author: STEPHAN, Presiding Judge.

text:
    STATE of Missouri, ex rel. Leroy YATES and Doris Jean Yates, Relators, v. Honorable Drew W. LUTEN, Jr., Judge, Circuit Court, St. Louis County, Respondent.
    No. 39987.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 3, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    W. W. Sleater, M. C. Sleater, Clayton, for relators.
    John A. Blumenfeld, Clayton, Robert C. Ely, St. Louis, for respondent.
   STEPHAN, Presiding Judge.

This is an original proceeding in mandamus. For reasons hereinafter stated, we quash the writ.

As best we can glean from the record, the facts leading up to the issuance of our alternative writ are as follows. In August 1973, relators filed suit in the Circuit Court of St. Louis County alleging that in January 1972 they had been injured as a direct result of the negligence of Vincent Nania, Sr. We are not told of the nature of the negligence alleged. However, it is admitted on behalf of the respondent, Judge Lu-ten, that, at the time of injury to relators, Mr. Nania was insured against claims arising out of his negligence, that the coverage was in the amount of $50,000, and that the prayer in the damage suit was in the amount of $35,000. Relators assert here that Mr. Nania died on December 24, 1974, but that they did not discover such fact until the damage suit “came to a position where it might be reached on the trial docket.” In the return, respondent states that the information was imparted to rela-tors’ attorney on December 23, 1975 during a pre-trial conference in respondent’s chambers. Relators do not traverse this in their reply. Relators state in their petition that at the time they discovered the fact of Mr. Nania’s death, his estate had been closed and all assets distributed. Respondent’s return asserts that the estate remained open for more than one year after the fact of Mr. Nania’s death was communicated to rela-tors’ attorney, a fact which we take as true as it is not responded to in relators’ reply. In any event, the estate was closed when relators sought to reopen it in October, 1977, by motion filed in the probate court.

The probate court refused to reopen the estate, whereupon relators applied to respondent for appointment of a defendant ad litem. Respondent’s denial of that application gave rise to the filing of the petition herein.

Relators contend that respondent is required to appoint a defendant ad litem by the language of § 537.021, RSMo Supp.1977, which is set forth here in relevant part:

“1. The existence of a cause of action for an injury to property, for a personal injury not resulting in death, or for wrongful death, which action survives the death of the wrongdoer or the person injured, or both, shall authorize and require the appointment by a probate court pf:
. (2) An executor or administrator of the estate of a wrongdoer upon the death of such wrongdoer, unless a deceased wrongdoer leaves no assets subject to probate administration and is insured against liability for damages for wrongdoing and damages may be recovered from the wrongdoer’s liability insurer; then, a probate court shall not appoint an executor or administrator, but the court in which any such cause of action is brought shall appoint a qualified person to be known as a defendant ad litem. The defendant ad litem shall serve and act as the named party defendant in such actions in the capacity of legal representative of the deceased wrongdoer.” [Emphasis added.]

Relators argue that the underscored portions of the above quoted statute authorize the appointment of a defendant ad litem by the respondent because, at the time the application was made, the Nania estate had no assets subject to probate administration. This is true, argue relators, because the estate had been opened, the assets distributed, and the estate closed, all prior to the filing of the application.

Looking, as we must, to the plain meaning of the above quoted statute, we see that the appointment of a defendant ad litem by the forum where the damage suit is brought occurs when two conditions exist: (1) the deceased wrongdoer leaves no assets subject to probate administration; and, (2) there is insurance coverage from which the damages may be recovered. The case before us fails the first test. Vincent Nania, Sr., left assets subject to probate administration, and over which probate jurisdiction was exercised. We do not perceive any way in which the statute can be read so as to equate the concept of a deceased’s not leaving assets with the concept of a deceased’s leaving assets which are subsequently distributed. Such notions are mutually exclusive. “It is our duty to determine the meaning of the statute from the words used by applying the plain and natural meaning of the language.” Bethel v. Sunlight Janitor Service, 551 S.W.2d 616, 619 (Mo. banc 1977), citing Laswell v. Industrial Commission of Missouri, etc., 534 S.W.2d 613, 616 (Mo.App.1976). The “plain and natural meaning of the language” in question here is perfectly clear: either Mr. Nania left assets or he did not. Relators admit that he did. Thus, assuming that § 537.021 had any applicability to the instant case, it is clear that it imposed no duty upon respondent to appoint a defendant ad litem. Indeed, it would have been improper for him to have done so.

Accordingly, the alternative writ is quashed.

KELLY and STEWART, JJ., concur.

      . No issue exists regarding the survival of rela-tors’ cause of action. Clearly, §§ 537.010 and 537.020, RSMo 1969, which were in effect at the time of Mr. Nania’s death in 1974, authorize the survival of various types of actions, and respondent in effect concedes in the return that the underlying action falls within one of those classifications.

      . The language quoted was in effect at the time relators sought appointment of a defendant ad litem in the circuit court and at the time the alternative writ of mandamus was issued. The statute has been amended, effective January 2, 1979, only to the extent it currently reads “a probate division of the circuit court” rather than “a probate court.”

      .Enacted by the Seventy-Ninth General Assembly in 1977, § 537.021 became effective September 28, 1977.

      . Because of the result reached, we need not determine the applicability of § 537.021 to a case involving an estate opened and closed prior to its enactment. Before that section came into existence the authorization for substitution of parties in actions which survived the death of the defendant was provided by §§ 537.010 and 537.020, RSMo 1969, subject to the provisions of § 507.100, RSMo 1969. Cobble v. McDonald, 313 S.W.2d 713, 715 (Mo. banc 1958). Of particular interest is subsection 1(3) of that statute which reads in relevant part:
      “If the death occurs prior to final judgment or after final judgment and before appeal and substitution or motion therefor is not made within nine months after the first published notice of letters testamentary or of administration, the action shall be dismissed as to the deceased party; . . . ”
      The aforementioned statutes are to be read in conjunction with the probate code, State ex rel. McCubbin v. Ginn, 347 S.W.2d 119, 125 (Mo. banc 1961) (Storckman, J., concurring), including § 473.360, which imposes a six month limitation on revived actions, and § 473.363, which imposes a duty on the executor or administrator to advise the probate division of the circuit court of any actions pending against his decedent at the time of death and to advise all adverse parties in such actions of the fact of the death, inter alia, when the existence of such actions is known to the administrator or executor.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    In re the MARRIAGE of Helen and Paul DOPUCH. Helen DOPUCH, Appellant, v. Paul DOPUCH, Respondent.
    No. 40379.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 3, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Steven G. Schumaier, Taylor, Schumaier & Suddarth, Clayton, for appellant.
    Nicholas J. Riggio, Sr., St. Louis, for respondent.
   GUNN, Judge.

The appellant-wife’s only complaint in her appeal in this dissolution of marriage proceeding goes to the trial court’s order directing her to pay the respondent-husband $14,500 for his interest in the parties’ marital property. The decree granted the wife approximately 94% of the marital property including the family home. But she was required by the decree to pay the husband $14,500 from this share of the marital property reducing her share to about 66% of the total marital assets. We find no error in the trial court’s award and affirm.

There were no minor children of the marriage, and the only issues before the trial court were maintenance, attorneys’ fees and the division of marital property. Neither party was awarded maintenance or attorneys’ fees. Marital assets given to the wife consisted of a $55,000 mortgage free family home encumbered with a $3,515 tax lien and $1,552 in home furnishings. The husband’s award of marital assets consisted of two old model cars valued at $650, $300 in stock, a one-half interest in a defunct partnership valued at $2,050 and the $14,-500 judgment in favor of the husband against the wife as a division of the marital property. The wife had annual earnings from employment of approximately $14,400 and an annual bonus of about $700. The husband’s income was negligible — about $100 per month, and he had savings of about $1,200.

The wife complains that considering her economic circumstances it is impossible for her to satisfy the $14,500 judgment against her because she lacks the requisite financial resources to make the payment. Thus, says the wife, the trial court’s order is unprecedented. But we do not find the wife’s plight insuperable, particularly as she lives alone and does not have the responsibility of caring for minor children. The wife’s contention of the impossibility of compliance with the award is based on her mistaken assumption that by awarding her the family home the trial court found that she must continue living in it. But it is the obligation of the parties to decide in what manner they wish to live with the property they have received from an “ordered division.” It is the trial court’s duty to make a just division of the property. McCall v. McCall, 574 S.W.2d 496 (Mo.App.1978). If the wife can secure a more economically feasible method of providing a living, the real estate can be sold, In re Marriage of Heddy, 535 S.W.2d 278 (Mo.App.1976), or she may consider the alternative of assuming a loan to pay the award and live on a smaller budget. See: C_ L_ R_ v. L_ B_ R_, 555 S.W.2d 372 (Mo.App.1977).

The division of marital property is a matter resting within the trial court’s substantial discretion. Thompson v. Thompson, No. 39395 (Mo.App.E.D. May 22, 1979); In re Marriage of Fehr, 573 S.W.2d 695 (Mo.App.1978). We have considered all the factors of § 452.330, RSMo Supp.1973, including evidence of the husband’s marital misconduct, and find no abuse of discretion in the trial court’s judgment. The judgment of the trial court is supported substantial evidence and is not against the weight of the evidence, nor does any error of law appear. An extended opinion would have no precedential value, and we affirm the judgment in accordance with Rule 84.-16(b). Dickerson v. Dickerson, 576 S.W.2d 567 (Mo.App.1979); Eden v. Eden, 558 S.W.2d 394 (Mo.App.1977).

We do not perceive appellant’s appeal so frivolous as to require the award of damages requested by the husband, and that request is denied. See: Means v. Sears, Roebuck & Co., 550 S.W.2d 780 (Mo. banc 1977); Surber v. Surber, 556 S.W.2d 54 (Mo.App.1977); Hoog v. Hoog, 545 S.W.2d 303 (Mo.App.1976); Brooks v. General Motors Assembly Division, 527 S.W.2d 50 (Mo.App.1975).

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . Halbrook v. Halbrook, 557 S.W.2d 45 (Mo.App.1977), relied on by the wife as entitling her to more assets is inapplicable, for in Halbrook the wife earned substantially less than the husband and his future needs were already provided for through an ample pension plan.


author: CRIST, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Edwin Wayne WAGNER, Defendant-Appellant.
    No. 38935.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 10, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.

      William J. Shaw, Public Defender, Daniel L. McCleave, Robert A. Cosentino, Asst. Public Defenders, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Chief Counsel — Criminal Div., Paul Robert Otto, Steven Scott Clark, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Steven H. Goldman, Asst. Pros. Atty., St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Assault with intent to do great bodily harm with malice aforethought and attempted arson convictions. Concurrent, penitentiary sentences assessed at 50 and 5 years, respectively.

Defendant does not challenge the evidence. On July 17, 1976, defendant and his ex-wife, the victim, spent most of the day at their favorite tavern, Zanker’s Bar. They were together in the victim’s home that evening. A disagreement began regarding the return of $106.00 to defendant. The victim was severely beaten and left unconscious and seriously injured. Defendant then poured gasoline around the room and set it afire. The victim sustained second degree burns.

Upon appeal, defendant claims he was entitled, by authority of § 552.020, RSMo. Supp.1975, to a psychiatric examination by a physician of his choosing although requested after the imposition of the sentences. We disagree.

Pursuant to § 552.020, supra, defendant requested and received a pretrial psychiatric examination at St. Louis State Hospital. However, the report of the examination was not filed with the court prior to trial by reason of the examining physician’s illness. At trial, defendant’s attorney informed the court he had been advised by the doctor that the examination was concluded and that defendant was able to stand trial. The doctor had reported his examination revealed no mental disease or defect that would keep defendant from standing trial.

Prior to defendant’s examination pursuant to § 552.020, supra, defendant’s own clinical psychologist performed thorough tests of defendant’s mental capacities. This report also indicated defendant suffered no disease or mental defect which would prevent him from standing trial but did indicate defendant’s memory was deficient.

Although the formal report of defendant’s § 552.020 examination had not been filed, defendant did not object or ask for continuance but proceeded to trial. Further, defendant did not enter a plea of not guilty by reason of mental defect.

After return of the jury verdict, defendant filed his motion for new trial suggesting for the first time the court had erred in proceeding to trial without having the report of the St. Louis Hospital on file. Before ruling on the motion, the trial court heard evidence by the examining St. Louis Hospital psychiatrist regarding the mental capacity of the defendant to stand trial. All attorneys of record were present and participated. The state psychiatrist testified his opinion was defendant was competent to stand trial. Defense examination of the witness developed the defendant’s claims of memory deficiency. After the testimony of the doctor, and without objection by the defendant, the court overruled the motion for new trial, rendered allocution, and sentenced defendant.

Immediately after sentencing, defendant objected to the imposition of the sentences and requested the right to have a mental examination by a psychiatrist of his own choosing. The court properly denied the request as being untimely.

The issue of competency to proceed is a preliminary one, and exclusively for the court. State v. Clark, 546 S.W.2d 455, 468[14] (Mo.App.1977). Here the record substantiates the conclusion that defendant was competent to stand trial. We cannot find the failure to file the formal report of the psychiatric examination prejudicial to this defendant when the court and all lawyers of record were apprised of the results of the requested examination, Anderson v. State, 493 S.W.2d 681, 684 (Mo.App.1973); see, State v. Stein, 504 S.W.2d 1 (Mo.1974), and when it would have, at most, bolstered the defense’s psychiatric report in the conclusion defendant was competent to stand trial despite some memory deficiencies.

In any event, the request for a second mental examination was not timely because made after the imposition of the sentences. Brown v. State, 485 S.W.2d 424, 428[3] (Mo.1972) (although incompetency to proceed may be raised under § 552.020, supra, at any time before sentence is imposed, the statute makes no provision for post-sentence psychiatric examination to establish the prior fitness to proceed). Mikel v. State, 550 S.W.2d 863, 869-70 (Mo.App.1977). But see, Miller v. State, 498 S.W.2d 79, 87-88[17] (Mo.App.1973); cf., Bryant v. State, 563 S.W.2d 37 (Mo. banc 1978) (consideration of competency claims in 27.26 proceeding concerning guilty plea). In view of the facts and defendant’s delay, the trial court in State v. Stein, supra, found no duty to prolong the proceedings to afford defendant the opportunity to be examined by his own physician. Cf., State v. Mayfield, 562 S.W.2d 404, 407-410 (Mo.App.1978) (trial court had no duty to grant continuance at sentencing proceedings in order to hold competency hearing).

Defendant next complains that the court erred in failing to instruct the jury that it could consider voluntary intoxication in its determination of specific intent, deliberation, and malice aforethought. This point is without merit.

Voluntary intoxication is not a defense to a criminal charge. Further, voluntary intoxication cannot be considered on the issue of specific intent. State v. Richardson, 495 S.W.2d 435, 440[6] (Mo. banc 1973); State v. Hegwood, 558 S.W.2d 378, 381[4] (Mo.App.1977). The intent to do great bodily harm and malice aforethought are the elements of specific intent necessary to convict defendant. See, State v. Bolden, 494 S.W.2d 61, 65[4] (Mo.1973). The testimony indicated that the defendant had been drinking heavily on July 17, 1976. At the time the crime was committed he was intoxicated. The court properly instructed the jury that voluntary intoxication is not a defense under such facts. State v. Street, 498 S.W.2d 523, 524[1] (Mo.1973).

Defendant next complains of the admission into evidence of the clothes he wore at the time of the crime claiming the chain of custody was broken.

At the time of his arrest, defendant’s pants, belt, shirt, and shoes were sealed in an evidence envelope and placed in the secured evidence locker by Detective Bray. Defendant’s clothes were thereafter transferred to Michael Walsh at the police laboratory by Detective Carver. A chemist at the police laboratory testified he received the evidence in a sealed envelope from Walsh, performed certain tests, thereafter placed the evidence in a vault, and later transferred the evidence to another chemist at the police laboratory for additional tests. The second chemist to test defendant’s clothing testified that the evidence was returned to the police after he performed certain tests but that, upon the request of the prosecutor, he re-examined and again tested the evidence which was brought to him by Patrolman Gardiner.

Defendant says the chain of custody was broken because Chemist Walsh and Patrolman Gardiner handled the clothes but did not testify. We disagree. There is no requirement that everyone who touches an exhibit must testify, or that the state exclude every possibility of tampering, in order for the evidence to be admissible. State v. Burnett, 538 S.W.2d 950, 952-53[2-4] (Mo.App.1976); State v. Winters, 525 S.W.2d 417, 426[20—21] (Mo.App.1975). Contrary to defendant’s suggestion of the opportunity for interference with the evidence, the evidence possessed sufficient assurance that no one had tampered with the exhibit and that the exhibit was the same and in the same condition at trial as when obtained. State v. Burnett, supra. Detective Bray, who seized the exhibit, testified the clothes were in the same condition as when seized except that small samples of material had been removed for testing. This showed “sameness of condition.” State v. Stevens, 502 S.W.2d 335, 337—38[5] (Mo.1973).

We find no abuse of the trial court’s broad discretion in admitting the evidence of defendant’s clothing upon the chain of custody established State v. Turner, 543 S.W.2d 270, 272-73[3-5] (Mo.App.1976).

Defendant next contends evidence consisting of test results showing the presence of hair and blood on his shoes should have been excluded because not timely disclosed and because defendant was surprised. Defendant timely requested disclosure under Rule 25.32(A)(5). Thereafter, about one week before trial, the state conducted the test in question. The prosecutor orally advised the defendant of the test results on Saturday before the trial began on Monday. He presented the written report to the defendant on Monday. Defendant elected to begin and proceed with the trial without asking for any specific relief due to the surprise of the test results. His strategy seemed to be to proceed to trial, object to the evidence when offered, and, if overruled, claim error. He slept too long on his rights. Such strategy does not call for a reversal. State v. Carter, 572 S.W.2d 430, 436[10-11] (Mo. banc 1978); State v. Davis, 556 S.W.2d 45, 47-48[3-5] (Mo. banc 1977); State v. Flenoid, 572 S.W.2d 179, 181[3] (Mo.App.1978). Assuming, arguendo, the evidence was not timely disclosed, we find no abuse of discretion resulting in prejudice or fundamental unfairness to defendant in the trial court’s refusal to order the more drastic sanction of exclusion of the evidence.

Lastly, defendant protests that testimony that defendant had skinned knuckles on the night of his arrest should have been excluded because not disclosed under Rule 25.32. Defendant claims surprise.

Defendant, of course, knew about his skinned knuckles from the time they were skinned. His lawyer knew about this condition more than two months prior to trial as evinced by his examination of witnesses upon the hearing on the motion to suppress. There was no surprise.

The purpose of the criminal discovery rules is to prevent surprise and afford the parties a decent opportunity to prepare in advance of trial, State v. John son, 524 S.W.2d 97, 101[5] (Mo. banc 1975); State v. Petree, 568 S.W.2d 546 (Mo.App.1978), and is not to compel the state’s recitation of facts more peculiarly within the knowledge of defendant. See, State v. Joyner, 571 S.W.2d 776, 778[2-3] (Mo.App.1978) (the state can be condemned for non-disclosure of physical evidence only if the facts indicate the state had possession of items unknown to the defense and did not disclose the items not if the defense has knowledge of the items).

The trial court did not abuse its discretion in admitting the evidence of defendant’s injured hands. No fundamental unfairness or prejudice was caused by the state’s failure to include such information as part of discovery disclosure. State v. Davis, supra.

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph Dean COLLINS, Defendant-Appellant.
    No. 39696.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 24, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.

      James M. Martin, St. Louis, for defendant-appellant.
    Paul Robert Otto, Steven Scott Clark, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Defendant was charged under a two count indictment with Forcible Rape and Sodomy, he was convicted of sodomy and punishment was fixed at two years. We affirm the conviction.

On September 23, 1976, defendant was working as an electrician. When defendant arrived at the job site at approximately 8:30 AM neither his employer, Mr. Lewis, nor his co-workers Heimsness and Smith were there. Defendant called Heimsness, told him the employer had failed to show up and made arrangements to meet at a bar near the site.

Defendant, Heimsness and Smith played pool and drank beer. Around 10:30 or 11:00 AM the trio went back to the job site to see if Mr. Lewis had arrived. They stayed at the site for approximately an hour and then returned to the tavern. Smith and defendant struck up a conversation with the barmaid. During the course of the day the barmaid mentioned that her car was in need of repair. Defendant said that he would look at her car and give her an estimate. They agreed to meet after she finished work at 5:00 PM and that defendant would cheek over her car, determine the trouble and estimate the cost of repair. Defendant and his friends left the bar around 2:30 PM.

Defendant returned to the bar at approximately 5:30 PM. The barmaid followed defendant in her car to the job site, a large old building that had double doors that opened into an area that would accommodate vehicles. Defendant opened the double doors and parked his car inside. The woman followed him in and parked her car next to his. Defendant closed the doors, went back to his car and pulled out a blanket and placed it on the floor between the two cars. When the barmaid asked about automotive tools defendant grabbed her arms and dragged her back into her car and he removed her clothing. She struggled and screamed. Defendant threatened her and hit her a couple of times in the face. He then dragged her out of the car to the blanket. Defendant removed his pants and then forced her to engage in fellatio. Afterward she got up and tried to run. Defendant knocked her down and dragged her back to the blanket. He then had intercourse with her. The victim also testified that defendant failed in an attempt at anal intercourse.

Defendant subsequently apologized and let her go with the admonition not to tell anyone.

By way of defense defendant testified that nothing was said with respect to the victim’s car. She agreed that they would get a six-pack, go to the job site and “get to know each other, get it on”; that he did not strike her, that she removed her clothing and consented to have intercourse with him. He further testified as follows:

“Q. Now, going back to the events inside the warehouse building at any time did you force Dora Naucke to commit a sodomy on you?
A. No.
Q. At any time did you force her to put your penis in her mouth?
A. No, but I wouldn’t willingly chop it off either.”

He testified on cross-examination that the woman did “commit an act of sodomy” on him.

Defendant first contends that the trial court committed plain error in permitting the State to proceed with evidence of attempted rectal sex when defendant was not charged with that act.

The subject was first mentioned in the State’s opening statement to which defendant made no objection at the time. Nor did he object when the victim was questioned on the subject in direct examination. When the matter was pursued defense counsel asked to approach the bench. After noting that defendant was not charged with this offense the following occurred:

“MR. MARTIN: (Defendant’s Attorney) ... As far as I’m concerned he can go ahead with it. I advised my client it’s not in the indictment and that we are waiving the issues of mistrial as to this even though it’s beyond the scope. I then feel I have the right to come back and fully cross-examine her on this issue.”

Defendant developed the fact that the witness’ statement in the police report contained no reference to attempted anal sex. It is clear that defendant waived any objection he had to the evidence for tactical purposes. The issue has not been preserved for review. State v. Mandina, 541 S.W.2d 716 (Mo.App.1976). Under the circumstances we do not consider the matter as plain error.

In his second point defendant argues that the court erred in overruling his Motion to Dismiss Count II because § 563.230, the statute on sodomy, is unconstitutionally vague and failed to advise him of the nature of the charge.

The issue presented by defendant has been thoroughly considered and determined adversely to defendant’s contention by the Supreme Court in State v. Crawford, 478 S.W.2d 314 (Mo.1972). We are bound by that decision and any further discussion by us would have no precedential value. State v. Burr, 542 S.W.2d 527 (Mo.App.1976).

Defendant next alleges error in the failure of the trial court to submit requested instruction “A” as a converse to the charge of sodomy. The requested instruction is the same as that given by the court with the addition of the words underlined and reads as follows:

“ ‘As to Count II, if you do not find and believe from the evidence beyond a reasonable doubt that on September 23, 1976 in the City of St. Louis, State of Missouri, the defendant wickedly and feloniously inserted his male sex organ into the mouth of said Dora Elaine Naueke, then you must find the defendant not guilty under Count II of sodomy.’ ”

Defendant is entitled to a converse instruction in proper form if requested. MAI 3.02 Note 1. State v. Sanders, 541 S.W.2d 782, 785 (Mo.App.1976). A converse instruction is a negative of a positive statement of an essential element or elements of a cause of action as stated in a verdict directing instruction. The verdict directing instruction given by the court was MAI 12.50. This was the instruction required to be given. The essentia] element in the verdict directing instruction to be conversed required the jury to find that the defendant inserted his male sex organ into the mouth of the victim. Defendant’s requested instruction by adding the words “wickedly and feloniously” failed to converse the essential element of the crime submitted by the court. The court did not err in refusing to give the instruction as submitted. State v. Sanders, supra. The court fulfilled its obligation to defendant by giving a proper converse instruction.

Defendant claims that the court erred in overruling his motion for directed verdict because there was insufficient evidence to establish penetration. A reading of the transcript, without repeating the details here, reveals that there was an abundance of evidence to warrant a finding of penetration. Defendant himself while denying that he forced penetration admitted that he engaged in the act of sodomy with the victim. This contention is without merit. State v. Conley, 543 S.W.2d 804 (Mo.App.1976).

Defendant next asserts that the court erred in failing to sustain his motion for a mistrial when the State in closing argument commented upon his failure to produce R. William Smith as a witness.

The defendant in his opening statement mentioned that R. William Smith, known as Smitty, and Jerry Heimsness were with defendant at the tavern; that they all talked with the prosecuting witness throughout the day and that she had made a date with Smitty. Defendant also indicates that Smitty would testify. Counsel stated that they were trying to locate him; that they had a subpoena out for him. Reference was made to Smitty throughout defendant’s case by Mr. Heimsness and by defendant in his own testimony. The effect of defendant’s testimony was that the prosecuting witness readily agreed to a date with Smitty and gave him her phone number. Later she agreed to go with defendant to the job site, have a six pack and get acquainted. The obvious purpose of this line of testimony was to strengthen the defense of consent to the charge of rape.

During closing argument the State argued:

“Another question: Where is Smitty? Where is the guy she made the date with who’s got her phone number who was sitting here”

A party may argue the adverse interest that arises from the failure of an opposing party to produce a witness who would be reasonably expected to testify in his favor. Such an inference does not arise and may not be argued when the witness is equally available to the opposing parties. State v. Wilkerson, 559 S.W.2d 228 (Mo.App.1977).

As said by the court in Wilkerson at p. 229:

“. . . a witness becomes more available to one or another of the parties when the opportunity of the party for knowledge or control over the witness, the relationship or the community of interest between them, or from the prior declarations and statements of the witness, a natural expectation follows that the witness would testify in favor of the one party against the other. In such ease, the failure of the one party to call the witness leads logically to the inference that the witness was not called because that party knew or feared that the testimony on the stand would have damaged rather than favored the party.”

Here, defendant and Mr. Smith were coworkers and appear to be social friends. The testimony of defendant and his witness Heimsness indicated to the jury that the testimony of Mr. Smith would favor defendant. Smitty was more available to defendant than to the State. The comment of the State was proper.

Defendant’s next point reads:

“The Trial Court Erred in Refusing Appellant’s Motion For Judgment of Acquittal Or In The Alternative For A New Trial Because The Jury’s Verdict Determined That The Alleged Sodomy Constituted Consensual Conduct Of Both The Alleged Victim And The Appellant And The Prosecution Of The Male Participant Only Is Violative Of Appellant’s Right To Privacy, Equal Protection Of The Law and Due Process In Violation Of Defendant’s Rights Under The First, Fifth and Fourteenth Amendments Of The United States Constitution and Article One, §§ 2, 5, 8 and 10 Of The Missouri Constitution.”

While the point even as developed by the argument is somewhat obscure, defendant appears to be asking this court to interpret the Constitution of the United States and of the State of Missouri and to rule that § 563.230 is unconstitutional because it makes acts of sodomy between consenting adults a crime.

If the issue has been properly raised we have no jurisdiction and the case must be transferred to the Supreme Court to interpret the Constitutions. State v. Hegwood, 558 S.W.2d 378 (Mo.App.1977). If the issue was not timely raised and preserved the matter is not before the court and we have jurisdiction to determine the other issues in the case.

The present contentions of defendant were raised for the first time in his Motion for New Trial. It has long been held in this state that consent is not a defense to the crime of sodomy. State v. Katz, 266 Mo. 493, 181 S.W. 425 (1915). State v. Dingman, 232 S.W.2d 919 (Mo.1950). The evidence on behalf of the State tended to show that defendant had forced the witness to commit the act. Defendant’s evidence including his own testimony tend to show that the witness consented to have intercourse with defendant and to the act of sodomy. The verdict of the jury did not determine that the act of sodomy was consented to by the victim. That issue was not presented to the jury for its determination. The issue which defendant now seeks to raise was ripe throughout the trial. At the very latest it could have been raised in a motion for directed verdict or in the instruction conference by way of offering an instruction submitting his proposed defense. The issue was not raised at the earliest time consistent with good pleading and orderly procedure and is not preserved for appellate review. State v. Burton, 544 S.W.2d 60, 64 (Mo.App.1976).

Defendant has filed a motion with affidavit attached asking leave to raise an additional issue in this court. The affidavit concerns matters that took place in a bench conversation which is designated in the transcript as “. . .a discussion at the bench off the record.” If defendant had wished to make the conversation a matter of record he should have made the request at the time. State v. Hoopes, 534 S.W.2d 26 (Mo.1976). The motion of defendant is denied.

Finding no error the judgment is affirmed.

STEPHAN, P. J., and KELLY, J., concur.

      . “Q. Now, did you or did she commit an act of sodomy on you that day.
      A. Yes.
      Q. And, you did not force her to do that?
      A. No.”


text:
    STATE of Missouri, Respondent, v. Frank BARNHART, Appellant.
    No. 40567.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 24, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.

      E. Rex Bradley, Louisiana, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Peter Sadowski, Asst. Attys. Gen., Jefferson City, William C. Mcllroy, Pros. Atty., Pike County, Bowling Green, for respondent.
   CRIST, Judge.

Defendant was charged with the capital murder of his wife at the family home in Clarksville, Missouri on June 18, 1977. A jury found him guilty of manslaughter and affixed punishment at eight years. We affirm.

By stipulation, it was agreed the death of the wife was caused by shots fired from a 12-gauge shotgun discharged by the defendant. However, the state and defendant disputed the sequence of events during the shooting. The state claimed the death was intentional. Defendant maintained it was accidental. Accordingly, the sequence, distance, and number of shots fired from defendant’s gun became a significant matter of proof.

The state’s evidence showed that defendant fired two shots at his wife in the driveway just outside of the house following a conversation between defendant and his wife. Then defendant’s daughter, from inside the house, fired a .22-caliber pistol at the defendant, striking him in the leg. Defendant then fired two more shots at his wife. The wife was wounded by each of the four shotgun blasts.

Defendant testified to the contrary. He said his relationship with his daughter had become stormy, that his daughter fired shots at him as he concluded the conversation with his wife, and that he first hid behind his automobile and then opened his automobile trunk to retrieve his shotgun. He maintains he then fired the shotgun at his daughter in self-defense and accidentally hit his wife.

Defendant contends an experienced trap shooter was not qualified as an expert to perform experiments upon defendant’s shotgun for the purpose of determining the patterns made when the shotgun was discharged at certain distances and then to testify as to the location and number of wounds observed on the victim’s body as well as the distance between victim and the shotgun for each wound as indicated by the pellet patterns.

The expert witness had been a trap shooter since 1965. He used 12-gauge shotguns, the kind causing defendant’s wife’s death, exclusively. He had competed extensively throughout the United States and represented the State of Missouri on a state team. He held an elective office as the Missouri delegate representing the Missouri State Trap Shooters Association. He had been named to the All American Trap Team by the publication “Sports Afield” in the years 1973, 1974, 1975, and 1976. He regularly shot approximately ten or eleven thousand clay birds a year.

The trap shooter testified in minute detail as to the mechanism of the shotgun and testified that he had performed numerous pattern tests, such as those in issue, in order to know exactly where his shotguns will shoot.

As the basis of his opinion, the witness performed a pattern test of the shotgun used by the defendant for the purpose of ascertaining the pattern which the pellets make at certain distances. The test was conducted by firing the shotgun at spatter boards from various distances. The pattern test could then be used to prove that the defendant fired at the victim from various distances, by comparing the patterns to the actual wounds.

After comparing the pattern of the spatter boards with the photographs of the victim, the expert testified that the victim was struck four times; that two wounds, found on the victim’s right arm and right back, were caused by shotgun fired from a distance of ten to fifteen feet; that one wound, found on the right of the victim’s trunk, was caused by shotgun fired from a distance about thirty feet; and that the other wound, found on the left arm, was caused by shotgun fired from a distance of fifty to fifty-five feet.

A witness may be competent to testify as an expert, although his knowledge touching the question at issue may have been gained by practical experience rather than by scientific study or research. State v. Rhone, 555 S.W.2d 839, 841—42 [2] (Mo.banc 1977). The test of expert qualification is whether the witness has knowledge from education or experience which will aid the trier of fact in forming an opinion on the subject matter of the inquiry. State v. Harvell, 527 S.W.2d 445, 448 [3] (Mo.App.1975).

In the instant case, there can be no question but that the trap shooter was an expert in the matter of patterns of shotgun blasts. He made extensive tests of the particular shotgun in question. The qualification of this expert witness was a matter resting primarily in the sound discretion of the trial court, reversible upon appeal only upon a clear showing of abuse of that discretion. State v. Arnold, 574 S.W.2d 1, 3 [2] (Mo.App.1978); State v. Harvell, supra, 527 S.W.2d at 447 [1]. We find no abuse of such discretion.

Any lack of expertise in the field of medicine or forensic pathology might be considered by the finder of fact in determining credibility but would not disqualify the witness as an expert concerning the interpretation of shotgun patterns. See, State v. Windmiller, 579 S.W.2d 730, 733-34 [12-13] (Mo.App.1979).

Defendant next complains that a licensed physician was not qualified to testify as to how many shotgun wounds the victim had sustained. Defendant argues a licensed physician must be an expert in the field of forensic pathology to give such testimony. He admits that the law is contrary to this proposition, but he urges the law should be changed. The medical witness was a licensed physician, a graduate of St. Louis University Medical School, having three years of additional training at the St. Louis City Hospital. We know of no ground which would militate in favor of changing the current status of the law in this regard. The witness was qualified to testify as he did. State v. Windmiller, supra (the trial court did not abuse its discretion in ruling experience qualified physician as a psychiatric expert although the physician was not board-certified as a psychiatrist); Pate v. St. Louis Independent Packing Co., Div. of Swift and Co., 428 S.W.2d 744, 750 [4] (Mo.App.1968).

Defendant next complains of the admission into evidence of the post-mortem photographs of the victim used by the trap shooter to formulate his opinion as to the number of wounds sustained by the victim and the estimated distance between shotgun and impact for each wound. The defendant argues the photographs were not relevant because the parties had stipulated the victim’s death was caused by shotgun wounds inflicted by defendant and that four spent shotgun shells were found at the scene of the shooting and in defendant’s shotgun. The defendant says that the photographs are, therefore, inflammatory and inadmissible. We disagree.

The challenged photographs were admissible to show the nature and location of the victim’s wounds and provide evidence from which the jury could discern that three of the four wounds were caused by the firing of a shotgun from different distances. The jury could determine therefrom that there were four wounds and that two of the wounds were made from about the same distance and that the other two wounds were made at longer distances, with the third wound being made from a longer distance than the first two, and the fourth wound being made from a longer distance than the other three.

The photographs were clearly relevant as tending to prove or disprove the state’s and defendant’s theories. A photograph of the victim’s body, showing the nature and location of wounds, is relevant and admissible in a homicide prosecution, although other evidence of the nature and location of wounds has been given, if the photograph corroborates, explains, or clarifies the testimony. State v. Jackson, 499 S.W.2d 467, 471-72 [5-9] (Mo.1973); State v. Ward, 569 S.W.2d 341, 345 [10-13] (Mo.App.1978) (the nature and location of wounds was relevant to the defense of self-defense); see, State v. Windmiller, supra, 579 S.W.2d at 733 [10-11].

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: SMITH, Judge.

text:
    NORCOMO CORPORATION, a Delaware Corporation, (Plaintiff) Respondent, v. FRANCHI CONSTRUCTION CO., INC., a Massachusetts Corporation, and Norwood Court Management Corporation, a Missouri Corporation, (Defendants) Appellants.
    No. 38911.
    Missouri Court of Appeals, Eastern District, Division One.
    July 24, 1979.
    Motions for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.

      Lewis, Rice, Tucker, Allen & Chubb, Henry F. Luepke, Jr., F. William McCalpin, St. Louis, for appellants.
    J. Peter Schmitz, Mary Stake Hawker, St. Louis, for respondent.
   SMITH, Judge.

Defendants appeal from a judgment against them of $191,641.54 entered in a court-tried case arising from a sophisticated financing arrangement between Franchi Construction Company (Franchi) and Chase Manhattan Bank (Chase).

In 1968, Franchi, a Massachusetts corporation qualified to do business in Missouri, was interested in obtaining permanent financing for an apartment complex it was building in the City of Normandy in St. Louis County. Pasquale Franchi was the president and almost sole stockholder of Franchi. Negotiations commenced between Franchi and Chase for such financing. Because of the amount involved, Chase advised Franchi that conventional financing would not be possible and suggested “split-financing”. Essentially the transaction involved Several steps:

(1) Sale, to Chase by Franchi, the owner, of the approximately eleven acres of land upon which the apartment complex was located for $550,000. The sale reserved to Franchi the ownership of the improvements (buildings) on the land until the expiration of the lease next described.

(2) Leaseback of the land to Franchi for a period of not to exceed 28 years. Rental under the lease was $44,000 annually in monthly installments in base rent and 10% of gross rents from rental of the apartments. Upon termination of the lease, land and buildings became the property of Chase.

(3)A note for $3,900,000 from Franchi to Chase secured by a deed of trust on the leasehold interest and the buildings.

Although the negotiations were between Franchi and Chase, the latter was acting as Trustee for the Pooled Trust Fund for Employee Benefit Plans-Fund K — 1. Chase caused to be incorporated Norcomo Corporation (Norcomo) a Delaware corporation and qualified it to do business in Missouri. Norcomo was created to serve as the corporation to own the land, grant the lease and collect the rentals from Franchi for transmission to Chase for the Pooled Trust Fund.

Following some negotiations, the above indicated arrangement was worked out and a letter of commitment setting forth the terms of the financing arrangement was issued by Chase in November 1968. That letter included a requirement that the “ownership of leasehold estate created by the Lease and of the improvements shall at all times remain in the same legal entity.” It further provided that the mortgage would contain a provision giving the mortgagee a right to accelerate the due date of the note if “the Mortgagor shall sell or dispose of the Mortgaged Property as an entirety or substantially as an entirety to an individual or individuals not originally involved as principals in this commitment or a corporate entity other than Franchi Construction Co., Inc. or a nominee owned and controlled by it or if the present holder(s) of the voting securities of the Mortgagor shall sell or dispose thereof so that possession, directly or indirectly, of the power to direct the operation, management and policies of the Mortgagor shall pass to someone other than the said holder(s) or if the Mortgagor shall be dissolved or shall merge or consolidate with or into any other corporation; . .” This provision in more fulsome language was a part of the deed of trust and made loss of control by Pasquale Fran-chi an “event of default”, permitting acceleration of the note and requiring that the mortgaged premises be surrendered upon demand to the trustee of the deed of trust.

At trial it was explained by an employee of Chase that these provisions were necessary in order to have the expertise of Pasquale Franchi and his organization to run the apartment development.

In addition the letter stated: “The loan shall be evidenced by your non-recourse Note or that of your nominee . . . .” This last provision was insisted upon by Mr. Franchi. The transaction was closed in the name of Franchi. A nominee was not used.

In August 1971, in accord with the letter of commitment the required papers were executed and the deal was closed. At that time the note, deed, lease, and deed of trust were executed. Included in the lease was the following provision:

“Section 13.01. Without the prior consent of Lessor, this lease may be assigned on one or more occasions to any person, firm or corporation authorized under the law of the state in which the demised premises are situate to own and convey real property provided there shall be delivered to Lessor (a) a duplicate original of the instrument or instruments of transfer of this lease in recordable form, containing the name and address of the transferee thereof and (b) an instrument of assumption by said transferee of all of Lessee’s obligations under this lease; and further provided, that Lessee shall transfer and convey all its right, title and interest in the Building to such transferee and deliver to Lessor such evidence of the transfer as Lessor may reasonably require. Notwithstanding the aforesaid, Lessee and its successors and assigns shall continue to remain liable thereafter for the performance on the ‘Lessee’s’ part of the covenants and agreements contained in the lease. This section shall apply to all reassignments of this lease.”

Upon the refusal of Franchi to accept this language an amendatory letter was executed contemporaneously with the execution of the lease which contained the following:

“Notwithstanding the second to last sentence of Section 13.01, in the event you assign your interest in the Lease in accordance with the provisions of Article 13 thereof you shall be released from all liability in respect of rent reserved and future obligations to observe and perform the terms, covenants and conditions contained in the Lease and all actions, proceedings, claims and demands in respect of any future breach of any such terms, covenants and conditions.”

To a large extent the appeal before us turns upon the meaning and application of this paragraph of the amendatory letter.

The rental income from the apartment complex was insufficient to meet the operating expenses and service the loan agreements. The base rent was kept current but no percentage rents were paid and only a portion of the real estate tax escrow account payments were met. In August 1973, after some discussions between Fran-chi and Chase and with the threat of foreclosure before it, Franchi caused Norwood Court Management Corporation (Norwood) to be formed as a Missouri corporation. On September 18, 1973 Franchi assigned the lease and the fee title to the buildings to Norwood. In the same document, Norwood executed an assumption of lease which included the following language:

“2. Assumption of lease. In consideration of the foregoing assignment the Assignee agrees to assume the rights and obligations of said lease for the balance of the term thereof, to pay the rent and additional rent, and faithfully to perform all of the covenants, stipulations and agreements contained therein.”

In November 1973, the Trustee under the deed of trust foreclosed the deed of trust on the leasehold estate and buildings and pursuant to a Trustee’s sale the foreclosed interests were sold to Norcomo. That company then executed a document entitled “Declaration of Grantee of Real Property” by which it declared that it did not desire that the interest acquired at the foreclosure sale be merged with the deed for the underlying land originally devised to Norcomo by Fran-chi. This declaration served to continue in effect the' lease and leasehold estate.

At the time of the foreclosure none of the percentage rents had ever been paid and the real estate tax escrow account was substantially deficient. Norcomo then brought the instant action against Franchi and Nor-wood to recover those amounts as well as certain tenant deposits collected by Franchi and Norwood. The trial court awarded $95,903.74 plus interest of $19,311.29 against Franchi and Norwood, jointly and severally, for percentage rents until the date of foreclosure, and $52,622.97 plus interest of $9,169.38 against Franchi and Nor-wood, jointly and severally, for 1973 real estate taxes prorated through the date of foreclosure. It also awarded $13,869.16 against Franchi and $725 against Norwood for tenant deposits. These tenant deposit items are before us on appeal only on the basis of defendants’ contention that Norco-mo lacks capacity to sue.

The heart of the judgment of the trial court is that the assignment to Norwood and its assumption of the lease was not a bona fide transaction and therefore that such assignment cannot as a matter of law relieve Franchi of its obligations under the lease. Inasmuch as we find the legal conclusion in error a different result ensues.

We deal first with defendants’ contention that Norcomo was a sham corporation, not the real party in interest, and was used by Chase to circumvent Federal and State laws. Norcomo was a duly and properly organized corporation qualified to do business in Missouri. The lease, which is a contract, and the warranty deed named Norcomo as a party. It was therefore “a party with whom or in whose name a contract has been made for the benefit of another” within the meaning of Rule 52.01 and was a proper party to bring the suit. It may be conceded, as it was by plaintiff, that Norcomo was created for the sole purpose of owning the land, entering into the lease, and collecting the rent pursuant to the lease. But this is a common business practice and was fully revealed to Franchi before any documents were finally executed in 1971. We have been cited to no authority holding that utilization of a subsidiary corporation to transact business within a state is illegal.

Defendants also contend that Chase is in violation of Secs. 362.165 and 362.600 RSMo 1978 and Secs. 29 and 92a of Title 12 U.S.C. because it is through Norcomo operating as a fiduciary in Missouri and holding real estate. We need not decide the legality of Chase’s actions. It is well established that even if ownership of land by a non-resident national bank is beyond the powers of the bank its authority may not be questioned by a party to the transaction for the purpose of avoiding the transaction, but may only be questioned by the sovereign. National Bank v. Matthews, 98 U.S. 621, 25 L.Ed. 188 (1878); Baker v. Schofield, 243 U.S. 114, 37 S.Ct. 333, 61 L.Ed. 626 (1917); Hall v. Farmers’ & Merchants’ Bank, 145 Mo. 418, 46 S.W. 1000 (1898); Total Automation, Inc. v. Illinois National Bank & Trust Co., 40 Ill.App.3d 266, 351 N.E.2d 879 (1976). Defendants may not assert claimed ultra vires conduct by Chase to avoid the consequences of a transaction of which they have had the benefit.

We turn now to the substantive merits. It is defendants’ contention that pursuant to the amendatory letter the assignment of the lease to Norwood relieved Franchi of any obligations under the contract, both those which had already accrued and those which were to accrue in the future. They contend, therefore, that all percentage rents due at the time of the assignment became liabilities of Norwood and that Franchi was released from liability therefrom. They further contend that since no real estate taxes for 1973 were due at the time of the foreclosure neither Franchi nor Norwood are liable therefor, or alternatively, if proration of such taxes is required under the lease upon foreclosure the liability for such taxes is only Norwood’s.

Plaintiff contends that the assignment was not a bona fide transaction and did not. serve to release. Franchi from any obligations either before the assignment or after the assignment until foreclosure. It further contends that the lease requires Fran-chi and Norwood to pay the 1973 real estate taxes pro rata until the date of foreclosure.

We touch first upon certain general considerations. Our scope of review is that set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We are bound by the trial court’s fact determinations unless unsupported by the evidence or clearly against the weight of the evidence. The deference which we accord the trial court to assess credibility is of little consequence in this case because the oral testimony was largely consistent and served primarily as a foundation for the introduction of documentary evidence upon which the case must turn. We find the findings of fact of the trial court fully supported by the evidence. We are required under Murphy v. Carron, supra, to determine whether the trial court has erroneously declared or erroneously applied the law. The construction and interpretation of a contract or contracts is a matter of law.

Plaintiff seeks to invoke certain equitable principles. The case started in equity because as filed it sought equitable relief — an accounting. Discovery provided the required accounting information but the case remained in equity under the doctrine of ancillary jurisdiction. Equity follows the law. The rights of the parties are to be determined from the contracts into which they entered and the consequences of those contracts and not from some generalized concepts of equity.

It is clear from the evidence that the transaction here involved was between two business entities highly knowledgeable and sophisticated concerning financing. Each was quite capable of protecting itself and both functioned with experienced counsel. Negotiations were adversary and prolonged. The initial drafts of the documents were carefully scrutinized, criticized, and amended. Both parties contributed to the final executed documents which include a 63 page lease and 30 page deed of trust. It is apparent that certain frequently invoked rules of construction, most notably that of interpreting a contract most strictly against the preparer, have no application to this case.

We agree with the trial court that .the deed of trust/note and the lease are separate documents and each must be interpreted and enforced according to its own terms. The provisions of one are not to be impliedly incorporated into the other. However, these documents, along with others, constituted one complicated interdependent transaction. The documents contain references to each other, and obviously are closely related. The intent of the parties and the meaning of those documents must be determined from the entire transaction and not simply from isolated portions of a particular document. Tri-State Gas Co. v. Kansas City Southern Railway Co., 484 S.W.2d 252 (Mo.1972). With these considerations in mind we turn to the particulars.

The first and most important determination is the validity of the assignment to Norwood by Franchi. The trial court found this assignment was not a bona fide assignment and that “the amendatory letter required and contemplated a bona fide assignment and assumption of the lease under conditions whereby the assignee could reasonably expect to meet the obligations due under the lease and the lessor could reasonably expect performance by the assuming assignee.” We agree that the assignment was an effort by Franchi to rid itself of the obligations of the lease when it was apparent that the deed of trust would be foreclosed and further agree that Norwood did lack the financial capacity to meet the lease obligations. But, the key question is whether the assignment made was that contracted for. If the intent of the contract was to allow Franchi through assignment to escape from the liabilities of the contract the parties are free to so contract. Jenkins v. John Taylor Dry Goods Co., 352 Mo. 660, 179 S.W.2d 54 (1944); Alexander v. Theatre Realty Corp., 253 Ky. 674, 70 S.W.2d 380 (1934). We find that was the intention as to future liabilities.

We find the following undisputed facts support that conclusion:

(1) Pasquale Franchi from the beginning demanded that the financing be non-recourse as to him and Franchi Construction Co. The note specifically provided for such non-recourse and restricted Chase to the value of the mortgage property to protect its investment. While we do not hold that the language of the note can be incorporated into the lease, the recourse provision does shed light on the intentions of the parties.

(2) The commitment letter, and the lease and deed of trust all provided that ownership of the buildings and the leasehold were to remain in the same legal entity. The significance of this provision and the following one are discussed in (6) infra.

(3) The commitment letter and deed of trust provided that it could be accelerated (and thereby effectively terminated) by Chase if the buildings (and in view of (2) above thereby the lease also) were transferred to any person or entity other than an entity controlled by Mr. Franchi or if the corporate ownership of Franchi Construction vested in anyone other than Mr. Fran-chi.

(4) Franchi was authorized to close the transaction with a note from itself or a nominee. This language clearly envisaged a subsidiary or shell corporation as a possible maker of the note.

(5) The assignment language of the lease was unequivocal. It permitted assignment at any time without prior consent of Norco-mo on one or more occasions to any person, firm or corporation authorized under Missouri law to own and convey real estate provided also that ownership of the buildings was conveyed to the same transferee. The amendatory letter insisted upon by Franchi, provided that upon assignment Franchi was released from “all liability . .” It is unreasonable to believe that a knowledgeable lender such as Chase would permit such an unlimited unilateral assignment at any time if it was concerned about insuring the financial responsibility of the assignee, or that it would fail to include limiting language concerning financial responsibility of the transferee if financial responsibility was a condition of transfer.

(6)While the assignment language of Sec. 13.01 is broad, when combined with the provisions set forth in (2) and (3) above it is apparent that the assignability was in fact limited to a subsidiary, shell or nominee corporation controlled by Mr. Franchi. Unless the type of assignment actually made was contemplated by the lease and letter, we must presume that Chase intended that Sec. 13.01 as modified, while appearing to make the lease assignable and to release Franchi from further liability, was in fact a provision which had no meaning and was inserted to induce Franchi to execute the documents in reliance upon a nonexistent promise. We cannot attribute such duplicity to Chase nor such naivete to Franchi.

We find O’Donnell v. Weintraub, 260 Cal.App.2d 352, 67 Cal.Rptr. 274 (1968) and Cinderella Theatre Co. v. United Detroit Theatres Corp., 367 Mich. 424, 116 N.W.2d 825 (1962) relied upon by plaintiff to be distinguishable. In both the court recognized that the intention of the parties to the contract, as exemplified by the contract documents and history of the transaction was controlling. On the facts before them the courts found implicit that assignment was to be made to a solvent assignee. The facts before us convince us of the opposite.

We therefore conclude that it was the intention of the parties that Franchi would have the right at any time to terminate further liability under the contract by assignment to an insolvent or shell corporation controlled by Franchi. Franchi’s exercise of that option, whether described as bona fide or not, was in accord with the contract and the results of that assignment must be determined from the provisions of the amendatory letter and the lease.

We turn first to the problem of percentage rentals. As to those rentals collected after the effective date of the assignment, those became a liability of the assign-ee Norwood and not of Franchi. As to those percentage rentals which were collected prior to the assignment Franchi argues that the amendatory letter releases it from all liability whether accrued or to accrue in the future. The parties have discussed in this connection the use of the words “rent reserved” in that letter. We cannot give any particular significance to the term “reserved”. It is a word which has been combined with “rent” by lawyers since antiquity probably with little understanding of its history or specific meaning. A reservation is the creation of a new interest in an estate which the grantor keeps for himself. See Dozier v. Toalson, 180 Mo. 546, 79 S.W. 420 (1904); Meyers v. Russell, 124 Mo.App. 317, 101 S.W. 606 (1907); Tiedeman, Real Property, 3rd Ed. 1906, Ch. VIII, Sec. 149. When it is remembered that a lease is the relinquishment of possession and control of property by the owner, the term “rent reserved” has reference to the present interest reserved by the owner, in short, the owner reserves the right to collect rent.

The release language of the amend-atory letter is prospective as is the language used in the assumption agreement. Defendants contend that the use of the language “any liability” evidences an intention to release Franchi from both accrued and prospective liability. But “any liability” is further modified by language referring to “future obligations” and “future breach”. Had both accrued and prospective liability been intended to be released it would have been unnecessary to address at all what specific liability was released, it simply could have been provided that Fran-chi was released from “all liability under the lease.” Similarly Norwood’s agreement refers to assumption of “the rights and obligations for the balance of the term thereof”, clearly a future undertaking. And for the assignment to be effective the assumption must be co-extensive with the right of assignment. The language used in the assumption agreement indicates the understanding of Franchi, which controlled Norwood, of the extent of the assignment and assumption. The interpretation given a contract by the parties is a valid consideration in construing the contract. Landau v. Laughren, 357 S.W.2d 74 (Mo.1962) [2]; Meredith Development Co. v. Bennett, 444 S.W.2d 519 (Mo.App.1969) [3]. In view of the use of prospective language to describe the obligations released and assumed, we find the provisions concerning rent to also be prospective in application.

The provision for assignment, which we have held to provide an “escape hatch” for Franchi, does not directly or by implication make that “escape” retroactive. Logic and business reality militates against such retroactive application. While Chase has agreed to assignment to a corporation lacking financial wherewithal to meet its obligations, Chase’s rights under the mortgage and Norcomo’s rights under the lease are sufficiently flexible to allow them to protect themselves immediately in the event of failure of such a corporation to meet its obligations. The willingness to delay foreclosure or enforcement of rights under the lease in reliance upon the apparent financial solvency of Franchi does not warrant the conclusion that such forebearance would be accorded a shell corporation. The assignment provision of the lease required notification to Norcomo of such assignment and assumption. Furthermore, retroactive release for percentage rents would be most unusual in a situation such as this where the released lessee has already collected the gross rents upon which the 10% rent is based. In the absence of a clear provision releasing Franchi from its accrued obligations under the lease we will not create such release by implication. We find no such clear provision.

Franchi admitted that it collected the rents for September and that Norwood collected rents only for October. Rents thereafter were collected by Norcomo following foreclosure. Percentage rents due from the commencement of the obligation for such rents in April 1972, through September, 1973 in the amount of $90,748.02 are an obligation of Franchi and judgment for that amount plus interest of $32,962.08 should be entered against Franchi. The October percentage rents in the amount of $5,155.71 plus interest of $1,770.53 are the obligation of Norwood and judgment for that amount should be entered against Nor-wood.

Defendants attack the computation of the amount of the percentage rents due as contrary to the provisions of the lease. The argument made is based upon certain provisions of the lease having to do with computation of projected monthly payments of such rent based upon the prior year’s experience and with an adjustment payment or credit after the full fiscal year. The amount of percentage rent, however, is clearly 10% of the gross rent of the apartment complex and defendant’s books were kept to so reflect. That is the amount for which the defendants are liable, regardless of what the projected monthly figures might have been or when the date of the adjustment payment fell due.

The remaining point concerns the taxes. The lease provided that Lessee pay the taxes “before any fine, penalty, interest or cost may be added thereto for the nonpayment thereof”, but there was no lease obligation that monthly payment of taxes be made. There was such an obligation under the deed of trust for an escrow account but the deed of trust was expressly non-recourse as to all obligations thereunder. Under Missouri law payment of the 1973 taxes was due Dec. 31, 1973. Sec. 140.010 RSMo. 1978. Therefore, on the date of the assignment there was no obligation on the part of Franchi to pay the taxes. The taxes were a future obligation under the lease from which Franchi was released by the assignment pursuant to the amenda-tory letter. While the lease refers to the assessment, levy, imposition and lienability of taxes, that reference identifies the taxes which the lessee is required to pay, not the time when the payment must be made. See, Jenkins, supra, [11].

The payment of taxes was also a future obligation on the date of the foreclosure and the foreclosure terminated the rights and future obligations of Norwood as lessee. There is a provision of the lease which provides for pro-ration of the taxes between the lessor and lessee where the fiscal period of the taxing authority is such that a portion of the tax year occurs during the term of the lease. That provision states that the taxes “shall ... be adjusted between Lessor and Lessee as of the commencement date or expiration of the term of this lease . . . .” Here Norcomo specifically elected after foreclosure to continue the lease in effect. The effect of this action was that the lease did not expire. Upon the date when the obligation to pay taxes became due the lease was in effect and Norcomo was the lessee. The lessee has the obligation to pay the taxes. In this connection it should be pointed out that Norcomo acquired the leasehold at foreclosure in a position separate in legal contemplation from its position as mortgagee. Its acquisition at the foreclosure sale of the leasehold is equivalent in law to the acquisition by an outsider which could not as purchaser have sought contribution from Fran-chi or Norwood, and which, as the acquiring lessee, would have assumed the obligation to pay the 1973 taxes. That Norcomo could have, through merger, ended the leasehold does not warrant a conclusion that its purchase at foreclosure and option not to terminate the lease requires it to receive different treatment than a stranger to the transaction. Judgment on Count II for the taxes should be for defendants.

Judgment on Count I set aside and judgment is entered in favor of plaintiff Norco-mo Corporation and against defendant Franchi Construction Company Inc. in the amount of $90,748.02 plus interest in the amount of $32,962.08 for a total judgment of $123,710.10 and judgment is further entered in favor of plaintiff Norcomo Corporation and against defendant Norwood Court Management Corporation in the amount of $5,155.71 plus interest in the amount of $1,770.53 for a total judgment of $6,926.24. Interest has been computed on said judgments through July 24, 1979.

Judgment on Count II reversed and judgment entered in favor of defendants and against plaintiff.

Judgment on Count IV and judgment for costs in the trial court affirmed.

Costs on appeal to be paid one-half by plaintiff and one-half by defendants.

WEIER, C. J., and SNYDER, P. J., concur.

      . Norcomo argues here that the action of Mr. Franchi in obtaining from Norwood some $30,-000 of rent money collected by Norwood which was placed in Mr. Franchi’s personal bank account affects Franchi’s liability. The money was treated by Mr. Franchi and Norwood as a loan and there are legal procedures available to secure that money to pay the debts of Nor-wood. We do not find that such conduct changes the legal effect of the assignment.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Tommy WILHITE, Appellant.
    No. 40672.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 31, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.

      Donald E. Lamb, Centerville, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Bradshaw Smith, Pros. Atty., Cape Girardeau, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction by a jury of the offenses of second degree burglary and stealing. He was sentenced to serve a term of 8 years on the burglary charge and 4 years on the stealing charge, the sentences to run consecutively.

He was charged with breaking and entering “a certain building located at Highway 60, Stoddard County, Missouri, the property of Gaylon Lawrence,” and stealing “358 bushels of beans, 39 5-gallon cans of Tre-flan, and one 1967 International Straight Truck, . . . the personal property of Gaylon Lawrence.”

The property in question was taken from a storage building on the premises of a farm and grain elevator concern operating in Stoddard County. The manager of the farm and grain elevator, Harlan Franklin, testified that his superior was Gaylon Lawrence, the party identified in the information as the owner of the stolen property. Lawrence did not testify. Franklin testified that, on the evening of the burglary, he was the last person to leave the premises in question, and that he had ascertained that the storage building had been secured and locked. The following morning, he discovered that the truck, beans and Treflan were missing, and that a lock and hasp assembly had been pried off one of the sliding doors of the building. Evidence was also presented of a sale of some of the stolen beans subsequent to the burglary and theft that linked defendant to the crime. A deputy sheriff also testified that defendant made certain statements implicating himself in the crime and that defendant had led the witness to the stolen truck.

Defendant contends that the court should have sustained his motion for judgment of acquittal on the charge of burglary because the state failed to prove ownership or occupancy of the burglarized building as charged. Specifically, defendant complains that although Franklin stated that Gaylon Lawrence owned the building on direct examination, he expressed uncertainty as to whether title was in the name of Lawrence personally, Lawrence Farms, Incorporated or Lawrence Grain Company, Incorporated when pressed under cross-examination. We note that Franklin also testified that Lawrence was his supervisor and that Lawrence generally was responsible for and had control over both the named corporations and the farm and elevator operation of which the burglarized building was a part.

Defendant’s point is without merit. “Proof of the ownership of a building burglarized does not refer to the title but the occupancy,” State v. Rains, 537 S.W.2d 219, 226[8] (Mo.App.1976), citing State v. Harrison, 285 S.W. 83, 87[14] (Mo.1926). In State v. Jeffords, 64 S.W.2d 241, 242 (Mo.1933), an allegation that defendant there broke into “a certain store building located in Marviell . being used as a store, and operated by Mr. and Mrs. John Sappington,” was held to sufficiently charge ownership for purposes of the burglary statute. It necessarily follows that proof of operation and use of premises discharges the state’s burden as to ownership, and no material variance arises where allegations of ownership are proven up by evidence of the legal equivalents of ownership — occupancy, use or possession. Whatever the state of the legal title to the building in question, the proof adduced at trial showed the principle occupancy and use to be in Lawrence.

The reason for requiring an allegation of ownership of property is an indictment for burglary is twofold:

. 1) For the purpose of showing that the house alleged to have been burglarized was not the dwelling of the accused; and 2) for the purpose of so identifying the offense as to protect the accused from a second prosecution for the same offense.

State v. Ford, 403 S.W.2d 611 at 612 (Mo.1966).

This rationale is more than adequately discharged by the proof adduced in the trial court below as to Lawrence’s general control of the building and the surrounding premises. We hold that the evidence was sufficient under the law of Missouri to establish the element of ownership.

Defendant next complains that the state suffered a failure of proof as to the breaking and entering of the building in question, another element of the burglary offense.

As noted above, Franklin testified that he was the last one in the building on the day of the crime, and that he secured and locked the premises before leaving. However, the officer who investigated the crime testified that he ascertained during the course of his investigation that a bookkeeper had actually been the last person to leave the premises that day. Defendant makes much of the latter testimony, together with certain other evidence characterized by defendant as tending to show that the burglary was an “inside job”, in that the building had been unlocked and opened rather than being broken into. Defendant raises the possibility that, under the evidence developed at trial, the lock and hasp assembly used to secure the building could have been pried off subsequent to its having been unlocked by the thief or thieves, ostensibly to manufacture indicia of a “breaking in” for insurance purposes. Regarding the officer’s testimony placing the bookkeeper in the building subsequent to Franklin’s departure, it should also be noted that Franklin’s testimony stated specific times for the respective departures of the bookkeeper and himself, Franklin’s being the later of the two. The officer did not explain how he arrived at the conclusion that the bookkeeper remained in the building.

The essence of defendant’s contention is that the building may have been unlocked or left open by the departing bookkeeper, or alternatively, that the building was unlocked by an “insider” thief, and the hasp assembly later pried off to give the appearance of a break-in.

Regarding the possibility that someone may have left the building unlocked subsequent to Franklin’s departure, we need only note that, in determining the sufficiency of the evidence to support the conviction, we consider as true all the evidence favorable to the State’s case, both direct and circumstantial, and including all reasonable inferences to be drawn therefrom, while disregarding all contrary evidence and inferences, State v. Cox, 527 S.W.2d 448, 450[1] (Mo.App.1975). Franklin’s testimony is more than sufficient to establish under State v. Cox, supra, that the premises were closed up prior to the burglary so that any access to the building thereafter necessarily entailed a “breaking and entering”.

As for the possibility that the premises were opened by unlocking the door as opposed to a forcible breaking open, defendant’s point is immaterial. Under a charge of second degree burglary, the state need not show a “forcible bursting or breaking”. State v. O’Brien, 249 S.W.2d 433, 434[1-4] (Mo.1952), cert. denied, 344 U.S. 859, 73 S.Ct. 100, 97 L.Ed. 667 (1952). Entry by a mere pushing open of an unlocked or unlatched door is sufficient to sustain a conviction for burglary, second degree, State v. Bradley, 485 S.W.2d 408, 412[8-10] (Mo.1972), citing State v. Rhodes, 408 S.W.2d 68, 70[3] (Mo.1966). At the very least, the State showed the premises had been opened in some manner and entered on the date in question. This is sufficient under the above authorities to establish the element of a breaking and entering.

Defendant next raises the question of the absence of any proof of the ownership of the property taken from the burglarized building, and of a taking without the owner’s consent, both elements of the stealing charge.

While Lawrence, the person charged as having ownership of the property stolen, did not testify, Franklin testified that he had seen the title to the stolen truck and that it was in Lawrence’s name personally. Franklin also testified that he, himself, had purchased the beans and Treflan in question for use on the farm. There was sufficient evidence of ownership to support the conviction of stealing in conjunction with burglary.

It has long been established that ownership of stolen property may be charged either to the actual owner or the one rightfully in possession and a showing that the property was taken from one who merely had charge and control thereof is sufficient to sustain the charge of stealing, State v. Webb, 400 S.W.2d 84, 86[6, 7] (Mo.1966). The above evidence constitutes sufficient proof of ownership of the stolen property.

The element of lack of consent of the owner of the stolen goods to their taking may also be established by circumstantial evidence, State v. Webb, 423 S.W.2d 795, 798[4] (Mo.1968), and, under the circumstances shown here, it is clearly not essential to the state’s case that Mr. Lawrence testify personally that the taking was without his consent. The evidence showed that the property was taken from a building that had been broken into and disposed of in some manner unknown to the persons who had had lawful custody. Such evidence raises the clear and unmistakable inference that the persons responsible for the taking of the missing goods did not have the consent of those custodians for their removal.

Defendant also contends that the instant charge, stealing in connection with a burglary, cannot be sustained where the state first fails to make out a prima facie case of burglary. What has been said above regarding the state’s having carried its burden of supporting all the elements of the burglary offense is dispositive.

In his final two points, defendant contends that it was error for the trial court to exclude certain evidence in support of defendant’s theory that the burglary was an “inside job”. However, he fails to cite any authority for the propositions there advanced, as required under Rule 84.04(d). These points are therefore deemed abandoned, State v. Schulten, 529 S.W.2d 432 (Mo.App.1975). We do note that defendant’s evidence to the effect that someone other than defendant had the opportunity or might have committed the crime would not have been admissible here. State v. Love, 546 S.W.2d 441, 452[14, 15] (Mo.App.1977).

There was no prejudicial error in the court’s ruling.

Judgment affirmed.

GUNN and CRIST, JJ., concur.