author: ALDEN A. STOCKARD, Special Judge.

text:
    ST. LOUIS POLICE OFFICERS’ ASSOCIATION, a Not-for-Profit Corporation, William Vorbeck, Walter Otten, Donald Strate, John Dolan and Gerald Haley, Appellants, v. Theodore McNEAL, Edward J. Walsh, Jr., Joseph G. Stewart, Salees Seddon and John Poelker, Members of the Board of Police Commissioners, City of St. Louis, Missouri, Respondents.
    No. 37864.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      London & Greenberg, C. John Pleban, St. Louis, for appellants.
    Jack L. Koehr, City Counselor, Charles M. Kunderer, St. Louis, for respondents.
   ALDEN A. STOCKARD, Special Judge.

In their petition for- a declaratory judgment and injunctive relief, the plaintiffs alleged:

(a) St. Louis Police Officers’ Association is a not-for-profit corporation, organized and existing under the laws of the State of Missouri and chartered for the purpose, among others “To mitigate the hazards of the work of police officers, to advance workable programs for improved working conditions and conditions of employment, to further measures of excellence in and for their happiness and equal opportunity with all persons, and the moral and spiritual satisfaction for member officers, their dependents and all people in their public care.”

(b) The association has a membership of approximately 1,850 commissioned police officers, including the five persons named as plaintiffs, which constitutes more than 80% of all commissioned personnel of the St. Louis Police Department.

(c) The named defendants comprise the Board of Police Commissioners of the City of St. Louis, (hereafter referred to as “the Board”) which is vested by the State of Missouri with general administrative and supervisory control over the St. Louis Police Department, and in accordance with its duties and authority the Board has set out in its “Police Manual” the following criteria for promotion within the Police Department:

“8.201 Promotions — When any vacancy shall take place in any grade of officers, it shall be filled from the next lowest grade except as may be provided for in the selection of Chief, Assistant Chief and Inspector. Promotions shall be made according to fitness and merit, as determined by the Board.”

(d) Each of the individual plaintiffs, is commissioned and employed as an officer of the St. Louis Metropolitan Police Department. Each accepted employment and continued his employment within the Police Department in reliance upon the representation by the Police Department that promotions would be made according to “fitness and merit.”

(e) The Board has failed and refused to define “fitness and merit” as used in the said rule, and police officers and these individual plaintiffs have not been provided “with objective criteria by which they can determine whether or not they are eligible for promotion.”

(f) Despite plaintiffs’ many requests that the Board publish a list indicating the respective standings of officers competing for promotion, the Board has refused and declined to do so, but has promoted officers “upon considerations and standards not consistent with Rule 8.201, * * * and officers have been promoted upon criteria other than fitness and merit including, but not limited to, political and racial considerations and the Police Department has therefore refused and neglected to carry out the aforesaid agreement to base promotions on fitness and merit, all to the extreme detriment and injury of these plaintiffs.”

(g) By reason of the refusal of the Board to set forth “definite objective criteria for promotion,” police officers and particularly the individual plaintiffs “have been prevented from pursuing their contractual rights” and “have been denied equal protection of the law” in that they have been denied “the right and opportunity to compete with other police officers for promotion.”

(h) By reason of the foregoing, St. Louis Police Officers’ Association has been “jeopardized, restrained and prevented from pursuing its legitimate purposes, under its charter, in that, without definite criteria for promotion within said police department, membership and activities within and for said association is considered to be an adverse factor in determining an eligibility for promotion and said Association has therefore been and unless appropriate action is taken by this Court, will in the future be, restrained and hampered in recruiting membership and pursuing its legitimate purposes.”

(i)Unless defendants are permanently restrained and enjoined by this court from making promotions without reference to specific criteria and without benefit of a promotion list indicating the respective standings of officers competing for promotion, “plaintiffs will continue to be deprived of their contractual rights, * * * and of rights and opportunities guaranteed to them under the Constitution of the United States and the State of Missouri.”

The prayer is for an injunction restraining and enjoining the defendants “from making promotions within said Police Department until such time as specific criteria are established for said promotions,” and until such time as the individual plaintiffs and other police officers are advised of said criteria and of their respective standings with respect to promotion competition. As further and additional relief it is prayed that the court issue its declaratory judgment respecting the rights and obligations of the parties hereto with respect to the necessity for promotion criteria and publication of promotion lists, and for such other relief as to the court may seem just and proper.

The substance of plaintiffs’ allegations is that by reason of an express and implied contractual relation between each police officer and the Board they are entitled to have the court (1) require the Board to establish and declare (a) “specific criteria” for promotion of police officers, and (b) the “respective standings" of police officers with respect to eligibility for promotion, and (2) enjoin the Board from making any promotion without reference to the specific criteria and without benefit of the promotion list.

The evidence is quite lengthy. We shall not set it out in detail, but shall set forth those facts as we have found them to be which are necessary to the determination of the issues.

In order to establish a list of officers who are eligible to be considered for promotion, the Board instituted a plan referred to as “The Three Criteria.” This plan was set forth in a published report in which it was stated:

“3. The list of officers eligible for promotion shall consist of the upper one-third of the force, with three or more years of service, based on their comprehensive scores, which comprehensive scores shall be determined by the following weighting: Proficiency tests 45%, evaluation of performance on the job, record, leadership qualities, etc., 45% and a maximum of 10% for seniority (½% for each year). The eligible list will be made public prior to considering any promotion.
“4. A screening committee composed of three top police administrators shall assist the Board in further reducing the list of eligibles to be considered by the Board to three times the number of vacancies existing in each category. The Board will then make the necessary promotions from that list.”

Subsequently, the weight factors were changed to other percentages. Evaluation of performance by officers comprising a screening committee involved consideration of appearance, demeanor, work attitude, dependability, communication skills, professional knowledge, relationship with people, and judgment. The proficiency test score, the score received from the screening committee, and seniority points were used to arrive at a composite score which provided the overall ranking of those eligible for promotion.

In the determination by the Board of those officers to be promoted it did not limit itself to The Three Criteria, but as the trial court found, it also considered the following factors:

(1)The overall good and needs of The Department and the community,
(2) Morale of the Department,
(3) Recommendations of the screening committee,
(4) Personal recommendations of Chief of Police Camp,
(5) Physical condition, including weight, of the officer,
(6) Age of the officer,
(7) Time spent by the officer in his present rank,
(8) Disciplinary action involving the officer,
(9) Commendations earned by the officer,
(10) Educational attainments of the officer,
(11) Leadership qualities,
(12) An effort to strike a balance between promotion of young officers and older officers,
(13) Ability to relate to the community,
(14) The fact of an officer having successfully acted in the rank above the rank he held,
(15) Seniority (In addition to that considered in The Three Criteria),
(16) Possession of special skills required in a given vacancy,
(17) A determination by the Board of the officer best suited for the job,
(18) Street experience, and
(19) Absenteeism.

The trial court also found that officers who made recommendations to the Board considered the following factors, and these factors were therefore indirectly considered by the Board:

(1) Sustained demonstrated ability,
(2) Specialized training or job assignment,
(3) Initiative,
(4) Loyalty,
(5) Job enthusiasm,
(6) Experience,
(7) Recognition to all branches of the Department, and
(8) Intention to promote from diverse assignments.

The trial court found that The Three Criteria evaluation was used by the Board to determine eligibility to be considered for promotion, but that it was not the sole criteria for the selection of those to be promoted. Also, the court found that there was no agreement to consider only The Three Criteria in making promotions, and that plaintiffs have neither a contractual nor constitutional right to be provided in advance with the criteria and factors used by the Board in determining which officers are to be promoted. The trial court also found that the consideration by the Board of those other factors, as herein set out, was permissible because they “fall well within any reasonable definition of the terms ‘fitness’ and ‘merit’ * *

At trial the evidence ranged over several issues not presented as issues on this appeal. By their first point, appellants limit their contention and assert that the trial court erred (1) in finding that “the use of non-disclosed promotional criteria, including race, by [the] Board did not violate the contractual relationship between appellants and respondents,” and (2) in further finding that “the said non-disclosed criteria were in fact disclosed to appellant police officers.” Appellants assert that “these findings were not supported by a preponderance of the evidence adduced at trial.”

We first note the Association is a named appellant. We do not understand that there is any contention that there was any “contractual relationship” between the Board and the Association concerning the criteria to be used in determining what officers should be promoted, and we find no basis for such a contention if made. In our discussion of the first point the use of the term “appellants” refers to the individuals named as plaintiffs.

In support of their contention that an implied contract came into existence between each police officer and the Board, appellants cite Francis v. St. Louis County Water Company, 322 S.W.2d 724, 726 (Mo.1959) and Roper v. Clanton, 258 S.W.2d 283 (Mo.App.1953). In the first case it was stated that the distinction between an express contract and an implied contract “lies in the manner of manifesting mutual assent.” The second case simply holds that under certain circumstances a contract between parties may be implied from the circumstances. These two cases state sound legal principles, but neither is particularly helpful in ruling the precise issue presented in this case.

The duty to regulate, control and operate the Police Department is vested by statute in the Board, §§ 84.010-84.340, and it has the duty and authority to make “all such rules and regulations, not inconsistent with sections 84.010 to 84.340, or other laws of the state, as [it] may judge necessary, for the appointment, employment, uniforming, discipline, trial and government of the police.” § 84.170.

Aside from the issue as to whether the Board could validly contract with individual police officers as to what matters it would or would not take into consideration in making promotions, and thereby impair or limit the broad discretionary powers invested in the Board by statute, we find no agreement or contract that the Board would limit its considerations in determining promotions to The Three Criteria as appellant officers contend. Appellants rely on the provisions of Rule 8.201, and they assert because of the provisions of this rule that when an officer accepted and remained in employment, an implied agreement based on the rule came into existence. But, assuming that some implied agreement was created, the terms thereof would not be as claimed by appellant. The rule states that “Promotions shall be made according to fitness and merit, as determined by the Board.” Therefore, the terms of the agreement would not be that only The Three Criteria would be used, but that promotions would be made on fitness and merit as determined by the Board. This necessarily means that the Board would consider such factors as it reasonably deemed appropriate under the circumstances and not prohibited by law.

We can find no basis whatever to conclude that appellants have either a statutory or contractual right to be provided in advance with the specific criteria or the factors to be employed by the Board in determining which qualified officers are to be promoted. The applicable statute, § 84-170, vests broad powers in the Board to promulgate rules for the operation and management of the Police Department, and by rule the Board has provided that promotions should be made according to fitness and merit “as determined by the Board.” It is not for the courts to decide whether as a matter of policy or improved employee-relations the Board should limit itself to pre-publieized “specific criteria” in making promotions. That determination falls within the legislative function and the discretionary powers granted to the Board by statute. We agree with the trial court that those factors set out above which were considered by the Board in making promotions “fall well within any reasonable definition of the terms ‘fitness’ and ‘merit’.”

By reason of the conclusion we have reached above, we need not consider the contention that the trial court erred in finding that the factors other than The Three Criteria were in fact disclosed to appellants.

In their remaining point appellants assert that the trial court erred in its finding (1) that the Board’s use of race in the promotional process did not violate their right to equal protection of the law and their right to compete for promotions equally with other officers, and (2) that the use of race in the promotional process did not result in the promotion of officers who were less qualified than officers not promoted.

The trial court found that in some instances officers whose comprehensive score from The Three Criteria was relatively high were passed over for promotion of officers with a lower comprehensive score, but permissible criteria and factors other than the comprehensive score were considered and, therefore, it does not necessarily follow that officers with lower comprehensive scores who were promoted were less qualified than those with a higher comprehensive score who were not promoted. The trial court specifically found that each officer who was promoted during the time under consideration was qualified for promotion. We agree with the trial court that in its determination of merit and fitness for purposes of promotion the Board was not restricted to the consideration alone of the comprehensive score from The Three Criteria.

As indicated in appellants’ second point, the precise contention presented on this appeal is limited to the assertion that the consideration of race as one of the numerous other factors denied appellants’ right to equal protection of law and resulted in the promotion of officers less qualified than officers not promoted.

The record establishes that in the determination by the Board of which qualified officers should be promoted it took into consideration numerous factors, and it is admitted that in some cases race was one of those factors. The trial court found this to have been improper, but it ruled that there was not evidence that any particular officer was adversely affected by the injection of race as a factor in the promotional process, or that this factor resulted in the promotion of any officer who was less qualified than an officer not promoted.

We note that this is not a class action. We have as plaintiffs an association who as such could not be adversely affected by the consideration of race in the promotional process. We also have five individual police officers as plaintiffs, only one of whom testified. There is no evidence that any one of these five officers were passed over for promotion because the Board considered race as a factor in the promotional process. In these circumstances we find no actual controversy between persons whose interests are in fact adverse, and any decree would be advisory only. Contracting Plumbers Ass’n of St. Louis v. City of St. Louis, 249 S.W.2d 502 (Mo.App.1952); Lawyers’ Association of St. Louis v. City of St. Louis, 294 S.W.2d 676 (Mo.App.1956).

Since the appeal in this case was taken the United States Supreme Court has handed down its opinion in Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). It would be of questionable value to attempt to set forth here a summary of the ruling in that ease, but from the several opinions filed the following principles can be gleaned.

1. The goal of achieving a racially diverse student body, and by analogy a police force, is sufficiently compelling to justify a limited consideration of race, and this would apply to the employment and promotion of police officers.
2. Racial and ethnic classifications are inherently suspect and call for a most exact judicial scrutiny.
3. An employment or promotional program which forecloses consideration of persons on the basis of race which is unnecessary to the achievement of the goal of racial diversity is invalid.

The record before us indicates that on those occasions when race was considered, it was but one of many factors considered in the evaluation process of selecting qualified officers for promotion, and that the Board has not established a “quota system” which forecloses any officer on the basis of race from consideration. We cannot determine from the record in this case that the principles announced in the Bakke case have been violated. The Board now has the guidelines therein set forth with which to govern its conduct, and anything further or action by this court would be premature and advisory.

As to St. Louis Police Officers’ Association, the petition is dismissed. In all other respects the judgment is affirmed.

DOWD, P. J., and SNYDER, J., concur.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    In the Matter of REGULAR REPORT OF the GRAND JURY OF ST. LOUIS COUNTY, Missouri, SEPTEMBER TERM 1977, addressed to the Honorable Milton Saitz, Judge of the Circuit Court of St. Louis County, Missouri, Division No. 17.
    No. 40499.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 1979.
    Application to Transfer Denied Sept. 11, 1979.
    Alan C. Kohn, Mark J. Bremer, Charles S. Elbert, Stemmier & Stemmier, James A. Stemmier, St. Louis, for appellant.
    George R. Westfall, Pros. Atty., Larry Mooney, Gary T. Soule, James C. Busch, Asst. Pros. Attys., Clayton, for respondent.
   CRIST, Judge.

This is a Grand Jury case. On July 24, 1977, a fire occurred at the premises of the Plastic Bottle Corporation in University City, Missouri. At the scene of the fire a picket line formed around the burning building. The University City Policemen were present at the scene. Neighboring fire districts and departments arrived to fight the fire; however, the fire burned out of control.

On January 12, 1978, the Grand Jury of St. Louis County filed a written report in the Circuit Court of the County of St. Louis. The report contained the following paragraph:

“PLASTIC BOTTLE CORPORATION FIRE
This Grand Jury is critical of the University City Police Department in its handling of the Plastic Bottle Corporation fire on July 24, 1977. It is our opinion that pickets at the scene of the fire were allowed to seize control from the police. Neighboring fire districts and departments that responded to the call were not provided adequate protection to enable them to fight the fire. It is our conclusion had this protection been provided to these fire departments the fire could have been brought under control. We believe by failing to provide this protection, the University City Police Department was remiss in its duties. However due to the pending civil litigation resulting from this incident, we feel it would be inappropriate to comment any further on the matter at this time.”

Appellants claim that there is no authority for the Grand Jury to file such report which contains criticisms and accusations falling short of indictment. We agree.

This case is controlled by the decision of Matter of Interim Report of Grand Jury, 553 S.W.2d 479 (Mo.banc 1977). In that case the report read, in pertinent part, as follows:

“The investigation revealed that Mr. Stein became aware of the mishandling of funds [in the petty cash account of the Clay County Planning and Zoning Office] and after becoming aware did not take any appropriate action to protect these funds, either through releasing the employee involved or by taking effective action to prevent said employee from having the opportunity to mishandle the funds.”

Stating that the power of a Grand Jury to investigate and inquire is limited to finding or returning indictments, the Supreme Court held: a Grand Jury has no authority to report short of indictment, unless it is on the conditions of public buildings as mandated by § 540.020(1) (1969). Id. at 479.

Respondent argues that Matter of Interim Report of Grand Jury can be distinguished from the case at bar because in Matter of Interim Report of Grand Jury (1) the report named the. public official, (2) the named public official had committed an indictable offense, and (3) the report was interim not final. Because the Grand Jury had no authority in our case to make such a report, these allegedly distinguishing facts are not determinative. They do not alter the conclusion that the Grand Jury acted beyond its authority.

While there is reason to hold that the Grand Jury in our case should be permitted to make such report, we are unable to go against the mandate of our Supreme Court in Matter of Interim Report of Grand Jury, supra.

The judgment based on the order overruling appellant’s motion is reversed and the case is remanded with directions that the Grand Jury’s report be expunged from the court’s files and records.

DOWD, P. J., and SATZ, J., concur.


author: MANFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Henry ROLLIE, Appellant.
    No. 29515.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      Henry M. Rollie, pro se.
    Donald 0. Tripp, Liberty, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Direct appeal from jury conviction for murder in the first degree. Jury affixed punishment at life imprisonment. Motion for new trial timely filed and overruled. Affirmed.

This court is presented with fifteen points upon which to rule. Seven of these points come by way of appellant’s brief filed by court appointed counsel. Eight of these points come by way of appellant’s pro se brief.

Recitation of pertinent facts is a necessity created by the admixture of points raised.

The Grand Jury of Clay County, Missouri indicted appellant on charges of attempted robbery and felony murder on March 17, 1976. Attorney Brian Hall was appointed to defend appellant.

On April 22, 1976, appellant filed his motion for change of venue and after a hearing upon the motion, the cause was transferred to Clinton County. Attorney Hall was granted leave to withdraw as counsel, and attorney Joe Scott was appointed his successor. On November 10, 1976, appellant was reindicted in Clay County for first degree murder pursuant to § 559.007, RSMo Supp.1975. Attorney Hall was reappointed defense counsel, but at appellant’s request, was relieved and the court appointed P. Wayne Kuhlman as defense counsel.

On December 19, 1976, appellant filed his request to represent himself. The record in this case is replete with the questioning concerning this request and following an extensive hearing, the trial court concluded appellant was sufficiently intelligent, educated and mentally aware to have made his request voluntarily and with full knowledge and understanding of his actions. The court ordered attorney Kuhlman to be present at trial and to assist appellant should appellant make a request for assistance.

Appellant then filed a series of motions as follows:

(1) Request for use of telephone
(2) Request for use of law library at prescribed hours 3-4 days per week.
(3) Copies of transcripts of co-defendants trials.

On March 25, 1977, a substitute information for the indictment was filed, charging appellant with first degree murder. Appellant filed a motion for a Bill of Particulars, which was sustained and an answer thereto was filed by the state. On April 4, 1977, the trial commenced with appellant acting as his own defense counsel, assisted by attorney Kuhlman.

The evidence of record is summarized as follows:

On March 10, 1976, between 10:00 a. m. and 10:30 a. m., three armed and masked men entered the North Hills Bank in Clay County. Two employees, two customers and the security guard were in the bank. Almost simultaneously with the robbers’ entry into the bank, gunshots were exchanged between the would-be robbers and the security guard. The guard suffered multiple and fatal wounds. The robbers fled the scene, taking no money with them. Upon their flight, two of them were observed by a passing motorist. This motorist followed the get-away car and secured the license number. The get-away ear, a 1973 gold Ford LTD, was found abandoned later and was determined to have been stolen.

One of the robbers fled on foot and was observed by another witness. This witness observed this robber removing his coveralls. The witness later identified this robber upon a separate trial as one Robert Denson.

The evidence further established that on March 10, 1976, one Mary Morris had granted permission to one James Faulkner to use her apartment in Jackson County, Missouri for a meeting. This meeting commenced at 8:30 a. m. and appellant was present along with Cardis Berry, James Faulkner, Steven Williams, Robert Denson and Jerome Hand-ley. Upon arrival, all were dressed in street clothes, but upon departure, Handley, Williams and Denson wore striped jumpsuits.

At approximately noon on March 10, 1976, appellant and James Faulkner returned to the Morris apartment to listen to the news. Shortly after their arrival, they were joined by Handley and Williams.

Appellant and Faulkner inquired as to where the money was and were advised by Handley and Williams that there was no money and that there had been trouble with the security guard. Morris testified that appellant became angry upon learning of the results. Approximately 10 minutes later, Berry arrived at the apartment by cab, but Morris did not admit him to the apartment.

James Faulkner, turning state’s evidence in exchange for a 15 year sentence, testified that in January of 1976, he commenced plans for the robbery of the bank. He further testified that in mid January, he discussed the matter with appellant and appellant agreed to rob the bank. He further testified that he, appellant and others drove to Clay County to “scope” the bank for purposes of furthering the robbery plans. Faulkner further testified appellant solicited Steven Williams for the latter’s role in the robbery. The plan called for Handley, Williams and Denson to rob the bank.

A gold LTD and a blue and black Buick were stolen for use in the robbery scheme. At 8:00 a. m. on the morning of the robbery, Faulkner, appellant and the others met at Faulkner’s apartment. At this meeting, the weapons “were wiped down” for purposes of removing fingerprints. Three striped jumpsuits and ski masks were furnished Handley, Williams and Denson.

Faulkner, appellant and Berry were driven to the Morris apartment by one Loren Brown. Brown had been persuaded to drive the trio to the Morris apartment by Faulkner. En route to North Kansas City in Clay County, appellant left the others to make an appearance at a place called Coach’s Council at 18th and Paseo, Kansas City, Jackson County, Missouri. Appellant was required to appear at the Coach’s Council at the direction of appellant’s parole officer.

The plan included appellant being picked up by Faulkner at 18th and Paseo. Faulkner, upon his return from Clay County, picked up appellant. Appellant and Faulkner returned to the Morris apartment to await the return of the others.

Appellant was arrested in Jackson County, Missouri on March 15, 1976. When taken into custody, appellant was hiding under a chest of drawers. Appellant had in his possession two bus tickets. One ticket was good for a trip from Kansas City to St. Louis; the second, from St. Louis to Washington, D.C.

Appellant did not testify upon trial, but called two witnesses in his behalf. The first witness was Steven Williams. This witness admitted his participation in the crime, but denied seeing the appellant upon the day the crime was committed. This witness, úpon his own trial concluded previously, testified, however, appellant was involved, but explained his change of story because Faulkner had told him to testify against appellant in his own trial.

The second witness, Jerome Handley, admitted his role in the robbery, but testified appellant was not involved or present at its planning. At the close of the evidence, the jury found appellant guilty and assessed his punishment.

Fifteen alleged errors are presented by appellant’s counsel and by appellant’s pro se brief.

I — (Counsel)

“The trial court erred in failing to inquire into defendant’s request for change of venue and in trying the defendant in Clay County, Missouri.”

I — (Pro se)

“The trial court was without jurisdiction to try appellant as the evidence failed to establish that appellant commited [sic] any offence [sic] in Clay County.”

Point one is ruled against appellant. Allegations that the court should have inquired into appellant’s request for change of venue is not supported by the evidence. The record shows appellant was furnished case law and procedural instructions by attorney Kuhlman; appellant did nothing relative to a formal motion for change of venue.

Rule 30.04 requires an application for a change of venue shall be made, setting forth the facts or grounds upon which such change is sought.

Appellant cannot be heard to complain on this point for three reasons. First, counsel had advised him as to what was needed. Appellant rejected this advice. Secondly, appellant had, pursuant to the first indictment, successfully filed and was granted a change of venue, and was to that extent, familiar with the necessity to make a formal request for a change of venue. Finally, appellant refused to permit such a motion to be filed. Mere general allegations of prejudice without facts supporting the allegations do not suffice. See State v. Denmon, 473 S.W.2d 741 (Mo.1971), State v. Euge, 349 S.W.2d 502 (Mo.App.1961).

There is nothing in the record on this case to even suggest that the procedure or the jurors selected were prejudiced against appellant. The failure or refusal of the court on its own motion to order a change of venue was not an abuse of discretion.

As to the matter raised in appellant’s brief (Pro se I), it is likewise without merit.

It is true our state constitution, Article I, § 18(a), insures to an accused the right to a speedy trial by an impartial jury of the county. This has been interpreted to mean a speedy trial by an impartial jury of the county wherein the crime was committed. This constitutional guarantee is further supported by statute, see § 541.033, RSMo 1969, which provides:

“Persons accused of committing offenses against the laws of this state, except as may be otherwise provided by law, shall be prosecuted:
1. In the county in which the offense is committed . . . ”

In resolving this point, specific statutory language and the evidence of record as it interrelates to the statutes, must be considered conjunctively.

Appellant argues he was an alleged aider and abettor, thus concluding he was at best an accessory before the fact, and thus under Article I, § 18(a) of the Constitution of Missouri and § 541.033, RSMo (1969), venue for his trial was in Jackson County, Missouri, not Clay County, Missouri.

§ 541.110, RSMo 1969 provides:

“An indictment against an accessory to any felony may be found in any county where the offense of such accessory shall have been committed, notwithstanding the principal offense may have been committed in another county; and the like proceedings shall be had therein, in all respects, as if the principal offense had been committed in the same county.”

If this particular statute was the only factor to consider, the court would be required to recognize the validity of appellant’s conclusion. However, the evidence herein established appellant accompanied James Faulkner, Jerome Donnell and Steven Williams to the area of the bank in Clay County. This trip, according to witness Faulkner, had a twofold purpose. The first was to observe the bank or “scope it” by use of binoculars. Secondly, the trip included Steven Williams for the express purpose of allowing Williams to decide whether Williams wanted to participate in the robbery. It should be recalled that Faulkner testified appellant solicited Williams to participate in the robbery.

Other testimony, although contradicted, placed appellant in Clay County on the morning of the robbery. Witness Loren Brown testified appellant accompanied James Faulkner and Cardis Berry to Clay County. This point was contradicted by Faulkner, who testified on the morning of the robbery appellant was let out of the car in Jackson County at 18th and Paseo.

An additional factor must be considered on this point. § 556.170, RSMo 1969 applies to the case at hand and reads as follows:

“Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as the principal in the first degree.”

This statute has been interpreted to mean that, “Under the statute all persons who participate in a crime may be charged, tried, convicted, and punished alike.” State v. Cline, 452 S.W.2d 190, 194 (Mo.1970). Also see State v. West, 484 S.W.2d 191 (Mo.1972); State v. Johnson, 510 S.W.2d 485 (Mo.App.1974).

While our courts have spoken to the status of accessory versus principal and have concluded those accused shall be tried in like manner, no direct decision has been made on the precise question of venue. This question, being deserving of an answer as it is squarely presented herein, deserves a review of how other jurisdictions have addressed the question.

As to how other jurisdictions with similar statutory or case provisions have reasoned upon the issue, see U. S. v. Buckhanon, 505 F.2d 1079, 1083 (8th Cir. 1974) Minn.; State v. Reeves, 246 Ark. 1187, 442 S.W.2d 229 (1969); People v. King, 30 Cal.App.2d 185, 85 P.2d 928 (1938); Gee v. State, 110 Ga. App. 439, 138 S.E.2d 700 (1964); Workman v. State, 216 Ind. 68, 23 N.E.2d 419 (1939); People v. Doe, 264 Mich. 475, 250 N.W. 270 (1933); Watson v. State, 166 Miss. 194, 146 So. 122 (1933); Baker v. State, 124 Tex.Cr. App. 300, 62 S.W.2d 132 (1933).

In interpreting the foregoing cases and by adopting the reasoning set forth in these cases, it is expressly declared herein that in those cases wherein an individual or individuals and their acts complained of, shall fall within § 556.170, RSMo 1969, venue shall be proper in the county wherein the accessorial act or the principal act occurred without regard to any distinction between an accessorial or principal act or acts.

For further consideration of this question, see § 541.033(2), RSMo 1969, which, for purposes of prosecution, provides:

“Persons accused of committing offenses against the laws of this state, except as may be otherwise provided by law, shall be prosecuted: .
2. If the offense is committed partly in one county and partly in another, or if the elements of the crime occur in more than one county, then in any of the counties where any element of the offense occurred.”

Once again, the application of this statute has not been made to the question of venue by our courts. However, see Commonwealth v. Parker, 108 Ky. 673, 57 S.W. 484 (1900) and Watson v. State, supra.

As it relates to the precise question of venue, § 541.033(2), RSMo 1969 is interpreted herein to mean that proper venue shall lie for the trial of an accused whose act or acts bring him within this statute in any county in which any one or all the elements of the offense has occurred.

Before final disposition of this question, it should be pointed out also that the challenge as to venue is a matter which can be waived by an accused for his failure to object or to timely raise the question. The record herein as has been pointed out, reflects appellant, although advised by counsel and having experienced a previous award of a change of venue under prior indictment, in fact did waive any claim for a change of venue. See State v. Lynn, 169 Mo. 664, 70 S.W. 127 (1902); State v. Speedy, 543 S.W.2d 251 (Mo.App.1976).

II — (Counsel)

“The trial court erred in refusing to appoint an attorney who could provide effective assistance of counsel.”

III — (Pro se)

“The court erred in denying appellant effective assistance of counsel in the conduct of his defense.”

This point raised by both counsel and appellant via his pro se brief could be summarily disposed of for the failure to comply with Rule 84.04(d) and made applicable to criminal cases by Rule 28.18. In State v. Robinson, 551 S.W.2d 309 (Mo.App.1977) such failure was held not to have preserved an issue for appeal.

While adherence to Rules 84.04(d) and 28.18 has not been strictly complied with, review of the argument and transcript enables the court to consider the matter.

It should be pointed out that usually such question is presented to the court under a motion pursuant to Rule 27.26. In fact, the state Supreme Court has refused to review this particular issue on direct appeal. See State v. Blackwell, 459 S.W.2d 268 (Mo. banc 1970); State v. Smith, 454 S.W.2d 539 (Mo.1970); State v. Cluck, 451 S.W.2d 103 (Mo.1970).

However, the record herein contains sufficient evidence to provide a meaningful review and by virtue of appellant’s incessant contention of prejudice, the question is taken up for disposition.

At the outset, declaration of the standard applicable to determination of the issue must be stated. In the most recent decision prescribing the standard, Seales v. State, 580 S.W.2d 733 (Mo. banc 1979), our State Supreme Court has held that standard to be:

“ ‘The accepted standard for effectiveness of trial counsel is now established as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances. United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977). Furthermore, there is a presumption that counsel is competent, Thomas v. Wyrick, 535 F.2d 407, 413 (8th Cir.), cert. denied, 429 U.S. 868, 97 S.Ct. 178, 50 L.Ed.2d 148 (1976), and the petitioner must shoulder a heavy burden to override this presumption. Id.; Crismon v. United States, 510 F.2d 356, 358 (8th Cir.1975); McQueen v. Swenson (McQueen I), 498 F.2d 207, 214 (8th Cir.1974). Finally, the exercise of reasonable judgment, even when hindsight reveals a mistake in that judgment, does not render a lawyer negligent or lacking in competence in rendering his services.’ ”

While appellant’s contention goes beyond the question of effective assistance of counsel, it should be pointed out that all of the attorneys herein were prevented from assisting appellant because of his continued general allegation of prejudice and mistrust of the attorneys. The record is quite clear that appellant consistently refused assistance from the attorneys assigned to help him. Such action by appellant led to his filing his motion, and after an extensive hearing by the court, the court granted said motion, allowing appellant to defend himself.

The record reveals the court appointed counsel on four different occasions. The record also shows that after appellant refused counsel, an extensive hearing was held and it was found appellant was possessed of sufficient intelligence, awareness and education to render his decision to act as his own defense counsel, a voluntary act. Such actions amounted to a waiver within State v. Gaye, 532 S.W.2d 783 (Mo.App. 1975).

The record also reveals the court instructed attorney, P. Wayne Kuhlman, to be available at trial and to assist appellant during the course thereof. In fact, the record reveals attorney Kuhlman presented part of the closing argument to the jury on behalf of the appellant.

Point II (counsel’s brief) and III (Pro se brief) are ruled against appellant for the foregoing reasons. Further, the general allegations of prejudice, followed by appellant’s demand to represent himself, nullify any claim of failure by the trial court to appoint effective counsel.

The demand by appellant that he be appointed counsel outside of Clay County was supported by nothing more than general allegations of racial prejudice. The trial court made repeated attempts to establish the facts upon which appellant’s allegations rested, but appellant, although provided the repeated opportunity, simply failed to produce evidence to support the allegation.

Since appellant’s contention goes to the action of the trial court, the question of whether appellant was entitled, upon mere demand, to counsel outside of Clay County, must be addressed. The selection of counsel for an indigent accused is within the discretion of the trial court. State v. Hamblin, 448 S.W.2d 603 (Mo.1970); State v. Riley, 394 S.W.2d 360 (Mo.1965).

While an indigent accused is entitled to appointment of counsel, that right does not create the conclusion that such accused is entitled to any particular attorney, State v. Jefferies, 504 S.W.2d 6 (Mo.1974); State v. Williams, 419 S.W.2d 49 (Mo.1967); State v. Haddix, 566 S.W.2d 266 (Mo.App.1978); State v. Sweazea, 555 S.W.2d 670 (Mo.App. 1977). Insofar as State v. Hamblin, State v. Riley, State v. Jefferies, State v. Williams, State v. Haddix and State v. Sweazea, supra, apply herein they are construed to mean that no trial court is required to appoint an attorney outside the particular county of venue without sufficient evidence which establishes the necessity therefor.

Whether any reference is made to the standard prescribed by Seales v. State, supra, or not, the evidence clearly establishes appellant was afforded every opportunity to be properly represented by competent counsel. There was no error by the trial court.

Ill — (Counsel)

“The trial court erred in refusing to provide defendant a transcript of prior proceedings.”

This issue, as raised, violates Rule 84.-04(d) and is made applicable herein by Rule 28.18. Without additional reference to justify review of this matter because of the arguments and the record, it is sufficient in disposing of this issue to point out that appellant had filed motions for transcripts of trial proceedings of other defendants. This point is raised erroneously in fact and under a misunderstanding of the law.

The record reveals that appellant made demand for the transcripts of the testimony of James Faulkner and Loren Brown, witnesses in the separate trials of defendants, Williams and Handley. The record also reveals that the transcript of the Williams trial was provided appellant and that the proceedings in the trial of Handley had not been transcribed at the time of appellant’s demand; but from appellant’s own admission on his motion for new trial, he had, in fact access to the transcript of the Handley trial as well.

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) and Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971) relied upon by appellant, are distinguishable from the case herein. Griffin v. Illinois, supra, merely directs that an indigent prisoner must be provided the same basic tools to prepare his defense when those tools are available to other prisoners for a price. In the case herein, the transcript had not been made at the time of demand and was available to nobody, including the state.

Britt v. North Carolina, supra, dealt with the right of an accused to a copy of a transcript of a previous trial of the same accused, which ended in a mistrial. In this case, the court, while concluding that refusal to such a transcript was not error, also established criteria to be followed in making a valid decision upon such a request. These were (a) the value of the transcript to the defendant in connection with the trial for which it is sought, and (b) the availability of alternative devices which would fulfill the same functions as a transcript. In Britt v. North Carolina, supra, the court concluded there were available alternatives.

Some courts have justified an outright refusal to require that the state furnish an accused a copy of the transcript of a co-defendant’s trial. See Elliott v. Morford, 557 F.2d 1228 (6th Cir. 1977), cert. denied 434 U.S. 1040, 98 S.Ct. 782, 54 L.Ed.2d 790 (1978); State v. Coe, 223 Kan. 153, 574 P.2d 929 (1977); State v. Cox, 101 N.J.Super. 470, 244 A.2d 693 (1968), cert. denied 53 N. J. 510, 251 A.2d 449 (1969); State v. Elliott, 524 S.W.2d 473 (Tenn.1975). One jurisdiction, it is found, rejects the majority view and requires the providing of such transcript. See State v. Campbell, 215 N.W.2d 227 (Iowa 1974).

In the case of U. S. v. Bamberger, 482 F.2d 166 (9th Cir. 1973), cert. denied 414 U.S. 1041, 94 S.Ct. 543, 38 L.Ed.2d 332 (1973), the court held it was harmless error to refuse a defendant a copy of the transcript of his second trial where he had, in fact, a transcript of his first trial. As in the case herein, the accused in U. S. v. Bamberger, supra, desired to use such transcript for impeachment. The appellant herein had a copy of the transcript of the Williams trial and access to the transcript in the Handley trial. There was no plain error in refusal to provide appellant herein with a copy of the transcript of the Hand-ley trial.

For the reasons set forth above, this issue is ruled against appellant.

At this juncture, points IV and VI of counsel’s brief and point II of appellant’s pro se brief are taken up together as they interrelate to the same issue.

The points raised are as follows:

IV — (Counsel)

“The trial court erred in allowing state’s substitute information.”

VI — (Counsel)

“The indictment and substitute information failed to charge defendant with first degree murder.”

II — (Pro se)

“The substitute information was fatally defective as it failed to specifically charge an offense to which appellant could defend against, and it fails to bar a subsequent prosecution for the same alleged acts.”

Rule 24.02 permits the substitution of an information any time before verdict. This right accorded the state is not absolute, however, and must provide (1) no additional or different offense is charged and (2) no substantial rights of the defendant are prejudiced.

Upon the question of prejudice, “The test of prejudice is whether a defense under the charge as originally made would be equally available after the amendment and whether defendant’s evidence would be equally applicable after as well as before the amendment.” State v. Taylor, 375 S.W.2d 58, 63 (Mo.1964). See also State v. Wilson, 544 S.W.2d 859, 862 (Mo.App.1976). A careful review of the record, however, established appellant’s defense was equally available after the filing of the substitute information as it was prior to the filing of same.

Further, on this issue, appellant contends the substitute information was vague and did not adequately charge the appellant with the offense. This point was never raised in appellant’s motion for new trial, but Rule 28.02 requires this court to review the information for sufficiency. See State v. Meiers, 412 S.W.2d 478 (Mo.1967) and State v. Williams, 546 S.W.2d 533 (Mo.App.1977).

Rule 24.01(a) prescribes the criteria for determining the sufficiency of an information. That rule includes: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” See State v. Phelps, 478 S.W.2d 304 (Mo.1972); State v. Simone, 416 S.W.2d 96 (Mo.1967).

Careful study of the indictment and the substitute information leads to the conclusion that the charges against appellant were sufficiently and definitely described to enable appellant to defend himself and were of sufficient clarity to fall within the rules required in State v. Simone, supra; State v. Tandy, 401 S.W.2d 409 (Mo.1966) and State v. Barlett, 394 S.W.2d 434 (Mo.App.1965).

An added factor in the case herein which dispels appellant’s position on this issue is that appellant filed a Bill of Particulars to which the state filed its answer.

For the foregoing, points IV and VI raised by counsel and point II raised pro se are ruled against appellant.

Point V raised by counsel only states that “[t]he trial court erred in refusing defendant access to a law library and use of telephone.” Appellant filed his motion for use of a law library for four hours per day, three days per week.

While the court overruled appellant’s motion, the court ordered appellant should have the privilege of using the bar library the same as members of the public and the Bar would be entitled, but appellant’s confinement, of course, made such unrestricted use impossible. A hearing was held wherein the Clay County Jail Administrator testified to the security problems involved in appellant’s request.

At this point, appellant was again reminded by the court of the advisability of accepting appointed counsel, but appellant refused the court’s suggestion. While this point was not properly preserved for appeal under Rule 84.04(d) and applicable herein under Rule 28.18, there is sufficient evidence of record and argument raised to review the issue.

In his brief, appellant cites Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), which without doubt is the leading case on an indigent accused’s right of access to the courts by requiring prison authorities to assist inmates in the preparation of proper legal papers and by providing prisoners with adequate law libraries. The court in Bounds v. Smith, supra, 97 S.Ct. at 1499, also pointed out “. . . that while adequate law libraries are one constitutionally acceptable method to assure meaningful access to the courts, our decision here . . . does not foreclose alternative means to achieve that goal.”

In the ease of U. S. v. West, 557 F.2d 151 (8th Cir. 1977), an alternative means of providing adequate access to the courts for prisoners was determined. In U. S. v. West, supra, as in the case herein, the accused elected to represent himself and refused assistance from available counsel. The court, on appeal, denied the defendant’s contention that he was denied adequate opportunity to prepare his defense and that the rule in Bounds v. Smith, supra, was satisfied by the accused having available adequate assistance from persons trained in the law. For further application of the alternative question, see Boston v. Stanton, 450 F.Supp. 1049 (W.D.Mo.1978).

The appellant herein at all times had the readily available assistance of persons trained in the law to assist him.

On the allegation that appellant was denied the use of the telephone, appellant fails to indicate to this court how that denial resulted in any manifest injustice or plain error. In fact, the record shows counsel was available and willing to interview witnesses on appellant’s behalf.

The court committed no error and for the foregoing reasons, point V is ruled against appellant.

The next point raised by appellant joins point VII of Counsel’s brief with point VI of appellant’s pro se brief and they read as follows:

VII — (Counsel)
“The trial court erred in its instruction’s [sic] to the jury.”
VI — (Pro se)
“It was error for the court to give instructions Number 5 and 6 as they were misleading, improper and unsupported by the evidence or the charge.”

Neither point VII raised by counsel, not point VI raised by appellant’s pro se brief, technically preserved anything for this court to review. As to point VII, appellant makes a mere general allegation of error and provides no reasons as to why the instructions were erroneous. See State v. Hickman, 411 S.W.2d 195 (Mo.1967) and State v. Pope, 364 S.W.2d 564 (Mo.1963).

As to point VI of appellant’s pro se brief, no specific objection was made concerning instructions upon trial or in appellant’s motion for new trial. See State v. Rennert, 514 S.W.2d 579 (Mo.1974); State v. Young, 534 S.W.2d 585 (Mo.App.1976); Rule 20.03.

Any alleged error upon failure to comply with Rule 20.03 must be reviewed under Rule 27.20(c), the plain error rule. Review under that rule has been properly limited to those cases wherein the record establishes the trial court has misdirected or failed to instruct the jury on the law of the case so as to cause manifest injustice. See State v. Auger, 434 S.W.2d 1 (Mo.1968) and State v. Johnson, 559 S.W.2d 756 (Mo.App.1977).

The instructions complained of herein sufficiently conform to MAI-CR 2.10 and MAI-CR 2.14. In addition, appellant contends there were several variances between the charge of the substitute information and the instructions. Appellant contends the information charges appellant, “aided, abetted and encouraged” while a reading of the instructions used the terms of “aided and encouraged.”

Appellant’s contention amounts to nothing more than a fanciful play on words as the interchange of the terms employed between the information and the instructions carry no material variance either expressly or inferentially, which could be construed to have been prejudicial to the appellant, thus resulting in plain error. See State v. Crossman, 464 S.W.2d 36 (Mo.1971); State v. Collins, 519 S.W.2d 362 (Mo.App.1975); State v. Kirk, 510 S.W.2d 196 (Mo.App.1974).

For the foregoing reasons, point VII raised by counsel and point VI raised by appellant’s pro se are ruled against appellant.

Point V raised pro se by appellant states:

V — (Pro se)
“Prosecution knowingly used prejured [sic] testimony and suppressed material facts, which resulted in the wrongful conviction of appellant.”

Appellant’s contention here rests solely upon the inconsistent statements made by witnesses Loren Brown and James Faulkner at trial and statements made by each at a prior time. Such inconsistent statements do not amount to perjury. In the case of State v. Vidauri, 305 S.W.2d 437, 440 (Mo.1957), the court declared, “. . . the very essence of the crime of perjury is wilful false swearing to a substantially definite material fact.”

Not only does appellant fail to establish wherein such inconsistent statements were the wilful false swearing of a material fact, but his attack on this issue goes much further and this requires appellant to establish the alleged perjured testimony was deliberately falsified, known by the prosecutor to be false and that the conviction was obtained as a result of such perjured testimony. See State v. Flauaus, 515 S.W.2d 873 (Mo.App.1974) and State v. Nolan, 499 S.W.2d 240 (Mo.App.1973).

Neither appellant’s argument nor the evidence of the record supports appellant and for the foregoing decisions, point V raised pro se is ruled against appellant.

Point VII raised pro se reads:

VII — (Pro se)
“The court erred in allowing the prosecution to interject statements in the closing arguments to the jury that were designed to prejudice and inflame jurors against appellant.”

No objection as to the closing argument of the prosecution was made by appellant. There technically was nothing preserved for review by this court, however, the point is entertained from the record and the argument.

The portion of the argument which appellant attempts to attack on appeal relates to the plea by the prosecution for law enforcement and the jury to do its duty.

The prosecution has a right to call attention to the prevalence of crime, to urge a jury to do its duty and uphold the law. Also, inferences from conditions for failure to uphold the law may be drawn. See State v. Pruitt, 479 S.W.2d 785 (Mo. banc 1972); State v. Lang, 515 S.W.2d 507 (Mo.1974); State v. Rodriguez, 484 S.W.2d 203 (Mo.1972); State v. Crawford, 478 S.W.2d 314 (Mo.1972), appeal dismissed 409 U.S. 811, 93 S.Ct. 176, 34 L.Ed.2d 66 (1972); State v. Elbert, 438 S.W.2d 164 (Mo.1969); State v. Steward, 564 S.W.2d 95 (Mo.App.1978).

There is requirement upon the court that absent an objection by an accused when the argument is “so glaringly offensive and prejudicial” the court should intervene and put a stop to the argument, see State v. Goodwin, 352 S.W.2d 614 (Mo. banc 1962).

The record fails to reflect any glaringly offensive and prejudicial remarks by the prosecution upon the portion of the argument attacked by appellant on this appeal.

The record also fails to support appellant’s contention that the closing argument herein falls within the category of cases holding that an argument was designed and directed toward arousing the personal hostility of the jurors toward the accused. See State v. Groves, 295 S.W.2d 169 (Mo.1956); State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524 (Mo.banc 1947); State v. Ellinger, 549 S.W.2d 136 (Mo.App.1977); State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973).

Nothing of record shows the closing argument of the prosecution to have placed in the minds of the jurors that an acquittal of the appellant would place them or their families in danger. The argument did not speculate on any future criminal activity of appellant. In essence, the argument was a general plea for upholding the law.

There was nothing apparent or inferential in the argument which was inclusive of glaring offense or prejudice toward appellant. For the foregoing reasons, point VII pro se is ruled against appellant.

Appellant further raises pro se point IV, which reads:

IV — (Pro se)
“The verdict of guilty is unsupported by substantial or sufficient evidence.”

Resolution of this point by appellant requires reiteration of the rules applicable upon review of a verdict by jury. In determination of the sufficiency of the evidence, “. . . the facts in evidence and all favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded.” State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

After the application of the rule in State v. Franco, supra, the court is left to determine whether there is substantial evidence from which reasonable persons could have found an accused guilty as charged. State v. Longmeyer, 566 S.W.2d 496 (Mo.App.1978).

Appellant herein participated in the crime as an aider and abettor. The court has defined those terms as follows:

“Aiding or abetting, in the sense that those words are used in criminal law, contemplate conduct calculated to incite, encourage or assist in the perpetration of a crime. These words comprehend all assistance rendered by acts or words of encouragement, incitement or support in the criminal act and involve some participation, either before or at the time the criminal act is committed. It implies some conduct of an affirmative nature.” State v. Muchnick, 334 S.W.2d 386, 388 (Mo.App.1960).

Evidence which fairly shows any form of affirmative participation that an accused in any way aided, abetted or encouraged another in the commission of a crime is sufficient to support conviction. See State v. Stockdale, 415 S.W.2d 769 (Mo.1967); State v. Ramsey, 368 S.W.2d 413 (Mo.1963).

An accused’s participation in the offense may be inferred by his conduct before, during or after the commission of the offense, see State v. Corbin, 186 S.W.2d 469 (Mo.1945); State v. Jackson, 519 S.W.2d 551 (Mo.App.1975). Conviction will stand upon evidence, proving participation in the planning of the crime, see State v. Slade, 338 S.W.2d 802 (Mo.1960), State v. Hayes, 262 S.W. 1034 (Mo.1924); State v. Evans, 545 S.W.2d 694 (Mo.App.1976); that it need not be proven defendant was physically present when the offense was committed, see State v. Siekermann, 367 S.W.2d 643 (Mo.1963) and State v. Slade, supra; nor that the accused did all the acts which make up the elements of the crime, see State v. Evans, supra, and State v. Lemon, 504 S.W.2d 676 (Mo.App.1973), and that the uncorroborated evidence of an accomplice will sustain a conviction unless such testimony lacks probative value as not to amount to substantial evidence, see State v. Evans, supra, and State v. Powell, 433 S.W.2d 33 (Mo.1968).

Following the principles announced in the foregoing cases and in applying such principles to the evidence in this case, the conclusion is inescapable that there was substantial evidence to support the jury’s guilty verdict.

The testimony of witness Faulkner established appellant agreed several weeks before the actual crime to join Faulkner and others in the perpetration of the actual robbery. Witness Faulkner further testified appellant participated in the planning sessions at Faulkner’s apartment and at the apartment residence of Mary Morris. Faulkner’s testimony established appellant accompanied Faulkner and others to the bank location in Clay County to view and “scope” the bank. Testimony by this same witness included repeated statements that appellant was in agreement to rob the bank.

Both witness Faulkner and Mary Morris testified appellant was present at the Morris residence, both before and after the commission of the offense and witness Morris testified appellant made inquiry of other participants as to where the money was from the robbery.

While witness Loren Brown’s testimony was inconsistent with the testimony of witness Faulkner as to appellant being in Clay County on the day of the commission of the offense, Brown’s testimony did corroborate the testimony of both Morris and Faulkner that appellant was at the Morris residence the morning of the day the offense was committed and that appellant in fact accompanied Faulkner to the Morris residence.

There was substantial evidence that the jury could have found appellant aided and abetted the commission of the robbery and for the foregoing reasons, point IV is ruled against appellant.

The final point raised is by way of point VIII by counsel, which reads:

VIII — (Counsel)
“The trial court erred in failing to grant defendant a new trial.”

Counsel, on this point, presents no authorities. In addition, counsel adopts by reference points within appellant’s pro se brief.

Point VIII by counsel is ruled against appellant not only for failure to comply with Rule 84.04(d) and made applicable herein by Rule 28.28, but because determination of the various points adopted by reference thereunder have been addressed and disposed of within the preceding portions of this opinion.

Finding no error, the verdict within the trial court is for all purposes herein affirmed.

All concur.

      . For purposes of clarity, each point is taken up as expressed first in counsel’s brief and then as expressed in the pro se brief, followed by the court’s disposition of both.

      . These points, while not numerically identical, are taken up together as they address the same issue.

      . Alternative in this case, due to circumstances of trial location and court personnel, was the availability of court reporter notes from first trial.


author: FLANIGAN, Chief Judge.

text:
    James C. SNIDER and Leon DeWayne Snider, Plaintiffs-Appellants, v. Lavern WILSON et al., Defendants-Respondents.
    No. 10647.
    Missouri Court of Appeals, Southern District, Division One.
    June 11, 1979.
    Motion for Rehearing or to Transfer Denied July 5, 1979.
    Application to Transfer Denied Sept. 11, 1979.
    Michael Baker, Springfield, for plaintiffs-appellants.
    Keith V. Williams, Springfield, for defendants-respondents.
   FLANIGAN, Chief Judge.

Plaintiffs James C. Snider and Leon De-Wayne Snider brought this ejectment action (Rule 89) against six defendants who are members of the Mountain View Church. The Mountain View Church is unincorporated but it is affiliated with The Church of God of the Apostolic Faith, Inc. The church building and a portion of its premises are located on a 40-acre tract. Plaintiffs inherited the 40-acre tract from their mother but the deed under which their mother took the title contains this language: “Less one-half acre deeded for church.”

The six defendants were sued as “representative parties” (Rule 52.08) of the congregation. The petition, which was in conventional form, alleged that defendants were unlawfully withholding a described portion of the 40-acre tract. The prayer of the petition was for possession of that portion together with damages and costs.

The amended answer pleaded a description of the area in dispute. The amended answer also pleaded that “the congregation and its members” had acquired title to the disputed area by adverse possession and that title thereto has vested in them “by virtue of the statute of limitations and that plaintiffs have no right, title, claim nor interest therein.” The amended answer also denied that plaintiffs were entitled to possession of the disputed area and denied that plaintiffs had been damaged.

Significantly the prayer of the amended answer was “that plaintiffs’ petition be dismissed and for naught held” and that defendants be discharged with their costs. Neither the petition nor the amended answer requested that the court determine and adjudicate title to the disputed area.

The trial court sitting without a jury, entered judgment denying plaintiffs relief on the petition and assessing the costs against the plaintiffs. Plaintiffs appeal.

Although plaintiffs’ brief contains five “points relied on” each of them presents the same claim of error: that the trial court erred in including in its judgment any determination or adjudication of the title to the disputed area. The claim of error is well taken. Indeed defendants’ brief, at least tacitly, concedes the error.

The portion of the judgment which is under attack reads: “[T]he court] finds that trustees Bill Shriver, Floyd Kidd and Walter Russell, and their successor trustees, of the Mountain View Church of God of the Apostolic Faith, Barry County, Missouri, are the sole legal owners for the use and benefit of said church and its members and congregation of the following described land, to-wit: [description].” The judgment also stated two “reasons” in support of the title adjudication.

Plaintiffs’ brief challenges the validity of the two “reasons” and advances additional arguments against the soundness of the trial court’s title adjudication. These matters need not be discussed for the reason that under the pleadings the trial court had no authority to adjudicate the title.

Plaintiffs’ petition, seeking possession and damages, was solely one in ejectment. Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008, 1019[17-22] (1927). Ejectment is a possessory action. Wood v. Gregory, 155 S.W.2d 168, 170[3] (Mo.1941); Domyan v. Dornin, 348 S.W.2d 360, 361 (Mo.App.1961). In an “ordinary, simple straight” action in ejectment in which no title relief is sought, title to real estate is involved only incidentally or collaterally and not directly. Domyan, supra, at 361.

Domyan was an ejectment action. Neither the petition nor the answer sought determination of title to the real estate. A portion of the judgment of the trial court purported to adjudicate title. The court of appeals pointed out that portion was void, as being “without the issues raised by the pleadings” and “beyond the relief sought therein.” However, the inclusion of the void portion had the effect of vesting appellate jurisdiction in the supreme court.

Neither the petition nor the amended answer in the case at bar sought an adjudication of title. “While ownership including the possessory right was a fact to be determined, title, evidencing ownership, was but incidentally involved and neither of the parties, plaintiffs nor defendant, sought the relief of an adjudication of title. So it must be held the trial court’s judgment in so far as it adjudicated title was coram non judice and void.” Hoelmer v. Heiskell, 359 Mo. 236, 221 S.W.2d 142, 144[4] (1949). See also Brown v. Wilson, 348 Mo. 658, 666-667, 155 S.W.2d 176, 180[15, 16] (banc 1941).

The mere fact that the amended answer pleaded defensively that “the congregation and its members” had acquired title to the disputed area by adverse possession, unaccompanied by an affirmative request that the court determine and adjudicate title, did not give the trial court authority to make such an adjudication and determination. See Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471, 477[9] (1949) and City of Caruthersville v. Cantrell, 230 S.W.2d 160 (Mo.App.1950), in each of which pleadings of a nature similar to those in the instant case are discussed and their legal effect is pointed out.

The portion of the judgment purporting to adjudicate title, set forth in the seventh paragraph of this opinion, must be deleted. The portion of the judgment containing the description of the disputed area and denying plaintiffs relief on the petition, both as to their claim for possession and damages, and assessing the costs against the plaintiffs, is affirmed. The cause is remanded to the trial court with instructions to modify the judgment in accordance with the views expressed herein. As so modified the judgment is affirmed.

It is so ordered.

TITUS, J., and CAMPBELL, BARKER and HENRY, Special Judges, concur.

      . Unless otherwise indicated all references to rules are to Missouri Rules of Court, V.A.M.R.

      . Neither side has raised any question concerning the propriety or impropriety of the “class action” aspect of this litigation and any possible issue connected therewith is neither considered nor ruled.

      . The parties later stipulated that the description set forth in the amended answer was accurate.

      .It might be argued that plaintiffs’ first “point relied on,” if it is given a most liberal construction, also raises the issue of the propriety of the portion of the trial court’s judgment which denied plaintiffs’ claim for possession. That portion is fully supported by the record. No prec-edential purpose would be served by discussing the evidence pertinent to the issue of right to possession.

      . At the time Domyan, supra, was decided, the Supreme Court of Missouri had exclusive appellate jurisdiction in cases “involving * * * the title to real estate.” The court of appeals said: “ ‘If the judgment rendered determine title, that is sufficient to classify the controversy, and title is involved in the constitutional sense, regardless of whether or not the pleadings are broad enough to sustain the judgment.’ ” Domyan at 362. Under the present Constitution of Missouri, Art. V, § 3, the supreme court no longer has exclusive appellate jurisdiction in cases involving the title to real estate and jurisdiction of this appeal is in this court.

      . “[A] defendant who desires to seek the affirmative relief of a court in determining the question of title in respect to the land involved in the action in ejectment must mandatorily do so by way of a counterclaim interposed in such action or else be afterwards precluded from maintaining a suit to quiet title.” City of Caruthersville v. Cantrell, 230 S.W.2d 160, 162 (Mo.App.1950). See also Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471 (1949); Deeds v. Foster, 235 S.W.2d 262, 265[3] (Mo.1951).


author: TURNAGE, Judge.

text:
    STATE of Missouri ex inf. John C. DANFORTH, Plaintiff-Respondent, v. KANSAS CITY FIREFIGHTERS LOCAL NO. 42, A.F.L.-C.I.O., and Frank P. Shortino, John Germann, Robert Palmer, Jim Stevenin, Robert Ross, Michael J. Walsh, Ray Elder, Gene Scott, Berry Garrison, Al Bradshaw, Harold Knabe and Mike Lynch, Defendants-Appellants.
    No. KCD 29244.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      Lawrence F. Gepford, James L. Lyons, Albert A. Riederer, Kansas City, for defendants-appellants.
    John D. Ashcroft, Atty. Gen., William F. Amet and J. Paul Allred, Jr., Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

The attorney general filed suit against Kansas City Firefighters Local No. 42, an unincorporated labor organization, and individual members, for damages resulting from a strike conducted by members of the Union in October, 1975. The trial court entered judgment for the State and against the Union and all individual members of the Union who were scheduled to work during the strike period but refused to do so in the amount of $128,782.72 and exemplary damages in the sum of $25,000. On this appeal the Union members raise the decisive issue that the State caused the National Guard to take over firefighting duties in Kansas City without expectation of payment from the Union. Reversed and remanded.

In its petition the State alleged the Firefighters Local conducted a strike or work stoppage in violation of the statutory and common law and in furtherance thereof the members of the Union refused to respond to fire alarms or calls and refused to perform any other duties. It was alleged the Union members established picket lines and engaged in acts of sabotage of the facilities and equipment of the City and harassed members of the National Guard, Kansas City Police and volunteers who responded to fire calls. The petition alleged these acts by the Union members created a hazard to the public health and safety and to safeguard the people and property of Kansas City the Governor called out the National Guard to perform the duties and responsibilities of the Union members. The petition set forth in detail the numerous duties performed by the Guard and the number of guardsmen involved. The petition alleged that as a direct and proximate result of the illegal acts of the Union members, the State incurred expenses approximated at $150,-000. The petition further alleged the acts of the Union members were intentional, willful, malicious and in wanton disregard of the statutory and common law of Missouri, and, as a result, the State was entitled to punitive damages in the sum of $300,000. The prayer of the petition was for actual and punitive damages and costs.

The petition was filed on October 6, 1975. The ease was later submitted on stipulations of fact which agreed the Union members did conduct a strike from 7:00 A.M. on October 3, 1975, to 7:00 A.M. on October 7, 1975. The stipulation further agreed as to the cost to the State for the National Guard to be on duty for the period of the strike, which was the amount of actual damages found by the trial court. In addition, numerous depositions and exhibits were admitted by agreement. In fact, there is no disagreement as to the facts, the debate on this appeal being limited to the law. Both parties have stated in their briefs that the theory of the State utilized in the trial court was one of quasi-contract, and upon that theory alone they have joined issue here. Although quasi-contract is an action ex contractu, 17 C.J.S. Contracts § 6, p. 567, neither party comments on the distinctive tort ring sounded by the State’s petition, as emphasized by its allegation and prayer for punitive damages. Although tortious conduct on the part of the Union members was alleged, the petition did not plead facts from which the breach of a contractual duty could be inferred with the tortious conduct being an independent willful act in connection therewith as would be necessary to recover punitive damages in an action based on the contract. Wallick v. First State Bank of Farmington, 532 S.W.2d 520, 524[7, 8] (Mo.App.1976). The trial court in its findings of fact and conclusions of law followed the format of the petition and found the strike to be illegal but found there was insufficient evidence to show the Union members committed- any acts of sabotage in connection therewith. The court awarded the State its actual expenses incurred, including the cost of feeding the Guardsmen. The court awarded punitive damages on a finding that the Union willfully and intentionally violated the law and its obligation to the City and thereby acted in reckless disregard for the safety and welfare of the people of Kansas City. The parties agree the theory followed by the State in the trial court and on appeal is quasi-contract without discussion of the inconsistent notes struck by the petition and the findings of fact and conclusions of law with a contract theory. This court will review the case on the same theory on which it was submitted to the trial court and is presented here. Young v. Greene County, 342 Mo. 1105, 119 S.W.2d 369, 374[8] (1938).

The State contends it is entitled to recover under a class of quasi-contractual obligations known in the Roman law as Negotio-rum Gestio. This theory is discussed by Professor Woodward in the Law of Quasi Contracts, Part 2, p. 308 (1913). Under this theory Professor Woodward at page 310 discusses dutiful intervention in another’s affairs to the latter’s advantage. These are called acts of beneficial intervention which may result in quasi-contractual obligation in the following classes: (1) the discharge of another’s legal obligation, and (2) the preservation of another’s life or property. The discharge of another’s obligation may be regarded as dutiful if it appears (a) the obligation is of such a nature that actual and prompt performance of it is of great public concern; (b) a person upon whom the obligation rests has failed or refused, with knowledge of the facts, to perform it; or that it reasonably appears that it is impossible for him to perform it; and (c) he who intervenes is under the circumstances an appropriate person. The illustrations discussed by Professor Woodward under this doctrine involve the failure of a man to support his wife, a parent failing to secure needed medical attention for a child and the payment of burial expenses by those not legally required to do so.

The State contends it meets all of the requirements set forth by Professor Woodward and is, therefore, entitled to recover from the Union members the costs incurred by the State in performing the duties imposed upon the Union members. It is not necessary to decide, even ignoring all questions heretofore mentioned regarding the contents of the petition and the theory thereof, whether the State has satisfied all of the requirements; the Union members contend the law requires the State to pay the expenses of the Guard, and, therefore, it necessarily follows the State failed to show it caused the National Guard to perform firefighting services with an expectation of recovering its costs from the Union members. The requirement that the State show it performed the duties of the Union members in fighting fires and related duties with expectation of pay is recognized by Professor Woodward as a part of the doctrine of Negotiorum Gestio at ¶ 199, pp. 313-314. It is there stated that in most instances of dutiful intervention, the benefit is conferred — that is, the duty of another is performed — without expectation of compensation, and, therefore, there is no injustice for a party to retain the benefit without payment.

It was stipulated that the General Assembly appropriated $500,000 for the payment of expenses of the National Guard incident to emergency duties performed by the Guard for the fiscal year in which the strike occurred and that all expenses incurred by the National Guard in serving in Kansas City during the strike were paid from this appropriation. The stipulation contains a copy of the executive order by which the Governor called out the National Guard and which concluded with the statement, “The Adjutant General of the State of Missouri will provide all transportation and services and furnish all rations and other supplies essential to the militia for the proper performance of duties hereby authorized and ordered.”

The doctrine of Negotiorum Ges-tio espoused by the State is a sub-class within the law of quasi-contracts. The appropriate action to recover on a theory of quasi-contract is quantum meruit as one of the common counts in general assumpsit and the law of quantum meruit is well settled in Missouri. Rolla Lumber Company v. Evans, 482 S.W.2d 519, 522[4] (Mo. App.1972). One of the requirements for recovery under a theory of quasi-contract in quantum meruit is stated in Kolb v. Howard Corporation, 219 S.W.2d 856, 858-9[1, 2] (Mo.App.1949):

The evidence must of course disclose that the one who rendered the services did so under circumstances warranting a proper inference that he expected the recipient of the services to pay for them, and that the latter, in accepting the benefit of the services, was or should have been aware that they were being performed with that expectation.

The requirement that the services must be rendered with an expectation of payment is also stated in 66 Am.Jur.2d, Restitution and Implied Contracts, ¶ 26, pp. 970, 971, and Keener on Quasi-Contracts, Chapter VII, p. 341.

The National Guard was called to duty by the Governor pursuant to the authority vested in him by § 41.480,- RSMo 1969. There is no provision in that section or in the appropriation which contemplates recovery by the State of the cost for deployment of the Guard. Further, the Governor's proclamation specifically provided the expenses were to be paid by the Adjutant General, which means the State. All of the evidence negatives any intent on the part of the State to charge the Union members the expense of performing the firemen’s duty during the strike. In the absence of pleading and proof of this essential element in an action in quantum meruit to enforce a quasi-contract, the State’s cause of action must fail. This is not to suggest the State met all of the other requirements to recover under quantum meruit, but it is unnecessary to consider other elements when the essential element discussed is missing.

The Union members also contend the court erred in certifying this case as a class action under Rule 52.08. Pursuant to a request by the State, the court did enter an order finding this action was a proper class action under Rule 52.08 and the court ordered notice mailed to each member of the Union and that a notice be printed in a newspaper. No objection was made by the Union or any members concerning the certification of this case as a class action until this appeal. In its conclusions of law the trial court found this action was properly brought under Rule 52.10. That rule provides for actions brought by or against members of an unincorporated association as a class by naming certain members as representative parties. Rule 52.10 further provides that the court may make appropriate orders for notice to individuals corresponding to the notice to class members described in Rule 52.08(d). This court held in Burki v. Wiggs, 550 S.W.2d 933, 935[4] (Mo.App.1977) that in an action involving an unincorporated association, the court under Rule 52.10 had the discretion to order notice given to each member of the association. Thus, the giving of notice to the members in this action did not convert this from an action under Rule 52.10 to a class action under Rule 52.08. The Union members do not contend those persons named as defendants and as representatives of the Union would not or did not properly represent the Union members. The court was correct in finding this was a proper action against the Union as an unincorporated association under Rule 52.10 and the notice given to the members under the optional authority vested in the court did not deprive the court of power to find the action to come under Rule 52.08. State ex rel. Niess v. Junkins, 572 S.W.2d 468, 470 (Mo. banc 1978).

Rule 84.14 provides that unless justice otherwise requires, the court shall dispose finally of a case. It is well settled that,

“ ‘The furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had; and even though the plaintiff fails to substantiate the theory upon which his case was tried, if he nevertheless shows a state of facts which might entitle him to recover if his case were brought upon a proper theory, the judgment will not be reversed outright, but instead, in the exercise of a sound judicial discretion, the case will be remanded to give him the opportunity to amend his petition, if so advised, so as to state a case upon the theory which his evidence discloses.’ ” East v. McMenamy, Mo., 266 S.W.2d 728, 732; Yarrington v. Lininger, Mo., 327 S.W.2d 104, 111. Nelson v. Grice, 411 S.W.2d 117, 126[5, 6] (Mo.1967).

Although the State has failed to prevail on its contract theory, it might be that a tort theory would be available. In Pasadena Unified School District v. Pasadena Federation of Teachers, 72 Cal.App.3d 100, 140 Cal.Rptr. 41, 48[15] (Cal.App.1977) the court held the conduct of an unlawful strike is itself a tort for which damages may be recovered. See also Annot. 84 A.L. R.3d 336 (1978). There can be no doubt that a strike by public employees in Missouri is illegal. St. Louis Teachers Association v. Board of Education, Etc., 544 S.W.2d 573, 575[1] (Mo. banc 1976), and it may be that the State could show a state of facts which would entitle it to relief under a tort theory. Of course, this court is not deciding at this time whether or not the State can recover on a tort theory, but is deciding that in the furtherance of justice and in the exercise of a sound judicial discretion, this case should not be reversed outright but should be remanded to give the State opportunity, if it so desires, to proceed on another theory.

The judgment is reversed and the cause is remanded.

All concur.