author: PER CURIAM.

text:
    Ex parte David RAMSEY et al., Petitioners, v. Derek GRAYLAND, etc., Respondent.
    No. 39595.
    Missouri Court of Appeals, St. Louis District, Division 2.
    May 2, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.

      Ruppert & Schlueter, Francis L. Ruppert, Joseph Westhus, Clayton, for appellants.
    Andrew Minardi, Assoc. County Counsel- or, Clayton, Bryan A. Roche, Hussmann Refrigerator, Bridgeton, for respondent.
   PER CURIAM.

Petitioners, David Thomas Ramsey and Janet Elise Stone, contest their convictions for criminal contempt in this original habe-as corpus proceeding. The convictions are based on the findings of Circuit Judge Robert Lee Campbell that petitioners willfully and deliberately violated a valid restraining order issued by him. Ramsey was sentenced to five months imprisonment; Stone, sixty days.

The conduct for which petitioners were found to be in violation of the restraining order occurred in conjunction with a strike by members of Local 13889, United Steelworkers of America, AFL-CIO, against Hussmann Refrigerator Co. Neither petitioner is a Hussmann employee or a member of the union local, but both are participants in a local effort to organize a so-called National Workers Organization.

On May 4, 1977, the circuit court issued its original restraining order in response to a Petition for Injunction filed that date by Hussmann. The court order limited to two (2) the number of persons allowed to picket at each gate leading to the Hussmann plant, and ordered defendants to desist and refrain from:

1. . [Blocking or attempting to block in any manner any of the driveways to said Hussmann Refrigerator Co.’s property or from blocking or attempting to block in any manner egress and ingress to said property.
2. Seeking to coerce or intimidate by physical acts or words, plaintiff’s employees, customers and persons making deliveries or pickups to or from said property from entering or leaving said property and transacting business with Hussmann Refrigerator Co.
3. Damaging in any way any property of Hussmann Refrigerator Co. or property of any person lawfully present at or near Hussmann Refrigerator Co.’s said property.

On May 24,1977, the temporary restraining order was continued for sixty days by consent of the attorneys for defendants. On June 5,1977, Judge Campbell visited the Hussmann premises and personally observed numerous violations of the restraining order. A Motion to Expand Temporary Restraining Order was filed on June 6, alleging that on numerous occasions, several dozen individuals had continued to picket in violation of the order, and further alleging numerous acts of violence on June 6, 1977. An amended order was issued that date. In addition to the terms of the previous order, the amended order instructed “defendants and all others ” (emphasis added) to desist and refrain from:

4. Assembling, grouping, loitering, standing, congregating, convening, gathering, mustering, meeting, massing, thronging, crowding, rallying or collecting of any person or persons within one-hundred (100) yards of plaintiff’s chain link metal fence which extends along the boundaries of plaintiff’s property adjacent to Taussig Road, Enterprise Way and St. Charles Rock Road, in the City of Bridgeton, St. Louis County, Missouri.

The amended order was personally read by the Judge to a group assembled near the Hussmann premises on June 6. On July 25, 1977, the amended restraining order was continued on the court’s own motion to September 8, 1977. On July 25, the court also issued a temporary restraining order against Hussmann, its agents and employees, ordering them to refrain from driving through gates where lawful pickets were located and to refrain from coercing or intimidating lawfully-present picketers.

The events which formed the basis of the contempt prosecutions occurred in the early morning of August 1,1977. 300-400 people gathered within 100 yards of Hussmann’s chain link fence in what appears to have been a loosely organized demonstration against the company and its non-union employees. Evidence of petitioners’ involvement in the demonstration was adduced from their own testimony as well as that of several police officers and company employees. Ramsey carried a bullhorn, supplied by Stone, and shouted instructions to the crowd to gather in a circle. One police officer testified: “He was chanting. He was talking to the group trying to get the group to stay there to march around in a circle. [He shouted:] ‘Scabs go home . [W]e will fight the courts, we will fight Hussmann, we will fight the police.’ ”

Lieutenant Eugene Hoff of the Bridge-ton Police Department arrived between 6:30 and 6:45 a. m., parked his car inside gate # 1 on the Hussmann lot and faced the crowd assembled outside the fence on Taussig Road. On two or three occasions, he read the amended restraining order over the public address system attached to his car and ordered the crowd to disperse. Ramsey and Stone both testified that the noise from the crowd prevented their hearing Lieutenant Hoff, although they both heard amplified sounds from the direction of the Hussmann plant and Stone admitted hearing the words, “You are in violation

Officer John F. Julian of the Missouri Highway Patrol and Officer William Hencken of the St. Louis County Police both testified the assembly was very loud, and at times unruly. Several rocks and bottles were thrown. The officers stood within 10-20 feet of petitioner Ramsey and observed him, bullhorn in hand, shouting instructions to the crowd and chanting, “Scabs go home, scabs go home.” Officer Hencken also observed petitioner Stone standing approximately five feet from Ramsey. Both witnesses, though standing in close proximity to the crowd and the petitioners, heard the court order as it was being read over the loudspeaker. Petitioners continued their activities and remained within the 100 yard restricted area after the amended order had been read and they had been warned that they were in violation of the court order and would be arrested if they did not disperse.

Petitioners and other demonstrators were arrested, taken to Bridgeton Police Headquarters, and released the same day. Upon their release, each was given a small piece of paper which indicated they were to appear before Judge Campbell on August 8, 1977. However, on August 4, 1977, in response to a Motion to Cite for Contempt, a Show Cause Order was issued compelling their appearance in the Circuit Court at 10:30 a. m. on August 15, 1977. The record indicates Ramsey was served on either the 5th or 6th of August and Stone was served on either the 8th or 10th. Trial of petitioners began at 4:15 p. m. on August 15, ran through the 16th and was completed at 4:45 p. m. on August 17.

Petitioners challenge their conviction on numerous grounds, but before reaching these contentions, we think it is appropriate to review the fundamental precepts which underlie the law of contempt. Constitutional courts of common law jurisdiction have both statutory and inherent power to punish persons guilty of willful disobedience of their lawful orders. Section 476.110, RSMo. 1969; Osborne v. Purdome, 244 S.W.2d 1005 (Mo. banc 1951) cert. den., 343 U.S. 953, 72 S.Ct. 1046, 96 L.Ed. 1354 (1952); State ex rel. Girard v. Percich, 557 S.W.2d 25 (Mo.App.1977); Houston v. Hennessey, 534 S.W.2d 52 (Mo.App.1975). Whereas the primary purpose of civil contempt is to protect the parties to the litigation for whose benefit an order was issued, the primary purpose of criminal contempt is to protect, preserve and vindicate the authority of our courts and the power and the dignity of the law itself. Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976); State ex rel. Girard v. Percich, supra. “If courts could not punish those who treat with insolence their lawful orders, the judicial system would be rendered ineffective and would lose the faith of the people as the preferred means of resolving their disputes. Judgments could be accepted or rejected at whim with impunity and would be essentially advisory in nature . . . .” State ex rel. Girard v. Percich, supra at 36.

Petitioners herein were convicted of indirect criminal contempt for conduct occurring outside the presence of the court. Unlike direct contempt, which may be punished summarily, one charged with indirect contempt is entitled to reasonable notice of the charges against him and to a hearing on those charges. Mechanic v. Gruensfelder, 461 S.W.2d 298 (Mo.App.1970). The criminal contempt is not, strictly speaking, a criminal proceeding, but rather is sui gener-is. Osborne v. Purdome, supra. Nonetheless, as in a criminal prosecution, the State has the burden of proving the elements of criminal contempt beyond a reasonable doubt. State ex rel. Wendt v. Journey, 492 S.W.2d 861 (Mo.App.1973). Actual knowledge of the restraining order and willful conduct in violation of its terms are the elements that must be proved. Chemical Fireproofing Corp. v. Bronska, 553 S.W.2d 710 (Mo.App.1977); Mechanic v. Gruensfelder, supra.

There is no right of appeal from a judgment of contempt, though the validity of the judgment may be challenged in a habeas corpus proceeding. Curtis v. Tozer, 374 S.W.2d 557 (Mo.App.1964). The duty of the court in such a proceeding is to review the evidence against the petitioner and to determine:

. whether that evidence supports the finding, beyond a reasonable doubt, that the petitioner acted as stated in the specifications found as to him or her. In so doing it is unnecessary to consider all the specifications found as to that petitioner. The purpose of the writ is to test the legality of the restraint. It follows that if the determination ... is supported as to even one of the several specifications contained in the judgment . then that petitioner is not illegally restrained . .. On the other hand, if not even one of the several specifications ... is sustained, beyond a reasonable doubt, by the evidence then petitioner must be discharged.

Curtis v. Tozer, supra at 581.

We turn now to the specific contentions raised in this proceeding. First, petitioners argue the judgment of contempt is void because it failed to recite the particular facts supporting the contempt order. It is a long-established rule that in contempt proceedings the facts and circumstances constituting the offense, not mere legal conclusions, must be recited in both the judgment of contempt and in the order of commitment. Ex Parte Brown, 530 S.W.2d 228, 230 (Mo. banc 1975); In Re Randolph, 474 S.W.2d 36, 39 (Mo.App.1971); § 476.140, RSMo 1969; Rule 35.01. Our review of the record indicates this requirement was met. At the close of the evidence, the court found both petitioners in contempt of court; and as to petitioner Ramsey, the court read into the record the Warrant and Order of Commitment, containing the court’s Findings of Fact, Conclusions of Law, Judgment and Sentence. The same day, the court separately issued, as to each petitioner, its Findings of Fact, Conclusions of Law, and Judgment, and a Warrant and Order of Commitment. The documents, while bearing different headings, were virtually identical inasmuch as the Warrant and Order of Commitment incorporated the court’s Findings of Fact, Conclusions of Law, and Judgment. Both the “Findings” and “Warrant” stated with requisite particularity and detail the facts and circumstances constituting the offense. Petitioners’ argument to the contrary is clearly without substance.

As further grounds for vacating the judgment, petitioners contend they were denied a fair and impartial hearing owing to the alleged bias of the trial judge. They cite the following conduct as indicative of the appearance of bias or the likelihood of bias. First, the trial judge had a thorough knowledge of the events surrounding the case prior to trial. He personally visited the Hussmann plant on June 5, 1977, and again on June 6, 1977, after issuing his amended restraining order. On the latter occasion, the judge personally read his amended order to the crowd, and while not present on the scene on August 1, he was aware before the trial in this case that the order had been read to the crowd on August 1. Second, the judge knew in advance of the trial that petitioners Ramsey and Stone were not employed at Hussmann Refrigerator Co. When the cases of petitioners and other defendants were called up on August 15, 1977, attorney for petitioners orally requested continuances for them and the other twenty-nine defendants he represented. Subsequently, he was granted a continuance as to 29 defendants, but his request was denied as to petitioners Ramsey and Stone. Petitioners’ case proceeded to trial on August 15, 1977. Thirdly, it is alleged the trial judge formed an opinion of guilt prior to the close of all the evidence, evidenced by the fact that the Warrant and Order of Commitment as to each petitioner had been substantially prepared prior to the end of the trial.

Several considerations must guide us in passing on petitioners’ claim of bias in this proceeding. As noted earlier, a criminal contempt proceeding is sui generis. While the alleged contemnor in such a proceeding is afforded many of the protections of the criminal defendant, the criminal contempt proceeding by its nature is readily distinguishable from all other criminal matters. Cf. State ex rel. Girard v. Percich, 557 S.W.2d 25 (Mo.App.1977). The contempt proceeding is ancillary to the action from which the contempt arose. Frankel v. Moskovitz, 503 S.W.2d 428 (Mo.App.1973). It follows that the judge who issues a valid restraining order may be expected to have an interest in ensuring compliance with that order and, accordingly, will have some knowledge of the circumstances and activities which form the basis of later contempt prosecutions. Yet judges are expected to faithfully and judiciously carry out the duties of their offices. State ex rel. Heimburger v. Wells, 210 Mo. 601, 109 S.W. 758, 761 (1908). Judges therefore are accorded the presumption that they will not undertake to preside in matters in which they will have a personal interest or where they cannot be impartial. Houston v. Hennessey, 534 S.W.2d 52, 55 (Mo.App.1975). In a case of indirect contempt, where the offense occurs outside the presence of the court, and arises “out of no colloquy or encounter with the judge that would tend to arouse his passion or ill will.” Osborne v. Purdome, 244 S.W.2d 1005, 1013 (Mo. banc 1951) cert. den., 343 U.S. 953, 72 S.Ct. 1046, 96 L.Ed. 1354 (1952), evidence of bias must be the more compelling. Granted,

contemptuous conduct, though short of personal attack, may still provoke a trial judge and so embroil him in controversy that he cannot “hold the balance nice, clear, and true between the State and the accused. . . . ” (Citation omitted). In making this ultimate judgment, the inquiry must be not only whether there was actual bias . . ., but also whether there was “such a likelihood of bias or an appearance of bias thht the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.” (Citation omitted).

Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 2704, 41 L.Ed.2d 897 (1974).

We find nothing in the record of this case indicating the court could not and did not give petitioners an impartial trial or to suggest the likelihood or appearance of bias. Indeed, petitioners themselves state “the judicial temperament displayed by the judge during the trial is not at issue.” The several instances of allegedly prejudicial conduct cited by petitioners are not ipso facto evidence of bias. We fail to discern possible ill effects of the judge’s knowledge of surrounding circumstances and his pretrial preparation of documents on his ability to make the essential factual determinations, to wit: whether petitioners had actual knowledge of the restraining order, and whether they willfully conducted themselves in violation of the order. The court demonstrated its readiness to enforce its lawful order and to punish those who willfully violated the order. Its efforts to stay abreast of developments in Hussmann’s labor situation were not inconsistent with the duty to effectuate its restraining order. And at such time as alleged contemnors appeared in court to answer charges of contempt, it was not improper for the court to be prepared to expeditiously dispose of the numerous cases and avoid unnecessary delay and inconvenience to the parties as well as "the court. There is no evidence of the court’s having decided the case prior to hearing all the evidence. Petitioners’ bare allegation that a competent secretary could not type the court’s Findings of Fact, Conclusions of Law, and Judgment, and the Warrant and Order of Commitment, in the time which elapsed between the close of the evidence and announcement of the court’s orders, and that these documents therefore must have been prepared in advance, is not evidence the court reached its decision prior to the close of the case, nor is it evidence of judicial impropriety. Much of the aforementioned documents was a mere recitation of the temporary restraining order. Certainly, it was not improper for the court to have in its possession the proposed orders, or to prepare tentative Findings of Fact as the trial proceeded. Petitioners’ point is without merit.

They argue next that the trial court abused its discretion in denying their request for a continuance, that they did not have a reasonable time to prepare a defense, to consult with counsel, to engage in discovery, or to interview witnesses. Petitioners were arrested on August 1, 1977. They had notice of impending court proceedings against them as early as August 1; and no later than August 10, 1977, they were served with an order to show cause on August 15, 1977, why the court should not find them in contempt. Petitioner Ramsey first contacted his attorney on the eve of the August 15 hearing, and petitioner Stone met the same attorney for the first time the morning of August 15. Their request for a continuance to August 17 was denied, and petitioners’ case proceeded to trial the afternoon of August 15.

As a result of the trial court’s refusal to grant the continuance, petitioners argue, they were denied an opportunity to prepare a defense. Their defense would have consisted of testimony that officers of the Bridgeton Police Department, on occasions prior to August 1, had permitted persons to gather within 100 yards of Huss-mann’s fence provided they did so peacefully. At trial, petitioners’ attorney did in fact attempt to elicit testimony to this effect from one witness, a union member, who was not present on August 1, but who had been permitted by police on previous occasions to remain within the 100-yard limit. The court sustained the special prosecutor’s hearsay objection to this testimony. Nevertheless, three officers of the Bridge-ton Police Department, including Chief of Police, George Krelo, and Lieutenant Eugene Hoff, testified on behalf of the prosecution. Presented the opportunity to examine these witnesses and elicit testimony in support of petitioners’ stated defense, the attorney for petitioners pursued other lines of questioning on cross-examination and did not avail himself of the opportunity which petitioners now argue was denied them.

Procedural due process in a criminal contempt proceeding “requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.”

Mechanic v. Gruensfelder, 461 S.W.2d 298, 309 (Mo.App.1970); Rule 35.01. There can be no question but that petitioners were advised of the charges against them and were provided notice of the impending hearing. The timing of the notice allowed petitioners ample time to seek the advice and representation of counsel, and their failure to do so until just prior to the time of the hearing cannot be deemed a denial of their right to counsel. At trial, numerous witnesses were called by both sides, and their combined testimony yielded a thorough description of the events of August 1 and petitioners’ activities in particular.

Whether petitioners had a reasonable opportunity to meet the charges against them by way of explanation or defense is a determination to be made in the context of the circumstances of this case.

In passing on petitioners’ request for a continuance, the trial court was forced to make its determination whether they had been allowed reasonable time to prepare for trial. The court considered the arguments of petitioners’ attorney in support of their request for a continuance and was well aware of their specific circumstances. Whether to grant a continuance is largely within the discretion of the trial court, and denial of a continuance is rarely reversible error. Blessing v. Blessing, 539 S.W.2d 699 (Mo.App.1976). When a challenge to the trial court’s denial of a continuance is made, every intendment is in favor of its ruling. State ex rel. State Highway Com’n. v. Herman, 546 S.W.2d 488 (Mo.App.1976). After reviewing the record, we cannot say the trial court abused its discretion in this case. Petitioners have failed to persuade us that their ability to meet the charges was diminished as a result of the court’s action, or that their case would have been better served had they been granted a two-day continuance. If petitioners’ attorney was placed at a disadvantage, he was disadvantaged by the inaction of petitioners and not by the action of the court. In the circumstances of this case, we think the trial judge was properly concerned with controlling the court’s docket and expediting the rather cumbersome proceedings involving some 100 alleged contemnors, and therefore acted within his discretion in ordering petitioners’ case to trial.

Finally, petitioners argue the evidence was insufficient to find, beyond a reasonable doubt, that they were guilty of criminal contempt. To repeat, the elements of criminal contempt that must be proved are actual knowledge of the restraining order and willful conduct in violation of its terms. In a habeas corpus proceeding involving a challenge to the sufficiency of-the evidence, we do not review the record de novo, but must determine whether the trial court’s findings are supported by the evidence. Ex Parte Neal, 507 S.W.2d 674 (Mo. App.1974); Mechanic v. Gruensfelder, 461 S.W.2d 298 (Mo.App.1970). In making this determination, we view the evidence in the light most favorable to the court’s judgment, giving consideration to all favorable inferences which reasonably may be drawn from the evidence. All facts and inferences to the contrary are to be disregarded. State v. Franco, 544 S.W.2d 533 (Mo. banc 1976). It is not our function to weigh the evidence where it is in conflict or to resolve issues of credibility; rather, we look to see whether there was substantial evidentiary support for the court’s findings. State ex rel. Girard v. Percich, supra. Criminal contempt may be proved by circumstantial evidence so long as the facts are consistent with one another and with the hypothesis of guilt, and are inconsistent with a reasonable hypothesis of innocence. Mechanic v. Gru-ensfelder, supra; Ex Parte Miles, 406 S.W.2d 107 (Mo.App.1966).

We conclude there was substantial evidence to support a finding that petitioners had actual knowledge of the restraining order and that they acted willfully in violation of that order. Neither petitioner denies knowledge of the existence of the restraining order. Indeed, their own testimony discloses they both knew of the restrain- . ing order. Furthermore, Ramsey admitted he helped prepare and distribute a handbill in which there appeared the statement: “[A]n injunction has been issued, forbidding the strikers from coming within 100 yards of the plant.” Petitioners appeared to take the position, however, that mere knowledge of the restraining order does not constitute an element of criminal contempt; and that it must be shown they had actual knowledge of the specific terms of the order. In this regard, petitioners assert that while they knew of the order, they believed it applied only to striking Hussmann employees and not to non-employees such as themselves. They further deny having heard on August 1, the reading of the amended restraining order, which was directed to strikers and “all others”. Petitioner Stone, though, admitted hearing amplified words to the effect, “you are in violation . ..”

Assuming petitioners are correct in their interpretation of the scienter requirement, their argument nevertheless fails. Evidence that the restraining order was read to the crowd, of which petitioners were a part, is sufficient to warrant the court’s finding that they had actual knowledge of the restraining order. It is not “necessary for the prosecution to establish that in fact the petitioners read a copy of an order received by them. Nor is it necessary to establish that they listened to an order read to a gathering of which they were a part. Such proof would be very nearly impossible. But there must be some evidence of record to put the individual petitioner into a place or position where the existence of the order was called to his attention.” Mechanic v. Gruensfelder, supra at 312. Petitioners admit their presence at and participation in the August 1 demonstration near the Hussmann premises. Moreover, several police officers assigned to the scene and standing within 20 feet of petitioners heard the order as it was read twice over the loudspeaker. The first element of the offense clearly was sustained by the evidence in the record.

With respect to the second element of contempt, willful conduct in violation of the restraining order, petitioners admit their involvement in the August 1 demonstration, but argue that their conduct was not a willful attempt to violate the order; the evidence, they claim, is insufficient to demonstrate the requisite criminal intent. Here again, petitioners seek to impose a nearly impossible burden on the prosecution. Direct evidence of criminal intent is rarely obtainable and more frequently must be inferred from the evidence of defendants’ conduct. In this case, petitioners’ participation in the demonstration is not controverted. The trial court could reasonably infer therefrom that petitioners engaged in the contemptuous activity knowingly and willfully in violation of its order.

Upon examination of the record, we find there was sufficient credible evidence for the court to find beyond a reasonable doubt that both petitioners were guilty of criminal contempt. Petitioners are not being illegally restrained, and we therefore order that our writs to both petitioners be quashed and that petitioners be remanded to the custody of respondent.

All the Judges concur.

      . The court found that both Ramsey and Stone picketed the property of Hussmann at a time when two persons were already picketing at or near the entrance; did with others block egress and ingress to the property; did seek to coerce or intimidate employees of plaintiff from entering or leaving property by shouting “go home scabs”, and did assemble, group, loiter, stand, congregate, convene, gather, muster, meet, mass, throng, crowd, rally and collect in a crowd of 300 to 400 persons within 100 yards of plaintiff’s boundaries. The court found that Stone brought a bullhorn for use in organizing a mass picket line at or near the entrance to Hussmann in support of the strike. The court found that Ramsey led the crowd in a picket line and demonstration and stated over a public address system: “We all came together, we will leave together”, and further, “We’ll fight the courts, we’ll fight Hussmann, we’ll fight the police”, and “Come on, let’s get organized.”

      . Petitioners were not named defendants. The named defendants included United Steelworkers of America, AFL-CIO, Local 13889, several of its officers and officials, members of the union bargaining committee, and several union members.

      . At each step of the proceeding, the union local and all named defendants were represented by counsel, and no order issued outside the presence of defendants’ attorneys. Indeed, the attorneys for defendants consented to the first continuance of the temporary restraining order.

      . On April 13, 1978, the United States Court of Appeals for the 8th Circuit ruled in Girard v. Goins, 575 F.2d 160. This case involved the same petitioners who sought habeas corpus relief in State ex rel. Girard v. Percich, supra. However, the principles for which we cite Gir-ard were not affected by the 8th Circuit.

      . The Findings of Fact, Conclusions of Law, and Judgment, and the Warrant and Order of Commitment, appear in a Supplemental Transcript approved by the parties and filed with this court after petitioners’ brief was filed. Petitioners did not orally argue the point before this court.

      . We do not suggest that permission of the police to remain within the 100-yard limit would have constituted a valid legal defense in this case. Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); cited by petitioners in support of this point, is readily distinguishable from the instant case.

      . We do note that the circumstances in the case of Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), are not dissimilar to those in the instant case. Ungar was served with a show cause order in a criminal contempt proceeding on Thursday afternoon around 5:00 p. m. A hearing was scheduled for the following Tuesday at 10-00 a. m., and Ungar appeared with counsel at the appointed time. Two short continuances were granted to allow another lawyer, to enter his appearance for Ungar. When the latter arrived, the case was again caU'.d and counsel requested a one-week continuance, informing the court that he was unfamiliar with the case since he had not been contacted until the previous Saturday and was presently engaged in the trial of another case. The court denied the request for continuance for the reason that Ungar had been afforded sufficient time to hire counsel who would be available at the time of the scheduled hearing.

        Thé Supreme Court stated at 590-91, 84 S.Ct. at 850:
      The five days’ notice given petitioner was not a constitutionally inadequate time to hire counsel and prepare a defense to a case in which the evidence was fresh, the witnesses and the evidence readily available, the issues limited and clear cut .
      ******
      [0]ther judges in other courts might well grant a continuance in these circumstances. But the fact that something is arguable does not make it unconstitutional. Given the deference necessarily due a state trial judge in regard to the denial or granting of continuances, we cannot say these denials denied Ungar due process of law.

      . In Curtis v. Tozer, 374 S.W.2d 557, 601 (Mo.App.1964), the court stated: “The general rule is that if a defendant has knowledge of the issuance of an injunction or restraining order, he will be bound thereby as though it had actually been served.”


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leroy Yates ORE, Defendant-Appellant.
    No. 39391.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 6, 1978.

      Charles H. Staples, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant Leroy Ore appeals from a judgment of conviction entered in the circuit court of the City of St. Louis finding him guilty of attempted rape in a court-tried case, and a sentence of forty (40) years imprisonment. A substituted information filed in lieu of the indictment charged appellant with attempted robbery (Count I), attempted rape (Count II) and one prior felony conviction. The trial court found appellant not guilty of attempted robbery.

For reversal of his conviction and sentence, appellant argues that the trial court erred: (1) in finding the testimony of the victim to be sufficiently credible to convict appellant of attempted rape; (2) in abusing its discretion by refusing to grant a new trial on the basis of newly discovered evidence; (3) by failing to commit appellant upon conviction to the custody of the Director of Mental Health; and (4) in imposing an excessive and arbitrary sentence that was grossly disproportionate to the severity of the crime and the evidence adduced in support of the conviction. For reasons hereinafter discussed, we reject each contention, and affirm the judgment.

Appellant’s first argument appears to assail the credibility of the testimony given in evidence by the prosecuting witness. Rule 26.01(b), V.A.M.R., provides, inter alia, that the finding of the court shall have the force and effect of a jury verdict. Consequently, our appellate courts review the evidence as though a verdict of guilty has been returned by a jury. Hence, if there is substantial evidence to support the findings of the trial court, its judgment should be affirmed. State v. Sanderson, 528 S.W.2d 527, 529 (Mo.App.1975); State v. Daniels, 487 S.W.2d 465, 469[4] (Mo.1972). Moreover, in criminal cases, on appellate review, we do not weigh the evidence. State v. Amerson, 518 S.W.2d 29, 31 (Mo.1975).

Applying the above appellate review standards to the case at hand, we note first that there is no issue as to appellant’s identity nor as to appellant’s presence in O’Fal-lon Park on the morning in question, because appellant admits seeing the prosecuting witness in the park and being propositioned by her. He further testified that after he resisted the victim’s advances she grabbed two or three dollars out of his shirt pocket and fled. True, there were some discrepancies in the-victim’s testimony and that of some of the state’s witnesses, but these variations went to the weight of the evidence. Thus, as the trier of the facts, the trial court had substantial evidence before it to make the finding that it did. That is, on the morning in question appellant accosted the victim, ordered her from her car at pistol point, ordered her to un-robe, opened his trousers and attempted to have intercourse with her but failed because appellant could not maintain an erection. We find this point against appellant.

Appellant’s second contention centers around an affidavit of a bar keeper that contradicted the prosecuting witnesses’ testimony that Rucker’s Lounge had a dress code. We view this affidavit of the bar keeper as newly discovered evidence. In State v. Lindley, 545 S.W.2d 669, 672 (Mo.App.1976), our court, citing State v. Harper, 473 S.W.2d 419, 421[1] (Mo.1971) stated not only that a trial court has broad discretion in determining whether to grant a new trial on the basis of newly discovered evidence but also that courts do not favor granting new trials on that ground. In Lindley, citing with approval from State v. Whitaker, 312 S.W.2d 34, 41 (Mo.1958), the court listed five allegations that must be shown if the defendant is to prevail on the basis of newly discovered evidence. For our purpose, we note two of the grounds: (1) the materiality must be so great as to probably produce a different result if a new trial was granted; and (2) the object of the testimony did not merely impeach the credibility of a witness. The affidavit, in our view, fails in both respects. First, because it was impeachment upon a collateral matter; and second, because it concerned the credibility of the testimony of the victim. So, we reject this claim of error.

A complete answer to appellant’s third argument is that nowhere in the record has appellant been declared a habitual sex offender. The substituted information only charges him with being a second offender, whose prior offense just happens to have been a sex offense. No argument was made that appellant was suffering from a mental disease or defect under § 552.010, RSMo 1969. Nor does the record disclose any evidence to show that the trial court had any reason to believe that such a mental disease or defect existed. Consequently, under the circumstances the trial court had no discretion to commit appellant to any institution other than the Department of Corrections.

Inasmuch as the punishment assessed was within the range prescribed by § 556.280(1), RSMo 1969, and appellant has shown no prejudice or corruption on the part of the judge, and our supreme court has not seen fit to follow the American Bar Association Standards, Approved 1968, for Appellate Review of Sentences, we hold the discretion of the trial court in imposing sentence is virtually absolute. See State v. Vermillion, 486 S.W.2d 437, 441 (Mo.1972) (Seiler, J., dissenting).

Accordingly, judgment is affirmed.

CLEMENS, P. J., concurs.

SMITH, J., concurs in result.


author: MeMILLIAN, Judge.

text:
    Raymond Leroy SMITH a/k/a David Smith, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39348.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 6, 1978.
    Stephen C. Benton, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for respondent.
   MeMILLIAN, Judge.

Appellant David Leroy Smith appeals from an order entered by the circuit court of the City of St. Louis denying, after an evidentiary hearing at which appellant was present and represented by counsel, his Rule 27.26 motion to vacate and set aside a judgment of conviction entered upon guilty pleas to three counts of robbery in the first degree with a dangerous and deadly weapon. The trial court denied appellant’s request for a presentence investigation. The trial court sentenced appellant to a term of fifteen (15) years imprisonment for each count, said terms to be served concurrently.

On December 11, 1975, appellant filed a motion to vacate, set aside or correct judgment pursuant to supreme court rule 27.26. The basis of appellant’s motion was that his plea of guilty had not been voluntarily entered and that he had not had the effective assistance of counsel.

On June 21, 1976, an evidentiary hearing was held on appellant’s motion before a different judge in view of the allegations made in the motion. The trial court denied the motion on May 25, 1977. The denial of appellant’s motion is the basis of this appeal.

Appellant’s first contention is that his guilty plea was not freely and voluntarily made because he was threatened by the Honorable Judge Tillman with consecutive twenty-five year sentences if he went to trial. We disagree. The transcript of the guilty plea proceeding demonstrates substantial compliance with Rule 25.04, V.A. M.R. This rule requires a guilty plea to be taken only after it has been established that appellant is voluntarily and knowingly entering his plea. Appellant was represented by counsel, acknowledged that he understood his right to trial by jury, the range of punishment, absence of threats or promises and that he was pleading guilty because he was guilty. In State v. Reese, 481 S.W.2d 497, 500 (Mo. banc 1972) the court held:

Where the trial court complies with rule 25.04 and does not accept the guilty plea until it is first determined the plea is made voluntarily and with understanding of the nature of the charge, then, of course, there can be no manifest injustice of the sort here involved, because the giving up by defendant of the right to a jury trial, the presumption of innocence, confrontation of witnesses, and privilege against compulsory self-incrimination— all concomitants of pleading guilty — is done voluntarily and knowingly.

Appellant claims that Judge Tillman made a coercive statement which influenced him to plead guilty. Yet, there was no evidence to substantiate this claim. Judge Tillman asserts that no such statement was made. There is a conflict in appellant’s testimony which calls into question the veracity of his contention. Appellant’s attorney testified just as equivocally as appellant. The attorney stated that he remembered only one situation with the judge present and he was unsure as to whether this was the case. If, however, this was the case, the attorney’s testimony is that there was a suggestion that appellant should consider entering a guilty plea. The attorney further stated that he agreed with the judge in that the trial would result in conviction and in a more severe sentence than would be forthcoming if appellant pled guilty.

It is within the court’s discretion to believe or disbelieve the credibility of the witnesses.

The trial court, as the trier of the facts, may believe or disbelieve all or any part of the testimony. It is in a far better position than this court to judge the credibility of a witness. On review we give due regard to the opportunity of the trial court to hear the witness and observe his demeanor on the stand, and we defer to its determination of credibility unless it clearly and convincingly appears that it has abused its discretion.

Peterson v. State, 444 S.W.2d 673, 676 (Mo.1969).

As a result of these inconsistencies, appellant failed to meet the burden of proof required under Rule 27.26, V.A.M.R.

A defendant may not by reason of rule 27.25 withdraw his plea of guilty as a matter of right, State v. Skaggs, 248 S.W.2d 635, 636 (Mo.1952), and the defendant has the burden to prove by a preponderance of the evidence (Rule 27.26(f)) the facts alleged in his motion which demonstrate that manifest injustice resulted from the acceptance of his plea of guilty.

Peterson v. State, 444 S.W.2d 673, 676 (Mo.1969).

Review of the trial court’s decision as to whether to permit withdrawal of his plea is limited. In State v. Edmundson, 438 S.W.2d 237, 242 (Mo.1969), the court held:

The exercise of the power to set aside a judgment of conviction and to permit the defendant to withdraw his plea of guilty is discretionary with the trial court and its action should not be disturbed on appeal except for an abuse of such discretion. State v. Arnold, 419 S.W.2d 59, 61 (Mo.Sup.1967); State v. Parker, 413 S.W.2d 489, 493 (Mo.Sup. banc 1967).

Assuming, arguendo, that the trial judge made a statement regarding a possible sentence, this does not necessarily constitute a threat, causing an involuntary guilty plea. A plea to escape a greater sentence than might be assessed in a jury trial is not involuntary. Wright v. State, 549 S.W.2d 554, 558 (Mo.1977). Furthermore, if the statement made was a true indication of the possible sentence, this is not tantamount to coercion. Goodloe v. State, 486 S.W.2d 430, 432 (Mo.1972). In Bonner v. State, 535 S.W.2d 289, 294 (Mo.1976), the court held:

The fact that the court indicated to counsel that he would sentence movant to consecutive terms if he was found guilty, under the facts as he then knew them, was an honest expression of his present state of mind. It could only assist mov-ant’s counsel in assessing his client’s position.

Therefore, no manifest injustice was caused by the appellant’s belief that he would receive a longer sentence if he pled guilty than if he went to trial.

Appellant next contends that he was not furnished effective assistance of counsel because his attorney did not take a change of venue and permitted the Judge to threaten appellant. In light of this court’s finding that no threats were made, this allegation has no merit.

Accordingly, the judgment is affirmed.

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

      . ABA Standards Relating to Sentencing Alternatives and Procedures § 4.1 suggests that the legislature should supply all courts trying criminal cases with the resources and supporting staff necessary to permit a presentence investigation and a written report of its results in every case. According to the ABA Standards, the court should be explicitly authorized by statute to call for such an investigation in every case where incarceration for one year or more is a possible disposition, where the defendant is less than [21] years old, or where the defendant is a first offender, unless the court specifically orders to the contrary. In the present case any possible reason for denying such a pre-sen-fence investigation is unknown to this court.. The trial court should obtain all available information before making any decisions regarding sentencing.


author: PRITCHARD, Judge.

text:
    Leo F. MIX and Harold L. Miller, Plaintiffs, v. Bob BROYLES and Bob Broyles and Associates, Inc., Respondents, and E. K. Vaughn, Appellant.
    No. KCD 28271.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Bob F. Griffin, Cameron, for plaintiffs; Griffin & Luckenbill, Cameron, of counsel.
    R. Leroy Miller, R. Max Humphreys and Allan D. Seidel, Trenton, for respondents; Miller, Humphreys & Seidel, Trenton, of counsel.
    Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

This case, being a dispute between two realtors for the commission, $15,000.00, resulting from the sale of plaintiff Mix’s 1,000 acre farm, began by an interpleader action filed by Mix and the escrow agent, Harold L. Miller, wherein they deposited the $15,-000.00 into court. Miller was allowed $717.70 as an attorney fee which was deducted from the allowance of the commission to respondents [Broyles], who received a net judgment for $14,282.30. The trial court, however, gave judgment in favor of Broyles for the attorney’s fees against Vaughn on Broyles cross-claim, and this becomes an issue on appeal along with that of which realtor is entitled to the commission.

Mix orally listed his farm with Vaughn on July 30, 1974. Spader, of the Vaughn firm, brought the subsequent purchaser, Overmyer, to see the farm. Mix testified that he did not recall that Vaughn told him that Overmyer would pay $300 per acre if the hay was included. Mix testified further that Vaughn never presented him with any money offers, or a written offer from Over-myer. He withdrew his listing with Vaughn about November 25, 1974, because he had decided to buy some cattle and run the farm himself.

Mix testified that he orally listed the farm around December 1, 1974, with Broyles, and the price agreed to be asked was $350.00 per acre, including hay, grazing and possession rights which were not in Vaughn’s listing, but there were different negotiations at other times. Mix finally sold the farm to Overmyer for $302.50 per acre, plus $16,000.00 for the hay, and the contract of sale was signed on December 13, 1974.

Overmyer’s version of his dealings with the two realtors was this: He had seen advertisements by Broyles as to northern Missouri land in the “Drover’s Journal”, and came there because of the advertisements. He first contacted Vaughn about the Mix farm and Spader showed it to him. After he looked at the farm, Overmyer never contacted Vaughn, but Vaughn contacted him in November. He never entered into negotiations with Vaughn as to price, except that he may have offered $200.00 per acre, or $300.00 per acre if he could get the hay and the down payment treated as rental, but he never received any response. At the time he became acquainted with Broyles, he was not dealing with any other realtors in Missouri. After having purchased a Mercer County farm through Broyles, he came back to look at the Mix farm with Broyles. He did not go back to Vaughn because Vaughn had other people interested in the farm, and was high-pressuring him. The deal for the Mix farm was different than what had been presented to him before in that it was less in price and he was able to get all of the hay.

Broyles confirmed Overmyer’s testimony about the first contact between them which resulted in the purchase of the Mercer County farm. In late November, 1971, Ov-ermyer contacted him about acquiring more land, and Broyles asked Mix if he wanted to sell his farm and Mix answered affirmatively. Broyles showed Overmyer the farm and conveyed his first offer of $300.00 per acre, plus all the machinery, hay and feed and immediate possession, which offer Mix refused. There were further negotiations, and eventually the parties agreed on the contract price of $318,000.00, including the hay and immediate possession. Broyles charged a commission on the sale of the realty alone. He first became aware of another realty company being involved in the sale of the farm shortly before the contract was signed. He never had a discussion with Vaughn about the Mix farm, and denied, contrarily to Vaughn’s testimony, that he wrote Vaughn requesting to co-broker the Mix farm.

Vaughn testified that he asked Mix about July 30, 1974, if he could list the farm at $325.00 per acre, and Mix agreed. Vaughn advertised the farm in the “Drover’s Journal”, and on October 31, 1974, Overmyer called him about the advertisements. Spader showed Overmyer the farm on November 1, and again talked to him the next day while showing the farm to someone else. On November 11, Overmyer indicated he was interested in giving $300.00 per acre, including soybeans and hay, and let him make the down payment as a tax break. Mix told Vaughn to go ahead and make the deal, whatever deal he could come up with, but Vaughn acknowledged that he did not contact Overmyer until after he received Mix’s letter revoking the listing contract. Vaughn called Overmyer after the first of December and was told by him that he was still interested in the farm. Vaughn never heard from him after that.

Broyles’ interrogatory No. 5 was addressed to Vaughn asking if Overmyer had ever made an offer to purchase the Mix farm, and if so, what was it. To this Vaughn answered, “On December 3, 1974, we called Mr. Overmyer and he said he was very interested in the farm and he said that we should be hearing from him soon.”

There is certainly abundant evidence, above outlined, that the trial court, considering also its function of judging the credibility of the witnesses, Stenzel v. State Dept. of Revenue, 536 S.W.2d 163 (Mo.App.1976) and deferring to it on that basis, Long v. Lincoln, 528 S.W.2d 512 (Mo.App.1975), could as it did find that Broyles and not Vaughn was the procuring cause of the farm sale. It is significant to note that Vaughn’s testimony that Mix told him to go ahead with whatever deal he could make after communicating Overmyer’s offer of $300 per acre, plus soybeans and hay, etc., stands alone. No answer to the interrogatory above set forth any offer. Of further significance is the fact that the testimony of Broyles, Mix and Overmyer is in agreement as to offer and acceptance of the terms of the sale as consummated in the executed contract. It is not sufficient that the broker is the first to bring the parties together. . If the negotiations are nonproductive, as the trial court here could have found, and the parties withdraw from negotiations, or abandon the sale, as also the trial court could have found, a subsequent sale by another does not entitle the first to a commission. E. A. Strout Realty Agency, Inc. v. McKelvy, 424 S.W.2d 98, 103 (Mo.App.1968). See also Holman v. Fincher, 403 S.W.2d 245, 250 (Mo.App.1966). Under the standard of review in this court-tried case in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976), there is no firm belief that the judgment as to which realtor was entitled to the commission is wrong. This disposes of Vaughn’s first eight points variously addressed as to which realtor was the procuring cause of the sale.

As noted, the trial court allowed to plaintiffs, who brought the interpleader suit, $717.70 as attorney fees. The propriety of that allowance [see John A. Moore & Co. v. McConkey, 240 Mo.App. 198, 203 S.W.2d 512, 516 (1947), and cases cited] and its amount is not here contested by any party. Vaughn, however, is here contending that the trial court erred in adjudging the $717.70 attorney fees against him and in favor of Broyles because the latter did not specifically plead them as damages in his cross-claim against Vaughn. It is true that there was no specific claim of damages for any attorney fees which might have been awarded plaintiffs in the initial interpleader suit. The cross-claim was bottomed upon an allegation of tortious interference with contract, thereby causing its breach by plaintiffs, and asked $2,500.00 damages for attorney’s fees and other expenses incurred by reason of being required to engage in litigation. The cross-claim was ruled in favor of Vaughn and against Broyles, and Vaughn further contends that the $717.70 award was in conflict with that cross-claim judgment. Vaughn does not contest the award of other costs, i. e., the fee-bill type, against him. What rules this point is that an interpleader suit is a matter of equitable cognizance independent of § 507.060, RSMo 1969. Kearney Commercial Bank v. Deiter, 407 S.W.2d 575, 579[2] (Mo.App.1966), and cases cited; Badeau v. National Life & Accident Insurance Co., 305 S.W.2d 876, 878[2-4] (Mo.App.1957). Broyles, in his counterclaim against the interpleading plaintiffs, Mix and Miller, asked that the entire $15,-000.00 paid by them into court be awarded him as commission for the sale of the real estate. In effect, that is exactly what the trial court awarded him as being the prevailing party on the issue as to which realtor was entitled to the commission. This necessarily included a judgment for attorney’s fees, which had been allowed plaintiffs-interpleaders, over against Vaughn. This judgment for attorney’s fees in the interpleader suit is perfectly proper. In Clay County Court v. Baker, 241 S.W. 447, 450[12] (Mo.App.1922), the court said, “The allowance of $150 as attorney’s fees to the plaintiff and the judgment therefor, with costs against Baker, the unsuccessful inter-pleader, whose unjustifiable claim caused the litigation, was within the discretion of the chancellor, and cannot be disturbed. (Citing cases.)” [Emphasis supplied.] See also Spicer v. New York Life Ins. Co., 237 Mo.App. 725, 167 S.W.2d 457, 468[51 (1942); 48 C.J.S. Interpleader, § 50, p. 110. In this case, Vaughn’s demand that he was entitled to the commission caused the litigation, for which Broyles was not responsible. In this circumstance, Broyles is entitled to his full remuneration for being the procuring cause of the sale of the land, as held. Vaughn was not, as held, the procuring cause of the sale. To require Broyles to accept anything less than his full remuneration as his earned commission would be inequitable, and therefore the court did not err in giving judgment for the attorney’s fees allowed plaintiffs over against Vaughn, who unjustifiably caused the interpleader suit, and who did not create the fund paid into court.

Vaughn lastly complains that the trial court erred in excluding his evidence and the offer of proof as to his damages based upon his claim against Broyles for alleged tortious interference with his contract of sale with Mix. The matter need not be considered because the court found against Vaughn upon his alleged contractual claim for commission and thus must be deemed not to have reached any issue of damages. The excluded evidence could not have affected the result. Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722, 732 (1910); Magee v. Pope, 234 Mo.App. 191, 112 S.W.2d 891, 900[9] (1938), “However, this being an equity case, the reviewing court has the right and power to disregard improper admission or exclusion of testimony, if it finds that such testimony would not affect the conclusion arrived at by the court on the evidence properly adduced, * * See also Donaldson Bond & Stock Co. v. Houck, 213 Mo. 416, 112 S.W. 242, 249 (1908), a jury waived broker’s commission case, the court saying, “In its motion for a new-trial the plaintiff alleges error in excluding evidence offered on the second count. This evidence went to the measure of the damages; but as we have held that under the facts and the law there was no liability, it follows that an exception, saved on the exclusion of evidence of that character, could not constitute reversible error.”

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    DEHNER URBAN REDEVELOPMENT CORPORATION—ST. LOUIS, Plaintiff-Appellant, v. DUN & BRADSTREET, INC., Defendant-Respondent.
    No. KCD 28744.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Thomas A. Sweeny (Popham, Popham, Conway, Sweeny & Fremont, P. C.), Kansas City, for plaintiff-appellant.
    Sam L. Colville, Stephen D. Aliber, Kansas City, for defendant-respondent; Shook, Hardy & Bacon, Kansas City, of counsel.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   DIXON, Judge.

The trial court, sitting without a jury, found against the plaintiff on both counts of its petition for damages under and reformation of a lease agreement and found for the defendant on its counterclaim for monies mistakenly and inadvertently paid under the lease. Plaintiff appeals seeking a reversal of the trial court’s judgment on Count II which requested reformation and seeking reversal of the judgment in favor of defendant on defendant’s counterclaim.

The operation of the tax escalation clause contained in a lease agreement between plaintiff Dehner Urban Redevelopment Corporation-St. Louis (hereinafter “Deh-ner”), as lessor, and defendant Dun & Bradstreet, Inc. (“D & B”), as lessee, is the genesis of the dispute. The lease provided for a 20 year lease period with options to renew the lease. The tax escalator clause provides that:

“the annual rental payable under this lease shall be increased by an amount equal to the amount by which the real estate taxes (including any special assessments) assessed and paid by the Lessor for any tax year during the term or any renewal term hereof is greater than the ‘Lessor’s Tax Payment.’ ”

The “Lessor’s Tax Payment” is defined in the lease to mean:

“The real estate taxes, including any special assessments, assessed and paid by the Lessor for the first tax year after the beginning of the term of this lease in which the property with all improvements is assessed for real estate tax purposes.” (emphasis added).

Relevant here is a portion of the Urban Redevelopment Corporations Law:

“The real property of urban redevelopment corporations acquired pursuant to this chapter shall not be subject to assessment or payment of general ad valorem taxes imposed by the cities affected by this law, or by the state or any political subdivision thereof, for a period of ten years after the date upon which such corporations become owners of such real property, except to such extent and in such amount as may be imposed upon such real property during said period measured solely by the amount of the assessed valuation of the land, exclusive of improvements . . . .” (emphasis added). § 353.110 RSMo 1969.

The City of St. Louis, Missouri, by ordinance, adopted the provisions of the statute.

Initial discussions concerning the erection of a building and the leasing of it to defendant began in 1960 or 1961 between Charles Dehner, President of Dehner, and Jay Smith, then Vice President of D & B. On January 4, 1962, a written proposal was submitted to D & B by Dehner. The letter confirmed a conversation between Mr. Smith and Mr. Dehner in which Dehner proposed to construct for D & B a building in the Mill Creek Renewal Area. This letter further stated:

“We offer to build and lease this building to you for a twenty-year term at an annual rental of $27,500.00, payable monthly in advance, with the usual real estate escalator clause providing any increase in real estate taxes or special assessments after the first year following completion of the building will be assumed by you as additional rental.
Our rental figure is based on the taxes being paid on the present assessment of the land only, with the improvements not being subject to any real estate tax the first ten years. Thereafter, for the next fifteen years, the real estate taxes will be based on 50% of the normal assessment of the property. There should be no increase in taxes, therefore, for the first ten years of the leased term.”

A week later Mr. Dehner wrote another letter to Mr. Smith reviewing the real estate taxes applicable to urban redevelopment in St. Louis and the tax escalator clause. Regarding the tax escalator clause, the letter states:

“Your lease tax escalator clause will be based on your first year of occupancy. Taxes will be at a minimum the first ten years. However, I want to be sure it is understood that taxes will increase drastically after ten years. It will be based on the true value and will be charged at fifty percent of that value. I would estimate based on today’s tax rate of approximately $44.00 per thousand and with some increases that taxes will go up $5,000.00 to $7,500.00 per year on this property. The lease tax escalator clause will cover any increases after the first full year of occupancy.”

Thereafter, J. McKeen, Treasurer of D & B, responded with a letter of intent. The letter, dated January 17, 1962, reads, in pertinent part, as follows:

“The purpose of this letter is to express the intent of Dun & Bradstreet, Inc. to lease from you the building you expect to construct at St. Louis, Missouri, as proposed in your letter dated January 4,1962
It is expressly understood that this letter of intent will enable you to proceed to have final plans, specifications, and working drawings prepared. .
It is further understood that Dun & Bradstreet, Inc. shall have no obligation to you unless and until final plans and specifications are approved by Dun & Bradstreet, Inc. and a definitive lease between Dun & Bradstreet, Inc. and your company for the premises described in your letter dated January 4, 1962 is approved and executed.”

The location for the proposed building was not approved by Urban Renewal, so there was a change in location; and, by letter, the parties agreed to a change of location but with the same conditions.

Subsequently, a draft of the lease was prepared by Mr. McGannon, Dehner’s attorney, who participated in the negotiations concerning the final agreement. Mr. McGannon testified that the language in the final lease meant the same thing to him as in his original draft, that is, that D & B would pay the increase in taxes after the first full tax year. The language Mr. McGannon used for the tax escalator clause in the original draft was that, “any increase in real estate taxes or special assessments applicable to the demised premises occurring after the first full tax year during the term of this lease shall be borne by the Lessee.” This language came from the correspondence Dehner had with D & B which was furnished to Mr. McGannon and which was available to him when he prepared the draft. Mr. McGannon submitted the prepared draft to Mr. Dehner who sent a copy to D & B.

Mr. Bingham, Secretary of D & B, wrote a letter accompanied with a copy of the draft to the law firm of White & Case, who served as outside counsel. Pertinent to the tax escalator clause, the letter said, “Basically the deal is for a 20 year lease as sole occupant of a building to be constructed in the redevelopment area at an annual rental of $27,500, we to pay any increase in real estate taxes or special assessments after the first full tax year during the term of the lease, .

White & Case reviewed the letter and draft and in their reply letter .to D & B suggested that consideration be given to:

“(a) Providing that the basic real estate tax liability shall be a sum equal to the real estate taxes payable by Lessor for the second fiscal tax year in which the building is assessed, for tax purposes, as a fully completed building (is. more apt to result in fair base figure for a tenant’s purposes).”

While the same idea as that expressed in the above letter is carried out in the final agreement, that precise language is not used.

On August 3, 1962, Dehner executed the lease agreement, and D & B executed it on August 13,1962. Between these two dates, Prudential Insurance Company prepared á lease analysis dated August 10, 1962. Prudential was to furnish the end loan money on the building so Dehner had to have a lease which would meet with Prudential’s approval. A copy of the lease analysis was sent to Dehner. In the lease analysis, the provision concerning “rental” is as follows:

“As additional rent, Lessee shall pay annually an amount equal to the amount by which the real estate taxes (including any special assessments) assessed and paid by Lessor for any tax year during the term or any renewal term is greater than “Lessor’s tax payment,” which is defined as the real estate taxes, including any special assessments assessed and paid by Lessor for the first tax year after the beginning of the term of the lease in which the property with all improvements is assessed for real estate tax purposes.”

This language is substantially identical with similar language in the final lease. Prudential approved the final lease agreement.

In addition to the lease agreement, a separate document was signed by Dehner and D & B. This document, dated February 19, 1963, states that the lease in question “constitutes the entire lease agreement between the parties .

Mr. Dehner testified that it was his intention that the final lease accurately portray the agreement reached in the correspondence between Dehner and D & B and that he would not have signed a document if he thought it didn’t portray the agreement as set out in these letters. If he obligated himself to pay an additional $5,000 or $7,500 in taxes, the deal would be a loss. Mr. Dehner further testified that he had a conversation in Jay Smith’s office, and Smith said they were basing the taxes on the first full year of occupancy, 1963, and that Smith was concerned about Dehner’s getting a very low assessment in ’63 and Smith’s getting struck with a high assessment in ’64. Mr. Smith testified that he did not recall this conversation and that he didn’t really see how it could be done because the statute set out the tax on the redevelopment land.

Mr. Smith and Mr. Bingham both testified that the final lease agreement conformed and accurately set out, as far as D & B was concerned, the intentions of both D & B and Dehner at the time it was executed.

Beginning in 1966 and continuing through 1975, inclusive, Dehner sent D & B bills, as additional rent, for the difference between the real estate taxes assessed and paid by Dehner in 1963 and those assessed and paid by Dehner in the subsequent years. D & B paid these bills up until and including 1972. However, in 1973, Dehner sent D & B a bill for $3,928.25, which was the difference between the real estate taxes assessed and paid by Dehner in 1963 and those assessed and paid by Dehner in 1973. D & B refused to pay this bill and the subsequent bills of 1974 and 1975. Dehner then brought this suit for tax payments as billed and, in Count II for reformation, D & B counterclaimed for the payments made under Dehner’s previous billings for the taxes paid from 1963 to 1973.

Looking first to Dehner’s claim that the trial court erred in denying reformation, Dehner contends that the judgment of the trial court was against the weight of the evidence in that the written documents established that the agreement of the parties was for 1963 to be the base tax year. Deh-ner further contends it is obvious that someone mistakenly inserted the language “with all improvements” into the final lease without realizing and with the principals not grasping at the time of execution of the lease that these words would change the base tax year to 1973 under § 353.110 RSMo 1969. In addition to the letters of negotiation, Dehner points to the conduct on the part of D & B in paying the excess tax for the ten years following execution of the lease as further evidence that the parties intended 1963 to be the base tax year.

Principles relating to reformation are well recognized. “The power of the court to reform an instrument is an extraordinary one and must be guarded with zealous care, and exercised with great caution.” Thornburgh v. Warson Village Corporation, 331 S.W.2d 144, 147-48 (Mo.App.1960). Only in a clear case of fraud or mistake will reformation be granted. Thornburgh, supra. Such mistake must be mutual and common to both parties to the instrument, that is, it must appear that both parties have done what neither party intended. Grossman Wrecking Co. v. Bituminous Casualty Corp., 518 S.W.2d 719 (Mo.App.1974). In addition, the claim of mutual mistake in a written instrument presupposes a preceding or prior agreement between the parties and, in order to show mutual mistake in a written instrument, it is necessary to show the prior agreement. Herhalser v. Herhalser, 401 S.W.2d 187 (Mo.App.1966). A written instrument will be reformed only upon clear, cogent, and convincing evidence, which leaves no room for reasonable doubt. This degree of proof relates not only to the mistake and the mutuality thereof, but also to the actual agreement which is alleged to have been made. Brewer v. Blanton, 555 S.W.2d 381 (Mo. App.1977); Galemore v. Haley, 471 S.W.2d 518 (Mo.App.1971). The burden of proof is on plaintiff-appellant. Grossman Wrecking Co., supra.

Dehner’s reliance on the conduct of defendant in paying the excess tax for the ten years following execution of the lease as evidence showing the true intent of the parties is misplaced. While the construction the parties themselves place upon an agreement is of considerable significance in ascertaining the meaning of terms in an ambiguous contract, a contract free from ambiguity is to be construed as written. It is only when the contract or contract term is unclear that the court considers evidence of how the contract was understood or acted upon by the parties. Modine Manufacturing Company v. Carlock, 510 S.W.2d 462 (Mo.1974); Willman v. Beheler, 499 S.W.2d 770 (Mo.1973); Latimer Motors, Ltd. v. McIntosh Motors, Inc., 512 S.W.2d 875 (Mo.App.1974). The trial court found that the tax escalator clause of this lease agreement was not ambiguous or susceptible of more than one meaning, and plaintiff has not challenged that finding on appeal. Plaintiff has not cited, nor could it, any authority which states that the conduct of the parties is to be considered in showing the intent of the parties where the contract term is not ambiguous.

Persuasive on this issue is McCrory Stores Corporation v. S. M. Braunstein, Inc., 102 N.J.L. 590, 134 A. 752 (1926). Dealing directly with erroneous overpayment of taxes under a lease, the New Jersey court held:

“It is further argued as a reason for reversing the judgment before us that, because the lessor presented to the lessee a bill for the excess taxes of the year 1920 over those assessed for the year 1919, and that this bill was paid by the lessee — all of which is admitted — such action was a construction put upon the lease by the parties to it. We think that there is nothing in this contention. The lease speaks for itself. Its construction is not in doubt. The payment presumably was made by reason of a lack of appreciation by the tenant of its obligation under the lease; but, whether this be so or not, the action of the parties just referred to cannot increase or decrease the obligation imposed by that instrument.” McCrory Stores Corporation, supra at 754.

On the broad issue of the sufficiency of the evidence to support the trial court’s finding against reformation, this court’s review is governed by Rule 73.01 as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). An appellate court must sustain the decree or judgment of a triál court unless:

“. . there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy, supra, at 32.

Applying the standard of proof in reformation cases set forth in Galemore, supra, and considering the burden upon Dehner, the evidence more than sufficiently supports the denial by the trial court of reformation of this lease; and this court does not have a “firm belief” that the trial court’s judgment was wrong.

Dehner’s second and final contention is that the trial court erroneously applied the law to the facts in holding that D & B’s letters of intent “could only be interpreted as expressing the intention of defendant not to incur any obligation to plaintiff unless and until a definitive lease agreement between them had been approved and executed.”

Dehner asserts that, if Dehner had completed the building as specified by D & B and D & B refused to sign a lease, D & B would be liable for breach of contract. In support of this argument, Dehner cites Green v. Cole, 103 Mo. 70, 15 S.W. 317 (1891). Green involved an agreement between plaintiffs who were real estate agents and defendant who was a landowner in which plaintiffs were given two years to sell lots of defendant’s land. The parties agreed that the contract should be reduced to writing, which was done, but the defendant refused to sign. In reversing the trial court’s judgment given on a demurrer to the plaintiff’s evidence, the Green court did state that if the parties intended to be bound by the parol contract then effect will be given to that intention. But, more important to the present case is the statement in the Green opinion that:

“Though the terms of the contract may all be agreed upon, still, if the parties make it a condition to the existence of a contract that the terms agreed upon be reduced to writing, and signed by them, there is no contract until this is done.” Green, supra, at 318.

D & B’s letters of intent expressly provided that it was under “no obligation” unless and until it approved the final plans and a definitive lease was approved and executed.

Dehner also cites Riggins v. The Missouri River, Fort Scott & Gulf Railroad Company, 73 Mo. 598 (1881). Riggins concerned the enforcement of an informal memorandum signed by both parties with the understanding that a formal agreement was to be later written out and executed. The formal agreement was not forthcoming. In upholding the trial court’s instructions in Rig-gins, the distinguishing fact was that the parties had acted upon the memorandum; and, given that fact, the memorandum would be treated as a valid and binding contract. In the present case, there was a finalized, formal document executed; and, for that reason, Riggins has no application in this case.

Under the authority cited by Dehner, the trial court was not in error in holding that the D & B letters could only be interpreted as evidencing an intention not to incur any obligation to Dehner until a definitive lease had been approved and executed. The evidence being sufficient and no error of law appearing, the judgment of the trial court is affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Clifton R. TAYLOR, Appellant.
    No. KCD 28801.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Joel Pelofsky, Miniace & Pelofsky, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged by a multiple count information with burglary, second degree, Sec. 560.045, RSMol969, stealing, Sec. 560.156, RSMol969, and forgery (possession with intent to utter), Sec. 561.011, RSMol969. A jury, although acquitting defendant of burglary and stealing, found him guilty of forgery but was unable to agree upon his punishment. Thereupon, the trial judge assessed defendant’s punishment at ten years confinement in the Missouri Department of Corrections.

Defendant raises four points of error on appeal: (1) error on the part of the trial court in denying defendant’s oral motion of dismissal (made on the morning of trial) because of improperly joining the multiple charges of burglary, second degree, stealing, and forgery; (2) error on the part of the trial court in overruling defendant’s objection to a portion of the state’s closing argument which purportedly constituted an expression of opinion as to the believability of one of the state’s witnesses; (3) error on the part of the trial court in overruling defendant’s objection to a portion of the state’s closing argument which purportedly shifted the burden of proof or constituted a comment on defendant’s failure to take the stand and testify in his own behalf; and (4) error on the part of the trial court in giving Instruction No. 13 (MAI-CR 4.50) after the jury had retired to deliberate.

A compact statement of facts will be sufficient as the sufficiency of the evidence has not been challenged. On October 24, 1975, a building housing Messina Brothers Construction Company was burglarized. A number of “printed” company checks were stolen after having been run through the company’s “check protector”. On the day of the burglary, defendant presented one of ■the “printed” checks which had been run through the company’s “check protector” to Rail Sales, Corp. for payment. The maker’s signature had been forged. The party at Rail Sales, Corp. to whom the check was presented became suspicious and called the bank upon which the check was drawn before making payment. The bank advised the calling party that a number of “printed” company checks had been stolen from the office of Messina Brothers Construction Company. Defendant, apparently sensing that he was under suspicion, exited the premises of Rail Sales, Corp. before being advised that the check would not be honored. A security officer at Rail Sales, Corp. was alerted and he followed defendant out of the premises occupied by Rail Sales, Corp. and then pursued defendant down a public street. A police officer was also alerted and defendant was apprehended as he was running down the public street.

At first blush it would appear that defendant’s first point has been rendered moot by reason of defendant’s acquittal on the charge of burglary, second degree, and stealing. Defendant, in anticipation that the continuing viability of his first point of error might be questioned on appeal, argues that the “improper joinder of offenses tainted the entire trial and the forgery conviction”. Although imprecisely stated, the import of defendant’s argument appears to be that joinder of the charges of burglary, second degree, and stealing with the charge of forgery was wholly improper under Rule 24.04 and the effect of doing so provided a basis for the state to parade otherwise inadmissible evidence of other crimes before the jury-

Rule 24.04 provides: “All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or. information in separate counts, or in the same count when authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees.” Although there are no Missouri cases specifically approving the joinder of multiple charges of the same or similar nature as those in the case at bar, the following language contained in Rule 24.04, supra, “two or more acts or transactions which constitute parts of a common scheme or plan . ”, provides ample authority for doing so. The “printed” company checks in and of themselves had no intrinsic value. Forging the purported signature of an authorized officer of Messina Brothers Construction Company to them, coupled with an intent to utter, gave them an entirely different complexion, and in this sense the various offenses were based on “two or more acts or transactions which constitute^] parts of a common scheme or plan.” This conclusion is strengthened by cases construing the applicability of Rule 8(a) of the Federal Rules of Criminal Procedure. Rule 24.04, supra, and its federal counterpart, Rule 8(a), supra, although not cast in identical language, are substantially similar upon comparison and by judicial notation. State v. Brannom, 539 S.W.2d 747, 750 (Mo.App.1976). Their kindred nature is such that federal cases construing the applicability of Rule 8(a), supra, are persuasive when faced with the task of construing the applicability of Rule 24.04, supra. State v. Johnson, 505 S.W.2d 11, 12 (Mo.App.1974). Joining charges of burglarious theft of a credit card and use of the credit card to perpetrate a forgery in a multiple count indictment was held proper under Rule 8(a), supra, in United States v. Leonard, 144 U.S.App.D.C. 164, 445 F.2d 234 (1971). Likewise, in Blunt v. United States, 131 U.S.App.D.C. 306, 404 F.2d 1283 (1968), joining charges of robbery and theft of a checkbook and forging the purported maker’s signature and uttering certain of the stolen checks in a multiple count indictment was held proper under Rule 8(a), supra. Defendant’s first point of error is meritless.

Defendant’s second point of error is directed towards the trial court’s failure to have sustained his objection to the following portion of the state’s closing argument: “Now, I do not believe — but you are the determiners of the fact — I do not believe that there was any loss in the chain of the party who presented the check and the arrest of this defendant, but that’s — .” At this point defendant interposed an objection. This particular point and the argument which accompanies it are far from being paragons of clarity. In an effort to place this portion of the state’s closing argument in proper context, it is deemed helpful to point out that although the security officer employed by Rail Sales, Corp. momentarily lost sight of defendant shortly before his apprehension, the security officer positively identified defendant at the trial as the same person to whom he initially gave chase. Immediately after defense counsel’s objection was overruled the state’s attorney again reminded the jury that they were the ultimate “determiners of the fact” and that he was only “arguing” the case on behalf of the state. It is difficult for this court to perceive how the complained of portion of the state’s closing argument is susceptible of being characterized, as urged by defendant, as an expression of opinion as to the security officer’s credibility as a witness. If it can in fact be so interpreted, disposition of defendant’s second point is quickly resolved by a line of cases holding that a prosecutor is afforded considerable leeway in commenting on the credibility of the state’s witnesses, and whether or not the bounds of propriety have been exceeded by such comments is a matter peculiarly within the sound discretion of the trial court. State v. Sallee, 436 S.W.2d 246, 254 (Mo.1969); and State v. Westmoreland, 541 S.W.2d 769, 772 (Mo.App.1976). The measure of extreme deference extended to the trial court in ruling on comparable objections is aptly illustrated by State v. Johnson, 293 S.W.2d 907 (Mo.1956), wherein it was held that the trial court did not abuse its discretion in overruling an objection to the following comment made by the state’s attorney as to the credibility of a police officer called by the state as a witness— “when one of those men in that blue uniform gets up on this stand and raises his hand up and swears to tell the truth you can rest assured that’s what he is going to do”. Given this line of authority, it cannot be said that the trial court erred in overruling defendant’s objection to that portion of the state’s closing argument immediately heretofore mentioned.

Defendant’s third point of error is directed towards still another portion of the state’s closing argument, namely, “Now, Mr. Pelofsky says there are lots and lots of explanations about how this burglary occurred, but I didn’t hear one given to you. I didn’t hear him tell you about how there were excuses for this.guy having — ”. Defendant’s objection to said portion of the state’s closing argument was overruled by the trial court. On appeal, defendant facilely and uninhibitedly brands this portion of the state’s closing argument as both shifting the burden of proof and constituting a constitutionally impermissible comment on his Fifth Amendment right to remain silent. Defendant’s dichotomous characterization of this portion of the state’s closing argument is totally unsupported by the language employed by the state’s attorney and literally tortures the complained of statement beyond recognition. It is unnecessary to engage in any far ranging study of legalese or exercise in semantics to conclude that the complained of portion of the state’s closing argument was in retaliation to defense counsel’s argument that there were numerous explanations as to how the burglary occurred. It is patent that this portion of the state’s closing argument was retaliatory in nature and defendant’s efforts to persuade this court otherwise are in vain. In State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588 (banc 1950), the court held that “[wjhere the argument complained of on appeal is retaliatory in nature and invited by the remarks and suggestions of appellant’s counsel an assignment of error thereon will not be sustained.” In so holding the court recognized that a prosecutor “can go further by way of retaliation, in answering arguments of the defendant’s counsel, than he would be authorized to do in the first instance.” In other words, a trial court is vested with considerable discretion in permitting the use of retaliatory arguments and in refusing to declare mistrials based thereon. State v. Smith, 431 S.W.2d 74, 85 (Mo.1968); State v. Cusumano, 372 S.W.2d 860, 866 (Mo.1963); and State v. Knighton, 518 S.W.2d 674, 681 (Mo.App.1975). Defendant’s third point of error is equally meritless.

By way of his fourth and final point of error, defendant argues that the trial court erred in giving Instruction No. 13 (MAI-CR 4.50), over his objection, after the jury had retired and deliberated for approximately three hours without giving any indication of where it stood on either guilt or punishment. After being given Instruction No. 13, the jury again retired and deliberated another hour and thirty minutes before returning verdicts acquitting defendant of burglary, second degree, and stealing, but finding him “guilty of Forgery, possession with intent to utter”, and simultaneously announcing in said guilty verdict that they were unable to agree upon punishment. Defendant cites no pertinent or applicable authority in support of this point and his argument with respect thereto, at best, is highly convoluted. Piercing such an argument to determine its meaning is a hazardous venture. As this court can best determine, defendant fallaciously argues that submission of Instruction No. 13 tempted the jury, in the event it determined that defendant was guilty, to abdicate its responsibility to assess punishment. Defendant’s argument, as construed, is not factually borne out by the record nor legally sustainable by existing authority. The “Notes on Use” appended to MAI-CR 4.50, with which Instruction No. 13 faithfully comported, specifically provide that such an instruction may be given either “(a) at the time of the submission of the case to the jury, or (b) after its submission to the jury.” Said instruction is contained in the “4.00 SERIES” of “DISCRETIONARY IN- ' STRUCTIONS”. Its genesis undoubtedly lies in cases such as State v. Brown, 443 S.W.2d 805 (Mo.banc 1969), antedating the adoption and approval of MAI-CR 4.50 and other pattern criminal instructions, holding that a trial court is vested with broad discretion in submitting a substantially similar instruction to a jury after it has retired for 'deliberation, but prior to arriving at any \ determination of the accused’s guilt or inno- . cence. Notwithstanding an objection by ■ the accused in Brown, it was held on appeal that the trial court did not abuse its discre- . tion in giving an instruction comparable in all respects to the one presently challenged by defendant. In view of the composite authority just cited, defendant’s fourth and final point is also found to be without merit.

Judgment affirmed.

All concur.

      . “Instruction No. 13
      The Court will now read to you an additional instruction which will be handed to you with additional forms of verdict.
      If you unanimously find the defendant guilty as to a particular Court [sic] you should fix his punishment as to that Count. If, however, after due deliberation, you find the defendant guilty as to a particular Count but are unable to agree upon his punishment as to that Count, you will complete the verdict form so stating, and in that event the Court will fix the punishment.
      You must bear in mind that under the law it is the primary duty and responsibility of the jury to determine whether the defendant is guilty or not guilty as to each Count submitted against the defendant, and if he is guilty as to any Count submitted against him to fix the punishment as to that count.’'