text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard E. HARLEY, alias Stephen Allen Young, Defendant-Appellant.
    No. 9688.
    Missouri Court of Appeals, Springfield District.
    Sept. 23, 1976.
    Motion for Rehearing or Transfer Denied Oct. 8, 1976.
    Application to Transfer Denied. Dec. 13, 1976.
    William J. Fleischaker, Public Defender, 29th Judicial Circuit, Joplin, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

This appeal arises out of the same episode as State v. Harley, 543 S.W.2d 288, No. 9681, reported concurrently herewith. In this case, defendant Harley, upon trial to the court, was found guilty of robbery in the first degree as defined and denounced by § 560.120, RSMo 1969, V.A.M.S. The Second Offender Act, § 556.280, was found to be applicable, and defendant’s punishment was assessed at imprisonment for life. Defendant appealed; we ordered this cause and No. 9681, State v. Harley, supra, consolidated for purposes of argument only.

The facts we recited as background material in No. 9681 need not be repeated; robbery as denounced by § 560.-120 has been generally defined as a compound larceny, composed of the crime of larceny from the person with the aggravation of force, actual or constructive, used in the taking, State v. Gardner, 356 Mo. 1015, 1016-1017, 204 S.W.2d 716, 717[2] (1947), with the qualification that the gravamen of the offense is the taking of the property of another from the person by violence or by fear and the ownership of the property taken is not material to and does not affect the offense. State v. Wright, 476 S.W.2d 581, 584[2] (Mo.1972). Additionally, the offense may be committed in two different ways, by taking from the person or in his presence the property of another. State v. Davis, 482 S.W.2d 486, 488[1] (Mo.1972). In this case the record clearly shows that on July 9, 1973, the defendant took $4,240 in cash in the presence of Foodtown employees; by his statement and by the testimony of the head clerk, defendant held the head clerk and other employees at gunpoint while the money was being collected. The head clerk, Jenness, testified directly that he was put in fear. The money, or sack of money, was identifiable in this case, and it was shown that when defendant was taken in custody, he was in possession of the very sack of money stolen in Jenness’ presence. It is therefore obvious that the elements of a robbery were established upon the defendant’s trial for first-degree murder, and therefore evidence sufficient to convict defendant of robbery in the first degree appears in the transcript filed in case No. 9681.

That transcript reflects that on October 9, 1973, the defendant was charged with first-degree murder. The supplemental transcripts filed in connection with this appeal show that on the same day, in a separate (amended) information, defendant was charged with first-degree robbery arising out of the same transaction. Following defendant’s conviction in case No. 9681, his presence — in Jasper County — was secured by writ of habeas corpus ad prosequendum, and on January 16, 1974, defendant by motion pleaded former jeopardy of the offense of robbery in the first degree in the manner prescribed by Rule 25.05(b). The motion, which is essentially a plea of autrefois convict, sought to invoke the bar of the double jeopardy clause of U.S.Const. amend. V, made applicable to the states through U.S. Const, amend. XIV. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); State v. Glover, 500 S.W.2d 271, 273[6] (Mo.App.1973).

The trial procedure followed here deserves a word of comment. On January 31, 1974, the defendant appeared in person and with the public defender. The following exchange occurred:

THE COURT: All right, Mr. Harley, would you step up, please?
THE DEFENDANT: Yes, sir.
THE COURT: Did you hear the pronouncement by your attorney concerning waiver of jury trial in Case Number 14544 wherein you are charged with First Degree Robbery?
THE DEFENDANT: I heard on a condition. To waive the jury trial on the terms that they would drop the kidnapping charge.
MR. PATTEN: When he’s waived the trial by jury and submitted the case to the Court on the previous transcript, I will do that.
THE COURT: Well, I want you to understand, Mr. Harley . . . you do have the right to a trial by jury, do you understand that?
THE DEFENDANT: I understand that.
BY THE COURT:
Q. And it is my understanding you did in fact have a jury trial on the case in Division II of this Court wherein you were charged with First Degree Murder, is this correct?
A. Yes, Your Honor.
Q. Now, we are prepared to afford you the same trial in this armed robbery case. Now, I want you to understand that you are entitled to that jury trial irrespective of what the Prosecutor does with regard to Case Number 14542, which is the kidnapping charge. Do you understand that irrespective of what he does on this kidnapping charge and — do you understand that?
A. Yes, I do.
Q. Understanding that, do you desire to submit this case — now, it is my understanding that according to your attorney and the Prosecutor, I was to — rather than proceed to call witnesses and have you in Court to be confronted with those witnesses and have an opportunity to cross-examine them, that your attorney and the Prosecutor were going to agree that I should read the transcript which has been prepared by the court reporter of the evidence presented in the first degree murder trial, do you understand that?
A. I understand that.
Q. In other words, rather than having a trial by calling witnesses to testify, it was my understanding that the Prosecutor and your attorney had agreed that I should simply read the testimony, or transcript of the testimony as prepared by the court reporter, in the first degree murder case, do you understand that?
A. Yes.
Q. And you understand that you would have the right to have these witnesses called and be confronted by them and have the right to cross-examine them and have the right to have your attorney with you?
A. I understand that.
Q. Have you gone over all those matters with your attorney?
A. Yes, I have.
Q. And having gone over those matters with him, do you desire me to proceed in that fashion, to examine and read the transcript of the evidence and base my decision in this present case, wherein you are charged with robbery, on a reading of the transcript?
A. Yes, sir.
Q. All right, I have made the following entry in Case Number 14542: State enters nolle prosequi and the case is dismissed. That’s the kidnapping case. Now, the first degree robbery case, this is Case Number 14544,1 have indicated that you have withdrawn your motion to consolidate this case with the case that was just dismissed; and I have also indicated that you have waived your right to jury trial and that you agree to submit this case to the Court for trial on the transcript of testimony in Case Number 14546, that was the murder ease that was tried. Now, do you understand what I have done?
A. Yes, sir.
Q. And do you agree to what I have done?
A. Yes, sir.
Q. All right, based upon that representation I will proceed to examine and read the transcript, and after I have read the transcript and gone over the transcript, you will be called back into Court and advised of my decision in the case.

The record further shows that the trial court read the record, that defendant was present when sentence was pronounced, that he was afforded allocution and that the trial court explicitly found defendant guilty of robbery in the first degree. No comment is made by either party upon this “trial by transcript” and we make no comment beyond observing that such a procedure involves an extensive waiver of constitutionally protected rights. We emphasize that no objection to the trial procedure is raised on this appeal.

On the merits, little discussion is required. The defendant’s sole point, as noted, is that this conviction violates the double jeopardy prohibition of U.S.Const. amend. V. The imprecise rationale of the authorities he cites and the diffuseness of his argument vividly illustrate once again that the term “double jeopardy” describes a judicial deadfall rather than a precise notion, as witnessed by the variety of routes to the same conclusion in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). As authority for his claim of double jeopardy, defendant cites State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974). In Wikberg, two defendants entered a store and attempted to rob the proprietor; the proprietor resisted, drew a weapon and was killed in the ensuing gunfight. The evidence indicated that Wikberg fired the fatal shot. Wikberg entered a plea of guilty to the Louisiana equivalent of our first-degree felony murder, and later entered a plea of guilty to a charge of attempted armed robbery. In a postconviction habeas corpus proceeding, Wikberg claimed violation of the double jeopardy clause of U.S. Const, amend. V. Applying a theory of collateral estoppel, the Louisiana court held that when the gravamen of the second offense is essentially included within the offense for which the defendant was first tried, the second prosecution is barred because of the former jeopardy. State ex rel Wikberg v. Henderson, supra, 292 So.2d at 508—509[4]. The majority concluded that Wikberg’s conviction of attempted armed robbery violated the prohibition against double jeopardy because proof of the commission of robbery was an essential element of the State’s proof of felony murder. There was a vigorous dissent, we note, arguing that murder and robbery are not and cannot be the “same offense” even though they are both committed as part of the same transaction, and as authority one dissenter cited State v. Moore, 326 Mo. 1199, 33 S.W.2d 905 (1930).

The defendant also cites State v. Parsons, 513 S.W.2d 430 (Mo.1974). In Parsons, defendant was charged with first-degree murder and bombing in a two-count indictment. The evidence indicated that the defendant had attached a bomb to his former wife’s automobile. The bomb exploded; the former wife was, in the court’s words, “strewn over a wide area”. A jury found the defendant guilty on both counts, first-degree murder and bombing. On appeal, the defendant contended the State should have been compelled to elect between Count I and Count II. Our Supreme Court agreed, holding that if there is but a single act of force proved as an incidental means of committing a murder, that act of force may not also be charged as a separate crime, citing State v. Richardson, 460 S.W.2d 537, 539[1] (Mo. banc 1970).

Neither case aids the defendant. The Louisiana case appears to apply a theory of collateral estoppel, but, as applicable to this appeal, our Supreme Court has rejected that doctrine on the theory that robbery and murder are separate and distinct offenses, even though they arise out of the same transaction. State v. Damico, 513 S.W.2d 351, 358—359[4] (Mo.1974). As for the suggestion that both prosecutions involve the same violent act, it is perfectly clear that there was more than one act of violence here; the act of force proved as a means of robbery — holding Jenness and the other employees at gunpoint — was different and distinct from the act of force proved as a means of committing murder, and State v. Parsons, supra, would in no event be controlling.

In point of fact, our courts have again and again rejected the defendant’s contention that prosecution for robbery following conviction of felony-murder in the commission of that robbery constitutes prosecution for the same offense within the meaning of the term “double” or “former” jeopardy. State v. Damico, supra, 513 S.W.2d at 358-359[4]; Crews v. State, 510 S.W.2d 425, 431-432 [4, 5] (Mo.1974); Wells v. State, 504 S.W.2d 96, 97[2] (Mo.1974), cert. denied, 419 U.S. 1075, 95 S.Ct. 665, 42 L.Ed.2d 671 (1974); State v. King, 375 S.W.2d 34, 37[2] (Mo.1964); State v. Moore, supra, 326 Mo. at 1204-1205, 33 S.W.2d at 906—907[4]. It would serve no useful purpose to discuss those precedents, by which we are firmly held and bound. The defendant does not stand twice vexed by his conviction in this case; the judgment is accordingly affirmed.

All concur.

      . References to statutes and rules are to RSMo 1969, V.A.M.S. and V.A.M.R.


source: Caselaw Access Project

author: WASSERSTROM, Judge.

license: Public Domain

text:
    James M. SEARS, an Individual, et al., Plaintiffs-Respondents, v. John Phillip NORMAN et al., Defendants-Appellants.
    No. KCD 27395.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 4, 1976.

      David A. Oliver, Columbia, for defendants-appellants.
    William D. Powell, Columbia, for plaintiffs-respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

This suit seeks a declaration of the existence of a public alley and to enjoin the defendants from interfering with the public right of passage. After trial without a jury, the court found for the plaintiffs. Defendants appeal.

The property in question lies within a city block in Columbia, Missouri, bounded on the east by Ann Street, on the west by Williams Street, on the north by Amelia Street and on the south by Hinkson Street. The alley claimed by plaintiffs runs east and west from Ann to Williams, midway between the rear of residential structures facing Amelia and Hinkson. Defendants Mr. and Mrs. Norman and Mrs. Loesing own property on either side of the alleged alley at the extreme west end thereof next to Williams Street. They claim that the “alley” really constitutes a private drive for their sole benefit, and they blocked the passageway at their eastern property line by hauling in a load of dirt and erecting a fence.

Plaintiffs own property adjacent to the alley and lying east of the point at which the alley had been blocked by defendants. They filed this suit to challenge the legal right of the defendants to shut off the passageway. The petition states in part that it is brought as a class action, that the named defendants have been fairly chosen and adequately and fairly represent the whole class and that the defendants are being sued in a representative capacity.

The plaintiffs placed in evidence a plat of the northwest portion of the city block in question, this area being named J. C. and J. W. Schwabe Subdivision of Lot 9 of Stephens first Addition to the town (now City) of Columbia, Mo. That plat shows a 15' strip south of the Norman property (7V2' of which is on Norman’s lot) which is designated as a “private alley.” None of the parties introduced any plat of any subdivisions further to the east. The plat of Stephens first Addition does contain lines between Ann and Williams Streets south of Lots 9, 10 and 11, which might have been intended to reflect some sort of alley; but this plat contains no designation of that as an alleyway and no oral testimony explains or amplifies these markings. Nor has there been any showing, documentary or by testimony, as to the intended scope or the beneficiaries of the private alley which was shown on the Schwabe Subdivision plat. Plaintiffs make no reliance on the platted private alley as a source of rights, and defendants do not admit the right of anyone to use this passageway under any limited private easement. This case therefore presents no issue as to what rights, if any, accrued under what may have been originally some private right of way.

Instead, the evidence tendered by the parties focuses on the nature, extent and duration of use of an alley by the general public between Ann and Williams Streets. Plaintiffs’ evidence tended to show general and continuous use by all members of the public commencing at least as early as the middle 1930’s. Their evidence also tended to show that this use was made as a matter of right without any thought that permission was necessary from anyone. Plaintiffs also offered testimony that the alleyway has been maintained by the City in recent years just as other public alleys in the City, that the alley has been patrolled by City police, and that it was used for garbage collection. Defendants did not deny that use had been made as an alleyway, but they attempted to picture this as relatively minor and without any participation by the City. Their principal claim is that at all times use of the alleyway by parties other than themselves was purely permissive, not adverse under claim of right.

On this appeal, defendants raise five points. Their points 1 and 5 challenge the status of this proceeding as a class action, and both of those points will be discussed together. Points 2 and 4 challenge other procedural aspects of the case. Point 3 comes to grips with the underlying factual issue and will be discussed last in order.

I.

Defendants contend that the trial court erred in permitting this as a class action because: a) there is no showing that defendants were fairly chosen as representatives of the class; b) plaintiffs have not shown that it was impracticable to join all members of the class; and c) the facts do not show any justiciable controversy between plaintiffs and a class alleged to be represented by defendants.

Without the necessity of considering the first of those two objections, defendants’ complaint against this as a class action is justified on their third ground stated above. The evidence in this case fails to show that anyone other than the named defendants has any objection to the public use of an alleyway between Ann and Williams Streets. The blockage of the alleyway was done solely by the named defendants, and was for the purpose of cutting off and protecting only their own property at the extreme west end of the alley. So, wholly apart from whether it was practicable for plaintiffs to bring all members of the alleged class into court and whether defendants fairly and properly represented all of the owners of land abutting the alley, this is not a proper situation for a class action.

Nevertheless, this case could properly proceed against the named defendants in their individual capacities and the case should now be considered on that basis. While the body of the petition states that the action is brought as a class action, the prayer asks relief against the defendants individually as well as against the class of persons of which the defendants are claimed to be representative; and specifically the prayer asks that “the named defendants” be required to remove the obstructions from the alleyway. The prayer may be considered in ascertaining the type of action attempted to be set forth by the pleader. O’Donnell v. Baltimore & O. R. Co., 324 Mo. 1097, 26 S.W.2d 929, 935 (1930); King v. Guy, 297 S.W.2d 617, 624 (Mo.App.1957); Duvall v. Stokes, 270 S.W.2d 419, 423 (Mo.App.1954); Hilderbrand v. Anderson, 270 S.W.2d 406, 411 (Mo.App.1954); Meisel v. Mueller, 261 S.W.2d 526, 533 (Mo.App.1953).

So construed, plaintiffs were suing defendants in their individual as well as in an alleged representative capacity. Even though the suit could not properly proceed as a class action, the court could properly proceed to rule the rights of the parties looking at defendants in their capacities as individual defendants. State ex rel. St. Louis F.F. Ass’n Loc. No. 73 v. Stemmler, 479 S.W.2d 456 (Mo. banc 1972).

If there could be doubt as to the construction of the petition as one undertaking to plead a cause of action against defendants individually, as well as against them in a representative capacity, that doubt becomes immaterial in view of the fact that the evidence in the case was all directed against defendants’ actions as individuals, acts which were done by them solely in their own behalf and for the exclusive benefit of their own special properties at the west end of the alley. Furthermore, the defense offered by defendants was peculiar to their own property. The petition, if not otherwise susceptible to construction as being against defendants individually, has been automatically so amended to conform to the proof. Rule 55.33(b).

In view of the fact that this case was not properly one against a class, the judgment should be modified by eliminating that portion of the injunction order which purports to operate against “the class of persons of which these defendants are representative.” The declaratory portion of the judgment need not be modified, because under Rule 87.04 it will not affect the rights of any landowners who were not named parties to the proceeding. In effect, the declaration in the judgment of a public alley serves essentially as the predicate for the injunctional order.

II.

Defendants object to the manner in which judgment was entered in this case. They say that on February 1,1974, the trial court “entered judgment” as follows: “Court finds issues for plaintiffs and against defendants. Judgment in accordance with prayer of petition. Costs taxed against defendants.” Subsequent to that, defendants filed motion for new trial, which was overruled, and defendants then filed their notice of appeal on May 24, 1974. Thereafter, the trial court requested the attorneys for plaintiffs to prepare a formal judgment entry. In response to that request, plaintiffs’ attorneys prepared a more elaborate entry which included a legal description of the alleyway, taken from the prayer of the petition, and they presented this expanded judgment entry to the clerk of the court. By letter dated September 13, 1974, defendants’ attorneys objected to this proposed judgment as being unauthorized. On September 16,1974, plaintiffs’ attorneys orally requested that the proposed judgment filed be withdrawn. Nevertheless, the trial judge signed the formal order as of February 1, 1974, and approved the transcript with that formal order included therein.

Defendants object to this entry of the judgment in September 1974 as being beyond legal authority. In their brief they argue:

“The ‘judgment’ in dispute was not a nunc pro tunc order to correct some clerical mistake in entering judgment but was an attempt to correct or modify an action previously taken. * * * The action of the Court in entering a purported judgment more than three months after it lost jurisdiction over the action was void and of no effect.”

Plaintiffs attempt to answer this argument by relying upon the efficacy of the judgment which they also say was “entered” on February 1, 1974, and which they speak of in their brief as “the original judgment.”

If a judgment was in fact entered on February 1, 1974, that judgment would be effective to answer defendants’ present objection. Even though the February docket entry was so abbreviated that it did not contain a legal description of the alley in question, it did note that judgment was granted “in accordance with the prayer of the petition” which did describe the claimed alleyway. That was sufficient, because the law is well settled that a judgment is to be construed with reference to the whole record, including the pleadings in the case. Chuning v. Calvert, 452 S.W.2d 580 (Mo.App.1970); Rehm v. Fishman, 395 S.W.2d 251 (Mo.App.1965); State ex rel. Whatley v. Mueller, 288 S.W.2d 405 (Mo.App.1956). Therefore, on the assumption that the February docket entry was a duly entered judgment, the subsequently entered September judgment added nothing of substance thereto; and even if the September judgment were to be considered void as contended for by defendants, still the February entry would constitute a perfectly valid and effective judgment standing alone.

However, neither the argument of the plaintiffs nor that of the defendants seems to portray quite accurately or approach correctly the procedural situation disclosed by the transcript on appeal in this case. Unlike the September, 1974 record entry which is denominated “Judgment,” the February 1, 1974, record item is styled “Docket Entry.” The latter term is generally used, and is used in various other places in the present transcript, to designate notations in the judge’s minute book. Quite obviously what happened here is that the trial judge made a record of his ruling in his minute book in February, but that ruling was never entered by the court clerk on the judgment roll until the following September.

Under similar circumstances, it was held in Pelz v. Bollinger, 180 Mo. 252, 79 S.W. 146 (1904) that the formal judgment entry can be later supplied to the clerk by the attorney for the prevailing party, as was done here, regardless of the passage of the usually permitted time. It has also been held that under such circumstances the trial court may and should, even despite passage of the normal time, enter a formal judgment nunc pro tunc based upon the earlier entry on the minute book. Neil v. Tubb, 241 Mo. 666, 145 S.W. 766, 768 (1912); Lakin v. Blum, 43 S.W.2d 853 (Mo.App.1931). The procedure by either of those means is justified on the principle that the notation made in the judge’s minute book constitutes the “rendition” of judgment, which is the judicial act, and that the subsequent entry of a formal judgment on the judgment rolls is “a mere ministerial act evidencing the judicial act, but not essential to its validity, or giving to the judgment any additional force or efficacy.” Pelz v. Bollinger, supra. See also in support of this principle, Fleming v. Clark Township of Chariton County, 357 S.W.2d 940 (Mo.1962) and State ex rel. State Farm Mutual Automobile Ins. Co. v. Murray, 438 S.W.2d 300 (Mo.App.1969).

Under the authorities just cited, the trial court acted properly and within his authority in making the formal judgment entry in September, 1974.

III.

Defendants object next that there was a defect of parties in that the City of Columbia was not joined as a party to the case. In this connection defendants rely on Rule 87.04 which requires that in a suit for declaratory relief all persons be made parties “who have or claim any interest which would be affected.” Defendants claim that the City had an interest which would be affected for the reason that “the city would become responsible in the event it [the alley] is held to be a public way.” Defendants cite no authority for that proposition. Plaintiffs take sharp issue, arguing that the City can have no responsibility except for streets which it has accepted, and that the effect of the judgment in this case affords to the City a free choice of either accepting or not accepting the alleyway. Plaintiffs further point out the provision of Rule 87.04 that “no declaration shall prejudice the rights of persons not parties to the proceedings” which would prevent the City from suffering any detriment by reason of this judgment.

These points need not be pursued for the reason that any defect in parties has been waived by the failure of the defendants to raise that issue either by motion or in their answer. Ray v. Nethery, 255 S.W.2d 817 (Mo.1953); Hunt v. Easley, 495 S.W.2d 703 (Mo.App.1973).

IV.

Addressing the substantive issue in the case, defendants contend that the trial court erred in finding that a public alleyway had become established. On this issue, plaintiffs introduced substantial evidence showing use by the general public of the 15' strip in question all the way from Ann Street to Williams Street for a continuous period of many, many years until 1971, when the alley was blocked by defendants. This period ran for far longer than the 10 years necessary to establish an easement by prescription. Defendants do not wholly deny that use, although they try to minimize the extent of the use and deny that the City of Columbia had undertaken maintenance; rather, the defendants’ principal position is that the public use was merely permissive, not adverse. In support of that latter position, defendants offer testimony to the effect that the alley had been blocked by them on various occasions from time to time.

The key issue for determination therefore is whether the public use of the alley was permissive or adverse. A starting point for the consideration of this issue is found in the legal presumption that “in the absence of some showing that the use was permissive in its origin it is well settled that when one claims an easement by prescription and shows an open, continuous, visible, and uninterrupted use for the period of the 10-year statute of limitation, the burden is cast upon the landowner to show that the use was permissive, rather than adverse, if he claims it to have been so.” Fassold v. Schamburg, 350 Mo. 464, 166 S.W.2d 571, 572(2). To the same effect: Bridle Trail Association v. O’Shanick, 290 S.W.2d 401 (Mo.App.1956); Brown v. Redfern, 541 S.W.2d 725, Missouri Court of Appeals, St. Louis District, handed down August 24, 1976; Miller v. Berry, 270 S.W.2d 666 (Mo.App.1954).

Defendants’ evidence to show that they had from time to time blocked the alley, which constituted the only evidence which would tend to overcome the presumption mentioned, was as follows: 1) a tenant who lived in defendant Loesing’s house for a period of 5¾⅛ years parked his cab in the alleyway between the Loesing and Norman residences, thereby effectively blocking passage by others; 2) defendant Norman also parked in the alleyway with the same effect; 3) Mr. Loesing during his lifetime stopped Mrs. Long when she attempted to drive through the alleyway to Williams Street; 4) the Loesings had annual birthday parties for Mr. Loesing during his lifetime, at which time the party would be held in the backyards of the Loesings and the Normans with the activities going across and thereby blocking the passageway in question.

One complete answer to all of that evidence is that none of the claimed blockage occurred during the first ten years of public use. According to one of the witnesses, who had the longest knowledge of this area, the public use had commenced in 1926, and other testimony placed the public use as beginning at least in the middle 1930’s. So the ten year prescriptive period expired no later than the mid 1940’s. Yet the blockages on which defendants rely are not claimed by them to have occurred until the later 1940’s and thereafter. So, for example, the cab driver did not become a tenant of Mrs. Loesing until 1955 at the earliest and according to defendant Norman he did not become a tenant until 1964 or 1965. Whatever blocking of the alleyway was done by this tenant was therefore long after the prescriptive period had matured. Similarly, any parking by defendant Norman occurred only after he purchased his house just south of the alley in 1955 — again long after the prescription period. As to any act by Mr. Loesing in stopping Mrs. Long and the claimed birthday parties for Mr. Loesing, that also came after the prescription period had already matured. The record shows that Mrs. Loesing was previously married to Mr. Bundy and Bundy did not die until 1948. Although the date of the Loesing marriage is not shown by the record, it of course could not have occurred until after Mr. Bundy’s death. Accordingly, it must be inferred that Mr. Loesing’s acts, if any, and his birthday parties described by defendants’ testimony, also all occurred after the prescriptive period.

Once the prescriptive period had matured, a public easement came into existence and the minor acts relied upon by defendants could not have been sufficient to destroy that public easement. Connell v. Baker, 458 S.W.2d 573, 1. c. 577 (Mo.App.1970) and cases therein cited; Brown v. Redfern, supra.

Aside from all that, the evidence as a whole was abundantly sufficient to support the court’s finding of a public easement by prescription. There was ample testimony to show substantial use by the general public for well over a period of ten years, in the belief that the alley was a public way and that there was no need to obtain permission from anyone for passage. A number of witnesses, including a former employee of the City Street Department, testified that the City had been maintaining the alley by cutting weeds, grading and spreading gravel. This improvement and maintenance of the alley by the City with public funds is strong evidence in itself of an adverse prescriptive use. Terry v. City of Independence, 388 S.W.2d 769 (Mo.1965). Additionally there was evidence that the City furnished police and garbage collection service through the alley.

. Countering defendants’ testimony that the alley had been blocked from time to time even prior to the erection of the fence in 1971, a number of witnesses testified that they had used the alley and that it had never been blocked. Other testimony was that a parked automobile might temporarily block passage on occasion, but that when the driver wanting through honked his horn the car would be moved so as to permit passage. In this connection it must be noted that defendant Loesing admitted that whenever her cab driver tenant parked his car in the alley and someone came along and honked a horn, “he certainly would” move his cab.

The judgment of the trial court in this court tried case must be sustained “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976). Applying that test, the trial court’s conclusion that a public easement had become established cannot be disturbed.

To the extent specified in Section I of this opinion, the judgment is modified, and as so modified it is affirmed.

All concur.

      . The Norman property lies within the Schwabe Subdivision, but the Loesing property does not. The plat of the subdivision, if any, within which the Loesing property is located was not placed in evidence. Since the testimony shows that the Loesing property lies adjacent to the alley immediately south of the Norman property, it can be inferred that the south 7V2' of the “private alley” marked on the Schwabe Subdivision plat was meant to show it as being on the north side of the Loesing lot.o


author: DOWD, Judge.

text:
    STATE of Missouri ex rel. Lee Edward KEYES, Relator, v. The Honorable Oliver M. COLLINS, Magistrate, Division No. 9 of the Magistrate Court of the City of St. Louis, Missouri, Respondent.
    No. 38416.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 19, 1976.
    Robert C. Babione, Public Defender, St. Louis, Gary Schecter, for relator.
    Stephen A. Moore, Assoc. Pros. Atty., St. Louis, for respondent.
   DOWD, Judge.

The issue here is whether Judges of the St. Louis Court of Criminal Correction or the Magistrates of the City of St. Louis have jurisdiction over misdemeanor eases pending on August 13, 1976. Relator contends that despite legislation changing jurisdiction over misdemeanor trials in the City of St. Louis a magistrate lacks jurisdiction to try a misdemeanor charge pending against him on August 13, 1976. A large number of pending misdemeanor cases have already been tried by the magistrates, and an even larger number of such cases remain to be tried. A preliminary writ of prohibition was issued by this court, and the cause was heard after the issue was joined.

Our decision to quash or make absolute the preliminary writ of prohibition depends upon the construction given S.C.S. Senate Bill No. 658. Mo. Legislative Service 1976, Vol. 2, Act 70. In this legislation the 78th General Assembly amended the statutes governing jurisdiction over criminal prosecutions within the City of St. Louis.

Section 479.100 RSMo 1969, which had given the court of criminal correction exclusive, original jurisdiction over misdemeanor causes, was repealed. Sections 482.230 and 543.010 were modified to confer concurrent, original jurisdiction over misdemeanor prosecutions upon the magistrate and circuit courts. The duties of the clerk of the court of criminal correction were extended to prosecutions in the magistrate court; and the clerk was given the duty, upon direction of the circuit court, to assign misdemeanor cases to divisions of the magistrate court. § 483.416 RSMo 1976. The legislation became effective on August 13, 1976.

Pursuant to this legislation, the Chief Judge of the Circuit Court of the City of St. Louis ordered the clerk of the court of criminal correction to transfer to the magistrate court all misdemeanor cases pending on August 13, 1976, including Relator’s. Relator thereupon moved the magistrate court to dismiss the action for want of jurisdiction. This motion was overruled and this proceeding in prohibition resulted.

Within constitutional limitations, the legislature has the power to transfer jurisdiction over pending cases. State ex rel. Dunham v. Nixon, 232 Mo. 98, 133 S.W. 336 (Banc 1910). The legislature, however did not specifically refer to pending cases when it transferred jurisdiction over misdemean- or cases in Senate Bill No. 658. Thus, we must determine whether the legislature intended cases pending on the effective date of the legislation as well as newly filed cases to be tried in the magistrate court.

By expanding the jurisdiction of the Magistrate Court of the City of St. Louis to include jurisdiction over misdemeanors, the legislature has evinced a purpose to establish greater uniformity in the criminal court system available throughout the state. Uniformity, however, is not the sole object of Senate Bill No. 658. The legislation is evidently designed to relieve an overcrowded criminal docket and to expedite the processes of criminal justice in the City of St. Louis by increasing the number of courts having jurisdiction over criminal cases. There are seven Magistrates in the City of St. Louis, and prior to the enaetment of the statute their jurisdiction was confined to civil cases.

In order to accomplish the latter purpose, the jurisdiction of the city’s magistrate court is expanded to include original jurisdiction over misdemeanor causes. § 482.230 RSMo 1976. But the clerk of the court of criminal correction retains his former duties and responsibilities for all misdemeanor cases even though such cases are tried in the magistrate court. § 483.416 RSMo 1976. In effect, the legislation treats the magistrate court as a special division of the court of criminal correction, designed to hear and determine misdemeanor cases. Cases are assigned to this “special division” by the clerk of the court of criminal correction. § 483.416 RSMo 1976. The nature of the system established by the legislation and the legislation’s purpose to relieve a presently overloaded criminal docket persuades us that the legislature intended pending misdemeanor prosecutions to be transferred to the magistrate court.

Relator argues, however, that the legislature’s intent to transfer jurisdiction over pending cases must be manifested by express statutory language. As authority, relator cites Mott Store Co. v. St. L. & S. F. R. Co., 173 Mo.App. 189, 158 S.W. 108 (1913), aff’d 254 Mo. 654, 163 S.W. 929 (Banc 1913). The Mott decision held that a statute expanding the territorial jurisdiction of the Springfield Court of Appeals did not effectuate a transfer of jurisdiction over appeals pending in the St. Louis Court of Appeals because the statute did not, by its terms, so provide. Prior changes in the territorial jurisdiction of the appellate courts had made express provision for pending cases; and, in the absence of such express provision, jurisdiction remained with the St. Louis Court of Appeals. The Mott decision did note that a statute containing prohibitory words or words excluding jurisdiction could deprive a court of jurisdiction even though jurisdiction was acquired previously. We believe that such is the effect of Senate Bill 658.

We believe the Senate Bill No. 658 manifests an intention to transfer pending cases from the court of criminal correction despite its failure to specifically refer to pending cases. The legislation clearly deprives the judges of the court of criminal correction of their power to hear and determine misdemeanor cases, vests original jurisdiction over misdemeanors in the magistrate court, and requires the clerk of the court of criminal correction to assign misdemeanor cases to the magistrate court as directed by the circuit court. Thus, the legislation establishes a system whereby misdemeanor cases are to be transferred to the magistrate court for hearing and determination. The legislature created no exceptions to this system for cases pending in the court of criminal correction which indicates that the legislation transfers all misdemeanor prosecutions.

Another indication that the legislature intended pending misdemeanor causes to be tried in the magistrate courts is the legislature’s modification of the duties of the prosecuting attorney found in Senate Bill No. 658. The repeal of Section 56.490 RSMo Supp.1975 ends the prosecuting attorney’s power to prosecute misdemeanors in the court of criminal correction. Instead, a new Section 56.490 provides that the prosecuting attorney of the St. Louis court of criminal correction shall prosecute all misdemeanors in the magistrate court. The apparent legislative intent that the prosecuting attorney is to prosecute all misdemeanor offenses would be thwarted if pending cases were tried in the court of criminal correction in which the prosecuting attorney is no longer authorized to prosecute.

We do not believe, as argued by the relator, that the court of criminal correction retains jurisdiction over pending misdemeanor prosecutions under Section 545.010 RSMo 1969 or Rule 21.01. The statute and rule provide that the first court in which prosecution is properly commenced acquires and retains jurisdiction over the case so long as the case is pending. Section 545.010, and Rule 21.01 codify a rule of priority applicable when courts have concurrent jurisdiction. See 20 Am.Jur.2d, Courts § 218 (1965). In civil cases, a rule of priority prevents multiple litigation by the same parties involving the same subject matter. In re Gaebler’s Estate, 248 S.W.2d 12, 15 (Mo.App.1952). The criminal rule of priority established by Section 545.010 and Rule 21.01 is similarly designed to prevent a defendant’s prosecution under the same charge in multiple courts. Such multiple prosecutions are not possible in the situation presented by this proceeding in prohibition because the court of criminal correction and the magistrate court do not have concurrent jurisdiction over misdemeanor cases. Senate Bill No. 658 effectuates a transfer of all misdemeanor causes to the magistrate court. Legislation which transfers jurisdiction creates an exception to Section 545.010 RSMo 1969 and Rule 21.01.

Relator’s misdemeanor prosecution was properly transferred to the magistrate court, and the preliminary writ of prohibition is quashed.

WEIER, P. J., and CLEMENS, J., concur.

      . Relator’s petition for writ of prohibition alleges that over four thousand misdemeanor cases were pending on August 13, 1976. Respondent in oral argument estimated that approximately 750 misdemeanor cases had already been processed by a city magistrate.

      . State-wide uniformity is also one of the purposes of the newly ratified amendments to Article V of the Missouri Constitution. When these amendments affecting the judicial department become effective on January 2, 1979, magistrate courts, courts of common pleas, and the St. Louis Court of Criminal Correction will become divisions of the circuit courts. C.C.S. Senate Joint Resolution No. 24, Mo. Legislative Service 1976, Yol. 1.


text:
    Garland Loy COOK, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 37158.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 19, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      Robert C. Babione, Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   DOWD, Judge.

The issue in this case concerns whether the trial court erred in denying appellant’s 27.26 motion to vacate judgment and sentence without an evidentiary hearing. We have concluded there was no error and accordingly affirm the judgment below.

Appellant Garland Cook was charged with murder in the second degree but was convicted by a jury of manslaughter and sentenced to 10 years imprisonment under the Second Offender Act. § 556.280, RSMo 1969. Appellant is presently serving this sentence. We affirmed this conviction on appeal. State v. Cook, 512 S.W.2d 907 (Mo.App.1974).

On April 18, 1975, appellant filed a motion styled “Motion Under Rule 27.26; Suit for Writ of Error Coram Nobis.” Therein he attacked the legality of a 1960 conviction for burglary and stealing. He was discharged from this conviction in 1966 after having served his sentence. Appellant’s motion stated that it was improper to use this prior conviction “to enhance punishment” for his subsequent conviction. Primarily he claimed that the 1960 conviction could not now stand because he was denied effective assistance of counsel at that time.

On April 22, 1975, the trial judge denied the motion stating that he considered the writ of error coram nobis to be a motion under Rule 27.26. The trial judge further stated, “the matters contained in movant’s motion regarding inadequacy of counsel are without foundation,” and ruled that no evi-dentiary hearing was necessary.

On appeal appellant no longer pursues the coram nobis theory but relies on Rule 27.26 instead. This change in theory very likely results from the fact that the trial judge equated a writ of coram nobis with a motion under Rule 27.26.

We believe that under the facts this motion should be treated as an application for writ of error coram nobis. Our Supreme Court has ruled that relief under Rule 27.26 “is limited to a prisoner in custody under sentence who claims a right to be released from the custody imposed by reason of that sentence.” Noble v. State, 485 S.W.2d 33, 35[1] (Mo.1972). The trial court had no jurisdiction to entertain a 27.26 motion in respect to a conviction for which movant was not then in custody. Davis v. State, 518 S.W.2d 467, 468[1] (Mo.App.1975); Howard v. State, 493 S.W.2d 14, 20[12] (Mo.App.1973).

A writ of coram nobis, in contrast to a motion under Rule 27.26, is available to attack a judgment of conviction after the sentence thereunder has been served, Peterson v. State, 476 S.W.2d 608, 610 (Mo.1972); Stoner v. State, 507 S.W.2d 80, 81[1] (Mo.App.1974). A court is to look at the facts alleged and relief sought rather than the name given to an action. State v. Carter, 399 S.W.2d 74, 76[1] (Mo.1966). We shall consider the allegations in the motion as an application for a writ of error coram nobis.

Coram nobis relief is extraordinary in nature, Powell v. State, 495 S.W.2d 633, 635[5] (Mo. banc 1973) and should not be granted except under compelling circumstances, to correct fundamental errors. Davis v. State, supra at 468.

Before the writ of coram nobis will issue, a movant must demonstrate two elements: (1) that some error of fact not apparent on the record was unknown to movant and could not through reasonable diligence have been discovered by him in time to have been presented to the court, Howard v. State, supra, at 20[13]; and (2) that he will receive some benefit from the relief sought. Powell v. State, 495 S.W.2d 633, 635-36 (Mo. banc 1973); McCormick v. State, 523 S.W.2d 854, 855 (Mo.App.1975).

Appellant did not allege either of these in his motion. Regarding the second requirement, we note that the ten year sentence for manslaughter he is now serving is within the permissible range of punishment for a first or second offender, RSMo 559.140. There is no reason to conclude that his 1973 sentence was “enhanced” by his 1960 conviction. “Since movant did not plead or demonstrate that he is presently suffering adversely by reason of the sentence from which he has now served [sic], the trial court was justified on that ground alone in denying the relief sought.” Umfress v. State, 512 S.W.2d 178, 179[1] (Mo.App.1974) (emphasis supplied).

Appellant did not fulfill the other requirement either. In his point relied on he claims his guilty plea in 1960 was involuntary because his counsel was ineffective. Appellant alleges that his counsel (1) failed to adequately prepare and investigate the defense, (2) did not inform appellant of the range of punishment for the offenses charged, and (3) employed coercion and duress to elicit a guilty plea from appellant. Nowhere does appellant allege that these facts were unknown to him at time of the trial and could not have become known through reasonable diligence.

The fourth point in support of appellant’s argument states that appellant was not represented by counsel at the time sentence was imposed for the prior felony conviction. This allegation does not appear in appellant’s motion for post conviction relief and he is precluded from raising it on appeal. Shubert v. State, 518 S.W.2d 326, 328[1] (Mo.App.1975).

The application for a writ of coram nobis was properly denied by the trial court because appellant’s motion fails to allege on its face the essential facts entitling him to relief. For the same reason, no evidentiary hearing is required. Hogshooter v. State, 514 S.W.2d 109, 113[1] (Mo.App.1974); Howard v. State, 493 S.W.2d 14[17] (Mo.App.1973).

The court is also influenced by the lack of timeliness of appellant’s motion. He waited 17 years after his plea of guilty to attack his conviction, after serving the entire sentence. As we said in a case where there was a 9½ year delay, “the fact that defendant waited so long to file a motion causes us to question the truth of his testimony. If he had been coerced by [his attorney] into pleading guilty against his will . he would have sought to redress that alleged wrong long before he did . . [W]e think the time lapse in filing a motion is a relevant factor to be considered in determining the merits.” Skaggs v. State, 476 S.W.2d 524, 528-29[7] (Mo.1972). See also Flood v. State, 476 S.W.2d 529, 534[4] (Mo.1972); Deckard v. State, 492 S.W.2d 400, 402-403 (Mo.App.1973).

The judgment is affirmed.

WEIER, P. J., and CLEMENS, J., concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Wendell LENT and Olin Pryor, Coadministrators of the Estate of Grant Lent, Appellants, v. Matilda Jane LENT, Respondent.
    No. 28022.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.

      Terry M. Evans, Erwin L. Milne, and Stockard, Andereck, Hauck, Pickett & Sharp, Trenton, for defendants-appellants.
    James S. Stubbs, Chillicothe, for plaintiff-respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from order granting new trial to plaintiff on ground the verdict for defendants was against the weight of the evidence. The question is whether plaintiff made a submissible case. Affirmed.

The grant of one new trial on the ground the verdict was against the weight of the evidence will not be disturbed on appeal where plaintiff makes a submissible case. § 510.330, V.A.M.S.; Rule 78.02, V.A. M.R.; Clark v. Quality Dairy Co., 400 S.W.2d 78, 82 (Mo.1966); Overbey v. Fodde, 420 S.W.2d 510, 511 (Mo.1967). The test of whether a plaintiff has met the burden of a submissible case, Markman v. Bi-State Transit System, 457 S.W.2d 769, 771 (Mo.1970), requires that evidence favorable to plaintiff be accepted as true and that defendant’s evidence be disregarded except where it aids plaintiff’s case. Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760, 763 (Mo.App.1974). See also Vaeth v. Gegg, 486 S.W.2d 625, 628-629 (Mo.1972); Helming v. Dulle, 441 S.W.2d 350, 352 (Mo.1969); Kinder v. Pursley, 488 S.W.2d 937, 939-940 (Mo.App.1972).

Plaintiff, as the surviving spouse of Charley L. Lent, deceased, pleaded and submitted her action for the wrongful death of her husband against the representatives of Grant Lent, deceased, under the doctrine res ipsa loquitur. The doctrine applies when the occurrence resulting in injury was such as does not ordinarily happen if the party in charge uses ordinary care; the instrumentality involved was under the management and control of the defendant; and the defendant possesses superior knowledge or means of information as to the cause of the occurrence. Adams v. Le Bow, 236 Mo.App. 899, 160 S.W.2d 826, 828 (1942); Lindsey v. Williams, 260 S.W.2d 472 (Mo.1953).

Appellants contend that plaintiff failed to make a case on the issue of Grant Lent’s negligence, and assert that their evidence that Grant Lent’s medical history of blackouts was the only evidence to explain the movements of their decedent’s vehicle.

Tested as indicated, appellants’ statement of the case demonstrates a submissible case under the doctrine res ipsa loquitur.

On May 29, 1973, at 11:00 o’clock a. m., Grant Lent was operating his 1969 Chevrolet pickup truck in an easterly direction on Missouri Route 170 in Livingston County, Missouri, at a speed of 25-30 miles per hour. Charley L. Lent was a passenger in Grant Lent’s pickup. The pickup truck left the eastbound lane of traffic, crossed the westbound lane, and collided with three reflector signs and the northwest corner of a bridge. Route 170 is twenty-one feet wide at this point with three-foot shoulders on each side. It is straight and level and was dry. There were sixty-nine feet of tire tracks on the north shoulder of the highway leading to the west end of the bridge. There were no skidmarks. Both Grant Lent and Charley L. Lent received injuries from which Grant Lent died on May 30, 1973, and Charley L. Lent died June 1,1973.

Loss of control or failure to control the movement of a motor vehicle so that it leaves the highway and causes injury permits an inference of negligence on the part of the driver; and so long as the plaintiff’s evidence does not show the cause of the casualty, or if the true cause is left in doubt, plaintiff is not deprived of the right to invoke the doctrine res ipsa loquitur. Collins v. Nelson, 410 S.W.2d 570, 573 (Mo.App.1965).

Plaintiff’s evidence tends to prove that while defendants’ decedent was in control of his pickup truck, driving along a straight, level, unobstructed highway, he lost control or failed to control his vehicle so that it left the highway and collided with a bridge. Such a prima facie case under the doctrine res ipsa loquitur supports an inference of negligence on the part of defendants’ decedent, and the case did not disappear on defendants’ evidence of their decedent’s blackouts offered in explanation of the casualty. Collins v. Nelson, supra. Note also the similarity of Lindsey v. Williams, supra, in application of the doctrine, where plaintiff was a passenger in an automobile owned and controlled by 'defendant when the automobile, proceeding on a straight downgrade roadway, swerved, left the road, crossed a ditch, and struck a tree. Bray v. St. Louis-San Francisco Ry. Co., 236 S.W.2d 758, 761 (Mo.App.1951), cited by appellants, has no application because it did not involve the grant of a new trial to plaintiff on the ground the verdict was against the weight of the evidence.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Raymond CROCKETT, a/k/a Ronald Bright, Appellant.
    No. 28136.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.

      Kenneth P. Seek, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury of robbery, first degree. § 560.120, RSMo 1969. Appellant charges errors going to the adequacy of the information, sufficiency of evidence and verdict-directing instruction, admission of evidence, constitution of the jury, and effective assistance of counsel. Affirmed.

The information charged:

“That at the County of Cass and State of Missouri, on or about the 30th day of August, 1974, one Raymond Crockett did then and there, willfully, unlawfully and feloniously, by means of a certain object resembling a chrome pistol or revolver the same then and there appearing to be a dangerous and deadly weapon, take, steal and carry away United States Currency, to wit: FOUR HUNDRED NINE DOLLARS AND NINETY THREE CENTS ($409.93), the personal property of David Shuetz, then and there in the lawful care and custody of Lewis 0. King and David L. Evans, by then and there putting the said Lewis 0. King and David L. Evans in fear of an immediate injury to their persons and then and there did feloniously rob, take, steal and carry away the said money from them, in the presence of and against the will of the said Lewis 0. King and David L. Evans with the felonious intent to permanently deprive the owner of the use thereof and to convert the same to his own use;

On August 30, 1974, Lewis Oliver King was employed by David Shuetz at the Aments Fina Service Station owned by Mr. Shuetz on Missouri Highway 7 in Garden City, Cass County, Missouri. He was working with fellow employee David Evans. Around 10:45 p. m., two black men, defendant Raymond Crockett and a companion (Ronnie Williams), drove into the station in a light blue, late model Maverick and asked for $2.00 worth of gas and an oil check. Defendant had been at the station about a half hour earlier when he was attended by David Evans. Mr. King checked the oil while his friend, Gary Taylor, held the hood which would not otherwise stay open. Mr. Evans was delivering the gas to the Maverick. After the Maverick had been serviced, defendant was at the candy machines inside the station, Williams was in the rest room, and Mr. King, Mr. Evans, and Mr. Taylor were in the station. Williams came from the rest room; defendant pulled out a small-caliber, nickel-plated, automatic pistol and pointed it at Mr. King. “He told us to give them all the money that we had. * * I was shocked at first * * * and then I pulled out all the change [about $10.00] that I had in my pocket and laid it on the counter and I opened up a drawer and took out the sales tax box and laid it up on the counter.” Mr. King also had $50.00 in his coverall pocket which he handed over prior to and in fear of a subsequently threatened search. During this time, Williams took $5.00 from Mr. Taylor, and defendant searched Mr. Taylor and Mr. Evans. Defendant took the “station wallet,” together with its contents, from Mr. Evans. “ * ⅝ he told everybody to keep cool and he put Gary’s wallet up on the counter and then he started to leave and he seen the money [$50.00] that I tried to put under the [credit card] machine and he come back and got it. Then he said we probably all better come outside the station while they left * ⅜.” While defendant searched Gary and David, he told Williams to go start the car, which he did. “They left in as big a hurry as they could.” Mr. King ran back into the station and called the sheriff’s office at Harrison-ville. He reported the robbery, and described defendant as a black man wearing a brown flowered-type shirt, black pants and a black fishnet-type hat which he identified as State’s Exhibit 1, and Williams as a black man wearing a light tan shirt and light blue pants. He also reported that Williams was driving a light blue Maverick northwest on Highway 7 toward its intersection with U. S. Highway 71, eight or nine miles northwest of Garden City.

Prior to the events described by Mr. King, Terri L. Bass had been in the station and had given David Evans a check in exchange for $3.00 in cash.

O. L. Collins, lieutenant in the Cass County sheriff’s office, was in an unmarked vehicle with Corporal Gordon of the Missouri State Highway Patrol, engaged in burglary surveillance at a location “four or five miles south of 7 and 71 and two miles off of 71” when he received a radio message concerning the robbery from his dispatcher. They proceeded north to the junction of 7 and 71 where they observed Detective Hragyil, also in an unmarked vehicle. They advised Detective Hragyil that if he would stay at his location they would proceed toward Garden City looking for “a late model Maverick, light blue in color, occupied by two colored males.” They observed such vehicle and occupants about 300 yards east of Detective Hragyil’s position and reported the observation over their radio. They turned around, proceeded to the intersection of 7 and 71, and then proceeded north pursuant to radio transmission by Detective Hragyil. They stopped behind Detective Hragyil who was stopped behind the Maverick. Defendant was occupying the passenger side of the Maverick. Lieutenant Collins looked into the car to tell the driver (Williams) to get out, at which time he observed a red shop towel containing a quantity of change and a $5.00 bill. Both occupants were arrested, the towel and bill were seized, and a search of defendant revealed $389.00 in currency and a $3.00 check, State’s Exhibit 2, dated August 30,1974, drawn on the Garden City Bank by Terri Lee Bass in favor of Aments. State’s Exhibit 1, defendant’s hat, was removed from his head. Defendant gave his name as Raymond Crockett; he was carrying an application for a Kansas driver’s license in his real name, Ronald Bright. The “station wallet” and robbery weapon were never found.

Detective Joe Hragyil of the Cass County sheriff’s office received word of the robbery by “radio transmission from our dispatcher that he got a phone call from the filling station attendants in Garden City that they had just been held up.” He was sitting in his vehicle westbound on 7 facing U.S. 71 northbound. He observed the Maverick going toward U.S. 71 after an alert from Lieutenant Collins and Corporal Gordon. He pursued the car northbound on U.S. 71 at speeds of 80 to 85 miles per hour for a mile or mile and a quarter, after which he brought the vehicle to a stop. Defendant was seated on the passenger side of the Maverick wearing a knit hat, Exhibit 1, black trousers, flowered kind of slick material shirt, and high-heeled shoes. He arrested both occupants.

Gary Taylor saw defendant when he came to the station the first time. He was afoot, asked for gas, and David Evans gave him a jug of gas. He saw defendant again when he returned about fifteen minutes later in a late model, light blue Maverick accompanied by Williams. In response to defendant’s request, Lewis King checked the oil while he supported the hood and Mr. Evans serviced the car with gas. As he went into the station, he observed a piece of yellow paper covering the rear license plate. Mr. Taylor corroborated Mr. King in the details of the robbery, including the use of a small caliber gun. He was afraid during the robbery.

David Evans corroborated Mr. King with respect to their employment at Aments Fina Station, the check taken from Terri Bass, filling defendant’s request for a jug of gasoline on his first visit to the station, servicing the Maverick on defendant’s second visit to the station, and the details of the robbery, including use of a gun by defendant. David Shuetz was the owner of the $300 that Mr. Evans laid on the counter at defendant’s direction.

John Gordon of the Missouri State Highway Patrol corroborated the events of August 30, 1974, as recited by Lieutenant Collins.

Defendant offered no evidence, and the case was submitted by instructions, including No. 5:

“If you find and believe from the evidence beyond a reasonable doubt:
“First, that on or about August 30, 1974, in the County of Cass, State of Missouri, Lewis King and David Evans had possession of U.S. Currency in the approximate amount of Four Hundred Dollars, and
“Second, that at that time and place the defendant took the property from Lewis King and David Evans against their wills by causing them to fear immediate injury to their persons, and
“Third, that the defendant took the property with the intent to permanently deprive Lewis King and David Evans of the property and to convert it or any part of it to the use of the defendant and another, then you will find the defendant guilty of robbery in the first degree.
“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.
“If you do find the defendant guilty of robbery in the first degree, you will fix his punishment at imprisonment by the Department of Corrections for a term fixed by you, but not less than five years nor more than life imprisonment. (MAI-CR No. 7.60).”

The jury found the defendant “guilty of Robbery in the First Degree as submitted in Instruction No. 5.”

Appellant’s complaint against the information (Point IV) is that it is susceptible to interpretation that appellant was being charged with robbery, first degree, by means of a dangerous and deadly weapon under Section 560.135, RSMo 1969, and he had put substantial reliance in his defense on the State’s inability to produce a weapon and the inability of witnesses to say whether it was loaded and to describe it in detail. Citing State v. Scarlett, 291 S.W.2d 138 (Mo.1956), involving a charge of attempt to commit robbery, first degree, under Section 560.120 as opposed to robbery, first degree, by means of a dangerous and deadly weapon, he asserts that the information was defective and unsatisfactory insofar as informing him of essential matters necessary to preparation of his defense in denial of his rights under Mo.Const. Art. I, § 18(a), and U.S. Const. Amendments V and XIV.

The case against defendant was submitted by Instruction 5 as one of robbery, first degree, in causing the victims to fear immediate injury to their persons; and the jury found defendant guilty of robbery, first degree, as submitted by Instruction 5.

Section 560.120 provides that “Every person * * * who shall be convicted of feloniously taking the property of another from the person of his * * * servant, clerk or agent, in charge thereof, and against the will of such * * * by putting him * * * in fear of some immediate injury to his or her person, shall be adjudged guilty of robbery in the first degree.”

It is sufficient to charge robbery, first degree, in the language of the statute, and it is not necessary to allege the acts of defendant which resulted in the victims being placed in fear of an immediate injury to their persons. State v. Reed, 412 S.W.2d 187 (Mo.1967). Consideration of the information against defendant with Section 560.-120 shows that he was charged in the language of the statute with the offense of robbery, first degree, by causing his victims to fear immediate injury to their persons. Beyond the requirements of the statute, the information also advised defendant of his acts which resulted in his victims’ fears. As in State v. Spencer, 486 S.W.2d 433, 435 (Mo.1972), “The information did charge [or suggest] robbery in the first degree with a dangerous and deadly weapon, but the state was not required to submit on such charge, inasmuch as the information was sufficient to support a charge of first degree robbery, without reference to the use of a deadly weapon.” See also State v. Hunter, 499 S.W.2d 787 (Mo.1973).

Accordingly, defendant was not so inadequately advised of the crime with which he was charged as to prevent him from adequately preparing his defense. Too, the record shows that defendant established that no weapon was ever found, and that he cross-examined witnesses respecting their descriptions of the weapon and its condition.

Appellant’s charge against the sufficiency of evidence (Point II) is that David Shuetz did not testify, and “[I]t is * * * stated that Mr. Shuetz was the owner of the money * * *. It is nowhere stated whether * * * Mr. Shuetz was the owner of the filling station * * *, whether * * * Mr. Shuetz was the employer of the witnesses Lewis King and David Evans, whether [they] * * * were the agents and servants of Mr. Shuetz, or whether * * * Mr. Shuetz was the owner of any of the other money which was taken during the robbery * * *.” He asserts there was also a failure of evidence that the possession of King and Evans was lawful and a failure to show the elements of fear, and that the taking was against the will of the owner or his agents.

Reference to the statement contains evidence that witnesses King and Evans were servants in the employ of David Shuetz at the Aments Fina Station robbed by defendant. It also shows evidence that David Shuetz was the owner of the funds taken from King and Evans. As a consequence, the evidence was sufficient to establish robbery of a lawful agent and, hence, robbery of their principal. Hodges v. State, 462 S.W.2d 786 (Mo.1971); State v. Wilwording, 394 S.W.2d 383 (Mo.1965).

The statement also contains evidence that Lewis King was afraid because defendant had a gun; both Mr. King and Mr. Evans handed money in their possession to defendant under the point of a weapon held by defendant, and the gun-point taking shows that the taking was a taking against the victims’ will. State v. Harris, 452 S.W.2d 577 (Mo.1970).

The evidence shows a case of robbery, first degree, by means of a dangerous and deadly weapon, which includes as a lesser included offense, that of robbery, first degree, by causing the victims to fear immediate injury. State v. Hunter, supra.

Appellant’s complaint against the admission of evidence is that the court erred in its failure to suppress State’s Exhibits 1 and 2 and the identification of defendant by police officers (Point I); and that the court erred in its failure to grant a new trial for the reason that, at trial, constant reference to a pistol with which defendant was allegedly armed caused him to be prejudiced and inflamed the jury against him (Point V).

In Point I appellant asserts that the court should have sustained a motion to suppress Exhibits 1 and 2 and the officers’ identifications “for the reason that said items of physical evidence and identifications were obtained as a result of an illegal arrest and an illegal search and in violation of” his constitutional rights.

It is not necessary to consider the application, if any, of appellant’s familiar citations, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Wilson, 479 F.2d 936 (7th Cir. 1973), because Point I has not been preserved for review. The record is bereft of any pretrial motion to suppress evidence. State v. Madison, 459 S.W.2d 291 (Mo.1970); Rule 33.03(a)(1), V.A.M.R.

In any event, the chain of circumstances which commenced with the telephone call by victim Lewis Oliver King to the sheriff’s office in Harrisonville, in which the robbery was reported, together with descriptions of the robbers and their vehicle, and their direction of flight, continuing through receipt of radio traffic to the same effect by Lieutenant Collins and Detective Hragyil from their dispatcher, provided probable cause for the resulting stop and arrest of defendant and his companion in the described car a short time after the initial report was made. Aguilar v. Texas, supra; State v. Dodson, 491 S.W.2d 334 (Mo. banc 1973); State v. Evans, 439 S.W.2d 170 (Mo.1969).

With respect to Point V, reference to the weapon held on the victims by defendant in the course of the robbery was competent and relevant evidence on the question whether the victims were caused to fear immediate injury to their persons as submitted in Instruction 5. Such evidence was, no doubt, prejudicial to defendant; however, if the evidence was competent and relevant, it was not received in error because it was also prejudicial. State v. King, 334 S.W.2d 34, 39 (Mo.1960).

Appellant’s complaint against Instruction 5 (Point III) is that it did not require the jury to find all the elements of the offense charged as a prerequisite to finding defendant guilty. He argues the instruction requires the jury to find that Lewis King and David Evans had possession of currency but does not require the jury to find that they had a possessory right to the currency superior to that of appellant.

Instruction 5 is MAI-CR 7.60, and was required for submission of robbery, first degree, by causing the victims to fear immediate injury to their persons. Rule 20.02(c), V.A.M.R.; State v. Yeokum, 516 S.W.2d 535, 537 (Mo.App.1974). Absence of an honest claim to the property by the victims is not a necessary additional element of the offense submitted by MAI-CR 7.60; and if the defendant claims an interest in the property superior to the victims’ possession and has evidence to support that theory, it is additionally submitted as a “special negative defense.” MAI-CR 7.60, Note on Use 6. No such claim was present in this case.

Appellant’s complaint against the jury is that he was prejudiced “by the absence of Negroes” on the jury (Point VII); and that he was prejudiced “due to the absence of an impartial jury” (Point VIII).

In Point VII appellant asserts that despite the trial judge’s assurances that no systematic exclusion of jurors occurred in Bates County and that jurors were drawn from general election lists, the inability of the judge to supply figures on the black population of Bates County and the frequency with which black jurors served in Bates County should be allowed to stand in lieu of affirmative evidence of systematic exclusion of Negroes from his jury panel.

“It is not the law that the appellant was absolutely entitled to have ne-groes on the jury that tried him, or even on the panel from which that jury was drawn. It may happen that no negroes (or members of any other particular class of our citizens) will be on the regular panel for a given term of court, or on the special venire for a particular case. If that occur in due course and good faith because of the ratio of white to negro population, or because of actual disqualifications, pure chance or the like, it is within the law; but if the defendant be deprived by design of the chance of having negroes on the jury which is to try him, the Federal Constitution may be invoked. * * that no negroes were drawn in the particular case is not conclusive against the State; and ⅜ ⅞ * that negroes might not have been drawn in due course is not conclusive against the defendant.” State v. Logan, 341 Mo. 1164, 111 S.W.2d 110, 114[4]. See also State v. Mooring, 445 S.W.2d 303, 305 (Mo.1969); State v. Parker, 462 S.W.2d 737 (Mo.1971). The burden of showing systematic exclusion is on defendant and it does not shift to the State until defendant makes a prima facie case of illegal exclusion. State v. Mooring, supra, 445 S.W.2d l.c. 804[1]. See also Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); United States v. Jones, 452 F.2d 884 (8th Cir. 1971). Neither is it the duty of the court to compile statistics pertaining to the percentage of Negroes eligible and qualified for jury service. State v. Ross, 530 S.W.2d 457, 459-460 (Mo.App.1975).

In support of Point VIII, appellant asserts that Bates County is rural, predominantly white, with Negroes “considered something of a rarity,” and that “without further data, that it is highly suspicious that only one Negro criminal defendant enjoyed an acquittal in a period of two years.” He says also that his companion’s sentence of five years in Johnson County, his own verdict of thirty years’ punishment, and the judge’s reduction to a fifteen-year sentence indicate “that the Bates County jury had been unduly harsh with appellant.”

Appellant’s point is not supported by authority, and his charge rests entirely on the length of imprisonment. The punishment was within statutory limits and is not to be deemed the result of prejudice or partiality because it was assessed at or near the maximum provided for the offense. State v. Kirkpatrick, 428 S.W.2d 513, 517 (Mo.1968); State v. Arnett, 338 Mo. 907, 92 S.W.2d 897 (1936).

Appellant’s complaint of ineffective assistance of counsel (Point VI) is made by trial and appellate counsel against himself; and there is no relief due appellant on this ground because the question was not presented to the trial court in the motion for new trial, and the record does not contain evidence upon which to make such a review. Accordingly, review of the charge is declined until such time as an evidentiary hearing may have been accorded on that issue under Rule 27.26, V.A.M.R. State v. Phillips, 460 S.W.2d 567, 569 (Mo.1970). It should be noted, however, that counsel’s hindsight concern for failure to persuade his client in this case to plead guilty in exchange for a recommendation of ten years’ imprisonment has been rejected, Cook v. State, 511 S.W.2d 819 (Mo.1974); and his lack of previous experience does not alone demonstrate ineffectiveness of counsel, State v. Lang, 491 S.W.2d 12 (Mo.App.1973).

Judgment affirmed.

All concur.


author: DIXON, Presiding Judge.

text:
    SOUTHWEST FOREST INDUSTRIES, INC., Plaintiff-Respondent, v. LOEHR EMPLOYMENT SERVICE OF KANSAS CITY, INC., Defendant-Appellant.
    No. KCD 28141.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.

      Arnold L. Kort, Kansas City, for defendant-appellant.
    Charles L. House, C. W. Crumpecker, Jr., Lawrence M. Maher, Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

This appeal challenges the order of the circuit court dismissing defendant’s appeal of a magistrate court judgment for failure to answer interrogatories filed in the circuit court by the plaintiff.

The procedural background is both convoluted and bizarre but must be explicated to clarify the issues to be resolved.

Plaintiff recovered a judgment in the Magistrate Court for $720 on June 19,1973. Defendant filed an appeal. After the appeal was lodged in the circuit court, and on March 28, 1975, plaintiff filed interrogatories. These interrogatories were apparently filed in anticipation of a trial setting of April 21. April 2nd the trial court sustained defendant’s motion for a continuance and reset the trial for May 27, 1975. On April 15, defendant objected to the interrogatories on the ground that they were not authorized in a magistrate court appeal.

From this point, the record, which is comprised only of the pleadings and orders, becomes very confused.

On May 8th, defendant moved for a continuance from the May 27th setting. This was denied May 9th, and at the same time, the objections to interrogatories were overruled. Defendant does not contend it was not notified of these rulings. That it was is demonstrated by the fact that on May 14th, it filed again for a continuance of the trial setting and for additional time to answer interrogatories. The trial court sustained both motions continuing the trial setting indefinitely and extending the time for answer to interrogatories to May 28th.

The plaintiff, meanwhile, apparently unaware of the court’s order extending the time for answer to interrogatories to May 28, filed a motion for default on May 29, which alleged a default in answers premised on the answers being due May 16. Defendant does not claim it was not served with this motion.

Nothing further is shown in the record until June 10, when the court dismissed the defendant’s appeal for failure to answer the interrogatories. Defendant received notice of this judgment, as well as notice of the trial court’s order denying defendant’s motion to set aside default, which was entered July 3, 1975.

Defendant asserts in two separate points error in the trial court’s order of dismissal.

The two points may be amalgamated under a single discussion. Defendant first complains of the trial court’s entry of default and second of the refusal to set it aside both on the ground that defendant had no notice of the extension of time to it for answering the interrogatories.

In both instances, defendant relies on Rule 74.78. Defendant insists that under the language of this rule, the trial court’s “order” extending the time for filing answers to interrogatories was such an order as is contemplated by Rule 74.78. A literal reading of the rule might support that argument, the rule being:

“Upon the entry of an order or judgment, the clerk shall serve a notice of the entry by mail in the manner provided in Rule 43.01 upon every party affected thereby who is not in default for failure to appear and who was not present in court in person or by attorney at the time of the entry of such order of judgment. If such notice is not given, said order or judgment shall be set aside for good cause shown upon written motion filed within 6 months from the entry of the order or judgment.” (Emphasis supplied.)

However, as the plaintiff notes, there is a special rule relating to extensions of time and notice of such extensions. Rule 44.-01(b) is as follows:

“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon notice and motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 52.12, 72.02, 73.01, 75.01, 78.02, 81.04 and 81.07 or for commencing civil action.”

A judgment is the final determination of the rights of the parties in an action. Rule 74.01 and § 511.020 RSMo 1969. Every direction of the court or a judge, made or entered in writing and not included in a judgment, is denominated an order, and an application for an order is a motion. Rule 74.02 and § 506.050 RSMo 1969.

Certainly the language of Rule 74.78 evidences a requirement of notice to every party affected whenever a judge enters a direction in writing. On the surface, Rule 44.01(b) seems to conflict with Rule 74.78. Rule 44.01(b) makes notice discretionary while Rule 74.78 mandates that notice be given. Both rules apply to “orders” of court.

As a primary rule of construction, courts generally attempt to reconcile and harmonize statutes or rules that appear to be in conflict if it is reasonably possible to do so. Statutes or rules relating to the same subject matter, as do Rules 44.01(b) and 74.78, must be read together. Provisions of one having special application to a particular subject are usually deemed a qualification of another statute or rule general in its terms. Flarsheim v. Twenty Five Thirty Two Broadway Corp., 432 S.W.2d 245 (Mo.1968); Brooks v. Cooksey, 427 S.W.2d 498 (Mo.1968).

Clearly, Rule 74.78 applies to all orders and judgments in general and is the general rule while Rule 44.01(b) applies to orders extending time and is the specific rule. The two rules could be harmonized by making orders for the extension of time under Rule 44.01(b) an exception to the procedure outlined in Rule 74.78.

Defendant relies on Brown v. Brown, 444 S.W.2d 1 (Mo.App.1969) and Reed v. Mirts, 437 S.W.2d 719 (Mo.App.1969) for the proposition that the court was required to give notice of its order extending time to file answers to interrogatories. Both cases involve failure of the court to give notice of the entry of judgments. The cases are not applicable to the instant case.

Defendant, in the brief, seeks to excuse timely answer to the interrogatories because no notice was given it that the time for filing answers had been extended to May 28. It is difficult to understand how defendant was prejudiced by its lack of knowledge of an extension of time since in the absence of such knowledge defendant must have assumed that answers would be due May 16.

The defendant does not deny notice that the motion to dismiss was pending. Ordinary diligence would have required inquiry by it to determine the disposition of its request for an extension before the 10th of June. Having failed to exercise ordinary diligence, defendant cannot complain of any prejudice. It would be a mockery to convert the indulgence of the trial court in granting the extension to a weapon by which the defendant could avoid the consequences of its own delay.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Carl E. RULE, aka Gene Miller, Defendant-Appellant.
    No. KCD 28168.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Martin Anderson, David F. Williams, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Defendant appeals from a sentence of forty years for first degree robbery by means of a dangerous and deadly weapon. The sentence was jury imposed. The defendant appeals from the judgment of conviction following an unavailing motion for new trial.

Defendant raises two points, a claim that evidence of other offenses was improperly admitted and that the trial court erred in not reducing the jury-imposed sentence.

The sufficiency of the evidence is not questioned, and a very short recital of the background is made possible because the detailed facts underlying the conviction are recited in State v. Powell, 542 S.W.2d 588 (Mo.App.1976).

The events briefly stated consisted of two robberies, one of an A & P store and the other of a pharmacy. This particular defendant is charged in the pharmacy holdup.

The facts as disclosed by the evidence in this case, as well as in the Powell case cited above, show that the robberies were nearly simultaneous and that the parties utilized the same vehicle in making their escape from the scene.

Dealing first with defendant’s contention that the admission of evidence of the A & P robbery in the charge filed against him in connection with the pharmacy robbery constituted an admission of evidence of another offense. As is apparent from the record, the evidence of the A & P robbery does not show another offense committed by this defendant but shows the joint nature of the two offenses because of the simultaneous acts of robbery and the joint escape. It would have been impossible for the State to extricate the evidence of one robbery from the other. This is particularly true in view of the fact that the identification and capture of the four persons engaged in the robbery resulted from the piecing together of bits of information furnished by victims of each of the robberies as is indicated in the statement of facts in Powell and by the record in this case. What was said in Powell is equally applicable here:

“The whole of the conduct of these four men certainly tends to show that they had a common design or scheme to commit the simultaneous robberies, and then escape with the loot . . . .”

Powell relied on State v. Parr, 296 Mo. 406, 246 S.W. 903, 905 (1922):

“Where, . . . two crimes are committed under such circumstances as to constitute one continuous transaction in the accomplishment of a common design, and the facts are so interrelated that the crimes are concurrent, proof of one cannot be made without a showing of the facts tending to establish the other.”

That principle of permitting the State to show inextricably interwoven facts showing two offenses controls this ease also.

The trial court did not err in failing to exclude evidence of the concurrently executed robbery of the A & P because that evidence was directly relevant and necessary as proof of the identity of the defendant and of the circumstances of the offense.

On the second issue raised by the defendant, that of the trial court’s refusal to reduce the sentence under Rule 27.04, it would be sufficient to say that the motion for new trial failed to raise the issue of the reduction of sentence. It is clear that in a jury-imposed sentence situation, the defendant should raise the issue in his motion for a new trial. State v. Watson, 400 S.W.2d 129, 132 (Mo.1966). But, likewise, this court notes that a jury-imposed sentence of 58 years in Powell was reduced to 40 by a different circuit judge, and in all of the circumstances of this case, it cannot be said that the trial court abused its discretion in refusing to reduce the punishment. State v. Mude, 448 S.W.2d 879 (Mo.1970), cert. denied, 398 U.S. 938, 90 S.Ct. 1842, 26 L.Ed.2d 271 (1970). This court will not interfere with a sentence imposed by a jury absent a showing that passion and prejudice of the jury in its sentencing function so clearly appears from the record that the trial court abused its discretion in declining to reduce punishment. State v. Laster, 365 Mo. 1076, 293 S.W.2d 300 (Banc 1956), cert. denied, 352 U.S. 936, 77 S.Ct. 237, 1 L.Ed.2d 167 (1956).

Judgment affirmed.

All concur.