text:
    Pete LOWERY, Jr., Appellant, v. James R. SPRADLING, Respondent.
    No. 38241.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 19, 1977.

      Jenny, Cole & Eckelkamp, William W. Eckelkamp, Union, for appellant.
    Walter A. Murray, Jr., Franklin County Asst. Pros. Atty., Union, John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
   DOWD, Judge.

Plaintiff appeals from an order of the Circuit Court of Franklin County denying his petition to set aside a revocation of his driver’s license for refusal to submit to a breathalyer test under § 564.444 RSMo.

On March 23,1976 plaintiff-appellant, Peter Lowery, Jr., was arrested for driving while intoxicated in Union, Missouri. A police officer of the City of Union Police Department witnessed the appellant crossing over the center-line on Highway 47. After stopping the vehicle, the officer suspected the appellant was intoxicated. He requested that the appellant take the breathalyzer test. Appellant apparently did not respond and was subsequently transported to the Union Police Station.

Upon arrival at the police station, the officer again requested the appellant take the breathalyzer test. The officer informed him of his right to refuse the test and the fact that if he did, his license would be revoked for one year.

The appellant did not consent, but requested an opportunity to call his employer, Dr. Sharon Woodruff. Due to apparent handicaps, appellant could not read nor write and at times had difficulty understanding conversations. He relied heavily on the advice of Dr. Woodruff.

The officer allowed the phone call and in the process spoke with Dr. Woodruff. The appellant was in the police station two minutes when the call was made to Dr. Wood-ruff. The officer explained the breathalyzer procedure and the consequences of a refusal to Dr. Woodruff. Dr. Woodruff informed the officer that she would come to the police station shortly and would convince the appellant to take the test. The police officer did not inform Dr. Woodruff or the appellant that he was unwilling to wait for Dr. Woodruff to arrive. In fact, both the appellant and Dr. Woodruff were under the impression that Officer Jones was willing to wait for her arrival. The evidence indicates that Dr. Woodruff was 8 to 10 blocks from the police station. The trial judge observed that the distance could be walked in 10 minutes.

After the phone conversation, Officer Jones asked the appellant if he was going to take the test. Officer Jones testified that the appellant stated he was not going to take the test if she (Dr. Woodruff) was not present. However, the officer testified that he could not recall the exact words of the appellant.

The appellant testified that he was willing to take the test and informed the officer accordingly, after the officer acquiesced to the presence of Dr. Woodruff.

The officer proceeded to fill out the arrest forms in the process of waiting for Dr. Woodruff to arrive. It took one and one-half minutes to fill out the arrest report. In a period of not more than three minutes, the officer apparently changed his mind about waiting for Dr. Woodruff, and treated appellant’s response as a refusal.

Officer Jones proceeded to lock-up the appellant and file the necessary forms in connection with his apparent refusal to take the test. Dr. Woodruff arrived approximately IV2 minutes after the appellant was locked up. Officer Jones informed her of the appellant’s refusal, and that he was unable to administer the test in view of being called out of the station on a police call. Dr. Woodruff expressed her dissatisfaction with the change of mind in the officer in not allowing the appellant to take the test. Dr. Woodruff testified:

“. . And at that time I saw the police officer in uniform come forward and I asked him how — where Mr. Lowery was and he said he had locked him up. And I said, ‘After you knew I was coming and he would take the test when I arrived you’ve already locked him up?’ ‘Yes,’ he said. And I asked him, ‘Did he take the test?’ And he said, ‘No.’ I said, ‘Will you let him take the test, now?’ He says, T don’t have time to fool with that.’ And then, approximately a minute or so later, a call came in for — as I recall, battery and assault.”

The appellant spent the night in the holdover and was released the following morning.

In April of 1976 the Director of Revenue informed the appellant that his driver’s license would be revoked pursuant to § 564.-444 RSMo effective April 27, 1976. Appellant filed his petition for review in the Magistrate Court of Franklin County in accordance with § 564.444(2) RSMo. The court denied his motion to set aside the revocation, but did stay the revocation until the Circuit Court of Franklin County could hear the appeal.

The de novo hearing before the Circuit Court of Franklin County took place on June 2, 1976. After considering all the testimony, the court concluded that the appellant did in fact refuse to take the breathalyzer test and also denied his motion to set aside the revocation. This appeal followed.

The issues raised by the appellant are basically threefold: (1) whether the appellant’s statement that he was not going to take it (the test) if she (Dr. Woodruff) was not present, constitutes a refusal under § 564.444 RSMo so as to mandate revocation of his driver’s license, (2) did appellant have a right to the presence of Dr. Woodruff at the breathalyzer test, and (3) whether his refusal was cured by his subsequent acquiescence.

The first issue raised by the appellant is whether his statement constituted a refusal under § 564.444. The appellant contends a refusal must be express and unequivocal, and therefore his conditional consent is not tantamount to a refusal. The issue of what constitutes a “refusal” has been the subject of substantial litigation. See Stenzel v. State Dept. of Revenue, 536 S.W.2d 163 (Mo.App.1976); Dain v. Spradling, 534 S.W.2d 813 (Mo.App.1976); Gooch v. Spradling, 523 S.W.2d 861 (Mo.App.1975); Hester v. Spradling, 508 S.W.2d 194 (Mo.App.1974); Bolling v. Schaffner, 488 S.W.2d 212 (Mo.App.1972); Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.1969).

In Spradling v. Deimeke, 528 S.W.2d 759 (Mo.1975), our Supreme Court considered what constitutes a “refusal” so as to warrant the revocation of a driver’s license pursuant to § 564.444 RSMo. The court stated:

“There is no mysterious meaning to the word ‘refusal’. In the context of the implied consent law, it simply means that an arrestee, after having been requested to take the breathalyzer test, declines to do so of his own volition. Whether the declination is accomplished by verbally saying T refuse’, or by remaining silent and just not breathing or blowing into the machine, or by vocalizing some sort of qualified or conditional consent or refusal, does not make any difference. The volitional failure to do what is necessary in order that the test can be performed is a refusal.” Spradling v. Deimeke, 528 S.W.2d at 766[13]. (Emphasis added).

It is true that a conditional consent is tantamount to a refusal. Spradling v. Deimeke (Supra). However, the peculiar facts of this case lead us to conclude that when viewed in light of the words and conduct of the police officer, the appellant’s response was a consent.

Before discussing the reasoning on which this conclusion is based, it is important to point out that the factual pattern of this case does not fit among other decisions. This case involves a police officer who at one point acquiesced in allowing the presence of a person to witness the test, and a short time later changed his mind in treating the appellant’s response as a refusal. We believe that the arbitrary nature of the police officer’s conduct should not jeopardize the appellant’s rights.

The testimony reflected the fact that the officer spoke with Dr. Woodruff and knew she was within a short distance of the police station. The trial judge commented that Dr. Woodruff was within ten minutes of the police station, even at walking distance. In view of this short distance, it was reasonable for the officer to allow the doctor to be present at the test, especially when the testing apparatus would not be operative for 10-15 minutes.

The appellant testified that after the phone conversation with Dr. Woodruff, the police officer stated, “Well, we’ll fill out the papers and she ought to be here by then.” The officer testified that he may have made this statement. The inference from this testimony is that the officer was willing to wait for Dr. Woodruff to arrive before he would administer the test to the appellant. To this extent, the police officer did not treat the appellant’s response as a refusal, but rather a bona fide consent. In fact, the test could not have been administered for another 10-15 minutes.

His change of mind took the appellant and Dr. Woodruff by surprise. Both were under the impression that Officer Jones was willing to wait for the doctor to arrive. It is concededly difficult to know how to respond if police officials treat the same statement as both a refusal and a consent.

Further testimony proffered by the police officer indicated that he would have allowed the appellant to take the test if Dr. Woodruff had arrived while he was filling out the arrest forms:

“Q. (By appellant’s counsel): If she had gotten there before you had the papers finished would you have allowed him to take the test?
“A. (By the arresting officer): Taking all the circumstances available I would have attempted it but I doubt if I would have been able to complete the test. We had a call. I had already spent a certain amount of time with the gentleman.”

When Dr. Woodruff arrived one and one-half minutes after completing the arrest forms, the officer was unwilling.

In view of the fact that the test was not administered after the officer had demonstrated a willingness to wait for Dr. Wood-ruff, we hold that the appellant’s response did not constitute a refusal. It would be manifestly unfair to revoke the appellant’s driver’s license after he was led to believe that he had complied with the law. Clearly, the police officer gave the impression that the appellant had consented.

It is important to note we are not holding that an arrestee has a right to have a lawyer or other person present at the breathalyzer test. It is well settled that an arrestee has no such right. The only time an arrestee has the right to the presence of his lawyer at the administration of the breathalyzer test is when his lawyer appears before or during the administration of the test. Spradling v. Deimeke, supra. Furthermore, it is well settled that an arrestee does not have a right, constitutional or otherwise, to condition his consent on the presence of a lawyer. Spradling v. Deimeke, supra. However, when a police officer allows a person to be present at the administration of the test, and in doing so treats the arrestee’s response as a consent, his subsequent change of mind for arbitrary reasons does not vitiate the consent.

Both Spradling v. Deimeke, supra, and Duncan v. Safety Responsibility Unit, 550 S.W.2d 619 (Mo.App.1977), consider the question of what constitutes a refusal to take the breathalyzer test. In both cases, the respective courts held in essence that anything short of an unqualified consent is a refusal. However, these cases can be distinguished on the basis of the police officers’ conduct. In both cases, the arresting officers treated the arrestees’ responses as refusals from the initial statement. The police officers did not give any impression that the arrestees had consented, or led them to believe that they were willing to administer the test under any circumstances.

In light of the above discussion, it is unnecessary to consider the other issues raised by the appellant. Applying the standards of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976), we believe the order of the Circuit Court is not supported by substantial evidence and is against the weight of the evidence.

Judgment reversed.

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

      . We believe the trial judge asked the police officer pertinent questions in connection with the availability of the test and whether the appellant had in fact refused to take the test. The questioning by the trial judge is as follows:
      “THE COURT: How long does it [breathalyzer apparatus] have to warm up before you can give the test?
      “THE WITNESS: Twenty minutes — you have to observe the person for twenty minutes. It has to be to a certain degree. It’s got to be either plus or minus fifty degrees hot. And then you have to observe the person that you’re giving the test to for twenty minutes to make sure that they don’t take anything by mouth. They can’t smoke; they can’t chew anything at all. You have to make sure that they don’t take anything by mouth.
      “THE COURT: Did you observe and have Mr. Lowery in your custody for twenty minutes?
      “THE WITNESS: No, sir. I had him in my custody for ten minutes and in my opinion he refused the test within that ten minutes. So there was no sense—
      “THE COURT: You couldn’t have given him the test anyhow, could you?
      “THE WITNESS: No, sir. If he would have said that he would take the test I would have given him the test. I would have waited the twenty minutes to give him the test.
      “THE COURT: Well, if he would have said — all right. If he had said he would have taken the test—
      “THE WITNESS: Twenty minutes.
      “THE COURT: —you would have had to wait for at least another ten minutes, wouldn’t you?
      “THE WITNESS: Yes, sir.
      “THE COURT: Was it — did Dr. Woodruff arrive within the twenty minutes?
      “THE WITNESS: Yes, sir.
      “THE COURT: So even if he would have said yes you couldn’t have given him the test before she arrived, could you?
      “THE WITNESS: No, sir, I couldn’t.
      “THE COURT: Anything further, Mr. Murray?
      “MR. MURRAY: No, sir.”


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Larry DELOCH, Appellant.
    No. 38532.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 19, 1977.

      Robert C. Babione, Public Defender, Frank R. Fabbri III, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

A jury found defendant Larry Deloch, guilty of three counts of felonious wounding (§ 559.210 RSMo 1969), and a fourth count of operating a motor vehicle without the consent of the owner (§ 560.175(1) and § 560.180(1)). The court sentenced defendant to four years imprisonment for each of the three counts of felonious wounding, to run consecutively, and four years imprisonment for operating a motor vehicle without the consent of the owner, to run concurrently with the other counts.

The defendant does not question the sufficiency of the evidence, so we shall only give a brief review of the facts.

Three police officers of the St. Louis Metropolitan Police Department were patrolling near the intersection of Eleventh Street and Delmar Avenue on October 20, 1975. The officers observed a brown 1975 Ford driven by the defendant traveling the wrong way on Delmar at an excessive speed. The vehicle then proceeded to disregard the traffic signal on Delmar. The officers gave chase and radioed for assistance.

After a brief chase, the vehicle driven by the defendant collided with a second car on Parnell Avenue. The driver and the passengers in the second car were seriously hurt and rushed to the hospital. The defendant was placed under arrest. The vehicle driven by the defendant was identified as a stolen auto belonging to Mr. Kent Bartels. During the arrest, the officers found several items on the driver’s seat which indicated the vehicle was stolen. The items included a “dent puller,” ignition switch, broken screw, and a screwdriver.

The trial took place on September 2,1976. Testimony was offered by the three policemen involved in the chase, and an eyewitness to the collision with the second car. During the trial, “the dent puller,” ignition switch, broken screw, and screwdriver were all marked as state’s exhibits and identified by the police officers in front of the jury as the evidence found in the stolen car at the time of the arrest. The state did not move to introduce these items during the presentation of their ease in chief, but requested during the closing argument that the case be reopened for the sole purpose of introducing the items into evidence. The trial court allowed the case to be reopened and the items formally admitted over the objections of the defendant.

The jury returned a verdict of guilty on all four counts, and the court sentenced the defendant as set out above. This appeal followed.

Defendant raises two issues on appeal: 1) the trial court abused its discretion in allowing the state to reopen the case during closing argument and introduce the items found in the stolen car, and 2) it was plain error for the state to fail to cite the section of the Missouri Statutes proscribing the conduct charged in the substituted Information.

We hold the first issue to be without merit. Any contention of error by the trial court in reopening the case for the purpose of admitting the items was waived. The only objection made to the admissibility of this evidence was one relating to the relevance and prejudicial effect. An assignment of error made in a motion for a new trial or on appeal must be predicated upon an objection made in the trial court. State v. Jones, 515 S.W.2d 504 (Mo.1974). No objection was made to the reopening of the case.

However, even if this point was preserved, we do not believe there was an abuse of discretion. As stated in State v. Robinson, 325 S.W.2d 465 (Mo.1969, (at 470), “It is well settled that the trial court has a broad discretion as to the order of proof and the reopening of a case.” The facts in the Robinson case are very similar to the facts before us. In Robinson, a hammer was exhibited to the jury and witnesses were examined and cross-examined concerning it. The state failed to introduce the hammer into evidence during the case in chief. However, the court did allow the case to be reopened for the formal admission of the hammer. On appeal, our Supreme Court did not find an abuse of discretion in the trial court allowing the case to be reopened. The court concluded that by exhibiting the hammer to the jury, and examining and cross-examining witnesses with reference to the hammer, it was actually in evidence though not formally admitted prior to the close of the state’s case.

Applying the reasoning in the Robinson case to the facts before us, it is clear that there was no abuse of discretion in allowing the case to be reopened for formal admission of the “dent puller”, ignition switch, broken screw, and screwdriver.

The second issue raised by the defendant can be considered without lengthy discussion. Defendant contends that it was plain error to fail to cite the appropriate section of the Missouri Revised Statutes in the substitute Information. It is true that pursuant to amended Rule 24.01, the Information must contain the section of the Revised Statutes which proscribes the conduct charged. However, the requirement of reference to the statutory section was added in the 1977 rules. The effective date was January 1, 1977. The version of Rule 24.01 that was in effect when the Information was filed contained no such requirement. Rule 24.01 in effect when the Information was filed required only that the Information contain the essential facts constituting the offense charged. See Rule 24.01 (1976). See also, State v. Osborn, 526 S.W.2d 37 (Mo.App.1975). We believe the substitute Information satisfactorily complies with the version of Rule 24.01 in effect at the time the Information was filed.

For the reasons stated above, we affirm the judgment of the Circuit Court.

Judgment affirmed.

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


author: JOHN L. ANDERSON, Special Judge.

text:
    William R. BELTER, Plaintiff-Appellant, v. CROUCH BROTHERS, INC., a corporation and Hugh Roland Roberts, Defendants-Respondents.
    No. 37860.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 26, 1977.
    Strubinger & Wilbers, Bert E. Strubinger, Jefferson City, for plaintiff-appellant.
    Edwards, Seigfreid, Runge & Hodge, Inc., Louis J. Leonatti, Mexico, for defendants-respondents.
   JOHN L. ANDERSON, Special Judge.

Appellant filed his petition seeking damages for bodily injuries sustained in a rear end collision between his pick-up truck and a tractor-trailer driven by respondent Roberts. The issues were joined upon the pleadings and a trial was had before a jury in the Circuit Court of Audrain County. Respondents submitted a defense of contributory negligence. The trial resulted in a defendants’ verdict and after notice of appeal was filed in the Supreme Court the matter was transferred to this court. Thereafter, appellants brief was ordered stricken for failure to comply with Rule 84.04 V.A.M.R. Leave was granted to file a proper brief and appellant filed a brief denominated “corrected brief.”

A single assignment of error is presented in the following form:

“The Trial Court Erred in Submitting M.A.I. 17.06 as Part of Jury Instruction No. 4 Submitted by Defendants-Respondents Instructing on Failure to Signal an Intention to Turn for the Reason that said Instruction Was Not Supported by the Evidence Since the Evidence Established that Plaintiff-Appellant Was in the Process of Signaling an Intention to Turn the Moment When His Vehicle Was Struck in the Rear by Defendant-Respondent’s Vehicle and That Plaintiff-Appellant was Approximately Four Hundred (400) Feet From Where He Intended to Turn and Had Just Put His Directional Signal on and His Foot to the Brake as He Was Being Struck.”

Appellant made no specific objection at trial to Instruction No. 4 nor to any wording or submission therein.

Appellant’s motion for new trial made only the following references to Instruction No. 4:

“(a) Said Instruction required the jury to find affirmatively that the plaintiff failed to keep a proper lookout for other vehicles, including that of the defendant, and that such failure was negligence and caused or contributed to cause the collision, such charge is equivalent to a requirement that the jury find the plaintiff could have seen the other vehicle if he had looked. Also, said Instruction was erroneous because the evidence did not show that such failure caused the accident and
(b) that said Instruction was erroneous in that there was no evidence to substantiate an instruction on ‘sudden stop’; there was no evidence that plaintiff’s stop was sudden and the physical evidence established that defendant left 479 feet of skid marks which evidenced that the plaintiff could not have physically made a sudden stop.” (emphasis added)

Appellants motion for new trial did not challenge that portion of Instruction No. 4 submitting a failure to signal an intention to turn; thus, the matters contained in appellant’s point relied upon are raised for the first time in his corrected brief.

In order to preserve an allegation of error relating to an instruction, when no specific objection was made at trial, the specific objection to the challenged instruction must be presented in a motion for new trial. Rules 78.07, 70.02 V.A.M.R. The requirements of Rule 78.07 are designed to afford the trial judge an opportunity to correct his errors without the delay and expense of an appeal and are to be strictly enforced. Chambers v. Kansas City, 446 S.W.2d 833, 840 (Mo.1969); Safe-Buy Real Estate Agency, Inc. v. Hemphill, 498 S.W.2d 599, 601 (Mo.App.1973); State ex rel. State Highway Commission v. Heim, 483 S.W.2d 410, 414 (Mo.App.1972). If on appeal an alleged error relating to an instruction differs from or is not included in the specific objections made to and determined by the trial court, it may not be reviewed by an appellate court, Robinson v. St. John’s Medical Center, 508 S.W.2d 7 (Mo.App.1974). No designations of error shall be examined in any civil matter from a jury tried case except such as have been presented to or expressly decided by the trial court. Rule 84.13(a) V.A.M.R. Commercial Credit Equipment Corp. v. Colley, 542 S.W.2d 329, 335(3) (Mo.App.1976); see also Helming v. Adams, 509 S.W.2d 159, 168(9) (Mo.App.1974). Because the single point relied upon on appeal was not first presented to the trial court during trial or in a motion for new trial, appellant has not preserved this issue for review.

Judgment Affirmed.

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

      . Appellant does not urge in his brief that his allegation of error be considered pursuant to the plain error doctrine Rule 84.13(c). Nor do we find plain error to exist.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Jimmy Darryl POE, Appellant.
    No. 37818.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 26, 1977.
    Terryl W. Francis, Granite City, Ill., for appellant.
    John D. Ashcroft, Atty. Gen., W. Mitchell Elliott, Frank J. Murphy, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

Jimmy Darryl Poe, convicted of arson and sentenced to 7 years’ imprisonment, has appealed, raising only the question of the admissibility in evidence of exculpatory statements made by defendant. Defendant contests the order overruling defendant’s oral motion to suppress the statements.

Defendant was charged with arson of the premises at 3963 Castleman in the City of St. Louis. Experts testified that the fire was incendiary in origin. Insured for $10,-000, the property cost the owner approximately $6,000. The owner owed debts totaling $14,500. The owner had previously employed defendant on various jobs as a subcontractor to do work on other buildings. The owner testified that the day before the fire he gave defendant a key to the premises and sent defendant to look at the property to give owner a price for the work necessary to “fix up” the upstairs. Defendant’s presence on the premises at the time the fire broke out is conceded. Witnesses saw two men enter the building, just before the fire broke out, carrying buckets. Three witnesses saw defendant fleeing from the building with his clothes on fire. Defendant was driven from 3963 Castleman Avenue to a hospital, suffering from serious burns. Detectives interviewed defendant at the hospital that evening. Asked how he received the burns defendant stated to the officers that he was at his home in Granite City, Illinois in his garage cleaning paint brushes with paint thinner, at which time a fire occurred; that defendant did not know the owner of the property at 3963 Castle-man Avenue and had never met him; that defendant had never been at that address; that defendant was in the St. Louis area that day, bidding on a job in the 4600 block of South Broadway. The owner of the property admitted that after the fire he paid defendant $1,000 (purportedly to compensate him for the injuries he sustained in the fire).

Defendant’s first point is that the statements made by him at the hospital should not have been received in evidence because they were taken at a time when police had him in custody and after he had counselled with his lawyer, who advised police that defendant was to make no statements, and after the lawyer had left the hospital. Defendant’s second point is that the statements were taken while he was under sedation; that defendant was confused, in great pain, confined and in custody at the time.

These points, advanced for the first time on appeal, have not been preserved for appellate review for three reasons.

First, although defendant made an oral motion to suppress his exculpatory statements, resulting in a hearing out of the presence of the jury, when the trial resumed before the jury defendant made no objection to the officers’ testimony relating the statements. In this situation the points sought to be raised here cannot be reached on appeal. State v. Roberts, 530 S.W.2d 428, 431[2] (Mo.App.1975).

Second, these points were not included in defendant’s motion for new trial. State v. Gant, 490 S.W.2d 46, 49[8] (Mo.1973); State v. Payne, 548 S.W.2d 269 (Mo.App.1977); State v. Roberts, supra, and cases cited, 530 S.W.2d 1. c. 431; and numerous citations under Rule 27.20, Note 205, Vernon’s Annotated Missouri Rules.

Third, if these points had been included in the motion for new trial they still would not have been preserved because the motion for new trial was not filed within the 10-day period required by Rule 27.20. It was filed on the thirteenth day after verdict. The 10-day rule is mandatory. State v. Cantrell, 403 S.W.2d 647 (Mo.1966); State v. Pedockie, 391 S.W.2d 255 (Mo.1965). A tardily filed motion for new trial is a nullity and preserves nothing for review. State v. Brown, 543 S.W.2d 796 (Mo.App.1976).

Affirmed.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.


author: STEWART, Judge.

text:
    Benson L. WINTERS et al., Respondent, v. SEARS, ROEBUCK AND CO., Appellant.
    No. 37373.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 26, 1977.

      Robert C. Ely, Robertson, Ely & Wieland, St. Louis, for defendant-appellant.
    John H. Marshall, Robert H. Bums, Clayton, for plaintiffs-respondents.
   STEWART, Judge.

Defendant, Sears, Roebuck & Co., appeals from a jury verdict in favor of Benson and Alta Winters and their insurer, Western Casualty & Surety Co., in an action based on strict liability in tort for damages to the Winters’ home caused by a fire involving a television set sold to Winters by Sears. Sears contends that the trial court erred in denying its motion for a judgment notwithstanding the verdict or alternatively for a new trial because the evidence in the case was insufficient to support a finding that the fire had been caused by a defect near the small end of the television picture tube or that any such defect had been present at the time the set was sold to Mr. and Mrs. Winters. Appellant also contends that the trial court erred in overruling defendant’s objection to a hypothetical question propounded to the plaintiffs’ expert which included an assumption that neither the picture tube nor its attachments had been the subject of repairs or replacement. We affirm the judgment of the trial court and remand for trial on the issue of damages.

Two and a half years before the fire, which gave rise to this action, Mr. and Mrs. Winters bought a color television set of the “instant-on” variety from Sears, along with a 26-month service contract. This set did not work properly and was replaced by the set which is the subject of this action. Within a month after delivery, the television set began to malfunction and Sears was called upon many times over the life of the service contract to repair the set. To Mr. Winters’ knowledge Sears had never made any changes involving the picture tube or its attachments. The repairs included replacement of the tuner, some tubes, resistors, and a transformer. The repair slips, which plaintiff had received from Sears, did not reveal the nature of any of the repairs. They showed only that repairs had been made. No one but Sears serviced the set during the contract period.

A little more than a month after the service contract ended, the television set went dead. United Television Sales Service, (United), was called. United removed the bottom part or chassis of the set and took it to their shop. .The picture tube, the deflection yoke, which fits over the small end of the picture tube, and the attachments to the tube were not touched. The repairman from United testified that he had worked on the voltage regulator and the horizontal output section and that he had replaced some tubes and resistors, all of which were located in the chassis portion of the set. He further testified that the work that he had performed made no changes in or alterations to the picture tube, or to any of the attachments to the picture tube, including the deflection yoke. Plaintiff testified that neither he nor his family or friends had ever attempted to work on the set.

On March 3, 1972, the chassis was returned to the Winters and the television appeared to operate properly. On April 13, 1972, Mr. Winters returned home early in the afternoon from working the night shift. He turned on the television and dozed off in front of it. He awakened to find that “fire was coming up out of the back of the T.V.” He went for water to extinguish the fire and when he returned he tried to jerk the set away from the wall, at which point, “the fire just went every place.” The assistant fire chief, who responded to the fire, testified that the fire originated in the area of the television set, along the southwest wall of the living room. He further-testified that the wall directly behind the set, about 8-10 inches above the floor, was “scarred real bad.”

Plaintiffs’ expert, Dr. Richard Koopman, Professor Emeritus at Washington University and former head of the Electrical Engineering Department, testified that he had examined the set after the fire and concluded that the source of the fire was at the small end of the picture tube. He based his opinion on a burning pattern he had observed at the end of the picture tube and on the fact that the greatest distortions from the heat of the fire had occurred in that area. The neck of the picture tube had cracked and was hanging out of position. Some of the insulation and other material around this portion of the picture tube had burned completely; the remaining material was melted and distorted. Dr. Koopman admitted on cross-examination that he had been mistaken about the extent of the destruction to the deflection yoke that fits over the small end of the picture tube. He intended to refer to the deflection unit. The yoke is but one portion of the unit. He continued to maintain that the most intense heat had occurred in the middle of the set at the small end of the picture tube. He testified that if the fire had started below the picture tube in the chassis, the glass tubes in that area would have cracked from the heat. Many of these tubes were intact and the damage to the chassis area was less pronounced. He eliminated the cord and the electrical outlet as causes of the fire. No fuses were blown. The nature of the parts, which had been repaired or replaced by United, was such that they could not have had a detrimental effect on the picture tube.

Dr. Koopman testified that he could not pinpoint a specific defect because too many parts around the picture tube had been destroyed. However, he noted that there is a small coil in the neck of the television picture tube that must be “red hot” the entire time the set is plugged into the electrical outlet. He further stated that this heat could cause a deterioration in surrounding insulation and electrical components if a defect were present, which in turn would cause greater heat and electrical short circuiting resulting in fire. Based on this knowledge and on the condition in which he found the television after the fire, Dr. Koopman concluded that such a deterioration had occurred and that “the parts had to be defective or they wouldn’t have broken down in that length of time.” He also concluded that the initial cause was present when the set was delivered by Sears.

I

The doctrine of strict liability in tort as set forth in the Restatement (Second) of Torts § 402A (1965) has been a part of the law in Missouri since its adoption in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969).

Under this doctrine one who sells a “product in a defective condition unreasonably dangerous to the user or consumer . is subject to liability” for injury to the user or the user’s property caused by the defect. This doctrine also requires that the seller be in the business of selling the product and that the product reach the user in substantially the condition in which it is sold. Keener, 445 S.W.2d at 364.

As in other tortious actions the burden is upon plaintiffs to prove that there was a defect in the television set and that there had been no substantial change in the condition in which the set was delivered to the consumer. The doctrine of strict liability does not require impossible standards of proof. The proof “must be realistically tailored to the circumstances which caused the form of action to be created.” Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 639 [14] (8th Cir. 1972).

The existence of a defect may be inferred from circumstantial evidence with or without the aid of expert opinion evidence. Williams v. Ford Motor Co., 411 S.W.2d 443, 447 [3] (Mo.App.1966).

In determining whether plaintiffs presented sufficient substantial evidence for submission to the jury, we must consider the evidence in the light most favorable to the plaintiffs, with all reasonable inferences to be drawn therefrom, and disregard the defendant’s evidence unless it aids the plaintiffs’ case. Lifritz v. Sears, Roebuck & Co., 472 S.W.2d 28, 31 [2] (Mo.App.1971); Williams v. Ford Motor Co., 411 S.W.2d 443, 445 [1] (Mo.App.1966).

There was ample evidence from which a jury could find that the fire, which damaged the Winters’ home, started in the television set. Mr. Winters awakened to find “fire was coming up out of the back of the T.V.” The only thing he saw on fire was the back of the television set. He went to get water with which to extinguish the fire, and on his return the wall behind the set was on fire. The fire chief testified that the television set was severely burned and that the wall directly behind the set was “scarred” starting about 8 or 10 inches from the floor. With the establishment of the television set as the source of the fire, the principal issue in this case focuses upon the plaintiffs’ proof of a defective condition near the small end of the picture tube and of the existence of that condition when Sears delivered the set to Mr. and Mrs. Winters. Circumstantial evidence may be used to establish the existence of a defective condition. Lifritz v. Sears, Roebuck & Co., 472 S.W.2d 28 (Mo.App.1971). It is held that the testimony of an expert may constitute substantial evidence; and a jury may determine that an incident resulted from a defect rather than from other causes based upon an opinion of a qualified expert that the defect was the more reasonable probable cause. Lifritz, 472 S.W.2d at 32.

Appellant argues that plaintiffs’ expert had no facts upon which to base his opinion other than the fact that a fire had occurred in a television set that was 2V2 years old and had been the subject of repairs. Appellant therefore concludes that Dr. Koopman’s opinion was based on mere conjecture and thus lacked the requirements of substantiality and probative force. Defendant would distinguish the present case from those cited by plaintiff, which have allowed recovery without proof of a specific defect, on the grounds that those cases involved products that were new and had not been used over a prolonged period. See Williams v. Ford Motor Co., 494 S.W.2d 678 (Mo.App.1973) (involving an inference of defective steering in a brand new car); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. 1972) (applying Federal Maritime law, allowing the inference of a defect in a plane crash occurring the day after its delivery to the Navy).

The doctrine of strict liability does not require that the product be “new” at the time of the occurrence. The criteria is that it be in substantially the same condition as when it was delivered to the purchaser.

While the precise facts of the case at bar have not been presented to the courts in Missouri, we note with approval Bombardi v. Pochel’s Appliance & T.V. Co., 9 Wash.App. 797, 515 P.2d 540, modified 10 Wash.App. 243, 518 P.2d 202 (1973). In Bombardi, the purchaser of a “used” television set, manufactured in 1966 and serviced by the dealer several times after the original sale, recovered damages for personal injuries and property loss as a result of a fire in the set in 1970. Applying the doctrine of strict liability in tort, the Bombardi court held that even though it was impossible, because of the destruction caused by the fire, to “point an accusing finger at a particular defective component,” the plaintiff was not precluded from establishing that the set was defective by means of circumstantial evidence. Bombardi, 518 P.2d at 203.

We quote with approval the language of Bombardi, “the mere fact of an accident, standing alone, does not generally make out a case that a product was defective.” Bombardi, 518 P.2d at 204. However, common experience tells us that some accidents do not ordinarily occur in the absence of a defect and in those situations the inference that a product is defective is permissible. W. Prosser, Handbook of the Law of Torts § 103, at 673-74 (4th ed. 1971).

In the case at bar, we find that the plaintiffs presented sufficient evidence, apart from the fact of the fire itself, from which a jury could infer the existence of a defect near the small end of the picture tube, which points “reasonably to the desired conclusion and tend[s] to exclude any other reasonable conclusion.” Hale v. Advance Abrasives Co., 520 S.W.2d 656, 658 (Mo.App.1975). The conclusions made by plaintiffs’ expert, Dr. Koopman, were not based only on the fact that there was a fire, and of the condition of the material surrounding the picture tube, but more particularly on his observations that certain areas sustained damage in varying degrees. Dr. Koopman also testified as to facts concerning the workings of the picture tube and surrounding components, including the location and characteristics of a heating coil in the neck of the tube. He testified that the defect in the heating element at the small end of the tube was the most probable cause of the fire. We cannot say as a matter of law that these facts lack the legal requirements of substantiality and probative force.

This case is readily distinguishable from the cases relied upon by defendant. In those cases, as contrasted with the case at bar, there were no persons who could by direct evidence or circumstantial evidence confine the origin of the fire to the product which was alleged to be defective. The present case is more akin to Jacobson v. Broadway Motors, Inc., 430 S.W.2d 602 (Mo.App.1968). Although the action was in warranty, the principle announced is applicable here. The court there held that a fire, which started under the hood of an automobile while it was stopped in a parking lot about three months after purchase, gave rise to an inference that the automobile was not properly manufactured; that the fire was caused by defective materials or workmanship. In a like manner, we can say that a television set properly manufactured and properly serviced by the seller does not, in normal operation, combust.

“Absolute certainty or positive proof of causation by an expert witness is not required in a products liability case. The jury may determine that the incident resulted from a defect in the instrumentality, rather than other causes, upon an opinion of a qualified expert that the defect was the more reasonable probable cause.” Lifritz v. Sears, Roebuck & Co., 472 S.W.2d 28, 32 (Mo.App.1971). The fact that Dr. Koopman was unable to point to the specific defect because of the destruction of components of the set by the fire made the proof difficult, but not impossible. His opinion, based upon his personal observations, supplemented by the facts supplied by the testimony of Mr. Winters and the fire chief concerning the occurrence and their observations, constitutes sufficient substantial evidence that the fire started in the area of the small end of the picture tube and was caused by a defect. Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844 (1953).

II

Defendant next argues that there was no evidence to support a finding that the defect was in existence at the time the television set was sold to the Winters.

The Winters had trouble with the set from the time it was installed. Numerous service calls were made by Sears, the seller, during the period of the service contract, as defendant argues “possibly as many as twenty times.” Mr. Winters testified that Sears’ repairs included replacement of the tuner, transformer, some tubes and resistors; that to his knowledge they did not remove, replace or make any changes in the picture tube or its attachments. He also testified that United made service calls. He did testify that he was not present during every service call. His wife testified that she was employed full time and because her husband was home from work in the afternoons, she made arrangements for service calls to be made when he was at home.

The repairs by United made no changes in or alterations to the picture tube, or to any of the attachments to the picture tube. No one other than Sears and United had worked on the television set.

The jury could have found that neither the purchaser nor any third person had made any substantial changes to the television set which could have been the proximate cause of the fire.

In essence defendant argues that there is a hiatus in plaintiffs’ proof in that plaintiffs did not prove that defendant had not substantially altered the product so as to proximately cause the damages to plaintiffs.

This issue raised requires a discussion of Restatement (Second) of Torts § 402A(l)(b) (1965). Section 402A, as pertinent to our consideration, provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

There has been very little written with respect to this issue and we have found no case which has determined the issue as it is now presented to us. The question is broached in Bombardi. In that case the seller had serviced the used television set for the first owner and had worked on it before the sale to plaintiffs. However, the seller testified that when the used television set involved was sold to the plaintiffs, the set was in the same condition as when it left the manufacturer.

The basic premise of § 402A(1)(b) is that the seller may not be held liable for injuries which are proximately caused by a defect in the product created by alteration of the product by the user or a third person. See Swindler v. Butler Manufacturing Co., 426 S.W.2d 78, 83 [5] (Mo.1968).

As was said by the commentator in Annot., 41 A.L.R.3d 1251 § 2, at 1253 (1972):

In line with the general rule that liability for product-caused harm may not be imposed upon a manufacturer or seller in the absence of proof that the product in question was defective or dangerous at a time when the defendant had possession of it or was otherwise responsible for its condition with respect to danger or defect, the courts have held that a manufacturer or seller is not liable for injuries caused by a defective product if the defect was created by an alteration which amounts to an intervening or superseding cause, as distinguished from a concurrent cause, of the injuries.

Conversely, the seller may not take the position that, because the set had defects which it attempted to correct, the plaintiff must prove that the seller did not substantially alter the product so as to create a defect which proximately causes the resultant damages.

The word “sold” in § 402A(1)(b) does not have the technical meaning but indicates the time at which defendant relinquished control or possession of the product. See 2 L. Frumer & M. Friedman, Products Liability § 16A [4], at 3-314 (1976).

The seller takes possession of the product when he undertakes to service it. It becomes an extension of the manufacturing process. Upon completion of servicing the product, whether it is done on the seller’s premises or on the premises of the purchaser, the effect is a re-delivery of the product with the same assurances and with the same obligations as the original sale.

To hold otherwise would defeat the very purpose of the rule of strict liability in tort; one of the primary tenets of that rule is the superior opportunity of the seller to know the condition of the product that he holds out for sale to the consuming public.

We hold that once the plaintiff, in a case of strict liability, produces evidence that neither he nor any third person has made alterations to the product, which would create a defect that could be the proximate cause of the damages incurred, he has made a submissible case as to the issue of the existence of a defect at the time of sale or delivery of the product.

In the case before us, the plaintiffs’ evidence was sufficient to permit the jury to find that neither plaintiffs nor any third person had substantially altered the television set so as to cause the defect which produced plaintiffs’ damages.

The court did not err in submitting the case to the jury on the theory of strict liability.

Ill

Defendant complains the court erred in overruling its objection to the hypothetical question that plaintiffs asked Dr. Koopman because it included the assumption that the picture tube and its attachments had not been removed, repaired or replaced at any time before the fire. This contention is based on Mr. Winters’ testimony that he was not present on all occasions when repairs were made, which “necessarily means that he does not know what was done by the repairmen on the occasions when he was not there.”

Since the purpose of a hypothetical question is to elicit the opinion of an expert, the facts essential to his opinion must be assumed in the question. The essential facts assumed must have an evidentiary basis. Hamilton v. Slover, 440 S.W.2d 947, 955 [9] (Mo.1969). See 31 Am.Jur.2d Expert and Opinion Evidence § 56 (1967). Rational inferences drawn from the testimony as well as positive testimony may be the basis for a hypothetical question. Schmitt v. Pierce, 344 S.W.2d 120 (Mo.1961).

In this case plaintiffs’question assumed that no one, including Sears, removed, repaired or replaced the picture tube or its attachments. The defendant argues that Mr. Winters testified that he was not present at all times when the set was repaired; that Mrs. Winters was never present during repairs because she was at work and that they were the only witnesses to the repairs, thus there was no evidence to support the assumption.

We note first that the repairman from United testified that the repairs, which he made, could have had no affect on the picture tube and its attachments.

The defendant relies on the testimony of Mr. Winters to prove that plaintiff was not always present when repairs were made, but was there most of the time when Sears was present. The only specific testimony, which indicates Mr. Winters did not see what was going on, was his statement that he was in his room the first time the United repairman came. Mrs. Winters testified that she was never at home when Sears came out; she worked during the day and that “[she] would make the arrangements for [the Sears repairman] to come out after my husband got off [work].” The trial judge was present and heard this evidence and was in the best position to conclude that the testimony, as a whole, warranted an inference sufficient to sustain the assumption.

Even if we were to conclude that there was no basis in the evidence for an assumption that Sears had not removed, repaired or replaced the picture tube, we, contrary to defendant’s contention, find no prejudice to defendant by its inclusion in the hypothetical question.

Defendant argues: “In order for plaintiff to have an expert testify that in his opinion the defect which allegedly caused a fire to start at the small end of the picture tube was a defect which existed at the time of sale, it was necessary that plaintiff prove and submit to the expert that the picture tube and its attachments had not been removed, repaired, or replaced at any time before the fire.” It is clear from what we have said under Point II above, proof that Sears had made no substantial alterations to the picture tube was not material to plaintiffs’ cause of action. In like manner, the assumption respecting Sears was not essential to the opinion of plaintiffs’ expert. The inclusion of this assumption was not prejudicial. Sanders v. H. & S. Motor Freight, Inc., 526 S.W.2d 332, 335 [2] (Mo.App.1975).

IV

Defendant also attacks the verdict directing instructions of plaintiffs Winters and of plaintiff Western Casualty Co. The basis of the attack is that the evidence was insufficient to sustain a finding that at the time of the fire the television set was in substantially the same condition as when it was sold by defendant. Our previous discussion, under Points I and II of this opinion, effectively answers the contention contrary to defendant’s argument.

The trial court for reasons not before us granted defendant a new trial on the measure of damages only. This issue has been held in abeyance pending this appeal. Finding no prejudicial error, we affirm the judgment of the trial court respecting the issues here determined and remand for trial on the issue of damages.

McMILLIAN, P. J. and RENDLEN, J., concur.

      . Citizens Bank of Festus v. Missouri Natural Gas Co., 314 S.W.2d 709, 715, 716 (Mo.1958);

        Craddock v. Greenberg Mercantile, 297 S.W.2d 541, 547, 548 (Mo.1957);

        Gaddy v. Skelly Oil Co., 364 Mo. 143, 150, 259 S.W.2d 844, 849 (1953).

      . In some instances liability will attach even where the product is altered or changed. Hales v. Green Colonial, Inc., 490 F.2d 1015, 1020-21 [4-5] (8th Cir. 1974). Some courts have rejected the concept of intervening cause and would refer to substantial alterations, which created a defect as mishandling or misuse of the product. See Bradford v. Bendix-Westinghouse Automotive Air Brake Co., 33 Colo.App. 99, 517 P.2d 406 (1973).

      . C.f. 1 R. Hursh & H. Bailey, American Law of Products Liability §§ 1.10, 1.14 (2d ed. 1974).

      . “Q. You were asked about repairs made to the set, and you described some items, and I believe you indicated that you were not always there, but you were there most of the time when the Sears’ people came to repair it?
      A. Yes, sir.
      Q. And do you know just what was done when they came to repair it?
      A. At all times?
      Q. Yes.
      A. No, sir.
      Q. All right. Now, you said you could see in the back — you could see — well, excuse me, when the United Television man came — were you there when he came — I don’t mean in the house — were you present in the room when he came to repair the set at the house and then took part of it with him? Did you see that done?
      A. I was in the bedroom when he came that night.
      Q. You did not see what he did, but you know he was there, and you know he took part of the set away?
      A. Yes, sir.”


text:
    STATE of Missouri, Respondent, v. Ronald William BROWN, Appellant.
    No. 35977.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 26, 1977.

      Allen I. Harris, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John A. Roche, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   STEWART, Judge.

Ronald William Brown was convicted by a jury of manslaughter and of carrying a concealed weapon. The jury was unable to assess punishment- on either count. The trial court sentenced the defendant to serve five years in the Missouri Department of Corrections on the manslaughter conviction and two years on the conviction of carrying a concealed weapon. The sentences to run consecutively.

We affirm the judgment of the trial court as it relates to the conviction of the defendant on both charges, and we remand the cause to the trial court for resentencing in the light of State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).

The manslaughter conviction arises out of an automobile collision. Viewed in the light most favorable to the State, the jury could have found that Officer Joseph Kris-ka and his partner, Officer Charles Drep-pard, were on duty at about 1:50 a. m. They were standing in front of their patrol car, which was facing east on Russell Avenue at its intersection with Nebraska Avenue in the City of St. Louis. Mrs. Ann Brown, defendant’s wife, who was driving westwardly on Russell Avenue, stopped her car opposite the officers’ parked car. She told them that her husband was in the car directly behind her; that he had a pistol and that she was being forced “to go with him” against her will.

As Mrs. Brown was speaking to the police officers, the car driven by defendant pulled around her car, accelerated, violated the boulevard stop sign at the intersection, and proceeded west on Russell Avenue toward Grand Avenue at a high rate of speed. The officers made a U-turn, activated the patrol ear’s flashing red lights and siren, and gave chase. The police officers radioed the police department dispatcher that a pursuit was in progress. They observed the defendant’s car violate another stop sign at Compton Avenue and clocked his speed at approximately 70 miles per hour. The officers observed defendant’s car enter the intersection of Russell Avenue and Grand Avenue without diminishing its speed and collide with another car driven by Vernon Calvert. There was a flashing red light, which was facing traffic traveling west on Russell Avenue at its intersection with Grand Avenue. The police officers stopped their squad car in the intersection and observed defendant get out of his car and collapse on the street. The defendant was identified at trial by both police officers as the only person they saw get out of the car that they were pursuing. A search of the defendant after arrest produced a loaded .25 caliber automatic pistol, which was fully concealed in the defendant’s coat pocket. Vernon Calvert, the driver of the other car, died as a direct result of the injuries that he sustained in the collision.

Other facts will be set out as necessary to the disposition of the points raised.

We first consider defendant’s contention that the trial court erred when it permitted the State to change one of its peremptory challenges after the defendant had made his strikes, because to do so was in contravention of that portion of § 546.200 RSMo 1969, which provides that the State shall make its peremptory challenges after which the defendant shall make his challenges.

We first face the problem of determining what occurred at the trial that gives rise to this complaint. The record recites that upon completion of the voir dire “the jury was selected but not sworn.”

Thereafter, the transcript relates a conference held in chambers between the court and counsel at which defendant objected “to the jury as the list is now compiled.” Defendant stated that after the State had made its strikes and after defendant had made his strikes, the State changed one of its strikes. The attorney for the State explained that before he knew who was stricken, but while the sheriff was calling the jury by number, the attorney advised the sheriff that he had made a mistake in his strikes; that he had intended to strike a Mr. Powell and to leave a Mrs. Hamilton on the panel. He explained that Mr. Powell was acquainted with a partner of the firm representing defendant. The sheriff seated Mrs. Hamilton.

No record was made of the proceedings that transpired in the court room. We will consider the issue to the extent that the statements of defendant are admitted by the State. Politte v. Wall, 256 S.W.2d 283 (Mo.App.1953). Defendant sought no affirmative relief. Defendant, however, need not seek affirmative relief in such a situation. State v. Brown, 547 S.W.2d 797, 804[9] (Mo. banc 1977).

The court explained to counsel that before swearing a jury, he always asks the attorneys if the individuals seated in the jury box are the same jurors as were intended to be selected by reason of the exercise of their strikes. If not, he permits counsel to correct any mistakes. The court then stated: “[I]f Mr. Harris [Defendant’s counsel] wants additional time to select his jury in the light of the fact that Mr. Allred [Assistant Circuit Attorney] may or may not have changed his selections, then of course I would give him that opportunity. If he feels he does not need it, then whatever objection he has is overruled.”

Prior to swearing the jury the court asked defendant’s counsel if he had anything he wanted to say, to which he replied, “No.” When asked whether the individual jurors were the jury selected by the parties, counsel answered: “Subject to the objection previously made, this is the jury.”

It has often been said that statutes relative to the empaneling of juries are directory, and when they are not followed, will not be grounds for reversal absent a showing that the defendant had been prejudiced. State v. Perno, 23 S.W.2d 87, 89[2] (Mo.1929). The privilege of exercising peremptory challenges is a process of rejection and not of selection. The purpose of the jury selection procedures is to obtain a fair and impartial jury. State v. Thomas, 530 S.W.2d 265, 267 (Mo.App.1975). Defendant here does not contend that he was not tried by a fair and impartial jury. He does not contend that any of the individual jurors were not fair and impartial. Defendant has not demonstrated how he may have been prejudiced. At most defendant complains only of procedural error without prejudice, which is not reversible. State v. Thomas, 530 S.W.2d at 268.

Our Supreme Court has recognized that situations such as the issue before the trial court can arise and that it is within the discretion of the trial court to permit the parties to correct a mistake even after the jury has been seated, but not sworn; that to permit the party to correct a mistake is within the sound discretion of the court. State v. Harris, 356 S.W.2d 889, 890[2] (Mo.1962). We do not rule that a correction may not be made after the jury has been sworn.

In the case at bar, after the State had corrected its mistake and after the jury was seated, but not sworn, the court offered to permit the defendant to make all of his strikes anew.

We have reviewed the case of State v. Steeley, 65 Mo. 218 (1877), which is relied on by defendant. In Steeley, the State refused to reveal its strikes before defendant made his strikes. In the case at bar, the strikes were revealed, but one was a mistake. After the mistake was corrected, the array as stricken by the State was reopened to defendant. Steeley is not appropriate here.

Finding no abuse of discretion on the part of the trial court and no prejudicial error, we rule this issue against the defendant.

The defendant urges that the trial court should have granted his request for mistrial when the State asked the victim’s widow the following question:

“Q. But you know — do you know you heard him [the insurance representative] say one thing; that the company had taken the position—had said this man was completely responsible.”

The defendant objected on the grounds that the question was “irrelevant” and asked that the court grant a mistrial. The court promptly sustained the objection and instructed the jury to disregard the question. It overruled defendant’s motion for mistrial.

It has often been repeated that: “The granting of a mistrial is a drastic remedy, to be exercised only in those circumstances in which no action short of a mistrial would remove the prejudice claimed.” State v. Johnson, 504 S.W.2d 23, 29[7] (Mo.1973). The question of whether a mistrial should be granted is a matter within the sound discretion of the trial judge; he is in the best position to determine the prejudicial effect of events occurring at trial. We may reverse only where there has been an abuse of discretion.

While we can say that the question here is a display of ineptitude on the part of the Assistant Circuit Attorney, we find no abuse of discretion on the part of the trial court.

The court acted promptly to prevent the witness from answering the question and took every measure to remedy the situation short of declaring a mistrial. There was no reversible error.

The defendant next complains of that portion of Instruction No. 1, which contains the range of punishment with respect to the charge of manslaughter. The instruction informs the jury that the minimum fine, which they could assess, was $1,000.00. Section 559.140, RSMo 1969, provides for a minimum fine of $500.00. The instruction in this regard is erroneous. Our primary concern is whether this error was prejudicial.

In our discussion of the case, we must keep in mind the fact that this case was tried in two counts. The misdirection is applicable only to the charge of manslaughter and not to the charge of carrying a concealed weapon. The jury returned verdicts of guilty on each count, but was unable to agree upon the punishment on either of the charges. The court, as it may under those circumstances, assessed the punishment on each count pursuant to Section 546.440, RSMo 1969.

The cases cited by defendant can readily be distinguished from the case at hand. In each of those cases, the jury assessed the punishment, and the prejudicial effect of the misdirection is apparent. Both of the parties cite State v. Bevins, 328 Mo. 1046, 43 S.W.2d 432 (banc 1931). In Bevins, as material to our discussion, the statute provided for imprisonment in the penitentiary for a term not to exceed 2 years. The instruction was in the language of the statutes, but the jury was not informed that a person could not be sentenced to the penitentiary for a term less than two years. The jury assessed punishment at one year in the penitentiary. The court, after accepting the verdict, attempted to correct the verdict by undertaking to assess the punishment at two years in the penitentiary. The holding in Bevins was that under the statutes respecting the assessment of punishment, the court could assess the punishment when the jury failed to agree on or did not declare the punishment, or in those cases where the jury, although properly instructed, assessed a punishment not authorized by law. In essence, the court ruled that where the jury returned a punishment not authorized by law, because of misdirection in the instruction, the court could not assess the punishment. The court, in Be-vins, made it clear that they were not “holding that the giving of an erroneous instruction or the failure properly to instruct as to the punishment that may be inflicted would of itself be reversible error where it is patent from the record that the defendant was not thereby prejudiced.” State v. Bevins, 328 Mo. at 1035, 43 S.W.2d at 437.

In view of the fact that the jury could not agree upon the punishment on either count, it is apparent that the misdirection in the instruction was not prejudicial to defendant in this case. The principle here has recently been recognized in the dicta in State v. Williams, 524 S.W.2d 137, 139[4] (Mo.App.1975).

The defendant contends that the court erred in permitting the former wife of defendant to testify. The only issue, which is preserved for our review with respect to this witness, is that she was not a competent witness. We do not have before us the issue of whether the testimony of the witness constituted a privileged confidential communication by reason of the confidential relationship of marriage, nor is it necessary to consider the fact that the witness and defendant were divorced at the time she testified. The issue, as presented to us, was specifically decided in State v. Damico, 513 S.W.2d 351, 361[11] (Mo.1974), where the court said:

While at common law a wife was incompetent to testify against her husband that complete legal disqualification was removed by the enactment of the statute, now § 546.260, RSMo 1969, V.A.M.S., which states in plain language: “No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being * * * the husband or wife of the accused, * *

The court did not err in permitting this witness to testify.

Defendant complains of a procedural matter occurring with respect to the final argument. We have reviewed and considered this matter and find it devoid of merit; an extended discussion would have no precedential value.

Point I in defendant’s brief reads:

“The court erred in not sustaining a motion for a directed verdict for the reason there was not sufficient evidence to sustain a conviction.”

This point violates Rule 84.04(d) in that it does not state wherein and why the court erred. State v. Booth, 515 S.W.2d 586, 590 (Mo.App.1974). We also note that defendant filed a motion for directed verdict at the close of the State’s case. After this motion was overruled, the defendant presented evidence on his behalf. He did not file a motion at the close of the case; error, if any, is thereby waived. State v. Mulkey, 523 S.W.2d 145, 147[3] (Mo.App.1975). We further observe that this issue was not preserved in the motion for new trial. Rule 27.20(a); State v. Angel, 520 S.W.2d 687, 689[7] (Mo.App.1975). We have reviewed the transcript and find no manifest injustice which would require the invocation of Rule 27.20(c).

Point V in defendant’s brief reads: “The court erred in allowing the state to put into evidence the lack of insurance by the defendant.” This point also fails to tell us wherein and why the court erred. Booth, 515 S.W.2d at 590.

In Point VI defendant complains: “The court erred in not giving defendant’s offered instructions B & C.” It is again apparent that this point fails to comply with Rule 84.04(d) in that it does not state wherein and why the court erred in failing to give the instructions. Booth, 515 S.W.2d at 590. Further, in violation of 84.04(e), defendant has failed to set forth in full, in the argument portion of his brief, instructions “B” and “C”. State v. Gibson, 540 S.W.2d 952, 958[9] (Mo.App.1976), cert. denied, 430 U.S. 907, 97 S.Ct. 1177, 51 L.Ed.2d 583 (1977).

This case was tried before State v. Baker, 524 S.W.2d 122 (Mo. banc 1975). It does not appear from the record that the court would have imposed consecutive sentences except for the mandate of § 546.480. We must therefore remand this case, solely for the purpose of resentencing by the trial court. State v. Eldridge, 543 S.W.2d 500, 501[4] (Mo.App.1976). In all other respects the judgment is affirmed.

McMILLIAN, P. J., and REINHARD, J., concur.

      . 546.200 Challenges, how made
      In all criminal cases, a list of the jurors found by the court to be qualified to sit in the case shall be forthwith delivered by the clerk of the court to the attorney for the State who shall thereupon and within such time as may be directed by the court, announce or indicate the challenges for the state. The jury list, with the state’s challenges indicated thereon, shall then be forthwith delivered to the defendant or his attorney, who shall thereupon announce or indicate his challenges and return the list into court within such time as may be ordered by the court, and the remaining twelve, or if there be more than twelve, the first twelve next remaining on the list unchallenged, shall be the jury to try the cause. (R.S.1939, § 4065)

      . Varble v. Whitecotton, 354 Mo. 570, 190 S.W.2d 244 (banc 1945); State v. Hailey, 350 Mo. 300, 165 S.W.2d 422 (1942); State v. Bridges, 123 S.W.2d 67 (Mo.1938); State v. Hart, 331 Mo. 650, 56 S.W.2d 592 (1932); State v. Knight, 312 Mo. 411, 278 S.W. 1036 (1925).

      . “ ‘1. By imprisonment by the Department of Corrections for a definite term fixed by you, but not less than two nor more than ten years, or
      ‘2. By confinement in the City Jail for a term fixed by you, but not less than six months, or
      ‘3. By a fine fixed by you, but not less than $1,000 or
      ‘4. By a fine fixed by you, but not less than $100, and by confinement in the City Jail for a definite term fixed by you, but not less than six months nor more than one year.’ ”

      . In State v. Harper, 353 Mo. 821, 184 S.W.2d 601 (1945); State v. Liston, 318 Mo. 1222, 2 S.W.2d 780 (1928); State v. Hurt, 285 S.W. 976 (Mo.1926), the jury assessed the minimum under the instruction which was in excess of the minimum provided by statute. The issue was not raised in State v. Gifford, 186 S.W. 1058 (Mo.1916). In State v. Sands, 77 Mo. 118 (1882), the instruction given ignored the minimum possible term of imprisonment and stated the maximum fine to be $1,000 instead of $500. The court, in State v. Fair, 177 S.W. 355 (Mo.1915), instructed that punishment was to be not less than 5 years; the statutory maximum was 5 years and the defendant was sentenced to 5 years imprisonment.

      . Presently codified at § 546.440 RSMo 1969.


author: WEIER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Albert Nathaniel MITCHELL, Defendant-Appellant.
    No. 38530.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 26, 1977.

      Robert C. Babione, Public Defender, Frank R. Fabbri III, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Jeffrey Schaeperkoetter, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   WEIER, Judge.

The defendant Albert Nathaniel Mitchell was convicted of first degree murder for the killing of his stepson, Percy Robertson, and Mitchell was sentenced to life imprisonment. The evidence showed that the defendant, his stepson, the defendant’s wife (who was also the victim’s natural mother), and a friend of the stepson, as well as several of the defendant’s younger children, were, sitting in the defendant’s front yard. All but the younger children were drinking.

The defendant and Percy got into an argument over a hammer the younger children were using. This resulted in a fight between them. This fight was broken up by the defendant’s wife and Percy’s friend. Percy and his friend left the yard, crossed the street, and got into the friend’s car to leave. Meanwhile, the defendant had gone into his house and he emerged with a shotgun. Before Percy and his friend had a chance to leave, the defendant shot Percy twice at close range in the friend’s car. From the wounds, Percy died.

The defendant admitted killing Percy but claimed self-defense. He said that he had thought that his stepson was under the influence of pills and that he had gone to the car to get a gun. The defendant said he had killed Percy out of a fear for his own life. He also testified that his eyesight was not good.

The defendant appeals his conviction on two grounds. He contends first that it was error for the trial court to overrule his objection and allow the State to recall as a witness the victim’s mother to testify to the size, position, and nature of her son’s shotgun wounds. He also contends it was error for the trial court to overrule his objection to the prosecutor’s display and operation of the murder weapon during his cross-examination of the defendant. The defendant contends that both of these actions by the State, recalling the witness and operating the shotgun, were prejudicial and served to inflame the jury against the defendant.

The defendant also claims that these alleged errors violated the defendant’s state and federal constitutional rights. Because these constitutional contentions were brought up for the first time on appeal and were not elaborated on in the argument portion of the defendant’s brief, they are deemed abandoned. State v. Owens, 550 S.W.2d 211, 214[3, 4] (Mo.App.1977); State v. Schulten, 529 S.W.2d 432, 434[4] (Mo.App.1975).

We turn now to the merits of the defendant’s contentions that the State was allowed to indulge in actions whose sole purpose was to prejudice the jury against the defendant. The defendant first asserts that it was error for the court to allow the State to recall the defendant’s wife to the stand to tell about her son’s wounds because her testimony was merely cumulative to that given previously by the coroner. Thus it served no useful purpose. As further reason, he submits the spectacle of the grieving mother, on the stand for the second time, describing her son’s injuries could only serve to arouse the jury against the defendant. It seems the defendant here is protesting both the nature of the testimony and the circumstances under which it was given.

As to the nature of the testimony, it was not cumulative to that of the coroner. Evidence is cumulative only if it “is additional evidence of the same kind tending to prove the same point as other evidence already given.” State v. McCabe, 512 S.W.2d 442, 444[5] (Mo.App.1974). The coroner’s testimony about the wound only tended to prove that it had caused Percy’s death. He described it as a large wound that entered Percy’s right shoulder and damaged his right lung, leading to a fatal hemorrhage of that lung. The testimony of the victim’s mother tended to prove a different point, how close defendant was when he fired. She described the wound as consisting of one hole. Her testimony followed immediately that of a police officer who testified that at a distance of ten feet or more, a wound from a shotgun would consist of many small holes rather than just one large hole. Thus her testimony was not cumulative.

Moreover, even if it had been, there would be no error in admitting it. It is a matter of the trial court’s discretion to admit cumulative evidence so long as it is relevant. State v. McCabe, supra at 444[8]. There can be no doubt evidence about the firing distance was relevant since the defendant claimed he shot his stepson because he thought Percy was getting a gun. How close he was to Percy when he fired the fatal shots, bears on the believability and reasonableness of this claim.

There was no abuse of the trial court’s discretion to admit cumulative evidence here, especially in light of the State’s need to prove its case, including lack of self-defense, beyond a reasonable doubt. State v. Evans, 406 S.W.2d 612, 617[9] (Mo.1966).

Besides the cumulative nature of the testimony, the defendant is complaining about the supposedly prejudicial effect of recalling the victim’s mother to give it. Again, though both recalling witnesses and admitting potentially prejudicial, but relevant, evidence are matters within the trial court’s discretion. State v. Adams, 380 S.W.2d 362, 367[4] (Mo.1964); State v. Hammontree, 177 S.W. 367, 368[2] (Mo.1915); State v. McCabe, supra at 444[9]. There was no abuse of that discretion here. The defendant’s first contention is therefore rejected.

The defendant’s second complaint is that it was error for the trial court to allow the prosecutor to display and operate the shotgun used to kill Percy Robertson while he cross-examined the defendant. Although the transcript is not entirely clear, it seems that while the prosecutor was questioning the defendant about whether he had to push the first shell into the chamber of the gun or whether the gun was already ready to fire, the prosecutor held the weapon and went through the motions necessary to push a shell into the chamber and pulled the trigger. It appears, then, that the prosecutor’s conduct was directly related to the questions he was asking, which questions went to the element of deliberation and thus were relevant to show first degree murder.

This was not, therefore, a case in which the only purpose of the prosecutor’s conduct could have been to inflame the jury. Rather, his conduct here was part and parcel of his cross-examination of the defendant. Again, it is within the trial court’s discretion to control cross-examination. State v. Smith, 534 S.W.2d 604, 610[5] (Mo.App.1976). This goes just as well for its control over the State’s demonstrative use of the murder weapon during cross-examination of a defendant claiming self-defense. State v. Maggitt, 517 S.W.2d 105, 107-08[2, 3] (Mo. banc 1974). We find no abuse of that discretion here. Therefore, the defendant’s second contention is also rejected.

The judgment is affirmed.

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


text:
    STATE of Missouri, Plaintiff-Respondent, v. Carlos E. RUTHERFORD, Defendant-Appellant.
    No. 38048.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 26, 1977.
    Bussey, Collier & Dorsey, P. C., Hugh J. White, St. Louis, for defendant-appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Evelyn M. Baker, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

This is an appeal by the defendant-appellant, Carlos Rutherford, from a judgment of conviction entered by the circuit court of the City of St. Louis. The appellant was found guilty by a jury of the offense of tampering with a motor vehicle, § 560.175 RSMo 1969 and the court, under the Second Offender Act, sentenced him to the department of corrections for a term of four years. § 556.280 RSMo 1969. Defendant appeals. For reasons hereinafter stated, we affirm.

The evidence supports the conviction. Mrs. Juanita Villani testified that on September 27, 1972, she parked and locked her 1968 Oldsmobile on the Southtown Famous-Barr Store lot. She testified that her ignition was in normal condition before she locked the auto and entered the store. Upon leaving the store and approaching her auto, she saw four people in the custody of the police. Mrs. Villani testified that both doors of her car were unlocked and the ignition was damaged. Mrs. Villani also testified that she had not given anyone permission to enter her vehicle.

Officer Bernard Goforth, testifying for the State, stated that upon leaving the Famous store he saw four individuals sitting in a blue Chevrolet parked on the lot near the 1968 Oldsmobile. There were two males in the front seat and two females in the back seat. He testified that he observed Rutherford leave the Chevrolet and enter the Oldsmobile. As he approached the car he saw Rutherford lay down on the seat. Rutherford then left the car, dropping a dent puller and screwdriver onto the parking lot. At this point Goforth arrested and searched the four individuals.

The defense offered the testimony of Gail Trice. She testified that she was a very good friend of the defendant and that defendant did not tamper with the automobile. On cross-examination it was brought out that appellant was the father of her child.

The first point raised by appellant is that the court erred in taking jurisdiction of the case because the defendant was extradited from Nevada to Missouri without complying with Nevada’s extradition statutes in violation of his civil rights. This contention is dismissed as it has not been preserved for appellate review. The point was neither raised at trial nor raised in the motion for a new trial. State v. Belleville, 530 S.W.2d 392 (Mo.App.1975). While defendant personally stated at the time of sentencing “. . .1 think I was extradited from Las Vegas illegally . . .”, this does not preserve the extradition contention for appellate review.

Appellant’s second contention is that the’ court erred in not permitting defense counsel to comment on the lack of evidence collected by the Evidence Technician Unit (ETU) in closing argument. Appellant argues that sufficient evidence was produced at trial to permit the argument. We disagree.

The appellant argues that the testimony of Mrs. Villani and Officer Goforth supports his contention. During Mrs. Villani’s cross-examination the following statements were made:

“Q. During this time were you talking to the policeman?
A. Yes.
Q. Did you see them take fingerprints?
A. Yes, I did.
Q. And you saw dusting powder?
A. Yes, sir.”

During Officer Goforth’s cross-examination the following testimony was given:

“Q. Did you call the evidence technician unit to the scene?
A. Yes, I did.
Q. Were you there when they arrived?
A. Yes, I was there when they arrived.
Q. And do you recall who the technician was?
A. I can’t recall.
Q. And did you stay while they processed the Oldsmobile?
A. I can’t recall that.
Q. Don’t remember if you did or didn’t?
A. That’s correct.”

In closing argument defense counsel attempted to comment on the fact that the ETU arrived on the scene and dusted for prints. The prosecuting attorney objected on the ground that the statement was an improper argument. The court sustained the objection and also prohibited defense counsel from commenting on the fact that no evidence of the fingerprints was brought forward.

The issue here is whether, in view of the above evidence, appellant was entitled to argue to the jury, the absence of fingerprints. A similar situation occurred in State v. Woodson, 522 S.W.2d 651 (Mo.App.1975). In that case the officer’s testimony was similar to that of Officer Goforth’s testimony in this case. The court held that the testimony did not prove that police searched for and did or did not find fingerprints of appellant on any item that he might have touched. Nor was it “incumbent upon the state to take defendant’s fingerprints from the articles that he touched or, if taken, to produce them in evidence. Nor is the state required to account for their absence.” State v. Holmes, 389 S.W.2d 30, 34 (Mo.1965).

In State v. Dethrow, 510 S.W.2d 207 (Mo.App. 1974) the arresting officer was also questioned as to the presence of ETU and their purpose. The officer was not present when the car was processed. The court held that, as no proof of the absence of fingerprints was developed, the court was not in error in preventing defendant from arguing an issue not in evidence. “A simple solution to the whole problem would have been for defendant to call as his witness the ETU to establish what, if anything, it did or found.” State v. Dethrow, p. 211.

It is not clear from the victim’s testimony that fingerprints were in fact obtained at the scene. She was testifying as a lay person as to what she observed the police do at the scene. She saw the police “dusting” for fingerprints in an attempt to obtain them. There is certainly no evidence that as a result of the police “dusting” that fingerprints were obtained.

It was not established that the officer was present during the processing for fingerprints. This coupled with the testimony of a lay person is inadequate to establish the absence of fingerprints. The argument was properly excluded.

The third contention raised is that the court erred in allowing repeated questioning over defense counsel’s objections of defense witness Gail Trice regarding irrelevant material relating to her child. We disagree.

During cross-examination of defense witness, Gail Trice, the following occurred:

“Q. Do you have any children?
MR. WEBB: Your Honor, I’ll object. I think this is irrelevant.
THE COURT: She may answer.
Q. (By Ms. Baker): Do you have any children?
A. Yes.
Q. How many?
A. One.
Q. Who’s the father?
MR. WEBB: Just a moment. I’ll object again.
THE COURT: Sustained.
Q. (By Ms. Baker): Is Carlos Rutherford the father?
A. Yes.
Q. You knew Carlos?
A. Yes.
Q. Were you pregnant by Carlos at the time?
MR. WEBB: Your Honor, I’ll object.
THE COURT: Sustained.
* * * * * *
Q. And he is the father of your child?
A. Yes.
MR. WEBB: I’ll object, Your Honor.
THE COURT: Sustained. Ordered stricken. The jury is instructed to disregard it.”

We reject appellant’s contention on two grounds. First, defendant was granted all the relief he requested from the trial court. The objections were sustained and the jury was instructed to disregard the question. State v. Cissna, 510 S.W.2d 780, 781 (Mo.App. 1974).

Secondly, the questions were relevant in establishing the interest and bias of the witness which are always legitimate areas of inquiry. State v. Williams, 513 S.W.2d 718[7] (Mo.App. 1974). It has also been held that a sexual relationship with a party is relevant to the interest and bias question. State v. Bland, 353 S.W.2d 584[6] (Mo.1962).

The appellant argues that these questions are immaterial and intended to prejudice the jury against the witness or party. We cannot agree. Ms. Trice was the defense’s only witness. She testified that the other male present, Yarbrough, not Rutherford, tampered with the automobile. The fact that Rutherford is the father of her child would indicate a very material interest on her part in the outcome of the trial. By permitting the question, the jury is made aware of the possibility of strong bias by the witness.

The judgment is affirmed.

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

      . Even if the extradition point was preserved, we believe it to be without merit. In Watson v. State, 475 S.W.2d 8 (Mo.1972), our Supreme Court stated at P. 12:
      “Furthermore, even assuming movant was returned to Missouri by forcible abduction and in violation of the extradition laws, the power of the circuit court to try movant for a crime committed within its territorial jurisdiction is not impaired. . .

        See also Frisbe v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Johnson v. Buie, 312 F.Supp. 1349 (W.D.Mo.1970); Huffman v. State, 487 S.W.2d 549 (Mo.1972).