author: DOWD, Judge.

text:
    In re the INCORPORATION OF the CITY OF RIVER BEND. STATE ex rel. Carl W. WEBB et al., Relators-Petitioners-Appellants, v. Hon. Lawrence K. ROOS, Supervisor of St. Louis County, et al., Respondents, New Four Season, Inc., et al., Intervenors-Respondents, Edgewater Health Care, Inc., a corporation, etc., Intervenor-Respondent.
    No. 36107.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 12, 1975.
    Motion for Rehearing or Transfer to Court of Appeals En Banc Denied Oct. 22, 1975.

      Zimbalist, Schramm & Walker, Clayton, for relators-petitioners-appellants.
    Thomas W. Wehrle, County Counselor, James H. White, Assoc. City. Counselor, Clayton, for defendant-respondents.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, Shulamith Simon, St. Louis, for intervenors-respondents.
    John P. Sullivan, Clayton, for intervenor-respondent.
   DOWD, Judge.

Appeal from the circuit court’s dismissal of a petition to review a decision by the St. Louis County Council that denied an election for a proposed municipal incorporation.

On October 19,1972, appellants presented their petition to the St. Louis County Council, requesting that the County Council hold an election for the incorporation of the proposed City of River Bend. Appellants instituted their incorporation action under § 72.-080 RSMo. 1969 (1971 Supp.). That section provides that any unincorporated city, town or other area may be incorporated “whenever a number of qualified electors equal to fifteen percent of the votes cast in the last gubernatorial election in the area proposed to be incorporated shall present a petition to the governing body of the county in which such city or town or area is situated.” If the governing body is satisfied that the requisite number of electors have signed the petition, it shall declare that an incorporation election be held. § 72.080.

The County Council denied appellants’ petition on February 8, 1973. Thereafter, on March 9, 1973, appellants filed a two-count petition in the circuit court. Count one was a petition for a writ of mandamus, seeking to compel the County Council to hold the requested incorporation election. Count two was a petition for judicial review, seeking to reverse the County Council’s order denying the election. Upon motion by respondents, the trial court dismissed both counts. We affirm.

The motion to dismiss appellants’ petition was granted because notice of the appeal from the County Council’s decision was not filed with the County Council within ten days of the date of the Council’s decision, as is required by § 49.230 RSMo. 1969. Appellants contend that § 49.230 is not the exclusive avenue for review of the County Council’s decision and that they have the option to proceed under the Administrative Review Act, Chapter 536, which allows thirty days for serving notice of an appeal. § 536.110(1) RSMo. 1969 and Rule 100.04(a). The narrow issue before this court is whether § 49.230 is the exclusive vehicle for appeal.

§ 536.100 and Rule 100.03 provide that: “Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review thereof . . . unless some other provision for judicial review is provided by statute” (Emphasis added).

The trial court concluded that § 49.230 was such an “other provision” and thus precluded review under § 536.100 and Rule 100.03. Section 49.230 provides in pertinent part:

“Appeals from the decisions, findings and orders of county courts of a quasi-judicial nature affecting private rights shall be made within ten days from the date of the decision, findings or order by filing notice of appeal with the county court. . The circuit court shall proceed to hear and determine the case in the manner provided by section 536.140 RSMo. Appeal from the decision on review may be taken by the county court or other aggrieved party as in civil cases.”

We believe two cases effectively counter appellants’ contention. In the case of In Re City of Duquesne, Missouri, 313 S.W.2d 65 (Mo.App.1958), an appeal was taken from a county court’s denial of an incorporation petition submitted under § 72.080 RSMo. 1949. One jurisdictional issue on appeal was whether appellants, who brought the appeal under § 49.230, had failed to comply with section 536.110 RSMo. 1949. The court concluded that § 536.110 was pre-empted by § 49.230, which provided for appeals from judgments of a county court. The position taken by the appellate court was confirmed by the Supreme Court opinion upon transfer of the case. Petition to Incorporate City of Duquesne, 322 S.W.2d 857 (Mo.1959). The court noted (at p. 859):

“The provisions of § 536.110 do not necessarily apply where some other provision covering the method of judicial review from the administrative agency is provided for by statute (§ 536.100). Appeals are authorized from the judgments and orders of county courts (§ 478.070(4)), and may be prosecuted in the same manner as appeals from magistrate to circuit courts (§ 49.230); that is, by filing a proper and timely notice of appeal (§ 512.190). The suggestion that petitioners’ appeal was not properly taken is disallowed.”

We further note that several other appeals from county court municipal incorporation decisions have been brought under § 49.230, and the correctness of the method of appeal was never an issue in these cases. In Re Village of Lone Jack, 419 S.W.2d 87 (Mo. banc 1967) (incorporation sought under § 80.020 RSMo. 1959); In Re Village of Pleasant Valley, 272 S.W.2d 8 (Mo.App.1954) (incorporation sought under § 80.020 RSMo. 1949); Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626 (banc 1953) (incorporation sought under § 80.020 RSMo. 1949), overruled on other grounds; State ex rel. Leggett v. Jensen, 318 S.W.2d 353 (Mo. banc 1958).

Appellants direct our attention to one case that seems to contradict the procedural holdings of the above cited cases. In Re Town of Blue Summit, 461 S.W.2d 332 (Mo.App.1970), was a case wherein the Kansas City Court of Appeals was confronted with an appeal from a county court decision concerning an incorporation petition brought under § 80.020 RSMo. 1959. At one point in its lengthy decision the court noted (at p. 334):

“No appeal was taken from the judgment of incorporation entered on April 11, 1967, as is provided for by Section 49.230 V.A.M.S. Nor was review sought under provisions of Chapter 536, Administrative Procedure and Review. Consequently, that judgment became final and conclusive on May 11, 1967 — hence impregnable to collateral assault and subject to question only by a direct proceeding instituted for that purpose.” (Emphasis added).

We believe the above italicized language was essentially dictum, because the finality of the county court’s order and the lack of appeal therefrom do not seem to have been litigated issues in the case. We further note the court did not cite any authority to support its statement. Therefore, the above quoted language from In Re Town of Blue Summit, supra, is not proper authority to sustain appellants’ position that Chapter 536 and § 49.230 are alternative methods of appeal from a county court’s decision on a municipal incorporation petition.

Appellants’ next contention concerns the respective location of Sections 49.230 and 72.080 within the Missouri Revised Statutes. Recognizing that § 536.100 and Rule 100.03 preclude judicial review if “some other provision for judicial review is provided by statute,” appellants cite several cases that hold that the Administrative Procedure Act does not apply to appeals from agencies which have their own separate review provision set up in their own special statutes. See, e. g., State ex rel. State Tax Commission v. Luten, 459 S.W.2d 375 (Mo. banc 1970); Brogoto v. Wiggins, 458 SM.2d 317 (Mo.1970). Appellants argue that these cases indicate that appeal under the Administrative Procedure Act lies unless the separate review provision is incorporated in or very near the very section under which the administrative officer or body acted. According to appellants, since § 72.080 does not incorporate within its terms a provision for review, then § 49.230 should not be treated as the exclusive method of review.

This is not the law. First, § 536.100 and Rule 100.03 refer merely to “some other provision for judicial review”; they do not require the judicial review provision to be embodied in the enabling act itself. Secondly, § 49.230, by its own terms, applies to all decisions, orders and findings of county courts and certainly includes decisions rendered under § 72.080. Thirdly, the cases cited by appellants involved review provisions that actually were embodied in or very near the enabling act itself. However, we find no case holding that the review provisions must be located in or very near the enabling act in order to preclude appeals under the Administrative Procedure Act. Section 72.080 does have its own separate review provision set out in its own special statute, and that separate review provision and special statute is § 49.230. Lastly, impractical results would follow from appellants’ argument. Appellants’ contention, if sustained, would require that every review provision of an enabling action be incorporated in or proximate to the enabling act. This would lead to needless legislative redundancy. Appellants’ contention is without merit.

The question that remains is whether the Duquesne holdings are altered by the fact that in this case it was the county council that acted and not a “county court.” In other words, do the appeal provisions of § 49.230 apply to decisions of a county council as well as a county court?

The courts of this state have not hesitated to substitute the words “county council” for the words “county court” whenever it was clear that the legislature intended a statute to apply equally to both. State ex inf. Eagleton v. Champ, 393 S.W.2d 516 (Mo. banc 1965), was a quo warranto proceeding to have a St. Louis County village’s incorporation and its later annexation action declared void. The village had been incorporated under § 80.020 RSMo. 1959 and its later annexation action had been conducted under § 80.030 RSMo. 1959. Both statutes use the words “county court” instead of county council. The court noted (at p. 521): “St. Louis County is a charter county and its County Council, established under its charter, is charged with the duties normally performed by the county court in most counties. It acted on the petition to incorporate the Village of Champ under the provisions of § 80.020.” Also see, St. Louis County v. Village of Champ, 438 S.W.2d 205, 213 (Mo. banc 1969) (construing §§ 71.-860-.920 RSMo. Supp. 1963); Emerson Electric Manufacturing Company v. City of Ferguson, 376 S.W.2d 643, 648 (Mo.App.1964) (construing § 80.030 RSMo. 1949).

We hold that the fact that the petition to incorporate in this case as brought before a county council (and not a county court) does not change the rule of Duquesne, supra, that appeals from § 72.080 are taken in accordance with § 49.230.

We hasten to point out that our holding that the lower court review of this case should have been taken pursuant to § 49.-230 does not mean that we equate the county court with the county council under all sets of facts. There are cases clearly to the contrary. See, e. g., Schmoll v. Housing Authority of St. Louis County, 321 S.W.2d 494, 498 (Mo.1959); State ex rel. Town of Olivette v. American Telephone and Telegraph Company, 280 S.W.2d 134, 137 (Mo.App.1955). We merely hold that an aggrieved party in a municipal incorporation action brought under § 72.080 must take an appeal by complying with § 49.230. That was the status of the law prior to the 1971 change of § 72.080, and we believe no distinction can be made in this instance between a county court and a county council. Both serve in the same capacity, and we believe the legislature intended that § 49.-230 serve as the appellate vehicle from decisions of both county courts and county councils under § 72.080.

Since § 49.230 was the proper method of appeal from the County Council’s decision, petitioners’ notice of appeal was not timely filed and the circuit court was correct in dismissing the appeal.

Appellants’ remaining contention is that the court erred in dismissing the count for mandamus. That count was brought under § 536.150 and Rule 100.08. If another provision for judicial review applies, mandamus will not lie. § 536.150; Rule 100.08. Since § 49.230 provides for review of § 72.080 municipal incorporation cases, review by mandamus under § 536.150 and Rule 100.08 is precluded.

The judgment is affirmed.

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

      . Prior to 1971, § 72.080 RSMo. 1969 used the language “county court” for governing body.

      . Section 80.020 provides the method for incorporating an area into a town or village, and Section 72.080 provides the method for incorporating an area into a city or town. Whether the petition is brought under § 72.-080 or § 80.020, appeals from the denial of the petition for municipal incorporation are governed by the same review provisions.


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge. PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Dexter DAVIS, Defendant-Appellant.
    No. 36696.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 14, 1975.
    On Rehearing Nov. 18, 1975.

      Charles D. Kitchin, Public Defender, Joseph W. Warzyeki, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean and Timothy J. Verhagen, Asst. At-tys. Gen., Jefferson City, for respondent.
   NORWIN D. HOUSER, Special Judge.

Convicted by a jury of robbery in the first degree with a dangerous and deadly weapon and sentenced to the department of corrections for twenty years, Dexter Davis has appealed.

Appellant suggests reversible error in admitting in evidence Exhibit No. 1, a sawed-off shotgun. Appellant argues that Exhibit No. 1 proved no issue in the case, was highly prejudicial, not sufficiently identified, not found in the possession or under the dominion or control of appellant recently or when discovered five days after the robbery, and not relevant and material because not shown to have been used in the commission of the robbery. This argument has substance and requires reversal of the judgment of conviction.

In State v. Richards, 334 Mo. 485, 67 S.W.2d 58 (1933), a first degree murder case in which the victim was killed by pistol shots, officers conducting a search of code-fendant Wright’s home a week after the homicide found several articles including a pistol, which was introduced in evidence in Richards’ trial over objection. The Supreme Court reversed, noting that the record did not contain any testimony that Richards ever possessed or even saw any of the articles found, stating 1. c. 60 that “[u]pon no theory of law was the property taken from the Wright home evidence against [Richards]”; that “ * * * articles found on a person other than the defendant on trial, long after the commission of the offense, are not admissible against the defendant minus a showing of some connection of the articles with the defendant. * * * The state wholly failed to show any connection between the articles found at the Wright home and appellant. The evidence was therefore inadmissible for any purpose against this appellant. * * * ” It is a general rule that “weapons and objects not connected with the defendant or the crime are not admissible unless they possess some probative value.” State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299 (1944). In reversing a murder conviction for error in admitting a pistol in evidence not shown to have been connected with defendant or his crime the Supreme Court in Wynne commented on the “natural tendency to infer from the mere production of any material object, and without further evidence, the truth of all that is predicated of it”; and the fact that “ * *' * the sight of deadly weapons * * * tends to overwhelm reason and to associate the accused with the atrocity without sufficient evidence” (4 Wigmore, Evidence, § 1157, p. 254). The Supreme Court concluded that the inherent nature of the lethal weapon (an automatic pistol) “was such, under the circumstances of this case, that the jury would undoubtedly have a tendency to infer from a demonstration with it ‘the truth of all that is predicated of it’ when in fact it had nothing whatever to do with the defendant or the crime.” 182 S.W.2d 1. c. 300[9]. The Richards and Wynne cases have been repeatedly cited with approval by the appellate courts of this State. Another persuasive case is State v. Smith, 357 Mo. 467, 209 S.W.2d 138 (1948), a burglary and larceny case in which it was held error to receive in evidence two pistols found in the purse of defendant’s wife at the time defendant was arrested (there the pistols actually belonged to the defendant) where there was no claim that defendant used the pistols in the commission of the crimes; or that his wife was a party to the burglary and larceny, or that the pistols had any connection with the offenses. The court said, 1. c. 142[7]: “That the introduction in evidence, before this mixed jury, of these lethal weapons, under the circumstances, was erroneous and prejudicial is self-evident.”

Exhibit No. 1 was found five days after the robbery, not at the home of appellant but at the home of two brothers, Ricky and James Jones, who lived at 1400 East Prairie Street in St. Louis. Officers watching an auto parked in that block observed four young black males (later identified as Ricky Jones, James Jones, Ernest Murphy and Dexter Davis) enter that automobile. They were observed by the officers walking down the sidewalk on East Prairie, near Von Puhl Street, and they “came from the house on that block.” The automobile drove away, with James Jones driving and appellant a passenger in the back seat. The police car followed, turned on lights and siren in attempt to halt the vehicle. Instead the automobile increased its speed, and a 12-block high-speed chase ensued. When the automobile was finally brought to a halt the four were arrested and later placed in a lineup. Mrs. Steghaus, an employee at the Western Auto Store which was robbed, positively identified Dexter Davis and Ernest Murphy as two of the three participants in the Western Auto Store robbery. Later that day or the next day the officers searched the home of the Jones brothers, where they found Exhibit No. 1 under the mattress in a back bedroom. Exhibit No. 1 was not identified as the shotgun used in the robbery. No connection between Exhibit No. 1 and the crime was shown. The witnesses testified that it was similar, or looked like, the shotgun used on that occasion. No connection between Dexter Davis and the Jones house on East Prairie Street was shown. He lived elsewhere. It was not shown that Ernest Murphy lived at the Jones residence. It was not shown that Dexter Davis possessed Exhibit No. 1, either before or after his arrest, or that he ever had knowledge of its existence. The record does not connect either of the Jones brothers with the Western Auto Store robbery; neither Ricky nor James Jones was shown to have been Dexter Davis’ “criminal associates” in the commission of that crime, so as to give rise to a claim that Exhibit No. 1 was admissible under the rule quoted in State v. Cuckovich, 485 S.W.2d 16, 23 (Mo. banc 1972), that a weapon found in the possession of the criminal associates of an accused which is similar to the weapon used at the crime, or which under the circumstances justifies an inference of the possibility of its having been used, is admissible for the purpose of showing availability to accused of the means of committing the crime. Nor is the admission of Exhibit No. 1 in evidence to be condoned on the basis of State v. Underwood, 470 S.W.2d 485 (Mo.1971), cert. den. 405 U.S. 928, 92 S.Ct. 980, 30 L.Ed.2d 802. In Underwood the pistol actually used by defendant was put in evidence; the proof of defendant’s guilt was strong, and the identification of the other man (in whose possession the pistol in question was found) as the brother of the defendant came in without objection. The circumstances which impelled the Supreme Court to hold nonprejudicial the admission in evidence of the pistol found on Underwood’s brother are not present here. The shotgun used in the Western Auto Store robbery was not produced and put in evidence at this trial. While the State made a submissible case it was not an especially strong case. The store manager, present at the robbery, could not identify appellant as one of the participants. He could not “say for sure.” The men in the lineup “looked similar” to the robbers but he would not swear to their identity.

Recapitulating, Exhibit No. 1 was not connected with the crime. It was not found in the possession of appellant or his criminal associates, or under circumstances justifying an inference of the likelihood or possibility of its having been available to appellant for use in the robbery, or that it was otherwise connected with appellant. It was found five days after the robbery at a place far removed from the robbery, in the home of persons who so far as this record shows had nothing whatever to do with the robbery. This lethal weapon, with its potential for unduly impressing the jury, was not admissible in evidence under the decided cases. The error in admitting Exhibit No. 1 in evidence “should not be declared harmless unless it is so without question.” State v. Degraffenreid, 477 S.W.2d 57, 64[14] (Mo. banc 1972). The record does not demonstrate that the error did not prejudice appellant, State v. Wynne, supra, 182 S.W.2d 1. c. 300, and therefore the judgment of conviction must be reversed.

Appellant raises two other points, which may arise on retrial and therefore should be considered.

The first of these points relates to the overruling of appellant’s motion to suppress identification testimony on the ground that the procedures at the pretrial identification confrontation were so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of constitutional due process of law. Appellant stresses the following factors mentioned in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), as pertinent in applying the totality of circumstances test: that the four men in the lineup were not of the same approximate height or weight, but were all different, from which appellant argues that he was the only individual who could possibly be identified by the complaining witness as the guilty party; that a lineup composed of dissimilar people can lead “to the only conclusion possible, that the defendant was a participant in the robbery”; and that defendant “could easily be chosen by a process of elimination.” Frances Steghaus, the identifying witness, testified at the hearing of the motion to suppress that she was called to police headquarters to view a lineup, conducted five days after the robbery; that the police officers said nothing to her on the way to headquarters or at the police station, except that the purpose of the trip was to view a lineup. At the voir dire hearing she testified that the four men in the lineup were not the same approximate height or weight, but were all different; that she then and there identified two of the four as participants in the robbery; that she viewed the lineup a matter of seconds before making her choice. Before the jury she modified this testimony, stating that while the four men were not of the “exact same description” they were “of the same general description, roughly the same age and so on.” She identified the third man in the lineup (this appellant) as the man with the shotgun at the robbery and said that when he was in the lineup his hair style was a medium Afro. She did not recall whether he had a beard or moustache in the lineup. Asked whether he had any distinguishing features about his face or person she commented on his small, piercing eyes as “outstanding things.” Three times she stated there was no doubt in her mind that this man was present at the robbery.

Mrs. Steghaus also made an in-court identification of appellant as the participant in the robbery who held the gun. She testified that the person who held the shotgun had his hair in corn rolls (braids) with three of them sticking up in front; that he was wearing a yellow and red-striped shirt, no hat, and was in his late teens. She estimated his height at maybe five-nine and his weight 160-165. She had an opportunity to observe him for maybe ten seconds at a distance of about eight feet. He had no covering over his face. She could see his face clearly. Officers testified that when the three men learned they were to be placed in a lineup they unbraided their corn rolls and put up their hair in Afro style.

We find no fault with the pretrial identification. Considering the totality of the circumstances there was no substantial likelihood of misidentification. At the scene of the crime the identifying witness’ attention was attracted to the man with the shotgun for 10 seconds at a short distance. She had ample opportunity to observe him. His face was not covered and was seen clearly by her. The description she gave the police, while inaccurate on height, was otherwise accurate. Her quick and certain identification at the confrontation inspires confidence in the accuracy of her identification. The lineup was conducted on the heels of the robbery, only five days later. The police made no suggestive comments prior to her identification of appellant at the lineup. The standards referred to in Simmons, supra, were not violated. There was substantial compliance with the factors mentioned in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Blevins, 421 S.W.2d 263 (Mo.1967), and State v. Hudson, 508 S.W.2d 707 (Mo.App.1974), sufficient to validate the pretrial identification.

Finally, Mrs. Steghaus’ in-court identification, based upon a source independent of the lineup procedure, overcomes appellant’s claim that the lineup violated appellant’s due process right to fairness. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); State v. Jackson, 477 S.W.2d 47, 51 (Mo.1972); State v. Walters, 457 S.W.2d 817, 822 (Mo.1970); State v. Hudson, supra.

There was no error in overruling the motion to suppress and in admitting in evidence the testimony identifying appellant as one of the robbers.

The other point is appellant’s claim that it was error to admit in evidence testimony that during the police chase a package was thrown out of the window of the lead automobile; that the police car stopped momentarily and one of the officers alighted and retrieved a paper bag. Appellant claims this evidence is irrelevant to the issue of his guilt and created in the minds of the jurors a presumption that appellant was guilty of committing another (unspecified) serious crime, to the prejudice of appellant. There was no evidence of the contents of the paper bag. Flight is admissible as evidence of consciousness of guilt and the circumstances surrounding flight are admissible. The circumstances surrounding an arrest are likewise ordinarily admissible in evidence. On this record we find no error in the court’s ruling. Whether the tossing out of the paper bag and its retrieval by the officer were matters relevant to flight and arrest was a matter of judicial discretion and the trial court’s exercise of discretion admitting this evidence will not be disturbed unless appellant can make a clear and convincing demonstration that its admission will prejudice the rights of the accused.

For the reason given the judgment of conviction is reversed and the cause is remanded for a new trial.

SMITH, C. J., and STOCKARD, Special Judge, concur.

ON MOTION FOR REHEARING OR TO TRANSFER

PER CURIAM.

The State filed a motion for rehearing or to transfer to the Supreme Court, citing State v. Cuckovich, 485 S.W.2d 16 (Mo. banc 1972), and the Court’s quotation at page 23 from 22A C.J.S. Criminal Law § 712, p. 966. This case and Cuckovich are disparate. The quotation is inapropos. In Cuckovich the revolver was taken from a dresser in the room at the time defendant was arrested. It was clearly connected with the defendant. It was of the same caliber as the revolved used in the killings. The bullets taken from the bodies and test bullets fired from the gun in evidence had the same general characteristics and some points of individual characteristics. This weapon was not found in the possession of Dexter Davis, or in the house where he lived. There is no showing of identity of caliber; no test shots were fired; no showing that the men accompanying defendant when he entered the automobile were his “criminal associates,” see above quotation, 485 S.W.2d 1. c. 23, or his “coconspirators,” as in State v. Richetti, 342 Mo. 1015, 119 S.W.2d 330, 340 (1938); no showing that either defendant or the men actually came from the house in which the gun was later discovered. This is a case like State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944), which Judge Holman differentiated in Cuckovich on the ground that the gun “was not shown to have been connected either with the defendant or the offense.” 485 S.W.2d 1. c. 23.

The State also disputes our finding that the case against defendant was not “especially strong,” arguing that it was as strong as it could be and that the statement in State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972), should be applied, namely, that error which in a close case might call for a reversal may be disregarded as harmless when the evidence of guilt is strong. That this case was not “as strong as could be” and had inherent weaknesses, for instance, that the store manager himself was unable to identify the defendant as a participant in the robbery, was pointed out in the opinion.

The motion for rehearing or to transfer to the Supreme Court is overruled.

      . Ernest Murphy subsequently plead guilty to a charge of armed robbery of the Western Auto Store.


author: GUNN, Judge. McMILLIAN, Judge

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Lee GRANBERRY, Defendant-Appellant.
    No. 36183.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 28, 1975.
    Motion for Rehearing or Transfer Denied Dec. 10, 1975.
    Application to Transfer Denied Jan. 12, 1976.

      Slonim & Ross, Arthur H. Slonim, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Lucia Leggette, Jefferson City, Gene McNary, Pros. Atty., George Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   GUNN, Judge.

Defendant-appellant James Cranberry appeals from his second conviction for the first degree murder of University City police officer Wilber Downey. In 1971, defendant was convicted of the murder of Officer Downey and his punishment assessed at death, but on appeal to the Missouri Supreme Court the judgment of conviction was reversed and the cause remanded for a new trial. On the second trial, defendant was again convicted of the first degree murder of Officer Downey and sentenced to life imprisonment. On this appeal of his second conviction, defendant raises six points of alleged error. He contends: 1) that the trial court was without jurisdiction to try his case as the trial was held on a suspended indictment; 2) that the trial court erroneously admitted evidence of other crimes for which defendant was not on trial; 3) that the trial court erred in overruling defendant’s motion to suppress certain evidence alleged to be the product of an illegal arrest; 4) that various comments and arguments of the prosecuting attorney regarding defendant were so vituperate and vitriolic as to deprive him of a fair trial; 5) that defendant was materially prejudiced by the admission of alleged inadmissible testimony by a police officer investigating the case; 6) that fingerprint evidence was admitted without proper foundation. We find no reversible error and affirm the judgment.

The facts are these. During the early morning of December 12,1969 — around 1:30 a. m. — a brown Pontiac carrying five young men entered a Clark service station on Olive Street Road in University City. After being served by the station attendant two of the men from the car ordered the attendant into the back room of the station and forced him to lie down on the floor. The two men took the attendant’s money from his pockets and pried open a cabinet. While the robbery was in progress, several customers drove into the station for service, and some of the customers noticing suspicious activity placed a call for police. University City police, including Officer Dow-ney, responded to the call. Officer Downey entered the station and shots were heard. The station area was raked with an enfilade of gun fire, and the customers at the station scurried to lie doggo for safety. Two men, later identified as defendant and his cousin Darryl Cranberry, were observed firing pistols and fleeing from the back room of the station. The identification of defendant was made by University City Police Officer Edward Steinmeyer who had responded to the call and who was involved in an exchange of gun fire with the Granber-rys.

Subsequent to defendant’s first trial and prior to his second trial, Officer Steinmeyer died of natural causes, and his testimony from the first trial was read to the jury. Officer Steinmeyer testified that he fired his revolver until empty at the fleeing defendant and Darryl Granberry, wounding Darryl and halting his flight; that defendant with a revolver in his hand ran to the Pontiac pursued by Officer Steinmeyer. Defendant was able to enter the Pontiac, and Officer Steinmeyer reached through the open car window and struck defendant on the top of the head three or four times with his empty revolver in an effort to subdue defendant. However, defendant was able to escape in the Pontiac. Officer Steinmeyer testified that he had a good look at defendant’s face and positively identified defendant as the person he had observed running from the station with a gun in his hand and who he had struck on the head and who had escaped in the Pontiac.

The pistol which Officer Steinmeyer observed defendant carrying as he was fleeing from the station back room was found on the Clark station lot at the point where the Pontiac had been parked before defendant’s escape. The pistol which Officer Steinmeyer had seen defendant carrying and which was found on the ground after defendant had escaped was identified as belonging to Officer Downey. Ballistics established that Officer Downey had been fatally shot in the back by his own pistol.

Four of the participants in the incursion into the Clark station were arrested at the scene on December 12. Defendant was arrested in the afternoon of December 12 by St. Louis police. Police examination of defendant’s scalp shortly after his arrest revealed a running wound and bump. The brown Pontiac was found abandoned within a mile of the Clark station. A thumbprint lifted from the Pontiac on December 12 after the robbery was identified as defendant’s; a black leather jacket with a check stub made out to “T. A. Reinert” in a pocket was found near the abandoned Pontiac. Defendant’s defense was that he was elsewhere at the time of the robbery.

I

Defendant first argues that his conviction and sentence are void on the ground that the indictment upon which he was tried had been suspended by operation of § 545.110 RSMo 1969 and Rule 24.14. Section 545.110 provides:

“If there be at any time pending against the same defendant two indictments for the same offense, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.”

On July 9,1970, an indictment (herein after the first indictment) was filed charging defendant with the first degree murder of Officer Downey. As previously mentioned, judgment of conviction on the first indictment was reversed and remanded by the Missouri Supreme Court. After the cause was remanded, the prosecuting attorney sought and obtained a second indictment, filed on October 12, 1973, containing two counts. The first count charged the defendant with the same crime charged in the first indictment — the first degree murder of Officer Downey. The second count added the charge of first degree robbery.

Prior to trial and with substantial persuasion by the judge of the criminal assignment division and entreatment of defendant’s counsel, an agreement was made in open court by the prosecutor and defendant’s counsel to try the case under the first indictment with the prosecutor agreeing to the nolle prosequi of the second indictment in its entirety. The trial then proceeded— pursuant to the agreement — under the first indictment, and a formal nolle prosequi of the second indictment was filed four days after the conclusion of the trial. The defendant now argues that the second indictment was in effect throughout the trial and that the first indictment upon which he was tried and convicted at the second trial had no force or validity under § 545.110. Defendant thus suggests that the chasm of imperfection of trial under a suspended indictment is too wide and deep for the State to leap. If the defendant’s contention is correct, the circuit court would not have had jurisdiction to try the case, since “there can be no trial, conviction or punishment for a crime without a formal and sufficient accusation. . . . [T]he complete absence of a formal charge is jurisdictional.” State v. Harrison, 276 S.W.2d 222, 224, (Mo.1955), cert. denied, Harrison v. State, 353 U.S. 942, 77 S.Ct. 822, 1 L.Ed.2d 763 (1957). See also Montgomery v. State, 454 S.W.2d 571 (Mo.1970); State v. Hasler, 449 S.W.2d 881 (Mo.App.1969); 21 Am.Jur.2d Criminal Law § 390 (1965). It also should be noted that there can be no waiver of formal and sufficient accusation. Montgomery v. State, supra; State v. Gladies, 456 S.W.2d 23 (Mo.1970); 21 Am.Jur.2d Criminal Law § 390 (1965): “A criminal prosecution necessarily implies the existence of an accusation charging the commission of a criminal offense, as the basis thereof. . . . Such an accusation, in some form, is an essential requisite of jurisdiction which cannot be waived.”

Section 545.110 has been construed to be self-executing. State v. Brown, 364 Mo. 759, 267 S.W.2d 682 (1954). Thus, if there are two indictments filed for the same offense, the first is automatically suspended. State v. Payne, 223 Mo. 112, 122 S.W. 1062 (1909); State v. Vincent, 91 Mo. 662, 4 S.W. 430 (1887). And while the second indictment is in effect, the first indictment is considered as having no force or vitality. State v. Mayer, 209 Mo. 391, 107 S.W. 1085 (1908); State v. Williams, 191 Mo. 205, 90 S.W. 448 (1905); State v. Melvin, 166 Mo. 565, 66 S.W. 534 (1902). However, the validity of an earlier indictment can be revitalized and can be used to prosecute the defendant if the later indictment is no longer pending against him. In State v. Melvin, supra, where the second indictment was quashed prior to the trial on the first indictment, the court stated that:

“The first [indictment] is merely suspended but new life and validity may be imparted to it by the removal of the obstacle which caused the suspension, to wit, the second indictment, as was done in this case, by quashing it on the record. . . . [T]he statute requires the first indictment to remain suspended pending the period the second is in force, unless actually quashed by the court on the record; but, if the second is itself quashed without the first having been quashed, the first is restored to all its vigor. ...” State v. Melvin, supra at 535-536. (Emphasis added.)

The question for us to determine is whether the “obstacle” of the second indictment had been removed prior to the defendant’s trial thus making trial on the first indictment correct.

The defendant contends that the second indictment was pending throughout the trial as evidenced by the filing of the nolle prosequi after the conclusion of the trial. If this contention is correct, then State v. Mayer, supra, is controlling and a reversal of the conviction would be required. In State v. Mayer, supra, two informations charging the same offense were pending against the defendant. Trial was had on the first despite the fact that the second remained pending throughout the trial. The Missouri Supreme Court found that trial on the first indictment was improper and reversed the conviction. In the case before us there is no dispute concerning when the nolle prosequi of the second indictment was filed. However, we find that there was an agreement entered into by all the parties prior to the commencement of the trial which was sufficient to dispose of the second indictment and thereby revive the first. The evidence of such an agreement, binding upon both parties is palpable.

Counsel for the defendant readily admitted that he had strenuously urged the prosecutor not to seek the second, two count indictment. After the second indictment was obtained, defense counsel continually requested that the prosecutor go to trial on the first indictment. Judge Schaaf, the criminal assignment judge, also attempted to dissuade the State from going to trial on the second indictment. Both Judge Schaaf and counsel for the defendant strongly expressed that it would be unfair to add a new charge four years after the crime. Defense counsel also argued that there would be problems with obtaining testimony on the new count, since one of the officers involved had died after the first trial. Defendant’s counsel stressed that the addition of the new count would in effect punish the defendant for winning his appeal of his first conviction. Judge Schaaf testified on the motion for new trial that he was responsible for convincing the prosecuting attorney to try the case on the first indictment. Although reluctant at first, the prosecuting attorney finally did agree to go to trial on the first indictment with the consideration that defendant would agree to a continuance of the case to a later setting. He also agreed to a nolle prosequi of the second indictment. The record is conclusive that a binding agreement was made to try the case on the first indictment thereby voiding and terminating the second; that all were fully aware that the defendant was going to be tried on the first indictment. In ruling on this point, after the hearing on the defendant’s motion for a new trial, the trial court made the following findings of fact:

“1. Defendant sought and secured trial on the less hazardous (to him) charge.
2. And obtained an agreement in the presence of the Court that that State would nol-pros the later two count indictment.”

We find that the open court agreement was sufficient in itself to dispose of the second indictment and thereby revive the vitality of the first indictment. It is manifest from the record that an agreement to dismiss the second indictment had been made in open court under court supervision. The agreement was binding on both parties. The State by the agreement was, before trial, precluded from trying a case under the second indictment whether or not the ritual of a formal nolle prosequi had been performed. The impediment to trying the first case had been removed by the agreement of the parties, and the first indictment was the proper — and only — indictment upon which the State could proceed against the defendant. The first indictment was not dead, merely suspended, and its vestiges were fully resurrected and restored to life by the agreement which had the effect of putting the second indictment to death. The agreement of the parties was an accomplished fact and binding at the time it was made in open court upon both State and defendant’s counsel. Pierson v. Allen, 409 S.W.2d 127 (Mo.1966); Fair Mercantile Co. v. Union-May-Stem Co., 359 Mo. 385, 221 S.W.2d 751 (1949); Landers v. Smith, 379 S.W.2d 884 (Mo.App.1964). We hold that in light of the agreement made by the parties, with the knowledge and approval of the court, the filing of memorandum of nolle prosequi was not necessary. We view the formal nolle prosequi of the second indictment after the trial was completed as merely ministerial and having no bearing on the validity of the first indictment. Since we find that the second indictment was sufficiently disposed of by virtue of the agreement, this case falls squarely within the holding of State v. Melvin, supra. The defendant was properly tried on a valid indictment.

II

The defendant claims that he was denied a fair trial by the testimony of a witness concerning the commission of another crime for which the defendant was not charged nor standing trial. The witness, Terry Rei-nert, testified that between midnight and one o’clock on the morning of December 12, 1969, he drove to a Phillips 66 service station near Lindbergh and Interstate 70. Upon entering the station lot, he saw a car parked in front of the station’s office and saw five males, one by the car and the other four inside the building. He stated that he got a good look at three of the men and positively identified them in subsequent lineups and photographs. One of the three men so identified was the defendant. Rei-nert also made an in-court identification of the defendant. The other two men he identified were arrested by University City police officers during the course of the robbery at the Clark station. Reinert identified a jacket which he had worn when he had entered the Phillips station and a check stub made out to him. The jacket and check stub were found by police near the abandoned Pontiac. Reinert also identified the automobile, shotgun and metal box which he had seen at the Phillips station and which were recovered in the aftermath of the Clark station robbery.

Defendant asserts that it could be inferred from Reinert’s testimony that defendant was involved in a robbery of the Phillips station, a crime for which he was not charged, and that, therefore, the testimony should not have been admitted.

“[P]roof of the commission of separate and distinct crimes generally is not admissible unless proof thereof has a legitimate tendency to establish the defendant’s guilt of the particular charge for which he is on trial. If improperly related to the cause on trial, testimony of other crimes for which defendant may be guilty violates his right to be fairly tried on the offense for which he is charged.” State v. McElroy, 518 S.W.2d 459, 460-461 (Mo.App.1975). See also State v. Lee, 486 S.W.2d 412 (Mo.1972).

But evidence concerning separate and distinct crimes can be admissible when it tends to prove or establish: 1) motive; 2) intent; 3) absence of mistake or accident; 4) common scheme embracing commission of two or more crimes related to each other — the proof of one tending to establish the other; and 5) the identity of the accused. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954); State v. Gay, 523 S.W.2d 138 (Mo.App.1975); State v. Morris, 523 S.W.2d 329 (Mo.App.1975).

The State contends that the testimony was necessary in placing Granberry at the Clark station and in refuting his alibi. It should be noted that the defendant was the only one of the five participants not arrested at the scene of the crime. The State also points to the fact that there was only one eye witness that could identify James Granberry as the man escaping from the Clark station — Officer Steinmeyer; since Officer Steinmeyer had died between the defendant’s first and second trial, the State was required to read into the record the police officer’s identification made at the first trial. It was the State’s position that Officer Steinmeyer’s testimony should be corroborated. Thus, through Reinert’s testimony, the State attempted to prove that approximately one hour prior to the Clark station incident, the defendant was with four other men at the Phillips 66 service station. By tying Reinert’s testimony in with other facts in evidence, the State sought to establish that the five men Rei-nert saw at the Phillips station were in fact the same men involved in the robbery of the Clark station and the murder of Officer Downey. Reinert identified two men other than the defendant as being at the Phillips station. The car that Reinert saw at the Phillips station and later identified by Rei-nert at the University City police lot was shown to be the car used by the five men at the Clark station as well as the car used by the defendant in his escape.

The shotgun found by the police at the Clark station was identified by Reinert as being similar to the one he saw at the Phillips station. Darryl Granberry’s (defendant’s cousin) fingerprint was lifted off the white cash box found at the Phillips station and identified by Reinert. From Reinert’s testimony, it is logically inferable that the group at the Phillips station was the same group that robbed the Clark station and murdered Officer Downey one hour later. Since the defendant was identified as being a part of the group at the Phillips station, Reinert’s testimony tends to prove that the defendant was present at the Clark station. Thus, we find that Rei-nert’s testimony concerning what he saw at the Phillips station was properly admitted under the “identity” exception despite the fact that it tended to show the commission of another crime for which the defendant was not standing trial. But we also note that there was absolutely no reference by Reinert or any witness to any robbery occurring at the Phillips 66 station, although it would be somewhat fatuous to suggest that a jury could not infer that some type of crime had taken place at the Phillips station.

Our inquiry does not stop here. We must examine the testimony to determine whether or not it went beyond what was legitimately necessary to prove a material fact in issue. Since there exists a strong possibility of prejudice from such testimony, it has been held that reference to details of the uncharged crime, not logically relevant to the issue in question, is impermissible. State v. Lunsford, 338 S.W.2d 868 (Mo.1960); State v. Griffin, 336 S.W.2d 364 (Mo.1960); State v. Reese, supra. We find that Reinert’s testimony was properly admissible. The witness never expressly stated that he witnessed a robbery at the Phillips 66 station. Although it could be inferred from his testimony that the five men were in the process of robbing the station, this in itself does not make his testimony inadmissible. “[T]he fact that this testimony tended to show commission of other crimes (not gone into in detail) did not make it inadmissible.” State v. Lunsford, supra, at 872. With the exception of one instance, Reinert’s testimony did not go beyond relating details necessary to refute the defendant’s alibi and establish his presence at the Clark station. The one instance mentioned occurred when Reinert was testifying about the shotgun one of the men was holding. In response to the question asked by the prosecutor: “Where did you see that (the shotgun)?”, the witness answered: “Pointed at me.” This response related a fact not relevant to refuting the defendant’s alibi or placing him at the scene of the murder. However, it appears from the record that the witness volunteered this answer and that it was not really responsive to the question asked. The defense counsel’s motion for mistrial was denied. The court did, however, instruct the jury that “with reference to this witness’ testimony, his comment that in regard to the shotgun whether it was pointed at anyone or not is irrelevant to this proceeding and that comment of the witness may be stricken and you may disregard.” Under these circumstances, the language in State v. Parker, 476 S.W.2d 513, 516 (Mo.1972) is particularly appropriate:

“The remarks objected to were volunteered by the witnesses. Errors of this nature cannot always be avoided, but when they do occur it is the duty of the trial court, who has observed the incident and is in a better position than an appellate court to evaluate the prejudicial effect, if any, to determine the possibility of its removal by action short of a mistrial. In this respect the trial court necessarily must be vested with broad discretion.”

We hold that the trial court did not abuse its discretion in denying the drastic remedy of a mistrial. For the reasons stated above we find that Reinert’s testimony was properly admitted and particularly relevant to placing defendant in the car used in the robbery. State v. Gay, supra.

Ill

The defendant asserts that the trial court erred in overruling part of his motion to suppress evidence obtained as a result of an allegedly illegal arrest. He contends that the arrest was illegal because it was made without probable cause. The defendant was arrested in the city of St. Louis at 3:30 p.m. on December 12, 1969, the day of the robbery. The arrest was made without warrant by Officer Franklin of the St. Louis city police. Prior to going on duty, Officer Franklin was informed at a police roll call that James Granberry was wanted by the University City police in connection with a robbery and homicide. While on patrol, Franklin recognized the defendant and arrested him based on the roll call information. Once arrested, the defendant was searched and some money was found on his person. At 4:00 p.m. on the same afternoon, Officer Steinmeyer, who had grappled with the defendant at the Clark station, was shown and identified the defendant’s picture. After this identification was made, the University City police learned that Granberry was being held by the St. Louis police, and two officers were sent to the city to interview him. By parting defendant’s hair, the officers found a scalp wound. The defendant’s fingerprints were taken and later blood samples obtained. In his motion to suppress, the defendant moved to exclude the money, fingerprints and blood samples, as well as any testimony concerning the discovery of the scalp wound, as fruits of an illegal arrest. The court sustained the motion as to the money and overruled it as to the other evidence. We find that Officer Franklin’s arrest, based on the roll call information, was made with sufficient probable cause.

In the hearing on the motion to suppress Officer Twillman of the University City police testified that while at the Clark station, Darryl Granberry, defendant’s cousin who had been wounded, identified defendant as the person who had fled from the station. Officer Twillman related that information to other police.

Based on the identification of defendant by Darryl Granberry, Officer Twillman would have had sufficient probable cause to personally arrest the defendant.

“Information possessed by an officer that a felony has been committed and sufficient identification of the suspect as the perpetrator of the felony constitutes probable cause to believe that the offense was committed by the suspect, justifying arrest without a warrant and reasonable search and seizure as an incident to the arrest (including the taking of fingerprints and the seizure of articles of clothing.)” State v. Robinson, 484 S.W.2d 186, 190 (Mo.1972).

Since Officer Twillman had probable cause to make the arrest, other officers who received the information obtained by Officer Twillman would also have had probable cause to arrest the defendant. State v. Owens, 486 S.W.2d 462 (Mo.1972). And inasmuch as arrests made by officers based upon information received over the police radio are valid, State v. Whorton, 487 S.W.2d 865 (Mo.1972); State v. Ward, 457 S.W.2d 701 (Mo.1970); State v. Craig, 406 S.W.2d 618 (Mo.1966); State v. Morris, 522 S.W.2d 93 (Mo.App.1975); State v. Bradley, 515 S.W.2d 826 (Mo.App.1974), certainly, then, an arrest based on police roll call information forms sufficient basis for arrest without a warrant. Although the information obtained by Officer Twillman was relayed through other persons before reaching Officer Franklin, he possessed probable cause to arrest the defendant. Thus, the arrest was legal and the evidence obtained through the subsequent search was properly admitted. State v. Hammonds, 459 S.W.2d 365 (Mo.1970).

In arguing that there was no probable cause for the arrest, the defendant, in essence, is claiming that the testimony of Officer Twillman was not credible. The defendant claims that if Darryl Granberry had in fact made statements implicating defendant they would have certainly appeared in a police report, which they did not. The defendant also notes that the second trial was the first time since the murder in 1969, that there was any testimony concerning Darryl Granberry’s statements. These statements were not introduced in the motion to suppress the same evidence held prior to the defendant’s first trial in 1971. The defendant also contends that the court’s ruling on the motion to suppress demonstrated that the trial judge did not believe Officer Twillman’s testimony. The trial court sustained the motion to suppress the money found on the defendant immediately after his arrest but overruled the motion as to the head wound, blood samples and fingerprints. Since the evidence that was not suppressed was obtained only after Officer Steinmeyer identified Granberry’s picture, the defendant argues that the trial court found probable cause to exist only after Steinmeyer’s identification and not at the time of Officer Franklin’s arrest. The defendant’s argument overlooks the trial court’s explanation for excluding the money. The court makes it clear that the money was not suppressed because of lack of probable cause:

“As regard to the money it is sustained (the motion to suppress) but on the ground the money is not conclusive on this defendant in this case due to the fact it is pretty clear to all parties concerned that the defendant might have gotten the money from a number of sources, including the other armed robberies he possibly was involved in the same evening.”

This sufficiently explains the court’s ruling, and it cannot be said that the money was excluded because the trial court did not believe Twillman’s testimony.

The defendant also asserts that the trial court erred in denying his request for formal findings of fact and declarations of law pertaining to the court’s ruling on the motion to suppress. In support of his position, defendant relies solely on Rule 26.01, which applies only to court tried cases and does not apply to rulings on pretrial motions. The rule is not apt here.

IV

The defendant contends that he was denied a fair and impartial trial due to various statements and arguments made during the trial by the prosecuting attorney. Since the incidents complained of are unrelated to each other, we will deal with each separately.

During the voir dire examination of the jury the prosecutor asked if the fact that the shooting had occurred four years ago would influence their decision. Counsel for the defense moved for a mistrial. Although the court reserved ruling on this motion, no further action was taken and the question was allowed. The defendant also refers us to the prosecutor’s closing argument in which reference to the four year interval was made on three occasions. The defendant contends that mention of the four year delay would cause the jury to speculate on the reasons for the delay, including the possibility that the defendant had been a fugitive, or that there had been a previous trial and conviction and successful appeal on the same charge, or that the defendant had stood trial for other crimes during the interval. The defendant cites us to no cases in which reference to delays were found to be a denial of a fair trial. Upon review of the record we find defendant’s contention untenable and without merit, for we also note that defendant’s counsel was as frequent as the prosecutor in making comment that the crime had been four years previous. In presenting the case for the defense, counsel continually asked alibi witnesses to recall what occurred four years before. We find that references to the four year interval between the shooting and the trial were inevitable and unavoidable. None of the references was designed or intended to improperly inspire speculation on the part of the jurors. We hold that the defendant was not denied a fair trial due to such comments.

The defendant contends that the prosecutor’s numerous references to the fact that the defendant and the other four participants in the murder and robbery were black injected racial prejudice into the trial, especially in light of the fact that the jury was all white. It has been held that “[w]here the color or race of the parties has a factual bearing on the issues, a reference thereto comes within the range of legitimate argument. But appeals to racial prejudice are prejudicial and many times have been held reversible error.” State v. Jack son, 336 Mo. 1069, 83 S.W.2d 87, 94 (1935). The record reveals many references to the defendant’s race during the prosecutor’s opening and closing statements. No objections were made to any of these comments. Although some of the references may have been unnecessary, at no time were such statements derogatory. In addition, the defendant was present throughout the trial, and his identity was at issue. We find the language of State v. Taggert, 443 S.W.2d 168, 170 (Mo.1969) to be in point:

“The record here of the prosecuting attorney’s opening statement does not itself show that the reference to appellants as being Negroes was designed to inflame the minds of the jury and thus prejudice appellants. The references are merely descriptive of the persons involved in the crime, and what the state would prove. Furthermore, appellants at no time objected to the term during the prosecutor’s opening statement, but awaited the close thereof to move for a mistrial. As the state suggests, if counsel for appellants thought the use of the term really tainted the jury he should have objected when it was first used, rather than counting the number of times it was used, and then registering his objection at the close of the statement.”

Further, we do not find the comments prejudicial. We also note that defendant’s counsel made numerous references to the fact that blacks had been involved in the crime.

There was an additional reference to race in the prosecutor’s closing arguments when he commented that three of the witnesses who testified were black. “ . . . Why would Officer Franklin, a black officer, not that that implies he is any more truthful or not, but if any people think nobody is honest, and this Michael Steele and Thorton are black — .” While the prosecutor appears to be ascribing some import to the fact that three black persons testified against the black defendant and therefore added weight should be given to their testimony, however, an objection was made and sustained to the comment and the jury was instructed to disregard it. No further relief was requ ,ed, so the defendant received all the relief asked for. He cannot now be heard to complain. State v. Cissna, 510 S.W.2d 780 (Mo.App.1974); State v. Allen, 429 S.W.2d 697 (Mo.1968).

In a portion of his closing argument, the prosecutor speculated on what the murdered police officer might testify to from his grave. The prosecutor also described the defendant as having a brutal face. The defendant contends that these comments were highly prejudicial in that they inflamed and “personalized” the jury.

When prosecuting a criminal trial, the prosecutor occupies a quasi-judicial position and has the duty to “vouchsafe the defendant a fair and impartial trial— based upon facts, not guesswork; legitimate inference from the facts, not prejudice; cool analysis and decision, not passion.” State v. Heinrich, 492 S.W.2d 109, 114 (Mo.App.1973); See also State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524 (banc 1947). It is improper for the prosecutor to apply personal epithets to the defendant, State v. Turnbull, 403 S.W.2d 570 (Mo.1966); State v. Harris, 351 S.W.2d 713 (Mo.1961), and he must avoid argument which would have the effect of inflaming the prejudices or excite the passions of the jury against the defendant. State v. Tiedt, supra. However, in reviewing allegedly improper argument, it must be kept in mind that “[t]here exist many unpredictables in the trial of a lawsuit, but perhaps the most unpredictable is the flight to which words may soar in the heat and fatigue of the closing argument. It is thus recognized by our courts that as to the impropriety of argument and its effect, each case must be considered in light of the facts of that particular case.” State v. Wintjen, 500 S.W.2d 39, 42 (Mo.App.1973). As was said in State v. Tiedt, supra: “We are not concerned with an instance of a single breach arising more or less spontaneously under the stress and excitement of contest.” 357 Mo. 115, 206 S.W.2d 524, 528 (banc 1947).

On its face, the prosecutor’s statements seeking to disinter Officer Downey from the grave appear to be inflammatory and outside of the record. However, it is apparent from the record that it was defendant’s counsel who made first reference to Officer Steinmeyer’s “testifying from the grave,” and that Officer Steinmeyer “would say defendant was not guilty.” Since the defendant opened up the type of argument, we cannot say that the prosecutor argued improperly by attempting to counteract the effect of the defendant’s argument. State v. Odom, 353 S.W.2d 708 (Mo.1962).

The prosecutor’s description of the defendant as having a brutal face, although unnecessary and intemperate, cannot be said to be so prejudicial or denigratory as to warrant the granting of a new trial. It should be noted that no objection was made to the comment.

The prosecutor’s arguments and statements do not approach the flagrantly unbridled argument found to be grounds for reversal in State v. Heinrich, supra and State v. Tiedt, supra. Although some of the prosecutor’s statements may have been somewhat impetuous, this would not automatically require the granting of a mistrial or a reversal on appeal. “Every instance of a prosecutor exceeding the limits of legitimate argument is not a cause for declaring a mistrial.” State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970). See also State v. Wallace, 504 S.W.2d 67 (Mo.1973); State v. Harris, 351 S.W.2d 713 (Mo.1961); State v. Mangercino, 325 Mo. 794, 30 S.W.2d 763 (1930). The comments of the prosecutor do not constitute reversible error.

V

The defendant asserts that he was materially prejudiced by certain aspects of the testimony of University City Police Captain Reich. Captain Reich testified that he and another officer went to the St. Louis police station to interrogate the defendant. In response to a question asked by the prosecutor concerning what the Captain told the defendant prior to the interview, the Captain testified: “ . . .1 advised him of his rights under Miranda, and I also told him we were investigating the death of one of our officers and that we had information he was involved in that death.” At this point counsel moved for a mistrial on the grounds that the statement indicated that the police had evidence of the defendant’s guilt other than that presented to the jury during the trial. The trial court sustained the objection. The jury was instructed to disregard the Captain’s answer with the exception of that part relating to the giving of the Miranda warnings. The motion for the mistrial was denied. The defendant asserts that the trial court erred in so ruling.

“[A] mistrial should be granted only when the incident is so grievous that the prejudicial effect can be removed no other way. For this reason the declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who has observed the incident giving rise to the request for a mistrial, and who is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal by action short of a mistrial.” State v. Camper, 391 S.W.2d 926, 928 (Mo.1965). See also State v. Robinson, supra; State v. Flauaus, 515 S.W.2d 873 (Mo.App.1974); State v. Heather, 498 S.W.2d 300 (Mo.App.1973).

In the discussion on this motion between counsel and the court, the court clearly evaluated the statement’s effect on the jury as “minimal.” We can find no reason for disturbing the trial court’s appraisal of the impact of Captain Reich’s answer. Any prejudice stemming from the testimony was satisfactorily purged.

During the State’s re-direct examination of Captain Reich, the witness was asked why the interview with the defendant was terminated after a short period of time. Captain Reich answered: “I felt that Mr. Granberry was under the influence of some kind or some type of intoxicant.” An objection was made prior to the answer, but the court allowed the witness to respond. The defendant contends that this testimony should not have been admitted because proper foundation had not been laid to support the conclusion reached by the witness. The defendant adverts to two cases that stand for the proposition that “lay witnesses may render an opinion as to the intoxication of another if preceded by evidentiary facts of conduct and appearance personally observed by them to support the opinion.” State v. Fisher, 504 S.W.2d 281, 283 (Mo.App.1973); See also State v. Edmonds, 468 S.W.2d 685 (Mo.App.1971). In both of these cases the defendants were charged with driving while intoxicated. Thus, the testimony as to intoxication in both cases went directly to the crime charged. Such is not the case here. In addition, we find that during his cross-examination of the witness, counsel for the defendant initiated the line of testimony. Counsel brought out the fact that no report was made of the interview. Throughout his line of questioning, defendant’s counsel appeared to be inferring that either the police were deficient in their investigation or that they were attempting to cover up something that occurred during the interview. To counteract the effect of the cross-examination, the State asked the question regarding defendant’s behavior.

“It is a well settled rule . . . that, where either party introduces part of an act, occurrence, or transaction, . 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 with reference thereto.” State v. Odom, supra at 711, quoting from 22A C.J.S. Criminal Law § 660c (1961); See also State v. Bendickson, 498 S.W.2d 593 (Mo.App.1973).

VI

Defendant’s final point challenges the admission of fingerprint testimony. The State’s fingerprint expert testified that a thumbprint lifted from the Pontiac after the car had been abandoned belonged to the defendant. Defendant’s counsel asked the witness if it were possible to determine how long the print had been on the car. The response was that it would be difficult to determine, but he could give “an educated guess.” Defendant complains that the witness’ testimony that the print was “fresh” — from two to twenty-four hours — did not have proper foundation. However, the following colloquy between defendant’s counsel and the witness remedies any defect that might have existed regarding the testimony as to the fingerprint:

“Q (Mr. Anzalone) As an expert in a case like this, you can give a scientific opinion as to how long a print has been or. a window; can you, sir?
A I cannot give a scientific time element, like minute or seconds, something of that nature. I can give you a scientific opinion whether the print was fresh or old, based on the prints I have seen in the past of similar developments.”

Although the witness in response to one question stated that he could give an “educated guess” on the subject, we must examine his testimony as a whole to determine whether the witness intended to express an opinion or a judgment rather than a mere guess. Hinrichs v. Young, 403 S.W.2d 642 (Mo.1966); Denny v. Spot Martin, Inc., 328 S.W.2d 399 (Mo.App.1959). Although a mere guess would not constitute substantial evidence, Denny v. Spot Martin, Inc., supra, the “[u]se of ‘guess’ is not necessarily destructive of a witness’s testimony if it appears, for instance, from his whole testimony that the witness intended to express an opinion or judgment.” Hinrichs v. Young, supra at 646. An examination of the witness’ testimony, reveals that the witness was expressing an opinion based on his knowledge as an expert, and his testimony was therefore admissible.

The defendant further alleges that no foundation was laid concerning the fingerprint testimony. He cites a Nevada case in which it was held that in order for an expert to testify as to when fingerprints were placed on a surface, a “control” test is required. Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965). “In a ‘control test’ a series of latent fingerprints are placed on a surface and controls are placed on all governing factors such as air, humidity, dust, and heat in order to determine how long the prints would remain on a given surface and could be dusted out.” Id. at 404 P.2d 911, 914. Even if we were bound by the Nevada decision, it is distinguishable. In that case the expert was to “positively” testify as to the exact time the fingerprint was placed. The witness here made no attempt to give such a definite answer, but rather gave a broader period of time in which the prints were most likely made. Thus no control test would be necessary. This is so especially in the light of the fact that the witness testified that he was basing his answer on what he had seen in similar cases and the fact that it was stipulated that he was a fingerprint expert. We hold that no error was committed by allowing the witness’ answer as to the length of time the fingerprint had been on the Pontiac.

Since we find no reversible error, we affirm the defendant’s conviction.

SIMEONE, P. J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge

(dissenting).

I respectfully dissent. In my opinion, while New York law noted in footnote two of the majority opinion is persuasive, it is not binding where the Missouri Supreme Court has spoken on the same issue. Here, it is apparent, for whatever reason given by the majority opinion, that the second indictment was still viable at the time trial was had upon the first indictment. Consequently, in my opinion this case is controlled by State v. Mayer, 209 Mo. 391, 107 S.W. 1085 (1908). Therefore, I would reverse the judgment of conviction and remand for a new trial.

      . State v. Granberry, 491 S.W.2d 528 (banc 1973).

      . New York has had a superseding indictment statute virtually identical to Missouri’s with the exception that the New York statute has used the term “superseded” rather than Missouri’s “suspended.” N.Y.Code Cr. Proc. § 292-a, 1909 (now N.Y.Crim. Proc.Law § 200.80) provided:
      “If there be at any time pending against the same defendant two indictments for the same offence or two indictments for the same matter although charged as different offences, the indictment first found, shall be deemed to be superseded by such second indictment, and shall be quashed.”
      Despite the fact that the Missouri Supreme Court has noted that the New York statute is “stronger” than Missouri’s, State v. Melvin, supra, the New York courts have given their statute a less severe interpretation. The statute is not viewed as self-executing. People v. Sloan, 175 Misc. 618, 24 N.Y.S.2d 381 (1940), and both indictments retain their vitality until the first is set aside by a court order. People v. Barry, 4 Parker Cr.R. 657, (N.Y.1860). Trial can be had on either indictment, and the defendant is free to waive the effect of the statute. People v. Benson, 208 Misc. 138, 143 N.Y.S.2d 563 (1955); People v. Sloan, supra; People v. Barry, supra. In Benson it was stated that “if the People elect without objection from the defendant to go to trial on the first indictment, the resulting verdict will not be disturbed. . . And, while the superseding indictment is pending, a defendant may plead guilty to the first indictment. His plea of guilty constitutes a waiver of the provisions of section 292-a C.C.P. in his favor.” 143 N.Y.S.2d at 574. In New York, if the instant situation existed, the indictment issue would probably be resolved by the old case of People v. Barry, supra, which is directly in point. In that case two indictments were filed, the first for a less hazardous offense than charged in the second. The defendant pled guilty to the first indictment and later moved that the conviction be quashed due to the superseding second indictment. The appellate court rejected this contention:
      “From the case as it now appears, it is a legitimate conclusion that this defendant preferred a conviction by confession, on the indictment for the minor offense, in its mitigated form, to the hazard of a conviction by the jury, on the trial of the indictment for the greater offense, and acted accordingly. In my opinion, it was competent for him to waive the provision of the statute in his favor, and I think he was clearly and advisedly done so; and that after his confession, he had no right to claim the benefit of the statute which he so waived.” 4 Parker C.R. 657, 661 (1860).

      . The court also found the first information to be internally defective in that it failed to allege one element of the crime charged. However, the court clearly reversed the conviction on both grounds.

      . The following excerpts from the transcript given under oath by the court and counsel, clearly establish the fact of a binding agreement upon the parties to try the case on the first indictment and of the elimination of the pendency of the second indictment, thereby properly reviving the first indictment:
      “MR. WESTFALL (prosecutor): .
      [T]he State, through myself, and defendant, through Mr. Anzalone, [defendant’s counsel] agreed on a continuance to a future date based on a specific commitment from the State that the State would proceed under the first indictment; that it was only one charge, Murder in the First Degree, and the State would not proceed on the second indictment, which was Count I Murder in the First Degree and Count II Robbery by means of a Dangerous and Deadly Weapon. The State made that commitment and with that commitment in mind, Mr. Anzalone agreed to the continuance. And that was the condition that he requested in order to agree to the continuance.
      THE COURT: The State and Mr. Anza-lone would stipulate on his agreement, or insistence, or whatever, it be tried on the single count; that that was the basis for the continuance?
      MR. WESTFALL: That is my understanding, Judge. Do you agree with that, Mr. Anzalone?
      MR. ANZALONE (Defendant’s counsel): I agree with that completely. My position was, in fact, was that the State should be enforced to elect one of the two indictments. And my position was, it was to my client’s interest to go ahead with the one count indictment. And my interpretation of the agreement with Mr. Westfall was we would agree to proceed on the first indictment and he would nol-pros the second one.

      THE COURT: You felt it was to your client’s interest to go to trial on the old indictment, the single count indictment and you understood and relied on the prosecutor’s statement that he would nol-pros the second indictment?
      MR. ANZALONE: I felt it was to my client’s interest to go to trial on the one charge, rather than two. The age of the indictment didn’t matter. For the record, I think I should also indicate, and Mr. West-fall will agree, prior to getting the indictment, the day before, I tried strenuously to persuade him from doing it and talk him out of it, and expressed to him the same grounds why he should not do it — as in the chambers — why he should not.
      THE COURT: Namely, what were your argument? [sic]
      MR. ANZALONE: Probably with the use of the testimony of a dead officer; the problem of penalizing someone for winning his appeal; probably waiting until the last minute to seek it and thereby prejudicing defendant’s rights to due process.
      MR. WESTFALL: I would agree that pri- or to seeking the two count indictment Mr. Anzalone tried to persuade me from doing that, but I went ahead and sought the second indictment. The Grand Jury indicted Mr. Granberry in two counts. Mr. Anza-lone from that point encouraged me or attempted to persuade me to pursue the first indictment consisting of only one count and I agreed with him in his summation, which occurred at the time of one continuance. In effect, or actually, the State did commit itself to nol-pros the second indictment and Mr. Anzalone knew when the case went to trial it would be going on the old indictment. I will ask Mr. Anzalone if he will agree from that time, or at any time onward from the time trial commenced until its termination whether he was under any doubt under which indictment his client was being tried?
      MR. ANZALONE: That’s true.
      MR. WESTFALL: And you, at all time, knew he was being tried under the first indictment?
      MR. ANZALONE: That’s true.
      MR. WESTFALL: And your desire was that he be tried under the first indictment?
      MR. ANZALONE: I felt it was in my client’s best interest.

      Q (Mr. Westfall) All right. Concerning which of the two indictments Mr. Granberry was to be put to trial on, do you recall any conversation between the State and the Defendant?
      A (Judge Schaaf, criminal assignment judge) Yes.
      Q What were those conversations?
      A The conversation was an agreement, as I understood it to be, was that he would go to trial on the old one, that indictment, the one I tried him on some three, four or five years before that.
      Q Was it your understanding it was the defendant’s desire to go to trial under that one, rather than the new one?
      A Yes, it was.
      Q Was it your understanding the State, in fact, agreed to go to trial under the old indictment?
      A You did agree to do it because I told you I thought it would not be fair, after this length of time, it wouldn’t be fair to send Mr. Granberry out on the new indictment where he was now charged with armed robbery, and Mr. Anzalone and the Public Defender, and you, and someone else in the Prosecuting Attorney’s office, I know but the name slips my mind, discussed the case and it was vehemently discussed. And I finally took the position of Mr. Shaw [public defender] and Mr. Anzalone that it would be unfair, at this late trying of the case, to send out the new indictment, the new case and that we would try the old case.
      Q Did the State agree?
      A The State agreed.” (Emphasis added.)

      . Our conclusions regarding the admissibility of Reinert’s testimony comport with the recent decisions of the U.S. Court of Appeals, 8th Circuit, in U. S. v. Calvert, 523 F.2d 895 (8th Cir. 1975) and U. S. v. Conley, 523 F.2d 650 (8th Cir. 1975). In U. S. v. Conley, supra, the court pointed out that the government was entitled to anticipate the defendant’s obvious defense (here, the alibi), and since the government was faced with a difficult means of proof (in this case the fact that the key identification witness, Officer Steinmeyer, had died), the government was permitted to present evidence of other crimes. In U. S. v. Calvert, supra, it was held that probative evidence of other crimes outweighed any prejudicial effect to defendant; so, too, here.

      . In U. S. v. Stratton, 453 F.2d 36 (8th Cir.1972), cert. den. 405 U.S. 1069, 92 S.Ct. 1515, 31 L.Ed.2d 800 (1972), it was said, l.c. 37:
      “We think the knowledge of one officer is the knowledge of all and that in the operation of an investigative or police agency the collective knowledge and the available objective facts are the criteria to be used in assessing probable cause. The arresting officer himself need not possess all of the available information.” See also U. S. v. Heisman, 503 F.2d 1284 (8th Cir. 1974).

      . Defendant’s counsel stipulated that the witness was a fingerprint expert, and the witness had, in fact, extensive training in detection and comparison of fingerprints.

      . Although the cases cited are civil cases, “[t]he rules governing opinion and expert testimony are the same in criminal cases as in civil.” State v. Maxie, 513 S.W.2d 338, 344 (Mo.1974).

      . The witness did relate in considerable detail his training and the methods used for lifting and comparing fingerprints.


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary HOLLAND, Defendant-Appellant.
    No. 36040.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 25, 1975.

      Charles D. Kitchin, Public Defender, John F. Bauer, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Co-sentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Defendant was convicted of rape (forcible) and sentenced to five years imprisonment. We affirm the judgment.

The issues presented involve testimony concerning a juvenile line-up, questions propounded to defendant on cross-examination, rebuttal testimony, and argument of counsel. Defendant does not question the sufficiency of the evidence to sustain a conviction.

The victim, a young woman, stopped at her office in downtown St. Louis on Sunday, March 25, 1973, to check a computer program she had run earlier in the week. She left the office building alone about 2:30 in the afternoon, went to her automobile, and was just beginning to back out of the lot when she noticed the defendant coming toward her motioning to his wrist as if he wanted to know the time. As the victim rolled her window down to give him the time, the defendant opened the car door and forced his way into the car. The victim noticed that he was holding a nail file in a threatening manner. The defendant ordered her to drive as he directed. Under defendant’s orders the car was driven into an area of abandoned buildings and piles of rubble, and was stopped. He then ordered the victim into the back seat and proceeded to rape her. After the completion of the crime defendant got behind the wheel of the car and drove into an area of high rise buildings. He stopped the car near one of the buildings, got out, and ran inside. The building was later identified as 1101 N. 18th Street in the Vaughn Housing Project, where Lawanda Thomas, a girl friend of the defendant, resided. The victim then got behind the wheel and drove away. The victim viewed a line-up at the Juvenile Detention Center on April 11,1973, and identified Gary Holland as her attacker.

I

The first assignment of error urged by defendant is that “the trial court erred in permitting the State to offer testimony concerning a line-up conducted while defendant was still in the custody of the Juvenile Court.” This assignment is without merit. The same contention respecting the same line-up was raised and ruled against defendant in two prior cases involving other crimes committed by defendant. State v. Holland, 525 S.W.2d 576, 577[1] (Mo.App.1975); State v. Holland, (Mo.App.St.L.Dist., July 1, 1975).

II

Defendant next contends that the court erred in permitting the Assistant Circuit Attorney to ask defendant on cross-examination whether his brother Jeffrey was locked up on the day of the rape.

Defendant testified in his own behalf that on the date and at the time the crime was committed he was at the Fox Theater in mid-town St. Louis. He had gone straight from his home to the theater arriving at about 12:30 p. m. He was alone but he was to meet some friends from school. He testified that he and his friends had made the arrangement to meet while at school on Friday. Defendant testified that he did not find his friends. He left the theater around 3:30 p. m., got a sandwich in the immediate area and arrived home about 4:30 p. m. or 5:00 p. m. On cross-examination defendant was asked about the persons who were at his home on that date. He was asked particularly about his brother Jeffrey. Jeffrey was seated in the court room throughout the trial. Defendant testified that Jeffrey was somewhere else on that day. When asked where, he testified that as he was leaving for the movie Jeffrey “was outside, where he was coming home to visit.” He then corrected himself and stated that everyone was at home except Jeffrey. The prosecutor pursued the matter and the defendant stated that he had mistaken his brother Eric, who was home, for Jeffrey. Then the following occurred:

“Q. All right. Jeffrey was, in fact, locked up, was he not?
Mr. Bauer: I object, Your Honor. Approach the bench.
Q. (By Mr. Cosentino) Jeffrey was, in fact, locked up, so you couldn’t see him on that day?
The Court: Just a moment. Step up.”

A colloquy was had between the court and counsel in which defendant objected to the question because it was “irrelevant and immaterial”.

During the discussion the court asked “What’s the name of the witness that he said was there? ” After further discussion the judge said, “Clarify it as to which one he’s stating.” Finally he said, “Clarify it. At this time, all answers stand, with the clarification of it. All right.”

The cross-examination of the defendant then proceeded. The question to which defendant objected was abandoned and was not answered.

The defendant asked for no specific relief and the trial court did not rule upon the objection made by defendant. In order to preserve an allegation of error proper objection must be promptly made and there must be an adverse ruling. State v. Jackson, 500 S.W.2d 306 (Mo.App.1973). This contention was not preserved for appellate review.

Even if this were considered, generally error in asking an improper question is not prejudicial where the witness does not answer the question. State v. Scarlett, 486 S.W.2d 409, 412[7] (Mo.1972). Scarlett is closely akin to this case. There the State in cross-examination of a defense witness asked if the defendant had been arrested at any other time at the witness’ residence. Upon objection the question was withdrawn and never answered. No error had been committed.

While the conduct of the prosecution was far from professional, the incident does not rise to the level of plain error.

Defendant cites us to State v. Aguilar, 478 S.W.2d 351 (Mo.1972) and Aguilar v. Swenson, 351 F.Supp. 907 (W.D.Mo.1972). These cases which involve the same trial are clearly distinguishable from the case at bar. Aguilar and his brother Gilbert had been charged with burglary. In the trial of defendant, his counsel asked a police officer if Aguilar’s brother hadn’t lost a leg as a result of a shot fired by the officer; and also whether the officer had testified at the trial of defendant’s brother. The court after sustaining objections to the questions stated: “I’m sure counsel is aware that the outcome of another trial has no bearing on the issues of this matter.” Immediately after that statement counsel said, “Now the case against Gilbert was dismissed.” The court in the sound exercise of its discretion declared a mistrial. This action was sustained by the Missouri Supreme Court and the United States District Court as against the defendant’s claim of double jeopardy when he was convicted upon a retrial.

The highly prejudicial effect of placing the outcome of a companion case before the jury is apparent and readily distinguishable from this case.

When we consider that no specific relief was requested, that defendant did not request a ruling, that the question was not answered and that the question was abandoned; we cannot say that the court erred with respect to this incident.

In defendant’s Points Relied On he also contends that this portion of defendant’s cross-examination was beyond the scope of the direct examination. The contention is not argued by defendant and is therefore abandoned. Kansas City v. Howe, 416 S.W.2d 683 (Mo.App.1967).

Ill

Defendant testified that he could not have been the person who raped the victim. He detailed his movements from a time before the incident began until a time long after the rapist had left the victim at the Vaughn Housing Development. He testified that he had gone from his home which was west of the Fox Theater to the theater on Grand Avenue, arriving at 12:30 p. m. and leaving at 3:30 p. m. Thereafter, he had gotten something to eat in the immediate area, and then had gone straight home, arriving at 4:30 or 5:00 p. m. The effect of this testimony was to deny the testimony of the victim and to present an alibi to refute her testimony. In particular that he had left her at the Vaughn Housing Project.

On cross-examination the defendant testified without objection that he was acquainted with Lawanda Thomas and that he had the initials L.T. followed by a plus sign ( + ) and the initials G.H. tattooed on his arm. He testified that G.H. meant Gary Holland. When asked if L.T. could mean Lawanda Thomas defendant’s objection that it was beyond the scope of the direct examination was overruled. Defendant further testified that Lawanda lived in the Vaughn Projects. Defendant was asked if the Vaughn Projects were at 1101 N. 18th Street. He again objected on the ground that it was beyond the scope of the direct examination and was overruled.

Defendant pursues his contention that the cross-examination was beyond the scope of the direct examination. When a defendant testifies, he is subject to cross-examination and the State is not confined to duplication of the direct examination but may cover “all matters within the purview of the direct examination.” Nor is alibi testimony immune from the probing search of cross-examination. State v. Harvey, 449 S.W.2d 649, 652 (Mo.1970).

The defendant’s sweeping denials that he had not participated in the crime; that he was at the movies during the time the incident occurred; that he had never seen the victim until the trial began; all amounted to a denial that he had been at the Vaughn Project which is some distance east of Grand Avenue, the locale of the Fox Theater. It was competent for the State to show that defendant had close ties with someone in the area where he might logically seek refuge. The State had a right through this means to cast doubt upon defendant’s credibility. State v. Davis, 527 S.W.2d 32, 33 (Mo.App.1975).

In addition to his contention that the cross-examination was beyond the scope of the direct examination, defendant, for the first time on appeal, seeks to interpose other objections. We do not entertain these because they were not presented to the trial court at the time of the alleged error nor preserved in the motion for new trial. State v. Woodard, 499 S.W.2d 553 (Mo.App. 1973); State v. Voegtlin, 509 S.W.2d 488, 490[3] (Mo.App.1974).

IV

The next issue tendered by defendant concerns the rebuttal testimony of George A. Cross, the Assistant Principal of Vashon High School.

The defendant on direct examination testified that he was at the Fox Theater at the time the rape was committed. Defendant’s counsel then asked him how he came to go to the Fox Theater on that date. In response the defendant testified that he and a few friends had made plans on “Friday at school” to go to the theater. They were to meet there on Sunday. He went to the theater but he was unable to locate his friends. He further testified that he was in school the week prior to the date of the crime. On cross-examination he reiterated his testimony with respect to his reason for being at the Fox Theater. He testified that he attended Vashon High School.

In rebuttal the State produced Mr. Cross, who testified that Vashon High School had no record of defendant’s attendance at the school on the Friday before the crime was committed.

Defendant contends that this was improper rebuttal because it is an attempt to impeach defendant on a collateral matter. Defendant cites State v. Hamilton, 310 S.W.2d 906 (Mo.1958); State v. Williams, 492 S.W.2d 1 (Mo.App.1973), and Switzer v. Switzer, 373 S.W.2d 930 (Mo.1964). These cases are illustrative of the principle which defendant sets out in his brief as a direct quote from Switzer v. Switzer, supra at page 939:

“Generally a party is bound by the answer of a witness on collateral matters first brought out on cross-examination.”

This is not the case here. Defendant first tendered the issue in his direct testimony to bolster his alibi. The applicable principle is well stated in State v. Kirk, 510 S.W.2d 196, 199 (Mo.App.1974), “. . . any competent testimony that tends to counteract or disprove evidence offered by a defendant may be offered in rebuttal of the defendant’s testimony or evidence.” Defendant evidently overlooked the fact that the issue rebutted by Mr. Cross’s testimony was first tendered by the defendant.

Generally the scope of rebuttal testimony is largely within the discretion of the trial court. State v. Sawyer, 365 S.W.2d 487, 490[3] (Mo.1963). We see no prejudice to defendant here and thus no abuse of the court’s discretion.

V

Neither of the last two contentions contained in defendant’s Points Relied On have been properly preserved or presented for our appellate review. They read as follows:

“The trial court erred in permitting improper statements by the prosecutor on closing argument regarding facts outside the record because this constituted a violation of defendant’s constitutional right to confront and cross-examine witnesses pursuant to Article I, Section 18 of the Missouri Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.”
“The trial court abused its discretion by denying defendant’s motion for mistrial after the assistant circuit attorney, during closing argument made statements to the jury that,
(1) were improper and prejudicial in that they placed upon the defendant the burden of proving that defendant was not present at the time and place of the offense as alleged to have been committed, and
(2) destroyed defendant’s presumption of innocence and therefore violated due process of law under the Fourteenth Amendment.”

Neither of the points relied on “state briefly and concisely what actions of the trial court are sought to be reviewed” contrary to the mandate of Rule 84.04(d). State v. Shumate, 516 S.W.2d 297, 300[7-ll] (Mo.App.1974).

We have reviewed the argument of counsel. No constitutional issues were raised at any time by defendant’s objections at trial. Nor were any constitutional issues respecting the argument of counsel raised in his motion for new trial. The constitutional issues sought to be raised for the first time on appeal are not now properly before us. State v. Harms, 507 S.W.2d 29, 31 (Mo.App.1974).

Finding no prejudicial error we affirm the judgment of the trial court.

CLEMENS, P. J., and KELLY, J., concur.