text:
    STATE of Missouri, Respondent, v. Eural K. SNOW, Jr., Appellant.
    No. 28171.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Application to Transfer Denied Oct. 12, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

A jury in the Jackson County Circuit Court found Eural K. Snow guilty of murder in the first degree under the felony murder doctrine and fixed the punishment at life imprisonment. After judgment and sentence, this appeal followed.

A holdup occurred at the Retreat Tavern in Kansas City on January 15, 1975. The robbers were armed with pistols and when a patron scuffled with one of the robbers, the robber struck the patron with the gun and it discharged, causing minor injuries to the patron. A waitress was shot by the other robber. She died from her wounds. The patron who had scuffled with the robber identified a police photograph of Eural Kenneth Snow as the person with whom he scuffled. When he learned that police were looking for him, Snow surrendered to police officers who took him to police headquarters. There Snow gave a complete statement in which he admitted his participation in the robbery and named his accomplice as the person who shot the waitress.

At Snow’s trial on a charge of murder in the first degree, the patron who had scuffled with Snow identified Snow as that person. Two other patrons were unable to identify Snow. The state also introduced in evidence, after his motion to suppress had been overruled, Snow’s statement which had been reduced to writing and signed by him, in which in response to police questioning, he detailed his part in the robbery.

Snow, testifying on his own behalf, denied that he participated in the robbery. As he had done in support of his motion to suppress the statement which was overruled, Snow testified that at the time of the statement he was suffering from heroin withdrawal symptoms. He denied that he had made the statement attributed to him and said that he signed the report of interrogation without reading it. At the trial he testified that his familiarity with the details of the crime was based upon what Herman Brown had told him about it. According to appellant, Herman was one of the robbers and he told the police what Herman had said about his activities and the police wrote the report on the basis that appellant had done what he told the police Brown did. He testified that he was at home watching a basketball game at the time of the robbery.

Brown was called as a witness by Snow. The sole point of this appeal relates to the action of the trial court in connection with Brown’s interrogation. In order to place the matter in perspective, the entire testimony of Brown is set forth.

“DIRECT EXAMINATION by Mr. Teasdale:

“Q. Would you state your full name, please?

“A. Herman Charles Brown.

“Q. Herman Charles Brown. Mr. Brown, I’m going to ask you please, since the hearing in this room is not very good so speak in a louder tone of voice than you normally would please, so the ladies and gentlemen may hear you and Judge Stubbs as well may hear your testimony. Where do you presently live?

“A. 3729 Bell.

“Q. And right now you are staying where?

“A. Up here in the county jail.

“Q. Jackson County Jail?

“A. Yes.

“Q. Do you know the defendant, Eural Kenneth Snow?

“A. Yes.

“Q. How long have you known him?

“A. Quite a while.

“Q. How long is that, approximately? Five, ten years? How many?

“A. Ain’t been no years, you know.

“Q. Six or seven months, maybe?

“A. Yes.

“Q. I see. And I want to direct your attention to a robbery/and a murder that happened in Kansas City in mid-January of this year at the Retreat Tavern. Have you ever heard of that before?

“A. Yes.

“Q. Well, I want to direct your attention to a time when you met with a Mr. Turner, a black man, an investigator for the prosecutor’s office. Do you remember meeting with him?

“Yes.

“Q. And didn’t you make a statement to him about this case involving Mr. Snow?

“A. Yeah.

“MR. TEASDALE: Excuse me. May we approach the bench?

“(Counsel approached the bench and the following proceedings were had and entered of record:)

“MR. BELLEMERE: I’m not sure what this is going to lead to but I don’t want Mr. Teasdale to ask him questions about what he said to some other person.

“THE COURT: No, I don’t think that is proper.

“MR. TEASDALE: Your Honor, may I make an offer of proof. I’m not asking for testimony about what someone else said. The facts are that three members—

“MR. BELLEMERE: Wait a minute

“MR. TEASDALE: Can I finish, please? Can I finish my statement?

“MR. BELLEMERE: Yes, except it’s pretty loud and I would ask to go outside the hearing of the jury on this matter period.

“MR. TEASDALE: Judge, here are the facts. This man has made statements on two occasions to employees of the prosecutor’s office and he said that my client had nothing to do with this. Now, I want him to tell us if he did say that or not. That’s not hearsay. I think I’m entitled to that. I’m not going to ask for any hearsay at all and he can be cross-examined further by Mr. Bellemere.

“THE COURT: It’s not proper for this fellow to state as his conclusion that the defendant had nothing to do with the robbery and murder. Now, he can testify to what the facts are, what he knows the fact to be.

“MR. TEASDALE: Can I ask him what he told the facts are?

“THE COURT: No, because you’re doing the same thing in a back-court way. Not what he told somebody, but what does he know about.

“MR. TEASDALE: All right.

“(The proceedings returned to open court.)

“Q. (By Mr. Teasdale) Mr. Brown, you were questioned by Mr. Turner, were you not, about the case at the Retreat Tavern where that lady was killed?

“A. Yeah.

“Q. And you knew, didn’t you, that among other people—

“MR. BELLEMERE: Excuse me, Mr. Teasdale. I want to approach the bench.

“(Counsel approached the bench and the following proceedings were had and entered of record:)

“THE COURT: It’s not a question of what he told anybody, counsel.

“MR. TEASDALE: I wasn’t going to ask that.

“MR. BELLEMERE: I ask that we go out of the hearing of the jury and have an offer of proof to solve this and that Mr. Teasdale ask this man if he did anything as far as the robbery and homicide personally are concerned. If he is going to exonerate he could do so—

“THE COURT: Do it because he was there.

“MR. BELLEMERE: And not because he told anybody else.

“MR. TEASDALE: I’m only laying the groundwork, Your Honor. He was permitted to put on police officers to lay the groundwork which led up to the conversation with the defendant. I’m only laying the groundwork for the fact that he was asked about it and he had information about in (sic). Then I’m going to ask him what happened.

“THE COURT: Well, go at it the other way. Ask him what happened first.

“(The proceedings returned to open court.)

“Q. (By Mr. Teasdale) Mr. Brown, you knew before today, did you not, that Mr. Snow was charged in connection with the robbery at the Retreat Tavern in January?

“A. Yes.

“Q. And you knew, did you not, that he was charged with others in that same case?

“A. Um-hum.

“Q. Now, do you know whether or not Mr. Snow — do you know whether or not Mr. Snow had anything to do with that robbery at the Retreat Tavern in January of this year?

“A. Yes.

“Q. Did he?

“A. No.

“THE COURT: How do you know that?

“THE WITNESS: I was over at this house that time, you know—

“THE COURT: You were what?

“THE WITNESS: I was over at his house at that time when they said he did it at the approximate time.

“THE COURT: Well, you were not in the tavern where the robbery and the shooting took place?

“THE WITNESS: No.

“THE COURT: So all you know about it is what somebody told you?

“THE WITNESS: No, I was at his house. He was at home at the time.

“THE COURT: At what time?

“THE WITNESS: At the approximate time they said the robbery went on.

“THE COURT: Well, how do you know when the robbery went on?

“THE WITNESS: How do I know?

“THE COURT: Yes.

“THE WITNESS: Because they asked me.

“(Counsel approached the bench and the following proceedings were had and entered of record:)

“MR. TEASDALE: Excuse me, Your Honor. Your Honor, I’m going to have to object to the Court’s cross-examination of this witness before I get a chance to finish my direct. It seems to me you’re doing the work of Mr. Bellemere.

“THE COURT: I’m trying to get this show on the road.

“MR. TEASDALE: Your Honor, it seems to me that I have the right to get his direct examination over with. It seems to me that the Court now with all its prestige is interrupting in the middle of my direct examination and cross-examining for the State.

“THE COURT: I’m just trying to get this fellow to tell the truth. Go ahead with your examination.

“MR. BELLEMERE: Still, getting back to the objection, if this witness is going to exonerate the defendant he would do so by saying that this defendant didn’t do it and he did. Now, Mr. Teasdale still hasn’t asked that question, and when he does ask him questions they are questions related to what he has done or what he knows, and not what he personally did or saw.

“THE COURT: Well, all I’m saying is that what somebody told him doesn’t amount to zip.

“(The proceedings returned to open court.)

“Q. (By Mr. Teasdale) So, Mr. Brown, is it your testimony that you of your own knowledge know that Mr. Snow did not rob the Retreat Tavern in January? Do you know that?

“A. Yes.

“MR. TEASDALE: You may inquire.

“CROSS-EXAMINATION by Mr. Bel-lemere:

“Q. And if I understood your testimony correctly the reason you know that Mr. Snow did not- rob the Retreat Tavern is because at the time he was suppose (sic) to have robbed the Retreat Tavern you and he were at his house and he was at his home then and not at the Retreat Tavern; is that right?

“A. Yes.

“Q. And you, yourself, don’t even know where the Retreat Tavern is.

“A. I sure don’t.

“Q. And you have never been in it.

“A. No.

“Q. And your name is Herman Brown?

“A. Yes.

“Q. And you don’t know anything about the robbery.

“A. No.

“MR. BELLEMERE: Thank you.

“THE WITNESS: What I heard.

“MR. TEASDALE: I have no further questions.”

Another jail inmate, Fred Kerr, testified that he was at Snow’s house on the day and evening of the Retreat robbery and that Snow did not leave the house. No other evidence was offered by the defense.

On this appeal, appellant contends that the trial court’s examination of Brown was an abuse of discretion and left the jury with the impression that the court did not believe appellant’s alibi.

The problem in a case such as this is in determining whether the trial court’s questions or remarks were such as to give the impression of abandonment of neutrality on the part of the judge and assumption of the prosecutor’s role or whether they were aimed merely at attempting to clarify the testimony given. Appellant contends that here the trial court’s questioning was within the first category, and constituted a reversible error. In support of his position he cites: State v. Embry, 530 S.W.2d 401 (Mo.App.1975); State v. Wren, 486 S.W.2d 447 (Mo.1972); State v. Dixon, 463 S.W.2d 783 (Mo.1971); State v. James, 321 S.W.2d 698 (Mo.1959); State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654, 657-658[3] (1952); State v. Castino, 264 S.W.2d 372, 374-375[3-5] (Mo.1954); State v. Drew, 213 S.W. 106 (Mo.1919); and State v. Jones, 197 S.W. 156 (Mo.1917).

The state, of course, takes the alternative position, citing: State v. Clark, 522 S.W.2d 332, 334-335[3, 4] (Mo.App.1975); State v. Pearson, 519 S.W.2d 354, 357-359[7, 8] (Mo.App.1975); State v. Cain, 485 S.W.2d 60, 61-62[2][3, 4] (Mo.1972); State v. Lay, 427 S.W.2d 394, 403[11] (Mo.1968); State v. Crockett, 419 S.W.2d 22, 26-27[9]-[11] (Mo.1967); and State v. Grant, 394 S.W.2d 285, 286-288[1, 2] (Mo.1965).

In this case, defense counsel adopted a somewhat oblique approach in his examination of Brown. A subsequent colloquy with the court disclosed that defense counsel expected that the witness would testify that he and another person committed the robbery and that appellant was not in the tavern. Defense counsel sought to approach the subject by asking the witness what he had told someone about the crime. Although the court properly sustained objection to such approach, counsel persisted in it and when another objection was sustained, defense counsel propounded the question which called for the witness’s conclusion as to whether or not appellant had participated in the crime. Such a conclusion had no evidentiary value and the trial court, in view of the immediately prior problem with defense counsel’s interrogation, sought to ascertain the basis for the witness’s conclusion. The court’s questioning produced the statement that the witness was at appellant’s house and appellant was there at the “approximate time” of the robbery. The trial court’s questioning does not indicate disbelief of that statement. Appellant does not contend that the remarks of the court to the effect that he was “trying to get this fellow to tell the truth” were made in the presence of the jury and the record indicates otherwise. Contrary to the situation in State v. Embry, supra, relied upon by appellant, where the trial court sua sponte prevented a defense witness from answering questions calling for hearsay, in this case the witness gave an answer based upon hearsay which was permitted to stand. The responses elicited by the court were consistent with the testimony of the other alibi witness that he was at appellant’s house at the time of the crime and that Brown was also there.

Quite obviously, appellant’s alibi was shattered, but it was the result of the failure of his witnesses to testify as appellant expected. Appellant said that Brown was a participant in the robbery. Brown denied that he was. Appellant’s other alibi witness placed Brown as well as appellant at appellant’s house at the time of the robbery. It might be noted that in examination of the second alibi witness defense counsel apparently sought to impeach Brown, to-wit:

“Q Do you have any personal knowledge of whether or not Herman Brown had any involvement with the Retreat Tavern holdup?

“A Not to my knowledge, I don’t.

“Q Didn’t you just tell me the opposite upstairs?”

Objection to the question was sustained and the matter was not pursued further. Obviously, the defense wished to discredit Brown, in view of the defendant’s testimony that Brown came to his house after the robbery and told appellant in detail what he (Brown) had done at the Retreat Tavern.

Viewing the entire circumstances this court cannot say that in this case the trial court abused its discretion in interrogating witness Brown in order to ascertain the basis for the witness’s obvious conclusory assertion.

As the court observed in State v. Wren, supra, “ * * * an area is involved wherein precedent is of little value and each case must be resolved upon its own facts.” 486 S.W.2d at 448.

Therefore, no effort will be made to distinguish appellant’s authorities. They have been examined and considered, but none is here controlling.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: SOMERVILLE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Edward E. THOMPSON, Appellant.
    No. KCD 28200.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Application to Transfer Denied Oct. 12, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

A jury found defendant guilty of robbery, first degree, (Section 560.120, RSMo 1969) and his punishment was fixed at seven years confinement in the Missouri Department of Corrections.

On appeal defendant claims that he is entitled to a new trial solely by reason of the trial judge’s refusal to honor his request to excuse venireman Howard H. Moore for cause, thereby forcing him to expend one of his peremptory challenges to remove said juror.

This state has steadfastly hewed to the proposition that an accused in a criminal case must be afforded a full panel of qualififed jurors before he is required to expend his peremptory challenges, and denial by a trial court of a legitimate request by an accused to excuse for cause a partial or prejudiced venireman constitutes reversible error. State v. DeClue, 400 S.W.2d 50 (Mo.1966); State v. Land, 478 S.W.2d 290 (Mo.1972); State v. Lovell, 506 S.W.2d 441 (Mo.banc 1974). This proposition is rooted in the constitutionally guaranteed right of every accused to a “public trial by an impartial jury”, Mo.Const. Art. I, Sec. 18(a), and personifies a dedicated judicial effort to preserve inviolate this constitutionally guaranteed right in the broadest sense. Experience has taught that it is not always possible to objectively demonstrate juror partiality. Not infrequently, juror partiality is subtle, elusive, and highly subjective. When juror partiality is capable of being objectively demonstrated, challenges for cause have been devised as a means for achieving an impartial jury. When juror partiality is sensed, but incapable of being objectively demonstrated, peremptory challenges have been devised as a means for achieving an impartial jury. Together, they serve the ultimate goal of obtaining a jury free from the taint of both objectively demonstrated and subjectively sensed partiality. Purity of the right to be tried by an impartial jury is so zealously guarded that an accused may covet his peremptory challenges and “spend” them as he alone sees fit. Therefore, if an accused is not presented with a full panel of jurors objectively demonstrated as qualified before he exercises his peremptory challenges, his given number of peremptory challenges is proportionately reduced and his right to “spend” them as he alone sees fit is accordingly impinged. The strength and integrity of trial by jury in a criminal case lies in the composite impartiality of the jury finally selected to try a particular case, and both are eroded to an unknown extent when even a single or isolated instance of partiality creeps in, whether objectively demonstrated or subjectively sensed.

On voir dire examination of the jury panel in the instant case, the prosecutor elicited a show of hands from several veniremen who had previously been victims of various unrelated crimes. Venireman Howard H. Moore was among those who raised their hands. In exploring his past experience the following inquiry took place:

“VENIREMAN MOORE: About 20 years ago I was held up at 12th and Garfield at night, robbed. I think I could be fair in this trial, but this did happen to me.
[PROSECUTOR]: Okay. But you feel that you could give both the state and the defendant a fair trial based on the evidence alone?
“VENIREMAN MOORE: I think I could.
[PROSECUTOR]: Thank you, sir.
[DEFENDANT’S ATTORNEY]: Mr. Moore, I’d like to ask you a question.
VENIREMAN MOORE: Go ahead.
[DEFENDANT’S ATTORNEY]: Do you feel like if you are chosen for the jury in this case, when you’re hearing the evidence come out about somebody who claims they were robbed, that your mind’s going to go back to the time that you were robbed and you’re going to have that on your mind?
VENIREMAN MOORE: Well, I think that it’s possible, I think that’s possible. I might think about that.
[DEFENDANT’S ATTORNEY]: Well, do you think in deliberating on this case, if you are chosen as a juror, that you might have a hard time putting your experience as a victim of a robbery out of your mind?
VENIREMAN MOORE: I think it would be hard for me to put it out of my mind, I do.
[DEFENDANT’S ATTORNEY]: Well, you see what I am driving at?
VENIREMAN MOORE: I do; I do.
[DEFENDANT’S ATTORNEY]: Do you think you might have some problem being totally unbiased toward this defendant in this kind of a case?
VENIREMAN MOORE: I think that’s possible, I think I could, you know, listen to the evidence and be fair and impartial in this case, but I think maybe I would think back to this time, too.
[DEFENDANT’S ATTORNEY]: Well, we appreciate your honesty about that, Mr. Moore, thank you.
Judge, I would ask on the basis of his answers that Mr. Moore be excused for cause.
THE COURT: He’s indicated his ability to try the case fairly. If you wish to question him further, you may do so.
[DEFENDANT’S ATTORNEY]: Well, those are the only questions I have for him.” (Emphasis added.)

Resolution of defendant’s single point is necessarily confined to the various answers that venireman Moore gave to the questions put to him by both the state and defense counsel touching upon his qualifications to serve as a juror and the reason given by the trial court in refusing to excuse venireman Moore for cause when requested to do so by defendant. By its very nature, it is an appellate resolution as fraught with substance as it is with difficulty if the right of an accused to be tried by an “impartial jury” is preserved in the broad sense that attaches to it in this state.

Two paramount principles well established in this state appear controlling. In no event shall a challenged venireman be allowed to pass upon his own qualifications to serve as a juror; the trial judge, rather than the venireman, is impressed with the duty of making this crucial determination. State v. Jones, 384 S.W.2d 554, 558 (Mo.1964); State v. Land, supra, 478 S.W.2d at 292; and State v. Lovell, supra, 506 S.W.2d at 444. Determination of a challenged venireman’s qualifications initially rests within the sound judicial discretion of the trial judge and will not be lightly disturbed on appellate review; however, appellate courts are not required to give blind deference to a trial judge’s exercise of discretion in this respect and should, when the question is raised, review the record and determine whether or not the trial judge, in fact, abused his discretion. State v. DeClue, supra, 400 S.W.2d at 57; State v. Land, supra, 478 S.W.2d at 292; and State v. Lovell, supra, 506 S.W.2d at 443-444.

The only inkling which this court has as to what prompted the trial judge’s refusal to excuse venireman Moore for cause is the following statement made by the trial judge: “He’s [venireman Moore] indicated his ability to try the case fairly.” This statement, on its face, strongly, if not conclusively, suggests that the trial judge deferred to venireman Moore’s assessment of his own qualifications to serve as a juror. To read a different meaning into the statement would require a degree of insight, which this court does not claim to possess, regarding a conjecturally latent meaning. Be that as it may however, and assuming, arguendo, that the able trial judge independently passed judgment on venireman Moore’s qualifications, the record discloses that venireman Moore’s impartiality was so highly suspect that it cannot be lightly ignored. This observation should not be construed as an affront to venireman Moore’s character or integrity. To the contrary he is to be lauded for his candor and honesty in advising court and counsel of the residual effect of his prior experience. Not once did he unequivocally state that he could impartially hear and try the case. His answers to the various questions posed to bear his mind as to the effect of his previous experience unmistakably reveal that his subconscious mind was at war with itself insofar as his ability to erase the prejudicial effect of his prior traumatic experience was concerned if selected to pass upon defendant’s innocence or guilt. His answer to the final question put to him is the strongest testimonial of all in support of this conclusion.

[DEFENDANT’S ATTORNEY]: Do you think you might have some problem being totally unbiased toward this defendant in this kind of a case?
VENIREMAN MOORE: I think that’s possible, I think I could, you know, listen to the evidence and be fair and impartial in this case, but I think maybe I would think back to this time, too.”

This answer denotes a conscientious venireman with undeniable pangs of doubt concerning his ability to rid his mind of an understandable prejudice actuated by a pri- or unfortunate experience.

On the basis of the record presented, as measured by applicable and prevailing case law in this state [State v. DeClue, supra; State v. Land, supra; and State v. Lovell, supra], it is the considered judgment of this court that a sound exercise of judicial discretion dictated that venireman Moore should have been excused for cause.

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

Reversed and remanded.

All concur.


author: STONE, Presiding Judge.

text:
    James B. FERGUSON, Sr., et al., Claimants-Appellants, v. W. P. HOOD and D. M. Hood, d/b/a D & W Texaco, Employers-Respondents, and American States Insurance Company, Insurer-Respondent.
    No. 9765.
    Missouri Court of Appeals, Springfield District.
    July 12, 1976.
    Motion for Rehearing or to Transfer Denied July 30, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Benjamin J. Francka, Springfield, for claimants-appellants.
    Daniel, Clampett, Ellis, Rittershouse & Dalton, Paul D. Rittershouse, Springfield, for employers-respondents.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   STONE, Presiding Judge.

Claimants-appellants are the parents and siblings of eighteen-year-old Richard Ferguson who, while working in the course of his employment as a service station attendant, was shot and killed during an armed robbery at the station on March 15, 1969. Asserting that they were partial dependents of Richard (§ 287.240, RSMo 1969, V.A. M.S.), claimants instituted this proceeding under the Missouri Workmen’s Compensation Law. After a plenary hearing, the referee made extensive findings of fact and rulings of law and entered an award denying compensation to the alleged dependents, which was confirmed upon initial review by the Industrial Commission and thereafter upon judicial review by the circuit court. From that adverse judgment, claimants bring the case to us.

In connection with and in support of his award denying compensation, Referee Moss first recorded his finding “from all the evidence that claimants herein have failed to prove actual dependency for support, in whole or in part, upon the deceased employee’s wages at the time of the employee’s injury and death,” and then proceeded to review certain significant evidence, record additional findings of fact, and refer to relevant case law. Upon review, the Industrial Commission found that “the award of the referee heretofore entered is correct in all respects without exception,” warmly commended “the proficiency demonstrated by the referee,” and quoted the major portion of the referee’s “decision.” We believe it appropriate to do likewise at this point:

“Claimants . . . concede that the deceased had no total dependents, and the record shows that each of the alleged dependents received a substantial part, if not all, of his or her support from a source other than the deceased employee. Gantner v. Fayette Brick & Tile Company, 236 S.W.2d 415 [Mo.App.1951]; Dykes v. Thornton, 282 S.W.2d 451 [Mo.1955]. Claimants contend that the record supports a finding that the deceased contributed all, or substantially all of his wages to a ‘common fund’ used for the support in part of all of the alleged dependents, and insist that they are partial dependents to the extent of 100% and therefore entitled to the entire death benefit, there being no total dependents. Section 287.240(3), RSMo 1969, has been thus construed in numerous cases when the facts indicated the deceased contributed his entire earnings to a ‘common fund’ for the support of partial dependents. Claimants’ excellent brief cites nearly all of such cases. However, I find that the evidence in the instant case does not support a finding that the deceased contributed all or substantially all of his wages to such ‘common fund.’ The most recent decision on this precise point is Dykes v. Thornton, 302 S.W.2d [304], 313 [Mo.App.1957]. In that case the alleged dependent mother testified that her deceased son contributed all of his earnings to a common fund, except money used for shows, skating, gasoline for the family car, meals bought while working on the road, and clothing. The evidence in the instant case is substantially the same, and unlike the Dykes case, the deceased also had his own checking account from which he also obtained funds for his own use for like expenditures.

“I further find that the claimants have failed to prove beyond mere speculation, guesswork and surmise that even a part of the deceased’s earnings were in fact used for the support of the family. Otherwise stated, I find that claimants have not proven beyond mere speculation that they were actually dependent upon a part of the deceased’s wages for their support. It was stipulated by the attorneys for the parties that the employee’s average weekly wage was $74.73 per week. However, this was a theoretical average wage to be used for the purpose of determining the amount of the total death benefit only, since the employee had worked regularly on a full time basis for just two weeks prior to his death. Partial dependency is determined by the proportion of the employee’s actual earnings contributed, and not by the proportion of such theoretical earnings contributed. Tracey v. Acme Distributing Company, 236 Mo.App. 981, 160 S.W.2d 469 [1942]. The deceased until two weeks prior to his death had worked only part time on an irregular basis and at times not at all. His weekly earnings necessarily varied a great deal. His mother testified that he would, when working, hand her a ‘wad’ of money which she placed in her billfold. She did not count the money and consequently did not know how much it was. Though she testified that on such occasions he kept two or three dollars for cigarettes, candy, etc., she still was unable to say what his earnings were for the period involved on each occasion. In any event, from time to time the deceased would request varying amounts for like personal expenses and dates with girl friends and his mother would honor his request. A checking account was also maintained in the name of the deceased upon which he would also write the checks for similar personal expenses. Upon these facts, I am unable to see where the claimants’ cause is aided by the ‘common fund theory.’ What part of the deceased's contribution to such fund were the claimants dependent upon for their support? In my view, the claimants are not dependent upon a part of the deceased’s earnings for their support when the record equally justifies AN INFERENCE THAT the deceased’s withdrawals for his personal use from the common fund may have equalled or exceeded his contribution.

“I further find that even if an inference is drawn that a part of his contribution to the fund exceeded his personal withdrawals, such inference does not justify a finding that such part was significan^ enough for it to be said that the claimants were actually dependent upon it for their support. The father was regularly employed and at the time of the employee’s death the family’s financial situation was probably better than it had ever been. The employee’s twin brother [claimant Rickey Ferguson] was also working (at least part time) and the record indicates he also maintained a bank account for his own personal use. As pointed out in the able brief of the employer and insurer, dependency is a question of fact, and need is an important factor to consider. I find from all the evidence that claimants in this case have failed to prove beyond mere speculation that they were actually dependent upon a part of the earnings of the deceased for their support. In my view the record indicates that the testimony of the father and mother to the contrary is a mere conclusion on their part based upon a sincere but mistaken belief not supported by the facts.”

Although on judicial review the circuit court was in the first instance, and this court is on appeal, authorized to determine whether, upon the whole record, the Industrial Commission reasonably could have made the findings and award under consideration, this does not mean that either court should or may substitute its judgment on the evidence for that of the Commission, but simply permits a reviewing court to set aside the findings and award of the Commission if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and award. Freeman v. Callow, 525 S.W.2d 371, 372(1) (Mo.App.1975), and cases there cited.

Where, as here, claimants were not among those statutorily classified as “conclusively presumed to be totally dependent” [§ 287.240(4), RSMo 1969, V.A.M. S.], dependency was a question of fact and compensation properly might have been denied, as indeed it was, for the failure of claimants, upon whom the burden of proof rested, to establish dependency. Ricks v. H. K. Porter, Inc., 439 S.W.2d 164, 167(7) (Mo.1969); Kemmerling v. Karl Koch Erecting Co., 338 Mo. 252, 255-256, 89 S.W.2d 674, 675-676(1, 2) (1936). In considering and resolving the issue of dependency, it was for the Commission, as trier of the facts, to draw from the evidence such inferences as were reasonably permissible [Barton v. Western Fireproofing Co., 326 S.W.2d 344, 349(6) (Mo.App.1959)]; and, if conflicting inferences might have been drawn, the choice rested with the Commission as to which should be accepted. Miller v. Sleight & Hellmuth Ink Co., 436 S.W.2d 625, 627 (Mo.1969); Webb v. Norbert Markway Const. Co., 522 S.W.2d 611, 615(9) (Mo.App.1975); Bauer v. Independent Stave Co., 417 S.W.2d 693, 697 (Mo.App.1967). Likewise, matters of credibility and the weight to be given conflicting evidence were for the Commission. Bradshaw v. Richardson Trucks, Inc., 467 S.W.2d 945, 947 (Mo.banc 1971); Saale v. Alton Brick Co., 508 S.W.2d 243, 246(4) (Mo.App.1974).

After painstaking perusal of the entire transcript and careful consideration of the exhaustive briefs filed by capable counsel and of relevant case law, we are constrained to conclude:

(a) That the statements and findings of fact in the above-quoted “decision” of the referee adopted by the Commission were appropriately and properly drawn from the testimony of the employee’s parents, claimants themselves and the only witnesses on behalf of claimants, and that no good purpose would be served by our independent reiteration of the same facts or by development of further factual detail [Rule 84.-16(b), V.A.M.R.; Rose v. Ozark Pride Agribusiness, Inc., 510 S.W.2d 500, 502 (Mo.App.1974)]; and,

(b) That the award of the Commission was supported by competent and substantial evidence on the whole record and was not clearly contrary to the overwhelming weight of the evidence. Brown v. Mo. Lumber Transports, Inc., 456 S.W.2d 306, 307 (Mo.banc 1970); Wilhite v. Hurd, 411 S.W.2d 72, 77(2) (Mo.1967).

In these circumstances, the judgment of the circuit court affirming the final award of the Commission denying compensation should be and is affirmed.

HOGAN and FLANIGAN, JJ., concur.


author: KELLY, Judge.

text:
    J AND P TRUST et al., Plaintiffs-Appellants, v. CONTINENTAL PLANTS CORP. and Chester Potash, Defendants-Respondents.
    No. 36467.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 13, 1976.
    Motion for Rehearing En Banc or Transfer to Supreme Court Denied Aug. 18, 1976.

      Vincent E. Hartigan, Jr., St. Louis, for plaintiffs-appellants.
    Bernard A. Barken, St. Louis, for defendants-respondents.
   KELLY, Judge.

Appellants filed their Petition for Injunction in the Circuit Court of St. Louis County wherein they sought to restrain the respondents from selling certain items of personalty which appellants allegedly pledged as collateral to secure a loan on March 22, 1973. An order to show cause and a restraining order returnable April 5, 1973, was entered by the trial court, and appellants gave bond in the sum of $2500.00 as required by the trial court. On April 5, 1973, the return on the order to show cause was continued at respondents’ request until April 26,1973, but on April 10,1973, respondents filed their Return to Order to Show Cause and Answer together with their Motion to Dismiss. On August 29, 1973, after a hearing on respondents’ Motion to Dismiss appellants’ petition and dissolve the restraining order, the trial court entered its judgment dismissing appellants’ petition with prejudice and dissolving the restraining order previously issued. On September 7, 1973, appellants filed their Motion to Set Aside Judgment and Decree of August 29, 1973, and on September 21, 1973, respondents filed their Motion for Assessment of Damages on the Injunction Bond. On April 8, 1974, an evidentiary hearing on respondents’ Motion for Assessment of Damages was conducted and on May 3, 1974, respondents were awarded $2500.00 as damages on said Motion. Appellants on May 17, 1974, filed their Motion to Set Aside Judgment and Decree of May 3, 1974. On July 31, 1974, respondents filed a Motion to Strike Defendants’ Motion to Set Aside Judgment and Decree of May 3, 1974, on the grounds (1) that appellants had not filed a notice of appeal from the judgment of August 29, 1973, dismissing their petition with prejudice within the ten days required by Rule 81.04 V.A.M.R. after their Motion to Set Aside said judgment and decree had been overruled pursuant to the provisions of Rule 78.04 (present Rule 78.06) V.A.M.R. and (2) the six month period within which appellants could have applied to the appellate court for an order for a special appeal as authorized by Rule 81.07 V.A.M.R. had expired without appellants having made such application. On August 20, 1974, the trial court entered a memorandum which reads: “By operation of law Plaintiff’s (sic) Motion to Set Aside Judgment and Decree overruled.”

On August 24, 1974, appellants filed a Notice of Appeal to this court as follows: “Notice is given that Plaintiffs’ appeals (sic) from the Judgment entered in this action on the 3rd day of May, 1974.” Attached to this Notice of Appeal was a paper identified as “Suggestions in Support of Appeal” which stated that this was an appeal from the judgment of the Circuit Court of St. Louis County, Div. No. 5, sustaining Respondents’ Motion to Dismiss Petition and ruling that appellants were not entitled to a temporary injunction, and allowing the respondents $2500.00 damages. On August 29,1974, the Clerk of this Court, by letter, advised appellants’ counsel that the Notice of Appeal did not contain a jurisdictional statement as required by Rule 81.08(a) and that one had to be filed within ten days after the filing of the notice of appeal. On September 3, 1974, the following Jurisdictional Statement was filed:

“This is a civil action to enjoin the sale of certain goods and also for damages in which the Trial Judgment was in favor of the defendant and against the plaintiff appellant.
This appeal is within the general appeal jurisdiction of the Missouri Court of Appeals. Article 5, Section 5 Constitution of Missouri as amended 1970.”

On September 27, 1974, respondents filed their Motion to Dismiss Appeal on the ground that this court lacks jurisdiction because appellants failed to file (1) their Notice of Appeal within the time required by law and (2) a jurisdictional statement stating a valid basis for jurisdiction in this court. Respondents’ Motion was taken with the case.

We dismiss appellants’ appeal for the reason no timely notice of appeal was filed from the judgment of the trial court dismissing their petition with prejudice entered on August 29, 1973.

The timely filing of an adequate notice of appeal is a jurisdictional requirement and even in the absence of any suggestion that the notice of appeal was not timely filed, it is the duty of the Court of Appeals to determine its timeliness because it lacks appellate jurisdiction unless the notice was filed within the time prescribed by Rule 81.04, V.A.M.R. Kuhn v. Bunch, 529 S.W.2d 200[1] (Mo.App.1975).

This record reveals that appellants did not file a timely notice of appeal from the judgment and decree of the trial court of August 29, 1973, wherein their petition was dismissed with prejudice and the temporary restraining order previously granted was dissolved. Chronologically, on September 7, 1973, the appellants filed their Motion to Set Aside the Judgment and Decree of August 29, 1973. This Motion set out grounds which appellants contended supported their position that the trial court erred in dismissing their petition but made no reference whatsoever to any error in dissolving the restraining order nor request that it be reinstated. By the filing of this authorized after-trial motion pursuant to Rule 81.05(a) V.A.M.R. the finality of the judgment of August 29, 1973, for the purpose of appeal was deferred until such time as the trial court should rule on the Motion or, if not ruled on within 90 days, the judgment became final for the purpose of appeal on the 90th day after filing, to-wit: December 6, 1973. Rule 81.05(a) V.A.M.R. The trial court did not rule on appellants’ Motion so that by operation of law it was overruled on December 6,1973, and became an appealable order as of that date. To vest this court with jurisdiction to review the judgment and decree of August 29, 1973, it was incumbent upon appellants to file their notice of appeal on or prior to December 17, 1973. This they did not do. Nor have appellants, within the time allowed by Rule 81.07(a) V.A.M.R., applied to the appellate court for a special order to appeal out of time within six months after the judgment of August 29, 1973, became final for the purposes of appeal. We hold therefore that we have no jurisdiction to review the action of the trial court in dismissing appellants’ petition and dissolving the restraining order.

The Notice of Appeal filed in this case with the clerk of the trial court on August 24, 1974, specifically points out that the appeal taken is from the “Judgment entered in this action on the 3rd day of May, 1974.” The judgment of May 3,1974, was a money judgment in an amount of $2500.00 awarded the respondents on their Motion for Assessment of Damages on Injunction Bond filed on September 21,1973, following an evidentiary hearing conducted by the trial court on April 8, 1974. On May 17, 1974, appellants filed their Motion to Set Aside Judgment and Decree of May 3, 1974. This Motion is an expanded version of appellants’ Motion to Set Aside Judgment and Decree of August 29,1973, setting forth the same grounds set out therein with argument and authority why the trial court erred in dismissing appellants’ petition for injunction. No reference is made therein to any alleged reason why the money judgment of May 3, 1974, should not have been rendered except by inference that judgment was an outgrowth of the dismissal of appellants’ petition for injunction. Respondents countered by filing their Motion to Strike Defendants’ Motion to Set Aside Judgment and Decree of May 3, 1974, and the grounds stated in this Motion were, as stated above, the failure of the appellants to file a timely notice of appeal from the judgment of August 29,1973, or to seek an order for a special appeal out of time. A hearing on these motions was held and culminated in the order of August 20, 1974, overruling appellants’ “Motion to Set Aside Judgment and Decree” on the grounds that it was overruled “By operation of law.”

We conclude from the foregoing that appellant conceived of the judgment of May 3, 1974, as the final appealable judgment in the case from whence their right of appeal attached, and that by filing a timely notice of appeal from the judgment and decree of that date they were also appealing timely from the judgment and decree of August 29, 1973. In this conclusion they erred.

A motion for the assessment of damages on an injunction bond is the proper procedure for exacting damages sustained by one who had been enjoined from doing an act after the injunction has been dissolved. In 1835 the General Assembly enacted what are now §§ 526.070, 526.200 and 526.210 V.A.M.S. (Rules 92.09, 92.11 and 92.12 V.A.M.R.) to require a bond as a condition to the issuance of a temporary injunction and the procedure to be followed for the assessment of damages should the injunction be dissolved. R. A. Vorhof Const. Co. v. Black Jack Fire Pro. Dist., 454 S.W.2d 588, 596 (Mo.App.1970). A proceeding for the assessment of damages on an injunction bond is in the nature of a new, separate and independent controversy. Terminal Railroad Ass’n of St. Louis v. Schmidt, 353 Mo. 79, 182 S.W.2d 79, 88[5] (1944). It was recognized that what is now § 526.200 V.A.M.S. made no provision for any form of pleadings or the time for the assessment of damages upon the dissolution of an injunction and that the statute should be given a reasonable and practical construction and interpretation in State ex rel. Latshaw v. Reeves, 237 Mo.App. 812, 177 S.W.2d 537, 539[1] (1944). It was also held there that the statute dispenses with the necessity of a suit on the injunction bond; that it was not ancillary to nor a mere after judgment proceeding in an injunction suit, but rather assumes the nature and character of an independent action on the injunction bond. State ex rel. Latshaw v. Reeves, supra, 1. c. 539[3]. “. . .A motion to assess damages on an injunction bond is well grounded in our jurisprudence and is definitely established as a part of our procedure. It is in its nature and effect a pleading which initiates a proceeding to assess damages in such cases . . .” Id. at 539-540. This right to have the damages assessed does not accrue until the injunction has been dissolved. The dissolution of the injunction is a final judgment for the purposes of appeal, § 512.020 V.A.M.S., and the filing and hearing of a motion to assess damages on an injunction bond is therefore an independent action on the injunction bond after final judgment. Joplin State Bank v. Heaton, Mo.App., 180 S.W. 19, 20 (1915).

Having thus misconstrued the legal effect of the final judgment entered on August 29, 1973, and viewing the Motion to Assess Damages as a continuation or extension of the original proceeding, appellants failed to file their notice of appeal from the judgment dismissing their petition for injunction and dissolving the restraining order issued at the time the action was commenced, within the time prescribed by Rule 81.04 V.A.M.R., thereby leaving this court with no jurisdiction to review the merits of the action of the trial court in that respect.

Appellants did, however, file a timely notice of appeal from the judgment of May 3, 1974, assessing damages against them on the injunction bond required by § 526.070 V.A.M.S. and Rule 92.09 V.A.M.R. On appeal, though, they have failed to brief any points directed to any error by the trial court with respect to this judgment of May 3, 1974, other than alleged errors in dismissing their petition and in dissolving the restraining order. As we have ruled, we cannot consider these for the reason we have no jurisdiction to decide that appeal from the judgment of August 29,1973. Nothing has therefore been preserved for us to review with respect to the judgment of May 3,1974, assessing respondents’ damages and we find it necessary to dismiss appellants’ appeal and affirm the judgment of the trial court.

Appeal dismissed and judgment of the trial court is affirmed.

CLEMENS, P. J., and STEWART, J., concur.

      . An appeal lies from an order dissolving a temporary restraining order. § 512.020 V.A. M.S., Perseverance Common School District No. 90 v. Honey, 367 S.W.2d 243, 246[1] (Mo.App.1963).

      . December 16, 1973, fell on a Sunday; therefore, by Rule 44.01(a) V.A.M.R., appellants had until December 17, 1973, to file their notice of appeal.


author: SMITH, Chief Judge.

text:
    M. W. ARNOLD and Milton Spilker, Respondents-Plaintiffs, v. Emerson PRANGE, et al., Appellants-Defendants.
    No. 36873.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 13, 1976.
    Motion for Rehearing or for Transfer Denied Aug. 18, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Kenneth D. Schloman, Rolin T. Boulware, Shelbina, Rendlen & Rendlen, Charles E. Rendlen, Jr., Hannibal, for appellants-defendants.
    Mary F. Wasinger, Wasinger & Parham, Hannibal, Hadley E. Grimm, Macon, for respondents-plaintiffs.
   SMITH, Chief Judge.

Defendants’ appeal from a judgment against them for $924 actual and $1500 each punitive damages for their alleged conversion of plaintiffs’ cattle. We reverse for failure of plaintiffs to make a case.

On August 28, 1972, defendants found three steers upon their property. They promptly called the sheriff and asked him to notify plaintiffs that defendants believed plaintiffs’ cattle were loose on defendants’ land. This the sheriff did immediately. After some period of time during which plaintiffs did not show up, the cattle were taken to a pen on defendants’ farm. The next morning defendants sent a certified letter to plaintiffs which was received on the same day. That letter read:

Do you have any cattle gone? We have some yearling cattle shut in our lot. If you have some gone and can identify these — you may claim them by paying for damage.

Plaintiffs, after hearing from the sheriff, counted their cattle on August 28th and 29th and determined that three were missing. At no time did plaintiffs ever advise defendants that the cattle belonged to them. On September 13th, an adjuster for an insurance company, which covered plaintiffs, discussed with defendants’ attorney a claim for damages from the trespassing of cows upon defendants’ property. Plaintiffs’ evidence does not indicate that they were aware of when the adjuster might talk to defendants, although at some time they had advised their company of the letter from defendants. On September 21st, three appraisers were appointed to determine the damage and on that day they made their report which read:

Its been to (sic) long since the damage has been done to show now. Some beans has been already combined & it impossible to tell how much damage were really done. As now no damage.

On September 26,1972, the sheriff served a writ of replevin upon defendants but was unable to locate the three steers. The record does not show that plaintiffs at any time before the filing of that replevin suit or this conversion action on September 29, ever identified the cattle as theirs, tendered any damages, or tendered any compensation to defendants for caring for the animals. Even at trial plaintiffs did not identify the cattle as theirs. In March 1973, defendants received one hundred dollars in consideration for a covenant not to sue plaintiffs for damages done by “3 yearling cattle of unknown ownership.” That covenant also expressly stated that acceptance of the $100 “is not construed as an admission by the Pranges as to the ownership by M. W. Arnold and Milton Spilker of the 3 yearling cattle . . ..” The covenant did not purport to cover compensation for taking care of the animals. Plaintiffs’ cattle had on prior occasions trespassed on defendants’ land and at the time of the September 13 meeting between the adjuster and attorney a replevin suit against defendants by plaintiffs for earlier trespassing cattle was pending.

Defendants’ evidence, uncontradicted by any non-speculative evidence, was that the three steers left their premises on September 12. There was some variation as to whether one escaped and the others were then released or whether all three were released by defendants. We do not believe it makes any difference.

We deal first with a contention concerning jurisdiction. Appellants contend that Sec. 272.230 RSMo 1969 places exclusive jurisdiction of the cause of action in the Magistrate Court. We do not agree. See. 272.230 establishes the respective rights and responsibilities of the owner of the livestock and the person taking them up. The jurisdiction of the Magistrate Court is invoked only where the parties cannot agree on the amount of damages caused by the stock or the reasonable compensation for taking them up. The procedure in Magistrate Court is to enforce the lien of the taker-up and to establish what he is entitled to. We do not find that the statute was intended to or does abolish or supercede the common law action of conversion.

We turn to the merits. It is in that area that the provisions of Sec. 272.230 assume critical importance. Conversion may be proved in one of three ways: (1) by tortious taking; (2) by any use or appropriation to the use of the person in possession, indicating a claim of right in opposition to the rights of the owner; (3) by a refusal to give up possession to the owner on demand. Glass v. Allied Van Lines Inc., 450 S.W.2d 217[5-8] (Mo.App.1970); German American Bank v. Brunswig, 107 Mo.App. 401, 81 S.W. 461 (1904). We examine those in turn.

There was certainly no tortious taking. Sec. 272.230 provides that the landowner who finds livestock trespassing on his land, if it is a second trespass, may put up the animals, take good care of them, and immediately notify the owner. Each of these things defendants did when they took possession of the cattle. Having followed the statute, there could be no tortious taking.

Nor, did defendants make any use or appropriation contrary to plaintiffs’ ownership. The letter to plaintiffs offered possession upon compliance with the statute. Plaintiffs contend that the defendants’ action in turning the cattle out on September 12 supplies this element. We think not. The statute does require that the taker-up take good care of the animals. But, we do not accept plaintiffs’ contention that that means forever. The statute requires immediate notification to the person believed to be owner. That was done here. The statute does not provide specifically how soon the owner must respond to the notification, but we believe it implicit that he also must do so immediately. The taker-up cannot be charged with a continuing duty to maintain, at his expense, the cattle of another unknown to him. While we need not and do not attempt to determine the full meaning and ramifications of Sec. 272.230, it is questionable that the statute warrants the landowner in taking possession of the animals if this is the first trespass of a particular owner’s animals. There is certainly no provision for reimbursement of compensation for care or any lien against the animals created in that circumstance by the statute. In the absence of immediate identification by the owner, the taker-up may not be able to determine his right to possession of the animals under the statute. The option rests in the landowner as to whether he will take-up the animals or expel them. See State v. Sillbaugh, 250 Mo. 308, 157 S.W. 352[5] (1913). We find nothing in the statute that says that such option once made, cannot thereafter be changed, so long as the taker-up takes good care of the animals while in his possession, particularly where no one has claimed the animals.

This case also points up rather dramatically why immediate response is required from the owner. The report of the appraisers indicates that the inspection for damages was made more than three weeks after the cattle were found and that at that time it was too late to determine what damage had been done. The report does not say, as plaintiffs contend, that no damage had been done, but that it was too late to determine such damage. Here the damaged beans had been harvested and defendants’ damage could not be assessed. This was not the fault of defendants, who moved with the promptness required by the statute, but because the plaintiffs, for some unknown reason, elected not to claim the cattle immediately. Fifteen days passed from the time plaintiffs were aware that their cattle were on defendants’ property until they were turned out by defendants and another 14 days passed before plaintiffs first notified defendants that the cattle belonged to plaintiffs. We conclude that here the evidence clearly established defendants’ right to turn out the cattle after 15 days when no notification by plaintiffs of their ownership or willingness to assume their statutory obligation to pay defendants for their damages and compensation for the keeping of the cattle had been received. It is neither just nor equitable to require defendants to be more concerned about the cattle than the owner. Plaintiffs may not premise their recovery here upon the failure of defendants to retain the cattle in their possession after plaintiffs failed to respond to the letter.

As to the third alternative, plaintiffs cannot recover for two reasons. No legally sufficient demand was made by plaintiffs. The only demand made was in the replevin suit on September 26,1972. But, plaintiffs were not then entitled to possession of the cattle because they did not tender the compensation reasonable for the taking up and keeping of the cattle. Until they had paid defendants for the damages and made such compensation, they were not entitled to the possession of the cattle under Sec. 272.230. To this day they have not made such a tender.

Secondly, the evidence does not support a conclusion that on September 26, 1972, defendants had the cattle in their possession to return upon demand. Defendants’ evidence was that the cattle had been released on September 12. Even if the jury chose to reject that evidence, it was plaintiffs’ burden to establish possession or control in defendants on the date of demand. Plaintiffs produced two witnesses who testified that in September (the date unspecified) they had seen two black-faced cows and one white-faced cow standing by themselves in defendants’ field socially removed from the other cattle in the field. One of the plaintiffs testified that when strange cattle are placed into a field “at first” they go off and stand by themselves “nine times out of ten”. Plaintiffs contend this evidence is sufficient to support a finding that defendants had the cattle on September 26. We disagree. When this kine social phenomenon occurred is left to speculation, whether it was “at first” or not is unanswered, how long “at first” is is left to sheer conjecture. Plaintiffs’ cattle were not branded nor in any other way marked for identification.

“The burden was upon the plaintiffs to prove by a preponderance of the evidence that the identical cattle in defendant’s possession were the cattle of the plaintiffs. . . It is true this may be proved by circumstantial evidence but a verdict cannot stand that is based upon suspicion, conjecture, guesswork, surmise or mere possibility, only. There must be substantial evidence and in this case, it is lacking.” Hayes v. O’Dell, 236 S.W.2d 367[2, 3, 4] (Mo.App.1951).

Three commonly colored, socially independent cattle standing in defendants’ field sometime in September does not carry plaintiffs’ burden that defendants had the cattle in their possession on September 26.

Judgment reversed.

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

      . Considering the 511 page transcript, the number of extraneous issues tried and the general conduct of the trial, we cannot but speculate that counsel overlooked that a common operation had converted the subject matter of the suit from bull to steer.

      . Defendants’ uncontradicted evidence was that that suit was also brought without notice to defendants of plaintiffs’ claim.

      . That statute, in pertinent part, reads:
      “If any horses, cattle or other stock trespass upon the premises of another, the owner of the animal shall for the first trespass make reparation to the party injured for the true value of the damages sustained, to be recovered with costs before a magistrate, or in any court of competent jurisdiction, and for any subsequent trespass the party injured may put up the animal or animals and take good care of them and immediately notify the owner, who shall pay to the taker-up the amount of the damages sustained, and such compensation as shall be reasonable for the taking up and keeping of the animals, before he shall be allowed to remove them, and if the owner and taker-up cannot agree upon the amount of the damages and compensation either party, may make complaint to a magistrate of the county, setting forth the fact of the disagreement, and the magistrate shall be possessed of the cause, and shall issue a summons to the adverse party and proceed with the cause as in other civil cases.


author: McMILLIAN, Judge.

text:
    Clara YOUNG and Victor Young, Plaintiffs-Appellants, v. JEFFERSON HOTEL CORPORATION, Defendant-Respondent.
    No. 37270.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 13, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Robert E. Ballman, St. Louis, for plaintiff s-appellants.
    Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Joseph H. Mueller, St. Louis, for defendant-respondent.
   McMILLIAN, Judge.

Plaintiffs Victor and Clara Young, husband and wife, appeal from a judgment entered on a jury verdict in favor of defendant, Jefferson Hotel Corporation, denying the wife’s claim for damages for personal injuries and the husband’s claim for consequential damages.

On appeal, plaintiffs assert three grounds for reversal. Two of the grounds are interrelated and deal with the court’s refusal to admit certain testimony of plaintiff-wife into evidence. The remaining ground pertains to defendant’s converse instruction. For reasons herein given, we hold that the court improperly and prejudicially kept from the jury relevant evidence. Consequently, we reverse and remand the case for a new trial.

On February 21, 1971, plaintiffs attended a social affair given by the Royal Scots Social Club at defendant hotel. When plaintiffs arrived at or about 10:00 P.M., that evening, before going into the ballroom, they went to the Cole’s suite on the twelfth floor to leave their wraps. Going from the elevator on the twelfth floor to the Cole’s suite, plaintiff saw ice cubes at different places in the hallway. After leaving their wraps in the Cole’s suite, plaintiffs went to the ballroom. At 1:00 A.M., February 22, 1971, the dance broke up, and plaintiffs returned to the Cole’s suite.

According to plaintiff-wife’s evidence, bell-boys were rushing about the twelfth floor with ice buckets and trays, delivering to the rooms, including the Cole’s suite. She further testified, that, as she and her husband were leaving the elevator, one bellboy spilled some ice cubes when he attempted to avoid an individual in their party. She also saw ice cubes in the hallway between the elevator and the Cole’s suite — “in three different spots there were fifteen or twenty ice cubes in a spot.” Finally, plaintiff testified that ice and soda were ordered on at least four occasions after she had returned to the Cole’s suite. “Always when they came in the room, they were in a hurry; it was a rush.”

Another witness for plaintiff testified that at 3:30 A.M., a person in the suite, perhaps Cole, “called down for some ice.” When the bell-boy arrived, “we had half a bucket . . . and the rest of it he had wasted outside the door.” The witness said that she saw the ice cubes on the floor of the hall outside the door.

At 4:00 A.M., as plaintiff-wife was leaving the Cole’s suite, she slipped and fell on some ice cubes about “two steps out of the door.”

On cross-examination, defendant established from plaintiff-wife that nothing prevented her from seeing the ice on the floor as she left the Cole’s suite. If she had been staring down at the floor, possibly she would have seen the ice cubes.

On redirect examination, plaintiffs’ attorney asked Mrs. Young, “[W]ere you, at that time, specifically thinking about whether or not ice was on the floor of the hallway?” The court sustained defendant’s objections to the question on the grounds that the inquiry was improper redirect examination, and was both self-serving and irrelevant. Plaintiffs offer of proof indicated that Mrs. Young’s answer was “No.”

-In a case involving invitees, a possessor of land is not liable for injuries to an invitee due to dangers which are obvious, or which are as well known to the invitee as to the possessor. Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390 (1942); Stocker v. J. C. Penney, 338 S.W.2d 339, 343 (Mo.App.1960) and Restatement of Torts, Second, § 343A(1) (1965). The basis of liability in such cases is the possessor’s superi- or knowledge of an unreasonable risk of harm which the invitee does not know, or in the exercise of ordinary care, could not know. Ostresh v. Ill. Term. R. Co., 313 S.W.2d 19 (Mo.1958) and Stafford v. Fred Wolferman, Inc., 307 S.W.2d 468 (Mo.1957). Conversely, a possessor is not liable to his invitee for injuries resulting from an open, obvious condition just as well known to the invitee as to the possessor. If invitees are aware of the situation or if it is such that they could not but be conscious of it, if they were using their faculties, they cannot recover. Summa v. Morgan Real Estate Co., supra.

“. . . But such knowledge to bar recovery should be a present awareness of the defect or dangerous condition and a realization of its dangerous nature, or the condition should be of such a strikingly dangerous character that no reasonable person who had previously observed it would come into close proximity to it without recalling it to mind.” Stocker v. J. C. Penney Co., supra, 338 S.W.2d at 343, citing Butler v. City of University City, 167 S.W.2d 442 (Mo.App.1943).

Thus it can be seen that plaintiffs were required to prove “knowledge” or lack thereof of the dangerous condition existing in the hallway. The question went to this “knowledge” issue; it was both material and relevant.

While plaintiff’s statement may have been in her own interests, it was not “self-serving” in a legal sense. In Missouri, a statement which is inadmissible because self-serving is one made by a party in his own interest at some time and place out of court and does not include testimony given as a witness in court. Bernhardt v. Boeuf & Berger Mut. Ins. Co., 319 S.W.2d 672, 674 (Mo.App.1959). The rationale for this distinction is that in-court testimony can easily be challenged and examined by the opposing party. Plaintiff could have testified as to her state of mind immediately prior to the accident.

Next we take up defendant’s claim that the question was improper rebuttal. Here, during direct examination, plaintiff’s attorney did not inquire into her state of mind at the time of the accident. On cross-examination, defendant’s attorney repeatedly asked plaintiff questions such as whether she had been aware of the ice earlier in the evening and whether anything would have prevented her from seeing the ice on which she fell if she had looked. Then, on redirect, plaintiff’s attorney asked for the first time what she had been thinking at the time of the accident. Defendant’s objection was sustained.

The purpose of redirect is to allow a witness to explain his or her lack of knowledge or appreciation and thus to restore his or her testimony. Turner v. Caldwell, 349 S.W.2d 493, 496 (Mo.App.1961). Redirect may be used to rebut any matter made the subject of cross-examination, City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003, 1009 (1932). It may be used to rebut unfavorable inferences as well as particular facts. Turner v. Caldwell, supra, 349 S.W.2d at 496.

Since testimony apropos of plaintiff’s knowledge of the condition was brought out in both direct and cross-examination, evidence as to whether plaintiff was thinking of or appreciating the condition at the time of the accident was not a new area of inquiry. Defendant’s line of questioning in cross-examination was clearly an attempt to raise the inference that plaintiff either knew of the condition or reasonably should have known of it. Therefore, on redirect examination, plaintiff should have had an opportunity to refute this adverse inference. The exclusion of this evidence was error and prejudiced plaintiff’s right to present evidence on an essential element of the case.

Plaintiff’s second contention is that defendant’s converse was not appropriate to the issues. The jury should not be required to find an element of the case which is not in issue. Siedler v. Tamar Realty Co., 491 S.W.2d 566 (Mo.App.1973); Ratterree v. General Motors Corp., 460 S.W.2d 309 (Mo.App.1970). Conceded elements may be omitted from plaintiff’s verdict directing instructions. Young v. Frozen Foods Express, Inc., 444 S.W.2d 35, 40 (Mo.App.1969); Stoeppelman v. Hays-Fendler Const. Co., 437 S.W.2d 143, 150 (Mo.App.1968). However, defendant is entitled to submit the exact converse of plaintiff’s submission. Dell’ Aria v. Bonfa, 307 S.W.2d 479, 480 (Mo.1957); MAI 33.01 and cases cited therein.

Here, defendant conceded causation during the trial. Yet plaintiff submitted MAI 22.03 Verdict Directing-Invitee Injured in its entirety, including the phrase on causation. Therefore, defendant was entitled to submit MAI 33.15(3) (Conversing Negligence and Causation) rather than merely MAI 33.15(1) (Conversing Failure to Use Ordinary Care). We also observe in passing that plaintiff failed to modify MAI 22.03, as provided in its Note on Use, to conform to the evidence that she had seen the condition but subsequently forgot it. Although we find no error in this respect, both parties are hereby advised of these deviations and can correct them on retrial.

Reversed and remanded for a new trial.

WEIER, P. J., and RENDLEN, J., concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie James DANCY, Defendant-Appellant.
    No. 37205.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 13, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Robert C. Babione, Public Defender, James C. Jones, Christelle Adelman-Adler, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

The defendant was convicted of robbery in the first degree and sentenced under the Second Offender Act, § 556.280, RSMo 1969, to twenty-five years in the custody of the Department of Corrections. Defendant’s appeal is based upon two contentions. First, he asserts that the trial court improperly allowed in-court identification and testimony concerning pre-trial confrontations by two witnesses because of the substantial likelihood that there was misidentification due to the unnecessarily suggestive nature of the confrontations. Second, defendant asserts that the testimony of a police detective concerning a previous identification by a witness from police photographs was improperly admitted hearsay and was highly prejudicial to defendant’s case. For reasons hereinafter set forth, we affirm the conviction.

The robbery occurred in a bar in the City of St. Louis. Defendant with a companion entered the bar, ordered some twenty customers present to get down on the floor. After about $150.00 was taken from the cash register, the two then fled. Three witnesses were called to identify the defendant at the trial. One, who was near the door to the bar and beside the man who was struck by the defendant during the robbery, had not been shown police photographs or a lineup. He positively identified the defendant at the trial. Another witness was near the far end of the bar about fifteen feet from the defendant during the robbery. She positively identified the defendant in police photographs, at a lineup and at the trial. The bartender never positively identified the defendant. She stated that she saw police photographs and a lineup, and each time she thought the defendant “looked familiar”. At the time of trial she did not give a positive identification of the defendant, but only stated that he reminded her of one of the robbers.

Defendant contends that evidence of pretrial identifications and the in-trial identification of the last two witnesses should have been excluded because of the likelihood that they were misidentifications.

In determining whether pre-trial identification is so impermissibly suggestive as to warrant a suppression of in-trial identification, consideration must be given to (1) the presence of an independent basis of identification, (2) the absence of any suggestive influence by others, and (3) positive courtroom identification. State v. Rutledge, 524 S.W.2d 449, 456[4] (Mo.App.1975). And even though the photograph or lineup identification is tainted or in some way suggestive, where there is an untainted positive in-court identification made upon a factual basis independent from such photographic or lineup procedures, the in-court identification is proper. State v. Rutledge, supra at 456[5]. The second witness was located approximately fifteen feet from defendant when the robbery took place. She watched him particularly closely because he was standing near her husband and had earlier struck a man near her husband. The bar was described as well lit and defendant remained in her view for five minutes. These show the presence of a basis for this witness’s positive identification which is independent of the pre-trial identification. Her testimony was properly admitted.

The third witness did not at any time give a positive identification of the defendant. Her failure to identify the defendant does not show suggestive influence on the other witness but only that she could not positively identify him. State v. Knox, 529 S.W.2d 455, 462[7] (Mo.App.1975). The failure of this witness to positively identify the defendant could not be suggestive of anything harmful to the defendant. Her failure to make positive identification could be considered by the jury in assessing the credibility of the witness, and was properly admitted in the evidence. State v. McKinney, 498 S.W.2d 768, 770[2] (Mo.1973), cert. den., 415 U.S. 926, 94 S.Ct. 1433, 39 L.Ed.2d 483 (1974).

Defendant’s second contention is that the testimony of a police detective concerning the identification of two photographs made by a Mr. Emmett, one of the customers in the bar but not called to the witness stand, should have been ruled inadmissible. Defendant relies on the rule that absent impeachment of identifying witness’s testimony with respect to identification, testimony of an officer that an identifying witness had identified the defendant by means of a photograph is inadmissible. State v. Collett, 526 S.W.2d 920, 929[9-11] (Mo.App.1975).

The trial judge ruled the testimony admissible on the basis that defense counsel had “opened the door” to this testimony by her previous questioning. “Opening the door” occurs when either party introduces part of an act, occurrence or transaction. Then the opposing party is entitled to introduce or to inquire into other parts of the whole thereof in order to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced by his adversary, or prove his version of the incident. State v. Odom, 353 S.W.2d 708, 711[4] (Mo.1962); State v. Granberry, 530 S.W.2d 714, 728[23] (Mo.App.1975). Earlier in the trial defense counsel, over objection of the prosecutor, asked the witness if she had seen the police officer show photographs to a Mr. Emmett. During cross-examination, defense counsel asked a police officer if Mr. Emmett had been shown photographs to identify. Then on redirect examination of the police officer, the prosecutor asked the officer if Mr. Emmett had pointed to any of the photographs. The officer responded that Emmett had pointed to two. Previous defense questions had inferred that Mr. Emmett and possibly other customers present at the robbery could not identify the photograph of defendant. The prosecutor was properly permitted to ask these questions to counteract the inference that Emmett did not recognize the photographs. If such questioning had been forbidden, the defendant could have obtained an unfair advantage by offering a portion of the facts relating to this evidence which would ordinarily not have been admissible, and then raising objections to the admission of the remainder of the transaction.

The judgment is affirmed.

McMILLIAN and RENDLEN, JJ., concur.


author: TURNAGE, Presiding Judge.

text:
    Beryl I. LINDSEY, Successor to Howard E. Lindsey, Respondent, v. John L. TAYLOR, Appellant.
    No. KCD 27311.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 30, 1976.
    Application to Transfer Denied Oct. 12, 1976.
    Aaron A. Wilson, City Atty., Dan G. Jackson, III, Asst. City Atty., Kansas City, for appellant.
    Charles C. Shafer, Jr., A. Howard Cham-berlin, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

This appeal involves the review of an administrative decision by the Personnel Board of the City of Kansas City. The circuit court held the decision of the Personnel Board was not supported by substantial and competent evidence and reversed the order which found Howard Lindsey had resigned his city employment. Affirmed.

Howard E. Lindsey was employed by the City of Kansas City in the Park Department as the clubhouse manager of Swope Park Golf Course Number 1 and Number 2. John L. Taylor was the City Manager of the City of Kansas City at the time Lindsey’s appeal to the Personnel Board was made. After the decision of the Personnel Board, Lindsey died and while this matter was pending in the circuit court on appeal from the decision of the Personnel Board, his wife, Beryl I. Lindsey was substituted in his stead.

Lindsey had an outstanding record with the Park Department for a number of years until May, 1971. At that time some friction developed between Lindsey and the head of the Park Department, Frank Vaydik.

There was no dispute as to the facts before the Personnel Board. Lindsey had been off work on sick leave the first part of May, 1971, and was scheduled to return to work on May 20. Shortly prior to that time, Lindsey requested a hearing before Vaydik and the business manager of the Park Department concerning his claim for compensatory time off as a result of overtime he had worked the previous year. The operation of a golf course involved long hours during the summer, but, of course, the activity was greatly reduced in the winter time. Lindsey felt he had worked excessive hours in the summer and wanted more time off in the winter.

When this disagreement concerning time off was not satisfactorily resolved as far as Lindsey was concerned, he notified Vaydik he was not going to report to Minor Park, where he had been reassigned from Swope Park. Lindsey requested a leave of absence without pay in order to try to get his grievance settled, but Vaydik denied this. Lindsey then requested to be placed on sick leave status and presented a doctor’s letter, but Vaydik denied this also.

Following these requests and denials, Vaydik wrote Lindsey on May 25, 1971, as follows:

“You are hereby directed once again to report for work at your assigned duty station. Failure to do so within 24 hours of receipt of this letter will result in your being considered absent without authorized leave and in that event, appropriate steps in accordance with the personnel rules and regulations will be taken.”

After Lindsey failed to report and on May 28, Vaydik caused a form to be filed with the Personnel Department of the City stating that Lindsey was deemed to have resigned in accordance with Section A8.24 of the City’s Administrative Code because he had been absent without authorization on May 21, 22, 23, 24 and 27. This Section provided:

“Sec. A8.24. Absence without leave.
“Any unauthorized absence of an employee from duty shall be deemed to be an absence without pay and may be made grounds for disciplinary action by the department head. In the absence of such disciplinary action, any employee who absents himself for three (3) or more days without authorized leave shall be deemed to have resigned. Such absence may be covered, however, by the department head by a subsequent grant of leave with or without pay where extenuating circumstances are found to have existed.”

On May 28, Lindsey was advised by the City’s Personnel Director that he was no longer an employee of the City because he had “resigned himself” under the terms of Section A8.24. Lindsey thereupon filed an appeal to the Personnel Board of Kansas City. After hearing evidence, the Personnel Board found Lindsey “refused to go to work for five consecutive working days after having been advised that this would be considered absence without authorized leave.” The Board concluded that Lindsey was properly deemed to have resigned under the provisions of Section A8.24.

The scope of review of an administrative order includes “a determination of whether the decision is authorized by law and is supported by competent and substantial evidence upon the whole record.” Mer ritt v. State Hospital No. 1, Fulton, 403 S.W.2d 940 (Mo.App.1966). If not so supported, the decision cannot stand.

The City raised before the Personnel Board, and makes the same objection in this court, that under Section A8.24 the City does not terminate an employee but the action is on the part of the employee. Therefore, the City argues it has not terminated the employee and thus he is entitled to no administrative review. The Personnel Board rejected this argument and held the filing of a report of resignation would constitute a removal. The Board further pointed out to hold otherwise would deny the employee any administrative review of the facts surrounding his termination, including the determination of whether in fact he was absent for three or more days without authorization. In that view, the Personnel Board was correct and this court holds the filing of report of resignation on the grounds that an employee was absent without authorization for three or more days does constitute a removal which gives rise to a right of appeal by the employee.

On the question of unauthorized absence on the part of Lindsey, the City insists that his refusal to report to his new post at Minor Park, despite being ordered to do so by Vaydik, constituted the required absence to support a finding that he was deemed to have resigned. On the other hand, Lindsey urges that he could not be considered to have resigned when he was asking for leave without pay or sick leave almost every day he was absent.

Neither of these contentions reach the only question on this appeal — was there evidence from which the Personnel Board could have found Lindsey was absent without authorization three or more days? To constitute evidence under Section A8.24 to find Lindsey was deemed to have resigned, there had to be evidence his absence was unauthorized on the days mentioned in Vaydik’s report. The only evidence concerning Lindsey’s status as to unauthorized absence was the May 25 letter. The statement made by Vaydik there reveals the City did not consider Lindsey’s absence to be unauthorized until twenty-four hours after Lindsey received Vaydik’s letter of May 25. The evidence is undisputed that Lindsey received this letter at about 1:30 P.M. on May 26. Obviously, twenty-four hours thereafter would be 1:30 P.M. on May 27. Thus, although Lindsey was absent more than three days, the City did not consider him to be absent without authorization until May 27.

It is evident that Lindsey was not absent without authorization on the days mentioned as found by the Personnel Board. At most he had only been absent without authorization for one day. In this circumstance the finding of the Personnel Board is not supported by substantial and competent evidence and was properly reversed by the Circuit Court.

The judgment reversing the order of the Personnel Board is affirmed and the court is directed to enter a judgment finding that Howard Lindsey did not resign his employment with the Park Department of the City, and ordering that he be reinstated as an employee from May 28,1971, to the date of his death.

All concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Frank COOPER, Appellant.
    No. 10173.
    Missouri Court of Appeals, Springfield District.
    Aug. 6, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Sept. 2, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Frank Cooper, pro se.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Frank Cooper was convicted of second-degree murder [§ 559.020, RSMo 1969] by a Dunklin County jury and sentenced by the trial court under the Second Offender Act [§ 556.280, RSMo 1969] to a 50-year prison term. We affirm.

This appeal vividly demonstrates the inherent difficulties of a criminal defendant attempting to obtain appellate review of his conviction by proceeding pro se. Shortly after the defendant’s court-appointed trial attorneys filed the notice of appeal, the defendant discharged his attorneys.

The transcript was completed by the court reporter 22 days after judgment was entered and 17 days after the' notice of appeal was filed. No request for an extension of time in which to file the transcript was ever made of the trial court and no order granting an extension was entered. In April of this year the state’s motion to affirm the judgment because of defendant’s dereliction in filing the transcript was denied, and we granted defendant two separate extensions of time in which to file the transcript. Our clerk received and filed the transcript June 1, 1976.

Defendant’s pro se brief was filed the following day, June 2, and violates Rule 84.04, V.A.M.R., in most respects. It does not contain a fair and concise statement of the facts relevant to the questions sought to be presented for determination and is argumentative. One or more of the points fail to inform us as to wherein and why the ruling of the trial court is considered erroneous. The points are replete with abstract statements and include long lists of citations. The argument portion of the brief does not contain page references to the transcript and in the main consists of quotations of abstract statements from most of the 67 cases cited, without showing their applicability to actions or rulings of the trial court.

Somerville, J., of the Kansas City District, recently had occasion to discuss the matter of pro se briefs and the absolute necessity of such briefs complying with appellate procedural requirements and rules. In State v. Sterling, 536 S.W.2d 843, 845-846 (Mo.App.1976), Judge Somerville wrote:

“This court is being confronted with a steady progression of instances of ac-cuseds in criminal cases on appeal filing pro se briefs even though their counsel of record have already filed briefs. Understandably, the pro se briefs which are filed rarely comply with the rules governing appellate procedure and, in many instances, infuse the respective appeals with elements of confusion. Appellate courts faced with this situation are placed in the incongruous position of either summarily rejecting such briefs for noncompliance with the rules, thereby giving the appearance of arbitrarily disregarding the rights of those seeking redress before them, or of expending an inordinate amount of time attempting to draw some semblance of meaning from them. In those instances where appellate courts, out of conscience, yield to the latter course, the entire appellate process is reined to almost a complete standstill because of the expenditure of time usually required to ferret out and understand the issues sought to be raised. Time and experience have taught that the administration of justice is best served by adherence to procedural requirements and rules. When procedural requirements and rules are lightly ignored, confusion is most often the result, and if justice then emerges it is more by chance than by design. Pro se briefs in criminal cases filed out of time without leave of court, and which bear little or no resemblance to compliance with appellate procedural requirements and rules, in most instances, confuse rather than aid the appellate process. Unrestrained consideration of them tends to place meaningful appellate consideration of criminal appeals in serious jeopardy. Although this court, with great reluctance, has concluded to review the issues raised by defendant in his pro se briefs for the simple reason that existing case law prevails to support a ready disposition of them, a caveat is sounded with respect to entertaining issues sought to be raised in future criminal appeals by pro se briefs which fail to comply with appellate procedural requirements and rules. If accuseds in criminal appeals represented by counsel insist on representing themselves separate and apart from the efforts of counsel of record, then they must abide by and be bound by the same procedural requirements and rules imposed on counsel and stand ready to suffer the same consequences for noncompliance.”

The foregoing applies equally to an appeal such as this one where a criminal defendant chooses to proceed solely pro se. We have given serious consideration to reviewing only those matters required by Rule 28.02 V.A.M.R., by reason of the multitude of violations by the defendant in prosecuting this appeal, but have concluded to review and rule the issues as we discern them from the briefs of the parties.

The defendant’s main complaint relates to his confession that he shot and killed George Williams, Jr. His motion to suppress this confession, because involuntary, was ruled adversely to him following a pretrial evidentiary hearing. There was substantial evidence to support the trial court’s findings and conclusion that the confession was voluntarily given and therefore constitutionally sound and admissible. State v. Lyle, 511 S.W.2d 817 (Mo.1974). The jury, under proper instruction [MAI—Cr 3.44], found the confession was voluntarily given. Defendant’s proffered instruction was contrary to Notes on Use No. 2 to MAI-Cr 3.44 and the court did not err in failing to give the same.

Another and more cogent reason exists as to why there is no merit in defendant's multiple contentions relative to his confession. Defendant voluntarily testified that he shot Williams but claimed the shooting was done to protect a homosexual third-party.

In State v. Ussery, 357 Mo. 414, 208 S.W.2d 245 (1948), the defendant confessed a robbery and killing to officers. His motion to suppress the confession for alleged involuntariness was overruled. He testified to the matters contained in the confession but claimed the shooting was in self-defense. The court’s reasoning and ruling in Ussery is as follows:

“But even more to the point Ussery himself removed any objection to admitting the confession in evidence by testifying to the matters contained in them, thus confirming their truth. Involuntary confessions are rejected as evidence because they are regarded as testimonially unreliable and untrustworthy [citation omitted]. Yet when the truth of a confession is established by the very person who made it under such solemn circumstances as on oath in open court, he may not be permitted to claim error because of the use of the confession on the ground it was involuntary.” 208 S.W.2d at 246— 247 (emphasis added).

Defendant avers the jury panel should have been discharged because in reply to a question on voir dire one of the members of the panel said: “I don’t know for sure if it’s the same Frank Cooper, but I was in Kennett for a while, in jail here for a while, I was in jail a little over two months with a Frank Cooper, and I think it’s the same one. It may not be the same Frank Cooper.” No authority is cited in support of this contention and the argument portion of defendant’s brief is silent on the issue. When a point appears without citation of authority and little or no argument, it has not been preserved for appellate review. State v. Warters, 457 S.W.2d 808 (Mo.1970); State v. Orr, 493 S.W.2d 374 (Mo.App.1973). Furthermore, the evaluation of the effect of a prospective juror’s remarks is largely entrusted to the discretion of the trial court. State v. Turner, 462 S.W.2d 723 (Mo.1971). The trial judge noted the panel member did not say he had been in jail with the defendant and that it was common knowledge that persons charged with crimes are arrested and placed in jail until they make bond. We find no abuse of discretion.

Defendant’s complaint the jury panel should have been quashed because some of its members had heard or read news reports concerning the case is equally without merit. The trial judge made specific inquiry as to whether as a result of hearing or reading about the case any of the panel had formed an opinion concerning the guilt or innocence of the defendant. No member of the panel responded in the affirmative.

Familiarity with facts, or purported facts, from news reports without the formation of an opinion does not necessarily require disqualification of a juror. State v. Spica, 389 S.W.2d 35 (Mo.1965), cert. denied, 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966). Defendant’s right to a fair and impartial jury does not extend to having a jury panel which is completely devoid of any news reports, and as the United States Supreme Court recently ruled in Nebraska Press Association v. Stewart, - U.S. -, 96 S.Ct. 2791, 49 L.Ed.2d -, (U.S. June 30, 1976), “ . . . [Tjhese cases demonstrate that pretrial publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial.” Id. at ——, 96 S.Ct. at 2800.

In the case before us the defendant has wholly failed to demonstrate any prejudice as a result of the allegedly adverse pretrial publicity. No challenge for cause was le-velled at any of the panel members who acknowledged they had heard or read articles relating to the crime. We also take note of the fact that the defendant told his trial attorneys and the court that he did not want a change of venue from Dunklin County. We find no abuse of discretion in the ruling of the trial court.

In his final point the defendant contends the trial court erroneously permitted evidence of unrelated crimes to be considered by the jury, denying him a fair and impartial trial. The argument portion of defendant’s brief does not refer to any transcript page in support of this point. The brief does not inform us what crimes the defendant alludes to in his point.

The general rule is that proof of the commission of separate and distinct crimes by the defendant is not admissible, unless the proof has a legitimate tendency to establish the defendant’s guilt of the charge for which he is on trial. State v. Kilgore, 447 S.W.2d 544 (Mo.1969). However, there are five exceptions to the general rule. Such evidence will be admitted when it tends to establish (1) motive; (2) intent; (3) the absence of accident or mistake; (4) a common scheme or plan; or (5) the identity of the person charged. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (Mo. banc 1954).

We know from the defendant’s confession and trial testimony that after he fatally wounded Williams he fled the state in the victim’s automobile. He took with him the rifle (owned by Williams) and threw it in a river somewhere in Arkansas. He also took Williams’ hunting knife (thrown out of the car in Kennett) and a pistol belonging to Williams. In his flight he used a credit card issued to the dead man.

If, as we assume, the defendant’s point and argument are directed to the foregoing matters, we have no hesitancy in holding such acts and conduct were clearly relevant to the issue of defendant’s guilt of the murder of Williams. Flight is evidence of guilt. State v. Simmons, 494 S.W.2d 302 (Mo.1973). Evidence of another crime committed while in the process of flight is admissible. State v. Bevineau, 460 S.W.2d 683 (Mo.1970). The disposal of the murder weapon shows consciousness of guilt or desire or disposition to conceal the crime. State v. Hudson, 521 S.W.2d 43 (Mo.App.1975).

We rule the evidence relating to the defendant’s flight, the car, the rifle, the knife, the pistol and the credit card tended to establish the defendant’s identity and his motive, intent and plan, as he put it, to “rip-off” Williams. The point is denied.

We have reviewed those matters required by Rule 28.02, V.A.M.R., and find no error.

The judgment is affirmed.

All concur.

      . In addition to the two prior felonies charged in the information, defendant testified he had since been convicted of three more felonies.

      . Defendant’s brief shows it was prepared by inmate Melvin Leroy Tyler. See: State v. Tyler, 454 S.W.2d 564 (Mo.1970); Tyler v. State, 485 S.W.2d 102 (Mo.1972); Tyler v. State, 496 S.W.2d 793 (Mo.1973); Tyler v. State, 501 S.W.2d 189 (Mo.App.1973); Tyler v. Swenson, 440 F.2d 621 (8th Cir.1973); Tyler v. Swenson, 382 F.Supp. 1028 (E.D.Mo.1974), aff'd 527 F.2d 876 (8th Cir.1976); Tyler v. Swenson, 527 F.2d 877 (8th Cir.1976); Tyler v. Wyrick, 405 F.Supp. 779 (E.D.Mo.1975).

      . While defendant was under arrest and in custody in Jackson County for other crimes (robbery and auto theft) and confessing to those crimes, he told the authorities he had killed Williams a few days before in Dunklin County and told them where the body could be found.

      . See, State v. Crow, 486 S.W.2d 248 (Mo.1972); State v. Taylor, 472 S.W.2d 395 (Mo.1971); State v. McGee, 447 S.W.2d 270 (Mo.banc 1969), cert. denied, 397 U.S. 1056, 90 S.Ct. 1400, 25 L.Ed.2d 672 (1970); State v. Grey, 525 S.W.2d 367 (Mo.App.1975); State v. Williams, 522 S.W.2d 641 (Mo.App.1975).

      . The newspaper articles have not been filed in this appeal.