author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Delroy DOUGLAS, Appellant.
    No. KCD 27405.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.
    Gerald P. Handley, Acting Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Defendant appeals his conviction of rape and sodomy and resultant sentence of two fifteen-year terms to run consecutively. Defendant does not question the sufficiency of the evidence to sustain his conviction.

Defendant bases his claim for relief upon the refusal of the trial court to allow him to cross-examine a detective concerning a pri- or inconsistent statement made by the victim concerning a physical description of her assailant and the route taken from the time the victim was first accosted to the place of the assault. Defendant in a pro se brief attacks the wording of the indictment.

The jury could have found from the evidence the victim was accosted outside her home at about 2:30 A.M. in October, 1973. After forcing her to enter her home for a short time, the assailant required the victim to enter the car he was driving, to cover her head with a coat and place her head between her legs. In this position the victim, was driven to another house, later identified by the victim, where she was taken to an upstairs bedroom where the attack forming the basis of the indictment took place.

Defendant produced a witness who stated the defendant was with her in another location at the time the offenses here charged took place. This witness also stated defendant did not and never had had any gold or silver tooth. The lady who owned the automobile the victim identified was used by the defendant to transport her testified she was using her ear at the time of the attack.

The dispositive issue raised by the defendant on this appeal concerns the refusal by the trial court to allow the defendant to call Detective Steen as a witness. The backdrop for defendant calling Detective Steen was the following cross-examination of the victim:

“Q. Did you make any statement as to whether or not he had a capped tooth?
A. The police asked did he, and I said he could have.
Q. Well, what I am asking you now is if you made a statement to the police in a description saying whether or not the man had a capped tooth?
A. No, sir.
Q. A gold or silver capped tooth?
A. No, sir.
Q. You did not give that description to the police?
A. They asked me did he, and I said he could have.
Q. Well, do you remember if he did or not?
A. They asked me if he did. I said he could have. I didn’t say definitely that he did or didn’t.”

The defendant informed the court he wanted to call Detective Steen to show a prior inconsistent statement which the victim had made to this detective the morning after the attack. Defendant told the court he would show the victim had told Detective Steen the assailant had a gold or silver capped tooth. The trial court refused to allow Detective Steen to be called as a witness and the defendant was thereby deprived of the opportunity to show to the jury the victim had made this statement concerning the identification of her assailant.

The State bases its entire argument in support of the trial court’s ruling on the fact the defendant did not lay a proper foundation in order to show a prior inconsistent statement. The requirement of a foundation is stated in State v. Vaughn, 501 S.W.2d 839, 842[1 — 4] (Mo. banc 1973) as follows: “[a] foundation must first be laid by asking the witness on cross-examination if he made the statement, and obtaining either a denial or an answer that he failed to remember it”. Here it is beyond question the defendant laid a proper foundation by asking the victim specifically about her statement to the police concerning the capped tooth. She specifically denied making any statement in which she stated “he did or didn’t” have a capped tooth. The offer which defendant made in his request to call Detective Steen was to show the victim had made a statement to Detective Steen in which she stated the man did have a capped tooth. There can be no question the defendant laid a proper foundation for showing the previous inconsistent statement and it was error for the court to refuse to allow the defendant the opportunity to show this inconsistency for the purpose of impeaching the witness.

It is obvious the question of whether or not the assailant had a capped tooth would be a very vital part of the identification of the defendant. The only evidence in this ease concerning the identity of the assailant came from the victim herself. Thus, it was her credibility which the jury had to assess in deciding whether to believe her testimony concerning the identity of the man who attacked her. This, coupled with the defense which the defendant offered to show he was at another place at the time of the attack and had never had a gold or silver tooth, sharply defined the issue before the jury to be the identification which the victim made of the defendant. Certainly the defendant was entitled to produce any relevant and material evidence available to bear on the crucial question of the credibility of the victim in her description of the assailant.

There is no doubt defendant was entitled to impeach the victim’s testimony, for as stated in 2 Wharton’s Criminal Evidence, 13th Ed., ¶ 455, p. 392: “[a] party has the right to impeach the credibility of a witness whom he did not call, and he may do so by cross-examination or through another witness.”

It is not necessary to go into the long history of the rules for impeaching witnesses, but one of the early cases which explores this subject very fully is Spohn v. Missouri Pac. Ry. Co., 122 Mo. 1, 26 S.W. 663 (1894).

Defendant also complains of the refusal of the trial court to allow him to call another detective to show an inconsistency between the in-court description the victim gave of the route traveled from her home to the place where the assault occurred and that given in a statement to the police shortly after the attack. This description of the route traveled was a collateral matter and it is well settled it is not error to exclude evidence tending to impeach a witness on an immaterial or collateral matter. State v. Miles, 412 S.W.2d 473 (Mo.1967). Thus, it was not error to refuse the defendant the right to show this inconsistency.

Defendant also makes some complaint of the curtailment of his cross-examination of the police officers concerning various inconsistent statements made by the victim. However, defendant did not properly seek to elicit evidence of inconsistent statements by simply asking various police officers what descriptions the victim had given to them. This method of establishing a previous inconsistent statement was condemned in Raines v. Small, 169 S.W.2d 102, 105[6] (Mo.App.1943).

The proper method of examination of an impeaching witness is set out in 98 C.J.S. Witnesses ¶ 617, p. 628. There it is stated the witness should first be asked to fix the time and place of the previous statement. It is then sufficient “if the question is so framed as to elicit an answer in clear contradiction of the principal witness’ answer to the question asked him”. [Ibid. p. 629]. See also Janis v. Jenkins, 58 S.W.2d 298 (Mo.1933).

The defendant has filed a pro se brief attacking the wording of the indictment. These complaints have been decided adversely to him in State v. Goodale, 210 Mo. 275, 109 S.W. 9 (1908) and in State v. Hathaway, 269 S.W.2d 57 (Mo.1954). In those cases the precise wording of the indictment in this case was approved.

The other matters raised by the defendant need not recur on another trial.

For the error noted, the judgment is reversed- and the cause is remanded for another trial.

All concur.

      . The State questions only the sufficiency of the denial of a previous statement. No other foundational infirmity is alleged.


source: Caselaw Access Project

author: SWOFFORD, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Clifford L. BISHOP, Appellant.
    No. KCD 27433.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.
    Thomas M. Larson, Public Defender, Robert A. Simons, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

The defendant was convicted by a jury of stealing over $50.00. The jury was unable to agree upon a punishment, and the defendant was sentenced by the court to three years in the Missouri Department of Corrections.

The record reveals that while working as a night watchman at the downtown Kansas City, Missouri Macy’s store on the morning of July 4, 1972, Kenneth Kiniry saw the defendant loading several men’s suits into the trunk of a gray automobile, parked at the curb of Baltimore Avenue near the store entrance. It was about 6:00 a. m. and daylight. The watchman became suspicious when the defendant quickly entered the automobile and drove away, and as the car was leaving, he noted its license plate number. He then discovered that the glass door at one of the store’s entrances was shattered. Several men’s suits, valued at $1,314.64, and some cassette tapes were later found to be missing. The license number the watchman had noted was later found to be registered to a 1965 blue Chevrolet Impala owned by the defendant’s mother. This car was searched, and several pieces of broken glass were discovered in the trunk. A chemist, who compared those pieces of glass with pieces of glass from the ' shattered door, found that some of the pieces from the trunk of the car matched those from the door as to color, thickness, specific gravity, and refraction index.

Kiniry testified he had a clear view of the defendant from his position inside the store and saw him from both the side (profile) and front (full face) views. He described his appearance, physique and wearing apparel. Subsequent to the occurrence, Kini-ry made a lineup identification of defendant at police headquarters, but a motion to suppress this identification, urged by defense counsel, was sustained by the trial court.

However, the trial court overruled defendant’s motion to suppress Kiniry’s in-court identification of the defendant, and such identification was made and Kiniry was subjected to a very probing and vigorous cross-examination, directed toward the end of discrediting the credibility of his identification of defendant.

On this appeal, the defendant’s single claim of error is that, because the watchman did not have a sufficient independent basis for identification of the defendant, untainted by a suppressed lineup identification, the trial court erred in denying his motion to suppress the watchman’s in-court identification of the defendant. In order for a defendant to properly preserve a claim that a trial court has erroneously denied a motion to suppress in-court identification testimony, he must object to the introduction of the challenged testimony at trial. State v. Franklin, 448 S.W.2d 583, 584[2] (Mo.1970); State v. Brownridge, 459 S.W.2d 317, 320[8] (Mo.1970); State v. Ward, 518 S.W.2d 333, 334[3] (Mo.App.1975); State of Missouri v. Brown, 527 S.W.2d 15 (Mo.App., decided August 4, 1975). This, the defendant failed to do, and therefore, his claim of error is not properly preserved and is not before this court for review.

After examining the transcript and the authorities cited in the briefs, the court is convinced that the evidence in the record supports the jury’s verdict; that no error of law appears; and that an extended opinion would have no precedential value. Rule 84.16(b).

Accordingly, the judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Kenneth Dale JOHNSON, Appellant.
    No. KCD 27573.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.

      Thomas M. Larson, Public Defender, James W. Fletcher, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Kenneth Dale Johnson, with prior conviction for robbery, first degree, was charged with robbery, first degree, by means of a dangerous and deadly weapon. He was convicted by a jury of robbery, first degree, and the court assessed his punishment at eight years’ imprisonment. Sentence and judgment were rendered accordingly. §§ 556.280, 560.120, 560.135, RSMo 1969, V.A.M.S.

The defense was alibi; appellant does not question the sufficiency of evidence to sustain his conviction. The evidence would permit the jury to find: that on September 19,1973, at approximately 9:00 p. m., Frank Buceóla parked his automobile in a lighted parking lot behind his residence at 4424 Pennsylvania, Kansas City, Jackson County, Missouri; that a man, later identified as defendant Kenneth Dale Johnson, engaged Mr. Buceóla in conversation in which defendant represented he was looking for a Mr. Widmeyer; that Mr. Buceóla turned to lock his automobile and was “rushed” by defendant and another man; that defendant threatened to kill Mr. Buceóla, and he felt that a gun had been placed behind his neck; that Mr. Buceóla was stripped of his wallet containing $150, his jewelry, watch, keys, and credit cards, after which his assailants again threatened to kill him and left running.

Appellant charges the court erred (I) in overruling defendant’s objection after the prosecuting attorney commented, in closing argument, “that appellant had failed to produce people who were potential ‘alibi’ witnesses.”

Defendant’s evidence was calculated to show that he had been in Louisville, Kentucky, on the 18th and 19th days of September, 1973, and that he did not return to Kansas City, Missouri, until approximately 6:00 a. m., September 20, 1973. Depositions of Harry W. Looney and Jacob W. Schmidt, employees of Cooke Pontiac Company, Louisville, Kentucky, were that on September 19, 1973, repair work was done for a person representing himself to be Kenneth Dale Johnson of Kansas City, Missouri, on a Pontiac automobile registered in the name of Kenneth Dale Johnson; that the car came in for repair at about 10:30 a. m., September 19, 1973, and the work was completed at about 12:40 p. m. Also by deposition was the testimony of Ethel Noon, an employee of Rodeway Inn, Louisville, Ken- ■ tucky, that records of Rodeway Inn showed a room registered in the name of Kenneth Dale Johnson September 18, 1973, for check-out September 19, 1973. Testimony from a long-time friend, Mary Davis, was that on September 18, 1973, she accompanied defendant, Lonnie Watson, and Reginald Cummings to Louisville, Kentucky, where they stayed at Rodeway Inn, and returned to Kansas City at 4:00 or 5:00 a. m., September 20, 1973.

In his own behalf, defendant testified in corroboration of the foregoing. Upon cross-examination, he identified Alice Jackson, who was seated in the courtroom, as the mother of his children, and stated that they were living together at 44th and Mont-gall, Kansas City, Missouri, with his mother, Geraldine Johnson, and stepfather, Mr. Scott, at the time of the incidents in question.

The argument in question follows:

“ * * * you have heard the best interpretation the defense can give you. Best is not good enough to go with the facts. The facts show at best, with all these documents, there was a car in the morning of September 19th, 1973, in another city. Didn’t show the defendant. And even if they did, they would only show him there in the morning because each and every matter contained in the depositions themselves tell you the car was ready at twelve thirty. Came direct and if we look at availability, according to the defense’s own witnesses, let them pick the car up at one o’clock. They have still got time to be in Kansas City at the time of the crime and that’s the crux of it. ■ Was he here, or was he there? There is nothing and I submit to show him not being in Kansas City at nine p. m. What he has done, the defendant has stated they came home sometime early. The defendant stated he lived with Alice Jackson, seated in the courtroom, but we didn’t hear that evidence, did we? Ask yourselves why because if they lived together, I submit, certainly, she would know what time they arrived home.
“MR. BUNCH [for defendant]: I object. Mrs. Jackson is equally available to the state. They could call her.
“THE COURT: Proceed.
“MR. BRESSEL: Got further people we could have heard from, I submit. How about—
“MR. BUNCH: Same objection, your Honor.
“THE COURT: Objection overruled.
“MR. BRESSEL: How about Mary Davis’s mother? How about the defendant’s mother? How about the defendant’s step father? Where are all these people who can say they were sure there but they came back here the next day? They are not here, are they? I submit there is a reason for that.”

In support of his contention, appellant cites State v. Houston, 451 S.W.2d 37 (Mo.1970), and State v. Collins, 350 Mo. 291,165 S.W.2d 647, 648-649 (1942), to argue that the court’s ruling permitted the State to violate the rule “that it is improper to argue” defendant’s “failure to call a witness in his behalf where the witness was equally available to both parties.”

The difficulty with appellant’s argument is not in the rule but in its lack of application to the argument in question.

“Available,” within the sense of the rule, “ ‘does not mean merely available or accessible for the service of a subpoena, since any witness who can be found may be subpoenaed at the instance of either party to a cause. To the contrary, ⅜ * * whether a witness is “available” to one or the other of the contending parties depends upon such matters as the one party’s superior means of knowledge of the existence and identity of the witness, the nature of the testimony that the witness would be expected to give in the light of his previous statements or declarations, if any, about the facts of the case, and the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation, and make it natural that he would be expected to testify in favor of the one party and against the other. In other words, a witness may be said to have been peculiarly “available” to one party to an action, so that upon that party’s failure to have produced him in court an inference will arise that his testimony would have been unfavorable, when, because of such party’s opportunity for knowledge of or control over the witness, or the community of interest between the two, or the prior statements and declarations of the witness, it would be reasonably probable that the witness would have been called to the trial to testify for such party except for the fact that it was either known or feared that his testimony on the stand would have been damaging rather than favorable.’ ” State v. Collins, supra, 165 S.W.2d l.c. 648-649.

Defendant’s mother, stepfather, the woman with whom he lived and who was the mother of his children, and the mother of the friend who accompanied him to Louisville, if so, were not “equally” available to the State under the rule of State v. Collins, supra.

By way of distinction, the person whom the prosecuting attorney argued to be equally available and that the defendant should have called in State v. Collins, supra, “was the person who put in motion the machinery that caused the arrest of the appellant. * his position was similar to that of a prosecuting witness,” State v. Collins, supra, l.c. 649.

Supportive of the court’s ruling in this ease is the rule that the prosecuting attorney may comment on the failure of defendant to call witnesses who would be expected to give testimony favorable to his case. State v. Barron, 465 S.W. 523, 529[8] (Mo.1971); State v. Beasley, 353 Mo. 392, 182 S.W.2d 541, 544 (Mo.1944).

Appellant charges the court erred (II) in permitting the prosecuting attorney to ask defendant on cross-examination with reference to the part of Mary Davis in his alibi, “You never told the police about it, did you?”

Appellant’s concession “that no objection was made to either the question or the answer and that the admission of this question and answer was not cited as error in Appellant’s Motion for New Trial” demonstrates that the alleged error has not been preserved for review as required by Rule 27.20, V.A.M.R. Nor is the incident a matter of plain error under Rule 27.20(c), V.A.M.R. The defense was alibi, and the question to defendant sought the inference that it was fabricated. The merits of the alibi defense was for the jury, and this question of defendant does not appear to have had any decisive effect on the jury to the extent that any manifest injustice or miscarriage of justice resulted. See State v. Elmore, 467 S.W.2d 915, 917-918 (Mo.1971).

Judgment affirmed.

All concur.


author: WASSERSTROM, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Michael D. FEW, Appellant.
    No. KCD 27574.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.
    Gerald M. Handley, Acting Public Defender, Philip H. Schwarz, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Charles B. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Defendant, having been charged by information with the crimes of burglary, second degree, and stealing, was tried before a jury and found guilty of burglary but not of stealing. Since he had been tried as a second offender, the trial court fixed and imposed sentence of five years. He appeals, claiming that the evidence was insufficient to sustain the conviction because there was no evidence from which the jury could find that he broke into the building in question.

From the evidence presented at trial the jury could have found that on the evening of October 13, 1973, James E. King, relief manager of the Reveo Drug Store at 1319 Brush Creek, Kansas City, Missouri, closed and locked the store at about 9:00 p. m. He locked the three possible entrances to the store, the front door, the back door, and an overhead garage door next to the back door. He also checked to see whether anyone else was in the building and found no one else there. About 7:00 a. m., Police Officer Charles Pottinger responded to a call at this Reveo Drug Store. He pulled his patrol car up to the rear of this building and, as he did so, observed the closed garage door quiver. He went to the door to see if it was locked. It was not locked and he lifted it without any resistance and entered the building. Upon doing so he observed two men run from the room. The officer called for assistance, drew his revolver and pursued. Defendant was one of the two men caught in the ensuing chase inside the store. Defendant was promptly given his Miranda warnings and subsequently told the officer that his name was Michael Wright. The store was in a state of disarray. Money was scattered near the coin drawer, and $140 was missing. A drawer containing controlled substances located behind the prescription counter was also missing, and several other drawers containing narcotics had been rifled.

There was no evidence that any of the windows or doors to the building had been broken or tampered with in an attempt to gain forcible entry. The garage door latch which bolted through the sliding track had been sawed through, but there was no opening in the garage door whereby this latch could have been sawed from outside the building.

Upon interrogation by the police, defendant stated that he had been called by a third party and told about some drugs and narcotics being taken from this drug store and that he and another party by the name of Sidney Williams went to the drug store and entered. Shortly after they entered the police arrived and arrested them. Sidney Williams appeared at the trial as a witness for defendant and testified that he was the man arrested with the defendant at the Reveo Drug Store on October 14, 1973. According to Williams, he and the defendant were walking through the store’s lot when a man wearing a janitor’s uniform asked them to help him carry some boxes from the open storeroom to a parked car; they agreed to help him and entered the storeroom through the open garage door; as Williams entered he accidentally kicked the boxes supporting the garage door and it fell shut; it reopened “real quick,” a policeman was there with a gun, and he arrested them.

Both at the trial level and here, defendant has emphasized the fact that the only evidence of tampering with any door or window was the sawing through of the bolt on the overhead garage door. Since the evidence showed that this could not have been done from the outside, defendant suggests that the evidence shows only a breaking out, not a breaking in as required in order to show the commission of burglary.

One answer to this argument is that no inference can be drawn that there was no breaking in simply from the absence of physical evidence of some tampering with a place of entry. Rather the jury may infer that there was a breaking in from evidence that the owner or someone in his behalf checked the premises and locked all entrances shortly before the unauthorized entry and theft, even though no physical evidence appears of any broken place of entry and the method of entry is left wholly unexplained. State v. Bradley, 485 S.W.2d 408 (Mo.1972); State v. Young, 345 Mo. 407, 133 S.W.2d 404 (Mo.1939).

A more satisfying answer to defendant’s argument, however, is that the opening of the garage door from the inside was not simply to let a thief out, but obviously was for the real purpose of facilitating the entry into the store of one or more confederates who could then help in carrying out the criminal enterprise. To illustrate in the simplest terms, let us assume that defendant hid himself within the premises before closing time and after King locked the store and left, defendant proceeded to saw through the bar on the garage door. This breaking of the door was not simply to get out, as is demonstrated by the fact that defendant was apprehended inside the store together with and in the company of Williams. Consistently with the assumption hypothesized, the jury could very reasonably have inferred that defendant cut the bar and broke the overhead door for the purpose of letting his confederate Williams into the store to help him in garnering the fruits of the crime.

Moreover, this further question introduces into the analysis: what became of the money and drugs identified as being missing from the store? The jury legitimately could have inferred that a group of confederates had cooperated in already accomplishing the removal of those items before the police arrived and that defendant and Williams were in the course of getting out still more. That other persons in addition to defendant and Williams were in fact involved in the thievery is evidenced by defendant’s statement to the police that he and Williams had gone to the store after having been called by a third party and also by the trial testimony of Williams to the effect that he and defendant had entered the store in order to help some unidentified third party to remove merchandise from the store. The breaking of the garage door to admit entry of additional conspirators would be sufficient to support a finding of burglary, even though the breaking was accomplished from the inside by one of the conspirators already within the building.

Of course if there was a conspiracy to burglarize this Reveo Store, defendant was bound by the acts of his confederates, and the act of one was the act of all. State v. Rhodes, 408 S.W.2d 68 (Mo.1966); State v. Ruffin, 286 S.W.2d 743 (Mo.1956). That defendant was a confederate in the burglary could have been inferred reasonably by the jury from the facts that he was present along with Williams inside the drug store which had been recently broken into at an early morning hour when the store was closed, their flight when confronted by a police officer, the condition of the storeroom where defendant was found, his giving a false name to the police when arrested and the statement he gave the police when interrogated. State v. Burnley, 480 S.W.2d 881 (Mo.1972); State v. Fowler, 473 S.W.2d 353 (Mo.1971); State v. Lindner, 282 S.W.2d 547 (Mo.1955); State v. Ruffin, supra.

Affirmed.

All concur.


text:
    James H. GRIFFIN, Respondent, v. EVANS ELECTRICAL CONSTRUCTION COMPANY and Royal Indemnity Company, Appellants.
    No. 27641.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.

      Harold J. Maddox, Kansas City, for appellants.
    Dean Frazier, Kansas City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

This is an appeal in a claim for Workmen’s Compensation. The Referee, Division of Workmen’s Compensation, before whom the original claim was heard, made an award in favor of the claimant (respondent here) for necessary medical aid and for 83/7ths weeks temporary total disability, in a total amount of $2,648.85. Upon review, this award was affirmed by the Labor and Industrial Relations Commission (hereinafter referred to as “Commission”), and the employer and insurer (appellants here) appealed to the Circuit Court of Jackson County, Missouri, which court sustained the findings of the Commission and affirmed its award. This appeal followed in due course.

The appellants urge that the Circuit Court erred in affirming the award because it was not based on competent and substantial evidence and was contrary to the overwhelming weight of the evidence and that, therefore, the Commission acted without or in excess of its powers. Section 287.490(1) RSMo 1969.

In support of this position, the appellants urge four propositions, which, while somewhat overlapping and repetitious, may be summarized as follows:

1. The Commission failed to consider prior unexplained, inconsistent statements of the respondent touching on the issue of accident.

2. The Commission failed to consider competent and substantial evidence that respondent was suffering from the physical conditions for which he was claiming compensation prior to the alleged accident, and its finding that respondent suffered a su-barachnoid hemorrhage due to strain is not supported by competent and substantial evidence.

3. That the Commission based its award on the causal connection testimony of a non-expert medical witness (Dr. Spurny), who merely gave lip service to a hypothesis as to the elements of accident and causal connection of a non-medical «Xpert.

4. That there was no competent or substantial evidence upon which to base the finding of causal connection; that the so-called Seven Day Rule (Section 287.210(3) RSMo 1969) was not complied with; that Dr. Spurny is neither competent nor qualified to express an opinion in the field of neurology; and because there was no proof that the respondent suffered a subara-chnoid hemorrhage or that his other possible conditions were the result of his employment.

It is necessary that the well-defined scope of and limits to appellate review in cases of this nature be recognized at the outset.

Section 287.490(1) RSMo 1969, inter alia, provides:

“ * * ⅜ The court, on appeal shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
1. That the commission acted without or in excess of its powers;
2. That the award was procured by fraud;
3. That the facts found by the commission do not support the award;
4. That there was not sufficient competent evidence in the record to warrant the making of the award.
* * *7?

It is firmly established that the scope of appellate review is limited to these four grounds specified in the statute. Biggs v. Loida, 488 S.W.2d 932, 933[2] (Mo.App.1972).

However, further decisional guidelines have been set down with reference to these statutory grounds. In Miller v. Sleight & Hellmuth Ink Co., 436 S.W.2d 625, 627-628[5] (Mo.1969), the court said:

“The judicial review of a workmen’s compensation case is of the whole record, including the legitimate inferences to be drawn therefrom, in the light most favorable to the award of the Commission. The function of the court is to determine whether the Commission’s findings, if supported by competent and substantial evidence, are contrary to the overwhelming weight of the evidence. * * * ”

See also: Brown v. Anthony Manufacturing Company, 311 S.W.2d 23, 27[1, 2] (Mo. banc 1958); Francis v. Sam Miller Motors, 282 S.W.2d 5, 11 — 12[1] (Mo.1955). “Substantial evidence”, as used in these criterion, means competent evidence, which, if believed would have a probative force upon the issues. State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 220 S.W.2d 61, 64[3] (Mo. banc 1949). The credibility of the witnesses and the weight to be given to their testimony falls within the function of the Referee, in the first instance, and of the Commission, and this applies to the credibility of and the weight to be given to the testimony of the claimant. Shepard v. Robinson, 451 S.W.2d 329, 335[6] (Mo.1970); Roux v. Dugal’s Big Star Food Store, 510 S.W.2d 810, 812[6] (Mo.App.1974).

The evidence in this record, when so viewed, establishes the following facts:

The respondent-claimant, while in the employ of the Evans Electrical Construction Company, was working as an electrician at Marion Laboratories in Jackson County, Missouri on March 16, 1972. At approximately 2:40 p. m. on that date, Griffin and another employee were instructed by their supervisor to obtain a wire-pulling machine weighing approximately 60 to 70 pounds from the basement of the building and to bring it to the first floor to be used in pulling some wire through a pipe conduit. The other employee did not respond to this order, and, while carrying this machine to the first floor by himself, Griffin claims to have been injured. He testified that he carried the machine at waist level up one-half of the first flight of stairs from the basement to a landing, where he encountered two workmen descending with a piece of pipe on their shoulders. The steps were approximately three feet wide and in order for him to clear the stairs for free passage of the other workmen, he “twisted and raised that machine to get it above the handrail next to the wall.” He stated that he “seemed to have lost his grip or the machine slipped out of my hand or something. Anyway, it slipped, bounced off the handrail and I bent over and grabbed it before it could hit the floor and brought it back to a position where I could carry it the rest of the way.” When he got to the location where the machine was to be used, he was “totally exhausted” and “physically felt that I couldn’t go any further.” It should be noted that appellants make no claim that the occurrence as described in the claimant’s testimonial account would not constitute an “abnormal and unusual strain” and thus a compensable accident, even though unaccompanied by a slip or fall, since Crow v. Missouri Implement Tractor Company, 307 S.W.2d 401, 405[1] (Mo. banc 1957).

The alleged inconsistent and unexplained statements of claimant as to the issue of accident which the appellants charge the Commission failed to consider are contained in a statement taken by a claims adjuster for the insurer dated May 9, 1972, and two reports by Dr. Spurny, claimant’s attending physician.

The statement to the insurer was narrative in form and in the handwriting of the adjuster, signed by the claimant. A careful comparison of the facts therein related with the claimant’s testimony discloses at most elements of inconsequential inconsistency. The written statement contains the account, “I really don’t remember feeling any strain in my back. I did not trip, fall or slip or stop. It was just a steady walk with the machine.” In his hearing testimony, he stated the machine slipped and he grabbed it as hereinbefore noted.

In the reports of Dr. Spurny, he states that the claimant told him that he was “lifting a heavy load of work” and, again, that he was “carrying a wire pulling machine up some steps and lost his balance and almost fell, which caused him to put forth extra effort while in a strained and twisted position to right himself and to hold on to the heavy machine.”

A fair reading of these statements as to the occurrence clearly discloses that they are not so diametrically opposed or so self-contradictory as to rob the claimant’s testimony of probative value or evidentiary force, as asserted by the appellants. Any slight inconsistencies that could be gleaned or laboriously extracted from such comparison, while admissible as impeachment, would, at most, affect the claimant’s credibility, which was for the trier of the facts.

In the case of Cain v. Orscheln Bros. Truck Lines, Inc., 450 S.W.2d 474 (Mo.App.1970), a case remarkably similar factually to the case at bar, this court held that even if the claimant is the only witness as to the accident and has made prior out-of-court inconsistent statements, such statements did not destroy the prima facie probative effect of his in-court testimony, and such testimony, if believed, constituted substantial evidence of the fact of the accident.

In the case of Wigham v. Ben Franklin Division of City Products Corporation, 459 S.W.2d 32, 39[3] (Mo.App.1970), this court followed the rule in Crow and subsequent decisions, that unusual and abnormal strain, even though unaccompanied by a slip or fall, constitutes a compensable accident, and again exhaustively explored the rules applicable to inconsistent extrajudicial statements as declared in Cain.

Counsel for appellants (who was also counsel for appellants in Cain and Wigham) urges that the rules therein stated now be discarded. This court declines that invitation, but to the contrary, reaffirms those decisions as binding here, and holds that the finding of the Commission, that the “wire-pulling machine slipped from claimant’s grasp, and while grabbing it to keep it from striking the floor, he was in an unusual and awkward position which caused an abnormal and unusual strain” was supported by competent and substantial evidence. Appellants’ first point is ruled against them.

Further facts necessary for a determination of appellants’ remaining points may be thus summarized:

Within a short time after the incidents above related, the claimant noticed that his speech had become slurred and that he was losing motor control on the right side of his face. The claimant advised his foreman, Garden, of his difficulties, and the foreman testified that the claimant also complained of a “kink” or “spasm” in his neck, but told him it and his other difficulties would probably “go away in a little bit”, or some similar statement. The claimant testified that while driving home from work, he experienced a loss of coordination of his right arm and hand, which affected his ability to drive. He also experienced difficulty in swallowing and writing.

Upon arriving at his home, he managed to communicate his difficulties to his mother, with whom he lived; she called Dr. Spurny and then drove the claimant to Menorah Hospital. At the hospital emergency room, the mother did the talking and claimant was examined by an intern. Upori the arrival of Dr. Spurny, he was again examined, a spinal tap was performed, and he was admitted as an inpatient at the hospital. The claimant remained in the hospital from March 16, 1972 until March 31, 1972, under the care of Dr. Spurny, during which time a neurologist was called in consultation and various additional spinal taps and other tests were performed. Upon his release from the hospital, he remained at home in bed for approximately two weeks, and on May 15, 1972, Dr. Spurny released him to return to his regular work.

Dr. Spurny’s diagnosis was that the claimant’s injury was an acute, small traumatic subarachnoid hemorrhage, which he stated was caused, in his opinion, with reasonable medical certainty, by the strain and incident with the wire-puller, as related in claimant’s testimony and hypothesized to the Doctor. He stated that the strain would result in an increased pulse rate and an elevation of the blood pressure, which, in turn, would increase the stress to the walls of the arteries and the surrounding blood vessels. This, in his opinion, caused a rupture or hemorrhage to a weak blood vessel at the base of claimant’s brain. It should be here noted that the claimant had been a patient of Dr. Spurny’s since 1961.

The claimant testified that he had never experienced nor suffered from the conditions and symptoms arising on March 16, 1972, before that date, and his prior health had been good. These facts were included in the factual hypothesis upon which the Spurny opinion was predicated. However, the appellants assert that the testimony of foreman Garden, that claimant stated to him that his difficulties would “go away” (which statement claimant denied having made) established that he had been suffering from this condition prior to March 16, 1972, and this destroyed the claimant’s testimony of prior good health, and accordingly, the factual hypothesis of prior good health addressed by counsel to Dr. Spurny was improper. This strained and distorted construction of the record is rejected.

Appellants attack the procedures with reference to the hypothetical question and the opinion elicited from Dr. Spurny based thereon because, as their argument is understood, the question was based upon facts given to the Doctor by his patient, and not upon facts within the Doctor’s personal knowledge, and therefore violated the hearsay rule. The rule prohibiting an hypothesis based upon hearsay has no application here. The proper and approved method to establish facts forming an hypothesis for an expert medical opinion is to elicit competent evidence of those facts in the record independent of the history which may have been given the doctor in the privacy of an examination or treatment. Davies v. Carter Carburetor, Division ACF Industries, Incorporated, 429 S.W.2d 738, 750-751[15, 16] (Mo.1968). All of the facts hypothesized by claimant’s counsel to Dr. Spurny had, in fact, been established in the record by the sworn testimony of the claimant; counsel specifically warned the Doctor to eliminate from his consideration any history given him by claimant; and, counsel specifically stated that he was basing the hypothesis upon the “testimony here by Mr. Griffin”. The hypothetical question was supported by the record and Dr. Spurny’s -opinion was properly received.

The principal thrust of appellants’ attack upon the Spurny opinion is that he lacked the necessary qualifications to give it in the area of neurological medicine. .This proposition is likewise rejected.

Dr. Spurny at the time of the hearing had specialized in the field of internal medicine and cardiology for a period of 15 years; .he had graduated in medicine at the University of Vienna in 1951, and from the University of Arkansas in 1956; he was a member of the staff at Menorah Hospital and Research Medical Center at Kansas City, an Associate Professor of clinical medicine at the University of Kansas Medical Center, and a consultant in this field at the medical school of the University of Missouri at Kansas City; he was certified by the American Board of Internal Medicine and the American Board of Cardiology; and, was a Fellow in the American College of Physicians. While candidly admitting that those physicians who specialize entirely in neurology are perhaps more knowledgeable in that field, Dr. Spurny further stated that Board certification in the field of internal medicine includes a section on neurology, and that the field of neurology cannot be separated from the area of general internal medicine. It has long been the rule in Missouri that the extent of training, experience and competence of a medical expert in the field in which he testifies goes to the weight to be given to and not the admissibility of his testimony in that area, and thus becomes a matter for the trier of the facts. Sanguinett v. May Department Stores Co., 228 Mo.App. 1161, 65 S.W.2d 162, 166[8, 9] (1933); Pate v. St. Louis Independent Packing Company, Division of Swift and Company, 428 S.W.2d 744, 750[4] (Mo.App.1968); Swope v. Printz, 468 S.W.2d 34, 40[10] (Mo.1971); and eases cited therein.

The appellants offered the testimony of Dr. Whittaker, who had examined the claimant on their behalf on August 23,1973, and whose qualifications as a specialist in neurological medicine was not challenged. The course of his testimony established that in his professional opinion, the claimant did not suffer from an accident-induced subara-chnoid hemorrhage on March 16, 1972, but as his first diagnostic choice he stated “viral encephalitis” and as his second, “an unexplained stroke”. The record thus discloses that his opinion was different and, indeed, in direct and irreconcilable conflict with that of Dr. Spurny.

The Commission accepted the opinion of Dr. Spurny, which was supported by his admissible and competent evidence. Where, as here, the expert medical evidence and opinion conflict, it is the prerogative of the trier of the facts to accept one or the other version, and such acceptance by the Commission will not be set aside under appellate scrutiny unless such finding is against the overwhelming weight of the evidence. Stegall v. St. Joseph Lead Company, 465 S.W.2d 855, 861[3] (Mo.App.1971); Davidson v. Scullin Steel Company, 408 S.W.2d 171, 175[1] (Mo.App.1966).

Under their third point, appellants complain that the Referee improperly excluded their Exhibit No. 10. The background of this trial incident occurred during the cross-examination of Dr. Spurny. Counsel for appellants asked for and was given permission to examine the Doctor’s personal office file which the Doctor had apparently brought with him to the hearing. A recess was taken for that purpose. Immediately following the recess, counsel had Exhibit No. 10 marked. It was a typed, undated, unsigned memorandum, purportedly from claimant’s counsel to Dr. Spurny, calling attention to the facts of the Griffin “episode” on the job and the necessity of establishing a causal medical connection. The Doctor could not identify the note, did not recall receiving it, didn’t know if he had ever seen it before, and stated it meant nothing to him. Further, counsel for appellants stated during this examination “I didn’t find that in your file, Doctor” and “I didn’t find No. 10 in your file.” There was no further identification of the exhibit nor explanation of its source nor showing of its relevancy. It was therefore hearsay and properly excluded. The appellants’ second and third points are ruled against them.

All of the matters raised by appellants in the fourth point, except one, have heretofore been covered in this opinion and ruled adversely to appellants. In this sole remaining point, the appellants assert a violation of Section 287.210(3) RSMo 1969, the so-called “Seven Day Rule”, with reference to the exchange of medical reports. In substance, this statute provides that when a compensation claim is set for hearing, the parties or their attorneys shall exchange all medical reports of both treating and examining doctors, “to the end that the parties may be commonly informed of all medical findings and opinions.” It is further provided that such exchange shall be made at least seven days before the date set for the hearing, and that failure to comply may be sufficient grounds for a continuance, and that in the event of failure or refusal to furnish the reports, and upon objection, the physician shall not be permitted to testify at the hearing.

Section 287.210(5) RSMo 1969 provides that the above requirements apply to both the printed medical forms authorized by the Commission or any complete medical report. The section further provides:

“ * * * term ‘complete medical report’ means the report of a physician giving patient’s history, complaints, details of the findings of any and all laboratory, X-ray and all other technical examinations, diagnosis, prognosis, nature of disability, if any, and an estimate of the percentage of permanent partial disability, if any.” (Emphasis supplied)

Section 287.210(3) and (5) is a discovery tool, the purpose of which is to insure that all parties are commonly informed of all medical findings and opinions. Oder v. St. Joe Minerals Corp., 484 S.W.2d 487, 494[7, 8] (Mo.App.1972).

The hearing before the Referee in this case was held March 20 and March 21, 1974. So far as this record discloses, Dr. Spurny made reports on the “Standard Form For Surgeons Report” dated May 6, 1972 and May 25, 1972, and a narrative or “complete medical report” to claimant’s counsel dated August 1, 1972. Appellants do not suggest that they did not receive copies of these reports as provided by Section 287.210(3) RSMo 1969, or that claimant was supplied with any additional reports which they did not receive. Consequently, they are not contending that they were not “commonly informed”.

The thrust of appellants’ argument appears to be that in none of Dr. Spurny’s reports did he expressly state an opinion that claimant was temporarily totally disabled, but only expressed such opinion in his hearing testimony, which they did not “receive” seven days before the hearing. Upon this premise, they assert that the Commission erred in accepting that testimony and basing an award thereon.

This tortured and tenuous argument falls of its own weight, in light of the statute involved and the facts in this case. In the first place, Section 287.210(5) does not require that the “complete medical report” shall contain any estimate of “temporary total disability” but applies the requirement only as to “permanent partial disability”. Dr. Spurny did not express in writing or in his testimony any opinion as to permanent disability and, indeed, disclaimed any ability to make any rating on that basis. In this connection, Dr. Whittaker, the appellants’ medical expert, facetiously (it would seem) expressed his opinion of the claimant’s permanent partial disability, which he did not ascribe to any accident, as “⅜ of 1%” of the body as a whole. This constituted the only evidence of permanency in the case and, of course, no award was made based upon any permanent disability.

Further, appellants’ argument is without merit because Dr. Spurny did, in fact, state an opinion as to the claimant’s temporary total disability in the report of May 25, 1972, although that term was not specifically used. In this form report, the following appears:

“20. Patient was able to resume regular work on: May 15, 1972”

thus fixing the period of his temporary total disability from March 16, 1972 to May 15, 1972, which formed the basis for the award. There is no merit in this contention of appellants.

The judgment is affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    George HATFIELD, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27672.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.

      Joe Hamilton Scott, Public Defender, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

Appellant was originally found guilty of first degree murder and sentenced to life imprisonment on April 13, 1970. He appealed from that conviction unsuccessfully, State v. Hatfield, 465 S.W.2d 468 (Mo.1971). He then filed his first motion to vacate or set aside sentence which was ruled against him, Hatfield v. State, 487 S.W.2d 574 (Mo.1972). Subsequently, he filed his second motion to vacate, set aside, or correct judgment of conviction pursuant to Supreme Court Rule 27.26, the one now considered, in which he alleged that he has discovered new evidence (supported by affidavits) which, if found to be true, would demonstrate that in taking the life of his victim he (appellant), either (a) acted in self-defense or (2) was guilty of no greater offense than that of manslaughter; and that because of this newly discovered evidence he is entitled to a new trial.

In response to this second motion to vacate, the State filed a motion to deny applicant’s motion to set aside or correct judgment which was sustained by the court below, without hearing, on the basis that allegations of newly discovered evidence “are not grounds for relief under Supreme Court Rule 27.26 or by Error Coram Nobis.”

On this appeal the appellant claims that he is entitled to a new trial on the basis of newly discovered evidence, or, “at least” a hearing on his motion to vacate sentence.

Appellant cites no Missouri cases in support of his position that newly discovered evidence provides a basis for relief under Rule 27.26 (nor has any been found). To the contrary, appellant states that he “is aware that there is precedent for the proposition that newly discovered evidence is not cognizable in a motion to vacate sentence under Rule 27.26 * * * ”, citing Beishir v. State, 480 S.W.2d 883 (Mo.1972).

In Beishir the appellant had filed a 27.26 motion in which he claimed the discovery of new evidence which allegedly demonstrated that two men, since deceased, had admitted that they, rather than Beishir and Beishir’s co-defendant, had participated in the robbery for which Beishir had been convicted. The lower court conducted a hearing, subject to the State’s objection that the new evidence afforded no grounds for 27.26 relief, and ruled that the allegations concerning new evidence were not proven. On appeal, the Missouri Supreme Court said: “The state’s position that 27.26 does not afford a vehicle for relief on the basis of evidence of another’s guilt of the crime is valid and provides adequate basis for af-firmance of the trial court’s denial of relief on this ground.”

Rule 27.26 has not been changed since the Beishir case was handed down. Consequently, it must be ruled that the trial court did not err in denying a hearing and relief to appellant; and since appellant’s 27.26 motion involved solely a question of law, the trial court’s summary dismissal of the motion was proper. Meeks v. State, 512 S.W.2d 215 (Mo.App.1974). Nor does a writ of error coram nobis lie when relief is sought on the ground of newly discovered evidence. State v. Cerny, 286 S.W.2d 804 (Mo.1956).

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Jasper Lee STEWART, Appellant.
    No. KCD 27734.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.

      Thomas M. Larson, Public Defender, Mark D. Johnson, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Jasper Lee Stewart, under indictment for murder, first degree, was convicted by a jury of murder, second degree, and his punishment was assessed at 75 years’ imprisonment. Sentence and judgment were rendered accordingly. §§ 559.010, 559.020, 559.030, RSMo 1069, V.A.M.S.

The defense was justifiable homicide while acting in self-defense. (§ 559.040, RSMo 1969, V.A.M.S.) Appellant does not question the sufficiency of evidence to sustain his conviction, and the jury reasonably could find that: On March 26, 1974, at approximately 7:30 p. m., at 11th and Forest Streets, Kansas City, Jackson County, Missouri, Jasper Lee Stewart intended to kill Emanuel L. Beeks when he fired four shots from a revolver at Emanuel L. Beeks; that one shot entered the victim’s left upper arm one inch below shoulder level, and three entered the left side of his back, two of which exited in the anterior chest and one from the base of his neck; that Emanuel Beeks died as a result 'of such wounds.

Appellant charges the court erred (I) in refusing to allow defendant to question Mrs. Bertie Mae Scott whether the victim, Emanuel L. Beeks, had a reputation in the community “as an individual who carried a weapon.”

Defendant testified in his own behalf that he encountered the victim in the doorway of a store at 11th and Forest; that he was about to step in the doorway when “Emanuel Beeks stepped out, and grabbed my hand, and spinned me around off the curb. * * * he punched me, see. * * He run his hand in his pocket. * * * I saw an object in his hand. I didn’t know whether it was a gun or knife. It was a shiny piece of metal. ⅝ * * In his hand * * * Out of his pocket. * * * I shot him. * * * I heard several people say he was a very violent man, very violent tempered ⅜ * *.” He was told so by his “sister for one. She used to stay in the apartment building. He used to create a lot of disturbance, and mess with people.”

Defendant also called Bertie Mae Scott on the issue of the victim’s reputation, and the following occurred:

“Q. Are you related in any way to the defendant in this matter, Jasper Stewart? A. No, I am not. Q. Do you know him well? A. I know him, but not too well.
“Q. Now, did you know Mr. Leonard Beeks? A. Oh, yes. Q. What were the circumstances and the length of your acquaintance of Mr. Beeks? A. I know Beeks through my sister. Q. Are you familiar with other persons in this community who knew Mr. Beeks? A. Oh, yes.
“Q. Do you know the reputation — did you know — do you know the reputation for Mr. Beeks being a man of violent character? A. Oh, yes, he was. Q. He did have a reputation? A. I am sure. Q. Do you know the reputation of Mr. Beeks for being a man who carried a weapon? A. Oh, yes.
“MR. HAGGERTY: Your Honor—
“THE COURT: Objection is sustained. The jury is instructed to disregard that question and any implication thereof.”

Appellant argues that whether the victim had a reputation for being a man who carried a weapon was relevant and material on the issue of self-defense; and that such a statement from Mrs. Scott was of particular value because she was a “neutral” witness, denial of her answer was reversible error.

Mrs. Scott was qualified to testify on the issue of the victim’s general reputation in that she was acquainted with him and the community in which he lived and moved, and knew his character. State v. Antwine, 506 S.W.2d 397, 399[2] (Mo.1974); State v. Kain, 330 S.W.2d 842 (Mo.1960); 97 C.J.S. Witnesses § 55, p. 443. In a homicide case where the defense is self-defense, evidence is competent to show that the deceased bore a reputation for being of violent and turbulent disposition or character. Such testimony is limited, however, to general reputation and does not encompass specific acts not connected with defendant. State v. Maggitt, 517 S.W.2d 105, 107[1] (Mo. banc 1974); State v. Duncan, 467 S.W.2d 866, 867[1, 2] (Mo.1971). Under these authorities, both Mrs. Scott and defendant were properly permitted to testify to their knowledge of the victim’s reputation as a man of violent character, and her testimony on his reputation as a man who carried a weapon was properly excluded. The latter was not relevant on whether the victim had a reputation for violence and turbulence because a weapon may be lawfully and peaceably carried without a resultant reputation for a violent and turbulent character or disposition.

Appellant charges the court erred (II) in admitting into evidence State’s Exhibits 19 and 20, color photographs showing the victim lying in the street in a trail and pool of blood, “for the reason that said exhibits were offered for no valid evidentiary purpose and inflamed the jury.” He asserts that the facts revealed by the photographs were related by other witnesses, that the victim had otherwise been identified by Exhibit 8, and that they were taken “a substantial time” after the shooting, all to conclude that the exhibits did not relate to any issue tested at trial and served only to inflame the jury.

The general rules relating to admission of this type of evidence were recently summarized, State v. Jackson, 499 S.W.2d 467, 472[5-8] (Mo.1973): “The trial courts have a wide discretion in determining the admissibility of photographs. ⅜ * * It has generally been held that even though a photograph may be inflammatory it is admissible if it tends to prove any material element of the State’s case; this includes the issues of identity, condition and location of the body, nature or location of wounds, and the cause of death; and, generally, if the photograph corroborates the oral testimony of the state or refutes defense testimony it is admissible.” See also State v. Moore, 303 S.W.2d 60 (Mo. banc 1957); State v. Clark, 494 S.W.2d 26 (Mo. banc 1973); State v. McDaniel, 336 Mo. 656, 80 S.W.2d 185 (1935); State v. Edwards, 435 S.W.2d 1 (Mo.1968); State v. Robinson, 328 S.W.2d 667 (Mo. 1959); 23 C.J.S. Criminal Law § 852(1), p. 342, et seq.

Under the foregoing rules, there was no error in the admission into evidence of Exhibits 19 and 20 in this ease. They were relevant in corroboration and clarification of testimony given by State’s witnesses; they identified the deceased and showed the location of his body with respect to where the shooting began, and the nature, location, and extent of the wounds. They were particularly material and relevant on the issue of self-defense in that they showed a closed pocketknife in the victim’s left hand near his left pants pocket. State v. Brewster, 525 S.W.2d 427, 429-430[4] (Mo.App.1975); State v. Stevens, 467 S.W.2d 10, 24 (Mo.1971); State v. Crow, 486 S.W.2d 248, 255 (Mo.1972); State v. Parsons, 513 S.W.2d 430, 439-440 (Mo.1974).

Judgment affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Waddell McCONNELL, Appellant.
    No. KCD 27756.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.
    Thomas M. Larson, Public Defender, Robert A. Simons, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction and sentence to life imprisonment, entered on jury verdict finding Waddell McConnell guilty of murder in the first degree.

On February 8, 1974, Mr. Hugh Buss was found stabbed to death in his tailor shop in Kansas City. Sometime in March, Robert Land, in police custody on other charges, told police that he had gone with Waddell McConnell to Buss’s shop and that McConnell had killed Buss after they had robbed him. McConnell was arrested and made a statement to police admitting his participation in the crime. The sole point of error on this appeal relates to the use of McConnell’s statement over the objection that it was obtained in violation of his right to assistance of counsel.

In 1973, McConnell was charged with rape in Jackson County. Mr. Joseph H. Moore of the Kansas City Bar was appointed to represent McConnell. McConnell was sentenced on a plea of guilty to a lesser charge and, upon receiving credit for jail time, was discharged shortly. Between that time and the time of his arrest for Buss’s death, he had several brushes with law enforcement officers and he or his girl friend, Iva Hampton, was in touch with Moore from five to ten times in connection with such matters.

On Sunday, March 24, 1974, around noon, Mrs. Hampton called Moore and told him that McConnell was under arrest for a killing. Moore told her that he would call the police and find out what was going on and get in touch with her. At the hearing to suppress McConnell’s statement, Moore stated: “ * * * [A]ll the time since I had been appointed by the Court to represent Mr. McConnell, I considered myself his lawyer, and to the best of my knowledge he certainly considered me his lawyer, and I considered him my client.”

Moore called Detective Linhart, of the Crimes Against Persons Unit, Kansas City Police Department, a personal friend who knew Moore was a criminal defense attorney. Linhart said he would have the officer in charge of the case call Moore. A short time later, Major Campbell of the Police Department called Moore and told him that McConnell was under arrest in the Buss killing. Campbell told Moore that he had some information in the case that didn’t “ring true” and he wanted to give McConnell a lie detector test. After some hesitation, Moore told Campbell: “All right, Jim, go ahead and give him the polygraph. Tell him that you have talked to me and that I said it’s okay to take the polygraph.” Nothing further was said and Moore heard no more until the next day when he was told that McConnell had “flunked” the polygraph and “spilled his guts.”

Except for Moore’s statement, the record shows nothing about the administration of a polygraph test or its results.

Following the call to Moore, Mrs! Hampton went to police headquarters around 6:00 P.M. and was permitted to visit with McConnell. After a brief visit she told Sergeant Elmer Meyer, supervisor of the homicide section of the Crimes Against Persons Unit that McConnell wanted to talk to him. Sergeant Meyer said that he did not talk to prisoners and that he would call a detective to whom McConnell could talk. Mrs. Hampton said McConnell wanted to talk to him. Sergeant Meyer then went to the office where McConnell was and told him he would talk to him “if you honestly want to talk to me.” McConnell said he did and the Sergeant thereupon read the Miranda warning to him. He asked McConnell if he understood the warning. McConnell said that he did and signed a copy of the warning which had been read to him. Sergeant Meyer asked McConnell about his education and McConnell said he had gone to the ninth grade.

The questioning began in the presence of Mrs. Hampton. When she left to get cigarettes for McConnell, Meyer told him:

“ ‘Now, if you really want to tell the truth about this matter and you don’t want to withhold anything, let’s tell the truth; otherwise, I am not going to spend any more time with you. Now, if you can tell me everything and make sure it’s the truth, or let’s just stop right here.’ At this point he said, T want to tell you.’ I said, ‘Fine. We will get Mrs. Hampton back in here and she can be present all during this time.’ ”

When Mrs. Hampton returned, McConnell under Meyer’s questioning related the details of the Buss killing. Meyer then asked McConnell whether he would put the statement in writing and when McConnell replied affirmatively, they went to a typist where a question and answer statement was reduced to writing. McConnell, according to Meyer, read the statement after it was typed and signed each page, acknowledging that he had done so. Mrs. Hampton also initialed each page of the statement.

The defendant moved to suppress his statements on the grounds that they were obtained in violation of his rights under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, §§ 18(a) and 19 of the Constitution of Missouri. The motion also alleged that use of the confession would violate Canon 9 of the Canons of Ethics, because the confession was obtained by the police when defendant was known by the Police Department to be represented by counsel.

After a hearing on the motion to suppress, at which Sergeant Meyer, Officer Linhart, Major Campbell, Mrs. Hampton and Mr. Moore testified, the court overruled the motion to suppress. Over objection at the trial, Sergeant Meyer testified to the oral statement McConnell made to him and the written statement was introduced in evidence.

Robert Land also testified on behalf of the state. He had been granted immunity from prosecution in return for his testimony.

The jury returned a verdict of guilty.

Appellant’s point on this appeal is stated as follows:

“THE COURT ERRED IN FAILING TO SUSTAIN THE MOTION TO SUPPRESS APPELLANT’S ORAL AND WRITTEN CONFESSION BECAUSE IT WAS TAKEN WITHOUT BENEFIT OF COUNSEL AFTER COUNSEL HAD ENTERED THE CASE, CONTRARY TO APPELLANT’S RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 18(a), AND SECTION 19, CONSTITUTION OF THE STATE OF MISSOURI.”

(No reference to the Sixth Amendment to the United States Constitution appears in appellant’s motion below, but because of the liberality now accorded raising such questions, it will be treated as having been properly raised.)

Appellant’s basic position that the use of the confession was erroneous because taken without presence of counsel after counsel “entered” the case must be rejected. The argument here advanced was presented in Moore v. Wolff, 495 F.2d 35 (8th Circuit 1974). In disposing of the contention the court stated (495 F.2d 36-37):

“ * * * Petitioner does not challenge that he received the Miranda warnings or voluntarily made the oral incriminating statements. His argument instead is that after the appointment of counsel no interrogation can take place without counsel being notified and given an opportunity to be present. Without notice and opportunity to be present it is argued that the accused cannot ‘knowingly and intelligently’ waive his Fifth Amendment privilege.

“We cannot agree. Although Mathies v. United States, 126 U.S.App.D.C. 98, 374 F.2d 312 (1967), contains a footnote by then 'Circuit Judge, now Chief Justice, Burger indicating his belief that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) would require the presence of counsel at all interviews once an accused was represented, such has not been the unanimous view in the circuits squarely presented with the question. United States v. Cobbs, 481 F.2d 196 (3rd Cir.), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Thomas, 474 F.2d 110 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973); United States v. Springer, 460 F.2d 1344 (7th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1973); Wilson v. United States, 398 F.2d 331 (5th Cir.1968), cert. denied, 393 U.S. 1069, 89 S.Ct. 727, 21 L.Ed.2d 712 (1969); Coughlan v. United States, 391 F.2d 371 (9th Cir.), cert. denied sub nom., Coghlan v. United States, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968); cf. United States v. Barone, 467 F.2d 247 (2d Cir. 1972).

“[2] If an accused can voluntarily, knowingly, and intelligently waive his right to counsel before one has been appointed, there seems no compelling reason to hold that he may not voluntarily, knowingly, and intelligently waive his right to have counsel present at an interrogation after counsel has been appointed. Of course, the Government will have a heavy burden to show that the waiver was knowingly and intelligently made. Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. 1602, but we perceive no compelling reason to adopt the per se rule advocated by petitioner. In fact, Miranda expressly recognizes that such interrogation may continue without presence of counsel, though the burden of showing a knowing and intelligent waiver is a heavy one. Here, the facts establish beyond any doubt that the Government’s burden was discharged and petitioner’s waiver was voluntarily, knowingly and intelligently made.”

That reasoning adequately answers appellant’s contention here. Such conclusion is not inconsistent with the holding in State v. White, 494 S.W.2d 687 (Mo.App.1973), cited and relied upon by appellant. That case involved a 15-year-old juvenile who was represented by an attorney at a juvenile court waiver hearing. Neither the attorney nor the juvenile’s mother was advised of the police interrogation the day following the waiver hearing, at which the juvenile made an incriminating statement. The court there held that there could not have been an intelligent waiver by the juvenile absent some adult protection against the unequal police authority there existing. The court concluded that, in the circumstances of that case, the interrogation should not have proceeded unless the law enforcement officers had made a reasonable effort to notify and have present his parents and attorney.

In this case, the appellant was 18 years of age at the time of his arrest. Therefore, the White decision dealing with a juvenile is distinguishable.

Cases from other jurisdictions, cited and relied upon by appellant, are also distinguishable. In People v. Lacy, 26 A.D.2d 982, 274 N.Y.S.2d 944 (1966), and State v. Johns, 185 Neb. 590, 177 N.W.2d 580 (1970), the defendant had made an unequivocal request for an attorney before being questioned. In Commonwealth v. McKenna, 355 Mass. 313, 244 N.E.2d 560 (1969), the attorney had specifically requested to be present at any interrogation of his client. In People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968), the attorney had appeared at the police station and was denied access to his client.

Here, the attorney had made an inquiry of the police, but he acknowledges that he did not advise the police that he was representing appellant in this case and, other than the call, he took no action on behalf of appellant.

On the question of intelligent waiver by appellant, Sergeant Meyer testified that he advised appellant of his right of assistance of counsel. No question is raised as to the adequacy of the advice. Appellant acknowledged that he understood the advice and signed an acknowledgment to that effect. Sergeant Meyer inquired concerning his educational background and received information which led him to believe that appellant was capable of understanding the advice. Nothing in the course of the interview led the officer to conclude otherwise. The Miranda warning was repeated prior to the taking of the written statement. The appellant read the statement after it had been prepared and acknowledged by his signature that he had done so. He wrote the word “yes” in response to two questions on the written statement form. There is no contention of any sort of psychological pressure or unfair tactics in the interview, which originated with appellant’s request.

Appellant points to reports of his mental examination, offered at the hearing on the motion to suppress, in which a psychiatrist and a psychiatric social worker at Western Missouri Mental Health Center reported that appellant had not done well in school, had left after the seventh grade and never learned to read or write. The psychiatrist found: “His general fund of knowledge, his intellectual endowment appears to be slightly below normal which may be attributed to educational, cultural and social deprivation.” The social worker stated: “He gives the impression of having Borderline Mental Retardation, possibly due to cultural deprivation.”

These factors are, of course, significant in determining whether or not appellant’s waiver of his right to counsel was knowing and understanding. See State v. Hyster, 504 S.W.2d 90, 94-95[6], [7, 8] (Mo.1974).

However, the testimony of Sergeant Meyer was adequate to sustain the state’s burden of showing an intelligent and knowing waiver by appellant, there being no direct testimony of any lack of understanding on the part of appellant. See United States v. Frazier, 155 U.S.App.D.C. 135, 476 F.2d 891, 897[3] (1973).

Appellant has also relied upon the statement in State v. White, supra, regarding the effect of former Canon 9 of the Canons of Ethics (now DR 7-104(A)(l), Rule 4, Code of Professional Responsibility), prohibiting a lawyer from communicating with a party represented by counsel. In White, the court stated:

«* ⅝ * while this Canon does not purport to govern the conduct of non-lawyers, such as police officers, it does place a responsibility upon prosecuting attorneys not to sanction, or take advantage of statements obtained from local or state police officers from a person represented by counsel, in the absence of counsel.” 494 S.W.2d 692[8],

In Moore v. Wolff, supra, the court, in rejecting the per se rule appellant would apply here, also refused to fashion an exclusionary rule of constitutional stature from the provisions of the Code of Professional Responsibility. 495 F.2d 37[4]. The professional responsibility of attorneys referred to in White was a factor considered by the court in viewing the circumstances which led to the conclusion that there could have been no valid waiver of right to assistance of counsel in that case. White did not lay down a new exclusionary rule, based upon the Code of Professional Responsibility alone. The circumstances of this case do show an effective waiver of right to assistance of counsel. Such waiver having been shown, the Code of Professional Responsibility has no role in the admissibility of the. statements.

Judgment affirmed.

All concur.


author: SMITH, Chief Judge.

text:
    Minnie LINK, Respondent, v. Charles Raymond COX et al., Appellants.
    No. 35950.
    Missouri Court of Appeals, St. Louis District, Division 4.
    Oct. 7, 1975.

      William C. Batson, Jr., Ted M. Henson, Jr., Poplar Bluff, Donald A. Fee, Cape Gir-ardeau, for appellants.
    Rader, Smith & Calvin, Cape Girardeau, for respondent.
   SMITH, Chief Judge.

Defendants (except C & L Enterprises) appeal from a judgment in a court-tried case awarding damages to plaintiff for fraud by defendants. The judgment was for $9457.37 actual damages plus interest and $5000 punitive damages against all five defendants. We affirm as to defendants Charles Raymond Cox and Buster Brown and reverse as to Lois Maurine Brown and Patricia Cox (now Smiddy).

In 1968, Charles Cox, Buster Brown and a third man, Frederick Brown (hereinafter promoters) devised a plan to print and distribute stamps to Jaycee clubs throughout the United States. These stamps would include the emblem of the Jay cees. The Jaycee clubs would sell them as a moneymaking enterprise and C & L Enterprises would share in the money received. The promoters were in need of -financial backing and contacted plaintiff for such backing. She loaned the promoters and their corporation $7500 in May of 1968 and another $2000 in December of that year. She was to be repaid the amount of her loan plus a percent of the profits from the sale of the stamps. A written agreement was executed by the promoters with plaintiff. That agreement contained a stipulation by the defendant signatories that the stamp had been copyrighted. The agreement was not signed by either of the female defendants (wives of Buster Brown and Charles Cox) nor did plaintiff at any time have any contact with either of those defendants. Plaintiff testified that the promoters represented that C & L Enterprises was solvent and that the stamp was copyrighted.

There is no dispute that the stamp was not copyrighted, and that the promoters had been advised prior to seeing plaintiff that it was questionable it could be. In fact, shortly after the first loan, those defendants were advised that copyright had been refused. Defendants’ evidence was that plaintiff was told prior to the first loan that, in fact, no copyright had been obtain- • ed. Neither her testimony nor the written agreement supports such a contention. Defendants argue that the copyright statement was a statement of law. We disagree. That the design was copyrightable would be a statement of law; that it was copyrighted was a statement of fact. We also reject defendants’ contention that plaintiff should have checked further herself. Defendants were in a position of superior knowledge and in writing stipulated that a copyright existed. This was a positive explicit representation of a character to induce action. Plaintiff was not required to further investigate. See Conroy’s Inc. v. Ratz, 14 S.W.2d 465 (Mo.App.1929); Universal C.I.T. Credit Corp. v. Tatro, 416 S.W.2d 696 (Mo.App.1967).

No serious argument is raised that C & L Enterprises was insolvent at the time of both loans. At the time of the first loan the corporation had assets of $40 and was in debt over a thousand dollars. The promoters were officers of C & L Enterprises and plaintiff had a right to rely upon their statements of the corporation’s solvency.

Both of these misrepresented matters were relevant to plaintiff’s action in loaning the money to the corporation. The evidence warrants, in fact compels, the conclusion that the misrepresentations were made to induce her to loan the money and that she relied upon those statements in making the loans. The evidence also compels the conclusion that the absence of copyright and the absence of solvency were precipitating causes in the failure of the stamp plan, the bankruptcy of the company, and the loss of the money loaned by plaintiff. The evidence supports the judgment of the court awarding actual and punitive damages to plaintiff against defendants Charles Raymond Cox and Buster Brown.

There is absolutely no evidence to connect Lois Brown and Patricia Cox (Smiddy) to the fraudulent actions of Brown and Cox except their status as wives. Plaintiff had seen one of the wives once from a distance and had never met either of them. Neither wife had any demonstrated interest in the corporation nor anything to do with the stamp plan. Neither was shown to have known of the existence of plaintiff much less the financial involvement of plaintiff in the corporation or stamp plan. There was some evidence that each had received salary for certain work done for other enterprises run by the corporation which salary may have been traceable to the money loaned by plaintiff. But there was no evidence that either wife was aware of such source or knew that the money was the product of their husband’s fraud. The agency of the husband for the wife cannot be established merely by their marriage, but may be shown by circumstantial evidence. Ethridge v. Perryman, 363 S.W.2d 696 (Mo.1963) and Murphy v. Olds, 508 S.W.2d 249 (Mo.App.1974). There simply is no circumstantial evidence here except the marriage upon which to base a finding of agency. No actual participation in the fraud nor in the corporate management was shown and in the absence of an agency relationship recovery does not lie against the wives. We find no agency.

Judgment affirmed as to Charles Raymond Cox and Buster Brown; judgment reversed as to Lois Maurine Brown and Patricia Cox (Smiddy).

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.

      . This exhibit as well as all others introduced into evidence have not been provided to the Court as required by Rule 81.15. We, therefore, consider only those portions of the exhibits which were read into the record or were otherwise testified to. We presume that non-deposited exhibits are regarded by counsel as unnecessary to proper disposition of the case.


author: FLANIGAN, Judge.

text:
    STATE of Missouri, Respondents, v. Jeffrey Lee BORMAN, Appellant.
    No. 9892.
    Missouri Court of Appeals, Springfield District.
    Oct. 8, 1975.
    Rehearing Denied Oct. 31, 1975.

      Gene Gulinson, Salem, for appellant.
    John C. Danforth, Atty. Gen., Louren R. Wood, Asst. Atty. Gen., Jefferson City, for respondents.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Appellant Jeffrey Lee Borman appeals from a conviction and sentence of two years for breaking jail and escaping before conviction. § 557.390 RSMo 1969, V.A.M.S. The punishment, fixed by the jury, was the statutory maximum.

Conceding the sufficiency of the evidence to support the verdict, appellant contends that the trial court erred in permitting, over objection, appellant to appear before the jury in handcuffs and leg irons. The contention is sound.

The date of the offense was June 9, 1971, and the trial was held on October 15, 1974. In April, 1971, appellant was jailed on two charges of first degree murder, those charges having arisen in Howell County where the instant offense and trial occurred. On August 20, 1971, appellant entered pleas of guilty to the two murder charges and on each received a sentence of 45 years, the two sentences to run consecutively. The instant two-year sentence runs consecutively with the murder sentences.

In its appellate brief the state agrees with appellant’s factual description of the courtroom situation to be discussed.

At the beginning of the trial, which lasted one day, appellant was brought into the courtroom wearing leg irons, so chained that his feet could not be more than 18 inches apart. On each wrist he had a handcuff and each handcuff was connected to a chain around his waist, preventing him “from raising his hands more than several inches above his waist.”

Before the jury panel was brought in, appellant’s attorney objected to the presence of six armed officers in the courtroom (the officers included the sheriff, deputy sheriffs, a policeman, and at least one member of the highway patrol). The attorney requested that the handcuffs and shackles be removed and that the officers be seated “somewhere in the seating areas in the courtroom and not at close proximity to the jury or the defendant.” This request was denied.

Throughout the trial the jury could see that appellant was shackled and handcuffed. During the trial two deputy sheriffs and two police officers sat two or three feet directly behind the appellant, who sat at the counsel table; at times a trooper sat about three feet from the jury box and close to the witness stand. In addition, at least one officer was stationed at each door in the courtroom, although the number of doors is not shown. All officers, and there were at least seven of them, were visibly armed.

Following the noon recess, appellant’s attorney renewed his request with respect to the seating of the officers and the restraints. He also moved for a mistrial. In denying the request and the motion, the trial court noted that at the time of the trial another charge was pending against appellant in another county. That charge involved an assault upon a sheriff.

Fairness to the trial judge requires this court to state that after the verdict had been returned and accepted, the court informed the jury of the reasons for the physical restraints.

The right of a defendant in a criminal case to be free of physical restraints while attending his own trial is not absolute. Under “exceptional circumstances,” State v. Boone, 355 Mo. 550, 196 S.W.2d 794, 796[3] (1946), or for “good reason,” State v. Kring, 64 Mo. 591, 592 (1877), at least if the good reason is bottomed on the accused’s misconduct during the trial, State v. Kring, supra, 64 Mo. at 593; State v. Craft, 164 Mo. 631, 65 S.W. 280, 284 (1901); State v. Temple, 194 Mo. 228, 92 S.W. 494, 496 (1906); State v. Temple, 194 Mo. 237, 92 S.W. 869, 872 (1906); State v. Boyd, 256 S.W.2d 765, 766[4] (Mo. banc 1953); State v. McGinnis, 441 S.W.2d 715, 717[1] (Mo.1969); Bibbs v. State, 504 S.W.2d 319, 320[1] (Mo.App.1973); State v. Robinson, 507 S.W.2d 61, 63 (Mo.App.1974), the trial court in the exercise of sound discretion may require the accused to be physically restrained in a reasonable manner, and even though the fact and method of restraint are visible to the jury.

It is the responsibility of the trial judge to maintain “dignity, order and decorum” in the courtroom, Illinois v. Alien, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353, 359 and “trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations.” Illinois v. Allen, supra, 397 U.S. at 343, 90 S.Ct. at 1061.

The trial judge is vested with a considerable, but not unlimited, discretion in determining the propriety of permitting physical restraints after weighing the relevant factors, which include the presence or absence of disruptive conduct on the part of the defendant prior to or during the trial, the presence or absence of threats of such misconduct, the trial atmosphere, the likelihood of an attempt to escape, the age and physical attributes of the accused, the nature of the offense on trial, the size and mood of the audience and the adequacy of alternative remedies. It has rightly been said that the propriety of physical restraints depends upon the particular facts of each case. State v. Robinson, supra, 507 S.W.2d at 62.

The appellate courts of this state have shown a strong reluctance to interfere with the decision of the trial judge on the need for physical restraints. In at least twelve cases where the matter has been raised, complaints with respect to physical restraints have been held invalid. In three cases the trial court has been convicted of prejudicial error in having permitted some degree of physical restraint at some stage of the proceedings.

The right, limited though it be, of a defendant to be free of physical restraints is based, at least in part, upon the following considerations: “the jury must necessarily conceive a prejudice against the accused, he being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of the officers,” State v. Kring, 64 Mo. 591, 593 (1877); “the condition of the prisoner in shackles may, to some extent, deprive him of the free and calm use of all his faculties,” Kring, supra, at 593; “shackles may materially interfere with the defendant’s ability to consult orally or communicate in writing with defense counsel,” Kennedy v. Cardwell, 487 F.2d 101, 106 (6th Cir. 1973); shackling detracts from “the very dignity and decorum of the judicial proceedings that the judge is seeking to uphold,” Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353, 359 (1970).

The granting of a mistrial is a drastic remedy to be exercised only in those circumstances in which no action short of a mistrial would remove the prejudice claimed. State v. Johnson, 504 S.W.2d 23, 29[7] (Mo.1973). The trial court observes first hand what occurs in his courtroom and has considerable discretion in deciding whether a mistrial is warranted. Only if an appellate court finds such discretion to have been abused should a case be reversed for failure to declare a mistrial. State v. Beal, 470 S.W.2d 509, 516[9] (Mo. banc 1971).

This court has reached the reluctant but sure conclusion that here there was an abuse of discretion. The following factors have been considered and their combination leads to that result:

1. During the trial, in the presence and vision of the jury, appellant was kept in handcuffs and leg irons.

2. Six and sometimes seven officers, all visibly armed, were present during the trial and four of them were seated behind appellant and within two or three feet of him.

3. Appellant was guilty of no disruptive conduct during the trial, nor had he threatened such.

4. Appellant was being tried for breaking jail and escaping.

5. Outside the presence of the jury, an evidentiary hearing was held and a careful record was made concerning the restraints and the surrounding circumstances.

6. Appellant’s able counsel had repeatedly requested relief from the situation.

The presence of so many armed officers, located as they were, rendered unnecessary the physical restraints. If the physical restraints were justified, they rendered unnecessary the presence of so many officers located so close to appellant. The treatment was too much for the suspected malady.

The judgment is reversed and the cause remanded.

All concur.

      . Though the record is not clear, it is a reasonable inference that the alleged assault upon the sheriff arose out of the same episode from which the offense on trial arose.

      . After the verdict had been accepted the court said: “It’s my responsibility in the court room to approve or disapprove of the manner in which a person appears in court and Mr. Borman has appeared in this court in accordance with my wishes. I didn’t want anything to happen to anyone in the court room and as the record will show, Mr. Borman has a considerable sentence facing him and I did not want to place him in a position where a temptation might get the best of him. And I was not concerned that anything would happen to anybody here but I would rather be overly cautious for all concerned and I was thinking of him as much as anybody else. I didn’t want him to get involved any more and for that reason I requested the officers here today and Mr. Sheriff, I appreciate your complying with my request and to the officers who are here, I appreciate your presence here.
      “As I say it is my responsibility entirely and I accept it and I do not ask anybody to share it and Mr. Borman, I hope that in some manner you will understand my cautiousness. And if I have been in error, why your lawyer, Mr. Gulinson will bring it to the attention of the proper appellate court and if they think my concern has been improper, they will reverse this trial and remand it for another trial. But that is my reasoning and I didn’t want anybody here to be alarmed nor did I want Mr. Borman to find himself with more charges and thus far it’s worked out like that. Maybe we didn’t need these guards, I don’t know but I wanted to remove any temptation and thus far it’s worked out like that.
      “So I think you’re entitled to know my reason and it’s my full responsibility which I accept.”

      . But in Loux v. United States, 389 F.2d 911, 919 (9th Cir. 1968) it is said: “. . .To require a dangerous act at trial before shackling the prisoner would seriously impair the court’s security. The purported requirement of bad conduct at trial stems from two old Missouri cases, State v. Kring, 1877, 64 Mo. 591 and State v. Temple, 1906, 194 Mo. 237, 92 S.W. 869 .. . Modern cases do not require that the judge’s decision be based on conduct of the prisoner at trial. .

      . State v. Craft, 164 Mo. 631, 65 S.W. 280 (1901); State v. Temple, 194 Mo. 228, 92 S.W. 494 (1906) “Temple I”; State v. Temple, 194 Mo. 237, 92 S.W. 869 (1906) “Temple II”; State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22, 30 (1936); State v. Boone,
        355 Mo. 550, 196 S.W.2d 794, 796 (1946); State v. Boyd, 256 S.W.2d 765, 766 (Mo. banc 1953); State v. McGinnis, 441 S.W.2d 715, 717 (Mo.1969); State v. Richards, 467 S.W.2d 33, 38 (Mo.1971); State v. Johnson, 499 S.W.2d 371, 374 (Mo.1973); Bibbs v. State, 504 S.W.2d 319, 320[1, 2] (Mo.App.1973); State v. Warriner, 506 S.W.2d 103, 104[1] (Mo.App. 1974); State v. Neely, 524 S.W.2d 886 (Mo.App.1975).
      But in the following cases the defendant was not physically restrained, in the presence of the jury, during testimony: Craft, Temple I, Temple II, McKeever, Boone, Warriner, Neely.
      In the following cases the defendant was guilty of disruptive conduct before the trial: Temple I, Temple II, Boyd, Bibbs. Also, in Boyd, there was no objection made to handcuffs and Boyd’s attorney “actively participated” in deciding the method of restraint.
      In the following cases the defendant was guilty of disruptive conduct at the trial: McGinnis, Richards, Johnson, Bibbs.
      All the cases in this footnote involved handcuffs. In Temple II the defendant was “manacled and shackled” and in Boyd the defendant was “handcuffed and manacled.”

      . State v. Kring, 1 Mo.App. 438 (1876) Aff. 64 Mo. 591 (1877) (defendant was handcuffed before the jury during the trial; he had been guilty of disruptive conduct before the trial); State v. Rice, 347 Mo. 812, 149 5.W.2d 347 (1941) (two defendants shackled together during impaneling of jury); State v. Robinson, 507 S.W.2d 61 (Mo.App.1974) (defendant handcuffed to chair, in view of the jury, during portion of trial after creating “one mild incident” in jury’s presence).

      . Although the argument (as distinguished from the statement of facts) portion of the state’s brief claims that in January, 1974, the defendant had threatened to escape at the trial, nothing in the transcript supports the assertion. Moreover, stationing four armed officers so close to the defendant, physically restrained as he was, was not warranted.

      .“While the cases have laid down no definite rule as to the exact form for an eviden-tiary hearing to determine whether physical restraint is necessary, we think that it is preferable, except in cases where the trial process is disrupted in the court’s presence, that a formal hearing should be conducted with sworn testimony. In this way factual disputes may be resolved and a meaningful record preserved for an appeal or for collateral relief.” Kennedy v. Cardwell, 487 F.2d 101, 110(7] (6th Cir. 1973).