text:
    Donnell LEE, Appellant, v. STATE of Missouri, Respondent.
    No. 41399.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 6, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Leonard W. Buckley, Jr., St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Peter Sadowski, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit. Atty., St. Louis, for respondent.
   CLEMENS, Senior Judge.

Movant Donnell Lee (hereafter defendant) appeals the denial of his Rule 27.26 motion. He seeks to set aside his conviction and 30 year sentence for assault with malice aforethought. We affirmed that conviction in State v. Lee, 549 S.W.2d 934 (Mo.App.1977).

Defendant first challenges the trial court’s jurisdiction because, he contends, the verdict found hiip guilty of the lesser offense of assault without malice aforethought. He also challenges the trial court’s jurisdiction to try him for the greater offense because at his preliminary hearing the magistrate had, allegedly, ordered him bound over for trial on the lesser offense. These in turn.

When the motion was presented to Judge Bloom he called for memoranda from counsel, which he found to be well researched and written. Counsel agreed the issues were of law and no evidentiary hearing was necessary. Judge Bloom responded with written findings and conclusions denying the motion. On appeal defense counsel has vigorously briefed defendant’s two contentions.

The first issue concerns two statutes. Judgment and sentence was under the felony statute, Sec. 559.180, RSMo.1969, which prohibits assaults made with malice aforethought. The graded felony statute, Sec. 559.190, RSMo.1969, of which defendant now contends the jury found him guilty, does not require malice to be aforethought. Defendant bases his argument on the fact the guilty verdict did not specifically follow the word “malice” with the word “aforethought”.

We rule this point against defendant. The state’s information charged malice aforethought. The verdict-directing instruction also required a finding of malice aforethought. The court instructed conversely that if the jury did not find malice aforethought it must acquit. The challenged verdict found defendant guilty of assault as submitted in the verdict-directing instruction, which had specifically required the jury to find the element of malice aforethought.

We have considered defendant’s cited cases and argument that the verdict was ambiguous. We cannot agree. Instead, we adopt the trial court’s finding that “ . . . the trial record, the information, the evidence, and the charge of the court all indicate, beyond any doubt, movant was found guilty of an assault with malice aforethought”.

We deny defendant’s first point and move to his contention of no jurisdiction because the magistrate had ordered him bound over for trial on the lesser offense of assault without malice aforethought. The record does not support this. On the parties’ stipulation the record here was supplemented by two documents, the magistrate’s warrant for defendant’s arrest, and the state’s information. The warrant ordered defendant’s arrest “to answer a complaint made against him for ” There follows a blurred rubber stamp of the words “assault with . . .” and the printed words “as fully appears by the foregoing affidavit”. We are furnished with neither that affidavit nor the magistrate’s order binding defendant over for trial. On the same date the state filed the other supplementary document, the information charging assault with malice aforethought. Prom this fragmentary record we cannot concur with defendant’s contention he was not bound over for trial on the information filed. Furthermore, defendant waived the preliminary hearing point by proceeding to trial without objection. State v. Ashe, 403 S.W.2d 589, l. c. 591 (Mo.1966), and Shields v. State, 491 S.W.2d 6, l. c. 10 (Mo.App.1973).

Judgment affirmed.

DOWD, P. J., and REINHARD and CRIST, JJ., concur.


source: Caselaw Access Project

author: REINHARD, Judge.

license: Public Domain

text:
    Tommy JONES, Appellant, v. STATE of Missouri, Respondent.
    No. 40812.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 6, 1979.
    Motion for Rehearing or Transfer Denied Nov. 30, 1979.

      James L. Rohlfing, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Judge.

Movant appeals from an order of the circuit court denying his Rule 27.26 motion to vacate judgment and sentence.

In 1976, movant was convicted by a jury of two counts of robbery first degree. The jury assessed his punishment at five years on each count and the court made these sentences consecutive. An appeal to this court resulted in affirmance of movant’s conviction. State v. Jones, 556 S.W.2d 211 (Mo.App.1977).

On March 22, 1978, movant filed this motion to vacate judgment and sentence. After making findings of fact and conclusions of law, the trial court denied his motion without an evidentiary hearing and without appointing counsel to aid movant.

Movant does not challenge the sufficiency of the trial court’s findings of fact and conclusions of law. His sole point on appeal is that the trial court erred in not appointing counsel to assist him with his motion. He argues that his motion presented three questions of law requiring that counsel be appointed. His brief sets forth these questions as follows:

1. “Whether or not the use of a dangerous and deadly weapon is an element of first degree robbery.”
2. “Whether, if its use is not an element, the state should be allowed to introduce a weapon seized from the defendant into evidence.”
3. “Whether the imposition on two counts arising out of only one criminal transaction is violative of appellant’s constitutional rights against being placed in jeopardy.”

In Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), our Supreme Court adopted a per se rule which requires the appointment of counsel for all indigents who file pro se Rule 27.26 motions. However, Fields is to be applied prospectively and is not controlling in this case.

Prior to Fields, if an evidentiary hearing was not required, an attorney need not have been appointed. Wilson v. State, 582 S.W.2d 725, 726 (Mo.App.1979). And to be entitled to an evidentiary hearing, the movant must have pleaded facts, not conclusions, which if true, would entitle him to relief. Winston v. State, 533 S.W.2d 709, 714 (Mo.App.1976). Rule 27.26(h) also required appointment of counsel if the motion presented questions of law. We said in Johnson v. State, 579 S.W.2d 132 (Mo.App.1979), that where a movant’s motion raised questions of law, appointment of counsel could not depend upon whether an eviden-tiary hearing was held. However, before Fields, even where questions of law were raised, there were exceptions to the requirement that counsel be appointed.

Movant’s first proposed question of law raises a point concerning the sufficiency of the information. Movant was charged with robbery first degree by means of a dangerous and deadly weapon. However, the case was submitted to the jury by use of MAI-CR 7.60, the robbery first degree instruction, and not MAI-CR 7.62, the robbery first degree by means of a dangerous and deadly weapon instruction. Mov-ant argues that the State’s information was insufficient because the weapon used in the crime, (a .22 caliber pellet gun) was not a dangerous or deadly weapon.

While the sufficiency of the information is a proper subject for review in a Rule 27.26 motion, Henderson v. State, 546 S.W.2d 546, 547 (Mo.App.1977), we do not believe that any procedural error by failure to appoint counsel in this case is grounds for reversal. As was stated in Keeny v. State, 461 S.W.2d 731, 732-33 (Mo.1971):

An accused charged with robbery in the first degree by means of a dangerous and deadly weapon may be convicted of robbery in the first degree. Robbery in the first degree comprehends an act committed with or without a dangerous and deadly weapon. This element goes merely to the penalty, and the reference to this element may be treated as surplus-age and disregarded, [citations omitted].

Therefore, we conclude as a matter of law that the information was not defective.

Question two raises a complaint about the admission of evidence at movant’s trial and is not a matter for review in a post-conviction proceeding. O’Neal v. State, 486 S.W.2d 206, 207 (Mo.1972); Mayo v. State, 524 S.W.2d 181, 182 (Mo.App.1975).

Question three claims that mov-ant’s conviction for two counts of robbery arising out of the same transaction violates his right against being twice placed in jeopardy for the same offense. This court has held that a claim of double jeopardy is not cognizable in a Rule 27.26 motion. Williams v. State, 567 S.W.2d 370, 371 (Mo.App.1978). Furthermore, we find that movant’s conviction for these two robberies of two different persons did not violate his guarantee against double jeopardy. State v. Moton, 476 S.W.2d 785 (Mo.1972) clearly holds that a person may be convicted for two counts of robbery arising out of the same transaction when two different persons were robbed.

Having reviewed each of the questions presented by movant, we conclude that the trial court was not clearly erroneous-in refusing to appoint counsel for mov-ant.

Judgment affirmed.

DOWD, P. J., and CRIST, J., concur.

      . Movant’s motion also alleged ineffective assistance of counsel and that his arrest was illegal. Since he has not pressed these claims on appeal, they are deemed to be abandoned and will not be considered. Herron v. State, 498 S.W.2d 530, 531 (Mo.1973); Shubert v. State, 518 S.W.2d 326, 328 (Mo.App.1975).

      . Movant filed his motion on March 26, 1978. The Fields decision was not handed down until November 6, 1978.

      . The Western District of this court held in Weir v. State, No. 30,018 (Mo.App.W.D. Feb. 2, 1979) transferred, March 29, 1979 that a double jeopardy claim may be raised for the first time in a Rule 27.26 motion.


author: PREWITT, Judge.

text:
    The CITY OF SOUTH GREENFIELD, Missouri, a municipal corporation, Plaintiff-Respondent, v. Lee CAGLE and Effie A. Cagle, his wife, William A. King and Almer King, his wife, if living, if deceased, their unknown consorts, heirs, devisees, donees, alienees or immediate mesne or remote, voluntary or involuntary grantees and John H. Howard and Sarah C. Howard, his wife, if living, if deceased, their unknown consorts, heirs, devisees, donees, alienees or immediate mesne or remote voluntary or involuntary grantees, Defendants-Respondents, v. Christie B. JONES, Intervenor-Appellant.
    No. 11052.
    Missouri Court of Appeals, Southern District, En Banc.
    Nov. 8, 1979.
    Rehearing Denied Dec. 3, 1979.

      No appearance for plaintiff-respondent.
    Robert L. Payne, Greenfield, for defendants-respondents Cagle.
    Robert Stemmons, Mt. Vernon, for inter-venor-appellant.
   PREWITT, Judge.

Intervenor appeals from a judgment denying her request to quiet title in her to a 40 X 165 foot parcel of land in South Greenfield, Missouri.

Plaintiff filed a petition for injunction, seeking to have removed three fence posts installed by defendants Cagle, purportedly located on an 80 foot public roadway. Apparently 80 feet had been set aside for a roadway, but not all of it was being used. The used portion was approximately 25 feet wide. Intervenor claimed ownership of the property south of the portion actually used as a roadway, which was the south 40 feet of the property described in plaintiffs petition. She contends that title had been established in her by adverse possession. The dispute before us is between defendants Cagle, who live north of the roadway, and intervenor, whose residence is south of the roadway and immediately adjacent to the disputed tract. The property in dispute commences 5 to 6 feet from her front porch, where one of the posts was installed, and extends to the roadway. The property is unimproved except for the fence posts and six trees which intervenor planted five or six years after she acquired her residence and moved in during 1954. She had the disputed land mowed with the rest of her front yard thereafter for 17 to 20 years. She considered it part of her yard. The property was not fenced and she did not have a deed to it nor did she pay the property taxes upon it. Before intervenor acquired her residence, her immediate predecessors used the parcel or a portion of it, to play croquet.

There was evidence that for at least the past 50 years the property had been maintained and used by whoever occupied inter-venor’s house. Defendants Cagle never tried to possess the property prior to a survey in 1971 and admit that intervenor mowed it, or had it mowed, and planted the trees. Intervenor said she mowed it until 1974 but defendant Lee Cagle testified that he started mowing it soon after the survey in 1971. Shortly after the survey, he put in fence posts and keep out signs on the premises. He had seen her mow it and knew she claimed it from the time he acquired his residence and moved there in 1965 until the survey in 1971. He did not know that his deed included land south of the roadway until the survey. After he put in the posts, she did not contest his actions until this suit.

Sometime after intervenor moved on the premises, she was informed by a neighbor that the city owned the property. She says this occurred a few years after 1954 and could have been after 1967. She didn’t recall when she was told it was city property. She continued to mow it and take care of it until Mr. Cagle ordered her nephew, who lived with her and took care of the yard, to stop mowing the property. She had it mowed every week and sometimes more often during the summer. Except for whether Mr. Cagle took over the mowing in 1971 or 1974, there is no substantial dispute in the evidence. Intervenor claims title superior to both plaintiff and defendants.

The trial court found that plaintiff did not show that the posts obstructed the roadway and denied the injunction request and that intervenor’s evidence “failed to prove that she had by adverse possession established a claim". Title was found to be in defendants Cagle. No findings of fact were asked for or made. Under Rule 73.01, V.A.M.R., our review in this non-jury case is to sustain the trial court's determination unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

Intervenor cannot acquire title by adverse possession against plaintiff City of South Greenfield. The statutes of limitation do not extend to public uses. § 516.-090, RSMo 1969; City of Poplar Bluff v. Knox, 410 S.W.2d 100, 103 (Mo.App.1966); Brotherton v. City of Jackson, 385 S.W.2d 836, 842 (Mo.App.1965). We now consider her claim as against defendants.

Intervenor, in seeking to establish title by adverse possession, has the burden of establishing possession that is: (1) hostile, that is, under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous, over the statutory period. Counts v. Moody, 571 S.W.2d 134, 138 (Mo.App.1978). Whether the burden has been met depends upon the'facts of each particular case, and consideration is given to the nature and location of the property, the uses to which it is put, the intent of the parties and all other facts and circumstances of the possession and use. Id. 571 S.W.2d at 138.

We review the elements in the order above stated to determine if interve-nor met her burden as against defendants. Her possession must be hostile, that is, under a claim of right. “Hostile possession” means possession opposed to the claims of all others and imports the occupation of land by the possessor with the intent to possess the land as his own. Walker v. Walker, 509 S.W.2d 102, 106 (Mo.1974). To be hostile, it is not necessary to have actual malice, hostility, indifference or intent to take the property which belongs to another. The intent to possess, occupy, control, use and exercise dominion over the property is sufficient. Counts v. Moody, supra, 571 S.W.2d at 139. It is undisputed that inter-venor claimed the property as hers and thought it was hers, at least until she was erroneously told it was owned by the city. Apparently the plaintiff-city has an easement right for a public roadway through the property. Defendants Cagle contend that once she was told the city owned the property, intervenor no longer claimed it as hers. The record does not show that thereafter she was not claiming it. It merely shows that she was informed that the city owned it. She did not thereafter stop mowing it and taking care of it. Her acts of use continued to be the same. The intent with which the occupant has held possession is to be determined from all the surrounding circumstances and especially from his acts. 3 Am.Jur.2d, Adverse Possession, § 35, p. 121. When adverse possession is once shown, it will be presumed, in absence of evidence to the contrary, to have continued in the possessor. Cash v. Gilbreath, 507 S.W.2d 931, 935 (Mo.App.1974). There was no evidence that after she received notice that the city may be claiming the property that the adverse character of her possession ever changed. Mr. Cagle moved across the roadway from the property in 1965 and between that time and 1971 when he put in the fence posts, he admitted that Mrs. Jones was claiming it.

Even if she knew that the property was not within her boundary, this does not prevent a valid claim of adverse possession. The important factor is not whether she knew the true line, but what part she intended to possess. Slentz v. Cherokee Enterprises, Inc., 529 S.W.2d 495, 498 (Mo.App.1975). It is the intent to possess and not the intent to take from the true owner that governs. Sanderson v. McManus, 252 S.W.2d 351, 356 (Mo.1952). To acquire title by adverse possession, the possessor need not intend to take away something which belongs to another and the possessor may even be indifferent as to the facts of legal title. Cash v. Gilbreath, supra, 507 S.W.2d at 934. Even if intervenor thought that the city had a prior interest, that would not defeat her claim of adverse possession. Possession need not be hostile as against the government.. 3 Am.Jur.2d, Adverse Possession, § 32, pp. 115—116; 2 C.J.S. Adverse Possession § 65, pp. 740—741. See also Stonum v. Davis, 348 Mo. 267, 152 S.W.2d 1067, 1071-1072 (1941). We believe that the evidence supported no reasonable conclusion but that at least from 1954 until 1971 intervenor made a claim of right to the property.

We next consider if her possession was actual. What acts will characterize possession as “actual” depend on the nature and location of the property, the uses to which it can be applied and all the facts and circumstances of a particular case. Allen v. Wiseman, 359 Mo. 1026, 224 S.W.2d 1010, 1013 (1949); Frazier v. Shantz Real Estate & Investment Co., 343 Mo. 861, 123 S.W.2d 124, 131-132 (1938). Intervenor exercised the normal incidences of possession to a residential front yard. She arranged for having it mowed, planted decorative trees, and used it to travel across, including going to her garden. No one else, for at least 17 years, exercised any rights of possession over the premises. We believe that under the circumstances here, the use of the property showed that intervenor had actual possession from 1954 until 1971.

The third element is whether the possession was open and notorious. Numerous witnesses testified that intervenor cared for the property as a lawn and that residents in the community considered it a part of her yard. Photographs introduced in evidence show that it appears to be what normally would be considered the front yard of her residence. Defendant Lee Ca-gle testified that intervenor mowed, or had the land mowed, until the survey. His house was just across the road and he saw her, or someone for her, mowing that strip and knew that she claimed it as part of her front yard. He admitted that the trees were planted before he came in 1965. To be open and notorious possession, there need not be a fence, building or other improvements. It suffices that visible and notorious acts of ownership are exercised over the premises for the time required by the statute. Sanderson v. McManus, supra, 252 S.W.2d at 356. We believe the evidence established that intervenor’s claim was open and notorious.

We next decide if her evidence showed exclusive possession. “Exclusive possession”, for the purpose of establishing adverse possession, means that the claimant holds the possession of the land for himself as his own and not for another. Walker v. Walker, supra, 509 S.W.2d at 106. All of intervenor’s acts were for herself and she considered the property a part of her front yard. She was not intending to hold possession for anyone else. This was not disputed in the evidence. Exclusive possession was sufficiently shown.

The last element is that intervenor’s possession must be continuous. Again, there was no dispute here. Her acts continued from 1954 through 1971 or 1974. This exceeded the ten year minimum. § 516.010, RSMo 1969. Other evidence showed possession by her and her predecessors for 50 years or more. We believe this element to be satisfied.

Intervenor made at least a prima facie case on the issue of adverse possession. Having done so, the burden of going ahead on that issue shifted to the defendants Cagle. Slentz v. Cherokee Enterprises, Inc., supra, 529 S.W.2d at 496. Their evidence did not dispute any essential facts but confirmed intervenor’s claim. It showed that until the survey in 1971, they made no claim to the property and knew that appellant was claiming it, had planted trees on it and had been mowing and using it.

Defendants Cagle contend that it is significant that intervenor did not pay taxes on the property and claim that they paid them. Payment of taxes does not create title and non-payment does not divest title. Slentz v. Cherokee Enterprises, Inc., supra, 529 S.W.2d at 499. If title by adverse possession was vested in intervenor before the survey in 1971, the fact that she did not immediately contest appellant’s taking possession of the property, does not divest her of that title. Adverse possession for the statutory period establishes an indefeasible legal title in the possessor, the title of the record owner is divested, and that title is not lost by abandonment, or failure to assert it after it has been perfected. La Grange Reorganized School District No. R-VI v. Smith, 312 S.W.2d 135, 139 (Mo.1958).

We believe that the undisputed evidence established intervenor’s claim of title by adverse possession in the property as against defendants. The trial court’s determination as between defendants Cagle and intervenor was against the weight of the evidence and erroneously applied the law.

That portion of the judgment decreeing title to the subject property in defendants Cagle, is reversed and the cause is remanded for the entry of a judgment quieting title in the disputed parcel in intervenor, subject to the roadway rights of the plaintiff.

All concur, except FLANIGAN, J., re-cused.


author: TITUS, Presiding Judge.

text:
    Marjorie J. CONGER and Virgil Conger, Plaintiffs-Respondents, v. QUEEN CITY FOOD & VENDING, INC., and Charles E. Goss, Defendants-Appellants.
    No. 10829.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 9, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 30, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Nicholas R. Fiorella, Springfield, for plaintiffs-respondents.
    Glenn A. Burkart, F. Bennett Lilley, Mann, Walter, Burkart, Weathers & Walter, Springfield, for defendants-appellants.
   TITUS, Presiding Judge.

In the early morning hours of November 5,1974, plaintiff Marjorie Conger figured in a vehicular collision involving at least two automobiles and two trucks. The casualty occurred on U.S. Highway 65 as it crosses over Lake Springfield, near the southernmost edge of Springfield, Greene County, Missouri.

Plaintiffs Marjorie and Virgil Conger (wife and husband) brought suit in three counts in Circuit Court of Greene County, seeking recovery for plaintiff wife’s personal injuries, medical expenses and loss of consortium by her husband, and for physical damage to their automobile. The theory of recovery submitted to the jury was that defendant company and its agent/driver, defendant Charles Goss, either failed to keep a careful lookout, or, by the use of the highest degree of care, could have known that there was a reasonable likelihood of collision in time thereafter to have stopped, but defendant driver failed to do so. The jury returned a verdict for defendants on counts I and II (plaintiffs withdrew their claim for property damage to their automobile). Thereafter, the trial court granted plaintiffs’ motion for new trial on the ground that the giving of Instruction No. 4 was erroneous. Defendants appeal, seeking reinstatement of the jury’s verdict. We affirm and remand.

Defendants’ second point relied on in this appeal, which we discuss first, is that the trial court fell into error by granting plaintiffs a new trial. The new trial was granted because “Instruction 4 and its form were confusing, misleading and erroneous under the facts in this case . . . and prejudicial as to each plaintiff.” Instruction 4 is a converse of plaintiffs’ two verdict directing instructions. These verdict directing instructions, with the husband’s derivative charge shown in brackets, are:

“Your verdict must be for plaintiff, Marjorie Conger [Virgil Conger], against both defendants if you believe:
First, Charles Goss either: failed to keep a careful lookout, or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped, but'he failed to do so, and Second, Charles Goss’ conduct, in any one or more of the respects submitted in paragraph First, was negligent, and Third, as a direct result of such negligence, plaintiff Marjorie Conger sustained damage [this plaintiff’s wife, Marjorie Conger, was injured and plaintiff thereby sustained damage].”

Defendants’ converse instruction, which is labeled by defendants as being MAI 33.-04(3), is as follows:

“INSTRUCTION NO. 4
Your verdicts must be for defendants unless you believe that plaintiffs sustained damage as a direct result of de- . fendants’ negligence.” (emphasis supplied).

Discussion of the changing of “defendant” and “plaintiff” in Instruction 4 to the plural form will be discussed below.

As has been held by the courts of this state on many occasions, “All deviations from the straight and narrow path prescribed in MAI will be presumed preju-dicially erroneous unless it is made perfectly clear that no prejudice has resulted. The requirements of MAI are mandatory. The burden of establishing nonprejudice is on the proponent of the instruction.” Murphy v. Land, 420 S.W.2d 505, 507[4-6] (Mo.1967); Gormly v. Johnson, 451 S.W.2d 45, 47[2] (Mo.1970); Long v. REA Express Co., 573 S.W.2d 62, 66[6] (Mo.App.1978); Snyder v. Chicago, Rock Island & Pacific Railroad Co., 521 S.W.2d 161, 164[6] (Mo.App.1973); Siteman v. Woodward-Clyde & Associates, Inc., 503 S.W.2d 141, 145[1] (Mo.App.1973). “It must be recognized . . . that a system of instruction such as MAI is inherently standardized and inflexible. [W]e must insist that mandatory directions be followed and that the pattern instructions be used as written.” Brown v. St. Louis Public Service Company, 421 S.W.2d 255, 257-258 (Mo.banc 1967).

Given these clear directives to guide us in our scrutiny of an instruction complained of on appeal, we now seek answers to the questions of whether Instruction No. 4 was a deviation from MAI and, if so, how did defendant attempt to shoulder the burden of proving that the nonconforming instruct tion was not prejudicial?

Instruction No. 4 clearly deviated from MAI in that it changed from singular to plural the parties (plaintiffs and defendants) in the instruction given in MAI 33.04(3) (see emphasis supplied in Instruction No. 4, supra). The import of this change, keeping in mind any deviation is presumed prejudicial (see Murphy v. Land, supra), will be discussed below.

Defendants assert, by way of demonstrating nonprejudice, in their second point relied on, that Instruction No. 4 (1) “was not confusing, misleading or erroneous,” (2) “it was in form consistent with instruction No. 5 of MAI 35.05, differing therefrom only in that it conversed causation, rather than negligence,” and was therefore (3) “in form consistent with MAI 33.04(3)”, and (4) “instruction No. 4 was in form consistent with MAI 18.01, because the agency of [the driver of the defendant company’s truck] was stipulated and was, in fact, proved by [defendants]”.

A bare assertion that an instruction is “not confusing, misleading or erroneous” is, of course, not persuasive. MAI 18.01, entitled “Verdict Directing—Agency in Issue—Modification Required”, with its accompanying Notes on Use, gives instruction for use when agency is an issue at trial; when attempted to be proven or disproven by each party. Such is not the case here. Agency was stipulated by the parties. Its appearance as an issue on appeal, in defense of the use of a conversing instruction, is inapposite. The first and fourth averments in defendants’ second point relied on will not be considered further.

Defendants assert that Instruction No. 4 was in form consistent with MAI 35.05(5) and therefore it was not confusing, misleading or erroneous. Upon careful perusal of MAI 35.05(5), two damnifying distinctions are apparent. First, MAI 35.05(5) uses the “if you do not believe” introduction, with the attendant focus shifting to the actions of the defendant (negligence) where Instruction No. 4 uses the “unless you believe” introduction, with accompanying focus shifted to the plaintiffs and the damages allegedly sustained by them. The second distinction is the fact that MAI 35.-05(5) names “John Doe and Mary Doe" whereas Instruction No. 4 merely names “plaintiffs,” a factor to be discussed below in contemplation of defendants’ third assertion of nonprejudice.

Defendants assert that Instruction No. 4 is in form consistent with MAI 33.04(3). Save for the changing of plaintiff and defendant to the plural form, this is true. However, this is the very point at which defendants fall into error. It is the explication of this point upon which our decision to affirm the order of the trial court is based.

By way of mise en scene, and before scrutiny of this final point, it is well to state the oft-repeated standards by which we view the sufficiency of jury instructions on appeal. Our commencement is with Rule 70.02(c), V.A.M.R., where we are told in pertinent part that “[t]he giving of an instruction in violation of the provisions of this Rule shall constitute error, its prejudicial effect to be judicially determined.”

In making our determination of the potentially prejudicial effect of an instruction, and in order to determine whether the deviation from MAI has resulted in misdirection, the verdict director and the converse are to be read together. Griffith v. Saavedra, 409 S.W.2d 665, 667[2] (Mo.1966); Snyder v. Chicago, Rock Island & Pacific Railroad Co., supra, 521 S.W.2d at 164[7]. Further, our judicial eye is to be focused on whether, as read together, the verdict director and converse instruction may be understood and applied by a jury of ordinarily intelligent laymen. Wims v. Bi-State Development Agency, 484 S.W.2d 323, 325[3] (Mo. banc 1972); Apex Oil Company v. Beldner, 567 S.W.2d 336, 339[3] (Mo.App.1978); Snyder at 164[8].

We hold that Instruction No. 4, which read, “Your verdicts must be for defendants unless you believe that plaintiff s sustained damage as a direct result of defendants’ negligence”, could be read by a jury of ordinarily intelligent laymen to mean that the verdicts must be for defendants unless they believed both plaintiffs sustained damage. This is clearly not the law in Missouri and thus this instruction may have been confusing and misleading, thereby introducing prejudicial error into the trial.

While it is true that the court should not be hypertechnical in requiring grammatical perfection or any particular arrangement or form of language, Bartleman v. Humphrey, 441 S.W.2d 335, 348[25] (Mo.1969); Wims v. Bi-State Development Agency, supra, 484 S.W.2d at 325[3]; Sabbath v. Marcella Cab Co., 536 S.W.2d 939, 943[13] (Mo.App.1976), it is clear that changing “plaintiff” to the plural form did not constitute a mere technicality. Rather, this change resulted in the jury being required to believe more facts and elements than are essential to recovery for one or both plaintiffs. It erroneously required a finding that both plaintiffs sustained damage as a condition precedent to recovery by either. Long v. REA Express Co., supra, 573 S.W.2d at 67[8]. Averment by defendants that they were merely conversing the single element of causation (thereby justifying the single converse instruction) does not mitigate the confusion inherent in the wording of Instruction No. 4. This prejudice is not palliated by a “causation centered” argument by defendants during closing. Misdirection of law is a prejudice which argument of counsel cannot cure. The jury may ignore arguments of counsel altogether. R-Way Furniture Company v. Powers Interiors, Inc., 456 S.W.2d 632, 640[15] (Mo.App.1970); Snyder, supra, 521 S.W.2d at 165[9, 10], Defendants’ second point is denied.

Finally, we find that defendants had open to them an alternative to giving a single converse instruction which would have eliminated the confusion found in Instruction No. 4 and prevented prejudicial error. The rules prohibiting the use of two converse instructions directed at multiple verdict directors do not apply where multiple parties relying on the same theory of recovery have damage submissions which differ. A careful conning of MAI Converse Instructions (33.00 through 33.13), and the Notes on Use thereto, when read in juxtaposition with the analysis of this selfsame situation as explicated in Wyatt v. Southwestern Bell Telephone Company, 514 S.W.2d 366 (Mo.App.1974), provides guidance for counsel in framing appropriate converse instructions in derivative suits such as the instant case. See also Burrow v. Moyer, 519 S.W.2d 568 (Mo.App.1975).

Defendants’ first point relied on deals with the sufficiency of the evidence adduced at trial in support of the original jury verdict in favor of defendants and the lack of support by substantial competent evidence for plaintiffs’ two verdict directing submissions. We have reviewed the evidence and find that it was sufficient for the making of a submissible case. We have studied the cases cited in support of defendants’ first point relied on and find none out of harmony with the theory on which we have ruled this case. Defendants’ first point relied on is denied.

We find that the form of defendants’ converse instruction was confusing, misleading and erroneous under the facts here.

The order of the trial court granting plaintiffs a new trial is affirmed and the cause is remanded.

All concur.

      . References to rules are to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Marvin MORRIS, Defendant-Appellant.
    No. 37710.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 13, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Robert C. Babione, Public Defender, Sara T. Harmon, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles Sin-del, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

Marvin Morris, appellant, was found guilty by a jury in the Circuit Court of the City of St. Louis of Tampering With a Motor Vehicle in violation of § 560.175 RSMo 1969. The trial court also found that he had been previously convicted of a felony, Operating a Motor Vehicle Without the Owner’s Consent, and pursuant to the provisions of § 556.280 RSMo 1969 sentenced him to a term of five (5) years in the custody of the Missouri Department of Corrections. He appealed. We affirm.

Appellant does not question the sufficiency of the evidence to sustain the conviction; therefore, a brief statement of the facts supporting the jury verdict will suffice.

On July 7, 1975, a member of the Metropolitan St. Louis Police Department, Garland Burson, observed three men removing tires from a 1971 Oldsmobile in O’Fallon Park in the City of St. Louis. The owner of this car was Helen Louis. As Officer Bur-son approached, the three men began to walk away quickly but halted when he ordered them to do so. He inquired if they owned the car and one of the three replied that they did not know who the car belonged to, that they were just taking the tires off the car. He placed all three of the men under arrest and, at trial, identified appellant as one of the men he arrested at the scene.

On appeal, four Points Relied On are presented as grounds for reversing the judgment of the trial court and remanding the case for a new trial.

Appellant initially contends that the trial court erred in refusing to grant leave to an Assistant Public Defender to withdraw from representing him because the appellant was not indigent. The Public Defender had been appointed to represent the appellant on September 9, 1975. On November 3, 1975, the Public Defender filed a memorandum requesting leave of court to withdraw as counsel for the appellant on the grounds appellant was not indigent and had retained private counsel. On the same day retained counsel filed a memorandum entering his appearance on behalf of appellant and simultaneously requested a continuance of the trial of the cause in order to prepare for trial. The trial court denied retained counsel’s request for a continuance.

The cause was assigned to a trial division for trial and there retained counsel again presented his motion for continuance. Once again his motion was denied, this time on the grounds that the Assistant Public Defender was ready for trial and said Assistant Public Defender was ordered to remain in the case to assist the retained counsel in the trial of the case. The trial was commenced on November 4, 1975.

Under this Point, appellant’s attack is threefold: the trial court erred in that: 1) it violated the Public Defender Statute, § 600.045 RSMo 1969, in refusing to permit the Assistant Public Defender to withdraw from the case because the appellant was not indigent: 2) in denying his retained counsel’s motion for continuance, thereby denying him of his constitutional rights to effective assistance of counsel; and 3) it based its denial of said motion solely on the finding that the Assistant Public Defender had announced ready for trial.

We read the Statute in a different light than does the appellant. When the cause came on for trial the Statute authorized the trial court to relieve the Public Defender from a previously made appointment when one of two conditions was found to exist. The trial court is authorized by the Statute to relieve the Public Defender “upon a showing of good and sufficient reason therefor” or “if the defendant is found not to be indigent.” Under neither of these conditions is the trial court mandated to relieve the Public Defender; rather, the discretion to do so rests in the trial court. We hold, therefore, that the trial court did not violate the Statute in refusing, under these circumstances, to permit the Assistant Public Defender to withdraw.

The remaining two grounds argued under this Point are actually directed to an allegation that by failing to authorize the Assistant Public Defender to withdraw, and to grant his retained counsel’s request for a continuance the trial court violated appellant’s right to the effective assistance of trial counsel.

He argues that he is entitled to counsel of his own choosing and therefore he should not have been saddled with the Assistant Public Defender. While this right has been recognized, it is not absolute. It is limited to the extent it impinges on the public’s right to effective and efficient administration of justice. State v. Jefferies, 504 S.W.2d 6, 7(1) (Mo.1974). Here, appellant’s retained counsel did not enter his appearance until the cause was on the docket for trial and after the Assistant Public Defender had announced ready for trial. In fact, appellant had two counsel to assist him at trial and there is nothing in the record indicating any disharmony between them in the conduct of the trial. The Assistant Public Defender had been on the case almost sixty (60) days and by his own announcement was ready to try the case. There is nothing in this record to show that he was not ready.

With respect to the allegations that he was the victim of ineffective assistance of counsel, the appellant points to three incidents which he contends support his complaint, and which he says would have been handled differently if his retained counsel had been granted a continuance to properly prepare for trial. The first of these is what he refers to as a summary denial of pre-trial motions to suppress evidence, to suppress statements, and to dismiss, without an evidentiary hearing. Appellant, however, has utterly failed to identify with any particularity how the alleged neglect of counsel prejudiced his position. A defendant is not entitled to a new trial merely upon the proposition that counsel should have handled the case differently than he did. Cook v. State, 511 S.W.2d 877, 882(9) (Mo.App.1974). In the absence of any allegations or evidence that would have changed the ruling on these motions in this record, we cannot speculate that had a continuance been granted, a different result would have come about or that retained counsel would have handled his motions differently.

Appellant also argues that the failure of counsel to object when a statement made , by an accomplice was admitted into evidence, and when evidence of a fingerprint of one of the accomplices found on the car was introduced into evidence, constituted ineffective assistance of counsel and would hot have occurred had his retained counsel been given time to prepare for trial.

The mere failure to object to objectionable material is not sufficient to demonstrate ineffective assistance of counsel. State v. Harris, 425 S.W.2d 148, 153(5) (Mo.1968). The statement of the accomplice was made at the scene at the time the three men were observed removing the tires from the automobile and were placed under arrest. Whether it was a part of the res gestae has not been briefed by either party to this appeal. The record is devoid of any evidence that the lack of objection to these items of evidence was occasioned by any lack of preparation on the part of retained counsel and we cannot speculate that it was. There was ample evidence in this record to establish the facts necessary for a conviction, in the absence of evidence of an accomplice’s statement and fingerprints. Under these circumstances the appellant has not sustained the burden of demonstrating any prejudice to his case as a result of counsel’s alleged inadequate time for preparation. Cook v. State, 511 S.W.2d 877 (Mo.App.1974).

The decision to grant or deny a motion for continuance is discretionary with the trial court, and allegations of an erroneous denial of such request must be supported by the record. We hold that there is nothing in this record from which we can deduce the trial court abused its discretion or committed error in denying retained counsel’s motion for a continuance on the eve of trial, particularly where, as here, he had available to him the services of an Assistant Public Defender who had been on the case and announced ready for trial.

Appellant’s Second Point Relied On is that the trial court erred in finding that the State had proved he had previously been convicted of a felony and that he came, therefore, under the sentencing provisions of The Second Offender Act, § 556.-280 RSMo 1969. Appellant contends that the mere identity of names is insufficient to support a finding beyond a reasonable doubt that he is the same Marvin Morris referred to in the records adduced at trial in support of the allegation in the Information under the Act.

The State introduced into evidence the judgment entry book of the Circuit Court of Criminal Causes for the City of St. Louis in Cause No. 817rP wherein the plaintiff was the State of Missouri and the defendant was Marvin Morris. According to this record the defendant, Marvin Morris, was charged by Information with the offense of Operating a Motor Vehicle Without the Owner’s Consent and was convicted of that charge on June 20, 1967.

The law in Missouri is clear that evidence of identity of names is prima facie evidence to establish the accused’s identification for the purpose of proving a prior conviction under the Second Offender Act. State v. Echols, 467 S.W.2d 893, 896 (Mo.1971). There is no evidence in this record which would refute the prima facie proof made at trial and we rule this Point against appellant.

Appellant’s final two Points — that the trial court erred in submitting its own instruction in lieu of MAI-CR 1.02 and in finding from the evidence offered by the State that he had been previously convicted of a felony — were, he admits, not preserved for review in the trial court. He has asked that we review these Points as plain error pursuant to the provisions of Rule 27.20(c).

With respect to the submission of the trial court’s own instruction, appellant relies on State v. Clifton, 549 S.W.2d 891 (Mo.App.1977). Clifton does not control here and is not a plain error case; in Clifton the error was preserved for review.

With respect to the finding of the trial court that appellant had been previously convicted the evidence introduced by the State met the standards set out in State v. Goff, 449 S.W.2d 591, 593-594(2) (Mo. banc 1970) and was therefore sufficient to support said finding by the trial court.

Furthermore, there is no manifest injustice nor miscarriage of justice in this conviction.

We therefore rule these Points against appellant.

The judgment and sentence of the trial court is affirmed.

All Judges concur.

      . When his motion for continuance was denied retained counsel applied to this Court for a “Writ of Prohibition and Mandamus” on November 4, 1975, which we refused.


author: CRIST, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles “Red” WARDEN, Defendant-Appellant.
    No. 40345.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 13, 1979.
    Motions for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Applications to Transfer Denied Jan. 15, 1980.

      J. Martin Hadican, Clayton, for defendant-appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Asst. Attys. Gen., Jefferson City, Timothy J. Patterson, Pros. Atty., Hillsboro, for plaintiff-respondent.
   CRIST, Judge.

Defendant was convicted by a jury of first degree murder and his punishment assessed at life imprisonment. We affirm.

Defendant’s conviction stemmed from the contract slaying of his brother at defendant’s behest. In furtherance of his goal, defendant enlisted the employ of Norvel “Butch” Cadwallader and James Hudson. The three met at defendant’s apartment and there discussed terms. Defendant declared that it was worth $500.00 to him to have his brother shot and laid the money on a table. Hudson expressed his willingness to do the actual shooting and Cadwallader pocketed the money. Later, Hudson recanted, and Hubert Brissette was substituted as the executioner. Brissette was to receive $400.00 for pulling the trigger with Hudson agreeing to drive for $100.00.

Cadwallader procured a gun and gave both it and the remainder of the money to Brissette with the admonition that he was washing his hands of the whole affair. Hudson again backed down by refusing to drive, but it was agreed that he would receive $100.00 for the use of his car. On January 20, 1975, Brissette shot and killed defendant’s brother. Defendant does not challenge the sufficiency of the evidence.

At trial, defendant elected not to testify but claims in point one of his brief that he would have testified had not the trial court ruled that evidence of his former conviction could be used to impeach him. Basically, defendant argues that § 491.050 RSMo. 1969, which provides for impeachment of a witness by use of a former conviction, should be imposed so as to allow the trial court a measure of discretion in determining whether the prejudicial effect of such impeachment evidence (though it be probative and otherwise admissible) outweighs its probative value. Defendant admits that, heretofore, the Supreme Court of Missouri has construed the statute to confer an absolute right to admit such evidence and, we urge no other construction. We are bound by the mandate of our Supreme Court. Defendant’s first point stands denied. See State v. Toliver, 544 S.W.2d 565, 568 (Mo.banc 1976) and Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760, 764-767 (Mo.App.1974).

Defendant next complains of the trial court’s failure to declare a mistrial after a witness for the state alluded to the defendant having previously been in prison. Defendant objected to the remark and asked for a mistrial. The trial court sustained the objection, directed the jury to disregard the remark, but refused to declare a mistrial.

Generally speaking, testimony which indicates a defendant’s guilt of a different and separate offense is inadmissible and, thus, when the court inadvertently instructs the jury that a defendant is charged under the “Habitual Criminal Act,” the error necessitates reversal. State v. Martin, 506 S.W.2d 473, 474 (Mo.App.1974). Likewise, it is reversible error for the prosecutor to refer to other, unrelated, separate and distinct crimes. State v. Lee, 486 S.W.2d 412, 413—414 (Mo.1972). However, where a state’s witness volunteers an unresponsive reference to yet another unrelated, separate and distinct crime, such reference may or may not constitute reversible error. In this respect, the trial court’s decision to grant or not to grant a mistrial due to such an unresponsive reference is paid great deference, primarily because that court occupies a superior position from which to gauge the remark’s prejudicial effect. Several cases are illustrative.

In State v. Harris, 547 S.W.2d 473 (Mo. banc 1977), the court found no reversible error where the jury was informed the defendant had been charged, “of one prior conviction and operation of a motor vehicle without the owner’s consent.” In Harris, a mistrial was refused, the evidence stricken and the jury instructed to disregard the reference. This action was deemed sufficient to cure the error.

In State v. Dennison, 428 S.W.2d 573 (Mo.1968), the witness volunteered the fact that the defendant and another became acquainted on a previous occasion in the penitentiary. Defendant’s request for a mistrial was denied, and again it was deemed sufficient that the jury be instructed to disregard.

The Dennison case and the instant case are similar inasmuch as they contained similar references and similar remedies. We adopt like reasoning and reach a similar conclusion, i. e., that the trial court is in the better position to evaluate the prejudicial effect of the unresponsive remark. This point is also denied.

Defendant’s third point on appeal is addressed to the alleged foreclosure of an opportunity to impeach state’s witness Cad-wallader. Cadwallader had previously been charged with conspiracy to commit murder under facts arising out of this identical incident.

On cross-examination, and in response to defense counsel’s questions, Cadwallader indicated that his testimony was not the result of promises made him by the prosecution. Cadwallader was later asked by defense counsel whether he was aware that he could not be prosecuted for conspiracy because the statute of limitations had run as to that offense. Cadwallader stated that he was not made aware of that fact and expressed confusion as to what effect the statute of limitations would have on the status of his case.

Defense counsel attempted to impeach Cadwallader by demonstrating to the jury that the statute of limitations on the conspiracy charge had, in fact, run. The trial court refused to permit the demonstration for the reason that defense counsel had made no attempt to show Cadwallader was aware of the status of his case and was concealing this knowledge from the court. We agree.

Even were one to- assume defense counsel’s ability to prove the statute of limitations had run, such proof would not have resulted in the impeachment cf Cadwallader who claimed he simply did not know.

Impeachment could not have resulted absent a showing of facts which would tend to establish Cadwallader’s knowledge and, an attempt to conceal same. Defense counsel did not purport to offer proof of this knowledge and the status of Cadwal-lader’s case was, at best, merely ancillary to the trial issues. Although, great latitude is allowed a cross-examiner, especially in the cross-examination of an accomplice (see State v. Rose, 339 Mo. 317, 96 S.W.2d 498, 504 (1936)), defense, counsel’s questions bore no relation to Cadwallader’s credibility, nor any other issue relative to the case. State v. Knicker, 424 S.W.2d 605, 607 (Mo.1968). No abuse of discretion being apparent, this point is also denied.

Defendant lastly contends, in his pro se brief, that the trial court lacked jurisdiction to proceed because an amended complaint was filed in the magistrate court prior to the preliminary hearing, in violation of Rule 24.02 and, further, that an amended information was filed in the trial court without leave of court.

Defendant was initially charged with conspiracy to commit murder by complaint filed in the magistrate court on January 24, 1975. Defendant was subsequently charged with first degree murder by amended complaint filed on October 7, 1977. A preliminary hearing was held on October 14, 1977, and defendant bound over for trial. The original information, charging defendant with first degree murder, was filed October 18, 1977, and on February 22, 1978, the amended information was filed which charged defendant with the identical crime but which additionally charged him under the Second Offender Act. Trial began on March 6,1978, with defense counsel indicating that defendant would plead not guilty and would waive formal reading of the amended information. After presentation of the evidence, the prosecutor stated to the court that he would be unable to proceed under the provisions of the Second Offender Act as he had not received the requisite documentation from federal authorities. Accordingly, the jury assessed punishment.

Application of four precepts resolve this point against defendant. First, defendant was not denied due process in that he was afforded a preliminary hearing upon the filing of the amended complaint in the magistrate court. Rule 24.02. Second, defendant waived any imperfections or irregularities which may have arisen in the magistrate court by proceeding to trial before the circuit court without objection. State v. Frankum, 425 S.W.2d 183, 187 (Mo.1968). Third, defendant was not denied due process in the circuit court by the filing of the amended information as he elected to waive arraignment on it and, proceeded to trial without objection. State v. Ninemires, 306 S.W.2d 527, 530 (Mo.1957); State v. Colbart, 411 S.W.2d 92, 95 (Mo.1967). Fourth, the filing of the amended information, which amended information alleged a prior felony under the Second Offender Act, was not tantamount to his being charged with a separate or distinct offense. State v. Shumate, 516 S.W.2d 297, 299 (Mo.App.1974). In any event, as the state was unable to make a case under the Second Offender Act, the amendment was immaterial.

Judgment affirmed.

DOWD, P. J., and REINHARD, J., concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Earl RHODES, Appellant.
    No. 40509.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 13, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.
    Robert A. Hampe, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant was found guilty of stealing a motor vehicle, see § 560.156 and § 560.161 RSMo 1969, both now repealed, and pursuant to the Second Offender Act was sentenced by the court to imprisonment for a term of four years.

From the evidence a jury reasonably could find the following. On January 31, 1977, appellant drove a panel truck onto the parking lot of the Westroads Shopping Center. A passenger in the truck, Henry Goo-din, left the truck and walked to a 1976 Cadillac owned by Dr. Harry L. Acker. By use of “vise grips” he opened the locked door on the passenger side and then “pulled the ignition.” He drove the Cadillac from its parking place and followed the panel truck operated by appellant to the south portion of the parking lot preparatory to entering the street when both vehicles were stopped by the police. Neither appellant nor Henry Goodin had permission of Dr. Acker to use or operate the Cadillac.

Appellant was placed under arrest immediately after his truck was stopped and was taken to the Richmond Heights Police Department. A complaint was then made by Police Sergeant Jerry Wild and filed with the First District Magistrate Court of St. Louis County. The affidavit was signed by Sergeant Wild, and it recited that it was “Sworn to and subscribed before me this 31st day of January 1977,” but it does not contain the signature of either the magistrate judge or the clerk, or of anyone else authorized to administer oaths. A preliminary hearing was held, and an information in proper form was later filed charging appellant with stealing a motor vehicle, therein described as the 1974 Cadillac belonging to Dr. Acker. At arraignment, with counsel present, appellant waived a reading of the information and entered a plea of not guilty. In the afternoon of the second day of trial, and after several witnesses had testified, appellant for the first time pointed out to the trial court that although the complaint had been signed by Officer Wild it had not been verified although it contained the impression of a seal. The trial court denied appellant’s request that the case be dismissed or a mistrial declared because of this deficiency.

Rule 21.08 provides, in part, that “Whenever complaint shall be made in writing, verified by oath or affirmation (including an oath or affirmation on information and belief by a prosecuting attorney) and filed in any court having original jurisdiction to try criminal offenses, charging that a felony has been committed by a named accused, * * * it shall be the duty of the judge or magistrate thereof * * * to issue a warrant reciting the accusations and commanding the officer to whom it shall be directed forthwith to take the accused and bring him before such judge or magistrate to be dealt with according to law. * The essential issue is whether an unverified complaint is a nullity resulting in all subsequent proceedings being void, or whether that deficiency is non-jurisdictional and therefore subject to being waived by appellant when he participated in the preliminary hearing, and upon arraignment entering a plea of not guilty, and then proceeding to trial without objecting to this deficiency in the complaint.

The filing of a complaint in the magistrate court does not constitute a criminal prosecution, but is the first step in instituting a criminal charge. Arnold v. State, 484 S.W.2d 248 (Mo.1972). The complaint performs the same office that an indictment or information does in the circuit court. “The purposes of a complaint or affidavit are to advise accused of the charge made against him and to enable the committing magistrate to determine whether or not accused should be bound over to stand trial for the offense, * * 22 C.J.S Criminal Law § 303, p. 793. We know of no Constitutional requirement that a complaint must be verified, and the knowledge to be imparted thereby is as complete with an unverified complaint as when verified. The purpose of verification of a complaint is the same as the purpose of the verification of an information which, as stated in State v. Jordan, 102 S.W.2d 575, 576 (Mo.1937), is “a guaranty of the good faith of the prosecution, and to prevent a careless and reckless prosecution of a citizen.”

In McGlathery v. State, 465 S.W.2d 496, 498 (Mo.1971), it was stated that “it is a well established general rule that irregularities or imperfections in the magistrate court proceedings in felony cases are waived if the defendant pleads in the circuit court without, in some manner, raising his objections to the preliminary proceedings.” See also State v. Taylor, 362 Mo. 676, 243 S.W.2d 301 (Mo.1951); State v. McMillian, 383 S.W.2d 721 (Mo.1964); State v. Small, 386 S.W.2d 379 (Mo.1965); Richardson v. State, 470 S.W.2d 479 (Mo.1971); State v. Frankum, 425 S.W.2d 183 (Mo.1968); State v. Herron, 376 S.W.2d 192 (Mo.1964); State v. Layton, 332 Mo. 216, 58 S.W.2d 454 (1933); State v. Gartland, 304 Mo. 87, 263 S.W. 165 (1924); State v. Jack, 209 S.W. 890 (Mo.1919). In the McGlathery case, the alleged defect in the complaint was that the affidavit did not state sufficient facts to charge the offense, and the court stated at page 498, that it had “specifically held that any objection to the sufficiency of the complaint is waived if the defendant pleads to the information without raising the question.”

Appellant asserts however, that this rule does not apply to the circumstances of this ease. He argues that while one may waive defects concerning “the merits of the complaint,” for example, whether the complaining witness personally knows the facts, State v. Herron, supra, the requirements to be met to constitute a complaint cannot be waived. He cites and relies on State v. Nichols, 330 Mo. 114, 49 S.W.2d 14 (1932). In that case no complaint, verified or unverified, was filed.

As previously noted, the complaint serves the same purpose before the magistrate court as the information before the circuit court. In State v. Jordan, supra, the information was signed by the prosecuting attorney, but it was not verified by the clerk of the circuit court. Quoting from State v. Brown, 181 Mo. 192, 79 S.W. 1111, 1121 (1904), the court stated: “The only defect, then, is the failure to verify it [the information] by the oath of the prosecuting attorney or some competent witness. What, then, was the purpose of requiring the information to be verified? It was not to confer jurisdiction on the criminal courts to try cases of felony. That was conferred by the Constitution and laws of the state creating those courts. It was not to define what should constitute a sufficient charge in the information, because that, also, was prescribed in the Bill of Rights, and the long-established practice as to the essentials of a good indictment. The statute, on its face, shows that the verification is something additional to and dehors the body of the information itself, and which would not and could not make the information good, if otherwise defective in substance. That it is no part of the information itself is apparent from the fact that the affidavit may be made by a witness and filed with the prosecuting attorney — a thing separate and apart from the information and something additional thereto. Its purpose was to afford the defendant a guaranty of the good faith of the prosecution, and to prevent a careless and reckless prosecution of a citizen. It is, then, not a part of the information, but a step directed to be taken in aid of it. * * * The jurisdiction of the court does not depend on the affidavit, neither is the sufficiency of the information affected by it.” The court then concluded: “We have consistently ruled that an information is valid without a verification if no motion to quash is filed. This is only a formal defect, and the appellant going to trial without first having filed a motion to quash the information has waived this defect.”

What the Supreme Court of this state said in the Jordan case concerning an unverified information applies equally as well to an unverified complaint. We find no merit to this contention by appellant.

Appellant also asserts that the trial court erred in admitting “State’s exhibits 6 through 18 into evidence when the existence of those exhibits had not been disclosed to defendant’s counsel.”

These exhibits consisted of tools and appliances found in the panel truck operated by appellant. We first note that exhibits 6, 9 and 11 were not admitted into evidence, and second, there is no mention in the motion for new trial of exhibits 13 through 18.

Rule 25.32 provides that in certain circumstances “the state shall, upon written request of defendant’s counsel, disclose to defendant’s counsel” the items it intends to introduce into evidence. Appellant does not contend that he made a written request pursuant to this rule and the record does not disclose such request. He argues that he “justifiably relied on the Prosecutor’s assertion that the given discovery material was complete.” Nowhere in his brief is the substance of this alleged “assertion” set out, and we cannot determine from what is before us whether there was “justifiable” reliance. From a statement by appellant’s counsel to the trial court it appears that the prosecutor, without a request, furnished appellant’s counsel a copy of a police report. Appellant then argued to the trial court that “since it began the disclosure” the state was under “a continuing and complete obligation to disclose whether requested or not since they have undertaken to give us what we thought was all the discovery.” We do not agree. Because the prosecutor voluntarily furnished appellant a copy of a police report, there did not then arise a duty without a request from appellant to disclose that the prosecutor intended to introduce in evidence exhibits 7, 8, 10 and 12. Those exhibits consisted of a socket wrench with extension, an “adjustable tool,” and a “fitting.” None were exculpatory in nature. Therefore, the state had no duty to disclose their existence pursuant to the rule announced in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). See also State v. Bebee, 577 S.W.2d 658 (Mo.App.1979).

Finally, the mere failure to disclose, even in violation of the rules of discovery, “does not in and of itself entitle appellant to a new trial; it must be shown that the nondisclosure resulted in fundamental unfairness, * * State v. Bebee, supra at p. 661. Appellant makes no argument to that effect and there is no basis to determine prejudice, assuming there was a duty to disclose which we are convinced there was not.

Appellant’s third point is that the trial court erred in failing to grant his motion for judgment of acquittal “since the critical fact of ownership of the stolen property was not proved by the state.”

Dr. Acker testified that he owned a 1976 Cadillac Coupe Deville, which was “white over blue” in color, and that on January 31, 1977, he placed it “about four parking spaces from Popes’ Cafeteria” on the West-roads parking lot, and then locked its doors and took the key with him. About thirty minutes later his automobile was not where he had parked it, but later that day he saw his automobile in front of “Stix Westroads.” He examined that automobile and identified it as being his, and based that identification on the facts that it was the “same color” and had the same “interior,” and that it had the “same license plates on it.” There is no contention that the automobile in front of “Stix Westroads” was not the automobile that Henry Goodin had attempted to drive out of the parking lot.

Appellant asserts in his brief that “the evidence of ownership of the stolen vehicle is particularly weak.” In support of this he sets out the following circumstances.

(1) Dr. Acker stated he could identify the automobile as his by the color and things inside the car, but “was unable to identify the exhibits which were taken from the car.” He apparently was shown what he said looked like an ignition key and “the door barrel lock.” Neither had been identified as an exhibit, and he stated he could not be “sure” where those items came from. The only items which had been identified as exhibits and which had been taken from the automobile and shown to him, and which appellant asserts he was “unable to identify,” were a plastic handled screwdriver, the “vice grips,” and an “ignition puller.” Dr. Acker stated only that he had not left them his automobile.

(2) Although Dr. Acker testified that he identified the stolen automobile as his “through recognition of the license plate number,” there was no proof that the plate numbers corresponded with those for an automobile owned by him. Appellant argues that proof of ownership “would have been most effectively formed by production of the required certificate of ownership,” and the “absence of the best and easiest to produce evidence is suspect.”

Dr. Acker positively testified that the automobile which Henry Goodin opened the door with “vice grips” and “pulled” the ignition, and then attempted to drive off of the parking lot was his automobile. This was sufficient proof of ownership of the stolen automobile. Appellant’s contentions go only to the weight to be given his testimony.

Appellant’s final point is that it was error to give MAI-CR Instruction 7.70 “because that instruction is ambiguous in that it does not inform the jury what standard of proof it should apply in trying evidence as to the fact of ownership of stolen property.”

The jury was told by the instruction that it could find appellant guilty only if they were able to “find and believe from the evidence beyond a reasonable doubt” that the defendant and another. “took a 1976 Cadillac owned by Dr. Harry L. Acker.” We consider this instruction to be perfectly clear and plain, and that no jury composed of reasonably intelligent persons could have been misled as to its. meaning. Appellant cites no authority for his contentions. We consider the point to border on the frivolous, and to be of no merit.

. The judgment is affirmed.

SMITH, P. J., and SATZ, J., concur.


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Deborah Sue NEAL, Defendant-Appellant.
    No. 39597.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 16, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      William J. Shaw, Public Defender, Joseph W. Downey, Asst. Public Defender, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Asst. Atty. Gen., Jefferson City, George R. Westfall, Pros. Atty., Steve H. Goldman, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   STEWART, Judge.

Deborah Neal, the defendant, was convicted of Murder Second Degree in the death of her husband, Kenneth Neal.

For reversal defendant contends that the court erred in (1) overruling her objection to the admission into evidence of an axe and an ice pick, (2) overruling her objections to certain questions propounded to several veniremen, (3) striking a venireman for cause, (4) overruling her objection to testimony that prior to making a statement to the police she had conferred with her attorney for about two hours, (5) permitting improper rebuttal testimony, (6) refusing to give an instruction on circumstantial evidence, and (7) overruling objections to argument of the State. We affirm.

Defendant does not contest the submissi-bility of this cause therefore an extensive statement of the facts is not necessary.

Defendant and Kenneth Neal had lived together for about two years and had married approximately three and one-half months before Kenneth Neal’s death. They had been having domestic problems. Kenneth had been drinking on the afternoon and evening of Saturday, October 2, 1976. He reported to work at 1:30 AM on Sunday and had more to drink through the early morning hours. When he left work at 7:30 AM on Sunday morning he was intoxicated. At the time of death his blood alcohol level was in excess of .3 which means that he would be in a near stupor.

In the early morning hours of the following Tuesday, the defendant led police to Mr. Neal’s body in their home. He was lying on a bed with a knife protruding from the left side of his back. Covers had been placed over him. Defendant admitted that she had stabbed her husband on Sunday morning October 3. Defendant remained in the house for about two hours after the stabbing occurred. After telling her mother of the incident late Monday evening she met with other relatives in the early morning hours of October 5. The police were called and it was then that defendant accompanied the police to the house. Mr. Neal bled to death over a long period of time as a result of a stab wound. Because of his intoxication he was unable to seek help.

Defendant’s evidence tended to indicate that the killing was in self-defense.

We first consider defendant’s contention that the court erred in admitting into evidence as exhibits an axe and an ice pick that were found in the house subsequent to the crime. She argues that there was insufficient evidence to connect the exhibits with the crime.

Articles, instruments and weapons that have a tendency to explain the manner in which a crime was committed that are found at or near the scene of the crime subsequent to the commission of a crime are generally admissible. State v. Rains, 537 S.W.2d 219, 225 (Mo.App.1976).

In the present case the autopsy revealed that there were five knife wounds in the upper back of the victim; one of the wounds had penetrated into the right lung and one of them into the left lung. The three remaining wounds were superficial. Deceased had bled to death as a result of the deep wound in the right side of the back. It took about two hours for the victim to die from this wound. The wound in the left side of the back, from which the knife protruded, showed very little blood indicating that it was inflicted just before the victim died. There were five parallel incision wounds in the right temporal parietal area of the scalp made by a heavy cutting instrument of considerable weight that had crushed the skull. • The incisions had lengths of “two to one-half and one inch” indicating various angles at which it struck the skull. These incisions showed almost no blood indicating that the deceased was on the verge of death when they were inflicted.

There was also a round puncture wound in the left back that was about one-half inch deep made by an instrument like a pick or a nail. The instrument that caused this injury was different from the other two instruments that had been used upon Mr. Neal.

The ice pick was found in the kitchen of the defendant’s house and the axe was found in the basement. A jury could find that the ice pick was consistent with the round puncture wound in deceased’s back described by the medical examiner as having been made by a pick or nail. Likewise, the axe, which we have examined and find to be very heavy, could have caused the crushing incisions found in Mr. Neal’s skull. The axe and the ice pick were found subsequent to the occurrence. The court did not err in admitting these exhibits into evidence. State v. Rains, supra. See also State v. Alexander, 581 S.W.2d 389 (Mo.App.1979).

We next consider defendant’s contention that the court erred in overruling her objection to questions propounded to jurors which she claims committed the jurors to return a verdict of guilty.

The basis for defendant’s complaint is found in the following excerpt from the voir dire by the State.

“Now, there’s going to be evidence in this case that the deceased in this case, Kenneth Neal, has struck Deborah Neal, and hit her in the head, before this particular day. Now, is there anybody here that because of this evidence, as I anticipate it will come out, feels that they automatically would not be able to find anyone guilty, based on this fact alone?
MR. GOLDMAN: What I’m asking is whether this particular fact in and of itself would automatically stop anyone from reaching a guilty verdict in this case.
All right, Now, let me just ask, I’ll ask the question again, okay, in case it wasn’t really clear. There will be evidence brought up, I’m sure, that in the past, before this particular day, October 3rd, that he had struck her in the past. Now, do you feel that you’d be, based on that alone, with no other evidence, on that fact alone, you’d be able to find a person guilty of murder on that particular day?
VENIREWOMAN HUTCHISON: I will again say yes or no. I don’t really know what I’d do.
MR. GOLDMAN: Well, now, if the Court instructed you on the case that this is an element that you should consider, certainly you ought to consider, if the Court tells you to do that, but do you feel that if the issue was submitted to you, do you feel that just based on that fact alone, you’d be unable to — in other words, you’d say that would give a person a right to kill someone at a later—
VENIREWOMAN HUTCHISON: No, I don’t think- so. What I’m saying is I don’t think he should have a right to go around striking someone else.
MR. GOLDMAN: Right. No one said that should be a right. What I’m saying is, if that evidence came out, it alone would affect you so that you’d say at a later day the person would have the right to kill the other person?
VENIREWOMAN HUTCHISON: No, I don’t think so.
VENIREWOMAN HUTCHISON: Not on that alone, I don’t think so.
MR. GOLDMAN: All right. You understand what I’m saying then?
VENIREWOMAN HUTCHISON: Urn-hum.
MR. GOLDMAN: Okay. Then I’ll— it’s important you decide this case for, you know, for my rights of the State and for her rights, too, to, the people are impartial and don’t form opinions ahead of time, that it would make a conclusion they have to do one thing or the other without listening to the evidence, so you feel you could be openminded, listen to the case as a murder second degree case without reaching a conclusion, based on that evidence.”

It is reversible error for counsel, on voir dire, to obtain from prospective jurors a commitment or pledge to act in a certain way should a particular set of facts be elicited in the trial. State v. Katz Drug Company, 352 S.W.2d 678, 684 (Mo. banc 1961). Counsel may, however, probe the veniremen to determine preconceived prejudices that would preclude them from following the instructions in the case. See State v. Isreal, 537 S.W.2d 565, 567 (Mo.App.1976).

In the case before us counsel sought to determine whether assaults committed by a victim of a murder upon the defendant at some time in the past would in themselves preclude the veniremen from finding defendant guilty. Counsel did not seek to commit the venire to a finding of guilt under a given set of facts. He, in fact, admonished that he was not asking them to come to any conclusions before hearing the evidence. We find no error on this issue.

In a closely related issue defendant contends that the court erred in striking Venireman Ellebracht for cause. After considerable questioning of Mr. Ellebracht by counsel for both parties and the court, the following took place:

“MR. GOLDMAN [Assistant Prosecuting Attorney]: If he [Mr. Neal] struck her [Mrs. Neal] severely in the past, would that fact alone stop you from ever finding her guilty of murder in the second degree at a later date regardless of any other evidence or any instructions that the Court gave you?
VENIREMAN ELLEBRACHT: Yes, it would.”

The trial court has broad discretion in determining the competence of jurors and should not hesitate to strike a juror for cause when there is an indication of partiality toward either party or preconceived prejudices. See State v. Williams, 538 S.W.2d 947, 949 (Mo.App.1976).

In this case the juror stated that he could not find a person guilty of unlawful homicide if the victim of the homicide had previously assaulted the accused. The juror thus advised the court that he could not follow the law. The court did not abuse its discretion in striking the juror.

Defendant next contends that the court erred in admitting into evidence the fact that she conferred with her attorney before making a tape recorded statement that contradicted a portion of her previous oral statement made to a police officer. The issue arose when Officer Dabbs, a witness for the State, testified on direct examination that defendant stated that her husband was screaming at her as she ran from the home after the stabbing. Defendant made this statement before the police accompanied her to the house and first viewed the body. The officer made the statement part of his police report. This report was completed before defendant made a lengthy tape recorded statement. In the taped statement she did not testify that the deceased was screaming at her as she left the house. On cross-examination counsel for defendant elicited from the officer the fact that when defendant read the police report she denied that she had told the officer that her husband was screaming at her when she left the home. On redirect examination the officer testified that defendant conferred with her attorney for an hour and a half or two hours before she gave the tape recorded statement.

The primary thrust of defendant’s argument is that defendant’s Fifth Amendment right to remain silent was violated by evidence that she conferred with her attorney before giving the lengthy tape recorded statement which contradicted the statement given to the police officer. Defendant cites State v. Roth, 549 S.W.2d 652 (Mo.App.1977), State v. Stuart, 456 S.W.2d 19, 22 (Mo. banc 1970) and State v. Dowling, 348 Mo. 589, 154 S.W.2d 749, 755 (1941). Each of these cases is authority for the general proposition that an accused’s silence while under arrest cannot be used against him. In Dowling a police officer testified that Dowling stated that he was not going to say anything until he had seen an attorney. This testimony infringed on defendant’s right to remain silent.

We do not have such a situation in the case at bar. In this case the State’s witness testified that defendant stated the deceased was screaming at her when she left the house. The defense sought to impeach this witness on cross-examination by showing that defendant later denied making this statement. The State could then rehabilitate its witness on redirect examination by showing the circumstances that intervened from the time she is alleged to have made the statement and the time she denied making the statement; that defendant had the opportunity to have counsel evaluate her actions and statements and for her to have reflected upon her earlier statement. State v. Johnson, 539 S.W.2d 493, 503 (Mo.App.1976).

Defendant asserts that the court erred in admitting improper rebuttal testimony. During the trial there was evidence that defendant turned the air conditioning unit to a lower temperature when she left the house. Mr. Hoffman, defendant’s father and a defense witness, was cross-examined as follows:

“Q. You recall telling me that you remembered her saying she turned the thermostat down?
A. I don’t know whether she turned it up or down or what she done with it.
Q. You remember her talking about it?
A. She said something about a thermostat, yes.
Q.' You recall her saying, T could have kept this quiet for two weeks’?
A. No, not really.”

An assistant prosecuting attorney testified regarding a conversation with Mr. Hoffman to rebut Hoffman’s testimony. The witness related that there was talk about the thermostat and then the following occurred:

“Q. Was there any talk about when someone might find out about it — the body?
A. In referring—
MR. DOWNEY: Object to — may we approach the bench, your Honor?
Q. (by Mr. Goldman) Did Mr. Hoffman tell you anything with regard to what Debbie Neal told him?
A. He said that Debbie Neal said she —T could have kept quiet for two weeks.’ ”

Defendant objected to this rebuttal testimony on the ground the testimony did not contradict the testimony of Mr. Hoffman.

The scope of rebuttal is within the sound discretion of the trial court and we will not reverse except for abuse of discretion even though in the strictest sense the testimony is not proper rebuttal testimony. State v. Myers, 538 S.W.2d 892, 898 (Mo.App.1976). The testimony above indicates that the testimony of State’s rebuttal witness is contradictory of Mr. Hoffman’s testimony. We find no abuse of discretion on the part of the trial court.

Defendant contends that the court erred when it refused to give her requested instruction on circumstantial evidence. (MAI-CR 3.42). The trial court is not required to give a requested instruction on circumstantial evidence if there is any direct evidence of the crime charged. Admissions and declarations against interest may constitute direct evidence. State v. Holman, 556 S.W.2d 499, 508 (Mo.App.1977). In the present case defendant admitted to her brother, cousin and mother that she killed her husband. This was direct evidence that defendant committed the crime. The court was not required to give the requested instruction. State v. Holman, supra.

Finally, defendant complains of comments made by the State in closing argument. Reviewing applicable precedent it has been often stated that counsel is allowed broad latitude in closing argument. Hoehn v. Hampton, 483 S.W.2d 403, 408 (Mo.App.1972). The trial court in turn has a wide discretion in its control of argument and its rulings are reversible only for abuse of discretion where the argument is plainly unwarranted and clearly injurious. State v. Schumacher, 556 S.W.2d 199, 200 (Mo.App.1977).

Defendant complains of three separate statements made by the prosecutor in argument. We shall consider them in the order in which they appear in the transcript. The first comment which defendant objects to is the State’s argument “You remember her mother’s testimony, where he had the gun, and she [defendant] said, T was going to use that on you.’ ” This argument was apparently made in reference to the testimony of defendant’s mother regarding an incident involving a gun at the Neal home the month before Mr. Neal’s death. Mr. Neal had gone into “the other room and found a shotgun and brought it out.” He asked defendant a question to which she replied “I’m going to use it.” Even though the State’s argument is not an exact statement of this testimony, it is up to the court and the jury, who heard the testimony and any inflections in the witness’ voice, to determine what connotations to draw from the testimony. The statement and the testimony of defendant and others reveals a domestic scene lacking in tranquility. Defendant testified that she had been beaten by him; that he was required to sleep on the floor in the living room; that she at one time placed a starter’s pistol in her drawer which she intended to use to frighten the deceased; and that she kept the knife that killed her husband under the mattress on her bed. The interpretation of the testimony of defendant’s mother was warranted.

We also note that the court and the prosecutor admonished the jury to evaluate the argument in the light of “what was actually testified to.” The statement was not so lacking in support as to result in reversible error. See State v. Coleman, 441 S.W.2d 46, 54 (Mo.1969).

Defendant also complains of prosecution statements to the effect that defendant was giggling and laughing about stabbing her husband when she made the tape recorded statement that was heard by the jury-

In closing argument the prosecution compared defendant’s courtroom testimony with her taped statement and stated:

“You actually heard the tape, how she reacted two days after she did this murder, and listened, remember how she was. I mean, she was giggling about stabbing the man. She says, ‘Maybe he’s bionic, I don’t know. You need a saw to saw into him. He’s made out of steel.’ She’s laughing about it.”

The argument is reasonably accurate as to the statements made by defendant in her taped statement. Such statements could warrant the inference that she was taking the incident with some degree of lightheartedness. We have listened to the tape and did hear some sounds and exclamations that could be characterized as dry laughter or chuckles at times during the statement. We cannot say that the State’s characterization is reversibly inaccurate. The jury heard the tape and could make their own judgment as they were told to do by the court.

Defendant also complains of the State’s argument that “She told her relatives that she turned the air conditioner down, and nobody would know for two weeks — ” because there is no evidence to support the statement. What we have said with respect to the rebuttal testimony amply answers this issue.

We find no reversible error. The judgment is affirmed.

STEPHAN, P. J., and KELLY, J., concur.

      . Defendant testified that the knife did not penetrate the first three times she stabbed the deceased.