author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Norman OWENS, Defendant-Appellant.
    No. 39545.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 3, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.
    Application to Transfer Denied Jan. 8, 1979.
    London, Greenberg & Fleming, Lawrence J. Fleming, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Clayton, for plaintiff-respondent.
   DOWD, Presiding Judge.

This case concerns the admissibility of evidence obtained as a result of a wiretap which was issued pursuant to 18 U.S.C. § 2510, et seq. ,

The petition which sought the authorization to wiretap the telephone of the appellant, Norman Owens, was predicated on a detailed network of facts. In the course of an investigation into the interstate movement and sale of stolen goods, the FBI had received judicial permission to tap the telephones of two suspected felons. These two taps yielded the interception of conversations which implicated the appellant. As the content of these conversations concerned trafficking in stolen goods, the FBI sought and received permission from the District Court of Eastern Missouri to tap appellant’s telephone.

While monitoring the appellant’s telephone conversations, the FBI overheard the development of a scheme to burglarize a home in Ladue. The FBI relayed this information to the Ladue Police, who established a stake out at the targeted residence.

Two officers of the Ladue Police force observed the appellant and another man approach and break into the house. The appellant and his associate were apprehended and arrested following their exit from the residence. The appellant was subsequently charged with second degree burglary and possession of burglary tools.

Prior to trial, appellant moved to dismiss the indictment and to suppress the evidence, contending that the tap which precipitated the dragnet and led to his arrest was obtained in violation of 18 U.S.C. §§ 2515-2519. The trial court overruled both motions.

The appellant was convicted of both counts by a court sitting without a jury. He was sentenced to six years in prison on each count, the sentences to be served concurrently.

Owens’ appeal is predicated on the contention that the trial court erred in overruling his motions to dismiss and to suppress evidence. In support of his position, the appellant relies on the following points: 1) The application for the interception of wire communications was deficient because neither probable cause nor the likelihood of success through other investigative procedures was demonstrated. The appellant contends that this alleged deficiency renders the application insufficient and requires the suppression of the information furnished by the wiretap. 2) The State allegedly did not comply with the requirements of 18 U.S.C. § 2517(5), namely, obtaining judicial approval before utilizing the fruits of the wiretap.

Our consideration of the issue of the sufficiency of the wiretap application will begin with an inquiry into the existence of probable cause.

The application concerned herein contained an outline of the circumstances which precipitated the FBI to apply for a wiretap on the appellant’s telephone.

The scenario began when confidential informants, who had proven themselves to be reliable in the past, were approached, and asked to sell “warm” goods. The FBI, suspecting that stolen goods were being sold interstate, obtained authorization to tap the telephones of the parties who contacted the informants. The conversations between the two parties under wire surveillance contained references to the appellant. Overheard were arrangements for the appellant to transport the “stuff”, amid references to the need to move the “stuff” quickly for fear of FBI interference.

The contents of the conversations were corroborated by physical surveillance of the appellant. After one of the parties whose telephone was tapped called the appellant and discussed meeting and transporting “stuff”, the appellant was observed leaving his home and returning later with two boxes.

The application for authorization for a wiretap on the appellant’s telephone contained synopses of these conversations, and the results of the physical surveillance. In addition, the application • incorporated by reference the affidavits of special agents which supported the petition for the two original wiretaps.

Appellant contends that the assertions contained in the supporting affidavits were speculative, and not formidable enough to constitute probable cause to believe that the intercepted communications would reveal trafficking in stolen property of a value of $5,000 or more. It is not necessary however, that the affidavit contain information which proves the appellant’s involvement beyond a reasonable doubt. Haina v. State, 30 Md.App. 295, 352 A.2d 874, 880 (1976) cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977).

The governing statute provides that an application for authorization of a wiretap must contain:

“A full and complete statement of the facts and circumstances relied upon by the appellant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and the location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted.” (18 U.S.C. § 2518(l)(b)).

This statute has been interpreted as employing the same standard of probable cause as is required for the issuance of a search warrant. United States v. Falcone, 505 F.2d 478, 481 (3rd Cir. 1974) cert, denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975). Accordingly, the application must be viewed in a commonsense way to determine if enough facts exist to establish probable cause to grant the wiretap request. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965).

Considering the facts known to the FBI at the time of the preparation of the application, there existed reasonable grounds to believe the appellant was involved in criminal activity of the type specified in the affidavits. Accordingly, we rule the first point against the appellant.

The second point raised by the appellant in connection with the sufficiency of the wiretap application concerns the alleged failure of the FBI to demonstrate that other investigative techniques had been attempted and failed, or were unlikely to succeed if attempted.

The statute requires that the applicant make “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(l)(c).

The application for the wiretap on appellant’s telephone stated that the location of his residence rendered surveillance without detection almost impossible. There were four apartments which shared the same entrance and were occupied by young adults. Prior attempts at physical surveillance had precipitated inquisitive remarks concerning the presence of strangers.

The appellant attacks this assertion as being conclusory, and insufficient for failing to outline the feasibility of other investigative procedures.

Before addressing this point it must be noted that this court is aware that these sections (18 U.S.C. § 2510 et seq.) reflect the congressional intent to limit wiretaps to those which are necessary as well as reasonable. In enacting Title III of the Omnibus Crime Control Act however, Congress did not demand that all avenues of investigative tactics be exhausted before a wiretap order could be issued. United States v. Smith, 519 F.2d 516, 518 (9th Cir. 1975). The government’s showing is to be appraised in a practical and commonsense manner. United States v. Vento, 533 F.2d 838, 849 (3rd Cir. 1976). An application of these principles to the present case reveals that the challenged petition alleged that physical surveillance was impracticable. The application incorporated by reference affidavits which contained allegations that informants had refused to testify against the parties suspected of selling stolen goods. Further infiltration of the ring was not feasible because buyers of the goods were not dealt with directly, but only through the informants.

It is apparent from the application taken as a whole, that the decision to seek authorization to tap the appellant’s telephone was not routinely invoked as “the initial step in the investigation”. United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1827, 40 L.Ed.2d 341, 353 (1974).

Accordingly, we find that the application complied with the requirements of 18 U.S.C. § 2518(l)(c), and rule the second point against the appellant.

The final issue raised by the appellant consists of the allegation that the State did not comply with the requirements of 18 U.S.C. § 2517(5) insofar as judicial approval was not obtained prior to the use of the fruits of the wiretap.

Section 18 U.S.C. § 2517(5) provides, in pertinent part:

“. . . When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications . intercepts wire or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or use as provided in subsections (1) and (2) of this section!! Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. . . . ” []

At the outset it must be noted that appellant does not specify whether the burglary tip is to be construed as direct or indirect evidence derived from the wiretap. Accordingly, our ruling on this point will be prefaced by treating the tip within the framework of 18 U.S.C. § 2517(3) (as such given in “testimony under oath or affirmation in any proceeding”) and 18 U.S.C. § 2517(5) (as other crime evidence derived from the wiretap).

Appellant cites United States v. Brodson, 393 F.Supp. 621 (E.D.Wis.1975), aff’d 528 F.2d 214 (7th Cir. 1975) in support of his contention that the use of the burglary tip may be classified under the heading of testimonial use within 18 U.S.C. § 2517(3). In Brodson, the Seventh Circuit affirmed the dismissal of an indictment for noncompliance with the provisions of 18 U.S.C. § 2517(5). The reasoning in the case relied on is distinguishable because, unlike the case at bar, the intercepted conversations were disclosed to the grand jury.

The appellant has also implied that the burglary tip may be categorized as evidence derived from the wiretap under 18 U.S.C. § 2517(5). We do not subscribe to this interpretation. In a similar case the Circuit Court for the District of Columbia held:

“. . . Had actual other-crimes evidence from that tape been introduced at trial, the statute would have required previous application for judicial permission. However, since no recordings from the . . . investigation were thus submitted in evidence, it suffices that the trial court review the chain of investigation for Fourth Amendment or statutory violations, at the time that allegedly tainted, indirect fruits of the tap were offered.” (Emphasis added) United States v. Johnson, 176 U.S.App.D.C. 179, 185, 539 F.2d 181, 187 (1976) cert. denied 429 U.S. 1061, 97 S.Ct. 784, 50 L.Ed.2d 776 (1977).

In the present case, the contents of the wiretap were neither played nor testified to before the grand jury or at trial. In view of the fact that the intercepted communications were not received in evidence, the trial court held a hearing on appellant’s motions to suppress and to quash the indictment. The information adduced at the hearing and at trial did not reveal any Fourth Amendment or statutory violations in the chain of investigation. For the reasons set forth previously in points I and II, we affirmed the trial court’s decision in this respect.

It is our opinion that the challenged disclosure by the FBI to the Ladue Police may be considered as being within the realm of the proper performance of official duties under 18 U.S.C. § 2517(1) and (2). “One properly overhearing unexpected villainy heed not ignore such evidence.” U. S. v. Johnson, supra at p. 188. It has been recognized that the judicial approval provision of 18 U.S.C. § 2517(5) does not apply to the uses described in 18 U.S.C. § 2517(1) and (2). United States v. Vento, 533 F.2d 838, 854 (3rd Cir. 1976); U. S. v. Johnson, supra at p. 187.

As we are persuaded that the underlying wiretap was legal, and that the requisites of 18 U.S.C. § 2517 have been adhered to, we rule the final point against the appellant.

Judgment affirmed.

SNYDER, J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . Subsection (1) provides that “any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.” 18 U.S.C. § 2517(1).
      Subsection (2) provides that “any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.” 18 U.S.C. § 2517(2).

      . Subsection (3) provides “any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the U.S. or of any State or political subdivision thereof.” 18 U.S.C. § 2517(3).


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert E. BENSON, Appellant.
    No. 28989.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 27, 1978.
    Application to Transfer Denied Jan. 8,1979.

      Lee M. Nation, Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Robert E. Benson was convicted of assault with intent to kill with malice (§ 559.180, RSMo 1969) and sentenced to life imprisonment by the jury. On this appeal Benson raises the following points: admission of evidence of a prior robbery; admission of a shotgun in evidence; the prosecutor’s argument; and endorsement of a witness by the State four days prior to trial. Affirmed.

Roy Odom, owner of a barbecue restaurant, permitted a dice game to be conducted in the basement of his shop. A number of people were so engaged in the basement in April, 1975, when Felix Hardin and Robert Benson came to the game and shortly thereafter produced pistols, announced a holdup and took between $4,000 and $5,000 from the participants. After Hardin and Benson left, Odom told the victims he knew at least one of the robbers and rather than call the police, he would talk with the robber and attempt to have part of the money returned.

Odom let it be known he wanted to talk with Hardin and Benson. About three weeks after the robbery, as Odom and Grover Vaughn walked out the front door of the barbecue about 2:30 a. m., both men were felled by shotgun blasts which killed Vaughn and injured Odom. Shortly thereafter at the hospital, Odom identified Hardin and Benson as the assailants, stating he had seen both men and was able to identify them as the two who held up the dice game.

Benson does not challenge the sufficiency of the evidence, but rather asserts the commission of trial errors sufficient to overturn his conviction. Benson first contends that admitting evidence of the dice game robbery violated the well established rule that evidence of separate and distinct crimes is not admissible. However, the rule Benson relies on has several exceptions, as set out in State v. Kirksey, 547 S.W.2d 149 (Mo.App.1977), in which the court noted one of the exceptions allows proof of other crimes to establish motive for the offense on trial. The court further noted that when the defendant denies guilt, “. the question of motive gains further importance because absence of motive then tends to sustain defendant's claim of innocence.” This case fits the exception noted in Kirk-sey. Benson denied his guilt and therefore, proof of the dice game robbery was properly admitted. Odom let it be known he knew Hardin and Benson were the robbers, thus establishing motive for the assault on Odom.

Benson next contends the court erred in admitting a shotgun into evidence. It was shown the assault was committed with a shotgun, and there was evidence Hardin had obtained a shotgun together with number 6 shot to be used in it and this shotgun was in his possession the day before the assault. The gun introduced in evidence contained number 6 shotgun pellets and was recovered at the home of Hardin’s common-law wife after the crime.

The gun was properly introduced in evidence under the rule quoted in State v. Cuckovich, 485 S.W.2d 16, 23[12] (Mo. banc 1972), in which the court, quoting from 22A C.J.S. Criminal Law § 712, stated that a weapon found in the possession of an accused, or of his criminal associates, even if not identified as the weapon actually used in the commission of the crime, is admissible if similar in form and character to the one used. Here the evidence showed the assault was committed with a shotgun which fired number 6 pellets. Moreover, Hardin was shown to have obtained such a gun the day before the crime and one was found with his common-law wife after the crime. State v. McKinney, 554 S.W.2d 488, 490[4-8] (Mo.App. 1977), states that the identification of a weapon need not be wholly unqualified to make it admissible, but when admitted under the rule stated in Cuckovich, the weight to be given to such evidence is for the jury to determine.

Benson next contends a portion of the prosecutor’s final argument was prejudicial. The prosecutor was countering an argument made by Benson’s counsel to the effect that the State had not produced Sergeant Rice of the Kansas City Police Department as a witness although he was shown to have been present at the hospital, along with two other officers, when Odom identified his assailants as Hardin and Benson. Benson’s counsel had argued further that Sergeant Rice was more available to the State than to the defense, and therefore, the jury could draw an unfavorable inference from his failure to testify.

In response, the prosecutor stated Sergeant Rice was available by subpoena to defense counsel, whereupon counsel objected, alleging the statement was designed to cast the burden of proof on Benson.

An excellent discussion of the current concepts regarding availability of a witness is contained in State v. Ganaway, 556 S.W.2d 67, 69—70[3] (Mo.App.1977). There the court explained that the original reason for the rule concerning availability of a witness has largely disappeared because discovery rules now. in effect enable defendants in criminal cases to obtain full information as to the identity, prior declarations, and expected testimony of witnesses. This court fully agrees with Ganaway that the availability doctrine has been all but eliminated. As noted in Ganaway at page 70: “The trial judge therefore must be given great discretion in determining whether the facts and the preparation efforts of the litigants warrant an invocation of the inference. The inference is not, after all, a substitute for trial preparation or the truth.”

Here there was no justification for unfavorable inferences concerning the absence of Sergeant Rice’s testimony since Benson’s counsel could have determined Rice’s knowledge and expected testimony through discovery. Counsel did not contend the prosecutor failed to provide discovery of Rice’s expected testimony. Short of a showing that counsel was refused such discovery, there was no occasion to invoke any doctrine of unavailability of Rice to the defendant. Hence, no inferences could arise that Rice was more available to the State and that the failure to call Rice indicated his testimony would thus be unfavorable to the State. A second, equally viable reason the availability doctrine is inapplicable is that Rice’s testimony would at most have been cumulative, thus precluding invocation of the doctrine. Ganaway at page 69.

Benson next contends the prosecutor was erroneously allowed to argue the shotgun introduced in evidence was the weapon used in the assault. Benson alleges this as a misstatement of the evidence because the shotgun was not identified as the actual weapon used. It is beyond doubt the prosecutor can argue the evidence and any reasonable inferences to be drawn therefrom. State v. Swenson, 551 S.W.2d 917, 919[5] (Mo.App.1977). Furthermore, it must be shown the trial court abused its discretion by allowing improper argument. Swenson at 919[1]. Here the argument was based on the evidence and a reasonable inference which the prosecutor drew therefrom. No abuse of discretion is shown.

Benson finally contends the court erred in allowing the State to endorse the name of a crime laboratory witness four days before trial. Counsel concedes that several months prior to the date of endorsement he had been informed of the test the witness had performed and the results. Again, the court had broad discretion to allow the late endorsement of a witness; to predicate error on the exercise of this discretion, the defendant must show he was prejudiced thereby. State v. Jordan, 532 S.W.2d 776, 780[1] (Mo.App.1976). Here Benson shows no prejudice.

The judgment is affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    KANSAS CITY, a Missouri Municipality, Plaintiff-Appellant, v. H. E. PERET et al., Defendants-Respondents.
    No. KCD 29146.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 27, 1978.
    Application to Transfer Denied Jan. 9,1979.

      Aaron A. Wilson, City Atty., Ned B. Bahr, Walter J. O’Toole, Jr., Asst. City At-tys., Kansas City, for plaintiff-appellant.
    Don Witt, Witt & Shafer, Platte City, for defendants-respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

This appeal arises out of a condemnation proceeding initiated by Kansas City (con-demnor) to acquire certain temporary and permanent sewer easements over property of H. E. Peret (condemnee). Commissioners assessed condemnee’s damages at $31,-000.00 and exceptions thereto were filed by condemnor. A jury awarded condemnee $36,000.00 as damages and condemnor appealed.

Failure on the part of the trial court to declare a mistrial after counsel for con-demnee informed the jury during his opening statement, over condemnor’s objection, that the commissioners had awarded con-demnee $31,000.00 as damages is one of several points relied on by condemnor on appeal. This point is well taken by con-demnor and the judgment below must be reversed and the cause remanded for a new trial.

There is no mistake that condemnee’s counsel, deliberately rather than inadvertently, advised the-jury during his opening statement that the commissioners had awarded condemnee $31,000.00 as damages. Condemnor’s counsel immediately objected and asked the trial court to declare a mistrial. The objection was sustained and the jury was instructed to disregard the remark made by condemnee’s counsel, but con-demnor’s request for a mistrial was denied. Against this background, witnesses for con-demnee estimated his damages between $30,000.00 to $40,000.00, witnesses for con-demnor estimated condemnee’s damages to be $800.00, and the jury awarded con-demnee $36,000.00 as damages.

It has long been established in this state that “[t]he jury [in a condemnation action] have no more right to know what the report or assessment of damages of the commissioners was than any jury in any case has to know what the verdict of a previous jury was in the same case.” Missouri Pac. Ry. Co. v. Roberts, 187 Mo. 309, 86 S.W. 91, 94 (1905). This rule has since been reaffirmed on numerous occasions. City of St. Louis v. Schopp, 325 Mo. 480, 30 S.W.2d 733, 735 (1930); State ex rel. State Highway Commission v. Meadows, 444 S.W.2d 225, 227 (Mo.App.1969); State ex rel. State Highway Commission v. White, 254 S.W.2d 668, 670 (Mo.App.1953); Arkansas-Missouri Power Company v. Hamlin, 288 S.W.2d 14, 18 (Mo.App.1956); and State ex rel. State Highway Commission v. Artz, 45 S.W.2d 81, 82 (Mo.App.1932).

Condemnee cites State ex rel. State Highway Commission v. Sharp, 62 S.W.2d 928 (Mo.App.1933), for the proposition that declaration of a mistrial was purely discretionary with the trial court and its instruction to the jury to disregard all reference made by counsel for condemnee to the amount of the commissioners' award was an antidote for any associated error. This raises a question whose answer has eluded mankind for centuries. How do you unring a bell? Inherent prejudice is the root of the rule prohibiting mention of the amount of damages awarded by commissioners. Counsel’s injection of the amount awarded spelled prejudice and the size of the jury verdict stands in silent witness to its adverse effect. Its prejudicial effect in this case was irretrievable and anything short of a mistrial condoned the error and permitted the erring party to reap its benefits.

Treatment of condemnor’s remaining points on appeal, regarding which all parties have had the benefit of the respective briefs, is deemed unnecessary for disposition of this appeal.

Judgment reversed and cause remanded for a new trial.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Robert Louis DENSON, Jr., Appellant.
    No. KCD 29377.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 27, 1978.
    Application to Transfer Denied Jan. 8,1979.

      James F. Speck, Bellmann & Speck, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Judgment of conviction and sentence to life imprisonment was entered on jury verdict finding Robert Louis Denson, Jr., guilty of murder in the first degree. Den-son appeals.

On March 10, 1976, in an attempted robbery of the North Hills Bank in Clay County, Missouri, a bank guard, Warren Jack-man, was shot and killed. The appellant was arrested and charged, along with others, under the felony murder statute. § 559.010, RSMo 1969. Inasmuch as the primary factual issue presented on this appeal is whether or not Denson’s testimony warranted the submission of his defense of withdrawal from participation in the robbery, the factual recital is based primarily upon Denson’s version of the incident.

According to Denson, in February, 1976, he was taken by Cardis Berry, an acquaintance whom Denson had known for the eight months following Berry’s release from the penitentiary, to James Falkner’s house “to talk about some easy money that I could get.” Falkner asked Denson if he wanted “to go up on a bank robbery.” “* * *

[H]e told me there was a bank over in North Kansas City coming right off the freeway, and that * * * there was no guard there and that it be a sure thing to get because there wasn’t a guard in the place * * * He told me all I would have to do was collect money.”

There were further meetings among Den-son and other participants and Denson either tacitly or expressly agreed to participate. He was provided with a gun by Berry-

On March 10, Denson, Falkner, Steve Williams and Jerome Handley met at Falk-ner’s and Falkner provided Williams with a 9 millimeter Luger and Handley with a sawed-off rifle. Denson did not bring his gun and he declined an offer of one because “ * * * I wasn’t going in there to shoot the place up or nothing.” Falkner provided coveralls, ski masks and Playtex gloves for Williams, Handley and Denson. A green bag for the money was given to Denson. At around 10:00 A.M., vehicles carrying Denson, Handley, Williams, Falkner and others left Kansas City to carry out the robbery. Handley and Denson were in a stolen Buick which was to be used as the “clean” or getaway car. They parked it at Waterworks Park and got into a stolen Ford driven by Williams and the three proceeded to the bank.

Williams drove to the front of the bank and stopped the Ford. “They” said “Let’s go.” Denson got out of the car and ran toward the entrance to the bank. He went through two sets of double doors, entering the bank lobby about three or four feet. As he did so, he saw an officer sitting in a chair and Denson turned around and went back outside through the two sets of doors. As he got outside, either Handley or Williams was just entering the second door, into the lobby, with the other just behind him. Denson saw that Handley still had the sawed-off rifle.

Denson ran toward some apartments in the vicinity of the bank. About halfway up the hill to the apartments, Denson heard gunfire lasting about three minutes. He removed his coveralls and gloves and noticed that a finger had been cut. He was uncertain as to how the injury occurred, but thought that he had broken the glass in the door as he left the bank.

Denson called a cab from a store and the cab took him to Mary Morris’s apartment, where the group had gathered before the robbery to don their coveralls, and then to Falkner’s apartment. Denson did not have money to pay for the cab and ran out on the driver. According to Denson, he took the cab back “ * * * to see if any of them was hurt.” “I went by myself on foot because I thought that Steven, Steve and Jerome must have knew that something was wrong for my reason of running back out, so I just went on and left them.”

Falkner was picked up by the police at around 4:00 P.M. on March 10. By midnight, after a conference with the prosecutor who promised to recommend a 15-year sentence for Falkner, Falkner made a statement about the crime. Denson was arrested at around 1:00 A.M., March 11.

The nature of the issue here does not require recitation of the state’s version of the affair, which included the testimony of Falkner. It is sufficient to observe that the state’s witnesses at the scene of the robbery placed the three robbers in the bank at the time that the shooting started, and there was testimony that all three were armed.

The court gave three instructions on withdrawal by defendant, one applicable to each of the three verdict-directing instructions on felony murder, second degree murder and manslaughter. Appellant here attacks the instructions given as confusing, misleading, unclear and for their failure to define the burden of proof on the issue of withdrawal. There is no MAI-CR on withdrawal. See MAI-CR 2.10, Notes on Use, 16 b.

The state does not take issue with appellant’s attack upon the instructions given, but contends that any deficiency therein is harmless error because, under the evidence, appellant was not entitled to go to the jury on a defense of withdrawal.

The defense of withdrawal has received little attention from the courts of this state. The new criminal code, effective January 1, 1979, recognizes and defines withdrawal as an affirmative defense to a criminal charge based upon concerted criminal action. § 562.041 2(3) and 3, RSMo 1978 Supp. Under this enactment, the defense is available to one who “ * * * abandons his purpose and gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.” That statute, not yet having become effective, does not provide the measure of appellant’s conduct in this case.

The statute, insofar as it requires action on the part of the defendant to prevent commission of the offense, does reflect the holding of a prior case in this state. In State v. Webb, 216 Mo. 378, 115 S.W. 998 (1909), the defendant and a woman entered into a suicide pact and the defendant procured a pistol for the purpose of carrying out their design. The defendant changed his mind and had a long talk with the woman to dissuade her from the idea and the defendant thought that his effort had been successful. However, in the night, the woman shot the defendant, who survived, and then killed herself. Defendant was charged with manslaughter. § 559.080, RSMo 1969. At his trial the jury was instructed in effect that the defense of withdrawal should permit a finding of not guilty unless the deceased led defendant to believe that she had been dissuaded from carrying out the suicide pact and thereafter shot defendant and killed herself of her own volition. In holding that such requirement was erroneous, the court stated (115 S.W. 1001): .

“ * * * In effect we take it that this prosecution is based upon the theory of a conspiracy between the defendant and the deceased that each should commit suicide, and the instruction directs the jury in effect that although the defendant withdrew from the conspiracy before the suicide was committed by deceased, and although he endeavored to dissuade her from her purpose to kill herself, these facts did not excuse the defendant from his previous agreement and advice to commit suicide, unless the deceased led the defendant to believe that she also had abandoned such idea, and then killed herself of her own volition. It is a general principle of the criminal law that, although several parties conspire to do a criminal act, there is a place of repentance, a locus penitentiae, so that, before the act is done, either one or all of the parties may abandon their design and thus avoid committing the criminal act. United States v. Britton, 108 U.S. [199], loe. cit. 205, 2 S.Ct. 581, 27 L.Ed. 698. This principle is familiar in the law of homicide. Thus it is said: ‘Though a man should be in the wrong in the first instance, yet a “space for repentance is always open, and where a combatant in good faith withdraws as far as he can, really intending to abandon the conflict,” and his adversary still pursues him, then, if taking life becomes necessary to save his own, he will be justified.’ 1 Bishop’s New Criminal Law, § 871; Horrigan and Thompson on Self-Defense, 227; 4 Blackston’s Com. 184; State v. Partlow, 90 Mo. [608], loe. cit. 627, 4 S.W. 14, 59 Am.Rep. 31. The instruction seems to concede this principle of permitting the defendant to abandon his previous intention of committing suicide, and agreeing that the deceased should also do so at the same time; but this right is made dependent upon the fact that the deceased also abandoned her purpose to commit suicide, and led the defendant to believe in good faith that she had done so. It seems to us that this qualification of the right is not reasonable or based upon a sound principle. If there is anything in the doctrine of a space for repentance, it seems to us, when the defendant abandoned his purpose of committing suicide and endeavored to persuade the deceased to also abandon it, that he had done all that the law could exact of him. If, in spite of his announced intention to refuse to go further in the criminal purpose, and his persuasion and advice to also abandon such a purpose, the deceased proceeded to kill herself, then it was her own act, and one for which the defendant cannot, and ought not in any way, in our opinion, be held responsible, and under the circumstances he could not properly be convicted of deliberately assisting her in the commission of self-murder.”

In State v. Bailey, 383 S.W .2d 731, 734 (Mo.1964), the court quoted and applied the rule as stated in 22 C.J.S. Criminal Law § 89, pp. 267-268 (1961):

“ * * * Where the perpetration of a felony has been entered on, one who had aided and encouraged its commission may nevertheless, before its completion, withdrawn all his aid and encouragement and escape criminal liability for the completed felony; but his withdrawal must be evidenced by acts or words showing to his confederates that he disapproves or opposes the contemplated crime. Moreover, it is essential that he withdraw in due time, that the one seeking to avoid liability do everything practicable to detach himself from the criminal enterprise and to prevent the consummation of the crime, * * * that, if committed, it be imputable to some independent cause.”

That case was concerned primarily with the timeliness of the claimed withdrawal, it having been attempted only after a co-actor had broken into a building and the crime of burglary had been committed.

Timeliness was also involved in State v. Forsha, 190 Mo. 296, 88 S.W. 746 (1905), when the defendant, after having urged his co-actors to kill the victim, claimed to have departed before the fatal shot was fired. In holding that the defendant was not entitled to an instruction on withdrawal, the court said (88 S.W. 757):

“ * * * We are unwilling to sanction as the law of this state that a defendant can first, by words and actions, put in operation a difficulty, or aid and abet in the commencement of it, and, after having by his course of conduct brought the principal actors into a deadly contest, that he can then flee from the scene of the struggle and thereby relieve himself absolutely from the results of such fatal difficulty. Such is not the law of this state, and the court very properly refused the instructions requested upon that subject.”

Cases from other jurisdictions dealing with the timeliness of a claimed withdrawal are helpful. Thus in People v. Nichols, 230 N.Y. 221, 129 N.E. 883 (1921), defendant and Walker had entered a store to commit a robbery and both had drawn guns on the proprietor. When the proprietor resisted, defendant claimed to have fired a warning shot into the ceiling, said, “Come on Walker, get out of here,” and left, leaving Walker in the store to fire the fatal shot. In rejecting the claim that an instruction on withdrawal should have been given, the court stated (129 N.E. 885-886):

“Whatever may be the other requirements of an effective abandonment of a criminal enterprise, it is certain both as a matter of law and of common sense that there must be some appreciable interval between the alleged abandonment and the act from responsibility for which escape is sought. It must be possible for a jury to say that the accused had wholly and effectively detached himself from the criminal enterprise before the act with which he is charged is in the process of consummation or has become so inevitable that it cannot reasonably be stayed. The process of detachment must be such as to show, not only a determination upon the part of the accused to go no farther, but also such as to give his coeonspirators a reasonable opportunity, if they desire, to follow his example and refrain from further action before the act in question is committed. A conspirator cannot escape responsibility for an act which is the natural result of a criminal scheme which he has helped to devise and carry forward because, as the result either of fear or even of a better motive, he concludes to run away at the very instant when the act in question is about to be committed and when the transaction which immediately begets it has actually been commenced, as in this case. While it may make no difference whether mere fear or actual repentance is the moving cause, one or the other must lead to an actual and effective retirement before the act in question has become so imminent that its avoidance is practically out of the question.”

In State v. Wilson, 192 Neb. 435, 222 N.W.2d 128, 130[2] (1974), the court stated:

“To be effective as a defense, there must be an appreciable interval between the alleged abandonment of the criminal enterprise and the act for which responsibility is sought to be avoided. The coconspirator must have a reasonable opportunity to follow the example and refrain from further action before the act in question is committed. A conspirator cannot escape responsibility for an act which is the natural result of a criminal scheme he has helped to devise and carry forward by running away at the instant when the act in question is about to be committed and the transaction which immediately begets it has actually been commenced.”

In the present case, appellant’s coconspir-ators were entering the bank pursuant to the robbery scheme as the claimed withdrawal of appellant was taking place. According to appellant, one of the coconspira-tors had entered the door to the bank lobby, with his weapon drawn. Appellant neither claimed to have made an effort to dissuade them from the planned criminal action nor to have communicated to them his intention to withdraw. Numerous cases in other jurisdictions have required some communication to coconspirators of the claimed withdrawal. See People v. Brown, 26 Ill.2d 308, 186 N.E.2d 321, 324[1, 2] (1962); Commonwealth v. Mangula, 2 Mass.App. 785, 322 N.E.2d 177, 181-182[8] (1975); State v. Thomas, 140 N.J.Super. 429, 356 A.2d 433, 441-442[9][10,11] (1976). Withdrawal from the scene may in some circumstances be sufficient communication when coconspira-tors are aware of that fact (see State v. Allen, 47 Conn. 121 (1879)). Here, however, the timing of appellant’s withdrawal would not permit the mere withdrawal to constitute the requisite communication.

Furthermore, appellant’s own testimony negatived any withdrawal on his part. Following his separation from his coconspira-tors, he returned to the place where the criminal activity had begun, concerned about the safety of his fellow conspirators.

Under appellant’s testimony, he was not entitled to have his defense of withdrawal submitted to the jury. Therefore, any error in the form of the instructions submitted is nonprejudicial. Appellant had the benefit of instructions to which he was not entitled and is in no position to complain. State v. Jackson, 511 S.W.2d 771, 776-777[10] (Mo. 1974); State v. Olinger, 396 S.W.2d 617, 620-621[2, 3] (Mo.1965); State v. Harper, 386 S.W.2d 353, 355[6, 7] (Mo.1965).

Appellant’s attack upon the constitutionality of Section 22(b) of Article I of the Constitution of Missouri, 1945, dealing with exemption of women from jury service, has been answered in State v. Duren, 556 S.W.2d 11 (Mo. banc 1977); cert. granted sub nom. Duren v. Missouri, 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387 (1978).

Appellant complains of the admission, over his objection that it was inflammatory, of a photograph of the interior of the bank, taken shortly after the robbers had departed and showing Officer Jackman lying on the floor with blood on him and his clothing from his wounds. The appellant had previously made a judicial admission that Officer Jackman was killed and that the cause of death was hemorrhaging and excessive loss of blood from gunshot wounds. Appellant contends that the photograph had no probative value on any controverted issue in the case and that it was offered only to inflame the jury.

This photograph shows not only Officer Jackman. It also depicts at least one of the state’s witnesses, who identified the photograph, a bank employee, and the interior of the bank in the vicinity of the body. A photograph of the body of a homicide victim is not per se inadmissible as inflammatory. State v. Parker, 509 S.W.2d 67, 70[1, 2] (Mo.1974). Even though it depicts matters otherwise shown by oral testimony, the photograph is admissible if it throws light on any issue in the case. A photograph is admissible if it enables the jury better to understand the testimony of a witness or if it tends to corroborate, explain or clarify the testimony of a witness. State v. Stevens, 467 S.W.2d 10, 24[16-18] (Mo.1971); State v. Johnson, 486 S.W.2d 491, 494-495[l, 2] (Mo.1972); State v. Parker, supra; State v. Love, 546 S.W.2d 441, 451-452[10, 11][12, 13] (Mo.App.1976). A considerable discretion is vested in the trial court in determining whether or not the probative value of a photograph outweighs the possible inflammatory effect of its picturing the body of the homicide victim. State v. Parker, supra. Here, the photograph did depict the scene of the crime and showed the presence of the state’s eyewitness. In that regard it did corroborate the witness’s testimony. The photograph does not focus upon the body of Officer Jackman and it clearly is not the type of photograph described in State v. Floyd, 360 S.W.2d 630 (Mo.1962), (a body in an advanced state of decomposition), or in State v. Robinson, 328 S.W.2d 667 (Mo.1959), (“extremely obscene, offensive, vulgar, horrid and repulsive,” 328 S.W.2d at 671), relied upon by appellant.

The admission of the photograph in this case has not been shown to have been an abuse of discretion on the part of the trial court.

Judgment affirmed.

All concur.


author: SWOFFORD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Anthony McREYNOLDS, Appellant.
    No. KCD 29556.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 27, 1978.
    Application to Transfer Denied Jan. 8,1979.

      Clifford A. Cohen, Public Defender, Kevin R. Locke, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

Appellant was tried and convicted of first degree robbery by a jury and sentenced to five years in the Department of Corrections. He filed a pretrial motion to quash the jury panel from which his trial jury was selected, alleging that the procedure for the jury selection of the panel granting women an automatic exemption from service based solely upon sex resulted in a disproportionately small number of women available for jury service under the application of Article I, Section 22(b) of the Missouri Constitution and Section 494.031 RSMo 1975 Supp. and thus denied him his right to a “cross section” jury under the Sixth and Fourteenth Amendments of the Constitution of the United States. It was agreed by the parties that evidence on this motion to quash the jury panel would be deferred and presented, if at all, on the hearing on a motion for a new trial.

With his motion for a new trial the appellant filed a stipulation of facts agreed to by the state, showing various statistics for 1976 as to the number of women declining jury service for various reasons and that the jury wheel for that year as finally constituted was composed of 29.1% women and that only 14.5% of those actually serving were women. The court below overruled the motion for a new trial and thereby denied the pending motion to quash the jury panel.

The Supreme Court of Missouri had this same constitutional attack upon the jury selection procedures before it in State v. Duren, 556 S.W.2d 11 [Mo. banc 1977, cert. granted sub. nom. Duren v. Missouri, 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387 (1978)] and the cases of State v. Lee, 556 S.W.2d 25 (Mo. banc 1977) and State v. Davis, 556 S.W.2d 45 (Mo. banc 1977) decided simultaneously with Duren. In each of these cases this attack made here upon the matter of jury selection and the automatic exemption of women was denied. Further, that court in the case of State of Missouri v. Charles Jackson Carter, 572 S.W.2d 430, No. 59802, decided October 10, 1978, adhered to its ruling in the Duren trilogy. This Court, of course, is likewise bound to follow Duren.

Duren denied relief and based its decision upon two factors: (1) the appellant failed to produce sufficient evidence to show causation between the method of jury selection and the composition of the trial panel; and (2) the results of the jury selection process arising from the Missouri constitutional provision [Article I, Section 22(b)] and the implementing statute (Section 494.031) were not violative of the “almost totally male” standard nor the constitutional protections restated in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

While the “evidentiary gaps” and “shortcomings” noted to exist in Duren have been at least partially satisfied by the stipulated facts in this record, the basic constitutional question decided in Duren remains the law in this state and is decisive of that question here. Further discussion of these problems would be without precedential value, Rule 84.16(b)(1).

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Frank J. CLARK, Appellant.
    No. KCD 29677.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 27, 1978.
    Application to Transfer Denied Jan. 8,1979.
    Clifford A. Cohen, Public Defender, Kevin R. Locke, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant has appealed from jury verdicts finding him guilty of possession of less than 35 grams of marijuana, a misdemean- or, and possession of amphetamines, a felony. Both offenses were charged in a single information containing two counts.

Two points of error are presented by defendant on appeal: (1) Error on the part of the trial court in overruling defendant’s motion to quash the jury panel because the automatic exemption given women from jury service resulted in a panel which was not representative of a cross-section of society, all in violation of the Sixth Amendment to the Constitution of the United States; and (2) error on the part of the trial court in not severing the two offenses for trial because Rule 24.04 “allowing joinder of cases . . . [is] an unconstitutional enactment in violation of Article V, Section 5 of the Missouri Constitution”.

As none of the points relied upon question the sufficiency of the evidence, a synopsis of the facts will suffice. On May 12, 1976, two Kansas City, Missouri, police officers on patrol in the vicinity of 27th and Indiana Streets stopped an automobile driven by defendant because of a vehicle license violation. As defendant pulled to the curb in the process of stopping, one of the police officers observed him throw a white paper sack out of his automobile. The white paper sack was retrieved by one of the officers and subsequent laboratory analyses confirmed the presence of marijuana and amphetamines among its contents.

Defendant’s first point may be summarily disposed of as State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), cert. granted sub nom. Duren v. Missouri, 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387 (1978), State v. Lee, 556 S.W.2d 25 (Mo. banc 1977), and State v. Davis, 556 S.W.2d 45 (Mo. banc 1977), heretofore concurrently decided by the Supreme Court of Missouri, have ruled this very issue adversely to defendant. No statistical data has been presented by defendant suggesting that the selection and composition of the jury panel in this case was substantially different from the selection and composition of that involved in Duren, Lee and Davis.

Defendant’s second and final point may also be summarily disposed of as State v. Duren, supra, 556 S.W.2d at 19, and Burnside v. State, 552 S.W.2d 339 (Mo.App.1977), have heretofore upheld the constitutionality of Rule 24.04, supra, in the face of similar constitutional attacks.

Judgment affirmed.

All concur.


author: PER CURIAM: PER CURIAM:

text:
    Danny Ray WOLFE, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29870.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 27, 1978.
    Application to Transfer Denied Jan. 8,1979.

      Roger M. Prokes, Maryville, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   PER CURIAM:

On a plea of guilty to burglary in the second degree, defendant was sentenced to eight years in prison. Thereafter he filed the present motion under Rule 27.26 to set aside the conviction. The trial court held an evidentiary hearing, made findings of fact and denied the motion.

Defendant appeals upon the following two points: “I. The court erred in finding the movant expressly and voluntarily waived his preliminary hearing although he was not represented by counsel and had expressed his desire for representation. II. The court erred in finding that movant was accorded an adequate hearing prior to sentencing on movant’s motion to withdraw his guilty plea.”

With respect to Point I, defendant’s voluntary plea of guilty constituted a waiver of any irregularity with respect to nonrepresentation at the preliminary hearing. Stanfield v. State, 442 S.W.2d 521 (Mo.1969); Hegwood v. State, 465 S.W.2d 476 (Mo.1971); Geren v. State, 473 S.W.2d 704 (Mo.1971). In any event, the trial court found that defendant voluntarily waived preliminary hearing and his appearance without counsel at that time was by his own choice. Those findings are not clearly erroneous and therefore support the denial of relief on this ground. Rule 27.26(j).

With respect to Point II, that presents nothing for review because of inadequacy under Rule 84.04(d). Thummel v. King, 570 S.W.2d 679 decided September 12, 1978. We have nevertheless reviewed this complaint and find no reversible error. No particular form of hearing is required under Rule 27.25 on a motion to withdraw a guilty plea. Provisions regarding hearing are specified for motions to set aside sentence under Rule 27.26, and those hearing provisions were meticulously followed by the trial court; defendant does not even contend to the contrary. Everything was developed at the latter hearing which could possibly be relevant to the earlier motion to withdraw the guilty plea. The 27.26 hearing overlapped the 27.25 hearing, and the unquestionable sufficiency of the 27.26 hearing eliminates any possible complaint as to the form of the earlier 27.25 hearing. No error of law appears with respect to this matter.

Further elaboration of this opinion would have no precedential value, and the judgment is therefore affirmed under the provisions of Rule 84.16(b).

MEMORANDUM OPINION ON MOTION FOR REHEARING

PER CURIAM:

Defendant has moved for rehearing or transfer to the Supreme Court on the ground that Peterson v. State, Supreme Court en banc 572 S.W.2d 475, just decided on November 6, 1978, overrules prior decisions concerning the requirements for waiver of counsel by a criminal defendant. Peterson holds that use of the written form of waiver prescribed by § 600.051, RSMo Supp. 1976 is mandatory, and failure to use it is reversible error.

We construe § 600.051 to apply only when a case has reached the stage of disposition by sentencing or an order of probation, parole or suspension of sentence. The case had reached such a stage in Peterson. The present case had not reached such a stage when the preliminary hearing was being held before a magistrate, and failure to take a § 600.051 written waiver at that point cannot be deemed a fatal error. Counsel was thereafter appointed, and the plea of guilty in the Circuit Court waived any defect in lack of counsel at the preliminary hearing.

The motion for rehearing is denied and the motion for transfer is overruled.


text:
    STATE of Missouri, Respondent, v. Robert LAWHORN, Appellant.
    No. KCD 29977.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 27, 1978.

      Denise V. Phillips, Asst. Public Defender, 13th Judicial Circuit, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

A jury in the Boone County Circuit Court found Robert Lawhorn guilty of stealing property with a value of at least $50.00. The court, acting under the second offender law, fixed the punishment at five years’ imprisonment. Sentence was pronounced and judgment entered accordingly. Defendant appeals.

On June 29, 1977, Russell Long, a Boone County Deputy Sheriff, was on a stake out overlooking a number of automobiles parked near the entrance to Finger Lakes State Park. He watched appellant Law-horn and a companion named Edwards get out of an automobile and walk alongside the parked vehicles, peering into them. The men stopped near a Ford station wagon and looked around. Edwards then went across the road and threw a large rock at a window of the Ford, breaking it. Long ran toward the Ford. Edwards and Lawhorn were out of his sight momentarily. When he saw them again, they were running down the road toward where their car was parked. Each was carrying a purse. Long pursued them and called for them to stop. He fired one warning shot. The men ran to their ear and started it toward Long. Long fired two shots at the vehicle and was struck by it in the leg. The car stopped and Long ordered the passengers out. He found two purses on the front seat of the auto. Lawhorn had been seated on the passenger side.

Long found two women in a swimming area who had come to the park in the Ford. They went to the vehicle and described to Long the purses which they had left in the Ford and which were not then in the auto. Long showed them the purses taken from the car in which appellant had been a passenger and the women identified them as their purses which had been left in the Ford. They described the contents of the purses to Long and he returned them to the women.

At Lawhorn’s trial on a charge of stealing property with a value of at least $50.00, Linda Wilkinson, the owner of one of the purses, identified the purse and its contents at the time of its taking. She testified that at the time the purse had contained her billfold, her comb, her ring and her contact lenses. She stated that she had paid $285 for the contact lenses less than a year ago, $65 for the ring, a little more than a year previously, and $15 for the purse. Julie Linn, the owner of the other purse, identified it at the trial, and testified that at the time it had been taken, it had contained glasses, a comb and a bankbook. She had paid $58 for the frame and lens of the glasses, $7 for the sunglasses, and $6 for the purse. She acknowledged that she told Officer Long that the value of the purse and its contents was about $15.00.

On this appeal, the first claim of error is based upon the trial court’s overruling of appellant’s challenge for cause of prospective juror Spry. On voir dire, Ms. Spry, in response to defense counsel’s inquiry as to whether any members of the panel had had any “dealings” with Deputy Long, stated: “He grew up in my neighborhood.” She stated that Long was not presently a neighbor and she did not think that her “dealings” with Long would influence her in passing on the credibility of the officer’s testimony. That was the extent of the voir dire on the subject. The trial court overruled the challenge for cause of Ms. Spry, based upon her acquaintance with Long, stating that the matter had not been gone into at length and that Ms. Spry had stated she would not be prejudiced.

In this court, appellant argues that, in view of Mrs. Spry’s statement that Long had grown up in her neighborhood, a “strong possibility for bias in the mind of the juror existed” and the challenge for cause should have been sustained.

In State v. Dodson, 551 S.W.2d 932 (Mo.App.1977), a venireman who had known for 30 years a police officer who was to testify for the state and who asserted that such acquaintanceship would not affect his judging the officer’s credibility, was challenged for cause. In upholding the trial court’s overruling of the challenge, the court stated (551 S.W.2d 934-935[1, 2] [3-5]):

“[1, 2] It is well-settled that a defendant is entitled to a full panel of qualified jurors before he must make peremptory challenges. State v. Lovell, 506 S.W.2d 441, 443[1] (Mo. banc 1974). Failure of a trial judge to excuse for cause a legitimately challenged venireman is reversible error. See, e. g., State v. Lovell, supra at 444[4]; State v. Land, 478 S.W.2d 290, 292[3] (Mo. 1972). The defendant’s challenge to Mr. Walsh was not made on statutory grounds. See §§ 546.100-546.150 RSMo 1969. As for nonstatutory challenges, the rule is that the trial judge is vested with broad discretion, that his decision should not be overturned unless there is a clear abuse of discretion, and that any doubts are to be resolved in favor of the trial judge’s decision. State v. McGrew, 534 S.W.2d 549, 551[3] (Mo.App.1976). When determining whether to overturn a trial judge’s decision, the reviewing court must judge each case on its own facts. State v. Land, supra at 292.

“[3-5] Here venireman Walsh continued throughout the voir dire examination to insist that he would be a fair and impartial juror and that he would give no additional credence to the police officer’s testimony. Although it is up to the trial judge and not the venireman to conclude that he is able to be an impartial juror, the venireman’s testimony on his impartiality is evidence of that fact. State v. McGrew, supra at 551[4]. Friendship or relationship with a police officer alone is not sufficient to disqualify a venireman. See, e. g., State v. Eaton, 504 S.W.2d 12, 17[9] (Mo.1973); State v. Cashman, 485 S.W.2d 431, 434[5] (Mo.1972); State v. Drake, 518 S.W.2d 335, 337[6] (Mo.App.1975); State v. Wraggs, 512 S.W.2d 257, 259[5] (Mo.App.1974). Nor is friendship with a witness alone. See, e. g., State v. Cashman, supra at 433[3]; State v. McGrew, supra at 551-52[6, 7]. Mr. Walsh was not a close friend of the testifying police officer. For the last five years of the thirty-year acquaintanceship, Mr. Walsh had at the most merely said ‘hello’ to the .officer once in a while. Mr. Walsh stated he would be impartial and would put the officer to the same standards of credibility as any other witness. Both of these factors lead us to find that there was no abuse of discretion in refusing to excuse venireman Walsh for cause.”

In this case, the only fact elicited on voir dire was that Long had grown up in Ms. Spry’s neighborhood. On the basis of that fact standing alone and in view of the absence of equivocation on the part of the venireperson as to impartiality, the trial court in this case did not abuse its discretion in overruling the challenge of Ms. Spry for cause. State v. Dodson, supra.

Appellant’s second point is directed at the trial court’s overruling of his motion to quash the information on which he was tried on the grounds that it charged two separate offenses in a single count and was therefore duplicitous. The information charged that appellant “acting in concert” stole “personal property owned by Julie Linn and Linda Wilkinson * * * to-wit: purses and contents of the value of over fifty dollars * * Appellant contends that the theft of each purse was a separate offense and that he should have been charged separately as to each.

Missouri follows what is known as the “Single Larceny Rule.” Under that rule the theft of the property of more than one person as a continuous act or transaction constitutes one larceny. Lorton v. State, 7 Mo. 55 (1841); State v. Bookman, 344 Mo. 80, 124 S.W.2d 1205, 1206[2] (1939); State v. Toombs, 326 Mo. 981, 34 S.W.2d 61, 64—65[3] (1930). See Annotation: “Single or Separate Larceny Predicated Upon Stealing Property from Different Owners at the Same Time,” 37 A.L.R.3d 1407 (1971).

Appellant’s brief ignores the Missouri authorities contrary to his position here and argues that the rationale of State v. Thomas, 360 S.W.2d 694 (Mo.1962), and United States v. Schrenzel, 462 F.2d 765 (8th Cir.1972), is determinative. In State v. Thomas, the court intimated, without deciding, that burglarious entry of two separate buildings constitutes two separate offenses. The court made no reference to cases applying the single larceny rule and there is neither express nor tacit overruling of such cases by Thomas. United States v. Schren-zel involved sales of drugs on successive days and is not here persuasive. This court is obliged to follow the latest pronouncement of the Supreme Court of this state which accepts the single larceny rule. See State v. Moton, 476 S.W.2d 785, 789-790 (Mo.1972).

Appellant next contends that the trial court erred in overruling objections to testimony as to the value of the contents of Julie Linn’s purse and to the admission into evidence of the purses and their contents because none of the contents had been disclosed to appellant pursuant to his request for discovery. The transcript on appeal does not contain the request for discovery. Therefore, nothing is properly before this court in this regard, there being no basis for determination here of whether or not the information request under Rule 25.32 applied to the evidence in question. See State v. Hatten, 561 S.W.2d 706, 713[9] (Mo.App. 1978).

Finally, appellant contends that his motion for directed verdict of acquittal should have been sustained because there was insufficient evidence of the value of the property stolen and of appellant’s participation in the alleged crime.

Appellant does not contend that there was no evidence of stealing property with a value of less than $50 and the trial court instructed on that offense. If there was evidence to support that instruction, and appellant does not contend otherwise, the trial court could not be convicted of error in overruling the motion for a directed verdict of acquittal. State v. Vincent, 321 S.W.2d 439, 441[3] (Mo.1959). The question will, nevertheless, be considered as one of the sufficiency of the evidence to support the verdict rendered.

On the issue of value of the property stolen, appellant acknowledges that evidence of the retail price of property is relevant on the issue of market value of the property stolen, the test of value in a stealing case. State v. Gordon, 543 S.W.2d 553, 556[5] (Mo.App.1976); State v. Carter, 544 S.W.2d 334, 338—339[7] (Mo.App.1976). He argues that the nature of the property here involved, i. e., a ring, contact lenses and eyeglasses, is such that jurors could not likely, on the basis of their experience, be able to relate the price paid for such objects, the only evidence of value in the case, to the market value at the time of the theft. The evidence that the stolen property had a total cost in excess of $400, coupled with testimony as to the length of the use of such property and its being placed before the jury, would authorize the jury to find a market value of the property of at least $50 when it was stolen. State v. Bresse, 326 Mo. 885, 33 S.W.2d 919, 921[3] (1930); State v. Supinski, 378 S.W.2d 602, 605-606[7] (Mo. App.1964).

On the issue of appellant’s participation, he relies on the contention that the state’s evidence at most showed his presence at the scene of the crime and is insufficient to sustain his conviction, citing State v. Castaldi, 386 S.W.2d 392, 394[1-3] (Mo.1965). Appellant would ignore the testimony of the deputy that each of the persons whom he pursued carried a purse because the deputy was uncertain as to which man carried which purse. Any such shortcoming in the officer’s testimony would go to its weight, a matter for the jury. Clearly there was evidence of activity on the part of appellant related to the theft, going beyond proof of mere presence. The trial court did not err in failing to direct a verdict of acquittal.

Judgment affirmed.

All concur.


author: PRITCHARD, Judge.

text:
    STATE of Missouri, Respondent, v. Donald L. McENTIRE, Appellant.
    No. KCD 29978.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 27, 1978.
    Joe L. Moseley, Asst. Public Defender, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Eric Martin, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

Upon a finding that appellant was a second offender, the court sentenced appellant to consecutive terms of imprisonment of ten years each upon a jury’s separate findings of guilt upon two counts charging the sales of a controlled substance, Lysergic Acid Diethylamide.

The sole point relied upon is: “The trial court committed plain error in failing to give mandatory MAI-CR 2.70 which directs the jury to consider the evidence separately as to each count and thereby resulted in a manifest injustice prejudicing the defendant.” Plain error is asserted under Rule 27.20(c), because the here contended error was not presented to the trial court in the motion for new trial.

The charges of the sales of the controlled substances are, Count I, on July 24, 1975, and Count II, on July 30, 1975. Otherwise than the dates, the allegations are identical.

MAI-CR 2.70 is: “The defendant is charged with a separate offense in each Count submitted to you. Each offense and the evidence and law applicable to it should be considered separately. Any evidence which was or has been limited to one of the offenses charged or one purpose should not be considered by you as to another offense charged or for any other purpose. [Paragraph] You may find the defendant guilty or not guilty on any or all of the Counts submitted against him * * *. [Paragraph] You should render a separate verdict as to each Count submitted against the defendant.” Separate verdicts were here rendered against defendant on each count of the charge upon forms supplied to the jury for each of the possible verdicts in the case. In each of the separate verdict directing instructions upon each Count, there was a concluding paragraph: “However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.” There was also an instruction given directing acquittal if there was a reasonable doubt as to any count.

It is, of course, error to fail to give a mandatory instruction. It was, however, held in State v. Brown, 543 S.W.2d 796, 797[2] (Mo.App.1976), citing State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976), that failure to give a mandatory instruction reviewed as plain error requires a finding of manifest injustice before a reversal will be warranted. In State v. Minor, 556 S.W.2d 35 (Mo. banc 1977), where the claimed error in the failure to give MAI-CR 2.70 was properly preserved, the court found no prejudice where separate verdict directors were given directing acquittal if the jury did not believe every element, and there were four appropriate verdict forms further referencing the counts and crimes, which instructions are similar to the ones above noted. In State v. Arrington, 559 S.W.2d 749, 750 (Mo. banc 1978), the court reviewed as plain error the failure to give MAI-CR 2.70, and found no prejudice because “Upon reading all of the instructions, taken together, it is clear that the jury knew that it could find appellant guilty or not guilty on either or both counts.” See also State v. Boyington, 544 S.W.2d 300 (Mo.App.1976); State v. Johnson, 537 S.W.2d 816 (Mo.App.1976); and State v. Nelson, 532 S.W.2d 855 (Mo.App.1975). All of these cases require that appellant’s sole point be ruled against him.

• The judgment is affirmed.

All concur.


author: PER CURIAM. PER CURIAM.

text:
    Ireta June LANNING, Plaintiff-Appellant, v. William O. LANNING, Defendant-Respondent.
    No. KCD 29561.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Rehearing Denied Nov. 27, 1978.

      Charles F. Crews, Crews, Milliard & South, Kansas City, for plaintiff-appellant.
    Henry H. Fox, Jr., and John R. Coffin, Kansas City, for defendant-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

Plaintiff (appellant) and defendant (respondent) were divorced per a final decree dated January 15, 1965, which, inter alia, ordered defendant to pay to plaintiff the sum of $100.00 per month for support of a minor child born of the marriage. Execution was issued on March 7,1977, to enforce the judgment for child support and a writ of garnishment in aid thereof was served on Covert Marine Co., Inc., as garnishee. Defendant filed a motion to quash the garnishment on March 25,1977, on the ground that the January 15, 1965, judgment was “dormant and of no effect pursuant to Section 516.350.” The motion to quash was sustained, the writ of garnishment was duly quashed by the trial court, and this appeal by plaintiff ensued.

Judgments in divorce actions providing for periodic payments for support of minor children, such as the one presently involved on appeal, are subject to the same incidents as money judgments in actions at law and pursuant to Section 516.350, RSMol969, are “presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof” absent being kept alive by payments within such period or by revival. Peterson v. Peterson, 273 S.W.2d 239, 241 (Mo.1954); Mayes v. Mayes, 3,42 Mo. 401, 116 S.W.2d 1, 3 (1938); and Sisco v. Sisco, 339 S.W.2d 283, 288 (Mo.App.1960). The presumption of payment and satisfaction created by Section 516.350, supra, “wipes out or cancels the debt itself” and “extinguishes the right of action”, and in this sense is distinguishable from the ordinary statute of limitations which merely bars the remedy. Wormington (Woolsey) v. City of Monett, 358 Mo. 1044, 218 S.W.2d 586, 588 (banc 1949).

Although plaintiff concedes that no timely writ of scire facias was ever sued out to revive the judgment and that execution was issued more than twelve years after its rendition, she nevertheless maintains that payments were made on the judgment within ten years of its rendition which breathed continuing life into it. Her only proof respecting payment was a margin entry purportedly made by her attorney on the judgment record under date of April 11, 1977, acknowledging receipt of all payments due through December 15, 1965, of several sporadic payments in 1968 and 1970, and of one payment in 1977, to-wit, on March 2, 1977.

Under authority of Eubank v. Eu-bank, 29 S.W.2d 212 (Mo.App.1930), plaintiff failed in her attempt to prove that payments made on the judgment tolled Section 516.350, supra. In Eubank, as here, an effort was made to enforce payment of a judgment by execution more than ten years after its rendition and absent its timely revival by a writ of scire facias. Also, as here, the only proof of payment relied upon to toll Section 1341, RSMol919, the precursor to Section 516.350, supra, consisted of a margin entry on the judgment record made by the judgment creditor’s attorney more than ten years after the original judgment was entered. Also, as here, there was no proof that the purported payments were made by authority of the judgment debtor. The forerunner of this court held in Eu-bank, 29 S.W.2d 214, that a party “relying on a payment to stop the running of the statute must not only establish that it was made, but that it was made by authority of the defendant” and if an “indorsement [margin entry] is made after the bar, and without the knowledge or direction of the debtor, such indorsement is not admissible as evidence of the fact of payment, which must be proved aliunde.” In Eubank, as well as here, both judgment creditors relied solely upon recitals of payment in margin entries made on the respective judgment records and totally forewent proof “aliun-de” of the fact of timely payments necessary to establish that then Section 1341, supra, and present Section 516.350, supra, were tolled.

For the same reasons the court in Eubank ordered the trial court to quash the execution issued therein, this court affirms the judgment of the trial court in the instant case quashing the writ of garnishment issued in aid of execution.

Judgment affirmed.

MEMORANDUM ON MOTION FOR REHEARING

PER CURIAM.

Appellant has moved for rehearing on the ground that this court “inadvertently” overlooked the testimony of appellant presented to the trial court by way of an affidavit. The referred to affidavit was not overlooked, inadvertently or intentionally. However, questions of general admissibility aside, it was never considered because it was neither signed nor notarized, and for those reasons alone totally devoid of eviden-tiary value.

The motion for rehearing is denied.

      . “516.350. Judgments presumed to be paid, when — presumption, how rebutted

      Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.”

      . See Annotation 137 A.L.R. 884 and Annotation 70 A.L.R.2d 1250 for collection of cases from various jurisdictions on the same general subject, the majority of which apply a different starting date for the running of statutes of limitation regarding judgments for alimony and child support payable in periodic installments.


text:
    Thomas BALL, Appellant, v. STATE of Missouri, Respondent.
    No. 39854.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 7, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 15, 1978.
    Application to Transfer Denied Jan. 8,1979.
    Robert C. Babione, Public Defender, Charles H. Mostov, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.
   DOWD, Presiding Judge.

Appellant, Thomas Ball, filed a motion pursuant to Rule 27.26 VAMR to vacate the judgment and sentence resulting from his conviction for murder in the first degree. Following an evidentiary hearing, his motion was denied. Appellant’s previous attempts at securing relief by direct attack in state court State v. Ball, 529 S.W.2d 901 (Mo.App.1975) and collateral attack in federal court [Ball v. Wyrick], 547 F.2d 78 (8th Cir.1977) were unsuccessful.

The sole issue comprising this appeal is the assertion that the State knowingly used perjured testimony at appellant’s trial.

Our consideration of this allegation necessitates a brief discussion of the facts adduced at trial. Appellant was charged with murder in the first degree for the killing of Mr. Percy Thomas. The prosecutor introduced the testimony of two witnesses to the murder: the appellant’s nine year old daughter, Sabrina, and a Mr. Dismute. Both witnesses testified that appellant shot Thomas. Although appellant defended that he shot Thomas in self defense, both witnesses testified that no altercation of any kind preceded the killing.

At the evidentiary hearing, the appellant designated his daughter as the alleged perjurer. On direct examination, Sabrina testified that she had lied at her "father’s trial because she was afraid of the prosecutor. The alleged lie consisted of her statement that she had seen her father shoot Thomas.

The court below did not consider the testimony offered at the evidentiary hearing to be sufficient to discredit Sabrina’s testimony at the trial. We agree.

In order to secure relief from the effect of perjured testimony, the defendant must demonstrate that: 1) the testimony in question was deliberately false and known to be false; 2) the testimony was used though the prosecution was aware of its falsity; 3) the conviction was procured as a result of the perjured testimony. Williams v. State, 536 S.W.2d 190 (Mo.App.1976).

Appellant has not sustained his burden of proof. The record is devoid of any substantiation of the allegation that the prosecution knowingly used perjured testimony. Furthermore, the record lacks independent corroboration of Sabrina’s revised version of the facts. Although others witnessed the fatal shooting, only the appellant was called to ratify Sabrina’s version at the hearing. Appellant also failed to demonstrate that Sabrina’s testimony, standing alone, elicited his conviction. There was other evidence introduced at the trial which established the appellant’s guilt.

These facts, taken with the inconsistencies in Sabrina’s testimony at the hearing and her admission that she felt partially responsible for her father’s incarceration, contributed to the court’s finding that her recantation testimony was not credible. In view of the court’s opportunity to evaluate the credibility of the witness, we defer to its determination of this issue. Baysinger v. State, 552 S.W.2d 359 (Mo.App.1977).

Finding no error in the lower court’s judgment, we affirm.

SNYDER, J., and ALDEN A. STOCK-ARD, Special Judge, concur.