author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Fred BARBER, Jr., Appellant.
    No. KCD 27390.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    Willard B. Bunch, Public Defender, Gerald Handley, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and SWOFFORD, J.
   SOMERVILLE, Presiding Judge.

Defendant stood charged by information with feloniously stealing over $50.00. He was tried before a jury and found guilty. In view of the jury’s inability to agree on his punishment, the court fixed and imposed a sentence of four years in the Missouri Department of Corrections. This appeal followed.

The following evidence presented at the trial was sufficient to permit a reasonable belief by the jury of defendant’s guilt of the charged offense beyond a reasonable doubt. About 5:50 p. m., on October 10, 1973, defendant approached the fine jewelry counter at Macy’s department store on the Plaza, in Kansas City, Missouri, and asked to see a men’s diamond ring. Specifically, he asked to see one certain ring with seven diamonds, weighing about a carat and a half, and valued at $750.00. A sales clerk (Kirk Reasoner) took the ring from beneath the counter and handed it to defendant for inspection. Defendant held it in his right hand for a minute or two, and when another customer several feet away asked the sales clerk the price of a certain watch, defendant closed his hand upon the ring, turned, and ran out of the store. Defendant did not pay for the ring and did not have permission to take the ring out of the store. The sales clerk gave chase until defendant was observed entering an automobile, which then drove away. The sales clerk copied down the license number of the automobile which defendant fled in, returned to the store, and gave the license number to the Plaza Security Police. The sales clerk positively identified defendant as the man who took the ring from the store on the day in question.

Although defendant did not testify, he did present four witnesses. Marvin Jacks, defendant’s cousin, was shown to have had exclusive use of the automobile whose license number was obtained by the sales clerk. Jacks testified that on October 10, 1973, he got off work at 3:00 p. m., and left his place of employment at 5:00 p. m., after spending the intervening two hours talking with friends. He was employed as a butcher at Winstead’s, located near the Plaza. From his place of employment he went to pick up his father and then went home. He did not stop his car while driving through the Plaza. He testified he did not see defendant after he got off work. He said he had been arrested for this crime but was never prosecuted.

Barbara Jacks, mother of Marvin Jacks, testified that she saw her son arrested in front of her home and saw the police search the automobile. She had not seen defendant, Fred Barber, nor was he present when her son’s arrest occurred. Carol Shanahan testified that she was chief criminal records clerk at the Jackson County Department of Corrections. She identified pictures of defendant made when he was taken into custody and placed in jail on October 12, 1973. Ken Cope, an employee of the Missouri Board of Probation and Parole, had known the defendant since May of 1973. He testified that he had never known defendant to wear an Afro hairstyle (the sales clerk reported to the police that the man who took the ring from the store had a medium length Afro hairstyle).

On appeal, defendant makes only one claim of error — that certain statements made by the prosecuting attorney during closing argument amounted to impermissible comments on his failure to testify. The controversial statements compositely read as follows: “There’s no one that could tell us where the ring is, no one could tell us where Fred Barber was that night . I feel the crucial issue in this case was did Fred Barber take that ring, and from the testimony of Marvin Jacks, from the testimony of Mr. Reasoner, and from the testimony of Detective Beck, and the lack of knowledge of where Fred Barber was that night — .” An objection followed asserting that the statement constituted a direct comment on defendant’s failure to take the stand and testify. The objection was overruled.

Defendant advances on appeal the frequently repeated argument that the complained of statements vitiated his constitutional right (Fifth Amendment, Constitution of the United States) to stand silent and were proscribed by Section 556.270, RSMo 1969, V.A.M.S., and Rule 26.08, V.A. M.S.

In addressing defendant’s singular claim of error, it is noted that cases dealing with analogous claims have required a direct and certain prosecutorial reference to defendant’s failure to testify in order to warrant a reversal. State v. Frankoviglia, 514 S.W.2d 536 (Mo.1974); State v. Jenkins, 516 S.W.2d 522 (Mo.App.1974), and State v. Voegtlin, 509 S.W.2d 488 (Mo.App.1974).

The complained of statements were not direct and certain references to defendant’s failure to testify in his own behalf since they were fairly susceptible of being variously interpreted by reasonable persons. One reasonable interpretation is that they constituted a fair summation (albeit an imperfectly worded one) of the testimony of defense witnesses Marvin and Barbara Jacks that they had not seen defendant on the day of the theft. Another reasonable interpretation is that they merely suggested that none of the witnesses called by defendant testified as to his whereabouts at the time of the theft. Argumentative reference to the fact that none of defendant’s witnesses testified as to his whereabouts was not tantamount to a direct and certain comment on his failure to testify in his own behalf. State v. Jenkins, supra, and State v. Maxwell, 376 S.W.2d 170 (Mo.1964).

In the argument portion of his brief, defendant proffers the unwarranted assumption that he was the only person who could have testified as to his whereabouts, and therefore the prosecutorial statements were a direct comment on his failure to testify. This contention is fallacious because the hypothesis upon which it rests lacks verity.

Since the complained of portions of the prosecutor’s closing argument fall considerably short of direct and certain references to defendant’s failure to testify, the trial court did not err in overruling defendant’s objection thereto.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: BILLINGS, Chief Judge.

license: Public Domain

text:
    Delia Maxine MAYO, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 9894.
    Missouri Court of Appeals, Springfield District.
    June 6, 1975.
    Motion for Rehearing or to Transfer to Supreme Court overruled June 17, 1975.
    Application to Transfer Denied July 14, 1975.
    Paul Crider, Jr., John D. Wiggins, Rolla, for movant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Chief Judge.

Appellant Delia Maxine Mayo sought post-conviction relief under Rule 27.26 V.A. M.S., from her ten-year prison sentence for second degree murder of her husband. The Circuit Court of Maries County sustained the state’s motion to dismiss appellant’s motion. We affirm.

Appellant was convicted by a jury in 1970 of the shooting-slaying of her spouse. Her direct appeal was ruled and the judgment affirmed by the Supreme Court in State v. Mayo, 487 S.W.2d 539 (Mo.1972). Appellant’s sole point, not properly preserved for appellate review but nevertheless considered and ruled, was directed to her cross-examination. She was asked if she had ever stabbed her husband in the abdomen, and she replied in the negative. The court concluded no error was committed.

In 1973 appellant sought federal habeas corpus relief from her incarceration in the United States District Court for the Western District of Missouri. Mayo v. Stoll, No. 73 CV-100-W-1 (W.D.Mo., August 16, 1973). She alleged she was denied due process of law by the prosecutor’s “knowing use during cross-examination of evidence which had no basis in fact.”

Appellant’s petition for writ of habeas corpus was dismissed without prejudice, the memorandum and order noting that the federal constitutional challenge to the prosecuting attorney’s actions was never presented to our Supreme Court and appellant had, therefore, failed to exhaust her adequate and available state remedies regarding the isshe.

Appellant then instituted this proceeding. As grounds for relief she alleged: “Petitioner denied due process of law by prosecutor’s knowing use during cross-examination of evidence which had no basis in fact — that is, evidence that the accused had on a prior occasion stabbed her husband, which constituted use of false testimony, which left a false impression with the jury when no opportunity presented itself for rebuttal.”

The state’s motion to dismiss these proceedings recites that appellant’s allegation was specifically raised and ruled adversely to appellant on direct appeal and consequently her Rule 27.26 motion failed to state any ground for relief. The motion to dismiss was sustained, and appellant’s motion to vacate sentence and judgment dismissed.

The trial court’s sustention of the state’s motion to dismiss appellant’s Rule 27.26 motion is equivalent to findings of fact and conclusions of law when the basis of the ruling sufficiently appears in the record. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975). The instant motion to vacate presented no issues requiring findings of fact and conclusions of law and was subject to summary dismissal by the trial court. Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974).

The appellant’s complaint was considered in detail and rejected on direct appeal and cannot be reconsidered in a post-conviction proceeding. Sweaza v. State, 515 S.W.2d 499 (Mo. banc 1974); Perryman v. State, 506 S.W.2d 480 (Mo.App.1974). Neither can a Rule 27.26 proceeding ordinarily be used as a substitute for direct appeal involving mere trial errors (Rule 27.-26(b)(3)), and error in the admission of evidence is mere trial error not cognizable in Rule 27.26 proceedings. O’Neal v. State, 486 S.W.2d 206 (Mo.1972); Perryman v. State, supra.

The appellant’s assertion that the question propounded by the prosecutor deprived her of her constitutional right to due process of law is not sufficient to elevate the status of trial error to constitutional standards. Jones v. State, 504 S.W.2d 231 (Mo.App.1973); O’Neal v. State, supra.

The judgment is affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    Wilbur LaBORE, Respondent, v. CLARK OIL AND REFINING CORPORATION, Appellant.
    No. KCD 26977.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    Kelly Pool, Jefferson City, for appellant; Hendren & Andrae, Jefferson City, of counsel.
    Michael P. Riley, Jefferson City, for respondent; Carson, Inglish, Monaco & Coil, Jefferson City, of counsel.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

This is an action for damages for an alleged wrongful termination of a service station lease. A jury returned a verdict for plaintiff in the amount of $10,000, which was $1,850 more than his prayer. Plaintiff entered a voluntary remittitur for $1,850, and on September 21, 1973, a notice of appeal was filed which recited that the appeal was taken from the judgment of September 17,1973. After arguments and submission of the case to the court it was discovered that there had been no entry of judgment upon the jury’s verdict. The appeal was thus premature. That defect has been remedied. On April 21,1975, the trial court again took up the motion for new trial, overruled it, accepted the remittitur, and entered judgment “nunc pro tunc” in the amount of $8,150 for plaintiff.

The dispositive issue on this appeal is the sufficiency of plaintiff’s evidence of damages and future damages on his written lease of August 14, 1971. For the reasons hereinafter discussed, that evidence is insufficient and the case must be reversed and remanded for new trial. A collateral issue concerns the admissibility of defendant’s pleaded “Surrender of Lease and Assignment of Insurance” which was admitted for the limited purpose of impeachment of plaintiff, he having admitted that he signed it.

The relationship of the parties began on June 15, 1970, whereby plaintiff leased the service station and agreed to pay as rental one cent per gallon of gasoline sold. Sometime subsequently, by an undated “Waiver of Rental”, defendant agreed to reduce the rental to “none per gallon” and presumably this waiver continued until the lease in question was made between the parties on August 14, 1971. It is upon this lease that plaintiff’s claim to relief is premised. Under this latter lease agreement, defendant leased the service station premises and certain fixtures, equipment, machinery and appliances located thereon, for a rental equal to one-tenth of one cent per gallon of gasoline “(Sold from) or (delivered to) the demised premises each day during the term * * *.” It appears from the record that this ambiguous provision was treated by the parties as a rental of one-tenth of one cent per gallon of gasoline sold each day. Plaintiff’s evidence as to past net profit from the operation of the service station began with the month of January, 1971, and continued through the month of December, 1971. It is apparent that the months of January through July, 1971, with respect to net profits were not referable to the written lease in question of August 14, 1971, even though the previous rental agreement was for a greater amount, i. e., one cent per gallon of gasoline sold per day. But the trouble with plaintiff’s proof of past profits so as to show a reasonable probability of loss of future profits (as submitted in Instruction No. 5, claimed by defendant to be erroneous) is that in his own testimony he acknowledged that the figures he presented to the jury included a subsidy or gratuity paid to him by defendant. The matter arose in this manner: Plaintiff offered a summary of net taxable profits taken from the bookkeeper, as embodied in plaintiff’s Exhibit 2. This showed for the entire year of 1971 a figure of $9,359.67, which plaintiff divided by 12, or $779.97, as his damages for loss of future profits which he was asking the jury to award him. “MR. POOL: Does this include voluntary payments in months when you were not making money? MR. RILEY: I object to that. The documents speak for themselves, and they were prepared by Clark. THE COURT: Overruled. MR. POOL: He referred to them as net taxable profit. Does it, Mr. LaBore? THE WITNESS: I am not sure. MR. POOL: They paid you money apart from your lease on months you weren’t making any money? THE WITNESS: Subsidies, yes. MR. POOL: Then I object to it. It doesn’t show his net taxable profit, Your Honor. THE COURT: Mr. LaBore, did you pay tax on the sums of money you showed on there and report that as your gross income? THE WITNESS: I am not sure.” [Italics added.] On cross-examination: “Q. Now, you testified earlier about your ‘net profit’ for the year 1971 on this station; and you also told me that that figure included a number of subsidies Clark voluntarily paid you; is that correct? A. Yes. Q. Do you recall about the amount of those? A. No, I don’t. Q. It was several thousands of dollars, was it not? A. Could have been. Q. Those were payments made to you because the station wasn’t doing very well, wasn’t it? A. Certain months, yes, sir.”

“The same rules applicable to recovery of lost profits generally are applied to injuries to established businesses. Thus, the prospective profits from an established business, prevented or interrupted by breach of contract, are recoverable when it is proved (1) that the loss of profits may reasonably be supposed to have been within the contemplation of the defaulting party when the contract was made as the probable re-suit of a breach, (2) that it is reasonably certain that such profits would have been realized except for the breach of contract, and (3) that such lost profits can be ascertained and measured, from the evidence introduced, with reasonable certainty.” 22 Am.Jur.2d Damages, § 177, p. 252. See the quote, and other cases and authority cited, in Coonis v. Rogers, 429 S.W.2d 709, 714 (Mo.1968), “ ‘[B]ut proof of the income and expenses of the business for a reasonable time anterior to its interruption, with a consequent establishing of the net profits during the previous period, is indispensable. Fuchs v. Curran Carbonizing & Engineering Co., Mo.App., 279 S.W.2d 211.’ ” Plaintiff’s proof in this case of his past net profits is insubstantial by reason of his acknowledgment that he received subsidies or gratuities from defendant during 1971, and his inability to testify that his “net taxable profits” did or did not include subsidies. Any award of the jury for loss of future net profits is thus not supported; the award would have to be based upon speculation and conjecture. Warner v. Southwestern Bell Telephone Company, 428 S.W.2d 596, 604[20-26] (Mo.1968). Here the giving of Instruction No. 5, submitting to the jury the matter of future damages is in error, necessitating a new trial.

The “Surrender of Lease and Assignment of Insurance” was pleaded by defendant as an affirmative defense. It is dated January 17, 1972, and recites, “WHEREAS, the lessee is desirous of yielding up possession of the premises and of being absolved from further liability for the payment of rent and all other liabilities under said lease; and WHEREAS, the lessor is willing to accept the surrender of the possession of the premises; * * Plaintiff testified that he signed the lease but did not know that he did so; it was among other papers which he signed which he acknowledged had to do with a surrender of the lease; and he had not been given a copy of the surrender and he never agreed to it. When offered, the surrender was objected to upon the ground that it was not executed by defendant’s marketing vice president under the clause of the original lease, “This lease constitutes the entire agreement and understanding between the parties hereto, superseding all previous leases and no modification or waiver of any of the provisions hereof, nor extension except as otherwise provided for herein, shall be binding upon lessor unless in writing and signed by LESSOR’S Marketing Vice President.” [Italics added.] The surrender was signed by plaintiff and “Clark Oil & Refining Corporation by D. W. DeNeff” who testified that he was defendant’s district manager. Plaintiff’s position was that the surrender was a modification which could not be made unless executed on behalf of the defendant by its marketing vice president, and since it was not, the surrender was not mutually binding. The court excluded the surrender except for the limited purpose of impeachment of plaintiff or as an admission against interest on his part. There was no offer of proof of the document for defense purposes, and an instruction that the jury should find for defendant if it is found that plaintiff signed and delivered the surrender of lease to defendant was refused. No point is made here as to that refusal, nor is any expression made by this court as to the correctness of the instruction. The evidence is that defendant took possession of the station after surrender and plaintiff departed therefrom. If properly proved, offered and submitted, the lease surrender is certainly a defense to plaintiff’s claim. Certainly it is not a modification or a waiver. Van Deusen v. Ruth, 343 Mo. 1096, 125 S.W.2d 1 (1938); Trustee Co. v. Bresnahan, 119 Colo. 311, 203 P.2d 499 (1949); 76 C.J.S. Release § 2, p. 629. See also 51C C.J.S. Landlord & Tenant § 120, et seq., p. 388, et seq., and particularly § 128, p. 410.

The judgment is reversed and the case remanded for new trial.

All concur.


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James JONES, Jr., Defendant-Appellant.
    No. 36149.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 27, 1975.
    Jerry Lybarger, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., G. Michael O’Neal, K. Preston Dean, II, Asst. Attys. Gen., Jefferson City, Timothy Verhagen, and Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant was convicted of robbery in the first degree by means of a dangerous and deadly weapon and sentenced under the Second Offender Act to 25 years imprisonment. Defendant’s appeal challenges the sufficiency of the evidence.

In considering an appeal where the issue presented is the sufficiency of the evidence, we review the evidence in the light most favorable to the State, disregarding evidence and inferences therefrom which are contrary. State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975). From the evidence presented, the jury could find that on July 18, 1973 a robbery occurred at the Speckert Drug Store at North Broadway and East Prairie Avenues in St. Louis, with the robbers obtaining about $1,500 in cash and personalty. Three men entered the store about 3 p. m. While one of the men held a sawed-off shotgun to the head of the drug store pharmacist and threatened to blow his head off, the other two men took money from the cash register and a metal locker in the drug store. Wallets and watches were also taken. A sales clerk working in the drug store at the time of the robbery observed the defendant standing outside in front of the store while the robbery was in process. The sales clerk, who knew the defendant by name and who had known the defendant as a customer in the store on previous occasions, testified that during the robbery the defendant stood outside the front door looking up and down the street and occasionally inside the door. The sales clerk also testified that as the robbery approached its conclusion, the defendant opened the door, entered the store and with gesticulations urged the robbers to “come on”; that defendant joined the three robbers and they all fled together on East Prairie Avenue. Defendant’s defense was that he was elsewhere in the company of others at the time of the robbery.

On appeal, defendant asserts that there were certain discrepancies between the sales clerk’s testimony at trial and that given by him at the preliminary hearing; that by reason thereof, the evidence was not sufficiently substantial to support the conviction. While the defendant complains of inconsistencies in the testimony of the State’s witness, we observe that there were substantial variances in the testimony of defendant’s alibi witnesses. However, the circumstance of the inconsistent testimony goes only to the weight and credibility of the testimony, not the submissibility of the case, and is therefore a matter for jury determination. State v. Williams, 515 S.W.2d 544 (Mo.1974); State v. Jackson, 519 S.W.2d 551 (Mo.App.1975); State v. Banister, 512 S.W.2d 843 (Mo.App.1974). Our function is not to substitute our judgment for the jury’s but to determine whether there is sufficient, competent evidence to support the jury’s findings. State v. Gamache, 519 S.W.2d 34 (Mo.App.1975).

In this case, defendant was linked to the robbery of the Speckert Drug Store. Evidence fairly showing any form of active participation in a crime is sufficient to support a conviction. State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969); State v. Jackson, supra; State v. Rice, 511 S.W.2d 444 (Mo.1974). Presence, companionship and conduct before, during and after the commission of an offense are circumstances from which participation in the criminal act may be inferred. All persons who so participate, having acted together with common intent and purpose, may be held responsible for the acts of those with whom they acted and may be found guilty as a principal of the commission of such crime. State v. Ross, 502 S.W.2d 241 (Mo.1973); State v. Jackson, supra; State v. Hudson, 508 S.W.2d 707 (Mo.App.1974). From the record in this case, we find that there was sufficient substantial evidence to support defendant’s conviction of robbery in the first degree.

The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . § 556.280 RSMo 1969, V.A.M.S.


author: SHANGLER, Judge.

text:
    STATE of Missouri, Respondent, v. George W. BROWN, Appellant.
    No. KCD 27313.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.

      Willard B. Bunch, Public Defender, 16th Judicial Circuit, Robert A. Simons, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

The defendant appeals from a conviction of manslaughter and a sentence of imprisonment for a term of ten years.

The defendant and one Henry Piggie, Jr. had joined a number of others in a game of dice. As the afternoon progressed, they drank and quarreled, and after Piggie passed out from an excess of consumption, the defendant struck him on the head with a metal stool and caused his death.

At the beginning of the trial, the prosecutor announced that his first witness was to be Gerald Fortney, a member of the Kansas City, Missouri Police Department who was soon to leave for Mexico on official business. The defense counsel was aware that Fortney intended to testify to an oral statement made by the defendant in his presence which contained an admission that defendant had struck the blow which killed Piggie. The defense counsel objected to the reception of any statement made by the defendant until the State first established, by other evidence, the corpus delecti. The trial judge overruled the objection with this comment:

We have wasted so much time in this case already. We have burned up much of it unnecessarily. I felt you all took too long to make your strikes to start with, and we fooled around with these motions this morning and there was much more testimony than was necessary and we can’t move the docket when all we’ve got is all these delays, so I will overrule the motion. Let’s proceed.

This expression went without challenge by the defendant and the case proceeded to trial. He now complains, as he did for the first time on motion for new trial, that the judicial comment evinced an attitude of prejudice toward any evidence which the defendant might adduce and thus denied him a fair trial. A party who believes, however, that the remarks of the court at the trial have prejudiced his cause must object immediately so that the court may correct any erroneous impression. It is not enough to make the claim of prejudice for the first time on the motion for new trial. State v. McCullough, 411 S.W.2d 79, 81[1—3] (Mo.1967). Failure to lodge a timely objection waives the error unless the prejudicial effect cannot be eradicated. State v. Hudson, 358 Mo. 424, 215 S.W.2d 441, 442[3] (1948).

The remarks of the trial court, in any event, were only hortative to an expeditious disposition of the litigation, and in terms were directed to both litigants without partiality. It could not have impaired a fair trial by the jury and, accordingly, was not an abuse of discretion. State v. Fletcher, 190 S.W. 317 (Mo.1916); State v. Thursby, 245 S.W.2d 859 (Mo.1952).

The defendant complains also that the court improperly allowed as evidence a photograph of the site of the homicide. The exhibit, in muted color, depicts the torso of Piggie lying upon the wall of the porch where he was struck down by the defendant and is marked by a stain of blood trailing from the head of the victim down along the wall to the ground below. The defendant contends that this depiction was gruesome and gory and served no evidentiary purpose and was offered merely to inflame the jury. The defendant contends further that any fact material to the State’s case shown by that exhibit was already shown with dispassion by another item of photographic evidence, exhibit No. 7, so that the subsequent exhibit added nothing to the knowledge of the jury. Since exhibit No. 7 was not made part of the record on appeal, however, we are not able to test the validity of that assertion.

It is the general rule that photographs are admissible if they tend to show the conditions existing at the scene of the crime and enable a better understanding of how the facts and circumstances detailed by witnesses bear upon the material matters at issue. State v. Brown, 312 S.W.2d 818, 822[3—7] (Mo.1958). Thus, when it is material to the issues, a photograph of the deceased may be admissible in a prosecution for homicide even though a gruesome or shocking aspect of the representation may tend to excite the passion of the jury, provided the probative value of the exhibit outweighs the danger of prejudice to the accused. State v. Jackson, 499 S.W.2d 467, 472[8] (Mo.1973). In this determination, the trial court owns a wide discretion. State v. Stevens, 467 S.W.2d 10, 24[16-18] (Mo.1971). It is not a valid objection that the evidence depicted by the photograph has been given by oral testimony or that it is cumulative. State v. Spica, 389 S.W.2d 35, 55[35-37] (Mo.1967); State v. Tyson, 363 Mo. 1242, 258 S.W.2d 651, 654[3, 4] (1953).

On these principles, the photographic exhibit was properly received as evidence. The State presented evidence of a homicide done with deliberation, and the defendant asserted self-defense. The instructions submitted were on murder in the first and second-degree, manslaughter and justifiable homicide. The jury was entitled to a clear impression of the crime scene in order to make an intelligent determination of these issues. The exhibit was of value, prima facie, to a better understanding of the positions and movements of the principals preceding the fatal assault, and bore directly on the material issues of unlawful or justifiable homicide. For example, the position of Piggie on the wall ledge and the incidence of blood on the outside of the wall, but not on the inside, lends support to the oral testimony of State’s witnesses that Piggie was lying down when struck. The height of the wall was also relevant to the claim of self-defense, in that Piggie’s threat to throw him off the porch precipitated the chain of events which led to his assault upon Piggie.

There is no complaint that the photographic exhibit did not accurately represent the subject depicted; if it was gory and shocking, it was because that was the nature of the crime, whether described by word or picture.

The judgment is affirmed.

All concur.


text:
    Raymond D. COLLINS, Plaintiff-Appellant, v. Raymond BOWYER, Defendant-Respondent.
    No. KCD 27336.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.

      James J. Wheeler, Keytesville, for plaintiff-appellant.
    Jack Lukehart, Brunswick, for defendant-respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

This is an action for damages to automobiles occasioned by an intersectional collision. Plaintiff pleaded defendant’s negligence, defendant pleaded plaintiff’s contributory negligence, and also counterclaimed. Trial was to the court sitting without a jury, and only the plaintiff and the defendant testified as to the accident itself. Without making specific findings, the trial court rendered judgment for defendant on plaintiff’s petition and for plaintiff on defendant’s counterclaim. The plaintiff claims that the evidence conclusively established defendant’s negligence and that there was no evidence from which negligence on the part of plaintiff could be inferred.

The testimony of plaintiff and defendant insofar as it addressed the particulars of the accident follows.

In April of 1970, plaintiff was a salesman for Central Soya Company. His territory covered 15 counties in northeast Missouri, and this employment required him to travel throughout these 15 counties. Around 2:50 p. m., on the afternoon of April 30, 1970, he was on his way to Indian Grove, Missouri from Salisbury, Missouri, and was headed north on Route F when he was involved in an automobile accident which is the subject of this litigation. He was driving a 1968 Buick Wildcat which was in good mechanical condition, and was traveling at a speed of 55 miles per hour. Route F is a blacktopped, farm-to-market road, and is intersected by an east-west gravel road some 3 miles south of Indian Grove. Ten feet east of Route F on the north side of the gravel road was a stop sign for traffic proceeding west on the gravel road. To the south of this intersection was a slight rolling hill which crested approximately 100 yards from the intersection. It had been drizzling on the day in question and the road was wet. Plaintiff had his windshield wipers in operation and had clear visibility ahead. As he crested the hill he observed a pickup truck (driven by defendant) entering Route F from the gravel road. The truck was coming from the east and was making a right turn to go north. Plaintiff said he started to apply his brakes, started sliding, and then, seeing he was not going to be able to stop in time, tried to go around the truck on the left. Plaintiff’s right front bumper caught about three inches of the truck’s rear bumper. Plaintiff testified that when the collision occurred, the truck was three feet west of the center line of Route F headed in a northerly direction (angled slightly to the east), and that his own automobile was completely on the west half of Route F. He estimated that his Buick Wildcat automobile was worth $1700 or $1800 less after the accident than it was worth immediately prior to the accident.

On cross-examination it was brought out that plaintiff called upon 25 or 30 customers in the 15 counties he serviced. He would see them about once every 10 days. On the day in question, he had a 3:00 p. m. appointment with Mr. Switzer in Indian Grove. He reiterated he was driving at 55 miles per hour and said he knew the blacktop was slick. He was familiar with the road, having driven it around 100 times before. He knew it was hilly and that it was intersected by side roads about every section. He also acknowledged that it would not be unusual for traffic to be entering Route F from these side roads. He testified that considering the conditions of the road he did not feel he could have stopped had he been going 45 miles per hour instead of 55 miles per hour. He could have possibly stopped had he been going 35 miles per hour. He then testified when he first saw the pickup truck it was approaching the stop sign and did not stop, but came on out onto Route F. The pickup truck had gone about 10 or 20 feet north on Route F when the collision occurred.

On the afternoon of April 30, 1970, defendant had been visiting a friend in Chari-ton County, and upon leaving traveled the gravel road westward to Route F. He stopped at the stop sign, looked to see if there were any cars coming, and, seeing none, pulled onto Route F and headed north. He testified that he could not see south all of the way to the crest of the hill from the stop sign, because it was raining at the time and it was 45 paces from the intersection to the crest of the hill. It then seemed like his truck blew up as his truck was picked up and set over onto the berm of the road. The first time he knew he had been struck by another car was after the accident when he looked back through the rear window and saw the Buick Wildcat sitting in the ditch. Defendant was on his side of the road as far as he could be when he was struck. He also testified he had traveled 40 feet north on Route F when he was struck. While he and Mr. Collins were at the scene waiting for the highway patrolman, Mr. Collins told him, “You know, I didn’t see you until about the time I hit you.”

The case being decided below without opinion and without findings of fact, the judgment must be affirmed if it can be sustained on any reasonable theory supported by the evidence. McCrory v. Monroe, 336 S.W.2d 118 (Mo.App.1960); McIntosh v. White, 447 S.W.2d 75 (Mo.App.1969). The judgment for defendant on plaintiff’s petition can be supported by a finding that defendant was not negligent or by a finding that plaintiff was contributorily negligent. Webb v. Hawkins, 439 S.W.2d 768 (Mo.App.1969). Since all fact issues upon which no specific findings are made are deemed found in accordance with the result reached [Rule 73.01(b), Y.A.M.R.], the judgment will be affirmed if the evidence supports either a finding that defendant was not negligent or a finding that plaintiff was contributorily negligent.

The evidence supports a finding that plaintiff was contributorily negligent by driving at an excessive speed. Even though there was no evidence that plaintiff was driving in excess of the speed limit, this does not foreclose a finding that plaintiff was negligently driving at an excessive rate of speed. Whether a particular speed is high, dangerous and excessive depends upon the condition of the highway and the surrounding facts, circumstances and conditions existing at the time. Dorrell v. Moore, 504 S.W.2d 174 (Mo.App.1973); Calvert v. Super Propane Corporation, 400 S.W.2d 133 (Mo.1966).

Furthermore, while there was no direct and specific proof that the collision and resulting damage would not have occurred except for the excessive speed, such direct and specific proof of a causal connection between the excessive speed and the resulting damage was not required. “ ‘It is sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred’ ”, Watt v. St. Louis Public Service Company, 354 S.W.2d 889, 891[1—3] (Mo.1962); Calvert v. Super Propane Corporation, supra.

Such a causal connection can be inferred from the evidence in this case. Plaintiff himself testified that he was familiar with this hilly stretch of highway, having driven it approximately 100 times previously. He knew that it was a farm-to-market road intersected by many gravel roads, and that it was not unusual for vehicles to be entering the highway from these gravel roads. Furthermore, he knew the blacktop was slick, and, even though he felt he could not have stopped within 300 feet had he been driving at 45 miles per hour, he was driving at 55 miles per hour. When he applied his brakes at 55 miles per hour, he immediately began sliding.

In the exercise of the highest degree of care, plaintiff was bound to anticipate the possibility of vehicles suddenly emerging from side roads, and had the duty of maintaining sufficient control of his vehicle as would enable him to avert a collision in the event a vehicle emerged from a side road. Marshall v. Bobbitt, 482 S.W.2d 439 (Mo.1972). Yet by his own testimony, he knew that the side road was there, knew of the possibility of vehicles emerging therefrom, knew that the blacktop was slick, felt that he would not have been able to stop his vehicle within 300 feet had he been driving 45 miles per hour, but, nevertheless, proceeded to drive at 55 miles per hour. This evidence was sufficient to enable the trier of fact, the trial court in this case, to find plaintiff negligent and to find that this negligence directly contributed to cause damage to his automobile.

The judgment of the trial court, being supportable on a theory that plaintiff was contributorily negligent, the judgment is affirmed.

All concur.


text:
    KANSAS CITY, Missouri, Respondent, v. John D. DUGAN, Appellant.
    No. KCD 27380.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.

      Kenneth I. Grissinger, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, City Prosecutor, Walter J. O’Toole, Jr., Asst. City Atty., Kansas City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

A jury found defendant guilty of driving while intoxicated in violation of Section 34.-116, Revised Ordinances of Kansas City, Missouri, and imposed a fine of $230.00 as punishment. Defendant contends on appeal that the trial court erred (1) in not permitting him to cross-examine two of the city’s witnesses by asking them whether they agreed with a “statement” contained in “an authoritative journal” and (2) by admitting into evidence a so-called “Breathalyzer Log”.

Gerald Fletcher, an officer on the Kansas City, Missouri Police Department, testified that on August 28, 1973, at approximately 1:00 a. m., he observed defendant driving a motor vehicle in an erratic fashion on the streets of Kansas City, Missouri. He sig-nalled defendant to stop and to pull over to the curb. Thereupon, he noticed a strong odor of alcohol on defendant’s breath, that defendant was “swaying”, that defendant’s eyes were bloodshot, and that defendant’s speech was slurred. Based on the personal observations just mentioned, Officer Fletcher opined that defendant was intoxicated. Officer Fletcher further testified that he placed defendant under arrest for driving while intoxicated, transported him to police headquarters, and there administered to him a breathalyzer test, from which a reading of 0.19 was obtained.

Harry Gurin, an officer on the Kansas City, Missouri Police Department, presented as an expert witness by the city, testified, among other things, that he “serviced” the breathalyzer machine that was used to test defendant. He further testified that the particular breathalyzer machine was checked for accuracy on July 2,1973, and on September 2, 1973, dates prior and subsequent to August 28, 1973, the date it was used to test defendant, and on both occasions it was “in good working order.”

Edward Covey, a chemist for the “Regional Crime Laboratory”, testified that he had tested ampules containing chemical agents from the breathalyzer machine in question and found them to be within the required tolerance.

During defense counsel’s cross-examination of Officer Gurin, the following transpired:

“Q (By Mr. Grissinger, defense counsel) I will ask you to listen to this, and see whether you agree with this statement.
Mr. O’TOOLE (Assistant prosecutor): Your honor, I would object, until that particular item counselor is using is shown to be authoritative. It hasn’t been up until now. I have no idea what it is.
MR. GRISSINGER: It is my intention to read a scientific article, from a well known journal, and I don’t think I even have ti (sic) identify the author, under the rules of the court.
He has testified as an expert; and, I believe I may use it to test his qualifications, and see whether he agrees or does not agree with the various studies being done about the breathalyzer.
MR. O’TOOLE: It has got to be shown to be authoritative.
MR. GRISSINGER: It does not.
THE COURT: The objection is sustained.”

Defense counsel never advised the trial court as to either the nature or source of the “statement” he sought Officer Gurin’s concurrence in until after Officer Gurin left the witness stand. Belatedly, defense counsel made the following statement to the trial court: “. . . [I]t was my intention to read some work that was reported in J.A.M.A., the Journal of the American Medical Association, Vol. 226, Mo. 9, p. 1129, work done in Germany, on the breathalyzer itself”.

Subsequent to the belated “advice” referred to above, defense counsel, during his cross-examination of Edward Covey, again tried to read from the same article and to obtain a commitment from the witness as to whether he agreed or disagreed with it. Again, the city attorney objected, and the objection was sustained.

Defendant’s first point on appeal, verbatim, is “The court erred in not allowing the defendant to cross-examine a witness by use of an authoritative journal.” (Emphasis added.) Its inefficacy is revealed by the record. Defendant made no attempt to establish the authoritativeness of the article. He apparently labored under the misapprehension that he was given carte blanche to cross-examine the city’s witnesses by means of the article without laying any foundation that the article was authoritative.

Defendant neglected to favor the trial court or this court with a copy of the controversial article. However, this court’s independent research disclosed that what was characterized by defendant as a “scientific article” was, in fact, a one-column squib contained in the “International Comment” section of the Journal of the American Medical Association, Vol. 226, Mo. 9, p. 1129, reporting that some unnamed German scientists had engaged in a study culminating in a report which concluded that “blood alcohol testing” revealed a more accurate level of inebriation than “breath alcohol testing”. Even if one concedes that an aura of authority attaches to the Journal of the American Medical Association, it is patently obvious that the journal did not purport to lend the weight of its prestige to the study since the “full bloom” report was not published, but instead, briefly commented on in the journal by way of a one-column squib.

As previously mentioned, defendant made no effort whatsoever to establish the authoritativeness of the matter from which he sought to cross-examine the city’s witnesses. No claim of clairvoyancy is required to observe that the world abounds with self-appointed and self-proclaimed experts on virtually every subject that concerns or affects mankind. For this reason, and, as well, adherence to requirements which obtain to the exceptions to the hearsay rule, a party seeking to cross-examine a witness by means of an article or treatise must lay a foundation as to its authoritativeness. An article or treatise is not self-declaratory as being authoritative and, therefore, may not be indiscriminately used. See: Wigmore, Evidence (3rd Ed.), Vol. VI, § 1694, pp. 8—9. The fundamental propositions just mentioned are implicit in the case law of this state. MacDonald v. Metropolitan St. Ry. Co., 219 Mo. 468, 118 S.W. 78, 86 (1909), and Gridley v. Johnson, 476 S.W.2d 475, 481 (Mo.1972).

Three basic alternative methods have been judicially recognized for establishing the authoritativeness of an article or treatise for purposes of cross-examination. One method is for the trial court to take judicial notice that the article or treatise is authoritative. Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253, 259 (1965), and Jones v. Bloom, 388 Mich. 98, 200 N.W.2d 196, 206 (1972). A second method is for the witness sought to be cross-examined from an article or treatise to concede its authoritativeness. Grid-ley v. Johnson, supra, and Jones v. Bloom, supra. A third method is for the cross-examiner to prove the authoritativeness of the article or treatise by an independent expert. Gridley v. Johnson, supra, and Darling v. Charleston Community Memorial Hospital, supra. Defendant failed to avail himself of any of the recognized alternative methods. He did not ask the trial court to take judicial notice of the authoritativeness of the article from which he sought to cross-examine the city’s witnesses (in fact, he never presented the article to the trial court for its perusal); nor did he seek to have the witnesses who were being cross-examined concede that the article was authoritative; nor did he attempt to prove that the article was authoritative by an independent expert witness.

The trial court cannot be said to have abused its discretion in not taking judicial notice of the article when it was never asked to do so, and, especially so, when the article was never presented to the trial court for its perusal. The one-column squib manifestly lacked any foundation establishing it to be authoritative, and for this reason the trial court did not err in refusing defense counsel permission to utilize it as a basis for cross-examining the city’s witnesses.

Defendant’s second and final point on appeal, verbatim, is, “The court erred in allowing plaintiff’s Exhibit Number 1 to be introduced which purportedly was the breathalyzer log on instrument number 6231.” Rule 84.04(d), V.A.M.R., applicable to defendant by virtue of Rule 28.18, pointedly and succinctly requires that “. points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . .” (Emphasis added.) Even the most superficial reading of defendant’s second and final point discloses non-compliance with the controlling rule. Additionally, the imperfectly stated point was never raised in defendant’s motion for new trial, and, consequently, never preserved for appellate review. State v. Meiers, 412 S.W.2d 478 (Mo.1967); State v. Brookshire, 353 S.W.2d 681 (Mo.1962); and Rule 27.20.

Judgment affirmed.

All concur.


text:
    Leon Claude FRITZ, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27488.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.

      Willard B. Bunch, Public Defender, 16th Judicial Circuit, Henri J. Watson, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

This appeal is from a denial, after eviden-tiary hearing, of a Rule 27.26, V.A.M.R., motion to set aside a judgment and sentence for burglary.

The appellant contends (1) the failure of trial counsel to interview the State’s witnesses deprived him of the intelligent and knowing choice between a jury trial and a plea of guilty and (2) he was prejudiced when the trial judge advised the prosecutor how to properly phrase questions to the witnesses.

At the trial of the offense, the State presented four witnesses: the burglary victim, the two police officers who had investigated the burglary and Special Agent Kelly of the United States Treasury Department, who had arrested the appellant.

At the hearing on the Rule 27.26 motion, trial counsel for appellant conceded he had interviewed neither the police officers nor the victim because he already knew what their testimony would be. Trial counsel had, prior to trial, discussed the case with Special Agent Kelly; he had reviewed the statements of the police officers and Special Agent Kelly in the State file to which he had been given access by the prosecuting attorney; he had observed the scene of the crime and heard all the testimony of the witnesses for the State [except for Special Agent Kelly who did not testify] at the preliminary hearing. Counsel consulted with appellant about the case at least three times, advised him of the comparative merits of a trial or a plea and did not coerce the appellant to the trial alternative. Counsel also testified that he was not surprised at any testimony which was given by the State at the trial.

The appellant testified that he had retained the counsel [whom he now censures] for the trial of the burglary case. They consulted together three or four times and communicated effectively. They did not, however, discuss the possibility of a plea of guilty. The appellant never asked his counsel to withdraw; rather, after judgment of conviction, he retained him to pursue the appeal.

In order to support a claim of ineffective assistance of counsel under a Rule 27.26 proceeding, the movant must show that the conduct or dereliction of counsel so prejudiced him as to have deprived him of a fair trial; and it is not enough that counsel could have adopted a tactic or procedure other than that actually used. State v. Davis, 505 S.W.2d 115, 118[3] (Mo.App.1973). A movant who contends inadequate investigation by counsel has the burden of showing that a fuller investigation would have uncovered evidence which would have improved his trial position and that he was deprived of evidence of substance by such neglect to his prejudice. State v. Monteer, 506 S.W.2d 25, 28[8] (Mo.App.1974). Although the investigative techniques used by trial counsel here did not involve the direct confrontation of the State’s witnesses, there was no showing that appellant was deprived of evidence otherwise available by that method nor that the defense was in any manner prejudiced.

The appellant next contends that his trial was prejudiced when the court suggested to the prosecutor that the proper phrasing for a number of questions to which objections had been sustained. The appellant surmises that these judicial comments were expressions of opinion as to the worth of this evidence to the State. Three of these statements, concededly, were outside the hearing of the jury and so could not have had an adverse effect upon them. State v. Pearson, 519 S.W.2d 354 (Mo.App.1975). The appellant insists however, that this response of the court in the hearing of the jury to the objection of his counsel shows prejudice:

MR. FOX [counsel for appellant]:
I’m going to object to that because he’s testified, [sic] the evidence is in, he’s in police custody at this point. Now, the burden is on the State to establish what they told him with respect to his rights before any statement was made, if the Court please.
THE COURT:
Ask the officer that question, Mr. Smart, what he specifically said.

The appellant contends that by this ruling the court merely used the prosecutor as a conduit for judicial questioning. The record more fairly allows the conclusion that it was the objection itself which prompted the ensuing inquiry and that the comment of the court was equivalent to a ruling of “sustained”. In this context, the conduct of the trial judge was neither a disparagement of the accused nor an expression of favor for the prosecution, and thus a perfectly impartial exercise of his inherent function in the administration of justice. State v. Crockett, 419 S.W.2d 22, 27[10] (Mo.1967).

We note that in any event the contention the appellant attempts is at most a claim of trial error properly a subject for a motion for new trial, but inappropriate as a ground to vacate judgment. Cook v. State, 511 S.W.2d 819, 820[2] (Mo.1974). The appellant neither objected to the comments of the court at the trial of the offense nor did he preserve the contention of error by motion for new trial. It will not avail the appellant now to claim plain error under Rule 27.20(c) or to allege the denial of a fair trial as to a matter so clearly assertable only as trial error. Sallee v. State, 460 S.W.2d 554 (Mo.1970).

The judgment is affirmed.

All concur.


author: KELLY, Judge.

text:
    Riley James WILLIAMS, Movant-Appellant, v. STATE of Missouri, Respondent.

      No. 35851.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 27, 1975.
    Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City,

      Brendan Ryan, Circuit Atty., James C. Mul-doon, Asst. Circuit Atty., St. Louis, for respondent.
   KELLY, Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis denying appellant’s Amended Motion under Rule 27.26, V.A.M.R., to correct sentences imposed on him on May 28, 1970, on three charges of burglary in the second degree and stealing, one charge of felonious possession of burglary tools, and one charge of escaping custody before conviction, and allow him 135 days pre-conviction jail time he had accumulated awaiting disposition of the aforesaid charges. After an evidentiary hearing the trial court made findings of fact and conclusions of law and overruled appellant’s motion. This appeal followed.

Appellant was charged in the Circuit Court with three charges of burglary in the second degree and stealing in Causes numbered 1650-R, 1651-R and 1739-R; one charge of felonious possession of burglary tools in Cause number 1738-R; and one charge of escaping custody before conviction in Cause number 999-S. On May 28, 1970, appellant entered a plea of guilty to all charges and was sentenced to 42 months on each of the burglary in the second degree and stealing charges, the same term on the felonious possession of burglary tools charge, and two years on the charge of escaping custody before conviction, all sentences to run concurrently. Cumulated jail time was disallowed in each instance. On September 19, 1972, appellant filed his motion under Rule 27.26 and on June 15, 1973, filed his amended motion under Rule 27.26, alleging as grounds therefor that he was arrested on July 23,1969, was charged with the criminal charges enumerated supra and was detained in the St. Louis Municipal Jail and St. Louis City Workhouse pending disposition of the charges aforesaid, except for a period between October 17, 1969 and March 29, 1970, while he was an escapee from detention. He averred that Mr. David Y. Campbell, an attorney, was appointed to represent him on these charges and that Mr. Campbell and the Assistant Circuit Attorney handling his cases entered into an agreement prior to May 28, 1970, whereby “it was understood” that upon a plea of guilty the appellant would be credited for jail time; that his attorney assured him of this, although this assurance was false or mistaken and was a misrepresentation which constituted a denial of effective assistance of counsel, and that it was in reliance on these representations that he would be credited with his jail time that he entered the pleas for which he was then serving the sentences he sought to have corrected.

The evidentiary hearing was conducted on June 15,1973, and the trial court’s judgment was entered on November 19, 1973. Appellant’s counsel, Mr. Campbell, had died on September 23, 1971, almost one year prior to the filing of this motion. Appellant introduced into evidence a letter dated May 25, 1970, wherein Mr. Campbell advised him that he had arrived at a settlement of his five cases for a sentence of 42 months “with credit for jail time.” Appellant testified that in entering his pleas he was relying on Mr. Campbell’s assurances that jail time would be allowed but admitted, on questioning by the trial court, that Mr. Campbell had told him that the circuit attorney’s recommendation was not binding on the court, and that he, Mr. Campbell could not guarantee that the appellant would receive credit for his jail time, because whether he received credit for jail time was up to the discretion of the trial judge. Appellant testified that he understood at the time he entered his pleas of guilty to the then pending charges, that the trial court was not bound by any recommendation that the assistant circuit attorney might make.

The assistant circuit attorney who was assigned the cases and who was present at the time the pleas were entered by the appellant testified that while he had no independent recollection of the occasion when appellant pleaded guilty and sentence was imposed, there was no notation on his file with respect to a recommendation that jail time be allowed appellant, although his file did show that he had made a recommendation of a sentence of 42 months. He further testified that if he had agreed with appellant’s counsel to recommend jail time this would have appeared as a part of the notation on his recommendation in his file.

While the motion was under submission, on September 28, 1973, the sentences for which appellant sought an allowance of jail time expired. In his brief appellant filed as an appendix a letter from the Missouri State Penitentiary to his appointed counsel advising him that appellant completed service of the sentences imposed in the cases we have before us on September 28, 1973, and stating that he was then serving a two year sentence for escape imposed by the Cole County Circuit Court on November 20,1972. Appellant candidly admits that for that reason this cause may be moot. We agree.

The only relief sought by appellant in his motion was an allowance of his jail time. The Missouri cases hold that a defendant’s motion under Rule 27.26 is moot if he has been released from custody. State v. Brookshire, 377 S.W.2d 291, 292[2] (Mo.1964); Bibbs v. State, 476 S.W.2d 590, 591[1] (Mo.1972); Tyler v. State, 476 S.W.2d 611, 612[1] (Mo.1972). We conclude these cases are controlling. In State v. Stodulski, 298 S.W.2d 420, 422[2] (Mo.1957), the court said:

“It is clear, however, that the instant application is not within the provisions of S.C. Rule 27.26 because that rule by its specific language provides that a motion thereunder attacks the sentence under which petitioner is then in custody. Instant petitioner attacks a sentence which he had long since served in full; he is in custody under a sentence pronounced in an independent and long subsequent proceeding. For like reasons, and probably others, we may not treat the application, as it stands, i. e., where it attacks only the prior judgment, as one for a writ of habeas corpus.”

Nor are we unmindful of the holding in Carafas v. LaVallee, 391 U.S. 234, 237-240, 88 S.Ct. 1556, 20 L.Ed.2d 554[1] (1968) which stands for the proposition that a petitioner’s application for relief under the federal habeas corpus statute is not mooted by virtue of the fact that petitioner’s sentence has expired and he has been released from custody. However, the relief sought in Ca-rafas was the vacation of judgment and conviction not, as here, an allowance of jail time only, and for that reason we conclude it does not control here.

We have not been requested to consider appellant’s motion as a writ of error eoram nobis, but even had we been, the findings of the trial court that the evidence failed to establish: 1) that any agreement had been reached between the appellant’s attorney and the assistant circuit attorney with regard to jail time, 2) that appellant’s attorney, prior to entry of the guilty pleas, had assured the appellant that jail time would be allowed, and 3) that appellant’s pleas of guilty were not the result of false or misleading assurances of his counsel that he would be allowed jail time are supported by the evidence. Where there is conflicting evidence it is for the trier of the facts to resolve the conflicts and the credibility of the witnesses is for the trial court. The rule of deference is appropriate here and we defer to the factual findings of the trial court and affirm.

The judgment of the trial court is affirmed.

SMITH, C. J., and G. STEWART, J., concur.


author: DOWD, Judge.

text:
    CITY OF DES PERES, Missouri, Plaintiff-Respondent, v. Richard M. STAPLETON et al., Defendants, and Larry E. White et al., Intervenors-Defendants-Appellants. CITY OF DES PERES, Missouri, Plaintiff-Respondent, v. Robert STEINMEYER et al., Defendants.
    Nos. 35668, 35669.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 27, 1975.

      McDonald, Wright & Bryan, Clayton, Shulamith Simon, St. Louis, Merle L. Sil-verstein, Clayton, for intervenors-defend-ants-appellants.
    Sullivan & Evans, St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Appeal from a judgment in favor of the City of Des Peres in a declaratory judgment action to annex to the City of Des Peres certain unincorporated lands in St. Louis County. Appellants were intervenors in the suit below.

On February 22, 1971, the City of Des Peres passed two ordinances calling for the annexation of two abutting tracts of land and called for an election to be held to seek voter approval of the proposed annexations. The election was held on April 6, 1971, and the annexations passed by a majority of the votes in both the City and the unincorporated areas. Pursuant to § 71.015 RSMo 1969, V.A.M.S., the city filed petitions for declaratory judgment, praying that the court authorize the annexation of the two areas. Various parties were permitted to intervene as defendants in both suits, including St. Louis County. The suits were tried together by order of the trial court. Judgment was entered in favor of both annexations. Only the intervenors in one of the annexation suits (Number 35,668) have taken an appeal. Accordingly, there is no appeal from the annexation of the land involved in appeal number 35,669, and as to that tract of land, the judgment stands as entered.

The City of Des Peres is a Fourth Class City located in St. Louis County, Missouri. It is bordered on the north by the cities of Town and Country and Crystal Lake, on the east by Kirkwood and Frontenac, on the west by Town and Country and a small section of unincorporated land, and on the south by Kirkwood and unincorporated land that includes the two tracts proposed for annexation. The proposed area of annexation is rectangular in shape. Its boundaries are the City of Kirkwood on the east, the Missouri Pacific Railroad right-of-way on the south, Des Peres road on the west and the City of Des Peres on the north. The second tract of land was roughly of the same size and lay directly to the west of the subject tract. Approximately 5333 people live in Des Peres; 180 people lived in the proposed annexation at the time of the filing of this suit. The result of the election in the City of Des Peres was 805 in favor of the annexation, 314 against. In the area to be annexed, the vote was 73 in favor, 15 against.

On July 5,1973, the trial court entered its decree finding that:

“1. That the Defendants herein were fairly chosen and did adequately and fairly represent the entire class of persons to be bound by this judgment.
2. That the annexation of the areas, as described in Plaintiff’s Petitions, are reasonable and necessary for the proper development of the City of Des Peres.
3. That the City of Des Peres will be able to furnish the normal municipal services of said City to the areas to be annexed within a reasonable time after said annexations are to be effective.”

Appellants seek to overturn the order of the trial court for basically two reasons. First, the city did not establish a valid class action; and secondly, the city failed to demonstrate the reasonableness and necessity of the annexation.

Appellants’ first point on appeal is that the city did not meet its burden in establishing a valid class action. They base this contention on their assertion that the named defendants were not fairly chosen and did not adequately represent the whole class.

We note that § 71.015 RSMo 1969, V.A.M.S. provides that the vehicle for authorizing annexations shall be a declaratory judgment action against the inhabitants of the area and shall be brought as a class action under § 507.070 RSMo 1969, V.A.M.S. That section provides for class actions when the persons constituting the class are very numerous; in such a case, one or more of the members of the class as will fairly insure adequate representation of all may be sued. We further note that the Supreme Court Rule in effect at the time this suit was filed was 52.09(a), V.A.M.R., which provided that the defendants be “fairly chosen” and “adequately and fairly represent the whole class” and that the “plaintiff shall be required to prove such allegations . ” These provisions are mandatory. City of Aurora v. Coleman, 490 S.W.2d 668, 670 (Mo.App.1973). Their purpose is to insure adequacy of representation for those defendants not named and to prevent collusion. Sheets v. Thomann, 336 S.W.2d 701, 709 (Mo.App.1960).

Appellants cite us to three annexation cases where the class of defendants was held to be improper. In City of St. Charles v. Schroeder, 474 S.W.2d 55 (Mo.App.1971), an area with 4000 inhabitants was being annexed. The defendants were selected from a narrow geographic area. One entire area of land which was annexed was unrepresented, as were many of the subdivisions of the area. The defendants were selected at random from a list of residents that did not fairly represent the whole class of inhabitants of the area. The evidence showed much opposition to the annexation and none of the opponents were represented. There was a wide variety of land uses and some of the owners of this land were not represented. In City of Aurora v. Coleman, 490 S.W.2d 668 (Mo.App.1973), no defendants were called to testify, no evidence was presented which would show the defendants were representative of the class, and there was no showing of the manner in which the defendants were selected.

Here, testimony regarding the manner in which the named defendants were chosen was given by Mrs. Griggs, the Mayor of Des Peres. She testified that the defendants were chosen with the assistance of one Clark Parks, and attention was given to choosing people involved in community betterment, people from different areas of the proposed annexation and people owning different amounts of land. Of the six defendants chosen as representatives of the class, three defendants were trustees of subdivisions. Of the 180 inhabitants of the area only 15 voted against the annexation. There was no evidence of a vocal opposition as in the St. Charles case. Nothing in the record points to any collusion in selecting these defendants nor to any purposeful omissions of any defendant or group of defendants. The statutory purpose has been satisfied here. Sheets v. Thomann, supra.

The thrust of appellants’ argument is that four of the named defendants belonged to an association called the Seven Hills Citizens for Community Betterment, and it was this group which first initiated the annexation in 1967, and again later in 1970. Appellants’ point is that since four of the defendants belonged to a group that was encouraging the annexation that these four defendants were not “fairly chosen” as the rule requires.

The evidence showed that the Seven Hills group was a voluntary association consisting of citizens of the area who were concerned with community betterment in the Kirkwood, Des Peres and annexation areas. The association was not affiliated with Des Peres in any way. The fact that some of the defendants selected were members of an association committed to the annexation does not require us to hold that the named defendants could not adequately represent the interests of all the inhabitants. The evidence demonstrated that the views of each defendant were for the most part consistent with those of his neighbors. We are convinced that the named defendants could adequately and fairly represent the class of inhabitants of the area.

Appellants’ second contention is that the trial court erred in finding the proposed annexation reasonable and necessary. They contend the city has to prove the reasonableness of the annexation from the city’s viewpoint, the proposed area’s viewpoint and the county’s viewpoint, and that the city failed on all levels to meet its burden of proof.

This is a municipal annexation case; accordingly we review the case de novo, giving due deference to the trial court where the credibility of witnesses is involved. City of Ash Grove v. Davis, 418 S.W.2d 194, 196 (Mo.App.1967). Judicial review of an annexation case is the final step of authorizing both the legislative decision to annex and the popular vote approving the proposal. “The City’s legislative decision that the proposed annexation was necessary and reasonable can be judicially nullified only if that decision is so lacking in evidentiary support that the issue was not fairly debatable and thus showed an abuse of legislative power.” City of Creve Coeur v. Brame, 446 S.W.2d 173, 175 (Mo.App.1969). The statutory test of reasonableness and necessity applies both to the city and to the area proposed for annexation. City of Ash Grove v. Davis, supra, 418 S.W.2d at 196. City of Odessa v. Carroll, 512 S.W.2d 862 (Mo.App.1974). The courts have noted that our review under § 71.015 RSMo 1969, V.A.M.S. (Sawyers Act) is substantially the same now as it was before the passage of the section. City of Creve Coeur v. Patterson, 313 S.W.2d 739, 744 (Mo.App.1958); City of St. Joseph v. Hankinson, 312 S.W.2d 4, 9 (Mo.1958). The city has met its burden when the evidence raises “fairly debatable” issues as to the statutory requirements, that is, when there is substantial evidence on both sides of the question. City of Ash Grove, supra, 418 S.W.2d at 196-197.

We also must bear in mind that there is no set rule or formula to.be used in evaluating the reasonableness of the annexation. Missouri cases have set forth various factors to be considered in testing the reasonableness and necessity of the annexation. Some of these factors are set out below. Each relevant factor should be considered in relation to the other relevant factors and no single factor is a legal absolute in the sense that it is conclusive. City of Ash Grove, supra, at page 206. Of necessity, then, each ease is to be considered under the totality of its own facts. City of Creve Coeur v. Brame, supra, 446 S.W.2d at 177. Furthermore, the city’s claim for territorial need must not be approached with a narrow or restricted perspective. City of Houston v. Duff, 338 S.W.2d 373, 382 (Mo.App.1960).

The record before us in this case is quite long (1700 pages) and exhaustive of the issues presented by appellants. Numerous exhibits accompany the transcript. A complete reiteration of all the testimony would make this opinion unduly lengthy. We instead choose to summarize some of the relevant testimony going to the heart of the question of reasonableness.

Mayor Griggs testified for the city that when the resolution to annex was passed the City of Des Peres was governed by a six-man board of aldermen. There was a 14-member planning and zoning commission, as well as a board of adjustment, all of which hold regular meetings. The city consists of some 29 miles of streets which are maintained by a street department. The construction of additional city streets has been financed both by tax-bills and from the city’s general revenues. The area to be annexed is just south of the street department’s headquarters and on the same road.

The population of Des Peres has increased from 641 in 1940 to 5333 in 1972. In 1970, the assessed value of the city’s real property was $18,187,840, and this figure increased by $730,000 in 1971. The city has a board of public safety and in 1971 had 19 policemen who also served as the city’s firemen. The city also maintains its own fire trucks and police cars. Trash is collected by a private contractor paid by the city. The city also pays the county for rabies, rodent and mosquito control, restaurant and swimming pool inspection.

The city is in a sound financial position. In 1970, the city passed a local sales tax which alone was expected to produce $350,-000 in additional revenues. This is due to the fact that a regional shopping center is located within the city, as well as a commercial area along the major thoroughfare of the city, Manchester Road. As of the fiscal year ending June 30, 1970, the city received revenues of $401,586.27, which increased to $519,937.00 by the following year.

The mayor also testified as to the city’s need to expand into the proposed area. The city is in need of good land for parks and residential dwellings. At the time the annexation was proposed there were only 100 acres of unused land in the city zoned for residential uses.

As to the needs of the area of the proposed annexation, the mayor testified that the area had no fire protection and no snow removal. It was the mayor’s opinion that the city would have no trouble extending all public services to the area, including trash pick-up and added police protection.

Testimony by the street commissioner of the city was to the effect that he had ridden over the five miles of streets in the area, that they were in good repair and saw no reason why the city could not maintain them with the city’s existing equipment. Testimony was also given that upon annexation the new area would not only receive fire protection but would also share the city’s better fire protection classification, which would reduce insurance rates in the area.

The city also produced testimony from an expert in city planning. It was his opinion that the city had a potential population of 7000 as its boundaries then existed. Less than 10% of the land in the city was available for future growth, and this amount was insufficient for the city to reasonably develop. The city is surrounded on three sides by other cities, making expansion impossible. The only logical area of expansion was the proposed annexation. It was the expert’s opinion that at least part of the growth in the proposed annexation was spill-over from the city. The area as a whole should continue to grow due to the shopping center and the easy access to the nearby interstate highway.

The city also introduced testimony on the reasonableness of the annexation from the viewpoint of those living in the proposed area of annexation. In addition to the testimony by the mayor that there was no snow removal or street maintenance, testimony was given by two of the named defendants. In summary, they described a total lack of fire protection in the area. The subdivisions had regularly spaced fire hydrants and had even gone so far as to buy a fire hose in an attempt to obtain a minimal degree of fire protection. One of the subdivisions at one time had an informal agreement with Kirkwood to the effect that Kirkwood would assist in putting out fires, but the status of that agreement was doubtful at best. The testimony was that the concern over adequate fire protection was expressed by many of the residents of the area. It was also thought that the area would benefit by zoning and the zoning regulations that the city would provide.

Another concern to the residents of the area was adequate police protection. The area was served by the St. Louis County Police Department, but concern was expressed about the county’s ability to promptly respond to calls for assistance. It was generally assumed that annexation would provide at least some increase in police protection, this coming from the fact that the area would share in the coverage by the Des Peres Police Department.

Appellants argue that the city did not meet its burden of establishing the reasonableness of the annexation from the view of St. Louis County. We agree with appellants’ contention that the needs of the county as a whole must be considered in an annexation decision. City of Olivette v. Graeler, 369 S.W.2d 85 (Mo.1963); St. Louis County v. Village of Champ, 438 S.W.2d 205 (Mo. banc 1969). However, we do not believe the situation here demonstrates any overwhelming county interest in the area. In the Olivette case, supra, the area of proposed expansion was highly developed and industrial in character. The area was self-sufficient, having better services than the city could have supplied. There was also evidence that the area was an integral part of the county’s overall plan of regional development.

It is apparent that this is not the situation here. There has been no industrial build-up in the area. The services in the area are no better than those in the city. The area is plainly not part of any county plan. Furthermore, since the county was an intervenor in the suit below and since the county has not joined in this appeal, it would seem that the county in effect has conceded reasonableness as to it for all practical purposes.

Bearing in mind our statement earlier that there are no hard and fast rules applied in determining reasonableness, the courts nevertheless have been able to isolate certain factors as being specially relevant. Some of these factors have been amply summarized in the recent case of City of Mexico v. Salmons, 514 S.W.2d 102, 104 (Mo.App.1974): “The petitioning city should evince a need for residential or industrial sites within the proposed area. Since the statute requires that annexation be reasonably necessary, petitioner should also manifest an inability to meet its needs without expansion. In determining a city’s needs we may consider those which are reasonably foreseeable, but not those which are visionary, and should consider past growth to show future necessity. In evaluating future needs we should consider the extent to which past growth has caused the city to spill over into the proposed area.” We also consider the extent to which Des Peres needs a voice in policing an area which is growing upon its doorstep. City of St. Joseph v. Hankinson, supra, 312 S.W.2d at 18. In addition, the fact that the area to be annexed consists of agricultural land does not make the annexation unreasonable, especially if the value of the land is derived from its potential for town use and not as farm land. City of Salisbury v. Nagel, 420 S.W.2d 37, 46 (Mo.App.1967). Nor does the presence of undeveloped land within the city call for a conclusion that the city is not in need of additional room for growth. City of Bourbon v. Miller, 420 S.W.2d 296, 302-03 (Mo. banc 1967). Even the lack of migration from the city to the area will not by itself show unreasonableness. City of Cameron v. Stafford, 466 S.W.2d 115 (Mo.App.1971).

Applying these and other factors to the present annexation, we cannot say that the trial court erred in finding the annexation reasonable. Here is a city which demonstrates need for additional land; here also is an area which needs more and better services. We are not prepared to declare an annexation under such circumstances unreasonable or unnecessary.

In arriving at this decision we are not unmindful of the vigor with which appellants have argued this case, as well as the large amount of testimony produced at trial in their behalf. We acknowledge that appellants presented testimony at odds with, and contradictory to, some of the city’s evidence. In areas in which the question was the credibility of witnesses, we defer to the trial court’s ability to evaluate witness testimony. City of Ash Grove v. Davis, supra. As to the rest of the testimony produced by appellants, we find that at best, this evidence only shows that the issues in this case are “fairly debatable.” That is the only burden that the city has to meet. City of Creve Coeur v. Brame, supra. If, as in a case like this, there is substantial evidence on both sides of the question, the legislative solution is determinative. City of Olivette v. Graeler, supra, at 96.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.

      .The statute requires the petition to “state facts showing:
      1. The area to be annexed;
      2. That such annexation is reasonable and necessary to the proper development of said city; and
      3. The ability of said city to furnish normal municipal services of said city to said unincorporated area within a reasonable time after said annexation is to become effective. Such action shall be a class action against the inhabitants of such unincorporated area under the provisions of section 507.070 RSMo.”

      . Similar facts were presented in City of Lebanon v. Holman, 402 S.W.2d 832 (Mo.App.1966).

      . Clark Parks was a member of the Seven Hills Group.

      . The record indicates that later the fire hose was either lost or stolen.