author: TITUS, Judge.

text:
    Ralph E. LEE et al., Plaintiffs-Respondents, v. ROLLA SPEEDWAY, INCORPORATED, Defendant-Appellant, and Central Missouri Regional Fair, Incorporated, Defendant.
    No. 10012.
    Missouri Court of Appeals, Springfield District.
    June 23, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Melvin E. Carnahan, Rolla, for plaintiffs-respondents.
    L. W. Hannah, Yates, Mauck, Robinett & Hannah, Springfield, for defendant-appellant.
    Before STONE, P. J„ and HOGAN and TITUS, JJ.
   TITUS, Judge.

Defendant Central Missouri Regional Fair, Incorporated (Fair), as landlord, and defendant Rolla Speedway, Incorporated (Speedway), as tenant, entered into a lease in October 1968 whereby Speedway obligated itself to construct an automobile racetrack on the leased premises. After Speedway had partially performed clearing and grading work at the proposed track site, an attorney, representing some 45 residents in the vicinity of the track, wrote to Fair and Speedway in May 1969 demanding that construction of the track be halted for the avowed reason that its use would constitute a nuisance. When the demand went unheeded, a petition was filed in July 1969 by 21 residents living within a %ths mile radius of the project to enjoin construction, maintenance and operation of the racetrack.

Upon conclusion of the first trial of the cause in August 1970, the circuit court denied the injunction and plaintiffs appealed to the Supreme Court. That tribunal, recognizing that the racetrack had been completed and had been in operation pending appeal, reversed and remanded the case for further proceedings because, inter alia, “there is no necessity to adjudge ‘the extent of the harm involved’ on a theoretical basis. Evidence should now be available as to the actual effect of the track operation and the rights of the parties can much better be adjudged on that basis.” Lee v. Rolla Speedway, Incorporated, 494 S.W.2d 349, 355[4] (Mo.1973).

Following the second trial, the circuit court prepared and filed a comprehensive memorandum containing extensive findings of facts and concluded: “[I]t is the Order, Judgment and Decree of this court that the defendants . . . and each of them, and their assigns or any person, association, partnership, corporation or entity whatsoever, acting by, through or under defendants, be and they are hereby permanently enjoined and restrained from operating an automobile racetrack or speedway on the lands of defendant Fair.” Only defendant Speedway has appealed.

Speedway’s first point relied on is that “On appeal from a cause tried before the trial judge both the evidence and the law applied thereto by the trial judge must be considered.” This is a poor start for any appellant’s brief because mere abstract statements of what purports to be the law do not comply with the mandatory requirements of Rule 84.04(d), V.A.M.R. [M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470[1] (Mo.App.1974)] and save nothing for appellate review. Hines v. Sweet, 518 S.W.2d 710, 711[1] (Mo.App.1975). Nevertheless, before some unwary reader is misled by the abstraction, we iterate that injunction is distinctly an equitable remedy (State ex rel. Ellis v. Creech, 364 Mo. 92, 96, 259 S.W.2d 372, 374[3] (banc 1953); 42 Am.Jur.2d, Injunctions, § 2, at p. 727), and in reviewing court-tried causes, Rule 73.01-3(a), (b), V.A.M.R. constrains us to “review the case upon both the law and the evidence as in suits of an equitable nature” giving due regard “to the opportunity of the trial court to have judged the credibility of witnesses.” All of which “is construed to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong. The use of the words de novo and clearly erroneous is no longer appropriate in appellate review of cases under Rule 73.01.” Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976).

Also in abstract fashion, Speedway claims trial court error (1) because the court failed to “consider the nature of the area in which Speedway was located and that the grounds of Regional Fair was the proper location for Speedway”; (2) because the court found “that the area where plaintiffs’ [sic] lived was a ‘quiet residential area’ ”; (3) because the court “improperly considered the traffic generated by Speedway’s operation as a factor in granting the injunction”; and (4) because the injunction “is too broad in that it curtails the lawful operations of Speedway more than is necessary to protect the rights of plaintiffs.”

The requirements of Rule 84.04(d) that “The points relied on shall state . what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous,” are applicable to appellate review of court-tried cases. Boyd v. Boyd, 459 S.W.2d 8, 12[9] (Mo.App.1970). Merely asserting what the alleged errors are without stating “wherein and why” they are errors neither states the rule nor preserves anything for appellate consideration. Chambers v. Kansas City, 446 S.W.2d 833, 841[14] (Mo.1969). An appellate court has no obligation to seek the meaning of points relied on which amount to nothing more than abstract assertions by searching the transcript or seining the argument portion of an appellant s brief. Dors v. Wulff, 522 S.W.2d 325, 327[5] (Mo.App.1975); In re Estate of Barks, 488 S.W.2d 928, 930[5] (Mo.App.1972). From a reading of the “points” just noted, if the trial court did indeed fail to consider the nature of the involved area or that the fairgrounds was a proper place for the track, we are left to ponder “why” such averred failure constituted error. “Why” it was error to conclude the affected neighborhood was a quiet residential area is consigned to speculation. Likewise, no inkling is provided as to “wherein and why” appellant contends it was error to consider the traffic generated by Speedway’s operation, or “wherein and why” the injunction is allegedly too broad or serves to curtail appellant’s operations more than is necessary.

Speedway offers two similar points which we consider together. Although these points tend toward abstraction and are rather obtuse, the gist of them seems to be that because the trial court allegedly failed to consider Speedway’s evidence that its operation could be conducted more quietly than shown by plaintiffs’ evidence or that it was possible the sound level could be reduced to a tolerable level, the decree nisi “has the effect of enjoining an anticipated act performed in a manner on which plaintiffs adduced no evidence.”

Of course, there is no evidence that the trial court failed to consider any evidence produced by Speedway and a statement to that effect appearing in an appellant’s brief is no proof of the fact asserted. Gonseth v. K&K Oil Company, 439 S.W.2d 18, 25[12] (Mo.App.1969). Also to be considered is that the trial court, as trier of the facts, may simply have declined to believe the testimony adduced by the defendant, which it has a perfect right to do. Dill v. Poindexter Tile Company, 451 S.W.2d 365, 371[7] (Mo.App.1970).

Plaintiffs had testimony of a professor of mechanical engineering at the University of Missouri-Rolla whose specialty was in the area of noise control, acoustics and vibrations. The qualifications of that expert are not here challenged by Speedway. As found by the trial court, the witness “had made a study of the area in which some of the plaintiffs resided; that he had used a sound level meter and a high quality recorder to reproduce sounds occuring [sic] at designated points; that such a process would accurately record and preserve the various sounds just as they were heard at the point where they were being recorded. Further that standards had been arrived at for maximum acceptable values in quiet residential areas which measured by decibels on the A scale were:

“Dr. Gatley further testified that on May 11 and May 27, 1974, at which time races were being run by Speedway on the track in question recordings at various points were made showing the following results:
“Three one-minute segments of the recorded sound taped on May 11 and May 27, 1974 while races were in progress at the race track were played as evidence during the trial, reproducing the sound at the same levels and intensities as it was heard at the various points at which it was originally recorded. These segments were taken from tapes made 590 feet, 700 feet and 1400 feet from the race track. The witness testified that he had had 10 years’ experience in this type of work; that the segments reproduced and played were authentic; that the instruments used were checked for accuracy and that the reproduction used in court accurately represented the sound as heard at the various points it was originally recorded.”

Speedway’s evidence that its operations could be conducted more quietly than shown by plaintiffs’ evidence, was predicated on a theoretical restriction by Speedway on the size of vehicles and the requirement that all racing cars be equipped with mufflers. Speedway’s principal witness on the subject was a manufacturer of mufflers and other race car components. In fine, his testimony was that in testing a given race car at 50 feet with a “decibel meter,” the use of a muffler would reduce motor noise from 103 to 93 decibels on the A scale. However, when these figures are compared with the testing results obtained by plaintiffs’ expert witness, it does not follow as a matter of fact that a possible requirement of smaller engines and mufflers would reduce the sound produced by Speedway’s operation to a tolerable level. Particularly is this so when it is remembered that 93 A-weighted decibels for a single engine exceeded the sound intensities complained of by plaintiffs and found existing by their expert witness. Also, the noise reduction obtainable by muffler use on a single motor does not take into account the prolonged sound levels produced by the overall operation of the racetrack caused by the noise of several racing units running at the same time, the sound of screeching tires, the track’s loud-speaker system, and the general hullabaloo of the racing fans. Moreover, and not to be ignored is that the nuisance alleged and found to exist was not confined to the single element of sound. The nuisance, in addition to noise, consisted of dust and offensive odors or fumes created by the racing automobiles and the glaring lights from the flood lamps at the speedway which invaded the homes located in the near vicinity of the track. In other words, the mere lessening of the noise as shown as a possibility by Speedway’s evidence would not singly serve to abate the nuisance.

Speedway’s final two points, consolidated by us for determination, are that the trial court erred in considering and admitting into evidence the re-recorded and edited tape segments prepared by plaintiffs’ expert witness of the sounds recorded while races were being run at Speedway’s track. The reasons assigned in Speedway’s brief are that (a) “no proper foundation was laid for their admission into evidence,” (b) they “were not the best evidence available” and (c) “because they had admittedly been edited.”

At the trial the only objection to the tape exhibit was “because it does not give the full picture. He just picked out the most severe time. I think he should have given the full race, if he wanted to do that.”

It is well established that a litigant may not interpose one objection to evidence in the trial court and different objections to the evidence on appeal. Negley B. Calvin, Inc. v. Cornet, 427 S.W.2d 741, 746[6] (Mo.App.1968). Hence the objections now advanced, that the re-recorded segments were not the best evidence and that a proper foundation for them had not been laid, are not properly before us on appellate review.

Plaintiffs’ expert witness testified that by use of a high quality tape recorder, calibrated tape and a sound level meter, he had recorded sounds coming from the racetrack while races were in progress. He had made original recordings at three locations “over approximate 15 minute intervals at each location.” The recorded sound, both on the original recording and on the re-recording consisting of “approximately 60 seconds at each of 3 locations,” would, according to the witness, accurately produce the same sound levels as those actually heard and tested at the involved locations. The segments on the re-recording were based upon levels which occurred during an active race, and in selecting the 60-second segments the witness used “averages between the minimum and maximum in an effort to be fair about it.” Although the witness had the original recording, no party requested that it be produced or played for its 45-minute duration.

Re-recordings are generally admissible in evidence if, as here, their authenticity is established. Annot., 58 A.L. R.3d 598, § 6, pp. 612-617; 58 A.L.R.2d 1024, § 10[b], p. 1044; 29 Am.Jur.2d, Evidence, § 492, pp. 550-551. As seen by Speedway’s trial objection, it did not object to the re-recorded segments because they were not authentic or did not accurately produce the same sounds and volumes heard at the locations in question. Rather, the objection was on the assumption that the re-recorded segments were only of “the most severe time.” When this was dissipated by the explanation that the segments were “averages between the minimum and maximum,” we can find no error in their admission. If an action is tried without a jury, the trial judge may properly allow wide latitude in the admission of evidence [Mashak v. Poelker, 367 S.W.2d 625, 626[2] (Mo. banc 1963)], and we harbor no doubt as to the ability of the experienced trial judge to consider competently the re-recording as an abbreviated version of the whole.

The judgment is affirmed.

All concur.

      . The first races were held at the track on July 3, 1971. By the time of the second trial in December 1974, the track had been used and operated during the 1971, 1972, 1973 and 1974 racing seasons.


source: Caselaw Access Project

author: ROBERT R. WELBORN, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Melvin Lee CRAWFORD, Appellant.
    No. KCD 26795-26809.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Richard J. Yocum, Asst. Public Defender, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

On a change of venue from Clay County, a jury in the Buchanan County Circuit Court found Melvin Lee Crawford guilty of robbery in the first degree. The jury did not agree upon the punishment, and, after defendant’s motion for new trial had been overruled, the court fixed the punishment at 30 years’ imprisonment and entered judgment and sentence accordingly. This appeal followed.

On July 8, 1972, at around 9:20 A.M., two men entered Braun’s Jewelry on the square in Liberty, Missouri. After asking the operator of the store, Melford G. Braun, to see some diamonds, one of the “customers,” identified by Braun as appellant, drew a pistol and ordered Braun to lie on the floor. The robbers took various items of jewelry and cash and left after tying Braun’s hands. Braun sounded an alarm and police came to the scene. Fingerprints were found on the counter, identified as identical with those of Crawford.

Five points of error are asserted on this appeal. The first complains of the trial court’s failure to order a mistrial upon the request of defendant for the reason that prospective jurors had seen the defendant when he was brought into the courtroom in handcuffs.

Except for two veniremen, voir dire of the panel had been completed before lunch on the first day of the trial. When proceedings resumed following the luncheon recess, defense counsel moved for a mistrial, stating:

“At this point the defendant would move for a mistrial for the reason that when the Sheriff returned the defendant from lunch to the courtroom in the presence of at least four jurors that I saw, and in fact, in front of most of the jurors who were inside the courtroom, he brought him in in handcuffs, led him into the courtroom in handcuffs, and in front of the jury and visible to them, removed the handcuffs from him. And for that reason we feel that he has been prejudiced; that he has been deprived of a constitutional right, and we would move for a mistrial.”

The court took the motion under advisement and upon completion of the voir dire and selection of the jury, the court stated:

Now, ladies and gentlemen: It is very important in the trial of a law suit, whether it is a civil or criminal case, both, that the jurors must make up their minds about the facts; that it is their duty to determine the facts in the case, and they must decide those facts solely on what they hear from the witness stand and what occurs during the trial.

“The lawyers and the Judge and the witnesses and parties and staff of the court have to be exceptionally careful to try and not do anything which would in any way indicate that the defendant is guilty or not guilty, or in a civil case, that the plaintiff should win or defendant should win. And we try very hard not to have anything happen which might in any way indicate the defendant is guilty or not guilty.
“Even the attorneys, themselves, are not permitted to express their own personal opinion, only their opinion of what the evidence is. However, sometimes things do happen, and it may be that something like that happened today. So what I would like to ask you — This occurred just before, shortly after 12:30, before most of you were in the courtroom — but I want to ask you, and I don’t want you to relate to me what you saw or how it affected you, but I want to ask if any of you noticed or recall now seeing the defendant come into the courtroom this second time during the noon hour, just before we started the proceedings this afternoon? Do any of you recall seeing the defendant come into the courtroom?
“(No response.)
“Well, Mr. Jones, you weren’t even in the courtroom. Maybe none of you were, but there is no one here on the panel that recalls seeing the defendant come into the courtroom just this while ago? I am not talking about this morning early; I am talking about just recently?
“(No response.)’’

Counsel renewed his motion for mistrial and it was overruled.

On this appeal, appellant contends that the trial court’s action was an abuse of discretion, because, on the facts before it, the trial court could not say beyond a reasonable doubt that defendant’s Sixth and Fourteenth Amendment rights to a fair trial had not been prejudiced by exposing the defendant to the jury in handcuffs.

Even if appellant’s assumption that some jurors did see the appellant but failed to acknowledge that they did so is accepted, the circumstances were not such as to make the trial court’s refusal of a mistrial error. Numerous cases have recognized that a brief, inadvertent exposure to the jury of a handcuffed defendant while he is being taken from one place to another does not deprive the defendant of a fair trial. State v. Beal, 470 S.W.2d 509, 515-516[8, 9] (Mo. banc 1971); State v. Fields, 487 S.W.2d 560, 561[1] (Mo.1972); State v. Warriner, 506 S.W.2d 103, 104[1] (Mo.App.1974); State v. Neely, 524 S.W.2d 886 (Mo.App.1975). Here, the defendant was being returned to the courtroom following the noon recess. There is no complaint that the handcuffs were not promptly removed and there is no charge that appellant was manacled while the trial was in progress.

The trial court is not to be faulted for the inquiry which it undertook following defense counsel’s objection. This action was a sound exercise of discretion for the purpose of determining whether or not the incident had made any impression upon the jurors. There is no cause to speculate, as counsel does on this appeal, that the inquiry might have caused a later recollection on the part of a juror which would have affected his consideration of the case. There is no evidentiary basis for such speculation.

This assignment of error is without merit.

Appellant next complains of the following remark of the prosecutor at the close of his opening statement:

“Now, after we show you the proof that I have told you about, we will ask you to return a verdict of guilty and assess punishment accordingly.”

Appellant contends that this remark was argumentative and beyond the scope of an opening statement as outlined in § 546.070, RSMo 1969, and thus prejudiced his right to a fair trial.

Having made no objection to the statement when made, appellant here relies upon the plain error rule (Rule 27.20(c)) in urging this claim of error. Appellant cites no authority in point which would warrant the conclusion that had he objected at the time of the statement and his objection been overruled, the action of the trial court would have been error. No reason appears for invocation of the plain error rule and the absence of objection at the trial precludes this claim of error.

Appellant next complains that the trial court erred in holding that a statement he made to police was voluntary and in admitting the statement into evidence.

A preliminary hearing was held by the trial court prior to the admission of the statement in evidence.

Appellant was arrested by Kansas City police on a warrant charging him with this robbery. On August 3, 1972, he was interrogated at the Kansas City Police Department by two Liberty policemen, John Lew-man and Arthur Chevalier. According to Lewman, appellant did not sign a waiver of rights form immediately, and he conversed with appellant for some thirty minutes in an effort to “break the barrier down” between the officer and appellant. Appellant did sign a waiver form. He refused to make a written statement but did tell the officer: “I know you have evidence against me so I might as well tell you I done the robbery, but I am not involving anybody else.” Officer Chevalier’s testimony was to the same effect.

The appellant testified that he was given no Miranda warning before he was taken to Liberty and denied that he had signed the waiver form on August 3. He testified that the interrogating officers told him that “someone had given information” on the robbery and that the officer told him that they had been following him for a long period of time and knew of his activities.

Officer Lewman denied that any such statement was made to appellant and Officer Chevalier recalled no such remarks.

The trial court found beyond a reasonable doubt that Miranda warnings had been given appellant and that the statement was voluntarily given. Officer Lewman then testified before the jury to the oral statement of appellant.

On this appeal, appellant contends that viewing the totality of the circumstances the trial court’s conclusion that the statement was voluntary was erroneous.

The testimony of the officers made a prima facie showing of the volun-tariness of appellant’s statement. State v. Garrett, 510 S.W.2d 853, 854-855[2-4] (Mo.App.1974). Appellant in his testimony-made no complaint of coercive tactics on the part of the interrogating officers. He made no complaint of physical abuse. He made no claim that the interrogation proceeded despite his invocation of a right to remain silent. The trial court was not obliged to accept appellant’s denial that he had received the Miranda warnings. The questions propounded to appellant about statements by others about the crime and his responses did not show that the police had told him that an accomplice or informer had implicated appellant. The officers testified that they did tell appellant that Braun had identified him from mug shots, a statement not demonstrated to have been unwarranted.

In support of his claim that the trial court’s ruling was erroneous, appellant would draw inferences unfavorable to the trial court’s ruling from the fact that the officers disagreed as to the number of police present at the interrogation — Lewman said two and Chevalier said a Kansas City officer also was present; the setting of the interrogation — “a small cubicle” at police headquarters; Lewman’s testimony that appellant told him he would talk to him because he was one of the few policemen who had treated appellant “like a man,” an indication, according to appellant that he had been maltreated by Kansas City officers; appellant’s reluctance to sign the waiver (he does not here contend that he did not do so); and his reluctance to give a written statement.

These were circumstances to be considered by the trial court and weighed against the affirmative testimony of the police officers to the voluntariness of the statement, but such circumstances do not require the conclusion that the statement was in law and fact involuntary. Therefore the trial court's conclusion was not erroneous. State v. Garrett, supra.

Appellant’s next assignment of error is based upon the trial court’s failure to admonish the jury, as required by § 546.230, RSMo 1969, upon recesses and adjournment of the court. The trial lasted into the second day. There were recesses during the first day at which no admonition was given and none was given a.t the overnight adjournment. No objection was made to this procedure at any time, either during trial or in appellant’s motion for new trial. Appellant here relies upon the plain error rule. Rule 27.20(c).

The failure to object at any stage of the trial precludes consideration of this claim under ordinary rules of appellate review. The absence of any showing that the trial court’s failure to give the required admonition was prejudicial to appellant precludes reliance upon the plain error rule. Morrow v. United States, 408 F.2d 1390, 1391-1392[4] [5] (8th Cir. 1969); United States v. Carter, 430 F.2d 1278, 1279-1280[1] (10th Cir. 1970). See State v. Underwood, 530 S.W.2d 261, 264—265[8] (9) (Mo.App.1975).

Finally, relying primarily upon State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973), appellant contends that the unobjected to remarks of the prosecutor in his closing argument were so prejudicial and inflammatory as to entitle him to relief under the plain error rule.

The major portion of the prosecutor’s argument was devoted to punishment. He asked that a 60-year sentence be imposed. In the course of such argument, he did ask that appellant be “ * * * put * * * so he cannot function in society * * *. * * * I’m asking * * * sixty years so that he won’t function in society again. So that he won’t pull a gun on the Brauns or any citizen in Clay County.” This particular line of argument was improper. A prosecutor may not argue for punishment to prevent the defendant on trial from committing further crimes. State v. Raspberry, 452 S.W.2d 169, 172[2-6] (Mo.1970). This was, however, an isolated remark. The argument was not made repetitiously, as was the case in Heinrich, supra. Standing alone, the remark would not call for relief under the plain error rule. State v. Henderson, 510 S.W.2d 813, 823[21, 22] (Mo.App.1974).

Appellant contends that the argument inferred that he was a member of the Kansas City underworld. Reference was made to the Kansas City underworld, but the prosecutor was arguing for a severe punishment as a deterrent to that group. He did not place appellant in such category. He did state, beyond the record, that appellant was from Kansas City, but this unob-jected to remark was not so beyond the bounds of propriety as to produce a miscarriage of justice.

Appellant also argues that some remarks of the prosecutor amounted to “a thinly disguised endeavor to point out the fact that defendant is Black.” This complaint is based upon a strained construction of the remarks in question and is an unwarranted view of the thrust of the argument.

Contrary to the situation in Heinrich, the prosecutor did not “personalize” the jury. He did not attempt to “arouse * * * personal hostility toward or personal fear of the defendant.” State v. Heinrich, supra, 492 S.W.2d at 114.

Some of the remarks of the prosecutor were subject to correction on proper objection, but no objection was interposed. Certainly the argument was not so grossly prejudicial and inflammatory, as was the case in Heinrich, as to call for sua sponte action on the part of the court in order to preserve the defendant’s right to a fair trial. There has been no such manifest injustice or no miscarriage of justice in this case as to call for application of the plain error rule. State v. Hendrix, 520 S.W.2d 701, 705[4] (5) (Mo.App.1975); State v. Coleman, 524 S.W.2d 27, 32-33[13]-[15] (Mo.App.1975).

Judgment affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri ex inf. John C. DANFORTH, Attorney General, Appellant, v. Ruben A. SCHAPELER, Respondent.
    No. KCD 27386.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      John C. Danforth, Atty. Gen., Harvey M. Tettlebaum, Karen M. Iverson, Asst. Attys. Gen., Jefferson City, for appellant.
    Edward J. Murphy, Inc., Butler, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

The issue is whether appellant produced sufficient evidence to make a prima facie case that respondent’s official domicile was in Jefferson City, Missouri, while he was Director of the Dairy Division, Department of Agriculture, after his appointment January 1, 1969, so that the state may recover some $6,000.00, reimbursement for travel, lodging and meals, etc., incurred in Jefferson City, allegedly wrongfully paid under the state’s travel regulations.

Trial was to the court without a jury, and at the close of appellant’s evidence, the court sustained respondent’s “motion for directed verdict” (treated here as a motion for judgment), and entered judgment for respondent.

Appellant’s amended petition is in two counts. Count I pleads that respondent was appointed by the Commissioner of the Department of Agriculture to the post of Director of the Dairy Division and was thereafter continuously employed by the Department with his office at 100 East Capitol, Jefferson City, Cole County, Missouri: That during his employment appellant submitted monthly expense account forms which on the reverse referenced the travel regulations promulgated by the state comptroller July 1, 1965; That throughout his employment respondent’s “actual working or headquarters location has been 100 East Capitol, Jefferson City, Missouri, the headquarters of the Department of Agriculture and the location of his office”, and, conclusionarily, his official domicile had been in Jefferson City, his residence being in Butler, Missouri; That in violation of the travel regulations, respondent obtained reimbursement for “a. Travel directly from Butler, Missouri to Jefferson City, Missouri, b. Travel directly from Jefferson City, Missouri to Butler, Missouri, c. Food and lodging while in Jefferson City, Missouri, d. Parking while in Jefferson City, Missouri, e. Travel from Butler, Missouri to other cities in Missouri and thence to Jefferson City, Missouri, f. Travel from Jefferson City, Missouri to other cities in Missouri and thence to Butler, Missouri.”; That respondent is a constructive trustee of the money received by him, and the prayer is that respondent be ordered to account for the receipts and that judgment be given for amounts found to be due. Count II alleges that respondent submitted improper claims for expense reimbursement, receiving $6,000.00 therefor, for which judgment and interest were prayed.

The travel regulations as here pertinent provide: “Rule 8(A). ‘Officials and employees shall be allowed hotel and meal expenses when required to travel away from their official domiciles.’ Rule 12. ‘An officer or employee whose residence is in some other place than his official domicile will not be allowed expenses while at such residence or traveling to and from the same. Any additional expense incurred by reason of an employee or official residing in a city or town other than his official domicile is not reimbursable. The location of the official domicile is to be selected on the basis of the actual working or headquarters location as best serves the interest of the State and not for the convenience or benefit of the employee. Place of official domicile must be listed on the expense account.’ Rule 13. ‘No officer or employee of the State whose residence is in Jefferson City or who is continuously employed at the seat of government will be allowed expense for hotel or meals in Jefferson City, unless otherwise provided for by the laws of this State.’ ”

The evidence submitted to the court was very brief. Each of the monthly expense account forms submitted by respondent was signed by him under the title “Director— Dairy Division” and each listed his official domicile as Butler, Missouri. All but one were approved by Dexter D. Davis, Commissioner of Agriculture. The one exception was approved by respondent.

Admissions in respondent’s deposition, claimed to be against his interest, were received. Respondent was provided with an office by someone on the 13th floor of the Jefferson Building since January, 1969. There was a phone in the office, Area Code 314, 636-7166, Extension 38. Respondent was provided a secretary by his employer, and “Question, * * * ‘Okay. Is this secretary for your current occupation that you have described?’ The answer is: ‘She is, yes, sir. We — I have two secretaries in the office for myself and the two chief inspectors.’ ” * * * “ T say, we have two secretaries in the office. They work for me, in addition to my two chief inspectors. I have a chief inspector in the milk price control division, and one we call in our, its quality, but if you want manufactured milk primarily, but in the dairy products.’ * * * Question * * * ‘During the period in question, which is January, 1969, through August, 1970, just in your best approximation, how many nights a week, I’m including the full week, would you say you spent at 607 West Dakota?’ Answer: ‘We’re taking a year and a half?’ Question: ‘Yes, sir, on an average, per week average.’ Answer: ‘Per week average, it would average three.’ Question: ‘That includes weekends?’ Answer: ‘Yes, sir.’ ”

Appellant relies upon the evidence that respondent was provided an office in Jefferson City, with a telephone, and a secretary; that he spent only three nights a week, including weekends, in Butler; and that the monthly expense accounts show that “Of the average 21.3 days per month for which reimbursement for travel expenses was sought by respondent, an average of 16.3 days per month or 76.5 percent of the days for which reimbursement was sought, were listed by respondent, himself, on his expense account as being spent partially or wholly in Jefferson City, Missouri”, to establish that his official domicile was in that seat of government, rather than in Butler, Missouri. Appellant says also “that respondent did precisely what was prohibited, that is, claiming expenses for travelling to and from his official domicile and choosing an official domicile — Butler, Missouri— by ignoring his ‘actual working or headquarters location as best serves the interest of the state.’ ” There is no evidence as to precisely what respondent’s duties were from which a conclusion could be drawn that the nature of those duties, in the best interest of the state, required them to be performed in Jefferson City as a mandatory official domicile. There is no evidence as to which function respondent’s secretary (or the two secretaries) was with reference to respondent’s unknown duties. There is no evidence as to what person selected an official domicile for respondent’s position, but since the Commissioner of Agriculture approved the expense accounts with the list official domicile “Butler, Missouri” as required by the preamble to the travel regulations, it can only be assumed that someone in authority designated that domicile from which respondent’s duties could best be performed in the best interest of the state.

The monthly expense accounts show that not only did respondent travel from Butler to Jefferson City, but that they did also show other extensive travelling throughout the state, originating the travel in both locations; and there was considerable out of state travelling. There was no showing what respondent was doing during any of that time.

Appellant cites Nodaway County v. Kidder, 344 Mo. 795, 129 S.W.2d 857 (1939). That case has no bearing on the case at bar. There a county judge, whose compensation was fixed by statutes, received payment for extra services rendered to the county pursuant to a claimed contract, held void as against public policy as being incompatible with his official position. Here, the only basis for appellant to recover would be to prove that respondent’s actual working or headquarters location, and hence his “official domicile” was in Jefferson City, and as above said, the evidence fails to prove that essential element. Nor is the statement in State ex rel. Carman v. Sims, 145 W.Va. 289, 115 S.E.2d 140, 143[3, 4] (1960), that “[I]n the absence of an applicable statutory provision, or a valid regulation adopted pursuant thereto, the rule seems to be that an official or employee of a state, * * * is presumed to have his headquarters at the state capítol * * * ” of aid to appellant. There the official station of the employee claiming reimbursement was, pursuant to regulation, established by the department head. Here the travel regulations do not specify who shall select the official domicile, but only that it shall be done “on the basis of the actual or headquarters location as best serves the interest of the State and not for the convenience or benefit of the employee.” Thus, evidence is required to prove the quoted portion of the regulation, and no presumption may be indulged by appellant to make his case. All that there is in this case is a suspicion that respondent’s actual or headquarters location was in Jefferson City, and not Butler, Missouri, and any designation of Butler as his official domicile, was improperly done. A suspicion, and speculation or conjecture, are insufficient bases to hold that appellant made a prima facie case.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    INDUSTRIAL LINENS SUPPLY COMPANY, INC., Respondent, v. MISSOURI COMMISSION ON HUMAN RIGHTS et al., Appellants.
    No. KCD 27502.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.

      John C. Danforth, Atty. Gen., Daniel P. Card, II, Charles A. Blackmar, Asst. Attys. Gen., Jefferson City, for appellants.
    Hyman G. Stein, Charles Alan Seigel, St. Louis, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

This case originated in a proceeding before the Missouri Commission on Human Rights under Chapter 296. (All statutory references herein are to RSMo 1969.) The Commission by a two to one vote found that Industrial Linens Supply Company had denied employment to Kevin Jones, a Negro, because of his race, and ordered Industrial Linens to take certain remedial affirmative action, including placing Jones at the top of its hiring list and giving him back pay. Industrial Linens petitioned the Circuit Court for review pursuant to § 296.050 and § 536.140 (the latter section being duplicated in Rule 100). The Circuit Court reversed. From that decision adverse to it, the Commission appeals to this court.

The ultimate finding of discrimination by the Commission was based upon the following subsidiary findings of fact, all of which are supported by substantial evidence. On September 5, 1972, Jones was seeking employment and for that purpose visited the Columbia, Missouri, Job Center and engaged in an interview with Mary Brencick, a Caucasian job counselor. While Jones was present, Brencick received a phone call from Truman Kay, route supervisor for Industrial Linens in Columbia. Kay stated that Industrial Linens had a position open as a truck route delivery salesman and requested an applicant for that position. Brencick answered that she had an applicant in her office and would refer him immediately.

After approximately ten minutes had elapsed, Brencick received a second phone call from Kay inquiring about the applicant who was supposed to be referred to him. Immediately after this second phone call, Brencick and Jones left her office and arrived at the Industrial Linens’ place of business in approximately five minutes. When they presented themselves to Kay, and Kay saw Jones for the first time, Kay informed them that the position had just been filled. Jones and Brencick then left, but Brencick turned back and came in alone to inquire into the matter further. At this point, Kay stated that Industrial Linens could not hire colored people as drivers/delivery salesmen for the reason that its customers would not do business with it if it had colored drivers. Kay also stated that the company had another position of the same type open; however he did not request or offer to receive any application from Jones with respect to the open position.

Neither the dissenting commissioner, the Circuit Judge nor Industrial Linens itself denies that the facts found by the majority of the Commission would constitute forbidden discrimination. However, all of them have denied the validity of the findings made by the majority of the Commission and the relief ordered, on the various grounds now to be separately discussed.

I.

The point most strongly urged by Industrial Linens is that it should not be held liable for the acts of its route supervisor Kay. In this connection, it points out that it is a subsidiary of and is operated as a single unit with Clean Coverall Supply Company, which has headquarters in St. Louis. Industrial Linens itself has a processing plant in Joplin and two drop-relay stations, one of which is in Springfield and the other in Columbia. The General Manager of Industrial Linens, Jim Weeks, works out of the Joplin office and is the only one having authority to hire or fire any employee at any of the three locations. Kay was in charge of the operations in Columbia whenever Weeks was absent. When a job opening occurs, in the usual course of events, Kay sought applicants through newspaper ads and calls to employment agencies. However, he had no authority to hire or fire. He received applications and passed on the information to Weeks, but the evidence does not disclose that he had any express right to recommend who should be hired. Kay was not a stockholder, officer or director and attended no company policy meetings. Clean Coverall and Industrial Linens both hire a considerable number of black employees, some of whom hold supervisory positions. There was no evidence that the acts and statements of which the Commission found Kay guilty were in accordance with any company policy or pursuant to any authority to exclude blacks.

On the basis of those facts, Industrial Linens argues, the dissenting Commissioner believed, and the Circuit Court found that Kay’s acts on September 5, 1972, did not bind Industrial Linens. In this respect the Circuit Court held: “The burden of proving the agency of Truman Kay and the scope of his agency is upon the complainant . It is also well settled that any statement or admission by an agent to be binding upon his principal must be made within the scope of his authority. There is nothing in this record to show that Truman Kay was anything more than a route supervisor, and that he had no authority to employ this complainant or anyone else.”

This ruling is in contradistinction to the following finding of the Commission: “From the evidence presented at the public hearing, the hearing panel majority holds that Truman Kay, an employee of Respondent, did in fact have actual or, alternatively, apparent authority to screen applicants for job vacancies with Respondent. The majority holds that Mr. Kay was an agent of the employer with respect to the filling of job vacancies and the employer by extending apparent authority to Mr. Kay is liable for his actions. The panel holds that Mr. Kay, and hence the Respondent, did in fact fail or refuse to employ the Complainant on account of his race.”

The quoted reasoning by the Commission changed somewhat in the course of oral argument before this court, at which time the Commission took the position that Industrial Linens was liable for anything done by Kay in the course of his employment, just as any employer is liable under the principle of respondeat superior in an action for negligent injury caused by its employee to a third party.

It is unnecessary for the purpose of this opinion to decide whether either the doctrine of apparent agency or the doctrine of respondeat superior should be applied in full rigor in proceedings to enforce this type of governmental regulation. For present purposes it suffices to say that an employer is prima facie liable for the acts of its employee done in the course of his duties, and the employer to escape that liability must at least undertake the burden of showing that the employee’s acts of discrimination were contrary to express instructions not to discriminate.

This rule has been applied in a series of cases under the New York statute prohibiting discrimination in regard to public accommodations. Hubert v. Jose, 148 App. Div. 718, 132 N.Y.S. 811 (1912); Jackson v. Imburgia, 184 Misc. 1063, 55 N.Y.S.2d 549 (1945); Hobson v. York Studios, 208 Misc. 888, 145 N.Y.S.2d 162 (1955). It is to be noted that the New York statute being implemented in those cases was quasi-criminal in that violation of the statute was punishable by fine. Since the Missouri Discriminatory Employment Practices statute, Chapter 296, is purely remedial in character, there is more reason to hold the employer to a high degree of responsibility than was true in the New York cases.

Of particular interest is the fact that the New York cases just cited rely in part upon the authority of an early Missouri decision, Town of Kirkwood v. Autenreith, 21 Mo.App. 73 (1886), in which it was held that the sale of liquor by an employee is prima facie evidence of liability on the part of the unlicensed employer, but that the authority of the employee may be rebutted by proof that the sale was made without the employer’s knowledge and is disobedience of his order. The court in Autenreith quoted from and reiterated its opinion in an earlier appeal:

“The evidence made out a prima facie case, if the jury believed the statement of the witness. Under the old dramshop law, where one was charged with having sold wines, liquors, and suffering the same to be drunk in his grocery store, it was held that the fact that the liquors were drunk in the defendant’s grocery was presumptive evidence that this was done with his permission. He had control in his house, and if he forbade the drinking it was for him to show it in his own defense. Casey v. The State, 6 Mo. 646.”

See also United States v. United States Steel Corp., 371 F.Supp. 1045, 1. c. 1054[4] (N.D.Ala.1973) modified on other grounds, 520 F.2d 1043 (5th Cir. 1975).

Applying the rule of those cases here, the record in this case contains no evidence to show that Industrial Linens ever instructed Kay (or for that matter any other employee) not to discriminate. Moreover, even after the complaint was filed in this case, Kay received no reprimand or any other disciplinary action. On this record Industrial Linens has failed to carry its burden of proof on this, its principal defense.

Under the evidence Kay unquestionably was acting within the scope of his duties in seeking applicants and interviewing prospects. In the course of performing those duties, he effectively diverted Jones out of the stream of applicants who could be even considered by Weeks. In the absence of evidence showing that Industrial Linens ever instructed Kay affirmatively not to discriminate, his actions are binding upon Industrial Linens.

II.

The dissenting Commissioner, the Circuit Judge and Industrial Linens all challenged certain other findings by the Commission. One of the findings so challenged was that Industrial Linens had a second driver’s job available on September 5, 1972, even after one had been filled just minutes before Jones appeared at the Industrial Linens’ place of business. Brencick firmly testified that Kay did so advise her when she came back to talk to him alone. Although Kay himself denied having made such a statement, nevertheless the testimony of General Manager Weeks buttresses the conclusion that a second job was available both immediately before and immediately after September 5, 1972. Weeks’ testimony was somewhat equivocal in this regard, but nevertheless the following portion of his testimony supports the majority of the Commission:

“Q Do you remember telling the Commission representative that there was a vacancy from August 26th, 1972 until September 29?
A I checked that with somebody. I think I told him that, yes.
Q That is your testimony today, that there was a vacancy?
A Yes.
MR. SEIGEL: What time was that?
MR. BLACKMAR: August 26th 1972 until September 29, 1972.
A There was at least one vacancy during that time, yes.
BY MR. BLACKMAR:
Q In Columbia?
A Yes.
Q For a driver-route salesman?
A Yes.
Q Was this the vacancy on Route 22?
A I don’t remember the route number, but I would say it was probably 22.
* * ⅜ ⅜ ⅜ *
“Q And you told him in relation to one of the two vacancies, that you were sending a man from Joplin and to not worry about taking any more applications?
A Yes.
Q What were your instructions to him in regard to the other vacancy at that time?
A There were no instructions on it.
Q So presumably he had no instructions from you—
A Right.
Q —to prevent him from continuing to take applications from anybody that came in, in fact, from everybody that came in, for that second vacancy?
A Right.
Q Did you have any conversations with Mr. Kay to indicate why he didn’t take an application from Mr. Jones for the second vacancy?
A No.”

Therefore, the Commission did not err in finding that there were two openings for driver salesman, only one of which was filled at the time Jones came in to make application.

However, there are two important matters as to which the Commission did err. First of all the Commission incorrectly recited Weeks’ testimony as being “that the company did not have any Blacks employed as driver/delivery salesmen and that ‘coloreds didn’t work out on the routes’.” On this appeal the Commission concedes that Weeks did not so testify. Furthermore, the Commission found that “Respondent has been engaged in a pattern and practice of discrimination with regard to the placing of Black applicants in route salesmen positions.” The Commission now also concedes that the record contains no evidence to support that finding.

These incorrect findings, as the Commission now also concedes, may very well have influenced the scope of affirmative action which the Commission ordered Industrial Linens to take. This error calls for a remand of the proceedings to the Commission for reconsideration of relief to be ordered.

III.

The trial court found and Industrial Linens repeats that the record fails to show that Jones was qualified to perform as a driver. This deficiency in the record cannot impair the validity of the finding of discrimination, since Kay denied Jones any consideration without regard at all to his qualification or disqualification as a driver.

This matter does however bear upon the order for affirmative action. The Commission as part of the remedial relief ordered that Industrial Linens offer employment to Jones upon the first available opening. The evidence shows that a driver salesman must meet the physical standards prescribed by the Interstate Commerce Commission. If Jones does not, then this part of the order becomes highly inappropriate. Upon remand, the Commission should take evidence and make a finding of fact with respect to Jones’ qualifications if it intends to order that Jones be offered employment.

IV.

Part of the affirmative relief ordered by the Commission was that Industrial Linens compensate Jones for wages lost as a result of the discriminatory act. The statute does not authorize such a remedial order in this case.

Section 296.040.6 provides that if the Commission finds that an unlawful employment practice has been committed, then the Commission may order the respondent “to require reinstatement or upgrading of employees with or without back pay, to require hiring * * * as in the judgment of the commission will effectuate the purposes of this chapter, * * The authority to order back pay is clearly limited to a case where the complaining party had already been an employee at the time of the discrimination against him. The granting of this relief is not extended by the statute to the case of one who had never been an employee and who had merely been refused employment.

Accordingly in reframing remedial relief, the Commission must eliminate from the remedy any order for back pay to Jones.

v.

The trial court found and Industrial Linens now repeats that the Commission had no jurisdiction because the record fails to show that it complied with the mandate of Section 296.040.2 that before holding a hearing the Commission must designate a commissioner who “shall immediately endeavor to eliminate the unlawful employment practice complained of by conference, conciliation, and persuasion, and shall report his findings to the commission.” This finding by the trial court fails to give any recognition or effect to the following conclusion of law by the Commission: “The record shows that the Commission designated a Commissioner for investigation, that a Finding of Probable Cause was made, followed by an attempt at conference, conciliation and persuasion to eliminate the unlawful practice. The Commission noting this failure referred the case to the Attorney General’s office and a public hearing was held.”

The Commission points out in its argument before this court that no challenge was ever made by Industrial Linens to the fact that efforts at conciliation had been made, and the Commission further points out that by the specific terms of § 296.040.2 the Commission may not disclose the contents of the report or what occurred in the course of conciliation endeavors and that by the provisions of § 296.040.4, the “endeavors at conciliation shall not be received in evidence.” The Commission states that it did not place proof of the conciliation efforts in the record because of those statutory provisions; and it complains that when the trial court made an issue as to this matter for the first time it asked leave to supplement the record to prove the conciliation efforts, but that the trial court refused to open the record for that purpose.

Absent a specific and timely challenge by Industrial Linens that conciliation endeavors had not been made, the recital in the Commission’s conclusions, quoted above, must be held sufficient. It should be noted that in connection with this point Industrial Linens suggests in its brief that “an affidavit could have been filed before the Commission or in the Circuit Court to the effect that the procedure of ‘conference, conciliation and persuasion’ had been followed by the Commission.” If an affidavit would have been sufficient in this regard, it is most difficult to perceive why a formal conclusion to that same effect in the Commission’s findings of fact, conclusions of law and order should not also be sufficient.

On remand, if there is a real issue with respect to conciliation efforts, Industrial Linens can make its objection to the Commission and have the record supplemented in some appropriate fashion, and the record as so supplemented will be subject to judicial review.

The judgment of the Circuit Court is reversed and the cause remanded with instructions that the proceedings be remanded to the Commission pursuant to the authority of § 536.140-5 and Rule 100.07(e).

All concur.

      . General Manager Weeks admitted on cross-examination that Kay reported to him that he (Kay) in talking to Brencick had “said something about that coloreds didn’t work out on the routes, or something, that he said something like that.”


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Gregory THOMPSON, Appellant.
    No. 27985.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty., Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury of robbery, first degree. Appellant contends the purpose of discovery rules was frustrated by prosecutorial actions as to require a new trial. Affirmed.

Appellant does not question the sufficiency of evidence to sustain the conviction. The record contains evidence to show that on July 10, 1974, Gregory Thompson and others entered The Bird Lamp Company, 211 Westport Road, Kansas City, Jackson County, Missouri, assaulted Harry G. Ware and others with a handgun, and took some $1,614.00 in money and personal property from Mr. Ware’s custody.

Appellant’s only point on appeal is that the court erred in overruling defendant’s motions for mistrial “as the prosecution had failed to comply with the Missouri Rules of Criminal Discovery.”

Appellant’s position contains at least four difficulties.

First, Supreme Court Rule 84.04(d) requires that the “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 * * *.” Appellant’s point does not meet this requirement. Safe-Buy Real Estate Agency, Inc. v. Hemphill, 498 S.W.2d 599 (Mo.App.1973).

Second, Supreme Court Rule 78.07 requires that “In jury tried cases, * * * allegations of error to be preserved for appellate review must be included in a motion for a new trial * * *. Where definite objections or requests were made during the trial in accordance with Rule 78.09, * * * a general statement in the motion of any allegations of error based thereon is sufficient.” The only allegation in defendant’s motion for new trial relating to discovery is that the court erred “in permitting the use by the State of witnesses whose oral statements had been reported or summarized in written memoranda, which existed at and prior to trial, as the State had refused permission to defendant to copy said written memoranda in violation of Supreme Court Rules 25.32 and 25.36, and such refusal severely handicapped defendant in preparation of the defense and was highly prejudicial to the defendant.” Comparison of the point on appeal and the allegation in the new trial motion demonstrates that they are not the same and that the allegation in the new trial motion does not preserve the point for review. Safe-Buy v. Hemphill, supra.

Third, while the record shows that defendant moved for mistrial during the testimony of Officers Funke, Hamilton, Goade, Jenkins, and Barnes, and Nina Furst and Pete Muchisko, employees of The Bird Lamp Company, there is nothing in the record to show that “the State had refused permission to defendant to copy said written memoranda,” i. e., witnesses’ oral statements which had been reported or summarized in written memoranda. To the contrary, the record shows that the State, in response to defendant’s request for discovery, filed July 24, 1974, made its file, including police reports and witnesses’ statements, available to defendant August 16, 1974. See Supreme Court Rule 25.36 which provides that “unless otherwise ordered by the court, disclosure under Rules 25.32 through 25.35 shall be: * * * [b]y the party making disclosure notifying opposing counsel that the material and information to be disclosed may be inspected, obtained, tested, copied or photographed at a specified time and place and whether suitable facilities are available.”

Fourth, defendant did not go to trial until March 11, 1975, seven months after the State’s file was made available to him, during which time he raised no issue of failure of the State to accord discovery and made no further effort to secure and exercise his right to disclosure under Rule 25.36. Neither did he seek further disclosure by the State by court order under Rule 25.33, nor the imposition of any sanctions by the court under Rule 25.45. Under such circumstances, it may not be said that the court abused its discretion in refusing to grant the drastic remedy of declaring a mistrial. Kansas City v. LaRose, 524 S.W.2d 112 (Mo. banc 1975). Cf. State v. Buckner, 526 S.W.2d 387 (Mo.App.1975), where, although the State made its file available to defendant by agreement and gave defendant a copy of an unsigned statement of a witness, the State’s refusal to disclose a written signed statement of the same witness at the trial for purposes of impeachment was ground for new trial.

Judgment affirmed.

All concur.

      . The State’s compliance with defendant’s request for disclosure was further shown when, during trial, the State gave defendant a copy of a statement made to the police by witness Furst when her cross-examination varied from such earlier statement; by giving defendant a report received by the State from Officer Goade for the first time on the second day of trial; and by giving defendant a report prepared by Officer Jenkins “which was in the file at the time you had the file for your review.”


author: TURNAGE, Presiding Judge.

text:
    In the Matter of the ESTATE of Dorothy (Dora) THOMPSON, an Incompetent. Rose F. McMULLEN, Appellant, v. Thomas B. STROUD, guardian for Dorothy (Dora) Thompson, Respondent.
    No. KCD 28002.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Application to Transfer Denied Sept. 13, 1976.
    Scott O. Wright, Brown, Wright, Will-brand & Simon, Columbia, for appellant.
    Clifford A. Falzone, Falzone & Schirmer, Moberly, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

This case involves the right of a guardian to withdraw funds belonging to his ward, deposited in a joint savings account, without an order of the probate court. The trial court held the guardian had such right, and this court affirms.

Dorothy Thompson and her husband originally established a joint savings account with Boone National Savings & Loan Association. The husband died, and thereafter Dorothy (Dora) Thompson opened a joint account with the same Association in her name and Rose F. McMullen. The signature card stated the account was held by Thompson and McMullen as joint tenants with right of survivorship and not as tenants in common and not as tenants by the entirety. The parties agree the money for this account came from Thompson, and McMullen was not present when her name was added, nor did she have any knowledge of this event. The card signed by Thompson with the Association specified “other signature not required.” This apparently meant the signature of McMullen was not required for the withdrawal of any funds.

After Thompson added McMullen’s name to this account, Thompson was declared incompetent, and Thomas B. Stroud was appointed as her guardian. Subsequent to his appointment, Stroud went to Boone National Savings & Loan and withdrew the entire amount of the account which was in the joint names of Thompson and McMullen in the amount of $18,500. Stroud opened another account in the same Association in his name, as guardian for Thompson, with the $18,500.

After the death of Thompson, while she was still under the guardianship of Stroud, McMullen filed this action in the nature of a declaratory judgment seeking a declaration of the title and right to possession of the $18,500.

The foundation of McMullen’s claim is her assertion that Stroud, as guardian, had no right to withdraw the funds from the joint account standing in the names of Thompson and McMullen without an order of the probate court. She claimed Stroud could have exercised the duties imposed upon him by Section 475.130, RSMo 1969, to take possession of his ward’s property by merely taking possession of the passbook evidencing title to the savings account in question. She further argues the title to the ward’s property did not vest in the guardian, but remained in the ward.

As an extension of this position, McMul-len urges that Thompson expressed an intent by establishing the joint account that the title to the funds in such account would pass to McMullen on the death of Thompson, and by withdrawing the funds from this joint account, the guardian destroyed this “testamentary” intent as effectively as if he had destroyed Thompson’s will. McMullen does not cite any authority for her position which is directly in point, nor has this court in its independent research discovered any such case. However, Section 369.174, RSMo Supp. 1973 seems to answer McMullen’s argument. That Section provides in part:

“1. When a savings account is opened or maintained in an association in the names of two or more persons, whether minor or adults, as joint tenants or in form to be paid to any of them or the survivors of them and whether or not the names are stated in the conjunctive or the disjunctive or otherwise, the savings account and all additions thereto shall be the property of such persons as joint tenants. The moneys in the account and all earnings on the account may be paid to any one of such persons during his lifetime or to any one of the survivors of them after the death of any one or more of them.
“3. The adjudication of incompetency of any one or more of the joint tenants shall not operate to sever or terminate the joint tenancy ownership of all or any part of the account and the account may be withdrawn or pledged by any one or more of the joint owners in the same manner as though the adjudication of incompetency had not been made except that any withdrawal or pledge on behalf of the incompetent joint owner shall be by his guardian.”

Under the plain provisions of this Statute, when one of the joint tenants becomes incompetent, the joint tenancy is not terminated and the account may be withdrawn by any one or more of the joint owners just as though the adjudication of incompetency had not occurred. The Statute then gives the guardian the unconditioned and unlimited power to withdraw or pledge the account on behalf of the incompetent. There is no requirement that the guardian obtain any approval from the probate court, nor is there any limitation on the power of the guardian to make any withdrawal. Of course, the funds withdrawn still belong to the ward and the guardian must account for them. However, as between the guardian and other joint owners in any account, this Statute gives the guardian the complete right to withdraw the funds the same as the ward could have done had the declaration of incompetency never occurred.

Prior to her being declared incompetent, Thompson could have withdrawn the entire amount in this joint account without any consent on the part of McMullen and could thereby have extinguished all of McMullen’s right in this account. Carroll v. Hahn, 498 S.W.2d 602 (Mo.App.1973). In Carroll the court held the joint tenant who had deposited the funds in the joint account had the right to withdraw the funds and to open a new account in joint names with others than those who were on the first account. Thus, Thompson had such right in this case prior to her becoming incompetent.

Section 369.174 simply gives the guardian the same power over a joint tenant’s interest in a joint account which the joint tenant possessed prior to any incompetency. That being the case, Stroud, as guardian, had the right to withdraw the funds in the joint account standing in the names of Thompson and McMullen and deposit such funds in a new account, and thereby extinguish all rights which McMul-len had as a joint tenant in the joint account.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Elroy BURGIN, Appellant.
    No. KCD 28035.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.

      Kierst & Cain, David Wm. Kierst, Jr., Donald L. Cain, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction of robbery, first degree. The question is whether defendant was denied a constitutional right of self-representation. Affirmed.

Appellant does not question the sufficiency of evidence to sustain the conviction. The record contains evidence to show that on November 15, 1974, Elroy Burgin and others entered the Fairway Supermarket, 23rd and Benton, Kansas City, Jackson County, Missouri, assaulted Frank A. Cuc-chiara with a revolver, and took some $300 in currency from him.

Appellant contends the court erred by not interrogating defendant as to the voluntariness and intelligence of his request to waive appointed counsel and conduct his own defense, and thus improperly denied his attempt to invoke his constitutional right of self-representation. See U.S.Const., Amendment VI; Mo.Const., Art. I, § 18(a).

At the conclusion of the voir dire examination of the veniremen, defendant’s appointed lawyer announced: “The defendant has indicated to me that he would like to ask and would request permission of the Court to serve as his own counsel, and would like for me to remain to sit as second chair to him, to be available for advice, but he would like to serve as his own counsel.” The court overruled the request and observed: “He is entitled to counsel, and is not learned in the law.” Defendant’s motion for new trial asserted: “The Court erred in refusing Defendant’s request to defend in person with the assistance of his appointed counsel. Such refusal prevented Defendant from effectively participating in his own defense in violation of Defendant’s right to be confronted with the witnesses against him and his right to representation by counsel in his defense.”

Appellant cites Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to assert that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. He asserts also that the right of self-representation by a defendant in a criminal ease existed in Missouri prior to Faretta v. California, supra, in that defendants in Missouri criminal trials have the right to waive counsel if the waiver is voluntarily and intelligently made. See, e. g., State v. Moreland, 396 S.W.2d 589 (Mo.1965); State v. Slicker, 342 S.W.2d 946 (Mo.1961); State v. Lahmann, 460 S.W.2d 559 (Mo.1970); Morris v. State, 456 S.W.2d 289 (Mo.1970); United States v. Warner, 428 F.2d 730 (8th Cir. 1970); McBride v. State, 484 S.W.2d 480 (Mo.1972).

Appellant argues that the record shows no interrogation by the judge to determine if defendant’s “request to conduct his own defense was being made voluntarily and intelligently * * *. The summary decision of the trial court * * * without interrogation * * * substantially violated [his] right to due process and right to conduct his own defense * *

The difficulty in appellant’s position is demonstrated by his untimely and equivocal request. Trial was under way when he made his request; and, although he stated a desire and request “to serve as his own counsel,” he coupled it with a simultaneous desire and request that his lawyer remain “as second chair * * * available for advice.” His request that he be granted permission to proceed both pro se and by counsel was further demonstrated by the assignment in the motion for new trial that the court erred in refusing his “request to defend in person with the assistance of his appointed counsel.” Thus, it may not be said that defendant attempted to waive his right to counsel. Rather, he expressed the desire to represent himself and, at the same time, claimed his right to assistance of counsel. Accordingly, there was no duty on the court to interrogate defendant with respect to the quality of an attempted waiver of counsel.

Faretta v. California, supra, held only that the Sixth Amendment to the United States Constitution guarantees to a defendant in a state criminal trial the right to defend himself without counsel, and that where a defendant voluntarily and intelligently waives his right to counsel, the state may not force counsel upon him. It was emphasized that Faretta “weeks before trial * * * clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel,” and, consequently, the trial court erred in forcing him “to accept against his will a state-appointed public defender * * *.” Faretta v. California, supra, 95 S.Ct. 2525,1. c. 2541.

Although Article I, Section 18(a) of the Missouri Constitution gives an accused the right “to appear and defend, in person and by counsel,” such provision has not been construed to mean that a defendant is entitled to have his case presented both by himself and by counsel at the same time. Thus, whether a defendant who is represented by counsel may participate in his trial is a matter within the discretion of the trial court. State v. Velanti, 331 S.W.2d 542, 546 (Mo.1960); State v. Ingram, 316 Mo. 268, 289 S.W. 637, 639 (1926). In South Dakota an accused is accorded the right “ ‘to defend in person and by counsel,’ ” and “These provisions do not create or guarantee dual rights * * *. [A]n intelligent competent accused must elect either (1) to have an attorney — by employment or by appointment, or (2) to defend himself. He is not entitled as a matter of right to both.” State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121, 122 (1960). In California, “[A] defendant is not entitled to have his case presented in court both by himself and by counsel acting at the same time or alternating at defendant’s pleasure.” People v. Hill, 70 Cal.2d 678, 76 Cal.Rptr. 225, 232, 452 P.2d 329, 335-336 (1969), cert. den. 406 U.S. 971, 92 S.Ct. 2416, 32 L.Ed.2d 671 (1972). See Miller v. State, 86 Nev. 503, 471 P.2d 213, 215 (1970), for the same conclusion, and see also 23 C.J.S. Criminal Law § 979(4), and 21 Am.Jur.2d Criminal Law, § 311, for the same as a general rule. Note also that a defendant has no Sixth Amendment right to participate as co-counsel in his case, United States v. Wolfish, 525 F.2d 457 (2nd Cir. 1975); Stiner v. State, 539 P.2d 750 (Okl.Cr.1975); nor to act as his counsel where he is represented by an attorney, United States v. Swinton, 400 F.Supp. 805 (D.C.S.D.N.Y.1975); nor to represent himself and to proceed through counsel at the same time, United States v. Conder, 423 F.2d 904 (6th Cir. 1970); Duke v. United States, 255 F.2d 721 (9th Cir. 1958), cert. den. 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365 (1958); United States v. Mitchell, 137 F.2d 1006 (2nd Cir. 1943).

The court may, in its discretion, appoint counsel to advise or assist a defendant in his presentation of his defense and the preservation of a record, United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973); but it is not required, Lopez v. Pitchess, 265 F.Supp. 136 (C.D.Cal.1967); and a defendant who wishes to act pro se has no right to have counsel appointed merely to serve as a procedural advisor, State v. Blanchey, 75 Wash.2d 926, 454 P.2d 841 (1969). The trial court’s observation in response to defendant’s equivocal request, “He is entitled to counsel, and is not learned in the law,” demonstrates an exercise of discretion within the foregoing guidelines.

Judgment affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Leo W. STAPLETON, Appellant.
    No. KCD 28085.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Application to Transfer Denied Sept. 13, 1976.
    William G. Mays, II, Public Defender, 13th Judicial Circuit, David M. Doak, Asst. Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The defendant appeals from a conviction for manslaughter and sentence of ten years imprisonment. The sufficiency of the proof for conviction is not disputed and the trial evidence is related only as it bears on the two issues presented on this appeal.

The defendant first asserts that the denial of certain evidence introduced by the prosecutor was so flagrant a violation of due process as to require dismissal of the criminal accusation and proceedings against him. The defendant also asserts that the failure of the State to disclose, upon his written request for discovery under Rule 25.32(A)(2), the substance of an inculpatory statement by the defendant to a prosecution witness, requires a new trial.

The homicide was the result of an affray between two of the guests at the Hayes residence one evening during the Christmas holiday season. A dispute arose between Holt, who became the victim, and Staple-ton, the accused, who became annoyed by what he considered unjustified accusations of intermeddling. Holt threatened to hit Stapleton in the mouth, and then the harangue shifted to a debt of three dollars which Holt claimed from Stapleton and demanded he pay. Holt ran into the kitchen, opened the drawer where the knives were kept, grasped and came up with some spoons. Ms. Hayes, the owner of the premises, intervened, restored the spoons to the drawer and objected to such behavior in her home. Holt ran outside and challenged Stapleton to follow. Stapleton went into the kitchen for a knife to protect himself, although Ms. Hayes kept on telling him that Holt had no knife, but had taken some spoons. She attempted to wrest from him the butcher knife he had taken from the kitchen drawer, and it fell to the floor. About then, Holt returned to the house with a green board plank, about six feet long and two inches by eight inches in dimension, used as a walkway from the back yard. The plank caught the ceiling as he came in and fell; so the protagonists faced each other, both without weapons. Then, of a sudden, Stapleton grabbed Holt, slammed his head first against the door, then against the concrete floor. Another guest at the Hayes home, Shirley Murray, tried to disengage them but without success. The blood came from Holt’s head, and Stapleton finally stopped his assault. An ambulance took Holt to the hospital where he died.

The assault and eventual death of the victim at the hospital were events during the early morning of December 21, 1974. The police were called before the victim was removed to the hospital and attempted to investigate amidst a scene of pandemonium. They managed to get the attention of the defendant Stapleton who told them that the victim had come at him with a board in one hand and a knife in the other and that when he undertook to defend himself, Holt fell through the glass of a storm door and injured himself. After his arrest, on December 22, 1974, Stapleton gave a formal statement which described the board Holt was holding as “a long two-by-four” and otherwise corroborated his earlier oral statement. The gestures of the defendant described the board as about three or four feet long. Following this disclosure, the police returned to the Hayes residence later that day; there they saw a green broomstick handle, about three feet long, and a green two-by-eight about eight feet long. They concluded that the broomstick more merely conformed to the description given them by Stapleton of the board or “stick” with which the victim had threatened him, and so seized it as evidence.

On the next day, December 23, 1974, the Public Defender was appointed to represent the defendant who had been arraigned before the magistrate on a charge of murder in the second degree. The two staff attorneys of that office immediately interviewed the defendant Stapleton who recounted the events leading to the arrest and described a board which he told them was the instrument of assault against which he defended. The attorneys went directly to the Hayes residence, were allowed to investigate and photograph the scene and to take possession of a large green board which they found lying outside the house. The board matched exactly the description Stapleton had told them was used by the deceased against him and was found where the defendant had said the board was lying. The attorneys also observed a butcher knife by the sink which matched the description given by the defendant, so they photographed it and telephoned the police of the discovery.

As they left the premises with the green board, they were observed by two police officers who were entering the residence. The board was taken to the Public Defender office for keeping. There they soon received a telephone call from the prosecutor who claimed the board as State’s evidence and demanded possession. The attorneys refused on the ground that the evidence was relevant to the defense. After some discussion [and threat of forcible entry and prosecution, according to the testimony of the attorneys] the prosecutor agreed to treat the board as defense evidence, but demanded immediate possession so that the board could be tested for blood. The prosecutor offered to submit the evidence to the State Highway Patrol Laboratory for tests on behalf of both parties, but the Public Defender was adamant that the board was defense evidence and that the board would be relinquished only as required by the rules of criminal discovery. At the conclusion of this telephonic conversation, after some reflection [and the contended threat of entry and prosecution], the attorneys relinquished the board to police sent by the prosecutor for that purpose.

The board was returned to the Public Defender within three or four days and has not since been in the possession or custody of the State. The defendant neither accepted the prosecution offer for joint testing of the evidence nor initiated its own examination.

At the trial, the court issued a subpoena duces tecum to the Public Defender which commanded the production of the green plank. The defendant moved to quash the subpoena on grounds that to compel his counsel to testify or produce evidence in the criminal prosecution violated the attorney-client privilege and his Fifth Amendment right to be free from self-incrimination, and that the State was otherwise not entitled to the use of the plank because the evidence was the product of an illegal search and seizure. The defendant also moved the quashal of the information.

The court heard evidence [already related] on both motions, suppressed the subpoena duces tecum, but denied quashal of the information. The cause proceeded to trial and a conviction was returned.

It is the contention on appeal that the mere suppression of the evidence in these circumstances was not an adequate remedy, that nothing short of dismissal of the prosecution can deter the State from illegal activity of the kind perpetrated against him. The defendant acknowledges that the traditional remedy available to a person for the invasion of his personal security by an unlawful search and seizure is the suppression and exclusion of the, illegal evidence. Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The defendant contends, however, that the application of this exclusionary rule presupposes that the evidence unlawfully seized will damage the defendant, whereas the evidence taken from him was favorable to the defense. The evidence, he contends, was discovered by his attorney as the result of disclosures made by the defendant in confidence, thus lawfully in his possession and not subject to the demand of the prosecution. What was seized in actuality [he continues in argument] was not merely a board but four invaluable days of preparation for defense wrested from him without sanction of law, and the additional advantage of a basis for rebuttal of evidence of self-defense.

The motion to suppress the subpoena was sustained without statement of grounds; we assume the ruling was responsive to the legal arguments made to the trial court on the motion and iterated here. We assume also, for the purpose of decision, the soundness of those contentions. Even so, the discovery of evidence by government through illegal means gives no basis to abate a criminal proceeding, let alone bar it altogether. United States v. Blue, 384 U.S. 251, 255[4-6], 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Costello v. United States, 350 U.S. 359, 363[2-7], 76 S.Ct. 406, 100 L.Ed. 397 (1956); United States v. Isaacs, 347 F.Supp. 743, 757[26] (N.D.Ill.1972). All the defendant was entitled to was the suppression of the evidence and its fruits, a remedy fully allowed by the trial court.

The next contention is that the court erroneously allowed a witness for the State to testify to an inculpatory statement made by the defendant but which had not been disclosed to the defendant prior to trial in compliance with a written request for discovery. In advance of trial, the State and defendant each had requested discovery of the other. In response to the direct inquiry of the court at the pretrial, counsel for the State and for the defendant declared without qualification that disclosure and compliance with the discovery requests had been made. Among the disclosures requested of the State was request number 2 submitted by the defendant in the terms of Rule 25.-32(A)(2):

Any written or recorded statements and the substance of any oral statements made by the defendant or by a co-defendant, a list of all witnesses to the acknowledgment of such statements and a list of the last known addresses of such witnesses.

The defendant had also requested discovery in the terms of Rule 25.32(A)(1) of the names and addresses of persons the State intended to call as witnesses at the trial, together with their written or recorded statements.

The chief witness for the State was Shirley Murray, one of the guests at the Hayes residence on the night of the altercation. The examination by the prosecutor elicited this testimony from her:

Q. Now, Shirley, did you see Mr. Staple-ton on Saturday, the twenty-first, later that day?
A. Yes. . . .
Q. In relation to the incident, I mean. A. Yes.
Q. And you all had a conversation?
A. Yes. We had a conversation, and he asked me did I think he was wrong, and I told him yes, he was wrong for the fact that Mrs. Hayes told him that Mr. Holt didn’t have nothing in his hands but a spoon, made him wrong because he could have easily just walked out and ignored it.
MR. DOAK: I object, this statement is speculative, hearsay.
THE COURT: The last part of the witness’s answer, the objection will be sustained. She may relate what she said and what the defendant said.
Q. Tell the Court exactly what you said and I want what he said back to you, if he said anything. Did he say anything to your statement.
A. Yes.
Q. What did he say?
A. He said he knew he was wrong.

At the conclusion of examination by the prosecutor some few questions later, counsel for defendant complained at the bench that neither the existence of this statement nor that it would be given in testimony by witness Murray had been disclosed on discovery. In rebuttal, the prosecutor stated that he had advised counsel of a lengthy conversation between the defendant and witness Murray some of which [in the words of the prosecutor] “was prejudicial to the defendant and [he] would put that in”. The court overruled the objection and the trial proceeded. The objection was raised again on the new trial motion, but was overruled again on the stated grounds that the objection was not timely, nor request made to strike the testimony.

The trial court supposed, as does the State on appeal, that the rule which obtains in trial procedure that in the absence of surprise, an objection to a question on examination must be made before answer is given to preserve anything for review [State v. Graham, 527 S.W.2d 936, 942[7, 8] (Mo.App.1975)] also governs the right to disclosure of evidence under the rules of discovery in criminal proceedings.

The provision of Rule 25.45 that the court may apply corrective sanctions any time during the proceeding show that the rules of criminal discovery are not a mere etiquette but the festoons of due process. They are meant to allow a defendant a decent opportunity to prepare for trial and avoid surprise. State v. Johnson, 524 S.W.2d 97, 101[7] (Mo. banc 1975). It is evident from the statement of the prosecutor to the court that he had full knowledge that Ms. Murray intended to testify the defendant had told her “he knew he was wrong”, a statement the prosecutor described as “prejudicial to the defendant”. The substance of that statement was not disclosed to the defendant, although requested by discovery. Compliance with discovery is not at discretion; the obligation to make answer under the rules is peremptory. Rules 25.32, 25.37; State v. Buckner, 526 S.W.2d 387, 392[3, 4] (Mo.App.1975).

There can be no doubt that the admission by the defendant to witness Murray disparaged the self-defense which the defendant had steadfastly maintained before the police and at the trial. It was unfair evidence received by surprise and should have been redressed by the court when informed that the prosecutor had withheld the evidence from the discovery of the defendant. The objection to the evidence remained timely, although deferred until the conclusion of examination. The effect of that lapse was not to deny the defendant remedy altogether, but to reduce the corrective alternatives otherwise open to the court.

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

All concur.

      . The argument the defendant makes rests on a thesis of doubtful validity: that a lawyer directed by the communication of an accused client to material evidence at the scene of the crime may seize the evidence and withhold it from the State on a claim of attorney-client privilege. That question, which probes the very nature of our criminal justice system, remains generally unsettled. [See: Freedman, The Adversary System and the Obligation of Confidentiality, 10 Criminal Law Bulletin, No. 10, p. 980 (1974)]. Those decisions which have confronted the issue have ruled adversely to the contention the defendant proposes. [See: People v. Lee, 3 Cal.App.3d 514, 83 Cal.Rptr. 715, 722[10, 11] (1970); State v. Olwell, 64 Wash.2d 828, 394 P.2d 681, 683[l-8] (1964); In re Ryder 263 F.Supp. 360 (D.C.E.D.Va. 1967), aff’d at 381 F.2d 713 (4th Cir. 1967)]. A number of states — Missouri is not numbered among them — have enacted legislation dealing with the concealment, tampering or destruction of physical evidence. [California Penal Code, § 135; New York Penal Law § 215.40; Ohio Revised Code, § 2921.12; Texas Penal Code, § 37.09]. The restraints on a Missouri lawyer are ethical only. The Code of Professional Responsibility, DR 7-109 requires without further definition that: “A lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal or produce”.

      . “If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances .