author: TITUS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lowell WOODS, Defendant-Appellant.
    No. 10743.
    Missouri Court of Appeals, Southern District, Division One.
    July 18, 1979.

      John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., James R. Cum-bee, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    John B. Newberry, Springfield, for defendant-appellant.
   TITUS, Presiding Judge.

Defendant and one Jim Richard Carpenter were jointly charged with stealing five steers “the property of Warren Gamel, of a value of over $50.00” as denounced by §§ 560.156 and 560.161. Defendant was also charged as a second offender under § 556.280. Carpenter was granted a severance and defendant was jury-convicted and court-sentenced to the custody of the Division of Corrections for a term of six years. Defendant appealed.

The lone point relied on in defendant’s new trial motion and on appeal is that the trial court erred, to defendant’s prejudice, by including the second paragraph of MAI-CR 2.10 in Instruction No. 5, contrary to Notes on Use numbered 3 under MAI-CR 2.10 because there was no evidence that defendant was present at or near the scene of the crime at the time it was committed.

Warren Gamel owned 67 head of cattle which he kept on a farm situate one-half mile east of Mrs. McCroskey’s rural home. On the morning of January 5, 1977, Gamel fed and counted his herd, finding them all present. The next morning Gamel found 9 head missing, included in which were the 5 steers defendant and Carpenter were accused of stealing. The cattle were branded with a “W” and had holes punched in their left ears for identification.

Somewhere near 10 or 11 a. m. January 5, Mrs. McCroskey observed an aqua or greenish-blue old model Chevrolet pickup truck with “some unpainted, unfinished lumber racks on it” employing her driveway to reverse direction and travel eastward in the direction of the Gamel farm. The bed of the truck then appeared to be empty. About one or one and a half hours later, Mrs. McCroskey saw the same pickup traveling west past her house. She said the truck was then loaded but she “couldn’t say what with.” Mrs. McCroskey could not see how many people were in the truck.

Gregory Helton, age 16 years who resides with his mother and Larry Dickens on a farm, did not go to school on January 5 because he missed the school bus. About 1:30 p. m. that day Gregory saw Carpenter’s Chevrolet “turquoise” colored pickup truck drive onto his home place. Carpenter was driving the truck accompanied by defendant. The truck was equipped with stock racks and loaded with five cattle. Defendant and Carpenter unloaded the cattle into a barn on the premises, removed the racks from the truck and placed them adjacent to the barn.

Larry Dickens (who resided with Gregory Helton and Gregory’s mother) encountered defendant and Carpenter in a bar about 2 or 3 p. m. January 5. Dickens indicated to defendant and Carpenter, when asked, that he would be interested in purchasing some livestock. No description of the stock was given or inquired of and no price was mentioned. When Dickens returned home near darkness he discovered five head of “strange” cattle in the barn and an old stock rack in front thereof. A day or two later Dickens encountered defendant in a tavern and paid him in cash, “Forty-five dollars a head,” for the five cattle. Shortly thereafter Dickens heard a radio report concerning stolen cattle branded with a “W”. Inspection of two cattle revealed they were so branded. Dickens then forged a $340 receipt signed by fictitious “Bill Wilson” showing he had paid that sum for the cattle and decided he needed to get rid of the animals immediately. On January 18 Dickens sold the five cattle to Ronnie Russell who paid for them with a $450 check. The cattle were later recovered from Russell and returned to owner Gamel. The operator of the Mill Tavern declared himself the owner of the stock racks in question and testified he had loaned them to Jim Carpenter.

Based on the testimony of Warren Gamel and Gregory Helton, we believe it was reasonable for the jury, as fact-finders, to conclude that five of Gamel’s cattle were stolen from his property on January 5 between the time all were counted and found present and before they were unloaded from Carpenter’s truck with defendant’s aid near 1:30 p. m. and placed in Dickens’ barn as observed by Helton. However, we are of the opinion that to place the defendant at or near the scene of the stealing at the time it was committed, requires the use of inferences and the stacking thereof. It is axiomatic that an inference may not arise which is dependent for establishment of one fact upon an inference to be drawn from some other fact shown only by inference. State v. Holman, 556 S.W.2d 499, 509[26] (Mo. App.1977).

If, from the vague description of the vehicle seen by Mrs. McCroskey, it was permissible for the jury to infer the pickup she observed was the one owned by Carpenter and later employed in delivering stolen cattle to the Dickens’ farm, the jury would have to further infer from this inference that between the two times the pickup was seen by Mrs. McCroskey, it had been driven to the Gamel place and loaded with stolen cattle. Also to be remembered is that when Mrs. McCroskey saw the westbound truck at 11 a. m. to 12:30 p. m., she could not see its load or the number nor identity of its human occupant or occupants and to say that it was then carrying cattle and the defendant requires a further inference predicated on the inferences already mentioned. But even if the inference stacking, supra, be accepted as facts, defendant was never directly nor indirectly placed as having been at or near the scene of the stealing at the time of its commission. Consequently, to find defendant guilty of stealing (as opposed to other crimes) would require inverse inferences to be drawn from the facts that cattle were stolen and defendant, thereafter, was in apparent joint possession thereof some one to two and a half hours after the inferred time of theft.

In fine, even if it be conceded that the evidence was sufficient to justify the inference that Carpenter’s truck was used to haul away the stolen cattle, in order to directly connect defendant with the crime of stealing it would also be necessary to infer that from his later occupancy of the vehicle and subsequent conduct that he was present at or near the scene of the stealing at the time it was committed and this, we hold, is not a permissible inference. Cf. State v. Schrum, 347 Mo. 1060, 1065, 152 S.W.2d 17, 19 — 20[3] (1941); State v. Morse, 515 S.W.2d 608, 610[3] (Mo.App.1974). Cases holding that the giving of the second paragraph of MAI-CR 2.10 was not erroneous, are not persuasive here because in each of the following there was strong and convincing direct or circumstantial evidence, or both, that defendant was present at or near the scene of the crime at the time it was committed. State v. Keever, 569 S.W.2d 400, 403[7] (Mo.App.1978); State v. Knabe, 538 S.W.2d 589, 593-594[6-8] (Mo.App. 1976); State v. Williams, 524 S.W.2d 137, 139 (Mo.App.1975).

In apparent anticipation of the foregoing, the state says that even if we, as already done, were to determine it was error to give the second paragraph of MAI-CR 2.10 in violation of Notes on Use 3 (footnotes 2 and 3, supra), the error was not prejudicial. Our opinion is otherwise.

Rule 20.02(e) states: “Giving or failing to give an instruction ... in violation of this Rule or any applicable Notes on Use shall constitute error, its prejudicial effect to be judicially determined.” To determine the prejudicial effect of giving the second paragraph of MAI-CR 2.10, we look to the principal verdict director for finding the defendant guilty.

A reading of Instruction No. 6 (quoted in footnote 5, supra) clearly indicates that before defendant could be determined guilty, “defendant and another took five (5) head of cattle . . . that the property was taken by the defendant . . . that the property was taken by the defendant . . . etc. (Emphasis supplied). In other words, the jury was told that before it could conclude defendant was guilty of stealing, it had to find defendant personally or with another took the cattle. However, there was absolutely no competent evidence the cattle “was taken by the defendant” at or near the scene of the stealing at the time the stealing was committed. The only suggestion as to this unproved circumstance came from the second paragraph of Instruction No. 5 (MAI-CR 2.10) which unauthor-izedly placed defendant at or near the scene of the charged crime at the time it was committed. This was prejudicial error.

Judgment reversed and cause remanded for a new trial.

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

PREWITT, J., not participating because not a member of the court when cause was submitted.

      . References to statutes are to RSMo 1969. References to MAI-CR 2.10 are to Missouri Approved Instructions — Criminal 10-8-73. References to rules are to Missouri Supreme Court Rules of Criminal Procedure, V.A.M.R.

      * “Instruction No. 5
      All persons are guilty who knowingly act together with the common purpose of committing an offense, or who knowingly and intentionally aid or encourage another in committing it, and whatever one does in furtherance of the offense is the act of each of them.
      The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible therefor, although his presence may be considered together with all of the evidence in determining his guilt or innocence.” (MAI-CR 2.10).

      . MAI-CR 2.10 — “Notes on Use ... 3.
      The second paragraph should be omitted if there was no evidence that defendant was present at or near the scene of the crime.”

      . The evidence does not show the distance separating the Gamel farm from whence the cattle were stolen and Gregory Helton’s house. However, the state does not contend that Gregory’s home was at or near the scene of the charged crime.

      . “Instruction No. 6
      If you find and believe from the evidence beyond a reasonable doubt:
      First, that on or about January 5, 1977, in the County of Greene, State of Missouri, the defendant and another took five (5) head of cattle owned by Warren Gamel, and
      Second, that the property taken was of the combined value of at least fifty dollars, and
      Third, that the property was taken by the defendant and another with the intent to permanently deprive Warren Gamel of his use of such property and to convert it to the use of the defendant and another, and
      Fourth, that the property was taken by the defendant and another without the consent of the owner, and
      Fifth, that the defendant acted either alone or knowingly and with common purpose together with another in the conduct referred to in the above paragraphs, then you will find the defendant guilty of stealing property of the value of at least fifty dollars.
      However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.” (MAI-CR 7.70 & 2.12).


source: Caselaw Access Project

author: BILLINGS, Presiding Judge.

license: Public Domain

text:
    Donald HARTLEY and Danna Sue Hartley, husband and wife, Plaintiffs-Appellants, v. Tamara E. MATEJKA, Defendant-Respondent.
    No. 10746.
    Missouri Court of Appeals, Southern District, Division Two.
    July 20, 1979.

      Robert H. Handley, Church & Handley, Springfield, for plaintiffs-appellants.
    Leland L. Gannaway, Taylor, Stafford, Gannaway & Woody, Springfield, for defendant-respondent.
   BILLINGS, Presiding Judge.

Plaintiff Donald Hartley was awarded $75 damages in his claim for personal injuries, and the jury found in favor of the defendant on plaintiff Danna Hartley’s count for loss of consortium. We affirm.

Liability of the defendant for her automobile rear-ending the car being occupied by Donald was not a serious trial issue. Donald’s vehicle was stopped at a stop light when defendant’s car, travelling five to ten miles an hour, ran into the stopped automobile. The collision caused two cracks in the paint on the front bumper of the defendant’s car and two small bumps on each side of the rear license plate of the stopped vehicle. The front car moved ahead three or four feet after it was struck by defendant’s automobile.

Donald, a Springfield police officer, remained at the scene while another officer investigated the accident. He then drove his automobile, a police car, to police headquarters and filled out an accident report. After completing the report, Donald went to the emergency room of a Springfield hospital for examination and X-rays for which a total charge of $74.40 was made. Four or five months later he received treatment from a chiropractor. Some time later he was examined by another doctor but not treated. Almost ten months after the accident he received acupuncture treatments from a Springfield physician. He did not lose any wages from his regular job as a police officer and left his “moonlighting” job as a store detective at a local department store 48 weeks after the collision. His chief complaint of injury was to his back and both he and his wife testified as to his complaints, limiting of his activities, and his general condition of health before and after the collision. His petition sought damages for the charges made at the emergency room, charges by the acupuncture physician, lost wages, plus a sum for pain and suffering. Plaintiff-wife, in response to her counsel’s question “Is there any difference in your marital relations with your husband?”, replied: “Yes, there has been a difference. He just has not been the same since the accident.”

Plaintiffs’ first assignment of error in this appeal is that the verdict of the jury was against the weight of the evidence. This point preserves nothing for appellate review. Robbins v. Robbins, 328 S.W.2d 552 (Mo.1959). Such an assignment in itself implies that there is some evidence to support the verdict. Palmer v. Lasswell, 267 S.W.2d 492 (Mo.App.1954). Whether a jury’s verdict is against the weight of the evidence is a question for the trial court alone. Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907 (banc 1951). The weight of the evidence is not a matter for an appellate court. Borden v. Phillips Petroleum Co., 541 S.W.2d 53 (Mo.App.1976); Herrman Lumber Co. v. Cox, 521 S.W.2d 4 (Mo.App. 1975).

Plaintiffs’ second point, that the jury’s verdict was so grossly inadequate as to indicate that it resulted from passion and prejudice, meets a similar fate. Rule 78.07, V.A.M.R., requires that allegations of error (with certain exceptions not applicable herein) must be presented to the trial court in a motion for a new trial. Rule 84.13(a) states that no allegations of error shall be considered on appeal, except such as have been presented to the trial court. General allegations in the motion are sufficient if based upon specific objection or requests made during the trial. Otherwise specific allegations must be made. In any event the allegations must be sufficiently definite to direct the court’s attention to the particular acts or rulings asserted to be erroneous. Thus, the grounds of an after-trial motion must be specific, not general, and deficiencies in an after-trial motion cannot be supplied by appellant’s brief. Pasley v. Newton, 455 S.W.2d 43 (Mo.App.1970).

Plaintiffs’ motion for new trial states: “The jurors were prejudiced against the plaintiffs.” This general allegation is insufficient to preserve the matter of inadequacy of damages for review for two reasons. First, appellate review is limited to the ground advanced in the after-trial motion and an appellant cannot change horses in the appellate stream. Secondly, a complaint that a recovery is excessive or inadequate is a matter that should first be presented to the trial court in a motion for new trial. Abco Assisting Building Const. Office Inc. v. Bagley & Co., 304 S.W.2d 43 (Mo.App.1957). As demonstrated, plaintiffs’ motion for new trial is silent on their present claim of inadequate damages. The insufficiency of the verdict, not having been raised in their motion for new trial, cannot now be raised. Cargill Inc., Commodity Marketing Div. v. Hale, 537 S.W.2d 667 (Mo.App.1976); Cook v. Wheeler, 218 S.W. 929 (Mo.App.1920).

Plaintiffs’ remaining point concerns the failure of the jury to award plaintiff-wife damages on her claim for loss of consortium. They contend the verdict in favor of the defendant on the consortium claim is inconsistent as a matter of law in view of the verdict in favor of plaintiff-husband. Reliance is placed on the line of cases which hold that when evidence of loss of consortium is undisputed and the jury has found that the husband has suffered a substantial injury, a verdict against the wife on her consortium claim is inconsistent and the verdict should be set aside and a new trial granted. Barlow v. Thornhill, 537 S.W.2d 412 (Mo. banc 1976), and cases cited therein. (Our emphasis).

The difficulty confronting instant plaintiffs is that, under the evidence at trial, the jury must have necessarily concluded plaintiff-husband did not sustain substantial injury as a result of the collision of the two cars. While it is true that in order to make any award to plaintiff-husband by way of damages the jury determined the issue of liability against the defendant, the damages awarded him barely exceeded the cost of the medical examination which he had following the incident. The jurors, as fact-finders, were the sole judges of the credibility of the witnesses and the weight to be given to their testimony and at liberty to believe or disbelieve the witnesses’ testimony. Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7 (Mo.App.1974). Thus, the jury could find plaintiff-husband was not physically injured as a result of the collision, but, nevertheless, award him the approximate cost of the initial medical examination by way of damages. The point is denied.

The judgment is affirmed.

HOGAN and MAUS, JJ., and KELSO, Special Judge, concur.


author: PER CURIAM.

text:
    Evelyn Louise WILSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10984.
    Missouri Court of Appeals, Southern District.
    July 23, 1979.
    John A. Watkins, Greenfield, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM.

On September 1, 1977, in the Circuit Court of Dade County, movant (defendant) entered a plea of guilty to a charge of selling a controlled substance, marijuana, in violation of § 195.020. On November 14, 1977, the trial court sentenced her to five years in the custody of the Missouri Department of Corrections by reason of such conviction. No direct appeal was taken from the judgment and sentence.

On January 23, 1978, defendant filed a pro se application for postconviction relief under Rule 27.26 seeking to have her guilty plea set aside. After addendum to the motion by her court-appointed attorney, the motion alleged, among other things, that defendant’s sentence should be vacated because she was denied effective assistance of counsel before entering her plea; that she was induced to enter the plea by being told by officers of the court that she would receive probation if she were to enter a plea of guilty to the charge and that she should “get the thing over with” which would result in “less publicity” and let her continue her high school education; that the court had failed to advise her at the time of her plea that she had not stated sufficient facts regarding a plea of guilty in that the defense of entrapment was available to her, and that the statute under which she was charged was unconstitutional in that it classified marijuana in the same schedule as other substances of substantially greater danger to health and society than the drug in question, thus making the punishment not commensurate with the offense.

After an evidentiary hearing, the trial court, on March 22, 1978, filed a memorandum opinion denying the motion. The opinion did not make any findings of fact or contain any conclusions of law, other than a general conclusion that “the defendant’s rights were scrupulously protected.”

In her first assignment of error on appeal, defendant asserts that the trial court erred in failing to make findings of fact and conclusions of law in support of its judgment. We agree. Rule 27.26(i) requires that the trial court shall make findings of fact and conclusions of law on all issues presented in the 27.26 motion, whether or not a hearing is held. The failure to make such findings of fact and conclusions of law constitutes reversible error. Smith v. State, 526 S.W.2d 399, 400 (Mo.App.1975); Forbes v. State, 511 S.W.2d 894, 895-896 (Mo.App.1974); Hamilton v. State, 490 S.W.2d 363, 364 (Mo.App.1973).

The judgment is reversed and the cause remanded with directions to the trial court to make findings of fact and conclusions of law on all issues raised in defendant’s motion, and to enter a new judgment in accordance with such findings and conclusions.

All concur.

      . References to statutes and rules are to R Court, V.A.M.R. Mo Supp.1975, V.A.M.S. and Missouri Rules of


text:
    Louis J. NOTHAUS, Joeanne M. Nothaus and Louis A. Nothaus, Plaintiffs-Appellants, v. CITY OF SALEM, Missouri, Defendant-Respondent.
    No. 10738.
    Missouri Court of Appeals, Southern District.
    July 23, 1979.

      Albert A. Grump, Jr., Williams & Small-wood, Rolla, for plaintiffs-appellants.
    J. Max Price, Salem, for defendant-respondent.
   PER CURIAM.

Plaintiffs are residents of and defendant is a fourth class city located in Dent County, Missouri. Defendant proposed to construct and operate a sanitary landfill in a rural area outside of the city limits of defendant. The site chosen was in the vicinity of plaintiffs’ homes. Plaintiffs filed suit in circuit court, requesting equitable relief in the form of a permanent injunction, alleging that the operation of the landfill would constitute a nuisance causing irreparable damage to plaintiffs. They asked that defendant be enjoined from constructing and operating the landfill. At trial, predictably, the evidence was conflicting. Plaintiffs’ evidence was largely speculative and conclusionary and consisted of mere apprehension of future injury or damage. After trial, the court entered judgment denying the relief requested. Findings of fact and conclusions of law in support of the judgment were filed. Plaintiffs appeal.

Plaintiffs list three assignments of error, which are that the trial court erred in: 1) erroneously applying an incorrect burden of proof standard to plaintiffs’ cause of action, 2) erroneously applying the law by refusing to admit into evidence certain photographs and testimony concerning operation of other landfills, and 3) there was no substantial evidence to support the trial court’s finding, and in particular its finding of fact no. 5, that “[t]he landfill is intended primarily for the use of the City of Salem and its residents, however, other municipalities and government entities as well as Dent County rural residents, may use the landfill.” It would serve no useful purpose to detail all of the evidence, and findings of fact and conclusions of law of the court. Only the attacked findings, and the evidence necessary to disposition of the assignments of error will be recited.

The Burden of Proof Standard

On appellate review of trial court judgments in suits of equitable nature, the judgment of the trial court will be sustained unless: 1) there is no substantial evidence to support it, 2) it is against the weight of the evidence, and 3) the trial court erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). Plaintiffs concede that Murphy is the proper yardstick to be used in measuring the trial court’s judgment, but argues that the trial court committed prejudicial error by using an improper standard of proof in concluding that plaintiffs had not established by competent evidence that they were entitled to injunctive relief. The trial court’s conclusion of law no. 1 was: “The proposed creation of this sanitary landfill has not been shown to necessarily result as a practical certainty in the creation of a nuisance. The standard is set out in Appelbaum v. St. Louis County, (Mo. banc) 451 S.W.2d 107.” Plaintiffs argue that this conclusion is an erroneous declaration of law, in that the burden of proof standard set out in Appelbaum has been modified by the decision of Lee v. Rolla Speedway, Incorporated, 494 S.W.2d 349 (Mo.1973), that the Lee standard of proof should have been used by the trial court here, and that failure to do so constituted reversible error. We disagree.

Appelbaum was strikingly similar to the present case on the facts. Plaintiffs, who were residents of St. Louis County, sought to enjoin the construction of a landfill by the county near their property. The trial court denied the claim for relief. In upholding the action of the trial court, the Supreme Court held that mere apprehension of future injury or damage cannot be the basis for the injunctive writ.

The opinion quoted with approval a portion of the opinion of Kelly v. City of Philadelphia, 382 Pa. 459, 115 A.2d 238, 241 (1955), to the effect that a nuisance must necessarily result from the contemplated act, and that the injury that plaintiffs fear “must be actually threatened, not merely anticipated; it must be practically certain, not merely probable,” in order for injunc-tive relief to be granted.

In Appelbaum, as here, the facility had not been constructed at time of trial, the evidence was conflicting, and defendant’s evidence indicated that the operation of the landfill would be nuisance-free. Deference was given to the trial court’s judgment in resolving the issue of whether the evidence supported the trial court’s conclusion that plaintiffs had not proved that future injury or damage would inure to them if the landfill was constructed.

In Lee v. Rolla Speedway, Incorporated, supra, 494 S.W.2d at 354, plaintiffs who were persons living in the vicinity of a proposed automobile racetrack, sought to enjoin its construction. The trial court denied injunctive relief. In reversing the judgment the appellate court said that the trial court was in error in using as its burden of proof standard the thesis that plaintiffs, in order to establish their right to injunctive relief, must prove “clearly and conclusively” that the alleged future injury would be “inevitable and undoubted,” which standard was pronounced and approved in Aufderheide v. Polar Wave Ice & Fuel Co., 319 Mo. 337, 4 S.W.2d 776, 785 (banc 1928). The court in Lee correctly pointed out that where (as here) the contemplated act of defendant may or may not constitute a nuisance dependent on the manner in which the facility was operated, the Aufderheide standard was the correct one. They further said that in Lee, where plaintiffs’ claim was based on a proven and admitted fact, that excessive noise levels would result from the operation of the automobile racetrack, the strict burden of proof standard of Aufder-heide should not apply, but that the matter should have been considered by the trial judge in the light of whether the evidence of excessive noise demonstrated a reasonable likelihood that the operation of the racetrack would produce such an invasion of the rights of neighborhood land owners to the extent that would justify injunctive relief. The court, in Lee, made no mention of the Appelbaum decision, and there was no reason for them to do so. The Lee doctrine is only applicable where admitted or proven harm to a few must be weighed against the benefit to society as a whole by the proposed project. Such is not the case here. There is no evidence of proven or admitted harm in this case, but only conjectural evidence as to what might happen if the landfill is not operated properly. Lee does not modify or overrule Appelbaum. The trial court applied the proper standard of proof under the facts of other cases. The assignment of error is denied.

The Evidentiary Issue

Plaintiffs next contend that the trial court erred in erroneously applying the law by refusing to admit into evidence certain photographs of a landfill operation in Phelps County depicting conditions that could be considered as evidence of an existing nuisance at that location, and also refused to admit into evidence testimony concerning personal observation of nuisance abuses occurring at that location. Plaintiffs sought introduction of such evidence on the ground of “similarity” between the Phelps County landfill operation and the proposed landfill to be operated by defendant. The evidence was properly refused. There was no proper foundation laid for the introduction of the evidence in question, and we do not see how logically there could be, as improper operation of the Phelps County landfill could not, under any circumstances, be proof that defendant’s landfill would be improperly operated after its construction. The cases cited by plaintiffs as alleged support for their argument on this issue are not in point and, therefore, need not be discussed here. The trial court was correct in refusing to admit into evidence the photographs and testimony in question. The assignment of error is denied.

The Substantial Evidence Issue

We have carefully reviewed the entire record and hold that there was substantial evidence to support the trial court’s judgment, including its finding of fact that “[t]he landfill is intended primarily for the use of the City of Salem and its residents, however, other municipalities and government entities as well as Dent County rural residents, may use the landfill.” While we fail to see how this specific finding of fact could possibly be of harm to plaintiffs, or be considered as prejudicial error, it was amply supported by the evidence. The pleadings, answers to interrogatories, and exhibits conclusively established that the defendant would be the owner operator and primary user of the landfill, and that other users would be the City of Licking, Montauk State Park, the U.S. Forest Service, and rural residents of Dent County. The assignment of error is denied.

We hold that the judgment of the trial court was supported by substantial evidence, was not against the weight of the evidence, and that the trial court correctly declared and applied the law in arriving at its judgment.

The judgment is affirmed.

All concur.


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas Edward LAWSON, Defendant-Appellant.
    No. 10916.
    Missouri Court of Appeals, Southern District, Division Two.
    July 24, 1979.

      John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Sandra L. Skinner, Springfield, for defendant-appellant.
   PER CURIAM:

Defendant was convicted by a jury in the Circuit Court of Greene County of an assault on Jack Melton with intent to do great bodily harm without malice aforethought. He was sentenced to five years imprisonment.

The charge against defendant arose from an incident that occurred about 6:30 p. m. September 29, 1976 on the parking lot of Carl’s Liquor Store, in Springfield. Defendant was in an automobile with Donald Holt when following an exchange of words Donald Holt left the automobile and engaged in a fist fight with Danny Melton. While the fight was progressing a companion of Danny Melton called Jack Melton, Danny’s father, and told him of the fight. Jack Melton lived approximately two and a half blocks from the liquor store and immediately drove there in his pickup. As he arrived Donald Holt was retreating to the car in which he arrived. The fist fight had lasted 10 to 15 minutes. Jack Melton went to the car and hit Holt. The witnesses do not agree on whether the blow was with the fist or a portion of a bumper jack. The evidence is also disputed as to what next occurred. The State’s witnesses testified that while Jack Melton was facing Holt defendant approached Melton from the rear and struck him in the back or side with a knife which defendant held in his right hand. Defendant is right-handed. The State’s witnesses, including Jack Melton, say Melton did not have any kind of weapon until after he was stabbed. Defendant’s evidence was that after Jack Melton struck Holt defendant was trying to help Holt back into the car and told Jack Melton “We’ve had enough” and Melton replied “You think you’ve had enough” and then struck defendant with his fist and then a “bar” or tire tool. Defendant testified he then pulled out a pocket knife and stabbed Melton out of fear of physical harm. He thought the knife was in his left hand.

Defendant then left the scene after a brief altercation with Danny Melton when he either tried to stab Danny Melton or used the knife to keep Melton from hitting him. Defendant testified the knife was probably knocked from his hand at the corner of the liquor store. Defendant ran from the liquor store parking lot through a street or alley around the side of Park Central Hospital and into the front door of the hospital. He was later taken into custody there by Springfield police. Jack Melton also went to Park Central Hospital where he was treated in the emergency room and eight stitches taken in his wound. The next morning Jack Melton, Danny Melton and Stanley Robert Mace searched the area where Holt ran to the hospital and Mace found a knife in a window grate alongside the hospital in approximately the same area that defendant had passed through. The police were called and about 10:45 a. m. removed the knife. The blade was open when they removed it. Defendant denied that he had thrown Exhibit 7 in the grate. Defendant was charged with an assault on Jack Melton by stabbing him with a knife. Other facts will be noted in the course of this opinion.

Defendant advances four grounds for error: 1. That defendant’s motion for judgment of acquittal should have been sustained because the State failed to introduce evidence that defendant did not act in self-defense. 2. That a knife marked Exhibit 7 should not have been admitted into evidence. 3. That the defendant’s motion for judgment of acquittal should have been sustained because the State failed to prove that defendant acted with intent to do great bodily harm. 4. That two photographs of the wound of Jack Melton were improperly admitted into evidence. These points are considered in the order stated.

Defendant contends that the State failed to offer evidence which would show that defendant did not act in self-defense and thus no submissible case was made. This argument ignores much of the State’s evidence. It was undisputed that defendant struck Jack Melton in the side with a knife. He contends that he struck Melton in self-defense while he was in fear of Melton, emphasizing that Melton was 5' 10" tall and weighed 330 pounds. Other witnesses state that Melton had his back turned to the defendant and never saw him when he was stabbed without warning. Defendant contends he was struck first by Melton’s fist and then by a bar Melton was wielding. Melton and others deny that he had a bar, jack or other weapon and that he struck defendant. They also deny that any threats were ever made toward defendant. Where the evidence is conflicting or different inferences are possible it is generally a question of fact for the jury to determine whether an accused acted in self-defense. State v. Thornton, 532 S.W.2d 37, 43 (Mo. App.1975); State v. Jackson, 522 S.W.2d 317, 319 (Mo.App.1975).

Self-defense was submitted to the jury and they found against defendant. The conflicts and inconsistencies as present here are questions for the jurors to determine. They may believe all or none of the testimony of a witness or accept or reject it in part. State v. Pinkus, 550 S.W.2d 829, 838 (Mo.App.1977). While a showing of self-defense requires the State to show beyond a reasonable doubt that the defendant did not act in lawful self-defense, State v. Thornton, supra, 532 S.W.2d at 42, only when all the evidence is undisputed should a court dispose of the charge without submitting it to a jury. State v. Jackson, supra, 522 S.W.2d at 319. There was ample evidence that the assault upon Jack Melton was unwarranted and was not justified by any motive of self-defense. The jury so found. This point is ruled against defendant.

The second contention of defendant is that the trial court improperly admitted in evidence State’s Exhibit 7, a black handle folding knife. Defendant contends there was insufficient foundation connecting the knife to the defendant or the crime and that the knife would inflame and impassion the jury. Defendant admits that he stabbed Jack Melton with a “pocket knife” but‘contends that it was not the knife admitted in evidence. He states his knife had a two and one-half to three inch blade. The blade on Exhibit 7 is three and one-fourth inches long.

Following the incident on the parking lot the defendant left the premises and went to Park Central Hospital where he was apprehended. The next day Exhibit 7 was found at the bottom of a window grate by witness Stanley Robert Mace who was searching the area for defendant’s knife with Jack Melton and Danny Melton. Jack Melton testified that it was found in “approximately” the same area as defendant had “come through” after the fight. He describes Exhibit 7 as being “very similar” and looking “about what” he saw in defendant’s hand while defendant was “slashing” at his son. Danny Melton stated that the blade of Exhibit 7 looked exactly like the blade on the knife that defendant swung at him. A “cross member” on Exhibit 7, apparently some type of hand guard, was described by Danny Melton as exactly the same as the knife he saw in defendant’s hand. Danny Melton admitted this is a common type knife and he had seen this kind before. He didn’t know if it was the same knife that the defendant had. Neither Melton saw the handle.

Another witness to the incident, Joseph Henry, could see the blade of a knife in defendant’s right hand after Jack Melton was struck and stated that Exhibit 7 and its blade “looks like the knife” he saw defendant holding. He describes the knife he first saw as a “sort of lock-blade stiletto” with a blade probably three-eighths or half an inch wide. The blade of Exhibit 7 is seven-sixteenths of an inch at its widest point. He described the blade’s length on the knife defendant used as probably about “four, four and a half inches” long.

The physician who treated Jack Melton testified that the wound could have been caused by a knife or a blade such as Exhibit 7. Stanley Robert Mace said it appeared to be the same knife that he had seen the defendant holding on the liquor store premises.

While demonstrative evidence must be shown to be connected with the crime or the accused, the identification need not be positive, absolute, certain or wholly unqualified. State v. Johnson, 539 S.W.2d 493, 515 (Mo.App.1976). The weight to be given to the identification is for the jury. State v. Johnson, supra; State v. Holman, 556 S.W.2d 499, 504 (Mo.App.1977). Identification of an exhibit is not insufficient merely because a witness uses expressions such as “similar to” or “looked like”. State v. Duncan, 540 S.W.2d 130, 137 (Mo.App. 1976). Here the knife was described by the witnesses as having a blade and cross member “exactly” like the knife defendant was using. Also that it “looks like” that knife. That it “appears” to be the same knife and that it was “very similar”. State v. Holman, supra, 556 S.W.2d at 504 held it was sufficient to warrant the admissibility of a revolver when the clerk robbed said that it was “similar — looks li^e” the gun used. State v. Kern, 447 S.W.2d 571, 575 (Mo. 1969) approved the admissibility of a knife that “looks familiar” and that the witness believed he had seen before in the defendant’s hand.

Defendant cites as authority for his contentions that the knife is inadmissible State v. Merritt, 460 S.W.2d 591 (Mo.1970) and State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944). However, in Merritt evidence was lacking that the defendant even had a gun or had fired one and no connection between the gun and defendant was shown. The gun was found the next day outside the premises where a shooting occurred. In Wynne a .25 calibre automatic pistol was displayed to the jury when it was admittedly not the weapon used in the shooting. There was no connection between it and the crime or the defendant. In the present case sufficient connection was shown. Exhibit 7 was properly admitted.

Since Exhibit 7 was admissible, the fact that it might have tended to prejudice and inflame the jury against the defendant does not then render it inadmissible State v. Pinkus, supra, 550 S.W.2d at 836.

Defendant’s third point is that the State failed to introduce evidence that defendant acted with intent to do great bodily harm. In determining the sufficiency of the evidence all evidence and inferences tending to support the verdict must be considered as true. State v. Lee, 556 S.W.2d 25, 32 (Mo.1977). There was evidence that without warning defendant came up behind Jack Melton who was unarmed, and “repeatedly” struck him with a knife with a sharp pointed blade three and one-fourth to four and one-half inches long. Melton was stabbed in the mid rib area on the right side three to four inches below his under arm. He bled “a whole lot” and eight sutures were required to close the wound. The physician who treated Melton testified that the wound was in the right side at the level of the eighth or ninth rib. He stated that the blade did not go into the lung cavity as it evidently hit a rib and was deflected. The physician said that a knife such as Exhibit 7 could have caused serious injury if the full blade had gone into the chest. Had not the rib been there the lung might have been struck and blood vessels and Melton’s diaphragm could have been involved.

Intent does not have to be proved by direct evidence but may be shown by the circumstances. State v. Mathis, 427 S.W.2d 450, 452 (Mo.1968). Intent is seldom provable by direct evidence and usually must be inferred from the circumstances. State v. Beckemeyer, 423 S.W.2d 687, 688 (Mo.1968). In determining the defendant’s intent the jury was entitled to consider the weapon used, the manner of using it, the results of its use and all other related circumstances. State v. Kopf, 481 S.W.2d 7, 9 (Mo.1972); State v. Chevlin, 284 S.W.2d 563, 566 (Mo.1955). Based on the evidence the jury could and did find that defendant intended to do great bodily harm to Jack Melton.

Defendant next contends that the trial court erred in admitting the State’s Exhibits 5 and 6 which are photographs showing the right side of Jack Melton. Defendant claims that this evidence was improper and calculated to inflame and prejudice the jury against him. Exhibits 5 and 6 are approximately three-inch square color photographs taken by Danny Melton of his father showing the wound; Exhibit 5 on the day after the stabbing and Exhibit 6 “a couple of days” later. They were described as fair and accurate representations of how the wound looked on those days. Exhibit 5 shows Jack Melton’s right side from just below his pants pocket to his underarm. Exhibit 6 is of his right side and front from his chin. to his abdomen. In both photographs he is shirtless and has his arms raised. A laceration is visible near the middle of his right side on both. The defendant contends that it was unnecessary to admit these photographs as the stabbing and extent of the injuries were not controverted.

If photographs are helpful to show some fact or circumstance material to the case, such as the nature and location of wounds relevant to the defense of self-defense they are admissible even though witnesses may have orally described what they show. State v. Snow, 558 S.W.2d 414, 416 (Mo.App.1977). The rationale which validates photographs as evidence is that they are superior to words as a means of description. State v. Blair, 531 S.W.2d 755, 761 (Mo.App.1975).

An examination of these exhibits show that they are neither gruesome, repugnant nor shock provoking although even that would not have excluded them. State v. Snow, supra, 558 S.W.2d at 416. They could aid the jury in understanding where the wound occurred and in determining the intent to do harm. They could be helpful in determining defendant’s contention of self-defense. These exhibits might assist the jury in deciding conflicts in the evidence such as whether defendant stabbed Jack Melton from the front or rear. The trial court did not abuse its discretion in admitting the photographs.

The judgment is affirmed.

All concur.


author: DOWD, Presiding Judge.

text:
    Betty P. PRUNEAU, and William E. Pruneau, her Husband, Plaintiffs-Respondents, v. Emil SMILJANICH, Defendant-Appellant.
    No. 39289.
    Missouri Court of Appeals, Eastern District, Division Pour.
    July 24, 1979.

      Daniel J. McMichael, Fitzsimmons, Fitz-simmons, Clayton, for defendant-appellant.
    Dana Hockensmith, Richard French, Thurman, Nixon, Smith, Howald, Weber & Bowles, Hillsboro, for plaintiffs-respondents.
   DOWD, Presiding Judge.

Plaintiffs Betty and William Pruneau filed a three count petition in the Circuit Court of Jefferson County to recover damages for injuries sustained by Betty Pru-neau in an automobile collision with defendant, Emil Smiljanich. The jury returned a verdict in favor of the defendant on all three counts. In Count I of the amended petition, plaintiff Betty Pruneau sought $10,000 as damages for injuries she sustained as a result of defendant’s alleged negligence. In Count II, plaintiff William E. Pruneau sought $2,000 as damages for loss of his wife’s consortium. In Count III, plaintiff William E. Pruneau sought $1,000 for property damages sustained by his vehicle. Plaintiffs filed a motion for new trial which was sustained by the court without specifying the grounds. Defendant appeals.

We must note at the outset that when a trial court orders a new trial without pronouncing the reasons therefore, the order is presumptively erroneous. Haas Baking Company v. Luzio, 512 S.W.2d 428 (Mo.App.1974). In such a case, the party to whom the new trial has been granted bears the burden of proving that the grant of a new trial was predicated on grounds presented in the motion for new trial. Rule 84.05(b); State ex rel. State Hwy. Commission v. Gravois Farmers Club, 483 S.W.2d 786 (Mo.App.1972); Arstein v. Pallo, 388 S.W.2d 877 (Mo.banc 1965).

Plaintiffs-Respondents contend that the court’s grant of a new trial was not erroneous because the court erred in six respects in giving defendant’s contributory negligence instruction to the jury. Instruction # 11, challenged in the plaintiffs’ motion for a new trial, reads as follows:

“Your verdict must be for defendant on the claim of Betty P. Pruneau if you believe:
“First, plaintiff Betty P. Pruneau’s automobile was stopped partially blocking the road and plaintiff Betty P. Pruneau failed to warn eastbound traffic of her car obstructing the road; and
“Second, plaintiff Betty P. Pruneau was thereby negligent; and
“Third, such negligence of plaintiff Betty P. Pruneau directly caused or directly contributed to cause any damage plaintiff Betty P. Pruneau may have sustained.”

The record discloses that the accident occurred on Highway A in Jefferson County, Missouri. On the date of the collision, November 26, 1975 about 9 a. m., it was snowing and the two lane highway was snow covered. Mrs. Pruneau was driving east, accompanied by four of her fourteen children. The terrain of the stretch of highway at the scene of the accident was described as curving to the left forming the ascent to a small knoll, and then curving to the right forming the descent from the knoll.

While descending from the crest of the knoll, Mrs. Pruneau swerved to the right to avoid an oncoming car. Mrs. Pruneau skidded off the road, and part of her car landed in a ditch which was adjacent to the highway. When it came to a stop, the car was positioned with the front right passenger wheel in the ditch, the front left driver’s wheel at the side of the highway, and the back portion of the car on the highway. The evidence regarding the degree to which the car protruded onto the highway is in dispute. Plaintiffs’ evidence indicates that a small portion of the back end of the car encroached on the eastbound lane of Highway A. The defendant and his witnesses however, assert that 6-10 feet of plaintiff’s car extended into the eastbound lane.

A young unidentified man attempted to assist Mrs. Pruneau in removing her car from the ditch. Although the attempt was unsuccessful, a school bus travelling in the eastbound lane negotiated around Mrs. Pru-neau’s car. Five or ten minutes later, defendant reached the crest of the knoll, and viewed the plaintiff’s vehicle from approximately 50 feet away. Defendant applied his brakes, which locked, causing him to skid into the plaintiff’s car. Defense witnesses estimated that defendant was travel-ling at a speed of 5-10 m p h at the time the collision occurred.

Shortly thereafter, a third car collided with the plaintiffs’ and defendant’s vehicles, but this second collision is not a part of this lawsuit.

Two days after the accident, the parties met with a highway patrolman to discuss the collision. Plaintiffs contend that defendant admitted to having “blanked out” during the accident. Defendant contends that Mrs. Pruneau informed the officer that she had not sustained any injury as a result of the collision. Mrs. Pruneau explained that her symptoms of neck pain, headache, nausea, dizziness and blurred vision appeared approximately three or four days after the accident.

In their first point relied on the Pruneaus contend that instruction # 11 was erroneous because it hypothesized that Mrs. Pru-neau had an affirmative duty to warn eastbound travelers that her vehicle was obstructing a part of the highway.

As a general rule, a person who obstructs a roadway with his or her vehicle has a duty to remove it and warn other drivers of the possible hazard. Cases in which this rule has been addressed however, have also recognized the caveat that there are situations in which both these duties cannot be performed simultaneously. Eastman v. Brackman, 347 S.W.2d 126, 129 (Mo. 1961). We think this is such a case. Mrs. Pruneau was travelling with four children: a daughter, age 16; a daughter, age 14; a son, age 5; and a son, age 3. The Pruneau auto was in the ditch 5 to 10 minutes prior to the collision. During this time Mrs. Pru-neau and her eldest daughter were actively attempting to extricate the auto from the ditch. We cannot say that Mrs. Pruneau’s action in staying with the car, and not sending a child up the road on an overcast day to warn oncoming traffic, amounted to a breach of duty. Under the facts here we believe the evidence failed to establish a submissible case of contributory negligence as to a duty to warn by plaintiff. Accordingly, we hold it was error to give such an instruction.

The Eastman case supports plaintiff’s position. In Eastman, supra, a case with a fact situation similar in many respects to the ease here, plaintiffs sole theory submitted to the jury was that defendant was negligent in failing to go to the crest of the hill to warn approaching eastbound automobiles of the danger created by her automobile having slid into the ditch and partially blocking the eastbound lane of traffic. The court rejected defendant’s duty to warn and using language applicable here, stated at p. 130:

“If the defendant Brackman had gone immediately to the top of the hill, had attempted to warn the eastbound motorist (by waiving her arms as the plaintiff says she should have), but had failed to stop him, and the plaintiff had been similarly injured, the plaintiff might then have as reasonably contended that the defendant should have first undertaken to move her car . .

The same reasoning applies here.

We believe the instruction was erroneous and the trial court properly granted plaintiffs’ motion for a new trial. Point I is ruled in favor of plaintiffs-respondents.

Because the case is remanded for a new trial it will not be necessary to discuss a number of other attacks on instruction # 11.

Next, defendant-appellant contends that the grant of a new trial as to all three counts of the petition was erroneous because instruction # 11 did not address Counts II and III. We disagree. Count II concerned William Pruneau’s derivative claim of loss of consortium. A determination that Betty Pruneau was contributorily negligent would bar William Pruneau’s recovery on his loss of consortium count. Elmore v. Illinois Terminal Railroad Company, 301 S.W.2d 44[8] (Mo.App.1957). As the instruction was erroneously given, we believe the instruction tainted the jury’s determination of William’s derivative claim.

The errors in instruction # 11 also had an adverse effect on the jury’s consideration of Count III wherein the owner of the vehicle, William E. Pruneau sought damages for $1,000. This challenged instruction characterized Betty Pruneau as the owner of the automobile. This description is in conflict with the evidence and pleadings, and may have misled the jury in its consideration of the property damage issued.

Defendant-appellant also contends that the plaintiffs failed to make a submis-sible case on the question of damages, due to the absence of medical testimony establishing the causal relationship between the accident and the injuries sustained. Our standard of review of such an issue is one in which we consider all the evidence favorable to the plaintiffs, drawing all reasonable inferences therefrom in plaintiffs’ favor. Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918 (Mo.1959).

Plaintiff’s evidence revealed that her symptoms of headache, back pain, visual impairment and nausea appeared three or four days after the accident. Soon thereafter, she consulted a physician, Dr. Deles, and was hospitalized for tests. Her hospital records contained the notation that her symptoms were related to post concussion headaches.

The element of causation may be established in the absence of medical testimony, if the injury suffered may be categorized as one of “sudden onset”. This latter term has been interpreted as embracing those “cases where the physical disability develops coincidentally with the negligent act, such as broken bones . . ., immediate, continuing back pain . . ., or an obvious wound”. De Moulin v. Kissir, 446 S.W.2d 162, 165 (Mo.App.1969). This latter case, relied upon by the defendant-appellant, was one in which the complaining party was denied recovery because she could not prove the sudden onset of her injuries following the defendant’s alleged negligent act. The court held that the causation issue therein was not susceptible to the treatment accorded “sudden onset” cases because the plaintiff had waited seventeen months before seeking medical attention for her injury. This is not so extreme a case. Mrs. Pruneau began to experience pain within three or four days of the accident. There was no evidence that this pain stemmed from a pre-existing condition or intervening cause. The combination of all these factors indicate that the injuries sustained by Mrs. Pruneau are more aligned with those found in “sudden onset” cases rather than those which are the apparent product of a gradual chronic disorder. Parrot v. Kisco Boiler & Engineering Company, 332 S.W.2d 41, 50 (Mo.App.1960). Accordingly, we rule this point against defendant-appellant.

Judgment affirmed.

CRIST and SATZ, JJ., concur.


text:
    Patricia J. BAKER and Michael A. Baker, Plaintiffs-Appellants, v. Norma BRINKER, Executrix of the Estate of Walter Brinker, Defendant-Respondent.
    No. 40328.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 24, 1979.
    LeRoy Crouther, Jr., St. Louis, for plaintiffs-appellants.

      Donald Brown, St. Louis, for defendant-respondent.
   DOWD, Presiding Judge.

This case was an action for damages arising from personal injuries allegedly suffered by plaintiff when her automobile collided with a pickup truck driven by defendant’s decedent, Walter Brinker. Trial to a jury resulted in verdict and judgment in favor of defendant. Plaintiff Patricia Baker appeals, alleging two instructional errors. Judgment is reversed and cause remanded for new trial.

Plaintiffs’ petition alleged that on December 10, 1970, while Patricia was operating an automobile northwardly on New Halls Ferry Road at its intersection with Parker Road, Walter Brinker negligently failed to keep a careful lookout, failed to have his vehicle under control, operated his vehicle at an excessive speed and failed to stop, slacken his speed, turn or swerve to avoid collision, thereby causing the collision and her injuries. Mr. Brinker was driving westward on Parker Road, which was controlled by a stop sign. He died prior to trial, but his death was not a result of the collision. The executrix of his estate was substituted as party defendant.

At trial defendant invoked the Dead Man’s- Statute, Sec. 491.010 RSMo 1969, thereby preventing plaintiff from testifying to the circumstances surrounding the collision. However, she did testify that on the day of the accident she was returning home from classes at the University of Missouri at St. Louis. She was driving her parents’ car, which was in excellent condition, and she was familiar with the operation of the vehicle. She had driven two or three miles on New Halls Ferry Road before reaching its intersection with Parker Road, where the collision occurred. Upon impact plaintiff stated her head hit the windshield, her right arm hit the steering wheel and her right knee hit the dashboard, damaging the ashtray. Dr. Charles B. Powell testified to the extent of plaintiff’s injuries to her knee.

An officer of the St. Louis County Police Department, responded to the radio dispatch of the accident. He testified that the accident occurred at midday, that there were no obstructions on New Halls Ferry Road or on Parker Road to obscure the vision of either driver, that the roads were dry and that the speed limit on both roads was thirty-five miles per hour. The officer took a statement from plaintiff and from Mr. Brinker. Mrs. Baker stated that she was driving north on New Halls Ferry Road when she observed Mr. Brinker’s vehicle “start again”. But, she stated it was too late to stop to avoid a collision even though she applied her brakes. Mr. Brinker’s statement was that he entered the intersection across her lane in order to make a left turn onto New Halls Ferry Road to travel south. He further stated he “pulled past the stop sign” [on Parker Road] to stop, started again before he saw plaintiff’s automobile and then collided with it. The officer testified that he determined the point of impact of the vehicles by finding the point at which the skid marks of each vehicle intersected and by finding the point where debris had been knocked loose from the vehicles. This point was in the center lane of north-bound New Halls Ferry Road near the line separating the center lane from the curb lane. Plaintiff’s automobile left fifty-four feet of skid marks; Mr. Brinker’s truck left five feet of skid marks. The front quarter panel and headlight, passenger side of plaintiff’s automobile, was damaged. The front quarter panel and headlight, driver’s side of Mr. Brinker’s truck, was damaged.

An independent witness, Barbara Hannis, testified that she was operating a vehicle northwardly on New Halls Ferry Road approximately one-half to one car length behind plaintiff’s automobile and in the curb lane. Both her automobile and that of plaintiff were traveling thirty miles per hour. She first observed Mr. Brinker’s pickup truck when it was one-half car length from the intersection. She testified that the truck failed to stop at the stop sign on Parker Road and collided with plaintiff’s automobile. She stated that plaintiff tried to stop and swerved her vehicle to avoid a collision, but it was to late to do so. When asked on cross-examination if plaintiff honked her horn, Ms. Hannis replied, “I wouldn’t recall that.”

Plaintiff’s first point on appeal is that the trial court erred in giving Instruction No. 4, defendant’s contributory negligence instruction, because there was no substantial evidence to support it. Instruction No. 4 follows:

“Your verdict must be for the defendant whether or not Walter Brinker was negligent if you believe:
First, plaintiff knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have:
sounded a warning, but plaintiff failed to do so; and
Second, plaintiff’s conduct as submitted in paragraph First, was negligent; and
Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.”
(MAI 32.01, 17.04 modified).

It is well settled that any issue submitted to the jury in an instruction must be supported by evidence from which the jury could reasonably find such issue. Gruhaia v. Lacy, 559 S.W.2d 286, 289[5] (Mo. App.1977). In considering whether or not the instruction is supported by evidence the court views the evidence and reasonable inferences therefrom in the light most favorable to the party offering the instruction. Underwood v. Crosby, 447 S.W.2d 566, 570[6] (Mo. banc 1969).

The court has read the entire transcript and finds that the sole reference to the sounding of plaintiff’s horn was presented in the cross-examination of Ms. Hannis. When asked if plaintiff honked her horn, Ms. Hannis responded, “I wouldn’t recall that.” The record shows that Ms. Hannis was asked a series of questions on cross-examination and expressed understandable difficulty in remembering the details of an accident that had occurred over seven years prior to trial. She offered testimony concerning those facts she could remember and candidly admitted a failure to recall other facts. In this context, the reasonable interpretation of Ms. Hannis’ response, “I wouldn’t recall that,” is a failure to remember whether or not plaintiff sounded her horn. Any reply which is neither negative or positive, such as the reply in this case indicating a lack of memory, has no probative value. See, Globe Automatic Sprinkler Co. v. Laclede Packing Co., 93 S.W.2d 1053, 1056[1] (Mo.App.1936) where two witnesses testified that they did not remember or did not recall the information and the court held that to “accord probative force to such evidence as this would be to invite the jury to indulge in the wildest sort of speculation.” Accord, Haire v. Stagner, 356 S.W.2d 305, 311 (Mo.App.1962) which goes farther in stating that disclaimers of recollection are no substitute for evidence; Little v. Manufacturers Ry. Co., 123 S.W.2d 220, 222 (Mo.App.1939); Inman's Adm’x v. United Rys. Co. of St. Louis, 157 Mo.App. 171, 137 S.W. 3, 4[1] (1911). Since the record before us reveals no evidence of plaintiff’s failure to sound a horn, other than Ms. Hannis’ reply indicating a lack of recollection, we find that there was no evidence to support the submission of Instruction No. 4, the contributory negligence instruction, and that it was erroneously submitted.

Though the first point is dispositive, the court will also address plaintiff’s contention that her tendered Instruction “A” was erroneously refused, as this instruction may be tendered on re-trial. We find no error in the court’s refusal to submit this instruction.

Instruction “A” followed MAI 31.07 directing a verdict for plaintiff on the issue of liability. The instruction states:

“Under the law, the defendant is liable to plaintiff for damages in this case. Therefore, you must find the issues in favor of plaintiff and award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe she sustained and is reasonably certain to sustain in the future as the direct result of the occurrence mentioned in the evidence.”

The Notes on Use for MAI 31.07 caution that the instruction should be given “[only] in those rare cases where defendant is liable as a matter of law.” In Saupe v. Kertz, 523 S.W.2d 826, 829[2] (Mo.1975) the court stated that a directed verdict on the issue of liability is proper only where defendant in his pleadings or in open court admits or establishes plaintiff’s claim. Here, defendant’s pleadings deny liability. Opening statements and closing arguments were omitted from the transcript, but there is nothing else in the record indicating an admission of liability by defendant.

Plaintiff argues that all the evidence proved Mr. Brinker violated the traffic sign, and this violation proximately caused plaintiff’s injury. On the contrary, plaintiff’s own case presents a conflict of evidence on the issue of liability stemming from Mr. Brinker’s failure to stop. The officer testified that he took a statement from plaintiff and from defendant’s decedent. Mr. Brink-er’s statement was that he pulled past the stop sign, stopped, then started into the intersection where he struck plaintiff’s automobile. Plaintiff’s statement was that she saw Mr. Brinker’s truck “start again,” applied her brakes but could not stop completely before the collision. The reasonable implication of plaintiff’s words “start again” is that Mr. Brinker’s vehicle was moving, stopped, then started moving again. This evidence by plaintiff’s witness was contradicted by Ms. Hannis, also plaintiff’s witness, who testified she observed Mr. Brinker’s truck failing to stop at the stop sign on Parker Road.

In addition to this contradictory evidence on whether or not Mr. Brinker negligently failed to stop, the evidence of causation was disputed. Plaintiff stated she suffered a bruised right knee when it hit the dashboard during the collision. She sought medical attention one month after the accident, when Dr. Charles Powell prescribed aspirin. She returned for additional treatment twice in the seven years between the collision and trial, but no medication was prescribed. She testified that she injured the same knee in a different automobile accident just over one year prior to the collision here.

Dr. Charles Powell, an orthopedic surgeon, stated that plaintiff suffered palpable crepitation and chondromalacia (roughening of knee cartilage) which was caused when plaintiff’s knee struck the dashboard. Defendant’s medical expert, Dr. Belmont Thiele, stated that he examined plaintiff one year prior to trial and found no indication of chondromalacia or of any other injury to plaintiff’s right knee. Both physicians examined plaintiff again during trial recesses, and both then reiterated their earlier medical evaluations.

Where reasonable minds could draw different conclusions from the facts, the questions of negligence and causation are for the jury. Saupe v. Kertz, supra, at 830[3] and cases collected at Negligence, Key 136(9, 10, 14), Mo. Digest. From the disputed facts here, it can not be said that all reasonable minds would conclude defendant’s decedent, Mr. Brinker, was negligent and caused plaintiff’s injury. Thus, these issues were for the jury, and defendant’s decedent could not be found liable as a matter of law. Plaintiff’s Instruction “A”, directing a verdict, was properly refused.

Judgment is reversed and cause remanded for new trial.

WEIER, C. J., and SATZ, J., concur.

      . The trial court sustained defendant’s motion to dismiss Count II of the petition which presented Michael Baker’s claim for damages for loss of consortium. Further references in this opinion to plaintiff will be solely to Patricia Baker.

      . Plaintiff visited Dr. Powell two years after the accident, and again six years after it. Trial commenced seven years after the accident.


author: REINHARD, Presiding Judge.

text:
    Johnnie Ray TAYLOR, Appellant, v. STATE of Missouri, Respondent.
    No. 40265.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 24, 1979.
    John J. Allan, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Richard Engel, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant appeals from denial of his Rule 27.26 motion following an evidentiary hearing. Movant was convicted by a jury of the charge of Assault with Intent to Maim with Malice and was sentenced by the court under the Second Offender Act to serve a term of ten year's in the Department of Corrections. Defendant, prior to sentencing, withdrew his motion for new trial and waived his right to appeal.

On appeal from denial of his 27.26 motion movant contends that the court erred in failing to vacate sentence because of what he alleges to have been ineffective assistance of counsel. In his only point on appeal he claims that the evidence showed that his attorney failed to “interview a vital witness, the name and address of whom he had in his possession. That the defense counsel overlooked or inadequately investigated or did not subpoena the documents and records that would have strongly suggested that the defendant and the co-defendant were not together at the time of the alleged incident.”

On appeal, the ruling of the trial court shall be sustained unless the findings, conclusions and judgment are clearly erroneous. Haynes v. State, 534 S.W.2d 552, 554-555 (Mo.App.1976).

At trial, the movant’s defense was that of alibi. His 16 year old girlfriend Pamela Elder testified that she, defendant’s good friend Louis Barnes, defendant’s brother Danny Taylor, and others were with defendant at a tavern in East St. Louis, Illinois at the time the assault allegedly was occurring in St. Louis, Missouri. The defendant did not testify in his own defense and no other alibi witnesses testified.

It appears from the record that movant is complaining because his attorney failed to subpoena Barnes and his brother. At the 27.26 hearing movant testified that he had told his attorney of these witnesses. Taylor stated that the morning of trial, his attorney indicated that the witnesses were not present, and that they had not been subpoenaed. He said a continuance was not requested because he was told by his attorney that the Judge was upset over the number of continuances already granted. Movant admitted that the witnesses’ testimony would have been the same as that of Ms. Elder. Barnes testified at the hearing that he and Ms. Elder had gone to the office of the defense attorney, and that Barnes had given counsel his address since he could not be reached by telephone. Ms. Elder testified that the attorney interviewed both herself and Barnes, and that she gave the attorney her telephone number. Further, Ms. Elder stated that defense counsel informed her by phone of the trial date and asked that she contact Barnes.

Defendant’s attorney testified that he specialized in criminal law and that he had served as a prosecutor. As prosecutor and defense attorney he had been involved in “hundreds” of criminal cases. Counsel noted that movant had initially arranged for Ms. Elder and Barnes to meet with him. According to the attorney, he discussed with them “what they knew about the incident” that “Taylor was charged with.” He stated that he did not feel a need to subpoena them: “They were friendly to the defendant and voluntarily came in to talk to me in his behalf to establish an alibi, and I figured that it wasn’t necessary to subpoena a friendly witness, just to call them up and tell them we need you in court and come in.” Counsel said he called Ms. Elder to appear at trial and asked how he could reach Barnes. He said she indicated she didn’t know where he was and, at counsel’s request, said she would get hold of him. He contacted Ms. Elder again; she said Barnes was gone and his whereabouts were unknown. Regarding defendant’s brother, it was counsel’s understanding that he was either in the service or driving a cross-country truck and was, therefore, unavailable to testify. Late in the evening of the day defense counsel rested his case, he received a call from defendant’s brother stating that he wanted to testify. Counsel told him to be at the courtroom the next morning. At that time, counsel asked the court to allow him to reopen the case but the state objected claiming that the testimony was cumulative. The court sustained the objection.

Movant claims ineffectiveness of counsel not only by the alleged failure to subpoena these witnesses, but also because the logbook kept at the halfway house where he and his co-defendant were staying should have been introduced into evidence. His attorney stated that he did not use the logbook as evidence because it would have shown that movant had been away from the house the entire night the crime took place. This record, in counsel’s opinion, would have been harmful, not helpful, to Taylor’s case.

At the conclusion of the evidentiary hearing, the trial court found that movant’s attorney “adequately, effectively and competently represented movant.” The credibility of the witnesses was a matter for the trial court at the 27.26 evidentiary hearing, Baysinger v. State, 552 S.W.2d 359 (Mo. App.1977). We cannot say that the trial court was “clearly erroneous” in finding counsel not ineffective. The matter of introducing the logbook into evidence was clearly a trial tactic. Milentz v. State, 545 S.W.2d 688 (Mo.App.1976). Regarding the witnesses, counsel had been told that mov-ant’s brother was unavailable. When he did appear, counsel attempted to re-open the case. Movant’s allegation that counsel failed to interview Barnes is refuted by all the witnesses. Counsel made an effort to secure the presence of Barnes but was told his whereabouts were unknown.

Furthermore, we are not ready to say that counsel is ineffective for failure to subpoena family members and close friends who appear to him to be friendly and desirous of testifying in behalf of a defendant.

Moreover, at the time movant withdrew his motion for new trial and waived his appeal, he knew he had been convicted without the testimony of either of these witnesses. We believe this withdrawal constituted a waiver of any claim he had for ineffective assistance of counsel as to matters he had knowledge of at that time.

Affirmed.

GUNN and CRIST, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Norman D. BUCKNER, Appellant.
    No. 40488.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 24, 1979.
    Robert C. Babione, Public Defender, Michael P. David, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Booker T. Shaw, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant was found guilty by a jury of stealing property of a value of at least fifty dollars. Subsequently he was sentenced by the court under the Second Offender Act to a term of six years in the Department of Corrections. He appeals.

Norman D. Buckner was apprehended in Famous-Barr on November 18, 1977. Two witnesses at trial testified that Buckner proceeded to the counter of men’s furnishings and put some gloves in a partially unwrapped jacket. As Buckner started to leave, he was apprehended by the two witnesses. Thirteen pairs of gloves were found in his jacket.

Defendant raises two points on appeal; both are without merit.

He contends that proof of a prior conviction was insufficient and, therefore, that the Second Offender Act should not have been applied. Defendant was charged in this case as “Norman D. Buckner”, also known as “Norman Dennis Buckner”. He was charged under the Second Offender Act as having been convicted in the circuit court of the City of St. Louis on April 12, 1973 of the offense of carrying a concealed weapon. Further it was alleged that he had been sentenced and imprisoned. Some of the records indicated that the defendant named in the 1973 case was “Norman Dale Buckner”.

In order for the Second Offender Act to apply in this case the state was required to prove: (1) a prior conviction; (2) subsequent imprisonment; and (3) identity of the prior offender with the present defendant. § 556.280 RSMo 1969. Defendant does not challenge proof of the first two elements, but contends that the evidence fell short on the issue of identity.

Here, the'court had before it the serial record which shows the identity of “Norman Dennis Buckner” with “Norman Dale Buckner”. Further, the court had testimony from the defendant which alone was sufficient to sustain the court’s conclusion that the person convicted of carrying a concealed weapon and the defendant were one and the same person. When the court took the state’s evidence on the Second Offender allegation, out of the presence of the jury, the defendant voluntarily took the stand and denied that he was ever known as “Norman Dale Buckner”. On cross-examination, he admitted that he had entered a plea of guilty in April, 1973 as “Norman Dennis Buckner” to the charge of carrying a concealed weapon. The court then entered its order concluding that the Second Offender Act was applicable. Defendant later took the stand before the jury in his defense and, among other convictions, admitted that on April 12, 1973 he had been convicted of carrying a concealed weapon. These facts and circumstances as to proof of identity as required to apply the Second Offender Act are very similar to those in State v. Larkins, 518 S.W.2d 131 (Mo.App. 1974). We find no error here.

Defendant next contends that the court erred when it sentenced him to a term of six years imprisonment because such sentence is wholly disproportionate to the severity of the offense committed. This sentence, it is claimed, constitutes cruel and unusual punishment.

The defendant was charged with stealing property of a value of at least $50. §§ 560.156, 560.161 RSMo 1969. These statutes provide for a maximum sentence of 10 years imprisonment. Our Supreme Court has said: “there can be no complaint of excessive punishment when it is within limits imposed by law.” State v. Cook, 440 S.W.2d 461, 463[1] (Mo.1969). This point also fails.

Affirmed.

GUNN and CRIST, JJ., concur.


author: BILLINGS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert LAPTAD, Defendant-Appellant.
    No. 11135.
    Missouri Court of Appeals, Southern District, En Banc.
    July 26, 1979.

      John D. Ashcroft, Atty. Gen., Richard F. Engel, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    William H. Wendt, Springfield, for defendant-appellant.
   BILLINGS, Judge.

Defendant Robert Laptad was convicted of second degree murder and duly sentenced to 30 years’ imprisonment. He assigns error in the trial court’s refusal to give three instructions he tendered, the admission of a color photograph of the victim, and the excusal for cause of certain veniremen. We affirm.

The sufficiency of the evidence to support the verdict is not questioned but a brief recital of some of the evidence is necessary in connection with two of the requested instructions,

About midnight, defendant and Forbes entered the Bob McClelland house in Joplin. McClelland and Kenneth Windle Jr., were in a bedroom talking. McClelland’s nephew, Cody, and two women were in the kitchen. Defendant and his companion were both armed with pistols. As the two men started to the bedroom, defendant stated “I am backing you.” They entered the bedroom and told McClelland to leave. Defendant was pointing a pistol into the bedroom during a period of time Forbes was yelling at Windle and noise of a “commotion” was going on in the bedroom. Defendant and Forbes departed the house momentarily and then came back into the kitchen, Forbes was cursing Windle and accusing him of “reneging” on a [drug] deal. Defendant was brandishing one or more pistols and while pointing a pistol at Windle said “Let’s go ahead and kill him.” Forbes continued to berate Windle, as defendant held one pistol on Windle and another on the McClellands. Finally, some 45 minutes to an hour after they had arrived at the house, Forbes told defendant to “Snuff him on out, . snuff him out.” Defendant put one of the pistols down and using both hands on the remaining gun, aimed the weapon at Windle for twenty to thirty seconds, and pulled the trigger. Windle, who was sitting down at the time, was struck in the chest by the fatal bullet.

There is no merit in defendant’s contention that he was entitled to an instruction on excusable homicide and the court properly refused his instruction tendering this defense. An instruction on excusable homicide due to accidental discharge of a gun need only be given if there is evidence in the case that the gun discharged by accident. State v. Williams, 545 S.W.2d 342 (Mo.App.1976). There is no evidence in the record that the gun fired by defendant was accidentally discharged. On the contrary, the facts demonstrate an intentional discharge of the gun. Defendant’s contention is based upon speculation and conjecture. He argues that because both of the McClel-lands testified they were afraid that one or both of the guns defendant was pointing and brandishing at various people in the kitchen “might go off” and that another fired bullet was found in the basement of the house sometime after the killing, this is sufficient to demonstrate the gun may have accidentally discharged. This argument overlooks the fact that there was no evidence that the gun used to kill Windle was likely to fire accidentally or was fired accidentally. The weapon was never found and defendant did not testify. Thus, there is simply no evidence to support defendant’s claim of accidental discharge of the pistol and warrant an instruction on excusable homicide.

There is another and further reason why defendant was not entitled to the requested excusable homicide instruction. Section 559.050, RSMo 1969, governs what is necessary to prove excusable homicide. This statute states:

“Homicide shall be deemed excusable when committed by accident or misfortune, in either of the following cases:
(1) In lawfully correcting a child, apprentice or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without unlawful intent; or
(2) In heat of passion, upon any sudden or sufficient provocation, or upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel and unusual manner.”

The facts in this case graphically demonstrate defendant was engaged in an unlawful act by unlawful means, and with unlawful intent, while using a dangerous weapon. His conduct, for nearly an hour, of exhibiting, brandishing and pointing pistols at various individuals in an angry and threatening manner, constituted a violation of § 564.610, RSMo 1969, a graded felony, and there was no error in the court’s refusal to instruct on accidental homicide. State v. Browning, 442 S.W.2d 55 (Mo. banc 1969); State v. Merritt, 540 S.W.2d 183 (Mo.App. 1976); State v. Smith, 539 S.W.2d 571 (Mo. App.1976).

Defendant claims a color photograph of Windle’s body was of an inflammatory and prejudicial nature and it was reversible error for the court to admit the photograph over his objection.

The admissibility of photographs of dead bodies lies within the sound discretion of the trial court. State v. Robinson, 328 S.W.2d 667 (Mo.1959). “Such evidence is properly admissible when it sheds light on any material matter in issue. Thus, when it tends to connect the accused with the crime, prove the identity of the deceased, show the position of the body, show the location and nature of the wound, or tends to corroborate the testimony of a witness or refute a defense it is admissible unless the prejudicial effect is so great as to outweigh any possible probative value.” State v. Dodson, 556 S.W.2d 938 (Mo.App.1977).

The photograph of which defendant complains has not been filed with the transcript on appeal and we have no basis on which to judge the propriety of its admission. The burden is on defendant under the rules governing appeals to file a complete transcript for appellate review, including all exhibits whose admission is alleged to be error. Defendant having failed to file the photograph as a part of the transcript, we may not consider his complaint regarding this exhibit. State v. Dodson, supra.

Defendant’s next point alleges error by the trial court in refusing to give his tendered instruction submitting manslaughter by culpable negligence. This assignment is not preserved for appellate review because defendant’s motion for new trial failed to specify and set forth facts in evidence which would have warranted such an instruction. His motion for new trial stated: “The Court erred in refusing to give Defendant’s tendered instruction B for the reason that there was sufficient evidence to support an Instruction for manslaughter by culpable negligence.”

In State v. Cheek, 413 S.W.2d 231 (Mo. 1967), the defendant was convicted of murder and contended on appeal the court should have instructed on manslaughter by culpable negligence. Cheek’s motion for new trial averred the court erred in refusing to instruct on manslaughter; that such an instruction was requested and refused and that the facts in the case warranted such an instruction. Our Supreme Court ruled this assignment “wholly insufficient” and failed to comply with Rule 27.20, V.A.M.R., because “it does not set forth in detail and with particularity the specific grounds or cause therefor, in that it does not indicate in any manner what facts in evidence were considered sufficient to warrant such an instruction.” (our emphasis) The court held that the assignment in Cheek’s motion for new trial did not preserve anything for review. In the more recent case of State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976), the defendant’s motion for new trial alleged “It was error for the Court to deny defendant’s request for Instruction A because it was warranted by the evidence.” After extensive quotation from Cheek the court said: “In the case before us there was no indication whatever in the assignments as to the facts in evidence that would have supported the giving of an excusable homicide instruction. Therefore, in accordance with the cases heretofore cited we must rule that these assignments failed to comply with Rule 27.-20(a) and hence did not preserve the alleged error for appellate review.”

We hold defendant’s contention concerning his requested instruction on manslaughter by culpable negligence is not preserved for review because his motion for new trial fails to indicate in any manner what facts in evidence were considered sufficient to warrant such an instruction.

We have reviewed defendant’s remaining two points and find them to be without, merit. We do not find an abuse of discretion by the trial court in excusing for cause certain veniremen. State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977); Ginnings v. State, 506 S.W.2d 422 (Mo.1974); State v. Pride, 567 S.W.2d 426 (Mo.App. 1978). The trial court gave MAI-CR 2.20 relating to the presumption of innocence and burden of proof. It was not error to refuse defendant’s requested cautionary instruction “D” that the weight of the evidence bears no relationship to the number of witnesses called by each side. The Notes on Use following MAI-CR 2.20 forbid elaboration of the required instruction. All instructions are to be considered together. State v. Blockton, 526 S.W.2d 915 (Mo.App. 1975). The jury was instructed no presumption of guilt or adverse inference arose because of defendant exercising his right not to testify. Trial judges are vested with broad discretion in the giving or refusing of cautionary instructions. State v. Lang, 515 S.W.2d 507 (Mo.1974). We find no abuse of discretion and no error in refusing instruction “D”.

The judgment is affirmed.

All concur, except TITUS, J., recuses and PREWITT, J., not participating because not a member of the court when case was submitted.


author: BILLINGS, Presiding Judge. MAUS, Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Stewart Lorne WELLS, Defendant-Appellant.
    No. 11076.
    Missouri Court of Appeals, Southern District, Division Two.
    July 27, 1979.
    Motion for Rehearing and Transfer Denied Aug. 17, 1979.
    Application to Transfer Denied Sept. 11, 1979.
    John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Mary A. Dickerson, David Donnelly, Don-nelly, Baldwin & Wilhite, Lebanon, for defendant-appellant.
   BILLINGS, Presiding Judge.

Defendant Stewart Lome Wells was convicted of two counts of stealing property of a value of more than $50 and a third count of tampering with a motor vehicle. The jury fixed defendant’s punishment on the tampering charge at two years’ imprisonment but could not agree on punishment for the stealing charges. The trial court imposed concurrent five year sentences on the stealing counts and ordered the two year sentence for tampering to be served consecutive to the stealing sentences. We affirm as to the stealing counts but reverse and remand the tampering count.

The state’s information, after first alleging two counts for stealing citizens band radios, each of a value of more than $50, then purported to allege a violation of § 560.175, RSMo 1969, tampering with a motor vehicle statute. Although the vehicle is described, by year, make, model, and license number, ownership thereof was not alleged. The statute provides: “No person shall . . . tamper with a motor vehicle . . . without the permission of the owner thereof.”

In State v. Cantrell, 408 S.W.2d 647 (Mo. 1966), the defendant was convicted of larceny on an information which did not allege ownership of the purloined goods. In reversing and remanding our Supreme Court pointed out that the purpose of alleging ownership is to show that title or ownership is not in the accused and to give notice to the defendant of the particular offense for which he is being charged and to bar subsequent prosecution of him for the same offense.

We believe the principle of Cantrell is controlling here because the lack of permission by the owner of the particular motor vehicle is a constituent element of the offense prohibited by § 560.175, RSMo 1969. Cantrell follows the general rule that the ownership of property involved in the commission of an offense must be directly alleged where such ownership is an essential element of the offense charged. 41 Am. Jur.2d, Indictments and Informations, § 146; 42 C.J.S. Indictments and Informa-tions § 143. “Failure to allege a constituent element of an offense affects the substantial rights of the defendant, and such a failure is not cured by the statute of jeo-fails, § 545.030, V.A.M.S. and Criminal Rule 24.11, V.A.M.R.” Cantrell at 650.

The state argues we should hold the defendant’s challenge to the sufficiency of the information was waived by his failure to seek a bill of particulars under Rule 24.03, V.A.M.R. We summarily reject this contention because the sufficiency of the information is a matter for our review under Rule 28.02, V.A.M.R., whether raised below or not. The failure to include the name of the owner of the motor vehicle rendered the tampering count fatally defective. Accordingly, the judgment entered on count three against defendant for tampering with a motor vehicle is reversed and the cause remanded.

We turn now to those points of defendant which are directed to his convictions for stealing. Initially, we note that when this case was submitted and an opinion had been adopted, the transcript filed heroin did not show a timely motion for new trial had been filed. Thereafter, wo were advised by defendant’s timely motion that an extension of time to file a motion for new trial had in fact been granted by the trial court, as shown by a copy of the court’s docket entry accompanying the motion. We sustained defendant’s motion to supplement the transcript to reflect the extension and withdrew our earlier opinion. We mention this as a caveat to those who approve transcripts, apparently without reading the same.

We have examined defendant’s appellate points in light of the motion for new trial and find ourselves in much the same situation as if no timely motion for new trial had been filed. Defendant’s first point concerns the giving of an instruction out of order, contrary to MAI--CR notes on use, and another instruction directed to the tampering charge. At trial defendant made a general objection to all instructions. His motion for new trial attacks the instructions given in this case in two separate averments as follows: “Because the instructions of the State are in error” and “Because the instructions of the State are misleading.” The general allegations in defendant’s motion for new trial pertaining to alleged instructional error fail to comply with Rule 27.20(a) in that they are not specific and, consequently, preserve nothing for appellate review. State v. Jones, 564 S.W.2d 930 (Mo.App.1978). What we have earlier held with respect to the tampering count eliminates defendant’s complaint regarding that instruction, and we decline plain error review of his remaining complaint because there was no misdirection or failure to instruct the jury on the law of the case so as to cause manifest injustice. State v. Johnson, 546 S.W.2d 725 (Mo.App. 1977).

Defendant attacks the admission in evidence of a police report signed by state’s witness Blaker on the grounds it was hearsay and should not have been used to prove the guilt of the defendant on the two stealing counts. Contrary to defendant’s assertion, Blaker did identify the signature on the report to be his. Additionally, the officer taking the statement from Blaker testified he witnessed Blaker sign the same. Defendant’s objection to the use of and admission in evidence of the report was lack of identification. His motion for new trial alleges: “Because [the] Court erred in admitting incompetent, irrelevant and immaterial evidence offered by the State and over objection of the defendant” and “Because of surprise on the part of the State in submitting and entering into evidence a confession of a witness, which the witness denied signing.”

Here again we are confronted with defendant’s noncompliance with Rule 27.20(a), V.A.M.R., and his complaints regarding the report are not preserved for our review. State v. Russell, 324 S.W.2d 727 (Mo.1959); State v. Whitaker, 312 S.W.2d 34 (Mo.1958). Furthermore, defendant’s trial objection was not directed at the hearsay nature of the report but to its identification. “The court will not review this assignment of error on hearsay grounds because the assignment raises an objection not made at the time the testimony was given.” State v. Atkins, 494 S.W.2d 317, 319 (Mo.1973). An assignment of error on appeal must be based on the same theory that the objection at trial was made and cannot be broadened or enlarged on appeal. State v. Healey, 562 S.W.2d 118 (Mo.App. 1978); State v. Blockton, 526 S.W.2d 915 (Mo.App.1975). We decline defendant’s present counsel invitation to review this assignment as plain error because we do not find manifest injustice nor miscarriage of justice has resulted.

We have reviewed defendant’s remaining assignments. They were either not preserved for our review in his motion for new trial, are without merit, or pertain to the tampering charge.

The judgment entered on counts 1 and 2 for stealing are affirmed; judgment entered on count 3 reversed and remanded.

HOGAN, J., and KELSO, Special Judge, concur.

MAUS, J., concurs in part and dissents in part and files opinion.

MAUS, Judge,

concurring in part and dissenting in part.

I concur as to the disposition of the third count. I must dissent in regard to the two counts of stealing. It is seldom that unob-jected to or improperly objected to hearsay should be found prejudicial under the plain error rule, V.A.M.R. Crim. Rule 27.20(c). However, in this case the hearsay, only inferentially corroborated, provided an essential link in the evidence leading to defendant’s convictions on those two counts. Under that rule, I would reverse and remand those two counts. State v. Granberry, 491 S.W.2d 528 (Mo. banc 1973); State v. Douglas, 573 S.W.2d 79 (Mo.App.1978).

      . Defendant was represented by different counsel at trial and that attorney approved the transcript.

      . Blaker, according to his statement in the report, was with defendant when the latter stole two CB radios. At trial Blaker was called as a state’s witness. When at trial he denied any knowledge of defendant stealing the radios he was declared a hostile witness and the report he had signed was used to impeach him. Officers testified, without objection, that Blaker directed them to the motel unit where he and defendant had been staying and where the officers found three CB radios, two of which were identified by their owners at trial as having been stolen on the night in question, behind the motel unit. Defendant admitted he and Blaker had earlier stopped at another motel and a truck stop where two of the radios were stolen.