text:
    Marko Savantes WHITLOCK, Appellant, v. STATE of Missouri, Respondent.
    No. 36087.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 11, 1976.
    Motion for Rehearing or Transfer to Court En Banc Denied June 15, 1976.

      Allen I. Harris, James A. Bell, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., G. Michael O’Neal, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, Gene McNary, Pros. Atty., Clayton, for respondent.
   CLEMENS, Presiding Judge.

Motion for relief under Rule 27.26.

In 1971 movant was charged with first degree robbery and pled guilty on the advice of counsel. The court accepted the plea, suspended sentence and placed movant on probation for three years.

While on probation, movant pled guilty to forging a check. He testified he believed this plea would not result in revocation of his probation.

Later, movant was indicted on a second robbery charge. During pendency of that prosecution, the court held a probation revocation hearing, revoked movant’s probation, and sentenced him to imprisonment for 75 years.

By paragraphs I and IV of his Points Relied On movant contends he was denied due process when his probation was revoked; he argues there was no preliminary hearing and the evidence was insufficient. The essence of Points I and IV is the legality of the parole revocation. That does not “come within the scope of a proceeding under Rule 27.26. That rule provides a remedy for a prisoner who desires to attack the sentence.” Green v. State, 494 S.W.2d 356[2-4] (Mo.1973). Green holds the proper remedy to attack a parole revocation is by habeas corpus.

At the hearing on the Rule 27.26 motion, the court recognized the limitation of ruling the revocation issue under Rule 27.26, but chose to consolidate all the issues. The trial court’s choice is not binding on our court. Nelson v. State, 508 S.W.2d 227[2, 3] (Mo.App.1974). We decline to consider movant’s challenges to his parole revocation.

By his Points II and III movant contends the 75-year sentence is excessive. It is within the statutory parameters of five years to life and there is no error. Section 560.135, RSMo 1969; Duncan v. State, 524 S.W.2d 140[3] (Mo.App.1975).

Last, we consider movant’s Point V on the voluntariness of his original guilty plea. He alleges the trial court failed to ask him if his plea was being made to receive a lighter sentence or if any promises had been made to him. He argues specifically that “. . . the circumstances were appropriate for a false confession because the State recommended five years and the appellant has a very good chance of getting probation.” There is no reason to consider the probability of a “false confession” being induced since movant admitted his guilt to the first robbery at his Rule 27.26 hearing.

Judgment affirmed.

DOWD and STEWART, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Doris WILLIAMS, Plaintiff-Appellant, v. Curtis WILLIAMS et al., Defendants-Respondents.
    No. 9853.
    Missouri Court of Appeals, Springfield District.
    June 7, 1976.

      J. Miles Sweeney, Johnson & Sweeney, Springfield, for plaintiff-appellant.
    Glenn A. Burkart, Mann, Walter, Bur-kart, Weathers & Walter, Springfield, for defendants-respondents.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   PER CURIAM.

In a Greene County court-tried action for an accounting and recovery of proceeds after the sale of 100 acres, appellant Doris Williams was denied relief. She claims to have entered into an oral contract on April 19, 1973, with her four brothers who were acting for her parents under a power of attorney. Under the alleged agreement, in consideration for execution of quitclaim deeds to the land in question, her brothers would sell the property, pay off existing mortgages, pay back to the father all monies he had expended on the land, and secure the remaining proceeds for appellant.

Appellant’s brief does not challenge the trial court’s initial factual finding which was: “Neither on April 26,1973, nor on any other date referred to in evidence herein did [appellant] have an equitable interest [in] any of the three tracts of real estate described in her petition in this action.” Therefore, appellant has abandoned any claim of error as to that finding. Nicklas v. Lincoln Liberty Life Ins., 518 S.W.2d 106, 112(6) (Mo.App.1974); Metter v. Janssen, 498 S.W.2d 581, 583(1) (Mo.App.1973); Derboven v. Stockton, 490 S.W.2d 301, 307(1) (Mo.App.1972); Beeler v. City of Raytown, 453 S.W.2d 672, 674(2) (Mo.App.1970).

The points appellant did urge on appeal, i. e., sufficiency of proof of the oral contract and removal of the contract from the statute of frauds by appellant’s performance of her part of that contract, are abstract statements which utterly fail to comply with Rule 84.04(d). See Hines v. Sweet, 518 S.W.2d 710, 711(1) (Mo.App.1975); Cole v. Cole, 516 S.W.2d 518, 520(4) (Mo.App.1974); Roberts v. Roberts, 515 S.W.2d 805, 806(1) (Mo.App.1974). More importantly, there having been no challenge by appellant to the finding that she had no interest in the land, the issues she raised have no bearing on the outcome of this appeal.

The appeal is dismissed.

All concur.


author: KELLY, Judge.

text:
    CENTRAL MISSOURI FOODS, INC., Plaintiff-Appellant, v. GENERAL GROCER COMPANY, Defendant-Respondent.
    No. 36416.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 8, 1976.

      Leonard R. Yocum, St. Louis, for plaintiff-appellant.
    George Thomas, St. Louis, for defendant-respondent.
   KELLY, Judge.

This is an appeal from the judgment rendered in behalf of the respondent, General Grocer Company, after a trial to the court without a jury. We affirm.

Appellant, the plaintiff in the trial court, brought this suit “On Account” seeking to recover $975.39 and interest for some chickens delivered to Dixon’s Discount Center of Columbia, Missouri, between April 13, 1971, and May 19,1971, which it had billed to the respondent in accordance with an alleged agreement between it and respondent’s “district manager,” Mr. Staicoff. Respondent, in its Answer, denied the agreement and also pleaded the Statute of Frauds. § 432.010 RSMo. 1969. No request for findings of fact or conclusions of law were made by the parties, and at the conclusion of the non-jury trial the trial court entered judgment for respondent, the defendant in the trial court.

In reviewing a court-tried case it is the duty of the appellate court to review the case upon both the law and the evidence as in suits of an equitable nature. Due regard shall be given to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01(a), (b). However, as this court stated in Bader Automo tive & Indus. Supply Co. v. Green, 533 S.W.2d 695, 698 (1976), the deletion of the phrase “ ‘the judgment shall not be set aside unless clearly erroneous’ ” from the former Rule, effective January 1, 1975, did not convert appellate courts into “judicial second guessers,” and where the decision depends upon the credibility of the witnesses and the weight of the evidence, an appellate court should generally defer to the findings of the trial court unless it is satisfied they should have been decided otherwise.

Appellant corporation is a processor and wholesaler of chickens. Respondent corporation operates a distribution and retail consultation service with about 105 independent retail stores, including Dixon’s, as clients. As a part of this consultation service respondent authorizes the billing of purchases made through its merchandising department by its clients from vendors, pays the bills, and charges its clients a fee for these services. On occasion, if the client’s credit is good, the client may order directly from the vendor without going through respondent’s merchandising department and if the bill is sent to the respondent it will pay the bill for the client and then charge the client for the amount of the bill plus the service charge.

Mr. Fred Beaman, sales manager for appellant, testified that on March 26, 1971, Dixon’s Discount Center ordered, for the first time, some chickens by telephone. Because this was a new account, Mr. Beaman delivered the chickens personally and before unloading them he spoke to Mr. Susich, an employee of Dixon’s Discount Center, and told him that he was from appellant, that he had the chickens, and asked how they wanted to pay for them. At that time Mr. Susich was sitting in the back of the Dixon’s Discount Center with another man who was introduced to him as Mr. Staicoff. Mr. Staicoff, he testified, gave him his business card. This business card had Mr. Staicoff’s name on it, “General Grocers” and stated that he was a supervisor “of some kind.” After Mr. Staicoff identified himself and stated he was with General Grocers, he gave Mr. Beaman the address of General Grocers and told Mr. Beaman to bill the chickens through General Grocers in St. Louis. Mr. Staicoff did not tell him that he would have to obtain approval from General Grocers for any subsequent deliveries to Dixon’s Discount Center. Prior to this occasion Mr. Beaman had never done business with respondent. Nevertheless, he was familiar with this type of business dealings because this same billing arrangement was utilized by other food distributors.

Further orders of chickens were placed by Dixon’s Discount Center on April 1st and 3rd and appellant billed these to respondent for the three shipments on April 6, 1971. Respondent paid for these deliveries on April 9, 1971, by check. Further deliveries on April 5, 7 and 9, totalling $330.37 were also billed to respondent on April 14, 1971, and paid on April 16, 1971, by respondent. Nine other deliveries were made to Dixon’s Discount Center by appellant between April 13 and May 3, 1971, and totalled $975.39. These, like the prior orders, were billed to respondent, but this billing was never paid and is the subject of this litigation. Mr. Beaman testified that he had no further correspondence with respondent after it paid for the deliveries other than receipt of payment for them. He denied that he had received any indication that Dixon’s Discount Center would pay for the deliveries of the chickens despite the fact that the invoices sent to respondent were made out to Dixon’s Discount Center.

Respondent’s evidence was in conflict with that of appellant. Mr. Staicoff denied that Mr. Beaman inquired concerning the billing for the chickens at the meeting of March 26, 1971, although he admitted that he, during some discussion concerning the services afforded by respondent, did suggest that Mr. Beaman get in touch with Mr. Dietrich of respondent’s meat department, because Mr. Dietrich was the merchandiser for that department. He made this suggestion because Mr. Susich explained to him what appellant’s program was and “the head meatcutter” explained that they had a fine program, because you could buy pieces of chicken, or chicken halves, or whole fryers. He thought the program sounded like a good one and thought that perhaps there were other stores in the area which could utilize this program of appellant. He testified that he did not tell Mr. Beaman to bill the chickens to respondent. He further testified that he had no authority to contract for his employer; his duties were to assist the member stores in merchandising, advertising, controls, office and register procedures.

Mrs. Gladys Humphrey, a billing-clerk typist employed by the respondent at the time of these transactions, described the manner in which respondent’s meat merchandising department functioned as set out hereinabove. On April 8, 1971, after respondent had paid three billings for Dixon’s Discount Center which had been submitted by appellant, she, at the direction of Mr. George Dietrich, respondent’s meat merchandiser, prepared a master copy of a form letter which was then xeroxed and mailed to all of the vendors with which respondent did business. One of the vendors to whom this letter was mailed on April 8, 1971, was appellant. (Mr. Beaman testified that he did not receive this letter prior to May 19, 1971). The original or master copy of this letter was retained for a time and then discarded. Dixon’s Discount Center’s name was not specifically mentioned in the letter, because it was their practice not to name the client whose credit was not in good standing in this form letter. This letter is as follows:

“Gentleman:
We would like to restate our meat merchandising program in regard to collections pertaining to meats sold to General Grocer Company Cooperative Group members.
General Grocer Company assumes payment for all orders that originate from the headquarters meat department. Only by this method can we control our accounts and purchases.
If there are any questions regarding our program, please contact the writer. This is brought to your attention so that our credit losses can be held to a minimum.
/s/ George Dietrich”

Mrs. Humphrey testified that the reason the first three bills submitted to respondent were paid was that up until that time appellant’s credit with respondent was in good standing.

On re-direct examination, Mrs. Humphrey testified that in addition to this letter of April 8, 1971, there was another notice sent to the vendors with the particular store’s name and customer number on it notifying the vendors that the store named in the notice was no longer being serviced by respondent. However, she admitted that she had no personal knowledge of any such letter in this case and she had nothing to do with sending that letter. Although a copy of that letter was also kept in the company’s files, she did not know where it was. Around the 1st of April, 1971, she recalled that a letter from Mr. Dietrich came around to the effect that Dixon’s Discount Center was a bad credit risk.

George Dietrich also testified as a witness on behalf of the respondent. He had been employed by respondent for 19 to 20 years and at the time of his testimony was vice-president in charge of meat merchandising and produce for respondent. He too explained respondent’s operation and stated that the only bills respondent guarantees are those where the orders come through the respondent’s offices, but admitted that so long as the retailer was in good credit standing with the respondent it would pay also for bills submitted where'the retailer or client dealt directly with the vendor. He denied that anyone had ever called him with respect to the conversation between Mr. Beaman and Mr. Staicoff of March 26, 1971, and that the payments made on the billings submitted to respondent by appellant were in any way connected with any conversation of that date. He explained payment of the first bills submitted by appellant on the ground that they were paid as a matter of course of operations inasmuch as Dixon’s Discount Center was in good standing with respondent at that time. He does not approve nor sign the checks in payment of the bills which come in. They are signed by the company controller or treasurer. He only hears when the bills are not paid. It is to respondent’s advantage that this type of transaction occurs because they receive a fee for these services. He was familiar with the letter of April 8, 1971, sent to the vendors, because it was one of the form letters they send out periodically when they know of markets that are possibly fluctuating financially to remind the packers of what respondent’s program is. They go out every three to four months because packers have a reluctance to ignore them, for the reason that the packers would rather go into a store and sell merchandise directly because the packers think they can get bigger orders that way than being channeled through the headquarters of the respondent. He was unable to establish the time when he learned that Dixon’s Discount Center was in an unhealthy financial condition and whether it could have been prior to or subsequent to May 3,1971. He did not personally send any notice through the mail but he had been told by the treasurer of the company that a “drop letter,” i. e., a letter which terminates the buying privileges of the recipient, had been sent. It is not the same as the letter of April 8, 1971, which was an “adviee letter” to packers to let them know what respondent’s program was and if they had any question about the program they should get in touch with respondent.

On appeal, appellant presents three alleged trial court errors it argues entitle it to have the judgment set aside and a new trial granted. These are that the trial court erred in its finding and judgment for the respondent in that (1) such finding is against the weight of the credible evidence; (2) the agreement reached between appellant and respondent was an agreement between principals and not an agreement to answer for the debt of another; and (3) the trial court erred in admitting into evidence respondent’s Exhibit A, and testimony concerning same because the Exhibit — a “copy” of a letter dated April 1, 1971 — was incompetent because it was not the best evidence, and, even if it were competent, there was no credible evidence that the letter was received by appellant prior to May 3, 1971, the date of the last shipment of chickens to Dixon’s Discount Center.

We conclude that the trial court here was faced with the task of resolving conflicting evidence adduced during the course of the trial of this case which it decided adversely to appellant. The issues apparent in the evidence were whether there was any agreement between the parties whereby appellant was authorized to expect payment from the respondent; whether Mr. Staicoff had the authority, real or apparent, to enter into such an agreement with the appellant for the respondent; and whether the letter of April 8, 1971, reached appellant in time for it to be advised that it was not to extend further credit to the Dixon’s Discount Center with an expectation that respondent would pay the bills. The trial judge was present at the time this evidence was adduced and was afforded the opportunity to observe the demeanor of the witnesses as they testified before him. Unless we conclude that he should have decided otherwise, we should defer to his judgment and affirm. Rule 73.01(a), (b). We should not “second guess” him. See: Murphy v. Carron, 536 S.W.2d 30 (Mo.).

The evidence is uncontradicted that on March 26, 1971, Dixon’s Discount Center was a member of respondent’s “Cooperative Group” entitled to purchase meat products under respondent’s meat merchandising program and at that time, at least, still enjoyed a good credit standing with the respondent. It is also uncontradicted that prior to March 26, 1971, respondent had conducted no business with appellant. If Mr. Staicoff did not invite Mr. Beaman to bill the delivery of that date to respondent, the only other explanation for appellant having done so would have to rest on an inference that it resulted from Mr. Stai-coff’s testimony that he explained to Mr. Beaman the services afforded respondent’s clients and that this included the privilege of billing for purchases through the respondent and payment by respondent. Otherwise, there is no evidence appellant would have known of this service.

Nevertheless, there is no direct evidence offered by appellant that Mr. Staicoff had the power to authorize appellant to look to respondent for payment nor that in doing so, if he did, he was acting within the scope of his employment. Nor is there any evidence that Mr. Staicoff had done so on other occasions so that implied authority through a course of conduct might be found. Mr. Staicoff testified that he did not possess this power; appellant adduced no evidence, other than Mr. Beaman’s testimony, that he did.

However, when appellant billed respondent for the deliveries of March 26, 1971, April 1 and 3, 1971, they were all paid for by respondent on April 6, 1971. Deliveries of April 5, 7 and 9, 1971, were likewise billed to respondent and paid for by it on April 16, 1971, some 8 days subsequent to the mailing of the letter of April 8,1971, to all vendors doing business with respondent restating respondent’s meat merchandising program. This apparent inconsistency is unexplained in the evidence. Nevertheless, all sales made to Dixon’s Discount Center commencing with those of April 13, 1971, after respondent’s could have expected that in the ordinary course of the mail appellant would have received its letter of April 8, 1971, were unpaid.

There is no evidence of a written agreement between the parties. Assuming that the trial court concluded, as it might have in view of the conflicting evidence, that there was no oral agreement entered into by way of Mr. Staicoff’s conversation with Mr. Beaman, even in the absence of an express contract the question still remains whether there was evidence of an implied contract which might have been inferred by the course of conduct of respondent in paying the bills for the deliveries prior to April 13, 1971. While we conclude that the trial court might have so found, Kosher Zion Sausage Co. of Chicago v. Roodman’s Inc., 442 S.W.2d 543, 546[2] (Mo.App.1969), we cannot hold that it was compelled to so find. We are not favored with its mental processes for the simple reason that neither party saw fit to request findings of fact. We discern that it might have concluded that these payments were made because when the bills came in, Dixon’s Discount Center was still a member of the Group, and admittedly respondent had, in the past, made payments for members even though purchases did not originate from the respondent’s headquarter’s meat department.

Assuming the existence of an implied contract between the parties whereby respondent was to pay for goods delivered to Dixon’s Discount Center, the question whether the agreement ran afoul of the Statute of Frauds, § 432.010 RSMo. 1969, is an affirmative defense and on this issue the burden of proof rests on the respondent. However, because of the failure of the parties to request findings of fact and conclusions of law we cannot glean whether this was the basis for the trial court’s judgment in this case. For that reason we do not consider this point or rule on it because we believe there are other valid reasons the trial court reached the judgment it did, and this hinges on the admissibility of the letter of April 8, 1971, directed to the vendors, including appellant.

The general rule is that the best evidence of the contents of a writing is the writing itself. Padgett v. Brezner, 359 S.W.2d 416, 422[4] (Mo.App.1962). Here, the writing in issue is a xeroxed copy of a master copy. Mr. Beaman admitted receiving a copy of this letter although there was a conflict in his testimony as to when he did receive it. At trial he admitted that he did not know when it was received, although he did recall that he received a copy of the letter of April 8, 1971, from appellant’s attorney on July 13,1971. He also testified in his deposition that he had received a copy of the letter sometime around May 3, 4 or 5, 1971. The evidence is that the copy of the letter received into evidence is in fact a duplicate of the original master letter, and as such it differs from a copy in being valid as an original. Adler v. Ewing, 347 S.W.2d 396, 402[11] (Mo.App.1961); Schroer v. Schroer, 248 S.W.2d 617, 622[8] (Mo.1952). We hold that the trial court did not err in receiving into evidence the duplicate copy of the letter of April 8, 1971.

With this document in evidence, we believe that even had the trial court found a contract, either express or implied, existed between the parties, from the evidence it could have found that this letter of April 8, 1971, put appellant on notice that respondent would be responsible for payment of orders by Dixon’s Discount Center only if the orders originated from the headquarters of respondent and that any credit extended after receipt of the letter by appellant in the ordinary course of the mail would be unauthorized. When appellant received this letter is a question of fact. However, since the letter was mailed on Thursday, April 8, 1971, according to respondent’s uncontradicted evidence, the trial court could have concluded that it was received prior to April 13, 1971, either on Saturday, April 10, 1971, or Monday, April 12, 1971. That, therefore, those sales made to Dixon’s Discount Center between April 13, 1971, and May 3, 1971, were not authorized because not made through the headquarters of respondent. A finding of these facts support the trial court’s judgment and we so hold.

Judgment affirmed.

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

      . April 8, 1971, fell on a Thursday.


author: CLEMENS, Presiding Judge.

text:
    Gregory WATSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37215.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 8, 1976.
    Huck, Hasten & LaBeaume, James W. Huck, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant appeals from the denial of his Rule 27.26 motion. He had previously pled guilty to and been sentenced for first degree robbery.

On April 9, 1974 movant pled not guilty to first degree robbery. At that time his attorney from the Public Defender’s office withdrew and an attorney from the Legal Aid Society of St. Louis was appointed. On August 7, 1974 the case was called for trial and on August 8 movant withdrew his not guilty plea and entered a guilty plea. At that time the judge fully questioned mov-ant and explained his constitutional rights, the effects of the plea and determined mov-ant’s plea was made voluntarily. The court also found movant’s admission of acts summarized by the prosecutor constituted the crime charged, accepted the guilty plea and sentenced him to fifteen years’ imprisonment.

In his Rule 27.26 motion, movant alleged his guilty plea was invalid because it was induced by deception, he was provided with ineffective assistance of counsel, and he was not “advised by the court of exactly what the state would be required to prove in order to convict.” The trial court held a hearing and denied the motion. Movant has appealed.

Movant’s first two points are abstract and hence not reviewable. Rule 84.-04(d). His third point is that his plea was invalid because the trial court did not give him an explanation of every technical element of the crime to which he was pleading guilty. There is no requirement such an explanation be given. Matthews v. State, 501 S.W.2d 44[8, 9] (Mo.1973). The guilty plea entered by movant followed the prosecutor’s recitation of facts the state would prove during a trial. Movant acknowledged the truth of these facts and added a few extra facts himself. The trial court found that the acts movant admitted to performing constituted the crime to which he had pled guilty. As the court said in Jones v. State, 471 S.W.2d 223[3-5] (Mo.1971): “We know of no requirement that the courts must explain each technical element of an offense. It is sufficient for defendant to have an understanding of the nature of the charge. In this instance defendant knew the offense with which he was charged, and when the circuit attorney related the facts as to how the killing occurred the defendant stated that they were ‘generally correct.’ ”

We find the guilty plea entered by movant was made voluntarily, with an understanding of the charge, and with knowledge of his constitutional rights.

Judgment affirmed.

DOWD and STEWART, JJ., concur.


author: TITUS, Judge.

text:
    STATE of Missouri, Respondent, v. Gregory Tim WHITES, Appellant.
    No. 10128.
    Missouri Court of Appeals, Springfield District.
    June 9, 1976.

      John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    John D. Wiggins, Asst. Public Defender, Rolla, for appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Jury-convicted of second degree burglary and stealing, defendant’s first two points on appeal relate to the prosecutor’s opening statement. Point I is that the trial court erred in denying his motion for judgment of acquittal at the close of the opening statement “because the prosecutor failed to state . that the premises were entered and property taken therefrom without the consent of its owner.” Point II is that the trial court erred at the close of the opening statement by overruling defendant’s objection and request for a mistrial with respect to a remark made by the prosecutor “concerning the theft of a Lawn-Boy lawn mower on the grounds that such remarks concern separate and independent crimes and such remarks unfairly prejudiced the minds of the jury and denied the appellant a fair and impartial trial.”

In part, the state’s opening statement went thus: “As the Court has informed you, by reading from the information, this defendant ... is charged with burglary, a breaking and entering a church . . There is also a charge, while this defendant was in the church, after he had broken in, there were certain items of property belonging to the church that were taken by the defendant, stolen. . . . That night [of the crimes] the last person from the church was the pastor ... he left the church and secured all the doors and windows. When he left the church . there was [inside] a Victor adding machine . a tape recorder [and] tapes tha,t were used on the tape recorder. . There will be evidence . . . that during the night persons entered that church building by forcing a door on the lower level in the basement . . . . [The] next morning . . . the adding machine was gone, the tape recorder and the tapes were gone . . . . Various items were missing. The next evidence that will be shown will be offered by a Mr. Clarence Whites . . . that his Lawn-Boy lawn mower was missing, and that he lived next door to where the defendant lived. . . . [T]hat he found that Lawn-Boy machine within a few hundred yards of his house in some high weeds, and there with the Lawn-Boy machine was the Victor adding machine ... a tape recorder taken from the church and there were six tapes.”

The authority of the trial court to enter a judgment of acquittal (formerly, to direct a verdict) at the close of the state’s opening statement, should be exercised only if it affirmatively and clearly appears from the statement that the charge against the defendant cannot be sustained under any view of the evidence consistent with it. State v. McAllister, 468 S.W.2d 27, 29[2] (Mo.1971); State v. Gray, 423 S.W.2d 776, 786 (Mo.1968); 23A C.J.S. Criminal Law § 1145(3) f., at p. 379. And in testing the sufficiency of the state’s opening statement, the facts stated therein and the reasonable inferences therefrom are to be accepted as true. State v. Deppe, 286 S.W.2d 776, 780 (Mo.1956); State v. Jones, 363 Mo. 998, 1005, 255 S.W.2d 801, 805[6] (1953). Since the opening statement in the instant case advised that defendant was “charged with burglary, a breaking and entering . by forcing a door,” it was reasonable to infer that the burglarious entry was not made with the consent of the owner. “Steal” means to take without right, leave or permission. Webster’s Third New International Dictionary, Unabridged, p. 2232; Webster’s New Collegiate Dictionary, p. 1138; Webster’s New World Dictionary of the American Language College Ed., p. 1426; The American Heritage Dictionary of the English Language, p. 1261. When the prosecutor stated the items taken from the church by defendant were “stolen” (past participle of “steal”), it was self-evident he was contending the property had been taken without consent of the owner. Defendant’s first point is denied.

As to defendant’s second point, it is well to note that in its opening statement the state did not contend the defendant had stolen the lawn mower. Its statement was only that Mr. Whites’ lawn mower “was missing” to explain why he was looking for it and eventually found it “in some high weeds” along with the property stolen from the church. These circumstances were closely related to the crimes charged and the mere fact that this evidence may have concerned a separate and distinct crime does not render it inadmissible. Bruce v. United States, 73 F.2d 972, 974[6] (8th Cir.1934). But irrespective of this, defendant’s objection to the statement and his motion for a mistrial were not made until the opening statement had been concluded. This was too late to preserve the point. State v. Robb, 439 S.W.2d 510, 514[6] (Mo.1969).

Defendant’s final point is that the trial court erred in denying his counsel’s request for a continuance or for a mistrial because the defendant (released on bond on the date of trial) failed to appear following the noon recess and was absent from the courtroom during the remainder of the trial. Following the noon recess the trial court announced: “Gentlemen, we’ll let the record show that 5 minutes to 12 today the Court took its noon recess to reconvene at 1:15; that at 1:15 this day, all parties, the jury, were convened, with the exception of the defendant; that a — that the Court has waited now until 1:25 p. m. and the defendant has still not appeared and voluntary [sic] absences [sic] himself from this trial, and we will now proceed with the trial in the absence of the defendant.” Thereafter counsel’s request for continuance or for a mistrial was denied.

There was no evidence contrary to the Court’s finding, supra, that defendant’s failure to return after the noon recess was voluntary. When a defendant is free on bond and does not appear at the time specified, it is presumed, until established otherwise, that his absence is voluntary for the purpose of deciding whether he has waived his right to be present at trial. And when it is found the absence is voluntary, defendant is held to have waived his right to be present at the proceedings. The trial court did not err in proceeding with the trial without defendant, albeit his absence occurred during the conclusion of the trial and when witnesses for the state testified in support of the charges against him. State v. Drope, 462 S.W.2d 677, 681-684[5, 6] (Mo.1971).

The judgment is affirmed.

All concur.


author: STONE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Johnny JOHNSON, Defendant-Appellant.
    No. 9999.
    Missouri Court of Appeals, Springfield District.
    June 10, 1976.

      James A. DeReign, DeReign & DeReign, Caruthersville, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   STONE, Judge.

Johnny Johnson, charged with two counts of first-degree robbery by means of a dangerous and deadly weapon, was convicted on both counts by a jury which assessed his punishment on each count at five years’ imprisonment. §§ 560.120 and 560.135, RSMo 1969, V.A.M.S.; Rule 24.04, V.A. M.R.; State v. Johnson, 499 S.W.2d 371, 373 (Mo.1973). Following presentation and denial of defendant’s motion for new trial and the granting of allocution, sentences and judgment were rendered pursuant to the verdicts and the court ordered that the sentences run consecutively.

During the early evening of October 30, 1974, Miss Carolyn Mitchell, the clerk on duty, and Leonard Smith, a regular customer who “came by every night and bought cigars and ... a newspaper,” were the only two persons in the Sportster Liquor Store in Caruthersville, Missouri, when two men entered and walked to the counter, where each asked the clerk for a package of chewing gum. As she was handing the gum to them, a third man entered, “pulled a pistol and said, ‘[tjhis is a stickup,’ ” and “they” ordered the clerk and the customer to lie down on the floor and then proceeded to appropriate the contents of the cash register aggregating approximately $500 and to take customer Smith’s billfold and some $50 therein. When one of the robber trio said “somebody is coming,” they ran. However both clerk Mitchell and customer Smith remained on the floor until the robbers had “time to get away” and the clerk had “crawled over and closed the big door and locked it.” Then, so Smith declared upon trial, “I run down to my place [apparently a nearby used car lot] to get my car, and I tried to follow them but they were too far gone then.” The robbery was. promptly reported to the Caruthersville police about 8:00 P.M.

Having picked up a description of the robbers on his car radio, Sheriff Thad Shelly immediately began to cruise around Ca-ruthersville. Near “The Grill” on the opposite side of town from the Sportster, Shelly observed three men, namely, Johnny Johnson (defendant herein), Robert Jones (subsequently identified as the gunman in the Sportster robbery), and Larry “Tuck” Wilson (not implicated in that robbery by the record under review). In response to Sheriff Shelly’s request, this trio accompanied him to the Sportster for the particular purpose (so Shelly testified) of enabling Miss Mitchell to view them. However, when Shelly and the accompanying suspects arrived at the Sportster, Miss Mitchell was not there and another clerk had taken over her duties. Leonard Smith was one of those then in the store but at that time Shelly did not know Smith personally and was not aware that he had been in the Sportster when the robbery occurred. Smith himself readily agreed that he was in the Sportster when “[t]hey brought some people out there” perhaps an hour after the robbery, but he iterated and reiterated that he was “mad,” “all mad,” “mad and all upset,” and “pretty dang angry,” and that “I just glanced at them and that’s all I know” — “I was upset and I didn’t try to identify any of them at that time.”

Clerk Mitchell graphically described Smith’s condition thusly, “when [the robbery] happened he [Smith] went all to pieces.” And John Yerby, a Caruthersville police officer who was at the Sportster when Sheriff Shelly brought the three suspects there after the robbery, declared that Smith was “emotionally upset” and, “being upset . . . and more or less mad,” he did no more than glance at the suspects. Defendant Johnson testified that Sheriff Shelly had “asked this guy, Leonard Smith [whom Johnson did not then know by name or otherwise], if he could identify us [the three suspects], and the dude said, no.” Shelly shortly returned the suspects to a point near “The Grill” and released them.

Several days after the robbery, clerk Mitchell was asked to view, and did view, four male subjects individually in a showup at the Caruthersville City Hall. In this showup, the officers brought in each subject more than once, sometimes behind and sometimes in front of a glass window. The four men viewed in this showup were the three suspects (of whom instant defendant, Johnny Johnson, was one) brought to the Sportster by Sheriff Shelly on the night of the robbery and another named Benny Johnson. The only one of the four men identified by Miss Mitchell was Robert Jones who (so she asseverated) was the gunman in the bandit trio. Whereupon, Jones was arrested and the other three were released. Customer Smith “was out buying cars” at an auction and hence did not attend this showup at Caruthersville City Hall. Subsequently Smith stopped at the jail to talk with an officer; and, when invited by him to view a prisoner, Smith walked by the cell in which Jones was confined and immediately exclaimed “why, there’s the boy right there.”

At the trial Miss Mitchell still did not identify instant defendant as one of the bandit trio and did no more than point to him as a man of the same race and “approximately the same age” as the members of that trio. However, when asked on the witness stand “[i]s there any doubt in your mind as to whether this defendant was there during the armed robbery,” customer Smith confidently and unhesitantly responded, “Not a bit in the world. He was there. He is the one that ordered the gum the first time . . ..” In sum, prior to the trial there was (insofar as the record discloses) no identification of defendant Johnson as a member of the bandit trio and no direct accusation that he was a coeon-spirator in the Sportster robbery, and at the trial the only identification of Johnson was by customer Smith.

Momentarily moving out of the main evi-dentiary stream, we observe briefly that, by the testimony of himself and five other witnesses (of whom two were defendant’s sisters, two were his cousins, and one was a brother-in-law), defendant Johnson presented a defense of alibi, to wit, that from about 6:30 P.M. to 9:30 P.M. on the evening of the Sportster robbery, he attended a party at the home of his cousin, one Bobbie Wilson (not a witness), “in the rear of 1504 Vest” where the divertissements of the evening were outlined by defendant as “[djrinking wine and beer, and talking and dancing and stuff like that” but were left entirely to the imagination and/or experience of the hearer or reader by the laconic open-end report offered by one of the female participants, “[w]hat people do do at parties, I guess, and funning, I guess.”

With this sampling of defendant’s evidence, we return to the State’s case, more particularly to that portion thereof which affords the basis for the sole point upon which defendant here relies for reversal, to wit, that prejudicial error was injected into the trial when Sheriff Thad Shelly was permitted to testify, in substance, that Robert Jones, after his identification as the gunman and his subsequent arrest, made a statement to Shelly, whereupon he or other officers acting at his direction arrested instant defendant, Johnny Johnson. Jones did not testify at the trial under review here. The point presented on this appeal rests upon the gravity of the inference that Johnson was implicated in the robbery by Jones’ statement to Sheriff Shelly, a result violative of and repugnant to the hearsay rule and the correlative right to cross-examine an accuser.

The relevant segment of Sheriff Shelly’s testimony follows:

“Q. Now, did Robert Jones [theretofore identified as the gunman] ever make any statement?
“MR. DeREIGN [defendant’s counsel]: Now, I object—
“A. Yes, sir, he did.
“MR. DeREIGN: Your Honor, that is hearsay and not binding in this case, what Mr. Jones said.
“THE COURT: Well, he can answer whether or not he made any statements but not what they were.
“Q. Did Robert Jones make any statements?
“A. Yes, sir, he did.
“Q. Who did he make the statement to?
“A. To myself and Art Stephenson.
“Q. After hearing this statement what, if anything, did you do?
“A. I then arrested, or called the City Police and had arrested Johnny Johnson—
“MR. DeREIGN: I object to that, Your Honor—
“A. And Benny Johnson.
“MR. DeREIGN: He is implying from the statement here that those names were obtained in that statement and he is basing his statement on hearsay as to this defendant.
“THE COURT: The objection will be overruled.
“Q. Mr. Sheriff, after taking [the] statement, what, if anything, did you do or any of the other officers do?
“A. We arrested two other subjects after—
“Q. Who did you arrest?
“A. Johnny Johnson and Benny Johnson.
“Q. This defendant, Johnny Johnson?
“A. Yes, sir.”

The above-quoted testimony was reviewed and emphasized thusly in the closing argument of the Prosecuting Attorney:

“[W]hen Carroll Mitchell [the Sportster clerk] did see Robert Jones and positively identified him, Robert Jones was placed under arrest. The other suspects were let go. You heard Sheriff Thad Shelly testify that Robert Jones made a statement; after the Sheriff took this statement he went out and arrested two more—

“MR. DeREIGN: I object, Your Honor, as this is hearsay.
“THE COURT: I can’t hear you. Are you objécting to it?
“MR. DeREIGN: I am objecting to the hearsay statement, Your Honor. I am objecting to it.
“THE COURT: Objection will be overruled.
“MR. HAZEL [Prosecuting Attorney]: You heard Thad Shelly testify that Robert Jones, the man who was positively identified by Carroll Mitchell gave a statement; that after the Sheriff took this statement he went out and arrested two other individuals, one being a Benny Johnson and one being this defendant; and this defendant, as you will recall, was in the company of Robert Jones approximately one hour after this armed robbery occurred.”

The clear inference immediately suggested and convincingly supported by the above-quoted testimony of Sheriff Shelly, and effectively emphasized in the closing argument of the Prosecuting Attorney, to wit, that gunman Jones had implicated defendant Johnson as a coparticipant in the Sportster robbery, probably was as prejudicial as whatever Jones actually had said; and the same considerations which would have excluded the hearsay statement of Jones [State v. Chernick, 280 S.W.2d 56, 60(5) (Mo.1955)] forbade that any inference against defendant should be drawn from the conduct of Sheriff Shelly actuated by Jones’ statement to him. State v. Chernick, 278 S.W.2d 741, 748 (Mo.1955). Thus, Shelly’s testimony inferentially disclosing that an alleged coparticipant had implicated defendant in the robbery “was just as much hearsay and objectionable as the implicating statement itself would have been.” State v. Edwards, 435 S.W.2d 1, 6 (Mo.1968). In this connection, see also State v. Chernick, supra, 280 S.W.2d at 59(3, 4); State v. Blocton, 394 S.W.2d 323, 325-326(4) (Mo.1965); State v. Newell, 462 S.W.2d 794, 796(1) (Mo.1971). We have no doubt but that the particular testimony of Sheriff Shelly under consideration was objectionable.

In fact, the State does not seriously question the legal principle upon which the foregoing cases were ruled but rather seeks to avoid the effect of failure to recognize and apply that principle in the case at bar because, so it is asserted, (a) the forbidden inference to be drawn from Sheriff Shelly’s testimony was “merely cumulative and therefore not prejudicial’-’ and (b) defendant’s counsel did not interpose a timely objection.

Of (a). With their contention that the forbidden inference was merely cumulative and not prejudicial, counsel for the State offer three cases [State v. Ford, 495 S.W.2d 408, 414(6) (Mo. banc 1973); State v. Williams, 448 S.W.2d 865, 869(8) (Mo.1970); State v. Kennedy, 513 S.W.2d 697, 699-700(4) (Mo.App.1974)], no one of which supports the State’s position on the factual situation presented here. In neither Ford nor Williams did the hearsay testimony, of which complaint was made, bear upon identification of the defendant as the perpetrator of, or a coparticipant in, the crime; and, in each of those cases there was other substantial evidence of the same tenor and effect as the objectionable hearsay. In Kennedy, the testimony of witnesses who described defendant’s identification by one Borns, the victim of an assault and robbery, was hearsay and should have been excluded. But, after preliminarily noting that defendant’s appellate complaint was “not reviewable since it was not raised at the trial nor in the motion for a new trial,” the court pointed out in Kennedy that there was “strong primary evidence of defendant’s identification by Borns and one gas station attendant both before trial and in the courtroom” and therefore it could not be said, as it was in the leading case of State v. Degraffenreid, 477 S.W.2d 57, 64 (Mo. banc 1972), that the hearsay identification testimony might have “tip[ped] the scales against defendant.” 513 S.W.2d at 700. Accordingly, the court concluded that the testimony challenged in Kennedy “was cumulative and harmless.” 513 S.W.2d at 700.

However, in significant respects the state of facts reflected by the record before us is akin to that in Degraffenreid, supra. In each case defendant was identified by only one eyewitness, who “was strong and positive in his identification of defendant” [477 S.W.2d at 64], although in the instant case customer Smith had not identified defendant about an hour after the Sportster robbery. In each case “[t]he defense was basically [an] alibi,” in Degraffenreid confirmed by only one other witness [477 S.W.2d at 64] but in the instant case by five other witnesses. And in each case the hearsay testimony was that of a law enforcement officer corroborating the identification of defendant by a sole testifying eyewitness. Tracking Degraffenreid, we view the case before us as one in which the hearsay testimony of Sheriff Shelly supporting the positive, albeit belated, identification of defendant by customer Smith could have “confirm[ed] the believability of [Smith’s] testimony and thereby tip[ped] the scales against defendant.” 477 S.W.2d at 64. And borrowing the language of Finch, C. J., in his concurring opinion (in which four other members of the court joined), “we cannot conclude and declare that as a matter of law the admission of [Sheriff Shelly’s] testimony was harmless error” or that such testimony was “cumulative” in the true sense of that term as there clarified. 477 S.W.2d at 67.

Of (b). As presented by the State in its “Point Relied On,” this contention is that “[t]he court did not err in admitting the testimony of Sheriff Shelly for the reason that . (b) appellant failed to make a timely objection.” (All emphasis herein is ours.) However, this broad generalized complaint is narrowly restricted by the introductory assertion in their argument of the (b) prong that “by failing to make a timely objection to the question put to Sheriff Shelly, appellant failed to preserve anything for review,” shortly followed in the argument by a single question, answer and objection isolated and lifted out of Shelly’s testimony and quoted thusly in the State’s brief:

“Q. After hearing the statement (of the coparticipant), what if anything, did you do?
“A. I then arrested, or called the city police and had arrested Johnny Johnson.
“Mr. DeReign: I object to that, Your Honor.”

Our initial observation is that, by comparing this truncated excerpt in the State’s brief with the same question, answer and objection beginning with the fourth question in the hereinbefore-quoted relevant segment of Sheriff Shelly’s testimony faithfully copied from the transcript, we discover that the truncated excerpt is inaccurate, incomplete and misleading, in indicating that Sheriff Shelly’s answer had been completed before Mr. DeReign objected and again in indicating that Mr. DeReign then had interposed nothing more than a belated, bland general objection, whereas in fact the relevant segment shows that Mr. DeR-eign immediately interrupted witness Shelly and undertook to interpose an objection when defendant Johnny Johnson was mentioned, that however witness Shelly quickly interrupted Mr. DeReign’s objection and completed his interrupted answer, and that Mr. DeReign then was permitted to finish his objection which was summarily overruled. Of course, we disregard the inaccurate truncated excerpt and look only to the transcript in ruling the State’s contention that “appellant failed to make a timely objection.”

In considering this point, we have had in mind the familiar general principles pertaining to the timeliness vel non of eviden-tiary objections during trial as summarized in State v. Simmons, 500 S.W.2d 325, 328-329(2-6) (Mo.App.1973), the sole case cited by the State on prong (b). However, a review of many Missouri cases convincingly demonstrates that, in the construction and application of these principles, our courts have followed a practical, reasonable and commonsense course with a view to the doing of substantial justice on the record presented in the specific case under consideration. E. g., see State v. Williams, 416 S.W.2d 71 (Mo.1967), and State v. Penn, 413 S.W.2d 281 (Mo.1967).

A situation analogous to that under consideration here was presented in State v. Blocton, supra, 394 S.W.2d at 325-326(4, 5). There, as here, a coparticipant “fingered” the defendant on trial. There, as here, when defendant’s counsel undertook to object to the verboten testimony of the officer, counsel got no further than “I object” before he was interrupted (there by the State’s attorney, here by the eager witness), after which counsel was able to interpose the completed objection specifically predicated there, as here, on the ground of hearsay. And there, as here: “The sufficiency of the objection is not questioned for lack of a motion to strike. . . . The highly prejudicial nature of the testimony, solicited by the prosecution and going to the heart of appellant’s defense, could not have been cured by a motion to strike. Therefore, the objection made and the relief requested sufficiently presented the matter for review. State v. Burchett, Mo.Sup., 302 S.W.2d 9, 13-15[l-3].” Blocton, supra, note 1 on p. 326. In the case at bar we are satisfied that, on the transcript here presented, the interrupted objection was interposed at such time and in such terms as to present defendant’s complaint to the trial court and preserve such complaint and the ruling thereon for appellate review. Bloc-ton, supra.

For the error in admitting the above-noted testimony of Sheriff Shelly over objection, the judgment of conviction is reversed and the cause remanded for a new trial.

BILLINGS, C. J., and TITUS, J., concur.

      . As Sheriff Shelly remembered the scene, “[t]here were three or four policemen and two or three deputies and two or three other subjects probably.”

      . Although the term “showup” is sometimes used interchangeably with the word “lineup” to mean an array of persons, including a suspect or suspects, presented to a witness or group of witnesses, it appears that “showup” more commonly and more properly refers to a situation where, as in the instant case, one suspect is shown by himself to a witness or a group of witnesses. See Layton v. State, 500 S.W.2d 267, 268-269(1) (Mo.App.1973), and the comment and citations there found in note 1.

      . The absence of an opportunity to cross-examine Jones, the alleged coactor, also denied to defendant Johnson his constitutional right to confront the witnesses against him face to face. Mo.Const. Art. I, § 18(a); U.S.Const. Amend. VI; Pointer v. Texas, 380 U.S. 400, 403-406, 85 S.Ct. 1065, 1067-1069(4-8), 13 L.Ed.2d 923, 926-928(2, 3) (1965).

      . In this connection, see also State v. Davis, 530 S.W.2d 709 (Mo.App.1975), in which the St. Louis District per Houser, Sp. J., reversed and remanded a judgment of conviction in a store robbery case on account of the erroneous admission in evidence of a sawed-off shotgun and, in rejecting the State’s argument on motion for rehearing that such error should be disregarded as harmless, the court pointed out that it “was not an especially strong case” and “had inherent weaknesses,” among which was the inability of the store manager, who was “present at the robbery,” to identify defendant as one of the robber trio. 530 S.W.2d at 711 and 714. In the instant case, clerk Mitchell could not identify defendant as a participant in the Sportster robbery.