author: DIXON, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald E. PETTIJOHN, Defendant-Appellant.
    No. KCD 27949.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.

      Thomas M. Larson, Public Defender, Joyce C. Wolfe, Law Intern, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Defendant appeals from a judgment and sentence of twenty years imposed upon a jury verdict of guilty and fixing the punishment for the crime of sodomy. Upon defendant’s claim that the jury should have been instructed on circumstantial evidence, the cause must be reversed and remanded for a new trial.

The nature of the assigned error compels a detailed factual recital. On September 13, 1974, Ronald R. Seaman, a Kansas City Policeman, noticed a car parked in a park area in Kansas City. As he approached the car, he saw that the car’s engine was running, that all of the windows were up, and that its driver (the defendant) appeared to be asleep. His suspicion aroused, Seaman pulled his vehicle alongside the parked car, “shined” his spotlight in the window, and honked the horn. Because the defendant did not respond to these actions, Seaman got out of his patrol car, “went over and knocked on the window.” The defendant still failed to respond. As he knocked on the window, Seaman saw the defendant’s “penis out of his pants and a little girl with her mouth on his penis.” The little girl was apparently asleep when the officer first saw her. She was wearing “a blue wrap-around skirt with red shorts; no shirt, no shoes.” The driver’s son was sleeping in the back seat of the car. The officer also discovered a bottle of whiskey, a knife, and a jar of Vaseline Petroleum Jelly in the car. The officer continued to knock on the window until the driver awoke. This took about three or four minutes.'

Another police officer, Hammond, was exercising his police dog in the park when he received an “assistance call” from Seaman. Upon receiving, Hammond drove directly to the car Seaman was investigating. As he “pulled up” he saw “officer Seaman was just pulling Mr. Pettijohn out of the car and he had his fly unzipped and his penis was out and there was a little girl on the front seat. She was naked from the waist up.” Despite vigorous efforts, the lawyers could not clarify the officer’s testimony as to what “on” with relation to the actual position of the child was with relation to the defendant. The defendant’s penis was limp. The entire testimony of the officer is such that an inference that the defendant was not aware of the child’s activities is also possible. The child was asleep and the defendant was either asleep or passed out.

During the trial, the defense called defendant’s wife (Cynthia’s mother). She testified that she had twice caught her daughter engaging in similar acts of sodomy. The first time was with a 12 year old neighbor boy. The other incident involved defendant. According to Mrs. Pettijohn at the time of this second incident, defendant:

“got completely stoned and he went on to bed, so I let one of the girls on different occasions, I would let the girls sleep with us, so Cindy got in bed with us to sleep, cause we had a water bed, so I let one of them sleep with us once in awhile, it was a thrill. And I woke up in the middle of the night and, well, he was still passed out but she was upside down in bed, down on him. So I took her out of bed and whipped her but I didn’t think that punishing would do that much good and why should I punish her if she had a problem?”

When asked how Cynthia “learned how to do such things,” Mrs. Pettijohn responded that her daughter either learned it from her or from her first husband.

When asked about her knowledge of the events on the night of September 13, Mrs. Pettijohn said that her husband had been drinking and was pretty “tight.” He decided to go get another bottle before “the places closed.” For some unexplained reason, he took his son, Lonnie, and his stepdaughter, Cynthia, with him.

The predicate upon which the ultimate issue concerning the giving of the circumstantial evidence instruction rests is contained in the defendant’s first point and the State’s answer thereto. In his first point, the defendant argues that the evidence which is set forth above, in the light most favorable to the verdict, is insufficient because it does not demonstrate the element of penetration. The State counters that point by arguing that nowhere in the Missouri statutes or in the Missouri case law is it required that penetration be proved.

The State approaches the problem as one being “sui generis ” in Missouri and arguing that this court should declare that penetration should not be required for proof of the offense under Section 563.230. The State develops the argument by citing the Illinois and Georgia statutes which it asserts are “nearly identical.” A comparison of the statutes involved demonstrates that they are quite dissimilar. Both the Illinois statute and the Georgia statute prohibit on the basis of sexual contact between the defendant and the pathic while the Missouri statute defines the offense in common law terms.

Based upon these arguments concerning the sufficiency of the evidence, the parties approach the problem of the denial of the circumstantial evidence instruction upon the assumption that their positions with respect to the sufficiency of the evidence are correct.

Before passing to the issue of the instruction, it should be noted that the evidence in this case is sufficient to submit the issue of the defendant’s guilt to the jury even if penetration is an integral part of the offense for the apparent reason that the evidence noted above gives rise to an inference that penetration had occurred between the defendant and the pathic.

Turning now to the issue of the necessity for an instruction with respect to circumstantial evidence, the State in its argument under that point assumes that penetration is not required and concedes, in effect, that if evidence of penetration is required that the essential element of penetration is not shown directly and that a circumstantial evidence instruction should have been given. Thus reduced to its essentials, the issue to be decided in this case is whether the proof of penetration is required in a case of this nature for, if it was, the refusal of the instruction tendered by the defendant with respect to circumstantial evidence would be error as the parties concede.

Although early writers on the English common law were reluctant to detail the elements of the “infamous crime against nature, committed either with man or beast,” 4 Blackstone, Commentaries, 215; and 70 Am.Jur.2d Sodomy § 3 (1973), it is apparent that proof of the common law felony absolutely required evidence of some slight penetration by the male sex organ in other than a natural manner. 2 R. Anderson, Wharton’s Criminal Law and Procedure § 752 (1957). At common law, the act of cunnilingus was not punished as sodomy, and the crime could not be perpetrated by two women. Anderson, supra. Moreover, “at common law commission of the crime required penetration per anum, and that penetration per os did not constitute the offense.” State v. Morrison, 25 N.J.Super. 534, 96 A.2d 723, 725 (1953).

Around 1835, the Missouri legislature enacted a sodomy statute declaring that “[E]very person who shall be convicted of the detestable and abominable crime against nature, committed with mankind, or with beast, shall be punished by imprisonment in the penitentiary not less than ten years.” § 7 p. 206 RSMo 1835. Although occasionally subject to minor alterations, this rarely used statute, written in the language of the common law writers, remained in force until 1911, when “the General Assembly . . . added a material amendment to the law in 1911, extending the crime so that it may be committed with the mouth.” State v. Wellman, 253 Mo. 302, 161 S.W. 795, 797 (1913).

In Wellman, the court considered whether the act of cunnilingus was prohibited by the amended statute. After examining the amended statute, the court concluded, “It is apparent that the General Assembly intended to expand the meaning of the words ‘detestable and abominable crime against nature’ by the amendment of 1911.” Without giving full definition to the expansion, the court found that it did include cunnilingus, but felt compelled to reverse and remand because the information improperly charged the defendant with the self-contradictory act of having sexual intercourse with the pathic with his mouth. In so holding, the court pointed out that the information would not have been fatally defective if it had charged the defendant with committing the “detestable and abominable crime against nature upon [the pathic] by then and there inserting his mouth into the sexual organs and private parts of her

Three years later the court was faced with a pair of cases involving acts of fellatio arising out of the same incident: State v. Katz, 266 Mo. 493, 181 S.W. 425 (1916); and State v. Pfeifer, 267 Mo. 23, 183 S.W. 337 (1916). One evening in 1913, “the pros-ecutrix” and a male acquaintance were sitting on a bench in St. Louis’ Benton Park, when they were suddenly accosted by three men. After falsely identifying themselves as police officers, the men seized the prose-cutrix’s male acquaintance under the guise of an arrest. Two of the men escorted him to one side of the park while the third took the prosecutrix to the other end of the park and “ravished her.” After raping her, he next committed a classic act of sodomy by inserting his penis into her rectum. His two partners arrived and assaulted her in the same manner. The trio then took her to an abandoned brewery where they were joined by a fourth man. The four assaulted her again. At one point the fourth man “thrust his private male organ into her mouth.”

The defendants contended that acts of fellatio charged as sodomy in the informa-tions were not crimes within the meaning of the sodomy statute because penetration per os was not included in the common law definition of sodomy. Relying heavily on Wellman, supra, the court rejected this argument, concluding in State v. Katz, at 181 S.W. 426, that:

“It would serve no useful purpose to go into the conflicting holdings of other jurisdictions as to whether the act here charged was at common law included in •the general terms ‘crime against nature,’ because, even were the negative of this proposition conceded, it would avail defendant nothing in view of our amended statute. In the statutes of this state it is written: ‘Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, with the sexual organs or with the mouth, shall be punished,’ etc. — the words in italics having been added by amendment in 1911. Laws 1911, p. 198. The Legislature surely meant something by this amendment; and, if so, it evidently was to include certain acts against nature which the general common-law terms did not embrace, and the acts it had in mind it designated. The method denounced by the amendment, and employed in this case, is as much against nature, in the sense of being unnatural and against the order of nature, as sodomy, buggery, or any other unnatural copulation. The original statute gave no definition of the crime against nature, and it was unnecessary for the amendment, in order to embrace the act here charged, to more definitely define the act in contemplation than it did. As said in Honselman v. People, 168 Ill. loc. cit. 174, 48 N.E. 305:
“ ‘The statute gives no definition of the crime, which the law, with due regard to the sentiments of decent humanity, has always treated as one not fit to be named’
—and so with the amendment. Without lengthening the discussion of this loathsome subject, it is sufficient to say that the act here charged is within the statute, and that the information fully and sufficiently advised the defendant of the crime with which he was charged. State v. Wellman, 253 Mo. 302, 161 S.W. 795; Means v. State, 125 Wis. 650, 104 N.W. 815; Honselman v. People, 168 Ill. 172, 48 N.E. 304; Kelly v. People, 192 Ill. 119, 61 N.E. 425, 85 Am.St.Rep. 323.”

As can be seen, after apparently first assuming that the prior sodomy statute was limited by the common law language to classic sodomy, buggery, or bestiality, the court concluded that the statute had been extended by the 1911 amendment to include similar acts committed with the mouth, and that fellatio and cunnilingus are such similar acts.

It is very important to note that a basic similarity between cunnilingus, fellatio (as the terms are “defined” in Wellman and Katz) and the acts traditionally proscribed by the sodomy statute is penetration. While, like Missouri, nearly all States have expanded the common law felony of sodomy to include the acts of fellatio and cunnilingus, only a few have gone so far as to hold that something less than at least a slight penetration by either the mouth or the penis of a forbidden bodily cavity can amount to sodomy. 70 Am. Jur.2d, Sodomy, § 5 (1973). As one writer states, “In the absence of some usual statutory provision a conviction of sodomy cannot be sustained where evidence fails to show penetration although of course it might be sufficient for an attempt to commit the offense, or some other offense such as sexual assault.” R. Perkins, Criminal Law, p. 391 (2d ed. 1969). Since Missouri’s statute does not appear unusual and since no Missouri case has been found extending the crime of sodomy to acts requiring less than penetration, it most be concluded that Missouri still follows the common law rule requiring some proof of penetration. Support for this conclusion is found in the requirement of MAI-Cr 12.50 that the jury find “insertion” by the mouth or sexual organ into the forbidden bodily orifice, as well as Section 546.330 RSMo 1969 which declares that proof of actual penetration shall be sufficient to sustain an indictment for sodomy.

If evidence of penetration is required, then it is clear, as the State concedes, that there is no direct evidence of penetration in the case at bar. Penetration or insertion, however, need not be proved by direct evidence. As in rape, penetration in sodomy can be proved by circumstantial evidence. State v. Hamilton, 304 Mo. 19, 263 S.W. 127 (1924). “Evidence of the condition, position, and proximity of the parties as testified to by eyewitnesses may afford sufficient evidence of penetration to support a charge of sodomy by cunnilingus, and evidence of penetration beyond the lips of the pathic is sufficient to show penetration supporting a charge of sexual perversion.” 81 C.J.S. Sodomy § 5, p. 377 (1953).

Since under the circumstances of the case at bar there was no direct evidence of sodomy, the trial court was obligated to give such an instruction. Failing to give such an instruction, the trial court committed reversible error. State v. Regazzi, 379 S.W.2d 575, 578 (Mo.1964).

Defendant argues four other less significant “points” in his brief. First, he contends that there is a fatal variance between the information and the verdict directing instruction. Next, he argues that the trial court erred in failing to grant defendant a hearing on the issue of competency. Thirdly, he claims the trial court abused its discretion in failing to reprimand trial counsel as to argument. Since the case must be reversed on other grounds for the reasons outlined above and since none of the other grounds asserted will be likely to arise again as the parties are fully advised by the briefing, these issues need not be discussed.

Finally, the defendant asserts that § 563.-230 RSMo is void for vagueness and violates the due process clauses of both the United States and Missouri Constitutions. If such a claim is again asserted, the parties may well consult Holdsworth v. Key, 520 S.W.2d 637, 640 (Mo.App.1975), which makes it clear that the duty of this court is to follow the last controlling decision of the Supreme Court which in this instance, as the parties agree, is State v. Crawford, 478 S.W.2d 314 (Mo.1972), appeal dismissed, 409 U.S. 811, 93 S.Ct. 176, 34 L.Ed.2d 66 (1972).

Reversed and remanded for new trial.

All concur.

      . As a general rule most jurisdictions designating the crime under the generic name “sodomy” or “the infamous crime against nature” apply the rule that when “a public offense has been declared by statute in the general terms of the common law, without more particular definition the courts will resort to the common law for the particular acts constituting the offense,” 70 Am.Jur.2d Sodomy § 3, p. 807 (1973), and limit the crime of sodomy to those acts proscribed at common law. This is apparently the reason that the St. Louis Court of Appeals in Frazier v. Grob, 194 Mo.App. 405, 183 S.W. 1083 (1916), resorts to the common law in outlining the development of the Missouri sodomy statute.

      . See State v. Oswald, 306 S.W.2d 559, 562 (Mo.1957) where the court in distinguishing § 563.230 from § 563.160 (the child molestation statute) indicated that “the term ‘sodomy’ is considered a sufficient general description of the offense; but § 563.230 seemingly embraces sodomy proper, bestiality, buggery, fellatio (oral genital contact), and cunnilingus (oral vaginal contact): that is, any unnatural corporeal copulation.” The court’s definitions of fellatio and cunnilingus are broader than the acts , proscribed by Missouri cases. No Missouri I case holds mere contact alone sufficient. In I passing it must be noted that the court in this ‘ case drew a clear distinction between sodomy and child molestation, holding that in the proper circumstances a defendant could be convicted of both simultaneously.

      . Penetration has been defined, in sodomy, as “the insertion of the glans or virile end of an organ into the mouth or rectum.” 70 Am. Jur.2d, Sodomy § 5, p. 809 (1973). While at common law, penetration by the male sex organ per anum was required to prove sodomy, the Am.Jur. definition can include penetrations made by both male and female sex organs. There appears to be some confusion, however, as to what is inserted where. See Wellman, supra, where the court held that a proper information for cunnilingus required the document to refer to how the defendant inserted his mouth into the victim’s “private parts.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Hubert HANSON, Defendant-Appellant.
    No. KCD28232.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

A jury found defendant guilty of robbery in the first degree and assessed his punishment at 18 years in the Department of Corrections. From the judgment of conviction and sentence entered upon that verdict, the defendant has filed an appeal by leave of court out of time.

Defendant raises two claims of error, first, that the trial court erred in overruling an objection to an argument of the prosecutor with respect to the inference to be drawn from the failure of a supposed witness to appear at the trial and, second, to the admission of a revolver on the ground that it was not properly identified and connected with the defendant’s activities.

The defendant has not raised the issue of submissibility, and the facts may be briefly stated. The robbery occurred at a grocery store in the early afternoon. Three black men entered the store. One of the men, a man later identified as Bergen, produced a revolver and announced that a holdup was in progress. The proprietor activated a silent alarm. An individual, subsequently identified as Hanson, took some money out of the office and some money from the proprietor’s pockets, along with a pocket knife and a set of keys. He also ransacked the cash register. The pocket knife was later identified as that of the proprietor as well as the set of keys. The money, pocket knife, and keys were recovered from defendant on his apprehension. In response to the silent alarm, police officers interrupted the holdup and two of the individuals involved in the holdup ran to the back of the store as the police entered, while the defendant, who was wearing distinctive clothing, left by the front door. Sometime during the course of the robbery, the proprietor’s gun had been taken but was left on a counter. The proprietor fired two shots, neither apparently striking the defendant. As the defendant ran out of the store, one of the officers who had gone to the back of the store saw him fleeing the scene and pursued him, firing two shots at him in the course of the pursuit, neither of which apparently struck the defendant. The defendant, however, fell to the ground, and another officer coming upon the scene shot the defendant in the hand after he failed to remain still at the officer’s command. According to the proprietor, there was a woman in the store at the time the robbery occurred. This customer, as well as the proprietor and his son, were made to lie upon the floor during the robbery. On the apprehension of the defendant, the sum of approximately $360 in cash, as well as the keys and pocket knife, was found in his possession. The police officers found a weapon in the store which was not the property of either the proprietor or his son. The other two men involved in the robbery were apprehended within the store itself.

The controversy with respect to the argument of the prosecutor is posed against the following factual background. The defendant had complete access to the prosecutor’s file, and it is a fair inference from the record that the prosecutor’s file and the police report did not contain the names of any other witnesses to the event, other than the proprietor and his son. The only way in which the presence of other witnesses is known is from the testimony of the proprietor who testified as to the woman customer in the store at the time of the robbery. The proprietor was asked on cross examination if he knew the woman’s name, and he said that he did not, but that he knew her. He then said, “I believe the officer took her name.” No other evidence appears in the record with respect to the identity of this person. To place the defendant’s argument in. focus, it is necessary to mention one other trial incident. The defendant testified and explained the possession of the $360 by asserting that it was the joint property of himself and a woman with whom he was living. She was apparently present in the courtroom throughout the trial. In his opening argument, the prosecutor argued the issue of the possession by the defendant of the $360 by asserting that the only person who stated it was his money and that of the woman who was living with him was the defendant. Further, the State argued the defendant’s failure to call this woman as a witness to corroborate his testimony entitled the jury to believe that her testimony would be contradictory to that of the defendant. No objection was made to that argument. In the defense portion of the argument following the opening argument of the prosecution, the defendant, through his counsel, referred to the prosecutor’s argument concerning the inference arising from the failure of the defendant to call the woman who was living with him accepting, in effect, the challenge of the State. Defendant’s counsel then asked the jury to draw a similar inference from the failure of the State to call the customer as a witness in the case. The State, in summation, responded by saying the prosecution was without knowledge as to the identity of the customer. The defendant objected on the grounds that the police department had knowledge of the woman customer and that she was, therefore, more available to the State than to the defendant, and no such inference as the prosecution suggested could be drawn.

The defendant’s argument is bottomed upon the assertion by the proprietor that he “believed” the police officers obtained the name of the woman customer. In the colloquy between court and counsel when the objection was raised, the prosecutor asserted without contradiction that the police did not have the name of the woman customer, nor did it appear in the State’s file. One of the police officers who was in the store was specifically asked if he had contacted anyone else at the time of the event to which he unequivocally answered, “No.” None of the other police officers were asked if they had obtained the names of any witnesses.

In this case, there is no evidence that the prosecution knew the identity of the woman customer. The element of retaliation is also present in this case. Defense counsel was the first to assert that such a witness existed and attempted to obtain the advantage of claiming that her testimony would have been unfavorable to the State based upon the nebulous inference arising from the proprietor’s statement that he “believed” that the police obtained her name. In this state of the record, the determination of this issue is clearly controlled by State v. Houston, 451 S.W.2d 37 (Mo.1970), where the appellant argued the whereabouts of a' witness and the State retaliated by referring to the fact that the witness had not been called to testify, the court there concluding that because of the retaliatory nature of the argument it was not improper, relying upon State v. Lorts, 269 S.W.2d 88, 92 (Mo.1954), which states the general rule that a defendant may not by improper argument provoke a reply and then complain of error upon the basis of the reply.

On the second assignment of error, the defendant asserts that the State failed to connect the revolver offered in evidence with either the defendant or those associated with him in the robbery. The difficulty with the argument is that it has no factual basis. At the trial, the son of the proprietor testified that the revolver offered was according to his belief recovered from one of the defendants. The defendant argues that this testimony is insufficient to identify it. The proprietor, however, directly testified that the revolver offered in evidence was the gun which was held upon him during the course of the robbery by one of the robbers and that it was the gun retrieved by the officer at the store. This is clearly sufficient to identify the gun as one used in the commission of the offense and whether it was used by the defendant or by one of his accomplices in the perpetration of the robbery is immaterial. The identification was clearly sufficient, and no error arose by reason of the introduction of the revolver in the evidence. State v. McAllister, 534 S.W.2d 611 (Mo.App.1976).

Judgment and conviction affirmed.

All concur.


author: TITUS, Judge.

text:
    Hugh WALLACE and Amojean Wallace, his wife, Plaintiffs-Respondents, v. D. L. HANKINS and Viola Hankins, his wife, Defendants-Appellants.
    No. 9977.
    Missouri Court of Appeals, Springfield District.
    Aug. 31, 1976.

      James K. Prewitt, Prewitt, Jones & Kar-chmer, Springfield, for plaintiffs-respondents.
    Joe R. Ellis, Cassville, for defendants-appellants.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Plaintiffs’ petition (Count I) sought specific performance of a 1954 contract to convey real estate and (Counts II and III) actual and punitive damages because defendants’ averred breach of contract allegedly served to cloud plaintiffs’ title and subjected them to certain enumerated damages. Defendants answered and counterclaimed in ejectment.

After a bench trial, the court nisi in February 1974 entered a purported judgment that if on or before 1 May 1974 plaintiffs would pay defendants $634.07, together with 7% interest “from November 26,1964,” and an unspecified amount of money defendants had expended from 1954 for real estate taxes and insurance premiums on the property, then defendants “are hereby ordered to execute and deliver a Warranty Deed to [plaintiffs], and if [plaintiffs] comply with the aforementioned conditions then [defendants’] suit in ejectment shall be dismissed . . . . However, if [plaintiffs] fail to comply with the aforementioned conditions on or before May 1, 1974, then [defendants] shall be entitled to possession of the premises . . . and they shall be sustained in their ejectment action against [plaintiffs] . . . .”

The parties could not agree upon the amount of taxes and premiums defendants had paid. A year later the court conducted a hearing on the subject. In February 1975 a “Record Entry” was made finding that defendants had paid $249.50 in premiums and taxes. Continuing, the “Record Entry” recited that “if the plaintiffs shall pay the defendants this sum together with interest per annum from 1954 through 1974 within 30 days hereof and shall comply with the conditions heretofore set out in the Court’s order of February 27, 1974, within 30 days hereof, then the defendants shall convey the property in question to plaintiffs as set out in the Court’s order of February 24 [sic], 1974.”

Defendants’ after-trial motions were overruled 27 February 1975 and they filed notice of appeal “from the judgment of the court entered in this action on the 27th day of February, 1975.” There was no judgment entered on 27 February 1975 — only the order overruling defendants’ motions which was a nonappealable order. Cox v. Lee, 530 S.W.2d 273, 274 (Mo.App.1975). Nevertheless, we will consider the notice as a good faith effort to appeal from a final, appealable judgment if there be one in this case. World Franchisers, Inc. v. Birk, 456 S.W.2d 606, 607[2] (Mo.App.1970).

“The right of appeal shall be as provided by law” (Rule 81.01, V.A.M.R.) and in civil actions the right is governed by § 512.020, V.A.M.S. To be ripe for appeal, a judgment or decree must finally dispose of all issues raised by the pleadings [ Wile v. Donovan, 514 S.W.2d 177, 178[2] (Mo.App.1974)], and must constitute a final disposition of the cause. Johnson v. Great Heritage Life Insurance Co., 490 S.W.2d 686, 689[2] (Mo.App.1973). If an intended judgment does not dispose of all issues and all parties in tlfe case or does not form a final disposition of the matter, it is not a final, appealable judgment and we have bo jurisdiction to entertain an attempted appeal therefrom. Even though none of the parties has objected to this court’s jurisdiction, it is our duty to notice any such objection ex mero motu. Altman v. Werling, 509 S.W.2d 787 (Mo.App.1974); Starnes v. Aetna Casualty and Surety Company, 503 S.W.2d 129, 130-131[1] (Mo.App.1973).

The purported judgments and decrees entered in February 1974 and February 1975, supra, are anomalous because, taken separately or collectively, they constitute conditional and alternative judgments. Under the first purported judgment, plaintiffs were to have specific performance under Count I of the petition conditioned upon their performance of certain acts to be done in the future, id est, if plaintiffs, by a given future date, paid defendants certain sums of moneys, some known and some unknown. In the alternative, the decree provided if plaintiffs did not perform these future acts within the time specified, then and in such event plaintiffs would not be given the relief asked and defendants’ suit in ejectment would be sustained. The second purported judgment only succeeded in making determination of the moneys due defendants for taxes and insurance and in extending the time the future acts expected of plaintiffs were to be performed or the alternative decree was to become effective in the event plaintiffs defaulted. Neither of the so-called judgments or decrees undertook any disposition of the issues raised by Counts II and III of plaintiffs’ petition. Of course, if the February 1974 decree was, in fact, a final, appealable judgment, it would appear that the trial court lost control of the matter long before the February 1975 hearing, that the court nisi then had no jurisdiction of the litigation, and that defendants’ notice of appeal (not filed until March 1975) was extremely tardy and out of time.

A conditional judgment or decree is one whose enforcement is dependent on the performance of future acts by a litigant and is to be annulled if default occurs. An alternative judgment or decree is for one thing or another but does not declare in a definitive matter which alternative will ultimately prevail. Conditional and alternative judgments and decrees are wholly void as they do not perform in praesenti and leave to speculation and conjecture what their final effect may be. In other words, under conditional or alternative judgments and decrees, the final resolution of the cause is consigned to the accomplishment vel non of future acts whose actual performance or nonperformance are matters dehors the record. Burger v. Burger, 481 S.W.2d 682, 634[2] (Mo.App.1972); Stone v. Boston, 218 S.W.2d 783, 787[6] (Mo.App.1949); 30A C.J.S. Equity § 584, p. 651; 49 C.J.S. Judgments §§ 73 and 74, pp. 192-194. The same applies to conditional judgments entered on conditional verdicts. MFA Cooperative Ass’n of Ash Grove v. Elliott, 479 S.W.2d 129, 134[10] (Mo.App.1972). In situations such as we have here, the proper procedure is for the trial court to require plaintiffs to bring into court “the price of its decree,” that is, to bring into court for the use of the defendants the money due them under the contract as a condition precedent to the granting of the relief. J. E. Blank v. Lennox Land Co., 351 Mo. 932, 959, 174 S.W.2d 862, 869-870[17] (banc 1943); Priest v. Oehler, 328 Mo. 590, 604, 41 S.W.2d 783, 789[14] (1931). Since there has been no judgment or decree in praesenti rendered, there is no final, appealable judgment or decree in the case. Thompson v. Hodge, 348 S.W.2d 11, 14[8] (Mo.App.1961). Until such time as the trial court renders a final, appealable judgment and decree, any appeal is premature and must be dismissed. Rakestraw v. Norris, 469 S.W.2d 759, 761[3] (Mo.App.1971). The appeal herein is ordered dismissed.

Addendum

By letter we are advised that D. L. Han-kins, an appellant in this case, has expired. The capacity to be a party appellant or a party litigant reposes only in parties in being [First Community State Bank v. Newhart, 507 S.W.2d 958, 959 (Mo.App.1974)] and the chancellor, in preparing any final, appealable judgment in this cause should take cognizance of that fact.

All concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    Thomas McCREARY, Appellant, v. STATE of Missouri, Respondent.
    No. 36999.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 31, 1976.

      J. Martin Hadican, Clayton, for appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Thomas McCreary has appealed from the order of Circuit Court of the City of St. Louis dismissing with prejudice his motion filed pursuant to Rule 27.26. We reverse and remand with directions.

Appellant was convicted on June 8, 1972, on three counts of assault with intent to kill with malice, and was sentenced to imprisonment for a term of twenty years for each offense, the sentences to be served concurrently. The judgment was affirmed by this Court in State v. McCreary, 504 S.W.2d 132 (Mo.App.1973).

In his motion pursuant to Rule 27.26 appellant alleged as his sole ground for post-conviction relief that he “was not adequately and effectively represented in that his trial attorneys:

(1) Failed to properly investigate the case;
(2) Failed to properly file [a] Motion for Change of Venue and/or Disqualification of Judge;
(3) Failed to file and perfect [a] Writ of Prohibition;
(4) Failed to subpoena material witnesses for defense.”

A hearing was held on the above motion, and at the conclusion thereof the trial court sustained a motion filed on behalf of the State to dismiss appellant’s 27.26 motion on the basis that “the points properly raised by Movant’s motion were also raised by Mov-ant in his appeal * * * and the Missouri Court of Appeals, St. Louis District, Division One, * * * considered the issue of denial of effective assistance of counsel and decided the issue adversely to the Movant.” Findings of fact and conclusions of law in the form contemplated by Rule 27.26(i) were not made, but the trial court filed an “opinion” in which it concluded that the only issues presented in the 27.26 motion were ruled adversely to appellant on the direct appeal.

On the direct appeal counsel for appellant assigned as error that the court erred in denying his motion for a continuance, and he asserted that this denial deprived him of his constitutional right to adequate and effective counsel. In commenting on that contention this court said: “The trial court, in reply to defendant’s questions concerning the adequacy of his counsel, stated that it felt that defendant was being adequately represented as evidenced by the twelve pretrial motions filed by said counsel and their diligent work. We believe that defendant’s two attorneys demonstrated throughout the trial an acute awareness of the facts and circumstances surrounding this case and the ability to try criminal cases. The denial of the continuance did not, therefore, result in defendant receiving ineffective representation. On the contrary, an examination of the record of the trial demonstrates that the defendant was effectively represented.” 504 S.W.2d at p. 135.

In the direct appeal appellant filed a pro se brief in which he assigned an error that he “was denied effective assistance of counsel.” In disposing of that point, this court reaffirmed its previous observation “that counsel for defendant was both adequate and effective as evidenced by the pre-trial motions, the handling of the trial, and the perfecting and arguing of this appeal.”

The narrow issue decided by this court on the direct appeal presented by the point in appellant’s brief prepared by counsel was only whether the refusal to grant a continuance was an abuse of discretion in that it resulted in ineffective representation by counsel. The alleged erroneous action was that of the trial judge. That is not the issue pleaded in appellant’s 27.26 motion. He there asserts that his representation by counsel was constitutionally ineffective because of the four reasons previously set forth. The alleged inadequate action was that of his counsel.

In reference to the point in appellant’s pro se brief, we note that in State v. Cluck, 451 S.W.2d 103 (Mo.1970), it was held that while it was proper to raise on direct appeal the issue of ineffective assistance of counsel, the court declined to review the contention because the record did not sufficiently develop the facts essential to a meaningful review. Appellant’s trial counsel was the same as his counsel on his direct appeal. Quite understandably, there was no attempt by counsel to develop the facts in support of the point presented by appellant pro se, and the observations in the opinion ruling the direct appeal did not go to merits of facts developed at the hearing held on the 27.26 motion. The basis for “dismissing” the 27.26 motion was that “the complaints [appellant] makes now were fully presented to the Court [of Appeals] and * * * duly considered and ruled upon.” In so holding the trial court was in error.

The judgment is reversed and the cause remanded with directions that the trial court enter its findings of fact and conclusions of law based on the record and the evidence pertaining to the specific issues presented by the motion, and judgment be entered accordingly.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: CLEMENS, Presiding Judge.

text:
    Robert L. VOGEL, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37715.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 31, 1976.
    Huck, Kasten & LaBeaume, Herbert A. Kasten, Jr., St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chandler, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant appeals from the trial court’s denial, without a hearing, of his pro se motion to vacate or set aside his conviction and sentence under Rule 27.26. . His sole point on appeal is that the trial court erred in denying his motion to vacate or set aside his conviction and sentence without having appointed counsel to assist him in the preparation or amendment of his motion.

A motion to vacate and set aside a criminal conviction is a civil procedure, not a criminal prosecution, and a movant is not entitled to counsel as a matter of right solely by reason of his indigency. Paragraph (h) of Rule 27.26 does provide, however, that “if a motion presents questions of law or issues of fact, the court shall appoint counsel immediately to assist the prisoner if he is an indigent person. Counsel shall be given a reasonable time to confer with the prisoner and to amend the motion filed hereunder if desired. . . .”

The motion set forth two grounds for relief. Initially, movant alleged he had a prior invalid felony conviction since no attorney was present at the sentencing on that conviction “about 15 years ago.” He contended this “invalid” prior conviction enhanced the sentence in this case. Secondly, movant alleged he suffered from ineffective assistance of counsel during the course of the underlying conviction proceedings since his appointed counsel talked to him less than an hour prior to sentencing, did not ask about defense witnesses, refused to investigate the defense, and pressured him into pleading guilty against his will “because she [appointed counsel] refused to act effectively.” Movant alleged that he asked the court to replace her but the court refused to do so. He also complained that different appointed counsel represented him at the sentencing, but did not meet with him before sentencing, “so he was not effective.” The motion requested the trial court to appoint counsel for him and to hold an evidentiary hearing on the motion.

The trial court filed a memorandum opinion, containing its findings of fact and conclusions of law, and denied the motion without an evidentiary hearing. The court reviewed its own records of the guilty-plea proceedings, and held: “Movant not only comprehended the nature and the charge against him but also freely and voluntarily pleaded guilty to the charge with full understanding and appreciation of his constitutional rights. The Court specifically finds, and does so beyond a reasonable doubt, that Movant was capably and ably represented by an attorney conversant with and experienced in criminal law matters.” The trial court deemed movant’s allegations to be “vague, indefinite, conclusionary [sic] and unmeritorious,” thereby rendering the motion susceptible to summary determination.

In Smith v. State, 513 S.W.2d 407, 1. c. 411, (Mo.1974) the court affirmed the trial court’s dismissal of a Rule 27.26 motion which pleaded grounds much like those now before us. In affirming the dismissal the court held: “A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by the facts elicited at the guilty plea hearing.”

And, the movant’s allegations here parallel those in State v. Washington, 399 S.W.2d 109[5-8] (Mo.1966), affirming the denial of a Rule 27.26 motion without appointing counsel and without an evidentiary hearing on the ground of conclusory allegations. The court held, as the court ruled here, that the allegations in the motion were conclusions. We note also from the trial court’s findings, quoted above, that the record of the guilty-plea proceedings showed movant, then defendant, was adequately represented by counsel and voluntarily pleaded guilty to a charge he fully comprehended.

The trial court properly found that the Rule 27.26 motion presented no questions of law or issues of fact entitling mov-ant to an evidentiary hearing or the appointment of counsel.

Judgment affirmed.

STEWART and RENDLEN, JJ., concur.

      . On the requirement that a Rule 27.26 motion state facts, as distinguished from conclusions, see also State v. Warren, 321 S.W.2d 705[5] (Mo.1959), and State v. Wagoner, 403 S.W.2d 592[3] (Mo.1966).


text:
    STATE of Missouri, Respondent, v. Jenoa WILLIAMS, Appellant.
    No. 37359.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 31, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
    Robert C. Babione, Public Defender, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

A jury found defendant guilty of feloni-ously tampering with a motor vehicle (Section 560.175(1), RSMo.1969) and the court sentenced him to five years’ imprisonment.

March 5, 1975 the owner of the automobile apprehended defendant as he drove the car from where it had been parked. Defendant was holding a slam-hammer he had used to remove the car’s lock and ignition. Questioned by the owner, defendant told him “the insurance company had sent him to pick the car up.” The owner testified his car was uninsured. Defendant offered no evidence.

Defendant contends on appeal that the trial court erred in giving verdict-directing Instruction No. 5 (MAI-CR 7.08) because it fails “to require a finding of intent.” Defendant’s motion for a new trial did not complain of this, so the point has not been preserved for appellate review. State v. Stacker, 518 S.W.2d 219[1] (Mo.App.1976). Defendant also contends the trial court erred in failing to give paragraph Third of MAI-CR 7.80 which exonerates a defendant when the defendant had an honest belief he had the owner’s permission to drive the car. Defendant failed to mention this point in his motion for a new trial so it is not preserved for review. Stucker, supra.

Defendant now urges us to review these two points as plain error under Rule 27.20(c). That rule “is to be applied on a case-by-case basis where substantial rights are affected and there is a strong, clear showing that injustice will result if the rule is not invoked.” State v. Embry, 530 S.W.2d 401[2] (Mo.App.1975). We have examined the record and find no clear showing defendant lacked criminal intent or honestly believed he was entitled to tamper with the victim’s car. We do not find injustice warranting resort to the plain error rule.

Defendant further contends the court erred in adjudging him guilty of a felony because “the jury verdict authorized only a conviction for a misdemeanor.” Responsive to both the information and the verdict-directing instruction, the jury found defendant “guilty of tampering with a motor vehicle.” By §§ 560.175(1) and 560.-180(1) that is a graded felony, not a misdemeanor.

Judgment affirmed.

STEWART and RENDLEN, JJ., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jeannette BOYKINS, Defendant-Appellant.
    No. 37136.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 31, 1976.

      Marilyn Wallach, Asst. Public Defender, Robert C. Babione, Public Defender, James C. Jones, III, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas H. Rost, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

Defendant-appellant, Jeannette Boykins, was convicted of Illegal Possession of Schedule I Controlled Substance, Heroin. § 195.020, V.A.M.S. She appeals. We affirm. Defendant does not challenge the sufficiency of the evidence to support the conviction and it would serve no useful purpose to belabor this opinion with a recitation of the state’s evidence, which if believed, as it obviously was, established the offense charged.

Defendant’s sole point on appeal is that the trial court erred by not declaring a mistrial when one of the arresting police officers made an alleged prejudicial statement on cross-examination. The following cross-examination of Officer Leman Dobbins forms the basis of defendant’s contention that the jury panel should have been dismissed.

“Q Okay, fine, Officer. But you see her drop something to the ground. A That’s correct.
“Q You go over; you examine it.
“A Correct.
“Q Then you tell her to walk over to the police car.
“A That’s correct. She knows me; I know her.” (Emphasis added.)

Defendant contends that the logical inference is that the appellant is known to the officer and other persons in law enforcement as an individual of bad character, and that the emphasized testimony puts the defendant’s character and reputation m issue in such a manner that the jurors would be unable to disregard it in the consideration of the case. There is no merit in this contention. Prior to the testimony in question, Officer Dobbins stated that he was familiar with this particular neighborhood. On direct examination he testified that he called defendant by her first name when he ordered her to step over to the squad car. The mere fact that a person is known to a police officer does not necessarily indicate that he is of a bad character. State v. Miller, 499 S.W.2d 496, 499[3] (Mo.1973); State v. Knicker, 424 S.W.2d 605, 608[6] (Mo.1968).

Although we are of the opinion that the officer’s testimony did not put defendant’s character in issue, the officer’s statement was stricken and the jury was instructed to disregard the testimony at the request of the appellant. The only relief denied défendant was her motion for mistrial. The declaration of a mistrial is a drastic remedy and necessarily and properly rests largely in the discretion of the trial court who observed the incident giving rise to the request for a mistrial. State v. Cuckovich, 485 S.W.2d 16, 24[13] (Mo.banc 1972). The prejudicial effect upon a jury of a witness making an unresponsive and voluntary answer to a question is for the trial court to determine. State v. Cage, 452 S.W.2d 125, 129[4] (Mo.1970). When an improper incident occurs, the reviewing court, in order to hold that the failure to grant a mistrial was reversible error, must determine and conclude as a matter of law from the entire record that the error was so impressive that its effect was not removed by the action of the trial court. State v. Dennison, 428 S.W.2d 573, 577[3] (Mo.1968). The trial court did not consider the matter sufficiently serious to take the drastic step of granting a mistrial, and we find no abuse of discretion.

We have reviewed the entire transcript, the briefs of the parties, the authorities relied upon by the appellant which we find to be distinguishable, and the matters required by Rule 28.02, and find no prejudicial error.

The judgment is affirmed.

All the Judges concur.


text:
    David R. PAGLIARA, Plaintiff-Appellant, v. GIDEON-ANDERSON LUMBER CO., a Missouri Corporation, Defendant-Respondent.
    No. 37694.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 31, 1976.
    Whalen, O’Connor, & Danis, David O. Danis, St. Louis, for plaintiff-appellant.
    Finch, Bradshaw, Strom & Steele, Cape Girardeau, for defendant-respondent.
   PER CURIAM.

Plaintiff-appellant, David R. Pagliara, appeals from an order of the Circuit Court of St. Louis County entered December 2, 1975, which sustained “Defendant’s Motion to Quash Service of Process for Lack of Venue.” Plaintiff had, on October 7,1975, filed a two-count petition against defendant Lumber Company in St. Louis County seeking damages for breach of an oral contract of employment and for violation of the service letter statute, § 290.140, RSMo 1969. Thereafter, defendant moved to dismiss for improper venue on the ground that the defendant “does not keep an office or agent for the transaction of its usual and customary business in this county, and . the cause of action . ' . . did not accrue in this county . . . .” Affidavits and counter-affidavits were filed. Mr. Pa-gliara swore that the'defendant employs a sales agent in the County and “holds said agent out to the public as their representative . . . and conducts company business on a regular basis” in the County. A hearing was held on the “motion to dismiss,” which delved into the question whether the defendant had an office or agent for the “transaction of their usual and customary business.” § 508.040, RSMo 1969. In due time, the court entered its order: “Defendant’s Motion to Quash Service of Process for Lack of Venue, heretofore heard and submitted, is sustained.” In proper time, plaintiff “appealed” this order.

Defendant filed in this court its “Motion to Dismiss Appeal,” and the plaintiff-appellant filed his suggestions in opposition.

Plaintiff contends that venue is proper in St. Louis County pursuant to §§ 508.010 and 508.040, because the defendant has an agent in St. Louis County for the transaction of its usual and customary business and because the alleged tortious cause of action (improper service letter) accrued in St. Louis County.

After examining the motion to dismiss the appeal and the suggestions in opposition thereto, we are compelled to conclude that the order of the trial court is not an appeal-able order under § 512.020 and hence dismiss the “appeal.”

It is clear that the trial court did not dismiss the cause of action. The court sustained the defendant’s “Motion to Dismiss for Improper Venue,” although it worded the order in terms of “Motion to Quash Service of Process for Lack of Venue.” The court, in sustaining the motion, did no more than quash the summons. The sustaining of a motion to dismiss for improper venue or a motion to quash for improper venue is not a dismissal on the merits of the claim and does not preclude a party from maintaining an action on the merits where venue is proper. Rule 67.03; Color Process Co. v. Northwest Screenprint Co., 417 S.W.2d 934, 936 (Mo.1967); Continent Foods Corp. v. National-Northwood, Inc., 470 S.W.2d 315, 318 (Mo.App.1971); E. H. Fischer, Inc. v. Nat. Ind. Chemical Co., 526 S.W.2d 403 (Mo.App.1975).

The proper procedure for challenging such an order sustaining a motion to dismiss for improper venue or a motion to quash for improper venue is an extraordinary writ. State ex rel. Amer. Inst. of Marketing Systems v. Cloyd, 433 S.W.2d 559, 560 (Mo.banc 1968).

In his suggestions in opposition to dismiss the appellant relies upon Skatoff v. Alfend, 411 S.W.2d 169 (Mo.1966), Litzinger v. Pulitzer Publishing Company, 356 S.W.2d 81 (Mo.1962), and Henderson v. Henderson, 373 S.W.2d 482 (Mo.App.1963), as authority for the proposition that the trial court’s order is an appealable one. Henderson v. Henderson and Skatoff v. Alfend, supra, are clearly inapposite and do not control, as they involve different factual and legal issues.

In Litzinger, supra, the trial court granted defendant’s motion to quash summons and dismiss a libel action. The Supreme Court, without discussing whether the order was appealable, held that the statutory venue of an alleged cause of action for libel by a resident of St. Louis County against a newspaper publisher in the City of St. Louis by a corporation domiciled therein was only in that City and that service of process upon a reporter in St. Louis County did not satisfy § 508.010 that the defendant was “found” in the County. While it may be logically difficult to distinguish, the issue of appealability was not specifically raised or discussed. In any event, under those decisions wherein the specific issue was raised or discussed, it is clear that the order of the trial court herein is not appealable.

The appeal is dismissed.

ALL THE JUDGES CONCUR.

      . Actually, the defendant, Gideon-Anderson Lumber Company, on October 21, 1975 filed a “Motion to Dismiss for Improper Venue and Insufficiency of Process.”


text:
    STATE of Missouri, Plaintiff-Respondent, v. Hughie GREEN, Jr., Defendant-Appellant.
    No. 37432.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 31, 1976.

      Robert C. Babione, Public Defender, Kent W. Fanning, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Nanette Laughrey, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

Defendant-appellant, Hughie Green, Jr., was charged, tried and found guilty by a jury of burglary, second degree, and sentenced by the court as a second offender to nine years in the department of corrections. §§ 560.070, 556.280, RSMo 1969, V.A.M.S. He appeals. On this appeal he contends as his sole claim of error that he was precluded from effectively presenting his defense and was thereby denied a fair trial because the trial court erroneously excluded evidence of his exculpatory declarations which were “part of the res gestae.” For reasons hereinafter stated, we affirm the judgment of conviction.

Since appellant does not question the sufficiency of the evidence, only those facts necessary for the disposition of the point raised on appeal need be stated. A jury could reasonably find the following.

On March 4, 1975, at approximately 12:30 p. m. Mr. Euin Hancock secured his home at 1430 East Gano Avenue in the City of St. Louis and left to vote in the primary elections. He was met at the polling place by a police officer who informed him that his home had been broken into. Upon returning home, Mr. Hancock found that the glass on the doors of the side entrance had been broken and his house had been “ransacked.” A subsequent check revealed that about twenty-nine dollars was missing.

Police Officers George Overby and Kurt Shrum responded to a radio dispatch and arrived at the Hancock residence at approximately 1:08 p. m. Only about one minute had elapsed between the radio call and the officers’ arrival at the home. The officers first talked with a woman standing outside at the residence next door and then proceeded to the side entrance of the Hancock home. They found the inside door partially open, broken glass and a medium-sized rock inside the door. As the officers entered they observed a man, later identified as the defendant, “walking — running towards us from the interior of the building.” Officer Shrum stopped him, placed him under arrest, handcuffed him and advised him of his rights. The defendant was taken to the living room area of the house and made to lie face down on the floor while the officers searched the rest of the house for another person. While the officers searched, the defendant “jumped up and ran out the kitchen door and down the street.” He was chased and apprehended once again by the officers.

Trial began on June 24, 1975. Officers Overby, Shrum and Edward Meyer, a member of the canine unit who assisted in the search of the Hancock home and also in the subsequent chase of the subject, positively identified the defendant, Hughie Green, Jr., as the man that had been apprehended in the Hancock home. Officer Overby testified that, after being arrested, the defendant gave his name as Derrick Johnson. The defendant originally stated he was 16 years old and a resident of Decatur, Illinois, but later indicated that he was actually 18 years old and lived in the City of St. Louis. A subsequent identification check at the police station revealed that Derrick Johnson was actually the defendant, Hughie Green, Jr. On cross-examination, Officer Overby acknowledged that after being arrested the defendant made an additional “statement,” other than the ones elicited by the prosecutor. Defense counsel attempted to elicit from Officer Overby the content of the statement. Upon objection, the court sustained the prosecutor’s objection on the basis that the statement would be hearsay and self-serving. The court rejected defense counsel’s contention that the statement was an admission and therefore admissible under an exception to the hearsay rule.

The defendant was the only witness for the defense. He admitted being present in the Hancock home but explained that he went to the Hancock home believing it was the home of a friend. He testified that he heard a noise and observed several youths jumping over a fence at the back of the house. Defendant further testified that he noticed the side door had been broken and was partially open, that he heard noise coming from inside the home, called inside and entered the home only after receiving no response to his calls. He indicated that the police arrived only 10 to 20 seconds after he entered the kitchen. Defendant testified that he immediately tried to explain his presence in the home to the officers but that they refused to listen and struck him, rendering him dizzy. Defendant admitted giving the officers a false name and trying to escape but explained that he did these things because he had previously been convicted of several felonies and was afraid that the officers would not listen to him or believe his story.

The jury returned a verdict of guilty of second degree burglary as submitted in the instructions. On September 18, 1975, the court overruled defendant’s motion for new trial and, allocution having been granted, rendered judgment in accordance with the jury verdict and pronounced his sentence at nine years in the department of corrections.

On this appeal appellant contends that he was “precluded . . from fully and effectively presenting his defense,” and was thereby denied a fair trial. In particular, he contends that the trial court erroneously precluded defense counsel from eliciting testimony from Officer Overby regarding certain exculpatory statements made by defendant to the arresting officers at the scene, thus preventing defendant from corroborating his own testimony with regard to the statements.

At the time that defense counsel sought to cross-examine Officer Overby concerning the content of the “statements” made by the defendant upon his arrest, the prosecutor objected that evidence of what defendant said was hearsay and self-serving. A colloquy at the bench followed at which defense counsel argued vigorously for the admission of the “statements” on the ground that they were admissions and therefore admissible under an exception to the hearsay rule. The trial court sustained the objection, ruling that such an exculpatory statement was not an admission but a self-serving statement. On appeal, appellant contends that these exculpatory statements were admissible because they “were part of the res gestae.”

We find no merit in the substance of appéllant’s claim of error on the basis of the record.

“The law is well settled that a defendant in a criminal case will not be permitted to make evidence for himself by adducing his self-serving declarations (when not a part of the res gestae) explaining his motives, designs, etc. . . . ” State v. Perkins, 92 S.W.2d 634, 638 (Mo.1936).

The “res gestae” exception permits the introduction of extrajudicial statements otherwise inadmissible as hearsay where the statements are demonstrated to have been spontaneously uttered, occasioned by the excitement surrounding the commission of the offense. Appellant asserts that by reason of the res gestae exception to the hearsay rule he was entitled to have Officer Overby testify as to exculpatory statements made by him when the officers first arrived. The key to the admission of such hearsay is spontaneity. State v. Lewis, 526 S.W.2d 49, 54 (Mo.App.1975). The burden was on the defendant to establish facts giving rise to the admission of the statements as part of the res gestae. State v. Hemphill, 504 S.W.2d 62, 63 (Mo.1974); State v. O’Neal, 436 S.W.2d 241, 244 (Mo.1968). At trial the defendant made no offer of proof to show the content of the statement or that these statements were made under circumstances that would assure their truthfulness and warrant their admission as part of the “res gestae.” In addition, the record does not indicate that the trial court was otherwise apprised that these statements were of a spontaneous nature, occasioned by the excitement of the moment, rather than of the nature of a considered self-serving, statement. See State v. Crouch, 339 Mo. 847, 98 S.W.2d 550, 554-555 (1936).

We have read the entire transcript and reviewed the briefs of the parties and all of the authorities relied upon. We find no prejudicial error.

The judgment of conviction is affirmed.

ALL THE JUDGES CONCUR.

      . The storm door glass was broken, as was a small glass section near the lock on the inside wooden door.

      . The amended information charged defendant with only one prior felony for purposes of the second offender act application. At trial the parties stipulated to that one felony. However, the defendant testified that he had previously pled guilty to three felonies.

      .It is not evident from the record what the statements were that were made to the arresting officers. At trial appellant testified that he began to explain his presence in the house to Officer Shrum as soon as the latter entered the house but that “[h]e wasn’t listening what I was saying and he hit me . . ■. .” There is no other indication from appellant’s testimony as to whether appellant ever made any other attempt to explain his presence to the arresting officers. Under cross-examination from defense counsel, Officer Overby acknowledged that after appellant had been arrested and advised of his rights while still in the house he made a statement.

      . See State v. Hook, 432 S.W.2d 349, 352 (Mo.1968), for a discussion of the theory behind the res gestae exception to the hearsay rule.

      . The exculpatory nature of the offered statements “tends to the inference that excitation and spontaneity had given way to calculated considerations of self-interest.” State v. Pflugradt, 463 S.W.2d 566, 573 (Mo.App.1971), citing Riley v. State, 50 Ariz. 442, 73 P.2d 96, 101 (1937).


author: FONES, Chief Justice. FONES, Justice.

text:
    HICKORY SPRINGS MANUFACTURING COMPANY, INC., Petitioner, v. Glenn EVANS and Howard Gose, Respondents. v. Michael MEHLMAN et al., Third-Party Defendants.
    Supreme Court of Tennessee.
    April 26, 1976.
    Rehearing Denied Sept. 27, 1976.

      Clinton R. Anderson, Anderson & Anderson, Morristown, for petitioner.
    James M. Davis, James K. Miller, Morris-town, for respondents.
    Dennis H. Inman, Taylor, Inman & Til-son, Morristown, for third party defendants.
   OPINION

FONES, Chief Justice.

This suit against two guarantors was decided adversely to the creditor ⅛ both of the courts below. ”

Evans and Gose owned all of the stock of Star-Line Manufacturing Company, a Tennessee corporation, in February, 1970, when the guaranty was executed. Star-Line, a furniture manufacturer, was purchasing materials from petitioner on a C.O.D. basis. For the purpose of establishing a line of credit, respondents Evans and Gose agreed to individually guarantee the indebtedness of Star-Line to the extent of ten thousand ($10,000) dollars.

In February, 1972, Evans purchased the stock of Gose.

In November, 1973, Evans began negotiating with Jarnagin for the sale of Evans’ stock in Star-Line. At that time, $34,866.90 was owed to petitioner. In addition, Star-Line had a bank overdraft of $45,000, and all of its assets were encumbered to secure other indebtedness.

Jarnagin contacted representatives of petitioner, disclosed this information, and suggested that he, along with others, would be willing to acquire Star-Line and attempt to salvage the company if petitioner would accept payment of fifty (50%) percent of the debt. Petitioner initially refused this offer; but when it was pointed out that if the settlement were not effected, Star-Line would go into bankruptcy and it would only receive five (5%) percent of the debt, petitioner accepted.

Star-Line and petitioner did not execute a written instrument of compromise and settlement of the $34,866 debt. However, documentary evidence and the testimony of petitioner’s secretary-treasurer provide material evidence in support of the factual finding of the Chancellor and the Court of Appeals that petitioner agreed to accept $17,433.45 from Star-Line in full and final settlement of the debt. That concurrent finding supported by material evidence is conclusive in this Court. T.C.A. § 27 — 113.

Subsequent to the settlement, petitioner demanded that respondents Evans and Gose honor their guaranty and pay ten thousand ($10,000) dollars. Respondents refused and this lawsuit was brought to compel payment.

The Chancellor held that the release of the principal, Star-Line, discharged the surety, and the case was dismissed.

The Court of Appeals affirmed, holding that the paragraph in the guaranty in which respondents “consented” to be held liable for the full amount of the debt, notwithstanding any settlement or compromise between petitioner and Star-Line, was applicable only to involuntary situations such as bankruptcy, receivership and reorganization, and not applicable to a voluntary settlement. We disagree.

The applicable provisions of the guaranty agreement are as follows:

“The liability of the undersigned shall not exceed the sum of Ten Thousand Dollars ($10,000.00) but such liability shall extend to all present and future indebtedness from time to time of said debtor to creditor and shall not be affected by said debtor’s insolvency, at any time or by said creditor’s acceptance of • security, notes, acceptances, drafts or checks, or by assignment, foreclosure or other dispositions thereof by said creditor, at any time, or by said creditor presenting or proving for allowance any secured or unsecured claim or demand, or by creditor’s acceptance of any composition, plan of reorganization, settlement, compromise, dividend, composition, payment of distribution; and the undersigned shall not be entitled to claim any right in, or benefit by reason of, any such composition, plan of reorganization, settlement, compromise, dividend, payment or distribution, or in or reason of any security held by creditor, or the proceeds of the foreclosure or other disposition thereof, until and unless all of said indebtedness, interest thereon, attorney’s fees and cost, above mentioned, shall have paid in full.
The undersigned hereby waive—notice of the acceptance of the within guaranty and notice of the original and extended due dates and non-payment of any indebtedness of said debtor to creditor and hereby waive demand for payment and protest of any and all of said indebtedness, notes, acceptances, drafts and checks and hereby consent—to any and all extensions of time for payment thereof, however, effected.”

Under the general principles of sure-tyship law, a release of the principal also releases the surety to the extent that the principal is released. Becker v. Faber, 280 N.Y. 146, 19 N.E.2d 997 (1939); 74 Am. Jur.2d, Suretyship § 45; 121 A.L.R. 1014. The surety is not released, however, if the creditor in the release reserves his rights against the surety, or if the surety consents to remain liable notwithstanding release of the principal. Continental Bank & Trust Co. v. Akwa, 58 Wis.2d 376, 206 N.W.2d 174 (1973); Shows v. Steiner, Lobman & Frank, 175 Ala. 363, 57 So. 700 (1911); RESTATEMENT OF SECURITY § 122.

In the guaranty agreement quoted above, respondents clearly consented to remain liable notwithstanding any “settlement” or “compromise.” By the terms of the agreement, the guaranty is not expressly limited to involuntary situations, nor do we think the parties intended the agreement to be so limited. As the terms of a commercial guaranty agreement are to be construed as strongly against the guarantor as the sense will admit, Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801 (Tenn.1975), we hold that the agreement contemplated voluntary as well as involuntary settlements and compromises, and that respondents remain liable on their guaranty.

In Shows v. Steiner et al., supra, the guaranty agreement authorized the creditor to grant time, other indulgences or “compound with” the principal without affecting the obligation of the guarantor. A plea setting up a compromise as a defense to the suit to enforce the guaranty was denied because of the express provision continuing the liability of the surety after extinguishment of the principal’s debt.

In their cross-complaint, respondents maintain that if they are found liable on their guaranty agreement, they should be subrogated to the rights of the creditor and entitled to reimbursement from the successors in interest of the principal, Star-Line. Respondents misconstrue the law of subro-gation.

The doctrine of subrogation is an equitable one, and it is recognized that the payment of an obligation by a surety entitles him to stand in the place of the creditor and be substituted to all of the rights of the creditor against the principal. Payne v. Standard Acc. Ins. Co., 259 S.W.2d 491 (Ky.1952); Restatement of Security § 141; 73 Am.Jur.2d, Subrogation § 53.

Here the creditor’s right against the principal have been extinguished by the complete release given Star-Line. The debt having been extinguished, there remains nothing to which respondents could be substituted. They expressly agreed to this legal consequence by contracting to remain liable in spite of any compromise settlement of the debt. Cf. Uzzell v. Mack, 23 Tenn. 319 (1843).

Nor were respondents, or either of them, released from the terms of the guaranty agreement. The agreement contained a voluntary revocation clause whereby respondents could revoke their guarantee of any future indebtedness at any time merely by giving proper notice. This notice was not given, and petitioners remain liable to the full extent of their ten thousand ($10,-000) dollar guaranty agreement.

The cause is reversed and remanded to the Chancery Court of Hamblen County for the entry of a decree awarding a judgment in favor of petitioners and the enforcement thereof. Costs are adjudged against the respondents.

COOPER, HENRY, BROCK and HARBI-SON, JJ., concur.

OPINION ON PETITION TO REHEAR

FONES, Justice.

Guarantors, Evans and Gose have filed a petition to rehear urging reconsideration of the Court’s rulings adverse to them on the guarantee agreement and their third party complaint against Star-Line, et al.

We are satisfied that we have correctly construed the liability of guarantors under the written contract of guarantee. Evans and Gose owned the corporation and were its officers at the time they agreed to guarantee the future indebtedness of Star-Line to Hickory Springs Manufacturing Company, for the purpose of enabling Star-Line to purchase materials on credit. The contract was an absolute continuing guarantee, until such time as guarantors might give written notice by registered mail, of revocation, which revocation would not have affected any indebtedness existing at the time of any such revocation. Evans and Gose acknowledged that they had not attempted to revoke the guarantee at any time. Their obligation was not a mere suretyship undertaking for which the law prescribes the scope of liability and defenses thereto, but an express contractual agreement to be bound for the full amount of the indebtedness in the event of a compromise settlement with Star-Line for a lesser sum. They were not accommodation guarantors, as the corporation they owned received a continuing line of credit not available without their guarantee. Evans, as president of the corporation was continuously aware of the amount of the debt. Jarnagin testified that Evans was told that negotiations were being conducted with Hickory Springs to settle the indebtedness for less than the full amount, prior to the purchase of Evans stock. The financial condition of Star-Line and the history of the Jarnagin groups negotiations with Evans to purchase his one hundred (100%) percent stock interest, provide almost conclusive inferences that Evans was aware of the negotiations. There was no contradiction of Jarnagin’s testimony that he told representatives of Hickory Springs that his group could not purchase Star-Line unless the debt was reduced and that if they “walked out” the company faced almost certain bankruptcy with the prospect of five cents on the dollar for creditors. These facts could not have escaped Evans’ attention and the consummation of the settlement was obviously of benefit to him as he received fifteen thousand ($15,000) dollars for his stock, that was on the brink of total disaster.

Guarantors mistakenly assert that we rejected their third party subrogation action on the authority of Uzzell v. Mack, supra. The result of that ease was to allow Uzzell, the surety, to pursue the purchase money lien held by Howser, the holder of the note paid by Uzzell, after the principal maker defaulted. However, the opinion states the principle that when a surety discharges a judgment, it is extinguished and there is nothing to which he can be substituted. That statement is analogous to the statements in the text of our opinion preceding the citation of Uzzell, and we used the uniform citation signal cf. to so indicate.

Guarantors rely upon T.C.A. § 25-323 et seq. Those code sections applicable to suretyship have no relevance where a contract of guarantee authorizes a compromise settlement of the principal’s debt, and expressly retains the liability of the guarantor for the balance. Such a contract permits the extinguishment of the principal debt and although, to the extent of payment, the guarantor stands in the shoes of the creditor, there is nothing — no cause of action — to which he can be substituted, because the right of subrogation equitable or by statute has been contracted away.

Finally, this Court cannot award any relief to the third party plaintiffs, Evans and Gose. No petition for the writ of certiorari was filed on their behalf. The petition of Hickory Springs and our grant of the writ brought only the original action to this Court.

The petition to rehear is denied.

COOPER, C. J., and HENRY, BROCK and HARIBSON, JJ., concur.

      . A Uniform System Of Citation, Eleventh Edition, Published and Distributed by The Harvard Law Review Association.