diverted to defendant on December 31,1975 but for plaintiff’s appeal from that part of the decree dissolving the marriage. And plaintiff knew it. At trial she was cross examined: “Q. Now, what will happen in the event that the Court would see fit to grant this particular decree of dissolution so far as social security on your behalf is concerned? A. It will stop.”

As noted, plaintiff pleaded and testified that her marriage to defendant was irretrievably broken and the trial court so found. Despite this, and with knowledge that dissolution would stop the social security payments to her from her husband’s account, through her counsel plaintiff filed a notice of appeal, not only as to the monetary allowances, but also from “the judgment dissolving the marriage.” She took no action, however, on that phase of her appeal. Her appellate brief relates only to monetary allowances, and does not challenge dissolution of the marriage. The effect of filing the notice of appeal “from the judgment dissolving the marriage” was to delay the finality of that part of the decree and thereby wrongfully perpetuate the monthly social security payments she is still receiving from defendant’s account.

Defendant asks us to redress his monetary loss, occasioned by plaintiff by her appeal having wrongfully diverted and continuing to receive monthly social security payments from his account since the date of dissolution. To do so, we remand the case to the trial court to determine the total amount thereof and to charge that amount against plaintiff and to give defendant credit therefor retroactively, or prospectively if necessary, against plaintiff’s monetary allowances, other than those for child support.

We now consider defendant’s motion for damages, taken with the case under Rule 84.19, declaring: “If an appellate court shall determine that an appeal is frivolous it may award damages to the respondent as the court shall deem just and proper.” A frivolous appeal is “one presenting no justiciable question and so readily recognizable as devoid of merit on face of record that there is little prospect that it can ever succeed.” State ex rel. State Highway Commission v. Sheets, 483 S.W.2d 783[4, 5] (Mo.App.1972). Here, we go beyond the quoted words “little prospect that it can ever succeed.” Since plaintiff got the dissolution decree she had prayed for and utterly avoided that point on appeal, we say there was never any prospect her appeal from the dissolution portion of the decree could succeed; it was patently frivolous.

In considering the appropriate amount of damages to be assessed against plaintiff for frivolous appeal, we consider the dilatory tactics in prosecuting the appeal. By admittedly failing to timely file a copy of her letter ordering her transcript on appeal as required by Rule 81.19, plaintiff was enabled to delay the filing thereof in this court until August 16,1976, instead of April 8, 1976, as required by Rule 81.18. Plaintiff’s appellate brief was due to be filed on October 15, 1976, but on counsel’s motions for extension of time to file her brief because of other law business she obtained four extensions and her brief was not filed until January 3, 1977, eighty days after it was due. On February 8, 1977 the court invited counsel to submit the case on written briefs. Plaintiff’s counsel failed to respond and the case was set for oral argument on April 4, 1977. Plaintiff’s counsel failed to appear.

We conclude plaintiff’s appeal as to dissolution was frivolous and her lackadaisical prosecution thereof was vexatious. In sum, plaintiff’s appeal from the decree of dissolution was an abuse of judicial process. The effects thereof were to mulct defendant of substantial monthly income, to cause his counsel to expend considerable time and expense in attempting to thwart plaintiff’s dilatory tactics, and to encumber this court and its staff with deciding a frivolous appeal.

In determining appropriate damages to defendant we consider the trial court’s allowance against defendant of $750.00 for her attorney’s fee. We consider also the unwarranted burden plaintiff has cast upon defendant and his counsel. We determine a total of $1,500 to be proper damages to defendant and order that sum to be charged, retroactively or prospectively, if necessary, against plaintiff’s monetary allowances, other than those for child support. Costs of appeal are to be taxed against plaintiff.

The decree is affirmed and the cause remanded for further proceedings to amend the decree consistent with this opinion.

DOWD, and SMITH, JJ., concur.

      . Section 452.360, RSMo. 1973 Supp.: “1. A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal. An appeal from a decree of dissolution that does not challenge the finding that the marriage is irretrievably broken down does not delay the finality of that provision of the decree.”


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerry PITCHFORD, Defendant-Appellant.

      No. 37942.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 23, 1977.

      Robert C. Babione, Public Defender, Joseph W. Warzycki, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Roberts, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Neis C. Moss, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Defendant Jerry Pitchford was found guilty by a jury of assault with intent to ravish with malice, § 559.180. He was tried under the Second Offender Act, § 556.280, and sentenced by the court to ten years imprisonment in the Department of Corrections. He raises two points on appeal: 1) that the trial court erred in instructing upon the lesser included offense of common assault without including the range of punishment in violation of MAI-CR 2.04; and 2) the trial court erred in refusing the defense challenge for cause of a prospective juror.

Only a brief recitation of the facts is necessary to understand the points on appeal. In order to convict, the jury must have believed the testimony of Shirley Duff, age 18, that on May 10, 1974 defendant entered her home after knocking on the door and being permitted to enter by her 5-year old nephew. Defendant entered her room and told her to take off her clothes or he would kill her, began unzipping his trousers, and struck her jaw with a gun when she refused to remove her clothes. He ran out of the apartment after there was a loud banging noise on the door.

Miss Duff went to the hospital that afternoon and was treated for a swollen jaw. Later that day she went to the police station and identified the picture of defendant’s fraternal twin, Perry Pitchford, as her assailant.

About 3 weeks later, Miss Duff was standing outside a cleaners on 20th Street in the City of St. Louis. Her friend, Diane Thompson, was inside the cleaners. Miss Duff saw defendant walking down 20th Street. She recognized him because he walked with a limp and had a burn mark on his neck and also because he was wearing distinctive shoes. She went into the cleaners to tell Miss Thompson that the man walking down 20th Street was the man who had attacked her. Miss Thompson’s friend, “Billy B.”, was also in the cleaners and he offered to follow defendant in his car. All three of them got in “Billy B’s” ear and followed defendant until they were at 14th and Market Streets, across from Kiel Auditorium where they saw a police officer. They flagged the officer down, explained the situation, and the officer took defendant into custody.

Diane Thompson identified defendant as someone she’d seen on the day Miss Duff was assaulted. Miss Thompson saw defendant on that day on the first floor area of the apartment project “playing with himself.”

Defendant’s alibi witnesses were his mother, his grandmother, and his mother’s common law husband. They testified that defendant was playing cards with his mother and her common law husband during the time the assault on Miss Duff occurred.

At the close of all the evidence, defendant moved for judgment of acquittal, which was denied. The court gave instructions for assault with intent to rape with malice aforethought, and also for the lesser included offenses of assault with intent to rape without malice aforethought, and common assault. All of these instructions consisted of the elements of the offense being instructed upon. None of these instructions included the range of punishment for the offense being instructed upon. The jury returned a verdict of guilty of assault with intent to ravish with malice, the highest degree of the offense.

Defendant claims in his first point that we should reverse and remand because the court erroneously failed to include the range of punishment for common assault when instructing upon that lesser included offense.

As noted, none of the instructions given for the three degrees of assault included a range of punishment. Defendant relies on MAI-CR 2.04, Notes on Use 3(d). In general, special Note 3 describes certain situations where, even though defendant is being tried under the Second Offender Act, the court is required to submit punishment to the jury, but the duty to fix punishment no matter what penalty the jury imposes is still reserved to the court. One such situation is set out in Note 3(d), where, as in the case at bar, the court submits to the jury both a felony and a misdemeanor. In such a situation the court should submit the range of punishments for both the felony and the misdemeanor. If the jury convicts defendant of a felony, the court will assess the punishment under the Second Offender Act and the jury’s assessment will be considered as surplusage or merely advisory. If the jury convicts of the misdemeanor, its assessment of the punishment will stand.

Although the trial court erred in failing to instruct on the range of punishment for common assault, errors due to faulty instructions will cause reversal only when the defendant has been prejudiced thereby. State v. Carter, 541 S.W.2d 692, 695[8] (Mo.App.1976); State v. Brewer, 540 S.W.2d 229, 231[5] (Mo.App.1976).

Defendant in his brief fails to explain how he was prejudiced by the court’s omitting the range of punishment for the offense of common assault for which he was not convicted. Here defendant was convicted of the highest degree of assault, assault with intent to ravish with malice aforethought. The jury failed to find the defendant guilty of common assault or of assault with intent to ravish without malice aforethought. Thus, it would have been unnecessary for the jury to consider the range of punishment for common assault which is two degrees below the offense for which he was found guilty. A recent case precisely on point reaches the same conclusion. In State v. Morse, 514 S.W.2d 375 at 377[4] (Mo.App.1974) it was held that failure to instruct the jury as to the range of punishment for the lesser included misdemeanor was not reversible error where the jury did not convict defendant of the misdemeanor. While Morse was tried before the effective date of MAI-CR, we believe the reasoning of Morse is applicable here.

Accordingly, we believe the failure to instruct on the range of punishment for common assault was harmless and was cured by the jury verdict which found defendant guilty of assault with intent to ravish with malice aforethought. See State v. Cook, 428 S.W.2d 728, 732[3] (Mo.1968). State v. Tettamble, 394 S.W.2d 375 (Mo.1965) [17, 18] vacated and remanded on other grounds Tettamble v. Missouri, 386 U.S. 265, 87 S.Ct. 1034, 18 L.Ed.2d 42 (1966) readopted 431 S.W.2d 441 (Mo.1968).

Appellant’s second point is that the trial court erred in refusing the defense challenge for cause of venireman, Virgie A. Ray. During voir dire, the assistant public defense attorney asked, “May I just see by a show of hands how many of you know a police officer, have a member of your family in law enforcement work?”

“MRS. RAY: I have relatives that are police, and quite a few friends.
“MR. WARZYCKI: And those are St. Louis Police officers?
“MRS. RAY: Yes.
“MR. WARZYCKI: Let me ask you this: Prom the fact that you have relatives on the police force, would you consider yourself to know more about what a police officer does in the performance of his duties than, say, a person who would not have relatives on the police force?
“MRS. RAY: I wouldn’t say so much that, but I have heard a lot of discussion about what goes on.
“MR. WARZYCKI: Okay. Could you give a police officer who would come in here and testify the same measure of credibility — in other words, would you measure what he says by the same standard as you would a civilian witness who would come in here and testify, or would you tend to give a police officer more credibility?
“MRS. RAY: Probably more.
“MR. WARZYCKI: Probably more.”

The assistant public defender later moved to strike Mrs. Ray for cause.

“MR. WARZYCKI: Your Honor, at this time I would move to strike for cause Juror No. 335, Virgie A. Ray, for the reason that she stated that she would tend to believe police officers more than she would—
“MR. MOSS: She said she might.
“THE COURT: Mrs. Ray, step up.
“MR. MOSS: Mrs. Ray, Mr. Warzycki asked you a question concerning police officers and you indicated that you knew a number of them.
“MRS. RAY: Yes.
“MR. MOSS: Okay. The law requires that you treat police officers by the same standards, judge their testimony by the same standards, not give them any greater benefit nor take anything away from them.
“MRS. RAY: True.
“MR. MOSS: Okay. Do you feel you can do that or not?
“MRS. RAY: That’s not what he asked me.
“MR. MOSS: Do you feel that you could judge their testimony by the same standard?
“MRS. RAY: I think I can.
“MR. MOSS: Okay.
“THE COURT: Mr. Warzycki, you have any additional questions?
“MR. WARZYCKI: No, your Honor.
“THE COURT: Your objection overruled.”

A defendant is entitled to a full panel of qualified jurors before he makes peremptory challenges. State v. Lovell, 506 S.W.2d 441, 443[1] (Mo. banc 1974); State v. Richards, 536 S.W.2d 779, 785[3] (Mo.App.1976).

Section 546.100-.150 RSMo lists narrow grounds for disqualifying jurors. These are not exclusive. To be a competent juror it is necessary to be disinterested and free from bias and prejudice. State v. Tippett, 538 S.W.2d 756, 758 (Mo.App.1976). Denial of a defendant’s legitimate request for exclusion of a challenged juror is reversible error. State v. McGrew, 534 S.W.2d 549, 550[1] (Mo.App.1976); State v. Wraggs, 512 S.W.2d 257, 259[1] (Mo.App.1974). However, it is within the discretion of the trial court to determine the propriety of sustaining a challenge for cause, State v. Ford, 495 S.W.2d 408, 415-416 (Mo. banc 1973) and his decision will not be reversed unless there is clear abuse of discretion. State v. Land, 478 S.W.2d 290, 292[1] (Mo.1972); State v. McGrew, supra at 551[3]. All doubts should be resolved in favor of the trial court’s ruling, since he has the advantage of observing the demeanor of the venireman. State v. Harris, 425 S.W.2d 148, 155[8] (Mo.1968); State v. Wraggs, supra, 512 S.W.2d at 259[4].

Defendant claims that his challenge for cause of Virgie Ray was erroneously denied because she “indicated that she would probably give a police officer’s testimony greater credibility than a civilian witness.” Defendant argues that the defense was then forced to use a peremptory challenge to remove her from the jury.

We do not believe that juror Ray demonstrated such a bias in favor of police testimony that would disqualify her from sitting on the jury. Although she initially said that she would give “probably more” weight to police testimony, once she was instructed that the law required her to judge officers by the same standard as civilians, she acknowledged that this was “true.” She stated “That’s not what he asked me,” indicating that if she had been instructed this way originally, she would not have said that she would “probably” give an officer’s testimony more credibility. And finally when asked if she could judge police testimony by this standard, she replied, “I think I can.”

This case is similar to the facts in State v. Wraggs, 512 S.W.2d 257 (Mo.App.1974) where the prospective juror initially stated that she would “naturally” give greater weight to police testimony. The trial court’s refusal to dismiss her was upheld on appeal due to her subsequent responses where she stated she would evaluate all witnesses by the same standards. In Wraggs, the prospective juror’s deceased husband had been a police officer for 22 years, and she herself had formerly been employed by the Police Department for 6 years. The venireman was found to be a qualified juror.

It is of little consequence that Mrs. Ray responded to the final question by saying, “I think I can.” (Emphasis added). This does not necessarily indicate that she was equivocating.

In State v. Webster, 539 S.W.2d 15, 17[1] (Mo.App.1976) the venireman answered “I don’t believe so” when asked if his friendship with the prosecutor would cause him to be more sympathetic to the State’s case. The court stated, “On this cold record there is no way for the court to determine if the answer meant that [the venireman] had doubt that he could render a fair and impartial verdict . . . , or whether it was his personal manner of speaking and indicated a positive belief that he could render a fair verdict.”

Accordingly, in view of the trial judge’s better opportunity to judge the qualification of a venireman based on his personal observations, we do not believe that Mrs. Ray demonstrated that she was so biased that the denial of the challenge for cause was an abuse of discretion.

The judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: REINHARD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael Wayne PROBST, Defendant-Appellant.
    No. 37662.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 23, 1977.

      Buerkle, Buerkle & Lowes, Jackson, Jim Gibson, Cape Girardeau, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Frank Murphy, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   REINHARD, Judge.

The defendant takes this appeal from a conviction of the offense of injuring a dwelling house. § 560.395, RSMo.1969. The jury assessed his punishment at six months in jail.

Defendant orally leased the house on a month-to-month basis and paid rent of fifty dollars per month. He made his last rent payment in November, 1974. In the months which followed, the defendant continued to occupy the house, and, after making several unavailing demands for past-due rent, the owner brought an action in the magistrate court for possession and past-due rent. Judgment was rendered on March 10, 1975, and the defendant vacated the premises on March 16 after being notified of the judgment. A subsequent inspection of the house revealed the storm door had been forcefully removed, windows had been broken, the walls and draperies had been spray painted, ketchup or tomato juice had been splattered on the floor and walls, and holes had been punched in one wall of the house.

The information alleges that the offense was committed on or about March 15, 1975. In his appeal, the defendant contends that as a tenant he had an interest in the property and could not be prosecuted under § 560.395. It is true that a lease conveys an interest in property, Sharp v. W. & W. Trucking Co., 421 S.W.2d 213, 218 (Mo. banc 1967), and that the defendant occupied the house as a tenant from month to month, Davis v. Gerson, 219 S.W.2d 748 (Mo.App.1949). Moreover, the defendant’s non-payment of rent alone did not terminate the tenancy. The dispossession order of the magistrate court, however, effected a forfeiture of the leasehold, Carbonetti v. Elms, 261 S.W. 748, 751 (Mo.App.1924), dissolved the relation of landlord and tenant, and terminated the tenancy. Tarlotting v. Bokern, 95 Mo. 541, 8 S.W. 547 (1888).

Based on the evidence, and considering in particular the nature of the property damage, the jury could reasonably find that the defendant committed the offense after March 10 and prior to vacating the premises, at a time when he no longer held an interest in the property.

The defendant also argues that the court erred in admitting evidence of damage to the interior of the house. The defendant was charged and convicted of willfully and maliciously injuring a dwelling house by breaking a window and by forcefully removing a storm door attached to the front door of the dwelling. As a rule, evidence of similar acts or other offenses is not admissible unless such evidence has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. Such evidence is competent to prove the specific crime charged when it tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) common scheme or plan, or (5) identity. State v. Reese, 364 Mo. 1221, 274 S.W .2d 304, 307 (Mo. banc 1954). In that malice is an element of this offense, the evidence of damage to the interior of the house was relevant and admissible to show defendant’s malicious intent to injure the door and windows of the house.

The judgment of the trial court is affirmed.

McMILLIAN, P. J., and STEWART, J., concur.

      . One of the requirements of the statute is that the defendant have no interest in the property. State v. Crenshaw, 41 Mo.App. 24 (1890).

      . § 560.395 makes a misdemeanor the willful and malicious breaking, destruction or injury of “the door or window of any dwelling house, shop, store or other house or building, *

      . The court sustained a motion to strike from the original information allegations of damage to the interior of the house.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard Glenn PRUITT, Defendant-Appellant.
    No. 37837.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 23, 1977.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles D. Sindel, Asst. Circuit Atty., St. Louis, for defendant-appellant.
    Schainker & Stern, Howard Schainker, Clayton, for plaintiff-respondent.
   DOWD, Judge.

Richard Glenn Pruitt appeals from his conviction for the crime of carrying a concealed weapon. § 564.610 RSMo 1969.

At appellant’s trial, Officer Mansell testified for the state. Officer Mansell testified that he initially stopped the truck driven by appellant after observing the truck run a red light. As he pursued the truck, Officer Mansell observed the two occupants of the truck bending over and slumping in the truck before the vehicle stopped. After the truck stopped, Officer Mansell left his patrol car, walked to the truck, and informed the occupants the reason they had been stopped. As he looked inside the truck, Officer Mansell could see 2 “ski masks”, 2 pairs of rubber gloves, and an unspent shotgun shell on the front seat of the truck. Officer Mansell did not arrest the occupants of the truck but directed the two men to sit in his patrol car. After other police officers arrived, Officer Mansell looked under the front seat of the truck and found a 12-gauge shotgun loaded with one unspent shell.

Mr. Burkett, the owner of the truck, testified for appellant and stated that he had lent appellant his truck and that the shotgun was his. He testified that the shotgun was under the seat of the truck when he lent the truck to appellant but that the gun was not loaded at that time. He testified that the “ski masks” in the truck were his, but the rubber gloves and shotgun shells did not belong to him.

Appellant first contends that the shotgun, 2 “ski masks”, 2 pairs of rubber gloves, and 2 unspent shotgun shells (the shotgun shell found on the seat of the truck and the shell found in the shotgun) were obtained as a result of an illegal search and seizure and that the trial court erred in overruling appellant’s motion to suppress such evidence.

Three requirements must be met in order to preserve appellant’s contention for appellate review. The defendant must object to the admission of the evidence in a motion to suppress, must keep the issue alive by a timely objection to the introduction of the evidence at trial, and preserve the error in his motion for a new trial. State v. Taylor, 538 S.W.2d 761, 764[1] (Mo.App.1976); State v. Yowell, 513 S.W.2d 397, 402[1, 2] (Mo. banc 1974). At trial, appellant failed to object to the introduction of the shotgun on the ground that it had been illegally seized, and appellant’s contention in this regard is not preserved.

Although preserved, appellant’s contention in regard to the “ski masks”, rubber gloves, and shotgun shells is without merit. The 2 “ski masks”, 2 pairs of rubber gloves, and one shotgun shell found on the seat of the vehicle driven by appellant were not obtained as the result of an illegal search and seizure because these items were properly seized under the “plain view doctrine.” State v. Achter, 512 S.W.2d 894 (Mo.App.1974). The shotgun shell seized with the shotgun found under the seat of the truck was the product of a search made with probable cause. The discovery of bullets in the possession of the defendant together with the defendant’s suspicious movements in trying to conceal something under the seat of an automobile supply probable cause to search the vehicle for weapons. State v. Cromwell, 509 S.W.2d 144, 146 — 47[5] (Mo.App.1974); see State v. Whitnah, 493 S.W.2d 32, 35[1] (Mo.App.1973). Here, Officer Mansell had observed the occupants of the truck bending over and slumping before the truck stopped and had seen a shotgun shell on the seat of the car. Appellant’s motion to suppress evidence was properly overruled.

Appellant’s second contention is the trial court erred in refusing appellant’s request for a mistrial because the jury verdict was not responsive to the information or the evidence. Appellant’s contention is based upon the fact that, through a clerical error, appellant’s given name was noted as “Robert Glenn” rather than “Richard Glenn” on the verdict form. A verdict is not to be tested by technical rules of construction. State v. Shumate, 516 S.W.2d 297, 302[13] (Mo.App.1974). The verdict is sufficient if it authorizes entry of such a judgment as to bar further prosecution for the same offense. State v. Shumate, supra at 303[18]; State v. Lewis, 526 S.W.2d 49, 54[7] (Mo.App.1975). In the instant case, it is clear that the jury intended to render its verdict against the appellant, despite the misnomer in the caption of the verdict form. There has been no allegation that appellant was not the person named in the information or present before the jury at trial. Appellant was not prejudiced by the mistake in the verdict form. See State v. Fennewald, 339 S.W.2d 769, 774[5] (Mo.1960). Appellant’s point is without merit. See State v. Puchbauer, 299 S.W. 821, 824[13] (Mo.App.1927).

Appellant’s third contention is the trial court erred in admitting into evidence the “ski masks”, rubber gloves, and shotgun shells (found on the seat of the truck and in the shotgun) because this evidence was “irrelevant, immaterial, prejudicial, inflammatory and allowed the jury to improperly speculate or infer that said items were instruments of uncharged criminal acts.” We disagree.

The demonstrative evidence of which appellant complains was relevant upon the issue of intent. One necessary element of the crime of carrying a concealed weapon is that the accused intentionally carry the weapon concealed on or about his person so as to not be readily discernible. State v. Jordan, 495 S.W.2d 717, 720[5] (Mo.App.1973). Although the requisite intent may be inferred from the act of carrying the weapon, State v. Jordan, supra at 720[7], the state is not precluded from presenting other probative evidence of intent. In the instant case, appellant’s defense was that he did not know the shotgun was in the truck, that he lacked the requisite intent for the crime. Introduction of the 2 masks, 2 pairs of gloves, and shotgun shell found on the seat of the vehicle is circumstantial evidence that the 2 people in the truck knew of the presence of the shotgun under the seat of the vehicle. We believe that the jury could correlate the 2 pairs of gloves and 2 masks found in the presence of the 2 occupants of the truck with the shotgun shell found on the seat of the truck to infer that the two occupants knew of the presence of the loaded shotgun.

In addition, we do not believe that any prejudicial or inflammatory impact of this evidence outweighed its probative value. Although introduction of this evidence would allow the jury to draw an inference that appellant had engaged in uncharged criminal acts, evidence of other crimes is admissible to prove appellant’s intent pertaining to the crime charged. State v. Cole, 527 S.W.2d 646, 650[3, 4] (Mo.App.1976); State v. Whitley, 512 S.W.2d 840, 842[3] (Mo.App.1974). If the jury believed that the gloves, masks, and shotgun shells were the implements of uncharged criminal acts, this inference could be considered by the jury to prove that appellant intended to carry and conceal another “implement” of the uncharged crime, the shotgun.

Appellant’s final contention is the trial court committed “plain error” in allowing the prosecutor to comment upon the ski masks, gloves, and shotgun shells in closing argument to the jury. Appellant argues that the prosecutor’s remarks were prejudicial and inflammatory and were made to create an inference that appellant had engaged in criminal acts beyond the scope of the trial.

We do not agree that the trial court committed “plain error” in permitting the prosecutor to refer to the “ski masks”, gloves, and shotgun shells. The prosecutor’s argument did not refer to uncharged criminal acts. The prosecutor’s argument merely referred to evidence properly before the jury in order to argue that the two people in the truck knew of the presence of the shotgun. It is not “plain error” for the prosecutor to make reference to evidence before the jury. State v. Lee, 521 S.W.2d 180, 182[2] (Mo.App.1975).

Finding no error, the judgment is affirmed,

CLEMENS, P. J., and SMITH, J., concur,

      . Evidence is relevant if it tends to prove or disprove a fact in issue or to corroborate other evidence which is relevant and which bears upon a principal issue. State v. Bolden, 525 S.W.2d 625, 633[11] (Mo.App.1975). If the relevancy of the evidence is questionable, the evidence should be presented to the trier of fact for evaluation. State v. Sanderson, 528 S.W.2d 527, 531 [7, 8] (Mo.App.1975).

      . Appellant complains of two separate references to the masks, gloves, and shotgun shells in the prosecutor’s arguments to the jury. The first reference is as follows:
      “[Prosecutor]: . . . How can we show intent? How can we show what is in the defendant’s mind? There is no way we can actually get into his mind and find out what he was thinking at the time. All we can do is look at the circumstances and the fact involved in a particular case, and what are the facts in this case?
      Two pairs of gloves laying on the front seat, a shotgun shell on the front seat, two ski masks, both laying on the front seat, two people in the automobile, two pairs of gloves, two people, two masks.
      * * ⅜ * * *
      We can’t go into that man’s mind to see that man’s intent, but you can draw on your own experience, ladies and gentlemen, and in so doing it is reasonable to conclude that he knew about this shotgun underneath the seat.”
      The second reference is as follows:
      “[Prosecutor]: Mr. Schainker [defense counsel] used the words ‘common sense.’ Let’s apply common sense. Let’s assume for the moment that Mr. Burkett, when he testified, told you the truth . . ., and he never, never carried this gun loaded in his car. And he said when he loaned that truck that gun was not loaded .
      What do we have? One shell on the front seat. One shell laying on the front seat, and we have one shell . . . in . . . this 12-gauge shotgun.
      How did this shell get in there?
      * * * * * *
      Mr. Schainker would ask you to believe— now it’s loaded. — he [Burkett] doesn't know anything about the two pairs of gloves. Let’s couple that with the fact that there are two pairs of gloves in the car. Let’s couple that — we are using common sense — two ski masks in the car, two people in the car, ski masks, — ski hats, if you will . . . . It doesn’t make any difference what you call them. I don’t have to spell this out, ladies and gentlemen. All the evidence that you need is right here.”