author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Earl MANNS, Defendant-Appellant.
    No. 36537.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 7, 1976.

      Lawrence O. Willbrand, St. Louis, for defendant-appellant.
    John G. Danforth, Atty. Gen., Preston Dean, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

John Earl Manns, appellant, was convicted by a jury of Robbery in the First Degree by means of a Dangerous and Deadly Weapon, Secs. 560.120 and 560.135 RSMo 1969; the jury could not agree on a sentence and so advised the trial judge who accepted their verdict of guilty and sentenced the appellant to a term of twenty years in the custody of the Missouri Department of Corrections. A Motion for New Trial was filed, overruled, sentence imposed and this appeal followed. We affirm.

Appellant does not challenge the sufficiency of the evidence to support the finding of the jury and a short statement of the facts, viewed most favorably in support of the jury verdict, will suffice. Amerson Pratt was the proprietor of the Carl Bolch Fina Service Station at 7312 South Broadway in the City of St. Louis, and on April 7, 1974, had in his employ a 17 year-old high school student, Gil Mertz, as a “night man” pumping gasoline. At approximately 10 p. m. on April 7, 1974, a Sunday night, Mr. Mertz was in the service station office when two Black men approached him, entered the service station, held him up taking $63.00 in money and fled from the scene. Mr. and Mrs. Pratt pulled onto the service station property at about the same time the two Blacks fled from the service station, observed them doing so, and Mr. Pratt pulled his car up to the entrance to the service station office where Mrs. Pratt alighted from the car and entered the service station office to ascertain whether Mr. Mertz had been injured. Mr. Pratt, immediately after Mrs. Pratt had alighted from the automobile, pursued the two Black men who had entered a Pontiac automobile and sped from the scene until he met up with Patrolman James Long who was driving a police vehicle on Michigan Avenue at its intersection with Robert Street and whom he advised that the car proceeding in the opposite direction on Michigan Avenue after making a left turn off of Robert Street had “hit his boy.” Patrolman Long, believing that the car which had made the left turn off of Robert Street without observing a stop sign there had been engaged in a hit and run accident, made a U-turn and took up the pursuit. Mr. Pratt then returned to the service station on South Broadway. Patrolman Long continued pursuing the Pontiac automobile and was joined in the chase by other police officers who had learned of the incident by radio. Patrolman Long pursued the fleeing vehicle for a distance of approximately five miles until it came to a stop at the corner of Seventh Avenue and Park Avenue when, while in the process of attempting a U-turn at that intersection, the Pontiac with the three Black men therein was collided with broadside by a police vehicle operated by Patrolman Michael Indelicate, causing the Pontiac with its occupants to come to a stop at the curb of the northeast corner of the intersection. Patrolman Niemeyer brought his vehicle to a stop at the front of the Pontiac, and as he did so he observed an object thrown out of the right window of the Pontiac from the passenger side. Appellant was placed under arrest by Patrolman Long at the scene of the collision between the Pontiac and the police vehicle being operated by Patrolman Indelieato. Shortly thereafter the appellant, along with the driver and other passenger of the Pontiac, was conveyed to City Hospital No. 1 and some time later that evening was identified by Mr. Mertz at the Hospital as one of the two Black men who had held him up at the service station. Money totalling $63.00 was removed from the person of Johnny Wade, the man riding in the front passenger seat of the Pontiac, after his arrest, and Patrolman Niemeyer recovered the object he had observed thrown from the Pontiac — a sawed-off shotgun — at the scene of the collision after he had delivered Johnny Wade to a cruiser for conveyance to the police station.

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

“The court erred in giving the verdict directing Instruction Number Four for the reason that paragraphs second and third failed to call for a finding by the jury that defendant took the $63.00 in question by means of a deadly and dangerous weapon and to permanently deprive him thereof but gave the jury a roving commission to convict defendant concerning ‘the property’ mentioned in evidence which was vague, uncertain and misleading due to the fact that other property was mentioned in evidence.”

Instruction Number Four as given and read to the jury (omitting parts not pertinent to our inquiry) is an MAI-CR 7.62 instruction reading as follows:

“If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about April 7, 1974 in the City of St. Louis, State of Missouri, Gil Mertz had possession of $63.00 lawful currency of the United States, property of Amerson Pratt, doing business as Carl Bolch Fina Station, and
Second, that at that time and place the defendant, by means of a deadly and dangerous weapon, took the property from Gil Mertz against his will by causing him to fear immediate injury to his person, and
Third, that the defendant took the property with the intent to permanently deprive Amerson Pratt doing business as Carl Bolch Fina Station, of the property and to convert it or any part of it to his own use,
then you will find the defendant guilty of robbery in the first degree by means of a deadly and dangerous weapon.”

Respondent contends that the point raised in this Court is not the same point or points appellant raised in the Motion for New Trial filed in the trial court, is an attempt to raise for the first time in this Court, an alleged error in the verdict-director which was not presented to the trial court and therefore was not preserved for review here. We agree.

Appellant’s Motion for New Trial raised in two separate paragraphs — Paragraphs 6 and 8 of the Motion for New Trial — what we construe to be in actuality only one point:

“6. By giving Instruction Number Four submitted by the State, MAI-CR 7.62, which failed to require a finding that the money was taken from the attendant Gil Mertz with the intention to deprive him permanently of the said money.
‡ ‡ # * ⅜ ⅜
8. By giving Instruction Number Four in that paragraph Third failed to call for a finding that the money was taken with the ident (sic) to permanently deprive Gil Mertz of said money.”

It is clear that the points raised in appellant’s Motion for New Trial were directed to the alleged failure of the instruction- to require a specific finding with respect to taking the money from Gil Mertz with the intention to permanently deprive Gil Mertz of said money. In his point in this Court we note that it is now alleged that the trial court erred in the giving of this instruction because it “failed to call for a finding that the defendant took the $63.00 in question by means of a deadly and dangerous weapon and to permanently deprive HIM thereof.” (Emphasis supplied.) Nevertheless, from a reading of the Argument portion of appellant’s brief in this Court we discern that the real issue he seeks to present on appeal is stated in his brief as follows: “whether ‘the property’ language employed by the State in paragraph Second and Third adequately refers to the $63.00 in money mentioned in paragraph First.” That this is the real issue he wishes us to consider is borne out by the fact that the entire Argument is devoted to evidence which came in without objection that some cigarettes found in the car in which the three Black men, including this appellant, were ultimately apprehended might have come from the service station. By the use of the term “property” appellant argues that the jury could have been misled into construing that term to include the cigarettes and there was “no evidence that any were taken or even missing from the service station in question.” If, in the beginning portion of his point in this Court he was making an effort to preserve the point set out in Paragraphs 6 and 8 of his Motion for New Trial, he has abandoned and waived the point, whatever merit it might have had, if any, by his failure to brief and argue it in this Court. Under these circumstances we are precluded by Rule 28.02 V.A.M.R. from considering any allegations of error not briefed on appeal despite the fact they may have been asserted initially in the Motion for New Trial. State v. Kinder, 496 S.W.2d 335, 339[3] (Mo.App.1973.)

Having excised from the point as stated the portion set out above for the reasons stated, we next consider respondent’s attack on the remaining portion of the point as stated in the brief here and conclude that it constitutes an effort to raise for the first time in this Court alleged error not preserved in appellant’s Motion for New Trial and has not, therefore been preserved for review. It is fundamental that new matter may not be presented to the appellate court for the first time; the trial court must be afforded the first opportunity to correct its own errors, if any. We have examined appellant’s Motion for New Trial and find no reference whatsoever to the point presented here with respect to the vague, uncertain and misleading nature of the term “property” as used in the Instruction. We hold therefore that appellant preserved nothing for us to review. State v. Harms, 507 S.W.2d 29, 31[1] (Mo.App.1974); State v. Kinder, supra, l. c. 339[4] (Mo.App.1973).

Nevertheless, because we are here concerned with an appellant in a criminal case, and despite the infirmities in his brief and its failure to preserve anything for this court to review, we find no prejudicial error in the submission of the cause to the jury on the State’s verdict-director, Instruction No. 4, which is patterned on MAI-CR 7.62. Robbery is an aggravated form of larceny because committed by means of personal violence or intimidation. State v. Weinhardt, 253 Mo. 629, 161 S.W. 1151, 1152[1] (1913). It is uncontradicted that the victim in this case was Mr. Mertz, i. e., the individual or person from whom the $63.00 was taken at gun point. Robbery, as an aggravated form of larceny, is an offense against possession and ownership of the property taken is not material to and does not affect the offense. State v. Wright, 476 S.W.2d 581, 583[1, 2] (Mo.1972). This is particularly apropos where the victim of the crime is an agent or employee of the owner of the property taken. State v. Wright, supra.

The only evidence in this case is such that a jury could find that Mr. Mertz was an employee of Mr. Pratt, the owner of the Carl Bolch Fina Service Station; that Mr. Mertz had possession of the $63.00 belonging to Mr. Pratt when the money was taken from him by the defendant, acting jointly with another, by means of a dangerous and deadly weapon — a sawed-off shotgun— against his will and while he was caused to be in fear of immediate injury to his person, and with the intent to permanently deprive Mr. Pratt of his property and convert it to the “defendant’s” own use. The possession of the $63.00 by Mr. Mertz was also the possession of Mr. Pratt, his employer. The reason for alleging, proving and submitting for a jury finding that the ownership of the property taken in an armed robbery is not in the defendant who had no right to possession is because one cannot be held for converting his own property, it puts the defendant on notice of the particular offense for which he is charged and bars a subsequent prosecution for the same offense. State v. Batchelor, 418 S.W.2d 929, 930 (Mo.1967).

The Information in this case alleged that the $63.00 taken from Mr. Mertz was the property of the “Carl Bolch Fina Station.” The evidence was as stated supra, that the $63.00 was the property of Amer-son Pratt, doing business as the Carl Bolch Fina Station, and it is in this form that the ownership of the money taken from Mr. Mertz was submitted to the jury in Instruction No. 4. Rule 26.04 provides that any variance between the allegation of the Information and the evidence offered in proof thereof, as to the ownership of property described therein, shall not be deemed grounds for acquittal, unless it be found by the trial court that such variance is material to the merits of the cause and prejudicial to the defendant. The trial court found the variance between the allegation in the Information and the proof at trial was not prejudicial to the appellant and we concur. Having so concluded, we hold that there is no merit in appellant’s contention that the trial court erred when he instructed the jury in accord with the evidence and in doing so followed the pattern Instruction provided for that purpose, MAI-CR 7.62.

We also reach the same conclusion with respect to that portion of appellant’s point directed against the use of the word “property” in Paragraphs Second and Third of Instruction No. 4, wherein appellant contends the word “property” was vague, uncertain and misleading and gave the jury a roving commission to convict. The thrust of appellant’s argument is that because there was evidence in the record that some cigarettes were taken from the service station during the course of the robbery, the term “property” as it appears in Paragraphs Second and Third of the Instruction leaves some doubt whether the term includes the $63.00 mentioned in Paragraph First of the Instruction or whether it might have been interpreted by the jury to include the cigarettes mentioned in evidence despite the fact: 1) Mr. Mertz had testified that he had no knowledge that any cigarettes had been taken from the service station during the course of the robbery and, 2) Mr. Pratt testified that while he believed the cigarettes found in the car at the time and place the appellant and his two accomplices were taken into custody were from his service station because of the manner in which the cartons had been opened, he nevertheless admitted that the cigarettes had no markings on them unique to the cigarettes in his service station.

The Information filed in this cause did not contain allegations with respect to any cigarettes having been taken in the robbery of Mr. Mertz. Evidence that some cigarettes were found in the car in which appellant and his cohorts were arrested did come in without objection. Appellant’s counsel made no objection to the admission of this evidence, made no motion to strike it from the record and himself made inquiries about the cigarettes from state’s witnesses. At the conclusion of the evidence no motion was made for a withdrawal instruction and we are not favored with the transcript of the argument to ascertain what, if any references were made to the finding of those cigarettes in the car in which appellant was a passenger and fled from the scene of the robbery.

We conclude therefore, that the Instruction here under attack did not give the jury a roving commission to convict and was not vague and uncertain or misleading as appellant argues; rather, it carefully limited the jury’s consideration to the $63.00 which was in the possession of Mr. Mertz but belonged to Mr. Pratt as the “property” referred to in Paragraphs Second and Third of the Instruction. There is no merit to appellant’s arguments directed to Instruction No. 4 and we so hold.

We have examined those portions of the record as required by Rule 28.02 and find them to be sufficient.

We affirm.

SIMEONE, P. J., and GUNN, J., concur.


source: Caselaw Access Project

author: SWOFFORD, Judge.

license: Public Domain

text:
    Antonio V. PEREZ d/b/a Paco’s, Respondent, v. W. Yates WEBB et al., Appellants.
    No. KCD 27206.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.

      Aaron A. .Wilson, City Atty., Rex G. Bo-stwick, Asst. City Atty., Kansas City, for appellants.
    Michael J. Drape, Galen P. Knowlton, Knowlton & Drape, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

This is an appeal by W. Yates Webb, Director of Liquor and Amusement Control (hereafter Director) and the members of the Liquor Control Board of Review (hereafter Board) of Kansas City, Missouri, from a judgment of the Circuit Court reversing the decision of the Board and ordering the Director to grant the application of the Respondent for transfer of his liquor permit from one location to another. The Director refused the application to transfer such license; his decision was upheld by the Board (after a full hearing); and, the Respondent thereupon filed a petition in the court below which, while denominated a petition for injunctive relief, was in fact a petition for review under the Administrative Procedure and Review Act (and particularly Section 536.100 et seq. RSMo 1969). It was so treated by the court and the parties below and these proceedings will be so reviewed here.

More specifically, Antonio V. Perez (hereafter Respondent) held a valid license to sell liquor by the drink and in package at 4343 Troost Avenue, Kansas City, Missouri. In March of 1973, he made an application to the Director to transfer such license and his operation thereunder, to 1010 Oak Street, Kansas City, Missouri.

This application was denied by the Director upon the basis that due to the then existing density of the licenses in the area of 1010 Oak Street, the proposed transfer of Respondent’s license was not in the best interest of the area. The Director’s decision and the Board’s order affirming that decision were based upon the provisions of Section 4.61, Chapter 4, Article X, Alcoholic Beverages, Code of General Ordinances of Kansas City, Missouri. This Article X covers “Location of Retail and ‘C.O.L.’ Premises” and Section 4.61 thereof states:

“Discretion as to issuance. In passing upon any application for a license under this chapter, the director of liquor control shall have the authority to take into consideration the location of the proposed business and the density of alcoholic beverage licenses in the area for which a license is sought, and shall have authority to refuse or grant such license when in his judgment such issuance shall not be in the best interest of the locality involved.” (Emphasis supplied)

The Respondent’s position in the administrative phases of this matter, in the court below and here, is that the Director had no authority under Section 4.61, as set out above, but in passing upon his application to transfer the license the Director was required to proceed solely under Section 4.53(b) of Article IX, entitled “Renewals, Transfers, Lost Licenses and Changes in Licenses.” Section 4.53 is entitled “Transfer of Location” and provides:

“(a) Application required. The director must first approve a transfer of a license to a different location and the application for permission to transfer must be in writing, together with twenty-five dollars ($25.00) to cover investigation costs, and shall set forth:
(1)The name and residential address of the licensee and current business address.
(2) The address and legal description of the premises to which transfer is sought, together with the name and address of the owner, a complete set of building plans, and a descriptive list of the fixtures in the proposed place of business.
(3) An affidavit by such licensee that he has not violated any of the provisions of this chapter or of the state liquor laws since the license was granted.
(4) Any additional information that the director may require.
(b) Discretion as to transfer. Any application for a transfer of location shall be processed when received. Nevertheless, the director may refuse to approve any transfer of the business of a licensee whenever such licensed business is under citation by the city or the state department of liquor control, and the matter has not yet been finally adjudicated.” (Emphasis added)

The pertinent allegations in the Respondent’s petition filed in the court below seeking to set aside the final administrative rulings of the Director and the Board state his position as follows:

“6. That the action of the defendant Webb in refusing to permit the transfer is illegal, unreasonable, oppressive, discriminatory and a denial of due process. That the question of density has no standard, that too much discretion is vested in the Director. That in case of a transfer, the Director’s discretion is defined in Section 4.53B. That Section 4.61 upon which the Director relies is not applicable.
7. That the action of the Liquor Control Board of Review sustaining the actions of the Director was illegal, unreasonable, oppressive, arbitrary and discriminatory, beyond the powers of the Director and a denial of due process to the plaintiff.”

The defendants in the proceedings below (appellants here) denied the allegations of the above-quoted parts of the petition and the cause was submitted to the court upon the transcript of the evidence in the hearing before the Board and the exhibits in connection therewith, without the introduction of further evidence.

No question is or was raised as to the form of Respondent’s application to transfer his license from 4343 Troost to 1010 Oak; his compliance with the other procedural requirements of Section 4.53(a); or, that he was at the time under any unadju-dicated citation from either city or state liquor control authorities. The sole basis for the Director’s rejection of the application and the Board’s affirmance of such refusal was Section 4.61, above quoted. The evidence established, without contradiction, that at the time of Respondent’s application to transfer there were two existing establishments operating under C.O.L. licenses in the block at 1010 Oak; two in the block east; two in the block south; and, five others in the area.

The Director testified that he took these facts into account as well as the character of the area of 1010 Oak Street; the type of residents in the vicinity; and, concluded that the application to transfer should be denied because of all of these factors. He freely admitted that licenses had been issued (or transferred) in areas where the density of existing licenses was greater, but that such areas catered to conventions, tourist, transit and entertainment business. It was upon these facts that the administrative officials acted in the denial of the application within the discretion granted under Section 4.61, which the Respondent stoutly maintains is inapplicable. His position, that the only discretion granted the Director in these circumstances, is the narrow limit as set forth in Section 4.53(b), that the Director “may” deny the transfer if a citation is pending against the applicant. This position is obviously untenable and was logically and forcefully demonstrated to be so by the court below in its Memorandum Opinion and Order. The portion of that opinion by Clark, J., here quoted, is adopted as the opinion of this court on this point:

“By Chapter 4 of its ordinances, Kansas City has adopted a plan for regulation of the sale of alcoholic beverages by licensing persons and premises where such business may be transacted. That such is a valid exercise of municipal authority has long been beyond any question. Zinn v. City of Steelville [351 Mo. 413], 173 S.W.2d 398 (Mo.1943).
The chapter is divided into fifteen articles, number IX of which deals with the subject of Renewals, Transfers, Lost Licenses and Changes in Licensees. It is from this article that section 4.53(b) quoted above is taken. Article X covering the subject, Location of Retail and ‘COL’ Premises, contains section 4.61 on the matter of discretion given the director, also quoted above. Other articles and sections of the chapter specify various restrictions as to the location of licensed premises including requirements as to compliance with fire, health and building codes, zoning ordinances, distances from churches and schools, conditions where the premises are partially occupied as a dwelling, visibility of the interior and numerous other conditions and limitations imposed in regulation of this business activity.
Plaintiff contends that section 4.53 covers the full subject matter of license transfers from one location to another and that defendant director is obligated to process a transfer application when in proper form subject only to an exercise of discretion when the subject is under citation by state or municipal liquor authorities. Under this interpretation, not only would section 4.61 be inapplicable to transfers, but other conditions required to be met in the original issuance of a license would also be ineffective.
To suggest that all regulatory power fails once a license has been issued and that upon application, the licensee may establish a new location without regard to compliance with any municipal code requirements is to demonstrate the absurdity of the proposition. The entire scheme of regulation in the sale of alcoholic beverages depends not only on the control of licenses when first issued but on continous (sic) supervision of those who hold licenses and operate the businesses in conjunction therewith. Such is and must have been the manifest intent of the council in adopting chapter 4 of the ordinances.
As a matter of draftsmanship, the subject ordinances leave much to be desired. Section 4.53 should cover the entire subject of transfers and should, at a minimum, incorporate by reference other sections applicable to the subject. We regard it as the duty of the Court, however, to construe the words used in the ordinance, if at all possible, in that manner which will give effect to the lawmaker’s intent. As previously noted, strict construction of section 4.53 as advocated by plaintiff would destroy any reasonable control over licensees who could, virtually at will, apply for and move business locations wherever the opportunity of the moment suggested.
The applicability of section 4.61 to the subject case turns on construction of the words ‘application for a license.’ We are of the opinion that within the context of the chapter, these words include not only the initial application for a new license but any application involving a license change such as the removal of a business to a new location. Regulation in the matter of density, zoning, building codes and the like contemplates the examination of proposed locations to determine if they qualify. The mere fact that the applicant is an existing licensee does not in any way establish the suitability of the new premises for the proposed business. By holding section 4.61 as applicable to granting of license transfers we are furthering the legislative intent and prompting the purposes for which the ordinances were adopted. City of St. Charles v. Union Electric Co. of Missouri, 185 S.W.2d 297 (Mo.App.1945). To hold otherwise would, as we view the wider impact of such a result, virtually nullify any control over location of licensed retail liquor establishments. The conclusion reached, therefore, is that code section 4.61 is applicable to license location transfers, as well as to processing of new license requests.” (Emphasis and footnote supplied)

The Director properly applied the standard of Section 4.61 as to the density of existing licenses, which action was affirmed by the Board. The conclusions of these administrative branches of the city government were based upon facts. The scope of judicial review of such matters is strictly limited. The reviewing court cannot determine the weight of the evidence nor substitute its discretion for that of the administrative body. Generally, its function is to determine primarily whether the decision was supported by competent and substantial evidence upon the whole record; whether the administrative act was arbitrary, capricious or unreasonable; and,° whether an abuse of discretion appears. Gordon v. Puritan Chemical Company, 406 S.W.2d 822, 825—826[2, 3, 4] (Mo.App.1966); Greene County v. Hermel, Inc., 511 S.W.2d 762, 768[4] (Mo.1974); Missouri Real Estate Commission v. Steger, 509 S.W.2d 47, 49[1] (Mo. banc 1974); Tom Boy, Inc. v. Quinn, 431 S.W.2d 221, 225[1, 2] (Mo. banc 1968); Mora v. Hastings, 416 S.W.2d 642, 644[2] (Mo.App.1967); May Department Stores, Inc. v. Supervisor of Liquor Control, 530 S.W.2d 460, 468[2] (Mo.App.1975). The “burden is upon the party seeking to set aside the [administrative] order to show by clear and satisfactory evidence that the order is unreasonable or unlawful”, Marshfield Community Bank v. State Banking Board, 496 S.W.2d 17, 28[27] (Mo.App.1973).

When this record as a whole is viewed within the confines of these principles, it must be held that the denial of the Respondent’s application to transfer was lawful under Section 4.61 of the Municipal liquor code; was based upon competent and substantial evidence; was not arbitrary, capricious or unreasonable; and, no abuse of discretion appears.

While the court below properly held that Section 4.61 was applicable to the location transfer of the Respondent’s license, it held that section to be unconstitutional and void as in violation of Article I, Section 10, of the Missouri Constitution, and the Fourteenth Amendment of the Constitution of the United States. This holding was based upon the theory that Section 4.61 covered an area of nondelegable legislative functions; was an attempted grant to an administrative officer of powers and duties in connection with carrying out legislative discretion; and, that no policy, gauge, standards or uniformity in application of such standards were prescribed. Thus, the court reasoned the section was unconstitutional as clothing the administrative agency with arbitrary and undefined discretion.

Article V, Section 22, of the Missouri Constitution, provides for judicial review of administrative proceedings, as provided by law. Pursuant to such constitutional mandate, Section 536.140 RSMo 1969 was enacted covering the “Scope of judicial review— judgment—appeals” in administrative proceedings, which provides, inter alia:

<< ⅛ ⅜ *
2. The inquiry may extend to a determination of whether the action of the agency
(1) Is in violation of constitutional provisions;
⅝ 5⅜ >1

That judicial review of administrative proceedings “may” include constitutional questions at the circuit court level, is no longer open to doubt. Merritt v. State Hospital No. 1, Fulton, 403 S.W.2d 940 (Mo.App.1966); Smith v. Missouri State Highway Commission, 488 S.W.2d 230 (Mo.App.1972).

Counsel has not cited, nor has research disclosed, any authority which holds that the well-defined and mandatory rules relating to the procedures required to raise and preserve constitutional questions were intended to be or are modified by Section 536.140(2)(1), supra. Such rules are stated and restated in the civil case law of Missouri, with clarity and certitude. Thus, in City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 380[10] (banc 1949), the rules are stated:

“To invoke our jurisdiction on the ground a constitutional question is involved a party must follow four requirements. 1. He must raise the constitutional question at his first available opportunity; 2. he must designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the Article and Section or by quotation of the provision itself; 3. he must state the facts showing such violation; 4. he must preserve the constitutional question throughout for appellate review.” (Emp. sup.)

See also: Mike Berniger Moving Co. v. O’Brien, 234 S.W. 807, 812 (Mo.1921); Magenheim v. Board of Education, 340 S.W.2d 619, 621 (Mo.1960); Norkunas v. Norkunas, 480 S.W.2d 92, 93[2, 3] (Mo.App.1972); City of Florissant v. Rouillard, 495 S.W.2d 418, 419[1] (Mo.1973).

Even though the constitutionality of a statute or ordinance is included within the permissible scope of judicial inquiry upon review of administrative decisions under Section 536.140(2)(1) RSMo 1969, quoted above, it is beyond the scope of logic and does violence to the existing and binding rules with reference to pleading and preservation of constitutional points, to hold that in such judicial review a court (the Circuit Court in this instance) is required to (or would be within its historical function, if it did) search, sua sponte, for constitutional infirmities not put forward by the parties.

As was said in State ex rel. Houser v. Goodman, 406 S.W.2d 121, 126[8] (Mo.App.1966):

“With few exceptions, the forte of any court is to relegate itself to limbo until presented proper pleadings to be employed as vehicles for judicial locomotion. Even in matters over which a court has general jurisdiction, it cannot, ex mero motu set itself in motion nor have power to determine questions unless they are presented to it in the manner and form prescribed by law. * * * ”

Not only would such a rule impose an onerous and unnecessary task upon the judicial review tribunal — one in which the parties evidenced no interest — but, if it was concluded that such constitutional problem existed, the court would, sua sponte, then have to decide if such problem was one of construction or application to test its own jurisdiction. Such foolish and useless intent will not be ascribed by this court to the legislative intent implicit in the enactment of Section 536.140(2)(1) RSMo 1969. City of Joplin v. Joplin Water Works, 386 S.W.2d 369, 373-374[5-7] (Mo.1965).

A close review of this record discloses that the Respondent did not comply with any of the four mandatory requirements to invoke constitutional questions, as so clearly delineated in City of St. Louis v. Butler Co., supra, and other authorities cited above. Indeed, even here, no such attempt is forthcoming from Respondent. In his brief filed with this court, he states (Page 7):

“ * * * respondent did not question the constitutionality of the law pertaining to alcoholic beverages; we have throughout asked the Court to give full legislative intent to Section 4.53 and to find that Section 4.61 is not applicable in this matter.” (Emphasis supplied)

The constitutional considerations upon which this case was ruled in the court below were foreign to the matter before it, should not have been considered, and were, therefore, not decisive.

The judgment below is reversed and the cause remanded with directions to enter judgment affirming the order of the Liquor Control Board of Review of Kansas City, Missouri sustaining the action of the Director of Liquor and Amusement Control denying the application of the Respondent to transfer his license for sale of intoxicating liquor at retail and by the drink and in the original package from 4343 Troost Avenue to 1010 Oak, Kansas City, Missouri.

All concur.

      . Consumption of Intoxicating Liquors.

      . See: St. Louis County v. State Highway Commission, 409 S.W.2d 149, 152[3, 4] (Mo.1966); Kirkwood Drug Company v. City of Kirkwood, 387 S.W.2d 550, 554[5] (Mo.1965).


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Richard H. RUHR, Appellant.
    No. KCD 27456.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.

      Kevin E. Glynn, Barr, Glynn & Morris, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   PRITCHARD, Chief Judge.

On January 21, 1974, appellant, Richard H. Ruhr, was charged in a two-count information with having committed the crimes of rape and sodomy, in violation of § 559.-260, RSMo 1969, and § 563.230, RSMo 1969, respectively. Trial was to the jury, which found appellant guilty on both counts and fixed punishment at 20 years imprisonment on each count. The court ordered the sentences served consecutively and this appeal followed.

From the evidence presented at trial, a jury could have found beyond a reasonable doubt that at 4:00 p. m., on Saturday, January 5,1974, prosecutrix went to a tavern at 36th and Broadway, in Kansas City, Missouri, in hopes of finding a part-time job. There she met and talked with appellant about the job prospects at the tavern. Appellant said he knew the owner, gave her a job application, and told prosecutrix he would talk to the owner, then contact her. She gave him her phone number and then rode home with friends.

At noon on Sunday, January 6, appellant called prosecutrix and told her the owner wanted to interview her that day and said he would call her back when he was sure of the time. He called back within an hour and a half, told prosecutrix the owner would be at the tavern around 2:30 or 3:00 p. m., and told her to bring the application. When the prosecutrix arrived at 2:30 p. m., appellant let her in the front door of the tavern. No one else was present. Appellant referred to prosecutrix’s ignorance of the tavern business, then suggested he show her the basement where the liquor was stored. He spent five or ten minutes showing prosecutrix the basement, then ordered her to put her hands behind her back. The prosecutrix was 5'2" tall and weighed 113 pounds. Appellant was 6' tall and weighed about 180 pounds. Appellant tied her wrists behind her back, taped her eyes, and kissed her. When the prosecutrix asked, “What kind of joke is this?” the appellant replied, “You make any sounds I am going to cut your throat out or cut your head up.” Thereupon, the prosecutrix became frightened and took the threats seriously. Appellant pushed her up the stairs to the first floor, paused to get her coat, then pushed her up some more stairs to another floor and told her to do everything he told her to avoid getting hurt. He took her clothing off, and when she complained that the ropes were hurting her hands, he retied her. He asked her if she had ever sucked a man’s penis, and when she said no, pushed her to her knees and put his penis in her mouth. After this act of sodomy, he sat in a chair and forced her to have intercourse with him, then forced her to lie on her coat on the floor where the forcible intercourse was continued. At no time before or during the acts described did the prosecutrix consent to any sexual contact with appellant. Appellant untied the victim and removed the blindfold, but before he let her go, he threatened that if she told the police or anyone else about the incident, he would kill her. The prosecutrix was so frightened that appellant would follow her home that she stayed in a nearby Safeway store for half an hour before returning to her apartment about 4:40 p. m. Fearful of venereal disease after being raped and sodomized, she bathed and douched. At about 7:30 p. m., the prosecutrix called the police but did not complete the call because she was afraid the rapist might kill her if she pressed charges against him. At 11:30 p. m., she went ahead and called the police who came to her apartment and took a description of the rapist. The appellant was arrested later that night, a lineup was held, and the prosecutrix identified appellant as the man who sodomized and raped her.

Appellant’s first assignment of error is as follows: “The trial court erred in admitting State’s Exhibits 3, 4, 5 and 6 into evidence over the objection of the appellant.” This is a mere abstract statement which fails to point out wherein and why the action of the trial court was error and presents nothing for review. Rule 84.04(d) is made applicable to criminal appeals by Rule 28.18; State v. Foster, 513 S.W.2d 657, 659[1] (Mo.App.1974); State v. Shumate, 516 S.W.2d 297, 300[7-11] (Mo.App.1974). The point will not be further noticed.

Appellant next claims that the trial court erred in not allowing him to present evidence that prosecutrix went to the tavern on the date in question seeking male companionship. He claims that had he been allowed to show this purpose in going to the tavern, he could have made out a defense of consent. Specifically, the evidence which he claims was erroneously excluded concerned the number of times the prosecutrix had been divorced and the salary she was drawing at her place of employment. Objections to the questions were properly sustained for the following reasons: First, it is noted that the information sought by the questions was irrelevant to the issue of consent because it neither tended to prove nor disprove a quest for male companionship. Second, consent was not an issue here because the sexual contact followed threats. “[Cjonsent induced by fear of personal violence is no consent,” State v. Kirkpatrick, 428 S.W.2d 513, 517[8, 9] (Mo.1968). Third, a reading of the transcript reveals that the avowed purpose of the appellant in seeking to elicit this information was to attack her credibility as a witness by attacking her character. Witness the following dialogue: “Q. [By defense counsel] And was that your — were you divorced more than once? MR. STIGALL [Prosecutor]: I object to that, Your Honor, as irrelevant and immaterial. MR. GLYNN: It certainly goes to the character of the witness. THE COURT: Objection sustained. * * * MR. GLYNN [Defense Counsel]: Of course I understand the Court’s ruling, but my purpose is to go after the character of the witness in this case and it is not to deal with any specific issues as a result of this rape, and for that reason I think I can, but I understand the Court’s ruling. * * * Q. And what was your salary? MR. STI-GALL: Your Honor, I object to that as irrelevant and immaterial what her salary was at H. D. Lee. THE COURT: Sustained. * * * THE COURT: Well, now, I am not really clear on what you are trying to establish by this line of testimony. You are trying to show that anything she said on, on direct examination was not true, you are trying to impeach her? MR. GLYNN: That’s right. THE COURT: What did she say on cross-examination that this would impeach, that is the point. You are not questioning, you are not coming to grips with anything. MR. GLYNN: I am coming to grips with the character of the witness. THE COURT: What has her character got to do with this? You are well familiar with all these Missouri cases. MR. GLYNN: Judge, I am after the character of this witness since I am entitled to show the character of any other witnesses. * * * MR. GLYNN: The veracity of the witness is what we are talking about. MR. STI-GALL: I renew my objection that is an improper way to do that. THE COURT: Objection sustained.” (All emphases supplied.)

In a rape prosecution in Missouri, where consent is in issue, prosecutrix’s character may be attacked by evidence that her general reputation for morality and chastity is bad, but not by evidence of specific acts. State v. Yowell, 513 S.W.2d 397, 403[7, 8] (Mo. banc 1974); State v. Kain, 330 S.W.2d 842, 845[4][5] (Mo.1960). Similarly, as any other witness, her character may be impeached by showing that her general reputation for truth and veracity is bad, but not by proof of specific acts of misconduct. State v. Taylor, 473 S.W.2d 385, 388 (Mo.1971). The general reputation of a person is the general opinion, whether good or bad, held of a person by those in the community in which such person resides and is necessarily based on hearsay. Black’s Law Dictionary, Rev. 4th Ed., p. 1467-8.

When seen in this light, it is obvious that the questions asked do not attempt to elicit proper character evidence. They do not ask about the general reputation of prosecutrix for morality, chastity, truthfulness and veracity, but, in fact, ask about specific acts. The sustaining of the objections to these questions was eminently proper.

The third and final point is an attack on the sufficiency of the evidence. Appellant argues in support of his claim that the prosecutrix’s testimony was so inconsistent and equivocal as to be void of all probative value, but appellant does not point to any internal inconsistencies in the prosecutrix’s testimony and the record discloses none. The prosecutrix’s testimony was neither successfully impeached nor materially contradicted. State v. Davis, 497 S.W.2d 204, 207[3] (Mo.App.1973).

Appellant further says, “in the present case, the delay in reporting, the statement of [the prosecutrix] that she did not know if she wanted to report it and the physical examination, the results of which were read into the record, all tended to negate the charges advanced by the state.” Appellant’s contention that the delay of seven hours from the time of the crime until the victim called the police destroys the state’s case is without merit. A hiatus between forcible ravishment and complaint is solely a matter for jury deliberation in weighing the evidence, so long as the elapsed time is not so unreasonable that the appellate court could hold, as a matter of law, that the state’s accusation was negated or contradicted. State v. Bigley, 247 S.W. 169, 171[5, 6] (Mo.1922); State v. Palmer, 344 Mo. 1063, 130 S.W.2d 599, 600[2-4] (1939). In the instant case, the seven hour delay was not unreasonable in view of the prosecutrix’s testimony, believed by the jury, that appellant threatened to kill her if she told anyone about the rape and sodomy. It merely took her seven hours to allow her sense of indignation to overcome her fear of retaliation.

The final contention that a medical report showing the absence of sperm in the prosecutrix’s vagina after the incident was fatal to the state’s case as a matter of law is similarly without merit. Appellant has cited no authority requiring proof of ejaculation as a requisite to conviction for forcible rape. In Missouri, the essential elements of rape are: (1) penetration (however slight) of a female’s sexual organs; (2) accomplished by force or threats; and (3) against the will of the woman. State v. Robinson, 484 S.W.2d 186 (Mo.1972); State v. Deckard, 426 S.W.2d 88 (Mo.1968). There was sufficient evidence of all three in the instant case, and so the submission of the case to the jury was proper.

In passing, it is noted that a similar contention was presented in the case of People v. Wright, 3 Ill.App.3d 829, 279 N.E.2d 398 (1972). There, the appellant, convicted of rape, argued that negative results of a vaginal swab test for sperm after the incident precluded a finding of guilty. The victim had testified that after the rape she returned to her room and douched because she feared the defendant might have some disease. The court concluded: “In view of the fact that she took sanitary measures after the rape and before the examination because of her fear of disease, a reasonable reaction for a rape victim unschooled in the intricacies of criminal investigation, the trial judge was justified in disregarding the test results as entirely inconclusive.” That ruling applies here as the prosecutrix explained the absence of sperm which was occasioned by her bathing and douching.

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    KANSAS CITY, Missouri, Respondent, v. Victor A. SPURLOCK, Appellant.
    No. KCD 27500.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.

      Roy W. Brown, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, City Prosecutor, William T. Bernard, Asst. City Prosecutor, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of guilty and fine of $100, rendered in circuit court upon appeal from municipal court on charge of leaving scene of accident in violation of city ordinance.

Victor Spurlock was charged by complaint in the Kansas City Municipal Court. The complaint, on a Missouri Uniform Traffic Ticket, stated the charge as follows:

“That on or about 1-24-74 on a public street in Kansas City, Missouri, Jackson County, at or near 57th and Wornall Road on a Thursday at about 3:35 p. m. the defendant, Victor A. Spurlock of 7306 Wyandotte, Kansas City, Missouri did operate a 1972 Triumph motorcycle and commit the offense of
‘Left the scene of an accident after striking a pedestrian, pedestrian stated he was calling police and subject left without giving his name or address to injured party.’ ”

The offense was charged to have been in violation of § 34.112 of the Revised Ordinances of Kansas City.

Upon trial in municipal court on April 8, 1974, the defendant was found guilty as charged and fined $100. He appealed to the circuit court.

When the matter came on for trial in the circuit court, the city, over defendant’s objection and without prior notice to the defendant of its intention to make such a request, was permitted to amend the charge in the information by inserting before the language “after striking pedestrian” the words “left the scene of an accident involving injury to a pedestrian.” According to the Assistant City Counselor, the object of the amendment was to render the information “more specific, by amending the Information to state that the defendant did specifically leave the scene of an injury accident.”

The evidence on the de novo trial in the circuit court was that appellant, operating a motorcycle, approached an intersection at which a school crossing guard was assisting children and that when the guard signalled defendant to stop, his motorcycle went out of control and struck the guard on the hand. The guard told defendant not to leave until he called police, but defendant left without giving any evidence of his identity.

On this appeal, appellant contends that the original information and the amended information failed to apprise defendant of the acts or offenses with which he was charged.

Section 34.112, Kansas City Revised Ordinances, provides:

“ACCIDENTS INVOLVING DEATH OR PERSONAL INJURY.
“The driver of any vehicle involved in an accident resulting in the death of or injury to any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible and shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled all the requirements of this section. Every such stop shall be made without obstructing traffic more than is necessary.
“The driver of any such vehicle involved in an accident resulting in the death of or injury to any person shall give his name, address and the registration number of the vehicle he is driving and shall upon request, and if available, exhibit his license or permit to drive to any person injured in such accident, and shall render to any person injured in such accident reasonable assistance, including the carrying of such person to a physician, surgeon or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary, or if such carrying is requested by the injured person.
“The driver of any such vehicle involved in an accident resulting in the death of or injury to any person shall immediately by the quickest means of communication give notice of such accident to the police department, and give the police such information as they shall require, and remain at the said scene, until authorized to proceed by said police.”
“ * * * It is well settled that proceedings involving violations of municipal ordinances are in the nature of civil actions and the same strictness in stating the offense is not required as in criminal proceedings. Kansas City v. Waller, 518 S.W.2d 202, 205 (Mo.App.1974); Kansas City v. Stricklin, 428 S.W.2d 721 (Mo. banc 1968). Moreover, the information or complaint is sufficient if it gives notice of the offense and is sufficiently definite to be pleaded in bar of any subsequent prosecution. Kansas City v. Waller, supra, at 206; City of Kansas City v. Narron, 493 S.W.2d 394 (Mo.App.1973). However, the defendant must not be required to guess or speculate as to the violations with which he is charged by the public authorities nor the nature of the evidence admissible under them. City of St. Louis v. Polar Wave Ice and Fuel Co., 317 Mo. 907, 296 S.W. 993, 994 (Mo.1927); Kansas City v. Martin, 369 S.W.2d 602, 608 (Mo.App.1963); St. Louis v. Stubley, 154 S.W.2d 407, 410 (Mo.App.1941); City of Raytown v. Roach, 360 S.W.2d 741 (Mo.App.1962), and Rule 37.18 V.A.M.R. Rule 37.18 provides that ‘The information or complaint shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.’ ” Kansas City v. Stamper, 528 S.W.2d 769, 771[1-4] (Mo.App. 1975).

The information here is sufficient to meet such requirements. The original information adequately advised defendant that he was charged with having been, while operating a motorcycle, involved in an accident in which a pedestrian was injured and with having left the scene of the accident without having given his name and address to the injured party. The information “gives notice of the offense and is sufficiently definite to be pleaded in bar of a subsequent prosecution.” University City v. Redwine, 376 S.W.2d 609, 613 (Mo.App.1964).

Although, as appellant argues, an information charging violation of a city ordinance may be sufficient if it charges the offense in the language of the ordinance (City of Kansas City v. Graham, 502 S.W.2d 411, 415 (Mo.App.1973)), there is no requirement that the information be in such form. University City v. Redwine, supra.

The information in this case is more detailed and specific than that in City of Independence v. Kirchoff, 419 S.W.2d 957 (Mo.App.1967), cited and relied upon by appellant. In that case a charge which stated “Left scene of accident” was held insufficient. Here the charge specifies wherein appellant failed to comply with the requirements of the ordinance involved, and did adequately apprise appellant of the offense.

The amendment in the circuit court was no more than an attempt to clarify the charge. It did not alter the offense and was authorized by Rules 37.19 and 37.57.

In Point II of his brief, appellant contends that allowing the amendment without prior notice deprived him of due process of law in violation of federal and state constitutional guarantees. No constitutional objection was lodged in the trial court so that the claim of error was not properly raised. City of Kansas City v. Narron, 493 S.W.2d 394, 397-398[1] (Mo. App.1973). In any event, the conclusion that the amendment did not alter the offense charged and was authorized under the rules obviates any claim of constitutional error.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Elree McRAE, Appellant.
    No. KCD 27622.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.

      Gary Eldredge, Eldredge & Sterling, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Elree McRae was charged in a single count information with burglary and stealing. § 560.110, RSMo 1969. A jury found him guilty of both charges and fixed his punishment at 4½ years for the burglary and two years for the stealing. The trial court imposed sentence accordingly, the sentences to run concurrently. § 560.110, supra. The defendant has appealed.

At 1:50 A.M., September 12,1973, Officer Cox of the Kansas City Police Department was dispatched to 10516 Blue Ridge on a “prowler call.” When he arrived at that address, he saw a Negro male run out of the front door of McGrath’s Pharmacy, situated at 10516 Blue Ridge.

Officer Cox had gone to the front of the pharmacy. Officer Brennaman, who had arrived at the scene almost simultaneously with Officer Cox, had driven his police car to the rear of the building. Cox pursued the man who came out of the building and ran toward the rear. Cox called to Brenna-man who took up the pursuit. Both Cox and Brennaman identified themselves as police officers and commanded the man to halt. The Negro man ran to a red and black 1967 Buick and jumped into the auto which sped away, without lights, “shooting out gravel behind it.” Both officers fired their pistols at the fleeing vehicle. Officer Cox had his “walkie-talkie” and put out a call that “a suspect (was) leaving the scene southbound on Blue Ridge, black over red 1967 Buick.”

Within a few minutes, Officer Brown, in a patrol car at Bannister Road and Hill-crest, heard the call put out in response to Officer Cox’s report and started driving south on Hillcrest. At around 103rd Street and Hillcrest, he saw a vehicle which answered the description coming north on Hillcrest. He advised the dispatcher that he had seen the auto and turned around and started in pursuit of it. He turned on his lights and siren, but the Buick stopped only briefly at around 99th and Hillcrest where an occupant jumped out of the auto and started running east.

Brown pursued the Buick at speeds of 85 to 90 miles per hour without overtaking it. Officer Pollard heard Brown’s radio report of the pursuit. He parked his police car at 87th and Hillcrest, headed south with the red light flashing. He saw the police car chasing the Buick toward him. Pollard got out of his car with his shotgun. When the Buick was about 100 yards away, Pollard fired a shot low toward the Buick. The Buick did not stop and drove toward Pollard who was standing in the roadway. Pollard stepped aside and as the vehicle passed him he fired two more shots. One struck the window on the driver’s side. The Buick crashed into a bank and Officer Brown placed the driver, the appellant, El-ree McRae, under arrest.

The manager of the pharmacy came to the scene at the request of the police. He found that approximately $40 in cash which had been left on the premises when the business closed the previous evening was missing. The manager had locked the door and secured the building before he left. He discovered that the west rear window in the building had been broken.

The manager also pointed out to the police that a door to a closet, usually open, had been closed. Police opened the door and found Danny McRae, brother of appellant, crouched in a corner of the closet.

At the trial of Elree McRae, the state’s case was based upon the testimony of the four police officers and a stipulation that the manager would testify to the matters above referred to.

Danny McRae testified for appellant. He testified that sometime after midnight, El-ree came by Andre Walker’s residence where Danny was and he and Andre accepted Elree’s invitation to go for a ride with him. Danny testified that, as they were driving on Blue Ridge Boulevard, he noticed that the gasoline tank was nearly empty so Elree drove into a driveway alongside the McGrath Pharmacy to turn around. Andre called attention to a broken window at the McGrath Pharmacy. Danny said “Stop.” He and Andre got out of the car. According to Danny, Elree was looking at him “real funny.” “ * * * [The] impression to me was as he was saying ‘What are you doing, * * * you ain’t got no business doing this.’ ” Elree said nothing, but after Danny and Andre got out of the car, he said he was leaving and he drove away. Danny said he didn’t expect him to come back “ * * * because my brother truly is a guy, he wouldn’t do no stunting.”

According to Danny, he and Andre entered the building through the window. Andre went for the cash register and Danny started looking for drugs. He found cough syrup and drank some. Andre said “Police” and ran. Danny heard shots fired and hid in a closet and was not found until about two hours later. He stated that he was surprised when he learned that Elree was near the pharmacy when Andre left.

On this appeal, the appellant contends that the evidence adduced at his trial was insufficient to sustain a conviction on either of the charges. Appellant argues first that there was no evidence to support the stealing charge and second that there was no evidence to support the burglary charge. Since the stealing charge was based upon the burglary, the first mentioned conviction cannot stand if there was no evidentiary support for the burglary. State v. Cline, 447 S.W.2d 538 (Mo. banc 1969). Therefore, the evidence to support the burglary will be considered first.

“Where it is evident that the crime has been committed by at least two persons, the question is whether or not the evidence permitted a fair inference of defendant’s actual participation or that he aided and abetted the principal actor. State v. Simmons, supra, 494 S.W.2d at 304. Section 556.170 provides that every person who shall be a principal in the second degree in the commission of any felony or who shall be an accessory to any felony before the fact should, upon conviction, be adjudged guilty of the same offense in the same degree. § 556.170. The statute thus eliminated all distinctions between principals in the first and second degree and aiding and abetting. State v. Cline, 452 S.W.2d 190, 194 (Mo.1970); State v. Reed, 453 S.W.2d 946, 948 (Mo.1970). Where the charge is one for joint participation in the criminal act, a common intent and purpose must be shown by the evidence. State v. Slade, 338 S.W.2d 802, 806 (Mo.1960).

“The primary question for review then is the sufficiency of the evidence from which the jury could infer this common intent, since defendant did not deny any of the acts implicating him in the theft. Presence, companionship and conduct before and after the offense are circumstances from which a defendant’s participation in the criminal intent may be inferred. State v. Reed, supra, 453 S.W.2d at 948; State v. Stockdale, 415 S.W.2d 769, 772 (Mo.1967). Moreover, evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction and it is not necessary that the defendant personally have done each one of the elements of the crime. State v. Reed, supra, 453 S.W.2d at 949; State v. Ramsey, 368 S.W.2d 413, 417 (Mo.1963); State v. Turnbough, 497 S.W.2d 856, 859 (Mo.App.1973); State v. Lemon, 504 S.W.2d 676, 683 (Mo.App.1973).” State v. Johnson, 510 S.W.2d 485, 488-489 (Mo.App.1974).

In passing upon appellant’s contention, “ ⅝ * * all evidence tending to support the judgment is considered as true and all inferences favorable to the judgment are indulged.” State v. Simmons, 494 S.W.2d 302, 303[1] (Mo.1973). Any evidence offered by the defendant which supports a finding of guilt may be considered in passing on the question here raised. State v. Johnson, 447 S.W.2d 285, 287[2] (Mo.1969).

Here, the evidence showed that appellant was a brother of one of the direct participants in the crime and a friend of the other; appellant took them to the scene of the crime; he remained in the vicinity, knowing of their design; and finally he not only fled himself, but he provided a vehicle for flight of one of the participants, a flight in which appellant persisted despite police efforts to stop him.

All of these circumstances would have permitted a finding by the jury, beyond a reasonable doubt, of more than mere presence on the part of the appellant. The circumstances were sufficient to permit an inference that he was an aider and abettor of the active participants in the crime. State v. Murray, 445 S.W.2d 296, 298[3] (Mo.1969).

Appellant argues that the evidence, being circumstantial, is insufficient because it is not inconsistent with a theory of innocence. Appellant argues that the evidence is un-controverted that he left the scene and argues that it may be inferred that he returned only because of his concern for his brother’s safety and welfare. The jury was not obliged to believe Danny’s testimony that appellant did drive away after Danny and Andre got out of the car. Certainly appellant was nearby when the police arrived. He made no attempt to be of assistance to his brother and instead fled the scene, leaving Danny behind. The argument of appellant is so unreasonable that it cannot be said to have demonstrated that the circumstances were as consistent with innocence as with guilt.

Appellant relies upon the often-repeated statement that “mere presence” at the scene of a crime is not a sufficient circumstance to support a finding of guilt and he cites the often-relied-upon case of State v. Castaldi, 386 S.W.2d 392 (Mo.1965), in support of that proposition. Castaldi was a case in which the presence of the defendant and his “explained” flight were the circumstances relied upon to connect him with the crime, there tampering with a motor vehicle. Here, as has been previously demonstrated, there were additional circumstances from which the jury might infer appellant’s participation in a joint action. Furthermore, there was more than mere presence and flight, so that the statement in State v. Mason, 506 S.W.2d 458, 460[3-5] (Mo.App.1974), that “ * * * presence and flight alone are insufficient to sustain a conviction” is not to be applied here.

In conclusion, the evidence in the case was sufficient to support the charge of burglary against appellant. Being sufficient for that purpose the conclusion follows that there was also evidence to connect appellant with the stealing, if the stealing was proved. The evidence showed that money left on the premises was missing following the entry of the burglars. The stipulation as to the manager’s testimony did not locate where the money had been left, but Danny testified that Andre went for the cash register. Appellant argues that no money was found on appellant or the other two participants and that there would have been no opportunity for any of them to have disposed of it. Of course, the record is silent as to whether or not Andre was arrested and if so, when. Considering Danny’s testimony that Andre went for the cash register, the evidence points to Andre as the actual thief and what happened to him simply doesn’t appear. However, the failure of the state to produce the stolen money would not have precluded the finding by the jury, in these circumstances, that the theft did occur. State v. McCarty, 460 S.W.2d 630, 638[11] (Mo.1970).

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Vera POLLARD, Appellant, v. The BOARD OF EDUCATION REORGANIZED SCHOOL DISTRICT NO. III, PLATTE COUNTY, Missouri, Respondent.
    No. KCD 27651.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.

      Don Witt, Platte City, for appellant.
    John R. Moore, Platte City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

This case was initiated by an appeal to the Circuit Court of Platte County, Missouri, under § 168.120 (all statutory references herein being to RSMo 1969), by a permanent teacher, Vera Pollard, who challenged the termination of her employment by the Board of Education of Platte County R-III School District. The Circuit Court affirmed the decision of the Board of Education, and Pollard appeals.

On March 20, 1973, Gerald Hart; superintendent of the Platte County R-III School District, sent the following letter:

“Dear Mrs. Pollard:
“The Platte County R-III Board of Education wishes to notify you that improvement is needed in the following areas:
“1. Relationship with students
2. Enthusiasm in teaching
3. Disciplinary policies
4. Relationship with parents
“According to section 168.116 of Missouri Statutes you have 30 days to show improvement satisfactory to your principal, superintendent and Board of Education.
“If you have any questions about this you may contact me through your building principal. Please sign below and return one copy to the central office.”

After the 30 day “improvement period” had passed, on May 17, 1973, Max L. Hunt, president of the School Board, notified Pollard that the Board proposed her termination and that a hearing would be held in accordance with § 168.118, if she so requested. The charges against Mrs. Pollard set forth as an exhibit to this letter were as follows:

“You are hereby notified the Board of Education has determined that your indefinite contract as a teacher in Reorganized School District R — III, Platte County, Platte City, Missouri, shall be terminated upon the ground that:
“1. Your poor relationship with students in that the students are fearful of you and therefore fail to communicate with you, and you with them.
“2. Your lack of enthusiasm in teaching in that you fail to properly plan and prepare your assignments and classroom activities.
“3. Your improper discipline of students in that you are unnecessarily harsh in your classroom disciplinary actions of students in the presence of other students causing the one being disciplined to be so embarrassed that the students desire not to return to your classroom.
“4. Your failure to properly relate with and communicate with the parents of your students.”

Pollard requested a hearing, which was held on June 21, 1973. School supervisory personnel, teachers, parents of children in Pollard’s classes, and Pollard herself testified as witnesses. Thereafter on July 9, 1973, Pollard received the notice that her teaching contract had been terminated, which is the subject of the present litigation.

On this appeal, Pollard claims (1) she had no sufficient or specific notice of the charges against her; (2) there was no evidence that she failed to improve during the 30 day improvement period; (3) hearsay was improperly admitted at the hearing on June 21,1973; and (4) she did not get a fair and impartial hearing on June 21, 1973, because a hearing officer testified as a witness against her. In view of our agreement with the first of the points, the remaining three assignments of error need no consideration.

The method of terminating the indefinite contract of a permanent teacher is spelled out in §§ 168.114-168.120. Section 168.-114-1 sets out the exclusive grounds for termination. It provides:

“1. An indefinite contract with a permanent teacher shall not be terminated by the board of education of a school district except for one or more of the following causes:
(1) Physical or mental condition unfitting him to instruct or associate with children;
(2) Immoral conduct;
(3) Incompetency, inefficiency or insubordination in line of duty;
(4) Willful or persistent violation of, or failure to obey the school laws of the state or the published regulations of the board of education of the school district employing him;
(5) Excessive or unreasonable absence from performance of duties; or
(6) Conviction of a felony or a crime involving moral turpitude.”

The notice required to be given a permanent teacher before her indefinite contract can be terminated is set out in § 168.116. It provides so far as now pertinent:

“1. The indefinite’ contract of a permanent teacher may not be terminated by the board of education until after service upon the teacher of written charges specifying with particularity the grounds alleged to exist for termination of such contract, notice of a hearing on charges and a hearing by the board of education on charges if requested by the teacher.
“2. At least thirty days before service of notice of charges of incompetency, inefficiency, or insubordination in line of duty, the teacher shall be given by the school board or the superintendent of schools warning in writing, stating specifically the causes which, if not removed, may result in charges. Thereafter, both the superintendent, or his designated representative, and the teacher shall meet and confer in an effort to resolve the matter.”

The notification of proposed termination dated May 17,1973, did not specify which of the six statutory causes listed in § 168.114 the Board relied upon as the basis for termination. However, the 30 day “improvement letter” dated March 20, 1973, compels the conclusion that the Board was proceeding upon the ground of “incompetency, inefficiency or insubordination in line of duty” as provided in .§ 168.114-1(3). This inference arises because the 30 day improvement, letter is required only when subsection (3) is relied upon, and no such special notice is necessary in connection with the other five grounds set forth in § 168.-114-1. Blue Springs Reorganized School District IV v. Landuyt, 499 S.W.2d 33 (Mo.App.1973). Therefore, when the Board did send the 30 day improvement letter, the conclusion is inescapable that it was relying on and proceeding under subsection (3). Having chosen this ground'for action, the Board was.bound by the terms of § 168.-116-2 to state in the 30 day ^ warning letter “specifically the. causes which, if not removed, may result in charges.”

The warning letter of March 20, 1973, was totally insufficient to meet that statutory mandate. The letter merely announced very tersely that improvement was needed in the argás of (1) relationship with students, (2) enthusiasm in teaching, (3) disciplinary policies, and (4) relationship with parents. All four charges-were so broadly drafted that Pollard had no way of knowing exactly how she should improve her conduct during the trial period. All of the charges were susceptible to such a wide variety of interpretations as to violate the general prohibition against proceedings • to terminate a teacher upon non-informative allegations. Blue Springs Reorganized School District IV v. Landuyt, supra.

As stated in Blue Springs, “the purpose of § 168.116, subd. 2 is to give the teacher an opportunity to know exactly what the complaints against her are and to afford her a chance to cure the situation.” Without knowledge of the specifics in which classroom conduct is deficient, a teacher who seeks to improve his or her teaching ability may find that such efforts result in classroom conduct that, in the minds of school authorities, is even less competent, less efficient, and less subordinate. In short, the teacher is caught in a double bind; the teacher must improve teaching qualities during the 30 day improvement period or risk termination. On the other hand, there is no assurance that any particular course of action undertaken by a teacher during this 30 day period will constitute sufficient improvement in the eyes of the board and school authorities. The teacher finds herself in a position of struggling blindly towards undefined and unknown standards of conduct. This defeats the purpose of the 30 day statutory improvement period.

The charges made by the School District in the Blue Springs case, supra, which this court held failed to meet the statutory requirements of specificity, were “poor teacher-pupil relationship because of discipline” arid “poor influence on pupil attitude.” The similarities between those allegations and those in the instant case are obvious. They are mere ciphers and are totally ineffective to trigger the 30 day improvement period.

.We need not apd do not rule whether the charges as amplified in the letter sent by the Board on May 17, 1973, notifying appellant of proposed termination, complied with the requirement of “specifying with particularity,” as required by § 168.-116-1. Even if the charges listed in that letter be considered sufficiently specific, this was not enough to cure the defects' of the allegations in the 30 day warning letter, and the May 17th letter could at best only trigger a new 30 day improvement period. The Board would then have been required to begin compliance at that point with the requirements of § 168.116, which was not done. In other words, if the May 17th letter be deemed properly specific, then it would constitute only a warning letter under subsection 2 and there would be no final termination notice as required by subsections 1 and 3.

The Board endeavors to escape the fatal defect in its warning notice by arguing on this appeal that its charges were sufficient to show a “mental cpndition unfitting [her] to instruct or associate with children” within subsection (1) of § 168.114-1, and that no warning notice whatsoever was required in connection with that ground for discharge. The fallacy in that argument is that the Board never gave the slightest hint to Pollard in its proceedings against her that it was relying on the ground now urged.

The “mental condition” referred to in subsection (1) means some psychiatric or psychological defect or disability sufficient to disqualify as a teacher. ‘Neither the March 20 warning letter nor the May 17 termination notice carried any indication that such a charge was being leveled. Thus, Pollard had no reason to believe it necessary to produce evidence countering such a charge, and' she understandably made no effort to do so at the June 21st hearing. Moreover, the Board itself made no effort to prove such a charge. It did not call as a witness any psychiatrist, psychologist or even a medical doctor. Even assuming that the “mental condition” in question could be proved solely by lay testimony, no evidence of bizarre or irrational conduct was proved from which the proscribed mental condition could be inferred.

The judgment is reversed and the cause is remanded with instructions that the trial court enter judgment, under the provisions of § 168.120-4, restoring Pollard to permanent teacher status and ordering that she receive compensation for any period during which she was suspended from work and further providing as set forth in § 168.116-4 (subject to the doctrine of mitigation held applicable in Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138 (Mo. banc 1975)) that she be paid her salary lost during the pendency of her appeal.

All concur.


text:
    STATE of Missouri, Respondent, v. Clarence CAMPBELL, Jr., Appellant.
    No. KCD 27671.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.

      Thomas M. Larson, Public Defender, Mark D. Johnson, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The appellant was charged by information with stealing from the person, in violation of Section 560.120 RSMo 1969. He was tried before a jury, found guilty, and sentenced to three (3) years imprisonment.

He raises only one point on appeal. He asserts, in substance, that the trial court erred in excluding the testimony of his parents with respect to the circumstances surrounding his arrest.

The state’s evidence showed that on the evening of November 21, 1973, Mrs. Terry Nettles and Mr. Dallas Yearta and his wife, Ruby, drove to Boyd’s Barbeque Restaurant at 55th and Prospect in Kansas City, Missouri in Mr. Yearta’s pickup truck, arriving there shortly after 8:00 o’clock p. m. Mr. Yearta parked his truck in front of the restaurant. This group finished eating in about 45 minutes to an hour. While Mr. Yearta paid the check, the two ladies left the restaurant and proceeded to the truck. Mrs. Yearta entered the truck, and while Mrs. Nettles was in the process of getting into it, a young black girl scuffled with her and grabbed her purse. Mr. Yearta, coming out of the restaurant, observed this and shouted at the girl, who thereupon handed Mrs. Nettles’ purse to a young black boy who was standing there. The boy promptly “broke and ran” with the purse and with Mr. Yearta in pursuit. Unable to catch the boy, Mr. Yearta returned to the restaurant and the police were called.

Mr. Yearta testified that he had seen the boy in the restaurant before this occurrence in the company of three young girls and another boy. Mrs. Yearta and Mrs. Nettles had also observed him in the restaurant and on the sidewalk outside in the company of the other boy and the girlá. Mrs. Nettles positively identified the appellant as the boy to whom the girl passed the purse and who fled the scene. Mrs. Yearta, because of her position inside the truck, could not observe this.

With the presentation of the testimony of these three witnesses, the state rested its case. The defendant testified in his own behalf.

In substance, he stated that he was at Boyd’s restaurant on the evening of November 21, 1973 with his girl friend and that while there, they encountered a boy and two girls who were friends or acquaintances of his girl friend, but whom he did not know. When he and his girl friend left the restaurant, these people were standing outside. He observed the scuffle and an unsuccessful attempt by one of the girls to take Mrs. Nettles’ purse.

His version of the subsequent events was that Mr. Yearta then got in the truck with the two ladies and drove off; he and his girl friend started walking and the truck blocked their path at the next corner; Mr. Yearta started toward him with his hand in his pocket, and appellant ran for home. He stayed at home for a short while and then departed to attend a church party. Appellant denied any direct connection with the incident or that he was handed the purse.

On cross-examination of the appellant, by the assistant prosecutor, the following appears:

“Q. Where did you go then?
A. I went home.
Q. You didn’t stay at home very long did you?
A. No, I didn’t.
Q. The police came to your home?
A. Yes; they did.
Q. And you had gone?
A. Yes; I did.
Q. And that was the reason you left?
A. No; that wasn’t the reason.
Q. What was the reason you left?
A. The church had a party going on at 66th and Paseo.
Q. A church party?
A. Yes.
Q. Then you went back to the barbeque place later?
A. I called the police and I was going to turn myself in on 55th and Prospect at the barbeque place.
Q. You told the police you would turn yourself in at 55th and Prospect at the barbeque place?
A. Rather my mother called them.
Q. Well, you don’t know that your mother called them—
A. Yes, ’cause I was in there when she called.
Q. You went back to 55th and Prospect?
A. With my mother and father.
Q. You were arrested about midnight?
A. With my mother and father.
Q. Yes, sir. The officers told you there was a warrant for your arrest; they were going to place you under arrest for strong arm robbery, didn’t they?
A. They didn’t say that.
Q. Why did you have a fight with the officers?
A. Because the officers pushed me and tore my coat.
Q. The officers told you to come with them you were under arrest and you put up a fight and resisted arrest, didn’t you?
A. No; I didn’t.
Q. You didn’t get in a fight with them?
A. Yes; I got in a fight with them because he tore my coat.
Q. Well, if you had called and were going to turn yourself in, why didn’t you go home and have the officers come there; why did you go back down to 55th and Prospect?
A. Why did I?
Q. Yes.
A. Because that’s where it happened— where he said it happened.
Q. Did the police tell you to stay at home and they would come by your home?
A. I don’t know.
Q. You knew they were looking for you?
A. Prior to going down to 55th and at the time.
Q. And they got your name from the people in the place; right?
A. I can’t tell you where they got my name, ’cause I don’t know.” (Emphasis supplied)

Defense counsel made no objection to any of the foregoing cross-examination, but at the close thereof he stated to the trial court (out of the hearing of the jury) that he did not understand that the state intended to go into the matter of the circumstances of appellant’s arrest, but that since the matter had been gone into by the state, he wished to call the appellant’s mother and father as defense witnesses. Thereupon, the following colloquy appears:

“THE COURT: If either of them were permitted to testify, what would be the nature of the evidence?
MR. JOHNSON: That they were contacted by the police; that their son came home; they talked to him; they then called the police headquarters and told them they wished to make arrangements for him to turn himself in — to be turned in and that the police officers informed them that he was not (1) wanted for arrest but only for questioning in connection with an incident that had occurred.
THE COURT: What I’m really ques-' tioning, Mr. Johnson, is what’s the relevancy?
MR. JOHNSON: I think he’s opened it up, whatever relevancy he may have had and questioning, you know, about why he resisted, his resistence (sic) was observed and based upon the fact he was informed he was not to be arrested and questioned and the officer immediately came up and placed him under arrest.
THE COURT: Even if all of that were true, what would be the relevancy to the charge here?
MR. JOHNSON: What was the relevancy of the arrest at all?
THE COURT: There was no objection. Whether or not it would be proper argument to dwell on that, we are not deciding that at this point here.
MR. JOHNSON: Okay. Fine. There —if there was no objection; still the prosecutor opened it up and I think I have a right to pursue it.
THE COURT: Well, on that simple statement I can’t agree with that unless it goes to relevant matters.
MR. JOHNSON: I assume that the prosecutor, if he offers it, show flight, resistence (sic) to arrest as an indication of guilt sometimes is held to be properly admissible on the issue of guilt. I wish to relieve any questions from the jury’s mind about that.
THE COURT: If the mother were permitted to testify, what would she testify to of her own knowledge?
MR. JOHNSON: Testify to the fact that the police officer that either she or her husband had a telephone conversation with, in which an agreement was reached that her son returned home that they agreed — the agreement was made between them that, without going into the substance, that he was to meet them, to meet the police officers at 55th and Prospect where this' incident occurred; that the mother and father accompanied their son to that area and that he was — that they had been informed it was not the desire of the officers to arrest him, but only to talk to him about this incident which he might have been a witness to; that he wished to co-operate; he went down there and at that time he was — the officer asked him no questions about the incident but merely placed him under arrest.
* * * ⅜ ⅜ #
THE COURT: * * * I would suggest to both of you, the better way to handle it, with the understanding that counsel will abide, that the State will not refer to the circumstances of the arrest or the alleged fight between the defendant and the police officers in closing argument.
MR. SCHRADER: All right.
MR. JOHNSON: Okay. I wish the record would reflect the defendant’s offer to produce Mr. Campbell and the substance of what I said as to what he would testify to, and the Court’s suggestion that such evidence would not be relevant or material.” (Emphasis supplied)

Under the facts of this case, it was error to exclude the proffered testimony of appellant’s father.

Circumstances surrounding the arrest of a defendant are generally admissible where they tend to establish an attempt by the defendant to resist, evade, escape or avoid arrest. The conduct of the accused at the time of his arrest, which shows such attempts, has long been held to be admissible as having probative value on the issue of defendant’s guilt and to constitute proper evidence for a jury’s consideration. State v. Wilkins, 100 S.W.2d 889, 895[13] (Mo.1936), flight; State v. Garner, 360 Mo. 50, 226 S.W.2d 604, 609[7] (1950), flight, resisting arrest; State v. Harris, 325 S.W.2d 352, 358[14, 15] (Mo.App.1959), flight; State v. Tevis, 340 S.W.2d 415, 421[14] (Mo.App.1960), threat to kill arresting officer; State v. Kilgore, 447 S.W.2d 544, 547[4] (Mo.1969), unexplained flight and resisting arrest; State v. Woodard, 499 S.W.2d 553, 556[5] (Mo.App.1973), flight and resisting arrest; 22A C.J.S. Criminal Law § 628, pp. 472-477.

The appellant does not (nor could he) seriously dispute either the existence of this rule in Missouri law or its application to this case. He does strenuously contend, however, that when such evidence was injected into the case by the state, the court erred in refusing to permit him to introduce the testimony of his father (who was present at the time of the arrest), for whatever value or weight the jury chose to give it, as explanatory of appellant’s conduct at the time of his arrest. Appellant’s position in this regard is well taken.

The general rule is thus stated at 22A C.J.S. Criminal Law § 601, pp. 404 — 406:

“Explanatory evidence. As a general rule, evidence explaining evidence previously introduced, or showing that the inference arising or sought to be drawn therefrom is not warranted, is admissible; ⅜ * * This rule is especially applicable where accused seeks to explain incriminating evidence introduced by the state, and applies even though the evidence sought to be explained was improperly admitted. Common illustrations of the rule are found in the reception of evidence * * * of flight, of the commission of other offenses * ⅜

This rule is recognized in Missouri in State v. Burns, 322 S.W.2d 736, 742[8] (Mo.1959), in a case where defendant’s conviction for larceny was reversed and remanded on grounds not pertinent here, where the court stated that “evidence of flight to avoid arrest or prosecution is admissible * * * And the defendant has a right to ‘refute any incriminating circumstances that may be shown.’ ”

Burns cites as supportive of this rule the case of State v. Craft, 344 Mo. 269, 126 S.W.2d 177, 180[8] (1939), wherein the court stated:

“ * * * Evidence of the whereabouts of a defendant after the alleged commission of a crime is generally admissible. The defendant in such cases has the right to refute any incriminating circumstances that may be shown. * * * ”

It is apparent that by means of the state’s cross-examination of the appellant, as above set forth, it adroitly injected into the' case the fact that when the appellant, in the company of his mother and father, was arrested at the scene of the crime, to which he had returned voluntarily, that an altercation or fight ensued between him and one or more of the police officers. From such admitted fact, the jury could infer that the fight resulted from the defendant’s attempt to “resist, escape, evade or avoid” arrest preparatory to flight. Under the above rule permitting explanation, he did in fact state that the fight resulted because the officers “tore my coat”. However, no case has been cited nor one found by research which rules that defendant’s right to explain the incidents to his arrest is confined to his own testimony where others were eye witnesses to such arrest and whose testimony would corroborate his explanation, or otherwise weaken or destroy unfavorable inferences which might be drawn. The testimony of the father, as delineated by counsel, would have corroborated the appellant’s statement as to the cause of the scuffle with the police and explained the possibility of appellant’s surprise, fear, shock, or other state of mind, because he was placed under arrest in spite of police assurances that they merely wished to question him. The court erred in excluding the proffered testimony of the appellant’s father as to the facts surrounding the arrest.

To avoid the clear impact of these rules and binding decisions, the state argues that the appellant’s offer of proof was insufficient in that it did not specifically or definitely state the facts or reasons which would demonstrate to the trial court that such evidence would be relevant, material and admissible. Therefore, the state asserts, the trial court did not err in excluding the explanatory evidence. Neither the record before the court nor the cases cited by the state support this position.

While counsel did not make a formal offer of proof, he did clearly state to the court that the testimony was offered in explanation of the cross-examination of the appellant tending to show “flight” and “re-sistence (sic) to arrest” and to show “why he resisted”. The explanation for appellant’s conduct was apparently and obviously that the officers by earlier contact with his parents misled them (and thereby the appellant) as to the purpose of the meeting arranged with appellant at Boyd’s when he was arrested, together with the asserted fact that the officers pushed him around and tore his coat. No strictly formal offer of proof was necessary under the state of this record.

In State v. Hamilton, 310 S.W.2d 906 (Mo.1958), defendant’s conviction for sodomy was reversed and remanded for the reason that defendant was not allowed to explain why he’d used a fictitious name in registering for the hotel room in which the alleged crime was committed. In so holding, the court stated at l.c. 908[1]:

“ * * * Defendant was entitled to give his reasons for registering under a fictitious name. It was for the jury to consider the explanation in passing on the guilt or innocence of the defendant. 22 C.J.S. Criminal Law § 625e, p. 961; 22 C.J.S. Criminal Law § 601, p. «924. At pages 925 and 926 of 22 C.J.S., we note the following: ‘As a general rule, evidence explaining evidence previously introduced, or showing that the inference arising or sought to be drawn therefrom is not warranted, is admissible; and it is sometimes so provided by statute. This rule is especially applicable where accused seeks to explain incriminating evidence introduced by the state, * *' See also State v. Dixon, Mo., 190 S.W. 290, loc. cit. 292; Hartman v. United States, 8 Cir., 215 F.2d 386, loc. cit. 894(9); People v. Zerillo, 36 Cal.2d 222, 223 P.2d 223, loc. cit. 228(8, 9); Green v. State, 258 Ala. 471, 64 So.2d 84, loc. cit. 89(12, 13). The rule the State invokes, that is, that it was necessary for the defendant to make an offer of proof is not applicable. That rule, as stated in 23 C.J.S. Criminal Law § 1029, p. 404, is as follows: ‘Where the relevancy or admissibility of evidence offered is not apparent it may be rejected unless there is a statement of the purpose of its introduction by which the court may determine its relevancy or admissibility. Thus it is not error to exclude a question asked by a party, unless the party states the nature of the testimony that he expects to elicit thereby, and unless it further appears that such testimony is material, relevant, and responsive, or unless the question is excluded without giving the party an opportunity to state what he expects to prove. It is unnecessary to make a formal offer of proof, however, where the question itself discloses the materiality of the evidence * * ” (Emphasis supplied)

A guess will not be ventured as to what effect the proposed explanations of the circumstances surrounding the arrest and of appellant’s conduct might have upon a jury, but appellant was entitled to offer such evidence, if he so desired.

The judgment is reversed and the cause remanded for a new trial.

All concur.

      . As a part of the colloquy following the cross-examination of the appellant, it was conceded that appellant’s mother had been present in the courtroom throughout the trial. The rule excluding witnesses from the courtroom had been invoked and upon proper objection her testimony might have been excluded for that reason. Appellant’s motion for a new trial contained only the allegation of error as to the exclusion of the father’s testimony, although appellant’s point relied on in his brief asserts error as to the exclusion of the testimony of both mother and father. Reference herein will, therefore, be confined to the father’s testimony.

      . This would apply with equal force to the testimony of the mother, if she was not disqualified by reason of the exclusion of witness rule.