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    STATE ex rel. GIRARD et al., Petitioners, v. Raymond T. PERCICH, Sheriff of the City of St. Louis, Respondent.
    Nos. 38271 to 38278 and 38837 to 38841.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 30, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.

      Jerome J. Duff, James E. Heckel, St. Louis, for petitioners.
    John P. Emde, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for respondent.

      . Respondent Percich has been succeeded in office by Benjamin Goins.

   GUNN, Judge.

Petitioners, members and officers of Brewery Drivers and Helpers, Local Union No. 133 of St. Louis affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), contest their convictions for criminal contempt in this original habeas corpus proceeding. This appeal involves thirteen cases consolidated for review and concerns thirteen separate petitions. The convictions are based on a finding by Circuit Judge Carl R. Gaertner that specific conduct by individual members, as well as general strike policies promulgated by the executive board of the Union, were willful and deliberate violations of a lawful restraining order issued by him. We believe the evidence supports the finding as to all petitioners, except Robert Woodson.

The incidents involved in these cases arose out of a long-lived and admittedly virulent strike by the Union against the St. Louis metropolitan wholesale beer distributors. On April 22,1976, suit was filed in St. Louis City Circuit Court by Lohr Distributing Co., Inc. (Lohr), exclusive distributor of Anheuser-Busch products within the City of St. Louis, against specified persons affiliated with the Union in both their individual capacity and as representatives of a class consisting of the membership of the Union. The petition, which sought a restraining order against the Union, charged that the strikers had engaged in numerous unlawful activities including: mass and unruly picketing for the purpose of harassing and obstructing Lohr’s customers; harassment, intimidation and threats of physical violence against Lohr’s employees and customers; following Lohr’s customers from its premises and stopping the customers on public streets in order to assault, abuse and threaten them to coerce a cessation of business with Lohr; and various other acts or threats of physical violence and property damage.

Judge Gaertner issued a restraining order that same day forbidding Union members as well as any other person having notice of the order from:

“a. Obstructing, blocking, stopping or otherwise in any manner interfering with any person or vehicle while the same is entering onto or exiting from any property owned or operated by plaintiff, specifically, plaintiff’s facility at 3820 Dr. Martin Luther King Drive, St. Louis, Missouri.
“b. Interfering in any manner, directly or indirectly, with the operation or use by plaintiff or by plaintiff’s employees or by plaintiff’s agents, of any truck, tractor, trailer or motor vehicle owned, leased or operated by plaintiff or by its said employees or by its agents.
“c. Damaging, abusing or in any manner interfering with the use of any real or personal property owned or operated by plaintiff or by threatening to damage, to abuse or to interfere with the use of any of plaintiff’s aforesaid property.
“d. Assaulting, harassing, threatening, injuring, battering, coercing, intimidating or threatening to assault, to harass, to threaten, to abuse, to injure, to batter, to coerce or to intimidate any of plaintiff’s customers or any agent, servant or employee of plaintiff while the same is having or attempting to have any business contact with plaintiff.
“e. Interfering directly or indirectly with the purchase, sale, receipt, delivery or distribution of Anheuser-Busch beer products by plaintiff from its facility at 3820 Dr. Martin Luther King Drive, City of St. Louis.
“f. Having in excess of three persons at any one time picketing, congregating or otherwise meeting at, near or about any property owned or operated by plaintiff, at 3820 Dr. Martin Luther King Drive in the City of St. Louis.”

In addition, an order to show cause why a temporary injunction should not be issued was filed and a hearing date was set. Petitioners in their answer denied all allegations of violence but admitted that the nominal parties as well as the members of the class had received notice of the restraining order.

On April 28, 1976, the Lohr petition was amended to include a second count on behalf of Grey Eagle Distributors, Inc. (Grey Eagle), the exclusive Anheuser-Busch distributor for St. Louis County. Count II alleged essentially similar acts and threats of violence, harassment, intimidation and property damage directed against Grey Eagle, its employees and customers as alleged in Count I against Lohr, its employees and customers.

Specifically, Count II alleged that Grey Eagle’s trucks carrying beer from the An-heuser-Busch plant were attacked with various dangerous projectiles on a public highway while on route to its premises; that a loaded tractor trailer truck owned by Grey Eagle was caused to overturn after a striker hurled a baseball bat through its windshield; that the offices of Grey Eagle were ransacked; that telephone threats were made against the lives of Grey Eagle employees; and that the home of the Grey Eagle chairman was firebombed. It was admitted that these acts, except for the tractor trailer incident, were performed by unknown persons. It was alleged, however, that they were directly related to the strike.

Judge Gaertner immediately issued a second restraining order for the relief of Grey Eagle. Its essential terms were identical to the original order except for the addition of paragraph (g) which forbade the Union “[f]rom picketing, congregating or otherwise meeting, at, near or in the vicinity of the intersection of Dorsett Road and Millpark Avenue in St. Louis County, Missouri.” The April 22 order was to remain in effect. The hearing on the order to show cause why a temporary injunction should not be issued was continued numerous times through the month of May by agreement of the parties, but the restraining orders continued in effect.

On May 28, 1976, Lohr and Grey Eagle (plaintiffs) filed a motion for the issuance of citations for contempt and body attachments against petitioners for violations of the restraining orders. The main thrust of the alleged violations was that continued coercion, harassment and intimidation of plaintiffs’ customers resulted from the Union’s policy of following them from plaintiffs’ loading docks, where they purchased beer, to their places of business. Additionally, random acts of vandalism to the property of customers were alleged. On June 1, 1976 a hearing was commenced on this motion which continued until June 3. At its conclusion Judge Gaertner found probable cause to issue citations of contempt against petitioners and ordered them to appear on June 10, 1976 to show cause why they should not be held in civil and criminal contempt of court. He further ordered that each petitioner be served with a notice of prosecution. Attorney for the plaintiffs was appointed special prosecutor to try the charges. At the June 10 hearing further testimony was offered, and the parties stipulated that all evidence presented at the June 1-3 hearing was admitted for the court’s consideration.

In reciting the facts we shall not dwell on the many sordid incidents detailed in this voluminous record which did not form the basis for contempt convictions. But the course of this strike, both before and after the issuance of the restraining orders, was marked with fulsome instances of violent and destructive activity directed at plaintiffs, their competitors, and the customers of both. Some of these actions could be directly attributed to Union members and others could not. Nevertheless, the acts of violence and destruction were well publicized in the local news media and became common knowledge in the community. During this strike an atmosphere of trepidation existed among members of the community. Enmity exploded into vacuous acts. Trucks carrying beer were attacked on public streets with rocks, bricks, ball bearings and other dangerous projectiles. Customers selling plaintiffs’ products had the windows of their vehicles and establishments shattered and concrete poured into their plumbing fixtures. There were numerous instances of direct threats against customers because they continued to handle plaintiffs’ products. Many customers ceased doing business with plaintiffs during the strike out of fear for their persons and property. Others who continued dealing with plaintiffs employed armed security guards and carried weapons for their own protection. Routine trips to purchase beer became armed caravans through public streets, accompanied by armed guards and police, pursued by car loads of strikers. Customers closely followed by strikers’ vehicles often panicked and resorted to dangerous traffic violations in their hegira and efforts to escape their pursuers. For example, customers would flee at speeds in excess of lawful limits and resorted to driving the wrong way on one way streets, oftentimes with their efforts unavailing. This extremely tense situation presented a real and present danger to the well being and safety of the direct participants in this labor dispute as well as innocent members of the community. It is within this context that the evidence relating to the specific episodes leading to the contempt citations must be viewed.

Three specific instances of intimidation and harassment of plaintiffs’ customers by individual petitioners, in addition to the promulgation of the following policy by the executive board of the Union, were cited in the trial court’s finding of facts as the willful violations of the restraining order leading to the contempt convictions. In the first instance, petitioners Wray Hambrick, Jerry Becht, Michael Manion and Ronald, McKenzie in concert with one another and other unnamed individuals were found to have “cause[d] two automobiles to be stopped in front of and in the path of a vehicle occupied by one Harrison Richards and one Charles M. Henkle, a customer of plaintiff Grey Eagle Distributing Company, and did obstruct and prevent the forward movement of said vehicle until said customer agreed to and did return to said plaintiff the beer he had just purchased and loaded upon his vehicle.” The petitioners’ conduct was found to have been done “wilfully and deliberately for the purpose of intimidating, coercing and harassing” plaintiff’s customer.

Mr. Henkle, operator of Shirley’s Package Liquor Store in St. Louis County, in an attempt to secure Anheuser-Busch products for his store, went to Grey Eagle on May 21, 1976 in a rented truck with his part-time employee, Harrison Richards. They crossed a picket line to enter Grey Eagle premises and did so without incident. After loading the truck with beer they left and proceeded up Millpark Avenue, the dead end street which serves as the only route of egress from Grey Eagle. Henkle and Harrison passed the pickets at the Grey Eagle gate, once again without incident. When they approached the stop sign at the corner of Millpark Avenue and Dorsett Road (approximately two blocks from the Grey Eagle facilities), two automobiles operated by unidentified persons pulled in front of them and blocked their path. A gaggle of ten to twelve strikers approached the truck, informed the occupants they had crossed their picket line and told them to “take the beer back” for a refund. The strikers’ demand was tractably complied with and the beer was returned. When Henkle and Harrison departed again the strikers flagged them down at the same intersection and inspected the truck to confirm that all of the beer had been unloaded. No vehicles obstructed their path on this second occasion. There was no explicit oral threat of violence communicated in either incident, and the conversation between the parties was described as peaceful.

The testimony of petitioners regarding this incident was somewhat different. They maintain that no vehicles blocked Henkle’s truck either time he left Grey Eagle. According to their testimony the sole reason that his truck came to a halt in their vicinity was the intersectional stop sign at Millpark and Dorsett. They say that three or four of them merely walked over to the truck once it had stopped .and asked the gentlemen to return the beer after explaining the strike situation and its effect on their jobs. They deny that the parties were threatened or intimidated in any way to force compliance with their request. When the truck approached the intersection for the second time, according to petitioners, the driver stopped of his own volition. At this time the strikers offered to give Henkle $35 to reimburse him for the rental of his truck, but he refused to accept any money. Though the four petitioners convicted in connection with this incident deny any obstruction of the vehicle’s path or any intimidation of its occupants, all admit being present at the scene.

The second incident leading to a contempt conviction involved a window breaking episode at the Westwood Grocery in Glendale. On April 30, 1976, Donald Han-neke, the operator of the grocery, after purchasing beer from Grey Eagle, was followed by unidentified strikers the entire route back to his store. On May 4, at approximately 11:30 p. m. bricks were thrown through the store’s plate glass windows.

William Kratz, Jr., a neighbor living 150-200 feet from the store, heard the crash of shattering glass and immediately telephoned the Glendale police department. A patrol car driven by Lieutenant J. M. Dell-ing arrived thirty seconds to one minute later. In the meantime, Kratz observed a large vehicle speed away from the grocery. It was dark, however, and Kratz’s view was partially obstructed by trees so the best description of the vehicle he could give police was that it resembled a light colored station wagon, van or camper. Kratz was still on the telephone with the police dispatcher when Lieutenant Delling’s car arrived. He was able to alert the officer of the path the fleeing vehicle had taken. Lieutenant Delling pursued the vehicle some fifteen to thirty seconds behind.

According to Lieutenant Delling’s testimony the dispatcher described the vehicle as being a light colored camper. After he had driven about two blocks from the grocery, he observed a vehicle fitting that description driving somewhat suspiciously as if it were lost. He stopped the vehicle and asked the two occupants for their identification. At this time he learned that the men were petitioners McKenzie and Wood-son. Initially, they said that they were looking for a neighborhood tavern. Lieutenant Delling, however, noticed that McKenzie appeared visibly shaken and began to question him out of Woodson’s hearing. When asked about throwing bricks, McKenzie, in something more than a lapus linguae, replied “F- him. The son-of-a bitch crossed our line, and I want to protect my rights.” Prior to this volunteered statement, Lieutenant Delling had not mentioned anything even remotely connected with beer deliveries, the beers strike, or, specifically, Hanneke’s broken windows. Nevertheless, McKenzie continued explaining, in Delling’s words “that he was going to fight for his rights, that he had a family, that Mr. Hanneke had crossed their picket line.”

Woodson made no statement, but both men were arrested for suspicion of burglary. Their jackets and shoes were confiscated and sent to the County Crime Laboratory for comparison with evidence found at the market. McKenzie’s jacket was discovered to have mortar splatches on it.

Woodson and McKenzie denied breaking any windows and maintained that they had been looking for a tavern named Frank’s Little Inn. However, except for the grocery, the area is completely residential, and there are no taverns in Glendale. They testified that they later learned the tavern they sought was located in Kirkwood, not Glendale. Moreover, McKenzie denied making any statement to police and explained that the mortar stain was on his jacket because he had helped Woodson lay bricks the previous weekend.

The final specific incident which the court found to violate its restraining order occurred on May 24, 1976, when petitioners Michael Manion and Ron Hosfeld in concert with others “did follow a truck operated by one Andy Garanella from Grey Eagle Distributing Company to Santoro’s Restaurant located at Big Bend and Millbrook in University City, Missouri, over and along numerous public streets and did participate in the surrounding of said truck by vehicles operated and occupied by members of Local 133 while said truck was being operated in the public thoroughfares in such a manner that one striker’s vehicle was immediately ahead of, one striker’s vehicle immediately to the side of and two or more strikers’ vehicles immediately to the rear of said truck, and that after said truck reached its destination as aforesaid, said defendants did remain conspicuously in the area where said truck was being unloaded.” As with the previous three incidents the court found that the petitioners’ actions violated that portion of the restraining order which forbade harassing, intimidating or coercing plaintiffs’ customers.

Gerald Koester testified that he followed the truck operated by Andy Garanella from Grey Eagle to Santoro’s and took photographs of the vehicles pursuing Garanella. Koester observed four to five vehicles which at various points along the route moved to the front, side and rear of Gara-nella’s truck so that he was periodically surrounded on three sides by strikers’ vehicles. Garanella did not testify, but the substance of what his testimony would be was entered into the record by stipulation. This stipulation largely corroborated Koes-ter’s testimony as to the existence of “bracketing” — bracketing being the act of surrounding a moving vehicle with other vehicles to control the pace and direction of movement of the bracketed vehicle. Additionally, it established that the followers’ actions were perceived by Garanella to be harassing, intimidating and frightening. It was conceded, however, that no physical harm befell him as a result of this incident. During his testimony, Petitioner Girard, chief executive officer of the Union, acknowledged that bracketing would be wrong; that it could cause an accident.

Manion and Hosfeld admitted that they and others followed Garanella to Santoro’s, but denied that they intentionally bracketed his vehicle or intended to harass or frighten him. They acknowledged, however, that along the route various strikers’ vehicles may have been adjacent to or ahead of Garanella’s truck through the normal course of driving. They further admitted remaining in Santoro’s parking lot while the truck was being unloaded.

The final specification of contempt charged that petitioners, John Girard, John Taylor, Eugene Grossman, Charles Kelting, Louis Feldhaus and Dudley Alsop, as members of the Union’s executive board, willfully violated that portion of the restraining order forbidding intimidation, harassment or coercion of plaintiffs’ customers by adopting and promulgating the Union’s policy of following customers from plaintiffs’ places of business to their destinations. The court found that this policy, which was admittedly conspicuously engaged in, because of the widespread public knowledge of the acts of vandalism and violence it precipitated was intended to cause and did cause fear to customers in direct violation of the restraining order.

Petitioners admit that the practice of following was engaged in; that the executive board adopted this practice as the Union’s policy and that the executive board, under its cachet, encouraged participation in the practice by its members. It is their contention, however, that the policy served a legitimate labor dispute function in that it gave the Union a means to learn the identity of those persons who crossed their picket line to buy beer from the struck employers. In this connection they argue that following customers was a long standing policy of Local 133, as well as other local unions, and had been used in previous strikes where struck employers had sold their products directly from the docks. They maintain that the policy was employed to serve two valid purposes. First, it was to procure the names and license numbers of the customers for later publication in the Union newspaper “unfair list.” This list was used to alert other union members that the persons and businesses whose names appeared thereon had crossed a picket line and were to be boycotted because they were unfair to organized labor. Secondly, the Union maintained that it was used to discover and to expose those customers who engaged in the illegal practice of “bootlegging” beer. Union members testified that on occasion customers holding valid retail liquor licenses would purchase truck loads of beer from the wholesalers and then would deliver this beer to more timorous establishments, some of which the Union contended did not have valid retail licenses. It was purportedly to prevent this illegal practice that the Union members followed customers all of the way to their businesses and watched them unload their beer even when they knew the name and address of the customer beforehand. There was but one hearsay incident of purported “bootlegging” reported.

Petitioners testified repeatedly that in adopting and implementing the policy of following, violence of every kind was expressly prohibited. Nonetheless, there were frequent episodes of dangerous and violent conduct accompanying instances of following both before and, to a lesser extent, after the restraining orders were issued. One customer, testified that on two occasions prior to the restraining orders and once after their issuance he was followed from Lohr’s by three or four carloads of strikers. While operating on public streets they would maneuver their vehicles in front of his trucks and at times drive at speeds of less than five miles per hour. At other intervals along the route they would jam on their brakes or come to complete halt in traffic lanes in an effort to bring about collisions between their vehicles and the beer trucks. In addition, the trucks were intermittently bombarded with rocks and ball bearings; roofing nails were strewn on the roadway. Because of these and similar acts of violence occurring during the following and because acts of vandalism occurring shortly thereafter, customers testified that they felt intimidated by and were fearful of the following even when it was ostensibly peaceful.

It is the Union’s position that the policy of following as adopted was not in violation of the terms of the restraining order. In fact, on the advice of counsel to that effect, the policy was continued even after Judge Gaertner found probable cause to believe that the policy violated the restraining order and warned petitioners that “any continuation of said practice during the period preceeding the final determination of this matter will be conducted at the peril of the defendants.”

On June 24, 1976, Judge Gaertner found petitioners guilty of criminal contempt for the violations previously described and imposed punishment as follows:

Those petitioners who were sentenced to jail terms immediately filed petitions for writs of habeas corpus with this court. Preliminary writs were granted on June 25, 1976, and petitioners were freed on bond pending oral argument and final judgment.

On December 28, 1976 those petitioners who received fines, after admitting their ability to pay, refused to do so in open court. Their purpose in doing so was to test the court’s original finding of contempt by way of this habeas corpus proceeding. After each was sentenced to jail pending payment of the fine, preliminary writs were sought and granted for those petitioners as well.

Petitioners attack their convictions on three separate bases. First, they contend that the State court was without jurisdiction to regulate the Union’s strike policy by means of a restraining order because of preemption by federal labor law. Secondly, they contend that the restraining orders were so vague that they were not apprised in advance of what conduct violated its terms. Finally, they contend there was insufficient evidence to support their convictions.

Before reaching these contentions, it is first necessary to indite the fundamental precepts of the law of contempt which bear on the denouement of this decision. Constitutional courts of common law jurisdiction have both a statutory and an inherent power to punish persons guilty of willful disobedience of their lawful orders. Section 476.110 RSMo.1969; Osborne v. Purdome, 224 S.W.2d 1005 (Mo.banc 1951); cert. denied, 343 U.S. 953, 72 S.Ct. 1046, 96 L.Ed. 1354 (1952); State on Inf. of McKittrick v. Koon, 356 Mo. 284, 201 S.W.2d 446 (banc 1947); Chemical Fireproofing Corp. v. Bronska, 553 S.W.2d 710 (Mo.App.1977); Houston v. Hennessey, 534 S.W.2d 52 (Mo.App.1975). While the primary purpose of civil contempt is to protect the parties to the litigation for whose benefit the order was issued, the primary purpose of criminal contempt is to protect, preserve and vindicate the power and the dignity of the law itself. Teefey v. Teefey, 533 S.W.2d 563 (Mo.banc 1976). 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, Chemical Fireproofing Corp. v. Bronska, supra, resulting in a discomfiture of the judicial process.

Petitioners herein are convicted of indirect or constructive criminal contempt, meaning that it arose out of matters occurring outside of the presence of the court but which nonetheless tended to belittle, obstruct or prevent the administration of justice. 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); Curtis v. Tozer, 374 S.W.2d 557 (Mo.App.1964); G. v. Souder, 305 S.W.2d 883 (Mo.App.1957). The alleged contemnor is afforded many of the protections of a criminal defendant though a contempt proceeding is not strictly speaking criminal, but, rather, is sui generis. Osborne v. Purdome, supra. The State, nevertheless, has the burden of proving the elements of criminal contempt beyond a reasonable doubt just as in a criminal prosecution. State ex rel. Wendt v. Journey, 492 S.W.2d 861 (Mo.App.1973); Ex Parte Miles, 406 S.W.2d 107 (Mo.App.1966). The elements are actual knowledge of the restraining order and willful conduct in violation of its terms. Chemical Fireproofing Corp. v. Bronska, supra; Mechanic v. Gruensfelder, supra. The scienter requirement of the second element is traditionally the most difficult to establish, but its proof is essential, as the existence of contempt is measured largely by the intent with which the contested conduct was committed. Where there is no intent to defy and degrade the order of the court, there is no contempt even in the face of seemingly contumacious conduct. McMullin v. Sulgrove, 459 S.W.2d 383 (Mo.banc 1970); State v. Koon, supra; State ex rel. Wendt v. Journey, supra.

Once the court has found an individual in contempt there is no right of appeal though the validity of the judgment may be challenged in a habeas corpus proceeding. Curtis v. Tozer, supra. It is the habeas court’s duty to review the evidence against each petitioner and 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 stated above is supported as to even one of the several specifications contained in the judgment entered as to a petitioner, then that petitioner is not illegally restrained and, as to that individual, our writ should be quashed. On the other hand, if not even one of the several specifications found as to a petitioner is sustained, beyond a reasonable doubt, by the evidence then the petitioner must be discharged.” Curtis v. Tozer, supra at 581.

In a habeas proceeding challenging the sufficiency of the evidence, we do not review the record de novo, but are limited to a determination of whether the trial court’s findings are supported by the evidence. Ex Parte Neal, 507 S.W.2d 674 (Mo.App.1974). In making that determination, we must accept the evidence along with all favorable inferences which reasonably may be drawn therefrom in the light most favorable to the court’s judgment. 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 the habeas court’s function to weigh the evidence where it is in conflict or to resolve issues of credibility; we look only to see if there was substantial evidentiary support for the court’s finding.

Furthermore, criminal contempt may be proved by circumstantial evidence so long as the facts are consistent with one another and the hypothesis of guilt and inconsistent with a reasonable hypothesis of innocence. Mechanic v. Gruensfelder, supra; Ex Parte Miles, supra. Mere presence by a petitioner when conduct in violation of a court order occurred or mere opportunity to engage in the conduct is insufficient to support a conviction for contempt. State v. Castaldi, 386 S.W.2d 392 (Mo.1965). Nevertheless, proof of participation in forbidden activity may rest upon accumulated interdependent facts, no one of which creates more than a suspicion of guilt. State v. Jackson, 519 S.W.2d 551 (Mo.App.1975). Where there is concerted group action, as here, it is important to remember that any affirmative participation as a member of a group in activity which violates the court order will subject each participant to contempt liability so long as he acts with the requisite knowledge and intent. See State v. Reynolds, 521 S.W.2d 486 (Mo.App.1975). It is no defense that the individual participant’s conduct, when isolated from that of the group as a whole, would not violate the court’s order. The foregoing applies with equal weight to those who direct, control, plan and supervise activity in defiance of the court order. The true instigators may not be absolved by maintaining the appearance of remaining above the fray. One who conspires to induce contemptuous conduct by others which does in fact occur may be equally guilty with those who actually engage in that conduct. Curtis v. Tozer, supra.

Turning specifically to petitioners’ contentions, we will deal with the vagueness claim first. To comport with fundamental principles of fairness, it is essential that the restraining order fairly and precisely advise the individual of what conduct is forbidden. To support a charge of contempt for its disobedience, “an order will not be expanded by implication in the contempt proceeding but must be so specific and definite as to leave no reasonable basis for doubt as to its meaning.” G. v. Souder, supra at 885. See also State ex rel. City of Pacific v. Buford, 534 S.W.2d 819 (Mo.App.1976); Gerard v. Kodner, 468 S.W.2d 677 (Mo.App.1971). Where one has a genuine doubt as to whether his proposed conduct would be violative of the order because of its alleged vagueness, the proper procedure is not to act in reckless disregard of the potential restraint imposed. Once a court of general jurisdiction, having equity powers, issues an order upon pleadings properly before it, the order must be scrupulously obeyed even though it may prove to be erroneous. It is the function of the court in the first instance to judge the legality of its decision and until that decision is modified or reversed it must be respected under pain of contempt. Any attack on the propriety of the order must be by judicial process and not willful disobedience. Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975); Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1976); Houston v. Hennessey, supra. “No man may judge his own case. If one man may determine the law of his own case, all men may do so. If parties make themselves the judge of the validity of a court order regularly entered respecting their conduct or cause of action, then the courts become impotent and judicial power becomes a mockery, (citations omitted) Until the judgment of a court is set aside by such court upon reconsideration, or is reversed for error upon orderly procedure, its orders must be respected by full obedience. Disobedience of such orders is contempt of its lawful authority and punishable as such.” State v. Koon, supra at 455. Thus, a contempt conviction may not be attacked on the grounds of vagueness of the order where contemnors have, as here, engaged in conduct clearly proscribed thereby. Mechanic v. Gruensfelder, supra.

Petitioner’s allegations regarding the insufficiency of the evidence to support their convictions are likewise without merit. In the truck obstruction incident, the court found that petitioners Hambrick, Becht, Manion and McKenzie acted in concert with others to cause automobiles to block the path of a truck occupied by Charles Henkle, a Grey Eagle customer, and to obstruct its forward movement until Henkle agreed to return the beer he had just purchased. There was some evidence from which the court could reasonably conclude that these petitioners caused the automobiles to block Henkle’s path. But more important, there was sufficient evidence to establish that they participated in the obstruction of the vehicle once halted. Each admitted being in the group of ten to twelve strikers who approached the truck and demanded that the beer be returned. Under these circumstances and within the context of this violent strike, the court could find that these actions constituted obstruction “done will-" fully and deliberately for the purpose of intimidating coercing and harassing a customer” of Grey Eagle in violation of the restraining order. When a small crowd of people descends upon a vehicle it caused to be blockaded and makes demands upon the occupants to engage in conduct contrary to their previous intention, the court could find inherent intimidation, harassment and coercion. The mob manner in which these men conducted themselves belies their stated informational purpose. If one or two of the strikers had approached Henkle’s truck to explain the Union’s position we would have difficulty finding a violation of the order, but the methods employed here, as corroborated by photographic evidence, were patently contrary to its terms. One of the court’s specifications of contempt being sufficiently established, the conviction will stand.

Likewise, the conviction of petitioner McKenzie in the window breaking incident, though based entirely on circumstantial evidence, is supported by the evidence. There is no question that this destructive conduct violated the terms of the restraining order. The only real issue here is whether there was sufficient proof that McKenzie was responsible for the damage. We believe there was. The testimony of Winston Kratz, Jr. that the vehicle involved was similar to that in which McKenzie and Woodson were discovered, the close proximity in time and distance to the scene of the crime, as well as the unsolicited explanation of the motive for the window breaking by McKenzie showing his guilty knowledge of the crime established sufficient, cumulative interdependent facts to sustain McKenzie’s conviction. However, the case against petitioner Woodson rests only on his presence with McKenzie at the time their camper was halted. We find the evidence against Woodson insufficient to support his conviction for contempt, as it is not inconsistent with a reasonable hypothesis of innocence. State v. Gastaldi, supra.

The convictions of petitioners Man-ion and Hosfeld for bracketing Andy Gara-nella’s truck in traffic are substantially supported by the evidence. The testimony contained in Garanella’s stipulation that at least three car loads of strikers followed him from Grey Eagle and at various times positioned themselves on the front, side and rear of his vehicle so that he was completely surrounded was corroborated by the testimony of Gerald Koester. Petitioners admit their presence and that the events described may have occurred en route, but deny intimidation. We believe that given the evidence of previous incidents of violence accompanying the following of plaintiffs’ customers’ vehicles and petitioner Gir-ard’s statement that bracketing would be wrong, the court could reasonably find that such action was deliberately undertaken for the purpose of intimidating and harassing Garanella in violation of the restraining order. In this instance, as in the truck stopping episode, the Union’s method of procedure negates its stated purpose and bolsters the court’s conclusion. The strikers’ mass action of bracketing could have no legitimate lawful purpose. It invited evasion tactics and retaliation by Garanella because of the fear it engendered in him. As such, it posed a grave potential for harm to Garanella as well as all other members of the public travelling on the same streets. The evidence is sufficient to support these convictions.

Finally, we reach the convictions of the members of the Union’s executive board for adopting and promulgating the policy of following plaintiffs’ customers. Petitioners admit adopting said policy and disseminating it to their members for implementation. They argue, however, that the court was without jurisdiction to prohibit such practice because it was preempted by federal labor law; furthermore, that the policy, as adopted, did not violate the literal terms of the restraining order.

It is true that one may not be held in contempt for violation of an order the court was without jurisdiction to issue. Ex Parte Irwin, 6 S.W.2d 597 (Mo.banc 1928); State ex rel. Hyde v. Westhues, 316 Mo. 457, 290 S.W. 443 (banc 1927). The court here, however, had jurisdiction to issue this order. Any aspect of a labor dispute which is arguably a protected activity under § 7 or an unfair labor practice under § 8 of the National Labor Relations Act may not be directly regulated by state courts because of federal preemption, San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). See generally Cox, Labor Law Preemption Revisited, 85 Har.L.Rev.1337 (1972). But the power of state courts to enjoin violence and preserve the peace as well as to prohibit other actions deemed detrimental to the public health and safety has not been precluded even when an incidental effect is to regulate the parties to a bonafide labor dispute. Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958); Garner v. Teamsters, Chauffeurs and Helpers Local 776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953); Tail-man Co. v. Latal, 365 Mo. 552, 284 S.W.2d 547 (banc 1955), “Nothing in the federal labor statutes protects or immunizes from state action violence or the threat of violence in a labor dispute.” Farmer v. Local 25, 430 U.S. 290, 299, 97 S.Ct. 1056,1063, 51 L.Ed.2d 338, 349, 350 (1977). Furthermore, a state may even enjoin peaceful labor activity, such as picketing and patrolling, when they are so enmeshed with contemporaneously violent and illegal conduct as to be part of a pattern of violence and fear. Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836 (1941). A state may “protect its storekeepers from being coerced by fear of window smashings or burnings or bombings. And acts which in isolation are peaceful may be part of a coercive thrust when entangled with acts of violence. The picketing in this case was set in a background of violence. In such a setting it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful.” Id. at 294, 61 S.Ct. at 555. The court was not required by federal labor law to sit inactive atop this powder keg waiting for it to fulminate. We believe that its order did no more than restrain future acts of violence and other activities which were designed to nourish the “momentum of fear generated by past violence”; therefore, the order issued was within its subject matter jurisdiction. See Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957).

Finally, we conclude that the practice of following violated the terms of the restraining order. There was abundant evidence of violence accompanying following episodes both before and after issuance of the restraining order. It was obvious from the testimony, and was manifested to petitioners by their conduct when subjected to it, that the customers were uniformly frightened and intimidated by the Union’s program of following. While it is true that the court did not specifically forbid following, it did forbid intimidation, harassment, and coercion of customers. The meaning of these terms is clear to one acting in good faith. The court was not required to denominate every type of prohibited conduct which would intimidate, harass and coerce customers. Use of generic terms was sufficient to give petitioners fair warning. If they questioned the permissibility of this practice, the proper course was a motion to modify the order, not reckless disobedience of its literal terms. The fact that the policy was designed in the abstract to be non-violent is irrelevant. Violence and fear of violence did occur as a direct result of this policy and the petitioners’ testimony that they were unaware of that fact is unworthy of belief. Nor is it relevant that the executive board members, themselves, did not engage in following. Those who direct and control the implementation of contemptuous activity so as to cause members of their organization to violate a court order may not evade a contempt citation by the circuity of their involvement. The role played by the members of the executive board in adopting and continuing the policy of following with full knowledge of the intimidation and violence it engendered is analogous to that of the leaders of the demonstration in Curtis v. Tozer, supra, who were held guilty of criminal contempt. Though the evidence did not support a finding that the leaders, themselves, had engaged in conduct directly violative of the literal terms of the restraining order, the court found that they had “directed, controlled, supervised and planned the demonstration, while the restraining order was in force so as to cause members of their organization and others to violate the restraining order [Tjhese petitioners were found to have aided, abetted and counseled others to engage in the described activities violating the restraining order. There can be no doubt that such activities are punishable for contempt.” Id. at 581-582. The members of the executive board were the deliberate instigators of acts of contempt and may be punished as such; the punishment meted out by the trial court was condign.

We find that all petitioners, except Robert Woodson, are not illegally restrained; that our writs as to all such petitioners should be quashed; that such petitioners be remanded to the custody of the respondent. As to Robert Woodson, we hold that he is illegally restrained, in that the evidence does not support a finding of guilty beyond a reasonable doubt of the specifications found in the judgment entered against him. Accordingly, Robert Woodson is to be discharged.

KELLY, P. J., and WEIER, J., concur.

      . These included a firebombing of Lohr’s premises and threats against the life of its chief operating officer. The petition admitted that these violent acts were committed by unknown persons but alleged that they were directly related to the current strike.

      . At the conclusion of the June 3 hearing, Judge Gaertner ordered paragraph (g) stricken from the restraining order, because it had been improvidently included by the court under the mistaken belief that the entrance to Grey Eagle’s premises was located at this intersection when, in fact, it was located two blocks away. Although no individual was cited for violation of this paragraph, the evidence shows that the activity which it prohibited was openly and consistently engaged in by members of the Union in defiance of the order.

      . In addition to petitioners herein nine other individuals were served with notices of prosecution for contempt. These individuals, however, were acquitted.

      . This precarious situation was further exacerbated by the contemporaneous existence of a second and unrelated strike by another union against Anheuser-Busch directly. Numerous acts of violence and property damage were alleged to have been precipitated by this second dispute and directed at many of the same persons and businesses as the strike in this case.

      . Lieutenant Delling’s first statement to McKenzie on stopping his vehicle was “[A]ren’t you guys a little bit old to be throwing bricks?” He did not elaborate further on whose windows had been broken.

      . Gerald Koester is a professional photographer employed by plaintiffs to gather photographic evidence of the Union’s violations of the restraining order.

      . In its Findings of Fact the court concluded the following:
      “5. That the Executive Board of Local 133 thereupon adopted, promulgated and put into effect through the members of the Union a policy and practice of having each such customer who picked up beer followed to his destination, ostensibly for the purpose of identifying such customer and later publishing in a labor newspaper the fact that such customer had crossed a picket line and was ‘unfair’ to labor.
      “6. That this policy and practice was, with the knowledge and direction of the chief executive officer and the members of the Executive Board of the Union, carried out by means of a gathering of large numbers of strikers near, but not at, the respective entrances to plaintiffs’ warehouses with numerous and varied vehicles which pursued each customer as he left plaintiffs’ premises; this ‘following’ in most instances was performed by several vehicles (as many as five in at least one case), each usually occupied by more than one striker, and in a very ostentatious and conspicuous manner.
      “7. That prior to and after the issuance of the Restraining Orders, certain of the customers so followed sustained acts of vandalism, such as broken windows, concrete poured into restroom urinals, or shattered windshields.
      “8. That customers of other beer distributors who also sold from their warehouses were shot at and suffered bricks and rocks thrown at their vehicles while transporting beer.
      “9. That such incidents, as well as numerous other acts of vandalism directed toward customers of beer distributors, received widespread publication by the news media and became a subject of public knowledge as well as a frequent topic of conversation among customers of plaintiffs.
      “10. That by reason of the foregoing, certain customers of plaintiffs began hiring guards and carrying firearms while transporting beer and a potential for physical violence was created in addition to the existence of a fear of vandalism and property damage.
      “11. That this atmosphere of fear and terror permeated the entire beer distribution industry of the St. Louis Metropolitan area and was known to the chief executive officer and Executive Board of Local 133. The Court finds the testimony of Board members that they had not heard of any damage to the property of any of plaintiffs’ customers unworthy of belief.
      “12. That notwithstanding all of the above, subsequent to the issuance of the Restraining Orders herein, the chief executive officer and the Executive Board of Local 133 directed the members of the Union to continue the practice of ‘following’ in the same manner as before and that such directions have been carried out by the members of the Union.
      “13. That after June 3, 1976, the date upon which three days of testimony ended and this Court issued its Order to certain defendants to show cause why they should not be held in contempt, said chief executive officer and the Executive Board of Local 133 directed that the ‘following’ policy be ‘minimized,’ i. e. to follow some but not all customers and to follow some only part of the way to their destination just to let them know they are being followed.’ This direction being given after the chief executive officer and the President of Local 133 had both spent three days in the Courtroom listening to the testimony of numerous customers of plaintiffs to the effect that being followed caused them to be frightened and amounted to intimidation and harassment.
      “14. That the practice of following customers in the manner in which it was conducted by members of Local 133, i. e. by numerous vehicles occupied by numbers of strikers, in some instances swerving in front of the customer and coming to a sudden stop, in other instances surrounding the customer by strikers’ vehicles in front, on the side and behind him, by following vehicles which have displayed thereon the name and address of the customers, by remaining at the customer’s destination and conspicuously watching the unloading of beer, by the failure to inform the customers of the claimed purpose of the following, was deliberately and willfully intended by the chief executive officer and the Executive Board to harass, intimidate and coerce customers of plaintiffs in direct violation of the Restraining Orders issued herein.
      “15. That said practice of following in such manner conducted and continued in the aforementioned atmosphere of fear and terror did indeed accomplish its intended purpose of harassing, intimidating and coercing plaintiffs’ customers.
      “16. That notwithstanding the absence of proof regarding the actual identity of the perpetrators of most of the vandalism mentioned in the evidence, it was the intention of the chief executive officer and the Executive Board of Local 133 to take advantage of the fear engendered thereby in directing the continuation of such practice after the issuance of the Restraining Orders herein for the purpose of harassing, intimidating and coercing plaintiffs’ customers in direct violation of said Order.
      “17. That the manner in which such following was conducted as described in paragraph 14 hereof, belies the stated purpose thereof, viz. to identify the customer for purposes of publishing his name and also belies the testimony of the chief executive officer that said policy and practice was not intended to violate the Restraining Orders.
      “18. That the chief executive officer and the Executive Board of Local 133 willfully and with calculated deliberation adopted and continued in effect the practice and policy of following in the manner described for the purpose of harassing, intimidating and coercing plaintiffs’ customers as prohibited by the Restraining Orders by means of a procedure which would seem legitimate were it not for the atmosphere of fear and the excesses of the following practices set forth above, and if conducted in such a manner as to limit its effect to its stated purpose of identifying customers.
      “19. That the acts and conduct of the chief executive officer and the Executive Board here-inabove described were done willfully and deliberately for the purpose and with the intent of thwarting and defeating the Restraining Orders of April 22, 1976 and April 28, 1976 and constitute contempt against the majesty of the law and the authority and dignity of the Circuit Court of the City of St. Louis.”

      . Most customers admitted that the strikers made no express threats against them in the course of following. This testimony supports the executive board’s contention that the official policy of the Union was to forbid violence and was engaged in to accomplish the purposes previously stated.

      . After this warning on June 3, 1976, the executive board voted to continue the policy of following, but decided to employ it on a random basis and then only for short distances in order to learn the customer’s identity.

      . The Union agreed to pay petitioners’ fines for them.

        . For an in depth analysis of the various forms and categories of contempt, see Ex Parte Clark, 208 Mo. 121, 106 S.W. 990 (1907); Chemical Fireproofing Corp. v. Bronska, supra.

      . Petitioners admitted in their answer to the initial complaint that they had notice of the restraining order; therefore sufficient proof of this element is not in question.

      . The continuing validity of the Meadowmoor Dairies doctrine was reaffirmed in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. John Steven DAVIS, Appellant.
    No. 38001.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 6, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.

      Howard, Singer & Meehan, Raymond Howard, Jr., St. Louis, for appellant.
    William F. Arnet, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr. Asst. Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of rape and the resulting six year sentence. We affirm.

Defendant has raised five points on appeal including insufficiency of the evidence. We examine that question first. The only evidence presented by the State on the issue of the crime itself and defendant’s involvement was from the prosecutrix. We state at the outset that her testimony was not so inherently contradictory and unbelievable as to require corroboration. State v. Gray, 423 S.W.2d 776 (Mo.1968) [4, 5], As to certain of her testimony, such as presence and location, there was corroboration in the testimony of defendant and his witnesses. Ms. W., the prosecutrix, was coming home from nurse’s aid training. She was walking in the vicinity of Martin Luther King Drive and Marcus in the city of St. Louis at approximately noon. Gathered around a car across the street from her were a group of men, including Lavern Peters, James Beard and defendant. Some of the group were drinking. Ms. W. was acquainted with Peters from her church. Peters crossed the street and grabbed Ms. W. by the arm and said “you are going to suck my dick.” Ms. W. protested and a considerable discussion or argument took place between her and Peters, with her constantly requesting that he let her go and his insisting on taking her into a house located nearby. Finally, he forced Ms. W. into a house at 1435 Marcus, the home of defendant. Peters then forced Ms. W. to accompany him to the basement of the house where he began disrobing and told Ms. W. if she did not cooperate he would have all the men from across the street come down the basement and leave her with them. She believed this. He struck her, then grabbed her by the neck and forcefully compelled her to perform fellatio on him. While Ms. W. was engaged in this act, James Beard came into the basement. When Peters had finished with Ms. W., Beard knocked her down, grabbed her by the neck and forced her to perform fellatio on him. While she was engaged in this act with Beard, defendant came into the basement and Ms. W. pulled her head up and saw defendant watching them. Beard became angry, threatened Ms. W., hit her, and forced her head back down upon his penis. Appellant watched Beard and Ms. W. for twenty or thirty minutes. When Beard had finished with prosecutrix, he and Peters left the basement.

When they had left, defendant approached Ms. W. as she lay on a sofa, pulled off her slacks and undergarments and had sexual intercourse with her. Ms. W. said she did not consent to this act, that she was crying throughout the time she was in the basement, that she did not resist defendant nor specifically refuse to have intercourse with him. When defendant had finished, Peters and Beard returned to the basement and with defendant still present forced Ms. W. to spread her legs while they struck matches "so they could see.” Ms. W. was then allowed to put her clothes on and when she went upstairs to get her school books defendant said to her that he did not know she was being forced and if he had known “he would not have allowed it.”

Defendant denied being present during the acts of Peters or Beard and denied that he was aware that they had acted with force. He stated he was told by Peters that Ms. W. was in the basement, that he went down to the basement and asked Ms. W., whom he had never previously met, to have sex with him and that she consented. However, he either changed his mind because he was late for work or was unable to perform and therefore had no intercourse with Ms. W. The thrust of defendant’s testimony and of his witnesses was that Ms. W. willingly and freely agreed to the sexual activities that occurred in the basement and consented to intercourse with defendant which he did not consummate.

The thrust of defendant’s challenge to the sufficiency of the evidence is that there is no showing of a lack of consent to defendant’s sexual intercourse. Consent to intercourse induced by fear is no consent. State v. Davis, 497 S.W.2d 204 (Mo.App. 1973) [4-6]. An array of physical force which overpowers a woman’s mind so she does not resist sexual intercourse obviates consent, and the man is guilty of rape. State v. Garrett, 494 S.W.2d 336 (Mo. 1973) [7]. A man is guilty of rape of a woman who submits to intercourse through fear of physical violence, even when that fear is caused by one other than the defendant, if the defendant at the time has knowledge that his victim is submitting through such fear. State v. Gray, 497 S.W.2d 545 (Mo.App.1973) [4]. It is further obvious that a woman confronted with threatened or actual sexual abuse by a group of men is less likely to resist each member of the group. A victim in fear of physical violence or emotionally overcome by the prospect of repeated unwanted invasions of her body may well not resist, may consent, or even invite, further invasions simply to terminate the ordeal. In such circumstances a jury may well find a lack of legal consent and consequently rape.

We find the evidence here sufficient to support the verdict. The evidence supports a finding that Ms. W. was threatened, struck several times, choked and sodomized twice by Peters and Beard. Defendant was present and observed some of Beard’s actions, including violence toward the victim. Her failure to resist or refuse consent to defendant’s actions does not, under those circumstances, require a finding that she voluntarily consented to intercourse with defendant. See State v. Gray, supra, 497 S.W.2d 548.

Davis’ next contention is that the Court erred in the verdict-directing instruction by allowing the jury to find guilt upon finding that defendant either acted alone or acted knowingly and with common purpose with another. It is contended that neither of these submissions is supported by evidence. We find both submissions were supported by evidence. There was sufficient evidence upon which the jury could find Peters, Beard and defendant were acting together with a common purpose. Their presence together before the victim was approached by Peters, their entry in seri-atim into the basement, the presence of all three in the basement on two different occasions while the victim was being abused, and the use of defendant’s house for the attack all support an inference that they were acting in concert. On the other hand, the evidence also supported an inference that the men were not in concert in their actions and that defendant simply took advantage of a fear and emotional distress which he knew Beard had engendered in the victim to satisfy his own lascivious purpose. State v. Gray, supra, 497 S.W.2d 549. We find no error in the alternative submission.

Defendant complains that he was unduly restricted in his cross-examination of Ms. W. He points to five occasions on which the Court sustained objections to defendant’s cross-examination, either on the ground that the question was repetitious or argumentative. We find the Court’s action in each case to have been within its discretion and proper.

Defendant also contends the Court erred in permitting the prosecuting witness to testify to “vivid and lurid sexual acts performed prior to and after the alleged crime by persons other than defendant.” We find no error. Ms. W’s description of the conduct of Peters and Beard was relevant on the question of her consent and of her state of mind when defendant had relations with her, and of defendant’s knowledge that she had been placed in fear. Her testimony concerning the match incident was relevant on the question of defendant’s participation with Peters and Beard in the events in the basement. That Ms. W.’s testimony was graphic is hardly objectionable as the acts performed upon her were lurid and their description was necessary for the jury to assess her state of mind and defendant’s knowledge of that state of mind.

Defendant’s last contention is that the Court “made improper comments and asked improper questions, within the hearing of the jury.” One incident concerns the Court’s questioning of defendant about whether his mother was home at the time the crime was committed and whether defendant had been drinking at the time. The second incident occurred at the end of the testimony of one of defendant’s witnesses as follows:

“The Court: Have you been drinking?
A. No, not when I am taking medication.
The Court: All right, you may step down.”

Neither of these incidents was objected to and they have not been preserved for review. State v. McCullough, 411 S.W.2d 79 (Mo.1967). Nor do we find plain error. The first inquiries were conducted with impartiality and do not reflect bias or prejudice toward the defendant. The areas covered clarified matters which had been touched upon but not developed in earlier testimony. The questioning was within the Court’s inherent power in the administration of justice. State v. Cain, 485 S.W.2d 60 (Mo.1972). The second incident also is not prejudicial on the record before us. Since no objection was made, we are afforded no explanation by the Court why the question was asked. We must presume it was because of something apparent to the Court in the witness’ demean- or, which presumably was also apparent to the jury. The answer served to explain such demeanor to the jury and may well have benefited defendant. It would have perhaps been wiser to have made the inquiry outside the hearing of the jury, but we are unable to find manifest injustice to the defendant in the way the matter was handled.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: DOWD, Judge.

text:
    In re Marriage of Harriet L. HALBROOK, Petitioner, Respondent, v. Chester W. HALBROOK, Respondent, Appellant.
    No. 37975.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 13, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.
    Shaw, Howlett & Schwartz, Robert W. Meyers, Clayton, for defendant-appellant.
    Kramer, Chused, Shostak & Kohn, Kenneth J. Bini, St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Harriet L. Halbrook filed a petition for dissolution of her twenty-eight year marriage in the Circuit Court of the County of St. Louis on November 4, 1974. She requested custody of the only unemancipated child, a boy age fifteen and also requested attorneys fees, child support and maintenance, and all marital property. Chester W. Halbrook filed a cross petition for dissolution, requesting custody of the child and also requesting all marital property. The court granted a dissolution of the marriage and ordered custody of the child to the husband. The court made the following division of the marital property: Harriet Halbrook was awarded the family residence which was free of mortgage and valued at $30,000, all furniture and furnishings, and a 1972 Chevrolet which was in her possession at that time. Chester Halbrook was awarded one 1974 Chevrolet pickup truck. There was $2600.00 owed on the truck. The court denied the wife’s requests for maintenance, and denied her request for additional attorneys fees.

The only appeal of the judgment is by the husband. His sole point on appeal is that the trial judge awarded an excessive amount of marital property to the wife.

Respondent wife asks that the appeal be dismissed because the Point Relied On portion of the brief does not specify why the award was excessive. This motion is denied. For an excellent analysis of the proper writing of an appellate brief, see Weier & Fairbank, “Why Write a Defective Brief?”, 33 J.Mo. Bar (No. 2), at 88 (1977).

In this court-tried case, we are required to affirm the judgment below 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. In re Marriage of Carmack, 550 S.W.2d 815, 817[1] (Mo.App.1977); Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

Section 452.330 RSMo Supp.1976 lists four factors which the trial court must consider in dividing marital property: 1) the contribution of each spouse to the acquisition of the marital property; 2) the value of the property set apart to each spouse; 3) the economic circumstances of each spouse at the time of the division of the property; 4) the conduct of the parties during the marriage. These factors are not exclusive. In re Marriage of Heddy, 535 S.W.2d 276, 281 (Mo.App.1976).

We note that the trial court did not make findings of fact and conclusions of law, nor was it required to do so in the absence of specific request. Accordingly, all fact issues are considered to be in accordance with the result. Stark v. Stark, 539 S.W.2d 779, 781[1] (Mo.App.1976).

We find that the wife contributed to the acquisition of the marital property by serving as homemaker for 28 years and raising three sons. She also had a job outside the home from 1966-68. We also note that there was some evidence of misconduct on the part of the husband.

The trial court is clothed with broad equitable powers to fashion decrees under the Dissolution of Marriage Act, including the inherent power to adjust the financial equities as between the parties. McCully v. McCully, 550 S.W.2d 911 (Mo.App.1977). The division of property between husband and wife is a subject peculiarly within the discretion of the trial court. Conrad v. Bowers, 533 S.W.2d 614, 623[18] (Mo.App.1975). A fair and equitable distribution of property cannot be accomplished by the rigidity of a mathematical formula. Seiner v. Seiner, 552 S.W.2d 54, 56[3] (Mo.App.1977). Rather the standard for dividing property is one which is flexible, and which balances respective contributions resulting in fairness and manifest justness. Corder v. Corder, 546 S.W.2d 798, 804[9] (Mo.App.1977).

The trial court decree granted the home, furnishings, and the 1972 Chevrolet to the wife. The husband’s share of the marital property was the 1974 Chevrolet pickup truck, on which $2600 was owed. These were the only assets of the marriage.

At first glance the distribution of marital property may seem onesided. However, a closer examination and consideration of all the factors convinces us that it is just.

The trial judge is faced with a difficult job of dividing the marital assets between husband and wife. Rarely does his resolution satisfy both parties. We should not second guess the trial judge unless there is an abuse of discretion. Taken as a whole, we believe the distribution is fair and equitable and is supported by the record.

The wife’s salary is $366.64 per month. The husband earns $960 per month as a truckdriver. He testified at trial that he planned to take an early retirement due to illness and his pension would be $406.00 or $450.00 per month; the testimony is unclear on this fact.

The wife was awarded no maintenance. Her salary will be her only income. She must not only bear sole responsibility for taxes, insurance, and repairs of the home, but must begin to plan for the time when she is no longer able to work. The record does not show her age—we assume she is about the same age as her husband, who was 55 at the time of the trial. In contrast, the husband’s pension will last as long as he lives. Furthermore, the husband and son are now living with the husband’s married sister and paying $240 per month for room and board. The husband, his sister, and his son all testified that this arrangement was working out satisfactorily.

We find that there was substantial evidence to support the decree of the trial court, and it did not erroneously declare nor erroneously apply the law. Murphy v. Carron, supra.

The judgment is affirmed.

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

      . The 15 year old son testified that he strongly preferred living with his father.


author: REINHARD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Excell CARTER, Defendant-Appellant.
    No. 38152.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 4, 1977.

      Robert C. Babione, Public Defender, Robert G. O’Blennis, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Gregory D. Hoffmann, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for - plaintiff-respondent.
   REINHARD, Judge.

The defendant appeals from a conviction of forcible rape and robbery in the first degree. Defendant was sentenced by the court under the Second Offender Act to thirty years imprisonment on each count, the terms to run concurrently.

Because defendant does not challenge the sufficiency of the evidence, we will discuss only those facts relevant to the specific errors alleged. On February 28, 1975, two men forced their way into the apartment of the prosecutrix. Threatening her with a knife, the men raped her, and stole her watch and money belonging to her brother with whom she shared an apartment.

Defendant’s first point is that the court erred in denying a motion for mistrial when the defendant was handcuffed by the sheriff in front of the jury during a disturbance in the courtroom. Defendant asserts that such action clearly prejudiced the jury by showing that the court believed that the defendant had a propensity for violent behavior.

While the prosecutrix was testifying, there apparently was a disturbance in the spectator section of the courtroom. The record reveals the following exchange between the trial judge and defense counsel outside the hearing of the jury:

“MR. O’BLENNIS: Your Honor, I would like to object to the sheriff having placed handcuffs on Excell Carter. I don’t think it was necessary; it wasn’t any display.
THE COURT: There was a disturbance in the rear of the courtroom, Counsel, that you were not aware of, and it was a necessity the second sheriff assist the first sheriff.
MR. O’BLENNIS: Was it necessary?
THE COURT: It was necessary at that time, under those circumstances, it was necessary that the second sheriff go assist the first sheriff.
MR. O’BLENNIS: Your Honor, I would like to ask for a mistrial at this time.
THE COURT: That will be denied.”

This dialogue constitutes the entire record of the incident. Defendant’s counsel did not request that the court admonish the jury to disregard the handcuffing.

A defendant has a right to appear before the jury free of shackles. State v. Kirksey, 528 S.W.2d 536 (Mo.App.1975). However, being handcuffed in the presence of the jury is not per se prejudicial and does not always cause reversible error.

In State v. Borman, 529 S.W.2d 192, 194 (Mo.App.1975), the court said:

“The trial judge is vested with a considerable, but not unlimited, discretion in determining the propriety of permitting physical restraints after weighing the relevant factors, which include the presence or absence of disruptive conduct on the part of the defendant prior to or during the trial, the presence or absence of threats of such misconduct, the trial atmosphere, the likelihood of an attempt to escape, the age and physical attributes of the accused, the nature of the offense on trial, the size and mood of the audience and the adequacy of alternative remedies. It has rightly been said that the propriety of physical restraints depends upon the particular facts of each case.”

The record provides few details about the handcuffing. Specifically, the record fails to show when the defendant was handcuffed, whether the jury could observe or was attracted to the handcuffing, how long defendant was handcuffed, or whether defendant was still handcuffed when the defense attorney was making his objection at the bench.

The defendant failed to make a record showing that the court’s ruling was unreasonable or that defendant was prejudiced. His claim of prejudice does not prove itself and is only an “unsupported assumption.” State v. Kirksey, supra; State v. Kirk, 510 S.W.2d 196, 201 (Mo.App.1974); State v. Boone, 355 Mo. 550, 196 S.W.2d 794, 796, 797 (1946), cert. den. 334 U.S. 823, 68 S.Ct. 1078, 92 L.Ed. 1752. The record merely shows that there was a disturbance in the courtroom and that defendant was handcuffed. It appears there were only two officers in the courtroom, their assistance in controlling the commotion was required, and there was no other available officer to guard the defendant during the disorder. The trial judge was aware of the indictment which alleged that the defendant was a second offender and had served in the penitentiary. He knew the defendant was presently being tried for the offenses of forcible rape and robbery in the first degree.

In his brief defendant also contends that the trial court erred in failing to give a “cautionary” instruction. Defendant, however, neglected to request such an instruction. Failure to request an instruction bars review unless failure to instruct was plain error. Cummings v. United States, 398 F.2d 377 (8th Cir.1968); State v. Jenkins, 494 S.W.2d 14 (Mo.1973); State v. Walker, 484 S.W.2d 284 (Mo.1972). We find no plain error here.

Defendant’s second point on appeal is that the court erred in failing to strike the jury panel after the prosecutor used the term “alibi witness” in his voir dire of the panel. Defendant argues that the use of the word “alibi” disparaged the defendant’s alibi defense and biased the jury by casting doubt on the credibility of defendant’s eventual witness.

During his voir dire examination of the jury panel, the prosecutor made the following statement:

“Does everybody understand this case — I can’t tell you anything about the case except that it is probably going to be two conflicting opinions, two conflicting testimonies. In other words, there’s going to be testimony that the defendant committed the crime; and there will probably be an alibi witness — .”

In response to a question from the court, defense counsel stated his intention to request an alibi instruction. The trial court then denied the request to strike the jury panel and instructed the jury to disregard the prosecutor’s statement. Defendant later put on an alibi witness and requested an alibi instruction.

The defendant makes no express showing of prejudice but relies on the contention that the prosecutor’s statement was prejudicial per se.

This contention is wholly without merit. To be sure, an instruction or comment by the prosecutor which tends to disparage an alibi witness is erroneous. State v. Smith, 358 Mo. 1, 212 S.W.2d 787, 789 (1948). Such is not the case here. The word “alibi” is not shackled with the oppressively negative connotation placed on it by defendant. Although the term “alibi” does not appear in either of the two MAI instructions concerning the defense, use of the word in an instruction has been found to be neither prejudicial to defendant nor disparaging to his defense. State v. Coleman, 441 S.W.2d 46, 52 (Mo.1969); State v. Martin, 515 S.W.2d 802, 805 (Mo.App.1974). Clearly, if the use of the word in an instruction is not per se prejudicial, then neither is its non-disparaging use by the prosecutor. The trial court has broad discretion in the control of the voir dire examination of the jury and the appellate court will interfere only when the record shows a manifest abuse of that discretion. State v. Mudgett, 531 S.W.2d 275, 279 (Mo. banc 1975). We find no such abuse.

Furthermore, the trial judge sustained the defendant’s objection and instructed the jury to disregard the prosecutor’s statement. Under such circumstances, any potential prejudicial effect of the statement was cured. The trial judge has broad discretion in the choice of a remedy for misconduct by the prosecutor. State v. Isreal, 537 S.W.2d 565 (Mo.App.1976). We find no abuse of discretion in the trial court’s refusal to strike the jury panel.

Defendant’s final point is that the court erred in allowing the identifying witness and police officers to give the improper bolstering evidence regarding the identification of the defendant as the perpetrator of the alleged act. Defendant contends that the identifying witness was improperly permitted to testify as to her identification of the defendant in a lineup and as to the details of that lineup, and that police officers were improperly permitted to bolster the credibility of the identifying witness by testifying as to her identification and the details of the lineup.

A lineup was conducted by Officers Robert Dodson and William Miller of the St. Louis Police Department. Defendant was one of four persons in the lineup as viewed by the prosecutrix. Prior to trial, defendant filed a motion to suppress any identification testimony by the state’s witnesses, asserting that the lineup had been unnecessarily suggestive and conducive to irreparable mistaken identification. After a hearing, the motion was denied.

As to the prosecutrix’s testimony about the lineup, the only objection made by defense counsel was a renewal of the grounds made in his motion to suppress: that the lineup was unnecessarily suggestive. On appeal, defendant asserts that her testimony about the lineup identification was hearsay and served only to improperly bolster her in-court identification. Since the point raised upon appeal is not based upon the theory of the objection as made at the trial, the issue is not preserved. State v. Jones, 515 S.W.2d 504, 511 (Mo.1974); State v. Davis, 482 S.W.2d 486 (Mo.1972). Furthermore, the law clearly allows an identifying witness to testify as to her extrajudicial identification of the defendant. State v. DeGraffenreid, 477 S.W.2d 57, 62 (Mo. banc 1972); State v. Rima, 395 S.W.2d 102, 105 (Mo. banc 1965). Nor was it error to permit testimony of the prosecutrix about certain details of the lineup. The weight of testimony concerning extrajudicial identification is for the jury. State v. Sigh, 470 S.W.2d 503, 505 (Mo. banc 1971). The circumstances of the lineup would serve to aid the jury in assessing the weight to be given to the identification.

The objection to Officer Dodson’s testimony was not timely raised because it was made after the testimony was given. State v. Phillips, 480 S.W.2d 836, 837 (Mo.1972); State v. Peterson, 546 S.W.2d 175, 179 (Mo.App.1976). A timely objection was made, however, to the testimony of Officer Miller and was properly preserved. While the testimony of third persons corroborating the fact that an identifying witness did identify the defendant is inadmissible, State v. DeGraffenreid, supra, 477 S.W.2d at 62, citing State v. Fleming, 354 Mo. 31, 188 S.W.2d 12 (1945), the police officers here at no time testified that the prosecutrix identified the defendant at the lineup. Their testimony dealt only with the lineup procedure, testimony which goes to the propriety of the lineup and the lack of suggestive influences. As noted above, the weight of the testimony as to a witness’s extrajudicial identification of the defendant is for the jury. State v. Sigh, supra. The testimony of these officers was admissible to provide the jury information with which to assess the weight to be given to extrajudicial identification testimony. There was no error in the admission of Officer Miller’s testimony.

The judgment of the trial court is affirmed.

McMILLIAN, P. J., and STEWART, J., concur.

      . The better practice is for the court to hold an evidentiary hearing to determine whether physical restraint is necessary. Kennedy v. Card-well, 487 F.2d 101 (6th Cir. 1973). In cases where an emergency occurs in the presence of the court, such as appears to have happened in this case, and which in its judgment requires an immediate decision to shackle the defendant, a prior hearing cannot be held. In that event the defense counsel should request the court to make a complete record.


author: McMILLIAN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Alfred Wayne KING, Defendant-Appellant.
    No. 38034.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 4, 1977.

      Cofman, Townsley, Nissenholtz & Wein-stein, Stuart A. Cofman, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant appeals from a judgment of conviction entered by the circuit court of the City of St. Louis finding him guilty of kidnapping for ransom in violation of § 559.230, RSMo 1969. The court sentenced defendant to twenty-five (25) years in the Department of Corrections. For reversal the defendant urges that admission of the transcript of the tape-recorded statement by him to police officers, after his arrest, in which he allegedly admitted to masterminding the kidnapping, violated the best evidence rule. We find no merit in this claim of error and accordingly, affirm.

On June 19, 1975, two men who purported to be delivering packages, abducted Mrs. Henrietta Helein from her home. Prior to the abduction the men pulled a gun; tied up Mildred Harold, Mrs. Helein’s sister, and forced Mrs. Helein to get into the large cardboard box which they had brought. They carried the box to their rented U-Haul van, which was parked outside. As they were leaving, both Mrs. Helein’s sister and her elderly mother, who was also in the Helein residence during the abduction, looked out the window and got the license number of the van. After about a half hour of driving, someone made a slash in the side of the box and removed the box from the van. Mrs. Helein eventually freed herself.

In the meantime, Mrs. Helein’s husband had been contacted at the bank where he was president, and told that his wife had been abducted and that he must pay $300,-000 to get her back. Before Mr. Helein could comply, he was notified by police that his wife was free.

By tracing the license number of the U-Haul van, the police learned that it was rented by Alfred Wayne King and that at the time King rented it, he was driving a Grand Prix. Seven days later the Kentucky State Patrol arrested defendant because he was driving a Grand Prix fitting the description obtained by the St. Louis police. Two St. Louis police officers traveled to Hopkinsville, Kentucky, to bring defendant to St. Louis, arriving there on Saturday evening, June 21, 1975. On Sunday, June 22, 1975, they saw the defendant twice and on Monday, the defendant admitted to masterminding the kidnapping scheme. The admission and discussion of the crime was tape recorded by the officers.

Before trial the defendant moved to suppress any statements, written or recorded, which the state intended to use in evidence against him. As grounds for the suppression of his statement, defendant alleged that the taped statement was not voluntary, was made without the defendant first being advised of his constitutional rights and that such a statement was the result of an unlawful arrest. The court overruled the motion to suppress, finding that the statement was voluntary and that defendant was not denied his constitutional rights.

At trial, one of the St. Louis police officers, who went to Kentucky and who participated in questioning the defendant about the kidnapping, was asked by the prosecutor to read to the jury the transcript of the taped confession. At this point the defense attorney objected to the admission of the transcript on the grounds that (1) the taped recording was an involuntary confession and thus the transcription of the conversation was tainted, and (2) that the transcript was not the best evidence. Because the trial court has already ruled on the first objection and because this point was not raised on appeal, we address only the objection that the transcript was not the best evidence.

It is well-recognized that “the best evidence . . . which is within the power of the party to produce must always be produced . . . .” Padgett v. Brezner, 359 S.W.2d 416, 422 (Mo.App.1962). This rule applies to sound recordings as well as documents, 4 Wigmore, Evidence, § 1183, p. 423-24 (Chadbourn rev. 1972), and would generally require that a taped confession rather than a transcript of the recording be admitted. A well-recognized exception to the best evidence rule, however, is that secondary evidence may be admitted in lieu of the original if the original is unavailable provided that the original has not been destroyed, lost or become unavailable through the fault of the proponent and the secondary evidence does not appear to be untrustworthy. United States v. Knohl, 379 F.2d 427, 441 (CA 2 1967); 4 Wigmore, Evidence, § 1192, p. 436. Therefore, in allowing secondary evidence to be admitted the proponent must prove three things (1) the original is unavailable; (2) for some reason which is not the proponent’s fault, and (3) the secondary evidence is trustworthy.

We believe the first criterion has been proven. The taped confession was an extensive series of questions and answers about the kidnapping incident supposedly interspersed with references to parole violations and past offenses by the defendant. To avoid the possibility of admitting this prejudicial information, the attorneys presumably agreed that the transcript deleting all such references would be read at the trial. We do not know the extent of the references to prior crimes and how difficult it would be to play the tape, deleting these parts. Nor is it clear that the defense attorney actually agreed to the use of the transcript rather than the tape, or whether he merely discussed it with the prosecutor. Whether or not the original is unavailable, however, so as to allow secondary evidence is within the trial judge’s discretion, L. S. v. L. M. S., 538 S.W.2d 753, 755 (Mo.App.1976); Nibler v. Coltrane, 275 S.W.2d 270, 274 (Mo.1955); Scrivner v. American Car & Foundry, 330 Mo. 408, 50 S.W.2d 1001, 1008 (Mo. banc 1932) and the trial judge here was in a position to assess the above problems with the tape and any agreements thereto. We shall defer to the lower court’s conclusion that the tape was in fact unavailable, because of the incriminating references in the tape and especially because the defendant has not presented any evidence that these references could be effectively deleted from the tape.

As for the second criterion, it is clear that the tape has not become unavailable through the fault of the proponent. The objective of this criterion is to prevent the proponent from taking deliberate affirmative action to destroy the best evidence for the purpose of preventing its production in court. Sylvania Elec. Products, Inc. v. Flanagan, 352 F.2d 1005, 1008 (1st Cir. 1965); Leighty v. Murr, 194 Mo.App. 156, 186 S.W. 734 (Mo.App.1916); 4 Wig-more, Evidence, § 1198, p. 455-460. This is obviously not the case here for the tape is unavailable only because of the prejudicial information on it, and the precautionary action of using a transcript was taken only to protect the defendant.

Lastly, the proponent of the secondary evidence must demonstrate that it is trustworthy. We agree with the California Supreme Court that a police officer who overhears or is a participant to a conversation may verify the transcript. People v. Ketchel, 59 Cal.2d 503, 30 Cal.Rptr. 538, 381 P.2d 394, 400. Officer Baldwin, who participated in the discussion with the defendant about the kidnapping, listened to the tape immediately before testifying and verified that the transcript was accurate. This sufficiently established the truthfulness of the transcript. Thus, the state has met all three criteria necessary to introduce the secondary evidence.

To support his argument that the transcript should not have been admitted the defendant relies on U.S. v. McMillan, 508 F.2d 101 (8th Cir.) (1974) cert. den. 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782, which cautioned that the use of transcripts should be limited to situations where the tape contains inaudible portions or is necessary to identify the speakers, and that the transcript should not be admitted unless both sides stipulate to their accuracy and agree to their use. The defendant also relies on Duggan v. State, 189 So.2d 890 (Florida App.1966), which held that the admission of the transcript was reversible error because it violated the best evidence rule, the rules against undue repetition and improper emphasis, and because it constitutes hearsay. If the facts of these cases were consistent with the case at bar adherence to them would preclude the use of the transcript. These cases, however, involved the situation where both the tape and transcript were introduced into evidence. The error complained of was cumulative effect and undue emphasis rather than introduction of the transcript in lieu of the tape, which is the issue here. Thus, the admonitions in these cases to limit the use of transcripts are inapplicable to this case.

Because the state has adequately demonstrated the propriety of using the transcript, we hold that its use did not violate the best evidence rule and accordingly, affirm.

Judgment affirmed.

STEWART and REINHARD, JJ., concur.


text:
    Denise O. GOFF, Plaintiff-Respondent, v. J. William GOFF, Defendant-Appellant.
    No. 38426.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 4, 1977.
    James E. Wollrab, O’Fallon, for defendant-appellant.
    Robert J. Koster, St. Louis, for plaintiff-respondent.
   REINHARD, Judge.

Appellant J. William Goff appeals from the decree dissolving his marriage to respondent Denise 0. Goff. In his appeal, appellant challenges neither the dissolution of the marriage itself, the portions of the decree relating to the custody of the children, nor the grant of child support or the division of marital property. Appellant attacks only that portion of the decree awarding respondent $300.00 per month for maintenance for herself for a period of four years from the date of the order.

Appellant and respondent were married for nine years prior to appellant’s moving from the marital home in March, 1976. Two children were born of the marriage and appellant adopted respondent’s child of a previous marriage. Respondent had four years of college where she was trained to be an actress. Except for a six day stmt as a sales clerk, respondent was not employed during the nine years of the marriage.

In its decree dissolving the marriage, the trial court awarded custody of the three minor children, ages six, seven and fifteen, to the respondent, and $350.00 per month in child support. In the division of marital property respondent was awarded the family home (worth between $80,000.00 and $85,000.00) and all the furniture contained therein, and respondent was to assume responsibility for all deeds of trust on the home (totaling $58,000.00). Respondent was also awarded the 1969 Cadillac owned by the family, the amounts in the parties’ formerly joint bank account, which was less than $1,000.00, and attorney’s fees in the amount of $1,800.00. Applying the standard of review established in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we affirm.

The awarding of maintenance payments, as well as the amounts and duration of those awards, are within the sound discretion of the trial court, whose decision will not be overturned except upon a finding of abuse of discretion. Naeger v. Naeger, 542 S.W.2d 344 (Mo.App.1976); Larison v. Larison, 524 S.W.2d 159 (Mo.App.1975). We find that the award of maintenance by the trial court, well supported by both the evidence and the law, did not constitute an abuse of the court’s discretion.

Appellant first asserts that the trial court erred in making the award because respondent had already completed four years of college education and had offered no evidence to support any need or intention to seek further education and because respondent had demonstrated her ability to obtain appropriate employment. Section 452.335, states that the court may grant maintenance only if it finds that the party seeking it:

“(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.”

No mention is made in the statute of education requirements. A college education may be relevant to a determination of the party’s capacity for appropriate employment, but by itself does not preclude an award of maintenance. Moreover, maintenance may very well be appropriate to give one time to gain advanced educational accreditation. Nixon v. Nixon, 525 S.W.2d 835 (Mo.App.1975).

Clearly, the evidence supports the finding that respondent meets both statutory requirements for receipt of maintenance. Respondent lacks sufficient “income-producing” property to provide for her reasonable needs, even when the marital property awarded to her is considered. Brueggem-ann v. Brueggemann, 551 S.W.2d 853 (Mo. App.1977); Nixon v. Nixon, supra at 838. Nor is she required to sell any of her assets, such as the family home, in an attempt to meet these needs. In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975); In re Marriage of Schulte, 546 S.W.2d 41 (Mo.App.1977).

As for having demonstrated her ability to obtain appropriate employment, the evidence shows that respondent was not employed during the nine years of the marriage, and respondent testified as to her lack of secretarial skills. Her work experience was minimal and she had no history of any reliable or steady employment. She testified that she was only trained to be an actress and that there were few opportunities available in that field. She testified she could do other work if she “learned how to do it”.

Furthermore, the respondent was granted custody of the three minor children, two of whom are under the age of ten. This is a circumstance that the court could properly consider.

Appellant further contends that the respondent had an existing average income of $275.00 per month and had presented evidence that she would need only $259.00 per month for support, thereby making an award of $300.00 per month excessive. We reject this contention. Respondent’s income and expense statement indicated monthly expenses in the amount of $259.00 for herself and $470.00 for the children. She testified to expenses in addition to those stated in her expense account. The court awarded respondent the family home, which was encumbered by two deeds of trust. Combined monthly payments on the deeds of trust total $715.00, which amount the wife is required to pay. The division of property necessitated a recompu-tation of the expenses claimed by each spouse in their income and expense statements which were filed with the court before the trial commenced. Brueggemann v. Brueggemann, supra. Furthermore, the $275.00 per month average income quoted by appellant was computed for a four-month period and included $800.00 from a play, a job which respondent testified is not likely to recur on a regular basis. Even assuming an existing average income of $275.00 per month, respondent’s projected expenses far exceed $575.00, which includes $300.00 per month maintenance and a $275.00 per month average income. Therefore, considering the expenses and income of the respondent, we find that there was no abuse of discretion by the trial court as to the amount of the award.

As to appellant’s final claim that the court failed to properly consider appellant’s ability to pay the $300.00 per month for maintenance, we must again rule against the appellant. Appellant testified that his income averaged $975.00 per month from January, 1976 to August, 1976, and that he cannot afford to pay the $650.00 per month in child support and maintenance. Failing to produce any documentary evidence of the $975.00 per month figure, appellant testified that he computed his income on the basis of bank deposits he had made. In contradiction, evidence was introduced as to the following financial statistics of appellant’s history. His 1974 tax return reflected gross fees of $20,000.00; he made bank deposits totaling approximately $10,-000.00 between December 15, 1975 and March 15, 1976; during the period from January, 1976 to August, 1976, appellant owned a 1976 Cadillac, which he sold in August, 1976, for $6,500.00 cash, purchased a 1973 Camaro for $2,769.00, leased a 1976 Oldsmobile in his company’s name, and purchased a $7,000.00 Chevrolet van in his company’s name. Since the evidence concerning the income of the appellant is conflicting, we defer to the trial court and its opportunity to evaluate the credibility of the witnesses. LoPiccolo v. LoPiccolo, 547 S.W.2d 501, 503 (Mo.App.1977); Conrad v. Bowers, 533 S.W.2d 614, 619 (Mo.App.1975). Substantial evidence was presented to sustain the trial court’s implicit finding that appellant could meet his own needs while paying the maintenance awarded to respondent under § 452.335. We find no abuse of discretion.

Having considered the various contentions of the appellant and having found them to be without merit, we affirm the decree of the trial court.

McMILLIAN, P. J., and STEWART, J., concur.

      . The court stated: “ . . . Respondent is further Ordered to pay to Petitioner the sum of $300.00 per month as and for maintenance for herself for a period of four years from the date of this order, at which time said maintenance will terminate and during which period of time Petitioner can further her education and her ability to seek and obtain employment.”

      . It is unclear from the evidence as to whether or not she had a degree.