author: FLANIGAN, Judge.

text:
    STATE of Missouri, Respondent, v. James (Buddy) WILLIAMS, Appellant.
    No. 10420.
    Missouri Court of Appeals, Springfield District.
    July 19, 1977.
    Motions for Rehearing or Transfer Denied Aug. 8, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Fielding Potashnick, Sikeston, Joe Perry Rice, III, Chaffee, for appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

By separate informations defendant was charged with the rape and murder of Brenda Joyce Raines and the murder of Frank Craig, each offense occurring on December 22, 1961. In 1962 the trial of the case involving the murder of Miss Raines resulted in a conviction and a sentence of death. On appeal that judgment was reversed and the cause remanded. State v. Williams, 369 S.W.2d 408 (Mo. banc 1963).

Later in 1963 defendant entered pleas of guilty to the three charges and a life sentence was imposed in each case. In 1969 defendant filed a motion under Rule 27.26 attacking each judgment and sentence on the ground that his plea was involuntary. His attack was successful and the supreme court ordered the setting aside of each conviction and the withdrawal of each plea. Williams v. State, 473 S.W.2d 97 (Mo.1971).

In June 1974, the trial court having previously sustained the state’s motion to consolidate the trials of the three cases, a jury found defendant guilty of the first degree murder of Frank Craig, the rape of Miss Raines and the second degree murder of Miss Raines. A sentence of life imprisonment was imposed for each offense, the sentences to run consecutively. Defendant appealed to the supreme court and that tribunal, noting its lack of jurisdiction, transferred the three cases to this court.

The first of defendant’s 14 “points relied on,” each unavailing, is that the trial court erred in permitting a private attorney, Mr. James A. Vickery, to participate in the prosecution of the cases. In February 1974 the trial court appointed Mr. Vickery “as special assistant prosecuting attorney for this particular case,” the appointment to be “charged to the County of Pemiscot so far as any expenses in connection with his appearance in the prosecution of the case are concerned.” Mr. Art Stephenson was the prosecuting attorney. He informed the court that Mr. Vickery had agreed to serve at his request and with the approval of the county court. Defendant’s counsel introduced the testimony of Mr. Vickery to the effect that he understood the county court was to pay him $500 for acting as special prosecutor. Mr. Vickery had represented the state in the 1962 trial.

In State v. Harrington, 534 S.W.2d 44, 48[2] (Mo. banc 1976) the supreme court held “that the practice of allowing private prosecutors, employed by private persons, to participate in the prosecution of criminal defendants, is inherently and fundamentally unfair, and that it should not be permitted ... in any case tried after publication of this opinion in the Southwestern Reporter.” The Harrington opinion was published in the Southwestern advance sheet of April 20, 1976, almost two years after the instant cases were tried. It seems clear, from the foregoing language, that the ruling in Harrington is inapplicable.

Referring to its prior holdings the court in Harrington at p. 49 said:

“This Court has recognized the inherent vice and potential prejudice arising from the participation of privately retained prosecutors in the prosecution of criminal defendants, but, nevertheless, has yet to strike down a conviction because of a private prosecutor’s participation. The decisions have cast the burden on the defendant to allege and prove prejudice. We have come to believe that, by reason of the public policy enunciated by the Legislature, such a burden is unwarranted.”

For the purpose of this opinion this court will assume that Mr. Vickery was a “private prosecutor,” as the term is used in Harrington, although he was to be paid by the county court rather than by private persons, such as relatives of the victims. The reasons stated in Harrington for precluding the services of “private prosecutors employed by private persons” apply with no more vigor to Mr. Vickery and the circumstances of his employment. He was, perhaps, somewhat more of a public prosecutor than was the special prosecutor in Harrington.

Defendant’s first point must fail because this case was tried prior to the publication of the Harrington opinion and because defendant has not, in his first point, “alleged and proven prejudice.” Nor is such proof found in the facts alluded to in defendant’s argument. As will be seen, the only attack made by defendant upon Mr. Vickery’s trial conduct is leveled at his closing argument and that attack is without merit. The fact that the attorney making the argument was a special prosecutor and not the regular prosecutor would not create prejudice where none existed otherwise.

Defendant’s second point is that the trial court erred in failing to dismiss, on defendant’s motion, Cases 6093 and 6095 because, in those two cases, “defendant was not granted a speedy trial in violation of § 545.920 RSMo and Rule 25.01 (V.A.M.R.).”

The informations in 6093 and 6095 were filed in the Circuit Court of Pemiscot County on February 5,1962. On August 2,1963, the defendant entered a plea of guilty in each case. The only delay of which defendant’s brief complains is the period between February 5, 1962, and August 2, 1963.

The record shows that the following events took place during the period under scrutiny: February 5, 1962—An information was filed in each of the three cases in the Circuit Court of Pemiscot County. March 5, 1962—In each case, Attorney George K. Reeves was appointed counsel for defendant, defendant entered a plea of not guilty, and the case was set for trial on April 6, 1962, “by agreement of the parties.” April 14, 1962—Defendant filed an application for change of venue in each case. April 17, 1962—Each case was transferred to the Circuit Court of Scott County. June 22, 1962—Case No. 6094 was tried, defendant was convicted, and he was sentenced to death. July 8, 1963—Supreme Court of Missouri reversed the judgment in Case No. 6094 and remanded. August 2, 1963—Defendant entered a plea of guilty in the three cases.

Sections 545.890 through 545.920, the latter being the statute on which defendant relies, were discussed in State v. Morton, 444 S.W.2d 420, 423[2] (Mo.1969). Those four statutes, said the court, “prescribe the standards under which a defendant is entitled to be discharged if he is not brought to trial in the time and manner therein provided. They are in the nature of special statutes of limitation and have no counterpart in the Supreme Court Rules. These statutes in effect limit the number of continuances that may be granted the state ‘for cause’ under § 545.780 and Rule 25.01.”

The court in Morton pointed out that Rule 25.01 is a rescript of § 545.780 and said, at p. 423:

“Rule 25.01 and § 545.780 specifically authorize continuances ‘for cause’ and do not purport to be a limitation of the criminal action. The time and manner in which continuances on behalf of the state will entitle the defendant to be discharged are provided by §§ 545.890-545.920. The trial court did not err in refusing to discharge the defendant because of the provisions of Rule 25.01 and § 545.780. State v. Barlish, Mo.App., 421 S.W.2d 558, 559[2], 563[6, 7].”

Accordingly, defendant’s reliance upon Rule 25.01 is not justified.

Equally futile is defendant’s reliance upon § 545.920. With regard to the latter statute and § 545.900, the supreme court in State v. Harper, 473 S.W.2d 419, 424 (Mo. banc 1971) held that “a defendant is not entitled to be released under the statutes in question (assuming the statutory exceptions are not applicable) simply because the required number of terms have elapsed. In addition to that he must show that he has demanded a trial, and that such request was made without success for a reasonable length of time before his right to release has been asserted.” The instant record contains no such showing.

As stated in State v. West, 484 S.W.2d 191 (Mo.1972), where the rule in Harper was reiterated, “We need not comb through the facts to determine whether the number of terms required by statute elapsed, and whether the failure of the case to be tried at such term was due to accused or the State applying for the delay or whether the delay was caused by want of time to try the case, for the reason that there is nothing in the record to indicate that the accused or his counsel at any time made any demand for a trial, or that he made such request ‘without success for a reasonable length of time before his right to release has been asserted,’ as required by the Court en Banc in the Harper case.” West, at p. 194.

Defendant’s second point has no merit.

Defendant’s third point is that the trial court erred “in granting the state’s motion to consolidate these three cases because the crimes therein charged and the informations thereon filed were prior to the effective date of Rule 24.04. Such change was of a substantive rather than a procedural nature and was ex post facto as to these cases.”

Rule 24.04 in its present form became effective on July 1, 1971, which was after the instant informations were filed but pri- or to the trial. Rule 24.04 authorizes charging, “in the same indictment or information in separate counts, or in the same count when authorized by statute,” offenses which are part of the same transaction or which constitute parts of a common scheme or plan. The former version of Rule 24.04 was more narrow in the type of joinder of offenses permitted in one indictment or information.

Rule 24.04 contemplates the joinder of related offenses in the same indictment or information. In the instant case three separate informations were filed. Defendant, however, does not complain about the fact that the three charges were contained in three separate instruments and were not separate counts in the same instrument. His complaint is that the three cases should not have been tried together. He argues that the 1971 amendment to Rule 24.04 was a change “of a substantive rather than a procedural nature.”

This contention is unsound. Rule 24.04 is procedural and not substantive. State v. Johnson, 537 S.W.2d 816, 819[7, 8] (Mo.App.1976); Woods v. State, 546 S.W.2d 14 (Mo.App.1976). “A defendant does not have either a federal or state constitutional right to be tried on only one offense at a time.” State v. Baker, 524 S.W.2d 122, 126 (Mo. banc 1975). The courts have expressed the sentiment that broad joinder is encouraged in the interest of more efficient administration of criminal justice. State v. Brannom, 539 S.W.2d 747, 750 (Mo.App.1976); State v. Johnson, 508 S.W.2d 18, 20 (Mo.App.1974). Indeed there is authority to the effect that, at least in certain instances, the Double Jeopardy Clause requires joinder of all offenses arising out of “a single criminal act, occurrence, episode or transaction.” See Smith v. State, 414 U.S. 1031, 94 S.Ct. 460, 38 L.Ed.2d 322 (1973), dissenting opinions of Justices Brennan, Douglas and Marshall.

Rule 24.04 has been held to be constitutional. State v. Brannom, supra, 539 S.W.2d at 749, and authorities there cited. Brannom, at p. 750[4] also states: “The grant or denial of a severance or separate trials of offenses charged against a defendant is within the discretion of the trial court,” citing federal authorities.

It is true that the defendant in the trial court timely voiced his objections to the state’s motion to consolidate the three cases. However, a defendant somewhat similarly situated also voiced a timely objection to consolidation but was denied appellate relief. State v. Walker, 484 S.W.2d 284 (Mo.1972). There the defendant was charged, by separate counts in the same information, with three separate but related offenses. The trial took place prior to the 1971 amendment of Rule 24.04. The court pointed out that the defendant did not contend that the joinder of the offenses and their simultaneous trial would not have been proper under the amended version of the rule. At p. 286 the court said:

“However, the joinder of distinct felonies . . . does not result in the indictment or information being bad as a matter of law.

“It must be conceded that the then applicable rule did not authorize the State to try appellant for the three offenses in one trial. But, Rule 24.04 is procedural, and in the event the judgment of the trial court is reversed and the cause remanded, the State would then be authorized to retry appellant in the precise manner in which the first trial was held.”

The court then held that the error in Walker was harmless and did not constitute ground for reversal. “At most, we find a procedural error without prejudice.”

Walker’s complaint of improper consolidation was rejected although his case was tried when the former version of Rule 24.04 was in effect. These three cases, tried under the present version, could have been joined in one information and tried at the same time. Since defendant’s point is directed to the aspect of simultaneous trials, and not to the aspect of multiple informa-tions, the propriety of the latter need not be examined.

Defendant’s third point has no merit.

Defendant’s fourth point attacks the action of the trial court in receiving into evidence state’s Exhibit 0, a written statement of defendant. Defendant says that there are three independent reasons why this was error. The reasons are: (a) Exhibit O was not admissible in Case 6093 (the rape of Miss Raines) and Case 6095 (the murder of Craig) “because the trial of these cases began after Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the confession is subject to the holding of that case.” (b) “As a matter of law Exhibit 0 was involuntarily given.” (c) Exhibit 0 “was the fruit of an arrest made without probable cause.”

“Miranda does not apply to any retrial .of a defendant whose first trial commenced prior to June 13, 1966.” Jenkins v. Delaware, 395 U.S. 213, 222, 89 S.Ct. 1677, 1682, 23 L.Ed.2d 253, 261 (1969). On August 2, 1963, defendant entered a plea of guilty in Case 6093 and in Case 6095. In 1969, in a successful Rule 27.26 proceeding, those pleas and the convictions based thereon were set aside. In June 1974 defendant was tried and convicted in all three cases.

The doctrine of Jenkins applies even though the pre-Miranda convictions in Case 6093 and Case 6095 resulted from guilty pleas rather than a trial. United States ex rel. Banks v. Henderson, 514 F.2d 1000, 1001[2] (2d Cir. 1975). See also United States v. Kienlen, 415 F.2d 557, 559 (10th Cir. 1969). In Henderson, as here, the guilty plea, entered pre-Miranda, was set aside and the trial took place post-Miranda.

In Henderson the court stated that there was no basis for distinguishing between a pre-Miranda conviction resulting from a guilty plea and one resulting from a trial. At p. 1001 the court said:

“The rationale of Jenkins was that law enforcement officials who had in good faith relied on then-admissible incriminating confessions to establish their case should not be required, many years after the event, to seek alternative evidence because the confession would be inadmissible under Miranda’s prophylactic rule. 395 U.S. at 220-21, 89 S.Ct. 1677. This policy was equally applicable whether the original proceeding was a trial or a guilty plea.”

It follows that reason (a) is unsound.

In State v. Williams, 369 S.W.2d 408 (Mo. banc 1963), the case involving the murder of Miss Raines, the supreme court set forth at length the evidence concerning the circumstances surrounding the giving of the confession, which is Exhibit 0 here. The evidence in the instant record is substantially the same as that set forth in the 1963 opinion and no useful purpose would be served by restating it. The supreme court concluded at p. 419 that “there was clearly an issue of fact as to whether the oral and the written confessions were voluntary or whether they were involuntary and obtained by mental coercion by reason of lack of rest, sleep, food and continuous questioning. The issue was for the jury and the court did not err in overruling the particular objections.”

The 1963 ruling effectively disposes of reason (b), at least insofar as Case 6094 is concerned. “It is not necessary to notice these matters further because they have been considered and ruled previously.” State v. Tettamble, 450 S.W.2d 191, 192[1] (Mo.1970). With regard to the companion cases, 6093 and 6095, whether or not it was necessary, this court has reviewed the evidence, which is common to the three cases, concerning the giving of Exhibit O, and has reached the same conclusion, that is, that it cannot properly be said that, as a matter of law, Exhibit O was involuntarily given. Reason (b) has no merit.

A sufficient answer to reason (c) is that it is based on the invalid assumption that the arrest of defendant was made without probable cause. “As the officers had knowledge that felonies had been committed, whether the arrest was constitutionally valid depends in turn on whether the officials, at the moment of arrest, had knowledge of facts and circumstances based on reasonably trustworthy information which would justify a prudent person in believing that defendant had committed the offenses. . . . The factual issue of probable cause must be resolved from facts and circumstances peculiar to each particular case, bearing ever in mind the caveat that probable cause can never be satisfied with a bare suspicion of guilt.” State v. Howell, 543 S.W.2d 836, 838[2] (Mo.App.1976).

Here, prior to the arrest of defendant, the officers were in possession of the following information: Miss Raines and Mr. Craig had last been seen alive on the evening of Friday, December 22, 1961; the bodies of both victims were discovered on Saturday morning, December 23; physical evidence obtained at the scene included a portion of a shotgun stock, a spent shotgun shell, and some car keys; the shotgun stock belonged to a neighbor of defendant who had told an officer that defendant had stolen it; defendant had been seen walking near the scene of the crime on Friday evening; the defendant had previously been convicted of a felonious assault upon a woman and his parole had been revoked for attempting to stop an automobile in which a woman was riding.

In view of the foregoing evidence it may not properly be said that defendant’s arrest was made without probable cause.

Defendant’s fifth point is that the trial court erred in allowing testimony of state’s witness Farris “pertaining to certain boots” for these reasons: (a) The boots were not introduced in evidence, (b) The boots were the fruit of an illegal arrest of defendant, the arrest being without probable cause, (c) The boots were the fruit of an illegal search.

Defendant’s brief contains no citation of authority in support of point 5 and is thus violative of Rule 84.04(d). Authority exists to the effect that the failure to supply a citation of authority is an abandonment of the point. State v. Halliburton, 531 S.W.2d 554, 556[5] (Mo.App.1975); State v. Schulten, 529 S.W.2d 432, 434[6] (Mo.App.1975).

Reason (a) need not be considered because no authority is cited in its support and it is not discussed in the argument portion of the brief.

Reason (b) is based upon the invalid assumption that the arrest of defendant was without probable cause, a defect which is common to defendant’s reason (c) under his fourth point. The reasons underlying the rejection of reason (c) there are fatal to reason (b) here.

Reason (c) is invalid because the boots were not found as the result of a search. They were in plain view of the arresting officers when the defendant was arrested in his home. “The mere observation of what is in plain view does not constitute a search. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).” State v. Collett, 542 S.W.2d 783, 786[5] (Mo. banc 1976).

Defendant’s sixth point is that the trial court erred in receiving into evidence state’s Exhibit Q, the barrel of a shotgun. Defendant concedes that this point was not contained in his motion for new trial but seeks appellate review of it under the “plain error” Rule 27.20(c).

However, this court’s review of the record fails to disclose “that manifest injustice or miscarriage of justice has resulted” by reason of the admission of Exhibit Q. Thus Rule 27.20(c) will not be invoked. Additionally the only objection made on appeal to the admissibility of Exhibit Q is that it was obtained as a result of a confession “illegally obtained” from defendant. As that portion of this opinion dealing with defendant’s fourth contention discloses, defendant’s assertion that the confession was “illegally obtained” is not valid.

Defendant’s sixth point has no merit.

Defendant’s seventh point is that the trial court erred in admitting into evidence, on behalf of the state, the testimony of Phillip J. Aquino, M.D. The attacked testimony was a part of the transcript of the 1962 trial of Case No. 6094. The evidence should not have been admitted, says defendant, because: (a) proof of the unavailability of Dr. Aquino was based on hearsay, and (b) the trial judge himself made inquiry into the unavailability of the witness.

It must be emphasized that defendant’s seventh point makes no attack upon the contents of the testimony of Dr. Aquino. His attack is upon the sufficiency of the proof of Dr. Aquino’s unavailability and upon the manner in which that proof, if such it was, was obtained.

In State v. Phillips, 511 S.W.2d 841, 846[15] (Mo.1974) the court discussed the confrontation clause of the Sixth Amendment to the Constitution of the United States, that clause being applicable to criminal proceedings in the state courts by reason of the due process clause of the Fourteenth Amendment. The court pointed out that the same right [confrontation] is protected by the Constitution of Missouri in Art. I, Sec. 18(a). The foregoing provisions of both constitutions are invoked by defendant here in support of his seventh point.

The court, in Phillips, at p. 846 said:

“As stated in Barber v. Page [390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)] ‘It is true that there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. * * * This exception has been explained as arising from necessity and justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purpose behind the confrontation requirement.’

“Missouri has long adhered to the general rule and also to the above stated exception. State v. Jackson, 495 S.W.2d 80 (Mo.App.1973). In State v. Barnes, 204 S.W. 264, 267 (Mo.1918), the court stated the exception: ‘ * * * the sole prerequisites to its [the transcript] admission being, in the absence of any question as to its correctness: (1) A showing that the witness is then dead [or unavailable]; (2) the presence at the time of the taking of the testimony of the defendant; and (3) his right to cross-examine the witness.’ ”

It must be noted that defendant here makes no claim that either element 2 or element 3, as stated in Barnes, supra, is lacking. His contention is that element 1 is lacking, that is, that the state failed to make a showing that Aquino was, at the time of the instant trial, unavailable.

The “Statement of Facts” portion of defendant’s brief contains no mention of Dr. Aquino nor does it contain any citation to any portion of the transcript concerning his testimony or the circumstances leading up to its introduction. The argument portion of the brief contains only scattered references thereto.

This court has examined the voluminous transcript and from it extracted the following information:

The name of Dr. Aquino has been endorsed on the reverse side of each information, together with the names of other state’s witnesses. The trial commenced on June 14, 1974. In a pre-trial proceeding on June 13, with all counsel present, the prosecutor informed the court that Dr. Aquino was not going to be able to testify at the trial; that a subpoena had been issued for Dr. Aquino; and that Dr. Aquino had undergone very serious surgery which had prevented the taking of his deposition, which the defendant had wanted to do. The prosecutor also presented to the court an affidavit from Dr. Aquino, dated February 27, 1974, a letter from Dr. Aquino’s attending physician dated February 26, 1974, and a letter from defense counsel dated May 17, 1974, all dealing with Dr. Aquino’s physical condition. The court stated at that time that those documents “in and of themselves” did not show that Dr. Aquino would not be available for the trial starting the next day.

On the day of the trial, prior to the selection of a jury, the prosecutor informed the court that he had located Dr. Aquino in Baptist Hospital in Memphis, Tennessee. At the prosecutor’s request, and in the presence of counsel for the state and for defendant, the trial judge telephoned Area Code 901 522-7110, the listed telephone number of the hospital. The record shows that defendant’s counsel was offered but declined an opportunity to listen, by use of a telephone extension, to the conversation. The judge dictated into the record the following summary of the conversation:

“I asked the woman who she was and she identified herself as being a Mrs. Mary A. White, who has the title of Admissions Clerk at the Baptist Memorial Hospital. I inquired of her whether or not they had as a patient Phillip J. Aquino and after spelling his name to her she left the line for a few moments and returned reporting that their records as kept in a computer indicated that in Room 1402 Madison East they had a patient by the name of Phillip J. Aquino, whose address was 104 West 11th Street, Caruthersville, Missouri; that he was admitted as a patient on June 9, 1974, and that their records indicate his age to be sixty-six. I thereafter asked that she call that particular floor of the hospital to determine whether or not Dr. Aquino was physically in the hospital at this time. She put me on the hold button and thereafter after some period of time she returned to the phone and advised me that she had checked and that Dr. Aquino was in the hospital today and that their records did not indicate that the doctor was ordering him released today, that there had been no check out plans for today. That was the end of the telephone conversation.”

The court ruled that the element of the unavailability of Dr. Aquino had been established and permitted the state to introduce his prior testimony.

Defendant, in support, of his seventh point, relies primarily upon State v. Brookins, 478 S.W.2d 372 (Mo.1972) and State v. Jackson, 495 S.W.2d 80 (Mo.App.1973). Each of those cases is distinguishable from the situation here.

In Brookins the court was dealing with the admissibility of a deposition of a witness who was in Texas. The deposition was offered by the state. The state made no attempt to secure the attendance of the witness under the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. (Missouri: V.A.M.S. § 491.400-491.450; Texas: Vernon’s Ann.Tex.C.C.P. art. 24.28). The court cited Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), which discussed the exception to the Confrontation Clause of the Sixth Amendment where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant.

In Brookins, at p. 374, the court quoted the following language from Barber:

“In short, a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly.”

Thus, in Brookins, there was no showing of the physical incapacity of the missing witness to appear at the trial and the state had made no attempt to secure her attendance under the Uniform Law cited.

In Jackson the court held inadmissible a deposition which was taken without defendant being present in person and apparently without his knowledge or consent. The court in Jackson, at p. 84, said that “in most situations adequate satisfaction of both the right of confrontation and of cross examination cannot be accomplished by either the defendant or his counsel alone. Counsel could ‘confront’ a witness endlessly without accomplishing the constitutional objective and the defendant would rarely be capable of any effective cross examination. Both defendant and counsel are necessary to turn the spotlight of truth and moral suasion on a witness whose testimony may mean the difference between life and death, freedom or confinement, innocence or guilt.”

On the same page the court discussed situations where testimony was taken in the presence of defendant or of defendant’s counsel but not in the presence of both. The latter, however, is the situation here, so far as the contents of Dr. Aquino’s testimony are concerned.

It is important to note that the defendant does not make either of the following complaints: (1) That the contents of the telephone conversation were not accurately summarized by the court. Significantly his brief states, “Defendant does not question the veracity of the court in relating the telephone conversation.” (2) That the contents of the telephone conversation (assuming they were properly considered by the court) fall short of meaning that the physical condition of Dr. Aquino was such that he could not attend the trial.

Apparently only rarely have the courts had occasion to scrutinize, from the constitutional standpoint, the sufficiency of the showing of the unavailability of a witness as a predicate to the admissibility of evidence of his testimony in a prior proceeding. The United States Court of Appeals for the Eighth Circuit has ruled that in making the factual determination of the question of admissibility, the state need not meet the requirements of the Confrontation Clause, but that the question is governed by “the broader standards of the Due Process Clause.” Howard v. Sigler, 454 F.2d 115 (8th Cir. 1972).

In Howard the defendant was convicted of robbery in state court but that conviction was reversed. At the second trial the state trial court permitted the introduction into evidence of a transcript of one of the state’s prior witnesses. The only foundation laid was the presentation of an affidavit signed by a medical officer to the effect that the witness was physically unable to attend the trial.

The Supreme Court of Nebraska affirmed the conviction, State v. Howard, 184 Neb. 461, 168 N.W.2d 370 (1969), holding that it was within the discretion of the trial court to determine whether the unavailability of the witness had been proved. The Nebraska court said: “The issue as to the availability of the witness was collateral and did not relate to the general issue of the guilt or innocence of the defendant. Although affidavits may not ordinarily be used as primary evidence against the defendant, they may be used in connection with preliminary, collateral, and interlocutory matters.” (Emphasis added)

The U. S. District Court, in a habeas corpus proceeding, disagreed with the Supreme Court of Nebraska and entered an order directing defendant’s release unless Nebraska granted him a new trial. Howard v. Sigler, 325 F.Supp. 272 (1971).

The district court’s judgment was reversed by the Eighth Circuit in 454 F.2d 115, supra. The latter tribunal pointed out that the question of admissibility is one to be determined by the trial judge and not by the jury; that the trial judge has considerable discretion in making “these preliminary factual determinations” and will be reversed only for manifest error; that the Confrontation Clause does not require, in every case, that witnesses be produced in person to present evidence on the question of admissibility; that the Confrontation Clause itself does not require “that all hearsay be excluded from a criminal trial”; that it was not necessary to produce the affiant to give personal testimony as to the unavailability of the witness by reason of illness and that the affidavit itself was sufficient to show that unavailability.

The Eighth Circuit also said, p. 120, that the affidavit “did not relate in any fashion to the guilt or innocence of the accused and it can hardly be characterized as testimony against the accused. It related only to the physical condition of the witness. There is not the slightest suggestion in the record that the facts are anything other than what is stated in the affidavit.” (Emphasis added)

The court also held that there was no denial of due process of law. “The fact of trustworthiness of such affidavit can be readily acknowledged in most cases and in those cases where doubt exists further inquiry could be made. There should be an area of discretion left to the trial judge in matters of this type for the protection of all the parties and for the protection of witnesses and public funds.” At p. 121 the court said:

“Undoubtedly the right of confrontation guaranteed by the Sixth Amendment is fundamental to a fair trial and this right has been zealously guarded throughout our history by the courts. In considering that right we should respect its boundaries. The basic purpose is to afford the defendant the right to confront his accusers and cross-examine them on the issues relating to his innocence or guilt and should not extend to collateral issues unless the collateral issues present a question of due process.”

The court concluded that no federal constitutional infirmity existed in the ruling of the Nebraska Supreme Court.

The attitude of the Eighth Circuit is consistent with the new Federal Rules of Evidence.

It is true that in Howard the affidavit, although hearsay itself, was sworn to and the Eighth Circuit specifically mentioned that fact in holding there was no denial of due process. Neither party to the telephone conversation here, the judge and the admissions clerk, was under oath while that conversation was taking place or while the judge summarized its contents. But the telephone conversation was not the sole basis for the trial court’s ruling. He also had the benefit of the prosecutor’s statements, an affidavit, and two letters, even though the latter documents “in and of themselves” were not regarded by the trial court as sufficient. Defendant concedes that he is not questioning the veracity of the trial judge and his counsel was offered the opportunity to listen to the telephone conversation. Under all these circumstances this court holds that there was no denial of due process and that the trial court did not abuse his discretion in determining that witness Aquino was in fact unavailable. The information as to the unavailability of Dr. Aquino which was in the possession of the court when he made his ruling, appears no less reliable, from the pragmatic standpoint, than the information available to the trial court in Howard.

Although the participation by the judge in the telephone conversation might have been irregular, it was done in good faith, at the request of the prosecutor, in the presence of counsel for both sides, and for a limited and bona fide purpose in connection with a “preliminary, collateral, and interlocutory matter.”

This court holds that defendant’s seventh point has no merit. Even if the holding were otherwise, it would probably not be necessary, at this juncture, to grant a new trial. The case could be remanded for a limited hearing by the trial court to receive evidence on the factual question of the unavailability of Dr. Aquino on June 14, 1974. Defendant would be entitled to a new trial only if the court found that he was then in fact available. Such procedure has been utilized where a question arose as to the voluntariness of a confession, State v. Bridges, 491 S.W.2d 543, 545[2] (Mo.1973); State v. Monteer, 467 S.W.2d 48, 51-2[1] (Mo. banc 1971); State v. Glenn, 429 S.W.2d 225, 237[29, 30] (Mo. banc 1968), and whether the Habitual Criminal Act applies, State v. Dixon, 434 S.W.2d 564, 566[2] (Mo.1968); State v. Holmes, 434 S.W.2d 555, 559[6, 7] (Mo.1968); State v. Garrett, 416 S.W.2d 116, 120[7-9] (Mo.1967).

Defendant’s eighth point is that the trial court erred in failing to grant defendant’s motion for acquittal “at the close of the state’s evidence” because of an alleged factual deficiency. This court has examined the transcript and there is no such deficiency. Moreover, at the close of the state’s case, the defendant offered evidence and, in so doing, he waived any claim of error as to his motion of acquittal filed at the close of the state’s case. State v. Benfield, 522 S.W.2d 830, 831[1] (Mo.App.1975). Defendant’s eighth point has no merit.

Defendant’s ninth point is that the trial court erred in admitting state’s Exhibits M and N. Defendant’s brief contains no citation of authority in support of this point and thus violates Rule 84.04(d). See additional authorities cited in the discussion of defendant’s fifth point. A gratuitous review of the defendant’s ninth point discloses that it is in fact without merit. A discussion of its particulars would serve no precedential purpose.

Defendant’s tenth point alleges error on the part of the trial court in admitting into evidence photographs (Exhibits G, H, I, and K) of the two victims. His point states no reason why the exhibits should not have been admitted. This court has examined the exhibits and although they are gruesome, they have probative value and the court did not abuse its discretion in admitting them. State v. Jones, 515 S.W.2d 504, 506[7] (Mo.1974). Defendant’s tenth point has no merit.

Defendant’s eleventh point is that the trial court erred in not granting a mistrial by reason of a portion of the closing argument of counsel for the state. His point fails to state what portion of the closing argument was allegedly erroneous or why it was erroneous. His statement of facts makes no mention of the incident. A gratuitous reading of the argument portion of the brief shows that his complaint is a scattered one directed to several portions of the argument. This court has reviewed each of these portions and finds no error on the part of the trial court in refusing to grant the drastic remedy of a mistrial. State v. Wright, 515 S.W.2d 421, 432[8] (Mo. banc 1974); State v. Robinson, 516 S.W.2d 40, 44[4] (Mo.App.1974); State v. Phelps, 478 S.W.2d 304, 307-8[8] (Mo.1972). Defendant’s eleventh point has no merit.

Defendant’s twelfth point is: “The court erred in giving instruction No. 7.” Similar attacks, similarly stated, are made in point 13 (instruction No. 11) and point 14 (instruction No. 15). None of these three points preserves anything for review for the reason that they fail to state “wherein and why” the giving of the instruction is claimed to be erroneous, Rule 84.04(d). This court has gratuitously examined each of the challenged instructions in light of the attacks made upon them in the argument portion of defendant’s brief. None of the instructions is subject to any of the imperfections assigned and each is factually supported.

This court expresses its gratitude to Hon. Fielding Potashnick and Hon. Joe Perry Rice III, who represented the defendant on this appeal and did so without compensation.

There is no error in the matters reviewed pursuant to Rule 28.02.

The judgments in all three cases, No. 6093, No. 6094, and No. 6095, are affirmed.

HOGAN, J., concurs.

BILLINGS, C. J., disqualified.

      . In the trial court the cases bore these numbers: No. 6093 (rape), No. 6094 (murder of Miss Raines), and No. 6095 (murder of Craig).

      . See State v. Baker, 524 S.W.2d 122, 126 (Mo. banc 1975) Footnote 3, containing the former and present versions of Rule 24.04. See also State v. Morgan, 539 S.W.2d 660, 663-665 (Mo. App.1976) for a review of the “decisional law and the purpose of the 1971 amendment of Rule 24.04.”

      . In the case at bar defendant does not contend that the present version of Rule 24.04 would not have permitted the joinder of the charges in one information. His attack is on the validity rather than the applicability of Rule 24.04.

      . “The knowledge of one officer participating in an investigation is the knowledge of all participating officers.” United States v. Heisman, 503 F.2d 1284, 1290 (8th Cir. 1974). See also State v. Pruitt, 479 S.W.2d 785, 788 (Mo. banc 1972).

      . “It is customary in federal courts to accept statements of . counsel as to unavailability of witnesses as a predicate to the use of a deposition.” Castilleja v. Southern Pacific Company, 445 F.2d 183, 186 (5th Cir. 1971).

      . This court, pursuant to Rule 81.12(c) directed the clerk of the trial court to send up the original subpoena. The sheriffs return thereon shows that witness Aquino was personally served with the subpoena by the sheriff in Pemiscot County on May 30, 1974. The subpoena commanded him to appear at the trial on June 14, 1974.

      . Cert. den. 409 U.S. 854, 93 S.Ct. 188, 34 L.Ed.2d 98 (1972).

      . “At a trial, the adverse party has a right to be confronted by the witnesses against him, if possible, and is entitled to the general protection of the rule excluding hearsay evidence; consequently, affidavits are not, as a rule, admissible in the trial as independent evidence to establish facts material to the issues being tried.” 3 Am.Jur.2d Affidavits § 29, p. 404.

      . Federal Rules of Evidence are contained in 28 U.S.C.A. See Rule 104(a), Rule 1101(b) and Rule 1101(d)(1).

      . “As evidence of the witness’s [unavailability], replies received during the search ought to be admissible; whether or not they are testimony in themselves, they serve as circumstances indicating due diligence of the party in seeking the witness . . This is one of the spots in the law where the inflexible technical application of the hearsay rule most often defies common sense.” 5 Wigmore, Evidence § 1414 (Chad.Rev.1974), p. 238. The first sentence is quoted with approval in Cacioppo v. K. C. Pub. Serv. Co., 234 S.W.2d 799, 800 (Mo.App.1950).

      . On July 1, 1976, pursuant to an order of this court, the trial court vacated the sentences previously imposed, granted allocution, and imposed the instant sentences, exercising its judicial discretion to impose consecutive rather than concurrent sentences. The resentencing was prompted by State v. Baker, 524 S.W.2d 122, 126-131[5-7] (Mo. banc 1975).


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    Robert C. MOORE, etc., et al., Plaintiffs-Appellants, v. Keith WATSON et al., Defendants-Respondents.
    No. 38358.
    Missouri Court of Appeals, St. Louis District, Division 1.
    July 19, 1977.

      W. W. Sleater, Clayton, for appellants.
    David A. McMahon, St. John, for respondents.
   SMITH, Judge.

Plaintiffs appeal from the order of the Circuit Court dismissing their amended petition for recovery for the wrongful death of their minor, unmarried son.

Plaintiff Robert C. Moore filed the original petition on the second anniversary of the death of Theodore Moore. Robert alleged he was the administrator of the estate of Theodore, that Theodore was an unmarried minor with no children. The petition set out that Theodore’s next of kin were: Robert C. Moore, his father, Maurie Delores Moore, his mother, and nine brothers and sisters. The petition further alleged that the named father and mother were entitled to the support and wages of the deceased, were damaged by his death and had incurred expenses as a result of that death.

Approximately a year after the original petition was filed, plaintiffs filed an amended petition brought by Robert C. Moore, individually and as administrator, and by Maurie Delores Moore. The allegations of Theodore’s minority, marital and nonante-cedent status, and the listing of heirs was again set forth. Both petitions were directed against Keith Watson, a minor, and his parents William and Leonora. The allegations of negligence against the parents were that they “negligently and carelessly permitted the said Keith Watson to drive the said motor vehicle” in which Theodore was killed, that Keith was seventeen and subject to the supervision and control of his parents. It further alleged that his parents were aware that Keith’s license had been suspended, that he had driven recklessly in the past, and was likely to do so in the future, that an “automobile became a dangerous instrumentality when in [his] hands because they knew he was an immature, incompetent and reckless minor,” that Keith drank intoxicating liquor and when doing so was prone to habitual recklessness, and that knowing these matters his parents “negligently and carelessly permitted] their son to drive the vehicle in which Theodore William Moore was a passenger at the time of his death.”

The trial court sustained all defendants’ motions to dismiss because the Administrator was an improper party and the individual plaintiffs were barred by limitations. It also sustained the motion of the parent defendants to dismiss for failure to state a cause of action against them.

The administrator was not a proper party to bring the lawsuit because there was a father and mother. Sec. 537.080(3) RSMo 1969. It is also clear that the parents are barred by limitations unless the amended petition relates back to that filed originally by the administrator. Sec. 537.-100 RSMo 1969.

The rule to be applied is stated in Forehand v. Hall, 355 S.W.2d 940 (Mo.1962) [7-9]:

“The rule in this state is that where a suit for wrongful death is instituted within the one year period of limitation by one who has no legal right to maintain the suit in the capacity in which suit is filed but who has a beneficial interest in the subject matter of the action, which interest plaintiff alleges by intendment, . . . or is filed by some, but not all, of the persons entitled to bring such action, ... the substitution by amendment of the plaintiff suing in the proper capacity, or the joinder of the necessary additional parties plaintiff, after the lapse of the one-year period, will relate back to the time of filing the original action and the intervening running of the statute of limitations will not bar the maintenance of the suit by the substituted plaintiff; but where the original action is improperly filed by a stranger to the action who has no legal or beneficial interest in its subject matter, the substitution of a proper party plaintiff after the statute of limitations has run will not relate back, but will be treated as a new action, which is barred by the statute of limitations.”

We find it unnecessary to collate and discuss the many cases in this state dealing with this problem. That has been adequately done in State ex rel. Kansas City Stockyards v. Clark, 536 S.W.2d 142 (Mo. banc 1976) and State ex rel. Jewish Hospital v. Buder, 540 S.W.2d 100 (Mo.App.1976). It is sufficient to say that this case is nearly identical to, and is controlled by, Slater v. Kansas City Terminal Railway Company, 271 S.W.2d 581 (Mo.1954) and fits into the first category of cases discussed in the preceding quotation from Forehand v. Hall, supra.

Robert C. Moore had no legal right to maintain this suit as administrator. He did, however, have a beneficial interest as an individual in the subject matter, which interest was specifically alleged in his original petition. The amended petition substituted him in his proper capacity and joined a necessary party, his wife. That amendment, under those circumstances, related back to the original pleading so as to avoid the bar of limitations.

In reviewing whether plaintiffs have stated a cause of action against the defendant parents we determine only whether the facts as pleaded and the reasonable inferences therefrom would if true allow a recovery under any theory. We find here they do. The allegations viewed generously, charge that the parents permitted their son to drive a motor vehicle knowing his license was suspended, that he had a history of drinking and driving recklessly. Such allegations state a cause of action for the negligence of the parents in entrusting to the minor an instrumentality which, though not necessarily a dangerous thing of itself, is likely to be put to a dangerous use because of the known propensities of the child. See National Dairy Products Corp. v. Freschi, 393 S.W.2d 48 (Mo.App.1965); Dinger v. Burnham, 360 Mo. 465, 228 S.W.2d 696 (1950); Lix v. Gastian, 261 S.W.2d 497 (Mo.App.1953).

We add, however, a caution. Plaintiffs have rather artfully drafted their petition so that it is not completely clear whether their theory is that heretofore discussed or whether it is a general failure of the parents to exercise parental control over their seventeen year old son. There is, for instance, no indication in the petition of the ownership or control of the motor vehicle driven by Keith, other than the allegation that defendant parents “permitted” Keith to drive it. Several allegations of negligence appear to be based upon a theory that the parents failed in a general way to keep automobiles out of the hands of their son. Generally, parents are not liable for the torts of their children simply because of the relationship between them. There are exceptions to this general rule. See National Dairy Products Corp. v. Freschi, supra, [6, 7]. Our holding here is limited solely to the allegations supporting a theory of liability that the parents were negligent in entrusting their minor son with an instrumentality likely to be put to a dangerous use because of the minor’s known careless propensities or because it was illegal for him to operate it. We are in no way ruling that the petition states a cause of action for general failure of a parent to exercise supervision and control over a seventeen year old minor. The petition here appears particularly subject to a motion for more definite statement. If such statement, or other developments, in the case, reveal that plaintiffs are proceeding on a theory other than the one specifically upheld here, the trial court is authorized to take such action as is called for by the law of Missouri. In short, our opinion is the law of the case only upon the specific theory discussed and not upon other possible theories encompassed by the generality of plaintiff’s petition.

The order of the trial court dismissing the petition of Robert C. Moore as administrator of the estate of Theodore William Moore is affirmed. The order of the trial court dismissing the petition of Robert C. Moore individually and Maurie Delores Moore is reversed and the cause remanded for further proceedings.

CLEMENS, P. J., and DOWD, J., concur.


text:
    Virginia JESSUP, Executrix of the Estate of Henrietta Pursley, Deceased, Plaintiff-Respondent, v. Dallas L. PURSLEY and Anita R. Pursley, his wife, Defendants-Appellants.
    No. 38058.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 19, 1977.
    Thomas J. Briegel, Union, for defendants-appellants.
    Hansen, Stierberger & Hartley, E. A. Stierberger, Union, for plaintiff-respondent.
   SMITH, Judge.

Defendants appeal from the action of the trial court in granting plaintiff’s motion for judgment in accordance with her motion for directed verdict following a jury verdict for defendants. Plaintiff, as executrix of the estate of Henrietta Pursley, brought her action against defendants to recover principal, interest and attorney’s fees on two promissory notes executed by defendants and payable to Ms. Pursley. The court entered judgment in favor of plaintiff for the full amount of the principal, interest from August 4, 1974, and attorney’s fees.

Defendants admitted the execution of the notes and that they had not repaid the principal. The last interest payment was made on August 4, 1974. Their defense was that on August 4,1974, Henrietta made a gift of said note to defendants, and thereby “resolved the Defendants of any obligation to Plaintiff.” Defendant, Dallas Purs-ley, was the son of Henrietta’s deceased husband’s brother — a nephew by marriage.

In reviewing the action of the trial court we look only to the evidence favorable to the jury verdict and ignore the evidence of plaintiff unless it benefits the defendant. We also ignore evidence presented by the defendants tending to show overreaching by plaintiff as an individual in connection with Henrietta’s will as such evidence has no relevance to the question presented by defendant’s defense. As so limited the evidence was as follows:

(1) On August 4,1974, when Dallas Purs-ley paid Henrietta the semi-annual interest, Henrietta requested plaintiff to bring the notes to her, but plaintiff brought only a record of the interest payments. There is no evidence that Henrietta insisted upon having the notes or objected to what plaintiff brought her.
(2) Sometime after August 4,1974, plaintiff called a friend of Henrietta’s and said: “Aunt Etta’s mind is gone. You can’t guess what she did — what she wanted to give to Dallas Pursley . . .. She said she wanted to turn over the note to Dallas Pursley and said he paid enough money; that she didn’t want anymore.”
(3) No interest payment was made after August 4,1974, and no demand was made for such payment by Henrietta.
(4) Henrietta died in June 1975, at age 97.
(5) The notes were in the possession of Henrietta at the time of her death. There was no indication on the notes or in any other writing that the notes had been paid, forgiven, or discharged.

On this state of facts the court correctly entered judgment for plaintiff. Execution of the notes and non-payment was admitted. The evidence does not, as a matter of law, establish the affirmative defense of gift. The essentials of an inter vivos gift of personal property are (1) a present intention to make a gift, (2) delivery, either actual, constructive or symbolic, and (3) acceptance. In re Estate of Wintermann, 492 S.W.2d 763 (Mo.1973). Proof of intention alone does not suffice without proof of conduct showing the carrying out or fulfillment of the intention. Napier v. Eigel, 350 Mo. 111, 164 S.W.2d 908 (Mo.1942) [1-4]. Delivery requires some conduct on the donor’s part indicating a change of the character of her possession. Napier v. Eigel, supra, [1-4].

The evidence here does not show a present intention on Henrietta’s part to make a gift. At most, it indicates she considered the matter. Certainly there is no evidence of delivery. No writing was executed, no mutilation or destruction of the notes occurred, and no attempt was made to place the notes into defendant’s possession actually, constructively or symbolically. The status of the notes was not altered in any respect by Henrietta at or after the August 4 meeting with Dallas. The subsequent non-payment of the February interest and the absence of evidence of any demand are insufficient to establish a gift.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


text:
    Brenda DAVIS, Petitioner-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION, Division of Employment Security, and Lutheran Charities Association of St. Louis, Respondents.
    No. 38371.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 19, 1977.

      James W. Sherby, Legal Aid Society of City and County of St. Louis, St. Louis, for petitioner-appellant.
    Rick V. Morris, Terry C. Allen, Div. of Employment Security, Charles B. Fain, Labor and Industrial Relations Com’n, Jefferson City, for Labor and Indus. Relations Com’n.
    Karl E. Holderle, Jr., St. Louis, for respondent Lutheran Charities Assn.
   SMITH, Judge.

Petitioner appeals from a judgment of the Circuit Court affirming the finding of the Industrial Commission that petitioner voluntarily left her employment and was therefore disqualified from unemployment benefits until she had earned wages equal to ten times her weekly benefit amount. Sec. 288.050.1(1) RSMo 1969. We affirm.

Brenda Davis worked as a nurse attendant for Lutheran Medical Center, for three years. On July 25,1974, Ms. Davis was put “on probation for 30 working days” because of patient complaints of her behavior, absenteeism, and “poor work record”. Her immediate supervisor, on whose recommendation the suspension was imposed, recommended also that “[if] during this time there is a complaint or unexcused absenteeism . . . [Ms. Davis’] employment at Lutheran Medical Center be terminated.”

Some time in November, 1974, “near the end of the month” another patient complaint was received. No disciplinary action was taken on that complaint. On November 27, 1974, Ms. Davis filed with the Director of Nursing Services at the Medical Center a request for “a maternity leave of absence” to be effective from December 16, 1974, to August 15, 1975. The request was disapproved on December 5, 1974, “[i]n accordance with the recommendation of Mrs. Gertrude Spreen, Director of Nursing Services”.

These recommendations are set out here in full:

“We recommend that this request not be granted due to Miss Davis’ past work record. Again, we have received complaint from patient of her attitudes for which Miss Davis had previously been put on probation and was given a warning that if any more complaints occurred that she would be terminated. The date of her disciplinary action was July 25,1974.”

Appellant worked until December 15, 1974. She gave birth on January 25, 1975. She did not seek reemployment with Lutheran Medical Center when, on March 10, her doctor “released” her as able to work. Instead, Ms. Davis filed a claim for unemployment compensation benefits on February 28, 1975. That claim listed the “Separation Reason” as “Quit.”

A deputy determined that petitioner-appellant had left her work voluntarily without good cause attributable to her work or to her employer. Therefore she was disqualified to receive benefits pursuant to Section 288.050.1(1) RSMo 1969 until she earned wages equal to ten times her weekly benefit amount. Petitioner appealed and the appeals referee affirmed the decision of the deputy. An application for review of the appeals referee’s decision was denied by the Commission.

Appellant contends that the trial court erred in affirming the Commission’s decision because “the evidence upon the whole record substantially shows she is entitled to benefits as a discharged worker.” She argues that looking at “the ‘pressure of the circumstances’ to determine if the claimant quit or was discharged” the denial of the leave of absence for the reasons given by the employer acted as a constructive discharge of the employee.

When reviewing decisions of the Labor and Industrial Relations Commission, we are bound by Section 288.210 RSMo 1969:

“In any judicial proceeding under this section, the findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.”

We hold that the Commission could reasonably find on the evidence presented to it that the claimant was not “discharged” within the meaning of § 288.050.2 RSMo 1969. The law is clear in Missouri, and petitioner does not contend otherwise, that termination of employment by an employee because of pregnancy is a voluntary termination “without . . . good cause attributable to [the] . . . [employee’s] work or to . . . [her] employer.” See Bussmann Manufacturing Co. v. Industrial Commission, 335 S.W.2d 456, 460 (Mo.App.1960); Neeley v. Industrial Commission, 379 S.W.2d 201 (Mo.App.1964).

Petitioner argues that under the “pressure of the circumstances” the employer’s actions constituted a discharge. Among the circumstances on which she relies is the fact that the employer had previously informed the claimant that another patient complaint would cause her to be discharged. This warning was given by the employer when it adopted the recommendation of the Director of Nursing Services as its reasons for placing Ms. Davis on probation in July. The warning, however, stated that her employment would be terminated if another patient complaint was made during the 30 working day suspension period. The complaint which was received was in late November, well after the probation period and no disciplinary action was initiated because of it. The Commission could reasonably have found that this was not a circumstance the pressure of which “compels termination by the employee”. Kilgore v. Industrial Com’n., 337 S.W.2d 91, 99 (Mo.App.1960).

Appellant correctly states that the pressure of the circumstances test, developed in Kilgore v. Industrial Com’n., supra, was approved by our Supreme Court in Medical West Building Corp. v. E. L. Zoernig & Co., 440 S.W.2d 744, 748 (Mo.1969) as follows:

“[A]n employer may by its conduct either directly or indirectly force an employee to resign, without his resignation being voluntary . . . .” Medical West Bldg., Corp. v. E. L. Zoernig & Co., supra, at 749. The Court states, however, that “pressure” is an essential element of this test. From its definition of pressure as constraint, a squeeze, or force, it decides: “[t]he proper legal test, therefore, to be applied in determining whether [the employee’s] quitting was the result of [the employer’s] action was whether it resulted from pressure, constraint, or force exerted by [the employer].” (emphasis added).

Respondent, Lutheran Medical Center, denied Ms. Davis’ request for a maternity leave of absence “due to Miss Davis’ past work record.” Under Lutheran Medical Center’s established policy, leaves of absence are completely discretionary with the employer. Petitioner’s leaving was because of her pregnancy, a voluntary leaving under Missouri law. Employer refused her a leave of absence, a discretionary act within the established employment policies.

The statement in Medical West, supra, l.c. 750 is apposite here:

“It may be true that plaintiff desired Zoernig out as building manager and that he was glad to see him go and that by his conduct he did nothing to encourage him to stay, but we do not believe that the evidence fairly considered disclosed any conduct on the part of the plaintiff constituting pressure or force on Zoernig which resulted in his termination being involuntary.”

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


text:
    William Wentworth FOSTER, Appellant, v. STATE of Missouri, Respondent.
    No. 38237.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 19, 1977.
    Huck, Kasten & LaBeaume, Graham W. LaBeaume, St. Louis, for appellant.
    John D. Ashcroft, Preston Dean, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Petitioner appeals from the order of the circuit court denying his motion to vacate sentence under Rule 27.26. Petitioner was tried and convicted of rape and was sentenced to 20 years imprisonment by the trial court pursuant to the Second Offender Act, Sec. 556.280 RSMo 1969. This conviction was affirmed on appeal. State v. Foster, 501 S.W.2d 33 (Mo.1973).

Petitioner’s sole attack is that the information inadequately charged facts bringing him under the provisions of Sec. 556.280. . That information charged:

“That William Wintworth (sic) Foster in the City of St. Louis, State of Missouri on the 9th day of April 1970, in the Circuit Court was duly convicted of the offense of Carrying Concealed Weapon, and in accordance with said conviction was duly sentenced by said Court to an imprisonment in the Workhouse of the City of St. Louis, for a term of ninety days, and that the said William Wintworth (sic) Foster was given Jail time from the 5th day of November, 1969.”

It is petitioner’s contention that the information fails to allege that after sentencing he was “subsequently placed on probation, paroled, fined or imprisoned therefor

Since petitioner’s attack is directed solely at the information we need not consider whether the evidence adduced at trial was sufficient to bring petitioner within the provisions of the Second Offender Act. In fact, it was, and that evidence indisputably established that petitioner was confined in the Workhouse until April 27, 1970, and that the allegations of the information were incorrect as to the period of jail time allowed.

Petitioner did not raise his present attack either in his original trial or on direct appeal. We review the contention advanced upon the basis that collateral attack can be made only if the information is so obviously defective that by no reasonable construction can it be said to charge the offense for which petitioner was convicted. DeLuca v. State, 465 S.W.2d 609 (Mo.1971); Turnbough v. State, 533 S.W.2d 609 (Mo.App.1975); Montgomery v. State, 529 S.W.2d 8 (Mo.App.1975).

In State v. Ellifrits, 459 S.W.2d 293 (Mo. banc 1970) [1] the Supreme Court held that any allegation which necessarily infers that defendant was imprisoned is sufficient for purposes of the information. It is further apparent from the statute that the operative facts which trigger the statute are conviction, sentence and punishment. Petitioner here was clearly convicted and sentenced. The information also indicates he was punished. The allowance for jail time served as a credit against his sentence. In contemplation of law, that jail time is considered as imprisonment subsequent to sentencing. The confinement of a defendant prior to trial is custodial in nature. It is not, under the law, a punishment until he is convicted and sentenced. When that confinement is allowed as a credit against the sentence imposed, it is converted into imprisonment pursuant to the sentence and is treated as if the defendant had served it pursuant to and subsequent to the sentence imposed. Here the information specifically advised the defendant and the court that the imprisonment relied upon to trigger the Second Offender Act was jail time credited against and (as erroneously alleged) completely offsetting the sentence imposed. Under State v. Ellifrits, supra, and the provisions of Sec. 556.-280 the allegations were sufficient to invoke the Second Offender Act.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


text:
    Ernest STOVALL, Appellant, v. McQUAY NORRIS MANUFACTURING CO., Respondent.
    No. 38031.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 19, 1977.

      Dolgin, Juncker, Beilenson, Joseph J. Dol-gin, Clayton, for appellant.
    Luke, Cunliff, Herr, Chavaux, Hilgen-dorf, McCluggage & DeYong, Robert W. Herr, St. Louis, for respondent.
   SMITH, Judge.

Plaintiff appeals from the judgment of the Circuit Court affirming the decision of the Industrial Commission denying plaintiff workmen’s compensation benefits. The Commission found that plaintiff sustained an accident but that he had failed to establish that that accident — a slip — caused a hemorrhage in his eye causing the permanent loss of vision in that eye.

The Commission found the testimony of the employer’s witness, Dr. Lewin, “more convincing and logical” than that of plaintiff’s medical witnesses on the question of causation. On our review of the record we find that there was competent and substantial evidence upon which the Commission could base its award. There was medical evidence which refuted plaintiff’s claim of causation. Having found competent and substantial evidence to support the Commission’s award, we must affirm. Smith v. Terminal Transfer Company, 372 S.W.2d 659 (Mo.App.1963) [1]. Finding further that an extended opinion would have no precedential value we affirm the judgment pursuant to Rule 84.16(b).

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


text:
    STATE of Missouri, Respondent-Plaintiff, v. Wilbert ASHTON, Appellant-Defendant.
    No. 37914.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 19, 1977.

      Raymond I. Harris, Jess W. Ullom, Clayton, for appellant-defendant.
    John D. Ashcroft, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, George Á. Peach, Circuit Atty., John P. White, Asst. Circuit Atty., St. Louis, for respondent-plaintiff.
   SMITH, Judge.

Defendant appeals from his conviction of manslaughter and seven year sentence following a jury verdict. We affirm.

At approximately 3:30 p. m. on July 9, 1974, nineteen year old Elizabeth Spring-meyer was shot to death by a sniper while purchasing produce from a produce truck at Riverview and Lillian in the City of St. Louis. Defendant lived in a house approximately 150 feet from the location of the truck. Two young men, friends of defendant, testified that defendant fired the fatal shot. A .22 rifle found hidden in the ceiling of defendant’s basement was determined ballistically to be the murder weapon. Following his arrest and while being taken to Juvenile Court, defendant spontaneously stated he had not killed the girl, but knew where the gun was located. Defendant does not challenge the sufficiency of the evidence.

Defendant’s first attack is upon the action of the trial court in refusing to allow defendant’s counsel to argue that an inference of unfavorable testimony could be drawn from the State’s failure to produce two witnesses. The witnesses were friends of defendant, present in the basement from which the shot was fired at the time of the shooting. The State had been unable to locate one witness before trial and the lawyer for the second had advised the prosecutor that his client would invoke the Fifth Amendment if called. We find no error in the court’s action. One witness was not available, the other would not testify, and neither, in view of their friendship with defendant, might reasonably be expected to give testimony favorable to the State. See State v. Wallach, 389 S.W.2d 7 (Mo.1965) [4-6].

Defendant’s other point on appeal is that the court committed plain error in allowing testimony concerning defendant’s statement that he had not killed the girl but knew where the gun was. This evidence was not objected to, no motion for a hearing on voluntariness was made, and the matter was not raised in the motion for new trial. In the absence of an objection or a request for hearing, the court is not required to conduct an evidentiary hearing sua sponte. State v. Blanchard, 527 S.W.2d 37 (Mo.App.1975) [1,2]. Because of the failure to raise the matter below, the record before us does not warrant a conclusion that the statement was improperly admitted. The evidence by the officers involved was that they were transporting defendant to the juvenile center as required by law (defendant was 16 years 11 months old at the time of the offense) when he spontaneously and without questioning or urging made the statement. While defendant contends he was not accorded his Miranda warnings, the record does not indicate whether he was or was not, again because of the failure to object. If the statement was spontaneous, the absence of Miranda warnings would make no difference. We find no error, much less plain error.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.

      . Defendant was certified for trial as an adult by the Juvenile Court.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Sylvia RIVERS, Defendant-Appellant.
    No. 38205.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 19, 1977.

      Ben J. Weinberger, St. Louis, for defendant-appellant.
    Thomas W. Shannon, Pros. Atty., Lawrence E. Manion, Jr., Asst. Pros. Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Defendant was convicted in the City of St. Louis, in a court-tried case, of delivery for no remuneration of less than 25 grams of marijuana, a misdemeanor. She was fined $100 and appeals.

Defendant is 21 years old and a student at Forest Park Community College with no prior conviction. The facts leading to her conviction are as follows: On November 23, 1975, two detectives in plain clothes attended a party on East College Avenue in the City of St. Louis. This party was advertised on handbills as a party to raise funds for students at Forest Park Community College, and each police officer was charged $1.50 admission. Bernard Dotson was the host, and he and defendant were tending bar.

Defendant served Officer Parks a cup of wine and then Dotson asked him if he wanted a cigarette. Officer Parks replied, “Yes, I would; I’d like one.” Officer Parks further testified: “Then he (Dotson) directed Sylvia Rivers to hand me a cigarette. She reached behind the counter and got a hand rolled cigarette and handed it to me and it was later learned to be marijuana.” A police test verified that the cigarette was marijuana.

This was the extent of the State’s evidence against the defendant. There was no evidence that marijuana or other drugs were being used on the premises on this occasion.

At the end of the State’s case, the defendant’s attorney made a motion to dismiss on the grounds that the State “failed to make its case.” In his motion the defendant’s attorney argued that there was no evidence that the defendant had any knowledge that the cigarette was marijuana. This motion was denied.

Based on the evidence before the Court we believe that the defendant’s motion should have been granted because of the complete lack of any evidence to show knowledge by the defendant that the cigarette was marijuana.

After defendant’s motion to dismiss was denied, the defendant testified as follows: That the party that night was given to raise tuition money for college students, and that she was helping by playing records and serving drinks. She stated she was putting on a record when Dotson handed her a cigarette from behind the bar and said “Hand it to this fellow.” She did not know it was marijuana because she had never seen marijuana before, and did not know of anyone smoking marijuana at the party. She did not notice if the cigarette had a name brand on it or a filter because she was occupied putting a record on the record player when she handed the cigarette to the officer.

Defendant’s attorney failed to file a motion for judgment of acquittal at the end of the whole case.

The State argues that the defendant’s motion for judgment of acquittal at the end of the State’s case was not preserved for review because the defendant subsequently testified in her own behalf. This is true except that we are still required to examine the record to determine whether the evidence was sufficient to make a submissible case. State v. White, 439 S.W.2d 752, 753[2] (Mo.1969); State v. Manns, 537 S.W.2d 673, 675[1] (Mo.App.1976); State ex rel. Ryan v. Holt, 499 S.W.2d 821, 823[2] (Mo.App.1973).

Defendant raises on this appeal the sufficiency of the evidence to support the conviction arguing that there is a total lack of knowledge on the part of defendant that the cigarette was marijuana. We review this contention notwithstanding the fact that defendant testified after the court denied the motion for judgment of acquittal at the end of the State’s case and failed to file a similar motion at the end of the whole case because “. . .if the evidence is not sufficient to sustain the conviction, plain error affecting a substantial right is involved from which manifest injustice must have resulted. S.Ct. Rule 27.20(e), V.A.M.R.” State v. McClunie, 438 S.W.2d 267, 268 (Mo.1969); State v. White, supra, 439 S.W.2d at 753.

We realize that in determining the sufficiency of the evidence to support a verdict of guilty we are governed by the rule that the facts in evidence and all favorable inferences reasonably to be drawn therefrom are to be considered in the light most favorable to the State and all inferences and evidence to the contrary are to be disregarded. State v. Todd, 477 S.W.2d 725[8] (Mo.App.1972); State v. Holmes, 434 S.W.2d 555[1] (Mo.1968); 9A Mo.Dig., Criminal Law, 753(2).

When a defendant introduces evidence on his own behalf, after the overruling of his motion for judgment of acquittal at the close of the State’s case, the sufficiency of the evidence must be determined upon the entire record considering any incriminating evidence developed during the defendant’s case. State v. Parcel, 546 S.W.2d 571 (Mo.App.1977).

Therefore we shall review the entire record including defendant’s testimony to determine whether there is sufficient evidence to support the conviction.

The State’s evidence against the defendant consists solely of Dotson asking the police officer whether he wanted a cigarette and the police officer replying: “Yes, I would; I’d like one.” The officer then testified: “Then he (Dotson) directed Sylvia Rivers to hand me a cigarette. She reached behind the counter and got a hand rolled cigarette and handed it to me and it was later learned to be marijuana.” As said, this was the extent of the State’s evidence against the defendant. The defendant at best was a conduit for the delivery of the cigarette done at the “direction” of Dotson.

We have examined defendant’s testimony carefully and find it in no way incriminating especially relative to knowledge on her part that the cigarette was marijuana.

Considering the evidence in a light most favorable to the State and the reasonable inferences to be drawn therefrom we are convinced there is a total lack of proof that the defendant had any knowledge that the cigarette was marijuana.

There is little case law in Missouri on the elements of the offense of illegal distribution of controlled substances. Distribution is defined in § 195.010(12) as “to deliver other than by administering or dispensing a controlled substance.” We can analogize to the offense of illegal possession, as both offenses are combined under the same statute, Section 195.020 RSMo 1969. In State v. Burns, 457 S.W.2d 721 (Mo.1970) our Supreme Court directly considered whether it was necessary to prove a particular state of mind as an element of § 195.020; that is, whether defendant’s knowledge of the nature of the substance must be proved. The court held that “possession without knowledge of such possession is not possession in the legal sense of the word” (at 724[1]). The court also spoke to the question of intent, stating that knowledge of the nature of the substance must precede the intent to exercise physical control, which is the specific intent required in a possession charge, (at 724[2]). Without such knowledge, there can be no intent. Also in State v. Young, 427 S.W.2d 510 (Mo.1968) the court stated that the test of possession is whether “the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” (At 513[5]).

Thus it has become established law in this State that in order to make a submissible case of possession under the statute, it is necessary that the State prove that defendant was “intentionally and consciously in possession of it.” [Emphasis in original] State v. Williams, 546 S.W.2d 533, 535[2] (Mo.App.1977), quoting from State v. Polk, 529 S.W.2d 490, 492[1] (Mo.App.1975).

We believe that the same principles apply to the offense of illegal distribution, i. e. proof of the knowledge of the nature of the substance and an intent to distribute the substance are essential.

Of course, such knowledge is rarely capable of direct proof. State v. Scarlett, 486 S.W.2d 409, 410 (Mo.1972). Proof of defendant’s knowledge of the presence and character of a substance is usually “supplied circumstantially by evidence of the acts or conduct of the accused from which it may be fairly inferred that he knew of the existence of the contraband.” State v. Roberts, 524 S.W.2d 174, 175[2] (Mo.App.1975). “In the absence of incriminating circumstances . . . [which demonstrate defendant’s knowledge and control] . . . no case is made.” State v. Wiley, 522 S.W.2d 281, 292[25] (Mo. banc 1975).

The State urges that proof of defendant’s knowledge of the narcotic nature of the substance can be supplied by inferences drawn from the actions of the defendant and surrounding circumstances. We agree with this statement as a general proposition, but no such inference can be drawn from such sparse evidence as is present in the case at bar. The cases cited by the State and cases we have discovered in the course of our independent research demonstrate that in order to properly infer defendant’s knowledge there must be evidence allowing such an inference, based on defendant’s statements, admissions, conduct, or the situation.

As was stated in State v. Hedrick, 534 S.W.2d 578, 585 (Mo.App.1976) a jury’s mere disbelief of defendant’s statement that he had no knowledge of the substance, “of itself could not satisfy the state’s burden to show that appellant intentionally had the [substance] in his possession and that he was aware of the character of the drug . . . .” (emphasis added). There must be additional circumstances to permit the inference of knowledge and intent. We have found no circumstances present here to permit the inference of defendant’s knowledge and intent.

Thus the present case is akin to State v. Berry, 488 S.W.2d 667 (Mo.App.1972) where appellant’s conviction for possession of marijuana was reversed because there was insufficient evidence of her knowledge of the presence of the substance and control over it. The fact that her companion checked two footlockers and one bag containing marijuana at the airport did not reflect her knowledge or possession since she was never seen to touch the bag, made no declarations indicating knowledge, and nothing in her conduct permitted an inference of knowledge. Supra at 669.

Accordingly, even though defendant’s point was not preserved for review, our examination of the sufficiency of the evidence, compelled by Rule 27.20(c), has caused us to conclude that the evidence is insufficient to support the verdict.

The judgment is reversed.

CLEMENS, P. J., and SMITH, J., concur.

      . Section 195.020 RSMo 1969 reads: “It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, distribute, or compound any controlled or counterfeit substance except as authorized [in this law], or to possess any apparatus, device or instrument for the unauthorized use of any controlled substance.”

      . See, e. g., State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975); State v. Lockhart, 501 S.W.2d 163 (Mo. 1973); State v. Scarlett, 486 S.W.2d 409 (Mo.1972); State v. Virdure, 371 S.W.2d 196 (Mo.1963); State v. Zimpher, 552 S.W.2d 345 (Mo.App.1977); State v. Stewart, 542 S.W.2d 533 (Mo.App.1976); State v. Hedrick, 534 S.W.2d 578 (Mo.App.1976); State v. Lewis, 526 S.W.2d 49 (Mo.App.1975); State v. Roberts, 524 S.W.2d 174 (Mo.App.1975); State v. Pearson, 519 S.W.2d 354 (Mo.App.1975); State v. Davis, 515 S.W.2d 773 (Mo.App.1974); State v. Cain, 507 S.W.2d 437 (Mo.App.1974); State v. Stavricos, 506 S.W.2d 51 (Mo.App.1974).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph F. DEIMEKE, Defendant-Appellant.
    No. 38475.
    Missouri Court of Appeals, St. Louis District.
    July 19, 1977.
    Sapp, Woods & Orr, Columbia, for defendant-appellant.

      Cynthia O. MacPherson, Pros. Atty., Mexico, for plaintiff-respondent.
   DOWD, Judge.

Defendant-appellant, Joseph F. Deimeke, was convicted by an Audrain County jury of driving while his license was revoked in violation of Sections 302.200, and 302.321, RSMo 1969.

On March 30, 1974, appellant was arrested for driving while intoxicated. Pursuant to the Implied Consent Law, (§ 564.441 RSMo 1969) the arresting officer requested the appellant take the breathalyzer test. The appellant apparently demanded the presence of an attorney to witness the test. The police officer disallowed appellant’s request and treated his response as a refusal to take the test. Appellant’s license was subsequently revoked by the Director of Revenue in accordance with Section 564.444 RSMo 1969.

Appellant filed a petition to set aside the revocation that was denied by the circuit court. His appeal followed.

While his appeal was pending, appellant’s attorney, advised the appellant that it was not unlawful for him to drive pending the outcome of the appeal, because he did not believe the judgment was final until the appeal was decided. Also, the attorney was confident that the revocation would be reversed on appeal.

On January 29, 1975, appellant was arrested for driving while his license was revoked in violation of Sections 302.200, and 302.321, RSMo. The facts clearly indicate that the appellant was relying on the advice of his counsel in driving while his case was on appeal.

Testimony at the jury trial included that of Ronald Hedrick, the arresting officer, and appellant’s former counsel who had since withdrawn as the appellant’s attorney.

Appellant’s former counsel testified that the appellant inquired on several occasions about the lawfulness of driving while his appeal was pending. Counsel admitted advising the appellant that he could lawfully drive while his appeal was under consideration. In the process of explaining the basis for giving the aforementioned advice, counsel referred to the fact that the appellant was given an improper breathalyzer test on one occasion prior to the arrest in this case. Following counsel’s reference to the improper test, the prosecutor responded, “you knew that he had taken one before and had been found guilty on that and it was reversed on appeal, isn’t that right?” Appellant moved for a mistrial that was denied.

Further testimony by appellant’s former counsel indicated that he was of the opinion that the appellant had not refused to take the breathalyzer test. Counsel believed that the appellant had a right to the presence of counsel to witness the breathalyzer inasmuch as he was given an improper test on an earlier occasion. (See State v. Deimeke, 500 S.W.2d 257 (Mo.App.1973).

During the closing argument, the prosecutor commented that he was sure appellant’s ex-counsel would pay the fine for the appellant if the jury found him guilty.

After hearing all the evidence, the jury returned a verdict of guilty and fixed appellant’s punishment at a fine of $500. This appeal followed.

Appellant raised two issues on appeal: 1) the court erred in not granting appellant’s motion for a mistrial when the prosecutor made specific reference to a prior conviction for driving while intoxicated, and 2) the prosecutor committed reversible error by alleging that appellant’s ex-counsel would pay the fine.

The first issue raised by the appellant involves the prosecutor’s reference to appellant’s prior conviction for driving while intoxicated, which was reversed on appeal and was still pending. The record reflects the following testimony leading up to the prosecutor’s reference to a prior conviction:

“Q. (Prosecutor) And then you wanted the trooper to wait until you drive all the way from Mexico, all the way over, isn’t that right?
“A. Yes, I did.
“Q. And you knew, of course, that this would decrease the reading on the Breathalyzer, isn’t that right, because the delay between the time the breath test is given, all that time a person’s reading would be lower, isn’t that right?
“A. I also knew he had been given an improper test on one occasion and I didn’t want that to happen again and consequently I wanted to be there present when the test was given.
“Q. (Prosecutor) You knew that he had taken one before and had been found guilty on that and it was reversed on appeal, isn’t that right?”

The appellant’s attorney objected to the prosecutor’s comment and requested a mistrial. The objection was overruled and the request for a mistrial was denied.

Appellant contends that the prosecutor’s comments were highly prejudicial. We agree.

It is well-settled that on a prosecution for the commission of a crime, evidence of other offenses is not admissible. State v. Mitchell, 491 S.W.2d 292 (Mo.1972); State v. Hancock, 451 S.W.2d 6 (Mo.1970). The reason for the rule is that proof of distinct crimes violates the defendant’s right to be tried for the offense for which he was charged. State v. Kerr, 531 S.W.2d 536 (Mo.App.1976); State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920 (1947). A further basis for the exclusion of a prior conviction stems from the tendency to inflame or prejudice the jury. State v. Mullen, 528 S.W.2d 517 (Mo.App.1975).

Furthermore, it is well-settled that a conviction reversed and remanded for a new trial is inadmissible for evidentiary purposes. State v. Blevins, 425 S.W.2d 155 (Mo.1968). We believe Blevins is controlling and reverse and remand this case for a new trial.

We believe it was especially pernicious and prejudicial for the prosecutor to point out to the jury that the defendant had been found guilty in a previous trial. The inference is clear that the trial which the prosecutor was referring to involved the charge of Driving While Intoxicated. Nor do we believe the sting and prejudice was taken out of this remark by his stating that the case was reversed on appeal. There is little doubt that the reference to the prior conviction would prejudice the jury, especially in an action involving a similar occurrence.

The respondent contends that the witness, appellant’s former counsel “opened the door” to inquiry about the prior conviction. We do not agree. It is true that if “either party introduces part of an act, occurrence, or transaction, . . . the opposing party is entitled to introduce or to inquire into other parts of the whole thereof, in order to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced by his adversary, or prove his version with reference thereto.” State v. Odom, 353 S.W.2d 708 (Mo.1962). However, this inquiry does not include direct references by the prosecutor to prior convictions of the accused. State v. Blevins, supra. The scope of inquiry is limited to rebut the adverse inferences. 22A C.J.S. Criminal Law § 660c, pp. 658-659. We do not believe the statement made by former counsel relating to a previous breathalyzer test created an adverse inference. A mere reference to an improper breathalyzer test on a previous occasion, does not give the prosecutor license to directly comment on a prior conviction whether related or otherwise. Any probative value is far outweighed by the prejudicial effect.

The second point relied on involves the comments made by the prosecutor during closing argument. Appellant contends the prosecutor’s comments alleging that the appellant’s former attorney would pay the fine if the appellant was found guilty constituted prejudicial and reversible error. We believe these comments are highly improper and prejudicial, but we need not consider this contention in view of our decision to reverse and remand the case for new trial on the first Point Relied On. On retrial, we trust that this argument will be avoided.

For the reasons stated above, we reverse and remand for a new trial.

Reversed and remanded.

CLEMENS, P. J., and SMITH, J., concur.

      . Appellant’s attorney practiced law in Audrain County for over 23 years.

      . This is not correct absent a stay order.

      .Our Supreme Court held otherwise in concluding that the arrested person had the right to have his lawyer present during the administration of the test, only if his lawyer appeared before or during the test. Spradling v. Deimeke, 528 S.W.2d 759, 763 (Mo.1975).

      . Judge Finch writing for the court in Blevins stated at p. 158:
      “It seems perfectly clear that if an appellate court reverses a conviction outright, or reverses and remands the case for a new trial, the original conviction is wiped out and after the date of the appellate decision may not be shown for impeachment purposes. Likewise, if a trial court sets aside a conviction and grants a new trial, the conviction may not be used thereafter for purposes of impeachment from and after the trial court order. In both of these instances the situation is the same as if there had never been a conviction.”

      . On four separate occasions the prosecutor referred to the attorney paying the fine as follows:
      1. “. . . that is a mistake of law that his attorney made and he (defendant) has to bear the consequences. Let his attorney pay the fine.”
      2. Later in the closing argument: “if his attorney made a mistake then he can get the attorney to pay the fine.”
      3. “. I submit to you that under the evidence that there is just one verdict under the law that you can return in this case and that is guilty and to assess a fine and to let him take it up with Mr. (named attorney) as to who should pay the fine.”
      4. In the last sentence of his closing argument: . you should return a verdict of guilty and assess a fine accordingly, and I am sure that Mr. (named attorney) will pay it.”