author: BARDGETT, Judge.

text:
    James R. SPRADLING, Director of Revenue, Respondent, v. Joseph F. DEIMEKE, Appellant.
    No. 58782.
    Supreme Court of Missouri, Division No. 1.
    Sept. 8, 1975.
    Motion for Rehearing or Transfer to Court En Banc Denied Oct. 13, 1975.

      John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Jerome W. Seigfreid and Louis J. Leonat-ti, Edwards, Seigfreid, Runge & Hodge, Inc., Mexico, for appellant.
   BARDGETT, Judge.

This is an appeal by Joseph F. Deimeke from an order of the circuit court denying his application for reinstatement of his Missouri automobile driver’s permit. The case involves the questions of (1) whether a person who has been arrested for driving while intoxicated and requested to take -a breathalyzer test pursuant to § 564.441, RSMo 1969, has a right to have counsel present at the time the test is given under Amendments VI and XIV, U.S. Constitution; (2) whether the request of appellant to have counsel present before he took the breathalyzer test constituted a refusal under § 564.-444 because the Miranda warnings, as read to appellant, arguably indicated that he may have such a right; (3) whether, in this case, the failure of appellant to submit to the test constituted a refusal to take the test under § 564.444; and (4) whether § 564.444 violates the due process clause of Amendment XIV to the United States Constitution for vagueness as to what constitutes a “refusal” under § 564.444.

Appellant asserts the following grounds as the basis for jurisdiction of this appeal in this court: (a) a state officer is a party (the director of revenue); (b) the case involves the construction of a revenue law (§ 564.-444); (c) the case involves the question of whether § 564.444 is void for vagueness because of a lack of statutory standards as to what constitutes a refusal in violation of the due process clauses of the 1945 Missouri Constitution and the United States Constitution, Amendment XIV; (d) the case involves the question of whether a person who is arrested for driving while intoxicated has the constitutional right to the presence of an attorney while the breathalyzer test is performed; and (e) that the reading of the “Miranda” warnings to appellant by a state highway patrolman, which allegedly was understood by appellant to include the right to have counsel present at the breathalyzer test, entitled appellant to condition his consent to the test upon the presence of counsel under the United States Constitution, Amendments V, VI, and XIV.

As to ground (a), this appeal was taken after January 1, 1972, the effective date of the amendment to Art. Y, § 3, Mo.Const.1945, and the fact that a state officer is a party does not vest original appellate jurisdiction in this court. Additionally, even prior to that amendment, this court did not have original appellate jurisdiction in cases where the state officer was not a participating or contesting litigant but merely a passive participant. Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.1969); In re Spencer, 439 S.W.2d 8 (Mo.App.1969).

As to ground (b), § 564.444 is not a revenue law of this state. See Laws of Mo.1965, pp. 670-672, for the title to and the provisions of this act.

The court accepts jurisdiction under grounds (c), (d), and (e), as, in toto, they involve the construction of the U.S. Constitution and Art. V, § 3, Mo.Const.1945, as amended.

On March 30, 1974, at about 1:45 a. m., trooper Hedrick of the Missouri Highway Patrol observed appellant driving at an excessive rate of speed on Highway 54 in Audrain County near Auxvasse, Missouri, and stopped him. Appellant got out of the car. Trooper Hedrick testified he saw him staggering very badly and he smelled alcohol. Hedrick placed him under arrest for driving while intoxicated and requested appellant to submit to a breathalyzer test informing him that if he refused the test his driver’s license might be revoked for one year. No issues are raised concerning the arrest or whether the officer had reasonable grounds to believe appellant was intoxicated.

Appellant said he would take the test so the trooper took him to a weight station in Kingdom City where trooper Baker met them in order to give appellant the test. Hedrick advised appellant of his rights by reading from a form. Trooper Baker was called to the scene of an automobile accident and therefore could not administer the test, so trooper Hedrick took appellant to the Fulton, Missouri, police station in order that there would be another witness to the test. Hedrick and appellant had been in Kingdom City about ten minutes and they arrived in Fulton about 2:25 or 2:30 a. m.

Hedrick gave appellant the Miranda rights form to read while the breathalyzer machine was warming up. After appellant read the form, he stated to Hedrick that “the way it reads here that I have the right to have my lawyer present” and asked to call his lawyer. Appellant phoned his lawyer, Mr. Seigfreid, in Mexico, Missouri, and asked Mr. Seigfreid for advice as to whether or not to take the test.

Appellant testified he called his lawyer when he was told that if he refused to take the test he could lose his license. He said that he told his lawyer to come over to the police station and that Mr. Seigfreid agreed to do so.

Attorney Seigfreid heard the trooper in the background say he was not going to wait for Mr. Seigfreid to come to the station, and then trooper Hedrick conversed with Seigfreid on the phone. Seigfreid said he would come right down to the station and Hedrick said the test was going to be given “right now”. It would have taken attorney Seigfreid 35^40 minutes to get there but he thought he could get a local attorney in Fulton there within ten minutes.

Mr. Seigfreid testified he asked the trooper why the Miranda warnings were read to appellant that said he had a right to have counsel present, and the trooper replied that had nothing to do with it. Appellant again spoke with Mr. Seigfreid on the phone. Mr. Seigfreid said that in view of appellant’s past experience with the breathalyzer test (see State v. Deimeke, 500 S.W.2d 257 (Mo.App.1973)), he should not take the test unless either he (Seigfreid) or a local attorney was present. By this time about one hour had elapsed since appellant was arrested.

After the phone conversation was over, and according to trooper Hedrick, appellant stated to Hedrick that his lawyer advised him not to take the test and he wasn’t going to take it. According to appellant, he stated to the trooper that he was not going to take the test without an attorney present. The trooper wrote the matter up as a refusal and subsequently appellant’s driver’s license was revoked for one year by the director of revenue pursuant to § 564.-444.

Appellant filed his petition for hearing pursuant to § 564.444. The matter was heard in circuit court and the court found as a fact, inter alia, that appellant “refused” to take the breathalyzer test.

Appellant contends § 564.444 violates the due process clause of the United States Constitution, Amendment XIV, in that the statute in question contains no procedural safeguards, criteria, or standards for determining what constitutes a “refusal” to take the breathalyzer test.

The basis for appellant’s contention is that he did not refuse to take the test but rather requested the presence of counsel before he took the test. In other words, appellant’s position is that he has the right to condition his consent to take the test upon his counsel being present during the administration of the test.

In order that the two concepts will not be confused, we think it advisable to note the following. A person arrested and held in custody has the right to consult with counsel or other persons in his behalf. Sec. 544.170, RSMo 1969, Rules 37.89 and 21.14; Gooch v. Spradling, 523 S.W.2d 861 (Mo.App.K.C.Dist.1975). This right does not depend upon the type of offense for which the party is arrested and applies to arrests for driving while intoxicated. Nor is it suspended pending the giving of a breathalyzer test. Gooch v. Spradling, supra.

In the instant case, appellant was afforded and exercised his right to call his lawyer and did consult with him on the phone. If his lawyer had come to the police station, appellant would have had the right to consult with him in person. Moreover, the arrested person has the right, if his lawyer appears before or during any such tests, to have him present while the test is being administered. This right in Missouri is afforded by § 544.170 and Rules 37.89 and 21.14.

Appellant’s contention in this case is that he had a right to the presence of counsel and, therefore, had a right to condition his consent upon counsel being present at the test. Appellant says he didn’t really refuse the test but rather consented to the taking of it if his attorney was present.

Further, appellant here premises his constitutional attack on the Sixth and Fourteenth Amendments, United States Constitution, contending that under those right-to-counsel provisions he is entitled to have an attorney present at the administration of a breathalyzer test. Consequently, he contends that his failure to take the test in the absence of an attorney could not constitutionally constitute a “refusal” upon which his license could be revoked for a year.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), Schmerber was convicted of driving while intoxicated. The evidence of intoxication was obtained by taking a blood sample from Schmerber’s body, over Schmerber’s objection, which, upon chemical analysis being made, revealed a percentage of alcohol in his blood indicating intoxication. The report of this analysis was admitted at trial. Schmerber had refused to submit to the blood test on advice of counsel. While confined in a hospital for treatment of injuries received in the automobile accident, a police officer, over Schmerber’s objection, ordered a physician to withdraw blood and the physician complied with the order.

A number of constitutional contentions were made by Schmerber in the United States Supreme Court, among which was that he had been denied his right to assistance of counsel under the Sixth Amendment. The court first held that his Fifth Amendment right against self-incrimination did not apply to a blood test of this sort because a blood analysis does not involve obtaining testimony from the person. Then the court held that his Sixth Amendment rights were not violated stating: “Since petitioner was not entitled to assert the privilege [5th Amendment], he has no greater right because counsel erroneously advised him that he could assert it.” 384 U.S. at 766, 86 S.Ct. at 1833. The court rejected Schmerber’s Sixth Amendment claim of right to counsel.

Schmerber is close to the factual situation presented in the instant case but has some variances. It is similar in that both Schmerber and appellant did consult with their attorneys prior to the tests being performed. Schmerber’s point was that the right to counsel means that he had a right to rely upon advice of counsel and, therefore, his refusal to undergo a blood test should have been respected. Of course, a blood test can be physically performed, as in Schmerber, without requiring any affirmative action on the part of the person. The doctor simply withdraws a blood sample. However, a breathalyzer test, so far as we know, cannot be performed unless the person does the affirmative act of blowing into the mechanism. This is what the appellant here failed to do and, therefore, no test was accomplished.

Of course, it must be immediately recognized that if a person is entitled to have someone else of their choosing present as a condition to performing the breathalyzer test, then the test is readily avoidable. The person who has been requested to be present may not come or he may delay arrival until a time when the alcohol has been dissipated. The practical result would simply be a readily available technique to circumvent the implied consent law. Secs. 564.441-564.444, RSMo 1969.

In the following cases the courts have held that a person does not have a constitutional right to consult an attorney prior to deciding whether or not to submit to a breathalyzer test. Phares v. Dept. of Public Safety, 507 P.2d 1225 (Okl.1973); Robertson v. State, 501 P.2d 1099, 1103 (Okl.1972); Coleman v. Commonwealth, 212 Va. 684, 187 S.E.2d 172 (1972); Commonwealth Dept. of Transportation v. Cannon, 4 Pa. Cmwlth. 119, 286 A.2d 24 (1972); Wiseman v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973); State v. Pandoli, 109 N.J.Super. 1, 262 A.2d 41 (1970); Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351 (1969); State v. Dellveneri, 128 Vt. 85, 258 A.2d 834 (1969); Calvert v. State Dept. of Rev. Motor Vehicle Dept., 519 P.2d 341 (Colo.Banc 1974).

In Troy v. Curry, 36 Ohio Misc. 144, 303 N.E.2d 925 (Athens Co.Mun.Ct.Ohio 1973), and People of State of N. Y. v. Sweeney, 55 Misc.2d 793, 286 N.Y.S.2d 506 (Suffolk Co. Dist.Ct.N.Y.1968), it was held that a person did have a constitutional right to consult an attorney before submitting to the alcohol test.

Neither the request to take a breathalyzer test nor the administration of the test involves interrogation of the arrested person. It simply calls for an affirmative or negative response, neither of which is incriminating in any respect. The court has considered the above-decided cases and holds that an arrested person does not have a constitutional right to consult with an attorney prior to deciding whether or not to submit to a breathalyzer test and does not have a constitutional or statutory right to have an attorney present at such test nor to condition his consent to take the test on an attorney being present. This is in accordance with the reasoning of Schmerber v. California, supra, and the great majority of decided cases. .

The court reiterates, however, that under the statutes of this state and the rules of this court an arrested person does have the right to consult with counsel or others in his behalf, and the arresting authorities do not have the right to prevent him from doing so. Gooch v. Spradling, supra.

In this case the officers were still offering to give the breathalyzer test one hour after arrest. This fact, as well as the facts of other cases involving breathalyzer tests, supports the belief that the test has validity even though not administered within a few minutes after arrest. See Hester v. Spradling, 508 S.W.2d 194 (Mo.App.1974); Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.1969); Gooch v. Spradling, supra.

The court makes the foregoing observations in order to show that giving persons a reasonable time to exercise their rights to consult with an attorney or someone in their behalf will not undermine the purpose of § 564.441 et seq., nor affect the validity of the test results.

In the instant case, the appellant was afforded a reasonable time to contact his attorney and had the benefit of his lawyer’s advice as to whether or not he should take the test. Thus, the appellant’s right to consult counsel or someone in his behalf was not violated in any respect.

Whether appellant’s statements to the officer that his lawyer advised him not to take the test and, therefore, he was not going to take it, or that he would not take the test without an attorney present, are of no significance, as both statements lead to the same result — a refusal. This is so because he was not entitled to delay the test until his attorney arrived nor to condition his taking the test on the presence of an attorney.

Appellant also contends his failure to take the test did not constitute a refusal because the officer read or gave him the “Miranda” warnings which included a statement that he had a right to have an attorney present. Therefore, appellant contends he was asserting a right the officer told him he had and his reliance upon the officer’s advice should not be considered a “refusal” with the consequent one-year’s loss of his driver’s license.

In support of his position, appellant relies upon Rees v. Dept. of Motor Vehicles, 8 Cal.App.3d 746, 87 Cal.Rptr. 456 (1970); Dept. of Highways v. Berkey, 291 Minn. 483, 192 N.W.2d 441 (1971); Wiseman v. Sullivan, supra; and Calvert v. State Dept. of Rev. Motor Vehicle Dept., supra. In the cited cases, the arrested person was told by the officer that he had a right to consult with counsel or a right to have counsel present as part of the “Miranda” warnings. In these cases the courts held that confusion in the mind of the arrested person occurred as a result of believing the right to consult with or have counsel present applied to intoxication tests under the implied consent laws and this confusion was caused by the language of the warnings.

The facts of the cases cited supra demonstrated confusion on the part of the arres-tee as a result of which he honestly believed he had the right to consult with counsel prior to submitting to the breathalyzer test. In these cases the arrestee’s belief was caused by the officer's statements to him.

In the instant case, the record does not show that appellant was laboring under a belief, induced by the officer’s statements to him, that he could condition consent to the test upon presence of counsel. Appellant testified that it was mentioned that if he did not take the test his license could be revoked for one year. Appellant’s attorney testified the officer told him that he (officer) would not wait for an attorney to arrive but that the test would be given then or written up as a refusal. Further, the appellant’s attorney testified that there was no doubt in his mind that everybody was aware that appellant’s license would be revoked if he did not take the test. During the phone conversation between the officer and appellant’s attorney, the attorney asked the officer why he had read the Miranda warnings to appellant which included the right to have a lawyer present. The officer informed appellant’s attorney that that had nothing to do with it (the breathalyzer test). The record further reflects that the desire to have an attorney present was motivated by an unsatisfactory experience appellant had with a breathalyzer test sometime prior to the instant matter (see State v. Deimeke, supra) and not because of the officer’s statement of rights to appellant.

In State of Washington, Dept. of Motor Vehicles v. Riba, 10 Wash.App. 857, 520 P.2d 942 (1974), the court recognized that honest confusion could occur as a result of a reading of Miranda warnings and implied consent warnings to an arrestee, and that where confusion appears, the officer must clarify the situation before a valid refusal to submit to the test can occur. The court quoting from Strand v. Dept. of Motor Vehicles, 8 Wash.App. 877, 509 P.2d 999 (1973), said at 520 P.2d at 945:

“A driver who is advised of his rights under the implied consent law but declines to take a breathalyzer test is deemed to have ‘refused’ the test so as to require revocation of his license unless he objectively and unequivocally manifested that he did not understand his rights and the warning concerning the consequences of refusal and was denied clarification. A lack of understanding not made apparent to the officer is of no consequence.”

This court adopts the foregoing as the rule in Missouri. In the instant case there was no confusion resulting from the officer’s statement of rights to appellant which persisted and thereafter constituted the basis for appellant’s conditioning his consent upon counsel being present. At least it was not unequivocally and objectively manifested to the officer by the appellant. Indeed, when the subject came up in the officer’s phone conversation with appellant’s attorney, the officer told him that the right to presence of counsel did not apply to the breathalyzer test. The officer was correct and the attorney was incorrect. The point is overruled.

Appellant contends that § 564.444, RSMo 1969, violates the “Due Process” clause of the U.S. Constitution, Amendment XIV, in that there are no procedural safeguards, criteria, or standards for determining what constitutes a “refusal”.

There is no mysterious meaning to the word “refusal”. In the context of the implied consent law, it simply means that an arrestee, after having been requested to take the breathalyzer test, declines to do so of his own volition. Whether the declination is accomplished by verbally saying, “I refuse”, or by remaining silent and just not breathing or blowing into the machine, or by vocalizing some sort of qualified or conditional consent or refusal, does not make any difference. The volitional failure to do what is necessary in order that the test can be performed is a refusal.

Of course, an officer’s request must comply with § 564.444, RSMo 1969, in order for the refusal to constitute a valid basis for the one-year revocation of an operator’s license.

Neither the legislature nor any other official body could anticipate all of the events which occur or words which would be spoken in connection with requesting one to take the breathalyzer test. The law provides for limited judicial review of the revocation order at the instance of the party revoked and in that review a court decides, under the evidence, whether or not the request was properly made and if the failure to take or administer the test was the result of a refusal to do so by the arrestee or due to arbitrary or unreasonable conduct on the part of the officer. See Thomas v. Schaffner, supra; Hester v. Spradling, supra; and Gooch v. Spradling, supra.

Section 564.444, RSMo 1969, is clear as to what it requires and is not violative of the due process clause of the United States Constitution, Amendment XIV. The point is overruled.

The judgment is affirmed.

All of the Judges concur.

HOLMAN, P. J., and SEILER, C. J., concur. DONNELLY, J., not a member of division when cause was submitted.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Lynn POWELL, Appellant, v. STATE of Missouri, Respondent.
    No. 9974.
    Missouri Court of Appeals, Springfield District.
    Oct. 3, 1975.
    Stephen R. Mitchell, Dexter, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, for respondent.
   PER CURIAM.

Appellant Robert Powell entered a plea of guilty to the charge of armed robbery on February 10, 1969 and was sentenced to a 25-year term of confinement. He now appeals from the judgment of the Circuit Court of Stoddard County denying his motion for relief pursuant to V.A.M.R. 27.26.

A prolonged evidentiary hearing was conducted, after which the trial court rendered 16 pages of findings of fact and conclusions of law which culminated in the judgment denying appellant’s motion. We note that the allegations on appeal, that all three of movant’s counselors were ineffective and that appellant’s plea was involuntarily and unknowingly entered, were directly refuted by testimony adduced at the evidentiary hearing. “Any issue of credibility was for the trial court and a finding such as this one clearly based on credibility is entitled to deference”. VanDyke v. State, 522 S.W.2d 101, 103[2] (Mo.App.1975).

We have reviewed the transcript of the evidentiary hearing and the files and records introduced in said hearing and conclude that the findings, conclusions and judgment are not clearly erroneous.

No error of law appears and an opinion would have no precedential value.

Affirmed pursuant to Rule 84.16.

All concur.

BILLINGS, C. J., did not participate in the consideration of this appeal.


author: PRITCHARD, Chief Judge.

text:
    KANSAS CITY, Missouri, Respondent, v. Keith R. STAMPER, Appellant.
    No. KCD 27141.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.

      Roy W. Brown, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis Be-necke, City Prosecutor, Walter J. O’Toole, Jr., Asst. City Prosecutor, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

Appellant was convicted of leaving the scene of an accident under Section 34.114, Revised Ordinances of Kansas City, Missouri, a misdemeanor. Three assignments of error have been raised on this appeal, two of which concern the sufficiency of the information and the fact that an unendorsed witness was allowed to testify at the trial in circuit court. However, this court need not consider these points as appellant’s third point, that the evidence was insufficient to sustain his conviction, has merit and is dis-positive of this appeal.

At the outset, the general rule should be stated that in considering the sufficiency of the evidence to support a conviction this court views the evidence in the light most favorable to the prosecution, accepting all substantial evidence and legitimate inferences fairly deducible therefrom and rejecting contrary and contradictory evidence. State v. Hopkins, 500 S.W.2d 264 (Mo.App.1973); State v. Hughey, 404 S.W.2d 725 (Mo.1966). Substantial evidence means evidence from which the trier of fact reasonably could find the issue in harmony therewith. State v. Scaturro, 509 S.W.2d 491 (Mo.App.1974).

Viewed in the light most favorable to the city, the evidence here tends to show that on the evening of June 28, 1973, appellant was stopped near the intersection of 51st and Main in Kansas City, Missouri, by an Officer Moran of the Kansas City, Missouri Police Department. Officer Moran had observed appellant run a red light at -the intersection at which time appellant appeared to be speeding. While appellant was in the officer’s custody the latter received a hit-and-run dispatch over the radio and at that time observed a chrome strip around the radio antenna of appellant’s car. In the meantime, one Officer Burnett, also of the Kansas City, Missouri Police Department, had been dispatched to the scene of the hit-and-run at 53rd and Wornall Road in Kansas City, Missouri, and issued a pickup order for a late model, light colored two-door hardtop. Appellant was driving a 1969 Oldsmobile Cutlass, two-door, with a light tan vinyl roof over a yellow body. Officer Moran contacted Officer Burnett concerning the type of vehicle involved, and the latter responded to the scene and viewed the chrome strip. Appellant informed the officers that he did not know how the chrome strip had become placed around his antenna and denied involvement in the accident.

The vehicle which was struck was a black 1965 Chevrolet Malibu. The damage, which was to the left side of the vehicle, appeared to be fresh and light yellow paint chips were found on the ground close to the car. The chrome strip taken from appellant’s car appeared to fit the Malibu. There was damage to the right front fender of appellant’s car with a black paint smear on that part of the vehicle.

Under the evidence as adduced by and viewed in a light most favorable to the city, this court may agree with appellant’s contention that the evidence is insufficient to show appellant was driving the car at the time of the accident. The city relied on the circumstantial evidence of damages to the vehicle, the fact that when arrested appellant was alone in his vehicle, in the vicinity of the accident and apparently at the approximate tiipe thereof. Moreover, the city points to the fact that appellant was speeding, that he ran a red light, and that he had no explanation for the presence of the chrome strip as indicative of guilt.

While the evidence adduced is sufficient to prove that the vehicle driven by appellant was involved in the hit-and-run accident, there is not substantial evidence that appellant was the driver of the vehicle at the time of the accident. The city here has done no more than create a suspicion or probability of guilt and has failed to establish guilt beyond a reasonable doubt. This conclusion is supported by an examination of the following cases in which the sufficiency of evidence was in issue. Allen v. Commonwealth, 211 Va. 805, 180 S.E.2d 513 (1971); State v. Jones, 259 Iowa 375, 144 N.W.2d 120 (1966); State v. Weaver, 259 Iowa 1369, 147 N.W.2d 47 (1966); Commonwealth v. Rand, 296 N.E.2d 200 (Mass.1973); Commonwealth v. Shea, 88 N.E.2d 645 (Mass.1949); State v. Bruns, 522 S.W.2d 54 (Mo.App.1975); and State v. Dodson, 496 S.W.2d 272 (Mo.App.1973).

The judgment of the trial court is reversed.

All concur.


text:
    KANSAS CITY, Missouri, Respondent, v. Keith R. STAMPER, Appellant.
    No. KCD 27142.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.

      Roy W. Brown, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, City Prosecutor, Walter J. O’Toole, Jr., Asst. City Prosecutor, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

Appellant was convicted of careless driving in violation of Section 34.115, Revised Ordinances of Kansas City, Missouri, a misdemeanor, sentenced to three days in traffic school and fined $20.00. Factually, the offense involved appellant’s pulling out from a parked position along Oak Street in Kansas City, Missouri, and striking a vehicle being driven along said street by one Adel-man. Appellant’s first point relates to the sufficiency of the information, in this case a Uniform Traffic Ticket. It is argued that the information failed to apprise appellant of the acts or offense with which he was charged for the reason that the written portion of the information states that appellant failed to yield to oncoming traffic while the box portion is marked to indicate other traffic present was traveling in the same direction. The only case cited by appellant in support of this is City of Independence v. Kirchoff, 419 S.W.2d 957 (Mo.App.1967), wherein the rule is stated that an information charging the violation of an ordinance must specifically allege facts constituting said violation. The information here was not defective in that respect. It is well settled that proceedings involving violations of municipal ordinances are in the nature of civil actions and the same strictness in stating the offense is not required as in criminal proceedings. Kansas City v. Waller, 518 S.W.2d 202, 205 (Mo.App.1974); Kansas City v. Stricklin, 428 S.W.2d 721 (Mo. banc 1968). Moreover, the information or complaint is sufficient if it gives notice of the offense and is sufficiently definite to be pleaded in bar of any subsequent prosecution. Kansas City v. Waller, supra, at 206; City of Kansas City v. Narron, 493 S.W.2d 394 (Mo.App.1973). However, the defendant must not be required to guess or speculate as to the violations with which he is charged by the public authorities nor the nature of the evidence admissible under them. City of St. Louis v. Polar Wave Ice and Fuel Co., 317 Mo. 907, 296 S.W. 993, 994 (Mo.1927); Kansas City v. Martin, 369 S.W.2d 692, 608 (Mo.App.1963); St. Louis v. Stubley, 154 S.W.2d 407, 410 (Mo.App.1941); City of Raytown v. Roach, 360 S.W.2d 741 (Mo.App.1962), and Rule 37.18 V.A.M.R. Rule 37.18 provides that “The information or complaint shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.”

In City of Independence v. Beth, 458 S.W.2d 874 (Mo.App.1970), the defendant was convicted of operating a motor vehicle in a careless and heedless manner in violation of a city ordinance. His argument on appeal was that the information, in the form of a traffic ticket, failed to sufficiently charge that the offense occurred on a public street. The court disagreed as the information did state that the offense occurred on a U.S. Highway within a city and that the violation occurred on a 4-lane highway bearing other traffic. In so holding, the court stated: “In determining the sufficiency of an information, we read it from all four corners, and consider it as an entirety, because ‘The whole indictment (information) must be looked to in order to ascertain whether it lacks certainty.’ 42 C.J.S. Indictments and Informations § 100, p. 983 . . . While it is our view that the uniform traffic ticket must be utilized and processed in such manner as to describe with reasonable certainty the offense it purports to charge, we do not believe that courts should be hypertechnical in assaying its sufficiency as a complaint or information.” City of Independence, supra, at p. 876.

It is the opinion of the court that the information herein sufficiently apprised appellant of the nature of the ordinance violation.

The next prong of appellant’s first point is that the information was defective because written under a general ordinance (§ 34.115, Careless Driving) when a specific ordinance was available and should have been used by the City (§ 34.82, Drivers to yield right-of-way when starting from curb). In support of this point there is only the general citation of City of Independence v. Kirchoff, supra. Assuming for the sake of discussion that the ordinance number designation was erroneous, there are numerous Missouri cases which hold that said designation may be disregarded as surplus-age. State v. Byrne, 503 S.W.2d 693, 695 (Mo. bane 1973); State v. Billingsley, 465 S.W.2d 569, 570 (Mo.1971); Bullington v. State, 459 S.W.2d 334, 341-42 (Mo.1970); State v. Aston, 412 S.W.2d 175, 182 (Mo. 1967); State v. Hart, 411 S.W.2d 143, 145 (Mo.1971); U. S. v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 85 L.Ed. 788 (1941). The important point is that the information sufficiently apprise the defendant of the facts constituting the offense charged and be sufficient to bar subsequent prosecution. Kansas City v. Waller, supra, at 206; see State v. Hoffman, 297 S.W. 388, 390 (Mo. 1927). Appellant here was so apprised and thus his point is without merit.

Appellant’s second point is that the trial court erred in allowing a witness to testify in circuit court when said witness neither appeared in municipal court nor was endorsed on the information. Appellant relies on Rule 24.17, Y.A.M.R., which reliance is wholly misplaced. Rule 24.17 merely states that if a witness is not endorsed on the information the state will not be entitled to a continuance if that witness is unavailable. The rule does not give the defendant an absolute right to have a witness endorsed on the information. Appellant's attention is directed to Rules 37.18 through 37.33 which apply to informations and complaints for municipal ordinance violations. These rules do not require that a witness first appear in municipal court or be endorsed and in absence of such requirement, appellant’s point is without merit. See State v. O’Day, 89 Mo. 559, 1 S.W. 759 (1886). Accordingly, there is no merit in appellant’s argument that his constitutional rights of due process and equal protection have been violated. Finally, appellant has not shown nor does the record disclose any abuse of discretion by the trial court in refusing to invoke the rule regarding exclusion of witnesses. See State v. Tschirner, 504 S.W .2d 302 (Mo.App.1974). The judgment of the trial court is affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    Ray COSENS and Barbara Cosens, Plaintiffs-Respondents, v. John Clyde SMITH, Defendant-Appellant, and Clifford Emory Davidson, Defendant.
    No. KCD 27271.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.

      Poague, Brock & Wall, Julius F. Wall, Clinton, for John Clyde Smith.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

At about 1:30 on the afternoon of June 14, 1971, a “nice, clear, sunshiny day”, Ronald Cosens was driving his parents’ 1966 Pontiac convertible south on Second Street in Clinton, Missouri. As he approached the intersection of Second Street and Bodine Avenue, he prepared to turn onto the eastbound lane of Bodine Avenue by switching on his left turn signal, pulling over to the white centerline, and coming to a stop. Just as he came to a complete stop, he looked into his rearview mirror and observed an automobile approximately forty to fifty feet behind him approaching the rear of the Pontiac. He later learned that the approaching automobile was driven by defendant Smith. According to Ronald’s testimony, as adduced on direct examination, the Smith automobile “wasn’t speeding” and “appeared to be operating normally”. Sensing no apparent danger, Ronald turned his attention to three or four well-spaced cars traveling northward on Second Street which he was waiting on to clear the intersection before he proceeded to turn left. He had been sitting in the described stopped position “approximately one-half minute to a minute” when his parents’ Pontiac was suddenly hit in the rear and shoved “a little ways” forward. After the impact Ronald got out of the Pontiac and quickly inspected the damage. During his inspection he discovered that the rear end of the Pontiac had received moderately heavy external damage. While viewing the external damage, Ronald discovered that the car that had collided with his parents’ Pontiac was the same car he had seen approaching from the rear some thirty to sixty seconds earlier, and that it had also been hit in the rear end. According to Ronald, the physical facts disclosed that a car driven by defendant Davidson struck the car driven by defendant Smith in the rear and knocked it into the rear of the Pontiac. Defendant Smith offered evidence which confirmed this sequence of events. The evidence was conflicting, to some extent, as to whether defendant Smith was moving or had been completely stopped for some period of time behind the Pontiac when struck in the rear by defendant Davidson’s vehicle. According to defendant Smith’s testimony, his car had been stopped for some period of time behind the Pontiac before his car was struck in the rear end by defendant Davidson’s car. The record further disclosed that as defendant Smith was in the process of stopping behind the Pontiac he observed what later turned out to be defendant Davidson’s car approximately “a block” behind him. The record is devoid of any evidence that defendant Davidson was operating his car at a fast or high rate of speed or in an erratic manner at any time observed by defendant Smith. In fact, the record is completely silent as to any direct evidence regarding the manner in which the Davidson car was being operated at any time.

Ronald’s parents filed suit against defendants Smith and Davidson in the Magistrate Court of Henry County, Missouri, for damages to their Pontiac. The gist of their petition was that the damage to their Pontiac was directly and proximately caused by certain acts of specific negligence on the part of both defendants. A change of venue was taken to the Circuit Court of Henry County, Missouri. A jury was waived and the case proceeded to trial before the court. Defendant Davidson was “in default” and did not appear in person or by counsel at the trial. At the close of all the evidence the trial court entered judgment in favor of the plaintiffs, and against both defendants, in the amount of $835.00.

Defendant Smith timely appealed to this court charging two claims of error. First, he contends there is no evidence in the record to support a finding of actionable negligence on his part which directly caused or contributed to cause the collision and ensuing damage sustained by plaintiffs’ Pontiac. Second, he contends the record fails to contain any evidence as to the fair and reasonable market value of the Pontiac immediately following the collision. Having concluded, for reasons subsequently set forth, that defendant Smith’s first charge of error is meritorious, the second need not and will not be discussed.

After reviewing the record of this non jury tried case de novo on the law and evidence (Rule 73.01), it is apparent, even after deferring to the trial court’s finding, as to controverted factual matters involving the credibility of witnesses (Rule 73.01), that the evidence at best merely established that defendant Smith’s car, “while operating normally” behind the Pontiac, was violently shoved into the rear of the Pontiac by defendant Davidson’s car. With the record in this posture, the adverse judgment rendered against defendant Smith can not stand unless this court concludes that the Missouri rear-end collision doctrine is applicable. If the Missouri rear-end collision doctrine is inapplicable, it is patently obvious that plaintiffs failed to carry the burden of proving any specific negligent conduct on the part of defendant Smith which directly caused or contributed to cause the collision and resultant damage sustained by their Pontiac.

For the rear-end doctrine to be applicable in a given case several prerequisites must be substantiated by the record. These prerequisites find clarity of expression in Hughes v. St. Louis Public Service Co., 251 S.W.2d 360, 362 (Mo.App.1952), citing the landmark case of Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914 (Mo.1942), and other cases: “[I]f one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle.” It appears implicit from the case law of this state that if the record in a given case fails to establish each of the above prerequisites the doctrine can not be relied on by a plaintiff or plaintiffs to sustain a favorable verdict and judgment. Witherspoon v. Guttierez, 327 S.W.2d 874 (Mo.1959); Clevenger v. Walters, 419 S.W.2d 102 (Mo. banc 1967).

A view of the case at bar with the prerequisites of the rear-end doctrine in mind discloses a fatal absence of one of the several prerequisites of the doctrine. Although it is apparent from the record that there was an abundance of evidence that Ronald Cosens had his parents’ Pontiac in a position on Second Street where it was enti-tied to be and that the front of defendant Smith’s car collided with the rear of the Pontiac, it is equally apparent, with marked cogency, that the evidence utterly failed to demonstrate that defendant Smith, as legally contemplated by the rear-end collision doctrine, “permitted” his ear to run into the rear of the Pontiac. In the case at bar the evidence merely established that defendant Smith’s car, absent a showing of any negligent conduct on his part, was violently shoved into the rear of the Pontiac by defendant Davidson’s car. There is no showing that defendant Smith was guilty of any actionable negligence that directly caused or contributed to cause the chain collision that resulted in the damage sustained by plaintiffs’ Pontiac. Defendant Smith’s car was nothing more or nothing less than the unfortunate, involuntary victim of defendant Davidson’s negligence when it was propelled into the rear of plaintiffs’ Pontiac. A review of the Missouri rear-end collision doctrine, as espoused on numerous occasions, convinces this court that as originally conceived and subsequently interpreted said doctrine is not imbued with such elasticity as to be applicable or controlling in this case. As parenthetically noted by the court in Clevenger v. Walters, supra, all rear-end collisions do not fall within the doctrine.

The judgment rendered by the trial court can not stand against defendant Smith, and as to him alone the judgment is reversed. Since defendant Davidson took no appeal, the judgment against him stands.

Judgment reversed as to defendant Smith.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Arley R. TASH, Defendant-Appellant.
    No. KCD 27354.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.

      Ralph E. Baird, Joplin, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

Defendant was convicted by a jury of stealing a dog. The jury failed to assess the punishment, and the trial court sentenced the defendant to two years.

Judgment and conviction are affirmed.

Defendant has raised twenty-seven points in his brief filed in this appeal. They are extremely repetitive and can be collected under twelve general headings for the purpose of review.

I.

Since one of the categories of error claimed by the defendant is the sufficiency of the evidence to sustain the conviction, it will be necessary to state the facts which the jury could have found upon the evidence upon the basis of considering the evidence in the light most favorable to the verdict and evidence and inferences to the contrary being disregarded. State v. Jackson, 519 S.W.2d 551 (Mo.App.1975).

On June 22, 1975, defendant, his father and his brother inquired about coon dogs for sale at four households near Nevada, Missouri. One dog was purchased outright from a man named Pryor, and another dog was purchased on a trial basis and later returned. At the time the Pryor dog was purchased, the Tashes viewed and attempted to purchase another Pryor dog. Pryor refused to sell this dog. At the time of this visit to the Nevada area, the three Tashes also visited the Wilson and Deahl farms, ostensibly to view dogs and attempt purchases. On the weekend before July 4, 1972, Pryor and Wilson each discovered a valuable dog was missing, the Pryor dog being the one he had refused to sell. Acting on information they obtained while searching for the missing dogs, Larry Wilson and his father traveled to Sesser, Illinois. Arriving the morning of July 8, 1972, they went to the home of Art Loman, a dealer in dogs of the kind that were missing, where they observed a red Ford automobile bearing Kansas license plates similar to the one the Tashes were seen driving in the Nevada area. The Tashes were residents of the Baxter Springs, Kansas area. The Wilsons contacted a police officer who drove to the Loman home and went to the door. At the time this policeman went to the door, he observed someone run from the rear of the house. Mr. Loman, the Wilsons, and the policeman went to the rear of the home where Loman kept his dogs and discovered that two dogs were missing. Lo-man testified that when he answered the door, all three of the Tashes were in his house, having arrived there the night before, gone hunting with him and remained overnight. They had disappeared from the Loman home during the time Loman was answering the door. These facts were broadcast over the police radio and a search for the Tashes was begun. Later that morning, the defendant Tash and his brother were taken into custody by a State Trooper when they emerged from a nearby cornfield. Larry Wilson and his father, together with assistance from the police officers, continued to search for the missing dogs. They discovered footprints in the cornfield leading into the cornfield and evidence of dog tracks and marks in the soil which indicated something had been dragged over the soil going into the field, and the footprints returning from the field without the dog tracks. The dogs were found sometime in the early afternoon, the Pryor dog being tied to a tree with some baling wire and the Wilson dog being found in an injured condition in a ditch. The Wilson dog had a large gash on his head and injury to his eye. Loman testified that the Tashes had attempted to sell these dogs to him. When apprehended, the defendant made a statement to Larry Wilson that he would pay $400 rather than be prosecuted for the theft of the dog. Trooper Biggs, when he questioned the defendant and his brother upon their emerging from the cornfield, asserts that the defendant and his brother said that they had been hiding in the cornfield.

These facts, and the inferences favorable to the verdict, are sufficient to support the conviction of the defendant for the stealing of the Wilson dog which was the charge laid against this defendant.

II.

Defendant complains of the denial of motions for continuance filed on January 24, the day of trial, and on January 16. No citation of authority is contained under this point of defendant’s brief; nor is there any claim that the shortness of time between the appearance of trial counsel on the 16th and the trial on the 24th prevented the obtaining of any evidence material to the defendant’s defense. The information had been on file for one and one-half years. There had been four prior continuances, and the defendant had only been in jail for a period of four days during the entire year and a half, so that he was not disabled from vigorously pursuing his defense during that time. The decision to grant or refuse the continuance was within the discretion of the trial court and will not be interfered with on appeal unless there is a clear abuse of discretion. State v. Collie, 503 S.W.2d 445 (Mo.App.1973); State v. Lee, 492 S.W.2d 28 (Mo.App.1973). Further, a defendant must demonstrate that the denial of the continuance prejudiced his case. State v. Jefferies, 504 S.W.2d 6 (Mo.1974). Under these circumstances, there is no abuse of the trial court’s discretion, and no error appears.

III.

Defendant claims that the trial court abused his discretion in overruling the motion for a continuance or the addition of persons to the venire because the panel contained persons who served as jurors in a companion case involving the defendant’s brother. Again, no citation of authority is contained under this point except the due process and right to a jury portion of the Constitution and Rule 26.02. All those jurors who had served in the preceding trial were excused, and the State claims that all persons not on the jury, but who had heard testimony in the preceding case were excused. It is clear that defense counsel identified all those persons who admitted any prior knowledge of the facts, but the record does not disclose that he requested that any of these persons be excused for cause, nor is there any indication that defendant’s counsel was required to use any of his peremptory challenges to remove jurors who had prior knowledge about the case. In fact, voir dire demonstrates that of those persons who had not been jurors in the prior cases, those who heard something about or had some knowledge about the case proclaimed an ability to try the case fairly despite such prior knowledge, and none admitted that such prior knowledge would prejudice them. Again, the issue of the excusing of a juror who has not admitted some prejudice or opinion with respect to the case is subject to the discretion of the trial court. State v. Spica, 389 S.W.2d 35 (Mo.1965); Cert. denied 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966); State v. Cuckovich, 485 S.W.2d 16 (Mo.banc 1972). If the defendant’s assertion is that the court abused his discretion, his failure to challenge for cause constitutes a waiver of any such claim. State v. Ivy, 192 S.W. 737 (Mo.1917).

IV.

Defendant next raises as a claim of error the evidence which was offered about the theft of the Pryor dog on the grounds that it was evidence of another crime and inadmissible. There was evidence in this record that the Pryor and Wilson farms were close by. The evidence also demonstrated that the dogs disappeared from both households on the same day. The dogs were found together and had been in the recent possession of the Tashes. The State’s contention is that this evidence is admissible under the common scheme or plan exception to the inadmissibility of such evidence in ordinary circumstances. Relying upon State v. Smith, 431 S.W.2d 74 (Mo.1968), and State v. Mitchell, 491 S.W.2d 292 (Mo.banc 1973), the State insists that the evidence in this case falls within the exception of common scheme or design. Examining all the facts and circumstances in this case and considering the entire record, it would seem that the State’s contention is correct and that this case is one in which evidence of the theft of the other dog becomes admissible to show common scheme and design. The cases cited by the defendant, typified by State v. Mathis, 375 S.W.2d 196 (Mo.1964), can be distinguished by the absence of any facts in those cases which tended to connect or interrelate the offenses themselves rather than the defendant’s connection with the offense. As noted above, there are a variety of facts here which tend to show a connection between the offenses and to demonstrate that the offenses were, in fact, part of a common scheme or design. The further elaboration of this point by defendant’s assertion that the prosecutor improperly argued this evidence fails upon a finding that it was properly admitted in evidence.

V.

Defendant’s next assignment is that it was error to permit testimony of the flight of an unidentified person or persons from the Loman home because such evidence was not connected with the defendant and could not establish an inference of guilt. This assignment simply lacks the necessary factual basis to support it. Lo-man testified that when he went to the door to answer the police officer’s knock, the three Tashes were in the house. Almost simultaneously, the officer observed someone running from the house, and upon entering the house, no one was present in the home except Mrs. Loman. A car identified at least as one similar to that used by the defendant was parked in the Loman driveway, and the defendant was apprehended after he had hidden in the cornfield. These facts clearly show flight and concealment of the defendant, and the evidence was admissible oh the authority of State v. Simmons, 494 S.W.2d 302 (Mo.1973), and State v. Barry, 501 S.W.2d 515 (Mo.App.1973). Again, the issue of the use of this evidence on argument is attacked, but must also fail on a ruling that the evidence was properly admitted.

VI.

An assignment of error is posed that the testimony of the Illinois State Trooper that he had a message over the police radio that subjects had fled from the Loman house was improperly admitted on the ground that such testimony was hearsay. From the record, it is clear that the testimony was not offered to prove the truth of the matter stated, but that it was used to explain how and why Trooper Biggs became involved in the case and took the Tash brothers into custody. Admission of testimony offered for that purpose was not error. Analogous cases are State v. McRoberts, 485 S.W.2d 70 (Mo.1972), where testimony about a police radio report was admitted to show the basis of probable cause, and Nash v. United States, 405 F.2d 1047 (8th Cir. 1969), where testimony about a police radio report was admitted to explain why defendant’s car was stopped.

The State contends that, in any case, the testimony of Trooper Biggs was merely cumulative and, therefore, harmless. When the facts testified to are already in evidence by competent testimony, it is not prejudicial error when those facts are admitted again even though erroneously. Hood v. Heppler, 503 S.W.2d 452 (Mo.App.1973). Harris v. Goggins, 374 S.W.2d 6 (Mo.banc 1963). The local police officer had testified he saw someone run out of the back of the Loman house. That fact being in evidence, admission of the State policeman’s statement is, at worst, harmless error.

VII.

Defendants assigns error on another evidentiary ground, contending that it was prejudicial to permit Larry Wilson to testify that the defendant said he would pay Wilson $400 rather than go to jail because the statement was not an admission and was in violation of the Miranda rule. The first objection came when Larry Wilson testified. The State properly points out that this point is not properly preserved for appellate review because the evidence was admitted without objection when the local police officer testified, and defendant cross examined on that issue. State v. Stevens, 467 S.W.2d 10 (Mo.1971), cert. denied 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971). State v. Hampton, 509 S.W.2d 139, 142 (Mo.App.1974). Even if the defendant had not waived the objection, there is substantially no basis for the claim of error. An offer of compromise or restitution to avoid a criminal charge may be received in evidence, and an express admission of guilt is not required. State v. Alexander, 499 S.W.2d 439, 441 (Mo.1973). State v. Christian, 245 S.W.2d 895, 897 (Mo.1952).

The second part of defendant’s claim of error, that the Miranda rule applies, is not correct. The statement was made voluntarily to Larry Wilson who was not a policeman, even though the defendant was in custody and a police officer was present. In such circumstances, no warning is required. State v. Mitchell, 491 S.W.2d 292 (Mo.banc 1973); State v. Ayers, 470 S.W.2d 534 (Mo.banc 1971).

VIII.

Defendant also contends that it was error to permit the jury to view the Wilson dog because the issue of identity and ownership was not in question and because the display of the dog unduly prejudiced the jury. The State contends that the assignment of error is so lacking in detail that it preserved nothing for appellate review. It is impossible to determine from the brief filed why the defendant claims the display of the dog unduly prejudiced the jury. Even though stolen articles admitted in evidence have no probative value, which seems to be the thrust of the first part of the defendant’s objection, their admission is not necessarily prejudicial error. State v. Carson, 286 S.W.2d 750 (Mo.1956).

IX.

The defendant complains that the acts of the trial judge in interrogating the defendant and making some comment with respect to the defendant’s testimony prejudiced the defendant. The exchange between the judge and the defendant complained of was as follows:

“BY THE COURT:
Q. Mr. Tash, with regard to the 1st, 2d, 3rd and 4th of July, your testimony is, as I understand it; that you were working there at the Walmart place selling firecrackers, fireworks?
A. Yes.
Q. Was the Walmart store open and doing business at that time?
A. Uh huh.
Q. Are you aware that Missouri has a blue law and the Walmart stores are not open on Sunday?
A. You mean the store? I thought you were talking about the stand.
Q. I asked you if the store was open?
A. I don’t remember whether the store was open or not. We were down in the far corner.
Q. Are you allowed to sell fireworks on Sunday?
A. Yes, as far as I know.
MR. BAIRD: The testimony was that the stand was out on the parking lot.
THE COURT: I understood him to say the store was open, but that is all right, go ahead. That is all the questions I have.”

There is error only if the conduct of the trial judge so prejudiced the jury as to deprive the defendant of a fair and impartial trial. State v. Hill, 518 S.W.2d 682, 685 (Mo.App.1975). Whether there was- prejudice depends on the context and words in each case.

The question of prejudice from comments or questions by a judge usually arises in one of three contexts. First, a judge may comment so directly or obviously as to indicate his opinion that a defendant is guilty, or that a witness is honest or dishonest, thereby depriving defendant of a fair and impartial trial. State v. Jones, 197 S.W. 156 (Mo.1917); State v. Hyde, 234 Mo. 200, 136 S.W. 316 (1911); State v. Castino, 264 S.W.2d 372, 375 (Mo.1954). A judge may question a witness to develop truth more fully or clarify some matter. This is proper if the questioning reveals no prejudice on the part of the judge. State v. Grant, 394 S.W.2d 285 (Mo.1965). Third, the judge may discipline or correct a lawyer or witness in a non-prejudicial manner. State v. Ross, 371 S.W.2d 224, 228 (Mo.1963); State v. Brotherton, 266 S.W.2d 712 (Mo.1954). In these contexts, whether there was prejudice depends on the presence or absence of several elements distilla-ble from the authorities.

The trial judge must not convey to the jury an attitude of hostility or bias against the defendant. State v. Hill, supra, and State v. Jones, supra. Nor may he pursue truth in the manner of a prosecutor. State v. Drew, 213 S.W. 106, 107 (Mo.1919); State v. James, 321 S.W.2d 698, 704-705 (Mo.1959). Protracted examination can be prejudicial because it might indicate the judge’s opinion on the facts or credibility of a witness. State v. James, supra.

In cases where there is some indication of prejudice, the trial judge might purge his conduct of the prejudice when the record shows his conduct was not unwarranted, as in State v. Hill, supra, and State v. Moore, 303 S.W.2d 60, 67 (Mo.banc 1957), or superfluous because the issue of a defendant’s guilt is resolved without question, as in State v. Montgomery, 223 S.W.2d 463, 469 (Mo.1949). Another purging element is for the trial judge to instruct or admonish the jury that his conduct is not to be taken as a reflection on the defendant’s guilt or innocence or a witness’ credibility. State v. Castino, supra, and State v. Hudson, 358 Mo. 424, 215 S.W.2d 441 (Mo.1948).

In -this case, there is no apparent bias or hostility on the part of the judge evident in other parts of the record. He questioned the defendant only briefly. It is unlikely the jury deduced from the brief questioning any opinion the judge might have held.

At the close of the questioning, defendant’s attorney pointed out that the Wal-mart firecracker stand where defendant said he was working on Sunday was in the parking lot, not in the store.

Judged by the standards set forth above, it does not appear that the judge commented so directly and obviously as to deprive the defendant of a fair and impartial trial; nor does the question itself indicate any prejudice. Taken in its full context and on the record presented, no error appears.

X.

Defendant levels a series of attacks on the instructions, complaining of error in those given and failure to give requested instructions. The five points under which these claims are made list not a single case in support. Additionally, with one exception, none of the challenged instructions is set forth in direct violation of Rule 84.04(e). State v. Mesmer, 501 S.W.2d 192 (Mo.App.1973); State v. Orr, 493 S.W.2d 374 (Mo.App.1973). These violations of the rules are sufficient to dispose of the points on a procedural basis; however, some brief mention of the claimed issues and the resolution of them will be indulged in since it appears other cases may be pending arising out of the same factual setting.

The defendant complains of the giving of instruction No. 6. The attack upon instruction No. 6 is that there was no competent evidence that defendant acted with others to steal the Wilson dog and that it improperly submits the issue of acting in concert with others since the information does not charge the offense in that fashion. Instruction No. 6 as set forth in the transcript is a verdict directing instruction on stealing in conventional form but requiring that the jury find that defendant acted in concert with others.

On the first ground asserted, that there is no evidence of the defendant having acted in concert with others, the earlier recitation of the facts the jury could have found demonstrates the frivolity of the argument. There is again a sufficient circumstantial basis for the jury to infer the intent of the defendant to engage in a common scheme or plan to steal the Wilson and Pryor dogs.

On the second issue raised as to this instruction, a complete answer is found in State v. Lemon, 504 S.W.2d 676, 682, 683 (Mo.App.1973), where this court, dealing with a similar contention, pointed out that Section 556.170 RSMo 1969, completely abolished the distinctions between principals and accessories before the fact, citing State v. Spica, 389 S.W.2d 35, 40 (Mo.1965) and State v. Lunsford, 331 S.W.2d 538 (Mo.1960). The Lemon opinion then holds that an indictment charging the crime directly and evidence of acting in concert with others, together with a submission on that theory does not create a variance constituting prejudicial error.

Instruction 3A which is set forth in the brief is a verbatim copy of MAI-CR 2.10 and was appropriate under the same analysis and authority as has been made as to instruction No. 6.

There is not a scintilla of authority or argument supporting defendant’s claim that a converse instruction should have been given or that “the court erred in giving erroneous instructions which were not requested by the defendant.” These last mentioned complaints raise no issues for determination.

XI.

Defendant also complains that there was no evidence to show that the value of the dog exceeded $50. There was some evidence of value, the owner having testified that two offers of $500 for the dog had been made and refused. The defendant claims that this evidence was incompetent without any specification of authority. The defendant’s objection at trial was as vague as the assignment here, the entire objection being, “I object to that.” Regardless of this claim, that the evidence was inadmissible, which cannot be ruled on this record, Section 560.161 RSMo 1969 makes the stealing of a dog a felony regardless of value, and any failure of proof in that regard is harmless error, the finding of value being surplusage in any event.

XII.

Defendant’s final complaint is that the court erred in the use of a presentence report without first permitting the defendant access to the portions relied on by the court. The defendant does not mention Section 549.285 RSMo 1969 which denies access to such reports except at the discretion of the court. The defendant’s argument is cast in terms of an “abuse of discretion.” The difficulty is that, although the court ordered presentence investigation in January, 1974, and it was completed and filed in February, and defendant and counsel appeared in April for sentencing, no request for any portion of the report was ever made so far as the record reflects. Defendant also complains of the basis upon which the probation officer recommended that probation not be granted, but that issue is not here for review in view of the failure to request the report and make a record on the issues, if any, which defendant now seeks to raise.

The judgment and conviction are affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    In the Matter of the ESTATE of Joseph B. BLOOMER, Deceased. Dave BLOOMER et al., Appellants, v. Ruth Hays CAPPS, Administratrix, Respondent.
    No. KCD 27453.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.

      Edward R. Jayne, Kirksville, for appellants.
    Vance R. Frick, H. Parker York, Kirks-ville, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

This is an appeal from the judgment of the Circuit Court of Adair County, Missouri denying the application of appellants to remove the respondent, Ruth Hays Capps, as Administratrix, with the will annexed, of the Estate of Joseph B. Bloomer, deceased.

The parties presented this matter to the court below upon a stipulation of facts and various documents and court records, the pertinent parts of which may be summarized as follows:

The decedent, Joseph B. Bloomer, executed his Last Will and Testament on September 8, 1952, wherein he named Ruth Hays as his sole beneficiary, and Lawrence Miranda, a nephew (a resident of Illinois) as his Executor. At the time of the execution of this will, he was not married to Ruth Hays but thereafter and on April 19, 1954, he and Ruth Hays were married and remained so until November 12, 1954, on which date they were divorced. Prior to the divorce and on September 24, 1954, the decedent and his wife, Ruth Hays Bloomer, entered into a property settlement agreement. Thereafter, she remarried and became Ruth Hays Capps, respondent herein.

On October 26, 1967, Joseph Bloomer was declared incompetent and one Russell D. Roberts, an attorney, was appointed his Guardian. On October 29, 1969, Joseph Bloomer died, and on November 24, 1969, Russell D. Roberts was appointed Administrator of his estate. On December 1, 1969, Roberts made final settlement as Guardian and turned the assets of the decedent, held by him in that capacity, over to himself as Administrator of the Estate of Joseph Bloomer.

On January 29, 1970, the Bloomer will of September 8, 1952 was filed for probate. So far as this record discloses, this was decedent’s last will and testament. On April 20,1970, Ruth Hays Capps filed application for appointment as administratrix with the will annexed, the will was admitted to probate, and letters testamentary were granted to her. On May 21, 1970, the day proof of publication of letters to respondent was filed, Russell Roberts filed his final settlement as Administrator, turned the estate assets over to respondent, and on May 22, 1970, he received his order of discharge and release.

On October 20, 1970, the appellants herein, the heirs at law of Joseph Bloomer, filed their petition to remove the respondent as Administratrix, which petition alleged, in substance, that she had wrongfully procured her appointment by falsely stating in her application that she was the sole beneficiary of the estate of the decedent, whereas, by reason of her divorce from decedent and the operation of Section 474.420 RSMo 1969, and by reason of the property settlement she had made with decedent, she had no interest in nor right to administer the estate of decedent. Further, the petition alleged that since no contingent beneficiaries were named in the will, the appellants, heirs at law of the decedent, were the sole and only beneficiaries of the estate and were therefore entitled to request the naming of an administrator of their choice.

On February 22, 1971, the Probate Court of Adair County entered its order finding that none of the specific grounds for removal of an administrator as set forth in Section 473.140 RSMo 1969 existed, applicable to respondent; that she was qualified to act; and, denied the petition. The court carefully (and properly) avoided any ruling on whether or not the respondent was entitled to take under the terms of the Bloomer will, or was prevented from doing so, by reason of the provisions of Section 474.420 RSMo 1969, or of the property settlement agreement made by decedent and respondent in contemplation of divorce in 1954, but decided that such problems should properly be raised by objections to the Adminis-tratrix’s Petition for Final Distribution. It is clear that the court based its ruling upon the limited considerations of whether the respondent was qualified to act and whether statutory reason had been shown to warrant her removal as Administratrix.

On Appeal to the circuit court, no additional evidence was adduced, but the matter was submitted upon the stipulated facts and record in the probate court. On February 25, 1974, the court entered its judgment, finding that the decedent left no surviving spouse or other person entitled to distribution of the estate living in Missouri or qualified to act as administrator, and that no lawful cause had been shown for the removal of respondent as Administra-trix and denied the petition seeking her removal.

Ex gratia, it would seem, the court also found that respondent “has no interest in the estate as an heir, legatee or beneficiary;”. The jurisdiction to make such finding in an orderly process of administration of estates would rest initially in the probate court upon finding of heirship and order of final distribution (Section 473.617 RSMo 1969) and would be pertinent or appropriate in this matter only as it might affect the charge that respondent’s appointment had been improperly obtained by her alleged “false” statement, that she was the “sole beneficiary of the (Bloomer) estate”.

The finding of the circuit court that ’ respondent had no interest as a beneficiary clearly went beyond the issues presented by the petition for her removal as administra-trix, and this court does not undertake to make such determination. This proceeding is limited to the sole and narrow issue of respondent’s right to serve as Administra-trix of the estate.

The appellants’ first point is that the appointment of the respondent as Adminis-tratrix of the Bloomer Estate was void for the reason that it was made at a time when there was no vacancy in the office in that Russell D. Roberts was then the duly appointed, qualified and acting administrator of the estate. There is no merit in this contention.

Section 473.143(1) RSMo 1969 provides:
“Revocation of letters on finding will
1. If, after letters of administration are granted, a will of the deceased is found, and probate thereof granted, the letters shall be revoked, and letters testamentary granted.”

This statute was first enacted before Missouri became a state, Territorial Laws, 1807, p. 135, Section 39, and has remained substantially unchanged since that time.

In the case of Brinckwirth’s Estate v. Troll, 266 Mo. 473, 181 S.W. 403 (1916), the Missouri Supreme Court interpreted the effect of Section 47 RSMo 1909, the precursor of Section 473.143(1), in a case involving the right of a Public Administrator to continue administration of a decedent’s estate after a will had been found, admitted to probate, and an administrator with the will annexed appointed. As to the effect of that statute, the court said (lc. 404-405 of 181 S.W.):

“While the probate court of the city of St. Louis, as a matter of form, or probably for the purpose of making its record fair upon its face, made the useless order revoking the authority of the appellant to proceed further with the administration of the estate after probate of the will, yet it is perfectly clear that no such order of revocation was necessary, for the reason before stated, that, when the will was probated, then by operation of said section 47 his authority to further act ceased ipso facto.” (Emphasis supplied)

This interpretation of the effect of the statute as decided in Brinckwirth’s Estate has not been overruled, modified or even criticized by any appellate court in Missouri and, of course, is applicable and controlling in the case at bar, as to appellants’ first point.

So applied, the rule in Brinckwirth’s Estate compels the conclusion that when the will of decedent, Joseph B. Bloomer, was admitted to probate and the respondent was appointed administratrix with the will annexed, all authority of the then administrator, Roberts, to proceed further in the administration of the estate, ceased, ipso fac-to, and at that time, all that remained to be done was for him to engage in the orderly transfer of the assets of the estate to the new administratrix and for his discharge.

The record of stipulated facts discloses that this transition was prompt and uneventful. After the appointment of respondent as Administratrix, C.T.A., on April 20, 1970, it appears that the statutory notice of the granting of these letters was published. Upon the filing of the proof of this publication on May 21, 1970, the former administrator, Roberts, filed his final settlement, delivered the assets of the estate to respondent, and on May 22, 1970, he received his discharge and release. During that 30-day period, none of the appellants appeared, objected to the proceedings, or in anywise asserted their present position. Indeed, so far as this record discloses, no claim was then made (nor has such been made since) that the document filed was not, in truth and fact, the last will and testament of Joseph B. Bloomer. It was not until October 20, 1970, some five months thereafter, that the appellants took any action by filing their petition to remove the respondent as administratrix, which motion constitutes the basis for the rulings of the courts below.

In support of their position on this point, appellants cite the cases of State ex rel. Ramsey v. Green, 17 S.W.2d 629 (Mo.App.1929) and Donelson’s Estate v. Gorman, 239 Mo.App. 300, 192 S.W.2d 29 (1946). These authorities have been carefully examined and are found not to be in point, nor, therefore, authoritative in this matter. Neither involved the application of Section 473.-143(1). State ex rel. Ramsey involved the right of and procedures necessary for executors to voluntarily resign, and Donelson’s Estate involved the authority of a Public Administrator to function as such when the only “asset” of the estate was an unliqui-dated cause of action for wrongful death.

This point must be ruled against appellants upon the clear terms of Section 473.-143(1), and the clear and unassailed authority of Brinckwirth’s Estate.

The second point raised by appellants is that the appointment of respondent as administratrix of the Bloomer estate was illegal, in that it was based upon her false statement that “she was the sole beneficiary of the estate” and that, therefore, the appointment should be revoked. This charge is not supported by the record on this appeal.

The respondent’s application for Letters states that she is “sole beneficiary under the will of Joseph B. Bloomer” and, indeed, she was, since she was so named (as Ruth Hays) before her marriage to and subsequent divorce from Bloomer. But appellants brand this statement as false and disqualifying because of their interpretation of the legal impact of Section 474.420 RSMo 1969 upon the facts in this case. That statute provides, inter alia:

“If after making a will the testator is divorced, all provisions in the will in favor of the testator’s spouse so divorced are thereby revoked but the effect of the revocation shall be the same as if the divorced spouse had died at the time of the divorce. * * * ”

Many perplexing problems immediately arise as to the meaning of this statute and its affect on the ultimate right of respondent to take under the Bloomer will. These problems, however, need not be and are not decided here. The present action is not the proper vehicle for such decision. The appellants charge respondent with false statements in procuring her appointment as ad-ministratrix, based upon their interpretation of this statute, not yet properly raised nor adjudicated under the facts before this court. Even if their legal position may ultimately be vindicated, the statement in respondent’s application for appointment as to her relationship to the estate, was, at most, a misstatement of law and not of fact, and forms no valid basis for the charge that she made a false statement nor for her removal from office.

What has been said regarding the statute applies with equal force to the charge of false statements because of the property settlement contract, the legal effect of which also remains for future determination. Further facts regarding both the execution of the contract and the divorce proceedings may be necessary and proper, if and when the issue of respondent’s right to inherit under the Bloomer will is ever directly and properly raised in the probate court.

Appellants raise no other specific grounds for disqualification of the respondent, as set forth in Section 473.140 RSMo 1969. Neither is it claimed that another person is entitled to preference under the provisions of Section 473.110 RSMo 1969. Indeed, in the matter of preference, it is admitted that Bloomer did not leave a wife and that all of his heirs at law (appellants) are disqualified to act because they are not residents of Missouri. Under these conditions, the probate court is granted broad discretion in the appointment of “a person deemed suitable”. Section 473.113 RSMo 1969; State ex rel. Gregory v. Henderson, 230 Mo.App. 1, 88 S.W.2d 893, 904[3, 4] (1935).

The record fails to show that the probate court based its appointment upon the allegedly “false statement” of respondent. On the hearing on the application to revoke her letters, the probate court’s findings necessarily include its conclusion that the respondent is a suitable and competent person to administer the Bloomer estate and that no cause appeared for her removal, and the circuit court affirmed this finding. No abuse of discretion is shown either in her appointment or the courts’ refusal to remove her.

The authorities relied upon by appellants are not in point. Rookstool v. Neaf, 377 S.W.2d 402 (Mo.1964), involved an action for specific performance of an alleged oral contract to keep mutual reciprocal wills in force after a divorce. The court there held that the alleged contract was barred by the Statute of Frauds and that no partial performance sufficient to take the oral contract outside the statute was shown. The court also held that since wills are ambulatory, the provisions of Section 474.420 RSMo 1969 were applicable to wills executed before its effective date where the death of the testator occurred thereafter.

In State ex rel. Couch v. Kelso, 217 S.W.2d 596 (Mo.App.1949) the public administrator was appointed to administer decedent’s estate within a few days after death, upon the representation that there were no heirs entitled to statutory priority. It was shown by the evidence, however, that there was an heir — competent, suitable, seeking such appointment, and entitled to priority. A writ of mandamus to- compel the probate court to revoke the letters of the public administrator was made absolute, the court holding that his appointment was “unseem-ingly hasty” and illegal.

The appellants also cite Donelson’s Estate v. Gorman, supra, involving the propriety of the appointment of a public administrator where the only asset was a claim for wrongful death.

These authorities are not persuasive under the facts in this case. The appellants’ second point is ruled against them.

The third and last point urged by appellants is, that the probate court has the inherent power and duty to remove an administrator whose appointment is void or improvidently made, and it is not necessary that grounds for removal under Section 473.140 RSMo 1969 be shown. The thrust of this argument is that the appointment of an administrator where there is no vacancy and based upon false statements invokes this inherent power and duty.

Unquestionably, this inherent power and duty resides in the probate court and should be exercised in a proper case, as where the appointment is void or illegal for any reason. The exercise of this power, however, was neither appropriate nor necessary in the circumstances of this case. The discussion, authorities and rulings heretofore stated in this opinion as to the first and second points are equally determinative of appellants’ third point, which is, therefore, inapplicable.

The judgment and order of the court below is modified by eliminating the finding and judgment:

“The Court finds that Ruth Hays Capps, now serving as Administrator (sic) of this estate with Will Annexed, has no interest in said estate as an heir, legatee or beneficiary and is not entitled to appointment or to administer estate as an heir, legatee or benificiary (sic);”

and is affirmed in all other respects.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Charles William WALTERS, Appellant.
    No. KCD 27507.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    William G. Mays, II, Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction and sentence of 15 years’ imprisonment, imposed by court under Second Offender Act (§ 556.280, RSMo 1969), upon jury verdict finding Charles William Walters guilty of robbery in the first degree with a deadly weapon. §§ 560.120, 560.135, RSMo 1969.

At around 3:00 P.M., September 11, 1973, Charles Wolfe was alone, working in his upholstery shop in Columbia. A man entered the store, grabbed Wolfe around the neck, dragged him to the cutting bench, placed a sharp object at Wolfe’s back and said: “Give me your money or I’ll kill you.” The intruder took Wolfe’s billfold, containing about $30.00, from Wolfe’s pocket, threw a bedspread over Wolfe’s head and left. Wolfe did not see the man, but saw his arm and could tell that the robber was white and wore a short-sleeved, gold colored shirt.

Renee Spence, who lived four doors from Wolfe’s shop, was standing on her front porch at around 3:00 o’clock, September 11, 1973. She saw a car, with three occupants, park between her residence and Wolfe’s shop. The person on the right front seat got out of the car, went to the front of Wolfe’s shop, looked in, then went to the side door and entered the shop. At that juncture the driver saw Ms. Spence. He backed to the rear door of Wolfe’s shop, sounded the horn and left. Because she was suspicious, Ms. Spence noted the license number of the auto.

When the police arrived at the scene in response to Wolfe’s call following the robber’s departure, Ms. Spence told them what she had observed and gave them a description of the car and its license number.

Sometime later in the afternoon, police found an auto which matched the description. As an officer was checking the vehicle, Daryl Marshall approached and said that he was its driver. Marshall, placed under arrest on suspicion of armed robbery, told police that he had been driving around with Mike Hall and the appellant as passengers in the car; that Walters asked him to stop near Wolfe’s shop and he did so and Walters got out and went into the shop.

The police contacted Mike Hall, who told them the same story. They attempted to get in touch with Walters, but were not successful. The next morning, an officer went to the Crossroads Trailer Court where Walters lived with a sister. He was admitted to the trailer by Walters’ sister. When the officer went toward the rear, he heard a loud crashing noise and saw Walters’ feet as he went through the window. After a brief pursuit, Walters was apprehended.

Upon interrogation by officers, Walters said that he, Marshall and Hall were riding around, drinking beer and vodka, and that they stopped at Wolfe’s and Marshall went in and robbed Wolfe. Later, he retracted this story and admitted that he robbed Wolfe.

At Walters’ trial, Wolfe, Marshall, Hall, Ms. Spence and the police officers involved in the investigation and arrest testified for the state to substantially the above facts. Walters’ statement, admitting his commission of the robbery was introduced in evidence, a pre-trial motion to suppress the statement having been overruled after a hearing. No evidence was offered by the defendant.

The jury trial resulted in a verdict of guilty and after finding the Second Offender Act applicable, the judge imposed a sentence of 15 years’ imprisonment.

On this appeal the sole assignment of error relates to the trial court’s sustaining objection by the state to cross-examination by defense attorney of Mike Hall concerning his juvenile court record. The proceedings upon which the complaint is based are as follows:

“Q. Mr. Hall, you testified yesterday that you’re 15 years old, is that right?

“A. Yes, sir.

“Q. Are you under the supervision of the juvenile court?

“MR. DOAK: Your Honor, I’m going to object to that again. * * * Once again we’re getting into this same type testimony and I believe that the fact that he’s under the supervision of juvenile authorities is.it’s indicative of the fact that he has a juvenile record which as we said yesterday is not a conviction that can be used in impeachment.

“THE COURT: Mr. Mays?

“MR. MAYS: Your Honor, the purpose of the question goes to show whether or not the Defendant (sic) has possible bias and has.therefore is adverse.has possible bias reasons why he may be testifying as he is, therefore, I am entitled to inquire as to whether or not he is under the supervision of the juvenile court and for the same reasons that we are.have the right of confrontation.

“THE COURT: Yes, the objection will be overruled. You may answer the question.

“A. Yes, sir.

“Q. You are under the supervision of the juvenile court?

“A. Yes, sir.

“Q. And how long have you been under the supervision of juvenile court?

“A. Since I was about 12.

“Q. And for what purposes have you been.why have you been under the supervision of the.

“MR. DOAK: I say at this time I’d like to object again and ask to approach the bench. I think at this time he is getting into the.what would be the nature of a prior conviction which is not a prior conviction. The question, why are you under, is obviously brings up misconduct which would be a prior conviction, (sic)

“THE COURT: Yes, that objection will be sustained.

“MR. MAYS: Well, Your Honor, uh

“THE COURT: Mr. Doak.

“MR. MAYS: At this point and time the witness still has not elucidated as to why he’s under the supervision. It could be from incidents arising from this particular incident. I admit that is true.

“THE COURT: Not since he was 12 years old, overruled.

“Q. Mike, have you come under the supervision of the juvenile court as a result of your participation in this particular incident that we’ve been talking about today and yesterday with Daryl Marshall and Mr. Walters?

“A. Sir?

“Q. Have you been taken before the juvenile court as a result of your par-tic.participation in this incident with Mr. Marshall and Mr. Walters in September? Have you been charged.face any sort of charges as a result of this?

“A. I don’t think so.

“Q. But your are under the supervision of the juvenile court now, is that right?

“A. Yes.”

Appellant endeavors to bring this case within the ambit of the recent decision of the United States Supreme Court in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). That case involved a prosecution in which the trial court had applied an Alaska statute (§ 47.10.080(g), Alaska Stat.) prohibiting the use of juvenile court action in other courts, to provide a state’s witness, on probation by order of the juvenile court after he had been adjudicated delinquent for having committed two burglaries, with a protective order which prevented his cross-examination concerning the juvenile adjudication.

The United States Supreme Court held that the effect of the order was to deny the defense the right of effective cross-examination of the witness and that the defendant’s right to confrontation of witnesses against him under the Sixth Amendment to the Constitution of the United States was superior to the state’s interest in protecting juveniles from exposure of the juvenile court records.

In this case, the ruling of the trial court was based upon provisions of § 211.271 1. and 3., RSMo 1969, under which adjudications of the juvenile court are not to be considered convictions and records of the juvenile court are not to be used for any purpose in civil or criminal proceedings. See State v. Williams, 473 S.W.2d 388, 389-390[1] (Mo.1971).

Appellant argues that under the Davis decision, his right of confrontation of witnesses must prevail over the state’s policy, expressed in the statute, of shielding juveniles. “Specifically defense counsel wished to place before the jury the nature and dates of the offenses which led to Hall’s supervision by the juvenile court to suggest that Hall was biased, and that his identification testimony was not to be believed or carefully considered in that light.”

The decision in Davis did not amount to a general condemnation of státutes such as § 211.271 when applied to limit cross-examination of witnesses in criminal cases. As Justice Stewart noted in his concurring opinion in Davis, that case related to “a particular prosecution witness” “in the circumstances of this case.” “In joining the Court’s opinion, I would emphasize that the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.” 415 U.S. 321, 94 S.Ct. 1113.

The circumstances of this case clearly distinguish it from Davis. In Davis, the witness involved (Green) was the only person who identified the defendant as having been seen near where a safe, stolen in the burglary with which the defendant was charged, had been found. The safe was found near the home of Green’s stepfather. Defense counsel attempted to show that Green might have been uneasy because the safe had been discovered near his home, but was unable, because of the protective order, to show that such uneasiness might have resulted from his juvenile probation, resulting in an identification of another in order to exclude suspicion directed toward himself. The court in Davis noted that the cross-examination of Green was aimed at showing the possibility of bias, but, because of the protective order, could not bring out “ why Green might have been biased or otherwise lack that degree of impartiality expected of a witness at trial.” The court also noted that the limitation on the cross-examination permitted the witness to give testimony of obvious doubtful veracity without being subject to cross-examination which might have exposed the witness’s untruthfulness.

In this case, the cross-examination produced the information that Hall was subject to the jurisdiction of the juvenile court. Appellant thus got whatever benefit might flow to him by reason of questioning the witness’s bias on this account. This is a major distinction between the present case and Davis, in which the jury received no information whatsoever covering Green’s previous record.

The only thing that appellant here was precluded from showing was the nature of the offenses which resulted in Hall’s being subject to the juvenile court’s jurisdiction. Appellant has not shown how the nature of the offenses, aside from the fact of the witness’s being subject to juvenile court jurisdiction, would have related to any possible bias on the part of the witness. The basic fact of Hall’s juvenile court experiences was before the jury. Insofar as bias, as distinguished from general attack on credibility based upon prior criminal activity, was concerned, the action which produced the juvenile court’s assumption of jurisdiction was immaterial.

Another distinguishing feature of this case from Davis is in the significance of the testimony of the witness. In Davis, Green’s testimony was crucial in placing the defendant at the place where the safe was found. There was circumstantial evidence to support the witness’s testimony, but essentially it stood alone as direct evidence of that fact. Here, Hall’s testimony was corroborated by that of witness Marshall. Appellant attacks Marshall’s credibility, inasmuch as he was a prisoner at the Boone County Jail at the time of the trial. Nonetheless, Marshall’s testimony was to the same effect as that of Hall, so that Hall’s testimony was not crucial to the same extent Green’s was in Davis. Furthermore, in this case the state produced appellant’s confession of his responsibility for the crime. Appellant says that he questioned the voluntariness of the confession by his pre-trial motion, by his plea of not guilty and by his objection at the trial. Nevertheless, insofar as the jury was concerned, there was no contrary evidence to that produced by the state, showing a completely voluntary confession, albeit the appellant had previously attempted to place the blame on Marshall.

Therefore, Hall’s testimony in this case was not of the crucial nature of that of Green in Davis. For that further reason, the Davis case does not control this case.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Elree McRAE, Appellant.
    No. KCD 27527.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Gary Eldredge, Eldredge & Sterling, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

Defendant entered a plea of guilty to robbery in the first degree by means of a dangerous and deadly weapon, in violation of Section 560.120 RSMo 1969, and was sentenced to ten years in prison. He contends on this appeal that said sentence should be reduced as it was excessive as a matter of fundamental fairness and constitutes cruel and unusual punishment, and further, that this court has jurisdiction to review and reduce sentences imposed by the trial court.

This point is without merit. Defendant’s sentence falls within the statutory limits, of five years to life imprisonment, delineated in Section 560.135 RSMo 1969. In the absence of a showing that the sentencing court was influenced by motives of prejudice or was induced by corruption, State v. Jenkins, 510 S.W.2d 491, 493[4] (Mo.App.1974), a claim that the sentence was excessive or constituted cruel and unusual punishment is not cognizable in our appellate courts. State v. Bibee, 496 S.W.2d 305, 312[10] (Mo.App.1973); State v. Heinrich, 492 S.W.2d 109, 113[5, 6] (Mo.App.1973); State v. Courtney, 425 S.W.2d 121, 123[4] (Mo.1968); State v. Crider, 419 S.W.2d 13, 15[7] (Mo.1967); State v. Maxwell, 376 S.W.2d 170, 174[13] (Mo.1964); State v. Childers, 313 S.W.2d 728, 733[11] (Mo.1958). Defendant has not demonstrated, nor has this court found, any evidence of prejudice or corruption in the sentencing procedure. No error of law appearing, it is determined that an extended opinion would have no precedential value. Rule 84.16(b) V.A.M.R.

The judgment of the trial court is affirmed.

All concur.