author: BILLINGS, Chief Judge.

text:
    CHRYSLER CREDIT CORPORATION, Plaintiff-Respondent, v. FRIENDLY FORD, INC., Defendant-Appellant.
    No. 9740.
    Missouri Court of Appeals, Springfield District.
    Feb. 10, 1976.
    Motion for Rehearing or Transfer to Supreme Court Denied March 1, 1976.
    David W. Bernhardt, Thomas J. O’Neal, Bussell, .Hough, Bernhardt, Leighton & O’Neal, Springfield, for plaintiff-respondent.
    John R. Lewis, Bruce K. Kirby, Kirby, Lewis & Cohick, Springfield, for defendant-appellant.

      Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Respondent Chrysler Credit Corporation had judgment in this court-tried case against appellant Friendly Ford, Inc. for the balance due on a retail installment contract. The contract had been assigned by Friendly Ford to Chrysler Credit with full recourse, and Friendly Ford had unconditionally guaranteed payment of any unpaid indebtedness under the contract. The lower court also allowed Chrysler Credit attorney fees as provided by the contract and ruled in its favor on Friendly Ford’s counterclaim for damages. We affirm.-

Chrysler Credit maintained a branch office in Springfield, and Friendly Ford sold automobiles and trucks in that city. For some time prior to the sale giving rise to the subject installment contract, Chrysler Credit had financed installment sales by Friendly Ford.

Friendly Ford sold a 1968 Ford diesel tractor to William Richardson under a retail installment contract dated March 29, 1968. The contract was assigned to Chrysler Credit by Friendly Ford on the same date. A policy of insurance covering the vehicle against physical damage had been issued the previous day, March 28, 1968. Richardson was the named insured, and Chrysler Credit was shown as lien holder and loss payee. The policy was for the period of March 28, 1968, to March 28, 1969, and both Chrysler Credit and Friendly Ford were notified of the insurance coverage. The certificate of insurance was subsequently forwarded to Chrysler Credit by the insurance company.

On April 9,1969, Chrysler Credit received an endorsement of a policy issued by a second insurance company insuring the vehicle against loss or casualty. Richardson was described as owner of the tractor, and Chrysler Credit was shown as the loss payee. This second policy was for the period of July 1, 1968 to July 1, 1969. Friendly Ford was not notified of the issuance of the second policy.

On December 17, 1969, Richardson executed an extension agreement to Chrysler Credit whereby, for an additional charge, his monthly payments due under the contract were postponed until March, 1970. This transaction was approved by Friendly Ford.

The Ford tractor, uninsured, was damaged beyond repair in June, 1970. Richardson was then current in his monthly payments but thereafter discontinued payments. Chrysler Credit notified Friendly Ford of Richardson’s nonpayment and demanded payment of the balance owing under the contract. Friendly Ford obtained possession of the damaged tractor and by consent of the parties to this suit sold it for salvage; the amount received was applied on the indebtedness. Friendly Ford refused to pay the balance of the contract, and this suit followed.

The installment contract provided Richardson was to insure the vehicle against loss or damage during the life of the contract. In paragraph 3 of the “Additional Terms and Conditions” of the contract, the failure of Richardson to procure or maintain the requisite insurance was one of several enumerated occurrences that constituted a default under the contract and authorized foreclosure. In addition, paragraph 7 provided:

“Buyer agrees to keep the mortgaged property insured at his own expense against substantial risk of damage, destruction, or loss for so long as any amount remains unpaid on the contract, with loss payable to the Seller as its interest may appear and that he will deliver all such insurance policies upon receipt of same to Chrysler Credit Corporation. . . . Seller may, but shall not be required to, and without prejudice to Seller’s rights under this mortgage if it does not, procure such vehicle insurance protecting: (a) interest of Buyer and Seller or (b) interest of Seller only, if Buyer fails to procure or maintain such vehicle insurance or fails to furnish satisfactory evidence thereof upon request. . . .” (emphasis added)

The assignment portion of the contract provided in part as follows: “For value received, the undersigned does hereby sell, assign and transfer to Chrysler Credit Corporation (hereinafter called ‘Chrysler’) his, its or their entire right, title and interest in and to the within contract and the property covered thereby, and authorizes Chrysler to do every act and thing necessary to collect and discharge obligations arising out of or incident to said contract and assignment. In addition, this assignment is subject to the provisions set out below in the paragraph initialed by undersigned. Liability of undersigned arising out of or incident to this assignment shall not be affected by any indulgence, compromise, settlement, extension, or variation, of terms of the within contract effected with or by the discharge or release of the obligation of Buyer or any other person interested, by operation of law or otherwise. Undersigned waives notice of acceptance of this assignment and notices of non-payment and non-performance of this contract.’’ (emphasis added)

Immediately following the foregoing was the form of recourse agreed to by the parties and it is here set forth:

“FULL RECOURSE: The undersigned unconditionally guarantees payment of the full amount remaining unpaid under said contract, and agrees to purchase said contract from Chrysler, upon demand, for the full amount then unpaid whether said contract shall then be, or not be, in default.”

By way of defense and in support of its counterclaim for expenses, Friendly Ford set forth the first sentence of paragraph 7, supra, and then alleged: “That from the date of the alleged assignment by defendant to plaintiff, William D. Richardson, the person obligated on the contract alleged to have been assigned, did have a policy of insurance protecting the lien holder against property damage and did apparently maintain said policy of insurance for a period of time after the date of the alleged assignment; that, thereafter, the policy of insurance insuring the property on which the indebtedness is owed to be lapsed and was not renewed by the owner of the property or the plaintiff lien holder to where on the date of the loss of the property there was no insurance existing on the property covered by the Retail Installment Contract alleged to have been assigned by Defendant to Plaintiff; that because of Plaintiff’s failure to maintain the contract in question between itself as the lien holder and as the alleged assignee of said contract, Plaintiff should be estopped from recovering any damage in any amount of money from the defendant under the terms of its Petition.”

At trial Chrysler Credit submitted its case on stipulations and exhibits including the Richardson retail installment contract, and Friendly Ford offered testimony only on the issue of its claimed defense of estop-pel. The trial court made and entered findings of fact and conclusions of law and rendered judgment in favor of Chrysler Credit on its claim and against Friendly Ford on its counterclaim.

Three elements must be clearly established by a party seeking to assert an equitable estoppel: (1) an admission, statement or act inconsistent with a claim afterwards asserted or sued upon; (2) action by the other party in reliance on such admission, statement or act; and, (3) injury to such other party if the first party is allowed to contradict or repudiate such admission, statement or act. Peerless Supply Co. v. Industrial Plumbing and Heating Co., 460 S.W.2d 651 (Mo.1970); Owens v. Estate of Saville, 409 S.W.2d 660 (Mo.1966); Rodgers v. Seidlitz Paint and Varnish Co., 404 S.W.2d 191 (Mo.1966); 31 C.J.S. Estoppel § 67 (1964).

Silence or inaction may be sufficient conduct to estop a party from asserting an inconsistent claim. However, “[T]he rule is equally clear that mere innocent silence or inaction will not work an estoppel. . . . there must be a right and an opportunity to speak and, in addition, an obligation or duty to do so.” 28 Am.Jur.2d Estoppel & Waiver § 53 at 667-68 (1966). And, the estopped party’s silence or inaction must be the result of culpable negligence or “done with the intention, or, at least, with the expectation, that it will be acted upon by the other party, or under such circumstandes that it is both natural and probable that it .will be so acted upon.” Mills v. Taylor, 270 S.W.2d 724, 729 (Mo.1954); Rodgers v. Seidlitz Paint & Varnish Co., 404 S.W.2d 191, 195-96 (Mo.1966); 31 C.J.S. Estoppel §§ 59, 69, 87, 102 (1964); 28 Am.Jur.2d Estoppel & Waiver §§ 41, 53, 61 (1966).

Each of the elements of estoppel was considered by the trial judge who concluded the contract placed no duty on Chrysler Credit to insure the vehicle and there was no estoppel. We agree.

The retail installment contract gave Friendly Ford, or its assignee, the authority to procure insurance at Richardson’s expense “if Buyer fails to procure or maintain such vehicle insurance or fails to furnish satisfactory evidence thereof upon request.” However, the duty to maintain insurance remained on Richardson, and the contract specifically provides Friendly Ford or its assignee “shall not be required to” exercise its power to acquire insurance if Richardson failed to do so. The option to acquire insurance was assigned to Chrysler Credit, together with the rest of Friendly Ford’s rights under the contract.

In its assignment Friendly Ford expressly agreed its liability to Chrysler Credit, “arising out of or incident to [the] assignment shall not be affected by any indulgence, compromise, settlement, extension, or variation, of terms of the within contract effected with or by the discharge or release of the obligation of Buyer or any other person interested, by operation of law 'or otherwise” and specifically waived “notices of non-performance of the contract.” By the full recourse provision of the assignment, Friendly Ford unconditionally guaranteed payment of any remaining indebtedness under the contract and agreed to repurchase the contract upon demand from Chrysler Credit “whether said contract shall then be, or not be, in default.”

Friendly Ford contends that since Chrysler Credit made efforts to monitor policies on financed vehicles and had the right under the contract to purchase insurance at Richardson’s expense, the loss occasioned by lack of insurance should fall on Chrysler Credit. This contention would convert the option to insure into an absolute duty, contrary to the plain and unequivocal language found in the contract and agreed to by Friendly Ford.

The record is completely silent as to the reason for no insurance coverage at the time of the loss. We do not know if the policy lapsed for nonpayment of premium or if it was canceled by the insurer for any number of reasons. The fact of the matter is that there is no evidence of notice to Chrysler Credit that coverage had lapsed or was terminated. There is no evidence Chrysler Credit misled Friendly Ford, and the latter had equal opportunity to learn the fact of noninsurance. If Chrysler Credit can be faulted for its failure to learn the vehicle was not insured, Friendly Ford can be equally faulted. There is some indication in the record Friendly Ford was aware that on previous occasions Chrysler Credit had not exercised the option to insure, resulting in no coverage on financed vehicles. In spite of its liability under the assignment, Friendly Ford made no inquiry or effort to determine whether the Richardson truck was insured. In such circumstances, estoppel cannot be successfully asserted. 31 C.J.S. Estoppel §§ 71, 87, 102 (1964); 28 Am.Jur.2d Estoppel & Waiver §§ 35, 80 (1966).

In this appeal Friendly Ford, for the first time, seeks to invoke § 400.3 — 606, RSMo 1969, and says Chrysler Credit's failure to exercise the option to insure constitutes an unjustifiable impairment of collateral. This affirmative defense was not pled by Friendly Ford or submitted below. It cannot now be raised. Rule 55.08; Semo Grain Co. v. Oliver Farms, Inc., 530 S.W.2d 256 (Mo.App.1975); Forty Four O One Hampton Realty Co. v. Keegan, 426 S.W.2d 701 (Mo.App.1968). Furthermore, we entertain doubt that the instant retail installment contract is a negotiable instrument as defined by the Uniform Commercial Code [§ 400.3-104, RSMo 1969] because of the numerous promises made and powers granted by Richardson. Consequently, the discharge provisions of § 400.3-606 would not be available to Friendly Ford. Additionally» ⅝ 400.3-606 recognizes consent may bar such a defense, and Friendly Ford’s argument ignores the broad consensual language of its assignment to Chrysler Credit. As assignor, Friendly Ford consented that its liability to Chrysler Credit would not be altered by any “indulgence, compromise, settlement, extension, or variation of” the contract or “by the discharge or release of [Richardson] or any other person interested” and Chrysler Credit was relieved of any duty to notify Friendly Ford of Richardson’s nonperformance of the contract.

The same result would follow if Friendly Ford had sought discharge under § 400.9-207, RSMo 1969, or under the principles of general suretyship law. The sweeping assignment clause negates Friendly Ford’s claim of release from the full recourse provisions.

We are not unaware of at least three cases which have implied a duty on a secured creditor such as Chrysler Credit to either insure or notify one in the position of Friendly Ford of insurance lapse or termination. In each of these cases the secured creditor had in fact been notified by the insurance carrier the policy of insurance was about to expire or be cancelled and the secured creditor failed to notify the assignor or procure other insurance. The known insolvency of the debtor was present in two of the cases. The cases do not reflect an assignment clause such as in the case at bar. Other cases have refused to imply and cast such an onerous duty on secured creditors. In Commerce Union Bank v. May, 503 S.W.2d 112 (Tenn.1973), the court said:

“We do not agree that [Bank’s] presumed superiority of experience and knowledge of . transactions over defendants’ created a legal duty to see that the fire insurance was renewed. To so hold would be to set an unjustifiable precedent, the consequences of which would be unpredictable and chaotic. Nor does the mere possession of the memorandum of the insurance policy upset the equal opportunity of the defendants and [Bank], in the eyes of the law, to know or ascertain the date of policy expiration. . . . Further, the provision in the note whereby the Bank relieved itself of all liability to perform services, send notices or take action of any kind in connection with the management of the security, operates as a complete bar of the right . to claim discharge, that claim being based upon an asserted duty to perform said acts.” 503 S.W.2d at 118.

We affirm the judgment of the trial court.

All concur.

      . Section 400.3-606, RSMo 1969, provides in part:
      “(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder

      (b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.”

      . Section 400.3-104, RSMo 1969, requires that a negotiable instrument within Article 3 (§ 400.3-101 et seq., RSMo 1969) must “contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this article.” (emphasis added)
      Retail installment sales contracts are usually not negotiable instruments because they contain additional promises by the maker “and thus fail the ‘no other promise’ test.” J. White and R. Summers, Handbook of the Law Under the Uniform Commercial Code §§ 13-2, 14-4 (1972).

      . Section 400.9-207, RSMo 1969, provides in part:
      “(1) A secured party must use reasonable care in the custody and preservation of collateral in his possession. In the case of an instrument or chattel paper reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.
      (2) Unless otherwise agreed, when collateral is in the secured party’s possession
      (a) reasonable expenses (including the cost of any insurance and payment of taxes or other charges) incurred in the custody, preservation, use or operation of the collateral are chargeable to the debtor and are secured by the collateral;
      (b) the risk of accidental loss or damage is on the debtor to the extent of any deficiency in any effective insurance coverage;

      (3) A secured party is liable for any loss caused by his failure to meet any obligation imposed by the preceding subsections but does not lose his security interest.”

      . Restatement of Security § 132 (1941) states:
      “Where the creditor has security from the principal and knows of the surety’s obligation, the surety’s obligation is reduced pro tanto if the creditor
      (a) surrenders or releases the security, or
      (b) wilfully or negligently harms it, or
      (c) fails to take reasonable action to preserve its value at a time when the surety does not have an opportunity to take such action.”

      . Examples of pre-code cases recognizing that a surety or guarantor may consent to release or impairment of collateral include Joe Heaston Tractor & Implement Co. v. Securities Acceptance Corp., 243 F.2d 196 (10th Cir. 1957); Barrett v. Shanks, 382 Ill. 434, 47 N.E.2d 481 (1943); and Merchants Nat’l Bank v. Stone, 5 N.E.2d 430 (Mass. 1936).
      Cases decided under the code which recognize the validity of the surety’s consent to release or impairment of collateral include: Liberty Nat’l Bank & Trust Co. of Savannah v. Interstate Motel Developers, Inc., 346 F.Supp. 888 (S.D.Ga.1972); Nation Wide, Inc. v. Scullin, 256 F.Supp. 929 (D.N.J.1966); Etelson v. Suburban Trust Co., 263 Md. 376, 283 A.2d 408 (1971); American Bank of Commerce v. Covolo, 88 N.M. 405, 540 P.2d 1294 (1975); see also Midway Nat’l Bank v. Gustafson, 282 Minn. 73, 165 N.W.2d 218 (1968).

        See also Clark, Suretyship in the Uniform Commercial Code, 46 Texas L.Rev. 453 (1968); Murray, Secured Transactions — Defenses of Impairment and Improper Care of Collateral, 79 Com.L.J. 265 (1974); Note, Discharge of Sureties — Impairment of the right of Recourse, 9 B.C.Ind. & Comm.L.Rev. 970 (1968).

      . United States v. Fyles, 253 F.Supp. 386 (D.Vt. 1965); Evans v. American National Bank and Trust Co. of Chattanooga, Tenn., 116 Ga.App. 468, 157 S.E.2d 816 (1967); Woodruff Motors, Inc. v. Commercial Credit Corp., 123 Vt. 404, 190 A.2d 705, and 124 Vt. 37, 196 A.2d 569 (1963); see also Liberty National Bank and Trust Co. of Savannah v. Interstate Motel Developers, Inc., 346 F.Supp. 888 (S.D.Ga.1972).

      . United States v. Fyles, supra; Evans v. American National Bank and Trust Co. of Chattanooga, Tenn., supra.

        .E. G. Milburn v. People’s Building & Loan Association, 106 Ark. 415, 153 S.W. 605 (1913); Hassell v. Sterling Federal Savings & Loan Association, 132 Ill.App.2d 1005, 271 N.E.2d 7 (1971); Rayborn v. Fort Thomas Building & Loan Association, 453 S.W.2d 558 (Ky.1970); Service Finance Corp. v. Brombaugh, 135 S.W.2d 503 (Tex.Civ.App.1939); 10 Williston on Contracts § 1233 (3d ed. 1967).


source: Caselaw Access Project

author: SWOFFORD, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jack C. ROSE, Appellant.
    No. KCD 27824.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.

      Thomas M. Larson, Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J„ and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

Appellant (hereafter defendant) was charged with Robbery First Degree and after a jury-waived trial was found guilty and sentenced to a term of seven years in the Missouri Department of Corrections. He asserts three points of error on this appeal, which may be summarized as (1) his motion for a directed judgment of acquittal at the close of all the evidence was improperly overruled; (2) his motion to suppress identification evidence was improperly overruled; and (3) the trial court erred in quashing a subpoena duces tecum whereby he sought to obtain certain records of the police department. An examination of the record and of defendant’s brief reveals that his first and second points, in fact, deal with basically the same problem, that is, his claim that the identification evidence was so insubstantial and conflicting that a verdict of acquittal should have been entered. These points will therefore be considered together.

In viewing the record in an appeal such as this, the scope of appellate review is defined and limited by certain well-recognized principles.

Since this case was submitted to the court without a jury, the provisions of Rule 26.01(b), Rules of Criminal Procedure, are applicable and, thus, the court’s decision of guilty “shall have the force and effect of the verdict of a jury”. The scope of appellate review is not to weigh the evidence, but rather, to conclude whether or not the court’s decision is supported by substantial evidence. If so, such finding and decision should be affirmed. State v. Daniels, 487 S.W.2d 465, 469[4] (Mo.1972); State v. Lane, 475 S.W.2d 91, 94[1] (Mo.1971). It is the basic function of the trial court in such a case to judge the credibility of the witnesses and to resolve any conflicts or inconsistencies in their testimony. State v. Styles, 476 S.W.2d 591, 592[3] (Mo.1972); State v. Landess, 485 S.W.2d 140, 142[5] (Mo.App.1972).

In determining the sufficiency of the evidence, this court accepts all evidence tending to support the conviction together with all favorable inferences reasonably to be drawn therefrom. State v. Harris, 485 S.W.2d 612, 613-614[2] (Mo.1972); State v. Petrechko, 486 S.W.2d 217, 218[1] (Mo. 1972); State v. Lemon, 504 S.W.2d 676, 679[1] (Mo.App.1973). Further, all inferences which could be drawn contrary to the result reached by the finder of the facts must be disregarded. State v. Stapleton, 518 S.W.2d 292, 296[1] (Mo. banc 1975).

Bearing in mind that the only real issue raised by defendant’s first and second points is whether there was substantial evidence, untainted by pretrial identification procedures, as to the identification of the defendant to support his conviction, a summary of the evidence is necessary.

At about 9:00 o’clock a. m. on Sunday, June 23, 1974, a lone male entered King’s Food Host restaurant at 1418 E. 63rd Street in Kansas City, Missouri and approached the cash register stand. As he arrived at the stand, an employee, Elisa Mitchell, and the manager, David Stringberg, were standing side by side at that position. When the man was about two or three feet away from her, Mitchell inquired if she could help him. This man thereupon drew a handgun, pointed it at Mitchell and Stringberg, announced a holdup, and told Mitchell to give him the money in the cash register and ordered Stringberg to lie down on the floor.

There was only one customer in the restaurant, a Joseph Downing, who was seated in a booth which was apparently about 20 to 25 feet from the cashier’s stand. The robber shouted at him to lie down on the floor, and when he failed to promptly comply, the robber fired a shot from the gun into the wall above and in the vicinity of Downing’s position. This resulted in prompt compliance with the order.

The robber then again ordered String-berg to lie on the floor, and he complied. Mitchell handed the robber the bills in the cash register and he left the premises. Both Mitchell and Stringberg testified that they had a clear view of the robber’s unmasked face and Downing said he had “a reasonably good look” at the robber.

Mitchell described the robber as a black, slender, young man, about 19 years of age, about 5 feet 10 inches tall, with a light or light to medium, or light to fair, complexion, wearing a hat, no face mask, a gray shirt and Burgundy trousers, with a natural “hair-do”, no facial hair or noticeable sideburns.

The police summoned to the scene of the robbery showed both Mitchell and String-berg a number of police photographs carried in the police car. Neither could make any identification from these. On Tuesday, June 25, 1974, Mitchell and Stringberg were requested to come to police headquarters and were shown from 150 to 200 police photographs. From this group, Stringberg picked out two pictures (which it was later developed were both pictures of the defendant taken at different times) which he tentatively identified as the robber. Mitchell picked one of the same photographs which she thought was “very, very similar”. It appears from the testimony of Detective Keith Clavin of the Homicide and Robbery Unit of the police department that the defendant had been picked up by the police in connection with another matter while Mitchell and Stringberg were looking at the photographs on June 25, 1974, and a lineup was set up, which they were asked to view. At the lineup, again Mitchell could not make any positive identification but stated defendant “looked very similar”. Stringberg did positively identify the defendant from the six-man lineup as the person that robbed King’s Food Host on June 23, 1974, and the defendant was charged.

At the trial of the case, both Micthell and Stringberg testified for the state. Again, Mitchell could make no positive identification of the defendant, but Stringberg did positively identify him as the robber, based upon his independent view of him at the time of the robbery. The record is devoid of any evidence of suggestive influence upon Stringberg by the police or anyone else in the pretrial identification proceedings of such a character as to give rise to a very substantial likelihood of irreparable misidentifieation. His identification testimony was within the formula of the controlling authorities so as to present the factual issue of identity. State v. Boothe, 485 S.W.2d 11, 13[2] (Mo. banc 1972); State v. Murphy, 508 S.W.2d 269, 274[1] (Mo.App. 1974); State v. Jones, 531 S.W.2d 67, 70[1] (Mo.App.1975); State v. Lee, 491 S.W.2d 317, 322-323[8] (Mo. banc 1973).

However, the defendant asserts that such testimony by Stringberg was directly in conflict with the description of the robber given by Mitchell. This position was based upon the fact that she had described the man as of a “light complexion” or “fair”, and the defendant asserted at trial, and reiterates here, that such description does not fit or properly characterize the shade of defendant’s skin. This position calls into play a nebulous comparison of degree of color and the broad descriptive words used by Mitchell. The trial court, with the benefit of personal observation of defendant, specifically found that the identification by Stringberg was consistent with the description by Mitchell.

The defendant testified in his own behalf and stated that at the time of the robbery, he was at his father’s home asleep in his bed. His father corroborated this alibi.

The defendant also offered the testimony of Joseph Downing. It was developed that Downing was 66 years old; that he wore bifocal glasses for astigmatism, and that his eyes had not been examined for about ten years. He was a retired psychologist. He described the robber as a young, light-complexioned, black man, of average height. There was no evidence that he had ever been shown any police photographs and he had not attended any. lineup. He was called as a defense witness and testified that from viewing the defendant in court and listening to his voice, “I would be inclined to say it (sic) is not the man that I saw there”; that “ * * * I don’t think I am looking at the man who was in that restaurant that morning”; and that he was “relatively certain” of this.

Upon the factual issues of identification and alibi, thus raised, the trial court, as trier of the facts, decided them adversely to the defendant. Its decision was supported by substantial evidence, and the defendant’s first and second points are ruled against him.

Although this court has not been favored with an exact copy of the document, either as part of the record or filed separately, it appears that the defendant caused a subpoena duces tecum to be issued directed to Detective Keith Clavin, directing him to produce the 150-200 police photographs shown to Mitchell and Stringberg on June 25, 1974, and other documents pertaining to the pretrial identification procedures of the police department. Defense counsel stated that he had left this subpoena with Clavin’s department head the evening before the trial, and that it had not been personally served upon Clavin. Clavin stated that he had not been served with the subpoena but had found it lying on a clipboard at headquarters the night before the trial; that he did not have control or possession of the documents sought and that he had done nothing about the subpoena.

The state made an oral motion to quash the subpoena, which the trial court sustained, after developing the above facts and the further fact that the subpoena contained no return of service. The court’s order in this regard is urged as error under defendant’s third point.

It should be noted that the trial court did not base this ruling on the propriety of the form of the subpoena nor on the relevancy of the documents sought to be produced, but solely upon the fact that there was no showing of compliance with Rule 25, Rules of Criminal Procedure, and Section 491.120 RSMo 1969.

Rule 25.20 provides:

“Service and return of service of subpoenas in criminal cases shall be made in the same manner as provided by law in civil suits. * * * ”

Section 491.120 RSMo 1969, provides, in part:

“Subpoenas, how served and returned
1. The service of a subpoena to testify shall be by reading the same or delivering a copy thereof to the person to be summoned; * * *.
2. The return shall show the manner of service * * * and, if served by an officer, his return shall be conclusive of the facts therein stated; if served by a private person, the return shall be verified by affidavit * * *.”

The trial court correctly ruled that there was a complete absence of any compliance with the procedural mandates of the statute with reference to the service or return thereto of the subpoena duces tecum here considered. The motion to quash was properly sustained. It should also be noted that thereupon, the defendant made no request to the court for an opportunity to properly serve his subpoena and make return thereto, although it appears that Detective Clavin was still in court on the witness stand when the ruling was made. The defendant’s third point is ruled against him.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Lynn G. ROBERTS, Appellant.
    No. KCD27827.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.

      Thomas M. Larson, Public Defender, E. L. Messina, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant was charged with assault with the intent to rape. A jury found him guilty of that charge and fixed his punishment at three years imprisonment.

On appeal, defendant claims that the trial court erred in refusing to grant a mistrial after a police officer was permitted to testify that the victim, when asked to identify those who assaulted her, had selected three photographs from a group of pictures; and that the court erred in refusing to grant a mistrial when the prosecutor made improper statements in two separate respects during closing argument.

I.

The testimony of the officer as to the pretrial identification.

The victim testified that on May 13, 1974, two men (defendant and Robert Buford) repeatedly struck her and that one of these men (defendant) also tried to rape her. During the course of the attempted rape a third' person, Arthur Buford, came upon the scene but did not participate in any unlawful activity.

On the same day that the attempted rape occurred, Detective Asa Steen of the Kansas City, Missouri, Police Department, presented seven photographs to the victim. From these photographs, she testified, she picked out the pictures of defendant, Robert Buford, and Arthur Buford.

At trial, as the prosecutor was engaged in his direct examination of Detective Steen, the following transpired:

“A. Yes, sir, I showed her seven photographs.
Q. All right, sir. And of those seven photographs, did she make any identification? MR. BUNCH: I object to that, Your Honor, as being hearsay. THE COURT: I don’t think so. She has testified. The objection will be overruled.
A. Yes, sir, she identified three photographs.
Q. Three photographs?
A. Yes, sir.”

Thereupon defense counsel asked for a mistrial on the grounds that Steen was testifying purely from hearsay and so was in violation of State v. DeGraffenreid, 477 S.W.2d 57 (Mo. banc 1972). The mistrial was denied. In DeGraffenreid, an eyewitness Gaston identified the defendant in court as the culprit. Gaston had previously made extra-judicial identification of defendant by means of a photograph and also by selecting him out of a lineup. The defense was basically alibi and in support of that position defendant and another witness testified that the defendant was at another place at the time of the offense. In the context of this factual setting, a police officer was permitted by the trial court to corroborate that Gaston had made the extra-judicial identifications. In that situation, where identification was the key issue in the case, the Supreme Court held that the corroborative testimony of the police officer was prejudicially erroneous.

By way of contrast, identification was not an issue in the case at bar. The defendant admitted that he was present at the apartment where the alleged assault occurred and testified to socializing with the victim there. The issue was whether an assault occurred at that time and place, not whether defendant was one of those present. It was the defendant’s theory of the ease that although he was present in the Buford apartment throughout the period of the alleged offense, there simply was no attempted rape, other than the fantasy produced by the victim’s drug and alcohol beclouded imaginings.

Having announced at trial that he indeed was a person whom the prosecutrix identified as being one of the participants in the events of May 13, 1974, and having announced that he was one of the persons who was present at the time and place the claimed attempted rape took place, the defendant cannot base his appeal for relief on the claim that Steen’s reference to identification information harmed him. There was no identification issue in the case. Consequently, if any error occurred when Steen testified that the victim picked out three photographs, it was without question harmless, and harmless error is not grounds for reversal. State v. Spica, 389 S.W.2d 35, 53 (Mo.1965); State v. DeGraffenreid, supra, l. c. 64.

II.

The prosecutor’s comment as to witness Smith.

On the morning of the first day of his trial, the defendant’s attorney advised the prosecutor that a certain Frank Smith would be called to testify on defendant’s behalf. Prior to that, in compliance with an order issued by the court approximately four months before trial, the prosecution had been advised of the names of all other witnesses whom defendant intended to call at trial. In reference to this feature of the case the prosecutor stated, in closing argument:

“And as for Mr. Smith, the elusive Mr. Smith, I might point out. It’s odd that nobody knew anything about Mr. Smith until yesterday, when we started the trial.”

Defense counsel objected to the above as “. . . creating an implication to the jury that this man was not available for some time for trial, which he was.” The court sustained the objection and instructed the jury to disregard the remark. In resuming closing argument the prosecutor then stated:

“Let me say this, that under our law here in Jackson County, the defense is required to furnish me with the names of any witnesses, alibi witnesses, that they intend to use in a trial and yesterday was the first day that Frank Smith’s name was given to me.”

Defense counsel objected to this statement because Smith was not an alibi witness and because “the only discovery provided me by the state was the reading of the file and taking my own notes. Hence, since discovery is reciprocal, I received nothing. I don’t think even under the rules, I was required to provide anything.” After a colloquy at the bench, the objection was sustained and the jury was instructed to disregard the statement.

On appeal, the defendant claims that he was harmed by these two statements and that a mistrial should therefore have been ordered, because the comments implied (1) that Frank Smith’s testimony was a fabrication, and (2) that the defendant had violated Supreme Court Rule 25.34, the rule of discovery which deals with the disclosure by a defendant to the State upon court order.

The declaration of a mistrial is a drastic remedy and should be granted only when the incident is so grievous that the prejudicial effect can be removed in no other way. State v. Raspberry, 452 S.W.2d 169 (Mo.1970); State v. Smith, 431 S.W.2d 74 (Mo.1968); State v. James, 347 S.W.2d 211 (Mo.1961); State v. Camper, 391 S.W.2d 926 (Mo.1965); State v. Davis, 527 S.W.2d 724, 727 (Mo.App.1975). The function of an appellate court is to determine whether as a matter of law the trial court abused its discretion in refusing to declare a mistrial. State v. Raspberry, supra.

The questions of the propriety of oral argument are addressed to the discretion of the trial court, and a reversal on such grounds occurs only upon abuse of such discretion. State v. Wright, 515 S.W.2d 421, 432 (Mo. banc 1974); State v. Taylor, 508 S.W.2d 506, 514 (Mo.App.1974); and State v. Jewell, 473 S.W.2d 734, 741 (Mo.1971). Each time a prosecutor exceeds the limits of legitimate argument a mistrial need not be declared. State v. Yarbrough, 506 S.W.2d 90 (Mo.App.1974); State v. Davis, supra.

The trial judge observed the incidents giving rise to the requests for mistrial and was in a better position than is this court to evaluate the prejudicial effect and the possibility of its removal by actions short of a new trial. State v. Camper, supra, at 928. He believed that his action in sustaining the objections to the remarks and advising the jury to disregard same was sufficient to remove prejudice, if any, that may have been interjected into the case by virtue of them being uttered. That determination did not constitute an abuse of discretion.

III.

The prosecutor’s comment on the prosecu-trix’s cause for future fear.

Finally, defendant claims that it was error to deny a mistrial after the prosecutor made this remark in closing argument:

“Now, what’s the motivation for these people testifying? What’s L_ G_⅛ motivation? She has had to go through the preliminary hearing, she has had to come here and testify to you in court, she gets nothing out of it. Whether he is convicted or whether he goes back on the streets, it isn’t going to make one bit of difference, as far as L_G_’s personal life is concerned, except possibly if he is back on the streets, she may have some fear — ”

At this point defense counsel objected to the argument, claiming that it was improper because it implied that if defendant were acquitted he would commit a subsequent crime. The objection was sustained and the jury was told to disregard the remark.

The general principles above enunciated concerning defendant’s preceding point apply with equal force to the present point. And, as was the case concerning the last point, so also here the remark was not so offensive as to require the drastic remedy of a mistrial. The trial judge believed that the error was remedied by his actions in sustaining the objection to the comment and in directing the jury to disregard it. No abuse of the trial court’s discretion being found in this regard, this point must also be ruled against defendant. State v. McFadden, 530 S.W.2d 440, 443 (Mo.App.1975).

Affirmed.

All concur.


author: DIXON, Presiding Judge.'

text:
    James E. BARBER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD27892.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.

      Thomas M. Larson, Public Defender, Kansas City, Joyce Wolfe, Law Intern, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.'

Movant appeals from a trial court denial of relief by motion under Rule 27.26. There was an evidentiary hearing.

Movant challenges the trial court’s ruling by asserting that movant was not advised of the range of punishment and that his guilty plea was therefore involuntary and should have been set aside.

The trial court’s order is affirmed.

The record made by the trial court at the time the plea was entered is silent as to the range of punishment. The thrust of movant’s argument is that the record being silent, the plea is thereby tainted. Movant, in his brief here, concedes, however, that State v. Conner, 500 S.W.2d 300 (Mo.App.1973), recognizes and holds that a record silent as to the range of punishment may be supplemented by extrinsic proof of the necessary knowledge on the part of the defendant. That portion of Conner cited in mov-ant’s brief is indeed appropriate. It is as follows, 1. c. 302-303:

“The second aspect of appellant’s initial point requires a more fully developed answer. Appellant contends he was not advised by the trial court of the punishment which could be assessed against him as a consequence of his plea of guilty. And, in fact, the transcript of the plea proceeding nowhere discloses that appellant either was advised of the maximum sentence which could be imposed upon conviction of the offense or that it was otherwise known to appellant. Although not so expressed in terms, Rule 25.04 contemplates that a defendant be advised of the consequences of his plea of guilty [State v. Blaylock, 394 S.W.2d 364, 367 (Mo.1965)] — including the punishment which may result from his admission of guilt — before it may be accepted by the court as voluntarily made. State v. Good, 403 S.W.2d 594, 598[1] (Mo.1966); State v. Bursby, 395 S.W.2d 155, 159[3-5] (Mo.1965). Although in that particular the plea proceeding lacked substantial compliance with Rule 25.04, appellant is not entitled to withdraw his plea of guilty if the evidence on the Rule 27.26 motion to vacate the judgment, considered interstitially with what was said and done at the time the plea was entered, shows that appellant had knowledge of the range of punishment for the offense at the time he pleaded guilty. State v. Mountjoy, 420 S.W.2d 316, 322[1 — 8] (Mo.1967); Winford v. State, 485 S.W.2d 43, 49[2-4] (Mo. banc 1972).”

Movant, having recognized the rule of Conner, seeks to avoid its application by asserting that the State failed to carry the burden of going forward after a noncompliance with Rule 25.04 was shown. State v. Grimm, 461 S.W.2d 746, 749 (Mo.1971).

This argument is predicated on movant’s interpretation of the testimony of movant’s appointed counsel who testified at the evidentiary hearing. Movant directs attention to a portion of the lawyer’s testimony in which he conceded that he did not discuss the range of sentence when defendant was forming his decision to change his plea. The difficulty is that the lawyer’s testimony taken as a whole shows that he did in fact tell him the range of punishment, as the lawyer put it, “early on,” before the discussions with respect to changing the plea. Movant denied he was so informed, but the trial court was entitled to determine the issue of credibility.

The trial court’s findings are not clearly erroneous. Crosswhite v. State, 426 S.W.2d 67 (Mo.1968). Affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    Willie Lee EDWARDS, Appellant, v. STATE of Missouri, Respondent.
    No. KDC 27943.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.
    Thomas M. Larson, Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for respondent.

      Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

Appellant’s motion to vacate sentence under Rule 27.26 was denied by the trial court after an evidentiary hearing at which appellant was present with counsel. Appellant’s conviction of murder in the first degree, and his sentence to life imprisonment, were affirmed on direct appeal. State v. Edwards, 486 S.W.2d 224 (Mo.1972), and at page 226 of the opinion appellant’s present Point III that “The Circuit Court erred in not instructing the jury on lesser included offenses” [an allegation of error grossly insufficient under Rule 84.04(d)] was considered and ruled. Besides that disposition, it is well settled that the giving or refusing of instructions being matters of trial error, unless the error, if any, is so glaring as to make the trial unfair, are not to be raised collaterally in Rule 27.26 proceedings. Tucker v. State, 481 S.W.2d 10, 14[4—6] (Mo.1972); State ex rel. Tindall v. Peters, 516 S.W.2d 582, 534[4] (Mo.App.1974). For these two reasons, appellant’s Point III is without merit and is overruled.

With little more clarity appellant’s Point I is that “The Circuit Court erred in ruling that appellant’s failure to raise his Rule 27.26 grounds on direct appeal precluded appellant from raising these issues on collateral attack” (e. g. what “grounds” are alluded to in the point?). Adverting to appellant’s Rule 27.26 motion, it is found that the allegation “(a) That Movant, a negro, was deprived of his right to a fair and impartial trial in violation of the 6th and 14th Amendments to the Constitution of the United States for the reason that all negroes were systematically excluded from Movant’s jury solely because of their race; that it is a common practice of the State within Jackson County, Missouri to systematically exclude, by use of strikes and peremptory challenges at trials by juries, all negroes from negro defendant juries thus depriving negro defendants of a jury representing a fair representation of the community (citing cases).” This allegation, although not even approached in detail in Point I, is insufficient to raise an issue of improper discrimination and abuse of the peremptory challenge under State v. Baker, 524 S.W.2d 122, 125 (Mo. banc 1975). Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), was there construed, and the court noted that defendant alleged and proved that no blacks had sat on a petit jury in a particular county for a period of 14 years, but that was not enough; “[H]e must also show the prosecutor’s responsibility for such a result, since defense counsel share at least an equal role in the peremptory process.” The Baker court further noted that there was no allegation that there have been no blacks on petit juries for any given period of time, which allegation might give rise to a fair inference of improper discrimination and abuse of the peremptory challenge, and that the assumption that the allegation showed a violation of Swain indicates a misreading of that case. “To comport therewith the defendant must allege that the exclusion of blacks is made ‘in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be . with the result that no Negroes ever serve on petit juries. . . . ’ 380 U.S. at 223, 85 S.Ct. at 837.” No such allegations are here made, and for that reason alone, Point I is overruled.

Appellant’s second point is again improperly abstract, “The Circuit Court erred in preventing appellant from challenging the method of jury selection.” However, there is no allegation in appellant’s Rule 27.26 motion which even remotely presents any issue of curtailment in any fashion of the right to challenge the method of jury selection. Not having been presented to the trial court, it cannot be here considered. Point II is overruled.

The judgment is affirmed.

All concur.


author: DIXON, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Cleophus PARKER, Defendant-Appellant.
    No. KCD 27961.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.
    Thomas M. Larson, Public Defender, R. William Boemker, Asst. Public Defender, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Defendant was charged by information with both second degree burglary and stealing. He was acquitted of the stealing charge, but the jury found him guilty of burglary. The jury was unable to assess punishment, and defendant was sentenced by the court to seven years in the Missouri Department of Corrections.

The crime occurred at the residence of Kathryn Gale. She had lived in the house about five weeks. Before her occupancy, it was vacant for an unspecified period of time. On the night the crime occurred, she locked her house and left for work at about 7:10 p.m. When in the early morning hours she returned, a light she had left off was burning. Inside the house she found trash in the hallway and drawers had been pulled out. Two television sets, a clock radio, cash and some jewelry were missing. The back door appeared to have been used by someone to gain entry. Glass was broken out in the lower left-hand portion of the door. Some items from the house were scattered in the backyard.

Glen R. Redmond, a Kansas City Police Department evidence technician, was dispatched to the victim’s home. He investigated within the residence and performed a procedure designed to lift latent fingerprints from surfaces within the house. He was successful in procuring five cards of latent fingerprints. One of the cards consisted of prints lifted from the inside of the glass in the rear door of the house, just above a hole in the glass. Redmond also lifted prints from the outside of the door glass, from a gold can found on the bed in the master bedroom and from a checkbook box.

He dusted for prints on all door facings, door frames, dresser drawers that had been pulled out and objects that had been taken out of the drawers, but was unsuccessful in acquiring any additional prints. He did not perform any procedures to locate prints on objects in the backyard.

At trial, William Green, a Kansas City Police Department fingerprint technician, testified that he examined the card of latent fingerprints lifted from the inside of the back door glass and compared that card with an inked fingerprint card bearing the impressions of defendant. He found a print on the inside of the door glass to be the same as the right middle finger impression of defendant. He found sixteen points of similarity and no points of dissimilarity between the two fingerprints. No other fingerprints were identified as defendant’s.

Defendant testified that he had no knowledge of the burglary and stealing. He was arrested over six months after the occurrence of the offense and could not by that time recall where he was on the night the crime occurred. He said that to his knowledge he never was inside the Gale residence nor did he steal anything from it. He did not know how his fingerprints could have been left on the door glass. None of the items taken from the house were proved to have been in his possession, and none were recovered from him. Aside from the fingerprint, no other evidence linked defendant to this crime. Such fingerprint evidence is sufficient proof of identity to sustain a conviction. State v. Simmons, 528 S.W.2d 8 (Mo.App.1975); State v. Lane, 497 S.W.2d 207 (Mo.App.1973); State v. Schleicher, 442 S.W.2d 19 (Mo.1969); State v. Gray, 504 S.W.2d 825 (Mo.App.1974).

Defendant assigns as error the trial court’s acceptance of the jury verdict in which he was found guilty of burglary but acquitted of the stealing charge. The claim is that such a verdict is inherently contradictory and unsupported by substantial evidence. Defendant argues that the evidence established that both a burglary and a stealing took place. The two offenses, he says, are so tied that acquittal on one charge required a finding that there was not substantial evidence to support the conviction on the other charge.

Defendant was prosecuted for both offenses under RSMo 560.110, which states, “If any person in committing burglary shall also commit a crime of stealing, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment, . . . ” Defendant relies on language relevant to an entirely different issue from State v. Blair, 365 Mo. 1167, 294 S.W.2d 1 (banc 1956), which, in effect, says that in regard to sentencing there is but one case where one is charged under 560.-110 RSMo. Defendant also cites State v. Cline, 447 S.W.2d 538 (Mo.banc 1969), cert. den. 398 U.S. 910, 90 S.Ct. 1706, 26 L.Ed.2d 71 (1970), where a conviction of burglarious stealing was reversed when the defendant was acquitted of burglary. Of course, burglary is “an indispensable prerequisite to a verdict of guilty for stealing in connection with the burglary,” l.c. 543. But there can be burglary without a stealing, and a jury was entitled to make that finding, returning a verdict of guilty of burglary but not guilty of stealing. This result was approved in State v. Ash, 286 S.W.2d 808 (Mo.1956), and it was approved in dicta in the Cline opinion itself, l.c. 542.

Defendant’s other claim of error is that Green was not demonstrated to be an expert qualified to give opinion testimony comparing appellant’s fingerprint with one found at the house. Green was questioned about his education and experience. He testified that he had eleven years of experience comparing fingerprints and that for five years he had been identifying latent prints. He had on-the-job training from recognized experts. He attended two F. B. I.schools on advanced latent prints, and he kept abreast of current developments in the field by reading technical literature subscribed to by the police department.

The qualification of a witness as an expert is within the sound discretion of the trial court. His decision is reviewable only for abuse of discretion. State v. Williams, 515 S.W.2d 463 (Mo.1974), State v. Taylor, 508 S.W.2d 506 (Mo.App.1974). On this record there is ample evidence that Green was qualified from experience and training to testify as a fingerprint expert. The trial court did not abuse its discretion. Defendant also alleges Green’s testimony was contradictory. It is the jury that must weigh and credit an expert’s testimony. State v. Maxie, 513 S.W.2d 338 (Mo.1974), cert. den. 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975), State v. Quilling, 363 Mo. 1016, 256 S.W.2d 751 (banc 1953).

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Adrian P. WILLIAMS, Appellant.
    No. KCD 27979.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.
    Thomas Larson, Public Defender, Douglas N. Merritt, Asst.. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J, and WASSERSTROM, J.
   WASSERSTROM, Judge.

The indictment charged defendant with first degree murder, but the jury found him guilty of only manslaughter and fixed his punishment at 10 years imprisonment. Defendant appeals on the following sole ground:

“The court erred in refusing defendant’s request that the jury be stricken and a new jury be drawn from a different ve-nire because of total exclusion of black people by use of preemptory [sic] strikes by the prosecutor.”

The facts bearing upon this issue are that the venire of 34 persons contained six blacks. The prosecution used six of its ten peremptory challenges to strike all of those veniremen, thus obtaining an all white petit jury for the trial.

Immediately after the jury was empaneled but before being sworn, defense counsel objected to the manner of the jury selection as follows:

“MR. MERRITT: Although there are still veniremen in the room, it obviously can be seen from the bench, and I would make objection to the systematic exclusion of blacks from this jury. There were six black people, all of whom were struck by the State. There were four females, two of whom are black, three of whom were struck by the State. I believe that this is a systematic and invidious discrimination against my client who is black. I object to the jury and ask the Court to set it aside and call a new venire.
“MR. ELY: If it please the Court, we chose the jury on the basis of our subjective opinion as to the qualifications by the questions and by the forms provided by the Court.
“THE COURT: The request to discharge the jury and the jury panel is denied. Your objection is noted.” (emphasis added).

In defendant’s motion for new trial, his counsel repeated the objection as follows:

“1. The Court overruled Defendant’s objection to the systematic and total exclusion of black véniremen from the jury. Objection was made while the venire was in the courtroom for easy identification by the court. There were eight black persons on the venire of 42 total. One black man and one white man were excused for cause by the Court. One black man was included among those in excess of the 34 required leaving then six black persons and 38 others. In the preempto-ry [sic] strikes the State struck all six of the black veniremen. The Defendant was black. The Defendant believes that such exclusion is a denial of due process of Constitutional magnitude and results in invidious discrimination of his cause.” (emphasis added).

It is to be noted that all objection made by defendant in the trial court related to the exclusion of black persons from this particular jury in this particular case. The Point Relied Upon in this court is no broader. Indeed, the narrow scope of defendant’s objection, limited to what happened in this single case, is emphasized by the nature of his argument in this court and summarized in his brief as follows: “By use of well founded mathematical formulae concerning the probability and permutations of random occurrences which are more fully explained in the addendum attached hereto, it can readily be seen that the challenges of all six of the black people from the venire could only occur in a random choice situation one time in 6,500. Or stating it another way it can be said that only in one case out of 6,500 cases would all six of the black people have been stricken on a purely mathematical random selection basis. The fact that such was the case strongly suggests that the common factor of race was instrumental in causing their removal from the petit jury.”

Defendant’s objection in the trial court and his Point and argument in this court completely fail to state a ground for demanding the striking of the jury chosen and the drawing of a new jury. It is now well settled that the State may exclude all blacks from the petit jury in any one given case by the use of its peremptory challenges. Further, the United States Supreme Court has held that this is permissible although done intentionally and expressly because of race. This was strongly stated by that Court in the leading case Swain v. Alabama, 380 U.S. 202, l. c. 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965), as follows:

“It [the peremptory challenge] is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be. ... Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.”

The discrimination becomes unconstitutionally objectionable only if it is proved that the prosecutor in a given county has practiced that same kind of exclusion systematically in all cases. This distinction found enunciation in Swain v. Alabama, supra, in the following much quoted language:

“We have decided that it is permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. In these circumstances, giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purpose of the peremptory challenge are being perverted.”

The rule so formulated in Swain was acknowledged and adopted by the Missouri Supreme Court in State v. Davison, 457 S.W.2d 674 (Mo.1970) and has been followed by the Missouri courts consistently ever since: State v. Bradford, 462 S.W.2d 664 (Mo.1971); State v. Huddleston, 462 S.W.2d 691 (Mo.1971); State v. Smith, 465 S.W.2d 482 (Mo.1971); Clark v. State, 465 S.W.2d 557 (Mo.1971); State v. Brookins, 468 S.W.2d 42 (Mo.1971); Brown v. State, 470 S.W.2d 543 (Mo.1971); State v. Carter, 478 S.W.2d 358 (Mo.1972); State v. Johnson, 499 S.W.2d 371 (Mo.1973); State v. Collor, 502 S.W.2d 258 (Mo.1973); State v. Baker, 524 S.W.2d 122 (Mo. banc 1975); State v. Kelly, 506 S.W.2d 61 (Mo.App.1974); State v. Dinkins, 508 S.W.2d 1 (Mo.App.1974); State v. Langston, 515 S.W.2d 852 (Mo.App.1974); State v. Booker, 517 S.W.2d 937 (Mo.App. 1974); State v. Brown, 527 S.W.2d 15 (Mo. App.1975); State v. Davis, 529 S.W.2d 10 (Mo.App.1975); Edwards v. State, Mo.App., 535 S.W.2d 124.

Defendant has made no claim by objection in the trial court or by his Point on appeal in this court that the prosecutor in Jackson County has discriminated by use of peremptory challenges to remove all Negroes from petit juries “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be .” Absent such allegation, defendant has wholly failed to bring himself within the line of cases cited above. Moreover, he made no request for a hearing and he made no effort whatsoever to show a systematic pattern of exclusion in all cases as required by the uniform decisions on this subject.

The closest that defendant has come to tackling the basic problem of showing such a systematic pattern of exclusion is his request in the course of his brief that this court take judicial notice of the multitude of cases which has been brought to the attention of the Missouri appellate courts on this point. While defendant has not undertaken the task of collecting these cases, our own independent research discloses that there have been 18 cases in which Missouri appellate decisions have passed upon this point, those cases having been cited above in this opinion. Of those, only five were appeals from convictions in Jackson County. Five eases constitutes only a tiny percentage of all the criminal cases which have been tried in Jackson County since Swain. That statistic falls far short of the proof necessary to show the prohibited systematic pattern of discrimination. Indeed it constitutes a much lower caliber of proof than that which was held insufficient in State v. Booker, supra, State v. Dinkins, supra, and State v. Davis, supra.

Defendant cites and attempts to rely on cases dealing with school desegregation and the exclusion of black physicians from the use of hospitals. Those decisions deal with altogether different problems and have no bearing here.

Affirmed.

All concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff-Respondent, v. Charlotte Louise WILCOX et al., Defendants-Appellants.
    No. 36230.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 16, 1976.

      Joe Bill Carter and John J. Allan, Clayton, for defendants-appellants.
    Bruce A. Ring, Chief Counsel, Jefferson City, Richard E. Baker, Asst. Counsel, Kirk-wood, for plaintiff-respondent.
   ALDEN A. STOCKARD, Special Judge.

In this action to condemn land for highway purposes the jury award of just compensation was $22,000, and the landowner has appealed. We affirm.

The State Highway Commission took an entire parcel of land with the improvements for the construction of Interstate Highway 44. The parcel, known as 1724 Longfellow, was 50 feet wide and 135 feet deep and had located thereon a three story brick house which was an old Romanesque Victorian style structure that was built about 1884. The property was located in South Central St. Louis City in an area known as Compton Heights.

Appellant’s first point is that the trial court “abused its discretion in excluding the testimony of * * * Gerhardt Kramer as to his competency to testify [a] to value of historic homes and [b] as to the comparability of other property to the home in question.” Appellant asserts in her brief that Mr. Kramer had been buying “similar old historic homes” and knew “what people will do and pay for them and what is entailed if one purchases such homes for restoration.” She asserts that the court erred in not permitting testimony to establish a “comparative basis” between appellant’s property and two other places known as the De-Menil House and the Hanley House.

Before we examine the testimony of Gerhardt Kramer, we shall set forth a few basic rules applicable to this case. Here we have a total taking; not a partial taking where the measure of just compensation is the difference between the fair market value of the landowner’s property immediately before and immediately after the taking. Just compensation for this taking, generally speaking, is to be measured by what a reasonable buyer would give who was willing but did not have to purchase, and what a reasonable seller would take who was willing but did not have to sell. In Re Amory Site in Kansas City, 282 S.W.2d 464, 465 (Mo.1955). In determining the just compensation to which the owner is entitled the jury may consider uses of the land for which it is reasonably suitable having regard to the existing conditions of the community, or such other conditions as may reasonably be expected in the future. State ex rel. State Highway Commission v. Cox, 336 Mo. 271, 77 S.W.2d 116 (1934).

Gerhardt Kramer was an architect who had specialized in the restoration of old homes. He was one of the founders of Landmarks Association of St. Louis, an organization devoted to the restoration and preservation of old historic buildings and sites. He was familiar with appellant’s property and he described it as being in “mint condition.” He testified that in his opinion the “fair market value” of the property on December 17, 1968, the date of taking, was 60 to 70 thousand dollars, but he later commented that the determination of the fair market value “is supposedly a little bit out of my line.” As a result of this comment the trial court stated that it would permit appellant’s counsel to “qualify the witness further.” He subsequently testified that his estimate of 60 to 70 thousand dollars as the fair market value was what he believed would be paid for it in an “arm’s length transaction.”

We now reach thé only objections to his testimony which were sustained, but certain background information is essential. Mr. Kramer testified that from 1945 he had been involved on “a first-hand basis” with the purchase of about 25 period homes, and that some homes have a market value “because of what they are and what their background was historically.” He then stated that his previous estimate of value of appellant’s property at 60 to 70 thousand dollars was based on what he thought “would be paid in the market place by someone who is interested in this kind of house,” or “what someone would pay for the building as it was as of the date [of taking] without restoration.” He also stated since the house was in “mint condition,” for anyone interested in buying the house as a period house for private use or for some other person, there would “not that [he] saw” have been any cost of restoration or rehabilitation. He further stated that his only interest in restoration “is the actual building construction,” and that he did not concern himself with interior furnishings, which is the field of an interior decorator. The following then occurred:

Q. [by Mr. Carter] Could you tell the jurors about some of these houses so that they can understand what you are talking about with regard to economics in restorations and what is involved with this with people who are interested in these types of homes?
A. Well, the DeMenil House, cost us something—
MR. BAKER: Objection, your Honor.
THE COURT: I will sustain the objection to that.
THE WITNESS: But the Hanley House—
MR. BAKER: Objection, your Honor. The witness—
THE COURT: I will sustain it as to the Hanley House.

There was no offer of proof, and we cannot determine with any confidence exactly what the testimony would have been if the witness had been permitted to answer. This deficiency alone would justify ruling the first point against appellant. See Hays v. Western Auto Supply Company, 405 S.W.2d 877, 881 (Mo.1966), where it was held that “Nothing is preserved for appellate review when a court rejects evidence, in the absence of an offer of proof * * *, except in instances where the plain error rule * * * is applicable.” See also Elliott v. Richter, 496 S.W.2d 860 (Mo.1973); Barnett v. Scholz, 496 S.W.2d 812 (Mo.1973); and Madget v. Jenkins, 461 S.W.2d 768 (Mo.1971).

We probably would be justified in assuming that the witness was going to relate the restoration costs of other houses, particularly the two mentioned. Assuming this could for some reason have been relevant, appellant’s property was in “mint condition” and needed no restoration, and the opinion of the witness as to fair market value was based on that assumption. Therefore, the cost of restoration of other houses was not material to any issue in this case.

Turning back to the precise wording of appellant’s point, there is nothing to indicate that the trial court excluded testimony of Mr. Kramer “as to his competency to testify to value of historic homes,” and we can not determine that it excluded any material testimony “as to the comparability of other property.” At most, it may have prevented testimony concerning the restoration costs of other houses for special purposes when such restoration costs were not material to any issue in this case. We find no merit to appellant’s first point.

The second point is that the court “abused its discretion by continually and repeatedly commenting on the defendant’s testimony,” and that it thereby prejudiced her case. The term “testimony” apparently is used in the sense of “evidence” because in argument appellant does not refer to testimony by her but only to incidents occurring during the testimony of her witnesses John McCarthy and Charles Barr.

Although the -point is insufficient to present any issue for appellate review, Rule 84.04(d), we have looked at what we consider to be the incidents referred to, and we find no error.

Reference is made in argument to only one page of the transcript containing testimony of Mr. McCarthy. During direct examination of Mr. McCarthy, respondent’s counsel asked to “voir dire” the witness who had previously made reference to two houses located in St. Louis County. During that voir dire examination the court asked: “How can you, for the purpose of this proceeding Mr. McCarthy, compare a frame home on Laclede Station Road in St. Louis County or a one and a half story brick home with a 3-story brick home in Longfellow?” After a discussion counsel for appellant said: “No one ever contended they were comparables.” Further testimony by the witness was permitted on the basis that he was not referring to them as comparable to appellant’s property, but that “They served only as a guide to check the other approaches that I attempted to use in the valuation of the property.” We find nothing improper with this inquiry by the court.

Appellant also argues that “at a later stage in the trial and for rebuttal, the defendant put on Mr. Charles Barr and at the outset of [his] testimony, the court volunteered that [his] testimony was not rebuttal.” It is claimed that this gave “the impression to the jury that Mr. Barr had nothing to add or detract from a rebuttal of the State’s testimony where in fact he would have testified that in his opinion * * * the homes in the areas where 1724 Longfellow was located were more expensive.” This, of course, is speculation because there was no offer of proof.

Mr. Thomas O’Toole, a witness for the State, had testified that a house recently purchased by Mr. Barr for $22,000 was comparable to appellant’s property. When Mr. Barr was testifying on rebuttal, he stated that when he purchased his house it was in “good condition.” The court said: “Well, it is my impression Mr. O’Toole said it was in good condition. Mr. O’Toole classified Mr. Barr’s house as in good condition. He [Mr. Barr] testified it was in good condition. Now, is that rebuttal?” Under the circumstances we see nothing improper by this question.

We have read carefully all the testimony of Mr. McCarthy and Mr. Barr, and in addition to finding appellant’s charges of improper conduct on the part of the trial court to be totally without merit, we are impressed by the patience displayed by the court in its rulings.

Appellant’s final contention is that the trial court abused its discretion “in preventing [appellant] from cross-examining [State’s witness O’Toole] on the relationship of [his] testimony that the neighborhood * * * was declining and the effect of the condemnation proceeding.”

Mr. Thomas J. O’Toole, an expert witness on real estate values, testified for the State that in his opinion the fair market value of appellant’s property as of the date of taking was $20,000. He also testified concerning the physical features of the property, and that it was located in a “declining” neighborhood. During cross-examination of this witness counsel for appellant wrote some words on a blackboard, including the word “delay.” After a request by State’s counsel that the words be erased from the board, and some discussion was held between court and counsel, the court said: “The question is what the delay of Highway 44 has got to do with the valuation of the property in question.” The following occurred:

MR. CARTER [appellant’s counsel]: Your Honor, I ask permission to be allowed to go into this area to show that there is a causal connection between this considerable delay and what Mr. O’Toole says as to the declining neighborhood and that causal connection was caused by the State Highway Department.
THE COURT: You will be permitted to do that. Proceed.
MR. BAKER: I will object to that as irrelevant and immaterial your Honor, and incompetent under the laws—
THE COURT: The objection is overruled. I will permit him to do this.
Q. (by Mr. Carter) Mr. O’Toole, once the Highway Department announces that ■ it is going to take part of some area, some neighborhood, insofar as property within that is concerned, you can’t buy or sell it to anyone, can you, for all practical purposes?
MR. BAKER: I object to that your Hon- or. There has been testimony that the house right next door sold just less than 3 years before the taking.
THE COURT: I will permit him to—
MR. BAKER: —it is totally irrelevant and immaterial to any issue in this case.
THE COURT: Let me ask you this Mr. O’Toole: do you consider that in your evaluation of the property?
THE WITNESS: No, sir.
THE COURT: All right. On those grounds, it is sustained.
Q. (by Mr. Carter) You were saying Mr. O’Toole, that you exclude all factors of depreciation because of the delay brought about by the Highway Department, do I understand you to say that?
A. Yes, I do.

There was no offer of proof, and as previously noted, for this reason alone the contention could be ruled against appellant.

In her brief appellant states that she hoped to show “a casual relationship between the neighborhood as it was without the threat of condemnation and the neighborhood as it was on the day of taking,” and she also argues that she should have been allowed to “cross-examine the credibility of the [State’s] expert witness on his short statement that he did not take the event of the highway project into account in making his appraisal.”

Appellant cites and relies on Land Clearance for Redevelopment Authority v. Morrison, 457 S.W.2d 185 (Mo.banc 1970). However, in that condemnation case the landowner filed a counterclaim for damages in which he alleged that the condemnor had wrongfully exercised dominion over his property prior to the date of taking and by doing so had reduced its value. It was held that the use of the counterclaim in an attempt to obtain damages for this alleged wrong was permissible. That is not the factual situation of this case. Appellant did not file a counterclaim, and there was no contention that the Highway Commission had committed any tortious acts prior to the time of taking which affected the value of the property.

In the absence of an offer of proof we must speculate as to what evidence appellant sought to present. However, we consider it fairly evident that she wanted to develop by cross-examination that a delay in the construction of the highway after its proposed location was made public affected the market value of appellant’s property. There is nothing to indicate that appellant contends the delay was a result of improper conduct, and in any event there was no counterclaim based on any wrongful conduct in relation to appellant’s property. By reason of St. Louis Housing Authority v. Barnes, 375 S.W.2d 144 (Mo.1964), and State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814 (Mo.banc 1933), the determination of the value of the condemned property is made in a condemnation proceeding as of the date of the taking, and in the Land Clearance case it is clear that any claim for damages resulting from wrongful conduct of the condemnor which affected adversely the value of the landowner’s property prior to the taking is a matter for separate proceedings. For this reason the result of the delay, if any, in the construction of the highway was not material to the issue of just compensation.

We do not rule that appellant should not have been permitted to cross-examine Mr. O’Toole as to the various matters he took into consideration in arriving at his opinion of just compensation for the taking. But, appellant did not advise the trial court of this purpose, if it was then the purpose, and we are not to hold a trial court in error for not permitting an examination not requested. Perhaps an offer of proof would have so advised the trial court, but as previously noted, that procedure was not followed.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


text:
    STATE of Missouri, Respondent, v. Steven Ronald RUFFIN, Appellant.
    No. 36507.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 16, 1976.

      Robert A. Hampe, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant was found guilty by a jury of exhibiting a dangerous and deadly weapon in a rude, angry and threatening manner in violation of § 564.610 RSMo 1969, and was sentenced pursuant to the Second Offender Act, § 556.280 RSMo 1969, to the custody of the Department of Corrections for a term of three years.

William Cooper testified that about 1:40 o’clock of the afternoon of August 20, 1973, he saw appellant at a methadone center in the 3900 block of Olive Street in St. Louis. There was no conversation between the two, but when appellant saw Cooper “he turned around and ran back into the center and ran * * * [into] somebody’s office.” About 20 minutes later at the corner of Sarah and Olive Streets William Cooper saw appellant in the passenger side of a parked automobile. Appellant got out of the automobile, leaned across its roof, and pointed a pistol at William Cooper and his brother Leo. William ran into a liquor store and Leo ducked behind a large post that was at the door of the liquor store. Leo Cooper testified that appellant ran after him and chased him around the post. He could hear the gun “clicking” and he heard appellant say something but did not recall what he said. Appellant then returned to the automobile and it drove away.

As a result of the above incident a burglar alarm was sounded at the liquor store. Officer Nichols, who responded to the call, saw appellant throw a nickel-plated revolver out of the window of the automobile. The officer recovered the revolver and it contained four .32 calibre bullets.

Defendant’s evidence consisted of the testimony of Ronald Norton. He testified that on August 20, 1973, he was at a methadone center on Olive Street when appellant arrived and entered the building. About ten or fifteen minutes later when appellant started to leave, Norton saw William and Leo Cooper “grab him by the arms.” Appellant struggled free and ran back into the building, and William and Leo Cooper pursued him. He heard William Cooper say, “Boy, you have an * * * whipping coming.” Later appellant left with Norton and another person, apparently Thedell Doss. The three drove to the corner of Olive and Sarah Streets and stopped. They then left the automobile and as they were approaching a liquor store “the two Cooper brothers walked up.” Leo Cooper approached appellant “with his hands up * * * under his shirt like this.” He then said: “Where you going to run now.” Thedell Doss handed appellant a pistol and he “flashed it like this” and “they backed up and went around the corner” and left. Norton, appellant and Doss then drove away, and Norton left the automobile before it was stopped by the police.

On cross-examination Norton was asked:

“And they [the Cooper brothers] weren’t doing anything at that time [when appellant flashed the gun], right?” Norton answered “Right.” Later, during cross-examination, the following occurred:
Q. And the Coopers weren’t doing anything to the defendant at the time that Doss passed the gun to the defendant?
A. Yes, they were.
Q. Well, you just said they weren’t.
A. I mean they approached him, you
know.
Q. And then he flashed the gun?
A. Right.

Appellant’s first point is that the trial court erred in refusing his requested instruction submitting the issue of self-defense.

The State “questions” that self-defense is available to one charged with flourishing a deadly weapon in a rude, angry and threatening manner, and cites and relies on State v. Gentry, 242 S.W. 398 (Mo.1922). While that case involved a charge of exhibiting a deadly weapon in a rude, angry and threatening manner, the right of self-defense was not an issue. The facts did not present a self-defense situation, the accused did not present or claim that defense, and it was not presented to the jury.

We consider the correct rule to be as set forth in State v. Cole, 508 S.W.2d 705 (Mo.App.1974), as follows: “If there is substantial evidence in a case involving a charge of exhibiting a dangerous and deadly weapon in a rude, angry and threatening manner that the defendant acted in self-defense, it is incumbent on the trial court to submit an instruction on that defense to the jury for their consideration in arriving at a verdict.” See also, State v. Arnett, 258 Mo. 253, 167 S.W. 526 (1914). The essential issue here is whether there was substantial evidence to require the submission of the issue of justification by reason of self-defense.

In an appropriate case self-defense may be a justification for doing what otherwise would amount to a crime. State v. Cole, supra. As a general rule, only a present danger can be a legitimate justification for resort to self-defense, and in prosecutions for assault with intent to murder, or to kill, or to do serious bodily harm it is usually required for self-defense to serve as a justification, that the accused was faced with actual, or at least reasonably apparent, danger of losing his life or suffering serious bodily injury. But, such degree of danger is generally held not to be required in a prosecution for simple assault and battery or for a minor degree of aggravated assault. 6 Am.Jur.2d Assault and Battery § 70. The charge here, exhibiting a dangerous and deadly weapon in a rude, angry and threatening manner, may be equated to a form of an assault. As held in State v. Daugherty, 196 S.W .2d 627 (Mo.1946), when a person has reasonable cause to apprehend on the part of another a design to inflict a great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished he is justified, and has the right, “ ‘to avert such apprehended design,’ ” and in proper circumstances the “right of attack may [be] essential to the right of self-defense.”

In determining whether there was substantial evidence to require the submission of justification by reason of self-defense, we consider the evidence in the light most favorable to that defense. In so doing a jury reasonably could find that the Cooper brothers first assaulted appellant at the methadone center by grabbing him by the arms, but he was able to struggle loose and escape by running back into the building. However, he was then told he had a “whipping coming.” The next time appellant saw the Cooper brothers, which was only 20 minutes later, the two of them advanced on him, one with his hands “up under his shirt” and who said, “Where you going to run now?” No reasonable person would doubt that the Cooper brothers were advancing on appellant with the intention of inflicting the “whipping” they had told him only twenty minutes earlier that he “had coming,” and that they believed they had him in a position from which he could not escape by running as he previously had done. Under these circumstances appellant could reasonably apprehend that he was in danger of suffering serious bodily injury at the hands of the Cooper brothers unless he took some affirmative action in self-defense. It was only then, according to appellant’s evidence, that his companion handed him the gun which he “flashed” but did not fire, and thereby averted the Cooper brothers from their design.

Under the circumstances it was a jury question whether the exhibiting of the gun was justified by reason of self-defense, and prejudicial error resulted from the failure to instruct the jury on that issue.

The judgment is reversed and the cause remanded.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willis THOMAS, Defendant-Appellant.
    No. 36544.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 16, 1976.

      Richard A. Fredman, Law Offices of For-riss D. Elliott, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Charles L. Howard, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

A jury convicted Willis Thomas of manslaughter. Committed to the department of corrections for a period of 8 years, Thomas has appealed, claiming improper actions by the Assistant Circuit Attorney, George Peach, in cross-examining appellant’s character witnesses and in commenting on appellant’s prior misconduct. Appellant’s assignments of error are well taken; the judgment of conviction must be reversed.

Thomas shot and killed one Harris following an argument. Thomas testified that Harris brandished a gun during the argument; that shortly thereafter, during the fatal encounter, Harris pointed the gun at Thomas and attempted to shoot him, whereupon Thomas jumped behind a door and fired back, killing Harris.

Thomas called William Woods and Albert Ross as character witnesses. Each testified that Thomas’ reputation was good. These excerpts from the transcript contain the improper cross-examination:

(The witness Woods)

“Q And you, in your knowledge of Mr. Thomas, since ’71, feel that his reputation is a good one?

“A I sure do.

“Q Would your thoughts be the same, sir, if I told you that in 1967 Mr. Thomas shot another man and claimed self-defense?

“A I never knew anything like that.

“Q Would your opinion be the same if I told you that was true?

“A I don’t know.

“Q Well, Pm telling you it is true. Now, what is your opinion?”

An objection by Thomas’ counsel was overruled. The prosecutor repeated the question and Woods answered that it would depend upon the circumstances; that his opinion would probably be the same. Then the prosecutor said, “How many times is he going to have to shoot people before — .” Counsel’s objection on the ground that the question was argumentative was sustained.

(The witness Ross)

“Q Now Mr. Ross, if I told you that in 1967, before you met Mr. Thomas, that he was arrested for shooting someone and claiming self-defense, would that have any effect on your opinion of him as a good, mild-mannered person?

“A No, it would [not] have any effect.

“Q Why?

“A He has proven to be a decent person.

“Q And he did, in 1967, for which he was arrested—

“A I don’t know nothing about ’67.

“Q How many times is he going to have to shoot someone — ”

Counsel began an objection which was sustained by the court before it was fully stated.

During closing argument prosecutor George Peach, seeking to discount the good character testimony on the basis that the witnesses knew little of Thomas’ background, referred to the fact that “he shot somebody and was arrested for assault with intent to kill in 1967.” An objection was overruled. Later the prosecutor argued: “He shot two people already and claimed self-defense and then this one — .” Counsel objected that there was no evidence that he shot anyone else. This objection was sustained. The statement was stricken. The jury was instructed to disregard the statement. A request that the prosecutor be admonished was ignored.

At no time during the trial was there any evidence that in 1967 Thomas shot another man, or that he was arrested for assault with intent to kill or that he had previously claimed self-defense. There was evidence that in 1949 he was convicted of auto theft. That was the only evidence of any previous misconduct or brush with the law, but the prosecutor made no reference to this previous conviction.

Reversible error was injected into the case by the conduct of the prosecutor. The transcript discloses a studied effort by the prosecutor to convince the jury, by the manner of framing questions and by stating in the presence of the jury as true events not established by evidence: that on one or two previous occasions Thomas shot other persons; that in 1967 he was arrested for assault with intent to kill and that he then claimed self-defense, the same as in the case on trial. The prosecutor made reference to these “facts” seven times during the trial. While the question of prejudice vel non should not depend solely upon the number of transgressions or offenses, State v. Selle, 367 S.W.2d 522, 531[26] (Mo.1963), the prosecutor’s persistent and repeated reference to these unproved facts negatives the Attorney General’s claim that he acted in good faith and that he was justified under the rule that to test the knowledge of character witnesses, the trustworthiness and accuracy of such knowledge, the basis for their judgment, their candor and credibility the prosecutor may inquire whether they have heard rumors or reports of specific acts of misconduct (not remote or ancient) which would reflect upon defendant’s character. State v. Selle, supra, 367 S.W.2d l. c. 529. This prosecutor did not ask these character witnesses whether they had heard rumors or reports of these matters. Nor did he assume facts and call for any opinion on the basis of such assumption. He recited and represented these matters as actual facts, personally vouching for them, notwithstanding they were not in evidence and were “wholly outside of the case,” in contravention of basic rules of cross-examination and in violation of his responsibility as a quasi-judicial officer to see that every defendant is accorded a fair trial. State v. Selle, supra, 367 S.W.2d l. c. 530. In State v. Spencer, 307 S.W.2d 440 (Mo.1957), in cross-examining a character witness the prosecutor asked whether she had been informed that defendant’s father had been disbarred. Considering that the prosecutor knew the question to be improper and that once asked, whether answered or not, a prejudicial effect would be implanted in the minds of the jury, the Supreme Court held that the trial judge should have reprimanded the prosecutor, and for this and other matters reversed the judgment of conviction. “It has been clearly established that while a reputation witness may be asked whether he has heard of acts of the accused inconsistent with the reputation he has testified to, the State is expressly prohibited from framing the interrogatories to imply specific acts of misconduct or to imply that appellant was in fact guilty of said acts.” De Grate v. State, 518 S.W.2d 821, 822 (Tex.Cr.App.1975). “A cross-examiner cannot state to a witness certain things as facts when there is no evidence in the record thereof and then ask his opinion thereon as to a defendant’s general reputation as affected in part by the matters so stated. * * * The lay mind does not stop ordinarily to distinguish between accusation of crime and conviction thereof. As there is no evidence in this record of a previous arrest of appellant * * * the statements to the witnesses in the question propounded on cross-examination that such were the facts were unfair and created around appellant an atmosphere of prejudice.” Pittman v. United States, 42 F.2d 793, 797 (8th Cir.1930). “The questions asked by the prosecuting attorney did not go to contradict any statement as to what [defendant’s] reputation was then. He did not ask the witnesses if rumors were current which they had heard concerning defendant’s misconduct, because it appears there were no such rumors at the time. * * * Under the pretext of testing the credibility and information of the witnesses he sought to bring before the jury the facts that the defendant had committed a number of very serious and abominable crimes * * * totally disconnected with the crime for which he was on trial. * * * This sort of cross-examination has been universally condemned. The prosecutor overstepped his privilege.” State v. Seay, 282 Mo. 672, 222 S.W. 427, 429 (1920). See also State v. Thurman, 521 S.W.2d 773 (Mo.App. 1975).

Not content with impressing upon the jury by cross-examination that Thomas had previously shot one or more persons and had asserted self-defense to escape punishment, the prosecutor renewed the theme in final argument, not once but twice. In State v. Cook, 282 S.W.2d 533, 535 (Mo.1955), the prosecutor said in closing argument, “He killed one man already.” The Supreme Court held this highly prejudicial, outside the evidence and unwarranted, and ruled that the trial court should have taken some appropriate action, and counted on this as one of the errors for which the conviction was reversed.

The inevitable result of the prosecutor’s transgressions in this case was to seriously prejudice appellant’s position before the jury; to impart to the jury that he was guilty of other specific crimes and was engaging in a pattern of conduct of shooting people and then seeking exoneration by pleading self-defense. This denied appellant a fair trial. The verdict, thus tainted with prejudice, cannot stand.

The conviction may not be upheld on the suggestion of the Attorney General that some of appellant’s objections were sustained and no objections were made to other improprieties and therefore any error was not properly preserved for appellate review. The Supreme Court “frequently has been impelled to the conclusion that the asking of improper questions or the making of improper statements has injected poison and prejudice that could not be neutralized by the sustention of defendant’s objections. In most of such cases, the transgressions have been persistent and repeated. [Citing twelve cases.]” State v. Selle, supra, 367 S.W.2d l. c. 530[23]. This is such a case.

Judgment reversed and cause remanded for a new trial.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . “[I]t is the general rule, which we have no intention of modifying, that such cross-examination should refer to ‘rumors’ and ‘reports’ of fact of misconduct * * * rather than to the witness’ personal knowledge of particular facts.” State v. Carroll, 188 S.W.2d 22, 24 (Mo.1945).