author: PER CURIAM.

text:
    Tom CURTIS, District Attorney, Petitioner, v. Edward B. NOBLES, Judge, Respondent.
    No. 9154.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 17, 1979.
    Rehearing Denied Oct. 31, 1979.

      Thomas A. Curtis, Dist. Atty., Amarillo, pro se.
    Joe Harlan, Gibson, Ochsner & Adkins, Amarillo, for respondent.
   PER CURIAM.

In this original proceeding, Tom Curtis, District Attorney of the 47th Judicial District, was granted leave to file a petition seeking a writ of mandamus against the Honorable Edward B. Nobles, Judge of the 108th Judicial District Court. The district attorney seeks to compel Judge Nobles to withdraw his 4 September 1979 order for a temporary injunction entered in Cause No. 59,147 pending on the docket of the 108th Judicial District Court, and to enter an order for a temporary injunction in compliance with our mandate issued in Southwestern Newspapers Corp. v. Curtis, 584 S.W.2d 362 (Tex.Civ.App. — Amarillo 1979, no writ), which directed the issuance of a writ of temporary injunction denied by the trial court. We conditionally grant the writ.

Our jurisdiction to entertain the mandamus proceeding has been challenged on behalf of Judge Nobles. It suffices to state that when a court of civil appeals has mandated the trial court to enter a particular judgment, jurisdiction over the matter remains with the appellate court until the particular judgment has been entered, and compliance with the mandate may be enforced by writ of mandamus. Witherspoon v. Daviss, 163 S.W. 700 (Tex.Civ.App. — Austin 1914, no writ). Accord, Salgo v. Hoffman, 521 S.W.2d 922, 925 (Tex.Civ.App.— Dallas 1975, no writ); Uvalde Paving Co. v. Brooks, 86 S.W.2d 49, 51 (Tex.Civ.App.— Dallas 1935, no writ).

Consequently, there properly is before us the question whether the trial court’s 4 September 1979 order for a writ of temporary injunction is in compliance with the mandate we issued in Southwestern Newspapers Corp. v. Curtis, supra. We conclude that the temporary injunction order, which transgresses the circumscription of the trial pleadings and evidence, is broader than the direction of our mandate to afford the relief pleaded for and proved.

In the trial court’s pending Cause No. 59,147, Southwestern Newspapers Corporation, a newspaper publisher, brought an action against Tom Curtis, the 47th Judicial District Attorney,

seeking consecutive orders to temporarily restrain, temporarily enjoin and permanently enjoin the district attorney. The publisher sought to temporarily restrain and temporarily enjoin the district attorney from enforcing a rule denying the publisher and its reporters access to official news sources in the office of the district attorney without an appointment, which is not required of other news media personnel. On a final hearing, the publisher seeks, in addition to the enjoinment of the appointment requirement, an order “to accord to Plaintiff [Southwestern Newspapers Corporation] and its reporters and representatives all rights, privileges, and courtesies given to another member of the news media.” (Emphasis supplied.)

Southwestern Newspapers Corp. v. Curtis, supra, at 363. The trial court refused the application for an ex parte temporary restraining order and, after hearing the publisher’s evidence bearing on the pleaded right to a temporary enjoinment, denied a temporary injunction. The publisher appealed.

The italicized portion of the above cited pleadings described the action that should be temporarily enjoined, thereby circumscribing the matter for consideration by the trial court and this Court on appeal. By this pleading, the publisher explicitly requested the temporary enjoinment of the district attorney from enforcing his appointment-for-access rule imposed only against the publisher and its reporters. This was the sole issue; no other aggravation warranting temporary relief was mentioned.

Given the explicit pleadings for temporary injunctive relief, we noticed the legal principles, constitutional and otherwise, governing the varying positions the parties adopted with respect to the pleadings, and we reviewed the evidence adduced to support the relief pleaded. After considering these matters in their proper perspectives, we wrote:

Upon the pleadings and proof, the publisher established its entitlement to a preservation of the status quo pending a trial on the merits of the right to a permanent injunction.

584 S.W.2d at 368. Next, determining that the specificity requirements of the injunction statute posed no bar to the relief sought and to be granted, we declared:

The only relief pleaded for and merited by the evidence is simply the temporary enjoinment of the district attorney, until a final hearing is held, from requiring the publisher and its reporters to make appointments for access to official news sources available in the district attorney’s office to representatives of other news media without the requirement of appointments.

584 S.W.2d at 368-69. Then, by way of recapitulation, we said:

In summary, the law mandates that, absent some compelling government interest to the contrary, the publisher and its reporters are entitled to the same access and, within reasonable limits, access with equal convenience to the official news sources in the district attorney’s office as are accorded to representatives of other news organizations. Such access has been denied to the publisher and its reporters by the district attorney’s imposition of the requirement of appointments, which are not required of representatives of other news organizations. Under this record, the evidence does not support any legal theory upon which the trial court’s judgment denying a writ of temporary injunction can be upheld and, consequently, the court abused its discretion by denying a writ of temporary injunction.

584 S.W.2d at 369. We remanded the cause to the trial court with instructions to proceed with the issuance of the writ of temporary injunction in accordance with our opinion. Upon receipt of the mandate, the trial court entered its order for the issuance of

a writ of injunction pending final hearing and determination of this cause restraining and enjoining the Defendant TOM CURTIS and all persons in active concert and participation with him from:
1. Requiring SOUTHWESTERN NEWSPAPERS CORPORATION dba AMARILLO GLOBE-NEWS and its reporters to make appointments for access to official news sources available in the District Attorney’s office to representatives of other news media without the requirement of appointments; and
2. Denying SOUTHWESTERN NEWSPAPERS CORPORATION dba AMARILLO GLOBE-NEWS and its reporters the same access within reasonable limits to the official news sources in the District Attorney’s office with equal convenience as accorded to representatives of other news organizations.

The injunctive command expressed in paragraph 1 of the court’s order is the only temporary relief prayed for by the publisher and merited by the evidence as set forth in our opinion. While the writing appearing in paragraph 2 of the order stems from language found in our opinion, the analogous language in the opinion was not used with reference to a pleaded claim of a right denied from which temporary relief was sought; instead, the language merely positioned the constitutional right underlying the publisher’s specifically pleaded denial of access by the requirement of appointments imposed only on it and its reporters.

Except for the establishment of denial of access by the requirement of appointments, the publisher neither pleaded nor presented evidence to show that it and its reporters otherwise were denied equal access with equal convenience to official news sources in the district attorney’s office as is accorded representatives of other news media organizations. Thus, the relief purportedly granted in paragraph 2 of the injunctive order, akin only to the relief pleaded for on a final hearing on the merits, is unauthorized by the pleadings and the evidence adduced thereunder for a temporary injunction, and is not in compliance with our mandate.

It is, of course, axiomatic that a judgment shall conform to the pleadings and the nature of the case proved. Tex.R. Civ.P. 301. Therefore, a party must recover in the right in which he sues and upon proof of the facts stated in his pleadings, and he cannot recover through a right not asserted. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130, 132 (1942).

The only relief pleaded for and proved by the publisher and justified under our mandate is the relief expressed in paragraph 1 of the court’s injunctive order. We are confident that Judge Nobles will withdraw his 4 September 1979 order and, in lieu thereof, issue a similar order for a writ of temporary injunction which does not contain the language appearing in paragraph 2 of the replaced order. The writ of mandamus will issue only if he should fail to do so.

The writ of mandamus is conditionally granted.

All costs of this proceeding have been paid and, because Judge Nobles acted in his judicial capacity, no costs are adjudged against him.


source: Caselaw Access Project

author: PARK, Judge.

license: Public Domain

text:
    Gilbert Y. McFADDEN, Appellant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and Postal Data Center, Appellees.
    Court of Appeals of Kentucky.
    Sept. 22, 1978.
    Paul M. Lewis, Elizabethtown, for appellant.
    Paul M. Cupp, Kentucky Unemployment Ins. Com’n, Frankfort, August Winkenkoper, Jr., Louisville, for appellees.
    Before COOPER, HOGGE and PARK, JJ.
   PARK, Judge.

The sole question presented by this appeal is whether Gilbert Y. McFadden is disqualified from receiving unemployment compensation benefits because he left his employment with the United States Postal Service “voluntarily without good cause.” McFadden was compelled to retire when he reached the mandatory retirement age of 70 years. The Kentucky Unemployment Insurance Commission (KUIC) denied McFadden’s claim for unemployment benefits. McFadden appeals from a judgment of the Hardin Circuit Court affirming KUIC’s order.

McFadden was first employed by the United States Postal Service in July 1958. For the first three years, McFadden was employed as a substitute postal employee. Thereafter, he became a full time career employee with the Postal Data Center at Fort Knox, Kentucky. On February 20, 1974, McFadden celebrated his 70th birthday, and his employment was terminated at the end of the month. Upon his retirement, McFadden received a federal pension of $580.00 per month based upon 20 years of service with United States Army and 15 years of service with the United States Postal Service. In addition, he receives approximately $150.00 per month in social se-. curity benefits.

KRS 341.370(2)(c) provides that a worker is disqualified from receiving unemployment benefits if he “left his most recent suitable work voluntarily without good cause.” See also KRS 341.530(3) relating to charges against an employer’s reserve account. McFadden contends that he wished to continue his employment with the Postal Service and that his retirement was not voluntary within the meaning of KRS 341.370(2)(c).

On this appeal, McFadden asserts that he was unaware that the Postal Department had a mandatory retirement age of 70 years until he received a notice dated October 9, 1973, informing him that he would be retired effective February 28, 1974, following his 70th birthday. He so testified in the hearing before the referee. However, KUIC also had before it McFadden’s sworn testimony before a KUIC claims examiner that he knew about the mandatory retirement age at the time he started working for the Postal Department. At the time of his initial employment by the Postal Service in 1958, and at all times thereafter, civil service employees of the Postal Department were subject to mandatory retirement upon obtaining the age of 70 years under acts of Congress. McFadden acknowledged that he was aware that deductions from his compensation were made to a retirement plan when he became a full-time career employee following the three years as a temporary employee.

In determining whether an employee is deemed to have voluntarily quit his employment when terminated because he has reached a specific age, KUIC has applied a three-fold test. First, the mandatory retirement must have been pursuant to a general plan. Second, the plan must provide benefits to the employee who is terminated upon reaching the mandatory retirement age. Third, there must be some act of volition on the part of the employee. In other words, there must be some tangible act on the part of the employee which denotes his acceptance of the terms of the plan including the provisions for mandatory retirement. KUIC concluded that McFadden voluntarily accepted all of the terms and conditions of employment in effect at the time he first went to work for the Postal Service, including mandatory retirement at age 70.

The courts are split on the question whether an employee is disqualified from receiving unemployment compensation benefits when laid off pursuant to a mandatory retirement plan. A number of courts have held that mandatory retirement is by its nature a forced retirement rather than an act of volition by the employee. These courts have focused upon the situation at the time of termination of employment for the purpose of determining whether the employee left voluntarily. An equal number of courts have adopted a rule that the employee is disqualified from receiving unemployment compensation benefits when he accepts or retains employment with knowledge of a compulsory retirement plan. These cases focus attention on the circumstances existing at the time the employee first becomes subject to the retirement plan rather than the actual time of retirement. The employee is deemed to have voluntarily left work on the theory that he agreed to quit work when he attained the prescribed mandatory retirement age. See the Annotation, 50 A.L.R.3d 880, 882-86 (1973); Richardson v. Maine Employment Security Commission, Me., 229 A.2d 326, 329-30 (1967). The Kentucky cases follow the second line of cases which ask whether the employee has agreed to the retirement plan which contains a provision for mandatory retirement at a prescribed age.

In Kentucky Unemployment Insurance Commission v. Kroehler Manufacturing Company, Ky., 352 S.W.2d 212 (1961), the court considered a voluntary retirement plan which contained a provision for retirement at age 65. An employee’s initial participation in the retirement plan was entirely voluntary. The employee was permitted to withdraw from the plan anytime prior to retirement, and the employee was entitled to make a special request to continue in employment upon reaching the age of 65 years. Because the employee’s decision to participate in the retirement plan was voluntary, the court concluded that the employee’s subsequent retirement under the terms of the plan constituted a voluntary quitting of his employment. In the present case, McFadden had no choice respecting his participation in the retirement plan of the Postal Service after he had made his initial voluntary decision to accept employment with the Postal Service. However, it must also be noted that the decision in the Kroeh-ler case rejected one of the cases relied upon by McFadden in his brief on this appeal, Warner Co. v. Unemployment Compensation Board of Review, 396 Pa. 545, 153 A.2d 906 (1959).

In Kentucky Unemployment Insurance Commission v. Reynolds Metals Company, Ky., 360 S.W.2d 746 (1962), the court extended the decision in the Kroehler case to employees participating in a retirement plan pursuant to a collective bargaining agreement negotiated for them by their labor union and ratified by their vote. The court held that an employee’s retirement pursuant to the plan constituted a voluntary termination of his employment because he voluntarily accepted the retirement plan which provided for termination of his employment. Consequently, the court concluded that he was not entitled to unemployment insurance benefits.

On this appeal, McFadden relies principally upon the decision in Kentucky Unemployment Insurance Commission v. Young, Ky., 389 S.W.2d 451 (1965). In that case, Young had been employed by the Whayne Supply Company for eighteen years when the company adopted a policy that all employees must retire upon reaching the age of 65 years. The new policy left Young with only two years to work before his employment was terminated. The new retirement policy adopted by Whayne Supply Company did not offer a pension plan affording any benefits to Young. The court held that Young did not voluntarily quit his employment. In this case, the pension plan provides substantial retirement benefits, and it was in effect at the time he first accepted employment.

KUIC’s decision denying benefits to McFadden is supported by the opinion of the Supreme Court of Maine in Richardson v. Maine Employment Security Commission, supra. In the Richardson case, Richardson’s employment with the Postal Service was terminated when he attained the mandatory retirement age of 70 years. As in this case, Richardson was ready, willing and able to continue his employment with the Postal Service. The court recognized that Richardson was receiving pension benefits as a retired Postal Employee which mitigated the economic insecurity which the Unemployment Compensation Act was designed to alleviate. Relying in part upon the decision of this state’s highest court in the Kroehler case, the Maine court denied unemployment compensation benefits to Richardson. In effect, the employee agrees to quit work when he attains the mandatory retirement age if he accepts and retains employment with knowledge of a pension plan providing for mandatory retirement.

In its order, KUIC found that the Postal Service retirement plan, including provisions for mandatory retirement at age 70, were a part of the working conditions to which McFadden agreed when he accepted employment with the Postal Service. Notwithstanding his later denials, there was evidence in the record that McFadden was aware of the mandatory retirement policy at the time he first went to work at the Postal Service. The findings of KUIC are supported by substantial evidence in the record. Consequently, they are binding on this court. Southern Bell Tel. & Tel. Co. v. Kentucky Unemployment Insurance Commission, Ky., 437 S.W.2d 775 (1969); Brown Hotel Co. v. Edwards, Ky., 365 S.W.2d 299 (1963). We agree with KUIC that McFadden’s termination of employment with the Postal Service did involve an act of volition on the part of McFadden. Cf. Churchill Downs, Inc. v. Kentucky Unemployment Insurance Commission, Ky., 454 S.W.2d 347, 348 (1970). McFadden accepted employment with knowledge of a plan providing for mandatory retirement and substantial retirement Benefits. KUIC did not err in holding that McFadden voluntarily left his employment with the Postal Service.

The judgment of the circuit court is affirmed.

All concur.

      . Mandatory retirement at age 70 has been applicable to civil service employees since the enactment of the Civil Service Retirement Act of 1920, Pub.L.No. 66-215, § 6, 41 Stat. 617 (May 22, 1920). At the time of McFadden’s initial employment, the rule was incorporated in 5 U.S.C. § 2255, Pub.L.No. 84-854, ch. 804, § 401(5), 70 Stat. 748 (July 31, 1956). At the tíme of his termination, the provision appeared in 5 U.S.C. § 8335, Pub.L.No. 89-554, ch. 83, § 8335, 80 Stat. 571 (Sept. 6, 1966). This statute has since been repealed by the Age Discrimination in Employment Act Amendments of 1978, Pub.L.No. 95-256, § 5, 92 Stat. 191 (April 6, 1978).


author: LESTER, Judge.

text:
    Ricky Dean ABNEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 1, 1979.
    Discretionary Review Denied Nov. 13,1979.
    Jack Emory Farley, Public Advocate, Timothy T. Riddell, Asst. Public Advocate, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Nancy S. Marksberry, Reid James, Asst. Attys. Gen., Frankfort, for appellee.
    Before HOGGE, LESTER and WIL-HOIT, JJ.
   LESTER, Judge.

Ricky Abney appeals his judgment of conviction of first-degree burglary and possession of burglar’s tools which imposed a ten-year sentence of incarceration.

Appellant and David Finn were charged with burglarizing the house trailer of one Harrell Kinser in Bowling Green on April 16,1979. On the evening in question, police officers of the city and Warren County observed a vehicle containing three people pull up to the mobile home. Two of the occupants then got out, went to the door and forced it open. In the meantime, the car they had arrived in had been driven away. The police agents, having received information that the trailer was going to be broken into, placed two of their number in an unmarked station wagon which had been parked so as to afford a view of the door, while two others were in an adjoining trailer. After the break-in occurred, the police identified themselves and ordered the two men to come out of the residence, and in response thereto, Finn and Abney came outside. The officers could not identify the driver of the car.

Appellant related that he had been in the company of his stepfather’s brother, Jerry Riggsbee, from ten or eleven o’clock A.M. until he was dropped off in front of the trailer on Sunday, April 16, 1978. During the entire day, they drank beer and shot pool. Prior to going to the American Legion post during the afternoon, Abney and Riggsbee ran into Finn, who made inquiry as to how to get some beer from a bootlegger. Riggsbee supposedly said that if he could find some beer that he would pick him (Finn) up at his house and they would get it later that evening. About eight or nine P.M., appellant and Riggsbee picked up Finn at his house and they traveled to Kinser’s trailer, where Abney says he and Finn knocked on the door and a voice invited them in. The two defendants denied breaking open the door or doing any mischief inside the mobile home. Furthermore, they were unaware that Riggsbee drove away.

At the trial appellant attempted to introduce, through a deputy circuit court clerk, a prior burglary conviction of Jerry Riggsbee, but the court sustained an objection thereto since Riggsbee was not a witness. The theory of the defendant was since Kinser had testified he had left his trailer about 9:00 A.M. and had not returned, that the possibility existed that Riggsbee could have burglarized it prior to meeting Abney, and by taking the two defendants to the scene of the crime that evening he was actually setting them up to take the blame. The purpose of seeking to introduce the record was an attempt to place in the jurors’ minds the propensity of Riggsbee for such offenses with the hope that the jury might have thought that Riggsbee gave the anonymous tip to the police and that he was the actual culprit who then “set up” Abney and Finn to divert attention from himself.

Appellant was indicted on April 19, 1978, and two days later he was arraigned and counsel was appointed to defend him. He made bond on June 2, and trial was held on June 19, 1978. On the day that he was to be tried, Abney caused a subpoena to be issued for Riggsbee, but it was returned the same day as “not served” since “Mr. Riggs-bee is in Cocomo (sic), Ind. at the Lawrence Hicks residence.” We note that the record discloses that appellant knew his trial date because by order of April 21, 1978, it was set for 9:30 A.M., June 19, 1978. Since appellant has at no time alleged ineffective assistance of counsel, we assume that Ab-ney and his lawyer adequately discussed the facts and the theory of the defense, and there was ample time to invoke the provisions of the Uniform Act to secure the attendance of witnesses who were absent from this jurisdiction. Indiana subscribes to the act.

We agree with appellant that “it may be true that the evidence of Riggsbee’s past criminal activity may not have been admissible under the traditional rules of evidence,” but since we do not believe that any “constitutional right to defend himself to the fullest” has been denied, we refrain from “bending” the rules. The Commonwealth has every right to cross-examine a defense witness, but it is unable to interrogate a record of the circuit clerk. Under the circumstances of this case, we cannot say that any error has been committed.

The second and last assignment of error is that the burglary indictment was defective. The true bill before us charges that Abney entered the trailer to “commit a crime of burglary,” and he argues that it should have recited “with intent to commit a crime.” Without reviewing the details of the argument, we consider it sufficient to point out that if the indictment informs the accused of the specific offense with which he is charged, it is sufficient. RCr 6.10; Wylie v. Commonwealth, Ky., 556 S.W.2d 1 (1977). If the defendant has any doubts, he can move for a bill of particulars, RCr 6.22, and Abney made no such motion. Moreover, since there was no objection to the indictment either before or after trial, the issue is not preserved for appellate review. Harrison v. Commonwealth, Ky.App., 559 S.W.2d 744, 745 (1977).

The judgment is affirmed.

All concur.


author: VANCE, Judge.

text:
    James Elmore HAWES, Appellant, v. WESTVACO CORPORATION and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Oct. 5, 1979.
    Bill Graves, Paducah, for appellant.
    Earle T. Shoup, Paducah, for appellee Westvaco Corp.
    Before HOGGE, REYNOLDS and VANCE, JJ.
   VANCE, Judge.

The question is whether the Workmen’s Compensation Board may limit an award to the schedule benefits enumerated in K.R.S. 342.730(l)(c) 22 for an injury which resulted in a 15% functional disability to the leg?

The appellant sustained an injury to his right knee in March, 1975. He worked in a laboratory, and following the injury he has returned to work at the same job and at a higher rate of pay.

His condition was diagnosed as chondro-malacia of the patella and was treated surgically by shaving the patella. Although he has now returned to work and is able to perform the duties of his job, his treating physician indicated that it would be reasonable to anticipate future complications. Based upon the likelihood that future treatment will be required and upon the findings when surgery was performed, the doctor established a 15% functional disability to the knee. Heavy lifting, excessive stair climbing or squatting, or any activity that causes contraction of the quadriceps under force, will have some tendency to aggravate the condition.

The Board made a finding that this claim should be scheduled pursuant to K.R.S. 342.-730(lXc) 22 and thus limited benefits to 15% loss to the leg. The circuit court affirmed.

K.R.S. 342.730(l)(e) 27 provides that compensation benefits shall not be limited to the scheduled losses if the injury adversely affects a workman’s ability to labor or limits his occupational opportunities to obtain the kind of work he is customarily able to do.

In Blair v. General Electric Company, Ky., 565 S.W.2d 631 (1978), it was held as a matter of law that the Board erred in limiting benefits to the scheduled loss statute for the loss of vision in one eye because loss of vision in one eye will necessarily limit a workman’s ability to labor and limit his occupational opportunities. It was held that the Workmen’s Compensation Board should have determined the extent of Blair’s occupational disability, and if the benefits for occupational disability would exceed those payable under the scheduled losses, Blair would be entitled to the greater benefits. In applying the reasoning of Blair, supra, to permanent partial disability cases, the Supreme Court in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, 284 (1978), states that,

[t]he procedure in permanent partial disability cases is to first determine the degree of disability as shown by the evidence presented, including wage loss. This figure is used in the computation scheme in subsection (lXb) to arrive at the amount due the employee. If the scheduled loss table is applicable, the amount due under that section is determined. This figure is compared with the figure arrived at by use of the (l)(b) computation formula. The employee is entitled to the greater award of these two.

No doubt if appellant in this case had lost a leg he, as a matter of law, would have sustained an injury of appreciable proportions, which would have limited his employment opportunities or shortened his work life, thus entitling him to measure of occupational disability even though he is now earning a greater wage than he earned when injured. However, appellant has not lost a leg, but has only injured his knee. His 15% functional disability to the knee has not prevented him from returning to work.

The real question in this case is whether the appellant has sustained an occupational disability which will entitle him to benefits larger than those provided by the scheduled loss. The answer to the question requires the factual determination of three other questions:

(1) Was the injury one of appreciable proportions?
(2) Will it probably shorten the appellant’s work life or limit his future employment opportunities?
(3) If questions (1) and (2) are answered affirmatively, then what is the percentage of occupational disability caused by the 15% functional disability to the knee?

See Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968).

The Workmen’s Compensation Board did not make a specific finding of fact on any of these issues. It did not make a finding as to whether the injury was appreciable or whether it would probably shorten appellant’s work life or limit his employment opportunities. It should make such determinations, and if it determines that occupational disability exists, it must then make the calculation and comparison required by Finn, supra.

Appellee Westvaco Corporation insists that the Board did make a finding that the injury was not appreciable or that it would not limit appellant’s employment opportunities or shorten his work life, at least implicitly, when it made the determination that the award was limited to K.R.S. 342.-730(lXc) 22.

This is a conclusion, not a finding of fact. If the Board had reached this conclusion because it had found that the injury was not appreciable or that appellant’s ability to labor was not limited by the injury, the only question on review would be whether the evidence was so overwhelming as to require a different finding.

But here no such findings were made, and for all we know the award may have been limited upon the mistaken notion that limitation was required since the injury was to a part of the body enumerated in the scheduled losses and without consideration of K.R.S. 342.730(l)(c) 27. In view of this, it is necessary that the case be remanded for further findings.

The judgment is vacated with direction that the case be remanded to the Workmen’s Compensation Board for additional findings and for entry of an award in conformity with those findings.

All concur.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert LAUSUSE, Appellant.
    No. 40237.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 28, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 15, 1979.

      Richard A. Fredman, Fredman, Watkins, Fredman & Kopf, Robert C. Babione, Public Defender, Nick A. Zotos, Asst. Public Defender, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Kathryn Marie Krause, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael L. Sullivan, Asst. Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction by a jury of assault with intent to maim with malice. He was sentenced by the court under the Second Offender Act to a term of twenty years in the Department of Corrections.

Defendant and the victim of the assault, Thelma Johnson, had previously dated and were spending the evening of June 4, 1977 with friends. The victim testified that at approximately 1:00 a. m., following time at several bars, she and defendant began walking toward her home when defendant asked that they go together to a motel. She refused and defendant then grabbed her by the arm. They continued walking; Ms. Johnson cooperated. When a car drove by, she ran into the street and began screaming. Defendant then grabbed her around the neck and pulled her away. She broke away a second time — after defendant had made her stop walking while he picked something up from the ground — and a struggle ensued. Defendant fell on top of her as they were running and began hitting her head. Ms. Johnson testified that she was struck more than five times, that she just felt “a pounding on [her] head” and that, at the time, she had no idea with what she was being hit; just that she felt a pounding with a hard object. She testified that defendant later told her he had used a piece of glass. Following this eruption, victim and defendant continued to walk until Ms. Johnson became dizzy. While the two were sitting in Fairgrounds Park, the police arrived, having received information that a woman was being assaulted in the vicinity of the park at Fair Avenue and Natural Bridge. The police discovered Ms. Johnson crying, bleeding around the head and neck. Defendant was found with blood on his hands and pants. At first Ms. Johnson said nothing to the officers. Ms. Johnson related the entire episode when away from the defendant. The officers searched the area but discovered no blood-stained piece of glass.

Ms. Johnson was treated at St. Louis City Hospital # 2 at 2:03 a. m. Medical records show that she received sutures for lacerations of the scalp and neck. She testified that she had seven stitches in her head and one in her neck.

No one other than the victim testified about events subsequent to 1:00 a. m. when Ms. Johnson and the defendant parted company with their friends. The defense’s evidence consisted of the testimony of two of those friends. They indicated that Ms. Johnson was drinking wine and smoking marijuana during the three hours that they were all together. Ms. Johnson testified only to having had several drinks.

Defendant first contends that the trial court erred by refusing to instruct the jury on the lesser included offenses of assault with intent to maim without malice and common assault. He claims: “This required the jury to find the defendant guilty of the higher offense of Assault with Intent to Maim with Malice where the facts in evidence arguably failed to show an essential element of that offense, the use of a piece of glass as a means of inflicting great bodily harm. In such a case instructions on the lesser included offenses are required if supported by the evidence.”

Whether an instruction on a lesser offense in an assault case is to be given, the controlling factor with respect to the submission of a lesser offense is whether the facts in evidence are sufficient to arguably show a lack of an essential element of the higher degree of the offense. State v. Howell, 524 S.W. 11, 21[10] (Mo. banc 1975). And it is clear that an instruction on the lesser offense — assault without malice — is required only if there is evidence to support such a submission. State v. Lane, 537 S.W.2d 569, 570[1] (Mo.App.1976).

No evidence was adduced at trial to support a submission of an instruction on assault without malice. Assault with malice is distinguished from assault without malice by the force or means by which the offenses are committed and the manner of the use of such force. State v. Webb, 518 S.W.2d 317 (Mo.App.1975); see also: Richardson, The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions, Assault, p. 18.

Since the means used and the manner of using such force constitutes the distinction between “with malice” and “without malice”, whether a weapon, force or means is deadly or likely to produce death or great bodily harm depends upon such factors as its nature, the manner and result of its use, and the comparative strengths and relative positions of the persons involved in the assault. State v. Ryan, 492 S.W.2d 116 (Mo.App.1973). Therefore, in order to determine which instruction or instructions to give, the court must engage “in a general weighing together of all the facts and circumstances including the comparative strength and positions of the parties, the presence or absence of ‘provocation’ or justifying, mitigating, excusing or aggravating circumstances, the weapon or means or force employed, the manner in which the weapon or force was employed, the injury sustained, etc.”. State v. Lee, 549 S.W.2d 934, 940[13] (Mo.App.1977).

Applying this weighing process to the facts adduced at trial, it is clear that, regardless of whether the means used was a piece of glass, the court was correct in refusing to instruct on assault without malice. Defendant was in a position of strength superior to that of Ms. Johnson, a hard object was used to hit a woman around the head: an area sensitive and highly vulnerable to hard blows, and the woman sustained injuries requiring surgical attention. Although defense witnesses indicated that the two were in harmony that evening and that both were drinking, no justifying, mitigating or excusing circumstances were set forth, and no evidence was presented by defendant to support an instruction on assault without malice. See State v. Surgeon, 456 S.W.2d 293 (Mo.1970); State v. Crossman, 464 S.W.2d 36, 41 (Mo.1971); State v. Goodman, 496 S.W.2d 850 (Mo.1973). The court did not err in refusing to instruct on assault without malice. Neither was it necessary for the court to submit an instruction on common assault.

Defendant next contends that the court erred in refusing his requested circumstantial evidence instruction. If the elements of the offense are established by both direct and circumstantial evidence the giving of a circumstantial evidence instruction is not required. State v. Newhart, 539 S.W.2d 486 (Mo.App.1976). Defendant overlooks the direct evidence in this case. Victim’s testimony as to what occurred and her recitation of defendant’s statement that he had used a piece of glass was sufficient direct evidence for the court to reject the circumstantial evidence instruction.

Defendant contends that the court erred when it permitted the prosecuting attorney to state to the jury that certain evidence was “uncontradicted” and that there was “no evidence to the contrary”. He contends that these references constituted a comment on defendant’s failure to testify. The first time that the prosecuting attorney stated that the facts were “pretty much, more or less, undisputed . . ”, defense counsel did not object. His later objection was untimely and therefore waived this objection and point of error. Moreover, such comments have repeatedly been held not to be improper comment on defendant’s failure to testify. See State v. Quillun, 570 S.W.2d 767 (Mo.App.1978).

Defendant further alleges that the court erred by “permitting the prosecutor to make speculations in his closing argument as to what might have happened had the police not arrived when they did”. In this point, and argument thereunder, defendant does not refer directly to any specific statement nor is any reference made to any page number of the transcript. He has not complied with Rule 84.04(h), and we cannot consider this point on review.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


text:
    John GRAY, Appellant, v. CITY OF FLORISSANT, Missouri, Respondent.
    No. 40537.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 28, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 15, 1979.

      Gary H. Lange, Bartley, Goffstein, Bólla-te & Lange, Clayton, for appellant.
    V. Jack Muehlenkamp, Dellwood, for respondent.
   REINHARD, Presiding Judge.

Plaintiff appeals from an order of the circuit court affirming the Personnel Commission of the City of Florissant in its disciplinary action against plaintiff for violation of Section 14r-30, Physical Requirements for Commissioned Personnel, Manual of Policies and Procedures of the Florissant Police Department.

Plaintiff became a police officer with the City of Florissant on July 10, 1967. The record reveals that plaintiff’s application for employment as an officer was initially rejected because he was overweight. Plaintiff was hired after having lost some weight and apparently he was hired pursuant to a stipulation that he would not again become overweight. On April 1,1976, specific minimum-maximum weight regulations for all commissioned personnel, including plaintiff, were established as part of the Manual of Policies and Procedures.

For a male officer of plaintiff’s height (5'5") the chart provided a weight range of minimum: 128 pounds, maximum: 171 pounds. Applying the 10% allowance to this range, plaintiff could have weighed a maximum of 188 pounds and still have been in compliance with the regulation standards. In November 1976 plaintiff was first informed that his weight exceeded the allowable maximum for his height. He was given 90 days in which to comply with the regulation. On June 24, 1977 — seven months from the time of initial notice— plaintiff was informed that he would suffer the loss of six recreational days as a result of his inability to lose weight. Plaintiff appealed to the Personnel Commission of the City of Florissant and, following a hearing, the Commission sustained the Police Chief’s disciplinary order. The Commission found that plaintiff “was given ample time to at least make an attempt to lose weight or offer evidence from a doctor of his choice that, for some reason, he was unable to physically lose or make an attempt to bring himself to the proper weight guidelines . ”. (Emphasis in the original). The Commission confirmed the finding that plaintiff was in violation of Section 14-30.

At the Personnel Commission’s hearing, the City offered into evidence the regulation, reports of Officer Gray’s weight at various intervals following his initial notice to comply, and evidence showing that Gray actually gained weight following the first notification. Plaintiff confined his evidence to that which tended to show that he was a good officer and that his weight had not affected his ability to function as an officer.

On appeal, plaintiff raises two points which, as alleged in the brief, overlap. However, we perceive plaintiff’s points to be that (1) the rule is unconstitutional on its face and that the trial court erred in failing to rule on the constitutional issue, and (2) the application of the rule to him is arbitrary and capricious.

Since plaintiff did not properly assert his constitutional claim in his Petition for Review, it was not preserved for circuit court review and thus the court committed no error by not expressly ruling on it. To properly raise a constitutional question plaintiff is required to: (1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; (3) state the facts showing the violation; (4) preserve the constitutional question throughout for appellate review. City of St. Louis v. Butler Company, 358 Mo. 1221, 219 S.W.2d 372 (Mo. banc 1949); Perez v. Webb, 533 S.W.2d 650 (Mo.App.1976).

Plaintiff’s Petition for Review states only that the action of the agency “is violative of constitutional provisions.” Such allegations do not comply with the second requirement set forth in City of St. Louis v. Butler Company, supra, for preserving constitutional questions for review. Furthermore, courts reviewing administrative decisions are not required to scour the record to perceive exactly what constitutional question a litigant is raising. Perez v. Webb, supra.

Although the constitutional claim has not been properly preserved, we have nevertheless considered the substance of plaintiff’s constitutional challenge. In his first point on appeal, plaintiff states only that the regulation creates an irrebuttable presumption violating his rights to due process. Plaintiff relies upon Turner v. Department of Employment Security and Board of Review of the Industrial Commission of Utah, 423 U.S. 44, 96 S.Ct. 249, 46 L.Ed.2d 181 (1975) as authority for this due process challenge. In Turner, the Supreme Court struck down a Utah statute which made pregnant women ineligible for unemployment benefits for a period extending from 12 weeks before the expected date of birth until six weeks after childbirth. The Court held the statute an unconstitutional violation of the Fourteenth Amendment noting that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause.” Id. at 46, 96 S.Ct. at 250.

Turner is, however, inapplicable to this case. In Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), the Supreme Court drew a distinction between those cases involving irrebuttable presumptions impinging upon fundamental rights pertaining to matters of marriage and family life and those wherein legislative choices concerning matters of economics, business and social policy were involved. In the latter category of cases, the Court held that the appropriate standard of review was whether the regulation in question bore any rational relationship to a legitimate legislative goal, and not the more exacting scrutiny applied in cases like Turner.

Under the rational relationship standard, plaintiff bears the burden of proving that the challenged regulation is irrational and he must negative every conceivable basis upon which the rule may be justified. Barhorst v. City of St. Louis, 432 S.W.2d 843 (Mo. banc 1967). The fact that a rule-making body has not stated any specific policy goal is not fatal to a finding that a regulation is valid. In reviewing the regulation, if there is any reasonable basis upon which it may constitutionally rest, the court must assume that the rule-making body had such facts in mind and passed the rule pursuant thereto. State v. Day-Brite Lighting, Inc., 362 Mo, 299, 240 S.W.2d 886, 893 (Mo. banc 1951) aff’d 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469 (1952) reh. den. 343 U.S. 921, 72 S.Ct. 674, 96 L.Ed. 1334 (1952).

The regulation challenged here clearly fits within the category of requirements addressing economic, business and social policy. The City has a legitimate business interest in employing physically fit officers in order to avoid potentially higher insurance rates and to avoid work day losses due to officers’ absence from the job. In Metropolitan Dade County v. Wolf, 274 So.2d 584, 585 (Fla.Dist.Ct.App.1973), cert. den. 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973) the court stated:

[Rjegulation relating to weight or overweight, like other health requirements, may properly be made a condition of employment, since there is a reasonable basis to conclude that one who is obese or overweight, as for other health conditions, is thereby more likely to become disabled during employment, to the detriment of the county financially and otherwise. As such, the regulation can be said to be grounded on business necessity, [citations omitted].

Moreover, the City could well have concluded that the risk of danger in the line of duty to an officer who is physically overweight would be too great and that some regulation would be required, therefore, to insure a measure of safety for the officer’s own protection. Finally, the City may have a particular interest in maintaining a certain appearance for its police force, so that public confidence in the capability of that force is not diminished.

We conclude, therefore, that the regulation rationally relates to conceivable, legitimate regulatory goals and that the regulation does not offend due process. We do note that regulations pertaining to weight have been invalidated in some cases. However, those cases have involved weight regulations that disproportionately affected women by excluding them from certain occupations and the regulations were struck down on the basis of sex discrimination and violation of equal protection. See, e. g: Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). The regulation challenged here does not suffer from such defects. We believe that a careful reading of Dothard supports the establishment of weight and height regulations such as the one we are confronted with here. In fact, we find in a concurring opinion in Dothard the following language:

I do not believe — and do not read the Court’s opinion as holding — that all or even many of the height and weight requirements imposed by States on applicants for a multitude of law enforcement agency jobs are pretermitted by today’s decisions.

Id. at 337, 97 S.Ct. at 2731.

The regulation does not offend due process nor does it violate any fundamental or protected right. Plaintiff’s constitutional challenge fails.

Plaintiff’s remaining challenge is that the regulation was arbitrarily and capriciously applied by the Commission. Our standard of review on this question is set forth in § 536.140 RSMo. 1969. We are limited to a determination of whether the Personnel Commission’s decision was supported by competent and substantial evidence, whether it was arbitrary or capricious, or whether it was an abuse of discretion. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888 (Mo. banc 1978).

We rule against plaintiff on this point. Plaintiff was given ample notice of his non-compliance with the weight regulation and an opportunity of 90 days in which to comply. In fact, the record indicates that plaintiff was given until June, some 6 months, before the City finally acted by imposing a penalty for his failure to comply. Furthermore, plaintiff was afforded an opportunity at the Personnel Commission hearing to present medical evidence that he was physically incapable of losing weight in order to place himself in compliance with the regulation. The evidence also clearly supports the determination that plaintiff was not in compliance with the regulation. On the basis of the record before us, we cannot conclude that the Personnel Commission’s action was arbitrary or capricious.

Judgment affirmed.

GUNN and CRIST, JJ., concur.

      . “§ 14-30 PHYSICAL REQUIREMENTS FOR COMMISSIONED PERSONNEL
      Effective April 1, 1976, all commissioned members of this department shall not exceed the below indicated maximum weight standards by more than ten percent, and shall meet other physical requirements and standards as prescribed by the Chief of Police. In regards to the weight standards, each member of this department could be required at the direction of a commanding officer to be examined by a physician to be chosen by this department to see that he has met the weight requirement for his height, after which time he will be given a sufficient amount of time to comply with the standard. If after notice is given and the expiration of the time allotted the commissioned officer fails to comply, disciplinary action can be taken unless there is proof shown by that commissioned officer that there is a just and sufficient reason that he cannot comply, to be supported by his own physician and one chosen by this department.”
      The chart accompanying the rule provided different standards for men and women.


author: GUNN, Judge.

text:
    STATE of Missouri, Respondent, v. Ovid S. WALKER, Defendant.
    No. 40861.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 4, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 15, 1979.
    E. Rex Bradley, Louisiana, for defendant.
    David H. Ash, Bowling Green, for respondent.
   GUNN, Judge.

Defendant appeals a conviction for the offense of driving while intoxicated. The substance of his appeal is that the evidence was insufficient to establish his guilt. We affirm.

The state’s evidence was presented by a state highway patrolman and a Pike County deputy sheriff. The patrolman testified that while on radar patrol he had observed a speeding pickup truck on Highway 79 and followed in pursuit accompanied by the deputy sheriff. After the patrol car’s emergency lights were activated, the truck pulled off the side of the road and the defendant alighted from the driver’s side. The patrolman’s olfactories immediately detected the strong scent of intoxicating alcohol, and he noted that the defendant was unsteady on his feet; that his eyes were bloodshot and watery. Some manual dexterity tests were successfully performed by defendant and others only partially so. The defendant conceded that he had consumed three beers about an hour and a half earlier and admitted driving the truck. The Pike County deputy sheriff echoed all that was testified to by the patrolman, including the dexterity tests performed, defendant’s physical appearance and his admission to having driven the truck. Based on past observations of intoxicated persons, the deputy testified that in his opinion the defendant was intoxicated at the time of arrest.

Defendant, who did not testify, relied on the testimony of his wife who was in the truck with him at the time of arrest. Her testimony was that as defendant had consumed three beers, she had driven the truck, which was owned by defendant’s employer; that after they had been stopped, she and defendant exchanged places. However, she had not told anyone but her mother and lawyer that she — not the defendant — was the truck’s operator.

Defendant argues that the state failed to produce sufficient evidence that he drove the truck and was intoxicated. Our review is limited to a determination whether there is sufficient evidence to support the verdict and not to determine the weight or credibility of witness testimony. City of Kansas City v. Oxley, 579 S.W.2d 113 (Mo. banc 1979); State v. Williams, 565 S.W.2d 749 (Mo.App.1978). In this case a jury chose to believe the testimony of the patrolman and the deputy rather than defendant’s wife, and we discern no basis for overturning that determination.

Defendant tenders State v. Kennedy, 530 S.W.2d 479 (Mo.App.1975), as support for his theory that the state failed to establish that he was the driver of the truck. But Kennedy is readily distinguishable. There, no evidence was offered to indicate that the accused had ever operated an automobile in an intoxicated condition. The facts here are otherwise. Defendant was seen alighting from the driver’s side immediately after stopping his vehicle and admitted operating it — a far different situation from that in Kennedy. There was sufficient evidence for the jury to find that the defendant had indeed been operating his truck at the time he was stopped and arrested for driving while intoxicated. Tolen v. Missouri Dept. of Revenue, 564 S.W.2d 601 (Mo.App.1978).

Defendant also argues that the testimony of the patrolman and deputy was insufficient proof of intoxication. We disagree. Missouri law is clear that intoxication may be proved by any witness who had a reasonable opportunity to observe the alleged offender. State v. Farmer, 548 S.W.2d 202 (Mo.App.1977). Here, as in numerous cases on similar facts, the officer’s testimony provided sufficient proof of intoxication. See: State v. Williams, supra; City of Trenton v. Lawrence, 548 S.W.2d 278 (Mo.App.1977); State v. Persell, 468 S.W.2d 719 (Mo.App.1971); State v. Ellsworth, 468 S.W.2d 722 (Mo.App.1971).

Defendant urges this court to adopt a rule requiring the state to produce results of chemical tests as a prerequisite to proof of intoxication. Although § 564.442, RSMo Supp. 1975, attaches some evidentiary weight to results of certain chemical tests for intoxication, § 564.400, RSMo 1969, does not require proof of such tests. State v. Farmer, supra; City of Trenton v. Lawrence, supra. The testimony of the state’s witnesses was sufficient proof of intoxication.

Judgment affirmed.

REINHARD and CRIST, JJ., concur.

      . In effect at the time of the offense, January 14, 1978.


text:
    STATE of Missouri, Respondent, v. Willie M. WARD, Appellant.
    No. 39451.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 9, 1979.

      Roy A. Walther, III, Crouppen, Walther, Zwibelman & Walsh, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant-appellant, after trial by jury, was found guilty of attempting to obtain money by means of a false check and, as a second offender, was sentenced by the trial court to a term of five years in the Missouri Department of Corrections. Evidence adduced at trial supporting the finding of guilty was extensive.

On appeal, defendant urges that his conviction be reversed on three grounds. He first maintains that he was prejudiced by the inclusion on the jury over his objection of a venireman who had several connections with law enforcement personnel together with prior experiences as a crime victim and juror. Secondly, defendant objects to certain general comments made by the trial judge to the jury regarding their role and function in the trial process during his reading of MAI-CR 2.01 and 2.02. Finally, defendant complains that it was fatally prejudicial to have given MAI-CR 2.80, governing deliberation procedures, out of the prescribed sequence and following closing arguments rather than before the summations and MAI-CR 2.68 as required by the MAI-CR Notes on Use. For the reasons stated below, we affirm.

Returning to defendant’s first point, he specifically complains that he was prejudiced in that the juror in question had a brother who was a deputy sheriff, that he knew one of the deputies assigned to the courtroom for the trial, and that he was acquainted with the circuit attorney. Further, the juror had been a crime victim two years prior to the trial, and had served on a jury in a civil case about three years earlier. The juror was questioned extensively by the court and counsel, and denied without hesitation that his experience or connections would prevent him from affording defendant a fair hearing.

Defendant admits that connections with law enforcement are not alone sufficient to automatically require disqualification of a juror, State v. Wraggs, 512 S.W.2d 257 (Mo.App.1974). This is especially true where, as here, the juror on voir dire disclaims any predisposition unfavorable to the defendant as a result of his connections or experience, State v. Johnson, 534 S.W.2d 844 (Mo.App.1976). Nevertheless, defendant maintains that the extent of this juror’s experience and connections negates any possibility that he could afford defendant a fair and impartial decision despite his disclaimer of bias, and that the judge, not being necessarily bound by the juror’s disclaimer, State v. Holliman, 529 S.W.2d 932 (Mo.App.1975), should therefore have granted defendant’s motion to strike for cause.

Defendant’s point is without merit. That the trial court is not necessarily bound to take the prospective juror’s word as to his impartiality at face value does not, conversely, require that the disclaimer of bias be altogether ignored upon showing of some experience or connection perceived as adverse to defendant. Many intangible factors going to the credibility of the juror, such as demeanor and appearance, are involved in the trial court’s exercise of discretion in this regard, State v. Wraggs, supra at 259. All doubts are therefore to be resolved in favor of the trial court’s decision, and we will not disturb that decision absent a clear and unmistakable showing of abuse of discretion, State v. McGrew, 534 S.W.2d 549 (Mo.App.1976). The record herein reveals only an unequivocal denial by the juror of any bias as a result of his relationships and experience following extensive questioning by counsel and the court. The trial court was well within its discretion in refusing to strike that juror as requested by defendant.

In his next point, the defendant objects to certain comments made by the trial court during its reading of MAI-CR 2.01 and 2.02. The record shows that the trial court interrupted his reading of each instruction once to explain in simplified terms the rationales underlying some of the rules stated in the instructions and also to explain certain other trial events and procedures not covered by the instructions. He also made a few similar comments between readings of the two instructions and following completion of their reading. The instructions were read in their entirety and verbatim, and it appears from the record that the court interspersed its own commentary in such a manner that it would have been clear to the jury when the prepared instructions were being read as opposed to when the court was speaking extemporaneously. It also appears that the trial court’s own comments were largely duplicative of information already in the jurors’ possession in the form of the Handbook of Information for Jurors approved by the Missouri Bar that is distributed to prospective jurors in that circuit.

After examining the record relative to this assignment of error, however, we find that defendant has failed to preserve anything for review in this regard. It appears that defendant only objected to the court’s comments some time after the reading of the instructions in question had been completed, and the court had gone on to address other matters.

If a litigant is to complain of the action of the trial court in the conduct of a trial, he must make his objection to the action which he deems to be improper . . . This objection . must be “timely,” that is, it must be made when the occasion for the ruling desired first appears . . . . Failure so to object . . . when the opportunity presents itself, is a waiver of the claimed error, (emphasis added). Brown v. Thomas, 316 S.W.2d 234, 237 (Mo.App.1958); § 510.210 RSMo 1969.

Defendant’s objection to the comments should have been lodged at the time they were made. Defendant may not allow possibly objectionable conduct to continue unchallenged for an extended period of time, and then ultimately pose an objection or motion, when he could have given the court an opportunity to correct and avoid the conduct complained of at its very inception.

Although we do not address this point on the merits, we find it appropriate to repeat our admonition in Washington v. Sears, Roebuck and Co., No. 40617, handed down June 26, 1979, mot. to trans. den’d Sept. 11, 1979, 585 S.W.2d 137 (Mo.App.) to the effect that such oral digressions by trial judges during readings of the approved form instructions must not continue. The fact that this case is before us now on this very ground is apt illustration of the problem we sought to cure in Washington — the deluge of appeals that is inevitable so long as these discursive ventures during the reading of instructions continue.

In so remonstrating, we are aware that the practice of generally instructing the jury on its role and function in the judicial process is approved, if not encouraged, by Rule 69.02. However, the appropriate time for such discussions is not in the midst of a reading of the approved instructions, the possibility of confusion and misunderstanding being too great. We note that the able and experienced trial judge did not have the benefit of our opinion in Washington, supra, at the time these events took place. We also note that many of the comments themselves were helpful, accurate, and, if given outside the context of the delivery of the instructions, commendable.

Finally, defendant complains that the giving of MAI-CR 2.80, governing procedures for jury deliberation, after final arguments was reversible error. The Note on Use requires that 2.80 be given as the next-to-last instruction, before 2.68 and the summations. Non-compliance with a MAI-CR and accompanying Note on Use is indisputably error, the prejudicial effect of which, however, is to be judicially determined, State v. Billingsley, 534 S.W.2d 484 (Mo.App.1975); Rule 20.02(e). Defendant suggests that prejudice may have resulted from the giving of this instruction out of proper sequence in that the jury heard final arguments without being aware of the procedures of deliberation, which fact “may have altered how they listened to the summation.” This assessment of prejudicial effect is entirely speculative. The record contains no indication that the jury in any way misunderstood, misused or misapplied the closing arguments of the parties to the detriment of the defendant. The instant case, like that in State v. Billingsley, supra, is a relatively simple one, involving a single defendant and a “single, narrow, sharply defined issue” of fact. There is virtually no likelihood the jury could have been in any way confused or misled by the giving of the instruction out of sequence. While it is extremely undesirable to depart from the prescribed order of instructions in that such deviation “places at hazard the results of an entire trial, attained at the expense of much time, energy and cost,” State v. Billingsley, supra at 485, we nonetheless decline to disturb the result below for want of any indication of prejudice to the defendant.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


author: STEPHAN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Floyd Ray MASON, Defendant-Appellant.
    No. 39522.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 9, 1979.

      Forriss D. Elliott, M. Barry Forman, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   STEPHAN, Presiding Judge.

Defendant Floyd Ray Mason appeals from a conviction of second degree burglary and sentence of two years in prison. He presents seven points on appeal. Finding one to have merit, we reverse and remand and discuss such others as are likely to arise on retrial.

On March 2, 1977, Paul Pugh left his combination residence-furniture store at 4301 North Twentieth Street in the City of St. Louis about 7:30 p. m. and returned about 10:00 p. m. to discover it had been burglarized. A window in the door to the residence on the second floor had been broken and items of value such as tape decks, stereos and television sets had been removed from both the residence and Mr. Pugh’s store on the first floor. The burglary was witnessed by three young brothers, Floyd, James and Isaac Chaney. Floyd, age 12 at the time of trial, and James, age 10, testified. The state elected not to attempt to qualify Isaac, age 8. The testimony of Floyd and James, while not identical on all points, was in substantial agreement: At about 9:00 p. m. on the night in question they were walking from their home the short distance to their grandmother’s home, a route that took them past the Pugh residence and store. They heard glass breaking. Investigating, they ran to the rear of the building where they saw a tall, thin black man breaking the window of the second floor door. He entered the building and then opened the front door of the store for a short, fat black man, whom they identified as the defendant. The boys watched the two men turn on the inside lights and make several trips carrying items such as those later reported missing by Mr. Pugh to a yellow pickup truck which had on it splotches of brown paint and racks made of pipe. The men then departed in the truck.

Defendant, a building contractor, had been doing some work at a residence near the site of the burglary. During the evening following the crime, Mr. Pugh saw the defendant and another man near a truck such as that described by the boys parked in an alley behind the Pugh residence. He approached them to inquire whether they knew anything of the burglary. Before he could engage them in conversation, the defendant seized his companion by the arm and said, “Don’t talk to him; he knows what is going on.” Apparently, there then ensued an incident of flourishing a deadly weapon (all discussion of which occurred out of the hearing of the jury), for which defendant and the companion were subsequently arrested on March 5,1977, and taken into custody. That evening Mr. and Mrs. Pugh identified defendant and the other man as the persons involved in the flourishing incident; the three Chaney boys also viewed the eight-man lineup, and Floyd and James identified defendant as a participant in the burglary. At the conclusion of the lineup, defendant and the second man were advised that they were also under arrest for burglary and advised of their rights.

The defendant presented a defense of alibi. He claimed that he was drinking at one of two bars on the night in question. The owner of one of those bars, Charles Rieves, testified that he remembered the defendant’s presence in his bar from 8:00 p. m. to 1:30 a. m. on the night of the burglary; a date which he recalled with certainty because on March 2 he sponsored his first “happy hour.” Rieves testified that defendant was a loyal patron and close friend and that he knew defendant was present at his bar on March 2 because the defendant was about the only person to whom he talked while tending bar.

Lorine Johnson gave the only other testimony in defendant’s case. Lorine, the sixteen-year-old daughter of a neighbor of the Pughs, testified that the defendant had performed contracting work for her mother on the day of the burglary as well as for several days thereafter. Lorine spent the evening of the burglary a few doors down from the Pughs’ on her aunt’s porch but she saw neither the defendant nor his truck. She stated, however, that she had seen a man named Lawrence who resembled the defendant in the neighborhood around the day of the burglary.

We advert first to defendant’s meritorious assignment of error to the effect that the verdict was the product of undue coercion by the trial court. After the jury had deliberated for six hours, the trial court recalled the jury to ask how they stood numerically without inquiring “how many votes for this proposition, or how many for that.” After the foreman informed the court that the count was eleven to one, the court read MAI-CR 1.10, the so-called “hammer instruction.” One hour and fifteen minutes later, the court again summoned the jury and inquired as to their progress. In response to a question from the court, the foreman stated that the vote was still eleven to one. The following interchange between the court and the jury occurred:

“THE COURT: As the foreman of the jury, do you feel that if we were to, say, go another fifteen minutes, that a verdict could be reached? Do you think that reasonable, or does it seem unlikely?
THE FOREMAN: It is possible.
THE COURT: Do you think it is probable? Consider it’s been seven hours and fifteen minutes now since the jury got this case. Do you think—
THE FOREMAN: I think if we talk over perhaps one more time, after reading Instruction 11 and you feel that a verdict should come out.
THE COURT: Do you think if you had another fifteen minutes you might reach a verdict? Is that correct?
THE FOREMAN: It is possible.
THE COURT: All right. Sheriff, would you take the jury back upstairs, and we will try it another fifteen minutes.”

Fifteen minutes later the jury returned with a verdict of guilty and assessed the minimum punishment of two years. Although defendant did not object to the colloquy between the trial court and the foreman at the time it occurred, the point was presented in the motion for new trial and briefed on appeal. We review it under the plain error doctrine, Rule 27.20(c), because the extra-MAI statements “go to the heart of the judge-jury relationship as it affects the fundamental right to a fair and impartial trial.” Burroughs v. United States, 365 F.2d 431, 434[6] (10th Cir. 1966).

While it is clearly proper to give MAI-CR 1.10 “when appropriate, after extended deliberation by the jury,” Rule 20.02(a), we believe that the totality of the circumstances under which the verdict here was reached mandates reversal and remand for a new trial. In Burroughs v. United States, supra, the court reversed a conviction in a case in which an “Allen ” instruction was properly given but the trial court urged the jury to arrive at its verdict within another thirty-five minutes of deliberation. There, the Tenth Circuit said, “it is one thing to recall the jury to beseech them to reason together, and it is quite another to entreat them to strive toward a verdict by a certain time.” Id., 434. Moreover, the setting of the fifteen minute “deadline” in the instant case was exacerbated by the atmosphere created by the colloquy between the trial judge and the foreman. After the court asked whether a verdict was “probable” and pointed out that the jury had been out for seven hours and fifteen minutes, the foreman responded with the words, “I think if we talk over perhaps one more time, after reading Instruction 11 and you feel that a verdict should come out.” The emphasized portion of the foregoing clearly indicates the foreman understood that the court was requiring that the case be decided. The court did nothing to dispel that understanding, and its lack of action in this regard commended that understanding to the entire jury. Thus, although MAI-CR 1.10 was properly given, the imposition of a fifteen minute time limit, and the trial court’s virtual directive that a verdict be reached, cumulatively mandate reversal and remand. Accord, United States v. Amaya, 509 F.2d 8, 10-11 (5th Cir. 1975); Goff v. United States, 446 F.2d 623, 626-627 (10th Cir. 1971).

Defendant asserts that the trial court erred in not suppressing the evidence concerning both the out-of-court and in-court identification by the Chaney brothers because: (a) requiring defendant to appear in the second lineup was tantamount to arresting him without probable cause or, in the alternative, deprived him of Fourteenth Amendment rights to a determination by a neutral magistrate that a “well grounded suspicion” existed that he had committed the burglary; (b) conducting the second lineup without the benefit of counsel violated defendant’s right to the assistance of counsel; and, (c) the second lineup was unnecessarily suggestive. We find no merit in any of these arguments.

Defendant’s first argument must fail for the reason that, as he admits in his brief, he was in lawful custody on the flourishing charge at the time the lineup occurred. State v. Radford, 559 S.W.2d 751, 752 (Mo.App.1977). The basic concept of an arrest is the taking into custody; it would be superfluous to require another arrest of one already in custody before placing him in a lineup. Rigney v. Hendrick, 355 F.2d 710, 713 (3rd Cir. 1965), cert. denied 384 U.S. 975, 86 S.Ct. 1868, 16 L.Ed.2d 685 (1966). We also reject defendant’s alternative argument that he was entitled to a determination by a neutral magistrate that a “well grounded suspicion” existed that he committed the burglary before he could be required to participate in the lineup viewed by the Chaney brothers. Defendant’s argument in this regard is based on State v. Foy, 146 N.J.Super. 378, 369 A.2d 995 (1976), which imposed such a requirement with respect to unconvicted pretrial detainees being placed in lineups for possible identification as perpetrators of crimes unrelated to those for which they were being held. The New Jersey court reasoned that since a person free on bail could not be required to take part in a lineup unless grounds existed for his arrest for the unrelated crime, it was a denial of equal protection to require a prisoner who could not post bail to take part in a lineup. While the Foy argument presents surface plausibility, we are not persuaded by it. Rather, we think the case of Rigney v. Hendrick, supra, in which similar arguments were advanced offers a far more practical solution. As pointed out in Rigney, a suspect may be put under surveillance regardless of whether he is or is not in custody. The use of a lineup in the case of a pretrial detainee is a reasonable method to allow the suspect to be viewed while providing for the security of witnesses and minimizing disruption of institutional order. As did the court in Rigney, we find no violation of any of defendant’s Fourteenth Amendment rights in the procedure used in this case.

With respect to defendant’s claim that he was denied the assistance of counsel at the lineup in violation of his Sixth and Fourteenth Amendment rights, we note there was substantial evidence at the hearing on the motion to suppress from which the trial court could and did find that defendant was offered counsel but waived the opportunity to receive such assistance. Although defendant contends that the contrary appears from the record, we need not decide the issue on this basis, for the right to counsel attaches only after adversary proceedings have been initiated against a defendant. “It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” Kirby v. Illinois, 406 U.S. 682, 689-690, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411, 418 (1972). Accord, State v. Chavez, 483 S.W.2d 68, 69 (Mo.1972). As noted, defendant was in custody on the flourishing charge at the time the Chaney brothers viewed the lineup, which occurred immediately after Mr. Pugh’s viewing. Defendant was not arrested for the burglary until after he was identified by the Chaneys; he had no absolute right to counsel at the time of the second lineup in connection with the burglary.

We likewise reject the argument that the lineup was unnecessarily suggestive and thus violated defendant’s due process rights. Defendant bases this claim on his speculation that the boys were young, impressionable, excited about having witnessed a burglary, and identified defendant in the lineup because they had seen him in the neighborhood before and not because he was one of the burglars.

In determining a claimed violation of due process in the conduct of identification procedures, we must look at the “totality of the surrounding circumstances.” Coleman v. Alabama, 399 U.S. 1, 4, 90 S.Ct. 1999, 2000, 26 L.Ed.2d 387, 393 (1970); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967). If a lineup is “unnecessarily suggestive and conducive to irreparable mistaken identification” it violates the due process clause of the Fifth and Fourteenth Amendments. Kirby v. Illinois, 406 U.S. 682, 691, 92 S.Ct. 1877, 1883, 32 L.Ed.2d 411, 418 (1972). The transcript fails to reveal and the defendant makes no claim of any misconduct by the police. Patrolman William J. Gieson presented defendant and his cohort in a lineup with six other persons. He had interviewed each of the three Chaney boys separately prior to the viewing and kept them apart during and after the viewing. The only other person who talked to the boys was a detective who told each of them not to be nervous. Gieson instructed each to view all of the subjects in the lineup to see if he could identify anyone whom he had seen the night of the burglary. Both Floyd and James Chaney identified the defendant as one of the two burglars. James Chaney specifically testified that he identified the defendant because he had broken into the Pughs’ premises and not because James had previously seen the defendant in the neighborhood. In light of the record and the fact that defendant’s argument is nothing more than mere speculation, we hold that under the “totality of the circumstances” the identification procedures were not unnecessarily suggestive nor conducive to irreparable mistaken identification and therefore were consistent with the requirements of due process.

As his next point, defendant submits that the trial court erred in excluding the testimony of a defense witness which related to the possible misidentification of the defendant. As explained earlier, Lorine Johnson testified that she had seen a man named Lawrence in the neighborhood sometime around the day of the burglary and that Lawrence resembled the defendant. After this statement the Assistant Circuit Attorney approached the bench and stated that he believed the defense counsel was going “far afield as far as asking in a black neighborhood. This is a fishing expedition.” The court responded to such remarks by interrupting the defense counsel’s attempt to support his line of questioning and sustaining the Assistant Circuit Attorney’s objections. The defense counsel resumed the trial without making an offer of proof.

Absent an offer of proof, it is impossible for us to determine whether the trial court clearly abused its discretion in excluding further testimony from Ms. Johnson. Such is the test with respect to error claimed in the exclusion of evidence. To preserve the exclusion of evidence for review, “it is essential that a proper question must be asked, and, on objection thereto, an offer must be made at the time showing what evidence will be given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all facts necessary to establish the admissibility of the evidence.” State v. Harlston, 565 S.W.2d 773, 783 (Mo.App.1978). There being no offer of proof as to what the testimony would have been, we have no choice but to affirm the trial court’s ruling on the matter. State v. Robinson, 556 S.W.2d 73, 74 (Mo.App.1977). However, on retrial, defendant will have an opportunity to correct this deficiency.

Defendant next alleges that the court committed “clear error” when it permitted the Assistant Circuit Attorney to argue that defendant’s failure to produce witnesses in his own behalf for the police or grand jury was evidence of defendant’s guilt. Specifically, the defendant complains of two instances: one occurring during cross-examination of the defendant wherein the Assistant Circuit Attorney asked:

“. . . how could this case have gotten this far if you had a man who could testify that you were there the entire night? How could this case have gotten this far? Why didn’t you go to the police with this man?”

and one occurring during final argument wherein the Assistant Circuit Attorney argued:

“Then he [defendant] brings on Mr. Rieves, a friend. I guess he is a friend. This case had been going on for three months, and Mr. Rieves didn’t have the courtesy to come down to the grand jury and testify on behalf of the defendant. Why? Because it didn’t happen that way.”

Defendant submits that the Assistant Circuit Attorney, by such remarks, urged the jury to infer guilt from defendant’s silence prior to trial, in violation of defendant’s Fifth Amendment right against self-incrimination.

Initially, we note that defendant failed to raise this point in his motion for new trial and did not object to the remarks in the closing argument. Thus, the point is not properly preserved for review. State v. Grey, 525 S.W.2d 367, 370 (Mo.App.1975). Defendant argues, however, that the comments constituted plain error and should be reviewed under Rule 27.20(c). We find no merit in defendant’s complaint as to either remark. While the right to remain silent does attach to pretrial proceedings, State v. Roth, 549 S.W.2d 652, 654 (Mo.App.1977), that principle is not applicable to this case. Here, the defendant objected to the cross-examination question which the trial court sustained. Even if the trial court had not sustained the objection, there was no Fifth Amendment violation warranting reversal under the plain error doctrine because the comment related to defendant’s failure to offer evidence, not his failure to testify. State v. Sechrest, 485 S.W.2d 96, 98 (Mo.1972); State v. Pruitt, 479 S.W.2d 785, 789-790 (Mo. banc 1972). The closing argument comment cannot possibly implicate the Fifth Amendment rights of the defendant because it is not even directed at the defendant. Rather, the comment attacks the credibility of one of the defendant’s witnesses, Mr. Rieves. We rule this point contrary to defendant’s contention.

Defendant’s last claim of error which we treat arises out of the prosecutor’s comment in closing argument on defendant’s failure to call other customers of Mr. Rieves’ tavern to bolster his alibi defense. During the course of argument, the prosecutor said:

“Happy hour. A lot of regulars at the bar. This man has been at the bar for two years. All right, he stays there till closing time, . . . 1:30; he knows all the people in the bar, the regulars. Where are all the other people in the bar. Only one man came in out of forty-two people in that bar? Fourteen bar stools, and the place was jammed.
Ladies and gentlemen, there have been twelve happy hours since this took place. Twelve times this man could have talked to people that were in the bar that night, and have people come in here and testify, and now he couldn’t find anybody that would testify he was there from 9:00 to 10:00. This man said he was there already all night long.”

Defendant now claims that the trial court erred in permitting such argument because there was no evidence that the witnesses were more available to him than to the state nor any indication that any of his fellow customers could have supported his testimony. This point has not been properly preserved for appellate review. Not only did the defendant fail to object to the closing argument, but he failed to raise this point in his motion for new trial. State v. Grey, 525 S.W.2d 367, 370 (Mo.App.1975). Nevertheless, we find no error in the court’s not taking action during the closing argument because said remarks were a permissible comment on appellant’s failure to produce evidence. Indeed, the prosecutor’s comments may be regarded as having been invited by the defendant’s own testimony that he had “other people to say I was there” at Rieves’ bar.

The community of interest among drinking companions has been held to make them more available to each other than to the state with respect to supplying or refuting alibi testimony. The failure of a defendant to call such a witness is a legitimate subject of comment for a prosecutor. State v. Wilkerson, 559 S.W.2d 228 (Mo.App.1977); State v. Williams, 532 S.W.2d 826, 830 (Mo.App.1975). In the instant case, the trial court committed no error in failing to intervene sua sponte in the closing argument presented on behalf of the state.

For the reason stated at the outset, the case is reversed and remanded for a new trial.

KELLY and STEWART, JJ., concur.

      . The “hammer” instruction had been numbered 11.

      . The “Allen ” instruction is quite similar to MAI-CR 1.10. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . “Q Lorine, had you ever seen anyone in the neighborhood during this period of time who resembles Floyd Mason?
      A Yes.
      Q Do you know his name?
      A His name is Lawrence. I do not know his last name.
      MR. COWIN [Assistant Circuit Attorney]: Your Honor, may I approach the bench?
      THE COURT: You may.
      [Thereupon the following colloquy ensued among the Court and counsel, at the bench, out of hearing of the jury:]
      MR. COWIN: I believe he is going far afield as far as asking in a black neighborhood. This is a fishing expedition. I could name people in the Circuit Attorney’s office who resemble this defendant.
      MR. JOHNSON [Defense Attorney]: Your Hon- or, there are cases that if—
      THE COURT: I am going to sustain the objection.
      MR. COWIN: I think anybody could get a witness who states there are a hundred thousand people who would—
      THE COURT: I am going to sustain the objection.
      [Thereupon the trial resumed within the hearing of the jury . .]”