author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. William Edward JOHNSON, Appellant.
    No. KCD 28470.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      Kenneth K. Simon, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The defendant was charged by indictment in three counts with the crimes of rape, crime against nature and kidnapping. The motion of defendant for judgment of acquittal at the close of the evidence for the State was sustained as to Count I for rape. The jury found him guilty on Count II of the crime against nature [§ 563.230, RSMo 1969] and on Count III for kidnapping [§ 559.240, RSMo 1969] and he was sentenced to consecutive terms of one hundred and fifty years and ten years for the respective offenses.

The appeal contends that Count III for kidnapping was multiplicitous of the crime against nature charged by Count II in that the evidence of the detention and confinement necessary to convict for kidnapping was merely incidental to the perpetration of the crime against nature and thus was insufficient to prove the separate crime of kidnapping. The appeal also contends error in the failure to grant defendant a full hearing on his motion to suppress identification.

There was evidence that the late afternoon of June 10, 1975, three children — Patricia [nine years of age], her brother Robert [eight] and their friend Stephanie [eleven] waited at a bus stop. A man in a green Cadillac, identified as the defendant, accosted them and offered money to help find his little sister. He suggested that they separate for this purpose, which they did. When she was alone, the defendant induced Patricia into his car with the promise of money, but since he had no change it would be necessary to drive to the store for that purpose. He cautioned her not to tell about the money because that would cause him to go to jail. They drove along and passed by her brother Robert near a store, but he did not stop the car as she had expected; instead the defendant drove the car down an alley. There the defendant threatened to kill her because he believed she would tell; she denied that, and commenced to cry.

Her brother Robert and Stephanie had both seen Patricia in the green Cadillac with the defendant as they came by. Then, when the car came to rest in the alley, Willie Pleasure, who worked in a neighborhood store and knew Patricia and her family, drove up beside the Cadillac to inform the defendant his car was wrongly directed on that one-way street and would probably be noticed by the police. He then saw Patricia in the car. They did not speak, but she appeared to be frightened. The defendant resumed the drive and turned down another alley where the car ran out of gas. The defendant continued to threaten her during this time.

It had become, dark by then and the defendant ordered her to remove her underpants and to flex. He then proceeded to penetrate her mouth with his genital, repeated that perversion, and then penetrated her anus. He attempted to enter her vagina but did not succeed. The defendant then fell asleep from the effects of a bottle of liquor he had consumed. Patricia then attempted to open the door to escape, but she thought he heard her, so she shut the door again in fear. When it became morning he repeated the anal perversion, and then let her out of the car. It was then about six in the morning.

She returned home frightened and nervous and complained of anal pains to the mother. After examination at the hospital, she was interviewed by the police and led them to the vicinity of the assault and detention, where the green Cadillac was found. That vehicle was found to be registered to the defendant. Certain items of evidence described by Patricia, including a whiskey bottle, were also found in the automobile.

An officer displayed a series of photographs, including one of the defendant, to the three children in turn and out of the presence of the others. It developed on cross-examination that two of the photographs contained notations on the rear— one of them, the legend “William R. Johnson, Rape”. The defendant then for the first time offered a motion to suppress the identification on the ground that the display of photographs was suggestive, and the court allowed a hearing on the issue. In the course of the evidence the officer who arranged the view of photographs testified that he could not recall whether the notations then present were also present when shown earlier, but observed that the array was placed on a table face-up so that the backs were not visible to the children. The defendant requested opportunity to interrogate the three children on this issue, but the court refused because of concern for the infant witnesses.

At the resumption of the trial Stephanie positively identified the defendant as the man who had talked to them and whom she had seen in the green Cadillac with Patricia. She had previously identified the defendant from the array of photographs. Although she examined front and rear of the pictures, she did not remember whether there was any writing on the back side of the representation of the defendant. The boy Robert also positively identified the defendant at the trial. He had also been shown the photographs and picked the defendant from among them, but did not look at the reverse sides. Patricia firmly identified the defendant as the man who lured her into the car and assaulted her. Willie Pleasure also identified the defendant in-court as the man he had seen with Patricia in the Cadillac. He had earlier picked the defendant from some photographs displayed to him at the police station.

The medical examination of Patricia indicated irritation and fissure of the rectum but no damage to the vagina. Seminal and fecal material were found on a piece of cardboard which defendant had placed between the child and the ear seat to prevent soilage of the interior. A latent fingerprint taken from a vodka bottle found in the car was identified as that of the defendant.

The defendant did not testify but offered proof of alibi. At the conclusion of the evidence, judgment of acquittal on Count I for rape was entered and the remaining counts for crime against nature and kidnapping were submitted to the jury.

The first point made contends that the evidence shows nothing more than a detention and confinement of the child Patricia incidental to the crime against nature but no proof of a separate kidnapping offense. The argument goes further: The act of kidnapping was only the means by which the criminal purpose of the sexual assault was accomplished and to punish for the kidnapping — which, in the context of the transaction was only an incident of the assault — put the defendant twice in jeopardy for the same offense.

There can be no doubt that under our decisions where the same act constitutes separate offenses not included within the other, the constitution does not preclude conviction for each of them. State v. Moore, 326 Mo. 1199, 33 S.W.2d 905, 907[4] (1930). The double jeopardy doctrine is directed to the identity of the offense, and not to the act. It forbids the state from piecemeal prosecution of a single offense. State v. Carter, 535 S.W.2d 537, 538[1] (Mo.App.1976). Offenses are not identical when one necessitates proof of an essential fact or element not required by the other. State v. Chambers, 524 S.W.2d 826, 828[1, 2] (Mo. banc 1975).

The law recognizes a correlative principle, invoked by the defendant, that a person convicted of an offense and then put on trial for an element of that offense has been put twice in jeopardy for the same accusation. State v. Parsons, 513 S.W.2d 430, 438[5-8] (Mo.1974). The defendant attempts to relate this principle to his contention that the detention and confinement of the child was not an act of kidnapping but the means to the assault.

Three cases have applied this principle to nullify convictions. In State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970), the defendant was convicted of attempted robbery when he placed a knife against the store clerk in an unsuccessful attempt to obtain money from him. He was later convicted of assault with intent to maim without malice for the same conduct. The court reversed the subsequent conviction on the rationale [1. c. 539] that the assault was the substantive element of the attempted robbery for which conviction had already resulted and so the defendant could not be prosecuted again for that same assault. The court rejected the prosecution theory that because each assault required proof of a different intent, the first an intent to rob and the second an intent to maim, they constituted separate offenses and prosecutions not precluded by double jeopardy. The court concluded that mere allegation of a different intent by the defendant did not avoid a double prosecution for the same assault.

In State v. Parsons, 513 S.W.2d 430 (Mo.1974), the defendant was convicted of first degree murder by bombing and then of bombing. The conviction for bombing was reversed because [1. c. 438] “the necessary act toward the commission of the bombing was the identical act necessary to constitute the crime of murder ... If there is but one single act of force proved as an incidental means of committing a murder that act of force may not also be charged as a separate crime.” The court reached this conclusion on the reason stated in Richardson, among other authorities.

Another decision, adopted concurrent with Parsons by the Supreme Court, uses the rationale of Richardson that a single act of force cannot be proved both as an incident of one offense and then also as a separate offense without violation of double jeopardy. In State v. Neal, 514 S.W.2d 544 (Mo. banc 1974) the defendant was convicted of first degree robbery of store employee Walton, and the assault with intent to kill Walton and the assault with intent to kill store owner Cordes, all from the same criminal conduct of the accused. The court reversed the conviction for the assault of employee Walton because the robbery from his person was the result of the same act of assault against him. The court determined [1. c. 548]: “To thus split the single crime of robbery and prosecute it in Count I and a second time in Count III as an assault violated the rule against double jeopardy”. The court upheld the conviction under Count II for the assault against Cordes, because the proof was of different conduct than that charged in the robbery count, and thus was a separate crime. Implicit within this formula is the corollary and exception that a single act of force against one person allows only one criminal prosecution against the actor, however the essential elements of the offenses may be described. Richardson, 1. c. 540; Parsons, 1. c. 438; Neal, 1. c. 548.

The defendant here does not come within these protections because, contrary to contention, the prosecutions do not punish him twice for the same conduct: first, for the crime against nature and, second, for the detention [kidnapping] which is mere incident of the sexual crime.

The crime against nature requires proof of an unnatural corporeal copulation with mankind or beast. § 563.230, RSMo 1969. The crime of kidnapping requires proof of a forcible seizure, confinement, inveiglement or enticement of another with intent to asport or secretly confine the other against his will. § 559.240. The essence of the offense is the involuntary restraint of liberty [State v. Brown, 217 S.W.2d 546, 548[3] (Mo.1949)] with specific intent to confine the victim. State v. Higgs, 325 Mo. 704, 29 S.W.2d 74, 75[1] (1930). We use the Chambers formula and determine that kidnapping requires proof of an essential element [intent to secretly confine] not required of the crime against nature, and so, is not an identical offense precluded from prosecution by principles of double jeopardy-

The offense of kidnapping, whether accomplished by an asportation or confinement, involves a false imprisonment. Furlong v. German-American Press Ass’n, 189 S.W. 385, 389[9—12] (Mo. banc 1916); MAI-CR 6.30. In practical terms, a sexual assault also requires a physical restraint of some sort. It appears to be the sense of the argument by the defendant here that the unlawful detention — which is the character of the false imprisonment — was merely the means by which the sexual assault was committed and so should not be punished separately as kidnapping. This position merely shows the larger concern of legal authorities that since most conduct within the scope of kidnapping law is already punishable as other crimes [e. g. extortion, rape, sex perversion, contribution to delinquency of a minor] the law, in practical effect, allows additional sanctions merely because the crime is accompanied by a detention or asportation.

This view distinguishes authentic kidnapping from verisimilar conduct where the purpose is to commit a different offense [Comment, A Rationale of the Law of Kidnapping, 53 Col.L.Rev. 540 (1953), 1. c. 556, 558]:

Where the defendant has some ultimate purpose, such as rape or robbery, which is itself criminal, his conduct should be dealt with as rape [or] robbery . . . [but where] the asportation or detention significantly increases the dangerousness or undesirability of the defendant’s behavior

his conduct is no longer cumulative of the rape or robbery [or other offense] but tends to prove a separate kidnapping. People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, 238[3] (In Bank 1969); People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (1965).

To prevent prosecution distortion of a lesser crime into a more serious kidnapping merely because the criminal conduct also amounts to a false imprisonment, the courts have found the proof insufficient for kidnapping where the asportation or detention was only incidental to the criminal purpose of the defendant. Thus, in People v. Levy, supra [15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842], the defendant forced his way into a car and in the course of a twenty-minute, twenty-seven block drive robbed the occupants, and was convicted of kidnapping and robbery. The court reversed the kidnapping conviction because [256 N.Y.S.2d 1. c. 796, 204 N.E.2d 1. c. 844]:

. the movement of the automobile, which was itself the situs of the robbery, was not essentially different in relation to the robbery than would be the tying up of the victim in a bank and his movement into another room. In essence, the crime remained a robbery.

In People v. Daniels, supra [71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225], the defendants in the course of the robbery and rape of three woman in a residence forced them to move eighteen feet, six feet and thirty feet, respectively. The court recognized that some brief movements are necessarily incidental to rape and robbery, but that [80 Cal.Rptr. 1. c. 904, 459 P.2d 1. c. 232]:

. [the] defendants had no interest in forcing their victims to move just for the sake of moving; their intent was to commit robberies and rapes, and the brief movements which they compelled their victims to perform were solely to facilitate such crimes. It follows, a fortiori, that those movements were “incidental to” the robberies and rapes

and not proof of kidnapping because these asportations did not substantially increase the risk of harm to the victims [80 Cal.Rptr. 1. c. 910, 459 P.2d 1. c. 238] “over and above that necessarily present in the crime[s] of robbery [and rape]”. See also, People v. Miles, 23 N.Y.2d 527, 245 N.E.2d 688 (1969).

We consider these authorities to be sound, but the evidence against the defendant, nevertheless, proves a detention and movement of the victim not only as a means to facilitate the sexual acts upon her but calculated to detain her in isolation and secret. The defendant confined the infant victim in the automobile for about sixteen hours against her will and by threats upon her life. Although she was seen by the other children as the defendant drove by them to the alleyway, he had directed her to bend out of sight, from which the intent to conceal and isolate her are shown. It does not matter that Willie Pleasure detected them on the one-way street; the movement of the car into the alley tends to prove the intent of the defendant to seclude and secrete the child. The secret confinement required for proof of kidnapping under § 559.240 does not mean total concealment or total isolation. That element is established where the victim is “prevented from [effectively] communicating his situation to others and [the] accused’s intention to keep the victim’s predicament secret is made manifest”. State v. Weir, 506 S.W.2d 437, 440[3—5] (Mo.1974).

The inveiglement and secret confinement of the child Patricia were complete before the sexual acts were practiced upon her. The detention and asportation of the child were not merely incidental to the crime against nature—which did not take place until the fall of darkness some hours later—but were expressions of a fixed intention to isolate and confine the child against her will. Nor is this a case where the victim of assault was released upon completion of the act, but rather was continued in a detention which substantially increased the risk of harm already present, and made possible further assaults. Such conduct constitutes kidnapping by any standards of legal theory and proof.

We reject altogether the contentions of defendant that kidnapping was an incident of crime against nature, and so not subject to separate prosecution, as well as corollary contention that the detention of the child was only incidental to the sexual crime and so did not prove a kidnapping.

The second point contends the trial court erred in the refusal to defendant of a full hearing on his motion to suppress identification. That point falls short for a number of reasons. The request to suppress the identification evidence of Willie Pleasure and the children Patricia and Robert arose for the first time during the course of trial and was not orderly or timely. The court acquiesced to the extent that the officer who conducted the display of photographs to these witnesses was called and examined, but from concern for the children, refused defense request that they be called to determine whether identification of the defendant was unduly suggested to them. These witnesses were presented at the trial and the defendant challenged the accuracy and fairness of the procedures by which their identifications were made. This evidence came in without objection, as did the in-court testimony of each that defendant was the same man who had taken Patricia into the vehicle. The testimony of each was positive and unqualified, as was the identification of Patricia.

A number of procedural defects defeat this point. The defendant failed to move the suppression of identification before the trial and so did not preserve the contention for review [State v. Young, 534 S.W.2d 585, 589[3, 4] (Mo.App.1976)]; he failed to object to the trial identification testimony of the three witnesses and so defaulted appellate consideration of the point. State v. Brownridge, 459 S.W.2d 317, 320[8] (Mo.1970). Most conclusively, the trial identification by the three witnesses and the child Patricia was so clear and unequivocal that they stand as evidence free from any possible taint of suggestiveness.

There is no room to dispute the opportunities for these witnesses for direct views of the defendant in the open light for sustained periods of time. Pleasure conversed with him by the car face to face. The boy Robert saw the defendant twice, first when he approached all three children, and then when the car with the defendant and Patricia stopped right by him. Stephanie, then waiting with Robert for Patricia to return, made the same observations. These circumstances provide an independent basis for the identifications of the defendant by the witnesses. The defendant, of course, does not dispute the basis of the identification by the victim who was his captive for more than half a day.

The judgment is affirmed.

All concur.

      . See, also, the Model Penal Code, § 212.1 and Comments, Tentative Draft No. 11, p. 15 which would limit kidnapping to “removal or confinement involving substantial isolation of the vie-tim where the duration of the isolation, the intention of the kidnapper, or other circumstance, makes the behavior specifically terrifying or dangerous.” See, generally, 43 A.L.R.3d 699, 702, Kidnapping—Asportation for Other Crime.


source: Caselaw Access Project

author: ANDREW J. HIGGINS, Special Judge.

license: Public Domain

text:
    Frank P. MOLEY and Marie Moley, Appellants, v. PLAZA PROPERTIES, INC., and Melvin E. Kleb, Individually and as President of Plaza Properties, Inc., Respondents.
    No. 28489.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      John R. O’Malley, Barbieri, Combs & Gotschall, Kansas City, for appellants.
    James M. Beck, Johnson, Lucas, Bush & Snapp, Kansas City, for respondents.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from sustention of defendants’ motion to dismiss plaintiffs’ petition for failure to state a cause of action and ensuing dismissal of plaintiffs’ cause of action “without prejudice.”

Defendants have moved to dismiss the appeal, contending that because the dismissal was without prejudice and because upon such a dismissal another action may be brought for the same cause, see Section 510.150, RSMo 1969, and Rule 67.03, V.A. M.R., the judgment was not final and ap-pealable.

The motion to dismiss the appeal is overruled. When a petition is dismissed on the ground it fails to state a claim upon which relief can be granted, the ensuing judgment of dismissal is final and appeala-ble. That plaintiffs may bring another action for the same cause does not alter the finality of adjudication as to that petition and if plaintiffs chose to stand on that petition, the judgment was final and ap-pealable. Hasemeier v. Smith, 361 S.W.2d 697, 699[1, 2] (Mo. banc 1962). See also State v. Litzinger, 417 S.W.2d 126, 128 (Mo.App.1967).

Plaintiffs’ action was for rent pursuant to a lease entered into on or about June 16, 1970, between plaintiffs and defendants Plaza Properties, Inc., and Melvin E. Kleb, for rental of property known as 7960 Ward Parkway, Kansas City, Missouri, an unimproved tract described by metes and bounds.

Defendants Plaza Properties, Inc., and Melvin E. Kleb, pursuant to Rule 55.-27(a)(6), V.A.M.R., filed their motion to dismiss plaintiffs’ petition, together with suggestions in support, on the ground it failed to state a claim against either defendant, alleging: “Said Lease is of no force and effect, having been abrogated and rescinded by agreement of the parties pursuant to a novation. Shortly after execution of the purported lease attached to plaintiffs’ petition, the same was abrogated and rescinded by the mutual agreement of all parties thereto and a new lease agreement on substantially identical terms was entered into between plaintiffs and a third party, Ward 79, Inc., as Tenant. The effect of the new lease operated to release Plaza Properties, Inc. and Melvin E. Kleb from any and all liability whatsoever to plaintiffs based upon the purported Lease upon which plaintiffs’ petition is grounded. Subsequent thereto between March and June in 1972» plaintiffs and Ward 79, Inc. entered into an Addenda to the then existing Lease between plaintiffs and Ward 79, Inc., * * ⅜ caused a Memorandum of Lease to be placed of record evidencing the existence of the Lease on the subject property between plaintiffs and Ward 79, Inc., * ⅜ * and plaintiffs tendered to State Farm Life Ins. Co. a proposed agreement subordinating plaintiffs’ rights under the Ward 79, Inc. Lease to the rights of a construction lender, * ⅜. All documents hereto attached bear plaintiffs’ signatures. Plaintiffs have sued the wrong defendants on a document which has been superseded, abrogated and rescinded by mutual agreement and on which defendants have no liability to plaintiffs whatsoever.”

The matter was presented to the court under local Rule 8.04 — 2, and the court entered the order in question: “Defendants have filed their Motion To Dismiss Plaintiffs’ Petition stating that the Plaintiffs have failed to state a cause of action. The motion was filed on the 14th of August of this year and there has been no response from the Plaintiff[s] in opposition. The Court does this date sustain Defendants’ Motion and Plaintiffs’ cause of action is dismissed, without prejudice, at Plaintiffs’ Costs.”

Appellants contend that the court erred in dismissing their petition for failure to state a cause of action because, when construed “liberally and favorably” to plaintiffs as required, it was sufficient on its face to state a claim upon which relief could be granted. They assert that the trial court was “restricted to an inquiry * * * ‘directed toward the sufficiency of a pleading as it appears on its face without more,’ ” citing Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660 (Mo.1974), and Rule 55.33, Y.A.M.R.

The difficulty in appellants’ position is that Rule 55.33, as cited by appellants, was combined with previous Rule 55.31 into a new rule, 55.27, effective September 1, 1973. “The new rule provides that even with respect to a motion for dismissal for failure to state a claim upon which relief can be granted, matters outside the pleadings can be presented to the court and if not excluded the motion will [shall] then be treated as a motion for summary judgment, subject to the summary judgment procedure set forth in rule 74.04.” Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., supra, 507 S.W.2d 1. c. 660, fn. 4; Rules 55.27(a), 74.04, Y.A.M.R.; and note that when summary judgment is the question, “an adverse party may not rest upon the mere allegations * ⅜ * of his pleading, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Rule 74.-04(e), Y.A.M.R. See also Kelley v. Schnebelen, 545 S.V.2d 332, 334[1] (Mo.App.1976).

Novation has been described as a substitution of a new contract or obligation for an old one which is thereby extinguished. It is an affirmative defense with the burden of proof on the party asserting it. W. Crawford Smith, Inc. v. Watkins, 425 S.W.2d 276, 279 (Mo.App.1968).

Defendants’ motion presented facts which established that after the execution of the lease upon which plaintiffs filed their petition, a novation occurred between plaintiffs and an entity, Ward 79, Inc., not a party to the suit. By such novation, Ward 79, Inc., became the tenant of the same property on a new lease of the same date, for the same term, on virtually identical terms and provisions. The exhibits attached to the motion to dismiss contained the matters outside the pleadings to establish the novation, and it operated to release defendants from liability to plaintiffs on the lease between them. The exhibits were signed and verified by plaintiffs and Ward 79, Inc., the party to the novation. Exhibit C was a Memorandum of Lease of subject property, executed by plaintiffs and Ward 79, Inc., June 16, 1970, and was recorded in Kansas and Missouri. Exhibit A was a modification or addendum by plaintiffs and Ward 79, Inc., of their lease nearly two years after its original execution, attached to their lease of June 16, 1970. Exhibit B established that plaintiffs and Ward 79, Inc., entered into an agreement with State Farm Insurance Company affecting their lease with respect to construction of improvements on the leased premises. Such evidence documented a novation in extin-guishment of defendants’ liability under the lease between them and plaintiffs.

More than the prescribed twenty days lapsed between the filing of defendants’ motion to dismiss and the date upon which the court considered it. Plaintiffs did not respond by affidavit, counteraffidavit, or otherwise, and the evidence tendered in support of the motion to dismiss stood unopposed and uncontradicted. Such evidence was thus admitted, and it constituted unassailable proof of the alleged novation. Summary judgment of dismissal was required. Bently v. Wilson Trailer Co., 504 S.W.2d 277 (Mo.App.1973).

Judgment affirmed.

All concur.

      . Plaintiffs filed a posttrial motion to set aside the dismissal and still failed to respond to the evidence which supported the dismissal.


author: PER CURIAM. .

text:
    STATE of Missouri, Respondent, v. Gary Alvin WASHBURN, Appellant.
    Nos. KCD 28510, KCD 28654.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    A. L. Shortridge, Joplin, for appellant.
    John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and SHAN-GLER and DIXON, JJ.
   PER CURIAM. .

In a trial to the court appellant was found guilty of the commission of the crime proscribed by § 561.450, RSMo 1969, “Confidence game or fraudulent checks”, and was sentenced by the court to two years imprisonment in the Department of Corrections. Two notices of appeal were filed, hence the two file numbers of this case. The first notice was premature because the court deferred sentence pending a pre-sentence investigation.

Appellant makes two points. He first attacks the information because the allegation that representations by him were false and fraudulent is omitted which makes the information legally insufficient; the necessary allegation that the injured party relied upon the alleged false or deceitful pretense and was thus induced to part with his property is missing. The second point attacks the sufficiency of the evidence, in that, it is said, it was legally insufficient to prove that appellant knowingly made a false statement that was calculated by him to deceive Kenneth Clark, who was deceived and, relying upon a false representation, parted with his money.

On January 21, 1975, appellant came to the farm of Kenneth Clark, 6 miles northwest of Metz, in Vernon County, Missouri. It was early in the morning and the Clarks were still milking. Appellant, giving his name to Mr. Clark as Edward Morgan, told him he would like to inspect his lightning rods. Another man, who was not introduced, was with appellant. Mr. Clark had a house, a hay shed, machine shed, hog shed, cattle barn, milk barn, garage and two steel bins, all of which had lightning rods on them, which appellant said he wanted to inspect, and “he would give me a lifetime certificate; that there wouldn’t be no more inspections or anything and that they should be good from then on,” and that there would be no charge. Mr. Clark said, “ ‘if there is no charge involved, why go ahead and look.’ ” Appellant and his companion then drove copper ground rods on a new bar and attached existing cables to them, and clamped a loose rod on a hog house, which was all the work that was done, taking about 30 minutes. They went back up to appellant’s pickup truck, and “He filled out a big certificate and when he got that all filled out he said that he wanted $980.00. Q. Nine hundred and eighty? A. Yes. Q. What did you say at that time? A. I told him: T thought this was supposed to be a free inspection?’ Well, he said that this $980.00 was supposed to be a lifetime deal and he kept talking this way and that-a-way until I finally gave him half of that.” Mr. Clark told appellant he couldn’t afford to pay him $960.00 at the time. Appellant said he would take the half and come back April 1st. Mr. Clark made out the $480.00 check to Edward Morgan, as appellant told him to do, and handed it to him. Appellant gave Mr. Clark the certificate he had made out, which was printed on a 12 X 16 sheet, and which was signed “Edward Morgan.” The men then left, and Mr. Clark pondered for a while, then called the bank to stop payment on the check. The check was later received from the bank, as paid, by Mr. Clark.

After giving appellant the check, Mr. Clark called the company which had originally installed the rods, for which company appellant told him he worked. Mr. Clark talked to the sheriff, and then waited for appellant to return, which he did in March, at which time he again called the sheriff. They tried to stall appellant as long as they could, “and we finally had to hold him at gun point to keep him.” The sheriff arrived then and brought appellant to Nevada. Mr. Clark was asked: “Q. Mr. Clark, do you believe — I assume you relied upon the statements he made as to who he was and what he was doing there, is that correct? A. That’s right. Q. You believed him at that time? A. I did at that time, yes. Q. Until shortly after he left with your money and then you got worried, is that right? A. That’s right.” According to Mr. Clark, appellant managed to retain the certificate upon his second visit, and it was not offered into evidence.

Appellant, testifying, admitted the incidents as testified to by Mr. Clark, and “Q. This guarantee you were talking about, is this a company guarantee? A. No, its a warranty of my own. Q. Your warranty? A. It’s printed out that the material is under warranty. Q. The materials in this case would have been the three rods then? A. Well, it guaranteed the work that I done. Q. So you put in three or four rods and attached the cables to them? A. I put some new cables on, some short pieces. Q. You heard Mr. Clark say that you filled out the warranty, is that correct? A. Yes. Q. That you signed it? A. Morgan signed the warranty, his name is on it. Q. But you say it is your guarantee? A. Well, yeah, you might as well say, anytime I do the work, I back it up, yes. Q. You are the one guaranteeing the work, not Morgan? A. I was working for Morgan so he was guaranteeing the work. Q. Morgan is gone — you don’t know where he is? A. That’s right.”

In pertinent parts, the information charged that appellant “did then and there wilfully, unlawfully and feloniously with intent to cheat and defraud Kenneth Clark of Metz, Missouri of over $900.00 by means of trick, deception and false and fraudulent representation by statements or pretense's commonly called ‘the Confidence Game’, by representing to the said Kenneth Clark that the above defendant in concert with others was sent down by their company to check out Kenneth Clark’s farm dwelling for the lighting- rod equipment that was on it. The said Gary Alvin Washburn on the 15th day of January, 1975 stayed about thirty minutes and then said that Mr. Clark owed him $900.00. Little if any work was done. The said Kenneth Clark gave the said Gary Alvin Washburn a check for $480.00. Gary Alvin WAshburn said he would return for the rest later. Gary Alvin Washburn represented to Kenneth Clark that his name was Edward Morgan and asked that the check be made payable to Edward Morgan and that the endorsement on the back of the check was signed Edward Morgan. That the amount collected was in no way justified or reasonable for the alleged work done and the said Kenneth Clark relied upon the false and fraudulent representation and was deceived thereby, * *

§ 561.450 provides, “Every person who, with the intent to cheat and defraud, shall obtain or attempt to obtain, from any other person, or persons, any money, property or valuable thing whatever by means or by use of any trick or deception, or false and fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called ‘the confidence game’, * * * shall be deemed guilty of a felony * *

As to that portion of appellant’s first point, that the element of reliance upon the alleged false or deceitful pretense and was thus induced to part with his property is missing, the state says that appellant concedes in his brief that charge is in the language of the statute. In State v. Cunningham, 380 S.W.2d 401, 403[6-9] (Mo.1964), the precise issue was ruled, “We agree with the general statement that describing the offense in the language of the statute is sufficient, but only where the statute in denouncing the offense states all the essential elements of the crime.” The court, on the same page, held that the information was fatally defective because it did not allege the essential element “that the victim must have relied upon some false and fraudulent representation, or statement or pretense by defendant and have thereby parted with his money. State v. Fields, Mo., 366 S.W.2d 462, 467. State v. Stegall, Mo., 353 S.W.2d 656, 657”, and the case was reversed and remanded. Here, although the information alleges “Kenneth Clark relied upon the false and fraudulent representation and was deceived thereby”, there is no allegation that he was thereby induced to part with his property. Appellant’s contention must be sustained. See also State v. Garner, 432 S.W.2d 259, 260 (Mo.1968); and State v. Robinson, 14 S.W.2d 452, 453 (Mo.1929) [both bogus check cases]. Appellant’s attack on the information was not contained in his motion for new trial but it is here presented and is reviewed under Rule 28.02.

There is a further reason why this case must be reversed. The evidence as presented is not sufficient to sustain the conviction in that all that is present by competent testimony is that appellant told him that his name was Edward Morgan. Although that evidence was false according to the victim’s testimony, it is not tied to any other evidence of a material nature which would cause the victim to part with his property. There is no evidence that appellant did not work for the company that installed the lightning rod, as he told Mr. Clark, or, as alleged, that he was not sent down by the company to check out the lightning rods on Clark’s farm. Standing alone, the mere falsity of the name given is not material as that term is defined in false pretense cases. See People v. Schmitt, 155 Cal.App.2d 87, 317 P.2d 673, 687[14, 15] (1957), “ ‘The false pretense or representation must have materially influenced the owner to part with his property, but the false pretense need not be the sole inducing cause.’ People v. Ashley, 42 Cal.2d 246, 259, 267 P.2d 271, 279”; Nelson v. United States, 97 U.S.App.D.C. 6, 227 F.2d 21, 25[6] (1955); Sweeton v. Commonwealth, 210 Ky. 340, 275 S.W. 827[1] (1925). If the evidence of false name were connected with that showing appellant did not work for the lightning rod company, and was not sent down by it, so as to give a basis for reliance and an inducement of the victim to part with his money, a case would have been made. It is noted that witness “Bob Jones United Ligh ting Protestation Co. employee Maryville, Missouri” is endorsed on the information, so the falsity of appellant’s representations of employment may be established on new trial.

In the Stegall case, supra, loc. cit. 353 S.W.2d 657[2] (reversed and remanded for the same reason as in Point I here), the court said, “We have concluded, however that the judgment should not be reversed outright but that the cause should be reversed and remanded so as to give the State an opportunity to seek leave to file an amended information or to take such action as the prosecuting attorney may deem advisable.” The same consideration may be here applied.

The judgment is reversed and the case is remanded.


author: PER CURIAM.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. The GAS SERVICE COMPANY, Respondent.
    No. KCD 28538.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      Robert J. Graeff, Kansas City, for appellant.
    Charles E. Patterson, Robert B. Best, Jr., Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   PER CURIAM.

The plaintiff Allstate Insurance Company brought an action against the defendant Gas Service Company as successor to the cause of action of an insured for damage done to premises from an explosion caused by the negligence of the utility and paid by the insurer under the terms of a policy.

At the trial there was proof that the insured, in consideration of payment made under the policy, gave a receipt which sub-rogated the insurer to all claims which the insured was entitled to bring for the loss, and which empowered the insurer to sue in the name of the insured. There was also proof that some time later the insured made first an oral, then a written, assignment of the entire cause of action to the plaintiff Allstate.

At the conclusion of the evidence for the insurer, the defendant moved for a directed verdict on grounds that the plaintiff was not the proper party to bring the action and that the plaintiff had failed to establish a measure of damage. The motion was overruled and the trial went to conclusion. The jury found the issues for the plaintiff and assessed damages. The defendant thereafter moved for judgment notwithstanding the verdict and, alternatively, for a new trial in accordance with the prior motion for directed verdict.

The court responded by entry of judgment for the defendant on the express ground that all the evidence showed that the plaintiff Allstate was not the real party in interest but only a subrogee — or at best an assignee of part of the causes of action which accrued to the insured from the explosion. The court also sustained conditionally the motion for new trial on the ground that damages were not proved and so the verdict was against the weight of the evidence.

The plaintiff does not challenge the entry of judgment for the defendant, but only the grant of a new trial. According to the effect of Rule 72.01, however, when the trial court conjoins the grant of judgment notwithstanding the verdict with a new trial, the order for the new trial does not become a vital subject for review unless the appeals court has first determined that the entry of judgment was error. If that judgment stands, then, any error in the order for new trial becomes superfluous on appeal and simply is not reached. The failure to claim that the judgment for defendant notwithstanding the verdict was error confesses that the plaintiff was not a party aggrieved within § 512.020, RSMo 1969 and so without standing to invoke review.

We may assume for our purposes that the first point relied on in the brief of respondent that

[t]he trial court erred in granting defendant’s Motion for New Trial on the basis plaintiff was not the real party in interest because the testimony established that although this was only a partial assignment, the Statute of Limitations had tolled and the property owner testified he “took the loss on the chin”

by inadvertence misstates motion for new trial for judgment for defendant notwithstanding the verdict. Even so, the brief neglects Rule 84.04(c) and 84.04(h) and thus the points on appeal do not engage our review. If [in addition to the failure to appeal from the entry of an adverse judgment], we pass for this determination, the obvious shortcomings of the statement of facts as the basis for a fair determination of the issues and the questionable validity of the points on appeal as statements and contentions of the trial errors, we must dismiss the appeal nevertheless because the arguments on the points relate neither to competent transcript references nor to legal precedents.

The first point attempts to assign error to the judgment by the contention that the plaintiff, although assignee of only part of a cause of action, was nevertheless the real party in interest because whatever elements of that cause otherwise remained by the assignment to the benefit and use of the assignor-insured lapsed by operation of the statute of limitations. This contention, however plausible in the statement, finds support in neither the evidence nor any citation of law. The emphasis we make is that the solitary transcript reference in the argument on that point — to the effect that the insured had resolved to suffer the loss rather than assert whatever claim for damage remained to them after the assignment — describes a compass of testimony excluded by the trial court on objection. Evidence refused by the trial court establishes no probate datum and cannot be such a “statement of fact” which will support the argument for a point on appeal within Rule 84.04(c) and (h).

The terse [two paragraph] argument on that point cites one decision with any ostensible relevancy to the general subject, and even that, only abstractly. In short, the exposition gives no assistance to the determination of the recondite question [see, e. g., Holt v. Myers, 494 S.W.2d 430 (Mo.App.1973); Kroeker v. State Farm Mutual Automobile Insurance Company, 466 S.W.2d 105 (Mo.App.1971)]: whether the transactions between the insurer and insured resulted in a subrogation of equitable right or an assignment — partial or complete — of legal right, as it bears on standing to maintain a cause of action against the defendant. The failings of the argument in this respect stem directly from the inadequate formulation of the statement of the point itself. Kerr v. Ehinger, Inc., 515 S.W.2d 763, 765[2, 3] (Mo.App.1974). Our effective review would be possible only as advocate, an undertaking both unseemly and improper.

We do not reach the second contention which relates to the conditional judgment for new trial because the consequence of our disposition of the first point is to affirm an unconditional entry of judgment for defendant.

The appeal is dismissed.

      . Rule 72.01: “(b) ... A motion for new trial may be joined with this motion [for judgment in accordance with . . . motion for a directed verdict], or a new trial may be prayed for in the alternative
      (c) . . .
      (1) If the motion for judgment notwithstanding the verdict ... is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed

      (2) The party whose judgment has been set aside on the motion for judgment notwithstanding verdict, may upon appeal from the resulting adverse judgment, in addition to urging that the trial court erred in sustaining the motion for judgment notwithstanding the verdict, also brief and argue and the appellate court may determine, whether the appellant is, in any event, entitled to a new trial.” (Emphasis added)


text:
    STATE of Missouri, Respondent, v. Henry William BREWER, Appellant.
    No. KCD 28615.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Jon M. Krebbs, Asst. Public Defender, Liberty, for appellant.
    John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from convictions by a jury of burglary, second degree, of a drugstore, and stealing. §§ 560.070, 560.110, RSMo 1969. Appellant questions the sufficiency of evidence to support the conviction for stealing, and charges the court with error in connection with the State’s cross-examination of defendant with respect to prior convictions. Affirmed.

The information charged that Henry William Brewer, on or about August 7,1975, in Clay County, Missouri, did feloniously and burglariously break and enter Northland Pharmacy Company owned by Raphael J. Wendling, and did steal one Timex man’s wristwatch, two Timex ladies’ wristwatches, and $84.15 in coins and currency.

Appellant tacitly concedes the sufficiency of evidence to support his conviction for the burglary. The evidence shows: that around 1:30 a. m., August 7, 1975, Police Officer Larry Seaman, pursuant to a burglary alarm call, went to Northland Pharmacy, 8329 North Oak, Kansas City, Clay County, Missouri, where he noticed a large hole broken in the glass in the lower half of the otherwise locked front door, and saw defendant crouched down behind a counter inside the store. Such was sufficient to support the jury’s verdict on the burglary charge. State v. Hawkins, 491 S.W.2d 342, 343[2] (Mo.1973).

Appellant contends that the State failed to prove that the watches and money were the property of the Northland Pharmacy, “and therefore, the State failed to meet the burden of proof on the charge of stealing,” and he should be discharged on that offense. His argument is that Mr. Wendling could not identify the watches or the money and, therefore, proof of the stealing charge failed.

Appellant’s argument overlooks other evidence which, together with the testimony of Mr. Wendling, all considered favorably to the verdict, State v. Reed, 453 S.W.2d 946, 949 (Mo.1970), supports the charge of stealing in connection with the burglary.

Mr. Wendling arrived at his drugstore at about the same time as did Officer Seaman. When he entered his store, he found a Timex watch display case lying face down on the floor with the “doors” broken out of it, and three individual watch cases lying empty on the floor. All the watches in the case had belonged to him. He estimated that between sixty and seventy dollars was missing from the drawer of his cash register. He candidly conceded with respect to the three Timex watches in evidence that he could “only identify them as watches. I can’t say that those were exactly the same watches because every drugstore * * * sells watches of this caliber.” He made a similar concession with respect to identity of the currency in evidence.

Officer Seaman found defendant in the pharmacy “still behind the counter. I proceeded to the front door where the window was broken out. I identified myself as a police officer and told the defendant to come out with his hands up. At this time the defendant who had crouched down behind the counter got back up and he was doing something with his hands, * * * like he was maybe digging through his pockets * * * and a few seconds later he started walking towards the front door.” The area in which Officer Seaman first observed defendant was behind the cash register. The broken Timex watch display was lying “in the aisle behind the counter right next to the cash register.” Officer Seaman arrested defendant and placed him in his patrol car, at which time he observed “a large wad of money in his right hand” which defendant placed in his pocket. Search of the defendant’s person also revealed a Timex watch on defendant’s upper arm hidden under the sleeve of his T-shirt, and a watch in each of defendant’s socks in his shoes under the arches of his feet.

Police Officer Christopher Sager was present also at the recovery of three Timex watches and also observed $74.15 in currency and change taken from defendant. While these items were being inventoried, defendant pointed to a particular ten dollar bill with inked-in numbers, and claimed it as his own.

From the foregoing, a jury reasonably could find that defendant not only broke and entered the Northland Pharmacy with intent to steal, but that he also at the same time did steal three watches and some currency. The stealing is supported by the evidence that he was found crouched behind the counter where the cash register and watch display were located and from which money and watches were missing, and, when searched, was found to have three watches concealed on his person and $64.15 in excess of that claimed as his own in his possession. State v. Caffey, 404 S.W.2d 171 (Mo.1966).

The following occurred during the cross-examination of defendant:

“Q [by Mr. Murphy for the State] Sir, were you ever convicted of making a false report to the police officer about a car theft? Yes, sir. * ⅜ * Q You say you’ve not been convicted of any other offense? A No felonies. Q No felony. What other crimes have you been convicted of? .
“MR. KREBBS [for the defendant]: I object to that, Your Honor, as improper cross-examination. THE COURT: Overruled.
“THE WITNESS: What other? Q (By Mr. Murphy) Other than the false report? * * *
“(Thereupon, the following proceedings were had out of hearing of the jury):
“MR. KREBBS: Your Honor, I don’t think that my client is aware of the definition of what a crime is or can be elicited on cross-examination. Before he is permitted or allowed or ordered to answer the state should define what a crime is, whether it’s a misdemeanor, ordinance violation or what. Therefore, I renew my objection to ‘Have you ever been convicted of a crime?’ THE COURT: Overruled. * * *
“Q (By Mr. Murphy) Sir, have you been convicted of any other crimes? A Your Honor, may I ask a question? THE COURT: Do you know what a crime is? THE WITNESS: Yes, sir. THE COURT: All right. THE WITNESS: Could I ask you a question? THE COURT: All right. THE WITNESS: Could, could I answer those, could I also tell what the reason I was convicted of those if he’s going to bring them in that way? THE COURT: Not right now, sir, just please answer the question. THE WITNESS: All right. THE COURT: If you know, you say you know what a crime is? THE WITNESS: Yes. THE COURT: All right.
“Q (By Mr. Murphy) Now what other crimes have you been convicted of? A Well, for petty larceny, and for mostly drinking — THE COURT: And for what? THE WITNESS: —and drunk driving. THE COURT: And for what? THE WITNESS: Drinking and drunk driving.”

Appellant charges the court erred in overruling defendant’s objection “as to what crimes he had been convicted when defendant did not know the distinction between an ordinance violation, misdemeanor, or felony.”

Under Sections 491.050 and 546.260, RSMo 1969, the State has the right to show prior convictions and their nature for the purpose of impeachment. State v. Busby, 486 S.W.2d 501, 503 (Mo.1972). Violations of municipal ordinances do not constitute criminal offenses for purposes of impeachment, Commerford v. Kreitler, 462 S.W.2d 726, 733 (Mo.1971); and questions must not be so broad as to include such convictions, Kansas City v. Roberts, 411 S.W.2d 847, 850 (Mo.App.1967); however, prior misdemean- or convictions as well as felony convictions may be shown, State v. Matzker, 500 S.W.2d 54, 56 (Mo.App.1973).

Defendant Brewer acknowledged that he knew what a crime was prior to answering the State’s inquiry, after which he admitted convictions “for petty larceny * * * drinking and drunk driving,” both of which are crimes within the meaning of Section 491.050 and 546.260, supra, in Missouri. See Sections 560.161 and 564.440, RSMo 1969. In their context in this case, their admission was not error. State v. Matzker, supra.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Thomas T. GREEN, Appellant.
    No. KCD 28632.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The defendant was convicted of rape and sentenced to life imprisonment. On this appeal he contends that the argument of the prosecutor was a direct reference to his failure to testify and so the conviction should be reversed.

The evidence bears somewhat on the contention. The victim [L. F.] was asleep in the early morning in her bedroom on the second floor of the home she then shared with her sister [C. F.] and her brother [T. F.]. The defendant broke into the residence, first entered the bedroom of the sister on the first floor; she feigned sleep; so he went into the kitchen where he rummaged for a knife, and so armed went onto the second floor and into the bedroom of the victim. There he turned on the lights, practiced cunnilingus and then raped her. When he was done he was encountered by the brother who had just returned from work. The brother got hold of a baseball bat and chased the defendant from the premises into the street where he was taken by the police. The knife was found at the scene of the arrest.

The cross-examination of the victim by the defendant attempted to establish that she knew her assailant and submitted willingly.

Her testimony denied that defendant was an acquaintance, but rather that she was compelled to act by the threat of the knife at her throat.

The closing argument made by Mr. Bryant for the defendant argued the evidence in this manner:

. Gentlemen of the jury, let’s begin our analysis by asking the question why Thomas T. Green appeared all too familiar at 2001 Brooklyn and the occupants inside. It appears from the evidence that Thomas T. Green knew exactly when and how to gain entrance into 2001 Brooklyn, knew that there was only a green trash bag covering the window because he was apprehended with no burglar tools at all. And when you couple this with the fact that he comes at the precise time that the mother is in the hospital and the brother is at work, it all appears to be just a bit too coincidental, especially when you consider that this man is alone and is supposedly armed with no more than a kitchen steak knife. How did he know that there would be no one inside, armed with a shotgun ready to blow his brains out? That’s just a bit too coincidental.
Gentlemen, I have raised a number of questions here. . . . and the Prosecutor has fifteen minutes to answer. I want those questions answered because as Instruction No. 8 tells you, his evidence must be consistent only with guilt and inconsistent with any reasonable theory of innocence. Only my theory answers these questions. Why the random and arbitrary selection of 2001 Brooklyn, why there were no burglar tools, how he knew there was only a green trash sack over the window, why he walked through the house at ease like he owned it, why he knew there would be no one there with a shotgun, why he would do it all with nothing more than a kitchen steak knife, why he attempted to turn on lights to insure his detection, why he left C. P. [the sister] unbound and why she did nothing, why a sex-crazed rapist would pass up C. F., why she does not scream, why he seems to go straight to L. F. [the victim’s] bedroom. .

The prosecutor responded:

MR. STIGALL: Gentlemen of the jury, I will attempt to answer some of these questions that have been thrown at me. Some of them I can’t answer. Some of them the State can’t answer. We don’t knew how this defendant knew these two girls were alone in the house that night. The State doesn’t know how this defendant knew the mother was gone. The State has no knowledge of how this defendant knew the brother wouldn’t be home until 2:00 or 3:00 in the morning. The State can’t bring you that type of evidence. We have no knowledge why this defendant has perceptive powers.
MR. BRYANT: May we approach the bench, Your Honor? (Whereupon, the following proceedings were had in the presence, but out of the hearing of the jury:)
MR. BRYANT: Your Honor, I think Mr. Stigall is employing a very dangerous tactic by saying, “We don’t know how,” and he was pointing at the defendant. By his continuous pointing at the defendant he is saying that he cannot explain it, but then points to the defendant as if to imply that the defendant should have taken the stand and explained it. I think he is, in a roundabout way, attempting to comment upon the failure of the defendant to testify.
THE COURT: The Court doesn’t find any comment. The Court finds the State is answering your argument. If that’s an objection, the objection is overruled.
MR. BRYANT: Thank you, Your Hon- or.

The defendant contends the response of the prosecutor was a reference to his failure to testify during the trial, and so violates his constitutional privilege against self-incrimination, as well as the assurances of § 546.270 RSMo 1969 and Rule 26.08 that his failure to testify shall not be subject to the comment of counsel. The prosecution replies that the argument of the counsel for defendant made reference to the silence of his client, and to that extent, the provisions of constitution, statute and rule were waived. The prosecution argues also, that in any event its responsive comments do not constitute the direct and certain reference to the failure of the accused to testify prohibited by constitutional and other procedures. State v. Hutchinson, 458 S.W.2d 553, 555[3] (Mo. banc 1970).

Our procedures do not allow the absolute right of a criminal defendant to refuse to testify against himself to be diminished by comment of counsel. Rather, the mandatory provisions of Rule 26.08 and counterpart § 546.270 forbid any attorney in the case from such a reference. State v. Shuls, 329 Mo. 245, 44 S.W.2d 94, 96[8-10] (1931). These protections, however, are personal to the defendant and may be waived by him. State v. Mosier, 102 S.W.2d 620, 628[15—17] (Mo.1937). If counsel for the defendant, for stratagem or advantage, calls attention to the silence of his own client, that waiver entitles the prosecutor to answer on those terms. And counsel for the State may go further yet by way of such response and retaliation than would have been allowed him in the first instance. State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588[8—11] (1950).

Two cases, State v. Tiedt, supra, and State v. Lindner, 282 S.W.2d 547 (Mo.1955) define the parameters of this waiver principle. In Tiedt, defense counsel read the statement of defendant which gave his version of the crime to the jury, argued that to be the true story of the case, told the jury the defendant had testified in the first trial, and argued that it was up to the State to introduce that statement into evidence, but for reasons unknown, the State did not. The court concluded that each aspect of this argument emphasized the failure of defendant to testify, that [229 S.W.2d l. c. 588] “[s]uch an argument called for an answer, asked for an answer, and an answer was too be expected.” The court found no error in the response by the State in closing argument that “[w]e didn’t have any idea but what they would put him on the stand and we could have cross examined him”. The court, instead, found a waiver by defendant of his right of non-reference under the statute and that the reply was invited.

In Lindner, the prosecutor referred specifically to the defendant and told the jury there was no evidence of any kind by him in the case. The remarks of defense counsel in closing argument restated the testimony of some of the witnesses but without any reference to the failure of his client to testify. The court concluded that the defendant had not invited the obvious comment by the prosecutor to his testimonial silence and ordered a reversal.

The present case resembles Tiedt. The argument by counsel for the defendant here hurled one challenge after another for the prosecutor to answer: “I have raised a number of questions and the Prosecutor has fifteen minutes to answer. I want those questions answered . . . Only my theory answers these questions. Why the random and arbitrary selection of 2001 Brooklyn, why there were not burglar tools . why he walked through the house at ease like he owned it . . . ” (Emphasis added). These imputations of doubt on the prosecution case were repeated nineteen times, each why was a separate summons for a reply by the State. The defense theory — as appears from the cross-examination and argument — suggests an assignation between the victim and defendant, that he was invited and expected. Thus the argument was an attack on the credibility of the proof offered by the State, especially the testimony of the victim. It was also a rhetorical assertion that the defendant throughout was of an innocent state of mind: “why he knew there would be no one there with a shotgun . . ., why he attempted to turn on lights to insure his detection, why he left C. F. [the sister] unbound and why she did nothing, why a sex-crazed rapist would pass up C. F., why she does not scream . . . ”. The questions raised, however, are only those the defendant himself could answer, and in that real sense the argument of counsel raised and emphasized the failure of his client to testify. These remarks of defense counsel not only waived the right of his client to be free from that reference [State v. Tiedt, supra; State v. Mosier, supra] but also were a comment on the silence of the client in violation of § 546.270 and Rule 26.08.

The question remains whether the conduct of the State was proper retaliation. The prosecutor made his response, answer for question — one by one: “We don’t know how this defendant knew these two girls were alone in the house that night. The State has no knowledge of how this defendant knew the mother was gone . The State can’t bring you that type of evidence. . . . ”. Each argument answered hardly more than the question had asked and so was condign and proper. The intimation of this response that the answers sought by the defense were known by the defendant alone was fairly invited by the initial argument.

The judgment is affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ronald C. STOCKBRIDGE, Appellant.
    No. 28704.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Robert G. Duncan, David W. Russell, Robert E. Hart, Duncan & Russell, Donald J. Quinn, Kansas City, for appellant.

      John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

Appellant (defendant) was convicted by a jury of the offense of a felonious assault upon a police officer and sentenced to two (2) years imprisonment. After an unavailing motion for a new trial, he brings this appeal, raising three points upon which he seeks reversal. These do not include any claim as to the sufficiency of the evidence so the facts forming the basis of the conviction need only be summarized.

At approximately 4:45 a. m. on July 7, 1975, Robert L. Page, a police officer employed by the Gladstone Public Safety Department, Clay County, Missouri, was on duty, in uniform, when he received a radio dispatch to investigate a prowler in the parking area of the French Riviera Apartment complex. Upon arrival at that location at about 5:10 a. m., he alighted from his vehicle and began investigating the parking area. At one corner of the parking lot he heard a “clicking sound like someone was trying to start an engine * * * just like the solenoid was clicking over”. Thereafter, he observed a large white male who was dressed in dark trousers, blue corduroy coat, wearing black gloves' and carrying a bag on his right shoulder, from which several tools were visible. The officer confronted this individual and attempted to conduct a search; the man failed to assume a search position; a struggle ensued during which the man dropped the tool bag and attempted to flee; the officer grabbed him by the back coat collar; and the man struck the officer with his right elbow in the solar plexus and broke loose from the officer’s grasp and fled. During this struggle Officer Page had radioed for back-up assistance, and Officer Rhoad arrived at the parking lot in time to observe the suspect in flight. The man ran toward the Rhoad vehicle through the headlight beams over the car’s fender or hood and disappeared.

The record is not clear as to the events leading to the defendant’s arrest but he was indicted September 24, 1975, and learned from his parents on September 27, 1975 that the Kansas City police were looking for him, and turned himself in on that day.

Both Officers Page and Rhoad made positive in-court identification of the defendant as the suspect encountered in the parking lot and, while this identification was strongly and somewhat effectively challenged during the trial, the dispute was properly for the jury’s determination.

The state also relies upon the testimony of one Chris Barker, an acquaintance of the defendant, who testified that on July IS, 1975, over a cup of coffee in a restaurant in Kansas City, the defendant told him he had “almost got caught” stealing a car in Clay County about a week before and had struck a policeman or security guard with his elbow and escaped. At the time of his testimony, Barker was under a conviction on a guilty plea to auto theft in Kansas City and a similar charge was pending against him in Clay County. He denied any plea bargain on the Clay County matter involving his testimony against the defendant.

The state showed that a stolen motor vehicle was found in the apartment parking area following the incidents of the early morning of July 7, 1975, but no direct evidence was proffered that the defendant had any connection with such automobile.

The defendant testified in his own behalf on February 24, 1976 and denied that he was the person involved in the assault upon Officer Page or had any knowledge of it until September 27, 1975, when he heard of the police looking for him and voluntarily turned himself in to the authorities. He could not remember his activities or whereabouts on July 7, 1975. He categorically denied the conversation testified to by state’s witness Barker. He testified he was 20 years of age, regularly employed, lived with his parents, and has never been convicted of a crime. Both of his parents also testified for the defendant.

The defendant asserted in his Motion for a New Trial and as his first point on this appeal a matter of great and dispositive concern. He argues that because of the highly inflammatory and prejudicial comments of the assistant prosecuting attorney in his closing arguments to the jury he was denied his constitutional right to a fair and impartial trial. His counsel convincingly asserts that, even though these arguments were not the subject of objection by his trial counsel (not his counsel on this appeal) the point should be considered as plain error affecting substantial rights under Rule 27.-20(c), Rules of Criminal Procedure.

The arguments of the assistant prosecuting attorney, set out below, must be considered against the background of the trial record. The only reference contained in the entire record concerning the defendant’s prior criminal record came in his direct examination, as follows:

“Q. Have you ever been convicted of a crime?
A. No, sir, I have not.
Q. Have you ever stolen a car?
A. No, sir, I have not.”

No attempt was made by the state either in cross-examination or by means of other evidence to refute this categorical denial of any past offenses.

The state relies upon two items of evidence in an attempt to justify the prosecutor’s arguments. Officer Page testified that after the suspect had fled, he went back to the lot and retrieved the shoulder bag and “the car that he was supposed to have driven up in”; ran a check on it and learned it had been stolen from Columbia, Missouri on June 26, 1975. There was no direct proof that the suspect had driven up in this ear or had any connection with it. Neither was there any direct evidence linking the defendant to the bag of tools nor were these tools introduced into evidence. The state’s case rests solely upon the identification of the defendant by the policemen as the man in the parking lot.

The state justifies the argument upon the basis of the testimony of Officer Page in recounting his attempt to search and question the suspect. He stated:

“Q. Did you have reasonable belief that he had committed a crime?
A. Yes, sir.
Q. What was the crime?
A. Tampering with a motor vehicle.
Q. Did you ever ask him if he had been tampering with a motor vehicle?
A. He never gave me the chance.

* * * fj

Obviously, this was a reflection of the officer’s thoughts or suspicions at the time (not of past events), unsupported by any fact in evidence. He admitted that he was attempting to apprehend the suspect for interrogation; that he had no intention then to place him under arrest; that he proposed to search for weapons or “frisk” him for the officer’s personal protection; and, that at no time did he see the suspect even touch any of the cars in the parking lot.

There is not a shred of testimony or documentary evidence that the defendant had any past criminal record of any kind.

Against this background, the assistant prosecuting attorney in his closing argument stated:

“Now, let’s look at the scene of the crime first for our evidence. First, whoever the individual was that was there was a professional. It wasn’t a run of the mill ‘Let’s rip off a car’ type operation. The evidence clearly shows * * that whoever was there * * * was prepared to steal cars. * * * whoever was there was a professional; they knew what they were doing. They came to steal ears. * * *
******
* * * Of course there weren’t any fingerprints. That’s a calling card. You don’t do that when you’re stealing cars * * * ’’ (Emphasis supplied)

Continuing, the prosecutor dropped the use of the plural pronoun “they” and declaimed to the jury, in direct reference to the defendant:

“ * * * Why did he drop his mechanic’s bag? Because he’s a ear thief; be cause he was armed; because he was dangerous; because he could be identified and he wanted to get away. That’s what you’re dealing with. * * * It does not change the fact that this individual identified by the police officers was north of the river, attempting to steal cars, got caught and assaulted the police officer. * ⅞ ⅜ ” (Emphasis supplied)

Warming to his theme, the assistant prosecutor stated in his closing argument to the jury:

“ * * * This man is a car thief, a professional thief. * * *
* * ⅜ ⅜ * *
* * * A professional car thief attempting to evade or otherwise avoid being detected or identified. * * *
⅜ * * He’s a pro. He’s avoiding trouble, staying out of prison. * * * ” (Emphasis supplied)

The courts have long recognized that in the trial of a criminal case the prosecutor occupies a quasi-judicial position and is, at once, charged with the duty to thoroughly and vigorously present the state’s evidence, on the one hand, and on the other hand, conduct these duties in such a manner as will afford the defendant a fair and impartial trial. He shares this latter responsibility with the trial court. State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, 526[1, 2] (Banc 1947); State v. Allen, 363 Mo. 467, 251 S.W.2d 659, 662[4] (1952); State v. Selle, 367 SW.2d 522, 530[22] (Mo.1963); State v. Heinrich, 492 S.W.2d 109, 114[8] (Mo.App.1978); State v. Thomas, 535 S.W.2d 138, 140[2] (Mo.App.1976); State v. Hicks, 535 S.W.2d 308, 311[2] (Mo.App.1976).

As a natural result of these duties a prosecutor should scrupulously refrain from making statements calculated to engender prejudice or excite passion against the defendant. He should refrain from injecting into the trial matters not properly before the jury which would tend to add to the onus under which the defendant necessarily labors by reason of the charge upon which he is standing trial. State v. Selle, supra, at 1.c. 530[22, 23]; State v. Hicks, supra, at 1.c. 3U[2, 3].

As a natural concomitant of this rule, a prosecutor “should never be permitted to apply unbecoming names or epithets to the defendant, or refer to the defendant or his alleged accomplice, as a criminal of any class or kind. * * * ” (Emphasis supplied). State v. Taylor, 320 Mo. 417, 8 S.W.2d 29, 37[25] (Mo.1928). See also: State v. Leonard, 182 S.W.2d 548, 551[5] (Mo.1944); State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 113[9] (1951); Cf. State v. Harris, 351 S.W.2d 713, 715-716[1-4] (Mo.1961); State v. Turnbull, 403 S.W.2d 570, 572-573[5] (Mo.1966).

The arguments of the prosecuting attorney in this case far exceeded propriety and the rules of restraint properly imposed upon him by reason of his quasi-judicial position under the above-stated principles.

The defendant was charged with assaulting an officer, not with car theft; no prior criminal conviction was shown, and yet in his arguments the prosecutor referred to him as a “professional”, a “pro”, a “professional car thief” and as engaged in “stealing cars”, and thus branded him with being a “criminal” of “that class or kind”. Nothing in this record would justify the application of those names or epithets to this defendant nor were these arguments in reply to any argument or statements of defense counsel. It is apparent that these arguments constituted inflammatory appeals to arouse the jurors to personal hostility toward the defendant as a hardened criminal.

While no objection was made to these arguments during the trial, the matter was raised in the motion for a new trial. The cumulative effect of these arguments, the very lack of objection, the failure of the trial court to take any action even in the absence of objection, resulted in a prejudicial and inflammatory trial atmosphere, deprived the defendant of his right to a fair and impartial trial, resulted in manifest injustice cognizable under Rule 27.20(e), Rules of Criminal Procedure, as plain error, and requires the granting of a new trial. State v. Heinrich, supra.

This conclusion makes it unnecessary to decide the defendant’s second and third points asserting error in the trial court’s ruling excluding alibi witnesses under the provisions of Rule 25.31 and Rule 25.34, Rules of Criminal Procedure, and calling into question the constitutionality of Rule 25.34. The matters will doubtless not arise upon a new trial.

Reversed and remanded for a new trial.

All concur.


text:
    STATE of Missouri, Respondent, v. William S. ROTH, Appellant.
    No. KCD 28797.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The defendant was convicted of murder in the second degree and sentenced to a term of eighteen years according to the verdict of the jury. On this appeal the defendant contends that the comment of the prosecutor in closing argument that the self-defense story asserted at the trial was not told to the police at the time of arrest violated his privilege against self-incrimination. We agree and reverse and remand.

The evidence shows that defendant and one Carlos Savage shared a room at a modest residential hotel. There had been some acrimony between them because a child whom Savage kept for another interfered with the sleep of defendant after his return from work in the early mornings. On the day of the event, the defendant returned to the apartment after a day of work and barroom tippling until the closing hour, and an argument commenced between them about the child. The defendant testified that Savage gained a .22 caliber pistol from a drawer where the defendant kept it, pointed the weapon at him, and in the attempt to wrest it from Savage, the revolver discharged.

Another hotel guest, Ms. Beverly Maynard, heard a loud argument down the hall and the report of a pistol shot as she waited for the elevator. She then saw Savage stagger from the room onto the hallway and fall. The defendant then emerged from the apartment with a gun in his hand.

The defendant attempted to avoid the police, but was arrested in the parking lot which adjoined the hotel and the pistol was recovered where he dropped it. The defendant was informed of his Miranda rights at the scene, and when advised of the charge against him remarked: “Oh, did somebody die? He must have had a heart attack.” He was then taken to police headquarters where he commented to two police officers: “You can kill a man with a .22 if you know what you’re doing.” The defendant denied these statements.

The defendant took the stand and testified that he shot Savage in defense of his own life. He admitted a number of prior convictions for crime, and explained that the pistol was a possession from an earlier employment as a sheep tender when the instrument was used to destroy deformed and diseased livestock.

The first part of the prosecution summation went without incident on the issue here. The defendant then followed with an argument that the statements reported by the officers as made by the defendant— that the death must have been from a heart attack and that a .22 caliber pistol could be lethal — were not incriminating but merely the expressions of a confused mind, and that nothing said by the defendant to the three officers admitted a crime. To this the prosecutor replied:

MR. EDWARDS: All right. Let’s assume that he’s afraid because he’s a convict he wouldn’t get a fair shake. But now he already knows somebody has seen him out in the hall, so he’s taking the gun and himself away. But he’s arrested. Once he’s arrested, gentlemen, that logic, if it does exist, of his fear of being a convict vanishes. Nowhere did he tell the policemen then, after he was arrested, when it would work to his benefit—
MR. BLOEMKER: I’m going to object to this as being improper argument.
THE COURT: Overruled.
MR. BLOEMKER: Just a second.
(Counsel approach the bench and the following proceedings were had:)
MR. BLOEMKER: Judge, he’s attempting to make a comment upon the fact that the defendant chose not to say anything. Obviously, that’s improper.
MR. EDWARDS: It is not improper once the defendant has testified, Your Hon- or.
MR. BLOEMKER: But he’s commenting upon whether the defendant made a statement or not, way back then.
THE COURT: Your objection is overruled.
(The proceedings returned to open court.)
MR. EDWARDS: (Continuing)
So, at the time after he’s arrested and that logic vanishes, he did not say a word about self-defense, about Carlos Savage with the gun, about anything, when it would do him some good. This is six months later, gentlemen. Do any of you suppose there’s really a Perry Mason and a defendant, a cool defendant, as you’ve seen this one to be, calm and collected, sitting there, is going to burst out and say, Oh, yeah, I did it, put me away? Nonsense. That’s as nonsensical an idea as the story you are asked to believe about self-defense against a non-violent man sitting there reading a Bible and is supposed to make a transition from a Bible to a pistol, instantaneously, with no other response.

It is clear beyond doubt that the prosecution argument was a comment that — contrary to his trial position that self-defense justified the homicide — the defendant made no such claim of exculpation to the police at the time of arrest. The right of a criminal accused to be free from compulsory self-incrimination embraces not only the prerogative to remain silent but also that such silence shall not be allowed to prove guilt. State v. Elmore, 467 S.W.2d 915, 917[2] (Mo.1971). This protection begins, not at the trial, but with the inquisition preliminary to prosecution. Helton v. United States, 221 F.2d 338, 341[7—9] (5th Cir. 1955). Thus, the silence of the accused when under judicial charge or simply under arrest cannot be shown against him [State v. Foley, 144 Mo. 600, 46 S.W. 733, 738 (1898)] because he is under no duty to speak. State v. Stuard, 456 S.W.2d 19, 22[3, 4] (Mo. banc 1970).

These principles take an added significance in the perspective of the Miranda warnings which now precede arrest by Fifth Amendment mandate. Miranda v. Arizona, 384 U.S. 436, 467 et seq., 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). That litany includes advice to an accused [as was given to this defendant] that he may remain silent. It has been held recently by the United States Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) that where the Miranda warnings are given, it is fundamentally unfair for a prosecutor to impeach a defendant by cross-examination to show that his exculpatory story was told for the first time at the trial. Such a procedure misuses the Fifth Amendment right of an accused to post-arrest silence and itself violates constitutional due process.

The defendants in Doyle testified at the trial that the narcotics prosecutions against them had been framed. On cross-examination they were asked why they had not told the frame-up story to the officers at the time of the arrest. The objections to such questions were overruled by the trial court. This line of inquiry was found to be constitutionally invalid by Doyle, 96 S.Ct. l.c. 2244 et seq.:

The warnings mandated by [Miranda ], as a prophylactic means of safeguarding Fifth Amendment rights ... require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights.
Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. . Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.
We hold that the use for impeachment purposes of petitioner’s silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.

It is evident, therefore, that prosecution impeachment of the post-arrest silence of an accused not only violates the self-incrimination clauses of the Fifth Amendment to the Federal Constitution and Article 1, § 19 of the Missouri Constitution [Stuart, Elmore, Foley, supra, and State v. Butler, 512 S.W.2d 466 (Mo.App.1974)], but since Miranda also results in denial of constitutional due process. We are compelled to conclude that the closing argument of the prosecutor which referred to the post-arrest silence of the defendant prejudiced the jury verdict of guilt, unless — as the prosecutor contends — the defendant provoked his retaliation. For this contention the State cites State v. Whiteaker, 499 S.W.2d 412 (Mo.1973). In that case, defense counsel argued in his closing argument that the straightforwardness and honesty of his client was demonstrated by giving testimony on the stand when he was not required to do so. In rebuttal the prosecutor sought to refute the trial testimony of the defendant that because of amnesia he had no memory of the event, by emphasizing that the defendant had originally denied knowledge of the shooting to the police, and was bound by that story. The appellate court rejected the defense contention that the prosecutor had no more right to comment on the fact that defendant did testify than on failure to testify, and concluded that the prosecutorial argument was retaliatory and a proper comment on the credibility of defendant.

Whiteaker was a direct prosecutorial response to the argument of the defendant that he had voluntarily taken the stand and thereby showed himself to be worthy of belief, by the answer that his trial testimony was inconsistent with his original narration to the police. The case here is altogether different: the defense argument in no wise commented on the silence of the defendant at the time of arrest. Rather, the sense of his argument was that prolonged interrogation of the defendant yielded nothing to incriminate him — including the remark attributed to him concerning the lethal effects of a .22 caliber gunshot. According to the State, the defense emphasis on the lack of incriminatory statements by the defendant invited prosecution response that no exculpatory statements were made by him at that time — including the claim of self-defense. There is no logical relation between the puissance of a .22 «li-ber revolver to inflict death and the claim of self-defense. Nor is there any contradiction between the trial testimony that the homicide was justified and the closing argument of defense counsel that after he was apprehended the defendant never “told anyone he wanted to kill Carlos Savage or had any sort of malice or held any sort of ill will towards Carlos Savage.” To the contrary, this argument and the claim of self-defense — a homicide done without malice— are altogether consistent. Nor is there any contradiction between a claim of self-defense made for the first time at trial and silence on that claim at the time of arrest. That is because an accused is under no more duty to speak at arrest than at the trial. State v. Elmore, supra, l.c. 917.

We reject the contention made by the prosecutor to the trial judge that the defendant waived comment on his pretrial silence by his appearance on the witness stand. An accused does not relinquish the benefits of his silence at a preliminary stage of the prosecution because he later takes the stand to show his innocence. The right given by the constitution against self-incrimination imports a freedom of exercise unburdened by the peril of misuse as a means of impeachment should the one under the claim of its protection ever attempt to show his innocence. State v. Conway, 348 Mo. 580, 154 S.W.2d 128, 134[15] (1941); State v. Stuart, supra, l.c. 22.

The argument of the prosecutor was neither retaliatory nor invited by the remarks of defense counsel, but rather was a comment on the silence of the defendant at the time of arrest and, as such, allowed the inference that the claim of self-defense was a fabrication.

Accordingly, the judgment is reversed and remanded.

All concur.


text:
    STATE of Missouri, Respondent, v. Ronald L. WILLIAMS, Appellant.
    No. KCD28911.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Day Miller, Maysville, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

This appeal comes from an order which denied movant relief under Rule 27.26 from a judgment of consecutive terms of ten years and five years for burglary second degree and stealing.

The movant contends he was denied a fair trial because of ineffective assistance of counsel who, according to contention, failed to disqualify the trial judge and failed to interview alibi witnesses. At the 27.26 hearing, after evidence by the mov-ant, the trial prosecutor and trial counsel for defendant, the court concluded the mov-ant had not met his burden of proof and denied relief. We affirm that judgment.

On the issue of alibi witnesses, the evidence shows that trial counsel was appointed to defend the movant in August of 1973. While criminal trial pended, defendant broke from the county jail, was captured and charged with escape. It befell trial counsel to represent the defendant for the jail break, and he was so occupied until December of that year, when the prosecution ended with a jury verdict against the defendant. There had been some casual mention by the defendant of alibi witnesses to the burglary and stealing charges, but they were never identified to counsel. At the conclusion of the escape litigation in December of 1973, counsel wrote movant for the names and addresses of the witnesses, but received no response until the following February. Then, within the month, counsel interviewed the witnesses and took their statements. They could not recall the events on the day in question, even had they been called upon to do so much earlier, and were not useful on the issue of alibi. This evidence shows reasonable diligence of trial counsel and no unfairness to the defendant. We agree with the judgment that movant failed his burden of proof on that issue.

The second point contends the failure of trial counsel to disqualify Circuit Judge Kenneth R. Lewis from the conduct of the burglary and stealing adjudication deprives him of a fair trial.

The evidence, taken most favorably to the judgment, shows that the burglary and stealing prosecutions were commenced in Livingston County, but because that venue was without an operative common jail, the defendant was held at Carroll County. His escape was from that confinement and the jail break was tried before Circuit Judge Lewis in Livingston County. At the request of the defendant, counsel obtained a change of venue from Livingston County for the trial of the burglary and stealing charges, but did not seek to disqualify Judge Lewis. The defendant did not specifically request his counsel to disqualify the judge, nor did he otherwise insist that be done — perhaps because counsel reassured defendant that Judge Lewis would give him a fair trial. The venue was changed to DeKalb County, within the judicial circuit served by Judge Lewis who then presided over the jury trial for burglary and stealing and by whose order the ten year and five year sentences were made to run consecutively.

The movant testified he had specifically instructed counsel that he did not choose to be tried the second time before Judge Lewis. This conversation could be construed to have taken place very shortly before the scheduled trial, and thus not timely for the formal request for disqualification then required by the rules of procedure. If this contention of ineffective assistance of counsel is to be understood also to mean that a diligent exercise of professional judgment in the circumstances would have undertaken disqualification even without request by the client, we do not believe such a lapse denied the defendant a fair trial. It may be that a prudent professional judgment would have avoided a criminal trial before the same judge who had presided at the recent conviction of the client on a related transaction — and thus have lessened the chance of imposition of consecutive sentences for the subsequent conviction, but we agree with the trial court that such a lapse does not prove the denial of a fair trial as a matter of law. Johnson v. State, 516 S.W.2d 500, 501[2, 3] (Mo.App.1974). The work of defense counsel was marked by professional diligence and loyalty at the trial and on the appeal which he then submitted on behalf of the defendant.

It is apparent that the movant here, until now, did not feel aggrieved by any lack of diligence or interest of his counsel in his cause. In fact, at the trial, his counsel twice inquired of the defendant on the record whether his services had been satisfactory, to which the defendant answered affirmatively. The evidence does not allow the inference that the defendant was prejudiced by the conduct of his counsel. Any disadvantage which the defendant now sees is only supposititious and does not meet his burden of proof. Haynes v. State, 534 S.W.2d 552, 554[4] (Mo.App.1976).

The judgment is affirmed.

All concur.