author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Melvin HARLSTON, Defendant-Appellant.
    No. 38023.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 11, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Application to Transfer Denied June 15, 1978.

      Louis Gilden, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

This is an appeal from a conviction in the Circuit Court of the City of St. Louis in a jury tried case wherein the appellant, Melvin Harlston, was found guilty of violating § 121.270 subsection 2 V.A.M.S. — Tampering with a Voting Machine — and was sentenced to be confined in the custody of the Missouri Department of Corrections for a period of five years. We affirm.

The evidence offered by the state during the jury trial supports a finding that Mr. Harlston was a candidate for the office of Constable of the City of St. Louis from the First District on the Democratic ticket at the Primary Election conducted on August 6, 1974. Voting machines were being used in that Primary Election in polling places for Ward 3, Precincts 14 and 6 in the City of St. Louis. The polling place for Ward 3, Precinct 14 was situated at 4105 West Flor-issant and the polling place for Precinct 6, at 4242 Grove Avenue, the Eliot School.

In the polling place on West Florissant there were two voting machines for use in the Primary Election; one of these was machine number 24026, the voting machine involved in this prosecution.

There was evidence relative to the operation of these voting machines, but it is unnecessary for the purposes of this decision to set it out in detail here. There was, also, evidence from which the jury could find that some short time prior to 9 a. m. on the morning of August 6,1974, a lady came into the polling place on West Florissant, requested a Republican ballot, and entered the voting booth. She had a change of mind with respect to the party ballot and requested that instead of a Republican ballot she be furnished with a Democratic ballot. In attempting to make the change the voting machine was jammed. According to the evidence nine votes were on the machine at the time this occurred.

After the voting machine jammed one of the election judges, a Mr. Jackson, left the polling place and shortly thereafter Mr. Harlston entered and advised another election judge, Mrs. Taylor, that he knew how to fix the jammed voting machine. Mrs. Taylor arose from the table where she and the other election officials were sitting, and went to the jammed voting machine. Mr. Harlston went to the front of the voting machine and inside the curtains while Mrs. Taylor remained on the side of the voting machine. Mr. Harlston then instructed Mrs. Taylor to “pull the knob.” She understood him to mean the “operator’s knob,” which she then pulled out. The curtain to the voting booth closed and opened, and after the curtain opened again Mr. Harlston asked her a second time to pull the knob out. She did so about 12 or 13 times. During this period no one other than Mr. Harl-ston and Mrs. Taylor touched this voting machine. Each time she pulled the knob out she could hear the clicking as the curtains to the voting booth opened and closed. The public counter on this voting machine which records the number of votes cast on the machine showed that prior to Mr. Harl-ston’s arrival nine voters had cast their votes on voting machine No. 24026 and when he left the polling place this same public counter showed twenty-two votes had been cast on the same machine.

Nathaniel Lee Shipp, a member of the Board of Election Commissioners, arrived at the West Florissant polling place and observed Mr. Harlston coming out of the voting booth. Mr. Shipp recognized Mr. Harlston as a candidate and told him that he was in violation of “State Statute 118,” which prohibits electioneering at a polling place, and suggested that Mr. Harlston leave the polling place. Mr. Harlston departed. Mr. Shipp then ordered voting machine No. 24026 impounded and no one else was allowed to cast their vote on it. According to the record of this voting machine Mr. Harlston received seventeen votes. The state’s evidence was that it would be impossible to get 13 Democratic votes on the voting machine if the “Republican” knob was out.

On appeal the appellant, as Mr. Harlston shall be hereinafter identified, raises six Points for review. Points I, II and VI are directed at the sufficiency of the Indictment; Point III, to the propriety of a verdict directing instruction and a verdict form; Point IV, to the admission into evidence proof of a separate and distinct crime, i. e. tampering with a voting machine at a polling place on Grove Avenue; and Point V to excluding from evidence appellant’s proffered testimony to prove that the additional votes shown as cast on the voting machine might have come from sources other than those shown by the state’s evidence.

For reasons hereinafter stated we find no merit to any of these contentions and we therefore affirm.

The Indictment upon which this prosecution was commenced reads as follows:

“ ‘INDICTMENT
THE GRAND JURORS OF THE STATE OF MISSOURI, within and for the body of the City of St. Louis, now here in Court, duly impaneled, sworn and charged upon their oath present,
That, MELVIN HARLSTON, on the 6th day of August, one thousand nine hundred and seventy-four, at the City of St. Louis aforesaid, did willfully, unlawfully and feloniously tamper with a voting machine in use at 4105 West Floris-sant, a duly designated polling place in the City of St. Louis, duly installed therein by the Board of Election Commissioners, of the City of St. Louis, for the purpose of recording votes cast in the Primary Election held on the 6th day of August, 1974, with the felonious intent to change or destroy the record of votes thereon; contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State.
THE GRAND JURORS OF THE STATE OF MISSOURI, within and for the body of the City of St. Louis, now here in Court, duly impaneled, sworn and charged, upon their oath present further as follows:
That MELVIN HARLSTON, on the 6th day of August, 1974, at the City of St. Louis, State of Missouri, did willfully, unlawfully and feloniously tamper with voting machines in use at 4242 Grove Avenue, a duly designated polling place in the City of St. Louis, duly installed therein by the Board of Election Commissioners of the City of St. Louis for the purpose of recording votes cast in the Primary Election held on the 6th day of August, 1974, with the felonious intent to change or destroy the records of votes thereon; contrary to the form of the Statute in such case made and provied (sic), and against the peace and dignity of the State.’ ”

This Indictment was filed on September 17, 1974, in the office of the Clerk of the Circuit Court for Criminal Causes of the City of St. Louis. On October 2, 1974, appellant was arraigned and entered a plea of not guilty. Thereafter, on May 6, 1975, appellant filed a Motion for a Bill of Particulars as follows:

“ ‘MOTION FOR A BILL OF PARTICULARS
‘Comes now Melvin Harlston, the defendant, and states that he has been indicted by the Grand Jury of the City of St. Louis, State of Missouri, for two counts of tampering with a voting machine.
‘He states that said indictment is vague and nebulous in that it does not properly apprise him of the facts of the offense for which he must defend himself.
‘WHEREFORE, defendant prays that this Court make and enter an order directing the State of Missouri to file a Bill of Particulars which states (1) the manner in which he is alleged to willfully, unlawfully and feloniously tamper with the voting machine specified in Count I of the indictment and (2) the manner in which he is alleged to willfully, unlawfully and feloniously tamper with the voting machine specified in Count II of the indictment.’ ”

The trial court sustained this Motion, and on May 14, 1975, the state filed a Bill of Particulars reading as follows:

“ ‘PLAINTIFF’S BILL OF PARTICULARS
‘Comes now the State of Missouri and files a Bill of Particulars in the above-entitled cause setting forth the manner in which the defendant is alleged to have wilfully, unlawfully and feloniously tampered with the voting machines specified in Counts I and II of this indictment, to-wit:
‘COUNT I: Defendant moved, operated and worked the buttons on the said voting machine, causing the said voting machine to register an additional unauthorized thirteen (13) votes, and
‘COUNT II: Defendant moved, operated and worked the buttons on the said voting machines causing the said voting machines to register an additional unauthorized forty-two (42) votes.’ ”

Appellant, in the trial court, did not raise those grounds for error covered in Points Relied On I, II and VI, and did not obtain a ruling thereon prior to presenting them in his brief in this court. A reviewing court is, nevertheless, required by Rule 28.-02 V.A.M.R. to consider allegations of error respecting the sufficiency of the information or indictment, verdict, judgment and sentence although they were not raised in the trial court or preserved for review.

Reduced to its simplest terms, appellant’s contention raised by Point I is that the indictment on which he was brought to trial is fatally defective in that it improperly alleges two crimes in but a single Count.

While we would not recommend this form of indictment and are convinced that the better practice is to separately identify each Count of an indictment or information by insertion of the identifying number of the Count, i. e. Count I, Count II, etc., in the pleading so there can be no question where one Count ends and another commences, we find no requirement that this be done in Rule 24.01 V.A.M.R. nor in Rule 24.04 V.A.M.R., the Rules of Criminal Procedure specifying what the indictment or information shall contain and what offenses may be charged in the same indictment or information in separate counts.

Neither party to this appeal has cited any authority on this Point, and so far as we are aware it is a question of first impression in this state. Our own research has led us to Harger v. State, 54 Ala.App. 242, 307 So.2d 51 (1974) which, dealt with an indictment similarly framed. The Alabama Court held that an indictment in that form was “an ordinary two count indictment.” In reaching its decision that court relied on another Alabama Appeal’s case, Wilson v. State, 31 Ala.App. 232, 14 So.2d 382 (1943), which said:

“True, the said counts were not numbered one and two. But that, we apprehend, was unnecessary. The word ‘Count’ connotes, as we understand it, no more than the word ‘Paragraph.’ Words and Phrases, Permanent Edition, Vol. 10, pages 10 and 11. There were two distinct paragraphs, and the demurrers to the indictment were properly overruled.”

Appellant was not misled by the form in which this Indictment was filed. His counsel, in his Motion for Bill of Particulars, recited that appellant had been “indicted . for two counts of tampering with a voting machine.”

Furthermore, when the trial began on February 17, 1976, and before the jury was sworn for voir dire examination, the Assistant Circuit Attorney informed the trial court that the state had elected “to proceed on Count I herein and dismiss Count II by means of nolle prosequi . . .,” and suggested that there be no reference to the word “count” during the voir dire “since there is only one cause now pending, and that is the charge of tampering with a voting machine.” Assuming, arguendo, that this indictment did, in fact, charge two separate crimes in one count, appellant’s remedy was to require the state to elect on which count it would go to the jury, State v. Walker, 484 S.W.2d 284, 286[3] (Mo.1972); the state made its election of its own volition prior to the voir dire examination of the jury.

We rule this Point against the appellant.

Appellant’s second Point is that the indictment was duplicitous because it joined in a single count two separate and distinct crimes. As we have previously held in disposing of his initial Point, we are of the opinion that even though this indictment was somewhat inartfully framed, it did, in fact, plead two offenses in two separate Counts and was not, therefore, duplicitous. We also deduce from the evidence adduced at trial with respect to the incident at the polling place on Grove Avenue the two offenses alleged were properly joined in separate counts under Rule 24.04 as parts of a common scheme or plan, i. e. to tamper with both voting machines.

We also find no merit to this Point and rule it against appellant.

The final attack levelled against this indictment — appellant’s Point VI — is that the indictment is fatally defective because it alleges in the disjunctive that at the time he tampered with the voting machine while in use at the Primary Election of August 6, 1974, he did so with the felonious intent “to change or destroy the record of votes.”

This line of attack has its foundation in a line of cases holding that where a statute disjunctively described several acts which may result in the commission of but a single offense, the indictment or information, if more than one act is alleged, must charge the several acts in the conjunctive if they are not repugnant. This has been the law in Missouri for more than a century. State v. Fitzsimmons, 30 Mo. 236, 241 [3] (1860); State v. Flint, 62 Mo. 393, 399[2] (1876).

As we understand appellant’s position, he contends that this disjunctive pleading is a “fatal defect” in the sense that it failed to charge him with any criminal offense and therefore the trial court did not and could not acquire jurisdiction. State v. Hasler, 449 S.W.2d 881, 884[3] (Mo.App.1969). We disagree.

An indictment is sufficient if it contains a plain, concise and definite written statement of the essential facts constituting the offense charged. Rule 24.01 V.A.M.R. It is the general rule in this state that an indictment framed in the words of the statute, where the statute sets forth all of the constituent elements of the offense, is sufficient. State v. Kesterson, 403 S.W.2d 606, 609[1] (Mo.1966).

Appellant here was charged in the indictment in the words of the statute: i. e. “willfully, . . . tamper with a voting machine in use ... in the Primary Election held on the 6th day of August, 1974 . . ” “Tamper” is a word of common usage and of general understanding. The definition of the word itself connotes secrecy and scheming or plotting. State v. Ridinger, 364 Mo. 684, 266 S.W.2d 626, 630 (1954). It is defined in Webster’s New International Dictionary (Merriam), 2nd Edition as: “3. To meddle so as to alter a thing; esp. to make corrupting or perverting changes, as to tamper with a document or a text; to interfere with improperly.” The term “tamper,” when used in a criminal statute “has the limited meaning of improper interference ‘as for the purpose of alteration, and to make objectionable or unauthorized changes.’ ” Keefe v. Donnell, 92 Me. 151, 42 A. 345, 348 (1898).

The appellant is entitled to be informed of the nature and the cause of the accusation against him so that he may defend the charge. Art. I, Sec. 18(a), Constitution of Missouri, 1945. The indictment must set forth sufficient facts so that either an acquittal or a conviction under it will serve to bar a subsequent prosecution for the same acts. It should be sufficiently specific so there will be no difficulty in determining what evidence would be admissible under its allegations and so the court and the jury may know what they are to try and for what they are to acquit or convict the person charged. It must also be sufficiently specific so a court can determine from the facts alleged whether a crime has been charged as a matter of law. State v. Hasler, supra, 1. c. 884, 885[7].

We are of the opinion that the indictment in this case meets these standards and is therefore sufficient.

The decisive issue in this case is whether the pleading of the intent with which the appellant is alleged to have committed the offense in the disjunctive requires a reversal.

Conceding that this indictment is defective in that it charges disjunctively the intent with which the crime was perpetrated, it is at most an infirmity of form which is cured by verdict responsive to the charge when not properly attacked in the trial court. State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 204[8] (banc 1954); State v. Hardy, 359 Mo. 1169, 225 S.W.2d 693, 696[2] (1950); State v. Bostic, 285 S.W. 432, 433[4] (Mo.1926).

We also take note of the fact that Instruction No. 4 — the state’s verdict director — required that the jury find, before it could convict, that appellant tampered with the voting machine “with intent to change the record of votes thereon” and that the verdict found him “guilty of Tampering with a Voting Machine as submitted in Instruction No. 4.” This verdict form is in compliance with MAI-CR.

We find no merit to this Point and rule it against appellant.

Appellant next contends that the trial court erred in submitting an instruction and a verdict form only as to the events on West Florissant because by so doing, the guilty verdict with respect to the crime on West Florissant does not bar a trial for the crime alleged to have taken place on Grove Avenue.

To ascertain appellant’s position on this Point we found it necessary to refer to the argument portion of his brief. By doing so, we discern that it is his contention that the jury should have been instructed and furnished verdict forms on both charges so it could make separate findings on each charge and assess appropriate penalties thereon.

This point was not raised at trial nor in appellant’s motion for new trial. At trial appellant made a general objection to the instruction, reserving his right to make more specific objections “at a later time if necessary.” He objected generally to the verdict forms. Rule 20.03 V.A.M.R. In his motion for new trial he attacked the verdict director instruction — Instruction No. 4 — on the grounds it was vague and indefinite and improperly submitted the charge to the jury. The point appellant seeks to raise on appeal for the first time has not been preserved for review. Rule 27.20(a) V.A.M.R.

Furthermore, the Count based on the incident alleged to have occurred on Grove Avenue was nolle pressed by the state prior to the voir dire examination of prospective jurors. It was within the sole discretion of the prosecuting attorney to voluntarily enter a nolle prosequi at that time. State v. Nangle, 365 Mo. 134, 276 S.W.2d 135, 138[3] (banc 1955).

We rule this Point against the appellant.

Point IV relied on by the appellant is that the trial court erred in admitting into evidence proof of the commission of a separate and distinct crime, i. e. tampering with the voting machine at the polling place on Grove Avenue.

The general rule in Missouri is that proof of the commission of separate and distinct crimes is inadmissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. Evidence of other crimes is, however, competent to prove the specific crime charged when it tends to establish motive, intent, absence of mistake or accident, common scheme or plan, or the identity of the person charged with commission of the crime for which he or she is on trial. State v. Mitchell, 491 S.W.2d 292, 295[1] (Mo.banc 1973).

The evidence drawing this attack was furnished through the testimony of two state witnesses, Officer Lawrence King, a member of the Metropolitan St. Louis Police Department assigned to the Grove Avenue polling place “to keep the peace in the polling place,” and William F. B. Carroll, who was Republican Election Judge assigned by the St. Louis Board of Election Commissioners to the polling place for that Primary Election.

The testimony of these two witnesses was to the effect that Mr. Harlston entered the polling place on Grove Avenue at approximately 11:00 a. m. on August 6, 1974. He walked up to Officer King and identified himself as a candidate for Constable. When this was accomplished, Mr. Harlston entered each of two voting machine booths, and in each was heard to instruct an election clerk to “pull the knob.” When the knob was pulled the curtains on the voting machines were seen to open and close a number of times.

Earlier in the case the state had offered evidence that this action of the voting booth curtains was the result of a voter casting his or her ballot.

During the direct examination of Officer King the following occurred:

“Q. While you were inside the polling place (on Grove Avenue) that day, did you see the defendant Melvin Harlston?
“Mr. Bell: I’m going to make an objection to this, Your Honor. It’s completely irrelevant and immaterial and it doesn’t prove or disprove any fact in this case. It would be evidence of another event not connected'with this particular event.
“The Court: Be overruled and your objection may go to the whole questioning if you so desire.
“Mr. Bell: I would so desire, Your Hon- or.”

Officer King then related his observations of Mr. Harlston’s activities in the polling place.

Mr. Carroll was called to the stand after the conclusion of Officer King’s testimony, and Mr. Carroll’s testimony relative to what he saw Mr. Harlston do came in without any objection.

The state contends that this evidence with respect to Mr. Harlston’s activities at the polling place at 4242 Grove Avenue tended to prove that the appellant was guilty of tampering with the voting machine at 4105 West Florissant because it established a common scheme or plan to alter the outcome of the Primary Election. State v. Mitchell, supra. We agree.

Appellant, admittedly a candidate for Constable of the City of St. Louis from the First District in the Primary Election of August 6, 1974, had his name on the ballots in the voting machines at the polling places at 4105 West Florissant Avenue and 4242 Grove, "Ward 3, Precinct 6, and Ward 3, Precinct 14, respectively. Each vote cast for his candidacy on either of these voting machines enhanced his chances of winning this Primary Election, thereby becoming the Democratic Candidate for that office in the General Election the following November.

The uncontradicted evidence relative to the operation of these voting machines was that a voter at a Primary Election designates the party whose ballot he wishes to vote to one of the election workers before entering the voting booth. An election worker then pulls out the knob controlling the party designation as well as an official knob. After the voter enters the voting booth the voter moves the red knob inside the booth to the right and the curtain on the voting booth closes. The voter then casts his or her vote and, after voting, moves the red knob to the left, the curtain on the voting booth opens, and the voter can then exit therefrom. Should the next voter desire to vote a ballot for a party other than that for which the prior voter designated, the election worker must then pull out the knob for the party designated, the knob for the party ballot previously voted is then pushed in, and the official knob is pulled out. In those cases where the next voter designates the same party ballot as the prior voter, the knob designating the ballot of the political party is not touched, but the official knob must be reactivated, as it must each time a voter leaves the voting booth.

Where, as here, there is a jamming, a “50 key” is used and it records on the public counter that the curtains on the voting booth were closed and opened, but it does not record a vote for any of the candidates. Otherwise, a vote is recorded each time the curtain on the voting booth is opened.

According to the state’s evidence, prior to appellant’s entry into the voting booth at 4105 West Florissant, nine votes had been cast on that voting machine. After he entered the voting booth Mrs. Taylor, one of the election judges, was directed by the appellant to pull the operator’s knob out and she did as she was directed. The curtain to the voting booth closed and then opened. This procedure was employed twelve or thirteen times while the appellant remained in the voting booth, and each time the curtain to the voting booth closed and opened. After appellant left the voting booth no one else voted on this machine, and the public counter on the voting machine showed that twenty-two votes had been cast on it. The voting machine was impounded and it was subsequently ascertained that, according to the records of this machine, seventeen votes were cast for appellant on this machine.

Approximately two hours later appellant entered the polling place for Ward 3, Precinct 6 at 4242 Grove Avenue. Here too he entered a voting booth, shut the curtains and a man named Pickett was observed to pull the knob on the voting machine and the curtain was seen to close and open several times. Appellant exited from this first voting booth and then entered a second where the curtains were again heard to open and close.

We are of the opinion that evidence of these events at the polling place on Grove Avenue was admissible to show a common scheme or plan, i. e. to alter the outcome of the Primary Election of August 6, 1974, by tampering with voting machines being employed there. Appellant had an interest in the outcome of the Election; he had no lawful business to enter these voting booths and cast votes indicated by the closing and opening of the curtains on the voting booths. The action in each instance was the same, i. e. unauthorized voting, thereby altering the records of the election. In the first instance, it is not just a coincidence that the record of the election demonstrated that he received seventeen votes when twelve or thirteen votes were cast by him while in the voting booth on West Florissant Avenue, whereas only nine votes had been cast on that particular voting machine prior to his appearance on the scene and entry into the voting booth for that particular voting machine. His unauthorized entry into the voting machines at the Grove Avenue polling place and the casting of votes there is some evidence for the jury to consider as part of a common scheme or plan to alter the outcome of the election in his favor. In so doing he was tampering with the voting machines. State v. Smith, 431 S.W.2d 74, 79[U] (Mo.1968); State r. Burnett, 429 S.W.2d 239, 244[5, 6] (Mo. 1968); State v. Scown, 312 S.W.2d 782, 788[6] (Mo.1958); State v. Tash, 528 S.W.2d 775, 780[7, 8] (Mo.App.1975); State v. Cox, 508 S.W.2d 716, 722[6, 7, 8, 9] (Mo.App. 1974).

We rule this Point against appellant.

The final Point remaining for resolution is appellant’s Point V wherein he says that the trial court erred and abused its discretion in excluding defense testimony that the additional votes found on the voting machine could have come from votes already on the voting machine when it was delivered to the polling place on West Flor-issant, that voting machines had malfunctions, and “numerous other problems.”

At trial defense counsel attempted to introduce the testimony of some Committee people that they had knowledge that some voting machines arrived at polling places with votes on them, that they had malfunctions, and that they had other problems. The purpose of this evidence, according to appellant, was to counter the evidence of the state that the appellant voted 13 times on the voting machine at the West Floris-sant polling place.

When appellant sought to introduce testimony of one witness to this effect the state objected on the grounds that such testimony was irrelevant and immaterial “for the reason that it (had) nothing to do with the machines in these particular cases.”

Subsequently appellant made a further effort to introduce this evidence through another witness and the state renewed its objection on the grounds that it was irrelevant unless it concerned the particular machine in evidence. The trial court sustained this objection; whereupon the appellant made the following offer of proof:

“My offer of proof would tend to show that if the witness were allowed to answer the question, she would answer that in the thirty years she had been in politics, she’s known numerous of these machines to have malfunctions. Some would have votes on them at the time they were voted, and other than that wouldn’t properly work, and numerous other problems.” (emphasis added)

The state objected to this offer of proof as follows:

“Well, I say no foundation, there is no foundation that she knows that this particular machine was malfunctioning or this particular machine had votes and that she has any testimony that she is permitted to touch the machines themselves. That has not been laid.” (emphasis added)

A trial judge enjoys a wide discretion in ruling on whether to admit or exclude evidence adduced by the parties at trial, State v. Taylor, 506 S.W.2d 94, 95[1] (Mo.App.1974), and it is within the trial judge’s discretion to determine the materiality and relevancy of evidence proffered. State v. Martin, 530 S.W.2d 447, 452[18] (Mo.App.1975). The relevancy of evidence depends upon whether the evidence proffered tends to prove or disprove a fact in issue or to corroborate evidence which is relevant and which bears on the principal issue. Where evidence offered is immaterial and irrelevant it is not error to refuse its introduction. Irrelevant or immaterial evidence is excluded because its admission has a tendency to draw the jury’s attention away from the issues it must decide. State v. Walden, 490 S.W.2d 391, 393[1. 2. 3] (Mo. App.1973). Absent clear abuse, an appellate court will not interfere with the trial court’s ruling on the admission or exclusion of evidence. Aiple v. South Side National Bank in St. Louis, 442 S.W.2d 145, 152[7] (Mo.App.1969).

To preserve the exclusion of proffered evidence for review it is essential that a proper question must be asked, and, on objection thereto, an offer must be made at the time showing what evidence will be given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all facts necessary to establish the admissibility of the evidence. Byam v. Kansas City Public Service Co., 328 Mo. 813, 41 S.W.2d 945, 952[15] (1931). The offer of proof must contain all of the facts necessary to establish the admissibility sought to be introduced in sufficient detail to demonstrate its relevancy and materiality. Kinzel v. West Park Investment Corporation, 330 S.W.2d 792, 795[1] (Mo.1959). The purpose of requirements for observance of these formalities and rules with respect to offers of proof is to make certain that the trial court and opposing counsel understand what evidence is being offered, and it is for this reason that the evidence should be stated in enough detail to demonstrate its relevancy and materiality. Stipp v. Tsutomi Karasawa, 318 S.W.2d 172, 175[5] (Mo.1958). This offer of proof suffers the same infirmities as those noted in Kinzel v. West Park Investment Corporation, supra, and cases cited therein. The fact that in some instances some voting machines were delivered to polling places with votes on them, that some other voting machines suffered malfunctions of an unspecified nature, or had “numerous other problems,” would not tend to prove that the thirteen votes on voting machine No. 24026 were the result of any of these.

We have concluded that there was no clear abuse of discretion by the trial court in excluding the proffered evidence because of the general nature of both the questions propounded to the witnesses and the offer of proof made in support thereof.

We rule this Point against appellant.

The judgment is affirmed.

GUNN, P. J., and JAMES R. REIN-HARD, Special Judge, concur.


source: Caselaw Access Project

author: REINHARD, Judge.

license: Public Domain

text:
    CAESAR’S HEALTH CLUB et al., Plaintiffs-Appellants, v. ST. LOUIS COUNTY, Missouri, Defendant-Respondent.
    No. 38558.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 11, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Application to Transfer Denied June 15, 1978.

      Donald L. Wolff, Clayton, for plaintiffs-appellants.

      Thomas W. Wehrle, County Counselor, George Lang, II, Asst. County Counselor, Clayton, for defendant-respondent.
   REINHARD, Judge.

Respondent, the County of St. Louis, enacted an ordinance prohibiting prostitution. Appellants, twelve corporations or proprie-torships, each a so-called “massage parlor” operating in St. Louis County, filed a petition to enjoin enforcement of the ordinance and to have it declared unconstitutional. The Circuit Court of St. Louis County declared it “to be constitutional; lawful and valid”, denied a permanent injunction, but stayed its enforcement pending the outcome of this appeal. The ordinance, No. 7546, which was to become effective on August 20, 1975, provides:

“SECTION 2. Title VII, Chapter 713, SLCRO 1964, as amended, the Vice and Morality Code, is hereby amended by enacting and adding thereto three new sections, to be numbered 713.030, 713.040 and 713.080, relating to the regulation of prostitution, which new sections shall read as follows:
713.030 Definitions 1. The term “person” as used in this Chapter shall mean any natural person, firm, partnership, co-partnership, association, corporation or organization of any kind.
2. A person commits “prostitution” if he or she engages or offers or agrees to engage in sexual conduct in return for something of value to be received by the person or a third person.
3. “Sexual Conduct” occurs when there is:
(a) “Sexual Intercourse” which occurs when there is any penetration of the female sex organ by the male sex organ;
(b) “Deviate Sexual Intercourse” which means any sexual act involving the genitals of one person and the mouth, tongue or anus of another person;
(c)“Sexual contact” which means any touching, manual or otherwise, of the anus or genitals of one person by another.
4. “Something of Value” means any money or property, or any token, object or article exchangeable for money or property.
5. “Promoting prostitution” occurs when a person knowingly promotes, solicits, compels, or encourages a person to engage in prostitution or patronize prostitution.
6. “Profiting from Prostitution” occurs when a person acting other than as a prostitute receiving compensation for personally rendered prostitution services, knowingly accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he or she participates or is to participate in the proceeds of prostitution activity.
713.040 Prostitution, Promoting Prostitution, Profiting from Prostitution— Prohibited. — A person shall not engage in prostitution, promoting prostitution, or profiting from prostitution.
713.080 Penalties —Any person violating any of the provisions of this Chapter shall upon conviction be punished by a fine not exceeding One Thousand Dollars ($1,000.00) or by imprisonment in the County Jail for not exceeding one (1) year, or by both such fine and imprisonment.”

In their petition, appellants admit they “engage in the practice of giving massages at the request of the client, which do result in consensual touching of a person’s anus or genitals”, and which conduct specifically would be prohibited under § 3(c) of the ordinance. Massage activities involving sexual touching would be prohibited by the ordinance, and violation of the ordinance could result in civil prosecution of appellants and their employees. • Because this case requires application of established constitutional principles and involves no real issue requiring construction of the United States and Missouri Constitutions, we have jurisdiction. Art. V, § 3, Mo.Const. 1945, as amended, 1970. St. Louis County Transit Co. v. Division of Employment Security, 456 S.W.2d 334 (Mo.1970); Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760 (Mo.App.1974).

Appellants argue the trial court erred in declaring the ordinance constitutional because respondent failed to meet its burden of demonstrating a compelling state interest as justification for the ordinance. Appellants correctly cite Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), for the proposition that “[w]here certain ‘fundamental rights’ are involved, .

[a] regulation limiting these rights may be justified only by a ‘compelling state interest’, . . . .” Id. at 155, 93 S.Ct. at 728.

Before we invoke this rule, however, it must appear that the challenged statute or ordinance infringes some fundamental right; and while the right of privacy has been recognized as just such a fundamental right, we are not convinced in this case that appellant has asserted a protectable privacy interest. The “compelling state interest” test is therefore inapplicable here.

Rather, we must judge the validity of the challenged ordinance according to the standard applicable to the exercise of police power, and the test of the validity of an exercise of police power is reasonableness. McDonnell Aircraft Corporation v. City of Berkeley, 367 S.W.2d 498 (Mo.1963). In general, the test of reasonableness is met in any case in which the object of the police measure is a proper one, as we conclude here, and the means adopted to accomplish that object are appropriate. See Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894), as cited in Goldblatt v. Hemp-stead, 369 U.S. 590, 594-95, 82 S.Ct. 987, 8 L.Ed.2d .130 (1962).

The exercise of police power is presumed to be constitutionally valid; the presumption of reasonableness is with the State. Bibb v. Navajo Freight Lines, 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959); Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954). The exercise of police power will be upheld if any state of facts either known or which could be reasonably assumed affords support for it. U. S. v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). The party challenging certain legislation has the burden on the question of its reasonableness. Goldblatt v. Hempstead, supra.

The general law in Missouri was stated recently in Flower Valley Shopping Center v. St. Louis County, 528 S.W.2d 749, 753-54 (Mo. banc 1975), citing Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 981, 13 S.W.2d 628, 634 (1929):

“It has been definitely and clearly'established and settled, by the decisions of this court and of the federal Supreme Court, that a statute or a municipal ordinance, which is fairly referable to the police power of the state or municipality, and which discloses upon its face, or which may be shown aliunde, to have been enacted for the protection, and in furtherance, of the peace, comfort, safety, health, morality, and general welfare of the inhabitants of the state or municipality, does not contravene or infringe the several sections of the state and federal Constitutions invoked by the appellants herein, and cannot be held invalid as wrongfully depriving the appellants of any right or privilege guaranteed by the Constitution, state or federal; the reason and basis underlying such- decisions being that the personal and property rights of the individual are subservient and subordinate to the general welfare of society, and of the community at large, and that a statute or ordinance which is fairly referable to the police power has for its object the ‘greatest good of the greatest number.’ ”

An ordinance prohibiting prostitution is clearly referable to the police power of local government. We believe the ordinance here in question discloses on its face a purpose to protect and further the health, morality and general welfare of the citizenry, and that it furthers its purpose in a reasonable way. We now consider appellants’ specific constitutional arguments.

They assert that enforcement of the ordinance would infringe upon the constitutionally guaranteed right of privacy insofar as it would proscribe private sexual conduct between consenting adults. Clearly, no privacy interests of the individual corporations and proprietorships is being asserted here. Rather, it is the right of its employees and customers to engage in certain sexual activities which appellants seek to have protected. Relief is requested not on the basis of some unconstitutionally incurred loss or injury appellants themselves might suffer, but rather on the basis of perceived rights of third persons who are not party to this litigation. Assuming in this instance that appellants have vicarious standing to assert the rights of its masseuses and customers, we nevertheless find no merit in appellants’ claim.

The Supreme Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.

. . [The] decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ . . . are included in this guarantee of personal privacy.” Roe v. Wade, supra, 410 U.S., at 152, 93 S.Ct., at 726. “This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-66, 93 S.Ct. 2628, 2639, 37 L.Ed.2d 446 (1973) (citations omitted). Appellants urge that implicit in the concept of ordered liberty is the fundamental privacy right of its employees and patrons to participate in sexual massage activities in the seclusion afforded by appellants’ massage establishments. For support, they look principally to Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Reliance on these cases is unavailing, however. Griswold and Stanley, and other decisions cited by appellants, in no way intimate that there exists an absolute and unqualified right of privacy, sexual or otherwise. The conclusion which can more readily be drawn from the cases is that the right to privacy is not without limit as to places and relationships. United States v. McKean, 338 A.2d 439 (D.C.App.1975).

It is to be noted that the challenged ordinance does not prohibit persons from engaging in acts of massage as such, but from engaging in acts of massage involving sexual touching, for hire. And whatever may be said of the potential right of consenting adults to engage in private sexual massage activities, that, strictly speaking, is not the issue before us. Rather, it is the commercialization of such activities with which we are concerned, and it is this commercial aspect which we believe removes them from the sphere of a protectable right of privacy. See Brown v. Haner, 410 F.Supp. 399, 401 (W.D.Va.1976).

Implicit in appellants’ argument is the suggestion that their establishments constitute private places, analogous to the private home in Stanley v. Georgia, supra, or the marital bedroom in Griswold v. Connecticut, supra. In Paris Adult Theatre I v. Slaton, supra, however, the Supreme Court rejected arguments that a place of public accommodation, a theater, was protected by the cloak of privacy. We reach the same conclusion in respect to the essentially commercial establishments here. The activities proscribed by the ordinance are carried on in places “which cannot in contemplation of law reasonably be considered private”. United States v. McKean, supra at 440. See also Harris v. United States, 315 A.2d 569 (D.C.App.1974). Such activities therefore are not entitled to protection by a constitutional right of privacy.

Appellants further contend the ordinance is unconstitutionally overbroad, and therefore void and unenforceable. The ordinance states that “[a] person commits ‘prostitution’ if he or she engages or offers or agrees to engage in sexual conduct in return for something of value . . ..”

“Sexual conduct” is defined as “ ‘sexual contact’ which means any touching, manual or otherwise, of the anus or genitals of one person by another.” The ordinance contains no provision as to whom or what it applies and makes no specific reference to massage establishments. While admitting that the conduct on their premises falls within the proscriptions of the ordinance, appellants maintain that by defining “sexual conduct” as any touching of the anus or genitals of one person by another, the ordinance may be construed to proscribe the normal functions of obstetricians, gynecologists, urologists, proctologists, nurses and baby sitters, all of whom are compensated for services which frequently require touching of the anal and/or genital areas.

Assuming the ordinance might be applied in ways suggested by appellants, we do not believe they may be heard to challenge the ordinance on grounds of over-breadth. The general rule is that “[O]ne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional”. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). Employment of the overbreadth doctrine was restricted by the United States Supreme Court in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); it is used “sparingly and only as a last resort”. Id. at 613, 93 S.Ct. at 2916. Our Supreme Court, in Chamberlin v. Missouri Elections Com’n., 540 S.W.2d 876, 881 (Mo. banc 1976), has recognized a narrowing of the doctrine. Thus in only limited situations will courts now permit a litigant to assert, by way of the overbreadth doctrine, argued rights of non-litigants to whom a statute might be applied. The one principal exception to the general rule obtains in the first amendment area, where a statute which arguably violates rights of free speech or expression of others may be challenged by one to whom it may be constitutionally applied. Broadrick v. Oklahoma, supra, 413 U.S. at 611, 93 S.Ct. 2908; United States v. Brewer, 363 F.Supp. 606, 609 (M.D.Pa.1973).

This case presents no issues touching on the first amendment; the ordinance clearly poses no threat to the rights of free speech and expression of doctors, nurses, baby sitters, or others whose conduct might be said to fall within the literal scope of the ordinance. Indeed, it is upon a theory of privacy that appellants base their claim. Where, as here, certain protected conduct, and not speech, is encompassed by an otherwise valid proscriptive statute, the over-breadth doctrine is rarely applicable. As stated in Broadrick v. Oklahoma, supra, 413 U.S. at 615, 93 S.Ct., at 2917:

“[F]acial overbreadth adjudication is an exception to our traditional rules of practice and . . .its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. .
[Wjhere conduct and not merely speech is involved, ... the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”

It is our view that the alleged overbreadth of the ordinance is neither real nor substantial. Moreover, because possible invalid applications of the ordinance are highly speculative and not presently before this court, we believe the ordinance should stand “until an actual case corroborates and justifies [appellants] claim of anticipated harm and unconstitutional application”. Chamberlin v. Missouri Elections Com’n, supra.

That such a case will ever arise seems inconceivable. We cannot bring ourselves to believe that the rights of doctors, nurses, etc., will be, or were even intended to be, affected by the ordinance. In judging the validity of the ordinance, we must be guided by “robust common sense”. Common sense suggests that while the definitional terms of the ordinance may encompass certain activities as suggested by appellants, the ordinance cannot reasonably be construed to prohibit such activities. The ordinance should not be declared over-broad on the basis of frivolous and speculative invalid applications when a limiting construction can reasonably be placed on it.

The judgment of the trial court is hereby affirmed.

STEWART, P. J., and DOWD, J., concur.

      . Appellants argue in their brief that the trial court ruled prematurely and thereby precluded presentation of evidence of a “compelling state interest”. Because the compelling state interest test is here inapplicable, evidence of this nature was not required.
      A reading of the record makes it clear the parties submitted the case to the court on the pleadings and memoranda.

      . The problem of standing, as it has arisen principally in the federal courts, ordinarily requires consideration of two distinct questions: first, whether the litigant cam demonstrate “a sufficiently concrete interest” in the outcome of the litigation and to render the suit a “case or controversy”; and second, as a prudential matter, whether the litigant is a proper proponent of the particular legal rights on which he bases his suit. Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976).

      . In particular, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).


author: CLEMENS, Presiding Judge.

text:
    Robert A. BESTE, Appellant, v. Harry W. TADLOCK, Respondent.
    No. 38896.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 11, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Application to Transfer Denied June 15, 1978.

      Gerritzen & Gerritzen, St. Louis, for appellant.
    Douglas O’Leary, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff sued for injures sustained in a rear-end collision and received a $1,000 verdict. He has appealed from the ensuing judgment.

Defendant rear-ended plaintiff’s car while it was stopped at an intersection to make a left turn. Plaintiff fell forward, striking his head. He walked a few blocks to his home and drove to the hospital for a physical examination. The diagnosis was cervical sprain. During the next six months plaintiff saw his doctor with complaints of headache and backache. At trial, the treating physician, Dr. Hall, and Dr. O’Reilly, the examining specialist, both testified.

Plaintiff raises five points. We deny points IV and V as abstract statements of law not in compliance with Supreme Court Rule 84.04(d), VAMS.

Plaintiff first contends the court erred in allowing improper jury argument because defendant’s attorney referred to facts outside the record to encourage the jury to compare plaintiff’s injuries with those of other accident victims. We find no basis for this. Taken in context, defense argument was a preface to defendant’s appeal to be fair to both parties and neither directly nor inferentially referred to plaintiff’s injuries. The trial court is allowed wide discretion in controlling jury argument and absent clear abuse — which we do not find — its ruling controls. Norfolk & Western Railway Co. v. Greening, 458 S.W.2d 268[7-9] (Mo.1970).

As to jury conduct: While deliberating the jury sent out a note: “We would like to know how much, if any, that the plaintiff has collected for his doctor visits and drugs, from the defendant’s car insurance and plaintiff’s work health coverage. We would like to know if the insurance is going to pay for plaintiff, /s/ Elias E. Howard 11/17/76.” The court showed the note to both attorneys and denied plaintiff a mistrial. The court returned a note referring the jury to its instructions.

Plaintiff now contends the jury considered insurance, a fact not in evidence. The trial court exercises discretion when it considers jury misconduct, Kelly v. Prince, 371 S.W.2d 508[4] (Mo.1964), and will not be interfered with on appeal absent a showing of abuse. Baum/e v. Smith, 420 S.W.2d 341[14] (Mo.1967).

We find no such abuse. Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487[9-13] (1949) is on all fours. There, plaintiff sued for injuries occurring on the job. During its deliberations, the jury inquired of the court: “What is the maximum fee or percentage basis allowed by Missouri law to Plaintiff’s counsel?” The court referred the jury to its instructions. Defendant appealed, alleging error in refusing to discharge the jury for improperly considering insurance. The court affirmed, stating: “We also agree it was not necessary to discharge the jury because they asked the question . They should have done so when they were thus in doubt and did not know whether this was a matter they could properly consider.” See also McComb v. Vaughn, 358 Mo. 951, 218 S.W.2d 548[11] (Mo.1949).

Here, we cannot say the jury considered insurance merely because the question was asked. Even if a question alone might be sufficient to show jury misconduct, the phrasing of this question indicated the jury did not assume the existence of insurance.

Plaintiff’s citations are distinguishable. They are cases where trial lawyers improperly injected insurance. No such misconduct appears here. The jury is presumed to have followed their oaths and rendered a verdict according to the evidence. Christie v. Gas Service Co., 347 S.W.2d 135[10-13] (Mo.1961). Plaintiff has failed to overcome this presumption.

Plaintiff next contends the $1,000 verdict is grossly inadequate. An appellate court may “reverse and remand in those cases where, the damages under the circumstances, are such as to shock the understanding and induce the conviction that the verdict was a result of either passion, prejudice or partiality.” Strange v. Aidison, 65 S.W.2d 115[1] (Mo.App.1933). We review the evidence in the light most favorable to the verdict and recognize the trial court has discretion to set aside verdicts it deems are inadequate. We do not interfere absent an abuse of discretion. Hufft v. Kuhn, 277 S.W.2d 552[3] (Mo.1955).

Plaintiff struck his head and for six months intermittently saw a physician for headache and backache. Dr. O’Reilly, the orthopedic specialist, examined plaintiff only once, six months after the accident. He testified he found no objective abnormalities and on the basis of plaintiff’s complaints diagnosed mild neck strain and mild low back strain. On cross examination, Dr. O’Reilly acknowledged that at the time of his examination he believed plaintiff would gradually improve without objective disability. At trial, however, he testified that plaintiff’s discomfort would continue for an indefinite time. After six months plaintiff did not return to a doctor except for treatment of a new shoulder injury and Dr. Hall testified plaintiff did not then complain of neck or back pain. Plaintiff lost only half a day of work and his injuries did not limit his activities at work. His medical expenses were only $228.65.

In arriving at the verdict for plaintiff the jury must have found plaintiff’s injuries resulted from defendant’s negligence. It was the jury’s duty to award plaintiff damages commensurate with those injuries and plaintiff was awarded $1,000. We assume the verdict included plaintiff’s medical expenses of $228 and, accordingly, compensation for his injuries of $772. The jury could reasonably have found plaintiff’s injuries were neither serious nor permanent. The trial court did not err in declining to grant a new trial for inadequate damages.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    STATE ex rel. ESTATE of Carl F. SEISER et al., Relators, v. Honorable Herbert LASKY, Judge of the Circuit Court of St. Louis County, Respondent.
    No. 39768.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 18, 1978.

      Wion, Burke & Boll, Robert S. Moss, Clayton, for relators.
    Fred Roth, Dennis L. Taylor, Clayton, for respondent.
   CLEMENS, Presiding Judge.

Prohibition to prevent respondent circuit judge from proceeding further on a claimant’s motion to set aside a probate court order allowing her claim in an amount which claimant later contended was inadequate.

On February 13,1975 Berenice Ruth Meier (hereafter claimant) filed a $95,400 claim against the estate of Carl F. Seiser for services performed for decedent. On April 7, 1975 counsel for claimant and the estate stipulated to a settlement of the claim for $5,000 and the probate court so ordered.

On October 21, 1975 claimant filed a motion in the probate court to set aside the April 7, 1975 order. The probate court denied the motion on the ground no good cause for setting aside the order was shown.

Claimant timely appealed that order to the circuit court. On May 27, 1976 the circuit court went beyond the relief sought—setting aside the probate court’s April 7 order—and ruled: “petitioner [sic] request for a trial de novo, against the estate in its entirety granted.” Relator (the estate) appealed, and we held the May 27, 1976 order was not appealable. See In the Matter of Seiser, et al v. Meier, 557 S.W.2d 263 (Mo.App.1977). Relator then filed this original proceeding seeking prohibition to prevent the circuit court from proceeding further. We issued our preliminary writ.

Relator argues that the circuit court lacks jurisdiction to proceed because claimant failed to timely appeal the order of April 7, 1975 allowing her claim. Relator further contends a motion to set aside can not extend the time for appeal. Though relator’s contentions are true, its conclusion regarding lack of jurisdiction arising from these two factors is wrong. The circuit court does have jurisdiction and the writ should be quashed, but with a caveat.

There are three independent methods of attacking probate court orders—two are statutory and one at common law. An equity proceeding based on allegations of fraud is available to one seeking to challenge an order or judgment of the probate court. Murphy v. Farmers’ Bank, 11 S.W .2d 1066[1] (Mo.App.1928); Walther v. Null, 233 Mo. 104, 134 S.W. 993[7] (1911). This remedy is available during the time for causes of action based on fraud. See Sec. 516.120, RSMo.1969.

Section 472.160 provides that “any interested party aggrieved thereby may appeal from the order, judgment or decree of the probate court” in 15 designated situations. One of the 15 types of appealable orders relates to claims over $20, which covers the present case. All appeals shall be taken within 30 days after the decision complained of is made. Sec. 472.180. Though many orders of the probate court are interlocutory, if these orders fall into one of the 15 categories enumerated in Sec. 472.160, they are deemed final for purposes of appeal. Such a result allows many matters of importance to be resolved while the estate is open, and prevents one complex appeal from all matters that occurred during administration of the estate. See Keet & Rountree Dry Goods Co. v. Williams, 202 S.W. 620[6-9] (Mo.App.1918).

Section 472.150 authorizes vacation and modification of orders, judgments and decrees for good cause before the expiration of the period allowed for appeal after the order of final distribution. Thus, as long as the estate is pending in the court, the court retains control over its orders. “It [Sec. 472.150] contemplates that the entire administration proceeding shall be one action and that until final determination the whole matter is in the breast of the court.” See Committee Comment to Sec. 472.150, and In re Estate of Bacheller, 437 S.W.2d 132 (Mo.App.1968). This section takes into account that in order to expedite resolution of the matters listed in Sec. 472.160, certain orders are “final” for purposes of appeal. But, the court may stay an appeal until the order of final distribution if no one is prejudiced thereby, so that a multitude of appeals does not delay the order of final distribution or disrupt the continuity of administration. Edward D. Summers, “The Proposed Probate Code for Missouri,” 20 Mo.L.Rev. 123 (1955).

After expiration of the time for appeal from an order (such as an order allowing a stipulated claim) the court may grant a motion to set aside and vacate that order any time before the entry of an order of final distribution, and within 30 days following the order of final distribution.

One seeking to challenge the allowance of a claim has two separate statutory remedies — appeal or a motion to set aside and vacate. He cannot pursue both avenues, but may choose either. State ex rel. Bostian v. Ridge, 354 Mo. 145, 188 S.W,2d 941[4] (Mo.1945). Thus, claimant could have pursued either appeal within 30 days or a motion to set aside. She chose the latter.

Section 472.150 has expanded the circumstances in which an order allowing a claim may be challenged. Before the enactment of Section 472.150, the law substantially followed the language of former Sec. 464.-310, RSMo.1949, since repealed. Section 464.310 allowed only four classes of persons (executor, administrator, heir or creditor) to challenge the allowance of a claim, and that challenge was required to be filed within four months after the claim was allowed. Clearly the legislature intended to broaden the remedy formerly covered by Sec. 464.-310 to include a larger class of persons, by eliminating the four categories, and to extend the time for obtaining relief, by eliminating the four month requirement.

The three avenues of attack have different time frames. Another difference among them is the scope of review. In the equity proceeding, the focal issue is fraud. Under Sec. 472.150, the critical and narrow issue is whether or not good cause exists for vacation or modification. But, pursuant to Sec. 472.160, review is broadened to a trial de novo. Cooper v. Jensen, 448 S.W.2d 308[8] (Mo.App.1969). Note these differences in view of the recommended outcome of this case.

Relator expresses justifiable concern regarding the scope of review adopted by the language of the circuit court in its order dated May 27, 1976 which granted the appeal: “Petitioner [sic] request for a trial de novo, against the Estate in its entirety granted.” (Emphasis added.) While it is true that the circuit court affords a trial de novo on appeal from an order of the probate court, that trial de novo is limited to the specific issue(s) raised in the order from which an appeal was taken. Hart v. Wood, 392 S.W.2d 20[13] (Mo.App.1965). Here, the order appealed from involved only one issue — whether or not good cause was alleged and proved so as to justify setting aside a valid order of the probate court. The “trial de novo” in the present case is not a rehearing of the merits of the amount claimed or allowed. Respondent is wrong in contending as he does that the appeal from the April 7, 1975 order brings the merits of the claim before the circuit court. The only way in which claimant could have obtained a review of the amount of her claim was direct appeal within 30 days after entry of the April 7, 1975 order. However, she did not choose that method of review. Presently, if the circuit court finds claimant’s motion to set aside alleged good cause and if claimant proves good cause before the circuit court, then the circuit court shall enter an order setting aside the order allowing the claim. As a result of such an order, claimant’s original demand would then again be pending for adjudication in the probate court. The general rule is that when an order or judgment is vacated the previously existing status is restored and the situation is the same as though the order or judgment had never been made. Buchanan v. Cabiness, 362 Mo. 985, 245 S.W.2d 868[4] (1951); Hawkins v. Hawkins, 462 S.W.2d 818[9] (Mo.App.1970). Claimant would then be in a position to request a hearing on her claim in the probate court.

Our preliminary writ barring all action was overbroad and is now ordered discharged, with our caveat that the trial court should limit itself to a determination of the claimant’s motion to set aside the probate court’s order.

SMITH and McMILLIAN, JJ., concur.

      . All statutory references refer to the Revised Statutes of Missouri, 1969, unless otherwise indicated.

      . See Sec. 241, RSMo.1899 which is substantially the same as Sec. 464.310.


author: McMILLIAN, Judge.

text:
    Raymond BROCKMANN and Luella Brockmann, Plaintiffs-Appellants, v. George B. O’NEILL, Peter J. Barbos and Denver T. Smith, Trustees of Royal Electric Contractors, Inc., Formerly a Missouri Corporation and George B. O’Neill, Peter J. Barbos, Denver T. Smith, L. T. Hundelt and R. K. Olson and Consolidated Electrical Contractors, Inc., a Missouri Corporation, by L. W. Hundelt, Defendants-Respondents.
    No. 37979.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 25, 1978.

      Alfred J. Rathert, Fenton, for plaintiffs-appellants.
    Albert H. Feldt, Clayton, for defendants-respondents.
   McMILLIAN, Judge.

Plaintiffs-appellants, Raymond and Luella Brockmann, appeal from a judgment entered by the trial court denying their recovery on a promissory note against Consolidated Electrical Contractors, Inc., (Consolidated). Appellant sued George B. O’Neill, Peter J. Barbos, and Denver T. Smith, trustees of the assets, as the last board of directors of Royal Electric Contractors, Inc. (Royal) a former Missouri corporation (Count I); and sued George B. O’Neill, Peter J. Barbos, Denver T. Smith, L. T. Hundelt, R. K. Olson, and L. W. Hundelt, individually and as directors of Consolidated and defendant Consolidated, a Missouri corporation (Count II).

The trial court, sitting without a jury, entered a limited judgment in favor of appellants on Count I and against respondents O’Neill and Smith, as trustees of the assets of Royal, and entered judgment in favor of all other respondents on Count II.

On appeal appellants contend that the trial court erred in limiting its judgment to the respondents as trustees of the assets of Royal, and that judgment should also have been entered against Consolidated as a successor to the promissory note. More specifically, appellant argues that Consolidated, the transferee corporation, was liable for the debts of Royal, the transferor corporation, either because the transfer was without consideration, or because the transferee corporation was a mere continuation of the old corporation. Thus, there are two issues to be resolved. First, whether Consolidated can be considered a continuation of Royal, so as to subject Consolidated to liability on the promissory note. Secondly, whether sufficient consideration passed between Royal and Consolidated so as to validate the transfer of assets and shield Consolidated from liability on the note.

Resolution of the issues will entail a recitation of the pertinent evidence presented at trial. On January 30, 1961, Royal was incorporated under the laws of the State of Missouri. The incorporators were respondents George B. O’Neill, Denver T. Smith, and George A. O’Neill, the deceased father of respondent O’Neill. These three incorpo-rators served as the board of directors and primary officers of the corporation. Royal was engaged in the business of general electrical contracting.

Appellant Raymond Brockmann was employed as an electrician for Royal in 1960. On April 25, 1963, appellants lent Royal $10,000 and received from the corporation its promissory note for that sum. Mr. Brockmann testified that demands were made several times a year; however, they have received no payments.

Royal continued in the electrical contracting business until November, 1963, when it ceased doing business. At this time Royal had liabilities of $140,000, and owed the government $13,000 in back taxes. Its assets consisted of five trucks, equipment, tools and other material. Royal was engaged in approximately six electrical contracting projects.

On January 8, 1964, respondents O’Neill, Smith and their attorney, Albert H. Feldt, signed articles of incorporation which incorporated Consolidated, and on January 20, 1964, the corporate charter was issued. Consolidated was to engage in the business of general electrical contracting. Consolidated took over performance on Royal’s electrical contracting projects, employed Royal’s employees and used Royal’s trucks and equipment.

At the time Royal ceased doing business it had sold its trucks and other assets to Consolidated Mechanical, Inc., a corporation whose major stockholder, Lester W. Hun-delt, is on the present board of directors of Consolidated. In exchange for Royal’s assets, Mr. Hundelt had paid $13,000, the amount Royal owed in back taxes to the government. There was no inventory of assets taken at the time of or prior to the sale. However, even though Royal had sold its assets to Consolidated Mechanical, Consolidated Electrical continued to use them in the course of their business.

As stated previously, Consolidated had taken over all of the projects formerly run by Royal. Respondent Smith had testified that none of the contractors were notified of the changeover. There was no delay or days lost during the changeover. Smith further testified that Consolidated used the same work force, supervisors, trucks, tools and equipment as Royal. There was further testimony that the employees were not notified of the changeover until several days later; however, no work had been delayed or stopped. In fact, appellant testified that he did not know of the changeover until he received his first paycheck from Consolidated. In addition, the employees had received no correspondence from Royal nor Consolidated concerning their job status or union affiliation.

After the court tried case the trial judge made findings of fact and conclusions of law in which he held that sufficient consideration had passed to validate the sale of assets by Royal. In addition, the court ruled that there was neither fraud nor a merger proven so as to subject Consolidated to liability on the promissory note. The trial court entered a limited judgment against the former board of directors, O’Neill and Smith, as trustees of the assets of Royal and not in an individual capacity.

The trial court failed, however, to decide if there had been a continuation.

First, the general rule of law in Missouri is that where one corporation sells or otherwise transfers all of its assets to another corporation, the latter is not liable for the debts and liabilities of the transferor, except: (1) where the purchaser expressly or impliedly agrees to assume such debts; (2) where the transaction amounts to a consolidation or merger of the corporation; (3) where the purchasing corporation is merely a continuation of the selling corporation; or (4) where the transaction is entered into fraudulently in order to escape liability for such debts. Ingrain v. Prairie Block Coal Co., 319 Mo. 644, 5 S.W.2d 413, 416 (1928); Sweeney v. Heap O'Brien Mining Co., 194 Mo.App. 140, 186 S.W. 739, 741 (1916). See generally, Annot., 49 A.L.R.3d 881 (1973); 19 Am.Jur.2d, Corporations, § 1546 (1965).

Applying this general rule to the present fact situation, we feel the record amply demonstrates a situation where there was a continuation of a prior transferring corporation. The record shows that both Royal and Consolidated were in the business of general electrical contracting. Respondents O’Neill and Smith were the directors, primary officers and major stockholders of Royal at the time it ceased doing business. Both were also two of the incor-porators, directors, primary officers and major shareholders of Consolidated at the time of incorporation. In addition, it has been shown that the business operations of both were exactly the same. Consolidated used the same trucks, equipment, labor force and supervisors as had Royal. At the time of changeover, Consolidated took over performance of Royal’s contracts; however, it gave no notice to the contractors. In fact, at the time of the changeover, the employees were not even notified. It would appear that if an actual change of ownership were made, one of the first things a new employer would do is contact its employees to assure them of their status, or, if not, at least to renegotiate the collective bargaining agreement. This was not done. For these reasons, we feel that there was no significant difference between Royal’s operation and that of Consolidated, and that a “continuation” is presented.

A similar situation and result is found in Bishop v. Dura-Lite Manufacturing Co., 489 F.2d 710 (6th Cir. 1973). The Western District Court of Tennessee, applying Tennessee law, found that a continuation was presented so as to render a transferee corporation liable for breach of a contract entered into by a transferor corporation. The record revealed in Bishop, supra, that Dura-Lite, like its predecessor, was engaged in the business of manufacturing and selling outdoor signs; that Dura-Lite used the same tools and equipment as its predecessor; that Dura-Lite had the same management personnel as its predecessor; and that the primary officers of both corporations were the same. On these facts the court found that a continuation was present. The situation here presents factors not present in the Bishop case, for Royal and Consolidated had the same board of directors as well as the same work force. Moreover, the contracts in progress were taken over without notice. Thus, an even stronger example of a continuation is presented here. Consequently, applying the scope of review of a court tried case as pronounced in Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976), we hold that the trial judge erroneously applied the law to the facts in evidence.

Due to the resolution of the first issue it is unnecessary to determine if valuable consideration had passed so that the transfer of assets was valid. At first glance, it appears questionable because the title to the assets is in the name of Consolidated Mechanical, Inc.; however, we need not resolve this issue.

The trial court’s judgment is reversed and judgment entered against Consolidated Electrical Contractors, Inc. The case is remanded to the trial court to determine the amount of principal and interest due the appellants.

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

      . It must be noted that the issue as to continuation does not appear in the pleadings, and the trial court did not rule on whether or not there was in fact a continuation. However, evidence concerning a continuation was admitted at trial without objection. Therefore, for the purposes of appeal the issue will be treated as if raised in the pleadings. § 509.500 RSMo 1969; Feltz v. Pavlik, 257 S.W.2d 214, 217 (Mo.App.1953). We feel compelled to raise and resolve this issue because respondent has not submitted an appellate brief.


author: SMITH, Judge.

text:
    In re the MARRIAGE OF Randall Leroy AGNE, Petitioner-Appellant, and Sandrea Leila Agne, Respondent.
    No. 38657.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 25, 1978.

      Bernard Edelman, Clayton, for petitioner-appellant.
    Bussey, Collier & Dorsey, P. C., Elbert Dorsey, Ronald Vails, St. Louis, for respondent.
   SMITH, Judge.

Movant-father appeals from the action of the trial court in denying his motion to modify an award of child custody. The mother had received custody of the 2½ year old son of the parties in the original divorce proceedings nearly three years prior to the hearing for modification.

Movant’s major contention on appeal is that the action of the wife in removing the child from Missouri to Oregon without court approval and thereby defeating the husband’s opportunities to exercise his rights to temporary custody requires that the custody be changed. While this is a factor which may warrant a change, it is only one factor and does not compel the court to modify custody. J.L.W. v. D.C.W., 519 S.W.2d 724 (Mo.App.1975) [3-5]. Our review of the record does not convince us that the trial court erred in making the determination it did that the welfare of the child did not require a change of custody.

We further find that an extended discussion would have no precedential value and accordingly affirm pursuant to Rule 84.-16(b).

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Sharon Jean GONTERMAN, Defendant-Appellant.
    No. 10881.
    Missouri Court of Appeals, Springfield District.
    April 27, 1978.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Tyce S. Smith, Waynesville, Marshall R. Weinberg, Chicago, Ill., for defendant-appellant.
   PER CURIAM.

Defendant was charged with two counts of possession of controlled substances. Count I charged defendant with possession of lysergic acid diethylamide. Count II charged defendant with possession of phen-cyclidine. Trial began before a jury. The parties thereafter agreed that the remainder of the case would be tried before the court.

Thereafter, the court made the following entries:

“COURT’S DOCKET ENTRIES” “Dec 5 '77. State appears by Pros. Atty. and Def. appears in person and by atty. Court takes up defendant’s motion for new trial and overrules the same. Allo-cution granted. Def. offering no legal reason sentence ought not to be pronounced, the Court sentences the defendant to a term of two years in the Missouri Department of Corrections . . . .”

In Missouri, criminal appeals are authorized only after rendition of final judgment. Rule 28.03, V.A.M.R. The quoted docket entry is the only portion of the transcript on appeal which approaches a final disposition of the case. This court has repeatedly disapproved the practice of employing transcribed docket entries in lieu of a formal judgment. However, the deficiency of the instant entry goes beyond mere form. Appellant was charged with two counts of possession, yet the docket entry is styled in the singular. One is left to speculate whether defendant was sentenced on the unmentioned count in a separate, unreported entry or whether the court contemplated a “sentence” consisting of two concurrent confinements.

In view of the aforementioned deficiencies, the appeal must be held in abeyance and the cause remanded to the trial court for rendition and entry of a final judgment. Thereafter, the appeal shall be reinstated upon receipt of a supplemental transcript containing a final judgment. State v. Po-gue, 552 S.W.2d 75, 76 (Mo.App.1977).

It is so ordered.

All concur.


author: HOGAN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James E. BREWER, Defendant-Appellant.
    No. 10455.
    Missouri Court of Appeals, Springfield District.
    April 27, 1978.

      Vernie R. Crandall, Frieze, Crandall & Crawford, Carthage, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., and KENNEDY, CROW and BACON, Special Judges.
   HOGAN, Presiding Judge.

Defendant James E. Brewer stands convicted of the sale of marihuana which, by the provisions of § 195.017(2)(4)(j), RSMo Supp.1973, was a Schedule I controlled substance at the time the sale took place on January 20, 1975. The Second Offender Act, § 556.280, RSMo 1969, was found to be applicable and the trial court assessed defendant’s punishment at imprisonment for a term of five years. Defendant appeals.

Upon review after a judgment of conviction, the State is entitled to have the evidence and the reasonable inferences to be drawn therefrom taken in the light most favorable to the State, disregarding defendant’s evidence to the contrary. State v. Cobb, 444 S.W.2d 408, 412[3] (Mo.banc 1969); State v. Gardner, 558 S.W.2d 395, 397[1] (Mo.App.1977). So condensed and summarized, the evidence is that one Donald Lipp, a member of the Missouri State Highway Patrol’s Special Intelligence Unit, went to a tavern or bar in Joplin during the early part of the night on January 20,1975. The defendant entered the bar and Lipp engaged him in conversation. After the two had talked for some time, defendant asked if Lipp would be “ . ' . . interested in buying a lid of grass.” Lipp replied that he would be, “depending on the price.” Defendant “said $15.00.” Defendant then told Lipp that the marihuana “was in the car and if [Lipp] wanted to, [he] could go out there and see it . . ” Lipp and the defendant stepped outside where the defendant’s automobile was parked. The defendant unlocked the car, opened the glove compartment and removed a small plastic bag of “ . . . dark leafy type plant material that had seeds and stems inside of the package.” Lipp put the plastic bag in his pocket and handed the defendant a twenty-dollar bill. Defendant gave Lipp five dollars change. A subsequent test of the material in the plastic bag disclosed that it was marihuana; it was stipulated that the contents of the bag weighed 21.1 grams, which is approximately ½ ounce. It was shown in evidence that Trooper Lipp was 36 years of age. The evidence was sufficient to support the judgment of conviction. § 195.200(1)(5), RSMo Supp.1973, and see State v. Gardner, supra, 558 S.W.2d at 397-398[l, 2].

The defendant testified and called several witnesses. Admitting that he was in possession of marihuana on January 20, 1975, defendant raised the special defense of entrapment, claiming he was induced to commit the crime through the use of improper police tactics. The jury was duly instructed upon the defense of entrapment and the State’s verdict-directing instruction, Instruction No. 6 (MAI-CR 14.10), duly negatived that defense. Defendant has nevertheless pursued the matter in this court, arguing that evidence bearing on his special defense was improperly excluded. We need not discuss this argument at length. It is true that several times during the trial the trial court excluded evidence offered by the defendant. Some colloquy between the court and counsel followed but counsel made no tender or offer of proof.

In such circumstances, we cannot hold that the trial court erred. State v. Beal, 474 S.W.2d 830, 832[1] (Mo.1972); State v. Cook, 412 S.W.2d 441, 444 (Mo.1967); State v. Arnold, 206 Mo. 589, 597, 105 S.W. 641, 643[2] (1907).

The defendant’s final point is that the trial court erred in failing to declare a mistrial and discharge the jury because of improper final argument by the prosecutor. During closing argument, the prosecutor stated “we are here today with the trial of a man for selling drugs on the streets of Joplin,” and also remarked, “[T]he question is selling drugs and do you want drugs sold on the streets of Jasper County”? Defendant argues that such statements constituted an inflammatory appeal calculated to arouse the personal hostility of the jurors toward the defendant.

We cannot agree. There was evidence that the sale of marihuana was made outside a bar on a public street in Joplin. It could thus be inferred that defendant sold marihuana on the streets, and certainly, marihuana is a drug in the eye of the law. A prosecutor has the right to draw any inference from the evidence which he believes in good faith to be justified, and the trial court has considerable discretion in the latitude to be permitted in the argument of counsel. State v. Smith, 527 S.W.2d 731, 733[6, 7] (Mo.App.1975). The inference argued was reasonable, and we find no abuse of discretion. We find the contention to be without merit.

There is no error in any respect properly preserved for review here, and accordingly the judgment is affirmed.

All of the Judges concur.


author: TITUS, Judge.

text:
    DAVID, Plaintiff-Respondent, v. CINDY, Defendant-Appellant.
    No. 10816.
    Missouri Court of Appeals, Springfield District.
    April 27, 1978.

      Charles E. McElyea, Phillips, McElyea, Walker & Carpenter Corp., Camdenton, for plaintiff-respondent.
    Gene A. Hilton, Camdenton, for defendant-appellant.
   TITUS, Judge.

This is a case of anomalies, not the least of which is that it was activated by a male to have himself declared the natural father and principal custodian of a bastard born March 28,1974. The trial court obliged and the child’s mother appealed.

Dramatis Personae

David — The plaintiff who was 25 years old when the cause was court-tried May 3, 1977.

Madeline —David’s 48-year-old wife whom he married July 1, 1975. David is Madeline’s fifth husband.

Dorothy — David’s 50-year-old five-times-married mother.

Cindy — Defendant-appellant, the 24-year-old mother of the bastard and the mother of two other children ages 9 and 7 years.

Elizabeth —A mutual acquaintance of Dorothy, David and Cindy.

Thomas — Cindy’s husband whose whereabouts has been unknown for years.

Lynn — The man Cindy claims is the father of the bastard.

David’s Timetable

On the penultimate weekend of May 1973, David (then 21 years old) first met Cindy (then 20 years old) in a Nebraska-Iowa community. The time of this first meeting was corroborated by testimony of Elizabeth, the avowed introducer of the couple, and Dorothy, David’s mother. The following weekend David and Cindy had sexual intercourse. On the third weekend, i. e. the first weekend of June 1973, David and Cindy, accompanied by Cindy’s two children, came to Missouri and lived together until September 1973, during which time they copulated on “a regular basis.”

Cindy’s Timetable

When Cindy married Thomas she was 15 years old. David said Cindy told him that she and Thomas separated one week after the marriage ceremony; Cindy testified the separation, without divorce, occurred in December 1967. In May 1973, Cindy commenced “dating” 27-year-old Lynn and they had sexual relations “four or five times a week” until she transferred the habit to David. Cindy recounted that her last menstrual period before the baby was born commenced June 10, 1973, and that she did not meet David until the middle of June 1973 and did not have sexual intercourse with him until near July 17, 1973. Thereafter Cindy and her two children came to Missouri with David where they resided until September 1973. Cindy opined that Lynn, not David, was the bastard’s father.

Courts may not pretend ignorance of things known to all quidnuncs and the public generally. Consequently, we judicially note that the ordinary period of gestation is ten lunar months or 280 days. However, we also must recognize that such a period is subject to many exceptions and variations. JD v. MD, 453 S.W.2d 661, 662 (Mo.App. 1970); 31A C.J.S. Evidence § 79, p. 88. By calculating reversely from the birth date of the child (March 28, 1974), and assuming that the ordinary period of gestation occurred, we find that conception took place on or about June 22, 1973. Under David’s timetable, supra, which evidenced copulation on “a regular basis” commencing with the first weekend in June 1973, conception could very well have occurred about June 22, 1973, or at the inception of an ordinary period of gestation. On the other hand, if it be assumed that the child was conceived near the first sexual encounter testified to by Cindy, i. e. around July 17, 1973, conception would have occurred about 257 days prior to birth. But albeit conception did not take place when the couple first copulated according to Cindy’s timetable, a period as brief as 229 days has been held to be not so extraordinarily divergent from the ordinary period of gestation as to permit courts to declare it a medical impossibility. F_v. F_, 333 S.W.2d 320, 327[11] (Mo.App.1960). See also, Silke v. Silke, 325 Mass. 487,91 N.E.2d 200, 203 (1950); Spears v. Veasley, 239 Iowa 1185, 34 N.W.2d 185, 186 (1948). Or, put differently, Cindy’s insistence that regular intercourse with David did not commence until mid-July 1973, did not per se absolutely exclude the possibility of David as the father of the child.

But irrespective of the conflicting timetables, the trial judge heard other testimony from which he could have concluded that David was the child’s natural father. David, his mother and Elizabeth (the mutual friend of the parties) testified that Cindy on many occasions had acknowledged David as the father. Dorothy (David’s mother) said that Cindy, after the baby was born, sent her pictures of the child and, via letters and telephone conversations, referred to her as “grandmother.” In what might be termed a left-handed disputing of these asseverations, Cindy testified that “I never told [them] that [David] was or that he wasn’t [the father], I just let them believe what they wanted to believe. I never said yes and I never said no.” There were exhibits attesting that Cindy accepted money from David for support of the child, and, while Cindy claimed she listed Thomas (her husband) as the child’s father on the Nebraska birth certificate, she admitted naming David as the child’s father after returning to Missouri and making application for financial assistance from the Division of Family Services.

The trial court, having actually seen and heard the witnesses, had an opportunity superior to ours to observe their demean- or and behavior and to evaluate, weigh and assess their testimony. Furthermore the trial judge, as the trier of the facts, had leave to disbelieve the testimony of any witness or believe part of a witness’ testimony and reject the rest. Long v. Lincoln, 528 S.W.2d 512, 513 (Mo.App.1975). “We review this case upon both the law and evidence giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(c) [V.A.M. R.]. This has been construed to mean that the decree of the trial court ‘will be sustained . . . unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.’ Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo.banc 1976).” B. W. v. F. E. W., 562 S.W.2d 137, 138 (Mo.App.1978). After a careful conning of the record, more than our abbreviated recitations may suggest, we conclude that in finding David to be the natural father of the child, the trial court’s decision was not against the weight of the evidence. Neither did it erroneously declare or apply the law. Moreover, as her “points relied on” and the “argument” portion of her brief suggest, Cindy’s proclaimed promiscuities did not unerringly serve to prove that David did not father the child.

Cindy’s second point relied on claims the trial court erred in sustaining the objection to a question propounded to David which inquired if his wife, Madeline, had once been married to her daughter’s ex-husband. No offer of proof was made to show what the answer would have been had it been allowed. In the absence of such an offer the complaint is not for consideration on appeal. Moore v. Parks, 458 S.W.2d 344, 348[6] (Mo.1970); Thayer v. Sommer, 356 S.W.2d 72, 80[11] (Mo.1962).

Cindy’s final point relied on complains of the trial court’s award of major custody of the child to David. As to this phase of the litigation it should be noted that the court ruled that it “specifically retains jurisdiction herein as to any further proceedings affecting the custody and welfare of [the child] for that purpose but for no other purpose, and the Custody Order entered herein is deemed interlocutory.” The court’s award of principal custody to David was specifically “subject to rights of visitation by [Cindy] on reasonable occasions.”

We deem it uncompassionate of the child’s present and future welfare and feelings to record for the prating of across-the-fence twaddlers the exact details of all proffered testimony regarding the fitness vel non of David or Cindy to have principal custody. In addition to the testimony of the parties and their witnesses, the trial court had for consideration home study investigation reports of David and Cindy prepared by the Missouri Division of Family Services and its counterpart in the State of Nebraska. The parties have stipulated that these reports “may be filed with the appellate court for its consideration.”

Of course, the chief concern of all courts in determining custody should be the best interest and welfare of the child. In Interest of B. B., 537 S.W.2d 682, 684[1] (Mo.App. 1976). In our review of such cases, we acknowledge the grave burden and responsibility ladened upon the trial judge. We recognize that his personal hearing and observation of the witnesses gives him an opportunity to assess their character and weigh their testimony in excess of what can be gleaned from a reading of the printed transcript. H_ B_ v. R_ B_, 449 S.W.2d 890, 891 (Mo.App.1970).

From what has been written heretofore makes it apparent that the trial court was presented with facts which made a decision concerning principal custody most difficult. There was testimony, corroborated to an extent by Cindy, which portrayed her at times as a woman of dubious virtue and which suggested the child in litigation may not have been the only bastard she had borne. On the other hand, David could not be likened unto a saint and Madeline’s marital history was not apt to spawn an even-money-bet on the permanency of her latest venture into matrimony with David. In fine, it appears the trial judge was faced with the problem of deciding which of the parents presented the lesser of two not-so-desirable situations and then placed major custody in that parent for the time being. The trial court after pondering the evidence and the home study reports, obviously concluded that giving major custody to David, though not a perfect solution, was a placement of the child in an environment which was presently better economically and otherwise than could now be offered by Cindy.

The judgment is affirmed.

All concur.