author: DONNELLY, Judge. RENDLEN, Justice, PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Vincent WANDIX, Appellant.
    No. 61201.
    Supreme Court of Missouri, En Banc.
    Oct. 19, 1979.
    Rehearing Denied Nov. 14, 1979.
    James J. Knappenberger, Shaw, Howlett & Schwartz, Clayton, for appellant.
    John Ashcroft, Atty. Gen., .Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Appellant, Vincent Wandix, was convicted in the Circuit Court of St. Louis County, Missouri, of selling a controlled substance (§ 195.020, RSMo 1969), and his punishment was assessed at imprisonment for a term of ten years. Following rendition of judgment and imposition of sentence, an appeal was perfected to the Eastern District of the Court of Appeals. The case was transferred here after opinion. We decide the case the same as on original appeal. Mo.Const. Art. V, § 10.

On March 16, 1976, an indictment was filed in the Circuit Court of St. Louis County charging appellant with the sale of heroin to undercover detectives on July 23, 1975.

At trial the State introduced the testimony of officers Leeman Dobbins and Leon Bates of the St. Louis City Police Department and Officer Michael McDonald and chemist Rodger Dale Corcoran of the St. Louis County Police Department. Appellant introduced the alibi testimony of Pierre and Deschiell Wandix, his brothers, and of Unis Taylor and Albert Hirsch, friends.

The testimony of the officers showed the following:

Officers Bates and Dobbins met Officer McDonald at the office of the St. Louis County Police Department in the early evening on July 23,1975. A confidential informant was with Officer McDonald. Officer McDonald was not previously acquainted with the informant. He was passed along to him at the beginning of his shift with an assignment to survey the undercover City officers and informant as they made a drug transaction. Officer McDonald received reliable information from the informant on a substantia] number of occasions subsequent to the one at issue. The informant was not previously known to Officer Dobbins or Officer Bates. Dobbins did not use the informant at any time subsequent to the incident at issue. Bates did not testify as to any subsequent use.

The officers and the informant proceeded in two cars to the Beechum Park area of the County where they were to meet a drug dealer named Vincent Wandix. Wandix was not personally known to Dobbins. Bates may have seen him before. In Beech-um Park, McDonald provided loose surveillance by driving around the area. Bates was dropped off at a corner to provide close surveillance while Dobbins and the informant met Wandix. The informant introduced Dobbins to Wandix as his “partner.” After a brief exchange of words, Wandix told them to follow him to a residence at 942 South Taylor.

Dobbins, the informant and Wandix proceeded to the South Taylor address in two cars. Wandix drove a Cadillac. Dobbins and the informant followed in their car. Officer Bates was picked up and again dropped off near the South Taylor address by Dobbins. After arriving at 942 South Taylor, Dobbins entered the residence with the person identified and introduced by the informant as Wandix and purchased $20 worth of heroin from him. There is an uncertainty as to whether the informant entered the residence. Dobbins testified that he did not, that he remained in the car parked outside. Bates testified that the informant did accompany Dobbins and Wandix into the house. There is no claim or indication that anyone other than Dobbins, Wandix, and possibly the informant was in or at 942 South Taylor. The appellant was identified in court as the seller of the heroin by both Dobbins and Bates.

After completing the transaction, the officers regrouped and returned to the County Police offices where the purchased substance was turned over to the police chemist, Rodger Corcoran, and determined to be heroin.

At the close of the trial, the jury returned a verdict of guilty.

The essential issue on appeal is whether the informant’s identity should have been disclosed to appellant.

Appellant contends the trial court erred in overruling his motion to disclose the confidential informant.

The State contends that appellant failed to properly raise and preserve the disclosure issue and that the trial court properly protected the identity of the informant.

The State, in its brief, presents two reasons for not reaching the merits of the disclosure issue. The first is that appellant’s motion was not timely under Rule 25.31. That rule provides, in relevant part,: “ * * * . motions for discovery shall be made not later than twenty days after arraignment in the court having jurisdiction to try the offense charged.” Motions to Disclose informants should ordinarily come within the discovery time limit since Rule 25.39, enacted simultaneously with Rule 25.-31, addresses the circumstances in which the identity of an informant is subject to disclosure. It would certainly seem desirable to make motions to disclose informants within Rule 25.31 limits, where possible, since timely motions would avoid delay, surprise and confusion.

However, the question of the timeliness of the motion is not properly raised in this case. The prosecutor did not oppose the motion on grounds of timeliness at trial. The trial judge took the motion under consideration, heard testimony on the confidential nature of the informant and the informant’s relation to the transaction at issue, and specifically ruled the motion on the-merits of disclosure. In these circumstances, this assertion by the State is without merit.

The second reason given by the State for not reaching the merits of the disclosure issue is that appellant failed to properly raise and preserve the issue at trial. The State contends: “The argument that identity is a crucial issue in the case and that therefore the ‘unidentified individual’ was a necessary and material witness for the appellant, for that reason, is advanced for the first time on appeal. For this reason this point is not preserved for review, because never presented to the trial court in the context of a mistaken identity situation.”

The issue as to disclosure does not appear, from the record, to have arisen until cross-examination of Officer Dobbins. When appellant’s attorney attempted to question Officer Dobbins as to the identity of the .informant, the prosecutor asked to approach the bench and a conference was held. Appellant moved for disclosure. The prosecutor objected on the grounds of confidentiality. The court recessed the trial for a hearing in chambers as to the matter of the unidentified informant. After further examination of Officer Dobbins in chambers, appellant’s attorney moved for disclosure: “ * * * [F]or the reason that I don’t think he qualifies as Mr. Nangle (the prosecutor) would have the court, or ask the court to believe as being a confidential informant. He’s equally a participant in the alleged offense as any other police officer that was there. He was present when this was supposed to have taken place. He’s identified my client to the Police Officer, and indicated to him that he was Vincent Wandix, and I think that in fact he is the only other lay-witness to this case, that would be available to either side. I don’t know who he is but he is or has a part in this matter in this issue or controversy in dispute. There is alibi defense pleadings in this case; — there are alibi defense witnesses that have been endorsed, and this unidentified individual is the only other lay-witness who can contradict, disspell [sic], or prove the issues that are in controversy except the government witnesses, and I don’t think this defendant can have a fair trial if the State cloaks him as an unidentified confidential informant, * * (Emphasis added.)

The motion was overruled, “at this * * particular time during the trial.”

A further hearing on the Motion to Disclose was held in chambers during the testimony of Officer McDonald. This was after Officer Bates had testified that the informant accompanied Dobbins and Wandix into the residence at 942 South Taylor. After McDonald was examined in chambers the court ruled finally on the Motion to Disclose. After taking cognizance of defendant’s alibi defense, the court overruled the motion, citing State v. Taylor, 508 S.W.2d 506 (Mo.App.1974).

We must conclude from the record that the trial court and the parties recognized that identity was a crucial issue in the case.

We turn then to the essential question whether the informant’s identity should have been disclosed to appellant.

In Roviaro v. United States, 353 U.S. 53, 59-62, 77 S.Ct. 623, 627-629 (1957) the United States Supreme Court addressed our question, as follows:

“What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151; In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Vogel v. Gruaz, 110 U.S. 311, 316,4 S.Ct. 12, 14, 28 L.Ed. 158. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. ******
“A * * * limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity * * * is relevant and helpful, to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.
******
“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.”

The Roviaro concept was adopted as Missouri law by this Court in State v. Edwards, 317 S.W.2d 441 (Mo. banc 1958). See also State v. Yates, 442 S.W.2d 21 (Mo.1969); State v. Nafziger, 534 S.W.2d 480 (Mo.App.1969).

In Roviaro, the court posited three possible defenses for which the informant’s testimony could be vital: entrapment, mistaken identity of the person or package, and lack of knowledge of the contents of the package. Roviaro, supra, 353 U.S. at 64, 77 S.Ct. 623; Nafziger, supra, 534 S.W.2d at 482.

The State argues that appellant has failed to show that the testimony of the informant would in fact be exculpatory. The Roviaro rule requires disclosure where the informant’s testimony “ * * * is critical to the issue * * * ” or “ * * * highly relevant to the issue * * Nafziger, supra, 534 S.W.2d at 483. The State also argues that disclosure is not necessary where the informant did not participate in the transaction. As the court stated in Nafziger, however: “The State’s insistence upon the requirement of participation has some support in the literal language of the cases, but an examination of the facts of the cases indicates that participation as it is used in the language of the cases is, in reality, a reference to the presence of the informant at some critical stage of the proceedings so that he is qualified to testify concerning essential facts in the case.” Id. at 482.

In summary, the rule requires disclosure where the informant was in a position to offer testimony relevant and crucial to the defense; i. e. disclosure would not be required if the testimony were on minor or collateral issues or if the testimony would be merely cumulative of that of other neutral parties. The degree of cruciality necessary to require disclosure must be balanced against the State’s need for non-disclosure; /. e. possible non-disclosure where the informant is still active in other investigations and the accused’s need is minimal.

The crucial issue in the instant case was the identity of the drug seller. It is undisputed that the person who sold the drugs was the person introduced to the undercover officer by the informant. The informant at least observed the officer and the seller enter the house on South Taylor. Whether the informant actually entered the house as well is irrelevant to the question of his ability to testify as to identity; there is no suggestion that anyone else was in the house. The informant was thus in a position to offer highly relevant and material testimony. The appellant’s need for the testimony was great. He had alibi witnesses, but there were no other witnesses who could offer direct testimony except for the police officers. In such circumstances of relevancy and need, the State’s interest on balance, is weak. This was not an “active” informant who was still being used in ongoing investigations. Although the informant had provided useful and accurate information in other cases, that information was supplied only in the eight months immediately subsequent to the sale at issue. The trial occurred some 21 months after the sale, or 13 months after the informant stopped supplying information. The State’s need is minimal. Although the State may have some interest in being able to tell an informant that his identity will never be revealed, even after he is inactive, this interest is not of sufficient magnitude to justify non-disclosure where the informant could provide relevant testimony at trial.

We must conclude that disclosure of the identity of the informant was “essential to a fair determination” on the facts and issues of this case. The trial court abused its discretion in failing to require disclosure.

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

BARDGETT, C. J., and SEILER and WELLIVER, JJ., concur.

RENDLEN, J., dissents in separate dissenting opinion filed.

MORGAN, J., and FINCH, Senior Judge, dissent and concur in separate dissenting opinion of RENDLEN, J.

HIGGINS, J., not sitting because not a member of the Court when cause was submitted.

RENDLEN, Justice,

dissenting.

For reasons herein set forth I respectfully dissent.

The identity of an informant who is but an observer or minor participant in a criminal transaction need not be disclosed when, as here, no showing is made that the informant’s testimony would be other than cumulative or repetitive of the state’s evidence. Accordingly, the trial court’s refusal to require disclosure was not error and the judgment of conviction should be affirmed.

The essential facts are not complex and though set forth by the majority, are reiterated for ready comparison with the other cases hereinafter discussed. On July 23, 1975, at about 5:30 p. m., Officers Dobbins and Bates of the St. Louis Police Department accompanied an informant, who had been introduced to them by another officer, to a residence in the Beechum Park area. They went to find one Vincent Wandix for the purpose of arranging a heroin purchase and the informant was to introduce Dobbins to defendant Wandix. Locating Wandix without apparent difficulty informant made the introduction stating, “This is a partner of mine” and identified Wandix by name. After the initial conversation Wandix told Dobbins “to follow him” whereupon Dobbins, the informant and Bates (who was picked up en route) followed Wandix as he drove a Cadillac automobile to 952 South Taylor. Bates, playing a backup role, was dropped off near the corner about three houses from the South Taylor residence. According to Dobbins, who was immediately involved at the scene, informant remained in the car and did not enter the house. From Bates’ position down the street, it appeared to him that Wandix, the informant and Dobbins entered the 952 South Taylor residence. I believe the variance in the proof as to whether informant went into the house or remained outside is not controlling, for (1) if he remained outside as Dobbins [whose vantage point was considerably better than Bates] described, he was neither a participant in nor an observer of the crime; or (2) if he went inside there is no testimony he was an observer much less a participant and only by way of conjecture or speculation can he be so connected. The direct testimony of Dobbins was to the contrary.

Inside the residence Wandix asked Dobbins what he wanted and Dobbins responded that he “needed two things.” Wandix then walked down the hallway, returning in a few minutes with 20-30 capsules in a plastic container from which he removed two capsules and exchanged them with Dobbins for $20.00. Laboratory analysis disclosed the capsules contained heroin.

Both officers, based on their protracted personal observation of Wandix, made positive in-court identifications.

During trial (three previous proceedings had ended in mistrial) defendant made his unseasonable request that informant’s name be disclosed, which I believe was properly refused.

This case is strikingly similar to State v. Tilcock, 522 S.W.2d 60 (Mo.App.1975). There an informant introduced an illicit drug seller to an undercover police officer in a tavern. The three men retired to a hallway in the rear of the tavern where informant, acting as a lookout, stood five or six feet away from the spot where the officer and the accused bought and sold amphetamine sulfate. On those facts the court of appeals considering the effect of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), upheld the trial court’s denial of defendant’s motion for disclosure of the confidential informant because the informant’s participation was minor and another witness was present.

Another case remarkably close on its facts is State v. Taylor, 508 S.W.2d 506 (Mo.App.1974). In Taylor the informer went with the police officer into the residence where the transaction occurred and there, as in the case at bar, the informer was not the sole participant. Further, there was strong testimony establishing the identity as well as the guilt of defendant. The court of appeals held the trial .judge properly denied defendant’s request for disclosure of the informant’s identity. I believe the carefully reasoned opinions in Til-cock and Taylor are persuasive and the rationale there expressed should be applied in our case. However, the majority, contrary to Taylor and Tilcock, would reverse relying on Roviaro v. United States. That reliance, I submit, is misplaced because af-firmance here would not be contrary to, but instead consistent with the holding of Rovi-aro. In Roviaro, this significant statement appears: “the Government’s informer was the sole participant, other than the accused, in the transaction charged.” 353 U.S. at 64, 77 S.Ct. at 630. (Emphasis added.) Thus, if Officer Dobbins had not testified and the state had sought to withhold his identity, Roviaro would require disclosure as to Dobbins for he was the sole participant.

The test for determining disclosure discussed in Roviaro requires a balancing of the public interest in protecting the flow of information against the individual’s right to prepare his defense. This determination depends upon such facts as the crime charged, possible defenses, the likely significance of the informer’s testimony and other relevant factors. 353 U.S. at 62, 77 S.Ct. 623. It is important that we undertake a detailed examination of that decision.

The Roviaro court characterized the right of the state to guard an informant’s identity as the informer’s privilege or government privilege. As the court explained, 353 U.S. at 59, 77 S.Ct. at 627, “The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Defendant Rovi-aro was charged in two counts by a federal grand jury in connection with illicit sale and possession of heroin and the indictment itself (unlike the case at bar) clearly showed the deep involvement of the informer. As stated in the opinion, Count I charged that he sold heroin to one “John Doe” and Count II charged him with fraudulently and knowingly receiving, concealing, buying and facilitating the transportation and concealment after importation of heroin. 353 U.S. at 55, 77 S.Ct. 623. “John Doe” (the informant) was expressly mentioned as the participant to whom the accused made the sale charged in Count I and though “John Doe” was not expressly mentioned in the second count, “Doe” was closely tied and implicitly a participant (on behalf of the state) to that charge as well. 353 U.S. at 63, 77 S.Ct. 623.

The controlling facts of Roviaro were as follows: The informant met with four police officers and, apparently by prearrangement, one of the officers secreted himself in the trunk of the informant’s Cadillac automobile. The informant, alone in the passenger compartment, drove his automobile to a particular location in Chicago. After about one hour’s wait, Roviaro (the accused) arrived in a Pontiac automobile and immediately (again apparently by prearrangement) entered the informant’s Cadillac taking a front seat beside the informant. Ro-viaro greeted the informant and directed him where to drive. These two were the only persons in the passenger compartment of the vehicle as they drove a circuitous route to another location in the city. At one point Roviaro admonished informant “to pull over to the curb, cut the motor, and turn out the lights so as to lose a ‘tail.’ ” Roviaro then told the informant to continue “further down.” He then asked about money which the informant owed him and advised the informant that he had brought him “three pieces at this time.” Shortly thereafter Roviaro ordered the car stopped, alighted, walked a few feet to a nearby tree where he picked up a small package, returned to the open right front door of the Cadillac, made a motion as if depositing a package in the car, then waved to the informant and walked away. As he was doing this, Roviaro said “here it is” and “I will call you in a couple of days.” The officer hidden in the trunk then emerged and another who had been following at a distance in another car went to the Cadillac, recovered the package from the floor of the car which contained “three glassine envelopes containing a white powder.” The powder was heroin. Roviaro was arrested at his home and when taken to the police station was confronted by the informant and, significant to the decision, informant denied that he knew or had even seen Roviaro. 353 U.S. at 56-58, 77 S.Ct. 623.

The Court, requiring disclosure, pointed to the following facts, only one of which (/. e., # (4) set forth below) is similar to the case sub judice. (1) The indictment, Count I, referred specifically to the sale of heroin to “John Doe” and did so by implication in Count II. (2) So far as Roviaro knew, he and “John Doe” were alone and unobserved during the crucial occurrences for which he was indicted. (3) Most important, “The government’s informer was the sole participant, other than the accused, in the transaction charged.” (Emphasis added.) (4) The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. In our case the informant could add or detract only as to preliminary matters, not the facts of the crime. Thus, even as to this fact the cases are dissimilar. (5) A government witness testified that “Doe” [the informant] denied knowing petitioner or ever having seen him before the confrontation at the police station immediately after the arrest. (6) An additional distinguishing factor appears at page 55, 77 S.Ct. 623 where the court referred to the informer not as a mere police “stool pigeon” but instead “an undercover employee” who took a material part in bringing about the possession of certain drugs by the accused. Three of the police officers described “Doe” as an informer and a “special employee.” Prom this it appears that “Doe” was more than the usual “informant” and had sufficient police connection to bolster defendant’s claim that here was a man whose identity should be disclosed.

The Court concluded “that, under these circumstances the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.” 353 U.S. at 65, 77 S.Ct. at 630. (Emphasis added.) From this examination of the salient facts upon which the court based its decision, I do not see how it can be said that Roviaro requires reversal in the case at bar. The dispositive facts here stand in stark contrast. Instead, it can be more reasonably stated from the facts and general language of the opinion, that Roviaro is authority for denying disclosure and upholding the conviction. Further it should be noted that the court stated, “We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing of the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous' must depend on the particular circumstances of each case taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U.S. at 62, 77 S.Ct. at 628-29. (Emphasis added.) In that connection the Court referenced several cases wherein several courts of appeals had considered the government’s right to withhold the identity of an informer. Among those was Sorrentino v. United States, 163 F.2d 627 (9th Cir. 1947), in which the accused was charged with both sale and possession of narcotics. The government agent saw the accused go into a house with the informer after arrangements for a sale had been overheard and the informer later delivered the narcotics to the agents. There, the informer was, as in Roviaro, the sole participant. Discussing Sorrentino, the court went on to state, “[t]he Ninth Circuit stated that the accused was entitled to disclosure under these circumstances, but the conviction was affirmed on the ground that the record demonstrated that the accused knew the identity of the informer.” 353 U.S. at 62 n. 12, 77 S.Ct. at 628. Obviously, the same is true in the case before us for it was the informer who arranged the meeting between the police officers and the accused, introduced them to the accused, knew where he could be found and knew his name. Apparently relying on his knowledge' of the informant and his relationship with him, Wandix invited Dobbins and the informant to follow him to the Taylor Street residence and there the sale was made.

Finally, in a strongly written dissent which would have denied disclosure of the identity of even the sole participant informant in Roviaro, Mr. Justice Clark made this statement which history tells üs was prophetic and is tragically cogent today. Explaining the decision’s destructive effect on the enforcement of the narcotics laws, Justice Clark stated:

The short of it is that the conviction of a self-confessed dope peddler is reversed because the Government refused to furnish the name of its informant whose identity the undisputed evidence indicated was well known to the peddler. Yet the Court reverses on the ground of ‘unfairness’ because of the Government’s failure to perform this fruitless gesture. In my view this does violence to the common understanding of what is fair and just.
First, it is well to remember that the illegal traffic in narcotic drugs poses a most serious social problem. One need only read the newspapers to gauge its enormity. No crime leads more directly to the commission of other offenses. Moreover, it is a most difficult crime to detect and prove. Because drugs come in small pills or powder and are readily packaged in capsules or glassine containers, they may be easily concealed. They can be carried on the person or even in the body crevasses where detection is almost impossible. Enforcement is, therefore, most difficult without the use of “stool pigeons” or informants.
Their use has long had the approval of the courts. To give them protection governments have always followed a policy of nondisclosure of their identities. Experience teaches that once this policy is relaxed — even though the informant be dead — its effectiveness is destroyed. Once an informant is known the drug traffickers are quick to retaliate. Dead men tell no tales. The old penalty of tongue removal, once visited upon the informer Larunda has been found obsolete. 353 U.S. at 66-67, 77 S.Ct. at 630-31.

Here, the majority with little mention of the Roviaro facts has seized upon a part of the general language in the decision and carried it beyond the contextual limits of the case. It would permit a defendant in any case where an informant was a mere bystander or observer to make the vague conclusory allegation that the informant, who observed facts preliminary to an actual sale of narcotics, might be of help and on such a general allegation disclosure would be required. This it does without requiring that (1) defendant first show the reasonable likelihood thát informant’s testimony would be of reasonable benefit to him, or (2) there be a showing, as in Roviaro that he participated in the commission of the crime.

In short, the mischief resulting from the majority’s opinion which unreasonably extrapolates the general language of Roviaro would effectively destroy the privilege of the confidential informer in drug cases and require disclosure on the basis of mere speculation that an informant might be able to help the defendant in some way by “amplifying” or denying testimony of the police officer. This would be so, where as here, an informant gives information and merely leads the police officers to a place where the drug peddler is conducting his business. Such was not the intent of Roviaro and constitutes an unwarranted extension of the holding in that case which can only lead to stultification of our law enforcement system by effectively removing one of the state’s most valuable enforcement tools, the confidential informant. This radical departure should not be adopted as the law in Missouri and indeed in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), the Supreme Court reexamining Ro-viaro ten years later made clear that it should not be read broadly to require disclosure of an informant’s identity in various procedural stages of criminal prosecutions, that there is no justification for a fixed rule with respect to disclosure and reiterated that in Roviaro the informer “was the sole participant, other than the accused.” Id. at 310-311, 87 S.Ct. at 1062. The McCray Court reemphasized that a most important consideration before disclosure would be required was “the possible significance of the informer’s testimony.” Id. Stated otherwise, the trial court need not blindly accept defendant’s assertion that the informant’s testimony would be helpful. Instead, it must first determine the reasonable likelihood of such “helpful testimony” and thereafter weigh such “fact” in the balance.

Numerous courts have applied the Rovia-ro balancing test to the disclosure issue and have held that the name of an informant, though a minor participant in a criminal transaction and an eyewitness to the transaction in question, need not be disclosed. As hereinabove noted there is some question in the evidence whether informant was present when the transaction occurred, but the more plausible testimony demonstrated he was not and that his observations included only the parties’ preliminary meeting.

The United States Court of Appeals for the First Circuit recently confronted the disclosure issue on a similar fact pattern in United States v. Estrella, 567 F.2d 1151 (1st Cir. 1977). There, a confidential government informant arranged a sale between an undercover agent and the defendant and was an eyewitness to two final purchases of heroin. The court, rejecting a Roviaro based claim stated,

. [t]he informant neither dealt directly with Alicea in any manner, [citations omitted] nor was he a significant participant in the criminal events. . The informant’s contribution could at best be marginal [citations omitted] and there is no indication that his testimony would be other than cumulative of that offered by the Government’s witnesses who were present.

Id. at 1153. (Emphasis added.) In our case, if we assume informant was present at the final transaction, there is absolutely no evidence suggesting he was a participant much less a significant participant. Moreover, appellant here failed to indicate any “concrete circumstances” that would justify disclosure and failed to offer any evidence indicating the informant’s testimony would be other than a reiteration of the state’s evidence. 567 F.2d at 1153.

In United States v. Alonzo, 571 F.2d 1384 (5th Cir. 1978), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978), the informant was present when numerous sales of narcotics occurred. The court rejected the contention that failing to disclose the identity of the informant was error stating, “It is well settled that the government is not required to disclose the identity of an informant who is a mere tipster and not an active participant in the offense charged even though he was present during the transaction in question.” Id. at 1387. Accord, United States v. Morris, 568 F.2d 396, 399-400 (5th Cir. 1978); United States v. McGruder, 514 F.2d 1288, 1291 (5th Cir. 1975); cert. denied, 423 U.S. 1057, 96 S.Ct. 790, 46 L.Ed.2d 646 (1976); United States v. D'Amato, 493 F.2d 359, 366 (2d Cir. 1974), cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 50 (1974). Certainly in this case where it is shown that the informant merely introduced Wandix to the officer and followed him to the house (or may have entered) in which the crime was committed, the trial court did not abuse its discretion in denying the motion for disclosure. In State v. Milligan, 71 N.J. 373, 365 A.2d 914 (N.J.1976), the New Jersey Supreme Court recently dealt with the disclosure issue under facts nearly identical to ours. An informant accompanied a police officer to a street corner location where he introduced the officer to defendant and observed as a sale was arranged. Subsequently all three drove to the defendant’s house and while the informer was out of the room, the sale was made. The New Jersey Supreme Court concluded that given the informer’s limited involvement in the crime and the speculative significance of the testimony, the defendant did not demonstrate that his interests outweighed the state’s interest in nondisclosure. There, as here, the informant’s role was minor and the significance of his possible testimony a matter of conjecture.

Similarly, the Colorado Supreme Court in People v. Marquez, 190 Colo. 255, 546 P.2d 482 (Colo.1976) ruled against disclosure on a case involving an anonymous informant who arranged a meeting of an undercover officer and a seller of heroin. The informant and the officer went to the seller’s house where the informant introduced him to the officer. Next, informant asked the seller whether he had the heroin. The seller replied affirmatively and handed a red balloon filled with heroin to the informant who in turn handed it to the officer who paid for the drug. On those facts, the Colorado Supreme Court upheld the ruling of the trial court denying disclosure. Clearly, the informant’s involvement in our case was minimal compared to that of the informer in Marquez.

Iowa, in State v. Sheffey, 243 N.W.2d 555, 559-560 (Iowa 1976), faced a similar fact pattern in which a confidential informant introduced an undercover police officer to a seller of amphetamines and was present when a sale took place. The officer and informant then departed. The Iowa court, reasoning that the seller could reasonably be deemed to know the informant and that the seller made no more than a speculative showing that the informant’s testimony would have been helpful, held the denial of disclosure proper.

It is generally recognized that defendant has a significant burden of proving that the disclosure of a confidential informant is necessary for a fair determination of defendant’s case and that the need outweighs ble government’s interests. Mere speculation on the defendant’s part that the testimony of the confidential informant will be helpful is not enough. In re United States, 565 F.2d 19, 23 (2d Cir. 1977), cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1970); United States v. Marshall, 532 F.2d 1279, 1282 (9th Cir. 1976); United States v. Alvarez, 472 F.2d 111, 113 (9th Cir. 1973), cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973); United States v. Skeens, 145 U.S.App.D.C. 404, 408, 449 F.2d 1066, 1070 (D.C.Cir. 1971). In the case at bar, defendant has offered only his conclu-sory assertion (belatedly made by his oral motion during trial) that the informant’s testimony might be helpful. This may legitimately be characterized as speculation and conjecture hardly sufficient to meet the significant burden described in the flood of cases interpreting Boviaro. In sum, it strains credulity to believe that the informant would offer any testimony helpful to appellant’s cause. From the evidence, it is clear that informant and defendant knew one another. Informant knew Wandix by name, knew his business and where to find him. It is equally apparent that Wandix knew informant because solely on the informant’s word he was willing to accept a new acquaintance (Dobbins) and take him to his (Wandix) home and there to deal in heroin. How can we give unquestioned credence to the defendant’s contention that he did not know the informant or claim the state “cloaked” him from defendant? If we somehow assume defendant did not know his name, this fact does not change the compelling inference that defendant knew the man and thus dilute his counsel’s belated claim that, “I don’t know who he is. . ” Also, there is little or no likelihood that defendant could have obtained beneficial testimony from the informant. This, coupled with the fact two police officers positively identified Vincent Wandix and one of them testified directly on the commission of the crime is also supportive of the court’s refusal to sustain defendant’s request for disclosure. See United States v. Soles, 482 F.2d 105, 109 (2d Cir. 1973), cert. denied, 414 U.S. 1027, 94 S.Ct. 455, 38 L.Ed.2d 319 (1973); United States v. Davis, 487 F.2d 1249, 1251 (5th Cir. 1973); United States v. Russ, 362 F.2d 843, 845 (2d Cir. 1966), cert. denied, 385 U.S. 923, 87 S.Ct. 236, 17 L.Ed.2d 146 (1967).

I would hold that when a confidential informant is a minor participant in a transaction and the defendant makes no showing that the informant’s testimony would be other than cumulative and repetitive of the state’s evidence, the trial judge does not abuse his discretion in denying disclosure. State v. Redding, 357 S.W.2d 103, 108 (Mo. 1962); State v. Edwards, 317 S.W.2d 441, 447 (Mo.1958). For these reasons, the judgment of the trial court should be affirmed.

On Motion For Rehearing

PER CURIAM:

In asserting the principal opinion “would effectively destroy the privilege of the confidential informer in drug cases” and “can only lead to stultification of our law enforcement system by effectively removing one of the state’s most valuable enforcement tools, the confidential informant,” the dissent misinterprets the language of the principal opinion and overstates its intended effect.

The principal opinion does not presume to declare new law as to the informer’s privilege. It represents at most an application of the Roviaro balancing test, adopted by this Court in State v. Edwards, 317 S.W.2d 441 (Mo. banc 1958), to a rather unique fact situation. The informer’s privilege remains intact as reflecting the strong public policy of this state, and should be honored except in those cases where there exists “the possibility of any real and substantial prejudice to the defendant, in the bona fide preparation of his case, from a failure to divulge the name.” Edwards, 317 S.W.2d at 449 (Eager, J., concurring and speaking for a plurality).

The state’s motion for rehearing is overruled.

BARDGETT, C. J., and DONNELLY, SEILER and WELLIVER, JJ., concur.

RENDLEN and MORGAN, JJ., and FINCH, Senior Judge, dissent.

      . Dobbins testified that Wandix was driving a 1973 Cadillac convertible with a red top over a white body. Officer Bates described the car as a late model red Cadillac.

      . Police officer Michael McDonald, also involved in the surveillance, testified that driving in a separate car, he followed Dobbins and Bates to Beechum Park and saw them there with the informant. Maintaining this loose surveillance, he later drove to the South Taylor area and saw the three men in their car in the vicinity of the Wandix residence.

      . Although the great weight of authority since Roviaro supports the proposition that the identity of a confidential informant who plays only, a minor part in a criminal transaction need not be disclosed, some courts have reached a different result. See People v. Goliday, 8 Cal.3d 771, 778-779, 106 Cal.Rptr. 113, 505 P.2d 537 (Cal.1973). That decision was based partially on Cal.Evid.Code, § 1041. The Texas Court of Criminal Appeals has held that the identity of an eyewitness participant must be disclosed. James v. State, 493 S.W.2d 201, 202 (Tex.Crim.App.1973). However, James has been distinguished on two recent occasions by the same court. Etchieson v. State, 574 S.W.2d 753, 757 (Tex.Crim.App.1978); Carmouche v. State, 540 S.W.2d 701, 703 (Tex.Crim.App.1976). In People v. Lewis, 57 Ill.2d 232, 311 N.E.2d 685, 689 (Ill.1974), the Illinois Supreme Court also held that a defendant has a right to interview a confidential informant who is an eyewitness participant to a drug transaction. These cases are readily distinguishable from that before us because here there has been no showing that informant witnessed the heroin sale.

      . A distinction has been made between participant informants (those who have introduced police officers to the suspect or aided in arranging a sale) and those who merely provide information. State v. McCann, 543 S.W.2d 504 (Mo.App.1976). “The likelihood that fundamental fairness will require the disclosure of the identity of the latter group is substantially less.” Id. at 507. But participation alone is not enough to require disclosure and is but one aspect of the multi-factor analysis required. State v. Taylor, 508 S.W.2d at 512; Roviaro v. United States, 353 U.S. at 62, 77 S.Ct. 623. See State v. Milligan, 71 N.J. 373, 365 A.2d 914, 922 (N.J. 1976).

      . During the testimony the first day of the fourth trial of this cause the following occurred:
      MR. SCHWARTZ: [defense counsel] At this time, Judge we make an oral Motion and request that the State disclose the name and address of this so-called individual that was present during the course of this incident for the reason that I don’t think he qualifies as Mr. Nangle would have the court, or ask the Court to believe as being a confidential informant. He’s equally a participant in the alleged offense as any other police officer that was there. He was present when this was supposed to have taken place. He’s identified, my client to the Police Officer, and indicated to him that he was Vincent Wandix, and I think that in fact he is the only other lay-witness to this case, that would be available to either side. I don’t know who he is, but he is or has a part in this matter in this issue or controversy in dispute. There is alibi defense pleadings in this case; there are alibi witnesses that have been endorsed, and this unidentified individual is the only other lay-witness who can contradict, disspell, or prove the issues that are in controversy except the government witnesses, and I don’t think this defendant can have a fair trial if the State cloakes [sic] him as an unidentified confidential informant, and doesn’t let us try to ascertain what his testimony would be — if it would help this defendant, and help Mr. Wandix in counteracting any of the evidence in this case. And I think they are cloaking him as a confidential informant without some other information.


source: Caselaw Access Project

author: FLANIGAN, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Nelson Eugene BARKWELL, a/k/a Don Barkwell, Defendant-Appellant.
    No. 10913.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 25, 1979.
    Motion for Rehearing or to Transfer Denied Nov. 13, 1979.

      David V. Bear, III, Bear, Hines & Thomas, Columbia, for defendant-appellant.
    John Ashcroft, Atty. Gen., Brenda Farr Engel, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   FLANIGAN, Chief Judge.

Each count of the eight-count information charged defendant Barkwell with the offense of stealing. § 560.156. A jury found defendant not guilty of the charges contained in the first three counts and guilty of the charges contained in Counts IV, V, VI, VII, and VIII and fixed the punishment at two years’ imprisonment on each of the latter counts. The judgment and sentence of the trial court directed that the sentences run consecutively. Defendant appeals.

Defendant does not challenge the sufficiency of the evidence to support the verdict and a brief summary is sufficient. In 1976, the year of the offenses, Joann Brown was the treasurer of Newton County. She became acquainted with defendant through a “lonely hearts club” of which she was a member. The acquaintanceship proved financially disastrous for Miss Brown. After she had given defendant approximately $50,000 of her own assets, he induced her, by threats, to write unauthorized checks on the bank account in which the county funds were deposited. She turned over to defendant the proceeds of each check.

Count IV of the information is set out below. The other four counts ■ on which defendant was found guilty were essentially the same as Count IV except that each of them dealt- with a different check drawn on a subsequent date in 1976 and alleged that the acts of the defendant, set forth in the second paragraph of each count, took place on a stated date shortly before the date the respective check was drawn by Miss Brown. The checks were in the respective amounts of $301.07 (Count V), $50.00 (Count VI); $588.11 (Count VII) and $588.11 (Count VIII).'

The verdict of the jury was returned on October 25, 1977. Defendant filed a motion for new trial on November 9, 1977. The motion was not timely for the reason that it was not filed “within ten days after the return of the verdict” and the record fails to show that the defendant applied for, or that the trial court granted, an extension of time for filing the motion. Rule 27.20(a). State v. Larrabee, 572 S.W.2d 250, 251[2] (Mo.App.1978); State v. Eaton, 568 S.W.2d 541, 543 (Mo.App.1978). If a motion for new trial is not filed within the time prescribed by Rule 27.20(a) this court, sua sponte, must take notice of that fact; further, the motion, being untimely, is a nullity and preserves nothing for appellate review. State v. Larrabee, supra, 572 S.W.2d at 252[3].

One of defendant’s three “points relied on” challenges the.ruling of the trial court with respect to the admissibility of certain evidence. That assignment of error need not be considered for the reason that it has not been preserved for appellate review.

Defendant’s other two points challenge, respectively, the propriety of the action of the trial court in permitting the state to amend the information and the sufficiency of the information. The latter point must be considered on appeal “although not raised in the trial court or preserved for review.” Rule 28.02. It is at least arguable that the former point has not been preserved for' appellate review but these two points are so interlocked that this court has concluded to consider the former, as well as the latter, on its merits. Rule 27;20(c).

Defendant’s first point is that the trial court erred in permitting the state to amend the information at the close of the state’s evidence. The record shows that at that stage of the trial the prosecutor made the following statement: “I am going at this time to request, under Rule 24.02, that the information be amended, as I filed, not so it changes the charge at all, only to show the statute numbers which the Revised Statutes show he has violated those statute numbers, in addition to the one already on the information, 560.156, 560.161. Section 560.156, Judge, which is the statute having to do with the crime of stealing, and section 560.161, which is the statute which discusses punishment.”

The amendment, which the court permitted and which is the target of defendant’s first point, consisted of showing on the face of the information “the section of the Revised Statutes of Missouri which proscribes the conduct charged” and “the section of the statutes which fixes the penalty or punishment therefor.” Rule 24.01(a).

“The court may permit an information to be amended ... at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” Rule 24.02.

The record discloses that prior to the commencement of the trial defendant was aware of the fact that his conviction could result in imprisonment in the penitentiary. Before the voir dire examination of the veniremen was conducted defense counsel placed defendant on the stand and elicited testimony from him to the effect that the defendant preferred not to testify before the jury. • Further questioning by his own counsel elicited testimony from the defendant to the effect that there had been some plea bargaining with the prosecutor but that defendant decided that “I do not want to plead guilty and I do not want to accept his offer of penitentiary time.”

The challenged amendment made no change in the facts alleged in the five counts under consideration. The amendment did not charge an additional or different offense. There is no showing of prejudice to the substantial rights of defendant. Under these circumstances the trial court did not err in permitting the amendment. “The amendment merely correctly and sufficiently charges the offense attempted to be charged in the original information.” Johnson v. State, 485 S.W.2d 73, 75[1] (Mo. 1972). See also State v. Morris, 470 S.W.2d 467, 469[2] (Mo.1971); State ex rel. Lodwick v. Cottey, 497 S.W.2d 873, 881[10, 11] (Mo.App.1973).

Defendant’s first point has no merit.

Defendant’s second point is that each of the five counts upon which the guilty verdict was returned is fatally defective. If the contention is a valid one, the defect is jurisdictional.

“The defendant in a criminal case has a right to demand the nature and cause of the accusation, and the indictment or information must be sufficiently definite to enable him to prepare his defense and to constitute a bar to further prosecution for the same offense. Art. 1, § 18(a), Constitution of Missouri 1945, V.A.M.S.” State v. Tandy, 401 S.W.2d 409, 412 (Mo.1966).

The alleged deficiency in Count IV (and in the companion counts) to which defendant alludes is that it fails to use the word “feloniously” to describe the conduct of defendant (“abetted, counseled, commanded or encouraged, and thereby directly contributed to bring about the commission of the aforesaid acts . . .”) contained in the second paragraph of that count.

The authority upon which defendant principally relies is State v. Vonderau, 438 S.W.2d 271 (Mo. banc 1969). In that case the supreme court held an indictment to be fatally defective where it charged defendant with willfully striking a police officer but failed to charge that the striking was done “feloniously.” The court quoted, with approval, prior cases stating the following principles: “The word ‘feloniously’ is indispensably necessary in all indictments for felonies; whether statutory or by common law, . . . [T]here is no exception to the necessity of its [the word ‘feloniously’] use in Missouri in any indictment or information where the offense charged is a felony . . . . [T]he word ‘felony’ . is held to mean any offense for which the accused may, upon conviction, be imprisoned in the penitentiary, although the minimum punishment for same may be a jail sentence or a fine. * * * [T]he use of the word ‘feloniously’ is necessary for the very sufficient reason that its use informs the accused of the nature or grade of crime he is alleged to have committed. . . . ”

The court also stated at p. 273: “This Court has consistently held that the use of the word ‘feloniously’ in an indictment is fundamental and essential to its validity. The indictment is fatally defective for failure to allege that the act in question was ‘feloniously’ done. The case must be reversed and remanded for new trial.”

It should be noted that Count IV contains the word “feloniously” in its first paragraph where the conduct of Joann Brown was described. The validity of defendant’s second point hinges upon the significance of the fact that the word does not appear in the second paragraph of that count.

A case not cited by either side but which bears striking resemblance to the case at bar is State v. Hang Tong, 115 Mo. 389, 22 5.W. 381 (1893). There the defendant was charged with aiding and abetting one Lee in an assault with intent to kill two victims. The indictment, in addition to its formal portions, charged that Lee “with force and arms, in and upon [the victims] feloniously, willfully, on purpose, and of his malice aforethought, did make and assault, and the said [Lee], with a certain weapon, to wit, a pistol loaded with gunpowder and leaden balls, then and there, feloniously, willfully, on purpose, and of his malice aforethought, did shoot off, at, against, and upon [the victims] . . . with the pistol aforesaid, one wound, with the intent, then and there, them [the victims] feloniously, willfully, on purpose, and of his malice aforethought, to kill.” The remaining portion of the indictment, charging the conduct of the defendant, alleged that the defendant “was then and there present, aiding and abetting, advising and counseling, the said [Lee] the offense and felony aforesaid to do and commit, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”

In holding the indictment to be fatally defective the supreme court pointed out that “it fails to charge that this defendant was feloniously present, aiding and abetting the felony alleged to have been committed by [Lee].”

The soundness of the decision in Hang Tong, supra, may be open to question. If A is charged with doing an act “feloniously” and if B is charged with “aiding and abetting, advising and counseling” the commission of A’s act, does it not follow that the conduct of B is equally felonious as that of A? A requirement that B’s conduct be separately branded as felonious seems to place a premium upon unnecessary repetition.

In Sweazea v. State, 515 S.W.2d 499 (Mo. banc 1974), a proceeding under Rule 27.26 to vacate a sentence, the court mentioned, but specifically refrained from deciding, the “interesting question” of whether the fact that the information contained a citation to the statute which itself made the misconduct a felony would “dispense with the necessity of using the word ‘feloniously.’ ” This court is now confronted with that question.

The information in the case at bar was filed on March 9, 1977. At that time Rule 24.01 read, in pertinent part:

“(a) The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall also contain on the face thereof the section of the Revised Statutes of Missouri which proscribes the conduct charged, the section of the statutes which fixes the penalty or punishment therefor, and the name and degree, if any, of the offense. .
“(b) All indictments or informations which are substantially consistent with the forms of indictments and informations which have been or will be approved by this court shall be deemed to comply with the requirements of rule 24.01(a).”

The pre-1977 version of Rule 24.01 did not require an information to contain, on its face, the citation to the statute proscribing the conduct charged or to the statute fixing the penalty and punishment therefor. The instant information, as amended, met those requirements. The issue is whether the information, so amended, is defective because it does not include the word “feloni-ously” to describe defendant’s conduct.

In State v. Harris, 313 S.W.2d 664, 669[4] (Mo.1958) the court said: “The word ‘felonious’ is generally employed to classify offenses and is not a distinct element of the. crime. It is descriptive of the grade of the offense rather than the criminal act which constitutes the offense.” The court also referred to the word as a “generic term.”

This court has found no case dealing with the precise point under consideration. It is, however, touched upon by Judge Orville Richardson in his article entitled “Pattern Criminal Indictments, Informations and Jury Instructions for Missouri — Some Footnotes For a Treatise.”

In discussing the general format of MACH-CR forms, Judge Richardson, at p. 18, says:

“The forms faithfully follow the directions of Rule 24.01(a). Except for the caption, signature, verification and list of endorsed witnesses, all necessary matters are contained in the body of the charge. Thus, each form names the offense charged, describes it as a felony, misdemeanor or infraction and designates its classification, cites the statute violated and the statute or statutes where the range of punishment may be found, refers to a particular time and venue, and then proceeds to charge the. offense. The word ‘feloniously,’ formerly necessary, has been dropped because the offense is named as a felony when that is its classification.” (Emphasis added.)

The instant information was filed and amended prior to January 1,1979, the effective date of MACH-CR.

A “felony” is an offense for which the accused may, upon conviction, be imprisoned in the penitentiary, although lesser punishments may also be possible. State v. Vonderau, 438 S.W.2d 271, 272 (Mo. banc 1969); § 556.020, since repealed. The inclu-. sion in the instant information of the citations to § 560.156 and 560.161, in view of the fact that “the value of the property stolen is at least $50,” § 560.161, subd. 1(2), in each count, had the effect of informing the defendant (and he already had that knowledge prior to the amendment of the information) that the offenses charged were punishable by imprisonment in the penitentiary as well as by alternate lesser punishments. In these circumstances, to hold that the information was fatally defective, in not including the word “feloniously” in describing defendant’s conduct, would be to place form over substance.

An information “must state essential facts constituting the offense charged” and “must adequately notify a defendant of the charge against him and constitute a bar to further prosecution for the same offense.” Hodges v. State, 462 S.W.2d 786, 789 (Mo. 1971). The omission of the word “feloniously” in the second paragraph of Count IV of the amended information, and in the companion counts, does not render it insufficient to meet those requirements.

Defendant’s second point has no merit.

The judgment is affirmed.

All concur, except PREWITT, J., not participating, because not a member of the court when case was submitted.

      . Unless otherwise indicated all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      .
      “COUNT IV
      “Comes now Steve Lampo, Prosecuting Attorney of Newton County, Missouri and informs the Court that on or about the 1st day of July, 1976 Joann Brown did unlawfully, willfully and feloniously steal, take and carry away personal property in the charge of Newton County, Missouri, to-wit: $301.07, lawful currency of the United States of America, by drawing Newton County, Missouri General .Revenue Fund Check No. 1281 dated June 30, 1976, payable to herselt, (sic) Joann Brown, for the amount described hereinabove on the general revenue fund account of Newton County, Missouri and by cashing the same, receiving the funds therefrom for her personal use and benefit, all without the consent of Newton County, Missouri, contrary to the form of the statutes in such cases.made and provided, and that
      “On or about the 30th day of June, 1976, in the County of Newton, State of Missouri, NELSON .EUGENE BARKWELL, a/k/a DON BARKWELL, abetted, counseled, commanded or encouraged and thereby directly contributed to bring about the commission of the aforesaid acts, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

      . The statute number “already on the information” was § 556.170, which reads:
      “Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as the principal in the first degree.”

      . “ ‘There can be no trial, conviction or punishment for a crime without a formal and sufficient accusation.’ State v. McKinley, 341 Mo. 1186, 111 S.W.2d 115, 118 (1937). A court is without jurisdiction to try a person for an offense unless the offense has been charged by information or indictment.” State v. Handley, 585 S.W.2d 458, 461 (Mo.1979).

      .Defendant does not challenge the sufficiency of the information on the ground that it does not set forth the particulars of his conduct.
      “[A]n accessory before the fact ‘may be indicted as though he were the principal, without setting out the facts by which he aided and abetted, or advised and procured, the commission of the crime.’ ” (Citing authorities) State v. Lemon, 504 S.W.2d 676, 683 (Mo.App.1973).

      . See § 556.170 quoted in footnote 3. As previously mentioned, the section number of that statute was on the information when originally filed.

      . In State v. Tierney, 584 S.W.2d 618 (Mo.App. 1979) the court held that an information, filed after Rule 24.01 was amended on January 1, 1977, but before the adoption of Missouri Approved Charges — Criminal [MACH-CR] on January 1, 1979, was sufficient although it did not cite the statute proscribing the conduct charged but did cite the statute fixing the penalty or punishment therefor.

      . Journal of the Missouri Bar, Jan.-Feb. 1979, Vol. 35, No. 1, p. 13, et seq.

      . Note 3 of the Notes on Use to MACH-CR 2.10 reads, in pertinent part: “The forms charge the type of crime and allege that the conduct violates the law. Therefore the words “feloniously” and- “unlawfully” are omitted.


author: SWOFFORD, Judge.

text:
    In re the Marriage of Barbara Jean HIGHTOWER, Appellant, v. Robert Lee HIGHTOWER, Respondent.
    No. KCD 30237.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.

      . Robert C. Paden, Michael W. Manners, Paden, Welch, Martin, Albano & Graeff, P. C., Independence, for appellant.
    James S. Cottingham, Michael A. LeVota, Campbell, Gilmore, Erickson, Cottingham, Morgan & Gibson, Independence, for respondent.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and SWOFFORD, C. J.
   SWOFFORD, Judge.

The appellant filed her petition for dissolution of marriage wherein she sought division of marital property, custody of the three children born of the marriage, child support, maintenance and attorney’s fees. The respondent conceded that the marriage was irretrievably broken and the case went to trial, as a result of which the court below entered its decree dissolving the marriage, divided the marital property, awarded custody of the minor children to the appellant and child support of $150.00 per month per child for the two younger children. No maintenance or attorney’s fees were awarded to either party. The decree awarded the family residence, all household goods and furniture, and a 1975 Gremlin automobile to the appellant. A 1973 Pontiac automobile was awarded to respondent. The court thereafter granted a new trial to the respondent and this appeal followed. Since the only points raised in this appeal are procedural in nature, it is unnecessary to consider the details of the decree in the light of the evidence but rather, the complicated and somewhat unusual procedural history of this litigation must be given careful scrutiny.

This action was filed on February 2,1978, and the trial was had on May 8, 1978, and on that same day the court entered its decree as aforesaid.

On May 11,1978, the respondent filed his motion for a new trial and the record discloses that on the same day notice was served upon counsel for appellant that this motion would be called up for hearing on Monday, May 15, 1978. On that date, May 15, 1978, a hearing before the court was conducted although no evidence was proffered. At this hearing counsel for appellant stated to the court that his office did not receive the notice of hearing of the motion for a new trial on the date shown but on Friday, May 12,1978, and because of the intervening Saturday and Sunday, the motion did not comply with Rule 44.01(b).

It is important in the determination of this case to note that respondent’s motion for a new trial sets forth three grounds for the request, all based upon allegations that the trial court abused its discretion in 1) the division of marital property; 2) award of entire equity in home to appellant; and 3) in ordering the amount of child support.

At the conclusion of the hearing on the motion for a new trial, on May 15,1978, the trial court stated:

“THE COURT: Well, as counsel stated, it certainly must be fresh in counsel’s mind. The Court, as I advised counsel, has reviewed the transcript and, in the Court’s consideration of the motion, the ruling at the time of the trial was manifestly unfair to the respondent and respondent’s Motion for a New Trial is on this date, by the Court sustained.” (Emphasis added)

On May 15, 1978, the court entered a formal order sustaining the motion for a new trial, without stating therein any reason or grounds for such action.

On May 18, 1978, the appellant filed her Notice of Appeal in the Circuit Court, which was filed in this Court on May 22, 1978 and numbered KCD 30,237, and was an appeal from the order granting a new trial. To further complicate the already confused record, the respondent filed his Notice of Appeal in the court below on July 26, 1978, which was filed in this Court on July 28, 1978 and numbered KCD 30,363, and was an appeal from an order of July 17,1978 relating to a judgment for child support and attorney’s fees (which does not appear in the transcript). On July 31, 1978, this Court ordered the two appeals consolidated. On October 3,1978, the appeal in case KCD 30,363 was withdrawn so that the briefing and submission here is only in case KCD 30,237 and relates only to the appeal from the order granting respondent a new trial.

Another important factor in the decision of this appeal relates to the following: On November 14, 1978, in response to a motion filed by appellant in this Court requesting that the respondent prepare the original brief under Rule 84.05(b), placing the burden of supporting the trial court’s action in granting a new trial upon the respondent without specifying of record the ground or grounds impelling such action, the respondent advised the Court that:

“2. That Respondent has requested from the trial court an order nunc pro tunc in which the trial court in this cause will enter a new order which correctly reflects the basis and grounds for granting a new trial, said nunc pro tunc order to be based on the actual record of the trial court * #f>

At the direction of this Court, the order nunc pro tunc was filed as part of the record herein. It was made by the trial court on November 14, 1978 (six months after the entry of the original decree) and is as follows:

“NUNC PRO TUNC ORDER
IT IS ORDERED AND ADJUDGED by the Court that its order of May 15, 1978, in the above-entitled cause of action, granting a new trial, is hereby set aside and for naught held, and to conform the order to the record, in lieu thereof, the following order entered, as follows, to-wit:
‘Now on this day, Respondent’s Motion for New Trial of this cause heretofore filed herein, is by the Court taken up, considered and sustained on the grounds that the Court’s ruling at the time of trial was manifestly unfair.’
s/. William J. Peters
Honorable William J. Peters
Dated this 14 day of November, 1978” (Emphasis added)

Nothing appears in the record before this Court that any notice of or opportunity to be heard on this matter was ever afforded appellant.

The appellant raises two points on appeal, the second of which will be first considered.

Point II is that the court erred in granting the respondent’s motion for a new trial on May 15, 1978 because appellant was not accorded adequate notice of the hearing thereon under Rule 44.01(a) and Rule 44.-01(d). She asserts that since the motion for a new trial and the notice of hearing thereon were both filed on May 11, 1978, a Thursday, and the hearing was scheduled for May 15,1978 and was held on that date, that at the most, she was only given four days notice, in violation of Rule 44.01(d), which provides for notice “not later than five days before the time specified for the hearing * * *” (Emphasis added). Further, appellant relies upon Rule 44.01(a) which provides that where “the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation”. (Emphasis added) Applying that formula and excluding Saturday, May 13, and Sunday, May 14, 1978 from the computation, she was only given two days notice of the hearing. Counsel for appellant did call this fact to the court’s áttention at the hearing, but the record does not disclose any “vigorous objection” as the appellant’s brief characterizes the colloquy at the hearing as to the notice. In fact, appellant’s counsel made an argument on the merits of the motion for new trial and no attempt was made to show how the short notice given herein prejudiced the appellant.

The circumstances under which this motion was presented come within the rule expressed by the court in Baker v. Baker, 274 S.W.2d 322, 326, 327[13, 18] (Mo.App. 1954) where the court held that the five-day rule is not “rigid and unyielding” and held that one hour’s oral notice under the circumstances of that case was adequate where a trial court modified a divorce decree on its own motion on- the 29th day after the entry of the decree. The standard in all cases is a requirement of “reasonable notice”, and the court by the specific terms of Rule 44.01(d) is empowered to shorten the five-day minimum time requirement (or extend it) if the exigencies of a case so require, State ex rel. Gleason v. Rickhoff, 541 S.W.2d 47, 50[4] (Mo.App.1976).

In this record it appears that the respondent’s counsel stated and represented to the court that since the entry of the decree of dissolution which set over the family dwelling to the appellant and within the week that had thereafter elapsed the respondent had been “experiencing some difficulty living at the family residence” “in regard to the wife having the husband arrested when he returned to the home”. These statements were not challenged at the hearing.

These circumstances justified the trial court’s action in proceeding with the hearing and no abuse of discretion nor prejudice appears. Point II is ruled against appellant.

The appellant’s Point I on this appeal is that the trial court’s action in granting a new trial to respondent was presumptively erroneous because the order granting the new trial failed to specify the grounds therefor, under Rule 78.03, which provides:

“Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted”.

If such Rule is not complied with, it is supplemented by Rule 84.05(b) which provides in part:

“ * * * the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent, * * *”

In the instant case, the respondent’s brief tacitly admits the failure of the trial court’s order of . May 15, 1978 granting a new trial to comply with Rule 78.03 but asserts that this failure was rectified by the order nunc pro tunc of November 14, 1978; that the trial court’s judgment in the dissolution matter with reference to division of marital property and child support involved discretion as to facts and was not supported by substantial evidence and was against the weight of the evidence; and, that the nunc pro tunc order granting the new trial was granted on discretionary grounds.

The appellant counters this position by arguing that the nunc pro tunc order did not correct the error in the original order which violated Rule 78.03 because the error sought to be corrected thereby was judicial rather than clerical and that such nunc pro tunc order is defective on its face in that it is insufficiently specific under Rule 78.03.

While it is true that a trial court has jurisdiction to correct its order sustaining the motion for a new trial nunc pro tunc at a subsequent term- or even after appeal, that jurisdiction extends only to the correction of clerical and not judicial errors. Farrell v. DeClue, 365 S.W.2d 68, 72[2, 3] (Mo.App.1963); Brock v. Steward, 519 S.W.2d 365, 368[4] (Mo.App.1975); Warren v. Drake, 570 S.W.2d 803, 806[1, 2] (Mo.App.1978). This consistently followed rule in Missouri is thus stated in Vaughn v. Kansas City Gas Co., 236 Mo.App. 669, 159 S.W.2d 690 at l.c. 693[3, 4] (1942):

“Our courts have frequently held that an order correcting nunc pro tunc a judgment can be made at a subsequent term, but that it must be made upon evidence furnished by the papers and files in the cause, or something of record, or in the clerk’s minute book, or on the judge’s docket. That it can only be employed to correct a clerical error or misprision of the clerk (cases cited).” (Emphasis added)

The theory of this procedural rule is that while a trial court loses jurisdiction of a case it does not lose jurisdiction over its own records and may correct such records to “speak the truth by evidencing an act done or a judgment actually rendered at a prior time but not carried into or faithfully recorded in the record; * * *", Warren v. Drake, supra. The cases are uniform that nunc pro tunc entries are inappropriate and ineffective “to correct judicial errors, mistakes or oversights, or to create a new record.”

The record before this Court is completely devoid of any evidence from the papers and files or in the clerk’s minute book or judge’s docket which reveals a clerical error which would justify the nunc pro tunc order of November 14, 1978 within the above rules, so as to bring the record into compliance with Rule 78.03, supra.

However, this matter may not be permitted to rest upon that simple solution in light of the particular facts of this case. The effect of the original order sustaining the motion for a new trial must be determined in light of the fact that it did not specify of record the ground or grounds on which it was granted and accordingly failed to comply with Rule 78.03. The purpose of this rule is clearly to define and limit the issues cognizable on appeal, at least initially, and thus conserve judicial and legal time and promote clarity and establish reasonable limits to the scope of judicial decisions by confining the appeal to specific issues. This purpose is entirely proper and salutary.

Where the order sustaining the motion for a new trial fails to comply with Rule 78.03, as in this case, the provisions of Rule 84.05(b) are called into application in that the presumption arises that the new trial was erroneously granted and the burden is placed upon respondent to support such action.

However, the presumption is rebutted where the ground upon which the motion is granted clearly appears from the record. The court in Ray v. Bartolotta, 408 S.W.2d 838 (Mo.1966) sustained plaintiff’s motion for a new trial and ordered a new trial on the issue of damages alone. In Ray, the motion averred two grounds upon which a new trial was sought, namely, that the amount of damages awarded to each of the plaintiffs was inadequate and was against the weight of the evidence. The court held that these two grounds were, in fact, only one point of error. The Supreme Court in discussing the application of Rule 84.05(b) [formerly Rule 83.06(b)] said, l.c. 839[3]:

“ * * * No presumption that the trial court erroneously granted the motion for new trial arises in this case, however, for the reason that under this record the ground on which the new trial was granted sufficiently appears of record.”

The court further stated, l.c. 840[3]:

“ * * * The court could have granted a new trial on its own motion and for its own reasons within 30 days after judgment, notwithstanding this motion with stated grounds was pending, 66 C.J.S. New Trial § 115, p. 329, but it did not do so. Instead, it sustained this limited motion based on one and only one ground. By its very act of sustention the court specified the ground on which it acted.” (Emphasis added)

As previously stated, the respondent’s motion for a new trial set forth only three grounds in support thereof. All of these charged the trial court with abuse of discretion with reference to the division of marital property in light of appellant’s earning capacity (No. 1); setting the entire equity in the family home over to appellant (No. 2); and, ordering respondent to pay $300.00 per month child support and thereby failing to consider appellant’s earning capacity (No. 3). Thus, the abuse of discretion charged related solely to matters of fact. The areas of division of marital property and support of children are areas of fact peculiarly within the discretion of the trial court in a dissolution of marriage proceeding, Conrad v. Bowers, 533 S.W.2d 614, 623[18] (Mo.App.1975).

Under Ray, the trial court by its very “sustention” of the motion for a new trial specified that it sustained the motion upon all of the inseparable grounds alleged in the motion.

It is obvious from this record that within a week from the date of the entry of the dissolution of marriage, division of marital property and award of child support decree (while the trial court had complete control over its decree) the trial judge concluded that the discretion granted him in those areas had been improperly exercised. It can further be assumed that the court was aware of the inherent nature of the proceeding decided under the Dissolution of Marriage Act in that proceedings thereunder, “are no less charged with the principles of equity than the old divorce actions”, McCully v. McCully, 550 S.W.2d 911, 914[4] (Mo.App.1977).

Further, the record before this Court shows that the Court on two occasions indicated in the record its conviction that the original decree was “manifestly unfair to the respondent”, once orally at the time the court initially sustained the motion for a new trial, and again in the nunc pro tunc order which has been held herein to be an invalid order.

But the respondent urges that these expressions cannot be here considered. It is true that there is a long line of authority which recognizes that the court can speak only by its records which are the evidence of its official acts and that such records are “the sole repository for the recital of the ground or grounds which prompted the court’s action”. Ponyard v. Drexel, 205 S.W.2d 267, 270[1] (Mo.App.1947), and cases cited therein. However, Ponyard carefully and logically delineates an exception to this rule that while oral statements or memorandum of the judge cannot be used to countervail or impeach what the order of record actually recites (l.c. 270[2]):

“ * * * it does not follow that an appellate court is in all events precluded from considering such memorandum or oral statement in determining precisely why the new trial was allowed. On the contrary, the filing of memorandum opinions is invariably encouraged and commended; and where the record entry is ambiguous, uncertain, or incomplete, an appellate court may properly look to an accompanying memorandum * * * or to the contemporaneous oral statement of the judge, in so far as the same may throw light upon the view the court took of the case during its progress and at the time of its action in granting the new trial. This in accord with the settled principle that extraneous matters may be considered for the purpose of explaining or supporting a record entry, but not to oppose or contradict it. (cases cited)” (Emphasis added) l.c. 270[3, 4]

In view of these facts and principles, this Court holds that the grounds upon which the trial court acted in sustaining respondent’s motion for a new trial are clear and that court has held that proper discretion was not exercised.

This Court on appeal would need strong provocation indeed, to overturn the trial court’s conclusion, that it had not exercised proper discretion in the entry of the original decree. A technical and harmless failure to comply with Rule 78.03, as appears on this record, affords no such provocation.

The judgment below is affirmed.

All concur.

      . On August 2, 1978, the trial court granted appellant an additional 90 days, to November 14, 1978, to file the Transcript on Appeal and such transcript was filed in this Court on November 13, 1978. It is not clear what the court referred to as “transcript”.

      . Rule 78.03 is the last sentence of prior Rule 78.01 which was the same as § 510.330 RSMo 1969 (Laws 1943, p. 353, § 115).

      . The evidence was undisputed that the appellant and respondent each earned about $14,-000.00 a year, and all of the marital property, including the entire equity in the family home was initially set over to the appellant, except a five year old automobile which was awarded the respondent. Neither does the record here presented disclose any great disparity on the element of fault of the parties or unusual drains upon their respective incomes.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Harold MONTGOMERY, Appellant.
    No. 40585.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 30, 1979.
    Robert C. Babione, Public Defender, Terry Burnet, Blair K. Drazic, Asst. Public Defenders, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Gordon L. Ankney, Asst. Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals his conviction by a jury of the charge of stealing a motor vehicle. He was sentenced by the court under the Second' Offender Act to serve a term of five years in the Department of Corrections.

The defendant does not challenge the sufficiency of the evidence. Therefore, it is unnecessary for us to go into a detailed account of that evidence. The state introduced evidence gathered from a joint federal and local police undercover fencing operation which was located at 1831 Chouteau in the City of St. Louis. The operation ran from January 5 to September 8, 1977, during which time all fencing transactions at the store front counter were recorded on video tape.

At trial, the State introduced State’s Exhibit No. 4, a video tape, and played it to the .jury. The exhibit showed a person transacting a sale of a 1975 LTD to the fencing operation for $100. Defense counsel stipulated that the person appearing on the tape was the defendant. The recording was made on July 5,1977, the date on which the victim’s motor vehicle was stolen. On the tape defendant indicated that the car came from Creve Coeur. The victim testified that she had parked her car in the City of St. Louis. Defendant had in his possession a “dent-puller”, a device which can be used to punch out locks on automobiles. The State also introduced another portion of a video tape on which defendant appeared, this being State’s Exhibit No. 3 and in that tape defendant stated his name was Harold Montgomery.

Defendant first contends that the court erroneously found him to be subject to the Second Offender Act. During the trial and out of the presence of the jury, the state introduced certified copies of a judgment of the Circuit Court of St. Louis County convicting defendant of attempted stealing of at least $50. The evidence indicated that the defendant served 142 days on that charge. Initially, the defendant had been charged with attempted burglary. Defendant contends the judgment in that case was invalid on its face because the State failed to file an amended indictment or information charging defendant with attempted stealing of at least $50.

It is clear that certified copies of prior judgments and sentences and prison records which are regular on their faces and proper in form and substance are admissible in evidence. They constitute sufficient evidence to support a trial court’s finding that the Second Offender Act applies to a prosecution. State v. Goff, 449 S.W.2d 591, 593-94 (Mo. banc 1970).

Here, defendant claims that the certified judgment of his first offense was defective because defendant was found guilty without an amended information being filed and therefore, that the court which handled defendant’s first offense failed to have jurisdiction. Defendant relies on Montgomery v. State, 454 S.W.2d 571 (Mo.1971) to support this position. In Montgomery, the record revealed that the plea was entered and defendant sentenced prior to the information being amended or filed. The Missouri Supreme Court held that the court was without jurisdiction and that the judgment and sentence were void.

The facts involved in the case at bar are distinguishable from Montgomery and fall clearly under the purview of Wilkinson v. State, 461 S.W.2d 283 (Mo.1970) because the state’s amendment was made prior to the plea being entered. In Wilkinson the Supreme Court found the filing of an information to be sufficient to give the court jurisdiction to permit amendment by interline-ation. The proposed amendment by inter-lineation was brought to the attention of the trial court in the presence of the defendant with no objection from counsel but was never actually entered. Judge Seiler speaking for the Supreme Court stated: “[I]t would be excessively technical to reverse and remand the conviction on the mere fact that the interlineation was not actually entered.” Id. at 285. Accord, Dumpka v. State, 507 S.W.2d 71, 74 (Mo.App.1974).

In the instant case, the defendant was properly before the court on the charge of áttempted burglary. The charge read that defendant did “burglariously, forcibly break and enteter [sic] dwelling house . with the felonious and burglarious intent to steal. . . . ” Defendant entered a plea of not guilty to the charge on June 7,1974. On September 23, 1974, in the presence of the defendant and his attorney, the State asked leave to amend the charge to attempted stealing over the value of $50. Prosecuting Attorney stated: “This is a copy of the memorandum.” The court then considered the charge amended. Next, defendant’s attorney stated that he waived filing and reading of the amended information, and asked leave to plead guilty to the amended charge of attempted stealing over $50, a misdemeanor. Before accepting defendant’s plea of guilty, the court extensively questioned defendant explaining the range of punishment. The defendant was then sentenced.

It is clear that the proposed amendment was made in the presence of defendant with no objection, such as was done in Wilkinson v. State, supra. Unlike Montgomery v. State, supra, it was never intended that a new amended information be filed in defendant’s case. Apparently, the memorandum was the intended amendment. The defendant was properly before the court on a felony charge. The court had jurisdiction on that charge. The state amended, charging defendant with a misdemeanor. We agree with Judge Seiler’s statement in Wilkinson that to reverse and remand the conviction “under these circumstances would be excessively technical.” The defendant was properly tried under the Second Offender Act.

Defendant next contends that the court erred in withdrawing Instruction No. 5 and submitting in lieu thereof Instruction No. 5a. The substitution occurred after extended deliberation by the jury and in response to a jury question.

The verdict director submitted to the jury allowed the finding of guilty if the jury found, among other elements, that the defendant or another took the automobile. Submitted along with this verdict director was defendant’s converse, Instruction No. 5. This converse required a finding of not guilty unless the jury found “the defendant took the automobile.”

During deliberation, the jury sent the court a note stating that there was no doubt as to defendant’s participation, but that there existed some doubt as to his actions in stealing the automobile. The court then withdrew Instruction No. 5 and submitted Instruction No. 5a which required a finding of not guilty unless the jury found and believed “defendant or another took a Ford automobile owned by Ruby Hickman, and that the defendant knowingly and intentionally aided or encouraged the person to take the automobile. . . ."

The defendant objected to the substitution alleging that it was improper to substitute an instruction after the case had been submitted. Further, he claimed that the instruction was an. improper comment on the evidence.

We find no Missouri case wherein an instruction such as this was substituted after the jury began its deliberation. However, our Supreme Court stated in State v. Sawyer, 367 S.W.2d 585 (Mo.1963); “[The cjourts may withdraw or correct an instruction, and'it is the duty of the court to do so, at any time during the trial, especially before the case has been submitted, if upon reflection the same is considered to [be] erroneously given.” Id. at 588. The defendant’s converse was improper because it was inconsistent with the verdict director which allowed the finding of guilty if the jury found, among other things, that the defendant or another took the automobile. The substituted instruction properly stated the law and the defendant makes no claim that it did not. The defendant claims that he was prejudiced because the instruction was submitted after he had argued the case. However, defendant fails to point to any part of his argument that was affected by the substituted instruction. Neither do we find it to be an improper comment on the evidence.

Although we cannot say that in every case the court can substitute an improper instruction with a proper one after the case is submitted to the jury, the defendant has failed to show and we find no prejudice to defendant by the court’s action in this case.

Defendant finally contends that the trial court erred in allowing the transcripts of two video tapes to be passed to the jury. The two video tapes that were transcribed were State’s Exhibits 3 and 4.

The transcriptions were numbered as exhibits but were not admitted into evidence. No one testified in any respect as to these exhibits. The jury was permitted to follow along as the tapes were being played. Defense counsel objected claiming that the transcripts were never authenticated and that they were an opinion invading the province of the jury.

We believe that the transcripts in this case were improperly placed before the jury. However, we do not find that the defendant was in any way prejudiced by this placement. Other witnesses testified as to statements made by defendant and to what occurred in the room when the defendant sold the automobile to the undercover agents. Furthermore, although the video tapes were viewed and heard by the jury, the defendant makes no objection here to the admission of the tapes. Defendant was given ample opportunity to check the accuracy of the transcripts before they were presented to the jury. On appeal, he makes reference to only one statement which he states is not clear on the tape and therefore could be different in the transcript. We have viewed the video tapes and read the transcripts and find no inconsistencies. Finding no prejudicial error here, we admonish the courts to be very careful in the use of transcriptions.

For what we believe to be an excellent set of guidelines for the use of transcripts see U. S. v. McMillian, 508 F.2d 101, at page 105-106 (8th Cir.1974) wherein Judge Webster speaking for the court states:

The best evidence of the conversation is the tape itself; the transcript should normally be used only after the defendant has had an opportunity to verify its accuracy and then only to assist the jury as it listens to the tape. If accuracy remains an issue, a foundation may first be laid by having the person who prepared the transcripts testify that he has listened to the recordings and accurately transcribed their contents. Cf. Fountain v. United States, 384 F.2d 624, 632 (5th Cir. 1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968). Because the need for transcripts is generally caused by two circumstances, inaudibility of portions of the tape under the circumstances in which it will be replayed or the need to identify the speakers, see United States v. Bryant, 480 F.2d 785, 790-791 (2d Cir.1973); Fountain v. United States, supra, 384 F.2d at 632; United States v. Hall, 342 F.2d 849, 853 (4th Cir.), cert. denied, 382 U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60 (1965), it may be appropriate, in the sound discretion of the trial judge, to furnish the jurors with copies of a transcript to assist them in listening to the tapes. In the ordinary case this will not be prejudicially cumulative. United States v. Fountain [Fountain v. United States,] supra, 384 F.2d at 632. Transcripts should not ordinarily be read to the jury or given independent weight. The trial judge should carefully instruct the jury that differences in meaning may be caused by such factors as the inflection in a speaker’s voice or inaccuracies in the transcript and that they should, therefore, rely on what they hear rather than on what they read when there is a difference. Transcripts should not ordinarily be admitted into evidence unless both sides stipulate to their accuracy and agree to their use as evidence. See gen erally 17 Am.Jur.P.O.F. Tape Recordings as Evidence. §§ 54-56 (1966).

Judgment affirmed.

GUNN and CRIST, JJ., concur.

      . Defendant’s brief concedes: “A memorandum did appear which indicated that the State amends the charge. . . . ”

      . Instruction 5 is Modified MAI.CR 2.14. Also submitted was MAI.CR 2.10 as Instruction 6.

      .“There is some doubt to the actual stealing of automobile by Mr. Montgomery, but his participation is not in doubt. Question. Are we to rule only on Mr. Montgomery stealing of the automobile, /s/ Jesse Henderson, Foreman. P.S. If we are to ruled [sic] only on the stealing of the automobile, the juror’s [sic] cannot come to agreement.”