text:
    Charles Edward WIMBERLY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37433.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 18, 1977.
    Motion for Rehearing or Transfer Denied March 15, 1977.
    Application to Transfer Denied May 10, 1977.

      Robert C. Babione, Public Defender, Mary Louise Moran, Asst. Public Defender, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, for respondent.
   NORWIN D. HOUSER, Special Judge.

Appellant filed a motion under Rule 27.26 to vacate a life sentence for first degree robbery, entered upon a plea of guilty. The court appointed the public defender to represent him. The court reviewed the files, records and transcript of the hearing at which the plea was entered and overruled the motion without according appellant an evidentiary hearing. The court filed findings of fact, conclusions of law and an order setting forth the history of the case, thoroughly reviewing each assignment in the 27.26 motion in the light of the facts elicited at the guilty-plea hearing, making specific findings of fact and conclusions of law adverse to appellant on each of appellant’s allegations, and stating the reasons for denying relief.'

Appellant contends the court erred in overruling the 27.26 motion and denying him an evidentiary hearing because (1) his plea of guilty was null and void in that he was under the influence of narcotic drugs when the plea was entered; (2) he was denied effective assistance of counsel; (3) his plea was involuntary in that he was misled by counsel into believing that he would receive a 5-year sentence, and (4) his plea was accepted without an adequate determination by the trial court that the plea was voluntary and made with understanding of the nature of the charge.

To be entitled to an evidentiary hearing of a Rule 27.26 motion to vacate a sentence imposed on a plea of guilty the movant “must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974).

(1) Pleading guilty under influence of drugs?

At the guilty plea hearing appellant, 43 years of age, was asked numerous questions testing his knowledge and understanding of the procedure in which he was involved. There was no difficulty in his comprehension, understanding and grasp of the various areas of interrogation, and of the specific inquiries. His answers were lucid, coherent and responsive to the questions. His answers demonstrated as a matter of law that he was mentally competent, alert and in full possession of his mental facilities. He submitted and filed a letter from Malcolm Bliss Health Center stating that he “gave no indication of either physical or psychological pathology.” The court asked appellant “Are you at the present time under the influence of any alcohol, narcotics or medication?” He answered, “No, sir.” Appellant’s present allegations as to incompetency on the ground of narcotic influence were “obviously refuted by [his] statements at the plea proceedings and [do] not support his claim that he was entitled to a hearing.” Smith v. State, supra, 513 S.W.2d l. c. 411[5]. “Movant’s own testimony at the time of the plea refutes these contentions.” Hooper v. State, 541 S.W.2d 773, 774[3] (Mo.App.1976). Nothing about appellant’s appearance or demeanor at the time he pleaded guilty supported the allegations in his 27.26 motion with reference to mental incompetence due to being under the influence of narcotic drugs. The circuit court so found. Neither appellant nor either of his two different attorneys, one at the guilty plea hearing, the other at the probation revocation hearing, suggested any doubt as to appellant’s mental competency or intimated that he had been under the influence of narcotics when he pleaded guilty. Only after probation was revoked and he was incarcerated did appellant advance this contention. The tardiness of the claim reflects upon its good faith, sincerity and credibility.

Not only does the transcript refute the contention that when he pleaded guilty appellant was mentally incompetent, but appellant’s motion under Rule 27.26 fails to allege that such mental incompetence is not refuted by facts elicited at the guilty plea hearing, which is a requisite under Smith v. State, supra. The sentence and judgment should not be vacated on this ground.

(2) Denial of effective assistance of counsel?

On this phase of the case appellant pleaded conclusions, not facts; that counsel had only conversed with appellant “a few times,” insufficient to constitute “an adequate investigation of the legal and factual matters involved in the case.” How many times? How long and how thoroughly each time? What legal and factual matters? No facts alleging ineffectiveness are alleged. There is no showing that a defense could have been discovered or aided by further investigation. The reason is patent. The crime was witnessed by a police officer who gave chase. The officer saw appellant throw the money down during the chase. Appellant was apprehended after a short run. The wallet was found in appellant’s possession. Appellant admitted these facts. It is impossible to see how further investigation of the facts surrounding the crime would have effectively aided appellant’s cause in this situation. The burden was on appellant to “make some statement of what [his counsel’s] ineffectiveness consisted before the trial court [was] required to * * hold an evidentiary hearing.” State v. Miner, 498 S.W.2d 814, 815 (Mo.App.1973). Appellant failed to meet that burden.

(3) Appellant misled by counsel to believe he would receive a 5-year term?

The transcript refutes this contention. Appellant stated to the sentencing judge that he understood that on a plea of guilty he could be imprisoned “for anywhere from five years up to the rest of [his] natural life” and that no promises had been made “what would happen if he plead guilty.” The State recommended 10 years, but the judge openly disagreed with the recommendation on the ground that he would be released in a few years and because of appellant’s bad record (a narcotics problem for 25 years; five previous felony convictions) he would “be right back in [his present] situation.” The court said that in view of appellant’s expressed desire to be allowed probation for the purpose of undergoing the NARA program, the object of which is to cure a drug addict, the court was willing to give him the opportunity to successfully complete the NARA program. The court told appellant he was not going to follow the circuit attorney’s recommendation (of 10 years’ imprisonment); that the court intended to sentence appellant to life imprisonment, and give him a chance to “make something” of what remained of his life by granting probation, conditioned that he successfully complete the drug-cure program, failing in which probation would be revoked and “the key thrown away.” Appellant indicated that he understood this. Significantly, appellant at that time made no mention of any understanding or belief that he would receive a 5-year sentence. Instead, appellant willingly consented to and acquiesced in the judge’s announced intentions. Thereafter, while on probation, appellant committed a burglary, pleaded guilty to burglary, second degree, and was sentenced to 6 years’ imprisonment in another division of the court. At the hearing on revocation of probation appellant acknowledged all of the foregoing; admitted that he had stated at time of sentencing that he would willingly “take the probation with the life sentence”; that he had admitted in court that he was either going to spend the rest of his life in jail or that narcotics were going to kill him, and made no contention at the revocation hearing that he had been led to believe that he would only get 5 years. There is no merit in contention (3), which bears all the earmarks of an afterthought.

(4) Plea involuntary and made without understanding the nature of the charge?

The transcript refutes this contention. Appellant stated he had told his lawyer he wanted to plead guilty to the charge; that he was doing this of his own free will, with a full understanding of his rights (explained to him in detail by the judge) and of the effect of a guilty plea. The circuit attorney recited the facts. Appellant readily admitted the truth of the recital, which demonstrated every essential element of first degree robbery. Appellant denied there had been any threats or promises. He admitted he understood the minimum and maximum penalties. He wished the court to accept his plea of guilty. Asked if he understood he was to be sentenced to life imprisonment, he replied affirmatively. He expressed his desire to try to successfully complete the drug-cure program. He stated he had no legal cause or reason why sentence and judgment should not be pronounced. The trial court took every precaution to see that appellant’s plea of guilty was voluntary, and that he was entering his plea with a full understanding of the nature of the charge. The court’s patient and thoroughgoing conduct of the hearing and evident concern to see that accused was given every protection the law affords is a model of judicial propriety and rectitude. Taylor v. State, 539 S.W.2d 589[4] (Mo.App.1976); Williams v. State, 538 S.W.2d 759[4] (Mo.App.1976).

The files and records of the case, including the transcription of the hearing at which appellant pleaded guilty and the later hearing on revocation of probation (extending through 11 pages and 6 pages, respectively, in the transcript) conclusively show that appellant is entitled to no relief, and that there was no error in so declaring. Winfield v. State, 541 S.W.2d 572 (Mo.App.1976); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974); Smith v. State, supra; Kellick v. State, 536 S.W.2d 517[2] (Mo.App.1976); Snethern v. State 537 S.W.2d 250 (Mo.App.1976); McAfee v. State, 537 S.W.2d 444 (Mo.App.1976).

Judgment affirmed.

SMITH, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert A. SNEED, Appellant.
    No. 36647.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 25, 1977.
    Motion for Rehearing or Transfer Denied March 15, 1977.
    Application to Transfer Denied May 10, 1977.
    London & Greenberg, Lawrence J. Flem-. ing, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Thomas E. Dittmeier, Asst. Pros. Atty., Clayton, for respondent.
   SMITH, Presiding Judge.

Defendant appeals from his conviction by a jury of three counts of armed robbery. He received sentences of 28 years, ten years and ten years. Defendant challenges the sufficiency of the evidence, so some review of that evidence is necessary. That review is made in the light most favorable to the State.

Defendant came to the house of Michael Guffey and asked him, “if I wanted to go out to make some money.” Following Guffey’s answer in the affirmative, defendant, Michael Guffey and Joe Castelli drove to the Knoll’s apartment complex in St. Louis County around 10:00 p. m. on that night. Wearing stocking masks, which in one case was not pulled over the face and in defendant’s case fitted loosely and was torn, they pushed open the door of an apartment rented by the Weisbergs. At gun point they robbed the three Weisbergs of money, a wrist watch, and guns. Guf-fey, who testified for the State and two of the Weisbergs identified defendant as a participant in this robbery. The robbery of Mr. Weisberg formed the basis of Count I. The evidence clearly supports the verdict on this count and defendant does not seriously urge the contrary.

Guffey testified that Castelli then left the Weisberg apartment followed by Guf-fey. In the parking lot they confronted two other men, Clarence Martin and Michael Vitale. Guffey ordered both men onto the ground at gunpoint and took their wallets. These were put into the bag with the loot from the Weisberg apartment. Vi-tale stated he was confronted by one man with a gun whom he could not identify. He saw another man running across the parking lot but could not identify him. Martin said he saw three men in line seven or more feet apart coming in his general direction. Two of them passed him by and said nothing to him. The other man, with a pistol, ordered him to lie down and took his wallet. He also could make no identification except that the man who robbed him was tall and very thin. Defendant was described throughout the trial as short and stocky. All three men left together in one car.

Guffey testified that at the time of the parking lot robberies, defendant was still at the apartment or still inside the house. No discussions had been had between Guffey, Castelli and defendant about robbing anyone other than Weisberg. Guffey further stated defendant had nothing to do with the parking lot robberies and was not told about them until the three arrived back at defendant’s house. There they divided the money and each took two of the guns obtained from Weisberg. There was no evidence that either Martin or Vitale had money in their wallets or that defendant knowingly received any proceeds of the Martin-Vitale robberies.

On this record we are unable to find sufficient evidence to support the verdicts on Count II, the Vitale robbery, or Count III, the Martin robbery. While there is evidence that Guffey and Castelli committed the parking lot robberies, there is no evidence that defendant did so. His guilt for those offenses must be based upon the rule:

“If two or more persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal, if the other (or others) commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose, or as a natural or probable consequence thereof.” State v. Chernick, 278 S.W.2d 741, (Mo.1955) [2], See also State v. Paxton, 453 S.W.2d 923 (Mo.1970). [1, 2],

For this rule to apply there must be knowledge of the intention or purpose to commit the particular crime or of a common purpose as to the particular offense. State v. Porter, 276 Mo. 387, 207 S.W. 774 (1918) 1. c. 776; State v. Paxton, supra, [1, 2]. 4s was true in State v. Brooks, 513 S.W.2d 168 (Mo.App.1973), the rule also applies where the particular offense, while not originally planned, is the natural and probable consequence of the planned offense. There, the alleged assault by defendant was to prevent the victim of the planned robbery from testifying. That is akin to the murder of the robbery victim in State v. Paxton, supra.

The requisites for application of this rule of law are not found in the evidence here. The robberies on the parking lot were not in furtherance of the robbery of Weisberg, the planned crime nor the natural or probable consequence of that crime. Nor does the evidence show any knowledge by defendant of his cohorts’ intention to commit such crimes, or even that he was aware of such crimes until the parties had left the scene. The only evidence was that he had no such knowledge. The parking lot victims were unplanned targets of opportunity by Guffey and Castelli who were, in the language of the civil law, on a “frolic of their own.” Since the evidence fails to establish defendant’s knowledge or participation in the parking lot robberies we must reverse as to Counts II and III.

This largely makes unnecessary any decision on another of defendant’s points— the failure to give either MAI — CR 2.12 and/or 2.14 as to each count. As to Count I, the failure to give either of those instructions was non-prejudicial. See State v. Timley, 541 S.W.2d 6 (Mo.App.1976).

Defendant’s contention concerning the in-court identification is not preserved for review. No objection was made until the close of the evidence. Such objection must be made before trial or at the time the witness testifies to the identification. State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972) [3, 4],

The same is true of defendant’s contentions attacking the constitutionality of jury sentencing. This constitutional point was not raised until the motion for new trial, not the earliest available opportunity as is required. State v. Stock, 463 S.W.2d 889 (Mo.1971) [7]. Additionally such sentencing has been upheld in Missouri since Ex parte Dusenberry, 97 Mo. 504, 11 S.W. 217 (1889).

Judgment affirmed »as to Count I, reversed as to Counts II and III.

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.


author: WEIER, Judge.

text:
    In re the MARRIAGE OF Agnes S. UHLS, Petitioner-Appellant, and John Harlan Uhls, Respondent.
    No. 37393.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 15, 1977.
    Motion for Rehearing or Transfer Denied March 15, 1977.
    Application to Transfer Denied May 10, 1977.

      Kappel, Neill, Staed & Wolff, C. William Portell, Jr., St. Louis, for petitioner-appellant.
    Flynn & Parker, Francis C. Flynn, Mark M. Wenner, St. Louis, for respondent.
   WEIER, Judge.

This appeal brings up for review the judgment in the circuit court denying the petition of Agnes S. Uhls for dissolution of marriage. In answer to her petition, respondent-husband, John Harlan Uhls, denied that the marriage was irretrievably broken and did not seek any affirmative relief.

The marriage of the parties occurred May 30, 1953. Five children were born of this marriage. The eldest child, a girl, was twenty-one years of age at the time the case was heard in April of 1975. A good student, she attended the University of Missouri on a scholarship funded by her father’s employer. The remaining four children are boys: Christopher, born September 8, 1955; Gregory, born July 25, 1957; Gerard, born March 10,1959; and Matthew, born August 19, 1961. Mr. Uhls was employed by McDonnell-Douglas Corporation. Mrs. Uhls was not employed outside the home until October 19, 1972, when she began working as a licensed practical nurse after obtaining an appropriate education. It appears from the testimony that there was a gradual deterioration of the relationship of the parties after the early years of the marriage. There can be no dispute, however, that beginning about July, 1970, there was a complete absence of communication, mutual respect and love, tolerance of the acts and opinions of the other, kind solicitude, aid and comfort in time of need and all of the many other elements which are generally considered to be necessary for a happy marriage between a man and a woman.

Where, as here, one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court is required to consider all relevant factors including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation; and after hearing the evidence, in order for the court to find that the marriage is irretrievably broken, the petitioner must satisfy the court of one or more of the facts or conditions set forth in § 452.320, RSMo. 1969, Cumulative Supplement, 1975 as follows:

(a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) That the respondent has abandoned the petitioner for a continuous period of at least six months preceding the presentation of the petition;
(d) That the parties to the marriage have lived separate and apart by mutual consent for a continuous period of twelve months immediately preceding the filing of the petition;
(e) That the parties to the marriage have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition; .

No allegation of the pleadings or any of the evidence submitted to the court indicated that the respondent had committed adultery, and the court so found.

In regard to respondent’s behavior (Subsection (b)) the court determined that the evidence failed to show physical mistreatment which could rise to the level of abuse of respondent’s wife or children. The court remarked that respondent’s strict religious ideas and frugal mode of living increasingly offended his wife who then took extreme positions toward the handling of family finances, not eating meals with respondent, refusing to sleep with respondent or go on vacations with him or even to accept presents from him. The court concluded that although respondent’s behavior was so offensive to the petitioner that she did not wish to live with respondent or even talk with him, it was not clear that his behavior was in fact that offensive.

We have read the transcript and have concluded that the testimony of the parties with respect to behavior under Subsection (b) of the statute is contradictory on virtually every topic, with each party seeking to portray himself or herself as blameless. Due regard is given to the opportunity of the trial court to have judged the credibility of the witnesses and we affirm the court in its findings on this determination. Rule 73.01(3)(b); Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo.banc 1976); Murphy v. Murphy, 536 S.W.2d 951, 953[3] (Mo. App. 1976).

In respect to abandonment (§ 452.-320.2(l)(c)), the trial court pointed out that the strongest evidence of abandonment was that respondent had installed a lock on his door to the bedroom in which he lived but the evidence clearly indicated that petitioner voluntarily left the marital bedroom in July of 1970 and never sought to return. Respondent did not place a lock on his door until some two years after petitioner quit the bed of the parties. Both of them ceased sexual intercourse by a separation instituted by the petitioner and consented to by her. Furthermore, respondent continued to maintain the family and provide at least the essentials necessary for their sustenance. Abandonment may be established by cessation of cohabitation without good cause with intent on the part of the deserter not to resume living with the other party together with an absence of consent to the separation on the part of the alleged abandoned party. Constructive abandonment may be established by proof of indignities rendered to the other party so as to justify him or her in refusing to live with the other. Thomason v. Thomason, 262 S.W.2d 349, 351[2] (Mo.App.1953). The finding of the court that abandonment did not exist here is supported by the evidence that petitioner sought the separation that existed between the parties.

The fourth and fifth basis upon whieh the petitioner must satisfy the court before a marriage may be found to be irretrievably broken is that of living separate and apart. Under § 452.320.2(l)(d), parties to the marriage must have lived separate and apart by mutual consent for a continuous period of at least twelve months immediately before the filing of the petition. Subsection (e) requires that the parties must have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition but does not require mutual consent. Here the court determined that although the parties no longer live together as man and wife, the fact that they occupied the same home and performed a number of normal marital duties ruled out any finding that they were “living separate and apart.” Although a finding that the parties lived separate and apart by reason of constructive mutual consent might be sustained upon appeal if that determination had been made, the determination was not made and we disregard this ground to pass on to the final basis for finding the marriage to be irretrievably broken. Here the court determined that the parties had not lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition because they were occupying the same home and performing a number of normal marital duties.

As pointed out by the court, the petition did not allege living separate and apart as a ground for the breakdown of the marriage and a decree of dissolution. There can be no doubt, however, that the issue with regard to living separate and apart was tried by petitioner with the consent of the respondent and the court rightfully considered this ground when it made its final determination. Under our procedure, issues not raised in the pleadings may be tried by consent of the parties and where so tried, they are treated as if they had been pleaded. Amendment of the pleadings, even though not formally requested, is presumed and will not affect the trial of the issues. Rule 55.33; Murphy v. Murphy, supra at 952[2],

Former divorce laws of this State did not contain a ground for divorce based upon “living separate and apart” for a specified time. (See § 452.010, RSMo. 1969, now repealed.) The only separation recognized as a cause for a divorce was desertion. As could be expected, no cases interpreting the phrase “living separate and apart” existed under the former divorce laws which could aid in the interpretation of the meaning of this clause in the sections heretofore referred to. The phrase, however, has been interpreted by our courts in a slightly different context. On the question of whether suit money was properly awarded after the plaintiff had filed her petition for divorce, the court in Lipp v. Lipp, 117 S.W.2d 364, 365-66[1, 3] (Mo.App. 1938), stated that a husband and wife were living separate and apart “notwithstanding they were sheltered by the same roof.” An award of suit money by the trial court was affirmed. Subsequently, in Downing v. Downing, 279 S.W.2d 538, 540 (Mo.App. 1955), the court cited Lipp with approval on the same issue. There the plaintiff proved sufficient facts to make a prima facie case on the merits of a divorce proceeding to entitle her to temporary allowance and suit money even though she admitted that she and her husband resided in the same house. Our court, in O’Brien v. O’Brien, 485 S.W.2d 674, 676[1] (Mo.App. 1972), agreed with Lipp and Downing and denied a contention that the award of alimony pendente lite in favor of the wife was in error because plaintiff lived with the defendant in their residence at the time of the hearing of the motion. Our court also adopted the same doctrine in a suit for divorce under the former law where condonation was advanced as a defense in a divorce action where the grounds alleged and proven were general indignities. There in Pobst v. Pobst, 317 S.W.2d 655, 660[2] (Mo.App. 1958), defendant contended that the plaintiff had condoned these acts constituting the general indignities by living with defendant for approximately a month after the petition was filed. The court stated at page 660: “It is true that the parties lived in the same house and slept in the same bed during that time, but when all the evidence is examined it becomes apparent that there was no cohabitation in the true sense of the word. During that period these parties had no marital relations. They did not speak to each other, and would not eat at the same table. . . . While it is true that, under the law, there is a strong presumption of condonation where the parties occupy the same room and bed, this presumption may be rebutted.”

It is apparent that in other jurisdictions where “living separate and apart” is a ground for divorce or dissolution of marriage, the weight of authority supports the general rule expounded in Lillis v. Lillis, 235 Md. 490, 201 A.2d 794, 796 (1964), quoting 17 Am.Jur. Divorce, § 185, to the effect: “Where the statute defines the grounds for divorce as a ‘living separate and apart’ for a certain period, the fact that while the parties have become estranged they continue to live under the same roof precludes a finding that they have lived separate and apart.” We are bound, however, by the construction of the term “living separate and apart” established by our courts in Lipp and followed in Downing and O’Brien. Furthermore, we conclude that this interpretation of the term is a more reasonable one than that adopted in the majority of jurisdictions which precludes a finding of “living separate and apart” when parties who have become estranged continue to live under the same roof. As stated by the court in Pedersen v. Pedersen, 71 App.D.C. 26, 107 F.2d 227, 232 (1939): “Men and women may live as strangers, even as enemies, more separately, more contentiously, more violently, under a single roof than under two. Continued occupancy of the same house may be evidentiary either of harmonious or at least not disputed matrimonial relations or of compelling necessity on the part of one or both of the parties. Generally, and in the absence of contrary showing, it will support the former view. But it does not create a conclusive presumption of law to that effect. It is merely one fact, to be considered with others, in determining the character of the association and relations of the man and the woman. Its normal inferential value can be overcome by evidence showing that they live not as man and wife.” We adopted essentially this same doctrine in Pobst v. Pobst, supra. Again in Heckman v. Heckman, 245 A.2d 550, 551[1—3] (Del.Sup.Ct. 1969), where the court has adopted the doctrine that parties may live separate and apart, though sleeping under the same roof when all other incidents of marriage have been forsaken, reasons advanced which compel parties to remain in the same residence are: economic necessity, stubbornness, jockeying for position as to possession of house and contents. Our interpretation of the phrase “living separate and apart” as it appears in § 452.-320.2(l)(d)(e), RSMo. 1969, 1975 Supp., does not necessarily mean separate roofs but rather means separate lives. The fact that a husband and wife continue residence in the same abode may be evidence that they continue to live together as man and wife but it does not create a conclusive presumption to that effect. Other evidence may cause the court to come to the conclusion that even though a married couple remain in one place of abode, they are in fact “living separate and apart.”

It is apparent to us that under the facts of this case, petitioner and respondent have been living separate and apart for over two years prior to the time that the amended petition was filed March 25, 1974. The evidence is uncontradicted that sexual relations ceased in July of 1970. Petitioner and respondent did not occupy the same room after that time. Respondent locked his bedroom about two years after the separation and it has remained locked when he is absent from the house since that time. For several years, respondent has left the home for his annual vacation of four weeks and does not tell petitioner where he is going or where he might be reached in an emergency, relying on her knowledge that she might obtain such information from his relatives. Respondent generally has not associated with his family. He has occasionally administered disciplinary action to the children but there is no communication between respondent and his wife with regard to such disciplinary or other problems involving the children. Respondent has provided certain staple foods which he brings and leaves in the kitchen without communication with petitioner. Other food items he retains in his locked bedroom and rations them in such amounts and at such times as he deems suitable. He does not eat meals with petitioner or the rest of the family even though petitioner has generally continued to cook the meals which she and the rest of the family eat. He cleans his own bedroom and the living room where he normally sits by himself to watch television. His wife cleans the rest of the house except the boys’ rooms which are usually cleaned by them. Respondent does his own laundry in a washing machine which he purchased and which is not used by petitioner. Respondent and the other members of the family attend church separately. All conversation or other communication is avoided.

Under the state of facts as they exist here, we have concluded that petitioner and respondent have been living separate and apart for over two years immediately prior to the filing of the petition, that there remains no reasonable likelihood that the marriage can be preserved, that the marriage is irretrievably broken, and that petitioner is entitled to a decree of dissolution of her marriage with the respondent. The judgment below denying dissolution is therefore reversed and the marriage of Agnes S. Uhls and John Harlan Uhls is dissolved. Because it will soon be two years since the testimony was taken with regard to the needs of the parties on the question of maintenance and evidence at that time indicated that the two older boys were in a position where they were either emancipated or could soon be so, the case is remanded to the circuit court with instructions to review the evidence in light of the decree of dissolution and upon the hearing of such additional testimony which may be presented by the parties, prepare and issue its decree awarding the care and custody of the minor children, provide for the support of the minor unemancipated children, consider maintenance, if any, award marital property to the respective parties, and consider provisions for attorney’s fees, if any.

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

      . It should be noted that previous existing defenses have been abolished (§ 452.310.5, RSMo. 1969, 1975 Supp.). This includes condonation and we do not advance the theory of consent as a defense to the grounds of abandonment but merely to indicate that here there was no abandonment because petitioner initiated and maintained the separation from connubial relations.

      . In addition to the authorities found in support of this doctrine in Lillis, supra, see also Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707, 708 (1963); DeRienzo v. DeRienzo, 119 N.J. Super. 192, 290 A.2d 742 (1972).


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lillian MICELI, Defendant-Appellant.
    No. 37247.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 15, 1977.
    Motion for Rehearing or Transfer Denied March 15, 1977.
    Application to Transfer Denied May 10, 1977.
    Daniel V. O’Brien, St. Louis, for defendant-appellant.
    Preston Dean, David L. Baylard, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Thomas E. Dittmeier, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   STEWART, Judge.

Defendant, Lillian Miceli, was tried on the charge of Murder in the First Degree, Section 559.010 V.A.M.S., arising out of the death of her husband, Anthony Miceli. She was convicted of the offense of Manslaughter, Section 559.070 V.A.M.S., and sentenced to serve ten years in the Missouri Department of Corrections. We affirm.

Defendant contends that the trial court erred in (1) overruling defendant’s motion for judgment of acquittal in that the evidence failed to make a submissible case for the jury; (2) overruling defendant’s motion for mistrial made when the prosecutor in his closing argument commented upon defendant’s failure to make an exculpatory statement to the police officers; and (3) refusing defendant’s tendered Instruction A on self defense and in giving Instruction No. 10, MAI-CR 2.40 by the court.

In determining whether this case should have been submitted to the jury, we view the evidence in the light most favorable to the verdict. We accept as true “all evidence in the record tending to prove the defendant’s guilt, whether such evidence is circumstantial or direct in nature, together with all favorable inferences that can reasonably be drawn therefrom and disregard all contrary evidence and inferences.” State v. Chase, 444 S.W.2d 398, 401 (Mo. banc 1969).

With this principal in mind we necessarily undertake a comprehensive review of the facts. Mr. Anthony Miceli died in the early evening of June 30, 1973, at Normandy Osteopathic Hospital where he had been taken from the vicinity of his home. An autopsy revealed that Mr. Miceli had suffered two scalp wounds to the back of the head, one on the right and one on the left side. The injury on the right side was a depressed skull fracture about an inch behind and three inches above the ear. The injury to the left side was an irregular jagged wound similar to the wound on the right. There was also a fracture on the left side of the head forward of the middle of the ear “above the bone that forms the root of the left eye.” There were six stab wounds to the chest and one to the “left shoulder in the back.” The transcript does not reveal the location of all of the stab wounds. One of the wounds was described as “on the right side of the breast plate.” This was where a cut extended through the right pulmonary vein and artery, severing them and extended through the diaphram and into the liver. The cause of death was internal hemorrhaging, loss of blood and shock, caused by the last described stab wound.

Defendant and her husband had been separated. His car was seen in the driveway of their home at 8522 Roanoke Drive in Bel Nor on Saturday, June 30, 1973, from about 2:00 p. m. on. Mr. Miceli was seen at about 4:30 p. m. as he came down the steps of the Dischinger home which is one door east of the Miceli home. There was a trail of blood leading from the Miceli home to the Dis-chinger home. Mr. Miceli was bleeding from the nose and ears, he had lacerations of the chest and was covered with blood. As he left the Dischinger home he staggered eastwardly down the street. One of his neighbors tried to walk him to a car. He collapsed on the lawn at 8467 Roanoke Drive. Mr. Sowash, another neighbor, came up in a car and Mr. Miceli was assisted into the car and taken to the hospital. The only sounds he made on the trip to the hospital were unintelligible moans.

After Mr. Miceli left the Dischinger home a Mrs. Spillman rang the doorbell at that house. Mr. Dischinger came out and went to the rear of his house. He saw Mrs. Miceli on the patio in her back yard standing over a trash can as though she had just put something in it. She was a short distance from her back door. She was wearing a nightgown. She had blood on her shoulder, arm and left leg. Mr. Dischinger asked if he could help and she said, “Stay away.” He then went toward the front of the house. Mrs. Dischinger’s dog started barking and she went to the rear yard. When she got there she heard Mrs. Miceli’s back door slam and she saw flames coming from the trash can in the Miceli yard.

At about this time Officer Tomlinson arrived. He went to the back door of the Miceli home, knocked on the door and identified himself as a police officer. A female voice called out, “Stay away.” The officer went to the front door which was unlocked and let himself in. He saw Mrs. Miceli standing in the kitchen with a six inch knife pointed at her abdomen. At the request of the police officer she surrendered the knife.

Mrs. Miceli was dressed in a nightgown. She was bleeding about the scalp and the abdominal area. When the officer asked where her husband was she showed him a telephone number and said, “Call my son.”

There was a pool of blood on the kitchen floor with a towel and various rags in and around it. There was also a pen lying upon the rags. There was a glass top table in the kitchen which had blood on it. On this table there were a pair of glasses, a large check book, various business papers, a pencil and a “business portfolio.” There was also a note in Mrs. Miceli’s handwriting on the table. It read, “I love my family and friends. Forgive me.”

There was blood leading from the kitchen down the hall to the front door. There were some drops of blood leading from the back door to and on the patio up to the trash can. There was no blood in other rooms in the two-story house.

A claw hammer with blood on it was found on a window sill just outside the rear door of the Miceli home. A blow from this hammer from above and behind Mr. Miceli would be consistent with the injuries found to Mr. Miceli’s head.

The defendant did not testify. Her evidence consisted of her hospital record and the testimony of Mr. Sowash. The hospital record revealed that she had multiple stab wounds about the abdomen. One of the wounds lacerated the spleen requiring its removal. “There are noted to be seven or eight small punctate wounds of the right temple 2-5 mm. in length and on investigation are felt to be quite superficial in nature.” Although the discharge note states that Mrs. Miceli suffered a mild concussion, no merition is made of a concussion in the admission notes.

Mr. Sowash testified that while driving Mr. Miceli to the hospital he asked what happened and Mr. Miceli said that, “He just got hurt, he just injured himself or something to that effect.”

There were no eyewitnesses to the assault which resulted in the death of Mr. Miceli. In a case which is based upon circumstantial evidence “the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence.” State v. Ramsey, 368 S.W.2d 413, 416 (Mo.1963). However, “the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence[;] . the mere existence of other possible hypothesis is not enough to remove the case from the jury.” State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970).

The evidence here presents one of the strongest cases dependent upon circumstantial evidence. The jury could readily find that Mr. Miceli was intentionally killed under circumstances which could not be deemed suicidal or accidental. They could find that Mr. Miceli was initially struck from behind while seated at the kitchen table by the hammer which was found on the window sill outside the house. Defendant was known to have been outside in the immediate area where the hammer was found. Defendant was found with a knife in her possession which could have caused the stab wounds, to her husband, and self inflicted upon herself. The note in defendant’s handwriting asking forgiveness reveals a consciousness of guilt. It indicates that she had done something which required forgiveness. Defendant was the only person found in the house from which the victim departed. Each case of circumstantial evidence must be considered in the light of its own peculiar facts. We consider the present case to present stronger circumstances than those in State v. Maxie, 513 S.W.2d 338 (Mo.1974), where the only circumstance connecting defendant to the crime was his fingerprint on a box in the victim’s apartment. See also the most recent case of State v. Franco, 544 S.W.2d 533, Mo., 1976.

Defendant’s principal complaint is that there is no showing of motive. Motive is not a necessary element of the crime. State v. Logan, 344 Mo. 351, 126 S.W.2d 256, 261[14, 15] (1939). There is evidence, however, that the defendant and the victim were estranged; a fact from which the jury could believe that there was a motive for defendant’s action. The note in defendant’s handwriting would also indicate that defendant felt she had a motive to kill her husband. We have reviewed State v. Odum, 351 S.W.2d 10 (Mo.1961) and State v. Baker, 453 S.W.2d 918 (Mo.1970), and the other cases cited by defendant but do not find them controlling here.

In Odum defendant was accused of murder by arson. There was no proof that the fire was incendiary in origin and no proof that defendant was in the vicinity of the building before or after the fire. In Baker the charge was manslaughter by reason of producing abortion by administering a drug. There was a complete lack of evidence to show that defendant had used a drug to produce abortion. The autopsy failed to reveal that there was any drug present in the deceased body and there was no direct evidence that any drug was administered.

We conclude that there was sufficient substantial evidence to submit this case to the jury.

Defendant next contends, “The court erred in overruling appellant’s motion for mistrial made when the prosecutor in his closing argument, unfavorably commented upon appellant’s failure to make an exculpatory statement to police officers thereby violating appellant’s right against self-incrimination as provided in Art. I, Section 19 Constitution of Missouri and the Fifth Amendment of the United States Constitution.”

The portion of the State’s argument to which defendant addresses his complaint is: “There were only two people in the house. One is dead, and you have to go by the evidence in the kitchen and on the outside and on the actions of the parties. Never once did she tell the police officer she acted in self-defense and her husband attacked her.”

Defendant’s objection was, “Judge, at this time I’m going to object to comments made by the attorney for the State . ‘never once did she say to the police . . .’I ask for a mistrial.” This objection was insufficient to preserve the point. The defendant did not call the attention of the court to the ground or reason for the objection. State v. Lang, 515 S.W.2d 507, 511[5-10] (Mo.1974).

Defendant did not seek to preserve this issue in her motion for new trial. She now asks that we consider the issue under Rule 27.20(c). Because the judgment in this case was based upon circumstantial evidence and because error of the type alleged could tip the scales; we shall consider the issue to determine whether there was error affecting substantial rights of the defendant.

The defendant relies primarily upon State v. Butler, 512 S.W.2d 466 (Mo.App.1974). In that case defendant fled the jurisdiction. On trial he testified that he fled because there were persons with guns trying to shoot him. He had not told the police that he fled for this reason when they arrested him. The essence of the ruling in Butler is, “. . . that the prosecuting attorney is not entitled to refer to an accused’s failure or refusal to make any statement to the police while an arrest is being made or after arrest.” This is the rule in all of the cases relied upon by defendant.

This is not the rule, however, when the reference is made to the silence of an accused when that person is not being arrested or is not under arrest. In State v. Bush, 286 S.W.2d 767 (Mo.1956) it is said l.c. 771:

“The rule in this state is that silence of an accused when not under arrest, and in circumstances such that only a guilty person would have remained silent, may be shown, although after arrest or while in custody the evidence is inadmissible because the accused is under no duty to speak. State v. Battles, 357 Mo. 1223, 212 S.W.2d 753, 757; State v. Lovell, 235 Mo. 343, 353, 138 S.W. 523.”

See also State v. Butler, 512 S.W.2d 466, 468[1] (Mo.App.1974).

In this ease the officer referred to in the argument, Officer Tomlinson, was dispatched to defendant’s home for “a lady bleeding profusely.” He was not dispatched to an assault upon Mr. Miceli. Upon arrival he saw Mrs. Miceli bleeding. She had a knife directed toward her abdomen. After obtaining the knife he then sought to determine the whereabouts of her husband. Her only reply was, “Call my son.” The officer called for an ambulance and then made an unsuccessful attempt to reach her son. He saw that she was safely dispatched in the ambulance. Neither Officer Tomlinson nor any other officer went with her. She was not placed under arrest at any time while she was in the presence of Officer Tomlinson. No other officer appeared at the home until after she had been taken to the hospital. She was not under arrest therefore the rule in State v. Rush would apply. We rule this issue against defendant.

Defendant’s final Point Relied On reads:

“The court erred in refusing appellant’s Instruction A and in submitting its own Instruction No. 10 instead, in that said Instruction No. 10 did not reflect the law of the case and was therefore prejudicially erroneous on the issue of justifiable homicide.”

The State argues that this point presents nothing for our review. We agree.

Defendant in her motion for a new trial makes the following references to Instruction A which was refused, and to Instruction 10 which was given:

“9. The Court erred in refusing to give defendant’s Instruction A.
10. The Court erred in its Instruction No. 10 in that the issue of justifiable homicide was improperly stated.”

These assertions fail to meet the standard of “detail and particularity” required under Rule 27.20(a). State v. Smith, 451 S.W.2d 87, 90[2] (Mo.1970).

We also take note of the fact that defendant’s point violates Rule 84.04(d) because it does not tell us wherein and why Instruction A should have been given or wherein and why Instruction 10 was erroneous. State v. Flynn, 541 S.W.2d 344, 349[14-13] (Mo.App.1976). Appellant has also failed to set forth in full, in the argument portion of the brief, the instructions sought to be reviewed. This is a violation of Rule 84.04(e). State v. Larkins, 518 S.W.2d 131, 135[3] (Mo.App.1974). No issue respecting Instructions A and 10 are before us for review.

We find no error. The judgment of the trial court is affirmed.

McMILLIAN, P. J., and RENDLEN, J., concur.

      . “One was on each side of the breastplate between the fifth and sixth rib, one here, one here and one approximately here.”

      . State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970); State v. Vainikos, 366 S.W.2d 423 (Mo. banc 1963); State v. Phelps, 384 S.W.2d 616 (Mo.1964).


author: PER CURIAM.

text:
    Leevert AIKENS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38179.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 15, 1977.
    Motion for Rehearing or Transfer Denied March 15, 1977.
    Application to Transfer Denied May 10, 1977.

      Robert C. Babione, Public Defender, Robert G. O’Blennis, Asst. Public Defender, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas M. Daly, Asst. Circuit Atty., St. Louis, for respondent.
   PER CURIAM.

Appellant, Leevert Aikens, appeals from an order of the circuit court of the City of St. Louis entered on May 18, 1976, overruling his motion to vacate sentence filed pursuant to Rule 27.26 V.A.M.R. In 1970 appellant was found guilty of the offense of rape and was sentenced under the second offender act to twenty years in the department of corrections. The conviction was affirmed by the Supreme Court. State v. Aikens, 473 S.W.2d 746 (Mo. 1971).

On October 21, 1975, appellant filed his pro se motion to vacate and set aside this conviction pursuant to Rule 27.26. The motion was amended on the date of the evidentiary hearing by court-appointed counsel, the public defender. Although alleging several grounds not pertinent here, the thrust of the motion and the point briefed on appeal is that movant-appellant was denied effective assistance of trial counsel because his retained attorney failed to “adequately investigate” the facts of the case and “failed to interview or produce witnesses for the defendant.”

Appellant complains on this appeal that he saw his attorney retained by his mother only once before the trial of his cause, some four or five months prior to trial, and that the attorney failed to investigate the case and interview and produce two witnesses for the defense. On the day of trial, appellant informed counsel that he wanted two individuals to testify for him — a woman, Mrs. Eltha Harris, and “[a] man by the name of George, I never did find his last name out.” On the evidentiary hearing on the motion, movant testified:

“Well, my lawyer he never did reject anything that was going down in my trial because he wasn’t aware of a lot of things because he didn’t have any time to investigate it.”

On the evidentiary hearing, movant testified that his mother, his wife and his brother testified for him in the original trial, but that Mrs. Harris and George did not. Appellant indicated that these two missing witnesses “could have spotted me from the time I was left and came on the scene when the crime was.” His mother and other witnesses, he contends, could only account for a time earlier than the offense. Movant did not know the phone number of “George,” knew where he lived, but did not tell counsel where he worked. He testified that he told his counsel about “George” but counsel stated that “he didn’t need him because as long as I had my mother and wife and sister and them that was enough.”

When questioned by the court, appellant said he did not know the addresses of the two witnesses but “I could find the house.” He testified that he informed counsel about Mrs. Harris and told him where she lived but that “he told me I had enough witnesses as long as I had my mother and my wife and my brother and sister to say I was at home ... I didn’t need the rest of them.” He testified that on the evening of the offense he “went by this woman’s, El-tha Harris. She owed me ten dollars and told me to come by and pick it up so I went by there, and she wasn’t at home, and her kids were there. . . .’’He then left Mrs. Harris’ house and “went over to” George who was getting out of his car. George asked him, “ ‘Where you going,’ ” and movant replied, “ T am going to East St. Louis.’ ” George dropped him off and he saw a woman, the victim, “standing like she was in a trance” in this alley, and when the police “screamed and said ‘What are you doing back in the alley?’ [s]he kind of woke up ’cause of the lights in the alley flashing, ... I broke and ran.”

The only other witness at the evidentiary hearing was the assistant circuit attorney who tried the cause. He testified that defense counsel “did everything he could with what he had.”

On May 18, 1976, the trial court made its findings of fact and conclusions of law. The court found that the appellant did not meet Mrs. Harris that evening of the rape, since she was not at home, and that appellant did not know the address, telephone number, or the last name of “George.” The court concluded that (1) the movant “failed by a preponderance of the evidence to clearly demonstrate [that] the actions of counsel went beyond errors of judgment on trial strategy and were of such character as to result in substantial deprivation of Mov-ant’s right to a fair trial. Myrick v. State, 507 S.W.2d 42 ([Mo.App.] 1974),” and (2) the movant failed to establish by a preponderance of the evidence that defense counsel failed to make an effort to locate the witnesses or that the “witnesses were essential to the Defendant-Movant’s case. Sykes v. State, 458 S.W.2d 319 ([Mo.] 1970).” The court denied the relief sought in the motion. Movant appealed.

In reviewing the judgment of the trial court denying the appellant’s Rule 27.-26 motion, we bear in mind the basic principles of such review. The burden of proof to establish the charge of ineffective assistance of counsel is on the movant. This burden is not met unless it is clearly demonstrated that the acts of counsel went beyond errors of judgment or trial strategy and were of such character as to result in a substantial deprivation of movant’s right to a fair trial. McQueen v. State, 475 S.W.2d 111 (Mo. banc 1971); Nelson v. State, 537 S.W.2d 689 (Mo.App. 1976). We will not disturb the findings, conclusions and judgment of the trial court unless the same are clearly erroneous. Rule 27.26(j).

Under well-settled principles relating to a motion filed pursuant to Rule 27.26 summarized in Nelson v. State, supra, 537 S.W.2d at 693, we hold that the court did not err in denying the relief sought in appellant’s motion to vacate. Upon a review of the trial court’s order, the order is not “clearly erroneous.” Rule 27.26(j). A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed.

The main thrust of appellant’s contention is that counsel did not adequately investigate his case prior to trial and failed, although requested to do so, to interview and produce two witnesses at trial who allegedly would have aided his alibi defense, hence, counsel was ineffective.

There is no question that an accused is entitled to effective assistance of counsel. The test is whether the efforts of counsel and the representation by the attorney have reached a level of adequacy so that the defendant had a fair trial. Hall v. State, 496 S.W.2d 300, 303 (Mo.App. 1973); McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974). As stated in Anderson v. State, 487 S.W.2d 455, 460 (Mo. 1972), [quoting Robinson v. United States, 448 F.2d 1255, 1256 (8th Cir. 1971)]:

“. . . ‘In order to assert a Sixth Amendment infirmity on this ground, the circumstances must demonstrate that which amounts to a lawyer’s deliberate abdication of this ethical duty to his client. There must be such conscious conduct as to render pretextual an attorney’s legal obligation to fairly represent the defendant.’ ”

But, in order to show ineffectiveness, a movant has a heavy burden to carry. Counsel is vested with broad latitude and he is not to be adjudged ineffective by reason of what, in retrospect, appears to be errors of judgment or trial strategy which did not produce an acquittal or some other desired result. Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App. 1974). To find ineffectiveness, the acts of trial counsel must have been of such character as to result in a substantial deprivation of the movant’s right to a fair trial. Nelson v. State, supra, 537 S.W.2d at 695.

Appellant complains that counsel did not adequately investigate his case prior to trial and failed to produce two witnesses. We have never laid down a hard and fast rule which requires counsel to conduct an investigation and interviews of witnesses in all cases and under all circumstances. Hall v. State, supra, 496 S.W.2d at 304; McQueen v. State, supra, 475 S.W.2d at 114. When counsel does not interview or produce certain witnesses, it must be shown that the evidence which could have been uncovered by reasonable investigation would have proved helpful to the defendant, McQueen v. Swenson, supra, 498 F.2d at 220, or “. would have turned up anything helpful, something ‘which would have aided or improved the appellant’s position.’ . . .” Curry v. State, 504 S.W.2d 97, 99 (Mo. 1974).

The record here reveals that there were several witnesses who testified in the original proceeding. As to the other two witnesses, there is no clear showing that they would have proved helpful or would have turned up something which would have aided or improved appellant’s position. Mrs. Harris was not at home when appellant stated that he went to her house to recover the repayment of a loan, and appellant did not know “George,” his phone number, his last name or the address. At trial when appellant mentioned to counsel the lack of these two witnesses, counsel indicated that as long as he had appellant’s mother, brother and wife to attempt to establish the defense of alibi that was sufficient.

Under all these circumstances, we cannot conclude that trial counsel was “ineffective” in not interviewing or producing these two witnesses. See Sykes v. State, supra 458 S.W.2d at 320—if counsel had investigated there probably would have been somebody “ ‘around there’ ” who would have seen the occurrence. Defense counsel has wide latitude in the conduct of a defense. Trial strategy is an inadequate basis for an attack on the competency of counsel. Coles v. State, supra, 495 S.W.2d at 687; Nelson v. State, supra, 537 S.W.2d at 695.

Appellant relies on Thomas v. State, 516 S.W.2d 761 (Mo.App. 1974). In Thomas, counsel for the movant made no effort to interview persons who might establish or corroborate a defense because he had earlier prevailed on a motion to suppress evidence. The court held that counsel failed to perform his duty to investigate and prepare his client’s cause having been given information that movant was working on the date of the offense for a cab company and was given names of certain witnesses. The court reversed and remanded for the purpose of having a hearing on the issue of whether prejudice flowed to the movant by reason of the failure of counsel to make a reasonable investigation. Thomas, supra, is not controlling here. Counsel there made no effort to contact witnesses whose names had been given him and who could establish that he could not have been at the scene of the robbery; counsel was content to rely only on previous motions filed.

The cause here was not a case, as in Thomas, of “failure of counsel to pursue the obvious line of investigation of the alibi defense but rather to rely upon his pretrial motions and forensic courtroom abilities . .” State v. Thomas, supra, 516 S.W.2d at 767. Here witnesses were produced. According to movant’s own testimony, Mrs. Harris was not at home and therefore could not have corroborated appellant’s alibi. There is no showing in this record that the other witness, “George,” would have proved helpful to the defense even if his last name, phone number or address had been furnished counsel for the defense. Without this basic information we cannot conclude that counsel was ineffective in failing to locate “George” or produce him at trial.

We conclude, therefore, that the trial court was not clearly erroneous in denying movant’s motion to vacate sentence.

We have carefully studied the transcript on this motion and have examined the transcript in the original trial, the trial court’s findings of fact and conclusions of law and the briefs of the parties and the authorities therein. We conclude that the judgment of the trial court was not clearly erroneous and hence affirm the judgment.

The judgment is affirmed.

All the Judges concur.

      . The motion alleged that the state suppressed favorable evidence of laboratory results of his clothes which were taken from him when arrested, and that there was no basis for the Second Offender Act, § 556.280, since he was without counsel in Florida. At the evidentiary hearing, the laboratory report was introduced which showed nothing of evidential value, and the trial court found that the prior conviction was based upon an earlier Missouri, not a Florida, conviction. These matters were abandoned on this appeal. Since appellant raised these issues in the trial court and received an adverse ruling on them, the failure to appeal these issues causes the judgment of the trial court to be final as to them. Coles v. State 495 S.W.2d 685, 686 (Mo.App. 1973); Myrick v. State, 507 S.W.2d 42, 43 (Mo.App. 1974).

      . He meant by this: “Well, because he said now, let’s go, everything was going wild, and I could, I could see that he just wasn’t doing his job defending me.”


author: HOGAN, Judge.

text:
    Exie Belle FIELDS and Dave Fields, Plaintiffs-Respondents, v. Opal BERRY, Defendant and Third-Party Plaintiff, Appellant-Respondent, v. FRANK SCOTT, INC., Third-Party Defendant-Appellant, and Chrysler Corporation, Third-Party Defendant.
    Nos. 9788, 9790.
    Missouri Court of Appeals, Springfield District.
    Feb. 17, 1977.
    Opinion Modified on Court’s Own Motion.
    Motions for Rehearing or Transfer Denied March 29, 1977.
    Application to Transfer Denied May 10, 1977.

      L. R. Buehner, Buehner & Buehner, Joplin, for appellant-respondent Opal Berry.
    William H. Burden, Jr., Joplin, for respondents Fields.
    Jon Dermott, Ronald E. Mitchell, Blanchard, Van Fleet, Martin, Robertson & Der-mott, Joplin, for appellant Frank Scott, Inc.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

These cases arose out of an automobile accident which occurred in Newton County on June 3, 1966. Pleading their cause under the res ipsa loquitur doctrine, plaintiffs Exie Belle and Dave Fields sought to recover damages from defendant Berry 1) for personal injuries sustained by plaintiff Exie Belle, and 2) for loss of consortium sustained by plaintiff Dave Fields. Plaintiffs’ amended petition was filed on August 24, 1967. On March 13, 1970, with leave of court, defendant Berry impleaded third-party defendants Scott and Chrysler pursuant to Rule 52.10 (now 52.11), V.A.M.R. The theory of the third-party petition was that third-party defendants Scott and Chrysler were or might be liable to defendant Berry as supplier and manufacturer, respectively, of a defectively manufactured product, specifically, Berry’s automobile. The third-party defendants answered separately; third-party defendant Scott filed a cross-claim against Chrysler and Chrysler filed an answer thereto. All the issues tendered by the pleadings were tried together before a jury on April 23,1974, and the jury resolved those issues by finding 1) for plaintiff Exie Belle Fields and against defendant Berry in the sum of $10,000; 2) for plaintiff Dave Fields and against defendant Berry in the amount of $500; 3) for third-party plaintiff Berry and against third-party defendant Scott in the amount of $10,500; 4) for third-party defendant Chrysler and against third-party plaintiff Berry; 5) for third-party defendant Chrysler on the cross-claim interposed by third-party defendant Scott. Defendant Berry appeals from the judgment rendered against her on the main claim; third-party defendant Scott appeals from the judgment rendered against it on the third-party claim. We ordered the appeals consolidated for argument and shall consider them together.

Capsulated, the facts are that the accident happened between 8:30 and 9:00 p.m. on Highway 71 between Neosho and Joplin. Plaintiff Exie Belle Fields, defendant Berry and one Naomi Brown had been to a revival meeting at Neosho and were returning to Joplin where they lived. Defendant Berry was driving; Mrs. Brown was seated to the driver’s right in the front seat and plaintiff Exie Belle was sitting in the rear seat behind Mrs. Brown. Exie Belle testified that the weather had been warm and fair “that day”, that there had been no rain, and that the accident occurred “about dusk”.

Highway 71, at the scene of the casualty, is 22 feet wide from curb to curb, with a 12-foot shoulder on either side. The road runs “sort of [at] an angle”, according to the investigating officer, but was described for convenience (at counsel’s suggestion) as running north and south. The place of the accident was, again according to the investigating officer, “approximately one mile or so” “towards Joplin”, i. e., north of the Deem Hatfield Grocery Store. From the Hatfield Grocery Store north to the place of the accident, Highway 71 curves about three or four times, with some “straight-a-ways” in between.

As we follow the sequence of events, defendant Berry “rounded” one of the several curves and was driving north when she turned aside to her right, either to avoid an object on the road, or to make room for a truck which was attempting to pass on her left. Part of the Berry automobile went off the highway onto the shoulder. There is some indication that the road “drops off” between the roadway and the shoulder, but in any event, defendant Berry managed to turn back onto the roadway. Thereafter, for whatever reason, she lost all control over her vehicle, skidded 240 feet diagonally across the highway and down an embankment and finally struck a tree 42 feet west of the west edge of the highway. Plaintiff Exie Belle was injured. The extent and nature of her injuries are not in issue here.

On the appeal from the judgment on the main claim, the only issue presented is whether plaintiffs’ proof so specifically and directly established the precise cause of the accident as to preclude application of the res ipsa loquitur doctrine. Defendant does not question the general rule that loss of control or failure to control the movement of an automobile so that it leaves the highway, strikes a fixed object and causes injury permits an inference of negligence on the part of the driver. Lindsey v. Williams, 260 S.W.2d 472, 474-475 (Mo.1953), cert. den. Williams v. Lindsey, 347 U.S. 904, 74 S.Ct. 428, 98 L.Ed. 1063 (1954); Tabler v. Perry, 337 Mo. 154, 165-167, 85 S.W.2d 471, 476—477 (1935); Silver v. Curtis, 490 S.W.2d 412, 414 (Mo.App.1972); Collins v. Nelson, 410 S.W.2d 570, 573 (Mo.App.1965); Wells v. Asher, 286 S.W.2d 567, 568 and cases cited n. 1 (Mo.App.1955). She says, rather, that the precise cause of the casualty was directly shown by plaintiffs’ evidence, and of course if that is the case, the court erred in submitting the cause under the res ipsa loquitur doctrine. Williams v. St. Louis Public Service Co., 363 Mo. 625, 633, 253 S.W.2d 97, 101-102 (banc 1952); Rea v. St. Louis-San Francisco Ry. Co., 411 S.W.2d 96, 99 (Mo.1967). In this connection, however, two corollary rules should be noted. First, even though a plaintiff’s evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the res ipsa loquitur doctrine, nor be deprived of the right to rely on it in the submission of his case, if, after the evidence is in, the true cause is still left in doubt or is not clearly shown. White v. St. Louis Public Service Co., 364 Mo. 111, 118, 259 S.W.2d 795, 799 (banc 1953); Wells v. Asher, supra, 286 S.W.2d at 569 and cases collated n. 3. Second, a plaintiff may not be denied the benefit of the res ipsa loquitur doctrine merely because the evidence would support a verdict in his favor based upon specific negligence which could be inferred from the plaintiff’s evidence without the aid of the res ipsa loquitur doctrine. White v. St. Louis Public Service Co., supra, 364 Mo. at 118, 259 S.W.2d at 799; Williams v. St. Louis Public Service Co., supra, 363 Mo. at 633, 253 S.W.2d at 101-102.

In particular, our attention is called to the following evidence: 1) plaintiffs’ statement that after the Berry car left the road on the right side, it returned to the highway and went “back and forth” until it finally went off the road; 2) testimony which, defendant says, indicated that the car made a “zigzagging” movement and that its speed was accelerated just before it went off the pavement; 3) testimony which indicates that defendant failed to apply her brakes properly. Defendant also argues that the length of the skidmarks found at the scene establishes excessive speed as the specific cause of the accident. Additionally she maintains that parts of her pretrial deposition, introduced as admissions, establish that her loss of control and excessive speed were the specific causes of the accident.

We agree that plaintiffs’ evidence shows beyond doubt that the Berry automobile went out of control. A showing of loss of control, however, is merely a showing of general, not specific negligence, see Myers v. Buchanan, 333 S.W.2d 18, 21 (Mo. banc 1960); McIntyre v. Whited, 440 S.W.2d 449, 451 [2, 3] (Mo.1969), and it is this very loss of control which gives rise to an inference of negligence here and permits plaintiffs to take advantage of the res ipsa loquitur doctrine. Tabler v. Perry, supra, 337 Mo. at 166-167, 85 S.W.2d at 477-478[11, 12], As for the testimony that defendant Berry’s automobile went back and forth across the road before it left the highway, that it made a “zigzagging” movement and that defendant Berry accelerated her speed just before it plunged down the embankment, it seems to have been counsel’s suggestion, rather than plaintiffs’ positive testimony, that the Berry automobile made a “zigzagging” movement before it left the road. Plaintiffs’ testimony that defendant increased her speed before she finally left the highway is really only an impression. We conclude that the evidence concerning the crisscrossing movement of the Berry automobile and the testimony that the speed of the vehicle “seemed” to increase before the car left the highway in no way tend to preclude a res ipsa loquitur submission. Plaintiff Exie Belle was testifying to conclusions and results, not as to specific facts, acts or conduct which produced those results, and her testimony was not such as to demonstrate the specific negligence which caused the accident. White v. St. Louis Public Service Co., supra, 364 Mo. at 118-119, 259 S.W.2d at 799[7],

Defendant’s argument that the evidence shows her failure to apply the brakes caused the accident is simply confusing, so far as we are concerned. The testimony to which our attention is called again appeared upon plaintiffs’ cross-examination by counsel for third-party defendant Scott. Counsel asked plaintiff if defendant Berry ever applied her brakes “from the time the automobile first left the highway until it came to a stop” and plaintiff answered “I don’t know.” Counsel then put the same question slightly differently, and plaintiff answered that she couldn’t remember. To reiterate, the evidence indicates most strongly that after defendant Berry initially turned aside to her right, for whatever reason, and turned back onto the roadway, she lost control of her automobile. However, we certainly could not say that application of the brakes at a particular time or in a particular manner would have caused her to regain control; it might have had the opposite effect. This particular argument is patently without merit. Lindsey v. Williams, supra, 260 S.W.2d at 475.

Defendant Berry further argues that the presence of skidmarks establishes the specific negligence which caused the accident. The investigating officer, Trooper Keller, testifying from a report prepared nearly eight years earlier, said that when he arrived at the scene of the accident, he saw “a 1966 Dodge sedan that was on the south side of the highway, which had plunged down an embankment and struck a tree”, and he added that “the vehicle was traveling west or northwest, was rounding a curve and had ran [sic] off of the highway on the right hand side onto the shoulder and veered back across the highway and plunged off of the embankment, striking a tree.” The trooper measured 240-foot skid-marks running from the area near where defendant Berry initially turned aside to the point where she went over the embankment. It is not clear, however, from the remainder of his testimony whether the skidmarks were all on the highway or partly on and partly off the highway. His cross-examination on behalf of third-party defendant Chrysler ran as follows: “Q. You have diagramed for us skidmarks and . as I understand your testimony, they are 240 feet long, is that correct? A. Yes, sir. Q. And the car itself . . . stopped some distance beyond the end of those skid-marks, is that true? A. Yes. Q. In other words, the skidmarks did not lead all the way down this embankment? A. That is true. Q. Did [those skidmarks] lead to where that car, Mrs. Berry’s car, was found by you on the day of this accident? A. Yes, sir.” Trooper Keller also testified that the skidmarks did not “zigzag” but traced a continuous line. Skidding to the wrong side of the road creates an inference of negligence as Friederich v. Chamberlain, 458 S.W.2d 360 (Mo. banc 1970), and Silver v. Curtis, supra, 490 S.W.2d at 414-415, demonstrate, but the presence of skidmarks does not prove the specific negligence which caused the automobile to begin skidding; the inferable negligence here is the loss of control or failure to control the movement of the car. The presence of skidmarks did not preclude the res ipsa loquitur submission. Lindsey v. Williams, supra, 260 S.W.2d at 474-475[1]; Silver v. Curtis, supra, 490 S.W.2d at 414-415[2].

Finally, defendant Berry argues that parts of defendant’s deposition offered by plaintiffs establish inattention, excessive speed and failure to control her car as specific acts which caused the casualty. This contention simply overstates the record. The only point about which defendant Berry was sure was that when she “came back up”, i. e., returned to the highway after she turned aside to the right, “then [my car] started zigzagging”. There is no proof that defendant Berry was traveling at an excessive speed; there is in fact no direct proof of the lawful speed limit on Highway 71 at the time.

We decline to go over the plaintiffs’ evidence line by line; we have carefully examined the record and conclude that their proof leaves the true cause of the casualty in doubt. Such being the case, the res ipsa loquitur submission was proper, even though plaintiffs’ evidence might have supported a verdict in their favor had the cause been submitted on specific acts of negligence which could have been inferred from the circumstances.

The appeal by third-party defendant Scott remains for discussion. The theory upon which Scott and Chrysler were im-pleaded was that they were liable to indemnify defendant Berry because Berry’s car had been defectively manufactured. The third-party petition pleads a specific defect, “a defective return oil hose fitting to the power steering pump” of Berry’s vehicle. The petition further alleges that because of the pleaded defect, Berry’s automobile did not work properly and was unsafe for its intended use and directly caused the casualty and injuries sustained by the plaintiffs. Berry’s theory of recovery was severely limited, however, by her verdict-directing instruction tendered in connection with the third-party claim; that instruction predicates recovery upon a finding that Berry was negligent in reacting, immediately pri- or to the accident, to a difficulty in steering resulting from the defective power steering pump. Plaintiff’s submission upon this ground amounted to an abandonment of all other theories of recovery, Guthrie v. City of St. Charles, 347 Mo. 1175, 1184, 152 S.W.2d 91, 95[4] (banc 1941); Branstetter v. Gerdeman, 364 Mo. 1230, 1237, 274 S.W.2d 240, 245 (1955); Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 12-13[11] (Mo.App.1974), and we have the view that the trial court should have sustained Scott’s after-trial motion for judgment n.o.v.

The appeal from the judgment on the third-party claim has been extensively briefed. Appellant Scott argues that Berry was actively negligent and was not, therefore, entitled to indemnity from Scott as a matter of law. Berry argues, among other things, that since our Supreme Court’s decision in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo. banc 1969), the negligence of a manufacturer or supplier must be characterized as continuing, “active” negligence because Scott’s and Chrysler’s duty to her is characterized as “strict” liability. We have examined the cases she cites, particularly those from Illinois, but to this writing our courts have consistently refused to accept any rule of disproportionate duty as a basis for allowing indemnity among concurrent tort-feasors. Cf. Union Electric Co. v. Magary, 373 S.W.2d 16, 20 (Mo.1963). Scott argues that because the third-party plaintiff was found negligent in the main action, she could not be found otherwise on the third-party claim. Such is not the case; Scott relies primarily on State ex rel. Siegel v. McLaughlin, 315 S.W.2d 499 (Mo.App.1958), but in Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317 (Mo. banc 1975), the court held that a finding of negligence upon a res ipsa loquitur submission did not establish the character of the defendant’s negligence as active or passive, and indicated, as it had previously indicated in Page v. Hamilton, 329 S.W.2d 758 (Mo.1959), that in a case of this kind, the verdict in the main action would not conclude the defendant as third-party plaintiff in the ancillary third-party action. We do not believe, however, that either the Keener case or the Crystal Tire case is controlling here.

It may be acknowledged that the law governing indemnity between concurrent tort-feasors is changing rapidly, and that the decisions cannot be easily reconciled, but extensive abstract discussion is neither necessary nor useful. The third-party plaintiff does not contend, nor could she, that she has any right of indemnity if she has been actively negligent in contributing to the injury for which recovery was had. Union Electric Co. v. Magary, supra, 373 S.W.2d at 22[3]; Lewis v. Amchem Products, Inc., 510 S.W.2d 46, 48 (Mo.App. 1974). Nevertheless, the very language of the submission she chose requires a finding that she was negligent in managing a defectively manufactured vehicle. Although the case is factually dissimilar, we believe Hofstra v. Schriber, 475 S.W.2d 44 (Mo. 1972), clearly stands for the proposition that a positive violation of the rules of the road constitutes “active” negligence; therefore, a finding that Berry’s reaction to a steering difficulty was negligent — a failure to exercise the highest degree of care as required by § 304.010, para. 1, RSMo Supp. 1975— would in itself defeat her recovery.

For the reasons indicated, the judgments for plaintiffs Exie Belle Fields and Dave Fields and against defendant Opal Berry are affirmed; the judgment for third-party plaintiff and against third-party defendant Scott is reversed. The cause is remanded with directions to enter a judgment for Scott upon the third-party claim.

All concur.

      . On cross-examination, defendant’s counsel, examining plaintiff, asked: “Q. And then did she return to the highway with her car, did she pull it back on the highway? A. Yes. Q. Now did she go back and forth with the car during this time before she finally went off the road? A. Yes.”

      . Counsel for third-party defendant Scott asked: “Q. Now, Mrs. Fields, when the automobile went off on the right shoulder, can you state whether the car slowed at all, did it slow down any? A. No, it seemed like it got faster to me, I don’t know. Q. All right, it seemed like it went faster after it went off on the shoulder of the road? A. After it got back up on the road off the shoulder. Q. Did it continue across the highway? A. It kinda, you know, zig-zagged.”


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. David RAYNER, Appellant.
    No. KCD 28187.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Motion for Rehearing and/or Transfer Denied April 15, 1977.
    Application to Transfer Denied May 10, 1977.

      J. Arnot Hill, Hill & Gamm, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   SOMERVILLE, Judge.

Defendant was charged by information with the crime of robbery in the first degree by means of a dangerous and deadly weapon (Sec. 560.120, RSMo 1969, and See. 560.135, RSMo 1969), found guilty by a jury, and sentenced to twenty years imprisonment in the Missouri Department of Corrections.

Defendant assigns five points of error on appeal. The first four points so overlap one another that they lend themselves to being collectively paraphrased as one point (hereinafter referred to as point one), to-wit: the trial court committed reversible error in permitting state’s witness Liebsch, a police officer, to testify, over objection of defendant as to extrajudicial statements inculpating defendant made by a purported co-conspirator after the latter was arrested, and in refusing to grant a mistrial premised thereon, notwithstanding the trial court’s effort to cure the prejudicial effect of such testimony by belatedly withdrawing it from the jury’s consideration. Defendant’s remaining point is that the trial court erred in failing to give MAI-CR No. 1.08(b) “at recesses subsequent to the first recess and at adjournments”.

Although defendant has not challenged the sufficiency of the evidence to support his conviction, a fairly detailed resume thereof cannot be avoided because of the direct bearing it has upon the composite point.

According to the state’s evidence, on the evening of February 20, 1975, three black males approached the front entrance of a Reveo Drug Store situated at the corner of Independence Avenue and Prospect Avenue in Kansas City, Missouri. Upon reaching the front entrance, they looked both ways, ducked down, pulled something from inside their coats, and entered the store. Throughout the course of the trial, for reasons which hereinafter become apparent, the three men were referred to as the “first man”, the “second man”, and the “third man”. The first man to enter the store hopped onto the top of a counter and announced a holdup. The first man then proceeded to the pharmacy area, struck a pharmacist who was on duty on the head, opened a safe and a narcotic cabinet, and began filling a pillowcase with money and narcotics. The second man went to an aisle near the center cash register and at gunpoint ordered two customers and an employee to lie on the floor. The third man placed himself beside a phone booth located near the front entrance of the store. All three men were carrying handguns. The customers in the store and the store employees were unable to identify defendant as being one of the three who participated in the robbery.

The police arrived while the “holdup” was in progress. The first officer to arrive at the scene, Sgt. Billy Reed, placed the third man (the man by the phone booth), later identified as Reginald Mack, in a “choke hold” position and subdued him. Sgt. Reed then observed the first man, later identified as Bruce Charles, duck behind a partition. Sgt. Reed fired several shots at the first man and another officer, Thomas Allen, shortly thereafter subdued and took him into custody. Someone then shouted that a third man was at the rear of the store, at which time Officers Thomas, Buck and Liebsch observed a black man run across the back of the store. Officers Buck and Liebsch then went to the back of the store where they observed defendant crawling on the floor. Upon being ordered to turn over, defendant grabbed Officer Buck’s legs. Assisted by Officer Liebsch, Officer Buck grabbed defendant and handcuffed him. Defendant was unarmed when he was seized. An abandoned handgun was found in an aisle in the store near the “toy” department.

Defendant took the stand and testified as follows in his own behalf. He went to the Reveo Drug Store to purchase some items. Upon entering the store he was ordered by one of the participants in the robbery then in progress to walk directly to the back of the store and lie down on the floor. Defendant complied with the order. Shortly thereafter he heard the shots that were fired, then some policemen came to the rear of the store, physically accosted him, and placed him in handcuffs. Defendant denied any and all participation or involvement in the robbery that occurred and denied that he owned or was carrying a handgun when he entered or while in the store.

By way of placing defendant’s first point in proper perspective, it is appropriate to quote the following testimony and procedural events which occurred during the direct examination of state’s witness Liebsch:

“Q [Mr. Humphrey, Assistant Prosecuting Attorney]: Did you interview this defendant, or any other of the defendants, following this robbery?
A Yes, sir, I interviewed a Reginald Mack.
Q And when did that take place?
A I transported him to police headquarters in my police car, and upon arrival at headquarters we interviewed him.
Q And who is ‘we’?
A Myself and Officer Buck.
Q Before the interview did you advise him of his rights?
A Yes, sir, he was advised of his rights under the Miranda warning.
Q And when you say you advised him of his rights under the Miranda warning, what does that mean, what—
MR. HANDLEY [Defense Counsel]: Excuse me. Will you come up here, Mr. Humphrey?
(Counsel approached the bench and the following proceedings were had:)
MR. HANDLEY: Your Honor, I would like to know the purpose of this question. I know of no admissions or confession by Mr. Mack or anyone else, and even if there were admissions, I believe under the law it’s clear that they are inadmissible as being a violation of this defendant’s right to confrontation. I would like to know where this examination is going.
MR. HUMPHREY: Well, it’s the admission, a copy of which you admitted at the last trial, that Reginald Mack told this police officer that the three of them had come together — I think it’s 39th and Brooklyn, that they had bought the guns on the street and all three of them were armed.
THE COURT: That is admissible.
MR. HUMPHREY: I think it’s admissible because it’s an admission by one co-conspirator, and whatever he says is an admission against himself and these other codefendants.
MR. HANDLEY: Your Honor, I object at this point to any testimony concerning a statement by a codefendant in this case. It’s a violation of this defendant’s right to confront under the Constitution, and I object to it.
THE COURT: The objection is overruled.
(The proceedings returned to open court.)
Q [Mr. Humphrey]: What do we mean when we say you advised him of his rights?
A That he has a right to remain silent, anything he says can and will be used against him in a court of law, he has a right to an attorney while being questioned; if he can’t afford an attorney one will be appointed for him by the court.
Q And did he say he understood those rights?
A Yes, he did.
Q And after you had given him his rights under the Miranda decision, what did he say, if anything?
A I asked him how many of the three suspects were armed, and he said all of them were.
Q Did he say anything else?
A Yes. I asked him where he got the gun, and he said he got it at 39th and Woodland approximately two days prior to the holdup. He paid $20.00 for it, from an unknown person.
Q All right. What else did he say?
A He stated he did not know what kind of guns the other ones had, but he knew they had guns.
Q Did he say from what point they started?
A They got on a bus at 39th and Woodland, and rode the bus to Independence and Prospect and got off the bus.
Q Did he say how many of them there were?
A All three of them.
MR. HANDLEY: Excuse me.
(Counsel approached the bench and the following proceedings were had:)
MR. HANDLEY: Your Honor, at this point I renew my objection to this testimony concerning the statement of a code-fendant. I believe it’s inadmissible and I believe it violates the Constitution clause, and I move for a mistrial.
THE COURT: That is overruled.”

That portion of Officer Liebsch’s testimony just mentioned was permitted to stand during the course of the testimony of two more witnesses called by the state and during a noon recess. When the trial resumed following the noon recess, the assistant prosecuting attorney advised the trial court that he had “done some research, including the case of State v. Newell, Mo., 462 S.W.2d 794, and the law seems to be that you can introduce statements of co-conspirators before and during the commission of a crime but not subsequent thereto,” The assistant prosecuting attorney further advised the trial court, “for that reason I think that the jury should be instructed-to disregard the testimony of Officer Larry Liebsch as it pertains to the admissions that he got from Reginald Mack.” Upon being so advised, the trial court concluded that it had erred in permitting Officer Liebsch to testify as to extrajudicial statements made by Reginald Mack inculpating defendant. At this point defense counsel again requested the trial court to declare a mistrial, but again the trial court refused to do so. Instead, the trial court orally instructed the jury as follows: “Ladies and gentlemen of the jury, you are instructed to disregard the testimony of Officer Liebsch insofar as it pertained to statements made to him by Reginald Mack.” Thereupon the state rested its case.

The following principle, beyond any semblance of doubt or peradventure, prevails in this state: “[I]f the declaration of a co-conspirator or co-actor sought to be shown in evidence is not in furtherance of the object of the unlawful combination, or if it was made prior to the formation thereof, or after the consummation of the purpose thereof, . . . such declaration is hearsay . . . and not binding upon the co-conspirator or co-actor on trial. . [ajfter the common enterprise is ended, whether by accomplishment or abandonment, no one of the conspirators or joint actors is permitted by any subsequent act or declaration of his own to affect the others.” State v. Chernick, 278 S.W.2d 741, 748 (Mo.1955); See also: State v. Cross, 357 S.W.2d 125 (Mo.1962); and State v. Hill, 352 Mo. 895, 179 S.W.2d 712 (1944). The admission of such hearsay evidence, over objection, deprives an accused of his constitutional right of confrontation and attendant right of cross-examination, thereby infusing the error attached with prejudice of constitutional proportions. U.S.Const. Amend VI; Mo.Const. Art. I, Sect. 18(a) (1945); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); State v. Newell, 462 S.W.2d 794 (Mo.1971); and State v. Chernick, 280 S.W.2d 56 (Mo.1955).

As the testimony of Officer Liebsch pertaining to statements made to him by Reginald Mack was clearly inadmissible, the only question that remains is whether the trial court’s instruction to the jury to disregard it was a sufficient antidote. The answer to this question involves an area of law seldom touched upon in this state. Nevertheless, two cases in particular, State v. Burchett, 302 S.W.2d 9 (Mo. 1957) and State v. Benson, 346 Mo. 497, 142 S.W.2d 52 (1940), met the question head on. In Burchett, l.c. 302 S.W.2d 15, the court held that “[wjhere the improper evidence is so impressive that the appellate court is of the opinion that its effect was not removed by the remarks of the trial court, a new trial will be granted.” In Benson, l.c. 142 S.W.2d 55, the court held: “Where incompetent evidence is admitted of a character highly prejudicial to the rights of the defendant, the error is generally not cured by a withdrawal instruction. . . .We are of the opinion that the evidence was of such a character that we cannot say as a matter of law that the withdrawal instruction cured the error.” Construed together, Bur-chett and Benson appear to compositely hold that if the character of inadmissible evidence is so “highly prejudicial” or “impressive” that an appellate court cannot say as a matter of law that a withdrawal instruction cured it, then a new trial is the only panacea. Application of the amalga-mative principle gleaned from Burchett and Benson in a given case necessarily demands close scrutiny of the circumstances involved. It will be recalled that neither the customers nor employees of the Reveo Store could identify defendant as one of the three men who perpetrated the robbery. Although the extrajudicial statements of Reginald Mack alluded to in Officer Liebsch’s testimony did not mention defendant by name, his complicity was clearly implied by their tenor. Three suspects were placed under arrest at the Reveo Drug Store, defendant being one of the three. Officer Liebsch testified that his postarrest interrogation of Reginald Mack led off with the latter being asked, “. . how many of the suspects were armed . . . From the way the interrogation of Reginald Mack was phrased, it defies credulity to believe that the jury failed to perceive that Reginald Mack implicated defendant as a member of the trio who committed the robbery because he went on to relate that all three were armed and together took a bus from 39th and Woodland to Independence and Prospect, the scene of the robbery. In presenting this testimony through the medium of Officer Liebsch, the state was obviously trying to drive home to the jury defendant’s identity as one of the participants in the robbery. Without it, defendant’s identity rested upon circumstantial evidence. Coupled with defendant’s denial under oath that he participated in the robbery, the “prejudicial” or “impressive” nature of the complained of testimony of Officer Liebsch becomes self-evident. The prejudice which attaches to inadmissible evidence of this character is an intangible which cannot be calculated into degrees. For this reason, confusion rather than clarity results when an attempt is made to characterize such prejudice as minimal, moderate, or maximum in nature. Necessarily, each case involves a judgment decision at the appellate level which turns on the totality of the circumstances involved.

Concededly, the composite principle derived from State v. Burchett, supra, and State v. Benson, supra, may appear at first blush to be at war with the well established principle that the declaration of a mistrial necessarily rests largely in the discretion of the trial court and its exercise of discretion is entitled to great deference on appeal. However, a mechanical application of this latter principle at the appellate level was never contemplated. Otherwise, seeking appellate review of discretionary rulings by a trial court would become nothing more than exercises in futility.

This court is constrained to hold that the testimony of Officer Liebsch in question was “prejudicial” or “impressive” because it had a direct bearing upon defendant’s identity as one of the perpetrators of the robbery, a principal contested issue in the case. For this reason alone, the initial error in admitting the referred to testimony was not rectified by its subsequent withdrawal from the jury’s consideration. Especially so, as the entire incident was further compounded by the fact that considerable time elapsed before any attempt was made to expunge the inadmissible evidence from the minds of the jurors. In view of this temporal aspect of the problem, it is difficult to perceive that the inadmissible evidence was not indelibly planted in the jurors’ minds. Parenthetically, how do you unring a bell? Additionally, the constitutionally impermissible nature of the evidence added a dimension to the problem which cannot be ignored. To hold that the trial court’s admonition to the jury to disregard Officer Liebsch’s testimony pertaining to what Reginald Mack told him was an adequate curative measure would be tantamount to holding that such was an adequate substitute for defendant’s constitutional right of cross-examination. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

When inadmissible evidence saturates the state’s case with prejudice it cannot always be purged by the simple expedient of instructing a jury to disregard it. The attendant delay and cost of a new trial vis-a-vis preservation of the integrity of a fair trial as contemplated by our system of justice never becomes on issue in a criminal case. Delay and cost occasioned by a new trial, however regrettable, must always yield to a fair trial.

Defendant’s remaining point will not be addressed since it is unnecessary to do so to dispose of this appeal and it is unlikely that the matter posited therein will occur on retrial of the case.

Judgment reversed and cause remanded for a new trial.

All concur.