author: ALBERT L. RENDLEN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Paul Albert WOOD, Appellant.
    No. 37036.
    Missouri Court of Appeals, St. Louis District.
    Nov. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Application to Transfer Denied Jan. 9, 1978.

      Lester W. Duggan, Jr., St. Charles, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Keith M. Sutherland, Pros. Atty., Warren County, Warrenton, for respondent.

       Rendlen, J., not participating.

   ALBERT L. RENDLEN, Special Judge.

Paul Albert Wood, Jr. appeals his conviction of murder in the first degree for which he was sentenced to life imprisonment. As grounds for reversal, defendant contends the trial court erred: (1) by admitting evidence of defendant’s statement (confession) made following a warrantless, unlawful arrest in violation of defendant’s rights to remain silent and to assistance of counsel, (2) by admission of evidence obtained as the result of the unlawfully procured statement, (3) in failing to impose sanctions for the state’s refusal to comply with discovery rules, (4) by improperly proceeding with a panel of only twenty-four veniremen and (5) because the evidence, absent testimony of defendant’s confession and evidence procured thereby, was insufficient for submission. We reverse and remand.

Barbara Crabtree, employed at the J. C. Penney store in Washington, Missouri, on July 30, 1974 left for lunch and without explanation failed to return. That afternoon a slip of paper bearing defendant’s St. Louis address and phone number was inexplicably found pinned to Mrs. Crabtree’s key hanging from her locker at the Penney store. Two and one-half days after her disappearance, at about 7:20 p. m. on August 1, Deputy Sheriff Cope of Warren County was summoned to a location just north of the Highway 47 Missouri River bridge in the southern part of the county. Going there with information that two men would be waiting and that a body had been discovered, Cope found defendant with a Mr. Schwartz, at the entrance of a roadway leading from the main highway. Defendant led him on foot to a nearby wooded area where he was shown the deteriorating body of Barbara Crabtree with a red string type nylon cord tied around her neck.

Calling for assistance, Cope was joined by officers of the Warren County Sheriff’s Office and the Missouri Highway Patrol. Shortly after arriving at the scene another officer, Lt. Malone of the Washington, Missouri Police Department, gave Cope the hand written “note” from Barbara Crabtree’s locker with defendant’s name and address. Possessed of the note and knowledge concerning its significance, Cope confronted Wood with this information and inquired if he had previously known or seen the victim. At first Wood denied having known her and then stated he had not seen her for several years. Acting on these facts, Deputy Cope arrested defendant “for investigation of murder.” We find such facts, together with the reasonable inferences therefrom, were sufficient “to warrant a man of reasonable caution in the belief that an offense [had] been or is being committed,” State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975), and that the person to be arrested was the offender. Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543 (1925). See also Brinegar v. United States, 338 U.S. 160, 175, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The evidence sufficiently supported the trial court’s determination of probable cause for the arrest.

Immediately following the arrest Cope gave the prescribed Miranda warnings. Thereafter, assisted by other officers arriving during the night, Cope interrogated defendant at the scene until about 2:45 the following morning, when he and Sgt. Pe-truss of the State Highway Patrol took defendant to the Warren County jail. About the same time defendant’s automobile was towed from the scene to the jail in Warrenton. Petruss and Cope continued the interrogation as defendant had made no admissions expressly involving himself in the crime. At approximately 3:10 a. m. they handed Wood a typed form (later state’s exhibit # 2) containing a written waiver of his rights to remain silent or to have an attorney and by which he would have agreed to further questioning. Reading the form, defendant apparently had second thoughts concerning further interrogation without counsel. He refused to sign the waiver and instead initialed the form and wrote the word “refused” near his initials. In addition, defendant stated he was unwilling to answer further questions until he had an attorney. The officers, ignoring his protestations, continued the questioning. Testimony, developed in the hearing on the motion to suppress concerning the continuing interrogation at the Warren County jail, was as follows:

“Q. And then someone asked him some questions after he refused to waive his rights?
A. Yes, sir.
Q. Who was that?
A. Sgt. Mudd and Sgt. Wheeler and Sheriff Twiehaus. [Sgts. Mudd and Wheeler were members of the Highway Patrol who had arrived and Sheriff Twie-haus was the Sheriff of Warren County.]
Q. And were they all present in one room at the time they were asking him these questions?
A. We have a divided office there, but we were all within sight of each other.
Q. Was this upstairs?
A. No, sir, downstairs.
Q. Downstairs, all right. Then how long did this questioning go on there in the vicinity of 3:15 a. m.?
A. Just a very short time because he refused to answer.
Q. All right. But the questions were continued to be asked of him?
A. Yes — uh-huh.
Q. About the crime?
A. Yes, sir.
Q. Is that correct?
A. Yes, sir.
Q. All right. And he continued to refuse to answer those questions?
A. Yes, sir.” (Emphasis supplied.)

Later the questioning ceased and at about 4:00 a. m., either Sgt. Mudd or the Sheriff resumed conversation with defendant, requesting that he sign written consent forms to search his car and home. He did so at 4:10 a. m. An immediate search of defendant’s car produced nothing except a brown paper sack containing a sandwich and a bag of Doritos, not shown to be connected with the crime. About 8:00 a. m. officers searched his room in St. Louis, but no incriminating evidence was discovered. Sometime near 4:15 a. m. defendant was put in a cell, remaining there until 7:00 a. m. During that period he may have slept briefly. However, he was dressed and awake at 6:55 a. m. when Deputy Cope returned to take him from the Warren County jail to the Missouri Highway Patrol Troop C Headquarters at Kirkwood for further interrogation. Cope, when testifying to these matters, was not sure if defendant had undressed or slept at any time during the night, but stated the only food or drink given defendant during this period was a candy bar and possibly a Coke or some coffee.

Wood was delivered to Troop C Headquarters at about 8:00 a. m. and, after a wait in the lobby under guard, was placed in a holdover cell until approximately 11:00 a. m. Sometime during the morning, he was taken to a room “where he had agreed to take a polygraph test.” An armed lieutenant of the Highway Patrol conducted a polygraph examination while three armed officers waited outside the room. Before the polygraph was given, Miranda or similar warnings were again read and though defendant submitted to the examination he denied connection with the crime. At the conclusion of the polygraph Sgt. Mudd continued the interrogation and sometime between noon and 1:00 p. m. Mudd told defendant he had better “come clean” because the officers had other evidence. At that time, seventeen hours after questioning began, appellant signed a pretyped form waiving his rights to counsel and to remain silent. Three and one-half hours of questioning by Mudd and Sheriff Twiehaus followed, during which defendant confessed the crime. The statement was dictated, typed, and put before defendant who read and signed it. The statement contains a detailed confession of his guilt in the strangulation death of Barbara Crabtree.

Later that day, Sgt. Mudd and Sheriff Twiehaus, with new information obtained from defendant during the “confession,” returned to defendant’s residence and found the victim’s purse in a trunk in the basement and a thermos bottle, having the appearance of one owned by the victim, in a kitchen cupboard.

On Sunday, August 4, Twiehaus and Mudd took Wood to the place of the crime and he directed them to a beer can containing the victim’s necklace not far from where the body was found. The next day defendant requested and was allowed to speak to the prosecuting attorney of Warren County and was again given a waiver to sign in the same form as that submitted to him at 3:15 a. m. on August 2, except that of August 5 contained an additional statement that Wood had been “advised of the above rights prior to making my statement on August 2,1974, at 2:00 p. m. at Troop C Headquarters, Kirkwood, Missouri.”

Overruling defendant’s motion to suppress, the trial court found the confession was not taken in deprivation of any constitutional right and the items obtained from defendant’s car and residence were products of permissible searches performed with the voluntary consent of defendant. Defendant contends his confession was obtained in violation of his rights under the Missouri Constitution, Art. I, §§ 15, 18(a) and 19, and of amendments IV, V, VI and XIV of the United States Constitution and particularly his rights to remain silent following arrest and for assistance of counsel. He points to the interpretation of the Fifth Amendment to the United States Constitution in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as the same has found application in Missouri by State v. Stevenson, 523 S.W.2d 349 (Mo.App.1975).

We conclude that defendant submitted voluntarily to interrogation from 7:20 on the evening of July 30 until 3:15 the following morning. At that time he refused to further waive his rights and evidenced this refusal in writing on the proffered waiver form. Witnesses for the state admitted defendant refused to answer further questions until he had an attorney. By these acts, defendant asserted his Fifth Amendment right to remain silent and his right to counsel under the Sixth Amendment. Nevertheless the officers continued as though reading Miranda warnings to defendant was license for incessant interrogation without regard to his protestations and asserted right to cut off further questioning. The officers here, as in Stevenson, supra, “failed to respect defendant’s exercise of his rights.”

The United States Supreme Court in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), examining the question of admissibility of inculpatory custodial statements of the accused, commented that as to a person who is warned of his right and indicates a desire to remain silent, Miranda does not provide a “per se proscription of indefinite duration upon any further questioning by any police officer on any subject . . . ” [l.c. 102-103,96 S.Ct. 326] The court however, in further explanation of Miranda stated the critical safeguard was a person’s “right to cut off questioning,” concluding that the admissibility of statements obtained after one in custody has decided to remain silent depends, under Miranda, on whether his “right to cut off questioning was ‘scrupulously honored.’ ” [l.c. 104, 96 S.Ct. 326]

From this record we cannot find that Wood’s rights were so honored; indeed, when he asserted his rights to remain silent and for an attorney, the questioning continued until he simply refused to answer further. The questioning resumed in various places by various officers until he confessed the following afternoon. The Highway Patrol personnel who conducted the polygraph and continued the interrogation on the second day were aided by the continuing effect of the prior in-custody interrogation. In Mosley, supra, the court condoned as constitutionally permissible a resumption of interrogation following a two hour cessation of questioning, cut off in the first instance by the accused’s statement, “that he did not want to discuss the robberies.” The earlier interrogation death with a robbery, the later concerned an unrelated murder. The court distinguished the procedural safeguards triggered by a request to remain silent and a request for an attorney. Interpreting Miranda, the Mosley court stated “ ‘The interrogation must cease until an attorney is present’ only ‘[i]f the individual states he wants an attorney.’ ” Here, Deputy Cope, who conducted the interrogation for the first seven and one-half to eight hours, testified that defendant, at about 3:10 a. m. on the morning of August 1, refused to sign the proffered “waiver” form and refused to answer further questions “until he had the right of an attorney.” The testimony concerning these matters follows:

“Q. I now hand you what has been marked State’s Exhibit No. 2 and ask you to take a look at that and tell the Court what that is.
A. This is the statement that was initialed by Mr. Wood.
Q. Whose signature appears at the bottom?
A. Sgt. W. R. Petruss and Clifford W. Cope.
Q. And did anybody else sign that form?
A. It was initialed by Mr. Wood on a refusal to sign it.
Q. What did he refuse to do?
A. He refused to answer any questions until he had the right of an attorney." (Emphasis supplied.)

On cross-examination, these matters were reiterated:

“Q. Okay. And on that exhibit there, you have indicated to us that Mr. Wood indicated that he refused to sign that.
A. Yes, sir.
Q. Is that correct?
A. Yes, sir.
Q. And also indicated that he refused to waive his rights, is that not right?
A. Yes, sir.
Q. And he also told you, as I remember your testimony just a few minutes ago, he told you that he didn’t want to say anything; he didn’t want to answer any questions until he had an attorney. Isn’t that what you just said a little while ago?
A. No, sir.
Q. Tell me what you — I have got a note here that you said he refused to answer questions until he had an attorney.
A. That was after he signed this [Exhibit No. 2]; after we were back in our office, yes, sir.
Q. Okay. And that was at 3:10 in the morning.
A. Yes, sir.” (Emphasis supplied.)

The violation of his rights to cut off questioning under the Fifth Amendment and to assistance of counsel guaranteed to him by the Sixth and Fourteenth Amendments rendered Wood’s statements made thereafter inadmissible. The state, however, in essence argues that defendant waived his right to remain silent and in fact did not expressly request counsel, or if so, similarly waived such right. The record negates the contention.

The proper standard in determining the question of waiver requires the state to prove “an intentional relinquishment or abandonment of a known right or privilege,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and the courts must indulge every reasonable presumption against such waiver of Fifth and Sixth Amendment rights. Pertinent to this discussion is the comment in Mr. Justice White’s opinion, concurring in result, in Michigan v. Mosley, 423 U.S. 96, 110 n.2, 96 S.Ct. 321, 329, 46 L.Ed.2d 313 (1975), “the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism.” See also Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

Defendant’s request to cut off questioning until he had an attorney, at 3:15 a. m., was less than scrupulously honored. Instead it was followed by about twelve more hours of persistent questioning with little or no sleep or food for defendant, broken only by brief intervals for travel and about one-half hour respite when defendant simply would not answer further. All this goes contrary to the state’s contention and the continual custodial coercion vitiated the claim of voluntary waiver. The subsequent Miranda warnings and waiver forms executed by defendant must be said to have resulted from the seemingly interminable interrogation after defendant realized his requests to terminate questioning and for assistance of counsel were to no avail. Because defendant’s statement or confession and related testimony were improperly admitted in evidence, the cause must be reversed. We are unable to conclude on the record before us that the state may not be able to adduce additional evidence at another trial and accordingly the cause is remanded for new trial. State v. Wade, 531 S.W.2d 726 (Mo.banc 1976). Defendant’s other contentions of error need not be reached as such matters are unlikely to recur in subsequent proceedings.

The cause is reversed and remanded for new trial.

McMILLIAN, P. J., and STEWART, J., concur.

      . Defendant had hailed Schwartz, a passing motorist, on Highway 47, told him he had found a body and took him to the place where it was located.

      . Defendant points to testimonial inconsistencies contending that Malone could not have arrived with the “note” until after the arrest and thus the arrest was without probable cause. | However, there was substantial evidence that Cope had received the “note” prior to the arrest.

      . On retrial evidence found in defendant’s car and house might well be admissible on the theory that such evidence would have been discovered in any event, even had the incriminating statement not been elicited from Wood. See Killough v. United States, 119 U.S.App.D.C. 10, 336 F.2d 929 (1964), cited in Brewer v. Williams, supra, 430 U.S. at 406, 97 S.Ct. 1232. As guidance to the trial court concerning the questions (1) whether a person in custody can give voluntary consent to search, (2) whether such consent is a statement obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and (3) whether evidence obtained as a result of the search was “fruit” of the illegally obtained statement and hence inadmissible under Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), we direct attention to United States v. Lemon, 550 F.2d 467 (9 Cir. 1977). See also United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); State v. Rush, 497 S.W.2d 213 (Mo. App.1973); State v. Berry, 526 S.W.2d 92 (Mo.App.1975).


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Terry WOODFIN, Appellant.
    No. 38070.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Application to Transfer Denied Jan. 9, 1978.

      Morris E. Williams, Public Defender, Donald Joseph Hager, Asst. Public Defender, Hillsboro, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Otto, Nanette Laughray, Walter 0. Theis, Asst. Attys. Gen., Jefferson City, Timothy J. Patterson, Pros. Atty., Dennis J. Kehm, Asst. Pros. Atty., Hillsboro, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Terry Woodfin was charged by information with selling marijuana to Police Detective Gerald Brindell (Count I) and to Police Detective John Schneider (Count II). He was found guilty by a jury of having made both sales, and he appeals from the ensuing judgment.

No challenge is made to the sufficiency of the evidence but a brief statement of the facts is necessary to a discussion of some of the issues.

Detectives Brindell and Schneider were employed by the St. Louis County Police Department and assigned to the Bureau of Drug Abuse of the Greater St. Louis Narcotics Task Force. At the request of the Sheriff of Jefferson County both officers went to that county to “investigate narcotics traffic.” A jury reasonably could find that on March 8, 1974 the officers went to the Trophy Inn where Officer Schneider became acquainted with appellant and “discussed narcotics” with him. Officer Schneider received from appellant his home telephone number so he could call “whenever [he] wanted to buy some drugs.” On March 22, Officer Schneider called appellant and arranged a meeting at a shopping center parking lot. At the appointed time officers Brindell and Schneider saw a tan colored Plymouth automobile in which there were four persons. The officers observed some form of a transaction between the occupants of the Plymouth and the occupants of two other vehicles. The Plymouth then left the area and Officer Schneider again called appellant’s home. Shortly thereafter the tan Plymouth with four occupants, one being appellant, returned to the parking lot and Officers Schneider and Brindell each purchased from appellant two bags of marijuana for which each paid $30.

In Count I of the information appellant was charged with selling marijuana to Officer Brindell, and in Count II he was charged with selling marijuana to Officer Schneider. Instructions No. 5 and 6 were identical except for the reference to Count I or Count II and followed the form of MAI-CR 14.10. Each provided as follows:

“As to Count [I or II], if you find and believe from the evidence beyond a reasonable doubt:
First, that on March 22, 1974 in the County of Jefferson, State of Missouri, the Defendant sold a drug known as Marijuana, and
Second, that the defendant was aware of the character of the drug and intentionally and knowingly sold it, then you will find the Defendant guilty under Count [I or II] of the sale of a controlled substance.
* * * * * *
If you do find the Defendant guilty under Count [I or II] of that offense you will fix his punishment * *

The jury returned a verdict as to each count, and they were as follows:

“As to Count [I or II], We the jury, find Terry Woodfin guilty of the Unlawful Sale of a Controlled Substance, to-wit: Marijuana * * * as submitted in Instruction No. [5 or 6] * *

Appellant contends on this appeal that it was error to submit Instructions 5 and 6 in the form of MAI-CR 14.10 without modification because each instruction directed the jury “to return a verdict of guilty on both counts upon finding precisely identical elements as to each count * * Appellant also contends that the verdicts cannot support a judgment because each is “insufficient in that neither * * * can be made definite and certain as to the offense intended by reference to the pleadings and the instructions.”

Appellant made no objection to either instruction or to the forms of verdict, and there is no assignment of error in the motion for new trial based on the contentions now asserted. Appellant contends that the submission of Instructions 5 and 6 constituted “plain error” within the meaning of Rule 27.26(c). Each followed the format of MAI-CR 14.10, and Rule 20.02(c) provides that whenever there is an MAI-CR instruction applicable under the law to the facts, it shall be given or used to the exclusion of any other on the same subject. The jury ordinarily is not informed of the contents of an information, and when, as in this case, a person is charged in separate counts with a separate sale of a controlled substance, the better practice would be to modify each instruction to identify the sale referred to other than by reference only to a count of the information.

The evidence referred to two alleged sales of marijuana by appellant; one to Officer Brindell and the other to Officer Schneider. There was no evidence of any other sale by appellant. In his testimony appellant admitted that two sales of marijuana took place, one sale to each officer, but he stated that the sales were made by another person in the automobile whom he did not know. In these circumstances it is not reasonable to speculate that the jury did not know and understand that each instruction referred to one of the two sales established by the evidence. The jury found that appellant made both sales. Each verdict was responsive to one of the instructions. Appellant is in no position to complain to the reference in the instructions to the counts of the information. The court orally instructed the jury, to which appellant’s counsel agreed, that each form of verdict “will relate to Count I or Count II,” and that the jury was to “return two verdicts in this case; one verdict relating to Count I and one to Count II.” We find no manifest injustice resulting from the instructions or the verdicts.

When the instructions were read to the jury, the trial court gave Instruction 7, which in its entirety was as follows:

“If you unanimously find the Defendant guilty you should fix his punishment. If, however, after due deliberation, you find the Defendant guilty but are unable to agree upon his punishment, you will complete the verdict form so stating, and in that event the Court will fix the punishment.”

Apparently an attempt was made to give MAI-CR 4.50 in a modified form. But, there were two counts in this case, and the instruction omitted any reference to a finding of guilty of a particular count and the duty of the jury to fix the punishment as to that count. It also omitted a reference to the inability of the jury to agree on the punishment as to a particular count, and it totally omitted the fifth paragraph of MAI-CR 4.50.

Appellant made no objection to Instruction 7, and made no assignment of error pertaining to it in his motion for a new trial. He asserts that to give it was plain error within the meaning of Rule 27.20(c).

The instruction is so foreign to MAI-CR 4.50 we do not consider it to be an attempted modification. The essential issue is whether it was “plain error” resulting in manifest injustice for the court to give the jury such an instruction and we conclude that it was not.

Appellant argues that Instruction 7 suggested the “real controversy in the case is punishment and not guilt.” We do not find this suggestion in the instruction. We note that the jury found appellant guilty of making the sale submitted in each verdict directing instruction, and that it fixed the punishment as to each offense at the minimum. Also, there is nothing in the instruction that is legally incorrect. We see no occasion for a trial court to fail to follow the approved and mandated forms of MAI-CR, but we are convinced that manifest injustice did not result from Instruction 7.

Appellant next asserts that the trial court committed “plain error” in submitting Instructions 5 and 6 whereby the jury was authorized-to find appellant guilty of two offenses. He asserts “the evidence was insufficient to sustain a conviction [of] more than one violation” because the marijuana “was passed to two officers almost simultaneously” and there was but one sale.

Appellant recognizes in his brief that the precise issue was ruled adversely to his contention by this court in State v. Gordon, 536 S.W.2d 811 (Mo.App.1976), but he argues that “the rule * * * should be narrowed to exclude near simultaneous sales to undercover police officers.” We do not agree, and we decline to disturb the scope of the ruling in the Gordon case. Clearly, no manifest injustice occurred.

By his fifth point appellant asserts plain error resulted when the court imposed judgment and sentence on the two verdicts because Instructions 5 and 6 “clearly and unavoidably subjected” appellant to multiple punishment for the same offense. He argues that each verdict is “based upon the finding of precisely identical facts.”

We have previously held that the two sales constituted two offenses, not one, and we adhere to that ruling. We have also held that by reference in each instruction to Count I or Count II, each instruction referred to a different sale. Therefore, each verdict was not based upon a finding of identical facts. We find no error resulting in manifest injustice based on this contention.

By his sixth point, also based on plain error, appellant complains of (1) alleged improper cross-examination of one of his character witnesses, and (2) that the court failed to give MAI-CR 2.50.

Donna Blake, a witness for the defense, testified that she was acquainted with “a lot” of appellant’s “acquaintances and friends” in the community. When asked if she was acquainted with his “reputation among those people,” she replied that “everybody likes him” and they think he is “a good person.” She also testified that “I think everybody trusts him” when asked if she knew his reputation for truthfulness. On cross-examination she was asked if her “opinion” would be affected if she knew he smoked marijuana or that “he drank.” As to smoking marijuana, she replied, “I really couldn’t say” and as to drinking she replied: “If he drank excessively or anything."

The court has considerable discretion in its control of cross-examination, and while there may be some question as to whether the questions on cross-examination related to knowledge of the witness of appellant’s reputation in the community, the courts have consistently approved cross-examination of the nature as that in this case. See State v. Wilson, 248 S.W.2d 857 (Mo.1952); State v. McCoy, 458 S.W.2d 856 (Mo.1970); State v. Meller, 387 S.W.2d 515 (Mo.1965).

Rule 26.02(6), which in substance follows the language of § 546.070(4), RSMo 1969, provides that in all criminal cases the court, whether requested or not, must instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict, which instruction “shall include, whenever necessary, the subjects of good character and reasonable doubt.” The term “whenever necessary” as used in the statute and rule, “means that such an instruction is necessary only when there is substantial evidence tending to show the good character of the defendant.” State v. Moore, 303 S.W.2d 60, 70 (Mo. banc 1957).

The testimony which appellant contends was sufficient to require such instruction is that of Donna Blake, referred to above. She first testified that she knew his “acquaintances and friends” in the community, and was then asked, “What is his reputation with these people?” Reputation for what? It could have been as to many things other than his character. Her answer that “everybody likes him” and that they think he is a good person” did not necessarily apply to his character. The other question, as to his reputation for truthfulness, does not put his character in issue. State v. Underwood, 530 S.W.2d 261 (Mo.1975); State v. Steely, 327 Mo. 16, 33 S.W.2d 938 (1930). We seriously doubt that a reasonable interpretation of the testimony of Donna Blake required that the court instruct on good character. However, assuming that it did, we find no reversible error. The failure to give a required instruction does not, of itself, result in “manifest injustice or mis-carriage of justice” within the meaning of Rule 27.20(c), but that determination is to be made under the particular facts and circumstances of each case. State v. Patterson, 443 S.W.2d 104 (Mo. banc 1969). We have no hesitancy in stating that no manifest injustice or miscarriage of justice occurred in this case.

The last three points pertain to the validity of the sentence which was five years on each count. In imposing sentence the court expressly stated that in the exercise of its discretion it was directing that the sentences be served consecutively. Appellant contends that it was error to impose sentence without a presentence investigation, because (a) Rule 27.07 requires that a pre-sentence report be made absent an order to the contrary, and (b) there was sufficient information available to indicate that concurrent sentencing, probation, or suspended sentence might be appropriate upon further investigation. He also contends that it was “unduly harsh to sentence [him] to a term of 10 years instead of 5 years.”

Rule 27.07(b) provides that when a probation officer is available to any court having original jurisdiction to try felony cases, such probation officer shall, unless otherwise directed by the court, make a presen-tence investigation and report to the court before the imposition of sentence or the granting of probation. The record in this case does not reveal that such a report was or was not made, or whether the court did or did not direct that no report be made. It also does not appear from the record that a probation officer was available, but it is reasonable to assume that one was.

The use by the trial court of the information in such a report, or to have such report submitted by the probation officer, is discretionary. State v. Maloney, 434 S.W.2d 487 (Mo.1968). Appellant argues that the record shows that he had but one previous conviction, for driving while intoxicated, and that he was twenty years old, and that in these circumstances it was an abuse of discretion for the court not to obtain more information by use of a presen-tence investigation before imposing consecutive sentences. As previously noted, the record does not indicate that the court did not do so, but assuming it did not, in view of the facts and circumstances of this case, we find no abuse of discretion on the part of the trial court in its imposition of sentence.

The judgment is affirmed.

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


author: GUNN, Presiding Judge.

text:
    James T. GRIFFITH, Plaintiff-Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Defendant-Appellant.
    No. 38255.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Application to Transfer Denied Jan. 9, 1978.

      Gerald D. Morris, St. Louis, for defendant-appellant.
    Friedman, Weitzman & Friedman, C. Marshall Friedman, St. Louis, for plaintiff-respondent.
   GUNN, Presiding Judge.

Plaintiff-respondent was injured while working as an employee for defendant-appellant, St. Louis-San Francisco Railway Company. Plaintiff sued defendant under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51, and received a $150,000 jury verdict. On appeal, defendant contends that the trial court erred: (1) in giving plaintiff’s verdict directing instruction; (2) in refusing defendant’s converse instruction; (3) in refusing to admit an exhibit of a recorded recollection of a defense witness; (4) in failing to grant a new trial after an alleged prejudicial statement made by plaintiff’s counsel in closing argument; (5) in failing to grant a new trial or remittitur by reason of an alleged grossly excessive verdict. We find no error and affirm the judgment.

Plaintiff was employed by defendant in Springfield, Missouri. At the time of his injury, plaintiff was assembling rebuilt air brake pistons which were put together under air pressure. As plaintiff was in the process of assembling an air brake piston, a portion of the piston slipped forward and struck plaintiff on the left eyebrow, and nose, injuring plaintiff’s eye. As a result of the injury, plaintiff suffered permanent impairment and distortion of vision. The jury award was $150,000.

1. Defendant first attacks plaintiff’s verdict directing instruction which is based on M.A.I. 24.01 and was submitted as follows:

“Your verdict must be for plaintiff if you believe:
First, defendant failed to provide reasonably safe conditions for work, and
Second, defendant was thereby negligent, and
Third, such negligence directly resulted in whole or in part in injury to plaintiff.”

Although defendant did not object to the foregoing instruction at trial, on appeal it contends that the verdict director permits an improper roving commission for the jury. Defendant’s allegation of error is without merit. The contested instruction has been specifically adopted by our Supreme Court for use in F.E.L.A. cases. See M.A.I. 24.01. As such, its use is mandatory to the exclusion of all others. Rule 70.-01(b); Brown v. St. Louis Public Service Co., 421 S.W.2d 255 (Mo.banc 1967).

In Ricketts v. Kansas City Stock Yards Co. of Maine, 484 S.W.2d 216 (Mo.banc 1972), regarding an instruction congruent in every respect to plaintiff’s verdict director here, it was said, l. c. 221:

“This instruction’s wording in what it submitted follows M.A.I. 24.01 which is designed for submission of F.E.L.A. cases.”

Defendant’s request that we abjure Supreme Court rules and, incidentally, Rick-etts, is futile. We do not have power to do so. We are bound by the Supreme Court’s rules and its decisions. Pitts v. Malcolm Bliss Mental Health Center, 521 S.W.2d 501 (Mo.App.1975); Ritter v. Lindberg Acoustics, Inc., 501 S.W.2d 207 (Mo.App.1973). Plaintiff’s verdict director is valid, and we are not persuaded to step beyond the bounds of the strictures of our appellate review.

2. Defendant submitted the following purported converse instruction to plaintiff’s verdict director:

“Your verdict must be for the defendant if you do not believe the nonpressure head slipped out of the reassembly rack while the nonpressure head was under air pressure”.

The trial court refused the instruction, which defendant complains was error. We find no error. A converse must be in substantially the same language as that used in the verdict director it converses. Oventrop v. Bi-State Development Agency, 521 S.W.2d 488 (Mo.App.1975); Snyder v. Chicago, Rock Island & Pacific Co., 521 S.W.2d 161 (Mo.App.1973). Defendant’s ostensible converse does not comport with this precept. There was no error in refusing defendant’s converse.

3. Defendant argues that it was error for the trial court to refuse to allow one of its witnesses, Loren Tate, to refresh his memory from a written statement he had made shortly after the accident and in refusing to admit the statement into evidence. Mr. Tate was plaintiff’s foreman on the date of the accident. He testified as to the condition of the air brake procedures subsequently taken by defendant to prevent further occurrences of the particular accident experienced by plaintiff. Defendant sought to introduce into evidence a written report prepared by Mr. Tate after the accident stating the corrective measures taken by defendant to avert similar happenings. The alleged purpose of the written statement was to refresh Mr. Tate’s recollection as to what had happened on the date of the accident. The fact is that Mr. Tate had already testified clearly and unhesitatingly regarding everything that was contained in the proffered statement. As stated in Watson v. Meredith Development Co., 410 S.W.2d 338, 341 (Mo.App.1966):

“Generally speaking, the question of whether a witness may be allowed to refresh his recollection is a matter reposing in the sound discretion of the trial court, reviewable only for abuse, (citations omitted) However, ... a sound discretion would ordinarily dictate that a witness should not be asked to refresh his recollection unless it is first established that he has no present recollection and that he needs the aid of a memorandum in order to recall the facts to his mind or otherwise establish them.”

From the record, it is clear that Mr. Tate needed nothing to refresh his recollection for the substance of his testimony. There was no abuse of discretion in the trial court’s refusal to receive the written statement in evidence. Furthermore, where a witness has not been impeached, prior consistent out of court statements, written or oral, are not admissible to bolster his in court testimony. The out of court statement is hearsay and is not admissible under any exception to the hearsay rules.

4. During his closing argument, plaintiff’s counsel made a statement conveying the impression that defendant would “get rid of” plaintiff after the case was over. Defendant’s counsel objected to the comment, and the objection was sustained. No further relief was requested. Defendant, in its brief, states that “[i]t may be argued that the trial court sustained defendant’s objection to the argument and that defendant got the relief it requested.” We agree. Defendant did get all the relief it requested and is not now in position to complain. State v. Rutherford, 554 S.W.2d 584 (Mo.App.1977); Burian v. Dickens, 527 S.W.2d 26 (Mo.App.1975). We find no abuse of discretion in the trial court’s failure sua sponte to declare a mistrial nor does any basis exist, as defendant contends, to reverse and remand merely because the statement was made late in the trial during closing argument, which, according to defendant, would make a request for a mistrial futile.

5. Finally, defendant suggests that the jury verdict of $150,000 was overly munificent and demonstrated bias and prejudice. In the alternative, defendant argues that we should order a remittitur.

The evidence disclosed that as a result of being struck in the eye and eyebrow by a portion of the air brake piston on which he was working, plaintiff suffered serious and permanent injury to his eye. There was competent medical testimony that plaintiff’s vision would be permanently distorted, not correctable by the use of eye glasses; that his vision was impaired. There was also medical testimony that by reason of the injury sustained the possibility exists that plaintiff’s visual problems could be aggravated; that complications such as glaucoma and retinal detachment could ultimately occur with loss of sight of the injured eye. Defendant does not challenge the fact that the plaintiff was injured or that permanent visual distortion did occur as a result of the injury. The jury is vested with broad discretion in affixing the amount of the award as is the trial judge in determining whether to order a remittitur. Blond v. Overesch, 527 S.W.2d 663 (Mo.App.1975). Giving consideration to the nature and extent of plaintiff’s injuries, their permanence, the plaintiff’s age — 38 at the time of the injury — consideration of economic factors, awards in other cases and the jury’s superior position to appraise the injury, we cannot say that the jury award was excessive or that the trial court abused its discretion in failing to order a remittitur. Bedwell v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 509 S.W.2d 81 (Mo.1974); McDowell v. Southwestern Bell Tel. Co., 546 S.W.2d 160 (Mo.App.1976); Strake v. R. J. Reynolds Tobacco Co., 539 S.W.2d 715 (Mo.App.1976); Woodford v. Illinois Central Gulf Railroad Co., 518 S.W.2d 712 (Mo.App.1974). Under the circumstances of this case, we do not believe that the fact that the record fails to disclose plaintiff lost work time from his injury is a significant factor for reducing the verdict.

Judgment affirmed.

WEIER and KELLY, JJ., concur.

      . Defendant claims that the word “thereby” added to paragraph second of the verdict director and which does not appear in M.A.I. 24.01 renders the instruction fatally defective. The word “thereby” caused no concern to the Supreme Court in Ricketts and does not here.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Shelley LaVerne WEST, Defendant-Appellant.
    No. 38677.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 8, 1977.

      James B. Herd, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant-appellant Shelley LaVerne West appeals from a judgment of conviction finding her guilty of unlawfully and knowingly having in her possession and under her control a quantity of “PCP” and a sentence of six months in the county jail. Defendant challenges the sufficiency of the evidence, which was wholly circumstantial, to sustain the conviction.

We conclude that there was no substantial evidence to show that the defendant knowingly possessed and had under her control the “PCP” in question and that the judgment should be reversed. In reviewing the evidence, the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state.

On April 18, 1975, defendant and several of her friends were having a party in a mobile home located in Montgomery City, Missouri. The mobile home was rented by one Vicky Callaway. Apparently the defendant had been staying at the mobile home for a few days prior to the date of the party. No evidence was adduced, however, indicating that the mobile home was defendant’s permanent residence.

During the late evening hours of April 18, Sheriff Clarence Landrum of Montgomery County, executed a search warrant for the mobile home. Upon arrival at the mobile home, the sheriff noticed several automobiles parked near the premises. One such automobile was owned by the defendant. At approximately 11:45 p. m., the sheriff arrested ten or eleven persons from the mobile home. The officers seized several controlled substances.

Among those arrested were the defendant, her younger brother, Sidney West, and her boyfriend, Randy Hampton. The record does not indicate whether Sidney West or Randy Hampton were formally charged after the arrest. Defendant was not charged but was released to her mother at 11:00 a. m., the following morning, some fourteen hours after the arrest. As a condition to her release, defendant was required to execute a consent form to the search of her automobile located near the mobile home.

At the time of her release, defendant was aware of the impending search. Sheriff Landrum informed the defendant and her mother that the vehicle would be searched some time in the afternoon. The vehicle was not under surveillance at any time pri- or to or after defendant’s release.

The actual search took place after 1:00 p. m., on April 19, 1975, some two hours after the defendant’s release. During this two hour period, the defendant and her mother returned to the mobile home. Some time after 1:00 p. m., several members of the Montgomery County sheriff’s office and the state highway patrol arrived at the trailer and began to search a number of the vehicles. Defendant handed the keys to her vehicle to Trooper Magruder. The trooper, after searching the front and rear area discovered a small box in the trunk of defendant’s vehicle. The box contained several white pills. Defendant, owner of the vehicle, was subsequently arrested and charged with possession of a controlled substance. The substance was later determined to be phencyclidine, commonly referred to as “PCP.”

Testimony adduced at the trial included that of Sheriff Clarence Landrum, deputy sheriff Ambrose Oligschaeger; Missouri Highway Patrolmen Raymond Magruder and Joseph Crow; Wilma See, defendant’s mother, and Sidney West, defendant’s brother.

Both of the sheriffs and Patrolman Ma-gruder testified to the chain of events as set out above. None of the three offered testimony linking the defendant to the controlled substance, other than the ownership of the vehicle. On cross-examination during the state’s case, Patrolman Magruder testified to the operation of defendant’s car by her brother Sidney, and her boyfriend, Randy.

Mrs. Wilma See testified that her daughter had purchased the vehicle about three weeks prior to the arrest. Mrs. See stated her son, Sidney West, and Randy Hampton drove the car. Mrs. See testified further that at one point while at the mobile home, after her daughter’s release, the defendant went into the mobile home, and alighted with the keys to her automobile. She entered the front of the automobile, but did not open the trunk.

Defendant’s brother, Sidney West, was called as a rebuttal witness by the state. He admitted that he and Randy Hampton drove the automobile, but denied any knowledge of the box containing the PCP. Sidney West testified further that he had placed a spare tire in the trunk of the car the day before defendant’s arrest, and had not seen the box.

After defendant’s motion for judgment of acquittal at the close of all the evidence was denied, the jury returned a verdict of guilty.

In our opinion, the evidence does not support a conviction for knowingly having possession and control of a controlled substance by the defendant. Section 195.-020, RSMo 1969, sets out the prohibited acts relating to controlled substances. This section neither defines possession, nor is a definition included in § 195.010. Missouri case law requires the state to prove actual or constructive possession of the substance together with knowledge of the fact of possession. State v. Worley, 375 S.W.2d 44 (Mo.1964); State v. Burns, 457 S.W.2d 721 (Mo.1970). The test is whether “ ‘the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.’ . . . ” State v. Young, 427 S.W.2d 510, 513 (Mo.1968). Actual possession is not necessary to sustain a conviction, constructive possession will suffice when other facts buttress an inference of defendant’s knowledge of the presence of the controlled substance. One such incriminating fact is a defendant’s access to an area in which drugs are found. State v. Brickley, 521 S.W.2d 16 (Mo.App.1975). Proximity of the controlled substance to the person who acknowledges ownership will permit a finding of possession which in turn will support the charge. State v. Lockhart, 501 S.W.2d 163, 164 (Mo.1973). The legal fiction of constructive possession, however, has its limits. As stated by our supreme court in State v. Burns, supra, at 724, “ . [possession without knowledge of such possession is not possession in the legal sense of that word . . .

It is true the circumstantial evidence may be used to show the requisite possession, and therefrom knowledge inferred. State v. Young, 427 S.W.2d 510 (Mo.1968). But to support a conviction or make a submissible case based on circumstantial evidence, the facts and circumstances must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of the defendant’s guilt, but also must be inconsistent with every other reasonable hypothesis of innocence. State v. Eye, 492 S.W.2d 166, 167-168 (Mo.App.1973); State v. Burnley, 480 S.W.2d 881, 882 (Mo.1972).

In the present case, there was no evidence that the defendant had ever touched the box found in the trunk, nor, for that matter, any evidence defendant had ever entered the trunk. Defendant made no declarations indicating knowledge of the drugs. There was no evidence that the defendant had exclusive control of the automobile, in fact, testimony in the state’s own case indicated others had access to the automobile. The state also failed to show the keys to the automobile were in defendant’s possession while she was in custody before the search. In view of the testimony indicating the keys were left in the mobile home while the defendant was in custody, it is reasonable to believe that the vehicle was not in defendant’s possession prior to the search. Perhaps the most compelling fact indicating the lack of knowledge of the drugs was the defendant’s conduct. Her conduct was not such that an inference of knowledge could be drawn. We do not believe the facts as set out above buttress an inference of defendant’s knowledge of the presence of the controlled substance.

In reaching this result, we believe that we have construed the evidence in the light most favorable to the state. The only evidence that implicates the defendant was the fact of defendant’s ownership of the vehicle. Missouri does not recognize the presumption that the owner is charged with knowledge of everything found in his or her vehicle. Cf. Corrao v. State, 154 Ind.App. 525, 290 N.E.2d 484 (1972); Watson v. State, 93 Ga.App. 368, 91 S.E.2d 832 (1956). Contra, People v. Van Syoc, 269 Cal.App.2d 370, 75 Cal.Rptr. 490 (1969). We believe such a presumption may be dangerous. The inclusion of omnibus clauses in insurance policies, and the concomitant increase in usage of automobiles by drivers other than the owner, has given the automobile a new role in our mobile age. Perhaps the “family car” is the best example. Common experience teaches us that parents, teenage children, and on occasion friends and neighbors drive the “family car.”

We believe that something more than mere ownership of a vehicle in which a controlled substance is discovered is needed to support a conviction for possession of narcotics. Cf. State v. Virdure, 371 S.W.2d 196 (Mo.1963), where the defendant acknowledged present possession of his vehicle located in front of his permanent residence. See also, State v. Burns, supra, at 724, where the court explained the Virdure case and emphasized the facts. The facts and circumstances in this case are not inconsistent with every other reasonable hypothesis of innocence. Inasmuch as we find the court should have sustained defendant’s motion for a judgment of acquittal, we reverse without remand. This for the reason that the record indicates the state has had a full opportunity to develop its case fully; there is no need to remand the case for a new trial. State v. Rogers, 380 S.W.2d 398, 400[5] (Mo.1964) and State v. Walker, 365 S.W.2d 597, 602[8, 9] (Mo.1963).

Judgment reversed and defendant discharged.

CLEMENS, P. J., and SMITH, J., concur.


author: HERBERT LASKY, Special Judge.

text:
    Eula GRUHALA, Plaintiff-Respondent. v. Bee LACY, D/b/a Mineral Area Realty, Defendant-Appellant.
    No. 38068.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 8, 1977.

      Colson & Wagner, David L. Colson, Farmington, for defendant-appellant.
    Charles W. Medley, Farmington, for plaintiff-respondent.
   HERBERT LASKY, Special Judge.

This appeal arises from a suit for breach of contract predicated upon the employer’s refusal to pay her employee real estate commissions claimed due and upon the employer’s alleged interference with her employee’s performance of contractual duties. The jury returned a verdict for plaintiff awarding $6,370.50 in damages and interest. Defendant appeals from this judgment. We affirm.

Plaintiff was employed by defendant, a real estate broker, doing business as Mineral Area Realty. Under the terms of the employment agreement plaintiff, a licensed real estate agent, was to receive 25% of the commission earned by the realty company for the sale of any property upon which she had procured a listing and an additional 25% if she was responsible for the sale. Plaintiff claimed at trial that she was entitled to a listing and a sales commission on two parcels of property which shall be referred to as the Key and Morgan properties. Plaintiff further claimed that defendant usurped her opportunity to negotiate with a prospect, whom she had developed, for the sale of a third parcel of land which shall be referred to as the Smith property. The jury found for plaintiff on all three counts.

With respect to the Key and Morgan transactions defendant’s allegations of error on appeal concern only the wording of the verdict directing instructions and not the factual basis for the jury’s finding. Further recitation of the specific facts surrounding these transactions is unnecessary.

Defendant in the points relied on section of her brief has raised numerous allegations of error regarding the verdict directing instructions. The majority of these points, however, are wholly inadequate as they are not in compliance with Rule 84.04(d) V.A.M.R. Most are no more than abstract statements of law which fail to state concisely wherein and why the instructions are erroneous. As such they preserve nothing for appellate review. Lee v. Rolla Speedway, Inc., 539 S.W.2d 627 (Mo.App.1976); Barber v. M. F. A. Milling Co., 536 S.W.2d 208 (Mo.App.1976); Speicher v. Dunn, 530 S.W.2d 45 (Mo.App.1975). This court has no duty to seine through either the argument portion of appellant’s brief or the transcript to ascertain the “wherein and why” of the claimed error. Bell v. Bell, 538 S.W.2d 733 (Mo.App.1976); Cole v. Cole, 516 S.W.2d 518 (Mo.App.1974). “While other violations of briefing rules sometimes can be easily overlooked, defective points relied on cannot. More precision is required in the area because reviewing courts want to be sure they are deciding the case on the issue the appellant is trying to raise.” Wei-er & Fairbanks, Why Write a Defective Brief? Give Your Client a Chance on Appeal, 33 J.Mo.Bar 79, 88 (1977). When counsel fails to point out clearly and specifically the focus of his complaint, he abrogates his duty as advocate and thrusts that responsibility upon the court. It is not fair to the opposing party for us to accept such responsibility. The following statement of Judge Lamm continues to be apposite:

“The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. Hence, apparently, they bespeak the dignity arising from obedience. If they are not be obeyed, they should be done away with once for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it — the very ones it should not injure.”

Sullivan v. Holbrook, 211 Mo. 99, 109 S.W. 668, 670 (1908).

Though we decline to rule on the merits of the majority of defendant’s claims of error we will nevertheless, ex gratia, review the two points which arguably meet the requirements of Rule 84.04(d). The verdict directing instruction for the Key transaction is as follows:

“Your verdict must be for Plaintiff, on Count I, if you believe:
First: Defendant employed Plaintiff as a real estate salesperson and agreed to pay Plaintiff 25% of any commission received by Defendant on sales of real estate which had been listed for sale as a direct result of Plaintiff’s efforts and 25% of any commission received by Defendant for sales of property sold as a direct result of Plaintiff’s efforts, and
Second: The Key farm was listed with Defendant’s agency as a direct result of Plaintiff’s efforts or the Key Farm was sold by Defendant’s agency as a direct result of Plaintiff’s efforts, and
Third: Defendant received a commission as a result of the sale of the Key farm, and
Fourth: Defendant has not paid plaintiff the amount due her as a result of the sale of the Key farm.”

The instruction given for the Morgan transaction is in all material respects the same. Defendant argues that this instruction “failed to properly submit the issue of the plaintiff’s damage.” The gravamen of defendant’s complaint seems to be that the instruction should have included a fifth paragraph requiring the jury to find that “Plaintiff has been thereby damaged.”

It is true that when there is a disputed issue as to whether plaintiff has suffered any actual damages as a result of defendant’s breach, such a paragraph is required. Thus, for instance, when computing damages for breach of a construction contract, which are measured by the difference between the contract price and the cost to complete construction, a specific finding of damage to plaintiff is necessary because the cost to complete could exceed the contract price. See Beuc v. Morrissey, 463 S.W.2d 851 (Mo. banc 1971); Veterans Linoleum and Rug, Inc. v. Tureen, 432 S.W.2d 372 (Mo.App.1968). Or where, as in Forsythe v. Starnes, 554 S.W.2d 100 (Mo.App.1977), there is a counterclaim by defendant and the jury is requested to return only one verdict, the jury must be required to find that plaintiff was damaged by the breach. This is necessary, because if the counterclaim exceeds the plaintiff’s claim there will be no net damage to plaintiff. The court in Forsythe v. Starnes, supra, at 107, went on to say, however, that “the jury, in the event of a retrial, should return more than one verdict. If this is done, it will not be necessary to include a finding of damage to plaintiff in plaintiff’s verdict director because the damage due to defendant’s refusal to pay is obvious and need not be submitted . ”

The damages here are equally obvious. If the jury found, as it was required to do by the instruction submitted, that defendant had incurred an obligation to pay plaintiff commissions under the terms of the employment agreement, but did not do so, there can be no question that plaintiff was damaged as a result. There was no counterclaim by defendant, and the measure of damages was solely the contract price. Under these circumstances the verdict directing instructions relating to the Key and Morgan transactions properly submitted the issue of plaintiff’s damages. See S. P. Personnel Assoc. v. Hospital B. & E. Co., 525 S.W.2d 345 (Mo.App.1975); Bomson v. Electra Mfg. Co., 402 S.W.2d 7 (Mo.App.1966).

Defendant also argues that the verdict directing instruction relating to the Smith transaction was improperly submitted to the jury because there was insufficient evidence to support a finding that defendant prevented plaintiff from carrying out her duties under the employment contract. That instruction is as follows:

“Your verdict must be for Plaintiff on Count II, if you believe:
First: Defendant employed Plaintiff as a real estate salesperson and agreed to pay Plaintiff 25% of any commission received by Defendant on sales of real estate which had been listed for sales as a direct result of Plaintiff’s efforts and 25% of any commission received by Defendant for sales of property sold as a direct result of Plaintiff’s efforts, and
Second: While Plaintiff was attempting to sell the Smith farm to Paul Price, Defendant prevented Plaintiff from carrying out her duties, and
Third: Defendant received a commission as a result of the sale of the Smith farm to Paul Price, and
Fourth: Plaintiff was damaged by Defendant’s actions.”

It is well settled that the issues submitted for the jury’s determination in an instruction must be supported by evidence from which the jury could reasonably find such issues. Dickey Co., Inc. v. Kanan, 537 S.W.2d 480 (Mo.App.1976); Stotler v. Bollinger, 501 S.W.2d 558 (Mo.App.1973). In considering whether an instruction is supported by the evidence we view the evidence, along with all reasonable inferences which are fairly derivable therefrom, in the light most favorable to the party offering the instruction. Any conflicting evidence offered by the opposing party is disregarded. Williams v. Christian, 520 S.W.2d 139 (Mo.App.1974); Stotler v. Bollinger, supra.

Under the foregoing standard, the evidence supported a finding that Walter Smith listed his farm for sale with the defendant’s real estate agency and that defendant placed advertisements in various newspapers attempting to sell the property. The ultimate purchaser of the Smith farm, Paul Price, upon seeing the farm advertised, telephoned the Mineral Area Realty office and spoke with plaintiff. In her conversation with Price, plaintiff informed him of the acreage, the price and the financing arrangements. Plaintiff then made an appointment to meet with Price the following Saturday to show the farm. When Price arrived at the office, plaintiff was on her way to meet him. Defendant, however, intercepted Price and made the sale before plaintiff was able to meet him. Defendant paid no commission to plaintiff even though Price’s appearance at the office to see the Smith farm was a direct result of plaintiff’s efforts.

In light of this evidence the jury could, and did, find that defendant’s interception of Price usurped plaintiff’s opportunity to perform her duties as a real estate agent and prevented her from making a sale to Price, thereby depriving her of substantial commission. The law is settled that where one party to a contract forbids or interferes with the performance by the other party to an extent which amounts to a refusal to perform, the party interfered with may recover as if the contract had been performed. Reid v. Kelly, 300 S.W.2d 542 (Mo.App.1957). There was sufficient evidence to raise an issue as to defendant’s interference with plaintiff’s contractual duties. The verdict directing instruction was properly submitted.

The judgment is affirmed.

GUNN, P. J„ WEIER and KELLY, JJ., and ROBERT G. J. HOESTER, Special Judge, concur.


author: WEIER, Judge.

text:
    Earnest FRANKLIN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38655.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 15, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Application to Transfer Denied Jan. 9, 1978.
    Robert C. Babione, Public Defender, Robert G. O’Blennis, Edward J. Bippen, Jr., Asst. Public Defenders, St. Louis, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas M. Daly, Asst. Circuit Atty., St. Louis, for respondent.
   WEIER, Judge.

Movant appeals from the trial court’s denial of an evidentiary hearing on a Rule 27.26 motion. He had been found guilty of first-degree murder after jury trial held in the City of St. Louis and was sentenced to life imprisonment. That conviction was affirmed in State v. Franklin, 482 S.W.2d 420 (Mo.1972).

In his motion, movant set forth as grounds for relief that he was deprived of a jury composed of a true cross section of the community and was thus deprived of an impartial trial, due process and equal protection of the law in violation of the Sixth and Fourteenth Amendments to the United States Constitution in that there was a systematic discrimination in practices employed in St. Louis, Missouri, that caused a substantial disparity between representation of cognizable groups in the jury pool and the groups’ representation in the entire population. He particularly complained of a substantial disparity in representation of youth, poor, females, blacks, older people, nonvoters, stating that this furthered the practice of depriving these people of representation because of their economic, social, religious, political and geographic locations in St. Louis. In his second paragraph, mov-ant stated that he, a Negro, was deprived of an impartial trial for the reason that the system was operated in St. Louis to exclude “a proportionate number of Negros (sic) from jury service by the policy of the county prosecutor, in case after case, to exclude said Negro’s (sic) from jury service by use of peremptory challenge.” The trial court in denying the motion stated in its findings and conclusions of law that the motion stated only conclusions and no facts and that there were no facts in paragraph 9 of the required form under Rule 27.26 to support movant’s allegations. We have concluded that the trial court was correct in its determination that the motion stated only conclusions and did not state sufficient facts to entitle movant to the relief which he sought. An evidentiary hearing on a 27.26 motion will be had only if the movant pleads facts, not conclusions, which if true would entitle him to relief. He must also show that such factual allegations are not refuted by the record before the court. Voegtlin v. State, 546 S.W.2d 40, 41[4] (Mo.App.1977).

The first paragraph of the allegations contained in the motion are couched entirely in conclusory terms. It does not specify the practices which cause the alleged discrimination. The second paragraph of the motion alleging discrimination must be viewed in light of the standards set forth in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975). There, the defendant contended on appeal that the court erred in overruling his motion to discharge the trial jury and declare a mistrial because the State willfully used its peremptory challenges to strike all Negroes from the jury panel and had done so for many years in all similar cases. In determining that the motion was properly overruled without a hearing, the court applied the rule set forth in Swain v. Alabama, 380 U.S. 202, 223-24, 85 S.Ct. 824, 837, 13 L.Ed.2d 759 (1965) wherein the United States Supreme Court stated that “when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance.” In Baker our Supreme Court stated that the motion before it failed to allege that there had been no blacks on petit juries for any given period of time which might give rise to a fair inference of improper discrimination. Further, the motion failed to allege that the exclusion of blacks was made “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be . with the result that no Negroes ever serve on petit juries . . .” State v. Baker, supra at 125. (Emphasis added by the court in Baker.) Here movant fails to allege that all Negroes were excluded from .jury service by the system operated in St. Louis but merely states that a “proportionate” number of Negroes were excluded. There is a further failure to allege facts to support the thesis that the exclusion occurs “whatever the circumstances, whatever the crime and whoever the defendant or the victim may be.” See also, State v. Williams, 535 S.W.2d 128, 130[2, 3] (Mo.App.1976) where it is stated: “The discrimination becomes unconstitutionally objectionable only if it is proved that the prosecutor in a given county has practiced that same kind of exclusion systematically in all cases.” The same requirement must be made as to the allegations of the essential facts pleaded in a motion raising the issue.

The judgment of the court below is affirmed.

GUNN, P. J., and KELLY, J., concur.

      . The difficulty of making a successful attack upon the jury system in Missouri under Swain v. Alabama, supra, is discussed in depth in State v. Davis, 529 S.W.2d 10, 16-19 (Mo.App.).


author: REINHARD, Judge.

text:
    Bonnie A. WHITWORTH, Plaintiff-Respondent, v. Ralph S. WHITWORTH, Jr., Defendant-Appellant.
    No. 38786.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 15, 1977.
    Gallop, Johnson, Godiner, Morganstern & Crebs, P. Terence Crebs, Clayton, for defendant-appellant.
    James E. Crowe, St. Louis, for plaintiff-respondent.
   REINHARD, Judge.

Defendant husband appeals from an order of the trial court dismissing with prejudice his motion to modify a decree of divorce. He alleged in his motion that the decree provided for alimony payments and that, because of changed conditions, he should be relieved from any further obligation to make said payments. Holding that the award was contractual and not subject to judicial modification, the trial court sustained plaintiff wife’s motion to dismiss. We affirm.

On July 27, 1962, the parties executed a written “Stipulation” indicating that they were “desirous of settling their property rights and other matters in dispute.” The “Stipulation” contained twelve separately numbered paragraphs. Paragraph 1 provides: “Defendant agrees to pay * * * as alimony and support money * * * the sum of $275.00 per month, payable on the 1st day of each month until the first day of March, 1971, the first day of the month proceeding the day that the elder child of the parties attains the age of Twenty-one years (21), at which time such alimony payments and support money for the plaintiff shall be increased to Three Hundred- ($300.00) Dollars monthly, to continue at such rate during plaintiff’s life time unless she shall sooner rémarry.”

Paragraph 2 provides for the designation of plaintiff as beneficiary of a policy on the life of defendant, so long as she shall remain unmarried. Paragraph 3 provides that the beneficiary shall be changed upon the remarriage of plaintiff. Paragraphs 4 through 6 provide for insurance by the parties for the benefit of the children. In Paragraph 7, the parties agree to relinquish all interests in property of the other and to release and discharge “the other of all obligations one to the other, including but not limited to any marital rights in and to the property of the other * * Child custody support payments are resolved in Paragraphs 8 through 10, while court costs and attorney fees are designated in Paragraph 11. In Paragraph 12, the parties agree to submit “the within agreement and stipulation to the Court for approval. * * Until such approval, the rights of the parties shall be govern (sic) by their contract heretofore executed by them.”

The parties were divorced on August 15, 1962. The decree provided in part:

“It is further ordered, adjudged and decreed by the Court that the plaintiff shall also have and recover of the defendant, as and for her alimony, the sum of $275.00 per month, payable on the 1st day of each month until the first day of March, 1971, * * * at which time alimony payments and support money for the plaintiff shall be increased to Three Hundred ($300.00) Dollars monthly, to continue at such rate during plaintiff’s life time unless she shall sooner remarry, or until the further order of the Court. * * * * * *
It is further ordered, adjudged and decreed by the Court that the plaintiff shall also have and recover of the defendant, as and for attorney fees, the sum of $500.00, payable forthwith, together with the costs of this proceeding, and in default of the payment of said costs, or said attorney fees, or any of the installments awarded as aforesaid, as and for said alimony and as and for the support and maintenance of said minor children, as and when the same become due and payable, execution issue therefor.

Stipulation filed.”

On the same day the court entered its decree, the parties filed a “Memorandum for Clerk” signed by the attorneys for both parties. The monthly alimony payments to be made by defendant are set forth under the alimony portion of the memorandum, and the only reference to the stipulation relates to the insurance policies. The minute entry recorded in the file for the date of August 15, 1962, reflects an entry of the contents of the “Memorandum for Clerk” and also states: “Stipulation filed.”

The defendant contends the court erred in determining that the “alimony” award was contractual, claiming that the award was for statutory alimony and subject to modification by the Court.

In North v. North, 339 Mo. 1226, 100 S.W.2d 582, 587 (1936), and in numerous decisions since that case, our courts have held that a husband and wife, in contemplation of divorce, may enter into a separate agreement in which they settle all property and marital rights, including support and alimony. In Nelson v. Nelson, 516 S.W.2d 574, 577[3] (Mo.App.1974), the court said:

“Concededly, as the cases universally hold, every contract providing for an award of ‘alimony’ referred to or incorporated in the divorce decree must be construed upon its own wording to ascertain the intention of the parties.” (Emphasis added.)

The parties either intend the “alimony” award to remain contractual and not subject to judicial modification or to become decretal and subject to modification by the court. The courts of this state have long grappled with the distinction between contractual support and decretal alimony. Vorhof v. Vorhof, 532 S.W.2d 830, 832 (Mo.App.1975).

We agree with the trial court that the award in this case was contractual and not statutory. See North v. North, supra; Vorhof v. Vorhof, supra. The stipulation attempted to “settle” the parties’ property rights and “other matters in dispute.” It includes matters which could not have been decreed as part of the judgment of the court. The stipulation provides that the alimony is to continue “during plaintiffs life time unless she shall sooner remarry.” In North v. North, supra at 586[9], the Supreme Court found that a similar provision “justifies the conclusion that the decree was an approval of the contract, and not an award of alimony, because the court had no authority to make an award of alimony to continue so long as the wife remained single and unmarried, * * *.” See also, Gunnerson v. Gunnerson, 379 S.W.2d 861, 865 (Mo.App.1964); Jenkins v. Jenkins, 257 S.W.2d 250, 253 (Mo.App.1953).

The defendant argues that the award should be considered statutory rather than contractual because of the language of the decree. Specifically, the defendant points to the provision that the alimony shall “continue at such rate * * * until the further order of the Court”, and the provision that “in default of * * * any of the [alimony] installments * * *, execution issue therefor.” The cases are in conflict as to the significance of similar language. Compare LaFountain v. LaFountain, 523 S.W.2d 847, 849 (Mo.App.1975); Goulding v. Goulding, 497 S.W.2d 842, 844-45 (Mo.App.1973), with Tysdal v. Tysdal, 235 S.W.2d 124, 128-30 (Mo.App.1950); Kerby v. Kerby, 544 S.W.2d 292, 294-95 (Mo.App.1976). However, such language in the order is not controlling as to the nature of the decree, and its appearance in the decree does not outweigh the noted factors indicative of a contractual intention.

The defendant argues that for “alimony to become a contractual right which is not subject to future judicial modification, the divorce court must affirmatively adopt, approve or incorporate such agreement into its decree”, and that this was not done. The contract was referred to in the decree as required in Nelson v. Nelson, supra, and as found by the trial judge, was in effect approved by the court.

The order of the trial court is affirmed.

McMILLIAN, P. J., and STEWART, J., concur.

      . Excellent discussion of the distinction between contractual support and statutory alimony. '


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jerry CRANE, Appellant.
    No. 38721.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 15, 1977.

      John D. Ashcroft, Atty. Gen., Terry C. Allen, Paul R. Otto, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for appellant.
    Robert C. Babione, Public Defender, Theodore Guberman, Mark G. Arnold, Asst. Public Defenders, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

In separate counts the state charged defendant with burglary and possession of burglary tools. The jury found him guilty of each charge and fixed his punishment at imprisonment for six years and three years, respectively. After the trial court imposed those sentences, to run concurrently, defendant appealed.

The substantive facts are simple. Police stopped a car driven by Alvin Cluck in which defendant Jerry Crane was a passenger. In the front seat they found a pistol, flashlights, chisels, pry bars and a lock punch. In the hands of a burglar these could be used as burglar tools. In the trunk, the police found items later identified as having been taken from the burglarized home of Joseph Politte. To show defendant’s felonious intent to use the discovered implements as burglar tools, the state introduced evidence of defendant’s prior conviction for burglary and showed that both defendant and his companion Alvin Cluck were known to police as burglars. Defendant offered no evidence and does not challenge the sufficiency of the evidence on either count.

As to the separate charge of possessing burglar tools, defendant does not challenge the admissibility of the state’s evidence of his prior burglary conviction and his reputation as a burglar. Such evidence is admissible to show burglarious intent. State v. Wing, 455 S.W.2d 457[11, 12] (Mo.1970).

Defendant’s primary point relied on is based on his premise that the evidence of his prior conviction and reputation as a burglar, although admissible on the possession charge, was inadmissible and prejudicial on the burglary count. The state concedes the premise of defendant’s point but denies his conclusion that the court erred in admitting the challenged evidence in the same trial. Defendant persuasively argues that the challenged reputation evidence, although admissible on the count charging possession of burglary tools, was inadmissible and prejudicial on the burglary count. We concede a jury might improperly consider the reputation evidence in deciding on defendant’s guilt on the burglary charge.

Rule 24.04, V.A.M.R., Joinder of Offenses, effective since 1971, provides that separate offenses may be jointly charged and tried, but granting a motion for severance of charges is discretionary with the trial court. State v. Brannom, 539 S.W.2d 747[4] (Mo.App.1976). Defendant at no time requested a severance nor seek an instruction directing the jury not to consider the reputation evidence in deciding the burglary charge. A defendant’s right to avoid one trial on two counts, or to have a limiting instruction, must be asserted in the trial court. Defendant did neither and so waived the alleged error. State v. Frankum, 425 S.W.2d 183[14-16] (Mo.1968); State v. Serna, 526 S.W.2d 66[2, 3] (Mo.App.1975).

Defendant has properly preserved for review his challenge to the possession of burglary tools conviction.

By defendant’s second point he contends the trial court erred in admitting evidence about the reputation of a Miss Shirley York as a “fence” or receivor of stolen property. This arose during the testimony of police Officer Stephen Sorocko, one of the arresting officers. He testified he had never known defendant but did know defendant’s companion, Alvin Cluck, and also knew that one of Cluck’s associates was Shirley York. Sorocko was then asked if Shirley York’s reputation was known to the police. A side-bar colloquy followed and the state was unable to show any connection between Shirley York and the defendant, other than that Alvin Cluck knew her. The state offered to prove by witness Sorocko that Shirley York had a reputation as a “fence.” Defendant objected to testimony about the reputation of “an accomplice of an accomplice” as being irrelevant. The court overruled the objection, and Officer Sorocko testified that Miss York’s reputation with police departments was that she was a fence, “a source of stolen property.”

Defendant concedes that evidence of the burglarious reputation of an accused’s associate, such as that of Alvin Cluck, is admissible to circumstantially establish defendant’s felonious intent in possessing burglar tools. State v. Watson, 386 S.W.2d 24[7] (Mo.1964). In our case, however, the state attempted to extend that holding to further allow evidence of the reputation of an associate of an associate of defendant. At trial the state attempted — and the trial court permitted — the state to establish defendant’s felonious intent in possessing burglar tools by showing that his companion knew Shirley York and she had a reputation as a “fence.”

Defense counsel cites no cases directly holding such evidence is inadmissible but we find his argument logical. He cites two analogous cases which, broadly construed, support his contention. In State v. Richards, 334 Mo. 485, 67 S.W.2d 58[1] (1933), the court held a money bag, gun and black rag found at a co-defendant’s home were inadmissible against defendant absent a showing of some connection between defendant and the articles. After determining the principal issue to be the identification of defendant, the court asked, “How would the introduction of these articles aid in the identification of the defendant Richards, or tend to prove his connection with the commission of the offense?” In our case the principal issue is the defendant’s intent in possessing the described tools. Defendant also cites State v. Schleicher, 438 S.W.2d 258[4-7] (Mo.1969), in which the court determined stolen goods seized during a search of the apartment of his alleged accomplice should be suppressed at defendant’s trial unless some connection between defendant and the articles is shown.

Here, we must decide whether the fact that Alvin Cluck was an associate of a known “fence” was relevant to the issue of defendant’s burglarious intent in possessing the seized tools.

Our own research yields no case directly in point. The rule of “res inter alios acta” does support defendant’s argument. The phrase means “a thing done between others, or between third parties or strangers, [and] forbids the introduction of collateral facts which by their nature are incapable of affording any reasonable presumption of inference as to the principal matter in dispute.” State v. Dupree, 477 S.W.2d 129[4-6] (Mo.1972). Shirley York’s reputation as a “fence,” a person unknown to defendant, does not create a reasonable inference that defendant possessed the tools with burglarious intent.

For that reason the evidence was irrelevant. “Evidence is considered relevant if the fact it tends to establish tends in turn to prove or disprove a fact in issue, or to corroborate evidence which is relevant and which bears on the principal issue.” Charles F. Curry & Co. v. Hedrick, 378 S.W.2d 522[18,19] (Mo.1964). Since no connection between defendant and Miss York was ever established, her reputation as a “fence” was irrelevant because it did not tend to prove the fact in issue, i. e., defendant’s burglarious intent.

The state argues that Miss York’s reputation is relevant because it corroborates Alvin Cluck’s reputation as a known burglar. Even were we to assume the evidence was relevant, however, it should have been excluded because it is prejudicial. Evidence of a collateral matter should be excluded if it brings into a case new controversial matters which cause prejudice disproportionate to the value and usefulness of the offered evidence. Daniels v. Dillinger, 445 S.W.2d 410[5-8] (Mo.App.1969).

We hold the trial court’s admission of the testimony of Shirley York’s reputation was erroneous.

This brings us to the question of prejudicial or harmless error. “Error in the admission of evidence should not be declared harmless unless it is so without question.” State v. Degraffenreid, 477 S.W.2d 57[14] (Mo.1972). Error is not harmless where the record fails to demonstrate defendant was not injured by the error as by showing the jury disregarded or could not have been influenced by the evidence. State v. Wynne, 353 Mo. 276, 182 S.W.2d 294[9] (1944). Here, the factual issue to be proven was that the implements in defendant’s control were feloniously intended for use in committing a burglary. Miss York’s reputation as a “fence” was irrelevant to that issue. In Switzer v. Switzer, 373 S.W.2d 930[13-17] (Mo.1964), the court declared: “Evidence in any suit should be relevant; and evidence that throws no light on the controversy should be excluded as it tends to confuse the issues and operate to prejudice a party before the jury.”

The possession charge against defendant was circumstantial and the record fails to show the jury disregarded or could not have been influenced by the admission of Shirley York’s reputation as a “fence.” Being unable to conclude the error was harmless, it follows that it was prejudicial.

As ruled in State v. Burchett, 302 S.W.2d 9[2] (Mo.1957): “Prejudice, as it affects the defendant’s legal rights, is not a matter of degree. If the defendant was prejudiced to any extent by the improper evidence, it was undue and we cannot say that the defendant had a fair and impartial trial according to the law and the evidence.”

We believe this erroneous admission of evidence was an error materially affecting the jury verdict and requires the granting of a new trial. The scope of the new trial—as to one count or both—is within our discretion, “according to the circumstances of the case.” Section 547.290, RSMo. 1969. Thus, in State v. Dixon, 420 S.W.2d 267[8] (Mo.1967), where defendant was charged with burglary and stealing and the trial curt erroneously admitted evidence, the supreme court ordered a new trial on both charges, holding: “Although such testimony related primarily to the stealing charge, it also bore upon the element of entering under the burglary charge and we cannot say that the verdict on both charges was not influenced by the testimony. Therefore, the conviction on both charges must be reversed.”

Similarly, in State v. Williams, 515 S.W.2d 544[8] (Mo.1974), where the state charged murder and robbery under Rule 24.04, V.A.M.R., and the trial court erred as to one count, the supreme court reversed and remanded as to both counts, holding: “The state elected to take advantage of Rule 24.04, V.A.M.R., and to charge both murder and armed robbery in the same information and to try the defendant on both charges at the same trial. The state having done so and receiving the benefit of having the jury hear the entire evidence involving both offenses, there is no way by which it might be determined to what extent the failure to accord the defendant the challenges to which he was entitled on the murder charge also prejudiced his trial on the robbery. The two charges were so interwoven that the outcome of the murder charge would most likely determine the outcome of the robbery charge. In such circumstances, both convictions should be reversed [and remanded].”

Here, evidence of the burglary and possession of burglar tools was closely connected both in time and place. While the evidence of defendant’s reputation as a burglar was relevant to the charge of possessing burglar tools it was inadmissible and prejudicial on the charge of burglary. As in Williams, supra, the two charges were so interwoven that the outcome of one would most likely determine the outcome of the other.

We conclude the judgment should be reversed and remanded for a new trial on all issues, without prejudice to the defendant’s right to seek a severance of the two charges. It is so ordered.

SMITH and McMILLIAN, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Stephen McCOY, Defendant-Appellant.
    No. 38757.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 15, 1977.

      James W. Whitney, Jr., Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from a judgment of conviction entered by the circuit court of the City of St. Louis, on a jury verdict finding him guilty of robbery in the first degree by means of a dangerous and deadly weapon, and a sentence of 12 years in the custody of the Missouri Department of Corrections imposed by the court, §§ 560.120, 560.135 and 556.280, RSMo1969.

Defendant does not challenge the sufficiency of the evidence; therefore, only a brief summary of the facts is presented. On July 10, 1976, defendant was apprehended shortly after the robbery of Ed-munds Sales and Service station in St. Louis. The robbery took place during the late evening hours when a man entered the station and held the attendant, Vincent Roberson, at gunpoint. Roberson later identified the defendant as the perpetrator.

Originally an indictment was filed, but subsequently replaced with a substitute information. The record indicates that several witnesses were endorsed on the indictment and again on the information, including Vincent Roberson, the victim, and Paul Nobles, a second attendant on duty at the service station at the time of the robbery.

Paul Nobles was called as a witness by the state. Defense counsel objected alleging his name was not listed on the response to defendant’s discovery request pursuant to Rule 25.32(A)(1). A short voir dire of Mr. Nobles was conducted, but defense counsel did not request an opportunity to question Mr. Nobles. Nobles was allowed to testify over the objection of the defense counsel. On direct examination Mr. Nobles did not identify the defendant. However, on cross-examination, Nobles identified the defendant as the perpetrator. Defense counsel again objected to his testimony, repeating his initial objection of no discovery. The circuit attorney contended he complied fully with discovery, and alleged the inculpating testimony was adduced on cross-examination. The court overruled defense objection stating defense counsel had notice of Mr. Nobles, and ample time to interview him as his name was endorsed on both the indictment and the substitute information.

On appeal, defendant contends the trial court erred in allowing Nobles to testify because his name did not appear on the state’s response to his discovery request pursuant to Rule 25.32(A)(1).

Whatever the merits of defendant’s contention may be, we are unable to review this issue. The record is absent of either the request for discovery, or the state’s response thereto. With conflicting allegations on the part of the defense counsel and the circuit attorney, we are unable to view the extent to which the state complied with the discovery request. It is well settled that in order for an appellate court to review an alleged error below, the appealing party must prepare and file a record incorporating the basis for the alleged error. Davis v. Long, 521 S.W.2d 7 (Mo.App.1975). See Rules 81.12(b) and 81.14 made applicable to criminal cases by Rule 28.18, V.A.M.R. We hold that defendant has not met his burden because he failed to bring forward the record showing the alleged error; therefore, there is nothing for this court to review. State v. Clark, 522 S.W.2d 332 (Mo.App.1975).

Accordingly, judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Mikel Leroy REEVES, Defendant-Appellant.
    No. 38701.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 15, 1977.
    Robert C. Babione, Public Defender, Andrew T. Kotschar, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Judge.

Mikel Leroy Reeves, the defendant, was convicted by a jury of robbery in the first degree with a deadly and dangerous weapon. From the judgment and sentence, he appeals contending that the evidence was insufficient to sustain the conviction.

Defendant was positively identified as being one of two men who entered the Edgewater Nursing Home in the City of St. Louis, defendant holding a handgun and the other a shotgun. After threatening several of the employees at a nursing station, defendant seized two containers of medicine and left. On appeal the sole contention raises insufficiency of the evidence to sustain the verdict. An examination of the specific grounds for this contention reveal only some minor inconsistencies with regard to what certain of the witnesses saw and heard. Admittedly there was disagreement between two witnesses as to whether defendant was wearing a mitten on the left or right hand at the time of the robbery. Again an officer testified that two of the witnesses made pre-trial statements indicating they could not identify defendant and another witness pointed out the wrong building as being the nursing home on one of the State’s exhibits, a photograph. There is also some disagreement with regard to where a witness was standing when he saw the defendant drive away from the nursing home and his position as related by an officer. Despite these inconsistencies, however, substantial evidence on the part of a number of witnesses established the commission of the crime and identified defendant as having actually participated in its commission.

Inconsistencies are matters that are proper for the jury to consider in determining guilt or innocence of a defendant but they do not support a charge of insufficiency of the evidence on appeal. State v. Kellick, 521 S.W.2d 166, 168[3, 4] (Mo.App.1975). Discrepancies in testimony and questions of credibility are resolved by the jury in their verdict. State v. Jines, 539 S.W.2d 801, 803[3] (Mo.App.1976).

The judgment is affirmed.

GUNN, P. J., and KELLY, J., concur.