author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Willie Curtis BLEVINS, Appellant.
    No. 39631.
    Missouri Court of Appeals, Eastern District, Division One.
    April 24, 1979.

      Rader, Richey & Price, Cape Girardeau, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Steven Clark, Asst. Attys. Gen., Jefferson City, Bradshaw Smith, Pros. Atty., Cape Girardeau, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of rape, robbery, and kidnapping and the 99 year, 20 year, and 20 year sentences imposed by the court in accord with the jury verdict. The court ordered the sentences to run concurrently.

The prosecuting witness was at the time of the offenses twenty years old, white, married and four and one-half months pregnant. She was employed as a ticket agent on the evening shift at the Cape Girardeau bus depot. Around 6:00 p. m. on March 8, 1977, defendant, a young black man, approached the counter and asked about a bus to Farmington. C.H., the victim, advised him the next bus was at 6:35 p. m. Defendant left the station and returned around 8:00 p. m. to purchase a ticket to Farming-ton. The next bus was an express bus and the driver refused to stop at Farmington. Upon being told by defendant that he could not ride the bus and that he had no money to stay anywhere, C.H. suggested that he could stay at the police station. On the previous evening the name of Willie Curtis Blevins was shown on the log of the Cape Girardeau Police Department. This log was a list of those persons given a ticket to stay at the Salvation Army. Sometime during the evening' defendant showed C.H. a round trip bus ticket to Washington, D.C.

At approximately 10:15 p. m. C.H. was closing the station. This involved placing the money in the safe, turning out the lights and locking up. She offered to drive defendant to the police station a short distance away. Once in the car. defendant asked to be driven across the river to Illinois to a friend’s house. C.H. refused but did agree to drive defendant to the house of a girl defendant claimed to know in Cape Girardeau. When they reached the house designated by defendant, C.H. stopped or parked the car and defendant started to leave. Then he reached over and tried to kiss C.H., but she refused. He then held a knife to her stomach and then to her neck, and ordered her into the back seat. At his instruction she partially disrobed and defendant had sexual intercourse with her. Defendant also stated he had a gun and that he would kill or stab her if she did not cooperate. C.H. testified she did not resist because of fear she would be killed or her baby injured.

Defendant had inquired before they left the front seat how much money was in the bus safe and whether C.H. had the combination. While in the back seat during the intercourse C.H. told defendant that if he wanted the money he should hurry because a bus would arrive at 11:15. Shortly thereafter defendant completed the act of intercourse, permitted C.H. to dress and ordered her to drive to the bus depot. C.H. put on her jeans but left her underpants on the back floor of the automobile.

They returned to the bus depot, left the car, and defendant grabbed C.H.’s arm tightly and they went inside. C.H. did not see the knife while in the bus station but believed it to be in defendant’s pocket. She also thought he might have a gun, had felt something in his pocket but couldn’t tell if it was a gun and “wasn’t goin’ to go ahead and see.” C.H. opened the safe and defendant removed therefrom $941. He put the bills in various pockets and $80 in rolled change in C.H.’s purse.

Upon leaving the station defendant drove the car. They went out on the interstate toward St. Louis. The knife was open between defendant’s legs as he was driving. The ear ran out of gas on the exit ramp at the intersection of 1-55 and Highway 32 near Ste. Genevieve. Defendant went to a filling station nearby which was closed. C.H. left the car and ran to a van nearby and tried to enter on the passenger side. The van pulled away and C.H. ran after it. Defendant caught up with her and slapped her and threatened to kill her. The slapping caused her nose to bleed. They returned to the car where C.H. used some tissue to stop the nose bleed and defendant tore off a part of her blouse to wipe fingerprints off the steering wheel and other parts of the car. Both the cloth and tissue were left in the car. They then began walking across a field into a wooded area. When they reached a dry creek bed defendant again ordered C.H. to disrobe and again had intercourse with her. He then threatened to kill her, but at her suggestion cut strings from her blouse and tied her to a tree. He then cut her bra and stuck a part of it into her mouth as a gag. Defendant then took hold of C.H.’s nipple and threatened to cut that off. C.H. screamed and defendant stated she could still be heard and tightened the gag. Defendant then left C.H. and returned to the area where she had dropped her purse. She then saw him run away and heard a noise which she thought was defendant throwing away her purse. C.H. freed herself, returned to the gas station and called the police. An officer was in the area investigating a report that a man had been seen striking a woman and he took C.H. to the Ste. Genevieve sheriff’s office. He described C.H. as roughed up, disarrayed and mussed up.

C.H. talked to the Cape Girardeau police and her voice was shaky and crying. The description given caused those police to issue an arrest warrant for Willie Curtis Blevins, the man who the night before had signed the police log. Medical examination of C.H. six hours after her escape did not reveal any cuts, scratches, bruises or abrasions. The doctor could give no opinion, based upon his examination, of whether C.H. had suffered a bloody nose or had been raped. Seminal fluid stains were found on the tissues found in the car and on C.H.’s jeans. Spermatozoa was found on a slide taken from her vaginal area. The doctor testified such sperm could have still been present from intercourse occurring between C.H. and her husband forty-eight hours earlier. Blood on the tissue in the car was of the same type as C.H.’s blood. The Cape Girardeau special rape specialist discovered a slight scratch on C.H.’s breast after the physical examination which C.H. testified was caused by defendant’s knife. This scratch was photographed. C.H.’s purse, an Afro comb, and a piece of C.H.’s garments were found in the vicinity where she was tied to the tree. Coin rolls were in the purse. Her underpants and a piece of her blouse were found in the car. Microscopic examination of C.H.’s clothing revealed that it had been cut and torn.

Defendant was arrested in Jefferson County on March 9. The arrest occurred after a chase when defendant attempted to flee. Defendant had a bus ticket dated March 8 from Cape Girardeau to Farming-ton and a round trip ticket to Washington, D.C. on his person when arrested. He also had $555.28 in various pockets. He had also paid $168 on the day of his arrest for car repairs. Following his arrest defendant made several inculpatory statements. The circumstances of taking those statements will be discussed more fully later. The statements admitted that defendant rode in C.H.’s car with her, that they went to the bus station and that C.H. opened the safe, that she was scared at the time because she was like people who “don’t know what’s going to happen to them,” that he didn’t have a weapon, that he took the money and then they drove to Ste. Genevieve where he then tied C.H. to a tree and left her. Defendant took a polygraph examination and pursuant to stipulation the results of that examination were admitted into evidence. The polygraph examiner expressed his opinion that defendant lied when he denied (1) raping C.H., (2) knowing who raped C.H., (3) threatening to cut C.H. and (4) putting a knife to C.H.’s throat.

Defendant raises eight points on appeal. Seven of those can be disposed of in rather summary fashion. In view of the evidence outlined heretofore, the contention that the evidence was not sufficient to make a submissible case is patently without merit. While there were some inconsistencies in C.H.’s testimony, and while some of her actions could be regarded as unwise, the evidence overwhelmingly supports the verdict reached. The victim’s testimony was corroborated in virtually every particular by physical or medical evidence and by defendant’s statements. See State v. Bohannon, 526 S.W.2d 861 (Mo.App.1975). It stretches credulity beyond retrieval to conclude, as defendant suggests, that her testimony and the physical evidence were simply her explanation for a voluntary affair with defendant and a joint escapade to steal money.

Equally lacking in merit is defendant’s contention that the trial court erred in instructing on robbery by means of a dangerous and deadly weapon because C.H. saw neither knife nor gun during the robbery. Initially it should be noted that the use of a weapon does not change the nature of the crime charged. The use of a weapon is simply a means of placing the victim in immediate fear of injury, the gravamen of first degree robbery. Sec. 560.120 RSMo 1969. An instruction on a weapon places an additional burden upon the State of which the defendant may not complain. State v. Long, 539 S.W.2d 592 (Mo.App.1976) [4-6], Additionally the evidence is sufficient to establish that defendant had a knife before and after the robbery and that C.H. believed he had it with him during the robbery. Given what had occurred immediately prior to the robbery and the reasonable beliefs of C.H. that defendant would kill or injure her with the knife if she did not open the safe, we do not find the instruction to be unsupported by evidence. This also answers defendant’s related contention that the court should have instructed on an unidentified lesser included offense “because there was no evidence that a weapon was used in the commission of the robbery.” Robbery with a dangerous weapon is the same offense as first degree robbery. On appeal defendant has made no other claim of error in failing to instruct on a lesser included offense. In his motion for new trial defendant indicated that the evidence supported an instruction on second degree robbery. Sec. 560.125, RSMo 1969. Such contention is not advanced on appeal and has been abandoned. If it had been preserved it would not have merit. All of the evidence established that C.H. feared immediate injury throughout the time she was with defendant. She did not open the safe because of fear of injury at some other time; if she did so in fear it was fear of immediate injury. There was no evidence of second degree robbery.

Defendant’s attack upon the sentences as excessive is also without merit. The sentences were within the statutory range and were therefore not excessive. State v. Stephens, 507 S.W.2d 18 (Mo. banc 1974) [8].

Defendant makes two contentions concerning the jury panel. Neither is established by the record. Systematic exclusion of blacks is not established simply because there were no blacks on the jury. State v. Robinson, 484 S.W.2d 186 (Mo.1972) [1-5]. Prejudice of the jury panel because of extensive media coverage is not established because there has been such coverage or because many of the venire panel have read about the case. The matter was raised on voir dire and the record gives no indication that the panel was prejudiced by the publicity or that the jurors selected could not fairly judge the case because of such publicity. State v. Cooper, 541 S.W.2d 40 (Mo.App.1976) [5],

Defendant also premises error upon the admission into evidence of a vial of blood. There was no evidentiary base of the source of the blood, what if any connection it had to the victim, defendant or investigation of the crime, or what its relevance or materiality to the case was. The admission of it into evidence was error. We find no prejudice however. No reference was made to the vial during the ease and as indicated it was not tied to defendant, victim or crime. We do not believe that a vial of blood is so prejudicial per se, that its mere appearance constitutes reversible error. Unlike a weapon or some inherently inflammatory exhibit the presence of an unmentioned and unidentified sample of blood does not, without more, warrant a finding of prejudice requiring reversal.

We turn now to the most serious contention raised by defendant — the admission of his inculpatory statements to two police officers. Some additional facts are necessary. Following his arrest, defendant was conveyed from Crystal City to Hillsboro by State Patrolman Spring. He was given Miranda warnings by Spring and stated he did not wish to make any statement without an attorney present. Spring did no questioning after defendant invoked his right to counsel. Defendant was then placed in the Jefferson County Jail in Hills-boro where he remained for several hours. Two detectives from the Cape Girardeau police department, Lincecum and Brown, took defendant from the jail and placed him into a police car for transportation to Cape Girardeau. Spring testified that he advised Brown and Lincecum that defendant had requested an attorney. Neither Brown nor Lincecum remembered that Spring had so advised them, although neither denied that Spring did so. Lincecum did testify that Spring advised him that defendant had received Miranda warnings and that Spring had not questioned him. We will presume as the State has, that Lincecum and Brown were advised of defendant’s invocation of the right to counsel.

After placing defendant in the car, Lincecum again advised defendant of his Miranda rights. Defendant was wearing travel restraints at the time. After each of the rights Lincecum elicited a positive response of understanding from defendant. After being advised of his right to counsel, Blevins stated that his mother was getting an attorney for him but that he would “gladly” tell the detectives the same thing he was going to tell his attorney. He further indicated that he would talk about the incident but would not discuss the rape charges. During the subsequent questioning he adhered to this position — answering questions about the incident but refusing to discuss the rape charges. Both Lincecum and Brown testified that no coercion, trickery, threats or promises were used to induce the statements; that Blevins was sober, of average intelligence, had completed the 11th grade, could read and write, and was very cooperative and very courteous. Defendant presented no evidence contrary to the testimony of the police officers. Credibility of the officers’ testimony was for the trial court, which impliedly, at least, found it credible.

Defendant’s challenge to the statements under the Miranda case, supra, presents two questions which must be resolved. First, where a defendant, following Miranda warnings, invokes his right to counsel, may he thereafter waive that right and secondly, if he may waive did Blevins do so here.

The first question requires a determination of whether Miranda, as subsequently defined in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) and Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), imposes a per se rule precluding any further inquiries by police officers without counsel after the suspect has expressed his desire for counsel. The language of Miranda would indicate that it imposes a per se rule. But the same can be said for the invocation of the right to remain silent. In Michigan v. Mosley, supra, the court held that the seemingly absolute language of Miranda on the right to remain silent did not in fact create a per se rule and that the admission of such statements into evidence was dependent upon whether the right of the person to cut off questioning was “scrupulously honored.” The Court held admissible statements taken several hours after the initial invocation of the right of silence, by a different police officer in a different location concerning a different crime and following new Miranda warnings. In a footnote the Court specifically stated that the Mosley case did not “involve the procedures to be followed if the person in custody asks to consult with a lawyer . . . ” 423 U.S. l.c. 101, 96 S.Ct. l.c. 325. In a concurring opinion Mr. Justice White indicates that while under Miranda the invocation of the right to remain silent does not create a per se rule, the invocation of the right to counsel does. 423 U.S. l.c. 109-10, 96 S.Ct. 321 including Footnote 2. The rationale for this distinction is indicated in the footnote to be based upon the suspect’s willingness to rely upon his own decision making powers in electing to remain silent, as contrasted to his doubt of his competency to make such decision reflected in his indication of need of counsel. Whether in fact the average suspect chooses the right he intends to invoke upon such a refinement in thinking is problematical. And while any waiver must be regarded with “skepticism”, we entertain some doubts that such skepticism is in one case rebuttable and in the other irrebuttable.

Subsequent to Mosley, the Supreme Court held in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) that statements made and actions taken by the defendant were inadmissible at trial because of a denial of right to counsel where the statements and actions occurred as a result of police interrogation occurring after a promise by the police to defendant’s counsel that no interrogation would take place. Although frequently cited as a Miranda based decision, Brewer v. Williams is in fact the progeny of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), because judicial proceedings had been initiated against Williams before the statements were made. He was, therefore, not simply a suspect entitled to Miranda protections, but a criminal defendant entitled to the more extensive protections of Massiah. Despite this the Supreme Court specifically stated that it was not holding that Williams could not waive his rights to counsel, but only that he had not.

In United States v. Rodriguez-Gastelum, 569 F.2d 482 (9 Cir. 1978) the Ninth Circuit Court of Appeals en banc struggled with the same question presented here. By a 6-3—2 division the court concluded that in view of Mosley, supra, and Brewer, supra, the language of the Miranda decision concerning invocation of the right to counsel did not constitute a per se rule precluding a subsequent waiver. The three concurring judges agreed with the majority that no per se rule was created, but disagreed upon whether waiver had been established. We see little point in further extending this opinion by reiterating the arguments set forth at length in Rodriguez-Gastelum. Suffice it to say that for the reasons set forth in the majority opinion in that case and based upon our own analysis of Miranda, Mosley, and Brewer, and what we conceive to be the Constitutional protections afforded by those opinions, we do not believe a per se rule has been created which would absolutely preclude the admissibility into evidence of defendant’s statements. See also State v. Olds, 569 S.W.2d 745 (Mo. banc 1978) [5, 6]; State v. Dominick, 354 So.2d 1316 (La.Sup.1978) [1, 2],

We turn to the question of waiver. The test is that set forth in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938):

“It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” l.c. 464, 58 S.Ct. l.c. 1023.

There is nothing in the record to indicate that any coercion, trickery, harassment, deceit, threats or promises were utilized to obtain defendant’s statements. Defendant was given his Miranda rights immediately following his arrest and following his invocation of a right to counsel no further questioning occurred for several hours. No questioning occurred by Brown and Lincecum until the Miranda rights were once again read to defendant and he had affirmatively responded that he understood each right. When the right to counsel was reached defendant affirmatively stated that his mother had hired a lawyer but that he would tell the police what he would tell his lawyer. He refused throughout to discuss the rape charge evidencing his understanding of his rights and his willingness to discuss part but not all of the charges against him. Defendant was sober, intelligent, reasonably well-educated, polite and cooperative. In his statement he indicated a sense of guilt and remorse because he had never stolen anything before. This also supports the conclusion that his statements were voluntarily and knowingly made. We find no impropriety in the police again giving him Miranda warnings before embarking upon an automobile journey of several hours. To have failed to do so would have created the possibility that purely volunteered statements of defendant would have been rendered inadmissible or alternatively that defendant could incriminate himself unintentionally through idle conversation because of his lack of awareness that such talk could be used against him. Nor do we believe the desires of the police officers to question defendant, frankly testified to by them, is of consequence in determining whether defendant waived his rights to counsel. Such desires may be considered by the fact finder in assessing the credibility of the officer’s testimony of the circumstances leading to the defendant’s statements and waiver of his rights. But such desires or intentions alone do not vitiate the admissions unless the police conduct which lead to the statements is proscribed. We find no evidence here that the statements were involuntary either in fact or law or that the waiver was other than intelligently, knowingly and voluntarily made. We reject, as did the majority, the position of the concurring judges in Rodri guez-Gastelum, supra, that the waiver must be initiated by the defendant, if by that is meant that the waiver must be volunteered out of the blue. Here the waiver occurred when defendant was advised of his right to counsel, but it was not suggested by the police officers nor dragged from him reluctantly. Defendant’s right to cut off questioning was “scrupulously honored.” We find defendant waived his constitutional rights to counsel prior to his inculpatory statements.

Judgment affirmed.

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

      . The jury actually assessed punishment on the rape charge at 99 years and 1 day. The court sentenced defendant to 99 years.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . “If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” 384 U.S. l.c. 444-5, 86 S.Ct. l.c. 1612.
      “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 384 U.S. l.c. 474, 86 S.Ct. l.c. 1628.

      . “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” (Emphasis supplied) 384 U.S. l.c. 473-4, 86 S.Ct. l.c. 1628.

      . See 423 U.S. l.c. 110 Footnote 2, 96 S.Ct. 321.

      . “Despite Williams’ express and implicit assertions of his right to counsel, Detective Learning proceeded to elicit incriminating statements from Williams. Learning did not preface this effort by telling Williams that he had a right to the presence of a lawyer, and made no effort at all to ascertain whether Williams wished to relinquish that right. The circumstances of record in this case thus provide no reasonable basis for finding that Williams waived his right to assistance of counsel.
      “The court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not.” 430 U.S. l.c. 405-6, 97 S.Ct. l.c. 1243.


source: Caselaw Access Project

author: CLEMENS, Senior Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Felton James RILES, Appellant.
    No. 40476.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 24, 1979.
    Robert C. Babione, Public Defender, Theodore Guberman, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant Felton J. Riles guilty of carrying a concealed weapon; the trial court found he was a prior felon and sentenced him to five years’ imprisonment. Defendant has appealed his sole point relied on claiming error in admitting evidence of defendant’s suspicious conduct before his arrest.

Defendant’s point relied on was carried into his motion for new trial, but since the motion was filed one day late it is a nullity and preserves nothing for review. State v. Richardson, 519 S.W.2d 15[1] (Mo. 1975). Under our discretionary authority, we consider whether defendant’s point raises plain error. Rule 27.20(c), VAMR.

The state’s evidence was that two police officers saw defendant take a pistol from a companion, cover it in a folded coat, enter and return from a store and then place the coat in the trunk of a car. The officers arrested defendant and found the loaded pistol in the car trunk. Clearly the evidence showed the crime charged.

Defendant’s point relied on challenges the state’s further evidence that the officers saw defendant and his companion “case” other stores before the above incidents. Defense counsel opened the subject on cross examination by asking one of the police officers if before the incident in issue he had seen defendant doing anything suspicious. The state pursued this by asking the officer about defendant’s prior suspicious conduct. Defendant objected on the ground this testimony violated the court’s “protective order.” No such order appears either in the transcript or defendant’s brief. Without knowing what that “protective order” was we cannot find the trial court violated it. Viewed as plain error we hold defendant “is precluded from asserting error in connection with evidence presented by the state in clarification or explanation of the matter brought into the case by his own questions.” State v. Matha, 446 S.W.2d 829[3] (Mo.1969).

Judgment affirmed.

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


text:
    STATE of Missouri, Respondent, v. Bernard MEEKS, Appellant.
    No. 40095.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 1, 1979.
    Henry J. Rieke, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant Bernard Meeks guilty of armed robbery and the trial court sentenced him to fifteen years’ imprisonment. Defendant contends on appeal that there was plain error in admitting into evidence the fact that he used a credit card stolen from the robbery victim. He contends this was evidence of an unrelated, subsequent crime. Since the evidence came in without objection and the point was not preserved in defendant’s after-trial motion, defendant limits his challenge to plain error under Rule 27.20(c), VAMR.

The state’s evidence was that defendant entered the victim’s home by subterfuge, held him at gunpoint and ransacked the home, taking the victim’s wallet containing his credit card. Defendant also took four suits, one of which he was wearing when arrested at a store the next day while in the process of making two purchases using victim’s credit card. When identified at a lineup defendant told the victim to “give me a break” and promised to “get your things back.”

Supported by his brother, defendant testified to an alibi. To further refute the victim’s robbery testimony defendant testified to their homosexual relationship which he had terminated over the victim’s threats and protestations. Defendant further testified the victim had given him the suit and permitted him to use the credit card. The victim denied all this in rebuttal.

As said, defendant now contends only that there was plain error in admitting evidence of his use of the credit card. Defendant’s possession of the stolen credit card was clearly admissible as corroborating evidence of the robbery. State v. Hill, 519 S.W.2d 326[1-3] (Mo.App.1975). Defendant does not challenge this, but contends evidence of his use of the credit card was irrelevant and prejudicial evidence of a subsequent crime. He relies on State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (1955).

In Reese 'defendant was charged with committing murder with a pistol. Over his “vehement objection” the state introduced evidence that defendant later used the same pistol in a robbery. The court reversed, holding “ ‘It is not proper to admit the details of separate and distinct crimes

In contrast, State v. Shabazz, 467 S.W.2d 909 (Mo.1971) is squarely in point. There, as here, the charge was robbery and the state introduced evidence that defendant had used the victim’s credit card in attempting to make a purchase. Defendant acknowledged the admissibility of evidence that he possessed the stolen credit card but contended evidence of his attempted use of the card was inadmissible as being evidence of another crime. Upholding the admissibility of the challenged evidence the court held: “The circumstances surrounding such possession, including the attempted use of the credit card, revealed a knowing possession and the state was entitled to introduce such evidence. It was logically pertinent and not required to be excluded because it incidentally showed the commission of another offense.” So it is here and we find no plain error.

Judgment affirmed.

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

      . This testimony may explain why, as a matter of strategy, defendant at trial did not object, as he does on appeal, to the state’s evidence that he had used the victim’s credit card.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Floyd V. JACKSON, Appellant.
    No. 40122.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 1, 1979.

      Robert C. Babione, Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kathryn Marie Krause, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant Floyd V. Jackson appeals from a conviction by a jury for the offense of stealing property of the value of at least $50. Under the Second Offender Act defendant was sentenced by the court to four years imprisonment.

Defendant contends that the court erred in two respects: 1) That there was not substantial evidence of value to submit the issue of stealing property of the value of at least $50 to the jury; or, 2) the court should have given an instruction on the lesser and included offense of stealing property valued at less than $50. We find these issues against the defendant and affirm.

The evidence showed that defendant removed a leather jacket from a rack at the downtown St. Louis Famous-Barr. He folded it, placed it under his topcoat and started to leave. When approached by a security officer he threw the coat down. This particular jacket had been ear-marked as “damaged” and was slated for return to the manufacturer for replacement or future credit. The only evidence concerning the value of the coat was the testimony of Mr. Jack DeLargy, the buyer of men’s outerwear at Famous-Barr.

Mr. DeLargy testified that the retail price of this jacket was $160. He further testified that the cost of this particular coat to Famous-Barr was $88.89, less a ten percent discount for payment made within 30 days, bringing the actual cost down to $80. Mr. DeLargy testified to the practice of returning damaged merchandise to the manufacturer for replacement or credit against future purchases. It appears that the only damage to the coat was either a slight scratch or a wrinkle.

Evidence of both retail price and wholesale cost are relevant in determining fair market value. State v. Carter, 544 S.W.2d 334[7] (Mo.App.1976). In this case where the coat was damaged, it was proper to allow evidence of the amount of loss to the owner in establishing its value. State v. Matzker, 500 S.W.2d 54[9—11] (Mo.App. 1973). In this case, the owner lost $80, the replacement cost, either in a replaced coat or credit on future purchases. The court properly instructed the jury as to the charge of stealing property of at least $50.

Since all of the evidence in this case relating to value is that it exceeded $50 there was no requirement that the court instruct on stealing property of a value of less than $50. State v. Thornton, 557 S.W.2d 1[3] (Mo.App.1977).

Affirmed.

GUNN and CRIST, JJ., concur.


author: FLANIGAN, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Robert C. HOWELL, Appellant.
    No. 10685.
    Missouri Court of Appeals, Southern District, Division Three.
    May 2, 1979.
    Motion for Rehearing or to Transfer Denied May 21, 1979.
    Application to Transfer Denied June 19, 1979.
    Harry H. Bock, New Madrid, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   FLANIGAN, Chief Judge.

The amended information charged the defendant with murdering David Blankenship and assaulting (with intent to kill with malice aforethought) Randy Krebs. The offenses, which arose out of the same incident, were committed on November 18, 1972. Defendant was arrested on November 19, 1972, and has been in custody since that date.

Originally the offenses were charged in separate informations and were tried separately. Those trials resulted in convictions in 1973. The appeals were consolidated, the convictions were reversed and the cases remanded. State v. Howell, 524 S.W.2d 11 (Mo. banc 1975). Following remand an amended information was filed charging the crimes in two counts. Defendant was found guilty on both counts.' On appeal to this court, the judgment was reversed and the cause again remanded. State v. Howell, 543 S.W.2d 836 (Mo.App. 1976).

The fourth jury trial, from which the instant appeal is prosecuted, took place on February 4, 1977, and resulted in conviction on both counts. The jury assessed a punishment of life imprisonment for the murder and 30 years’ imprisonment for the assault, and the court ordered the sentences to run concurrently.

On this appeal defendant’s sole “point relied on” is that the trial court erred in denying the motion to dismiss which he filed on January 28, 1977. The motion was based on his claim that he had been denied his right to a speedy trial as guaranteed by the Sixth Amendment to the Constitution of the United States and Art. I, § 18(a) of the Constitution of Missouri. A chronology of significant events is set forth below.

As an examination of footnote 1 will disclose, a claim of infringement of defendant’s constitutional right to a speedy trial could not reasonably be leveled against the trial court or the prosecuting attorney. Although four jury trials have been held, the trial court phase of each of them was conducted with admirable dispatch. If defendant’s point is a sound one, its validity must stem from those segments of time, between arrest and the fourth trial, which are attributable to the processing of the appeals.

The Supreme Court of the United States, in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) first “attempted to set out the criteria by which the speedy trial right is to be judged.” 92 S.Ct. at 2185. The court rejected “the inflexible approaches—the fixed-time period because it goes further than the Constitution requires; the demand-waiver rule because it is insensitive to a right which we have deemed fundamental.” The court accepted “a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” Barker, supra, 92 S.Ct. at 2191-2192.

“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker, supra, 92 S.Ct. at 2192.

“We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.” Barker, supra, 92 S.Ct. at 2193.

In State v. Lane, 551 S.W.2d 900 (Mo. App. 1977) the defendant asserted that he had been denied his right to a speedy trial. The defendant was indicted on December 6, 1968, was convicted at some unstated time, was granted a new trial by the trial court on April 15, 1970, and was again convicted on July 9, 1970. The supreme court affirmed that conviction on December 13, 1971. State v. Lane, 475 S.W.2d 91 (Mo. 1971). On September 20, 1973, the defendant waged a successful attack upon the conviction and the circuit court vacated it. The third trial took place on May 20, 1974.

The court of appeals, in its 1977 opinion, rejected the defendant’s claim that he was entitled to be discharged on the basis of denial of his right to a speedy trial. The court quoted State v. Thompson, 414 S.W.2d 261 (Mo. 1967) to the effect that a delay caused by an appeal is “attributable to defendant.”

Since the decision in Barker, other courts, out-state and federal, have dealt with “speedy trial” complaints based primarily or solely upon delay attributable to prior appeals. Those courts have demonstrated a marked reluctance, if not unwillingness, to treat such claims with favor.

The Supreme Court of Michigan has said, “Defendant certainly had a right to appeal but time reasonably consumed on appeal cannot be considered as in derogation of a speedy trial,” (Emphasis added); People v. Chism, 390 Mich. 104, 113, 211 N.W.2d 193, 197[3] (1973); to similar effect see People v. Hammond, 84 Mich.App. 60, 269 N.W.2d 488 (1978).

Several courts have stated that the right to a speedy trial, under the Sixth Amendment, does not include a right to speed in the appellate process itself. Wilson v. State, 281 Md. 640, 382 A.2d 1053, 1068[22] (1978); Colunga v. State, 527 S.W.2d 285, 288[7] (Tex.Cr.App. 1975); State v. Lane, 302 So.2d 880, 887[16] (La. 1974); Shack v. State, 259 Ind. 450, 288 N.E.2d 155, 158 (1972). As Colunga points out, however, a delay on appeal may, in some circumstances, amount to a denial of due process. See also U. S. v. Sarvis, 173 U.S.App.D.C. 228, 523 F.2d 1177 (1975), discussed infra.

In United States v. Robles, 563 F.2d 1308, 9 Cir. (1977) the defendant argued, unsuccessfully, that “the three-year delay from the date of the offense to his retrial (after his successful appeal)” denied him his right to a speedy trial under the Sixth Amendment. The court said, at 1309:

“This argument is without merit. Robles was afforded a speedy trial in August 1974, five months after the indictment was filed, which resulted in his conviction. That conviction was vacated by this court for reasons not related to this appeal. What happened was that defendant was afforded a speedy trial; his conviction was vacated on appeal; and he was retried and again convicted. These facts do not amount to a denial of his Sixth Amendment rights.”

The court, in Robles, based its ruling primarily upon footnote 4 appearing in Harrison v. United States, 392 U.S. 219, 221, 88 S.Ct. 2008, 2009-2010, 20 L.Ed.2d 1047 (1968). In that footnote the supreme court labeled as “wholly without merit” the defendant’s claim that he was denied the right to a speedy trial. The supreme court said:

“The petitioner was indicted more than eight years ago and has been tried and convicted three times for the offense here involved. His first conviction was vacated on appeal when it became clear that the man who had represented him in certain post-verdict proceedings was an ex-convict posing as an attorney; . . .his second conviction was reversed because the Government employed inadmissible confessions against him on retrial . . .; and his third conviction is presently before us. Virtually all of the delays of which the petitioner complains occurred in the course of appellate proceedings and resulted either from the actions of the petitioner or from the need to assure careful review of an unusually complex case.” (Emphasis added.)

In Harrison, supra, the supreme court specifically approved the “speedy trial” ruling of the court of appeals in Harrison v. United States, 128 U.S.App.D.C. 245, 387 F.2d 203 (1967), involving the same defendant. The court of appeals, in its opinion, 128 U.S.App.D.C. at pp. 249-250, 387 F.2d at pp. 207-208, said:

“The present argument focuses upon the interval of approximately two years during which the second appeal was pending. Here undoubtedly is ‘a spot where the ideal crashes head-on with the practical’ and [defendant’s] position reflects but scant recognition of the exigencies of appellate review in abnormal cases. .
“The time necessarily consumed in unraveling complex issues whose ultimate resolution vindicates the rights of the accused can hardly be said to constitute purposeful or oppressive delay. We are accustomed to careful study of the questions presented to us, particularly where human life or liberty is at stake, and surely this case has tolerated no deviation. ‘[T]he essential ingredient is orderly expedition and not mere speed’; indeed, ‘[a] requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.’ ”

In United States v. Sarvis, 173 U.S.App. D.C. 228, 523 F.2d 1177 (1975), over three years and ten months elapsed between the date of defendant’s arrest and the beginning of his second trial. Defendant was incarcerated during the entire period. Twenty-six months of the delay was attributable to the first appeal. Half of the appeal time was “required for our consideration and writing of the opinion.” The court, 173 U.S.App.D.C. at 234-235, 523 F.2d at 1183-1184, said:

“For the most part, then, the delay was caused by the workings of the system— ‘neutral reasons’ stemming from court backlog and the press of other business affecting the prosecutor and defense counsel as well as the trial and appellate courts. Although delays of this length are intolerable, no one in particular is to blame for the time lag here. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192, provides guidance in determining how to weigh delays of this sort: ‘A more neutral reason [for delay] such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.’
“This court has had occasion, moreover, to elaborate upon the weighting of appellate delay like that which formed the major component of the time lag in this case. In United States v. Bishton, 150 U.S.App.D.C. 51, 54, 463 F.2d 887, 890 (1972), we noted that while a case is pending before an appellate court it is generally ‘beyond the power of the prosecutor to expedite.’ We continued: Courts, of course, are not excluded from the obligation to give defendants a speedy trial. But the function of appellate courts necessarily casts the delay attendant upon their deliberations in a somewhat different light * * *.
“This court, like the District Court, is not free from the problem of calendar backlog. It is for this reason that appellate delay must ultimately be considered the responsibility of the Government, even though it is a neutral reason not to be accorded the heavy weight assigned to intentional delay.”

Although the court found that defendant’s right to a speedy trial had not been abridged, it noted “that delays on appeal are not insulated from the due process clause of the Fifth Amendment. . If trial courts must expedite their procedures under the Sixth Amendment no reason appears why appellate courts should not be subjected to similar constitutional constraints. The time has come to move seriously toward genuine assurance that appeals will be considered expeditiously.”

In some cases a claim of denial of the right to speedy trial has been rejected where the delay was occasioned by an appeal by the government rather than by the defendant. Smith v. Colman, 528 F.2d 1362, 1363[4], 5 Cir. (1976); United States v. Jackson, 508 F.2d 1001, 7 Cir. (1975).

With regard to the four factors mentioned in Barker, supra, the instant record shows an interval of 50½ months between the arrest and the instant trial. The primary reason for the delay was the processing of appeals. Defendant asserted his right one week prior to the instant trial.

The fourth factor, prejudice to the defendant, in the language of Barker, supra, 92 S.Ct. at 2193, “should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last . . . .”

There is no claim or showing here that the delay impaired the defense. Defendant has been incarcerated continuously but there is no claim or showing that it was “oppressive.” Interests (i) and (ii) seem to be akin because incarceration doubtless fosters some degree of anxiety and concern. But, as previously pointed out, Barker holds that none of the four factors is regarded as “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.”

This court concludes that defendant’s right to a speedy trial has not been infringed.

The judgment is affirmed.

HOGAN and BILLINGS, JJ., concur.

      . November 18, 1972 — date of offenses.
      November 19, 1972 — defendant was taken into custody.
      January 30, 1973 — jury convicted defendant of murdering Blankenship.
      March 16, 1973 — notice of appeal to supreme court filed in murder case.
      March 19, 1973 — jury convicted defendant of assaulting Krebs.
      May 7, 1973 — notice of appeal to court of appeals filed in assault case.
      September 9, 1974 — assault case transferred to supreme court.
      June 9, 1975 — opinion filed in State v. Howell, 524 S.W.2d 11 (Mo. banc 1975).
      June 25, 1975 — supreme court issued mandate remanding both cases to circuit court.
      July 24, 1975 — amended information, in two counts, filed.
      September 17, 1975 — jury convicted defendant on both counts.
      November 4, 1975 — notice of appeal to court of appeals filed.
      November 17, 1976 — opinion filed in State v. Howell, 543 S.W.2d 836 (Mo.App. 1976).
      December 3, 1976 — court of appeals issued mandate remanding case to circuit court.
      January 28, 1977 — defendant filed pretrial motions; defendant also filed motion to dismiss claiming denial of right to speedy trial.
      February 4, 1977 — jury convicted defendant on both counts.
      May 14, 1977 — notice of appeal to court of appeals filed.


text:
    STATE of Missouri, Respondent, v. Anthony McREYNOLDS, Appellant.
    No. KCD 29556.
    Missouri Court of Appeals, Western District.
    May 4, 1979.
   MEMORANDUM AND ORDER

The appellant-defendant herein prosecuted his appeal to this Court from a conviction of first degree robbery and a sentence of five (5) years in the custody of the Department of Corrections following a jury trial in Jackson County, Missouri which commenced April 25, 1977. This judgment was affirmed by this Court on October 30, 1978 and this Court’s mandate issued January 9, 1979. State v. McReynolds, 574 S.W.2d 450. In so doing, this Court followed the then binding authority of State v. Duren, 556 S.W.2d 11 (Mo. banc 1977) which held that the Missouri jury selection statutes as they applied to the exclusion of women from jury service upon the sole basis of gender was constitutional.

The Missouri decision in Duren was thereafter set aside and reversed by the Supreme Court of the United States in the case of Duren v. State of Missouri, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). On January 15, 1979, the Supreme Court of the United States held that its holding as to the unconstitutionality of the pertinent Missouri statutes as to the automatic exemption of women to serve upon juries was to be applied retroactively to the date of its decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Lee v. Missouri, - U.S. -, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979).

In accordance with the authority of Du-ren v. State, supra, the Missouri Supreme Court and this Court have set aside and ordered new trials in numerous cases where the jury was clouded by the unconstitutional methods employed in jury selection as it pertained to the service of women. State v. Hardy, 578 S.W.2d 361 (1979); State v. Brown, 577 S.W.2d 163 (1979); State v. Arrington, 559 S.W.2d 749 (1979); State v. Madison, No. KCD 29,639 (February 26, 1979); State v. Heavey, 582 S.W.2d 284 (1979); State v. Tate, 582 S.W.2d 329 (1979); State v. Coleman, 582 S.W.2d 335 (1979); State v. Buford, 582 S.W.2d 298 (1979); State v. Hawkins, 582 S.W.2d 333 (1979); State v. Wickizer, 584 S.W.2d 604 (1979); and State v. Peters, 582 S.W.2d 323 (1979).

The defendant-appellant herein filed his motion to quash the jury panel at the earliest possible time and by agreement of counsel and with the court’s approval of the evidence in support of such motion was deferred until the hearing on his motion for a new trial. At that time, the stipulation of facts as to the methods employed for the selection of juries and the statistics as to the number of women requested to serve who claimed automatic exemption in 1976 was entered in the record. This stipulation and its constitutional impact under Duren has heretofore been thoroughly discussed in the previous opinions of this Court above cited, and further exposition here would be of no value. After a review of this record the conclusion is reached that it brings this case squarely within the constitutional prohibitions of the Duren line of cases, supra.

IT IS THEREFORE ORDERED that the decision of this Court and the mandate issued pursuant thereto on January 9, 1979 be and the same are hereby withdrawn and for naught held and this cause is remanded to the Circuit Court of Jackson County, Missouri.

IT IS FURTHER ORDERED, that the defendant, Anthony McReynolds, be transported from his present place of confinement by the Department of Corrections of the State of Missouri to the Jackson County jail at Kansas City, Missouri and be placed in the custody of the Department of Corrections of Jackson County, Missouri pending further proceedings in the court below.


author: MAUS, Judge.

text:
    Peggy Butts MATTHEWS, Plaintiff-Contestant-Respondent, v. Guy E. TURNER, Defendant-Proponent-Appellant.
    No. 10646.
    Missouri Court of Appeals, Southern District, Division Two.
    May 9, 1979.

      Nicholas R. Fiorella, Springfield, for plaintiff-contestant-respondent.
    Arthur S. Haseltine, Lester B. Cox, Springfield, for defendant-proponent-appellant.
   MAUS, Judge.

On February 15, 1972, testatrix Ella C. Butts (Ella) executed her will devising her estate to her brother, proponent Guy E. Turner (Guy). Referring to her only child, her adopted daughter, contestant Peggy Marie Butts Matthews (Peggy), she said, “I expressly acknowledge that I have a daughter, Peggy Marie Matthews, that I have already given certain property to, and that she is not to take under this, my Last Will and Testament.” By this action, Peggy contested the will alleging testamentary incapacity and undue influence of Guy. However, the case was submitted solely on the issue of undue influence. A verdict was returned declaring the instrument not to be the Last Will and Testament of Ella C. Butts. Guy appeals asserting as error (1) the absence of a submissible case (emphasizing the absence of a presumption); (2) failure to grant a mistrial in connection with contestant’s opening statement and (3) admission in evidence of a 1954 joint will.

The record of the three day trial is lengthy. Only a summary of the evidence is possible. In considering the evidence, this court cannot review the record as a jury. Rather, “[W]e must take the contestants’ evidence as true, disregard proponents’ evidence unless it aids contestants, and give contestants the benefit of every favorable inference which may be drawn from the whole evidence.” Salisbury v. Gardner, 515 S.W.2d 881, 883 (Mo.App. 1974). Also, Switzer v. Switzer, 373 S.W.2d 930 (Mo.1964); Wilhoit v. Fite, 341 S.W.2d 806 (Mo.1960).

John W. Butts (John) and Ella C. Butts (Ella) were married in 1921. At a time not revealed by the record, but apparently when she was ten weeks old, John and Ella adopted Peggy who was born in 1926. Peggy did not learn of her adoption until she was 12 years old. She lived with her parents until she married Loren Matthews in 1958. At the time of trial in 1975, Peggy’s family consisted of her husband and two daughters, 11 and 13 years of age.

By 1960 both John and Ella were in failing health. Before his death in 1969, John had suffered a stroke, was somewhat feeble and had a poor memory for recent events. In 1947 Ella was initially operated on for cancer of the breast. She remained under medical care and was hospitalized numerous times. Her affliction persisted and ultimately led to her death on November 6, 1973.

John and Ella owned adjoining houses in Springfield. They lived in one and rented the other. In 1960, at her parents’ request, Peggy and Loren moved into the rental house so they could provide care for the parents. Before moving, the Matthews, at their own expense, renovated the rental house. From that time until the rift (about which more will be said later) the Matthews provided personal services for the Butts. The need for personal services increased after Ella had a heart attack in 1968. Loren made repairs and improvements to both houses, did the yard work and in general served as the “handy man”. Peggy, with some help from her two daughters, provided personal care and housekeeping assistance. She cooked the meals and took her mother such places as to the doctor and grocery shopping. After Ella’s heart attack, at her request, Peggy handled her mother’s business affairs. In summary, as the proponent said, “she took care of Ella.”

Concerning finances in her later years, Ella owned the two houses. She had a modest savings account. Her monthly income consisted of approximately $89 from Social Security, rent of $60 from the Matthews and payments of $50 from the sale of other property. The latter payment terminated before her death, probably in 1972. Loren was employed by the Frisco and during the period in question earned $400 to $600 per month. Peggy was not employed.

There was evidence the Matthews’ rent was low as the similar Butts’ house, when not occupied by Ella, rented for $115-$125 per month. The Matthews bought several items for the Butts including carpeting, washer, dryer, television, silverware, stainless set and dishes.

In May, 1970, Loren requested a loan from Ella for the purchase of a television. Ella paid $483.35 for the television. She told Loren to forget it and the loan was not paid. Other than the television, Peggy received only the usual Christmas and birthday presents from her parents.

Until the rift, the relationship between the Butts and Matthews was good. There was reciprocal love and affection between Ella and Peggy. Ella loved and was proud of her grandchildren.

There was no evidence of testamentary incapacity. Ella was described as basically a difficult, domineering person. She expected to have things done when she wanted them done. She grew resentful of the time Peggy devoted to her family. As her illness progressed, Ella was said to have suffered a personality change, becoming a very anxious, dependent person. Both Ella and Peggy were said to be quick tempered. There was evidence that over the years, there were frequent quarrels between the two. However, until the rift, their differences were soon forgotten. As proponent testified, basically the arguments'between Peggy and Ella were no different than the arguments he had with his children.

On March 10, 1954, John and Ella executed a joint will by which they devised their entire estate to “our beloved and only child, Peggy Marie Butts.” After the Matthews moved next door, when she was seriously ill, Ella gave Loren a fully signed copy of this joint will. Neither Peggy nor Loren ever saw the original. It apparently was never found. Over the years, John declared that he built the rental house for Peggy; both John and Ella repeatedly declared their estate would go to Peggy; the rental house would be Peggy’s. They expressed satisfaction that there would be a house for each of the grandchildren.

Ella had two brothers who lived in Springfield, the proponent and Charles Turner. Ella was 13 years older than Guy. He declared their relationship to be very close, that she had been like a mother to him. Even prior to the rift, there were frequent visits and contacts between the brothers and the sister. The brothers’ relationship with Peggy was said to be cordial.

In July, 1970, Ella suffered what was then thought to be a stroke. She became afraid to be alone. The doctor advised moving Ella to a nursing home. Peggy could not tell her mother she had to move. To provide constant communication, an intercom system was installed between the Butts’ and Matthews’ houses. This was apparently satisfactory only until the 3rd day when Ella attempted to reach Peggy who had gone to the grocery store.

During the period the system was in operation, Peggy overheard a conversation between Guy and Ella in which Guy said, “I think you ought to put them out of your house, they’ve lived off of you long enough, why don’t you just sfell both pieces of property, then you can live some place and really take care of yourself without having to go to a tacky resthome.” Guy continued to talk to Ella about getting Peggy out of the rental house, although there would be many times when he saw Ella that he didn’t mention Peggy.

Ella did move to first one and then a second nursing home. Guy objected to the second nursing home because of the presence of the proprietress’ retarded son. Ella proposed to move to an apartment and Peggy opposed this move. Ella told her to find an apartment or Guy would. An apartment was found and Ella moved to it.

When Ella entered the nursing home, at her request many of her household items were sold. The remaining household items and her personal things were stored in the Matthews’ home. Ella’s house was rented. In early 1971, when her house became vacant, Ella moved back home. The Matthews supplied some needed household items, including a divan.

In the Fall of 1971, the rift between Ella and Peggy occurred. There was a factual dispute concerning what precipitated and when the rift took place. Guy presented evidence that it occurred on Thanksgiving, 1971, when the Matthews took back their divan and other items while Ella was on a trip to Joplin.

However, in view of the jury verdict we must accept the version of the rift presented by the contestant. Her evidence was that on a Thursday in November, Ella called her and asked to be taken shopping to buy a pantsuit. Peggy said she could not take her as she was involved in school activities. A second call was made on Friday and Peggy said she still could not because of school activities but would do so on Saturday. On Saturday, when she went to get her mother Peggy found she already had the pantsuit. Ella said that Racine (Guy’s wife) had taken her, “She’s got more time for me than you have; she’s not all tied up with P.T.A.” Ella added that she thought she would relieve Peggy from looking after her. Peggy said, “Mother, don’t be silly.” Peggy did take her mother grocery shopping that day. Guy was with Ella that weekend.

The following Monday Ella called and asked Peggy to return her “papers”. Peggy urged her to think about it until the next day. That night Ella called and demanded the papers or she would get a court order. Loren delivered the papers. Ella told Peggy that she didn’t want to see her anymore.

It was during this period that Peggy had physical problems. Her youngest daughter was also ill. Peggy told her mother that her problem was diagnosed as nerves and she was told she had “a monkey on her back” which she would have to get rid of. Ella became angry and Peggy said that she was acting as if she could be the monkey. Peggy added that she would handle her problems as best she could.

Ella kept calling the Matthews, at times almost daily, demanding items of her personal belongings. Finally, apparently in exasperation, Loren returned all items to Ella. At that time, he took back the loaned furniture, including the divan. At first Peggy could not fix the date of the furniture removal, but later testified that it was in March of 1972. Both Loren and Peggy were positive Ella was home at the time.

After the rift, in November, 1971, Ella asked Guy to take care of her affairs, pay her bills and “do what was necessary with her finances.” He did. At least for a period of time Ella continued to sign checks which were written for her by others. Racine from time to time stubbed and balanced the checkbook.

After the rift, Guy and Racine primarily looked after the personal needs of Ella. Ella’s health continued to deteriorate. She was hospitalized in May and November of 1972, each time returning to her home. She was again hospitalized in December, 1972, and released to a nursing home, where she remained, except for another period of hospitalization, until her death.

On December 2, 1971, Ella executed a warranty deed placing title to her home in a survivorship estate with Guy. Guy testified he had no knowledge of the deed until after it was executed.

The deed was prepared by an attorney who had acted in that capacity for 12 years for Charles Turner. Neither the attorney nor Charles testified. The attorney’s secretary said an appointment was made by Charles Turner, who brought Ella to the office. Charles Turner remained in the outer office while Ella consulted with the attorney. Then, the deed was prepared and executed. The secretary did not remember being paid by Charles or Ella and could find no record of payment. The deed was recorded the day it was executed.

The scrivener of the will was a man who was in the high school graduating class of Guy. They had been acquainted for 40 years. The scrivener principally engaged in the insurance business, although he had been an attorney for 20 years and conducted a limited practice. He wrote insurance for Guy and wrote wills for the Turners.

In January, 1972, Guy was worried about the way one of Ella’s insurance policies was written. Ella asked him who she should contact about insurance. Guy suggested the scrivener. At Ella’s request he asked the scrivener to contact Ella.

The scrivener said he had never written prior insurance for Ella and was not acquainted with her. At Guy’s request, he did call on Ella concerning insurance. They discussed insurance and he took applications on the two houses. Ella asked if he could draw a will. When he replied that he could, Ella said that she wanted to leave the house next door to her brother as he had been good to her. She said she wanted to exclude her daughter and indicated she had done other things for her daughter. She was not vindictive toward her daughter. On February 15, 1972, the scrivener returned with two business associates as witnesses and the will was executed. The scrivener filled out and Ella signed the check given in payment for the preparation of the will. The will was left with Ella.

Guy testified the day after the will was executed Ella called and asked that he stop by. He and his wife did and Ella gave him the will. Guy first testified he did not know the scrivener was a lawyer. Later, he said maybe he did know. Racine testified that after she returned from Europe in July, 1971, Ella asked who had written their wills. Racine replied, “Mr. Langston did, the same man who made your insurance.”

Much evidence was offered concerning the state of Ella’s mind and attention paid to her after the rift. At least some affection between Peggy and her mother persisted. At times Peggy continued to cook for her mother. In spite of Ella’s statement that she did not want to see her, Peggy visited her mother in the nursing home and hospital. By the time of Ella’s death, their relationship had improved although it had not been restored to its previous condition. Ella did spend Christmas 1972 in the Matthews’ home.

After this Christmas Ella became ill and through her granddaughter sent for Peggy. Peggy found her mother unable to get up. Peggy asked to call the doctor, but was told she couldn’t as Guy was taking care of it. Ella said she just wanted to see Peggy a minute and then urged her to leave as she didn’t want Peggy there when Guy arrived.

Within a day or two Peggy saw her mother in the hospital. When Peggy entered the room, Ella cried and said she had something to tell Peggy. Ella said, “I have done something terrible to you; I gave my house to Bud.” When Peggy asked how she could do that, Ella said, “I was sick; I was mad; I was just crazy mad; I didn’t know.” When Peggy suggested that she undo it, Ella said she couldn’t as she deeded it to him. When Peggy asked what she had done with the house she was living in, Ella replied, “I haven’t done anything with that house.”

Mary Aldrich, long time friend of John and Ella visited Ella. Ella related to her the pantsuit incident and forbade Mary Aldrich from seeing Peggy. On a later visit, Ella told her that she had given her home to Guy. When Mary Aldrich said if John knew this he would raise in his grave, Ella said she must have been out of her mind and became somewhat hysterical. John and Ella had discussed their prior joint will with Mary Aldrich but Ella did not mention to her the will in favor of Guy.

Concerning Guy’s attitude after the rift toward Peggy, suffice it to say that he did not speak to her again; nor did Charles Turner. Guy did not inform Peggy when Ella was taken to the hospital. He told the funeral director that he and his wife and children and his brother and his wife would sit in the front row at the service. As he said, “I think we have the privilege to sit there.”

The proponent asserts the trial court erred in submitting the case to the jury because the contestant did not make a sub-missible case. He emphasizes her failure to establish a presumption of undue influence.

Of course, a submissible case may be made by direct evidence of the exertion of undue influence. However, undue influence may be, and most often is, established by circumstantial evidence. Davis v. Pitti, 472 S.W.2d 382 (Mo.1971); Salisbury v. Gardner, 515 S.W.2d 881 (Mo.App.1974). “The party who contests the will is entitled to the benefit of all inferences of fact which may be deduced, fairly and reasonably, from the direct evidence. Direct evidence is necessary only to establish the facts from which undue influence may reasonably be inferred.” 3 Bowe-Parker: Page on Wills, Evidence § 29.77, p. 575.

It is not the function of this court to determine the existence of undue influence. Our review is limited to a determination of whether or not the evidence, viewed favorably to the contestant, establishes facts from which the jury could have reasonably inferred undue influence. Simmons v. Inman, 471 S.W.2d 203 (Mo.1971).

In determining the sufficiency of the facts to permit such an inference the contestant may be aided by a presumption. Such a presumption exists if: (1) a confidential or fiduciary relationship existed between the testatrix and beneficiary; (2) the beneficiary has been given a substantial benefit by the will; and (3) the beneficiary in some way caused or assisted in causing the execution of the will. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772 (banc 1932); Simmons v. Inman, supra, at 206. However, the existence of a presumption is not essential to a submissible case if the circumstantial evidence is otherwise sufficient to permit a reasonable inference of undue influence. McCormack v. Berking, 365 Mo. 913, 290 S.W.2d 145 (1956).

In this case it is not necessary that we determine whether or not a presumption was established and we do not do so, although by reason of handling her financial affairs Guy undoubtedly occupied a fiduciary position in regard to Ella. Keller v. Collison, 395 S.W.2d 729 (Mo.App.1965).

It is impossible to set forth a rigid formula of what facts must be established to make a submissible case of undue influence by circumstantial evidence. Factual situations are subject to such a myriad of variations that any one case is of limited precedential value. However, over the years several factors have emerged that are, by the cases and authorities, regarded as highly significant in determining when undue influence may be reasonably inferred. They include factors which tend to establish that undue influence could have been exercised. These are: a testatrix subject to undue influence; a beneficiary with the power to exert undue influence; and a beneficiary with the opportunity to exert undue influence. Simmons v. Inman, supra, at 206-207.

They also include factors which tend to establish that undue influence was in fact exerted. Among such factors are the following. An unnatural testamentary disposition. Simmons v. Inman, supra, at 206; Switzer v. Switzer, 373 S.W.2d 930 (Mo. 1964); Welch v. Welch, 354 Mo. 654, 190 S.W.2d 936 (1945). An onset of solicitude of the testatrix by the beneficiary. Balak v. Susanka, 182 Mo.App. 458, 168 S.W. 650 (1914). A change in a predetermined testamentary intent. Simmons v. Inman, supra, at 207; Wilhoit v. Fite, supra, 341 S.W.2d 806. Unusual circumstances surrounding the execution of the will, including activities of the beneficiary even though less than required to raise a presumption. Schnurbusch v. Bohnert, 395 S.W.2d 460 (Mo. banc 1965). The actions of the beneficiary in discouraging visits by others or keeping others uninformed about the testatrix. Gott v. Dennis, 296 Mo. 66, 246 S.W. 218 (1922). Hostile feelings of the beneficiary toward an expected recipient, 3 Bowe-Parker: Page on Wills, Evidence § 29.83, p. 599, which may be demonstrated by acts before and after the execution of the will. 94 C.J.S. Wills § 250, p. 1121. Remarks of the beneficiary to the testatrix derogatory of the contestant. Switzer v. Switzer, supra, at 938. The source of the testatrix’s property being such as to make disposition to the beneficiary unlikely. Bridwell v. Swank, 84 Mo. 455 (1884). Recitals of the will itself indicative of undue influence. Norris v. Bristow, 358 Mo. 1177, 219 S.W.2d 367 (1949).

In addition to these factors, when there is independent evidence of undue influence, the declarations of the testatrix may be considered in regard to her state of mind, including her susceptibility to undue influence and her reaction to the influence of others. Simmons v. Inman, supra, at 207; McCormack v. Berking, supra, at 150; Norris v. Bristow, supra, at 369; Gott v. Dennis, supra, at 223; Gordon v. Burris, 141 Mo. 602, 43 S.W. 642 (1897).

In this case, to one degree or another, there was evidence of each of these factors recognized as an indicia of undue influence. Testatrix had been a domineering person, but her physical dependence and desire for attention caused her to be subject to undue influence through such avenues. Her physical dependence was significant. Godsy v. Godsy, 504 S.W.2d 209 (Mo.App. 1973). The testatrix trusted the proponent as a joint owner of her home and with her financial affairs. The jury could find the proponent had the power and opportunity to unduly influence the testatrix.

There was an estrangement between testatrix and her daughter. However, the jury could find the disposition of her estate to proponent to the exclusion of her daughter to be out of all proportion to the incident and an unnatural disposition. Testatrix’s long standing intent that her estate go to her daughter changed within three months of the rift. Her home was placed in joint tenancy within a month thereafter.

Following the rift, the proponent saw the testatrix almost every day, as often as three times a day. The proponent did recommend as an insurance agent the scrivener of his will. The testatrix did ask the insurance agent, whom she did not know, if he could write a will. The jury could also consider proponent’s ambiguous answer concerning whether or not he knew the agent was a lawyer as well as his wife’s indication that the agent wrote the insurance long before the will was written. The proponent did not inform contestant when her mother was hospitalized. His attitude toward the contestant was demonstrated by his continuing reference to her inadequate rent, his failure to speak to her and his instructions to the funeral director. Also for consideration was the fact testatrix’s property was derived through her deceased husband, whose testamentary intent was that it should belong to the contestant. The recital in the will that testatrix had given certain property to contestant reflected the attitude of proponent toward the contestant. The declarations of the testatrix indicating she was upset with having signed the deed to her home and was fearful of the proponent finding that her relationship with her daughter was improving were significant.

A circumstantial case of undue influence is not made by the establishment of any one factor. Rather it is a combination of factors. As a result, it is seldom, if ever, that a case can be found which is “on all fours” with the case at bar. We have carefully considered the cases cited by proponent and they are distinguishable from this case. No one of these facts which are recognized indicia of undue influence would establish a submissible case. Nor would these factors considered together, as they must be, compel a finding of undue influence. That determination must be left to the trier of the facts, in this instance, the jury. Upon two occasions the trial court held that considered as a whole, facts were established from which the jury could reasonably infer undue influence. We hold that no error was made in submitting the case to the jury.

The contestant sought to file an amended petition. The amended petition contained the allegations of testamentary incapacity and undue influence. It sought to add allegations that John and Ella contracted to execute a joint will in the form of the instrument of March 10, 1954, and thereby the will of February 15, 1972, was void. The amended petition was refused.

In a colloquy following the refusal of the amended petition, the proponent requested the court to admonish contestant’s counsel not to refer to any alleged agreement or contract. Contestant’s counsel then stated he understood the court’s ruling to mean there would be no talk of any “legal ramifications of a prior document or that that document in any way legally or lawfully prevented any transfer of property.” But, he asserted the document was relevant and there would be evidence of an agreement between John and Ella. The trial court at that point declined to rule on what evidence would be admitted.

Contestant’s counsel in his opening statement said there would be evidence that John and Ella near 1954 “contracted together” to insure their property would go to contestant. Proponent objected and asked for a mistrial. The trial cpurt understood the reference to mean they executed an instrument and overruled the objection. The court did admonish contestant’s counsel not to refer to a joint will as legally binding. Contestant’s counsel then continued by referring to the execution of a document in 1954 and he read the dispositive provision of the joint will to the jury. During the trial signatures of John and Ella on the photocopy of the joint will were identified and it was admitted to show Ella’s state of mind. Proponent asserts error in the refusal of a mistrial and the admission of the photocopy of the joint will.

The contestant was properly barred from asserting in her amended petition that the will of February 15, 1972, was void because of the alleged contract to devise. The remedy for the enforcement of such an alleged contract is by an action in the nature of specific performance. Owens v. Savage, 518 S.W.2d 192 (Mo.App.1974).

But, this does not mean evidence of a contract to devise is wholly inadmissible in a will contest based upon undue influence.

It is proper to show the existence of a contract on the part of the testator to make a will containing certain provisions. If the will is in accordance with such contract, the existence of the contract will tend to show the absence of undue influence. If the will is inconsistent with such contract, the contract may be used as tending to show that the will was caused by undue influence. 3 Bowe-Par-ker: Page on Wills, Evidence § 29.109, p. 645.

The trial court had indicated it would rule on the admissibility of evidence as it was offered. It did not err in refusing to grant a mistrial because of counsel’s statement about admissible evidence. In fact, the court’s admonition may have unduly restricted contestant’s presentation of her case.

Proponent complains about the admission of the copy of the joint will because it was a copy and because of the absence of the original it was presumed revoked. Evidence of testatrix’s prior testamentary intent was admissible. It is not rendered inadmissible because that intent had been revoked or changed. Indeed, that is the reason for the admission of the prior intent. Such evidence may be in the form of declarations, a formally executed and fully proved original will, a defectively executed instrument, Thompson v. Ish, 99 Mo. 160, 12 S.W. 510 (1889); or a copy, Bennington v. McClintick, 253 S.W.2d 132 (Mo.1952). A joint will is evidence of a contract to devise. Wimp v. Collett, 414 S.W.2d 65 (Mo.1967). The signatures of John and Ella to this dispositive instrument were not questioned. It was properly admitted.

The judgment is affirmed.

BILLINGS, P. J., and HOGAN, J., concur.


author: BILLINGS, Judge.

text:
    Lillian SWINNEY et al., Plaintiffs-Appellants, v. Otto CUMMINGS, Executor, et al., Defendants-Respondents.
    No. 10942.
    Missouri Court of Appeals, Southern District, Division Three.
    May 9, 1979.

      John L. Woodward, Steelville, for plaintiffs-appellants.
    J. Kent Howald, Beckham, Hale & How-aid, Steelville, for defendants-respondents.
   BILLINGS, Judge.

Plaintiffs, initially claiming to be heirs at law of Martha C. Hell, brought this suit seeking to have her will declared invalid. The will had been admitted to probate and letters testamentary issued. By an amended petition, plaintiffs alleged they were beneficiaries under a prior will of Martha C. Hell. Defendants, legatees in the probated will, filed their motion to dismiss the plaintiffs’ suit. The trial court dismissed the suit. We affirm.

Plaintiffs’ statement of facts in their initial brief does not, as required by Rule 84.04(c), V.A.M.R., contain a fair and concise statement of the facts relevant to the question presented for determination, inasmuch as it includes irrelevant matters, matters outside the record, and omits certain relevant facts. Their reply brief is equally deficient. Furthermore, their appeal states it is taken from the denial of their motion to set aside the order of dismissal, rather than the judgment of dismissal entered earlier. Nevertheless, with some reluctance and a caveat, we will review the action of the trial court in dismissing plaintiffs’ suit.

Plaintiffs are the children of Edmund Dunn, the deceased brother of Albert Dunn, deceased. Albert Dunn was Martha’s first husband and their marriage ended in divorce in 1926. After the divorce Martha married Pittsford Stoval and this marriage was terminated by Stoval’s death in 1959. Martha then married John Hell who died in 1968. Defendants in this suit are seven nephews and nieces of Martha and four Hell “step-sons.”

Martha, declaring herself to be a resident of Cuba, Crawford County, Missouri, executed a will on January 4,1977, and died 24 days later. This will was admitted to probate in Crawford County and letters testamentary issued to nephew Otto Cummings. The first publication of notice of letters was on February 10, 1977.

On June 9, 1977, plaintiffs, describing themselves as heirs at law of Edmund Dunn, and claiming to be heirs at law of Martha, filed this suit. The petition alleged Martha left an estate of $32,000 consisting of personal property and that the will admitted to probate was invalid because of Martha’s lack of testamentary capacity and undue influence of Otto Cummings. Defendants sought dismissal of the suit, contending plaintiffs were not heirs at law of Martha and, consequently, had no right or standing to prosecute the suit. Before there was a ruling on the motion to dismiss, plaintiffs, with leave of court, filed an amended petition on August 25, 1977. This pleading alleged plaintiffs were “devisees and legatees” in a previous will of Martha dated March 14, 1975. A copy of the alleged prior will was attached and incorporated by reference and the remaining allegations contained in the original petition were re-alleged.

Defendants countered with their motion to dismiss the amended petition, contending plaintiffs were not heirs at law of Martha, were not interested parties, and had no right or standing to maintain a contest of the probated will. Hearings on defendants’ motion were held on September 26 and October 18, 1977, at which times defendants offered evidence in support of their motion. Plaintiffs stipulated they were of no blood relation to Martha. Defendants’ evidence traced Martha’s marriages and the kinship of defendants to Martha. The probate clerk confirmed the probate of the January 4, 1977 will, issuance of letters, and date of first publication of letters testamentary; further, that no other document had been offered for probate as the will of Martha. On November 15, 1977, the court sustained defendants' motion to dismiss the suit. Plaintiffs filed a motion seeking to set aside the order of dismissal and the court denied this motion January 31, 1978. This appeal followed.

Plaintiffs’ single point is that “[l]egatees under a prior will of the decedent have such an ‘interest’ so as to entitle them to contest the validity of a later will, regardless of whether or not the prior will has been admitted to probate; hence, the trial court erred in dismissing the plaintiffs' action because they lacked the requisite ‘interest’.”

The determinative issue before us is whether or not plaintiffs, as contestants of a probated will, have the requisite standing to maintain a will contest under § 473.083, subd. 1, 1973 Mo.Laws, pp. 483^484. This statute requires that a contestant be a “. . . person interested in the probate of a will . . . .”

A will may be contested or a rejected will established under § 473.083 only by persons “interested in the probate of a will” and this requires a contestant to have a financial interest in the estate, and one which would be benefited by setting the will aside. State ex rel. Cooper v. Cloyd, 461 S.W.2d 833 (Mo. banc 1971). The “interest” of a contestant must be in the probate of the will rather than the estate and our supreme court has stated that this means an interest in the estate, without having the requisite interest in probate, is not sufficient to give standing to maintain a will contest. Cooper, supra at 837.

§ 473.083, subd. 1, provides: “Unless any person interested in the probate of a will [appears] within six months after the date of the probate or rejection thereof by the probate court, or within six months after the first publication of notice of granting of letters on the estate of the decedent, whichever is later, and, by petition to the circuit court of the county contests the validity of a probated will, or prays to have a will probated which has been rejected by the probate court, then probate or rejection of the will is binding.”

It has been held that § 473.083 is to be read together with the limitation statute, § 473.050, 1973 Mo.Laws, pp. 482-483. First Presbyterian Church of Monett v. Feist, 397 S.W.2d 728 (Mo.App.1965). This latter section limits the time within which a will can be presented for probate and reads as follows: “No proof shall be taken of any will nor any certificate of probate thereof issued, unless the will has been presented to the . . . Probate Court, within six (6) months from the date of the first publication of the notice of granting Letters Testamentary or of administration by any Probate Court in the State of Missouri, or within thirty (30) days from the commencement of an action under Section 473.083 to establish or contest the validity of a will, whichever is later, on the estate of the testator named in the will so presented.”

The evidence received by the trial court in ruling defendants’ motion to dismiss makes it clear that the alleged prior will of Martha had not been presented to the probate court within six months from the date of the first publication of letters testamentary of the probated will, and it is equally clear that there was never any presentment of the alleged earlier will to the probate court within thirty days from the date this suit was filed attacking the validity of the probated will. First publication of notice of letters testamentary was on February 10, 1977. Plaintiffs’ contest was filed on June 9, 1977. The clerk of the probate court testified on October 18, 1977, that no other will of Martha had been presented to the probate court of Crawford County for probate or rejection. Plaintiffs, in their briefs, do not contend otherwise.

Returning to the question of plaintiffs’ “interest”, we cannot improve on the words of the late Judge Ruark, writing for this court in First Presbyterian Church of Monett v. Feist, supra, beginning at 732:

“As we read Sections 473.050 and 473.-083 together, it is apparent that one claiming under a will must have presented it for probate or rejection within nine months from notice of letters and, if not, the will so (afterwards) advanced has no efficacy in transferring any title. It cannot be admitted to probate. * * * * * *
In State ex rel. Shriners’ Hospitals] for Crippled Children v. Hensley, Mo. App., 385 S.W.2d 820, it was held that the probate court had no jurisdiction to receive proof and either admit or reject a (prior) will which had not been presented for probate within the nine-months period and that such a (prior) will could not be interjected into a will contest. $ ⅜ ⅜ ⅜ * ⅜
The ‘interest’ of one who may contest is not the interest of every busybody or tomdicary who may not approve of the will. It must be a financial or property interest derived either from inheritance or under a will. The person so contesting must either gain or lose by virtue of the will in question. [Citations omitted]. Plaintiffs ... in the will contest did not, and could not, claim any interest by inheritance. . . . They claimed under an alleged previous will of testatrix. This will was not offered to the probate court until . . . almost two years after letters testamentary and first publication of notice of granting of letters testamentary. They could claim no interest under such previous will because said will had not been admitted to probate, and could not, either by the probate court or by the circuit court in this contest, be declared to be the last will and testament of Vivian Ruth Feist.
It is said that the institution of a will contest vacates the probate of the will so contested; but a necessary corollary is that the institution of such a contest must be by one having the right to question that will. [Citation omitted]. It should not be within the power of a stranger or interloper having no interest in the estate to upset and destroy the solemn judgment of the probate court in admitting the will to probate. If they had no interest, they had no cause of action [citation omitted] and, therefore, no right to bring or maintain their contest, and the only judgment which the circuit court could enter was dismissal of such suit . . . .”

So it is here. Plaintiffs could not claim any interest by way of inheritance. Their claim was based on an alleged previous will which was never presented to the probate court of Crawford County for probate or rejection within the time limitation specified by § 473.050, 1973 Mo.Laws, pp. 482— 483. Consequently, they did not have the requisite “interest” referred to in § 473.083, 1973 Mo.Laws, pp. 483-484, and the trial court properly dismissed their petition.

The judgment is affirmed.

FLANIGAN, C. J., and MAUS and GREENE, JJ., concur.

      . New § 473.083, V.A.M.S. (Supp.1979) did not become effective until January 2, 1979.

      . New § 473.050, V.A.M.S. (Supp.1979) did not become effective until January 2, 1979.

      . Both § 473.083 and § 473.050, as they existed when First Presbyterian Church of Monett was decided, contained time periods of nine months. 1973 Mo.Laws, pp. 482 and 483, applicable here, further limited the time period of both sections.