author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Louis JONES, Appellant.
    No. 36112.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 7, 1976.
    Motion for Rehearing or Transfer Denied Jan. 14, 1977.
    Application to Transfer Denied March 14,1977.

      William J. Shaw, Public Defender, Timothy A. Braun, Asst. Public Defender, Clayton, for appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant, Louis Jones, was convicted by a jury of assault with intent to kill with malice aforethought, and of robbery in the first degree by means of a dangerous and deadly weapon. The jury was unable to agree on the punishment and the trial court imposed a sentence of life imprisonment for each offense, the sentences to be served consecutively.

Appellant does not challenge the sufficiency of the evidence. We shall, therefore, summarize the facts which reasonably could be found by a jury.

A little after 1:00 o’clock in the morning of March 18, 1972, several young black persons, including appellant, armed with various weapons, entered a tavern named Cousin Hugo’s in Maplewood, Missouri, and robbed the patrons, estimated to have been between 75 and 100 persons. During the course of the robbery a patron was shot, a barmaid, Sandra Clemens, was stabbed, and two patrons were killed, one by a stab wound and the other, an off-duty police officer, by being shot in the head from close range with a shotgun while he lay face down on the floor.

Shortly after the incident at Cousin Hugo’s the police learned that Lucious To-ney and appellant had been seen in the neighborhood, and Sergeant Boulch and two officers went to a house on Dumas Street where they found Lucious Toney’s mother. When she saw the police officers she became very excited and ran down the street shouting, “Lucious, Lucious, police.” She stopped at a house located around the corner at 1338 Banneker Street. There the police officers spoke to Lucious Toney who gave them permission to enter. Inside the house the police found three other black persons, including appellant, various weapons, and numerous items such as billfolds, credit cards, driver licenses and purses, all of which belonged to the victims of the robbery at Cousin Hugo’s.

Appellant’s first point is that the trial court erred in admitting into evidence the in-court identifications of appellant by Sandra Clemens and Joyce Sullivan, and also the testimony by these two persons “of extra-judicial identifications” of appellant.

Sandra Clemens was employed at Cousin Hugo’s. She testified at the trial that five black men entered the tavern, one of whom was appellant, and that after he stabbed a dog that was in the bar, he leaped over the counter and forced her to place money from the cash register into a bag that he had and then stabbed her in the abdomen. She made a positive in-court identification of appellant as that person. She did not view a lineup. After she was released from the hospital she was shown photographs and “the photograph of [appellant] looked familiar,” but she was not able to “specifically identify him from the picture.” On cross-examination appellant brought out for the first time that she was shown a “video tape” and pictures of two lineups. She did not testify that she identified appellant in the video tape showing or in the pictures.

Joyce Sullivan was a patron at Cousin Hugo's, and she testified that she saw two black men enter the front door who were immediately followed by three more black men. She positively identified appellant at the trial as the second person to enter. She also testified that she attended a lineup a few days later and that she there identified appellant as one of the persons she had seen at Cousin Hugo's.

Prior to trial appellant filed a motion to suppress testimony of identification, and after a hearing the court held that the lineups were fair, untainted and not suggestive; that the photographs of the lineups were fair and not suggestive; that there was no evidence of any taint or suggestiveness by prosecuting officials or police, and that the identification testimony of the witnesses was proper and that it had an independent source. The trial court however noted that “witness Sandra Clemmons * * * never viewed any corporeal lineups; that Clemmons was stabbed and went to the hospital; that she has never viewed [appellant] since the incident herein and may never be able to make an in-court identification; * * .” The court then directed that Sandra Clemens “cannot make an in-court identification until at trial the Court conducts a further * * * hearing to determine whether [her] in-court identification is based upon a photograph of [appellant] or an independent source from [her] knowledge of what [she] saw in Cousin Hugo’s.” It was further directed that the prosecuting attorney and the police “not * * * show any photographs of [appellant] * * until the hearing” was held. A further hearing was held on October 2, 1973. Sandra Clemens then observed appellant in person for the first time after the incident at Cousin Hugo’s, and she positively identified him as the person who stabbed her. She testified that she based her identification on her observation of him at the time of the incident at Cousin Hugo’s, and her observation of his eyes and skintone. The trial court ruled that Sandra Clemens could testify to an in-court identification, thereby holding that there was an independent basis for the in-court identification.

Appellant presents a 92-page argument and cites 85 cases in his brief in support of his first point. Much of that argument appears to be directed to the issue of whether the testimony concerning identification should be believed, an issue for the jury, rather than to the legal issue of whether the testimony concerning identification was admissible.

In substance, appellant’s contention is that the pretrial identification procedures were so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification and thereby tainted the in-court identifications. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967,19 L.Ed.2d 1247 (1968), it was held that such a contention “must be evaluated in light of the totality of surrounding circumstances.” When so viewed, the determination of whether pretrial identification was “imper-missibly suggestive” is governed by three principles: (1) the presence of an independent basis of identification; (2) the absence of any suggestive influence by others; and (3) positive in-court identification. State v. Jones, 531 S.W.2d 67, 70 (Mo.App.1975).

We shall examine the issues pertaining to the preparation and use of the lineups. Appellant was placed in two lineups, the first being held on March 18, 1972, a few hours after he was arrested. Neither Sandra Clemens nor Joyce Sullivan viewed that lineup, and there was no testimony in this case that anyone who viewed that lineup identified appellant as one of those participating in the robberies and other offenses. A few days later on March 21 a second lineup was held. Sandra Clemens did not view this lineup, but it was on this occasion that Joyce Sullivan identified appellant. The lineup contained ten persons, all dressed the same and who were reasonably uniform in height and coloring. In State v. Hill, 539 S.W.2d 521 (Mo.App.1976), this court reviewed the procedures under which the lineups were held, and it ruled as follows: “The record reveals no constitutional infirmity in the conduct of the lineups.” We find nothing in the record of this case that would justify a different conclusion. See also State v. Davis, 547 S.W.2d 482 (Mo.App. 1976).

Appellant makes much of the fact that although Sandra Clemens did not view either of the lineups, she was subsequently shown video tapes and pictures of the lineups. There is no contention that when she viewed the video tapes and looked at the pictures any improper suggestions were made to her, and we fail to see how it could be improper for her to have viewed the video tapes and pictures of the lineups when it would not have been improper for her to have viewed them in person. We also note that although it appeared to Sandra Clemens that of those persons in the lineups, appellant “most resemble[d] the person” who stabbed her, she stated that from the tapes and pictures she could not positively identify anyone. The conduct of the lineups, and the showing to Sandra Clemens of the video tapes and pictures of the lineups could not possibly have resulted in any impermissible pretrial identification procedures.

In further support of his contention that the in-court identifications were tainted by pretrial procedures, appellant relies on the fact that the prosecutor conducted a “reenactment” of the crimes at Cousin Hugo’s. The propriety of such reenactment and the use of photographs in doing so was the subject of a ruling in State v. Hill, supra at pp. 527-528, and it was held that “The reenactment * * * was for the purpose of establishing how the crime occurred and the parts played by the various defendants. It was not meant for purposes of identification nor was it so used.” We adopt by reference the ruling in the Hill case to the contention here made.

Appellant also argues strenuously that there was no, or perhaps an inadequate, independent basis of identification on the part of Sandra Clemens and Joyce Sullivan, but the argument is devoted only to the circumstances pertaining to Sandra Clemens. We therefore deem the contention to be abandoned as to Joyce Sullivan. The issue of whether there existed an independent basis for the in-court identification is usually presented when there is a defect in the pretrial lineup procedures, and then, as stated in United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967), the prosecution should have an “opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” In this case there was no defect in the lineup procedures.

We have read carefully the lengthy argument and find it replete with trivial minu-tae. For example, much is made of the fact that 20 months after Sandra Clemens had been stabbed she “was not sure she gave any description of the robbers” to a named police officer while being taken to the hospital, and to the fact that although she gave “some description” to police officers at the hospital the following day, “she could not remember the description.” The evidence clearly shows that with favorable lighting conditions Sandra Clemens observed appellant when he entered Cousin Hugo’s, and observed him as he approached the bar where she was working. She saw him stab a dog that was there and then jump over the bar to where she was standing. While in close proximity to her he asked another person where the money was, and he then forced Sandra to take money from the cash register and place it in a bag which he was carrying. “He looked at [Sandra] and [Sandra] looked at him and then he stabbed” her in the abdomen. She described him as a good looking black male with no distinguishing marks on his face and as having a “medium" voice. It was not until approximately 19 months later that she next saw appellant in person, but she then readily and positively identified him as the person who stabbed her. Although she could not identify appellant when she viewed the lineup pictures, she said that he appeared to be “familiar,” and that she believed she could identify the person if she saw him in person. Sandra Clemens clearly had an adequate independent basis for her in-court identification.

We have read carefully the transcript and the briefs concerning the pretrial identification procedures, and we find no basis for appellant’s contention that the procedures were impermissibly suggestive. We also find that Sandra Clemens and Joyce Sullivan (although appellant abandoned his contention as to Joyce Sullivan) had an adequate independent source to support an in-court identification. Therefore, the trial court did not err in refusing to suppress such testimony.

Appellant’s second point is that the trial court erred in admitting into evidence “a picture of items in the bottom drawer of a dresser in a bathroom at 1338 Banneker, two shotgun barrels, a bandolier, a hacksaw, a .16 gauge bridge shotgun, and an unidentified man’s brown leather wallet, all of which the State failed to connect in any way with the Cousin Hugo’s robberies, assaults, and killings, and which highly prejudiced the defendant and inflamed the jury.”

Appellant was charged by indictment with two counts of murder in the first degree, two counts of robbery in the first degree by means of a dangerous and deadly weapon, and two counts of assault with intent to kill. He was found guilty of only one count of robbery and one count of assault, but the State was entitled to offer evidence in support of all the counts of which appellant was being tried.

Appellant and three other persons were arrested at 1338 Banneker within hours after the commission of the crimes. The police were given permission to enter the house. There is no issue here concerning the legality of the search. Various items were found in the house and seized by the police, and at trial were offered in evidence by the State. Appellant contends it was error to admit the various items in evidence because they were not connected to the commission of the crimes with which he was charged and were highly prejudicial and inflammatory.

It has long been the rule that items are sufficiently connected to a defendant when they are found in the possession of his criminal associates. State v. Cuckovich, 485 S.W.2d 16, 23 (Mo. banc 1972). A thorough consideration was given to the issue of the admissibility of most if not all of these same items in the companion cases of State v. Johnson, 539 S.W.2d 493 (Mo.App.1976); and State v. Toney, 537 S.W.2d 586 (Mo.App.1976); and State v. Hill, supra. In each case it was held that the items were admissible in evidence. No factual distinction exists that would compel or justify a different result in this case. We see no occasion to elaborate in this opinion the reasons for the results there reached. Instead, we adopt by reference the rulings in the above cited cases.

Appellant next asserts that he was denied due process and equal protection of law when the trial court refused his request that he be furnished at public expense a complete transcript of his previous trial which ended in a mistrial after the jury did not reach a verdict.

Appellant’s first trial began October 1, 1973 and ended in a mistrial on October 13, 1973. On October 17, appellant’s counsel requested the court reporter to prepare a transcript of all the proceedings in the first trial. The reporter immediately advised appellant’s counsel that the preparation of the transcript, estimated to be 1,500 pages (the transcript in this trial exceeds 1,400 pages), prior to the setting for the second trial would be “physically impossible to accomplish.” The reporter stated that if appellant’s counsel wished the testimony “of perhaps three witnesses” she would try to prepare the same. On October 26, a hearing was held by the trial court on appellant’s request for a free transcript. At this time appellant’s counsel again requested a transcript of all the proceedings except he excluded the voir dire examinations, the opening statements and closing arguments, and the instructions. He particularly specified that the transcript include the testimony of Sandra Clemens at the hearing on the motion to suppress and at trial, and the testimony at the trial of Joyce Sullivan, Tom Koons and Sergeant Boulch. The court stated that the preparation of the requested transcript before December 3, the date set for trial, was impossible. Appellant’s counsel admitted that he had depositions of each witness who testified at the previous trial and a transcript of the testimony of every witness who had testified at the trial of Theodore Johnson who was one of those arrested at the time appellant was arrested. The court then directed that the testimony at appellant’s first trial of Sandra Clemens, Joyce Sullivan, and Thomas Koons be furnished to appellant, but it denied the request in other respects “in view of the fact that depositions of all witnesses and a transcript [the Johnson trial transcript] * * containing testimony of the same witnesses in an event of the same occurrence has been made available to you.” We note here that appellant made no request for a continuance so that the reporter would have time to prepare a transcript as requested, and he indicated no person by name whose testimony he wanted which was not furnished to him, unless it was that of Sergeant Boulch, but there is no contention on this appeal that any prejudice resulted from the failure to obtain that particular testimony.

Appellant relies primarily on Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). In that case the petitioner was tried for murder and the first trial ended in a “hopeless deadlock.” A retrial was scheduled for the following month. The petitioner filed a motion requesting a free transcript of the first trial on the basis that he was indigent. The Supreme Court of the United States stated that “Griffin v. Illinois [251 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956)] and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal * * (Italics added.)

There is no equal protection issue here. Appellant was not denied the transcript because he was indigent. See State v. Ambus, 522 S.W.2d 306, 310 (Mo.App.1975). He was furnished portions of the transcript for which he had expressed a particular interest, but was not furnished those portions which could not be prepared within the time available. Those portions would not have been “available for a price” to a non-indigent. The concept of equal protection, although greatly expanded in recent years, does not require the granting to an indigent accused rights or privileges not available to the non-indigent.

Appellant argues, however, that the trial court erred when it “forced” his counsel to “choose” the testimony of only three witnesses. He asserts, without setting out in what respects, that this “interfered with [his] right to control his client’s defense and [it] improperly interjected the Court into the defendant’s case.” We find nothing in the record to the effect that the court “forced” counsel to choose the testimony of only three witnesses. It was the reporter who suggested that if appellant’s counsel wished the testimony of “perhaps three witnesses” she would try to transcribe it. It was appellant’s counsel who, in making his request for a transcript “of all proceedings” excluding certain portions, stated that the transcript should specifically include the testimony of four named witnesses. There is nothing in the record to indicate that if specifically requested, and the reporter could have performed the task, that the testimony of some other witness would not have been furnished.

Appellant also asserts he had “an absolute Constitutional right to the transcript * * * when his attorney requested it because the Missouri Constitution Article I, Section 14 guarantees that the courts shall be open to everyone.” No cases are cited. He argues that since reporters are officers of the court and are paid a salary by the state that is “more than the average Public Defender” they should “provide transcripts of recorded proceedings upon request of counsel.” We fail to see how the cited provision of the Missouri Constitution or the compensation of court reporters have any bearing whatever on appellant’s right to obtain a free transcript of the proceedings of the previous trial in the circumstances of this case.

Appellant’s final argument under this point is that Missouri “can show no compelling State interest for providing transcripts to guilty criminal defendants who appeal after trial or wish to challenge their pleas of guilty, while not providing a transcript to a still innocent indigent defendant who was retried after a mistrial, * * * The immediate answer to this contention is that Missouri does not refuse to provide a free transcript of a previous trial to an indigent defendant when there is a reason to have it and when it is physically possible to provide it.

As previously noted, appellant’s counsel requested a physical impossibility, but the trial court attempted to comply with his request insofar as possible under the circumstances. Appellant made no request for a delay in the second trial so that the transcript could be prepared. In meeting the problem of congested court dockets and the requirement that an accused be afforded a speedy trial, the courts are entitled to the cooperation of counsel. We gather the impression that appellant’s counsel preferred to preserve a contention of error for purposes of appeal rather than cooperate with the court in obtaining those portions of the transcript for which there was a genuine need and to proceed expeditiously with the trial.

Appellant’s fourth point is that the trial court abused its discretion in giving Instruction No. 22 [MAI-CR 1.10] and No. 23 [MAI-CR 4.50] “in conjunction” after the jury had begun deliberations but before they had indicated an inability to reach a verdict. He asserts that when given “in conjunction” the two instructions “were im-permissibly coercive in reiterating to the jurors their duty to reach a verdict” and constituted an “impermissible intercession by the Court into the special province of the jury which caused the jury to compromise [appellant’s] constitutional rights to a fair trial.”

The jury began its deliberation at 2:30 o’clock in the afternoon of December 14, 1973, and recessed at 10:15 o’clock. Deliberation was resumed the next morning at 9:30 o’clock. At 12:00 o’clock noon the jury notified the court for the second time that they were “dead-locked,” and for the second time requested that a transcript of the testimony of Joyce Sullivan be furnished to them. This clearly demonstrates that appellant’s assertion that the jury had not “expressed an inability to reach a verdict” is contrary to the record and totally without merit. The court advised the jury that a transcript of the testimony of Joyce Sullivan could not be given to them, and it gave to the jury in writing Instruction No. 22, which advised the jury that it was desirable that a verdict be reached, and Instruction No. 23, which advised the jury that if it found the appellant guilty as to a particular count but could not agree on the punishment the court would fix the punishment. Approximately two hours later the jury reached a verdict in which it found appellant guilty of two counts and not guilty as to the others, but it declared that it could not agree on the punishment.

This trial occurred prior to January 1, 1974, when the use of MAI-CR became mandatory, but the use of the MAI-CR forms was permissible, and what subsequently became mandatory is a reasonably good standard of what was appropriate at the time of the trial of this case.

The main thrust of appellant’s argument is that it was prejudicial for the court to give the two instructions “in conjunction.” He asserts that each instruction is “potentially prejudicial.” He agrees, however, that when given separately “the possibility of undue prejudice is avoided,” but he asserts that when given “in conjunction, the urgency of the request that a verdict be returned * * * compounded with the suggestiveness of guilt * * * encourages a jury to rush to return a guilty verdict.”

The use of an Instruction in the language of MAI-CR 1.10 (Instruction No. 22) has been approved prior to the mandatory use of MAI-CR. State v. Foster, 501 S.W.2d 33 (Mo.1973). Rule 20.02(a) now provides that it may be given, when appropriate, after extended deliberation by the jury. In this case the jury had deliberated for approximately ten hours. When a jury is unable to arrive at a verdict, it is within the discretion of the trial judge whether such an instruction should be given, and also as to when it should be given. State v. Jenkins, 516 S.W.2d 522, 528 (Mo.App.1974). The nature of the case and the number of issues properly would have a bearing on when the Instruction should be given, but deliberation for ten hours in this case unquestionably meets the requirements that the deliberation be extended. See State v. Jenkins, supra, when the period of deliberation was three and one-half hours, and State v. Barron, 465 S.W.2d 523 (Mo.1971), where the period was three hours.

As to Instruction No. 23 in the form of MAI-CR 4.50, it does not, as appellant asserts, contain a “suggestiveness of guilt.” To assert this implies a contention that jurors are not sufficiently intelligent to read the other instructions in connection with the clear and unequivocal language in Instruction No. 23 that: “If you unanimously find the defendant guilty as to a particular Count, you should fix his punishment as to that Count. If, however, after due deliberation, you find the defendant guilty as to a particular Count, but are unable to agree upon his punishment as to that Count, you will complete the verdict form so stating, and in that event the Court will fix the punishment.” We find no abuse of discretion on the part of the trial court in giving either of these two instructions when it did, and we find no merit whatever in appellant’s contention that giving them “in conjunction” was an abuse of discretion.

Appellant’s fifth point is that the verdict was “legally inconsistent and ignored the instructions of the Court.”

By indictment, appellant was charged with the murder of John M. Gallino (Count I), the policeman who was shot in the head with a shotgun; with the murder of John M. Hagerty (Count II), the patron who was stabbed; with an assault upon Sandra Clemens by use of a knife with intent to kill (Count III); with an assault upon Owen Kelly with a shotgun with intent to kill (Count IV); with the robbery of Francis E. Holker, doing business as Cousin Hugo’s, of $1,000.00 which was in the custody of Sandra Clemens (Count V); and with the robbery of Sherrell Hagerty (Count VI). By its verdict the jury found appellant guilty only of Counts III and V, or only those counts in which he was charged with committing an act against Sandra Clemens.

Appellant argues that a finding of not guilty of Counts I, II, IV, and VI was “a finding that [he] was not present, and therefore not one of the persons who committed the offenses connected with the robbery of Cousin Hugo’s on March 18, 1972,” and that this finding precluded “an inconsistent finding that [he] was present but committed only the specific crime of assault and robbery of [Sandra] Clemens.” This contention is totally without merit.

The verdict was not inconsistent. The instructions submitting the two murder charges, the charge of assault upon Owen Kelly, and the charge of robbery of Sherrell Hagerty (the charges of which appellant was found not guilty) each required the jury to find that appellant “knowingly and with common purpose acted together with the said person who engaged in the conduct submitted in the above paragraphs.” Each Instruction also contained the provision that if the jury did not find and believe from the evidence beyond a reasonable doubt “each and all of the foregoing,” it “must” find appellant not guilty of the offense there submitted. However, the instructions submitting the assault upon Sandra Clemens and the robbery by taking money in the custody of Sandra Clemens respectively required a finding only that “the defendant stabbed one Sandra Clemens” and that “the defendant * * * took the property from said Sandra Clemens.” Therefore, if the jury did not believe beyond a reasonable doubt that appellant “knowingly and with common purpose acted together” with the person or persons who in fact committed the offense charged, the instructions of the court told the jury that it “must” return a verdict of not guilty of the offense charged. But, in order to find that appellant committed the two offenses of which he was found guilty, there was no requirement that the jury find that he “knowingly and with common purpose” acted with anyone, but only that he stabbed Sandra Clemens and that he took the money from her. “When a defendant is charged with committing two criminal offenses that involve different elements, a jury may find him guilty of one crime and acquit on the other charge.” State v. Thomas, 452 S.W.2d 160, 164 (Mo.1970). The verdicts of the jury as to each count were logical and consistent, and they certainly did not indicate that the jury “ignored the instructions of the Court.” Also, the verdict of not guilty of the four counts did not mean, as appellant argues, that the jury found that appellant was not present at Cousin Hugo’s.

Assuming for argument purposes only that for some reason the verdicts as to the four counts and the verdict as to the two counts may be considered to be inconsistent, a reversal of the judgment of conviction is not required. State v. Amerson, 518 S.W.2d 29, 33 (Mo.1975). In Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), it was stated: “Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment * * * . That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” See also State v. Larkins, 518 S.W.2d 131, 137 (Mo.App.1974), and the numerous cases cited in the annotation at 18 A.L.R.3d 259.

Appellant next asserts in his sixth point that the trial court erred “in considering appellant’s alleged admission to a probation officer in sentencing [him] to a maximum sentence on [each count] because of [that] admission.” He argues that he had not waived his rights against self-incrimination and did not have his attorney present during the interrogation by the probation officer.

Immediately after the jury rendered its verdict appellant requested that a presen-tence investigation be conducted. In the exercise of its discretion, State v. Tettamble, 517 S.W.2d 732 (Mo.App.1974), such investigation was ordered. At the time of allocation and sentencing the trial court noted for the record that the State Board of Probation and Parole recommended that appellant not be considered for probation, and the court then read into the record a portion of the record in which the probation officer stated that he had questioned appellant about his involvement in “this offense,” and that he had stated “somewhat hesitantly” that he was with his four co-defendants at the time of the offense, that it was “a spur of the moment thing,” and that “he played the part of the knife man.”

The entire report is not in the record. Appellant’s counsel then objected to the court “reading from that report” on the ground that “whatever statements are contained in that pre-sentence investigation would not be for public knowledge, but for the Court’s consideration, and * * * any of this testimony that is read by the Court of this nature, is in the nature of hearsay, and [appellant] has [no] opportunity now that it has been made public to at least address himself to the Court to explain any of the discrepancies if there are, contained in that report, or whether or not the report is factual.” The court then conducted allocation, and in the course thereof asked appellant if he had “anything to say” concerning the presentence report. Appellant replied as follows:

“Your Honor, I wasn’t sure of him, or he wasn’t sure of himself to come to question me about that, and I just assumed it was an investigation to bring this report back over, and to just go over it, and I refute it, whatever it was. I didn’t understand. I wanted to write in my reasons. I didn’t understand, and then he come back over with it for me to write on it. He said he’d have to check with the Judge.”

It thus appears that appellant did have the opportunity to “address himself to the Court” and to explain any claimed discrepancies.

Subsequently, in response to a plea by appellant’s counsel concerning punishment, the court announced that “probation is not being considered, partly due to this probation record and also due to the jury finding him guilty of two felonies in connection with this robbery at Cousin Hugo’s and because of his involvement in that robbery.”

On this appeal appellant asserts that it was error for the court to consider the portion of the presentence report to which reference is above made because he “had never waived his rights against self-incrimination under Miranda v. Arizona,” and he “did not have his attorney present [during] the probation officer’s interrogation.”

Appellant requested the presentence investigation. Therefore, whatever information it contained got into the hands of the Court by reason of appellant’s request. At the time of sentencing he did not object to the fact that the court had knowledge of its contents, but to the fact that by reading a portion into the record that portion had been made public, and that the information in the report was hearsay. Neither of the objections now asserted to this court on appeal were presented to the trial court. While we are convinced that appellant’s point, if properly preserved for appellate review, is totally without merit, objections not presented to or expressly ruled by the trial court are not preserved for appellate review, Federal Deposit Insurance Corporation v. Crismon, 513 S.W.2d 305 (Mo.1974), and appellant may not alter or broaden the scope of his objection on appeal. State v. Atkins, 494 S.W.2d 317, 319 (Mo.1973); State v. Larkins, 518 S.W.2d 131, 134 (Mo. App.1974). If objection to the consideration by the court of the presentence report, or parts of it, had been made for the reasons now advanced, whether or not legally meritorious, the court may have complied with his request. The orderly trial of cases cannot permit this form of entrapment of the trial judge.

Appellant’s final point is that the trial court erred in sentencing appellant to consecutive life terms.

At the time of the trial of this case § 546.480, RSMo 1969, required the two sentences to be served consecutively. The trial court directed that the life sentence for the robbery and the life sentence for the assault with intent to kill be served consecutively. It may be presumed, in the absence of other reasons appearing of record, that the court did so in compliance with what was then the requirements of § 546.-480. However, in 1975 the Supreme Court of Missouri ruled § 546.480 to be unconstitutional. The trial court now has the authority to exercise judicial discretion whether to impose concurrent or consecutive sentences on the two-count conviction. Therefore, the cause must be remanded for that limited purpose.

The judgment of conviction is affirmed; the “mandatory” consecutive life sentences are set aside and the cause is remanded for the limited purpose of resentencing by the court in an exercise of discretion whether to impose the sentences in question consecutively or concurrently.

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


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. William Donald LINDLEY, Appellant.
    No. 37293.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 7, 1976.

      David M. Johnson, Daniel B. Hayes, Clayton, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Daniel M. Buescher, Pros. Atty., Joseph R. Au-buchon, Asst. Pros. Atty., Union, for respondent.
   DOWD, Judge.

Defendant, William Donald Lindley, was convicted by a jury of burglary in the second degree and stealing and sentenced to consecutive terms of eight years for burglary and two years for stealing in the Missouri Department of Corrections. §§ 560.045, 560.110 RSMo 1969.

The victim, Myron Weible testified that on September 18, 1974 he left his trailer at 4:15 p. m., locking the doors and windows as he left. Upon his return at 11 p. m. he discovered a window broken and his stereo equipment missing. Weible testified that although he knew the defendant, he had not given him permission to borrow the equipment at a party several days before the burglary, as defendant contended. On cross examination Weible admitted drinking alcohol at the party, but denied he was so drunk that he might have forgotten he gave defendant permission.

The police arrested the defendant after discovering him with the stolen equipment at the trailer of a Mr. McGee. The police went to McGee’s trailer after Ms. Lana Sherwood informed the police that she suspected the defendant and McGee had stolen the equipment. Sherwood testified that at McGee’s request she drove him and the defendant to Weible’s trailer to pick up some marijuana. At Weible’s trailer she observed McGee walked behind the trailer, heard glass breaking, and then saw the defendant enter the front of the trailer. Subsequently, she observed the two men carrying away stereo equipment from the trailer.

The defendant testified that he entered Weible’s trailer by pushing out a piece of cardboard used to replace a missing window. He took the equipment under the belief that Weible had given him permission to enter the trailer and borrow the equipment at any time. He stated that he told police that he borrowed the equipment. The arresting officers testified that defendant told them that he had purchased the equipment the night before and made no mention of borrowing it.

The defendant raises two issues on appeal. First, that the trial court committed plain error and deprived the defendant effective assistance of counsel by denying the defense counsel’s motion for leave to withdraw or in the alternative granting a continuance. The grant of leave to withdraw and grant of continuance is within the sound discretion of the trial court. State v. Wilkinson, 423 S.W.2d 693, 697[3] (Mo.1968); Hammack v. White, 464 S.W.2d 520 523[7] (Mo.App.1971).

Defendant’s attorney, the Public Defender appointed by the court, filed his motion to withdraw seven days before trial. In it he alleged that defendant failed to cooperate in his defense in that he failed to keep in contact with his attorney, failed to answer phone calls and letters from his attorney, and failed to give complete assistance in the preparation of his own defense. While the record shows a lack of pretrial cooperation on the defendant’s part, the defendant’s attorney stated at trial that despite the lack of cooperation he would do his best. The record does not show that the defendant would have cooperated with another lawyer, or that another lawyer could have handled the case in a more competent manner. State v. Hollins, 512 S.W.2d 835, 838[5] (Mo.App.1974).

After carefully examining the record before us we find that counsel appears to have performed capably and diligently, and therefore the trial court did not abuse its discretion in denying leave to withdraw. See State v. Riley, 394 S.W.2d 360[3] (Mo. 1965). Nor was the denial of continuance error, since there is no showing that a continuance would have benefited the defendant’s defense.

While the record is sufficient to decide that the court did not abuse its discretion in denying a motion to withdraw, it is not sufficiently developed to decide whether the defendant was denied effective assistance of counsel. Any further consideration by this court of defendant’s allegations that he was denied effective assistance of counsel would be inappropriate. Allegations of ineffective assistance of counsel are not ordinarily reviewable on direct appeal from the judgment of conviction. State v. Johnson, 460 S.W.2d 731, 732[1] (Mo.1970). A proceeding under Rule 27.26 V.A.M.R., wherein the issue can be fully explored in an evidentiary hearing, is the usual remedy. State v. Cluck, 451 S.W.2d 103, 107[8] (Mo.1970). Allegations of ineffective assistance of counsel will be considered on direct appeal as plain error under Rule 27.20(c) V.A.M.R., if allegations arise from isolated instances and the record as to each of them is fully developed. State v. Phillips, 460 S.W.2d 567, 569[3] (Mo.1970).

Defendant supports his claim of ineffective assistance of counsel by numerous allegations, including: (1) failure to make objections during trial, (2) failure to cross examine any police officers, (3) counsel’s attempted impeachment of a witness was actually damaging to the defense, (4) counsel failed to call certain key witnesses, and (5) counsel wrongly emphasized certain contentions in his motion for new. trial... Collect, tively, defendant’s allegations attack counsel’s performance for the entire trial. More importantly, however, each allegation is either not an isolated instance or is not fully developed on the record. Thus, defendant’s first point must be ruled against him.

Defendant’s second point on appeal is that the trial court erred in denying a new trial after defendant alleged he discovered new evidence likely to change the outcome of the trial. Rule 27.19(a). The trial court has broad discretion in determining whether to grant a new trial on the basis of newly discovered evidence, and the courts do not favor granting new trials on that ground. State v. Harper, 473 S.W.2d 419, 421[1] (Mo.1971). A new trial will not be granted unless the defendant’s motion for new trial shows, “(1) That the evidence first came to his knowledge since the trial; (2) That it was not owing to want of due diligence that it did not some sooner; (3) That it was so material that it would probably produce a different result if the new trial were granted; (4) That it was not merely cumulative; (5) That the object of the testimony was not merely to impeach the character or credit of a witness; (6) The affidavit of the witness himself should be produced, or its absence accounted for.” State v. Whitaker, 312 S.W.2d 34, 41[15] (Mo.1958).

Defendant offers as new evidence (1) the testimony of several witnesses that Myron Weible did not own or rent the trailer, but merely had “access to it”, and therefore the Missouri burglary statute was improperly applied, and (2) the testimony of Weible’s brother that Weible gave the defendant permission to use his property many times in the past, and therefore the defendant’s conviction was based on perjured testimony of Weible. In raising the issue defendant fails to meet the requirements of State v. Whitaker, supra.

There is no showing by the defendant that post-trial discovery was not owing to defendant’s want of due diligence. See State v. Green, 305 S.W.2d 863, 873[20] (1957). All of the new evidence would seem to be easily discoverable prior to trial. See State v. Harris, 413 S.W.2d 244, 247[4] (Mo. 1967).

The challenge as to the applicability of the burglary statute, 560.045 RSMo 1969, based on the new evidence that the victim was not the owner of the trailer, is without merit. Missouri law requires that the information charging burglary allege ownership or, if title is immaterial, occupancy or possession of the premises at the time of the burglary. State v. Peterson, 305 S.W.2d 695, 698[5] (Mo.1957). Where, as is the case here, the information stated the victim was the owner of the property but the evidence showed that he was only a tenant or occupant the information is still sufficient to state the ownership necessary to meet the requirements of the state law. State v. Yearwood, 510 S.W.2d, 43, 45[4] (Mo.App. 1974).

The evidence of Weible’s brother does not meet the Whitaker test, because by defendant’s own admission it is only impeaching evidence. It is not, as defendant further alleges, perjured testimony upon which the conviction was based. Defendant’s proffered evidence from Weible’s brother shows only that Weible gave defendant permission to use his property in the past, but yields no direct proof that permission was given at the party to use the stolen property. Weible’s testimony, that he never gave the defendant permission to enter his trailer, which defendant claims is perjured, was in response to a question inquiring about permission given the night of the party. Weible made no statement regarding past instances of the defendant borrowing his property. The testimony of Weible’s brother is at best impeaching testimony and therefore the trial court did not err in denying a new trial.

The judgment is affirmed.

WEIER, P. J., and CLEMENS, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Ralph BOHLEN, Defendant-Appellant.
    No. 37369.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 7, 1976.
    Raymond Howard, Jr., St. Louis, for defendant-appellant.
    Brendan Ryan, Circuit Atty., Thomas W. Shannon, Pros. Atty., Dennis F. Kay, Asst. Pros. Atty., St. Louis, for plain tiff-respondent.
   DOWD, Judge.

The defendant was indicted for common assault. § 559.220 RSMo 1969. The defendant waived a trial by jury. Defendant was tried by a judge of the St. Louis Court of Criminal Correction, found guilty, and was sentenced to six months in the City Workhouse.

The assault took place in a schoolyard on May 24, 1974. Defendant struck the victim, Mr. Willie Cole, with his fist and threw bricks at him. One school child also hit the victim with a brick.

The victim was knocked unconscious and sustained injuries to the back of his head and his ear. His lip required several stitches, and he suffered a broken leg. Eighteen months after the assault the victim was still on crutches.

Defendant did not deny the assault at trial but claimed it was in self defense. His sole point on appeal is that the verdict was “against the weight of evidence as a matter of law.”

In a jury waived criminal case the findings of the court have the force and effect of the verdict of a jury. State v. Odzark, 532 S.W.2d 45, 49[6] (Mo.App.1976). Therefore, the appellate court does not weigh the evidence. State v. Simmons, 494 S.W.2d 302, 303[2] (Mo.1973); State v. Graham, 527 S.W.2d 936, 947[16] (Mo.App.1975). The weighing of the evidence is a matter for the trial judge who hears the witnesses and is in a position to judge their credibility. State v. Minor, 531 S.W.2d 101, 102[1] (Mo.App.1975). The point is without merit.

The judgment is affirmed.

WEIER, P. J., and CLEMENS, J., concur.


author: McMILLIAN, Presiding Judge.

text:
    R. D. EVANS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36976.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 7, 1976.
    Jeffrey J. Shank, Asst. Public Defender, Robert C. Babione, Public Defender, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., William P. Arnet, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Co-sentino, Asst. Circuit Atty., St. Louis, for respondent.
   McMILLIAN, Presiding Judge.

Appellant appeals from a judgment of the circuit court of the City of St. Louis denying, after an evidentiary hearing, his second Rule 27.26, V.A.M.R., motion to vacate his conviction of murder in the first degree and a sentence of life imprisonment entered by the circuit court on 27 October 1966. The record shows that the Missouri Supreme Court previously affirmed appellant’s direct appeal. 439 S.W.2d 170 (1969). The sole ground for relief on the direct appeal was that the trial court erroneously admitted into evidence appellant’s confession, given at a time when he was without counsel and allegedly not properly warned of his right to counsel. Although the court affirmed the judgment it found (1) that appellant’s statement was the product of an in-custody interrogation, without adequate warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (2) that the trial court had not erred in admitting the statement because appellant’s counsel failed to make a specific objection based upon Miranda grounds. After the affirmance of the judgment on direct appeal, without the assistance of counsel, appellant filed his first Rule 27.26 motion to vacate his sentence and judgment.

Neither of the grounds asserted in the present motion was alleged in his first Rule 27.26 motion. See Evans v. State, 465 S.W.2d 500, 501 (Mo. 1971) wherein the court denied appellant’s first motjon.. Specifically appellant alleges in the instant Rule 27.26 motion: (1) ineffective assistance of counsel, and (2) the involuntariness of his confession. To excuse his failure to raise either issue in his first Rule 27.26 motion appellant points to the fact that on his initial motion he was proceeding pro se. Stated another way, in essence, appellant seeks to excuse his failure to include his present allegation in his initial motion because of his lack of legal knowledge.

Rule 27.26(d) provides that a second or successive Rule 27.26 motion shall not be entertained where the ground presented in the subsequent motion was raised and determined adversely to the movant in a prior motion, or where the grounds presented in a second or successive motion could have been raised in the first motion pursuant to Rule 27.26(c). With respect to the latter, a burden is imposed upon movant to establish that any new ground raised in the second motion could not have been raised by him in a prior motion. The imposed burden requires appellant to allege a reason or reasons which, if established by proof, would authorize a finding that movant could not have previously presented these new grounds. Jones v. State, 521 S.W.2d 504, 506 (Mo.App.1975), citing Nolan v. State, 484 S.W.2d 273, 274 (Mo.1972). In Jones, supra, the excuse offered in the second motion to excuse movant’s failure to include the allegations therein charged in his first motion was a lack of legal knowledge. Citing Grant v. State, 486 S.W.2d 641, 643 (Mo.1972), the court said, “. . . The bare allegation of ‘lack of legal knowledge’ will not authorize a finding that appellant could not have previously presented the new ground . . . .” Accordingly, the court held that in view of the absence of any other alleged reason or reasons, Jones failed to meet the burden imposed upon him by Rule 27.26(d).

Here appellant’s tendered excuse that he filed his initial motion pro se, without more, is not sufficient to support a finding that he could not have previously raised these grounds in his initial motion. Consequently, in our view, appellant has failed to sustain the burden placed upon him in this regard by Rule 27.26(d). Jones v. State, supra and Grant v. State, supra.

Accordingly, judgment is affirmed.

STEWART and RENDLEN, JJ., concur.

      . See also Evans v. Swenson, 332 F.Supp. 360 (E.D.Mo.1971) wherein the district court found that the warnings given by the police officer to appellant as to his right to remain silent and as to his right to counsel satisfied the Miranda requirements in all respects. In Evans v. Swenson, 455 F.2d 291 (8th Cir. 1972), the Court of Appeals affirmed the judgment, cert. den. 408 U.S. 929, 92 S.Ct. 2508, 33 L.Ed.2d 342 (1972).


author: CLEMENS, Judge.

text:
    Gordon JENKINS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37,959.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 14, 1976.

      Scott Richardson, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Co-sentino, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

Movant Gordon Jenkins has appealed denial of his Rule 27.26 motion to vacate sentence.

A jury had found movant guilty of attempted first degree robbery by means of a dangerous and deadly weapon and of assault with intent to kill with malice. The court sentenced movant to consecutive 15-year terms of imprisonment. Conviction was affirmed on appeal. State v. Jenkins, 516 S.W.2d 522 (Mo.App.1974).

Movant’s sole contention on appeal is that the trial court erred in failing to correct his 15-year sentence for attempted first degree robbery. Section 560.135, RSMo. 1969 provided that “every person convicted of robbery in the first degree by means of a dangerous and deadly weapon shall suffer death, or be punished by imprisonment in the penitentiary for not less than five years.” As to attempts, that statute declares: “(3) If the offense so attempted be punishable by imprisonment in the penitentiary, and a maximum punishment be prescribed therefor, the person convicted of such attempt shall be punished by imprisonment in the penitentiary for a term not exceeding one-half of the longest time prescribed for such offense, but if no maximum punishment be prescribed, the person so convicted shall be punished by imprisonment in the penitentiary for as long a time as the jury or court assessing the punishment may deem proper to impose . . .” Here, the statute provided a minimum of five years’ imprisonment but no maximum number of years, so the 15-year sentence was permissible.

Since the sentence was within the statutory range it is not subject to movant’s challenge that it was excessive. State v. Phillips, 480 S.W.2d 836[4] (Mo.1972).

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.

      . This was the statute in effect at the time of movant’s trial.


text:
    T. Walter KIRK et al., Respondents, v. Richard Adolph KAELIN, Appellant.
    No. 36609.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 14, 1976.

      Lloyd E. Baker, Clayton, for appellant.
    Wiley, Craig, Armbruster & Wilburn, Barbeau A. Roy, St. Louis, for respondents.
   CLEMENS, Judge.

Equitable action by plaintiffs-trustees of an employees’ welfare fund and pension trust. Plaintiffs contend defendant-employer hired employees who were beneficiaries of the funds but that defendant had not paid into those trusts as agreed. Defendant filed only a general denial. In a court-tried case the trial court gave plaintiffs judgment for $10,245 and defendant has appealed.

Defendant Richard Adolph Kaelin signed collective bargaining agreements establishing the trust agreements (hereafter Welfare Fund) and an indenture (hereafter Pension Trust). Each required defendant to contribute to the trust funds for each hour worked by defendant’s employees covered by the agreements. Employer contributions and reports were to be submitted to the Welfare Fund and Pension Trust on behalf of each employee for every hour worked “in the unit consisting of building and common laborers who are employed by the employer on its work located in the City and County of St. Louis, Missouri.”

Defendant submitted reports and contributions covering employment through April 30, 1966. His last contribution paid to each fund was on February 24,1967. As provided by the agreements, plaintiffs’ auditing firm reviewed defendant’s records for that period. The auditor reviewed earnings sheets showing the gross pay of defendant’s employees; he compared the earnings of employees listed with the known hourly rate of laborers during the period audited and questioned defendant about those employees listed on the sheet who were performing laborer’s work. The auditor prepared a breakdown of the hours worked by defendant’s employees which were not reported to the funds. He did not inquire about the union membership status of the named employees. The auditor determined defendant owed contributions to the Welfare Fund of $4,654.95 and $5,590.60 to the Pension Trust. Judgment was awarded against defendant for those amounts.

On appeal defendant contends there was no evidence to support two essential elements of plaintiffs’ claims — whether plaintiffs’ evidence showed defendant’s employees were employed as laborers and whether the employees were engaged in defendant’s work within the City or County of St. Louis.

Plaintiffs had pleaded that during the time in question defendant had employed “building constructions and common laborers who are represented” by the laborers’ unions. At trial there was a complex colloquy as to whether defendant’s employees were union members, but we must first find whether defendant employed “building constructions and common laborers.” The record shows no evidence defendant’s employees were laborers, so we need not reach the question of union membership.

Plaintiffs’ auditor testified defendant had furnished him the “earnings sheets of the employees of Aalco Paving Company.” He said he had “asked Mr. Kaelin to [sic] which ones were laborers, performing a function of laborers.” No answer to this question appears in the record. Attempting to establish which of defendant’s employees were laborers, the auditor said he first obtained from his auditing company’s files the rate paid to laborers for the time period in question and then compared that with the hourly rate on defendant’s earnings sheets. From that computation the auditor “picked up those people who are hourly rates, compared as laborers, and [he] also picked up people that Mr. Kaelin said . .” At this point the trial court sustained defense counsel’s hearsay objection. Plaintiffs failed to make the essential offer of proof after the trial court sustained the objection. We must grant defendant’s contention that a finding that all employees were laborers is not supported by the evidence.

On the second issue there was no evidence to show all defendant’s employees were employed on his work in the City or County of St. Louis. Such evidence was essential because the agreements provided for contributions only for work at those places.

Since plaintiffs failed to prove defendant’s employees were laborers working within the specified areas we must reverse the plaintiffs’ judgment. Murphy v. Carron, 536 S.W.2d 30[l-3] (Mo.1976) and Rule 73.01, subd. 1.

This leads to the question of whether we should reverse the judgment outright or remand the cause for a new trial. The two critical points — whether certain employees were laborers and whether they worked within the prescribed area — were not emphasized in either the pleadings or at trial. The conclusions reached by plaintiff’s auditor as to the status of defendant’s employees and their place of employment were based on inferences and summaries he drew from defendant’s submitted records. The audit was not therefore based on the best evidence and pre-trial discovery was not utilized. Neither point now stressed was raised in an after-trial motion. Defendant’s present challenges to the sufficiency of plaintiffs’ evidence came into full bloom only on appeal.

We have faulted plaintiffs for not fully developing the extent of defendant’s liability, but it seems probable with the critical issues now pinpointed plaintiffs may be able to make a submissible case.

In Finnegan v. Missouri Pac. Ry. Co., 244 Mo. 608,149 S.W. 612[3] (1912), the supreme court addressed the issue of remanding for a new trial, saying “a hiatus in the proof likely to be supplied is good reason to remand.” We followed that principle, as authorized by Rule 84.14, by granting a new trial in Bolhofner v. Jones, 482 S.W.2d 80[7, 8] (Mo.App.1972), saying: “Even though a plaintiff does not make a submissible case, where all pertinent factual information was not presented on trial an appellate court may remand the case for a new trial.” Such appellate disposition is explained- in Swope v. Printz, 468 S.W.2d 34[14] (Mo. 1971): “The judgments must be reversed for failure of proof. Since the record does not indicate that all available essential evidence has been fully presented and that no recovery can be had in any event and that on a new trial plaintiffs may be able to make a submissible case the cause is remanded for a new trial on all issues . .” See also Rockett v. Pepsi Cola Bottling Company, 460 S.W.2d 737[3, 4] (Mo.App.1970): Household Finance Company, Inc. v. Watson, 522 S.W.2d 111[15] (Mo. App.1975); and the host of cases annotated at 33 Mo.Dig., “S=> 1177(7).

Judgment is reversed and the case remanded for a new trial on all issues, with instructions to the trial court to permit discovery proceedings and amendment of pleadings. Assessment of court costs should be delayed pending retrial.

WEIER, P. J., and DOWD, J., concur.

      . Keeshan v. Embassy Investment Company, 303 S.W.2d 666[1, 2] (Mo.App.1957).


text:
    Lowell MIDDLETON, Appellant, v. MERAMEC MINING COMPANY, Respondent.
    No. 37521.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 14, 1976.
    Morris B. Kessler, St. Louis, for appellant.
    Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for respondent.
   CLEMENS, Judge.

The trial court affirmed an award of the Industrial Commission which had awarded plaintiff disability benefits but denied his claim for medical benefits. Plaintiff has appealed.

Once again this court has been prevented from reaching the merits of an appeal because of a deficient brief. There have been repeated warnings regarding the necessity of complying with Rule 84.04, VAMR. Webb v. City of Dexter, 538 S.W.2d 594[1, 2] (Mo.App.1976). This court can no longer ignore fatally defective briefs to reach the merits but will dismiss the appeal outright. Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223[3] (Mo.App.1972).

Plaintiff’s brief fails to comply with Rule 84.04(d) in that the Points Relied On section does not state what rulings of the trial court are sought to be reviewed, nor wherein and why the trial court erred. All four Points Relied On are mere abstract statements of law and provide nothing for review. Simpson v. Island View Sales Corp., 540 S.W.2d 624[1 — 3] (Mo.App.1976).

Appeal dismissed.

WEIER, P. J., and DOWD, J., concur.

      . PRO I: “The employer has the unqualified duty to provide medical care to an employee injured in the course and scope of his employment.”

        PRO II: “Where the.employer denies liability and the employee is forced to seek his own medical treatment the cost of the same is to be included in the award.”
      PRO III: “The law does not require the employee to do a useless task.”
      PRO IV: “In line with not requiring the employee to do a useless act, where the employer, as in this case, denies the accident and refuses medical care, then it is not necessary that the employee obtain a special order of the commission to get additional medical care beyond the one hundred eighty day period.”


text:
    STATE of Missouri, Plaintiff-Respondent, v. Jarrett WILLIAMS, Defendant-Appellant.
    No. 37611.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 14, 1976.
    Robert C. Babione, Public Defender, Mary Louise Moran, Christelle Adelman-Adler, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard G. Poehling, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Appellant, Jarrett Williams, was found guilty of Child Molestation by the court after waiving trial by jury and was sentenced to two years imprisonment. On appeal, the defendant challenges the court’s ruling and finding that the victim, a prosecuting witness who had testified that the appellant had twice inserted his finger into her vagina, was competent to testify.

The trial court twice overruled the appellant’s motions challenging the competency of the witness following a preliminary examination to determine the competency of the witness and following her testimony at trial. The victim testified that she was eleven years old and in fifth grade, that she knew what it meant to tell the truth, and that she was taught in Sunday School that people who tell lies get punished. She indicated that while she did not remember how long ago it was since last Christmas or what she did at that time, she did recall the last day of school and what she did then. The victim also testified that she did not know what a crime was or what jail was (although she later stated she knew what it was to be locked up for a crime) and that she did not remember the context of her oath. Some confusion on the victim’s part was revealed in that she was uncertain how her panties were removed or how and by whom they were put back on. One piece of the victim’s testimony was also contradicted by her nine year old sister who testified that she saw the appellant stick his finger into her sister only once.

There is a rebuttable presumption in Missouri that a child over the age of ten is competent to be a witness. § 491.060, RSMo 1969. The burden is on the challenging party to show the trial court clearly abused its discretion in finding the witness competent to testify. Sate v. Obie, 501 S.W.2d 513, 514[1] (Mo.App.1973). See also, State v. Young, 477 S.W.2d 114 (Mo.1972); State v. Watson, 536 S.W.2d 59, 60 (Mo. App.1976).

Appellant alleges that the trial court abused its discretion because the evidence shows that the witness failed to demonstrate a present understanding of the obligation to tell the truth, and an ability to retain an independent recollection of the observations she made. Although the appellant has pointed out confusion and inconsistency in the witness’ testimony, he has not met the burden of showing that the trial court clearly abused its discretion. To find a child witness competent, it is not required that the witness’ testimony be totally unambiguous and consistent. State v. Young, supra; State v. Obie, supra. It is not necessary that the child understand the term “oath”, only that she understands the obligation to give true testimony. State v. Ball, 529 S.W.2d 901, 905[5] (Mo.App.1975); State v. Watson, supra. A child is said to understand the obligation of telling the truth if she understands that punishment is the consequence of false testimony. State v. Jackson, 318 Mo. 1149, 2 S.W.2d 758, 760[2] (1928); State v. Ball, supra.

Although the victim’s testimony was not totally consistent throughout, her testimony was detailed and explicit, and unwavering on the essential elements necessary to prove the charge. As in State v. Sanders, 533 S.W.2d 632, 633 (Mo.App.1976), the testimony of the child witness whose competency had been challenged is corroborated in the main, by the testimony of another witness. We cannot say that the inconsistencies and confusion were so extensive that the trial court clearly abused its discretion in finding the witness competent to testify. The inconsistencies in the testimony of C_J_affect her credibility rather than her competency. See State v. Obie, supra 501 S.W.2d at 515[4].

After careful review of the transcript of the proceedings, briefs and authorities, we conclude the judgment of the circuit court overruling appellant’s motions challenging the competency of this witness was not erroneous.

The judgment is affirmed.

WEIER, P. J., and CLEMENS, J., concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Parnell W. DAVIS, Defendant-Appellant.
    No. 37681.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 14, 1976.
    William J. Shaw, Public Defender, Joseph W. Downey, Asst. Public Defender, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Thomas E. Dittmeier, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   WEIER, Presiding Judge.

Parnell W. Davis seeks reversal of a denial of his Rule 27.26 motion by the circuit court. After a hearing the court below determined that movant had not met his burden of proving grounds for relief as required by Rule 27.26(f).

Movant sought by his motion to vacate the judgments and sentences of fifteen years each on five charges of robbery first degree to which he had pled guilty. The sentences were imposed to run concurrently. He now contends that the court erred in denying his motion for the reason that his pleas were the product of coercion and duress on the part of his attorney and because of ineffective assistance of counsel.

Our examination of the transcript of the proceedings at the taking of the pleas and at the subsequent evidentiary hearing on the Rule 27.26 motion leads us to only one conclusion. The lower court’s judgment denying the motion was based upon findings of fact which were not clearly erroneous. Rule 27.26(j); Crosswhite v. State, 426 S.W.2d 67, 70[1] (Mo.1968).

An extended opinion in this case would have no precedential value and the judgment denying the motion is affirmed in compliance with Rule 84.16(b).

DOWD and CLEMENS, JJ., concur.


text:
    George ARNOLD, Movant, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 38218.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 14, 1976.

      Huck, Hasten & La Beaume, James W. Huck, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Movant appeals from the denial of his Rule 27.26 motion to vacate and set aside his conviction and sentence for second degree burglary. For a review of his conviction and the facts surrounding it, see State v. Arnold, 534 S.W.2d 836 (Mo.App.1976).

Movant contends the trial court erred in denying his Rule 27.26 motion without an evidentiary hearing. He urges he should be allowed to prove he was denied effective assistance of counsel because his attorney failed to investigate the testimony of an alleged witness and failed to file a motion to suppress evidence.

The ultimate test in determining the adequacy of legal representation is whether the efforts and conduct of counsel so prejudiced the movant that he was denied a fair trial. Hall v. State, 496 S.W.2d 300, 303[3] (Mo.App.1973); Fritz v. State, 524 S.W.2d 197, 199[1] (Mo.App.1975). Movant must demonstrate that fuller investigation by counsel would have uncovered substantial evidence, or evidence that would provide a defense. Evidence at the trial proved defendant’s thumbprint was found on the exterior of a broken window glass and two fingerprints on the interior of the same piece of glass. State v. Arnold, supra at 837. In the instant motion, he asserts that the testimony of an alleged witness would explain the presence of movant’s fingerprints at the scene of the crime in that he and the witness were at the premises burglarized looking for a job. Unfortunately, such testimony would not provide a defense, such as alibi, for movant. He must plead facts, not conclusions, which if true would entitle him to relief and must show that such facts are not refuted by facts elicited at the original hearing or trial. Smith v. State, 513 S.W.2d 407, 410[1] (Mo. banc 1974). Movant has failed to meet his burden of showing by his pleading that he was so prejudiced by counsel’s failure to investigate that he was denied a fair trial. Sherrill v. State, 515 S.W.2d 611, 613[5] (Mo.App.1974); McKnight v. State, 497 S.W.2d 201, 204[4] (Mo.App.1973). Finally, the fact that counsel did not file a motion to suppress evidence does not of itself constitute ineffective assistance of counsel. Lewis v. State, 513 S.W.2d 772, 774[2] (Mo. App.1974); State v. Worley, 371 S.W.2d 221, 223[6] (Mo.1963).

In the present case, the trial court patiently made extensive findings of fact and conclusions of law which demonstrated that movant was not entitled to relief. From our review of the record, we find that the trial court was not clearly erroneous in denying the Rule 27.26 motion without an evidentiary hearing.

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.


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    MISSOURI INTERNATIONAL INVESTIGATORS, INC., Plaintiff-Respondent, v. CITY OF PACIFIC, Defendant-Appellant.
    No. 37464.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 14, 1976.

      J. L. Anding, Pacific, for defendant-appellant.
    E. D. Lofftus, Fenton, for plaintiff-respondent.
   WEIER, Presiding Judge.

A jury awarded Missouri International Investigators, Inc. $1,600.00 for breach of a contract with the City of Pacific. The trial court entered judgment in accordance with the verdict and denied defendant’s motion for a judgment notwithstanding the verdict. On appeal, the City of Pacific raises three points, including the contention that plaintiff’s petition fails to state a claim upon which relief can be granted in that the purported contract with the city was not in strict compliance with § 432.070, RSMo 1969. Because this contention is meritorious and is dispositive of the entire appeal, appellant’s other two points need not be considered.

In March, 1973 John Moore’s house in Pacific was apparently set on fire by an arsonist. Moore filed suit against the city alleging, among other things, lack of diligence on the part of the city in investigating the fire. An extensive discussion of the facts and the issues is found in Moore v. City of Pacific, 534 S.W.2d 486 (Mo.App. 1976). In the suit now before us on appeal, Missouri International Investigators, Inc. seeks to recover from the city for investigative work carried out to determine the cause of the fire.

In addition to the allegations of the pleadings, we may consider plaintiff’s Exhibit No. 1, which is attached to the petition, in determining whether plaintiff’s petition states a claim upon which relief can be granted. Bride v. City of Slater, 263 S.W.2d 22, 25[1] (Mo.1953). Plaintiff contends this exhibit is a contract meeting the requirements of § 432.070, RSMo 1969. That statute provides in part: “No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless . . . and such contract, including the consideration, shall be in writing . . . ” The exhibit was a paper signed by two parties: Jim Sly, an investigator representing plaintiff, and P. W. Albertson, marshal of the City of Pacific.

On a printed form, apparently prepared by plaintiff, it purported to request an investigation into the cause of the fire at the Moore residence and was signed by the marshal. It contained no mention of any price, charge, rate or other reference to any consideration to be paid for such services.

If, as here, there is a complete absence of any mention in the agreement of any consideration owing from the city, the requirements of § 432.070 are not met. Bride v. City of Slater, supra at 26[6, 7]. Because this is a violation of a mandatory provision of § 432.070, the agreement is void and unenforceable. Needles v. Kansas City, 371 S.W.2d 300, 306[5] (Mo.1963); Hoevelman v. Reorganized School District R2 of Crawford County, 452 S.W.2d 298, 301[4] (Mo.App.1970).

Plaintiff attempts to parry this rule with the theory that the city should be estopped from denying the existence of the contract because it accepted the benefits of the contract and made a partial payment thereon. The city did pay plaintiff $1,750.00 after receiving a bill from plaintiff for that amount. The city may have also received some additional benefits as a result of plaintiff’s efforts which were the subject of this law suit. But “[t]he contract, absent the prescribed writing, is void. The fact a municipality has received the benefit of a performance by the other party does not make the municipality liable either on the theory of a ratification, estoppel or implied contract.” Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570, 574[8] (1945), quoted with approval in Nee- dies v. Kansas City, supra, 371 S.W.2d at 306[5]. See also, Layne v. City of Windsor, 442 S.W.2d 497, 500[6, 7] (Mo.1969) (municipality could not be liable on a theory of quantum meruit). All persons dealing with municipalities are charged with notice of the statutory requirements necessary to bind the municipality. Layne v. City of Windsor, supra at 500; Bride v. City of Slater, supra, 263 S.W.2d at 26[4].

Plaintiff’s petition fails to state a claim upon which relief can be granted. The judgment of the trial court is reversed.

DOWD and CLEMENS, JJ., concur.


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    STATE of Missouri, Plaintiff-Respondent, v. Clyde T. PATRICK, Jr., Defendant-Appellant.
    No. 37916.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 14, 1976.

      Brady, Brady & Devereaux, Walter L. Brady, Jr., St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, William F. Arnet, Asst. Attys. Gen., Jefferson City, Joseph Aubuchon, Asst. Pros. Atty., Franklin County, Union, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant Clyde T. Patrick, Jr. appeals from a conviction of the offense of attempt to obtain money by trick and false representation, § 561.450, RSMo. 1969. The jury fixed punishment at confinement in the County Jail for one year and a fine of $1,000.00, and judgment was entered. We affirm.

Defendant does not challenge the sufficiency of the evidence, so a brief statement of facts will suffice. An automobile was driven to the service station where defendant was employed. The shock absorbers and tires on this vehicle had been inspected immediately prior to the seven-mile trip to the service station, and were found to be in satisfactory condition. Defendant told the driver of the vehicle, a Missouri Highway Patrol employee, that “something was leaking.” An investigator for the Franklin County Prosecuting Attorney’s office was positioned nearby and observed defendant remove an object from his front pocket, place it inside the left front tire toward the shock absorbers of the automobile, then remove it from the tire and replace it in his pocket.'

The automobile was lifted on a hoist and defendant informed the driver that the front shock absorbers had lost oil and needed replacement. Defendant checked the rear shock absorbers and told the driver they also needed replacement because they were hitting against rubber stops. Subsequently, all four shock absorbers were replaced at a cost of Eighty-seven Dollars and Fifteen Cents ($87.15).

Other evidence by a fellow employee revealed that defendant frequently sprayed brake fluid on the shock absorbers of out-of-state vehicles, and then told the drivers that the shock absorbers needed replacement. The defendant presented the testimony of the owner of an auto repair business who testified that he tested the “defective” shock absorbers and found one front shock absorber in poor condition.

On appeal, defendant contends that the indictment charging him was defective for failure to plead a confidential relationship or reliance by the driver of the automobile. The constituent elements of the crime of attempt to obtain money by trick or false representation are intent to cheat and defraud, the attempt to obtain from another person or persons money or property by means or use of some trick or deception or false and fraudulent representations or statements or pretenses, and the failure in the perpetration of the offense. State v. Woodward, 156 Mo. 143, 56 S.W. 880 (1900); State v. Fletcher, 512 S.W.2d 253, 255[2] (Mo.App.1974). In State v. Thomas, 438 S.W.2d 441, 444 (Mo.1969), the court added to the elements required in State v. Woodward, supra, the requirement that the indictment plead “overt acts looking to the consummation of the offense, * * *.’’ See, also, State v. Dinkins, 508 S.W .2d 1, 4 (Mo.App.1974).

The indictment against defendant charges that:

“ * * * the said Clyde T. Patrick, Jr., did then and there, willfully, unlawfully, feloniously and acting jointly and together with another with the intent to cheat and defraud Wilson Delano did attempt to obtain from Wilson Delano the sum of approximately Eighty-seven and 15/100 Dollars ($87.15) by means of a trick and deception, to-wit: squirting a fluid on the left front shock absorber of a car being driven by Wilson Delano and by means of a false and fraudulent misrepresentation, to-wit: that the shock absorbers on a car driven by Wilson Delano were worn out and needed replacing when in truth and in fact as the said Clyde T. Patrick, Jr., then and there well knew the shock absorbers did not need replacing, * * (Emphasis added).

Clearly, the indictment sufficiently alleges the constituent elements of the crime charged. The absence of an allegation that the attempt failed is not fatal. Such an allegation, although stating an element of the offense, need not be pleaded because the term “attempt” implies failure. State v. Howell, 318 Mo. 772, 300 S.W. 807, 810[1] (1927). Reliance and a confidential relationship need not be alleged for the crime of attempt to obtain money by trick or false representation in § 561.450, RSMo. 1969.

Defendant’s second contention, that the prosecuting attorney withheld evidence that tended to negate defendant’s guilt, will not be considered on review. Defendant’s argument is totally lacking in specific transcript page references, contrary to Rule 84.-04(h); Ward v. Johnson, 480 S.W .2d 104, 107[8] (Mo.App.1972). It is not the responsibility of this court to sift through the transcript for supporting facts.

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.


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    Raymond C. MILENTZ, Appellant, v. STATE of Missouri, Respondent.
    No. 38078.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 21, 1976.
    Motion for Rehearing or Transfer Denied Jan. 14, 1977.

      Huck, Kasten & LaBeaume, Graham W. LaBeaume, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, David L. Baylard, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

Movant, Raymond Milentz, appeals an order of the Circuit Court denying his motion to vacate judgment pursuant to rule 27.26.

Movant was convicted by jury of striking a police officer, § 557.215 RSMo 1969, and sentenced by the court to 5 years in the Missouri Department of Corrections. The conviction was affirmed by this court on direct appeal. 521 S.W.2d 1 (Mo.App.1975). Movant subsequently filed a 27.26 motion alleging, inter alia, that 1) he was denied effective assistance of counsel because trial counsel failed to call four material witnesses; 2) he was denied a fair trial because one of the jurors was seen talking to a sheriff and two police officers, one of the officers being a key prosecuting witness. Without holding an evidentiary hearing, the trial court entered findings of fact and conclusions of law and denied relief.

On appeal, movant claims that the court erred in denying his motion without an evidentiary hearing. Rule 27.26(e) provides, in pertinent portion, that “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, a prompt hearing thereon shall be held.” In reviewing the court’s order denying movant’s motion without a hearing, this court is “limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.26(j).

In ruling on movant’s allegations concerning ineffective assistance of counsel, the Circuit Court’s memorandum-opinion in the post-conviction proceedings noted that movant had been granted a continuance on October 24,1973 because movant’s wife had given the names of witnesses to the public defender and at least one of these witnesses had not yet been contacted. No further reference \yas made to the alleged witnesses when movant’s case came to trial on November 13, 1973. The trial court’s memorandum opinion observed that “it logically follows that all witnesses names given by [movant] or his wife were contacted and could not be located or were located and that they could supply no evidence to assist the movant in the defense of this cause.”

Furthermore, the Circuit Court entered a finding of fact, by referring to the testimony in the trial transcript, that “the alleged charge of Striking a Police Officer took place inside a police cruiser when the doors were closed and the incident could not be observed by any person outside of the cruiser.” Therefore, the court concluded, the point raised was without merit because it failed “to see how any material witnesses to the alleged assault could be produced.”

Movant’s Rule 27.26 motion alleged that “Carol Milentz [movant’s wife] will testify that she gave the lawyer the list of four witnesses that seen this incident and that the movant did not assault the police.” Movant also alleged that each of the four witnesses “will testify that movant did not commit the crime; that the police brutally beat movant.”

Choice of witnesses is a matter of trial strategy, and this court will not review the trial strategy of counsel. Ray v. State, 532 S.W.2d 478, 481 (Mo.App.1975). However, in the absence of an evidentiary hearing, there is nothing in the present record to indicate that trial strategy was the reason that counsel failed to call certain witnesses. There is no evidence, in the absence of an evidentiary hearing, that counsel contacted, communicated with, or was even aware of these un-called witnesses. Without an evidentiary hearing, we cannot determine that there was a choice of trial strategy with respect to calling or not calling certain witnesses.

Movant has alleged facts which, if true, would entitle him to relief. See, Ross v. State, 517 S.W.2d 185, 186 (Mo.App.1974). Movant has alleged that the witnesses’ testimony would have provided a defense and shown that the omission of these witnesses was prejudicial to his position. Sherrill v. State, 515 S.W.2d 611, 613 (Mo.App.1974).

The files and records in this case do not conclusively show as a matter of law that movant was not entitled to the vacation of his judgment and sentence. Therefore, the court erred in failing to hold an evidentiary hearing.

Movant’s remaining contention is that the trial court erred in overruling his 27.26 motion without an evidentiary hearing on his allegation that during trial one of the jurors was seen talking with a deputy sheriff and two police officers, one of the officers being a key prosecuting witness.

A review of the trial transcript shows that no objection was made at any time during trial to a juror-witness confrontation or meeting. However, even if this point was preserved and meritorious, it would not be considered in a motion to vacate judgment and sentence because it was a “trial error,” which is outside the scope of 27.26 proceedings. Selman v. State, 454 S.W.2d 530, 532[2] (Mo.1970); Agee v. State, 512 S.W.2d 401 (Mo.App. 1974); Rule 27.26(b)(3); McCrary v. State, 529 S.W.2d 467 (Mo.App.1975), see also: Appendix, at 479, number 10. A “biased” juror constitutes trial error. Selman v. State, supra.

Accordingly, we remand to the Circuit Court for an evidentiary hearing on the sole allegation of ineffective assistance of counsel for failure to call the material defense witnesses. Movant was not entitled to an evidentiary hearing on the allegation that a meeting occurred between a juror and prosecuting witness because this was trial error and outside the scope of a motion to vacate.

The judgment is reversed and the cause remanded.

WEIER, P. J., and CLEMENS, J., concur.


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    Mary Eloise McHENRY, Executrix of the Estate of John McHenry, d/b/a McHenry & Grahn Plumbing and Heating Co., Plaintiffs-Appellants, v. Thelma CLASPILL and Richard Claspill, Defendants-Respondents.
    No. 36225.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 21, 1976.

      Strubinger, Dowd, Haseltine & Wilbers, St. Louis, for plaintiffs-appellants.

      Charles G. Kratovil, St. Louis, for defendants-respondents.
   DOWD, Judge.

This suit for payment of a plumbing bill was based on a theory of novation. Plaintiff, Mary Eloise McHenry, appeals from an adverse judgment of this court tried case. The trial court did not state reasons for its judgment but determined from the stipulated statement of facts, which incorporated certain exhibits by reference, that judgment should be rendered in favor of the defendant.

The parties stipulated that on January 24, 1966 a Mr. Arthur Ott died, leaving as his sole heir Thelma Claspill, the co-defendant. Mrs. Claspill was appointed executrix of her father’s estate, which included property at 4562 and 4562a Adelaid Avenue, St. Louis, Missouri. Prior to Ott’s death a plumbing partnership, McHenry and Grahn Plumbing and Heating Company, did plumbing work for the deceased. Ott paid a portion of the bill but at his death a bill in the amount of $497.22 remained unpaid. The plaintiff, Mrs. McHenry, the executrix of her husband’s estate which held the assets of the partnership, filed suit to collect the amount owing on the bill.

On January 26, 1966, the evening of Ott’s wake, Mr. and Mrs. McHenry spoke with the co-defendants, Mr. and Mrs. Claspill, at the funeral home about the plumbing bill. The parties disagree as to the content of that conversation. In his pleading, plaintiff alleges that the defendants agreed to assume the obligation for the bill in their individual capacities, if plaintiff would discharge the estate and Mrs. Claspill in her capacity as executrix. The parties stipulated that no claim was made against the estate, nor was a mechanic’s lien filed against the property on Adelaid. The plaintiff alleges that this lack of action was the consideration for the substitution of debtors, but the defendants denied this allegation in their answer. As evidence of the content of the conversation at Ott’s wake, plaintiff submitted: (1) a business card of the partnership, allegedly presented to the Claspills at the wake, upon which Mr. Clas-pill allegedly wrote his address and upon which was noted “Address to mail bill” and (2) an itemized plumbing bill dated January 30, 1966 sent to the address on the card with the heading “Re: Estate of Arthur J. Ott.”

In February, 1967 the plaintiffs consulted an attorney who contacted Mrs. Claspill on several occasions about the bill. On March 6, 1967 Mrs. Claspill- authorized a letter to be written for her to the plaintiff’s attorney, stating she would send him $25.00 per month, starting on April 21st, until the matter was cleared up. She stated in the letter that this action was pursuant to “an agreement” with the attorney. Only one $25.00 payment was made. On August 28, 1967 a check was forwarded, received, cashed and credited to the plumbing bill. After refusing plaintiff’s demands for further payments, this suit resulted.

Plaintiff brought her action on the theory that Mr. and Mrs. Claspill are liable to the partnership in their individual capacities because there was a novation of the original contract. Absent proof of novation, the judgment of the trial court is correct because the partnership’s remedy on the plumbing bill against Ott’s estate has lapsed.

Proof of novation requires a showing of four essential elements: (1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, and (4) the validity of the new one. General Insurance Company of America v. Klein, 517 S.W.2d 726, 730[6] (Mo.App.1974). A novation is never presumed, and the burden of proof rests upon the one asserting it. The controlling element in determining whether a novation has been accomplished is the intention of the parties. W. Crawford Smith, Inc. v. Watkins, 425 S.W.2d 276, 279[6, 7] (Mo.App.1968). The burden may be met by direct evidence or by reasonable inference of the intent of the parties drawn from the facts and circumstances. Assent to novation may also be proven circumstantially. W. Crawford Smith, Inc. v. Watkins, supra, at 279[8, 9]. To sustain the burden of proof, the assertor must prove novation by clear and convincing evidence. General Insurance Co. of America v. Klein, supra at 730[9]; Relles v. Wines, 416 S.W.2d 19, 22[2, 3] (Mo.App.1967).

In rendering its judgment for the defendants the trial court did not state its reasons. The judgment in a court tried case will be affirmed if it can be sustained on any reasonable theory. Simpson v. Spellman, 522 S.W.2d 615, 617[1] (Mo.App. 1975); In re M_ K_, 493 S.W.2d 686, 688[3] (Mo.App.1973). Further, when a case comes to the reviewing court on stipulated facts, review is made to determine whether judgment is a proper legal conclusion upon the facts stipulated, provided that all ultimate facts or factual inferences have been stipulated. If, however, ultimate facts or factual inferences exist to which the parties have not stipulated, the court reviews conceded facts in a light most favorable to the respondent and disregards inferences favorable to appellant. Adams v. White, 488 S.W.2d 289, 293[10] (Mo.App. 1972); Semo Motor Co. v. National Mutual Insurance Co., 383 S.W.2d 158, 161 (Mo.App. 1964).

While the existence of a prior valid obligation is conceded, there is no stipulation to the ultimate facts which prove the other essential elements of novation. The intent of the parties to extinguish the old contract or create a new contract is in dispute, and the stipulated facts do not clearly and convincingly establish the essential elements of novation as required by General Insurance Co. of America v. Klein, supra. Nor is the validity of the new contract proven. Therefore, we must review the conceded facts in a light most favorable to the defendant. Adams v. White, supra.

Proof of intent is limited to the business card, the itemized bill, the letter, and the check. There is nothing about the bill or business card which compels a finding that the parties intended a novation. The letter to the plaintiffs’ attorney, written fourteen months after the wake, makes reference to “my agreement with you,” but in no way shows an agreement was made the night of the wake. The more reasonable inference is that the “agreement” referred to in the letter arose from conversations with the plaintiffs attorney in February, 1967. Nor does the fact that the check was dated the day after Mrs. Claspill was discharged as executrix prove intent. The importance of this fact is negligible in light of the terms of “the agreement” set out in the letter, which called for payments to begin six months earlier. Finally, while it is conceded that the plaintiff failed to exercise her remedies against the estate, the fact that the plaintiff failed to make any contact with the defendants for thirteen months after the night of the wake makes reasonable an inference that the plaintiff was unaware of his remedies or was otherwise unwilling to pursue them.

The validity of the alleged new contract is also not shown by the stipulated facts. Novation is subject to the same rules of evidence as other contracts and must be proved as other contracts are proved. 66 C.J.S. Novation § 26 (1950). It it a fundamental principle of contract law that for an agreement to be binding, it must be sufficiently definite to enable the court to determine its exact meaning and to definitely measure the extent of the promissor’s liability. Ogilvie v. Ogilvie, 487 S.W.2d 40, 41[1] (Mo.App.1972). The evidence fails to show the terms of the oral contract. The only terms for which there is written evidence is the letter which promises to pay “$25.00 per month starting April 21st until this matter is cleared up ”. (Emphasis added) While the itemized bill makes certain the extent of the liability to Ott’s estate, novation requires the extinguishment of the original contract and the creation of a new one. General Insurance Company of America v. Klein, supra at 730[6]. The extent of the co-defendant’s liability under the new agreement is nowhere proven and the requirement of a new valid contract has not been met.

Based on the evidence on the record we find that the trial court reached a proper legal conclusion. The judgment is affirmed.

WEIER, P. J., and CLEMENS, J., concur.