text:
    Richard W. WHITE, Plaintiff-Respondent, v. AMERICAN POSTAL WORKERS UNION, ST. LOUIS, Missouri LOCAL, Defendant-Appellant.
    No. 39341.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 21, 1979.
    Murtha, Cafferky, Powers & Jordan, Mose Lewis III, Washington, D. C., Wiley, Craig, Armbruster, Wilburn & Mills, St. Louis, for defendant-appellant.
    Donald Sommers, St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Action for libel. Jury verdict in favor of plaintiff and against defendants American Postal Workers Union and Odis Keys in the sum of $10,000.00 actual damages sustained by trial court. We affirm.

Plaintiff’s case was predicated on malice of defendants in the posting of an agenda letter on September 7,1974, which had been sent to the Postmaster by defendant Odis Keys in his capacity as the President of the Clerk Craft of the defendant Union. Agency was admitted. The Union only appeals.

Plaintiff was a nurse. He was a part of management of the United States Postal Service. He acted in his capacity of nurse for that part of some four thousand employees of the Union at the main St. Louis Post Office.

Prior to the posting of the September 7, 1974 agenda letter, plaintiff and Keys had met only once. This meeting occurred when Keys came into the First Aid Room when plaintiff was on duty and requested some mycitracin ointment for his eye. Plaintiff refused this request because under Post Office regulations he was not authorized to diagnose and treat an eye infection and because the ointment required a prescription. Keys became “very upset, very mad, and there were words exchanged between us.” Plaintiff then sent Keys home because he thought Keys had a contagious eye infection.

Keys said the eye ointment episode had nothing to do with the letter he wrote to the Postmaster. He did, however, list himself as a witness, in Answers to Interrogatories, to an item in the agenda letter that referred to plaintiff deliberately provoking argument. He admitted that there was an argument the night he went to the First Aid Room. He did not witness any of the other occurrences mentioned in the agenda letter.

The letter from Keys to the Postmaster, Claude J. Bakewell, was in pertinent part as follows:

“2. Registered Nurse Mr. Richard White of the First Aid Unit has been establishing policies concerning the use of sick leave; On numerous occasions has encouraged employees to call in sick before coming to work rather than use the First Aid Facility; Are counselling employees concerning their illness and rebuking them in an aloud adous (sic) manner; Has on occasions left employees stranded while waiting for service, saying, ‘he had to go to the cafateria (sic) for coffee break;’ Has on occasions deliberately without provocation provoked arguments; Has attempted to probe female visitors in debauchery.
If possible the Union would like to have RN Mr. White presint (sic) to give account of his action on these matters.”

The letter was posted in the Post Office by defendants on bulletin boards that were accessible to the four thousand employees. Plaintiff testified that he received no complaints prior to the publication of the aforementioned letter regarding the matters contained therein. After the letter was posted, plaintiff wrote Keys and requested documentation of the charges contained in the letter or a retraction and an apology.

Keys responded by writing plaintiff and stating he had signed statements in his file based on employee contacts with plaintiff while visiting the First Aid Unit. He said he also had a transcript of his personal debate with the plaintiff regarding Postal Service medical requirements and plaintiff’s direction of employees contrary to certain postal regulations. At the time Keys wrote this letter, he did not have signed statements from any employee regarding the complaints. He was able to later obtain only one written statement regarding the complaints after he had requested same from four fellow employees. Keys testified with respect to the charges against plaintiff that the president of the Union, Kirksey, “had a discussion and decided the matter had subsided and there wasn’t complaints coming in and decided to let the matter drop.”

Keys further testified that employees had orally complained to him about plaintiff. He had looked up the meaning of the words “probe” and “debauchery” in a dictionary before he made the accusation in the agenda letter. Only one person was named by Keys in answer to an interrogatory relating to “female visitors” known to him who were probed in debauchery by plaintiff.

The person so named was called as a witness for the defense and testified that she had complained to Keys because plaintiff had, on two occasions, asked her if she was going to a doctor, whether or not she took birth control pills, and whether she had a boyfriend or husband. She took offense to these inquiries. She did not say that plaintiff touched her in any fashion, and, particularly, did not testify that he probed her into debauchery. She did not testify to any overt action suggestive of debauchery on the part of plaintiff.

Plaintiff testified that the medical records of this female patient showed that she had been suffering from dysmenorrhea, a gynecological condition. His inquiries were ordinary and necessary in order to properly treat her condition. He denied probing any female visitors in debauchery, nor was he ever accused of doing so other than by the September 7, 1974 agenda letter. He specifically denied ever laying a hand on the female witness who testified for the defense. He personally showed the agenda letter to eight persons of whom only one worked at the Postal Service. Some of these persons already knew about the letter, but he did not know how they so learned about it.

President Kirksey testified that the Labor-Management Agenda, such as the one prepared by Keys on September 7, 1974, was distributed to the heads of various departments concerned with items thereon so that someone from that department with knowledge could attend the meeting. He had established the practice of placing the agenda on a bulletin board when he was President of the Clerk Craft “in order that the membership would know what items were being discussed at labor-management meetings.” That practice continued when he became President of the defendant Union.

In July, 1975, plaintiff was discharged from the Post Office on charges that were not contained in the September 7, 1974 letter. Plaintiff was of the opinion that he was eventually fired because of the letter. But he had no proof to support that opinion.

Plaintiff testified that as a result of the agenda letter, he was subjected to a bombardment of questions by fellow employees, including other nurses, about the validity of the accusations. He was questioned by his superiors and subjected to jokes by male employees. He noticed a difference in attitude of females who would come into the First Aid Unit after the letter was published. He began getting a barrage of complaints from higher level supervisors on charges without substance. He had no similar complaints prior to the publishing of the agenda letter. The ridicule of him continued until the time of trial. Several persons who were not connected with the Postal Department heard about the letter and questioned him about it long after it was published. He had to show the letter to friends and former associates by way of explanation of its contents.

Without objection on this appeal, the case was submitted to the jury by the following main verdict-directing instruction:

“Your verdict may be for plaintiff if you believe:
First, defendant wrote a letter containing the statement ‘has attempted to probe female visitors in debauchery’, and
Second, such statement tended to expose plaintiff to ridicule and damaged plaintiff’s reputation, and
Third, such statement was read generally by the employees of the Postal Service at 1720 Market Street, and
Fourth, that when defendants wrote the statement they knew it was false or entertained serious doubts as to its truth. MAI 23.06 Offered by Plaintiff.”

Union contends, and plaintiff concedes, that the statement “has attempted to probe female visitors in debauchery” was made under circumstances that provided defendants with a qualified privilege to make such statement. The existence of a qualified privilege, however, does not preclude a party from establishing that defendants acted outside such privilege. Estes v. Lawton-Byrne-Bruner Insurance Agency, 437 S.W.2d 685, 691 (Mo.App.1969).

Referring to the main verdict director, the only real question is whether or not there was substantial evidence that defendants knew the statement was false or entertained serious doubts as to its truth. This instruction is worded in accordance with an “actual” as opposed to “express” malice standard. The issue of whether this was the correct standard under the facts of this case is not before us. See Ramacciotti v. Zinn, 550 S.W.2d 217, 226 (Mo.App.1977); Whitmore v. Kansas City Star Co., 499 S.W.2d 45 (Mo.App.1973). See also Pulliam v. Bond, 406 S.W.2d 635 (Mo.1966).

We believe there was substantial evidence of the malice as set out in plaintiff’s instruction. Prior to the publication of the defamatory letter, Keys had met with plaintiff on only one occasion. On that occasion, Keys argued with plaintiff because plaintiff refused to give the defendant eye medication which the plaintiff was not authorized to dispense. The jury could believe that Keys was very upset and angry with plaintiff after the meeting. Shortly after this incident, Keys published the agenda letter which was posted on various bulletin boards throughout the Post Office building so that it could be read by four thousand employees. There were many complaints about plaintiff in the agenda letter. Keys did not discuss with plaintiff any of the complaints in the letter before it was published, although he stated that he could have done this. Keys never presented plaintiff with documentation of the complaints. He did not present a documentation of the charges at a Labor-Management meeting after specific request had been made' for the same. He conceded that his statement to plaintiff indicating the existence of written statements to back his charges was untrue. He was later able to obtain only one statement from one employee, although he requested statements from several regarding the alleged complaints after the letter was posted. In Answers to Interrogatories he named only the female person who testified as a person Keys claimed to have been probed in debauchery.

The evidence was such that a jury could reasonably find that Keys knew that plaintiff had not committed the alleged act published in the letter, or that he had serious doubts that plaintiff had probed female visitors in debauchery.

Defendant next complains that the judgment of $10,000.00 was excessive and that there was no proof of malice nor any resulting harm. We have already determined that there was substantial evidence of malice as defined in the instruction. The statement made was actionable per se. Section 537.110 RSMo. 1969. Proof of actual or constructive pecuniary loss was not necessary. Brown v. Publishers: George Knapp & Co., 213 Mo. 655, 112 S.W. 474 (1908).

Defendant says that the Supreme Court has dictated the bases of recovery in cases in which labor is involved, thus pre-empting cases such as Brown, citing Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) and Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974). Both Linn and Austin involved statements made during union organizing efforts and invoked considerations not present in this case. We do not find defendant’s argument on this point persuasive.

Defendant next alleges error in the giving of a burden of proof instruction based on MAI 3.01 instead of its refused modification of 3.01 requiring “clear and convincing evidence.” Defendant relies on the same line of federal decisions we distinguished, supra, in discussing plaintiff’s burden of proof to establish damages. This case does not involve a labor dispute of the type invoking the special rules set out in those cases. Cf. Austin and Linn. The authority relied upon by defendant on this point is thus distinguishable. We express no view on the applicability of such an instruction in a labor case within the purview of the Austin and Linn decisions.

Finally, defendant alleges as prejudicial to defendant the court’s exclusion of evidence of events subsequent to the publication of the libelous letter, and the exclusion of evidence that allegedly would have impeached plaintiff’s testimony and would have shown the absence of damage. Defendant did not make proper offers of proof regarding any of such evidence he complains about. We find no error in the record. The trial court has wide discretion in the introduction of evidence on direct and cross-examination. Bine v. Sterling Drug, Inc., 422 S.W.2d 623 (Mo.1968).

The judgment is affirmed.

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


source: Caselaw Access Project

author: REINHARD, Presiding Judge.

license: Public Domain

text:
    James SMITH, Plaintiff-Appellant, v. CITY OF CLAYTON et al., Defendants-Respondents.
    No. 40118.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 21, 1979.
    W. Morris Taylor, Taylor, Schumaier & Suddarth, St. Louis, for plaintiff-appellant.
    A. Wimmer Carr, Tremayne, Lay, Carr & Bauer, Clayton, Thomas E. Toney, III, Edgar G. Boedeker, Fordyce & Mayne, St. Louis, for defendants-respondents.
   REINHARD, Presiding Judge.

Plaintiff appeals from a judgment of the trial court, dissolving its restraining order and which further, refused to permanently enjoin defendants from promoting James Humphrey of the Clayton Police Force to the rank of captain on that same police force. Plaintiff’s main complaint on appeal is that the trial court’s order is not supported by substantial evidence.

Plaintiff’s petition requested that the court enjoin defendants from promoting Sergeant James Humphrey to the rank of captain. The petition alleged that Humphrey did not have the requisite and necessary service requirements for promotion to Captain; to-wit: “three years service as sergeant,” and further alleged this requirement appeared in the Manual — Department of Police, Clayton, Missouri (Manual revised on May 1, 1977). He also alleged Humphrey’s appointment constituted a denial to plaintiff of his right to be considered in accordance with the rules and regulations pertaining to promotions.

Captain Morrisey of the Clayton Police resigned from his post, his last day of active duty being September 29, 1977. This resignation resulted in a vacancy for the position of captain. In an attempt to fill this vacancy the following notice was placed on the Police Bulletin Board on September 29, 1977, over the signature of Richard P. Anthony, Administrative Assistant to the City Manager:

Police Captain Promotion Announcement. To all Qualified Clayton Police Sergeants:
All police Sergeants with at least two years in that rank with the Clayton Police Department as of September 1, 1977, are eligible and invited to apply for promotion to Police Captain . (Emphasis added)

On the same day, another notice was posted over the signature of the Chief of Police stating:

On June 24, 1975, the qualification of eligibility for promotion from Sergeant to Captain was reduced from three (3) years to two (2) years. This change was not noted when the manual was printed and the old qualification was printed.

On Page 76 400-3 sub section C should read:

‘Candidates must have served a minimum of two years service as Sergeant to establish eligibility to participate in the promotion process.’

Make correction in your manual.

Four sergeants on the force, James Humphrey, William Kortkamp, Keith McConnell and plaintiff applied to fill the vacancy. Subsequently, McConnell withdrew his name from consideration, leaving the remaining three in competition for the job.

Defendant Chief Michael Broser testified that the manual’s three year requirement was an error; that he first learned of this error on September 29, 1977, when then Captain Morrisey pointed out Humphrey would be ineligible under a three year requirement. He further testified that immediately upon learning of the error he contacted defendant City Manager, Lee R. Ev-ett, and with his approval posted the notice set out above. He also stated that all eligible candidates were also informed by letter of the existing two year requirement, and that the two year notice appeared before any of the applications were filed. His testimony was also to the effect that there had never been a three year requirement, but that the previous requirement was five years. Plaintiff testified that the requirement was two years in 1975 and 1976 when tests were given.

The three aspiring sergeants took the appropriate examinations for the position of captain and Humphrey scored highest overall, plaintiff ranking third. Humphrey received the appointment.

The trial court found in favor of defendants and dismissed the restraining order. Pursuant to plaintiff’s request, the trial court also made specific findings of fact and conclusions of law. In these findings, the court recognized Section 2-98 of the Code of Ordinances of the City of Clayton which provides:

The Chief of Police may promulgate rules and regulations for the government of the Police Department and policemen, to be subject to the approval by the City Manager, and may in like manner from time to time amend or repeal such rules and regulations or adopt new rules and regulations.
It also found,
that the rules and regulations for the appointment of captains within the Police Department provide that an individual must have at least two years minimum time in the rank of sergeant; . and that the length of service as sergeant as stated in the ‘Manual—Department of Police, Clayton, Missouri’ was in error.

Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) establishes our scope of review in court-tried cases. Murphy requires that we affirm the trial court’s ruling unless,

. there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. 536 S.W.2d 30, at 32.

Imbued with the sense of direction Murphy affords, we are obliged to affirm the decision of the trial court as there is sufficient evidence to support the trial court’s order.

Chief Broser testified that the two year requirement was in effect when the notice of the vacancy was posted, and prior to the filing of plaintiff’s application. He stated categorically that the manual was, in fact, erroneous. The conflicting testimony of former Captain Morrisey notwithstanding, the trial court was free to attach to this testimony whatever weight it chose. Snadon v. Gayer, 566 S.W.2d 483[5-6] (Mo.App.1978). Obviously, the trial court chose to believe Chief Broser’s testimony and accorded it the most weight.

In exercising its inherent option the trial court did not commit error. Chief Broser’s lengthy testimony constituted substantial evidence on which the trial court could base its findings. On review, a judgment is presumed correct and the burden of proving it erroneous rests upon he who challenges the judgment and prosecutes the appeal. Snadon, supra; Corley v. Kiser, 556 S.W.2d 218[1] (Mo.App.1977); Ryan v. Equitable Life Assurance Soc. of U. S., 560 S.W.2d 884[2] (Mo.App.1977). Plaintiff has failed to sustain this burden and we must, therefore, sustain the judgment. We remain ever cognizant of the trial court’s superior ability to observe the demeanor of a witness and thereby determine his credibility. Snadon, supra; Corley, supra; Ryan, supra. We defer to its judgment.

Lastly, plaintiff challenges one of the findings of fact as not conforming to the evidence claiming that the court found the City Manager made the rules rather than the Police Chief. He argues that the rules were not prepared in accordance with the procedure established in the ordinances. The evidence supports the defendant’s contention that the rules were promulgated by the Chief of Police and approved by the City Manager. The fact that the court made a finding that the City Manager prepared the rules in the first instance does not necessitate reversal. While we do not agree with this finding of the trial court, a correct decision will not be disturbed because a trial court may give a wrong or insufficient reason therefore. Webb v. St. Louis County Nat. Bank, 551 S.W.2d 869[8] (Mo.App.1977).

Affirmed.

CLEMENS and GUNN, JJ., concurs.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Avery L. NEWMAN, Appellant.
    No. KCD 29839.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Rehearing Denied April 3, 1979.
    Breon & Leffler, Warrensburg, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Avery Newman was convicted of stealing cattle over a value of $50, §§ 560.156 and 560.161, RSMo 1975 Supp. Following a jury trial he was sentenced to ten years imprisonment.

On this appeal Newman contends the court erred in allowing witnesses to refer to the same exhibit after the rule excluding witnesses had been invoked, admitting an exhibit, and overruling his motion for directed verdict at the close of the State’s evidence. Affirmed.

In January, 1976, Newman inquired of Richard Mallinson if he knew of any cattle to steal. Mallinson and Newman later went to a farm and observed some cattle in a field. Mallinson later returned to the scene to cut the fences in order to remove the cattle. That evening Newman and Mal-linson returned to the farm and loaded three head of cattle into Mallinson’s truck but found they needed a larger truck, so Newman returned to town and hired a truck. Newman returned to the farm with the hired truck and assisted Mallinson in loading the cattle. When the' truck was loaded the trucker was instructed to take the cattle to the Kansas City Stockyards. The first load was put in the name of Mallinson; Newman wrote his name and address on an envelope and gave it to Mal-linson with instructions that the second load be put in Newman’s name. The value of the cattle taken was $15,000.

Newman first complains of the ruling of the court which allowed some of the State’s witnesses to successively use the same exhibit and initial their markings which indicated the point where fences were cut and various other activities connected with the stealing. Newman contends this effectively abrogated the rule imposed by the court at his request to exclude witnesses from the courtroom. The practice of excluding witnesses from the courtroom rests in the sound discretion of the court and whether a witness who has violated the rule should be permitted to testify is also within the sound discretion of the court. State v. Lord, 286 S.W.2d 737, 741[13, 16] (Mo.1956). Here, Newman contends that subsequent witnesses who observed the markings already on the .exhibit were able to conform their testimony to that given by previous witnesses. However, Newman asserts this as a conclusion without demonstrating that any witness actually did so conform his testimony. A review of the testimony and markings made on the exhibit fails to show that any witness conformed his testimony to that previously given. In only one instance did the factual issue to which a subsequent witness testified while referring to the diagram concern an identifiable marking made by a prior witness. The prior witness had marked and initialed the drawing at the point where he stated the fence was cut. The subsequent witness showed where and how he had cut the fence. However, the precise location of the cut in the fence was not a material issue in the case. In that circumstance, the action of the court in allowing the exhibit to be used by more than one witness was not an abuse of discretion.

This precise issue has been passed upon in People v. Ketchel, 59 Cal.2d 503, 30 Cal.Rptr. 538, 550 — 51[18], 381 P.2d 394 (1963), where the court held that use of the same exhibit by more than one witness when markings had previously been made on the exhibit constituted a limited relaxation of the exclusionary order as to witnesses and rested within the sound discretion of the court. This court, adopting the reasoning in Ketehel, holds the limited relaxation of the exclusionary rule by permitting several witnesses to use the same exhibit was within the sound discretion of the court and no abuse has been shown.

Newman next asserts the court erred in admitting Exhibit II, a torn piece of envelope with Newman’s name and address written on it, which was admitted after Mallinson testified Newman wrote his name on the paper and gave it to him. Newman contends the exhibit is irrelevant and immaterial to any issue at trial. However, Mallinson testified Newman gave him the paper for use in having the second truck load of cattle shipped to the stockyards in Newman’s name. Newman later admitted in cross-examination that the writing on the paper was his.

The question of relevancy is left to the discretion of the trial court and any ruling thereon will be disturbed only on a showing of a clear abuse of such discretion. State v. Lee, 556 S.W.2d 25, 31-32[10-12] (Mo. banc 1977) [reversed on other grounds by the Supreme Court of the United States, Lee v. Missouri, - U.S. -, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979)]. Lee also held that evidence is relevant if it corroborates evidence which is relevant and bears on the principal issue. Here, the exhibit corroborates the testimony of Mallinson that Newman wrote his name for Mallinson’s use in having the cattle shipped in Newman’s name. The exhibit was properly admitted.

Newman’s final point alleges the court erred in failing to sustain his motion for directed verdict and judgment of acquittal at the close of State’s evidence. However, the transcript which was approved by Newman’s counsel fails to show that any motion was filed at the close of the State’s evidence. Even if such motion had been filed, Newman offered evidence and thereby waived any claim as to a motion for acquittal at the close of the State’s case. State v. Marshall, 571 S.W.2d 768, 773[13, 14] (Mo.App.1978).

The judgment is affirmed.

All concur.


text:
    Kenton E. THOMPSON, Robert E. Thompson and Wanda Lynch, Coadministrators of the Estate of Winifred E. Thompson, Deceased, Plaintiffs-Appellants, v. Jasper K. DALBEY and Madge A. Dalbey, Defendants-Respondents.
    No. 29656.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1979.
    Application to Transfer Denied May 17,c1979.
    Jerold L. Drake, Grant City, for plaintiffs-appellants.
    Scott Ross, Beavers & Ross, Maryville, for defendants-respondents.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge, Presiding.

Appeal from verdict and judgment for defendants in plaintiffs’ action for damages from sale of an allegedly defective house. Appellants’ contentions go to discretionary rulings in refusal of evidence proffered by plaintiffs. Affirmed.

The plaintiffs purchased the home from defendants on October 23, 1956. It was already built when plaintiffs looked at it. Plaintiffs moved in about November of 1956 and lived there until 1975. Kenton Thompson maintained the home very well. He extended the downspouts so water would run away from the house. The fill around the base of the house was loose; the soil was clay. Sometime after 1961 a small hairline crack appeared in the basement wall. He consulted the defendant, Mr. Dal-bey, concerning this crack and was told to forget it. In the spring of 1970, all four basement walls began to crack and come in, breaking up the partitions in the basement. Plaintiff hired Melburn Archer to replace the damaged basement with poured concrete reinforced with steel. When plaintiffs purchased the home, the basement was made of concrete blocks reinforced with pilasters.

Plaintiffs’ witness Mike Jones was a specialty contractor. He did foundation work and had been in the business for twelve years. He had looked at the house and found that the walls were buckling and the floor broken up. Mr. Jones proposed to install “rebar” down through the walls and to inject grout under pressure into the cavity area of the walls and saturate the inside of the wall. The estimated maximum cost was $6,000. Plaintiffs’ house was not built in accordance with good construction standards. In 1972 none of the blocks were cracked and the problem was that the lateral support was not sufficient to withstand the pressure of the soil.

Plaintiffs’ witness Don Turner was a civil engineer licensed in Iowa, Missouri, and Nebraska. He examined the house on December 10, 1976. He explained the term “safety factor” as used by engineers and stated that he used a safety factor of three to one, that the wall was not built in accordance with good engineering standards. An alternative method of design would be a poured concrete wall with reinforcing steel.

Defendant Jasper K. Dalbey was general manager of Dalbey Lumber Company, a corporation, and it was Dalbey Lumber Company that purchased the materials, paid for the labor and built the house that was sold to plaintiffs. Kenton Thompson never talked to him about the problems which gave rise to this lawsuit. However, about 1960, plaintiffs called defendants’ attention to a two-foot long crack and small bulge. Defendant recommended the installation of a steel I — beam. He stated that although Dalbey Lumber Company bought the lot the title was taken in the name of defendants. Prior to purchasing the house, Mr. Thompson inspected it several times. Dal-bey Lumber Company purchased the eight by sixteen blocks with which the house was built from a reputable dealer. Sand used was pure. The man who supervised the work was one of the prominent builders in the community, and the workers who performed the work were experienced block men. The basement was built by constructing a footing and then placing eleven rows of blocks thereon for the basement wall. Stiff number nine wire was used for horizontal reinforcing between the blocks, and pilasters were also used for reinforcing. Basements were customarily of this type of construction. Forms were not available and he had never heard of using grout to reinforce the walls. If plaintiff had used a steel beam and had filled the cracks with cement they would have held; the wall had no perpendicular reinforcing steel. Defendant Jasper K. Dalbey had the power to supervise the work.

Defendants’ witness Andy Ettleman, a lumber dealer, contractor, and housebuilder who had been in business since 1953, “thought they were good” in reference to what constituted good building practice in Worth County in 1955 and whether this house was built in accordance with good building practices.

Defendants’ witness Max Groom, a carpenter and contractor, testified that steel beams could have been put in to hold back the block wall.

Defendants’ witness Karl Wolbert saw the plaintiffs’ damaged basement. The best thing he could do would be to tear out the basement walls and start all over. The quality of the workmanship on the block wall was good, but as time goes on and rain runs down the roof and hits the dirt, it settles and there is no way a block wall can stand up against the pressures of water freezing and thawing and dirt shrinking and expanding. The witness specialized in concrete work, and used poured concrete only.

Plaintiffs submitted their case on strict liability.

For their “Points and Authorities” appellants charge the court erred (I) “in refusing to permit the plaintiffs’ expert witness to testify as to what would be the design life of a home designed in accordance with good engineering standards”; and (II) in refusing to permit cross-examination of defendant Jasper K. Dalbey concerning advertisements and representations placed in the newspaper.”

Rule 84.04(d) requires that “The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder.”

Appellants’ points assert allegedly erroneous rulings without any statement “wherein and why” they are erroneous. They are thus abstract assertions of error which preserve nothing for appellate consideration, and the court has no obligation to seek the meaning of such abstract assertions by searching the transcript or brief. Lee v. Rolla Speedway, Inc., 539 S.W.2d 627, 629 (Mo.App.1976).

Point I suggests an opinion sought on “design life of a home,” which is patently irrelevant to plaintiffs’ complaint of defective construction of a specific house. See E. C. Robinson Lumber Co. v. Lansdell, 215 Mo.App. 357, 253 S.W. 24 (1923).

Point II suggests exhibits sought as “representations,” which are equally irrelevant to plaintiffs’ theory of strict liability.

Judgment affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Eddie L. CLEMMONS, Appellant.
    No. KCD 29768.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1979.
    Application to Transfer Denied May 17, 1979.

      Clifford A. Cohen, Public Defender, Kevin R. Locke, Lee N. Nation, Asst. Public Defenders, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The defendant appeals from a judgment of conviction by a jury for tampering with a motor vehicle [§ 560.175.1, RSMo 1969] and the sentence of three years imprisonment imposed by the court upon the defendant as a second offender.

The defendant contends first that the information was insufficient to confer jurisdiction upon the court to sentence under' § 556.280, RSMo 1969 [Second Offender Act], for failure to allege that the offense for which defendant had been previously convicted was “punishable by imprisonment in the penitentiary.” The information recites that the defendant

pleadfed] guilty to stealing from the person, that, thereafter, on the 21st day of July, 1976, said defendant was sentenced to five (5) years with five (5) years probation.

These recitals sufficiently allege the three elements for invocation of the Second Offender Act: that the defendant was convicted of a prior offense punishable by imprisonment in the penitentiary; that he was sentenced for that offense; and that the judgment imposed probation, parole, fine or imprisonment. State v. Blackwell, 459 S.W.2d 268, 272[3] (Mo. banc 1970). The information does not employ the precise statutory words of art — punishable by im prisonment in the penitentiary — but the allegations that the defendant was sentenced to five (5) years with five (5) years probation states in pith the equivalent of the formal jargon that the defendant was sentenced to a term of five years imprisonment in the penitentiary, that the execution of the sentence was suspended and that defendant was placed on probation for a term of five years which, if served without event, completes service of the sentence. The contention of error is denied.

The defendant contends also that the evidence that his fingerprints were found on the vent window of the car, absent proof of other circumstance, was not sufficient to convict him of the charge of tampering.

The evidence was that a 1974 Volks-wagon was broken into and a packet of textbooks in a plastic bag and a transistor radio stolen from the passenger side of the front seat. The vehicle belonged to James Smith, a Kansas City police officer, who had driven to work at about 2:30 p. m. and parked the car at the employment site. At about 10:30 p. m. that day, while still on duty, Officer Smith stopped his police car along side of the Volkswagon, opened the door on the passenger side, and placed another textbook there. He saw nothing amiss but took no special notice to whether the transistor and other books were still there. Some twenty minutes later, at about 10:50 p. m., Officer Smith left duty and, once inside the Volkswagon, noticed that the vent window on the driver’s side pointed outward. He noticed then that his books and transistor were gone, and so returned to the police station to enlist another officer for help. The two officers, Smith and Rast, tested the car for fingerprints and those lifted were transmitted to a special police unit for identification. The prints taken, one from the outside of the broken vent window and one from the inside, were identified as those of the defendant. There is no contention of faulty identification, but only that the proof was not sufficient for conviction. At discovery of the entry and loss, Officer Smith search for his property and discovered the plastic bag, the books still inside, on the sidewalk some fifty feet from the car. No attempt was made to obtain fingerprints from the bag, however, because they concluded a plastic surface does not retain such marks.

It was the testimony of Officer Smith that the weather that morning was so propitious, he put the Volkswagon through a car wash before he went to work and had, himself, washed the inside of the windows clean.

The defense offered no evidence but rested on a motion for judgment of acquittal on the contention that the proof was insufficient, as a matter of law, for submission to the jury.

Presence at the scene of the crime alone does not prove guilt. The evidence must give an inference of some act of affirmative participation by an accused in the venture before a verdict of guilt may be returned. State v. Castaldi, 386 S.W.2d 392, 395[1-3] (Mo.1965). On a parity of principle, the criminal agency of an accused is not proved merely by fingerprints found at the scene of the offense, but on evidence besides of circumstances that the fingerprints could have been impressed only at the time the crime was committed. State v. Thomas, 452 S.W.2d 160, 162[4-6] (Mo.1970); State v. Lane, 497 S.W.2d 207, 209[3] (Mo.App.1973).

The evidence suffices to convict the defendant of tampering with the Volks-wagon. That the proof was altogether circumstantial does not disparage the determination of guilt. Any fact, the criminal agency of the defendant included, may be proved circumstantially. State v. Chase, 444 S.W.2d 398, 401[2, 3] (Mo. banc 1969). The fingerprint on the outside of the vent window placed the defendant at the scene of the crime; and the fingerprint on the inside of the vent window proved his presence at the time that window was broken for access to the books and transistor on the front seat of the Volkswagon. This evidence, taken with the testimony of Officer Smith that the car and windows had been cleaned, inside and out, that morning; that no one had his permission to enter the car; that the doors and windows were closed and [a jury could fairly infer] locked; that only twenty minutes before his discovery he had placed other books on the front seat and nothing appeared amiss, are other circumstances which allow inference that the fingerprints found on the vent were impressed at the time that window was broken.

It may be possible, as a hypothetical proposition, that the defendant touched the Yolkswagon quite innocently as he went by without any intent to tamper, but that would not explain the fingerprint on the inside of the vent — an area not legitimately open to him. It may be possible, even, that he touched the interior window quite innocently after the crime and so left his impress, but that hypothesis becomes unreasonable when considered with the prosecution evidence [to which, on a verdict of guilt, we accord the best inferences] that only twenty minutes before the discovery by the owner the car was intact and the additional evidence that the fingerprints of the defendant were the only latent impressions on the window. The evidence that the books were discovered on the sidewalk undisturbed also allows inference that they had not been long at that place — and so supports the conclusion that the crime was recent. That evidence gives force to the inference, therefore, that the tampering had been done within the twenty minutes between the placement of the additional books in the car and the discovery of the damage and theft — and not within the eight hours between the arrival of Officer Smith at the place of employment and his discovery. That the defendant was a passer-by who innocently handled both sides of the vent after it was broken within twenty minutes of discovery does not present a hypothesis of innocence so plausible as to create a reasonable doubt of guilt as a matter of law.

For submission of a criminal offense on circumstantial proof, the prosecution evidence need not preclusively refute every conceivable hypothesis of innocence, but only those plausible and reasonable under the evidence. State v. Thomas, supra, 1. c. 162[1-3].

The coincidence of fingerprints so placed on both sides of the window through which the culprit made access to the contents of the car, as we have noted, becomes less fortuitous when considered with the circumstance that the only latent fingerprints on that area were those of the defendant and the further consideration that the vent window of a parked vehicle, unlike the door handle of a taxicab or glass pane of a mercantile establishment, is not an object frequently touched by those who come and go unless by design.

Judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Robert E. ROBERTS, Appellant.
    No. KCD 29955.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1979.
    Application to Transfer Denied May 17, 1979.

      Kevin R. Locke, Asst. Public Defender, Clifford A. Cohen, Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The defendant appeals from a judgment of conviction for burglary and stealing returned by a jury verdict and the concurrent sentences of five and ten years imposed by the court upon the defendant as a second offender.

The defendant contends first that the information was insufficient to confer jurisdiction upon the court to sentence under § 556.280, RSMo 1969 [Second Offender Act] for failure to allege that the offense for which defendant had been previously convicted was “punishable by imprisonment in the penitentiary.” This contention, although cast in a somewhat different frame, is answered by our opinion in State v. Clemmons, Mo.App., 579 S.W.2d 682 [KCD 29768] adopted concurrently. The application of § 556.280 includes the proof that the defendant was convicted of a prior offense punishable by imprisonment in the penitentiary. State v. Blackwell, 459 S.W.2d 268, 272[3] (Mo. banc 1970). These statutory words of art mean, in pith, a felony. They convey the statutory intent that the Second Offender Act applies only where the prior conviction was for a felony. State v. Kennedy, 513 S.W.2d 697, 700[6] (Mo.App.1974). The information recites that earlier, the defendant had pleaded guilty to the offense of burglary in the second degree and was sentenced to a term of five years imprisonment with the . Department of Corrections — a pleading valid to invoke the authority of the court to assess punishment under the statute.

The next point contends that there was not sufficient proof of possession by the defendant of the stolen goods, or other circumstances, to allow an inference that he had committed the burglary where the property was taken.

In the early morning [2:20 a. m.], Patrolman Burroughs of the Kansas City Police Department received a report of an abduction in the vicinity. The information was that a male had forced a female into a dark-colored car. He found no car of that description at the reported site, but his cruise of the area detected a dark car parked, headlights unilluminated, on the street about forty feet from a Shop-N-Go store. Officer Burroughs observed the car, still without lights, pull up to the stop sign at the intersection nearby. As the dark car turned, the lights from the police car shone on the occupants, three black males and another who appeared to be a female [later shown to be an impersonator] with long red hair. The officer followed and then stopped the dark car. He saw two trash bags in the back seat, each full of goods, some with price tags still intact. Inquiry of the dispatcher informed Burroughs of a recent report of burglary at the Shop-N-Go store where the dark car had been observed parked. There he saw that the front glass door had been shattered by bricks. The shelves where liquor and cigarettes were kept were empty.

Goode, an employee at the store, verified that the merchandise discovered in the trash bags on the back seat of the car — liquor, cigarettes, gloves, candy, calculators, among other things — belonged to the Shop-N-Go store. It was confirmed by employee Wilkes that the store had been locked at 1:00 a. m. that day and no one had been given permission to enter thereafter.

The driver of the dark car was Jerome Wright. Also in the front seat were one Stanley Porter [in female dress] and defendant Roberts. Fayodis Thomas occupied the back seat alongside the two trash bags with merchandise. Two of them, Porter and Thomas, were called for the defense to explain the presence of the stolen property in the car during the occupancy of the defendant. Their testimony was to the effect that neither the defendant nor any of them had knowledge of the burglary of the Shop-N-Go store or was in complicity in that unlawful entry.

Thomas testified that as he walked, he found two trash bags, filled with the whiskey, cigarettes and other goods, at 40th and Paseo, slung the bags over his shoulder and proceeded south where he saw Porter [in female garb] and the defendant seated in a car parked at 44th and Paseo, the site of the Shop-N-Go store. Thomas approached and asked defendant for a ride. He was told to wait until the driver returned from the service station; they had run out of gas and he had gone to replenish the supply. Thpm-as entered the car and occupied the rear along with the trash bags. In a matter of seconds, Wright returned with a gas can in hand, emptied the fuel into the tank, and placed the can somewhere in the car. Thomas testified he did not show the contents of the bags to any of the occupants, but that he did give Porter a packet of cigarettes out of the bag and offered whiskey for a ride home.

The testimony by Porter, with minor lapses, was corroborative of that given by Thomas. Porter denied complicity in the burglary or that of the defendant.

The rebuttal testimony for the prosecution showed — by Officer Burroughs — that Thomas had given two different accounts of the events. Thomas told Burroughs that he met the others by the store, but then told him that he and the three others had been riding around that morning and ran out of gas. Thomas told Burroughs also two different versions as to where he found the trash bags, 40th and Virginia and 40th and Paseo, variously. Burroughs testified on rebuttal also that the ground was wet that night, not dry as Thomas had testified, but that the bags were neither wet, torn, nor ruffled. Also, in rebuttal, a search of the dark car failed to disclose a gasoline can. As to the Porter evidence, Burroughs testified that his purse contained two half-pints of liquor and two packs of cigarettes. Technical evidence tended to rebut the contention of Thomas that he had no knowledge of the burglary nor entered those premises: there was proof for the prosecution that glass particles taken from the shoes of Fayodis Thomas matched samples of glass taken from the door of the Shop-N-Go store, both as to index, constituent elements, composition and color, and that no shattered fragments were found within the area between the store and where the dark car was parked.

The unexplained possession of goods stolen in a recent burglary suffices to infer guilt both as to the unlawful entry and the theft from those premises. State v. McClinton, 566 S.W.2d 506, 508[1, 2] (Mo.App.1978). To support guilt, the possession by an accused need not be separate from others but may be joint with them. State v. Webb, 432 S.W.2d 218, 222[5, 6] (Mo.1968). A manual caption is not always essential to possession; rather, the nature of the possession is determined by the nature and kind of the property. State v. Prunty, 276 Mo. 359, 208 S.W. 91, 94[2] (1918). The inference of guilt to which unexplained joint possession gives rise, however, is one of fact and not of law and alone does not suffice to submit the guilt of the accused. State v. Cobb, 444 S.W.2d 408, 414[6] (Mo. banc 1969). Rather, something more than unexplained joint possession of recently stolen goods — some affirmative participation in the criminal venture — must be shown to convict for the burglary or theft. State v. Arnold, 566 S.W.2d 185, 186[1-3] (Mo. banc 1978); State v. Farmer, 490 S.W.2d 72, 74[1] (Mo.1973).

The evidence for the prosecution, taken most favorably to the verdict of guilt, shows the defendant in a car parked at the site of the burglary within eighty minutes of the crime. [The premises of the store were secured by an employee at 1:00 a. m. and the entry and theft were detected minutes after 2:20 a. m., when the dark car was first observed by police at the curb by the store.] The occupancy of the car was shared by Thomas, who admitted possession of the property [proved to be stolen] in the trash bags, and whose presence on the Shop-N-Go store premises after the breakage was shown by the combined proof of the compatible glass particles taken from his shoes and the absence of fragments on the area between the store premises and the place where the dark car was parked. However otherwise plausible the account given by Thomas how he came into possession of the bags and contents, his testimony was seriously impeached by the variable versions of that event recounted to Officer Burroughs. There was proof also that some of the property stolen from the store was taken from the person of the impersonator, Porter, another occupant of the car.

Evidence that the defendant was at the scene with opportunity to commit the crime, not in itself sufficient to submit guilt, may be considered with the joint possession of goods stolen during the crime, and other circumstances, to determine the inference of the affirmative participation of the defendant in the criminal enterprise. State v. Cobb, supra, 1. c. 412[1, 2]. There is no circumstance, as in Cobb, of sudden acceleration and frantic movement from the burglary scene by the vehicle to escape the police chase from which, along with joint possession of the stolen goods, to allow inference of guilty participation by the defendant passenger. The dark vehicle which defendant Roberts occupied left the curb slowly and moved [except for a momentary lapse of headlights] lawfully until stopped by the police. There is evidence, however, that Thomas, one of the occupants, had entered the Shop-N-Go store after the breakage and had pilfered from the shelves. There is evidence also, from the statement made by Thomas to Officer Burroughs, that Porter, defendant Roberts and Thomas had been riding together in the car all night. This evidence, taken as fact and conjointly with the presence in the car of the stolen goods and the inference that Thomas was on the store premises illicitly during the shared occupancy of the vehicle, shows a continuous collective enterprise among the occupants to commit the crime charged against the defendant Roberts.

The proof before us appears more cogent than in Cobb or in Arnold or in McClinton which sustained the submission of burglary and stealing on no more evidence than presence at the scene with opportunity to commit the crime in a motor vehicle shared with others in the course of transportation of i the goods stolen from premises illegally entered. This evidence, the decisions hold, suffices to raise the inference of an exclusive, albeit joint, possession of the stolen goods in the defendant as well as the sub-missible issue of the affirmative participation by the defendant as an aider and abettor in the criminal activity. The evidence before us allows inference additionally that the occupants of the dark car were in the company of one another at the very time when one of them, Thomas, was on the premises of the store illegally and purloined the property.

The defendant argues the effect of State v. Farmer, supra, to support his contention of right to acquittal. That defendant was found senseless from drink in the rear seat alongside the property taken in a burglary in a car occupied by others. There was no evidence that the defendant had been in the car at the time of the crime or had any connection with the other two occupants. In a word, there was no basis for inference that the defendant had opportunity to commit the entry or take the property unlawfully. The defendant Roberts, on the other hand, was an aware participant in the continuum of the criminal events as they unfolded.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    Steve WEBSTER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29780.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1979.
    Application to Transfer Denied May 17, 1979.

      Robert B. Reeser, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Movant appeals from denial of his motion under Rule 27.26. The motion was heard by a special judge, the trial judge having disqualified himself because assertions in the motion questioned the court’s impartiality at the trial. The defendant’s direct appeal resulted in affirmance. State v. Webster, 539 S.W.2d 15 (Mo.App.1976).

Defendant was represented and eviden-tiary hearing was afforded; the court reviewed the movant’s allegations and the evidence presented in explicit and commendable detail, making specific and detailed findings of fact as to each of the allegations.

On appeal from the denial of his motion, the movant complains that the trial court’s findings as to adequacy of representation and the prejudice of the trial court were clearly erroneous. A review of the transcript of the evidentiary hearing on the Rule 27.26 motion reveals that the evidence clearly supports the findings of fact and conclusions of law denying relief. The motion transcript shows that the court hearing the motion reviewed the trial transcript as well as the evidence presented at the 27.26 hearing, and the careful and detailed determination of all the issues raised is clearly supported by the evidence. A detailed review of the movant’s allegations and the evidence upon which the court ruled adversely to the motion would have no prece-dential value. The trial court’s denial of the motion is affirmed. Rule 84.16.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. William C. NEIGHBORS, Appellant.
    No. 29799.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1979.
    Application to Transfer Denied May 17, 1979.

      Clifford A. Cohen, Public Defender, and Kevin R. Locke, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., and Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   PER CURIAM.

Direct appeal from jury conviction for forgery and sentencing of ten years pursuant to the Second Offender or Habitual Criminal Act, § 556.280, RSMo (1969). Sentence entered July 7,1977. Motion for new trial timely filed and overruled.

Appellant raises two points on his appeal set forth as follows:

I
“The trial court erred in sentencing Appellant pursuant to the Second Offender Act (§ 556.280 R.S.Mo.) insofar as the information filed in the cause was defective and insufficient to confer such jurisdiction upon the court due to the fact that the information failed to allege that the crime of which Appellant had been previously convicted was one “punishable by imprisonment in the penitentiary” and thus the sentencing of Appellant by the court denied him due process.”
II
“The trial court abused its discretion in failing to submit for the jury’s edification MAI-CR 3.60, dealing with the jury’s limited consideration of evidence of other crimes, insofar as without such instruction the jury was not cautioned to consider only the limited admissibility of the evidence of the burglary of Freeway Auto Sales, which prejudiced Appellant and denied him a fair trial.”

Appellant’s contention of the defective information is best considered in light of the reading of the information, facts surrounding Appellant’s history and action by the trial court.

“AMENDED INFORMATION
Now comes RICHARD KNIGHT, Assistant Prosecuting Attorney for the State of Missouri, in and for the body of the County of Jackson, and upon his oath informs the court, that WILLIAM CLIFFORD NEIGHBORS whose Christian name in full is unknown to said Assistant Prosecuting Attorney, late of the county aforesaid, on the 20th day of September, 1965, at the County of Jackson, State of Missouri, said defendant pled guilty to the charge of robbery in the first degree; that thereafter on the 20th day of September, 1965, said defendant was sentenced to eight (8) years in the Missouri Department of Corrections; that thereafter on the 1st day of October, 1965, said defendant was confined in the Missouri Department of Corrections, Jefferson City, Missouri, that thereafter on the 13th day of November, 1970, said defendant was released from said Penitentiary on the commutation of sentence; that thereafter on the 30th day of July, 1976, at the County of Jackson, State of Missouri, said defendant, did then and there unlawfully, willfully, knowingly and feloniously, either acting alone or knowingly in concert with another, with intent to defraud one First National Bank of Independence, use and utter as true a certain writing purporting to have legal efficacy and commonly relied upon in business and commercial transactions, and purporting to have been so made by another, knowing the same to have been so made and altered, when in truth and fact said instrument was forged and William Clifford Neighbors knew it to be forged, which writing is of the following tenor, to-wit:
FREEWAY AUTO SALES, LTD. 1111
8411 Truman Road 254-9690 80-170S
Kansas City, Missouri 64126 7/29/1976 1010
PAY TO THE ORDER OF WAYNE K. TICE
263 Dols 53 CTS $263.53
Dollars
STANDARD STATE BANK
INDEPENDENCE, MISSOURI s/ Cecil Freeman
against the peace and dignity of the State.”

(FILED JANUARY 24, 1977)

On September 20, 1965, Appellant entered a plea of guilty to robbery in the first degree, was sentenced to eight years, entered the penitentiary on October 1, 1965 and on November 13, 1970, was released upon commutation of his sentence.

In the present case, just prior to the close of the state’s evidence, the court held a hearing out of the presence of the jury, at which the prosecutor, Appellant and Appellant’s counsel were present. Documents of Appellant’s prior conviction for a felony offense and the sentence for that offense were entered as evidence and made a part of the record without objection. Appellant was advised by the court of the court’s conclusion that the court had authority to proceed under § 556.280 RSMo (1969) if the jury convicted Appellant.

Under § 556.280 RSMo, the state is required to prove an accused was convicted and sentenced to an offense punishable by imprisonment in the penitentiary. State v. Blackwell, 459 S.W.2d 268 (Mo.banc 1970). Such burden is met upon proof that an accused was convicted and sentenced for a felony. State v. Kennedy, 513 S.W.2d 697 (Mo.App.1974). Also, a trial court can take judicial notice that robbery is a felony and that a felony, by definition, is an offense punishable by imprisonment in the penitentiary. State v. Abernathy, 515 S.W.2d 812 (Mo.App.1974). Evidence of the record proved Appellant herein was, prior to this charge, convicted and sentenced for an offense punishable by imprisonment in the penitentiary.

Neither § 556.280 RSMo (1969) nor Rule 24.01 contain inherent requirements making requisite the precise wording alleged by Appellant. The state has met its burden of proof pursuant to § 556.280 RSMo (1969).

The second contention by Appellant relates to testimony of Claude Freeman, one of the state’s witnesses, and the allegation that the trial court erred in its failure to give the MAI-CR 3.60 instruction so as to caution the jury to consider the limited admissibility of the testimony of witness Claude Freeman relative to the burglary of his place of business.

Witness Claude Freeman testified that his place of business had been burglarized on June 20, 1976, and as a result of that burglary, his checkbook had been stolen. Appellant was charged with having committed this offense July 30, 1976. The check (State’s Exhibit No. 8) alleged to be the same falsely uttered by Appellant was identified by the witness as one from his checkbook stolen in the burglary.

The record reflects, under cross-examination, that Claude Freeman stated he did not know who stole the check and who, if anyone, tried to negotiate the check. This was the extent of the testimony of witness Claude Freeman.

MAI-CR 3.60 is one of the so-called discretionary instructions, but if requested, must be given by the trial court. The rule states:

“If you find and believe from the evidence that the defendant was (involved in) (convicted of) (an offense) (offenses) other than the one for which he is now on trial (and other than the offense mentioned in Instruction No. -), you may consider that evidence on the issue of (identification) (motive) (intent) (absence of mistake or accident) (presence of a common scheme or plan) ([specify other purpose for which the evidence was received as substantive evidence of guilt]) of the defendant (and you may also consider such evidence for the purpose of deciding the believability of the defendant and the weight to be given to his testimony). (You may not consider such evidence for any other purpose.)”

Appellant made no request that the instruction be given and did not raise the issue in his motion for new trial. He raises the question for the first time on appeal, which is permissible under Rule 27.20(c). Also under Rule 27.20(c), this court may review the failure to give the instruction but such review is made to determine plain error, and to guard against manifest injustice or a miscarriage of justice, resulting from the discretion exercised by the trial court. State v. Grey, 525 S.W.2d 367 (Mo.App.1975); State v. Johnson, 537 S.W.2d 816 (Mo.App.1976).

The record here indicates the state secured the testimony of witness Claude Freeman for purposes of establishing the check in evidence had been stolen and that as owner thereof, he had not issued the check nor had he ever authorized anyone to issue the check. The failure of the trial court to give MAI-CR 3.60 in light of this testimony did not amount to an abuse of discretion causing plain error or manifest injustice. State v. Murphy, 533 S.W.2d 716 (Mo.App.1976); State v. Bridges, 491 S.W.2d 543 (Mo.1973); State v. Broomfield, 510 S.W.2d 848 (Mo.App.1974).

Judgment affirmed.