author: GUNN, Judge.

text:
    STATE ex rel. Edgar H. CRIST, Commissioner of Finance, Appellant, v. NATIONWIDE FINANCIAL CORPORATION OF MISSOURI, Respondent.
    No. 40900.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 10, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      John D. Ashcroft, Atty. Gen., Terry C. Allen, Asst. Atty. Gen., Jefferson City, Ir-ven L. Friedhoff, Gen. Counsel, Steven M. Geary, Div. of Finance, Edgar H. Crist, Jefferson City, for appellant.
    Richmond C. Coburn, Jeffrey H. Pass, St. Louis, for respondent.
   GUNN, Judge.

Does the phrase “real estate loan” as used in § 408.035 of the Missouri Usury Statutes denote a loan for any purpose secured by real estate? Such is the core issue into which we must delve to reach a denouement in this quo warranto action instituted by relator Commissioner of Finance against respondent Nationwide Financial Corporation of Missouri, a company engaged in the business of making consumer credit loans.

On February 24, 1978, the Finance Commissioner filed a two count complaint against Nationwide: count one. in the form of an information in the nature of quo warranto and count two a prayer for an injunctive relief. The Commissioner charged that Nationwide violated the usury law interest ceiling set forth in § 408.030 by making at least 133 loans to various customers at rates of interest in excess of 10 percent per annum. The Commissioner alleged that Nationwide thereby illegally contracted to receive at least $344,132.38 in usurious interest. The purposes for the 133 loans were manifold, including debt consolidation, college tuition, automobile purchase, investment and medical expenses. Nationwide contended that the loans were “real estate loans” within the meaning of § 408.-035 and were therefore exempt from the interest rate limitations of § 408.030. Though no loan was made for a purpose related to real estate, Nationwide declared that each challenged loan was secured by a second deed of trust on residential property. On February 24, 1978, the circuit court ordered Nationwide to show cause why a preliminary injunction should not be granted. On March 23, 1978, Nationwide filed a motion to dismiss the complaint on the ground that the Commissioner had no jurisdiction to institute the quo warranto action and that adequate remedies at law precluded an injunction. The motion was denied as to the issue of standing but granted for failure to state a cause of action. The court also granted the Commissioner twenty days to replead. He then filed an amended petition on April 25, 1978, and shortly thereafter Nationwide moved to dismiss the complaint. On August 4, 1978, the court granted Nationwide’s motion to dismiss with prejudice and held as a matter of law that “. the term ‘real estate loan’ as used in § 408.035 means a loan secured by real estate.” Such dismissal represents a final appealable order. State on inf. of McKittrick ex rel. Handlan v. Wilkie Land Co., 165 S.W.2d 432 (Mo.App.1942).

The statutory provisions relevant to our decision are as follows:

Section 408.030. Interest, maximum rate allowed .
1. After January 9, 1975, parties may agree in writing, for the payment of interest, not exceeding ten percent per an-num, on money due or to become due upon any contract.
2. If a rate of interest greater than permitted by law is paid, the person paying the same or his legal representative may recover twice the amount of the interest thus paid, provided that the action is brought within five years from the time when said interest should have been paid. The person so adjudged to have received a greater rate of interest shall also be liable for the costs of the suit, including a reasonable attorney’s fee to be determined by the court.
******
Section 408.035. Unlimited interest, when allowed.
Notwithstanding the provisions of section 408.030, it is lawful for the parties to agree in writing to any rate of interest in connection with any
(1) Loan to a corporation;
(2) Business loan of five thousand dollars or more, but excluding loans for any agricultural activity;
(3) Rea 1 estate loan, other than residential real estate loans and loans secured by real estate used for an agricultural activity;
(4) Loan of five thousand dollars or more secured solely by certificates of stock, bonds, bills or exchange, certificates of deposit, warehouse receipts, or bills of lading pledged as collateral for the repayment of such loans. (Emphasis added)
Section 408.015 Definitions.
******
(6) “Residential real estate loan” shall mean a loan made for the acquisition, construction, repair, or improvement of the real estate used or intended to be used as a residence by not more than four families. The term shall also include any loan made to refinance such a loan. No loan secured by residential real estate shall be considered to be a business loan. (Emphasis added)

The Commissioner argues that the trial court erred when it dismissed the complaint as the loans in question made by Nationwide were not related to real estate in any way other than through the deeds of trust on residential real estate and were not, therefore, “real estate loans” entitled to unlimited interest rates under § 408.035. The Commissioner’s contention is that the usury limitations apply to the purpose of the loan and not to the security. Since the loans were not for a purpose within the unlimited interest rate provisions and the purposes of § 408.035, the ten percent interest restriction would apply regardless of the fact that the loans were secured by real estate. Nationwide’s position is the opposite — that it is the security given for the loan, not the purpose, which determines whether there are interest rate restrictions. In this case, according to Nationwide, the security was real estate, thereby making the loans, despite their purposes, real estate loans free from § 408.035 interest rate strictures. Nationwide further argues that “the 10% usury limit is determined not by the definitional Section 408.015 ... as the Commissioner suggests, but by application of” § 408.035(3), which subjects residential real estate loans to the 10% limit but exempts other real estate loans. Nationwide then postulates that there is a very vital distinction between residential real estate loans and loans secured by residential real estate, as the legislature would have used the same language in § 408.035(3) that was used in § 408.015(6) if the 10% limit were to apply to both. We reject Nationwide’s analysis and believe the Commissioner’s interpretation of the usury statutes is correct.

No definition is ascribed to “real estate loan” in the usury statute, and the term has not been construed by Missouri courts. Missouri case law is also quantitatively and qualitatively deficient in defining “real estate' loan” as a term of art with a generally recognized meaning. Nationwide directs as to § 369.229, a section of the statute which governs the regulation of state-chartered savings and loan associations. There, the phrase “real estate loan” is used in several instances but not in the context of limitations on interest rates. Nationwide argues that the word “additional” modifies the term “real estate loans” in paragraph 3 of § 369.229, thus indicating that the loans described in paragraph (2) are also real estate loans. Since paragraph (2) essentially defines a real estate loan as any type of loan secured by mortgage or deed of trust, Nationwide concludes that the legislature intended a similar meaning when it employed the phrase in § 408.035. We do not find the reasoning conclusive. There are no indications that the legislature intended to use the phrase identically in both statutes, and such a determination would, in our opinion, defeat the purpose of the usury statute. Our duty with regard to statutory construction is, after all, to seek and effectuate legislative intent. State v. Kraus, 530 S.W.2d 684 (Mo. banc 1975); State ex rel. Miller v. Crist, 579 S.W.2d 837 (Mo.App.1979); State ex rel. Ashcroft v. Union Electric Co., 559 S.W.2d 216 (Mo.App.1977).

Usury is “the exacting, taking or receiving of a greater rate of interest than is allowed by law for the use or loan of money.” Beneficial Finance Co. of St. Charles, Inc. v. Kitson, 530 S.W.2d 497, 502 (Mo.App.1975). Statutes which are intended to prevent usurious practices are remedial in nature and should “be liberally construed so as to suppress the mischief and advance the remedy . . . .” Tobin v. Neuman, 271 S.W. 842, 843 (Mo.App.1925); Missouri Discount Corp. v. Mitchell, 216 Mo. App. 100, 108, 261 S.W. 743, 746 (1925). See also: Hudson v. State Security Ins. Co., 555 S.W.2d 859 (Mo.App.1977). According to § 408.030, the legislature intended that lenders generally be limited to an interest charge of 10 percent per annum on any money due or to become due upon any contract. As is consistent with the policy of liberal construction for remedial statutes, we are required to interpret narrowly the exceptions to the general rate of interest rule. City of Nevada v. Bastow, 328 S.W.2d 45 (Mo.App.1959). There are only four categories of loans which receive unlimited interest treatment in § 408.035. We believe that the real estate loan exception to the general rule is restricted to loans which are made for the acquisition, construction and repair or some use of real property other than residential real estate or real estate used for agricultural activity. We arrive at that conclusion for several reasons — some grammatical, some which evince legislative intent.

Initially, we note that throughout the statute the legislature consistently modified the word “loan” with the object for which the loaned money was to be borrowed and not with the method by which the money was to be secured. For example, “business loan” is defined in § 408.015(2) as a loan to be used in a business or for the purpose of acquiring a business rather than any loan secured by a business. “Residential real estate loan” is defined in § 408.015(6) as a loan made for the acquisition, repair, construction or improvement of residential real estate, not a “loan secured by residential real estate.” If the General Assembly wanted to adopt Nationwide’s interpretation of real estate loan, it could have done so by using the grammatical construction “loan secured by real estate” as exemplified in § 408.035(3) and (4):

(3) . . . loans secured by real estate used for an agricultural activity;
(4) Loan of five thousand dollars or more secured solely by certificates of stock, bonds, bills of exchange, certificates of deposit, warehouse receipts, or bills of lading pledged as collateral for the repayment of such loans. (Emphasis Added)

We are further convinced that the Commissioner’s interpretation reflects legislative intent by their admonition in the definition of residential real estate § 408.015(6) that no loan secured by residential real estate shall be considered a business loan. Nationwide treats these words lightly, but we must construe the statute so as to afford significance and effect to every word. State ex rel. Thompson-Stearns-Roger v. Schaffner, 489 S.W.2d 207 (Mo.1973); Hudson v. State Security Ins. Co., supra; Sandbothe v. Williams, 552 S.W.2d 251 (Mo.App.1977). A review of the usury law reveals that “business loan” is used only to establish a category of transactions in excess of $5,000 which are exempt from the 10 percent interest ceiling. We understand the legislature to intend that a higher rate of interest cannot be imposed on loans secured by residential real estate through the ingenious device of attributing to them business purposes. Throughout the usury statute we are reminded that loans secured by residential real estate are to receive favored treatment, and our construction of the legislature’s exhortation is consistent with that policy. We conclude that “real estate loan” as employed in § 408.035(3) must refer to loans, however secured, for the purpose of acquiring, constructing, repairing or improving property not intended for residential or agricultural purposes. The phrase would include, for example, commercial property, investment property, or real estate intended to be used as a residence by more than four families. Any other construction would vitiate the legislative purpose to protect homeowners from the burden of exorbitant interest rates. Therefore, in applying the usury limitation provisions on interest rates, the determining factor is the purpose of the loan, not the security. In reaching our decision, we are fully aware of the various past and pending efforts of the legislature to define “real estate loan” through legislation, including S.B.No.305 in the 80th General Assembly. But we are not persuaded by such legislative history. Neither are we persuaded by either federal or other state statutes which place no interest rate limitation on real estate loans, for such statutes specifically define a “real estate loan” as a loan secured by real estate.

Nationwide has challenged the Commissioner’s standing to sue, and we hold that the trial court properly denied the motion to dismiss on that ground. The Commissioner initiated this suit as a private relator; hence, the action was governed by § 531.010 et seq., RSMo 1969 and Rule 98.01. As a private relator, the Commissioner was required to plead some special interest in the subject matter of the litigation beyond that held by a member of the general public, State ex inf. Graham v. Hurley, 540 S.W.2d 20 (Mo. banc 1976), and was required to obtain permission from the Attorney General and the circuit court in order to proceed. Obviously, the Attorney General has granted permission to proceed; indeed, his name has been lent to action and his office has actively participated in the proceedings. The court’s leave to proceed was demonstrated when, following receipt of relator’s information in the nature of quo warranto, the court issued to respondent an order to show cause why its corporate charter should not be revoked or why it should not be prevented from making loans bearing usurious rates of interest. State ex inf. Graham v. Hurley, supra. See: State ex rel. Pickett v. Cairns, 305 Mo. 333, 265 S.W. 527 (banc 1924). As for the contention that the Commissioner of Finance did not plead the requisite special interest, we agree with the trial court. The threshold level of interest required to be shown by a private relator is not difficult to attain. Our Supreme Court recognized that fact in State ex inf. Graham v. Hurley, supra, where a taxpayer-citizen sought to oust a county judge from office for violating the nepotism provision of the Missouri constitution:

The size and complexity of our participatory democracy requires that all persons be vigilant in guarding against the abuse of power in order that government remain both responsive and responsible. It is difficult to imagine anyone other than a disappointed contestant for office with a more direct interest in the administration of this office. If an action cannot be brought at the relation of this citizen and taxpayer, it is highly unlikely that any action will ever be brought, and the purpose of the statute would be frustrated. Id. at 24r-25.

By applying this reasoning, the chief finance officer for the State has evinced sufficient special interest by his desire to prevent a violation of a law which he is entrusted to enforce. Therefore, we remand this case to the circuit court for a determination as to the merits of the Commissioner’s complaint and as to what relief, if any, would be appropriate.

Reversed and remanded.

REINHARD, P. J., and CRIST, J., concur.

      . Statutory references are to RSMo Supp.1975 unless otherwise indicated.

      . Section 369.229.
      1. Every association may:
      ******
      (2)Make loans of any type or kind, approved by the director of the division of savings and loan supervision, secured by mortgage or deed of trust constituting a first lien on real estate or a leasehold interest therein and having an unexpired term of at least five years or some term in excess of five years as may be fixed by regulation of the director of the division of savings and loan supervision;
      (3) Make additional real estate loans secured by liens immediately subsequent to its own first lien upon the same property and with or without additional security;
      (4) Purchase real estate loans of the same character as that upon which the association may make an original loan and lend money on the security of such loans;

        (5) Participate in loans with other lenders on real estate of any type that the association could originate;
      (6) Sell with or without recourse any real estate loan it holds or any participating interest therein. All permissible acts contained in this sub-section shall be subject to such provisions, conditions, restrictions, limitations and prohibitions as the director of the division of savings and loan supervision may from tíme to time by rule or regulation prescribe. * * * (Emphasis Added)

      . See, e. g., State v. Schwartzmann Service, Inc., 225 Mo.App. 577, 40 S.W.2d 479 (1931), where this court held that a definition of “motor vehicle” in one act did not control the meaning of the term in another act.

      . See e. g., § 408.036, which prohibits a prepayment penalty on certain debts secured by residential real estate and § 408.052, which prohibits a lender from charging points or other fees beyond a 1% origination fee on any residential real estate loan.

      . See, e. g., 12 U.S.C. § 371; Ky.Rev.Stat. § 289.011(21); Mich.Stat.Ann. § 28.540(167). See also: Northway Lanes v. Hackley Union Nat. Bank & Trust Co., 464 F.2d 855 (6th Cir.1972).


source: Caselaw Access Project

author: DOWD, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Danny Jewel GILLAM.
    No. 39881.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 17, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Richard Thurman, Asst. Attys. Gen., Jefferson City, Albert G. Tindall, Pros. Atty., Potosí, for respondent.
    Shaw, Howlett & Schwartz, Clayton, for appellant.
   DOWD, Presiding Judge.

Appellant, Danny Jewel Gillam was convicted of second degree felony murder by a jury in the circuit court of St. Francois County, Missouri and sentenced to ten years imprisonment. Gillam appeals.

In his first four points relied on, appellant challenges the court’s submission of MAI-CR 6.06 as its instruction # 6 to the jury. In his first point, appellant contends the giving of the instruction was erroneous because it instructed the jury on the crime of conventional murder in the second degree, which was different from the offense of second degree felony murder with which he was charged in the information.

The relevant segments of the second amended information are set forth below: “ . . . that said defendant, Danny

Jewel Gillam on the 31st day of July A.D.1976, at the said County of Washington did then and there with specific and criminal intent, knowingly, maliciously, unlawfully, wrongfully, willfully, on purpose, premeditatedly, feloniously, and of malice aforethought, did make an assault upon one Leon LeRoy Black with a loaded gun, to-wit: a 243 Cal. Winchester automatic rifle, and then and there, felo-niously, willfully, premeditatedly, and of his malice aforethought did discharge and shoot said rifle at and upon the body of the said Leon LeRoy Black thereby felo-niously inflicting a mortal wound upon the said Leon LeRoy Black, from which mortal wound Leon LeRoy Black did die and as part of the same occurrence did willfully, maliciously and feloniously shoot into the motor vehicle in which Leon LeRoy Black was a passenger, as a direct result of which shooting Leon LeR-oy Black did die on July 31, 1976, contrary. . . . ”

As we read the information, the offenses of conventional second degree murder (first part) and second degree felony murder (second part) are separately pleaded. The allegation that the appellant, in discharging a rifle at Mr. Black and thereby killing him, acted intentionally, willfully, premeditatedly and with malice aforethought constitutes a charge of conventional second degree murder. State v. Randolph, 496 S.W.2d 257 (Mo. banc 1973). The allegation that the appellant shot into a motor vehicle, thereby causing the death of Mr. Black, charges second degree felony murder. State v. Williams, 529 S.W.2d 883 (Mo. banc 1975). Since we find the information charged both conventional second degree murder and second degree felony murder, appellant’s point that the court submitted an instruction (conventional second degree murder) for a crime with which appellant had not been charged must fail.

The record reveals that on July 31, 1976 Carl Crocker and Leon LeRoy Black were four wheeling in a jeep through Potosi, Missouri. A deputy of the Washington County Sheriff’s Department viewed the jeep as it traveled on Highway 8, and improperly passed another vehicle on the right. The deputy turned on his car’s red lights, and began to pursue the jeep. While following the jeep as it headed into town and circled blocks, the deputy radioed for assistance from the Potosi Police Department. A Potosi Police Officer heard the call, and attempted to block the exit of a parking lot with his vehicle. The deputy chased the jeep into the parking lot and fired a warning shot up in the air because his siren was inoperative. As the jeep exited the parking lot, it struck the front of the Potosi Police Officer’s car and continued on its way out of town. The jeep turned onto Highway P, followed by the Potosi Police Officer’s car and the deputy’s car.

The appellant, Danny Jewel Gillam had heard the deputy’s request for assistance on his citizen’s scanner which was tuned in to the Sheriff’s Department. The appellant had assisted the police before, but had never been deputized. On hearing that the jeep was traveling down Highway P, the appellant moved his jeep onto the highway to effect a roadblock. Before the jeep had reached appellant’s roadblock, the appellant was advised by the deputy over the monitor, “don’t you mess with them. They are dangerous”. As the jeep approached the roadblock, the appellant shot at the jeep’s tires. The jeep negotiated around the roadblock and continued traveling on the highway. Carl Crocker testified that as he and the victim passed the appellant, they observed the latter pointing a rifle at them. The victim remarked that he thought “the guy (was) going to shoot us”.

Aiming at the right rear tire, appellant fired a second shot which pierced Black’s left eye and severed his brain stem. Crock-er testified that when the bullet struck Black, he fell into Crocker’s lap, and “there was blood flying everywhere.” Crocker drove a few more miles, and then pulled the jeep onto the shoulder of the road. The two police officers arrived on the scene, searched and handcuffed Crocker, and took him to the Potosi City Police Office. An ambulance was summoned to retrieve Black’s body.

The evidence introduced in support of the pleading of conventional second degree murder in the information justified the submission of instruction # 6 to the jury. On cross-examination the appellant contended that he did not intend to kill the occupants of the jeep. The appellant admitted, however, that the call for assistance was not intended for him, that he went to his gun cabinet and got his .243 Winchester, drove his jeep onto Highway P, and voluntarily squeezed the trigger when the jeep carrying the victims passed by. The appellant also admitted that he was aware that his bullet could have missed the tire and punctured the gas tank. He also admitted that it was foreseeable that the bullet could have hit a tire, caused an accident, and resulted in serious bodily injury to the occupants of the vehicle.

In his second point relied on, appellant contends that the giving of instruction # 6 was erroneous because there was no evidence that the appellant intended to inflict serious bodily harm on either the victim or Carl Crocker. We disagree.

The element of intent, which is a prerequisite to a finding of second degree murder, may be inferred from the circumstances. State v. Allen, 530 S.W.2d 415, 420 (Mo.App.1975). In ascertaining the element of intent, the jury may consider the type of weapon used, the mode in which it was used, the effect of its use, as well as all of the surrounding circumstances. State v. Woolford, 545 S.W.2d 367, 371 (Mo.App.1976).

As stated above, appellant admitted that his shooting at the jeep was a voluntary act. He considered himself to be a good marksman. He was aware that his act could result in great bodily harm to another. “General criminal intent is found ‘when from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire to have accomplished such result’ ”. State v. Shuler, 486 S.W.2d 505, 509 (Mo.1972) quoting 22 C.J.S. Criminal Law § 35. There was sufficient evidence in the record from which the jury could find the requisite intent for a conviction of second degree murder. Point two is ruled against the appellant.

In his third point relied on, appellant alleges that the trial court improperly deviated from the language of MAI-CR 6.06 which states,

“Second, that the defendant intended to (take the life of) (cause serious harm to) (name of victim), and. . .”

No discussion of this point can be found in the argument section of appellant’s brief.

The trial court phrased this portion of the instruction as follows:

“Second, that the defendant caused the death of Leon LeRoy Black, intending to cause serious bodily harm to either Carl Crocker or Leon LeRoy Black, and ...”

The Notes on Use following MAI-CR 6.06 discuss the possibility of a case in which the defendant does not intend to kill, but instead intends to do serious bodily harm to another. After commenting that the offense must still be classified as conventional second degree murder, the Notes on Use advise that in such a case, as intent to do serious bodily harm exists in an intent to kill, the “better course” would be to' instruct only on the intent to do serious bodily harm. Apparently, the trial court was of the opinion that the case could be so classified. We find no error in the court’s instruction in this respect. Point three is ruled against the appellant.

In his fourth and fifth points relied on the appellant alleges that the court erred in submitting instructions # 6 (murder in the second degree) and # 7 (felony murder) to the jury because neither contained the “however” clause of pattern instructions MAI—CR 6.06 and 6.07. The omitted clause was:

“However, if you do not find and believe from the evidence beyond a reasonable doubt each and all the foregoing, then you must find the defendant not guilty (under Count . . .) of that offense.”

The Notes on Use following MAI-CR 6.06 effective September 28,1975, and applicable when this crime was committed in July, 1976, authorize the deletion of the “however” clause only in cases in which a separate instruction on mental disease or defect is submitted to the jury. Earlier Notes on Use under MAI-CR 6.06, effective March 1, 1975, referred to the Notes on Use and caveats under MAI-CR 6.02 in the event that instructions on various degrees of homicide are being submitted to the jury. The Notes on Use following MAI-CR 6.02 provide that the “however” clause must be omitted when the case is submitted on both murder and felony murder because a failure to find the defendant guilty of a murder would not necessarily compel an acquittal of a felony murder. And, see the current Notes on Use to MAI-CR 15.14, Murder: Second Degree, Conventional, effective January 1, 1979, which states that the “however” clause must be omitted “ . (2) where a separate, additional instruction is given under MAI-CR 15.16 on Murder: Second Degree, Felony-Murder.”

As an instruction on second degree felony murder was submitted separately from the instructions on conventional second degree murder and manslaughter, the deletion of the clause was proper. Finding no error in the court’s instructions in this regard, we rule points four and five against the appellant.

In his sixth point relied on, appellant alleges that the trial court erred in its phrasing of instruction # 7. The latter instruction was submitted pursuant to MAI—CR 6.07, Murder: Second Degree, Felony Murder. Specifically, appellant contends that the court’s language, “the defendant did so in committing or attempting to commit the offense of shooting into a vehicle,” described a misdemeanor rather than felony offense. We disagree.

The Supreme Court requires literal compliance with the Missouri Approved Criminal Instructions, and regards any deviation from the “printed page” as an error the prejudicial effect of which is to be judicially determined. Rule 20.02(e). The trial court complied verbatim with the language of MAI-CR 6.07 which reads, “that the defendant did so (in committing or attempted to commit.)” Offenses Against Persons, MAI-CR 6.07, p. 6-6A.

The instruction embodies the legal principle that the felonious intent requisite to a conviction of murder under the felony murder rule, may be demonstrated by the commission of or the attempt to commit a felony. State v. Chambers, 524 S.W.2d 826, 829 (Mo. banc 1974), cert. denied 423 U.S. 1058, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976). Point six is ruled against the appellant.

In his seventh point relied on, appellant alleges that the trial court erred in submitting instruction # 8 (MAI-CR 6.08) because appellant’s evidence supported the giving of an instruction on culpable negligent manslaughter rather than one on intentional manslaughter.

In homicide cases in which separate instructions are submitted on conventional second degree murder and second degree felony murder however, “there must be an automatic submission of all lesser grades (MAI-CR 6.06 and 6.08” (emphasis added). Caveat to MAI-CR 6.02, (b), 6-4A. As the pleadings and evidence supported the submission of instructions on conventional murder in the second degree and felony murder, the trial court properly submitted the MAI-CR 6.08 instruction on manslaughter.

Appellant contends that the trial court should have instructed the jury on culpable negligent manslaughter. (MAI-CR 6.10). There is no notation in the transcript indicating that this particular instruction was requested. Furthermore, there is no indication in the record that appellant objected to the giving of MAI-CR 6.08 in instruction # 8. An instruction on culpable negligent manslaughter is not to be given automatically. Caveat to MAI — CR 6.02 C, p. 6-4a.

As previously stated, the appellant, who deemed himself to be a good marksman, admitted to having voluntarily shot at the jeep after have been advised against interfering by the deputy, aware of the possibility that his action could result in serious bodily harm to the occupants of the jeep. The court did not err in not instructing the jury on culpable negligent manslaughter because the evidence did not support the giving of such an instruction. Point seven is ruled against the appellant.

In his two final points, the appellant alleges that the trial court erred in not giving an instruction on excusable homicide.

A court is required to instruct the jury on excusable homicide if the evidence supports the submission of the issue. (MAI-CR 2.28 Notes on Use # 1).

The defense of excusable homicide is described in § 559.050 (RSMo 1969), as follows:

“§ 559.050. Excusable homicide
Homicide shall be deemed excusable when committed by accident or misfortune, in either of the following cases:
(1) In lawfully correcting a child, apprentice or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without unlawful intent; or
(2) In heat of passion, upon any sudden or sufficient provocation, or upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel and unusual manner.”

Our review of the record has not revealed any evidence which would justify the giving of this instruction. The appellant was engaged in a self appointed overzealous mission to stop a speeding jeep. He aimed and shot a dangerous weapon at a vehicle, cognizant of the potentially fatal consequences, and killed Leon LeRoy Black. There was no evidence that appellant’s act was lawful or accomplished with ordinary caution. Appellant was not entitled to an instruction on excusable homicide. Points eight and nine are ruled against appellant.

Judgment affirmed.

CRIST and SATZ, JJ., concur.

      . This is the murder in the second degree instruction.

      . MAI-CR 6.08 is entitled Manslaughter: Other than by culpable negligence.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Lorenzo CALLIES, Appellant.
    No. 40216.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 17, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Robert C. Babione, Public Defender, Mary-Louise Moran, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven Scott Clark, Kathryn Marie Krause, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John P. Dockery, Jr., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction by a jury of escaping custody before conviction and robbery in the first degree. Punishment was assessed at six months and five years respectively.

On May 16, 1977, defendant Lorenzo Cal-lies was a prisoner at the Medium Security Institution in the City of St. Louis. On the morning of May 16, 1977, between 9:30 and 10:00, defendant and several other prisoners made an unauthorized departure from the confines of that institution. Carl Gilmore, correctional manager of the institution, and Officer Henry Wins, supervisor of record processing there, having been alerted to the escape, borrowed another employee’s car in order to pursue two of the escapees who were facilitating their flight by vehicular means. Gilmore and Wins followed the car allegedly commandeered by the two escapees, lost sight of it, and then located it again as they approached a housing project near 1418 N. 8th Street in St. Louis. As the two pursuers drove toward the escapees’ automobile, they saw two men jump from the car and run between the buildings of the project. At this point, Gilmore entered the security office of the project to call police while Wins waited outside.

At approximately 10:00 a. m. on the morning of May 16, 1977, Leroy Lanier, his wife and a friend were sitting in Lanier’s car, which was parked near 1400 N. 9th Street. At this time, two men came up to the car and, after Lanier had declined their request to take them away, one of the men ordered Lanier and the others out of the car. The man who made this demand held his hands under his shirt as if he held a gun. Lanier and the others got out of the car, and the men drove away. Both prior to and at the trial, Lanier identified defendant as the man who had ordered him from the automobile and had driven it away.

In a two-count information, the state charged defendant in Count I with escape before conviction from the medium security institution and in Count II with first degree robbery in the theft of Lanier’s automobile. Prior to trial, defendant filed a motion to sever offenses, claiming that the escape had been completed before the car was taken from Mr. Lanier and that consequently these were two separate offenses for which there should have been separate trials. The trial court denied the motion and both offenses were tried together.

As his sole point on appeal, defendant argues that the trial court erred in denying his motion to sever offenses. Defendant contends that the escape and robbery were separate offenses connected only by temporal proximity and were not part of a common plan or scheme. Defendant argues that the court’s failure to sever prejudiced defendant because proof of one offense may have tended to prove the other in the minds of the jurors. We find no error.

In Missouri, joinder of certain offenses is permitted by rule of court, specifically Supreme Court Rule 24.04. State v. Baker, 524 S.W.2d 122, 126 (Mo.1975). On the date of the filing of the information and the trial, Rule 24.04 reads as follows: “All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees.” (Emphasis added) Defendant emphasizes that the escape and robbery herein were not constituents of a common scheme or plan.

While there may have been no common plan comprising the escape and the robbery, we believe that these acts were part of the same transaction. The theft of the automobile by defendant was clearly in furtherance of his escape from the medium security institution. Thus, this case is controlled by our case of State v. Johnson, 505 S.W.2d 11, 12 (Mo.App.1974), wherein we held that offenses were properly joined when they were “so closely [related] in time and purpose that they were part of the same transaction . . . .” See also State v. Milentz, 547 S.W.2d 164 (Mo.App.1977).

Defendant relies heavily on State v. Frier, 561 S.W.2d 437 (Mo.App.1978) to support his position that the offenses here should have been severed. Prier, however, involved the sale of controlled substances on three different dates and the offenses there were clearly not part of the same transaction. We are also aware of the recent case of State v. Buford, 582 S.W.2d 298 (1979) wherein the Western District distinguished Johnson and determined that it did not control in Buford. Nevertheless, we see no reason to deviate from the rule established in Johnson, and find that it is dispositive of this case. The joinder was proper in this case.

Where joinder is proper, the court may sever the offenses in its discretion. We find no abuse of discretion here.

Affirmed.

GUNN and CRIST, JJ., concur.

      . Rule 24.04 has since been amended, effective January 1, 1979. However, the applicable provision was not altered in substance.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Earl Leon WATSON, Defendant-Appellant.
    No. 40223.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 17, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Robert C. Babione, Public Defender, Charles H. Mostov, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Richard Thurman, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., David O. Fischer, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   REINHARD, Presiding Judge.

Defendant appeals from a conviction by a jury of the offense of burglary in the second degree. He was sentenced under the Second Offender Act by the court to a term of eight years in the Department of Corrections.

The victim of the burglary was Slaughter’s Cleaners, which is located at 4008 Delmar in the City of St. Louis. Slaughter’s was equipped with a burglar alarm system installed by the Potter Alarm Systems. At approximately 1:35 a. m. on May 27, 1977, the Potter Company received an alarm from Slaughter’s Cleaners. An employee of Potter notified the police. Two police cars were dispatched and the officers testified that when they arrived at the scene, the defendant was inside the cleaners with clothes in his hands. The door window had been broken out, and part of a brick was found inside the building. The defendant did not offer any evidence.

Defendant contends that comments made by the prosecutor during final argument constitute improper reference to his failure to testify. He did not object to the comments but asks that they be considered under the “plain error” rule. Rule 27.20(c).

In State v. Bufalo, 562 S.W.2d 114, 117, 118 (Mo.App.1977) Judge McMillian reviewed the law of Missouri as it applies to comments on defendant’s failure to testify and stated:

Comment on the failure of a defendant to testify is a violation of the constitutional privilege against self-incrimination, [citations omitted] Missouri cases have required a “direct, unambiguous and unequivocal prosecutorial comment” on the failure of the defendant to testify, [citation omitted] The challenged statement must constitute either a direct reference or “such indirect reference thereto that it was reasonably apt to have directed the jury’s attention to the fact he did not testify.” [citations omitted] Under the direct reference test, the use of the words “defendant,” “accused” and “testify” is crucial, [citations omitted] These words were not used in the challenged statement.
Under the indirect reference test, the court is required to view the challenged statement in the context in which it appears. [citation omitted] Evaluation of the prejudicial impact of a particular statement, however, is a matter within the discretion of the trial court and, absent an abuse of discretion, will not be disturbed on appeal, [citations omitted]

The statement of which defendant complains is as follows:

If someone was going to jump up in this courtroom ala Perry Mason, or ala all the other little television scenarios, we have dealing with courtroom drama, you know where the guy would be and where he is seated. Do you want me to point him out to you? Jump up, Earl. Stand up. Say you did it. Because by gosh, you sure did.

On first examination it appears that the statement was totally objectionable. However, when it is reviewed in context with the rest of the state’s argument and in conjunction with defense counsel’s argument, its offensiveness is much less clear.

During closing argument defense counsel stated:

You know, I’m in a peculiar position. This is not Perry Mason or anything like that. And during my closing argument, I can guarantee you no one is going to jump up from the back of the courtroom and say I did it, and this is how I did it. But you have to remember the burden of proof isn’t on me and it is not on my client, Earl Watson, to prove exactly what happened. The burden of proof is on the State. The State brought the charge and Earl doesn’t have to prove anything.

The state contends that its argument was in retaliation to the argument of the defense counsel and was proper. As has been stated in many cases, a prosecutor can go further by way of retaliation in answering arguments of the defendant’s counsel, then he would be authorized to do in the first instance. The trial court is vested with considerable discretion in permitting the use of retaliatory arguments and in refusing to declare mistrials based thereon. State v. Stowers, 580 S.W.2d 516 (Mo.App.1979); State v. Lacy, 548 S.W.2d 251 (Mo.App.1977).

We find that the prosecutor’s statement was made in retaliation to defendant’s argument. We note, however that the statement would have been improper if made by the Prosecuting Attorney during the initial phase of his closing argument. This statement was made in retaliation, yet there are limits to which a prosecutor can go in his retaliatory remarks. Had the defendant properly preserved this point, we would be required to determine whether the trial court abused its discretion in failing to grant a mistrial. Such determination is unnecessary here, because we examine this case in light of the plain error rule.

Rule 27.20(c) provides:

Plain errors affecting substantial rights may be considered on motion' for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.

The facts and circumstances of each case must be reviewed on a case to case basis to determine “plain error.” State v. Sanders, 541 S.W.2d 530, 533 (Mo. banc 1976).

In State v. Hurtt, Mo., 509 S.W.2d 14 at page 15, speaking for the Supreme Court, Judge Morgan said:

In order to invoke the plain error rule there must be a ‘sound, substantial manifestation . . .a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked.’ [citation omitted] . . . When guilt is established by such overwhelming evidence no injustice or miscarriage of justice will result from a refusal to invoke the rule.

A similar view was expressed by Judge Dowd for this court in State v. Smith, 547 S.W.2d 216 (Mo.App.1977). We now approach this case in the light of the above principles.

We are aware of State v. Ellinger, 549 S.W.2d 136 (Mo.App.1977) wherein the Western District invoked the plain error rule to review a prosecutor’s remark on the defendant’s failure to testify. The circumstances in Ellinger are, however, substantially different than those in the instant case. In Ellinger there was both a comment on the defendant’s failure to testify and other remarks which the court found inflamed the jury. The jury in Ellinger deliberated over five hours to reach its verdict, and the court gave the “hammer” instruction. Further, the court characterized that case as a close one, so that the prosecutor’s remarks may have made the difference between a hung jury or an acquittal.

Here, defendant complains of only one reference by the prosecutor, a remark which we find to be in retaliation to defendant’s argument and we find no other remarks made in the final argument similar to those relied on by the court in Ellinger. The jury deliberated for only a short time, retiring at 10:25 a. m. and returning a verdict at 10:47 a. m. Finally, the evidence of guilt in this case was overwhelming with two police officers finding defendant at 1:30 a. m. in the building with clothes in his hands. We find no “manifest injustice” in the court’s failure to grant a mistrial sua sponte.

The defendant further contends that the court erred in refusing to give to the jury Missouri Approved Instruction 3.42 on the law of circumstantial evidence as submitted by the defendant. This point is without merit.

A circumstantial evidence instruction is not required where there is any direct evidence, even if requested. ‘ Here, the officers’ testimony that they found defendant inside the burglarized premises with property in his hands was direct evidence. See State v. Orr, 493 S.W.2d 374 (Mo.App.1973). If the elements of the offense charged were established as in this case by both direct and circumstantial evidence the giving of a circumstantial evidence instruction is not mandatory. State v. Newhart, 539 S.W.2d 486 (Mo.App.1976).

The defendant next contends that the court erred in failing to strike for cause juror Irby. She stated on voir dire that she was the wife of a police officer, that she knew one of the witnesses who was a good friend of her brother, and that she would be prejudiced in certain cases involving her husband.

The court asked “Would you be able to sit on the jury, listen to the evidence, follow the instruction of the court regarding the law even though you might disagree with what the law is, and put aside all of the things that have occurred to you and arrive at a fair verdict? Would you be able to do that ma’am?” Answer: “I think I would, yes.”

Friendship or relationship with a police officer is not sufficient to disqualify a venireman. State v. Dodson, 551 S.W.2d 932 (Mo.App.1977), cert. denied, 434 U.S. 1071, 98 S.Ct. 1255, 55 L.Ed.2d 774 (1978). In State v. Russ, 574 S.W.2d 5 (Mo.App.1978) defendant argued that the juror’s answers “I don’t think so, no” were unequivocal. The court stated “We find no need for more intensive questioning simply to obtain an unqualified ‘no’. We defer to the opportunity of the trial court to evaluate the juror’s demeanor and its conclusion the juror conscientiously considered the question asked of [her] and could serve as a disinterested juror.” Id. at 7. As in Russ we find no abuse of discretion in the court’s ruling.

Affirmed.

GUNN and CRIST, JJ., concur.

      . See also State v. Reed, 583 S.W.2d 531 (E.D.Mo.1979).

      . The notes on MAI-CR 3.42 provide:
      “1. This instruction must be given if a circumstantial evidence instruction is appropriate and is requested by defendant in the manner provided by Rule 20.02.
      “2. This instruction may be given even if there is some direct evidence of guilt, though it need not be given at all unless the evidence is wholly circumstantial.”


text:
    STATE of Missouri, Respondent, v. Vernon ARMONEIT, Appellant.
    No. 40455.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 17, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Judith B. Sklar, Asst. Public Defender, Eleventh Judicial Circuit, St. Charles, for appellant.
    John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant appeals his conviction for child molestation. His appeal is based on the allegation that the victim was incompetent to testify and that it was error to admit her testimony. We affirm.

The victim was four years and eight months old at the time of the incident and five years and three months of age at the time of trial. She had been sent by her mother to a store near her trailer court home to purchase milk. On her return she was approached by the defendant who also lived in the trailer court. According to the victim, the defendant lured her into his trailer by the offer of candy. Once within the trailer the victim was given a bag of candy and lifted onto the defendant’s lap. The victim then related that the defendant “kissed me on the cheek. He pulled down my pants and sticks his finger down there, and he kissed me on the stomach.” The victim’s initial protestations to defendant’s behavior were unavailing, but he ultimately released her and the bag of candy with the admonition not to tell her mother what had happened. The victim who had been gone from home 45 minutes on what normally would have been a 10 minute errand was questioned by her alarmed mother. The child was rheumy eyed and at first reticent, but after a stern prodding she related the lustful episode. Police were summoned, and the defendant, after telling the officers that he “should not have done it” and “would not do it again,” was placed under arrest and following a brief struggle was taken to the police station.

The defendant’s testimony in large measure corroborates the victim’s version of what happened. He testified that he had indeed enticed the little girl into his trailer with the promise of candy; that he had placed her on his lap and had kissed her on her lips; that he had “come close” to putting his hand under her clothing; and that he had sent her home with directions not to tell anyone that she had been in his trailer. In spite of “coming close” to putting his hand under her clothing, the defendant denied that he had in fact violated the victim’s privacy or that he had kissed her other than once on the lips. Other than having seen one another in the trailer court, the defendant and the child were not previously acquainted with each other.

Defendant’s attack on his conviction centers on the competency of the victim to testify. In this regard he embraces § 491.-060(2), RSMo Supp.1977, which provides:

The following persons shall be incompetent to testify:
* % * * * *
(2) A child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which he is examined, or of relating them truly;
⅜ * * * * *

Defendant’s argument is that the victim, who was five years three months of age at time of trial, is by statute presumptively incompetent to testify. And so she is; but the presumption is rebuttable if it can be established that the witness possesses the following characteristics: (1) present understanding of or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence to observe and register such occurrence; (3) memory sufficient to retain an independent recollection of the observation made; and (4) capacity to translate into words the memory of such observation. State v. Sigh, 579 S.W.2d 657, 658 (Mo.App.1979); State v. Patterson, 569 S.W.2d 266, 269 (Mo.App.1978).

Without inditing all the substantial litany which was recited to establish her competency as a witness, we believe that the record fully justifies the trial court’s exercise of its discretion in allowing the victim’s testimony and that the victim possessed all the requisite qualifications to rebut any presumption against her competency to testify. There were minor inconsistencies in her testimony, but such deficiencies need not cause her disqualification and their effect may be weighed by the jury. State v. Sigh, supra. See: State v. Leigh, 580 S.W.2d 536 (Mo.App.1979). The victim displayed a practical awareness of the distinction between telling a lie and the truth thereby forming a basis for the proper admission of her testimony. State v. Sanders, 533 S.W.2d 632 (Mo.App.1976). She knew the consequences of failing to tell the truth, and it was not necessary for her to understand the distinction between testifying in a courtroom or chronicling the events of the crime elsewhere. State v. Patterson, supra; State v. Williams, 545 S.W.2d 680 (Mo.App.1976). The trial court was also diligent in administering an oath in form sufficient to quicken her conscience and in accord with State v. McClain, 541 S.W.2d 351 (Mo.App.1976), which holds that no special recitals are necessary for an oath to be administered. Accord: State v. Sanders, supra.

Defendant alleges that the victim lacked the mental capacity to register the advances made upon her because she had no concept of time or dates. This argument is not persuasive. A child’s ability to tell time or measure its passage or know the names or days of the week is not indicative of her ability to observe, remember or relate the episode which has taken place, State v. Ball, 529 S.W.2d 901 (Mo.App.1975). This is particularly true in this case as the victim clearly related the events as they occurred within a consistent framework of time substantiated by her mother.

The defendant challenges the victim’s memory as insufficient to retain an independent recollection of events charging that her testimony was the product of a false memory; that she had been threatened by her mother into telling the story and had repeated it four times before the trial. We are aware that we must be cautious to not unswervingly accept the testimony of a minor in cases such as this. There is danger that a false memory might be induced by suggestions to the child witness. State v. Wilson, 554 S.W.2d 511 (Mo.App.1977). So in determining whether the testimony is based on independent recollections, we look to the length of time between the event and the trial. Hildreth v. Key, 341 S.W.2d 601 (Mo.App.1960). We also consider whether anyone assisted in the recollection. See: State v. Dayton, 535 S.W.2d 479 (Mo.App.1976). Additionally we look to the nature of the event — whether it would create a strong impression on the child’s mind, State v. Ball, supra, and the consistency of the child’s testimony with other witnesses. State v. Obie, 501 S.W.2d 513 (Mo.App.1973).

In the present case the relatively brief period of six months had lapsed between the occurrence and the trial. The fact that the child told of the event for the first time under suggestion of punishment is not significant. The child hesitated to divulge to her mother where she had been because the defendant by his own admission told her not to disclose the activities in his trailer. The threat would only be significant if the mother had threatened the child for details. But here the persistence in finding out where the victim had been pertained only to her initial refusal to say anything. The victim testified that the circumstances were repeated at least four times before the trial: twice on the day of the offense to the mother and police officer, once on the day before the trial to the prosecutor and once on the morning of the trial at the competency hearing. This amount of repetition is not unusual and the child testified that no one told her what to say. Further, the nature of the offense— molesting a minor — would leave a lasting impression on the child.

But most impressive is the defendant’s own testimony which corroborates in major detail the facts related by the victim. The only variance between the victim’s recitation of salacious conduct and that admitted by the defendant concerned whether he had reached under her clothes — he admitted he “come close.” Also the victim said the defendant had kissed her on the cheek — he said on her lips, which seems to us even more opprobrious. And he denied kissing her stomach. The recitation of events by both the victim and the defendant seem congruent with each other and damning to him.

Defendant’s final argument is that the victim lacked the capacity to translate her memory into words because she would not tell her mother where she had been until she was threatened; that she did not mention the defendant by name and that she could not tell time or dates. All of these facts are irrelevant on the issue whether the child had sufficient capacity to narrate the events from memory.

The trial judge did not abuse his discretion in finding the child competent to testify-

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . Defendant was also charged and convicted for resisting arrest, but no appeal was taken from that conviction. And, indeed, the record amply supports the conviction for resisting arrest, and no apparent ground exists for a meritorious appeal. During his testimony, defendant accepted the arresting officers’ details of his resistance to arrest as being correct.

      . The victim believed that she would incur Jehovah’s displeasure if she told a lie.

      . THE COURT: S_, do you know what it is to tell the truth?
      THE WITNESS: Yes.

      THE COURT: And do you know that you’re to tell the truth here today?
      THE WITNESS: Yes.
      THE COURT: And do you understand that it’s bad not to tell the truth?
      THE WITNESS: Yes, it’s bad.
      THE COURT: And are you going to tell the truth here today?
      THE WITNESS: Yes.


text:
    STATE of Missouri, Respondent, v. Herman SMITH, Appellant.
    No. 40480.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 24, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Richardson & Carnasiotis, Scott Richardson, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant was convicted of first degree robbery and sentenced under the Second Offender Act to 35 years imprisonment. He challenges the admission of his oral and video taped statements alleging: (1) that the video taped statement was taken after he had requested an attorney and that it was made in violation of his Miranda rights; (2) that the video taped statement was involuntarily given after a prolonged detention of five days prior to arraignment; and (3) that the oral and video taped statements were the product of an illegal arrest. Defendant also charges the prosecutor with an improper comment on his right to not testify. We affirm.

About 12:30 in the morning of January 13, 1977, two police officers observed the defendant accompanied by a man and a woman enter a St. Louis tavern. Shortly thereafter the officers received a report of an automobile accident which had occurred around the corner from the tavern. Upon investigation the police found that the man who had accompanied the defendant into the tavern was at the auto involved in the accident. The police returned to the tavern and asked the defendant and his female companion for identification. The defendant responded with his, but the woman possessed none and denied ownership of a purse under the chair in which the defendant was sitting. The purse was taken by the police and was found to contain a loaded revolver and the woman’s identification. The defendant was arrested for carrying a concealed weapon and taken to the police station. At 8:53 a. m. on the same day a warrant charge for carrying a concealed weapon was refused. Meanwhile, police determined that the automobile which had been involved in the accident belonged to Lawrence Glenn Douglas. At 11:30 a. m. police found the body of Mr. Douglas in his apartment. He had been stabbed to death with a knife and his apartment had been ransacked. At 3:20 p. m., while still in a holdover cell defendant was placed under arrest for murder and robbery. At 3:50 p. m., after having been given his Miranda warnings, defendant gave an oral statement acknowledging his participation in the robbery of Douglas, but he denied any direct involvement in the murder. At 9:30 p. m. a warrant was issued against defendant on the charge of murder and robbery. On Tuesday, July 18, 1977 at 11:20 a. m., defendant made a video taped statement substantially the same as the oral statement given on January 13 at 3:50 p. m. About the same time the video taped statement was made an information for first degree robbery and murder was filed.

The oral and video statements given- by defendant were consistent with each other and related the final hours of Lawrence Glenn Douglas’ earthly adventures which ended in grim tragedy. Defendant stated that he and a companion, Mason VanDiver, were in a south St. Louis grill when Mr. Douglas entered and sat next to them at the counter. VanDiver engaged Mr. Douglas in a conversation and persuaded him to give the defendant and VanDiver an automobile ride. While in the auto, VanDiver produced a revolver and forced Mr. Douglas to drive them to Douglas’ apartment and allow them entry. Inside, VanDiver struck Douglas on the head with the gun and then stabbed him mortally. Defendant professed no part in ending Mr. Douglas’ life but acknowledged that he assisted VanDi-ver in stripping the dead body of its valuables, including rings and a watch. When the defendant was ultimately apprehended and searched, Mr. Douglas’ watch and diamond ring were in his possession. From the Douglas apartment, defendant and VanDi-ver took the victim’s car and began a drinking and drug spree during which they picked up the woman who was with them when the auto accident led to the termination of their freedom.

Defendant’s first complaint of error is that the video taped confession was given in violation of his Miranda rights. The video taped statement disclosed the following colloquy between the defendant and the interrogating police officer:

Q. My name is Edward DeVere. This is Herman Smith [defendant] This is Detective Joseph Burgoon. Herman, I’m going to advise you of your rights. You have the right to remain silent. Anything you say can and will be used against you in court. You have a right to a lawyer, to have him with you while you are being questioned. If you cannot afford to hire a lawyer one will be appointed for you before any questioning, if you so desire. Do you understand your rights?
A. [Defendant] Yeah.
Q. Speak up please. A. Yes.
Q. Do you wish an attorney present?
A. You can bring one.
Q. Do you wish an attorney present, yes or no?
A. No.
Q. Do you want to make a statement?
A. Yeah, I’ll make one.

Defendant contends that after telling his interrogator that he could bring an attorney, the further questioning was an unlawful continuation of the interrogation as there was not an effective waiver of his right to counsel. “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). Accord: State v. Olds, 569 S.W.2d 745 (Mo. banc 1978). But “[i]f he is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent.” Miranda v. Arizona, supra, 384 U.S. at 485, 86 S.Ct. at 1633, in giving cachet to F.B.I. procedures for interrogation of persons under arrest.

In rejecting a per se rule requiring an express statement from a defendant to effectively waive the right to presence of counsel, North Carolina v. Butler, 441 U.S. 369, 374, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286, 293 (1979), reaffirmed Miranda’s flexible standard for determining whether there has been a waiver: “[T]he question of waiver must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ” (quoting from Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).

The issue of uncertainty was addressed by the Missouri Supreme Court in State v. Phillips, 563 S.W.2d 47 (Mo. banc 1978). In Phillips the defendant was read his rights and immediately thereafter said “that he didn’t know if he should talk to * * * a lawyer.” Id. at 52. The court upheld the trial court’s finding that the defendant did not express a desire to consult with an attorney but had waived his right to counsel.

A near replica of the situation confronting us was presented in State v. Weinacht, 203 Neb. 124, 277 N.W.2d 567 (1979). There, the officer gave the defendant his Miranda warnings and the following colloquy ensued:

Q. [Officer] Knowing your rights in this matter, are you willing to make a statement to me now?
A. [Defendant] I would like to have an attorney present.
Q. Does that mean you do not want to say anything without an attorney present?
A. I’ll- — I’ve changed my mind. I’d like to tell you about it. Id. at 569.

The court held that the officer’s second question was not a further impermissible interrogation but a clarification which was permissible since the officer was uncertain as to the suspect’s intention.

In United States v. Rodriguez-Gastelen, 569 F.2d 482, 483 (9th Cir. 1978), the following situation confronted the court on the issue of whether continued interrogation of the defendant was proper:

I [police officer] told him [defendant] that I would read his rights to him again, which I did in Spanish. At the end of the reading of these rights, the final question is, “Do you understand the rights?” And he said, “Yes, I understand, but I don’t have money to pay for an attorney.” I explained to him again that in that case, the Court here in Tucson would provide him an attorney.
I then asked him if he wanted to talk about what he had, and he said, “Okay, okay, but with an attorney.” And I said, “Do you want to talk to me now without an attorney?” And to that he said, “That’s fine.”

The “That’s fine” response of the defendant was specifically held to be a waiver of the defendant’s prior request for counsel, and the further interrogation was thereby held proper. The “per se” rule eliminating possibility of waiver once request for counsel had been asserted was rejected — as in North Carolina v. Butler, supra—with the court recognizing that flexibility and realism should be applied in determining whether the defendant, once asserting Miranda rights, may voluntarily waive them so as to allow further interrogation. But we need not determine in this case whether there may be a waiver of rights once asserted. We believe that defendant’s response to the question of whether he wanted an attorney was sufficiently ambiguous and indecisive as to completely warrant the police officer’s subsequent question for clarification. The question “Do you wish an attorney present, yes or no?” was not to overbear the defendant’s will in view of his prior equivocation as to whether he wanted an attorney during the interrogation. We defer to the trial court’s experience that there was no definite assertion by the defendant that he wanted the presence of an attorney at his interrogation, and the finding by the trial court of a waiver of attorney was proper under State v. Phillips, supra, and Miranda v. Arizona, supra. This case is readily distinguishable from State v. Olds, supra, where police persisted in their interrogation after the defendant’s unequivocal and unambiguous request for an attorney.

Defendant claims for his second point of alleged error that the video taped confession was the product of coercion as he had been held in a holdover cell five days prior to being brought before' a magistrate. The circumstances of defendant’s arrest and detention have already been recited. Section 544.260, RSMo 1969 and Rule 21.11 mandate that a person arrested under a warrant should be brought before a magistrate as soon as practicable. But delay in bringing a person before a magistrate does not render the confession involuntary. Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); State v. Blankenship, 526 S.W.2d 78 (Mo.App.1975). Whether a confession is voluntary depends on the totality of the circumstances, State v. Hamell, 561 S.W.2d 357 (Mo.App.1977); and violation of a statutory requirement is a factor to be considered in the inquiry whether there has been physical or psychological coercion. Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957). In this case there are no factors present to establish an attempt to enervate the defendant’s will or make the video taped confession involuntary.

The circumstances of the present case lead inescapably to the conclusion that defendant’s confession was voluntarily given. (1) The oral statement made simultaneously with defendant’s arrest for the robbery charge, which was not attacked as being involuntary, was substantially the same as the video taped statement now challenged on appeal. (2) While defendant alleges in his brief that he was held incommunicado during the five day period, the claim was not made at the suppression hearing when defendant testified. (3) Defendant makes the self serving claim that he was induced to make both statements by police promises that they wanted the confession only to use against the co-defendant and that they would release him. At the suppression hearing the police denied such statements, and the issue of credibility was for the trial court. Although defendant admitted his participation in the robbery he attributed the murder solely to his co-defendant and the jury subsequently acquitted him on that charge. (4) No evidence was offered of actual or threatened physical violence or deprivation of food or sleep. Cf.: State v. Olds, supra. (5) Defendant was twenty-three years of age, had graduated from the eighth grade and had a prior criminal record. (6) Defendant was not subjected to persistent or prolonged interrogations.

Defendant’s third complaint is that the trial court erred in denying his motion to suppress his oral and video taped statements because they were obtained by the exploitation of an illegal arrest. Defendant claims that the arrest was illegal because it was made without probable cause.

Probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a belief by a man of reasonable caution that the person to be arrested has committed a crime. State v. Abbott, 571 S.W.2d 809, 813 (Mo.App.1978).

In this case the defendant’s initial arrest for carrying a concealed weapon was based on the recovery of a woman’s purse containing a gun from under defendant’s chair; his female companion denied ownership of the purse, but it contained her identification. Defendant relies on Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), which holds that evidence obtained from an unconstitutional arrest is inadmissible. But, here, we need not decide the issue whether the arrest was illegal. The test whether evidence has been obtained from an unconstitutional police action is “whether granting establishment of the primary illegality, the evidence to which instant objection is made has come by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. at 488, 83 S.Ct. at 417, quoting from Maguire, Evidence of Guilt, 221 (1959). In other words the admissibility depends on the existence of a “ ‘causal connection between the illegality and the confession,’ ” Dunaway v. State, - U.S. -, -, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824. (1979). The factors to be considered are “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, . and, particularly, the purpose and flagrancy of the official misconduct.” Id. at 2259.

Defendant’s confession was not obtained or maculated by exploitation of an illegal arrest. The auto accident brought about the investigation of the auto’s ownership which in turn led to the discovery of the murder and robbery. The investigation of the auto accident first revealed defendant’s identity to the police. His association with VanDiver was apparent to the police prior to the auto accident when defendant entered the tavern. His possession of the victim’s property acquired at his booking for the alleged illegal arrest did not lead to discovery of the crime. The only result of the purported illegal arrest was that defendant was available in police custody when the murder and robbery were discovered. The confessions were obtained after the crime was discovered and defendant was confronted with the discovery. It is clear that the confessions were obtained by means sufficiently distinguishable to be purged of the primary taint and hence may be used against the defendant. See: State v. Olds, supra. Thus, the admissibility of the confessions is not gauged by the legality of the arrest.

Defendant’s final argument is that the trial court erred in not ordering a mistrial because of the prosecutor’s closing remarks concerning the defendant’s demeanor. The remarks were:

Ladies and gentleman, you heard the tape. You remember or don’t remember what was in the tape. Yesterday while that tape was being played, myself and Mr. Richardson [defendant’s attorney] were sitting over alongside watching the tape, also, and watching the defendant. As that tape was being played, you no doubt saw Herman Smith sat there covering his face.

Defendant argues that his actions were not reflective of guilt and therefore the prosecutor’s comment was a reference to his failure to testify placing an impermissible burden on his constitutional privilege to remain silent.

It is improper to comment on defendant’s demeanor in a derogatory or incriminating manner during his forced presence in the courtroom. State v. Jackson, 444 S.W.2d 389 (Mo.1969). But here, the comment did not amount to a violation of defendant’s privilege against self incrimination. There was no direct, unambiguous or certain reference to his failure to testify. State v. Rothaus, 530 S.W.2d 235 (Mo. banc 1975); State v. Johnson, 566 S.W.2d 510 (Mo.App.1978). Nor could any reasonably intelligent juror have construed it as such. State v. Michaels, 543 S.W.2d 245 (Mo.App.1976). At most it pointed to a possible consciousness of guilt expressed by the defendant in burying his head in his hands. With regard to the oral argument, the trial court did sustain the defendant’s objection, instructed the jury to disregard it and ordered it stricken from the record. The trial court has substantial discretion in refusing to declare a mistrial, particularly in view of its action taken here. State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975); State v. Page, 580 S.W.2d 315 (Mo.App.1979); State v. Russ, 574 S.W.2d 5 (Mo.App.1978). There was no abuse of discretion in the ruling on the motion for mistrial.

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.


text:
    William TUCHSCHMIDT, Respondent, v. Edward J. CANAVAN et al., Defendants.
    No. 39939.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 24, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Ernest L. Keathley, Jr., St. Louis, Donald L. Bland, Clayton, for defendants.
    Donald L. James, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendants appeal from a verdict and judgment in favor of the plaintiff in the amount of $1,000. The case involved an automobile accident.

The accident occurred on January 14, 1974 at the intersection of Landsdowne and Jamieson in the City of St. Louis. Jamie-son runs in a generally northerly-southerly direction. Landsdowne runs in a generally easterly-westerly direction. The intersection of Jamieson and Landsdowne is controlled by electric traffic lights. There are three northbound and southbound traffic lanes on Jamieson plus two lanes about 8 to 10 feet wide. A small median divides the north and southbound lanes. There are two traffic lanes and a parking lane on westbound Landsdowne. Plaintiff was travel-ling south on Jamieson. Defendant, Edward J. Canavan was travelling west on Landsdowne. According to plaintiff as he approached Landsdowne the traffic signal was red for motorists proceeding south on Jamieson. He brought his vehicle to a stop in the middle traffic lane. There was a vehicle to the left of his auto waiting at the red light and vehicles behind him. He testified that he waited 30 to 40 seconds for the light to change. A few seconds after the light changed to green he and the car on his left started forward. He proceeded five to six feet forward when his vehicle and the one operated by defendant Canavan collided. There was testimony that defendant was travelling in excess of 40 miles per hour. All plaintiff saw was a blur.

Plaintiff sued defendant Edward Cana-van for damages to his automobile. Defendant counterclaimed for personal injuries, with his wife joining in a separate count for loss of consortium. The jury returned a verdict in the amount of $1,000 on plaintiff’s claim and against defendants on the counterclaims.

On appeal, defendants allege that the trial court erred in not granting their motion for judgment notwithstanding the verdict as plaintiff’s testimony established his contributory negligence as a matter of law. They based this point upon their contention that plaintiff admitted that he failed to look to the left before he proceeded into the intersection.

• In order for the defendants to obtain a reversal on this point, we must find that from all of the evidence and the reasonable inferences therefrom, viewed in a light most favorable to the plaintiff, that the only reasonable conclusion is that plaintiff was negligent and his negligence was a proximate cause of his injury. Johnson v. Burli, 518 S.W.2d 601 (Mo.App.1967); Holtmeyer v. Scherer, 546 S.W.2d 29 (Mo.App.1976).

Plaintiff testified on direct examination that he did not recall whether he turned and looked to the left. He indicated that the car to his left started forward slowly, and that he started forward at about the same rate. He stated that he did not see the defendant’s car before the collision. The light had been green a few seconds before he moved forward. On cross-examination, he stated that he was looking at the light ahead. He did not know how far down Landsdowne he could have seen. He again stated that he did not recall if he had looked down Landsdowne or not. However, when asked later on cross-examination, “Did you look to the east to see if the car was coming westbound on Landsdowne?” he answered, “No, I don’t believe I did.” He further answered, “If I had looked I don’t know if I would have seen it because of the car next to me.” Further he stated: “to the best of my knowledge I did not look.”

Plaintiff offered as witnesses, John L. Stevens who was driving the vehicle to his immediate left and Thomas E. Siedhoff, who was driving the vehicle to his rear. They agreed with plaintiff’s testimony as to the light being red, and waiting for about 30 seconds before it turned green. Although Stevens looked to the left and did not see defendant’s automobile, he said as he started forward, he could see plaintiff’s car moving with him. As he began moving out into the street he did not see defendant’s car, “I just saw a blur flash in front of me.” Siedhoff’s automobile was directly behind plaintiff’s. He waited between 30 and 45 seconds for the light to change. He said when the light changed that plaintiff did not move forward immediately, but waited for approximately two to three seconds. He considered blowing his horn to give plaintiff notice that the light had changed to green. He stated that Stevens’ car was between plaintiff’s and defendant’s car until such time as defendant came across the front of plaintiff’s automobile.

When asked by defense counsel if a driver sitting where plaintiff was would have his view obstructed by a car on the left, he responded, “It depends. It’s quite possible that it could obstruct the vision. On the other hand, it is possible that he could be seen in front of the windshield or through the windshield of the other car.”

Defendants offered in evidence photographs taken out of the window of his automobile with another vehicle on the left at the Landsdowne and Jamieson intersection. However, there was no testimony as to the relative size, location, etc. of the cars portrayed in the photographs and those involved in the accident.

It is the law of Missouri that a motorist is not entitled to rely solely on a favorable light. He has a' duty to maintain a lookout both laterally and ahead to see whatever could be seen under the circumstances. Downing v. Dixon, 313 S.W.2d 644 (Mo.1958). In order to determine whether a party’s testimony amounts to a judicial admission, we must consider his testimony as a whole, and in order for it to be relied on as an admission it must be clear and unqualified, not the result of a mistake, oversight, misunderstanding, or lack of definite recollection. Johnson v. Bush, 518 S.W.2d 601, 607 (Mo.App.1967). An examination of plaintiff’s entire testimony does not lead us to conclude that his testimony as to whether he looked to the left was clear and unqualified nor can we say that it was not the result of a lack of a definite recollection. We believe there remained an issue for the jury on the issue of negligence as to whether plaintiff looked to the left.

Furthermore, there remains a jury question as to the issue of proximate cause. Plaintiff was not required to see what could not be seen. If he had not looked a jury question remained as to whether his failure to look at such time and place had any causal connection with the collision. Fuzzell v. Williams, 288 S.W.2d 372 (Mo.App.1956). The jury could have inferred from the evidence that the automobile on his left blocked his view notwithstanding defendant’s photographs. Therefore, defendants’ first point is without merit.

Finally, defendants argue that it was error to read into the record part of a medical report on defendant because the report was inadmissible hearsay. The part of the report read into the record pertained to the issue of damages sustained by the defendant. Obviously, the jury did not reach the issue of defendants’ damages as it found for plaintiff and against defendants on the issue of liability. Hence, any error was harmless and not prejudicial to defendants’ case. Beesley v. Howe, 478 S.W.2d 649, 653 (Mo.1972); Moore v. Rollmo Corporation, 575 S.W.2d 859, 862 (Mo.App.1978).

Affirmed.

GUNN and CRIST, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Anthony THOMPSON, Appellant.
    No. 39667.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 24, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 15, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Robert W. Meyers, James J. Knappenber-ger, C. Clifford Schwartz, Shaw, Howlett & Schwartz, Clayton, for appellant.
    Paul Robert Otto, Kristie Green, Asst. Attys. Gen., John D. Ashcroft, Atty. Gen., Jefferson City, Daniel M. Buescher, Pros. Atty., Joseph R. Aubuchon, Asst. Pros. Atty., Union, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from a conviction on the charge of Robbery in the First Degree. He was sentenced under the Second Offender Act to serve a term of five years in the Department of Corrections.

Linda Bockhaus, a waitress in the Skelly Station Restaurant in Pacific, testified that defendant arrived at the restaurant in a van, which she recognized as belonging to Randall Fryer. Defendant went into the restaurant, then returned to the van and sat on the passenger side for about thirty minutes. To Ms. Bockhaus, Thompson appeared drunk or stoned. According to John Norman, manager of the service station, the van then moved to the service station area and he went to the passenger side of the van. At that time he had $240 in receipts in his possession. He testified that defendant asked him: “How would you like to make a quick $100?” “Give me all your money and I will give you $100.” Norman told him he could not do that. Defendant replied: “I can take it from you.” According to Norman’s testimony, defendant reached under his seat and while bent down half way said: “I’ve got a .45, give me your money.” Norman handed over the receipts. He did not think defendant was drunk.

Defendant admitted taking the money from Norman. He said that he and several friends, including Fryer, had gone to a drive-in that evening and that he drank some beer. Defendant denied that he ever intended to rob Norman. He admitted to the conversation and to asking Norman if he wanted to make $100. Defendant testified that he told Norman he would split the money with him. He further testified that he was “joking”; however, he did not tell Norman that. After Norman refused to give him the money, he said: “I’ll take it from you.” He admitted that Norman then gave him the money and that he and Fryer left the station. Later he told Fryer that they had better take the money back, but that when they returned to the area the police were already there and they were frightened away.

Defendant first contends that the court erred in permitting Officer Zelch to testify as to a statement made by defendant. This testimony was offered in rebuttal and had originally been suppressed because of the failure of the officer to give Thompson the Miranda warnings prior to the statement.

At trial defendant testified that he was with Fryer earlier in the evening and that Fryer was with him when he took the money. On cross-examination, defendant stated he did not remember telling Officer Zelch that he had stayed at home on the night of the robbery and that he did not know Fryer. Officer Zelch testified that he did make this statement. Zelch’s testimony was proper rebuttal to impeach defendant’s credibility as a witness. When a witness denies or equivocates about a statement, it may be shown that he made a previous inconsistent statement, it may be shown that he made previous inconsistent statement. Lewis v. Hubert, 532 S.W.2d 860, 865-866 [2, 3] (Mo.App.1975); Aboussie v. McBroom, 421 S.W.2d 805, 807 [1, 2] (Mo.App.1967). The defendant was confronted with the statement; he responded that he did not remember having made the statement. Thus, a proper foundation had been laid for its admission.

Defendant’s further argument that admission of the statement was improper because it had been suppressed must fail also. The United States Supreme Court in Harris v. State of New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) held that an accused’s prior statements inconsistent with his trial testimony are admissible to impeach his credibility, although the police had obtained the statements without giving the accused warnings required by Miranda.

Defendant next argues that the court erred in refusing his tendered instructions D, E and F which related to voluntary intoxication. He claims that he was thus denied “the theory of his defense.” He recognizes that voluntary intoxication was not a defense to a criminal charge and could not be considered on the issue of specific intent at the time of his trial. State v. Richardson, 495 S.W.2d 435 (Mo. banc 1973); State v. Hegwood, 558 S.W.2d 378 (Mo.App.1977). He asks us to apply a portion of the new criminal code (§ 562.076) retroactively. This we cannot do. Section 556.031 of the new code provides: “[t]he provisions of this code shall govern the construction and punishment for any offense defined in this code and committed after the effective date hereof . . . . The provisions of this code do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of this code . . . .” The effective date of the code is January 1, 1979.

Defendant further contends that the court erred in failing to grant a mistrial when the Prosecuting Attorney asked on voir dire: “And, like Mr. Schwartz said, is there anyone here who does not realize that because of the Fifth Amendment no defendant need ever prove anything?”

The trial court denied defendant’s request for a mistrial but instructed the jury to disregard this question. Defense counsel on voir dire had previously stated to the jury that they might feel that defendant had to prove his innocence. He stated that the defendant need not prove anything. Section 546.270, RSMo.1969 and Rule 26.08 forbid the state to comment on a defendant’s failure to testify. In State v. Scott, 560 S.W.2d 879 (Mo.App.1977) the prosecutor on voir dire had asked the following question: “You are all aware of the Fifth Amendment to our constitution that a person has a right, and [sic] absolute right not to testify, and as a result of electing to use that right, his decision to do so you may not make any assumption based on that. You may not draw any unfavorable conclusions as to what were the causes of a man choosing not to testify. Is there anyone who doesn’t understand or who can’t agree with that[?]” The defendant objected and the court overruled the objection. The reviewing court there found no prejudicial error in the court’s failure to grant a mistrial. The comment in the instant case is much less direct than the remark in Scott and says little more in regard to proof than what defendant’s counsel had previously stated. The court here instructed the jury to disregard the comment. Furthermore, the defendant took the stand in this case. We find no error here.

During voir dire, the Prosecuting Attorney asked the jury: “Is there anyone here who would expect me to be able to prove the defendant is [sic] guilty to a one hundred per cent total absolute certainty?” Defendant contends that this was an improper comment on reasonable doubt. We disagree. The court overruled defendant’s objection. We find no prejudicial error here.

Defendant alleges that the court should have sustained his motion for judgment of acquittal claiming that there was no evidence that violence was directed to Norman and no evidence that he was put in immediate fear of injury to himself. This point is without merit. Defendant was charged under § 560.120, RSMo.1969. The basic elements of the crime charged are the taking of property, by violence to the person, or by putting the person in fear of some immediate injury to his person. See State v. Reynolds, 521 S.W.2d 486 (Mo.App.1975). We disagree that there was no evidence that Norman gave up the property because he was placed in fear of immediate injury to his person. Norman testified that he initially refused to give the money to the defendant. Defendant then reached down in the van, came back about half way up to a sitting position and said he had a .45 pointed at Norman. Norman said defendant appeared to be serious. He was not going to argue with anyone who had a gun, and that is why he gave up the money. This evidence alone was sufficient to sustain the conviction.

Defendant further contends in this point that the court erred in failing to instruct on Robbery Second Degree and Stealing Property of a Value of at Least $50. In his argument he makes no further reference to the failure to instruct on Robbery Second Degree, and the only reference on failure to instruct on Larceny is the citation to a case, State v. Herron, 349 S.W.2d 936 (Mo.1961). Herron holds as do many other cases, that if there is substantial evidence in a First Degree Robbery case to support ah instruction on Stealing the court is required to give such instruction. Robbery in the Second Degree is committed when the property is relinquished through a threat that injury may be inflicted at some different time. § 560.125 RSMo.1969. There is no evidence in the instant case supporting this lesser charge. Defendant points to no evidence which supports the giving of an instruction on Stealing. There is none. Defendant’s testimony in a large degree corroborates that of Norman. He testified that he told Norman: “Hey, you want to make a hundred bucks?” Give me the money and I’ll split it with you . .” Norman said: “No, you can’t do that, no.” Defendant said: “I’ll take it from you.” On cross-examination, defendant admitted that he was trying to “shake Norman up.” Although defendant denied he had a gun, his testimony shows that Norman refused to give him the money until defendant said: “I’ll take it from you.”; that is, while he was seriously trying to “shake Norman up.” This evidence supports the statement that Norman gave up the money because of present fear and does not support an instruction on Stealing.

Judgment affirmed.

GUNN and CRIST, JJ., concur.