author: SOMERVILLE, Presiding Judge.

text:
    L_A_J_, Plaintiff-Respondent, v. C_T_J_, Defendant-Appellant.
    No. KCD 29774.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.

      Miniace & Pelofsky, Lawrence H. Pelof-sky, Kansas City, for defendant-appellant.
    Holliday & Bryant, P.C., Mark S. Bryant, Kansas City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

A near irreconcilable clash of classic principles — the inviolability of final judgments from all save direct attack vis-a-vis the inviolability of individuals from judgments for the payment of money rendered on something as tenuous as service by publication — underlies this otherwise pedestrian appeal.

First, a look at the apical facts is in order. On May 9,1972, a decree was entered in the Circuit Court of Jackson County, Missouri, awarding L_A_J_(wife) a divorce from C_ T_ J_ (husband) and custody of three minor children claimed by her to have been “born of the marriage”, all pursuant to a petition for divorce filed by the wife. Although the wife and children were residents of and physically present in Jackson County, Missouri, the husband was not amenable to personal service of process and jurisdictional viability of the decree rested on service by publication upon the husband. The lack of personal service of process upon the husband, conjoined with the fact that the husband at no time entered his appearance in the divorce proceeding, precluded inclusion of any provision for alimony or child support in the decree rendered May 9, 1972.

On April 18, 1977, a pleading captioned “Amended Motion For Order of Child Support” was filed by the wife in the Circuit Court of Jackson County, Missouri. Personal service of process with respect thereto was obtained upon the husband and in a responsive pleading which he filed he denied, among other things, that he fathered one of the three minor children ostensibly “born of the marriage”. At the evidentiary hearing held on the wife’s motion the matter of the child’s paternity was broached by the husband’s counsel on cross-examination of the wife. Counsel for the wife objected to this line of inquiry on the ground that it was barred by the doctrine of res judicata as “parentage” of the child in question had been conclusively adjudicated in the prior divorce proceeding. The only indicia of record substantiating counsel’s claim that paternity of the child in question had been adjudicated in the prior divorce proceeding consists of a statement by the trial judge, apparently made while perusing the May 9, 1972, decree, that it recited that the child in question was “born of said marriage”. Notwithstanding an offer of proof made by counsel for the husband at this point, the trial court forbade any inquiry into the child’s paternity and advised counsel for the husband that the only procedural avenue which remained open for questioning the paternity of the child was by way of “a writ of coram nobis”.

A farrago of inconsistencies surrounds the wife’s claim for child support. In her motion the wife asked for child support in the amount of “$35.00 per week per child”. At the hearing she testified that “$25.00 per week per child” would be a “reasonable sum” for their support. Her principal evidence as to the husband’s ability to pay child support, i. e. that his income in 1975 (a period some two years before the hearing date) was “about $3,600.00”, was stale to say the least. The only other evidence even remotely connected with the husband’s ability to pay disclosed that at the time of the hearing he was in business for himself under the firm name of Sonny’s Auto Polish. There was not so much as a scintilla of evidence concerning either the gross receipts or met profits generated by Sonny’s Auto Polish. Nor was there any evidence as to either the gross or net asset value of Sonny’s Auto Polish. About all that can be garnered from the evidence is that “at times” Sonny’s Auto Polish “employed six people”. With only this skeletal evidence to go on, one might well conclude that Sonny’s Auto Polish consisted of nothing more than some strong backs and polishing cloths. On the basis of this veneerlike record the trial court awarded the wife “$50.00 per week per child” for support of the three minor children, same totalling $7,800.00 per year.

On appeal the husband rivets his attention on two points: (1) error on the part of the trial court in refusing to hear evidence as to the child’s paternity; and (2) an “abuse of discretion” on the part of the trial court as reflected by the amount awarded for child support. In order to facilitate a more meaningful discussion of the two points they will be dealt with in inverse order.

Section 452.340, RSMo Supp. 1973 (effective Jan. 1,1974), a component section of the Dissolution of Marriage Act, articulates that among the “relevant factors” to be considered in fixing the amount to be awarded for child support are those specifically enumerated in the statute, the sixth and final one thereof being “[t]he financial resources and needs of the noncustodial parent”. Section 452.415.3, RSMo Supp. 1973 (effective Jan. 1, 1974), another component section of the Dissolution of Marriage Act, provides that “Sections 452.300 to 452.415 apply to all proceedings commenced after January 1, 1974, for the modification of a judgment or order entered prior to January 1, 1974.” Insofar as awards for child support are concerned, “financial resources” of the husband may properly be equated to ability to pay, which, both before and after the advent of the Dissolution of Marriage Act, has been held to be a prime consideration in assessing the propriety of the amount awarded. McM. v. McM., 506 S.W.2d 14, 16-17 (Mo.App.1974); and In Re Marriage of C_S_B-, 546 S.W.2d 186, 188 (Mo.App.1976). This court abhors any notion that the Dissolution of Marriage Act makes all judicial pronouncements in the field of domestic relations prior to its enactment passe. Therefore it is appropriate to observe that in Simon v. Simon, 248 S.W.2d 560 (Mo.1952), the court held that a reasonable relationship should exist between the amount awarded for child support and the evidence presented in its support, and that conjecture, speculation and surmise would not suffice to bridge an evidentiary gap in that respect. Absent such evidentiary support in Simon a judgment entered in favor of the wife for child support was reversed and the cause was remanded to the trial court for the taking of further evidence. In the instant case there was such a paucity of evidence regarding the husband’s current ability to pay child support that no relationship, reasonable or otherwise, existed between the amount awarded to the wife for support of the children and the husband’s ability to pay. Perforce, the judgment awarding the wife “$50.00 per week per child” for support of the three minor children claimed by her to have been, born of the marriage must be reversed and the cause is remanded to the trial court for the taking of further evidence. Even the stringent scope of appellate review for court tried cases laid down in Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976), will not permit the judgment in the instant case to stand because this court, albeit with a sense of caution, is of the “firm belief” that said judgment is so overwhelmingly “against the weight of the evidence” that it is patently “wrong”.

The husband’s remaining point, bottomed upon the trial court’s refusal to permit the husband to broach the issue of the paternity of one of the children claimed by the wife to have been born of the marriage, remains to plague this case. As the order or judgment awarding the wife child support must be reversed and the cause remanded for the taking of further evidence it is reasonable to assume that the husband will once again attempt to interpose the defense that he did not father the child in question. In the event this assumption holds true, it is imperative that the first point raised by the husband on appeal be decided in order to afford the trial court and the parties some guidance when the matter is reheard.

A crucial question overshadowing all others in this case is whether that portion of the final judgment entered in the divorce proceeding on May 9, 1972, finding the child in question to have been “born of said marriage”, resting as it did on service by publication, was binding on the husband in the subsequent proceeding brought by the wife for support of said child. In short, did the referred to portion of the final judgment entered in the prior divorce proceeding, insofar as the husband is presently concerned, entail an exercise of in personam or in rem jurisdiction? If it entailed an exercise of in personam jurisdiction it is not binding upon the husband in the present support proceeding because ever since the landmark case of Pennoyer v. Neff, 5 Otto 714, 95 U.S. 714, 24 L.Ed. 565 (1877), the courts of this and other states have axiomatically accepted that service by publication will not support an in personam judgment unless the party sought to be subjected thereto has otherwise voluntarily entered his appearance in the action culminating in such a judgment. On the other hand, if it involved an exercise of in rem jurisdiction it was binding upon the husband in the present support proceeding because a final in rem judgment based on constructive service is binding upon all who were parties thereto and their privies in any subsequent proceeding in which they are involved by virtue of either the doctrine of res judicata or collateral estoppel, whichever is appropriate. Shemwell v. Bettis, 264 Mo. 268, 174 S.W. 390, 391 (1915); and Williams v. Luecke, 152 S.W.2d 991, 994 (Mo.App.1941).

Did the paternity of the child in the divorce proceeding partake of the nature of a res in the sense that the court was purporting to adjudicate divisible interests and obligations in the child as if it were nothing more than a chattel? The sacred and coveted niche which children have historically occupied in the law augers against such a cold, abstract conclusion. Counsel’s insouciant approach to this vital issue forced this court to resort to its own research to ascertain whether any case authority exists with respect to whether or not an express or implied adjudication of the paternity of a child in a divorce action predicated upon constructive service of process is binding upon a husband in a subsequent support proceeding predicated upon personal service of process upon the husband. In an attempt to bring this vital issue into even sharper focus this court suggests that it be perspectively viewed from several vantage points. For instance, if the paternity of a child is nothing more than a status or res before the court in a divorce action then there is impetus to the argument that an adjudication of paternity in a divorce action, even though based upon service by publication, is binding upon a husband in a subsequent support proceeding by reason of the doctrine of res judicata or collateral estoppel, whichever is appropriate. On the other hand, if the paternity of a child, with all its attendant and corresponding rights and obligations, is viewed as constituting more than a mere res, an adjudication of paternity in a divorce action based upon service by publication should not be binding upon a husband in a subsequent support proceeding as no jurisdiction over the person of the husband was ever obtained in the prior divorce proceeding.

Although no case authority directly in point has been located, several cases have been discovered which tangentially light the way for disposition of the important issue at hand. The Supreme Court of this state held in Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566 (Mo. banc 1949), that the status of a child in the context of awarding custody in a divorce proceeding constituted a res which, if within the jurisdiction of the court, could be validly adjudicated and upon becoming a final judgment was conclusive as to a husband upon whom only service by publication was obtained. At the same time, the Supreme Court held in Beckmann that such portion of the judgment therein which awarded the wife $30.00 per month for each of the two children of whom she was awarded custody was “void for want of jurisdiction”, since the only service obtained upon the husband was by publication. The dichotomous result reached in Beckmann gives substance to the conclusion that the status of a child in the context of awarding custody in a divorce action as being a res was limited to accommodating the disposition of children on such a basis as would best serve their interests and welfare and did not purport to adjudicate the paternity of children in the sense of fixing a personal obligation for their support on a husband upon whom only service by publication was obtained. A case disclosed by this court’s own research which is closest in point is T. J. K. v. N. B., 237 So.2d 592 (Fla.App.1970), which holds that in a bastardy proceeding brought by a natural mother against a putative father the trial court lacked jurisdiction to adjudicate the paternity of a child when only service by publication was obtained upon the putative father. The court in T. J. K. reasoned that the filial judgment sought therein was designed for the sole purpose of furnishing a basis for subsequently obtaining a money judgment against the putative father for support of the child. Hence, the bastardy proceeding did not affect the status of the child in the sense of it being a res, as the sole function and office of the proceeding was deemed to be directed toward furnishing a basis for pursuing a further action to secure a personal judgment against the putative father for support of the child. An analogy may be drawn between T. J. K. and the prior divorce proceeding in the instant case. The matter of custody aside, insofar as the divorce decree declaring the child in question to have been “born of said marriage” is concerned, its remaining principal purpose, if not its sole remaining purpose, could only be to furnish a basis upon which to thereafter secure a personal judgment in favor of the wife and against the husband for future child support if and when personal service of process could be obtained upon the husband. If for no other reason, its remaining function and purpose is deemed to have been so limited because it was not binding upon the child in question as he was not a party to the divorce action. L_ v. R_, 518 S.W.2d 113, 125 (Mo.App. 1974).

Experience teaches that in divorce or dissolution of marriage actions instigated by a wife, where only service by publication is obtained upon the husband, and which culminate in default or pro confesso judgments, any decretal provisions as to children being “born of said marriage” or as being “born during said marriage” or as being “the child or children” of the wife and husband have little by way of evidence to support them and in reality do little more than assume that the children were born during wedlock and are entitled to full benefit of the ancient common law presumption that children born during wedlock are presumed to be legitimate. Under the limited facts and circumstances of this case, permitting the husband in a subsequent support proceeding in which personal service of process is had upon him to contest the child’s paternity strikes a proper balance between preservation of the inviolability of final judgments from all save direct attack and the inviolability of individuals from judgments for the payment of money rendered on something as tenuous as service by publication. The true strength of the common law is its tensility which permits it to accommodate but not destroy seemingly irreconcilable principles.

In the event the husband persists in litigating the child’s paternity on remand all concerned are admonished to take a long hard look at the requirements appertaining to parties set forth in L- v. R-, supra. Further this court cautions all concerned that its decision herein in no way implies that the purported facts contained in the husband’s offer of proof in support of his defense of lack of paternity were sufficient to overcome the ancient common law presumption of legitimacy clothing the child.

Judgment reversed and cause remanded for further proceedings consistent with this opinion.

All concur.

      . Since the May 9, 1972, divorce decree rested solely on service by publication any reference to Rule 54.06(b) or a protracted discussion of the ramifications of Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683, would be academic.

      . See In re L_, 499 S.W.2d 490, 492 (Mo. banc 1973) reaffirming the presumption and explicating its effect.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas C. VAN LUVAN, Appellant, v. Anna M. VAN LUVAN, Respondent.
    No. KCD 29776.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.

      R. Brian Hall, Hall & Stahl, Inc., Gladstone, for appellant.
    William L. Hall, Liberty, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   PER CURIAM.

Appellant, Thomas C. Van Luvan, appeals from the judgment of the Circuit Court of Clay County denying appellant’s motion to reduce monthly maintenance payments to respondent of $80.00 as awarded in the decree of dissolution entered May 28, 1975. The single point of error alleges that the order was against the weight of the evidence. We affirm.

At the time of entry of the original decree, appellant was employed with gross annual earnings of $12,000.00. He is now retired by reason of physical disability and receives Social Security benefits of $366.66 per month. Appellant is remarried and lives in a home owned by his present wife. Respondent is partially disabled but works part time as a practical nurse earning $1.75 per hour. She owes debts in excess of $7,000.00, the major portion of which are past due medical expenses.

Appellate review in this case is limited by the standard set forth in Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). Although both the law and the evidence are reviewed, the appellate court defers to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01(3)(a), (b) V.A.M.R. Modification of a decree of dissolution will be ordered only upon a showing of changed circumstances so substantial as to make the terms unreasonable. Section 452.370, RSMo 1975 Supp. The burden of showing substantial change is upon the movant. Sifers v. Si-fers, 544 S.W.2d 269 (Mo.App.1976).

Motions for modification of support decrees are normally the consequence of increased or decreased income or assets of the spouse obligated to make payments and increase or decrease in the needs of the spouse receiving support. Neither increase nor decrease in the wealth or earning capacity of the spouse obligated for payments is a sufficient factor, standing alone, which will justify or require a modification. Seelig v. Seelig, 540 S.W.2d 142 (Mo.App.1976); Markham v. Markham, 506 S.W.2d 84 (Mo.App.1974). Such change is taken into account if it is first determined that a change in the circumstances of the spouse receiving support will justify a modification. Markham, supra; Clisham v. Clisham, 485 S.W.2d 660 (Mo.App.1972); Lane v. Lane, 439 S.W.2d 550 (Mo.App.1969).

The record in the present case demonstrates that such change as has occurred in the financial circumstances of respondent has been adverse. She is marginally employed, is under some physical disability and has incurred significant debts not owed at the date of the original decree. While appellant has shown reduced income, his present circumstances do not, standing alone, compel modification of the support award as the evidence adequately supports the conclusion that respondent’s need remains equal to if not greater than existed at the time of the original judgment.

Decree affirmed.


author: TURNAGE, Judge.

text:
    Katherine SHEPHERD, Plaintiff-Respondent, v. Gladys SHEPHERD, Defendant-Appellant.
    No. KCD 29783.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.

      Daniel M. Dibble, R. B. Miller, III, Kansas City, for defendant-appellant.
    Leon G. Kusnetzky, Kansas City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

In this action Katherine Shepherd seeks to set aside a deed executed by her to herself and her daughter, Gladys Shepherd, as joint tenants with right of survivorship. Service was by publication and on failure of Gladys to appear, the court entered judgment setting the deed aside whereupon Gladys perfected this appeal.

Gladys contends the court failed to follow the provisions of Rules 54.17 and 54.20 and failed to require the service of an amended petition upon her, and that the judgment was improper because an in personam judgment was entered on constructive service. Affirmed.

Katherine Shepherd executed a warranty déed in 1966 to herself and her daughter, Gladys, as joint tenants with right of sur-vivorship. The petition alleged the conveyance was fraudulent, without consideration, and resulted from undue influence exercised by Gladys over her mother. The petition further alleged Gladys induced Katherine to execute the deed by representing that Katherine would have exclusive use and control of the real estate during her lifetime and that the deed was a type of will which Katherine could revoke, modify or amend at her own discretion. The petition also contained the usual allegations concerning misrepresentation and reliance.

To obtain service by publication, Katherine’s counsel filed an affidavit stating that Gladys had absconded or absented herself from her usual place of abode in this State so that the ordinary process of law could not be personally served upon her, that the present address of Gladys was unknown and giving her last known address. Thereupon, publication was run in the Independence Examiner and more than forty-five days after the first date of publication, the cause was heard. The only appearance was by Katherine, who testified in support of the petition, and her son, William Phillip, who also testified.

In oral argument of this cause, counsel for both parties agreed that at some time prior to the institution of this suit Gladys entered the Federal Program for the Protection of Witnesses and had been removed from Kansas City by the government and given a new identity. In addition to service by publication, summons was served on the United States Marshal’s office in Kansas City and counsel for Gladys in oral argument admitted that Gladys had received a copy of the summons and petition prior to the hearing.

Gladys first challenges the affidavit filed by which service of publication was obtained. Rule 54.17(b) requires a party desiring service by publication to file a verified statement stating “that one or more of the persons to be served are unborn or their names are unknown to the party desiring service by publication or facts showing why service cannot be obtained under Rule 54.13 [personal service within the state], Rule 54.-14 [personal service outside the state], or Rule 54.16 [service by mail] ...”

Gladys contends the affidavit did not contain an allegation that she could not be personally served outside the State of Missouri. However, the affidavit sufficiently asserted facts which showed Katherine knew of no address at which Gladys could be served outside the state by stating that her present address was unknown and that she had absconded or absented herself from her usual place of abode.

Gladys next contends the publication notice published in the newspaper was inadequate because it did not fully apprise her of the general nature of the grounds which Katherine was asserting as a basis for setting aside the deed. Rule 54.17(c)(2) requires the notice to briefly state the object and general nature of the action. In Adams v. Cowles, 95 Mo. 501, 8 S.W. 711, 713[2] (1888) the court held the notice of publication need not detail the facts as they are stated in the petition. That statement remains the law to this time. Therefore, the notice did not need to state the facts upon which Katherine based her right to relief.

Gladys next contends the notice of publication was faulty because it did not state that by order the court could extend her time for pleading beyond the specified forty-five days from the date of first publication. The notice of publication is not required to give any time beyond forty-five days. Rule 54.17(c)(6) provides the notice shall state that judgment by default will be rendered against the defendant unless he files an answer or other pleading, or otherwise appears and defends, within forty-five days after the date of the first publication, or such longer time as the court may fix by order. Since no other time was fixed by order the notice could not state any time except the forty-five days specified by this Rule in which to appear or plead. Thus, the notice was sufficient.

Gladys next contends the notice of publication was not filed with the court as provided by Rule 54.20(e), which provides that a copy of the notice shall be attached to the affidavit which shall be filed. The transcript on appeal does not show any fact concerning whether or not the notice of publication was filed. The transcript reveals the following occurred:

MR. KUSNETZKY: I would like to direct the Court’s attention to the affidavit of publication in this case. We were not able to obtain personal service as such and after we couldn’t obtain service, we published it in the Independence Examiner and I am offering into evidence the affidavit of publication.
THE COURT: It will be received as evidence in the cause.

Gladys does not contend the notice of publication was not run in the newspaper and, as noted, concedes she in fact had personal notice of the pendency of this suit. Rather, her contention now is that the judgment should be set aside because she says the notice of publication was not actually filed in the court file. While the transcript does not shed any light on this question, even if it be assumed the notice was not filed, still the fact remains the notice was marked as an exhibit and introduced in evidence. In its judgment the court found that service was duly made upon Gladys by publication of notice pursuant to Rule 54.17 “as evidenced by the affidavit of publication offered and received into evidence herein . . . ” The purpose to be served by filing the notice of publication is to supply proof that the notice of publication has in fact been run. Here, the notice of publication was marked as an exhibit, admitted and found by the court in its judgment to be proper and in compliance with requirements for service by publication. While not involving this particular type of action, Murphy v. Butler County, 352 Mo. 1082, 180 S.W.2d 732, 734[3-7] (1944) held that where a copy of the publication was not attached to a sheriff’s deed, proof of legal publication was satisfied when the newspaper publisher testified to the publication. The court noted in that case the party attacking the service did not question the sufficiency of the publication and held the alternative mode of proving legal publication was sufficient.

In this case, proof of publication was made by introducing the affidavit of publication into evidence, whereupon the court found Gladys had been duly summoned by publication. In effect, this was equivalent to filing the proof of publication and therefore sufficiently complied with Rule 54.-20(e).

Gladys next contends she was not served with a copy of an amended petition filed the day of trial which allegedly contained certain material changes from the original petition on file when the notice of publication was run.

Rule 43.01(a) excuses service of pleadings subsequent to the original petition on parties in default except that pleadings asserting new or additional claims shall be served. Here, the transcript contains only the amendment but not the original petition. It is the responsibility of the appellant to provide a complete transcript of any issue which she desires to be reviewed by this court. Empire Gas Corp. v. Randolph, 552 S.W.2d 82, 84 (Mo.App.1977). Without the original petition it is impossible to ascertain whether the amendment stated new or additional claims. Therefore, this point cannot be reviewed.

Gladys finally contends the court in fact entered an in personam judgment because the allegations concerned her personal conduct. Somewhat nebulously, Gladys seeks to argue that these allegations convert the judgment from one operating in rem to one operating in personam. This court recently had occasion to explore judgments in rem and in personam in In re Marriage of Breen, 560 S.W.2d 358, 361[3 — 5] (Mo.App.1977) from which it is clear that this judgment did not subject Gladys to any personal liability but affected only her interest in the specific real estate located within the jurisdiction of the court. Thus, this could be only an in rem judgment. The allegations concerning Gladys’ conduct were necessary as a basis to give Katherine relief but in no manner changed the nature of the action or judgment from in rem to in per-sonam.

Finally, Katherine has filed a motion for damages for the taking of a frivolous appeal under Rule 84.19. The motion is overruled.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Carl D. ANTHONY, Appellant.
    No. KCD 29801.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.

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

Defendant appeals from a jury conviction of burglary second degree and stealing and the consequent sentence of six years and two years respectively to run consecutively. His sole point on appeal complains of an alleged improper closing argument by the prosecuting attorney.

An understanding of the point in issue requires a brief statement of facts. Police officers Cunningham and Rider received a call at 10:08 P.M. concerning a prowler at 2127 East 16th Street, Kansas City, Missouri. Cunningham approached that address from the front, while Rider approached from the rear. Rider saw defendant close to the building, carrying a bulky bundle. When Rider got closer, defendant saw him, dropped the bundle and started to run. Rider nevertheless apprehended defendant quickly and placed him under arrest. The back door of the building was found to have been broken in and the premises ransacked. A search of the defendant revealed in defendant’s pants pocket two rings which belonged to the owner of the burglarized premises. The objects in the bundle dropped by defendant also had come from those premises.

The only evidence offered by defendant was the testimony of Victor Shivers. Shivers testified that defendant had visited him at his home, which was in close proximity to the burglarized premises, shortly before 10:00 P.M. He further testified that defendant left shortly after the 10:00 o’clock news came on television and that defendant could not have participated in the burglary in the two or three minutes which expired between the time that defendant left and the time when Shivers observed police officers in back of the burglarized premises.

In the course of his closing argument to the jury, the prosecutor took up Shivers’ testimony and referred to it as follows: “I don’t see how you can believe him at all. And there are about two or three reasons why I don’t believe him * * *Defense counsel immediately objected, but his objection was overruled. This ruling by the trial court constitutes the alleged error now complained of.

It is true that a prosecutor will not be permitted to argue to the jury in such a way as to induce the jurors to believe that he has special knowledge of certain facts which show the defendant on trial to be guilty. On the other hand, the prosecutor does have a right to comment on the evidence which has been adduced and the credibility of the witnesses from the State’s viewpoint. State v. Sallee, 436 S.W.2d 246 (Mo.1969); State v. Gay, 523 S.W.2d 138 (Mo.App.1975). The golden thread running through all the cases on this subject is an inquiry into whether the prosecutor’s statement of his belief appears to be based on the evidence which has been introduced before the jury. State v. Watts, 515 S.W.2d 854, l.c. 856 (Mo.App.1974).

Here, as in Watts, the prosecutor did follow up his statement as to his belief as to nonbelief in Shivers’ testimony by reference to evidence in the case upon which that belief was based. Accordingly, the trial court did not commit error in overruling the defense objection to that argument.

Affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Philander E. BROWN, Appellant.
    No. KCD 29876.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.
    Clifford A. Cohen, Public Defender, Kevin R. Locke, Lee Nation, Asst. Public Defenders, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jeff W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   PER CURIAM.

Appellant was, by jury, convicted of assault with intent to kill with malice aforethought. Sentence was set at twenty eight years. Sufficiency of the evidence is not questioned by Appellant and he raises two points on appeal.

I

“The trial court erred in overruling Appellant’s motion to quash jury panel insofar as Jackson County’s procedure for selection of jury panels allows women an automatic exemption which denies the accused his right to a jury composed of a representative cross section of society, thus denying Appellant his Sixth Amendment rights.”

II

“The trial court erred in failing to instruct the jury upon the offense of assault with intent to kill without malice as such is a lesser-included offense of assault with intent to kill with malice and such an instruction was warranted by the evidence adduced at trial; failure to so instruct was reversible error.”

While the first point raised by Appellant has been before the court before and heretofore has been held to be without merit, it is necessary to note herein that the parties prior to trial stipulated as to jury selection procedures within Jackson County, Missouri and that these procedures were in conformity with Art. I, § 22(b) and § 494.031, RSMo 1969. In the case of State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), however, pursuant to a Writ of Certiorari, the United States Supreme Court has ruled that Art. I, § 22(b) of the Missouri Constitution and § 494.031, RSMo 1969 are violative of an accused’s rights by reason of its systematic exclusion of women as prospective jurors, thus denying an accused a right to a jury composed of a representative cross-section of society under the Sixth and Fourteenth Amendments of the United States Constitution. Duren v. Missouri, - U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

This cause is reversed and remanded to the trial court for retrial upon the issues without consideration to further points raised on this appeal.

      . On question of jury selection in other states, see Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) tried prior to State v. Duren, supra.


author: SHANGLER, Presiding Judge.

text:
    Keith HARDIN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29866.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.

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

The movant brings a proceeding under Rule 27.26 to set aside a judgment of conviction for robbery in the first degree and sentence of five years entered on a plea of guilty after presentence investigation and report. The court appointed counsel for the movant and then entered judgment against the contentions of the motion on the basis of the files and records of the case, but without other evidence or hearing.

On appeal the movant asserts that the pleaded contention — that the presentence investigation report used by the court to impose sentence of imprisonment rather than probation was concluded [contrary to the promise of the investigative officer] without inquiry of his kin as to his domestic stability and that the consequent recommendation in the report to deny movant probation resulted from this [untruthful?] investigative procedure.

The grievance seems to be denial of probation. That ground has been determined to be unavailable to one under criminal sentence by the express terms of § 549.141, RSMo 1969 that the action of a court in denial of probation shall not be the subject of review by an appellate court. Smith v. State, 517 S.W.2d 148, 150[1,2] (Mo.1974). If the movant means that the judgment of the court was induced by a fraudulent presentence investigation report, the pleadings do not allege the untruth which constitutes the fraud. The movant states only that the officer did not talk with his people concerning his home environment; there is no complaint as to what information was given in the report or what was false. The mere conclusion that the movant was denied probation by an unspecified untruth in the presentence investigation report does not plead facts which describe a cause of action for relief under Rule 27.26. The motion was properly denied a hearing. Hogshooter v. State, 514 S.W.2d 109, 113[1] (Mo.App.1974).

Moreover, even if the allegations of untruthfulness of the investigative recommendations are taken as pleaded facts, the movant is estopped to assert the untruth or the invalidity of the sentence procedure on that ground in this collateral proceeding because the transcript of the guilty plea shows [according to the recited judgment on the Rule 27.26 motion] that the plea judge took special notice that counsel for movant had read the presentence investigation report and the judge read the recommendation [presumably to deny probation] into the record, and all went without objection. In the absence of remonstrance at the time the recommendation of the report to deny probation was made known to the movant concurrently with the imposition of a sentence without probation, we assume a defendant was satisfied with the validity of those matters disclosed and the procedures they affect.

The court properly denied an evidentiary hearing on the pleaded motion on the cumulative ground that, in any event, the files and records in the case refute relief to the movant, even if we assume the motion pleads facts and that they are true. Rule 27.26(d); Morris v. State, 547 S.W.2d 827, 829[1] (Mo.App.1977).

The judgment is affirmed.

All concur.

      . The statute, which in full terms provides:
      The action of any court in granting, denying, revoking, altering, extending or terminating any order placing a defendant upon probation or parole is not subject to review by any appellate court
      means [Smith v. State, supra, l.c. 150[3 — 6]] that
      “the decision to grant or withhold probation in the first instance is entirely within the discretion of the court.” That provision of the statute, however, which denies appellate review to a revocation of probation has been superseded by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) as a denial of due process of law. The entire § 549.141, it should be noted, has since been repealed by Laws 1977, S.B.No. 60, § 1 which enacts the Criminal Code effective January 1, 1979. For an informative critique of Smith v. State, supra, see Recent Cases, 41 Mo.L.Rev. 285 (1976).


author: DIXON, Judge.

text:
    Ted E. ARRINGTON, Agnes Arrington and Alma Catherine Arrington, Executrix of the Estate of Ted E. Arrington, Plaintiffs-Respondents, v. WESTPORT BANK, Rosemary Walton, Virginia Taliaferro, Donald T. McCall and Sheralyn R. McCall (now Wink), Defendants-Appellants.
    No. KCD 29939.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.

      Howard F. Sachs, Kansas City (Spencer, Fane, Britt & Browne, Kansas City, of counsel), for defendants-appellants.
    Albert Thomson, Robert B. Thomson, Kansas City (Linde Thomson Fairchild Langworthy & Kohn, Kansas City, of counsel), for plaintiffs-respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

The individual defendants appeal in a court-tried case from a judgment for plaintiffs in complex litigation involving the wills of Frank and Jean Arrington.

The action was brought by Agnes Arring-ton and Alma Arrington as plaintiffs against Virginia Taliaferro, Rosemary Walton, Donald T. McCall, and Sheralyn R. Wink, and the Westport Bank as Executor of the will of Jean Arrington. Agnes Ar-rington is the sister of Frank Arrington, and Alma Arrington is the widow of Ted Arrington. Agnes and Ted were legatees in the Frank Arrington will. The individual defendants, Virginia Taliaferro and Rosemary Walton, are both heirs of Jean Ar-rington and Legatees under her will. The defendants, Donald McCall and Sheralyn Wink, are, respectively, nephew and niece of Jean Arrington and constitute the remainder of her heirs.

Simply stated, the position of the plaintiffs is: first, that the will of Jean Arring-ton, construed with the aid of the will of Frank Arrington, divided the property into fourths with nothing passing by intestate succession; and, second, that the wills of Frank and Jean Arrington, with the extrinsic evidence, constitute a contract enforceable in equity to divide their joint estates in fourths.

Thus, if plaintiffs prevail, plaintiffs Alma Arrington, Agnes Arrington, and defendants Rosemary Walton and Virginia Taliaf-erro will each receive one-fourth of the property. If the defendants prevail, the disposition will be one-fourth each to Virginia Taliaferro and Rosemary Walton as legatees of the will of Jean Arrington, with the remaining one-half being divided among Virginia Taliaferro, Rosemary Walton, Donald McCall, and Sheralyn Wink in accordance with the statute of descent and distribution.

The complex and unique facts of this controversy are as follows: Jean Arrington died in 1975, having survived her husband, Frank Arrington, who died in 1969. The real estate owned by the parties, valued at approximately $53,000, was held as a tenancy by the entirety. At the time of the death of Jean Arrington, she owned stocks, bonds, bank accounts, and other personal property valued at approximately $30,000. The record is silent as to the origin or manner in which the personal property is titled except that one item of approximately $2,000 represents Jean Arrington’s one-eighth share of proceeds of Oklahoma litigation. The connection of Jean Arrington to this litigation is not shown in the record, but there is an inference from a letter from Jean Arrington to Ted and Alma Arrington that the litigation may have involved the Arrington branch of the family. The will of Jean Arrington was offered and admitted to probate. At the same time, the will of Frank' E. Arrington was filed in the Probate Court. For convenience, the wills are here reproduced in their entirety side by side, omitting formal recitals and the signatures and attestation clauses.

First: I hereby direct that it is my will that all just debts and any remaining funeral expenses be paid out of the estate now held in joint tenancy by myself and my husband, Frank E. Arrington.
Second: At the time of my death, all right, title and interest in all property now held in joint tenancy by myself and my husband, Frank E. Arrington, including any future inheritance or gains in the estate, shall pass to my husband, Frank E. Arring-ton.
Third: At the time of decease of both myself and my husband, Frank E. Arring-ton, one half of all remaining property shall be given in equal shares, one-fourth to my sister, Mrs. Virginia Taliaferro, 4837 West 76th Street, Shawnee Mission, Kansas or her heirs, and one fourth to my niece, Mrs. Rosemary Walton, 2604 Garden Park Drive, Fort Wayne, Indiana or her heirs.
Fourth: At the time of decease of both myself and my husband, Frank E. Arring-ton, I do hereby direct that the Westport Bank, 331 Westport Road, Kansas City, Missouri, be appointed executor to administer the estate. * * * ”
First: I hereby direct that it is my will that all just debts and any remaining funeral expenses be paid out of the estate now held in joint tenancy by myself and my wife, Jean E. Arrington.
Second: At the time of my death, all right, title and interest in all property now held in joint tenancy by myself and my wife, Jean E. Arrington, including any future inheritance or gains in the estate, shall pass to my wife, Jean E. Arrington.
Third: At the time of decease of both myself and my wife, Jean E. Arrington, one half of all remaining property shall be given in equal shares, one fouth to my sister, Miss Agnes Arrington, 431 North Pershing, Liberal, Kansas or her heirs and one fourth to my brother, Mr. Ted E. Arrington, 3266 Central, Spring Valley, California or his heirs.
Fourth: At the time of decease of both myself and my wife, Jean E. Arrington, I do hereby direct that the Westport Bank, 331 Westport Road, Kansas City, Missouri, be appointed executor to administer the estate. * * * ”

Jean Arrington’s will was dated July 30, 1968, and Frank Arrington’s will was dated July 27, 1968. There is one witness common to both wills.

There is no evidence in the record one way or the other concerning statements by Jean or Frank Arrington prior to the execution of the documents. There is no evidence of any statements at the time of the execution of the documents. Mr. and Mrs. Henderson, neighbors of the Arringtons, witnessed the Frank Arrington will. Mrs. Henderson and a Sue Newsome, then a neighbor, witnessed the Jean Arrington will. There is no evidence concerning a possible scrivener of the wills. Copies of the wills were received by the Westport Bank in the mail under a cover letter signed by Frank Arrington, dated August 9, 1968. The Westport Bank did nothing about the Frank Arrington estate upon Frank Arring-ton’s death February 15, 1969. There is evidence of statements by Jean Arrington after Frank Arrington’s death concerning the disposition of the property. Jean Ar-rington told her sister close to the time of the execution of the wills that her sister (Virginia Taliaferro) was to receive one-fourth of her property and that Rosemary Walton was to get one-fourth. At about the same time, Jean Arrington told Virginia Taliaferro that Frank Arrington had left one-fourth of his estate to his brother and one-fourth to his sister. There was testimony that Jean Arrington told her brother-in-law, Ted Arrington, and his wife, Alma, that she had left the will as “she and Frank made it.” Jean said she could have changed it, but that she said, “ ‘I think it should be left the way we planned it to be,’ and she told me then that she chose her brother’s daughter, Rosemary, because she was fond of her, then, of course, her sister, and then Agnes and Ted as Frank mentioned in his will.” According to the testimony, Jean did not want Donald McCall or Mrs. Wink to share in the estate, and they had purposely been left out. Further, Alma Arrington testified as follows:

“Q Did she refer to two wills rather than one will?
A I don’t know, she said that their wills would be left, and she pointed out she could have changed them but she left them as they were. That’s all I know about that.” (Emphasis supplied).

Virginia Taliaferro, now a defendant, is said to have admitted shortly after Jean Arrington’s death:

“She [Virginia Taliaferro] said that it has to be like Jean wanted it, that was the four ways, and like Mr. Dahl pointed out if there was some question in his mind, she said that it has to be the way Jean wanted it.
Q Four ways?
A Yes, as the paper suggested, the two for Frank’s family and the two for Jean’s family.
Q And Mrs. Taliaferro indicated that was the way it had to be?
A As I remember, that’s right.”

The defendants offered no evidence at trial.

The plaintiffs’ petition was in two counts, the first count for construction of the will of Jean Arrington, and the second count sounding in contract and pleading in very general terms an agreement between Jean Arrington and Frank Arrington to dispose of their property at the death of the surviv- or — one-half to Agnes and Ted Arrington and one-half to Virginia Taliaferro and Rosemary Walton. The prayer of this count is for distribution in accordance with that theory and for general equitable relief. The individual defendants tendered a denial to Count I and as to Count II denied that there was any allegation of a breach of agreement and reiterated their position that the will of Jean Arrington discloses a partial intestacy. This pleading was coupled with a motion for summary judgment and for judgment on the pleadings which was denied by the trial court initially and upon its renewal at the close of the case.

The trial court entered a judgment decreeing distribution of the Jean Arrington Estate in four equal parts to Virginia Tal-iaferro, Rosemary Walton, Alma Arrington as Executor of Ted Arrington, and Agnes Arrington. Accompanying that judgment were findings of fact and conclusions of law. The trial judge found the execution of the wills and the probate of Jean Arring-ton’s will, and the heirs of Jean and Frank Arrington as noted above. The court then found as a fact that Jean Arrington intended for her will to remain unchanged and had intentionally omitted Donald McCall and Sheralyn Wink from her will. Finding ambiguity in the language “joint tenancy,” “future inheritance and gains in the estate,” and “all remaining property,” the court then found an intent on the part of Jean Arrington to divide the entire estate as argued by the plaintiffs. The court found this to be a “common purpose” and that the notes found in the safety deposit box were in her handwriting and evidenced her intention.

The conclusions of law recite the ambiguity of Jean Arrington’s will and then declare that Jean Arrington never intended that any part of her estate pass by intestacy and that her clear intention on all the facts and circumstances was that her estate be divided one-half to her named beneficiaries and one-half to the beneficiaries named in her husband’s will. The trial court further concluded that “the wills . were based upon a mutual agreement between them that the wills together represented their common purpose as to the final disposition of their property.” The final declaration of the court was that Jean Ar-rington held the property as a constructive trustee for the persons named in both wills.

Prom these findings of fact and conclusions, it is impossible to discern whether the trial court was proceeding on the will construction theory of Count I of plaintiffs’ petition or the contract theory of Count II. The parties have briefed the case alternatively (understandably in the light of the trial court’s memorandum), co-mingling the theories of construction of the will and contract.

Before addressing the substantive issues, the procedural posture of the case must be considered. As noted, the named defendants had filed a motion for judgment on the pleadings and for summary judgment as to both counts of plaintiffs’ petition. The alternative grounds stated were failure to state a claim and that no genuine issue of fact existed.

Defendants, by their first point, challenge the ruling of the trial court with respect to Count I asserting that the motion should have been sustained because, on the face of the will, there is no ambiguity. This claim is apparently addressed to the pleading issue of failure to state a claim. The second part of the assertion attacks the decree of the trial court, insofar as it may rest upon a construction of the Jean Arring-ton will, by pointing out that no language appears in the will that would permit the court to construe the will to provide for a gift to the legatees of Frank Arrington. Whatever might be said of the Jean Arring-ton will, vis-a-vis its ambiguity, the second argument has merit. There is simply no language which can support a claim by the plaintiffs under the will of Jean Arrington to a construction including them. The trial court should have sustained the defendants’ motion with respect to Count I.

With respect to the second point raised by defendants, it is cast in terms of error by the trial court in overruling the motion for summary judgment. To the extent that the point attacks the sufficiency of the pleading after judgment, it is ineffectual. Butler v. Circulus, Inc., 557 S.W.2d 469 (Mo.App.1977); Carter v. Guffey, 548 S.W.2d 233 (Mo.App.1977). The attack based upon the lack of a disputed fact is likewise ineffectual. Between these parties, there is a disputed fact question. That fact question is the existence or nonexistence of a contract. The defendants’ point, in effect, concedes this by arguing that there was no evidence of such an agreement. When there is an issue of fact, a summary judgment is inappropriate. Hurwitz v. Kohm, 516 S.W.2d 33 (Mo.App.1974); Adzick v. Chulick, 512 S.W.2d 194 (Mo.App.1974).

Thus, the issue to be resolved under the second count of plaintiffs’ petition is the contract issue.

The issue with respect to the validity and existence of a contract is subtle and complex. In dealing with this issue, it will serve well to restate the substantive principles governing agreements or contracts relating to post-mortem disposition of property.

The rubric under which most of the cases in this area discuss the principles involved is that of the “joint, mutual, and irrevocable” will. The case which elucidates the law in this area upon bedrock principle is Owens v. Savage, 518 S.W.2d 192 (Mo.App.1974). 41 Mo.L.Rev. 127 (1976). That case aptly characterizes the language, “joint, mutual, and irrevocable will,” as a miscegenation of the law of wills and contract. The parties have not cited Owens v. Savage, supra, and, in view of the controlling importance of that decision to this instant case, a rather full review will be undertaken.

In Owens v. Savage, a man and wife executed a joint and mutual will and a subsequent codicil. To the extent relevant to this review, the will provided for the husband and wife by reciprocal bequests upon the death of the spouse. Other specific bequests were made, and then a residuary bequest for a church was included. The wife died while that will stood unrevoked.

The husband thereafter executed a will with a different disposition. The litigation was a declaratory judgment suit by the legatees under the joint will against the legatees under the second will of the husband and the executor named in that will. There was a prayer for general equitable relief. So far as relevant to this discussion of the case, the trial court found that the joint will represented the agreement of the husband and wife and was valid and that it was “irrevocable” and ordered probate of the joint will and denial of probate of the subsequent will of the husband.

The defendants appealed, contending inter alia that the joint will was revoked and, therefore, the trial court order probating that will was erroneous. This court agreed that the will was revoked, but did not agree that the effect of the trial court judgment was in error, holding that the trial court’s finding of a contract in the terms of the joint will was correct and that contract gave rise to a right of specific performance.

The rationale and reasoning of Owens v. Savage, supra, are of prime importance. First, the court found no impediment to the agreement and consideration being shown by the joint will with no extrinsic evidence of intent. Second, the court held that wills are ambulatory and may be revoked and that such revocation had occurred in the subsequent will of the husband. The court then went on to point out that instruments may be both wills and contracts; the orthodox view is that unilateral revocation of an instrument which is both a joint will and a contract does not avoid the contractual nature of the transaction, and that, therefore, the appropriate remedy is specific performance. The court further found that since the action was equitable and there was a general prayer for equitable relief, this court was authorized on appeal to direct the entry of the order the trial court should have entered. The authority cited in Owens v. Savage for this principle fully supports the statement.

Adverting now to the instant case, it is without question that on this appeal this court will review “the whole record” and may render or direct the entry of such judgment as the trial court should have rendered. Anison v. Rice, 282 S.W .2d 497, 502 (Mo.1955). Thus, no further discussion of the theories of “irrevocable wills” or “constructive trusts” both extensively briefed and argued by the parties, is necessary.

The resolution of the dispute between the parties in the instant case depends in its entirety on the question of whether, under what defendants concede is the “contract theory” of Count II in plaintiffs’ petition, there is evidence sufficient to find a legally efficacious contract or agreement subject to specific performance.

For the purposes of clarity in the determination of the essential question, certain peripheral issues may be readily resolved. First, such an agreement is not subject to the claim that it is a testamentary disposition because, if found, it is a present agreement for performance in the future. Green v. Whaley, 271 Mo. 636, 197 S.W. 355 (1917). As a corollary to this proposition, there need not be an anticipatory breach by the execution of a subsequent will by one of the parties since the contract’s time of performance does not occur until after the death of the last of the parties to the agreement. Thus, discussion of issues of “breach” or “revocation” is not necessary in the context of the instant case. Numbers of cases discuss and decide the issue of the existence or nonexistence of a contract where the contract is alleged to exist in separate unrevoked wills of a husband and wife or other related persons. In some cases, the contract proof is attempted by oral proof where the wills are merely reciprocal residuary bequests between husband and wife. Burt v. McKibbin, 188 S.W. 187 (Mo.1916). In other cases, the attempted proof relies on proof of reciprocal wills and other circumstances and evidence supporting a finding of a contract. Plemmons v. Pemberton, 346 Mo. 45, 139 S.W.2d 910 (Mo. banc 1940). Nor does the fact that some or all of the title to the property affected by the contract rests in tenancies by the entirety defeat such an agreement. Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395 (1947).

Consideration for such an agreement may be found in the materiality of promises of the parties with respect to gifts to preferred beneficiaries of each. Wimp v. Collett, 414 S.W.2d 65, 72 (Mo.1967); Stewart v. Shelton, supra at 400.

The burden of proof is, of course, upon the plaintiffs to prove the existence of the contract and the rules with respect to the quantum and type of evidence sufficient to sustain the burden of proof are well established. The following language from Corpus Juris has been cited so frequently by the Missouri courts as to have become a principle of law.

“It is not necessary to the intervention of equity to enforce an agreement for mutual wills that the agreement be established by direct evidence, and so, while proof of the agreement may expressly appear in the language of the wills, or may be supplied by competent witnesses who testify to admissions of the testators, or an express promise may be shown, evidence is also admissible of such facts and circumstances, and such relations of the parties, as to give rise to an implication that such an agreement was made, and such implication may have reinforcement from evidence of the conduct of the parties at the time of making the wills, and subsequently. Thus, for the purpose of showing that reciprocal wills were intended to be mutual, evidence may be admitted of facts tending to show that each of the parties acted, in making his will, with the knowledge of the other, that the two wills were drawn by the same person, at the same time, and at the joint request or direction of both parties, and, even though their dates differ slightly, that they were in fact executed in pursuance of a common purpose and understanding.” 69 C.J. pp. 1303-1304.

Among the Missouri cases citing this language are Plemmons v. Pemberton, supra; Glueck v. McMehen, 318 S.W.2d 371 (Mo.App.1958); Shackleford v. Edwards, 278 S.W.2d 775 (Mo.1955); Wimp v. Collett, supra. Some of the cases have also referred to the same general subject matter in Corpus Juris Secundum, 97 C.J.S. Wills § 1367 (1957), which asserts the same principle.

As with many rules of law relating to issues of proof and the sufficiency of such proof, difficulty comes not in the statement of the principle but in the application of the principle to the facts. That difficulty was expressly recognized in Plemmons v. Pemberton, supra at 916, which stated as follows: “. . . the rule[s] relative to the sufficiency of the evidence to establish such agreement are well settled. The only difficulty is in applying the law to the facts in a given case. The facts in each case, of course, naturally differ. We find no two cases alike. The proper determination of this case depends upon the construction to be put upon the testimony of the witnesses relative to the circumstances under which the two wills in question were made.”

Applying these principles to the instant case, it must be concluded that the evidence is sufficient to prove a contractual arrangement between the Arringtons to dispose of their property at the death of the survivor in accordance with the decree rendered by the trial court.

Persuasive on this issue are the implications that arise upon the face of the two documents in evidence, the will of Frank Arrington and that of Jean Arrington. The language of both wills speaks in futuro. In Article Second, although describing the property as joint tenancy and the gift of each spouse to the other, there is also a provision for “future inheritance or gains in the estate,” which indicates an intent to consider the property as an estate at some future time. The gift to the collateral relatives in each of the wills is conditioned upon the death of both Frank Arrington and Jean Arrington. Each will refers to that gift being made at the death of both, which obviously refers to a future disposition and bespeaks an unfamiliarity with the ambulatory nature of wills. So also in the fourth article of both documents, the appointment of an executor is deferred until the death of both Frank and Jean Arrington. This deferment of appointment evidences that the parties were considering these instruments as operable only at the death of both which could not be the case if they were considered purely as testamentary dispositions.

The wills are mirror images each of the other with the exceptions of the collateral heirs named as beneficiaries. Together, they make a coherent and complete disposition of the parties’ property, including future gains and inheritances. Separately, they do not exhibit any such comprehensive and sensible plan. They were executed within a few days of each other and have a common witness. The circumstances of the parties are also persuasive of an agreement to provide by contract for the disposition for which the plaintiffs argue. In that respect, the facts of this case are similar to the facts in Wimp v. Collett, supra. Frank and Jean Arrington each had similar collateral relatives who, absent the existence of children, would ordinarily be the objects of their bounty. In the language of Wimp v. Collett, supra at 71, it is “reasonable to infer that . . . would wish to provide for his collateral heirs and . . . [she] would tend to favor her family.” As in Wimp v. Collett, there were separate reciprocal wills. In Wimp v. Collett, the court also relied upon this same logic to find an agreement, citing with approval Shackle-ford v. Edwards, supra, where similar circumstances existed. As noted in Wimp v. Collett, it would be illogical to suggest that such a comprehensive scheme came into being ipso facto. The language utilized in Shackleford v. Edwards, supra at 780, is equally applicable to the facts of this case. “Now this was the kind of an arrangement which would be expected under these facts — one which unerringly bespeaks the prior existence of an agreement that the disposition then agreed on would be the final ultimate disposition of their separate properties, and one which would be most unlikely in the absence of such a definite agreement.”

In the instant case, the subsequent actions of Mrs. Arrington and her statements shown in evidence are consistent with and supportive of a finding of such an agreement. The statements of Mrs. Arrington referring to the wills in a plural sense and to a division of the property into fourths and the references to four heirs are all supportive of an inference and implication of a contractual agreement by Jean and Frank Arrington. The language attributed to Jean Arrington that she had left a will “as she and Frank made it,” and “I think it should be left the way we planned it to be,” is indicative of an agreement. So, too, the handwritten note of Jean Arrington, admitted in evidence, referring to a disposition in accord with a theory of contract or agreement into the one-fourth share disposition argued by the plaintiffs is indicative of an intent to provide contractually for such a disposition. All of this evidence came in plaintiffs’ side of the case, and defendants offered no countervailing evidence. Thus, the facts in this case are comparable to the facts in Wimp v. Collett, supra; and the rationale of these cases is fully applicable.

The evidence in this case, fully considered in the context of the situation of these parties, supports a finding of an intent to factually agree to dispose of all their property as the reciprocal wills of the parties indicate and as the trial court held.

The trial court’s application of the erroneous theory of constructive trust in making its decree is unimportant in the disposition to be made of the appeal here. This court should enter the order the trial court should have made and, where that order should be for specific performance, it will be made if the facts sufficiently appear. Owens v. Savage, supra.

Based upon the unique facts of this case, the dispositional order should be to direct the executor to administer upon the estate of Jean Arrington and make distribution of one-fourth of the distributive estate to Virginia Taliaferro and one-fourth of the distributive estate to Rosemary Walton. The court should further enter an order of specific performance directing the executor to distribute the remaining one-half of the distributive estate one-fourth to Agnes Ar-rington and one-fourth to Alma Arrington, Executrix of Ted Arrington.

The cause is reversed and remanded to the trial court with directions to enter an order in accordance with the foregoing.

All concur.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ollie FLEMING, Defendant-Appellant.
    No. 39430.
    Missouri Court of Appeals, Eastern District, Division 3.
    Jan. 30, 1979.
    Robert C. Babione, Public Defender, Terry Burnet, Asst. Public Defender, 22nd Judicial District, St. Louis, for defendant-appellant.

      John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   REINHARD, Presiding Judge.

Defendant, Ollie Fleming, appeals from a conviction of Burglary First Degree and Forcible Rape. The jury assessed punishment at five years on the burglary count and fifteen years on the rape count. The court ordered that the sentences run consecutively. As error, the defendant alleges three points: 1) the giving of an instruction which read in the alternative that the defendant broke into the rape victim’s home by use of false keys; 2) the overruling of defendant’s objection to Assistant Circuit Attorney’s comments in closing argument regarding “reasonable doubt”; and 3) the admittance of testimony from a criminalist regarding sperm stains found on the nightgown of the rape victim.

Before considering these points, we must relate the relevant facts. The prosecutrix testified that she and her two children lived with her brother. The bedrooms were on the second floor. The brother slept in the room with her two small children. She stated that she had gone to bed on the evening of October 11, 1976 at about 10:30 p. m. after checking the locks of the kitchen and patio doors, the only two entrances. She awoke to find the defendant standing in the hallway holding a knife. The defendant entered the bedroom and put the knife to the prosecutrix’s face. He told her to keep quiet or he would kill her. The defendant then told the prosecutrix to lie down on the bed. She refused and requested to go to her daughters’ room to see that her brother and children were safe. Defendant tied the prosecutrix’s hands, put his arm around her neck, placed his knife at her throat and led her to see her brother and children safely sleeping, all the while threatening to cut her throat if she spoke. After pulling the prosecutrix back to her room, the defendant had intercourse with her without her consent. Thereafter, defendant sat on the bed and talked to the prosecutrix, continuing to hold the knife. She asked him, “How did you get in my house?” The defendant responded by jingling the keys in his pocket. The prosecu-trix then asked him, “Did you have a key?” The defendant did not answer but subsequently said he could get in the apartment any time. After defendant left, the prose-cutrix woke her brother who notified the police. The prosecutrix stated that the police arrived about 10 or 15 minutes later and took her pink nightgown. Later that morning the police took her to Homer Phillips Hospital. A few days after the incident, the prosecutrix identified the defendant as her assailant by photographs provided by the police and in a line-up at the police station. She again identified the defendant at trial.

The prosecutrix’s brother testified that before retiring for bed on the night of October 11, 1976, he checked the patio door and all the windows to make sure they were secure. He told his sister to lock the kitchen door, the only other means of entrance. After his sister awoke him early in the morning of October 12, 1976, the brother went downstairs and saw both doors open. Upon examination, he found no pry marks or damage to the lock of the kitchen door but did discover that the top lock securing the sliding door appeared to have been loosened.

A detective, who arrived shortly after the rape to investigate the apartment, testified that there appeared to have been tampering with a lock on the sliding door other than the top lock. More particularly he testified that on the frame of the door there was a piece of metal into which a latch fit and that the metal appeared to have been forced away from the frame.

The defendant’s case consisted of evidence that established an alibi defense which placed defendant in the home of a friend on the night and early morning of the rape.

The defendant does not challenge the sufficiency of the evidence on the rape charge. He alleges the court erred “in giving Instruction No. 5, MAI-CR 7.20 submitted by the State, in that the State had not presented substantial evidence to justify submitting the second alternative contained in Paragraph Third: ‘ . . . or by unlocking an outer door by means of false keys

The law in Missouri requires that, “Instructions must be based upon substantial evidence and the reasonable inferences to be drawn therefrom.” State v. Cole, 377 S.W.2d 306, 308 (Mo.1964). Further, the trial court can instruct the jury on alternative theories of guilt as long as each is supported by evidence. State v. Green, 511 S.W.2d 867, 874 (Mo.1974); State v. Mullen, 532 S.W.2d 794, 797 (Mo.App.1975).

In State v. Young, 345 Mo. 407, 133 S.W.2d 404 (1939), the Supreme Court of Missouri, on the following facts, found a prima facie case of burglary in the first degree with entry by means of false keys: 1) all doors and windows had been locked when those burglarized went to bed; 2) no one had permission to enter the premises but those living inside; and 3) no evidence had been introduced that the locks or windows had been broken. The Young court held that, “Since the door and lock were undamaged the burglar could have opened the door only by turning the lock.” Id. at 412, 133 S.W.2d at 407-08. The Young court liberally defined the term “false key” by referring to Funk & Wagnalls New Standard Dictionary as “a contrivance, or a key other than the proper key, for opening a lock . . . .” and therefore inferred that the first degree burglary statute comprehended any kind of key capable of being employed and intended to be employed in housebreaking. Id.

Here too, we have evidence that all the doors and windows were locked. Here we have some evidence of tampering with the sliding door, a factor not presented in the Young case. However, here we have the evidence of defendant’s jingling the keys in response to prosecutrix’s question as to how he got in. Further, defendant told the prosecutrix that he could get in her home any time. We find that there was sufficient evidence from which a jury could have inferred that defendant gained entry by means of a “false key.”

Defendant contends that the court erred in permitting the Assistant Circuit Attorney to state in his closing argument that “reasonable doubt” did not mean “beyond a shadow of a doubt” or “beyond any and all doubt.”

It is improper for a prosecutor to define “reasonable doubt” in closing argument. State v. Belleville, 530 S.W.2d 392, 395 (Mo.App.1975). However, a prosecutor is not precluded from discussing “reasonable doubt” during closing argument. State v. Wilbon, 561 S.W.2d 133, 134 (Mo.App.1978). We believe that the comments in this case do not constitute an attempted definition, but fall within the bounds of proper argument, State v. Wilbon, supra; in any event, even if error, the statements did not constitute prejudicial error. State v. Henderson, 547 S.W.2d 141, 144 (Mo.App.1976).

As his final point on appeal, defendant submits the trial court committed prejudicial error in overruling his objection to the testimony of a criminologist regarding examination of sperm stains found on the prosecutrix’s nightgown. The police laboratory criminologist testified that he ran certain tests on the stains as well as on the saliva of defendant. The defendant objected to the testimony because the state did not establish a proper chain of custody in handling the nightgown, thereby failing to show that the nightgown had remained in an unchanged condition from the time it was taken until it was tested.

The prosecutrix at trial identified her nightgown and it was admitted without objection. She testified that defendant had ejaculated and that her nightgown had been wet. She gave the nightgown to police sometime after 5:20 a. m. Witness Crowe, the criminologist, testified that he found the gown in his evidence locker after 7:30 a. m. He testified that he found sperm on the nightgown when he tested it. On cross-examination Crowe testified that contamination was possible by depositing a large amount of sweat upon the sperm sample prior to testing. There was no testimony as to the whereabouts of the nightgown from the time the gown was given to the police officer until placed in the locker.

The defendant relies on State v. Myers, 351 Mo. 332, 172 S.W.2d 946 (Mo.1943), to support his contention that there was insufficient evidence to show that the condition of the nightgown as to the sperm stains was the same when tested as when delivered to the police by the prosecutrix. The facts in Myers are somewhat similar to this case. The state contends that there was sufficient evidence reasonably showing that the sperm on the nightgown had not been altered or contaminated. See State v. Johnson, 539 S.W.2d 493 (Mo.App.1976).

Error, if any, in the admission of this evidence was harmless. As Judge Rendlen stated in State v. Starkey, 536 S.W.2d 858, 864 (Mo.App.1976), “It is well-established that the admission of improper evidence is usually harmless if the fact sought to be shown is fully and properly proved by other evidence.” The state made a strong case on the rape charge apart from the challenged testimony. Error which in a close case might call for reversal may be disregarded as harmless where the evidence of guilt is strong. State v. Vernor, 522 S.W.2d 312, 316 (Mo.App.1975); State v. Kennedy, 513 S.W.2d 697, 700 (Mo.App.1974).

CLEMENS and GUNN, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard PAGE, Defendant-Appellant.
    No. 39580.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 30, 1979.
    James F. Booth, Clayton, for defendant-appellant.

      John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   REINHARD, Presiding Judge.

The defendant appeals from a verdict of the jury finding him guilty of manslaughter. He was sentenced by the court under the Second Offender Act to a term of ten years.

The defendant was charged with Murder in the Second Degree and Robbery by Means of a Dangerous and Deadly Weapon. The court sustained defendant’s motion for judgment of acquittal as to the robbery count.

The defendant does not challenge the sufficiency of the evidence as to the manslaughter conviction. There was sufficient evidence for the jury to have found that the defendant killed the victim with a .22 caliber sawed-off rifle. The defendant had claimed self-defense, and the court gave a self-defense instruction.

Defendant first contends that it was “error for the State’s attorney to cross examine the defendant as to his use of L.S.D. or ‘acid’ when the source of this information was a report of a psychiatric examination the defendant underwent after being charged in the above entitled cause.” § 552.030(6), RSMo. (1969). Initially, we note that defense attorney made no objection during cross-examination and therefore failed to preserve the issue for appellate review. State v. Franco, 544 S.W.2d 533, 537 (Mo. banc 1976). Secondly, there is absolutely no evidence in the record to support defendant’s contention as to the source of the information. As stated in State v. Huff, 537 S.W.2d 836, 837 (Mo.App.1976), “Asserted legal points, in order to rise to the level of justiciable issues, must rest on a footing more solid than speculation, conjecture and surmise.”

Defendant’s second point alleges “[t]hat it was error for the trial Court [sic] to allow the State’s attorney to cross-examine defense witness, Arnold Hamilton, as to specific acts relating to the character and arrests of the defendant in order to establish the defendant’s reputation in the community.”

Defendant’s defense was self-defense. One of his witnesses was Arnold Hamilton. During Hamilton’s testimony the defense attorney asked him if he knew “Donald Griffin’s [the victim] reputation in the community for turbulence and violence,” to which Hamilton replied that he did and that the reputation was “bad.”

On cross-examination, the Assistant Prosecuting Attorney asked Hamilton about the defendant’s reputation in the community for turbulence and violence. To this Hamilton responded that defendant was a “thief” but not a “violent type guy.” The Prosecuting Attorney then asked if he knew or had heard it rumored in the community that Richard Page was arrested on August 14 of 1975 for armed robbery. He answered, “No.” The Prosecuting Attorney then queried, “Did you know that on August 23 of 1976 that [sic] he was arrested for assault with intent to kill with malice aforethought?” To this Hamilton replied, “No.” Hamilton further testified that if he had known these things, it would not have changed his opinion. Defendant objected to the questions as to the arrests, but the court overruled his objections.

Defendant cites State v. Johnson, 496 S.W.2d 852, 857 (Mo.1973), which holds that “reputation testimony is admissible only when the defendant has put his reputation in issue”, and State v. Earvin, 510 S.W.2d 419, 422 (Mo.1974), where the Supreme Court reiterated the long standing rule that proof of specific acts of misbehavior do not constitute admissible testimony to counter evidence of the defendant’s good reputation for peaceful behavior.

When the defendant placed the issue of the victim’s reputation as a violent and turbulent man before the jury, he also placed his own. This was decided in State v. Robinson, 344 Mo. 1094, 130 S.W.2d 530, 532 (1939), where the court said:

We here hold that where an accused tenders the factual issue of the bad character of the victim of his assault to substantiate his plea of self-defense he thereby extends the scope of the inquiry beyond the res gestae and opens up for inquiry all evidence of like quality having probative value on the merits of said ultimate factual issue.

Under the circumstances of this case where the witness had implicitly and explicitly testified as to the good reputation of the defendant for peacefulness and quietude, the state had a right to test that witness’s credibility concerning the defendant’s reputation. This could be done by cross-examination as to the facts of prior arrests, not to establish the truth of those facts but to ascertain what weight should be given to his testimony. State v. Burr, 542 S.W.2d 527, 532 (Mo.App.1976).

Judgment affirmed.

CLEMENS and GUNN, JJ., concur.


text:
    Cleophus BYRD, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. 39742.
    Missouri Court of Appeals, Eastern District, Division 3.
    Jan. 30, 1979.
    Henry J. Rieke, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.
   REINHARD, Presiding Judge.

Movant appeals from an order denying his request for Rule 27.26 relief after a hearing. Movant had been convicted of Attempted Robbery and Assault with Intent to Kill. He was sentenced to a term of seven years on each charge, the sentences to run concurrently.

In effect, movant’s motion alleged that he received ineffective assistance of counsel, thereby rendering his pleas of guilty to the above offenses involuntary. Movant claims ineffective assistance of counsel for the reason that his trial attorney failed to advise movant of the possibility that the state had improperly charged him with multiple offenses in derogation of his right to be free from double jeopardy. The facts, insofar as they are pertinent here, follow:

On November 3, 1972 movant and an accomplice attempted to rob a St. Louis clothing store, and some of its patrons, at gunpoint. The robbery itself was never consummated as one of the “patrons” was, in actuality, a St. Louis police officer employed part-time as a security guard for the store. A gun battle ensued between Mr. Claude Smith, the officer, and movant wherein Mr. Smith was shot and injured.

Ultimately, a two count information was filed against movant. Count I charged movant and another with the attempted robbery of Union Clothing Store, Inc., by an assault upon the store’s manager (one Philip Montgomery) who, it was alleged, had custody of the store’s property. The second count charged that movant, and another, had assaulted Claude Smith with intent to kill. Movant entered a plea of guilty as to both counts, stating to the court that his guilty pleas were not the result of duress or coercion, but were voluntarily made. The court so found, and proceeded with sentencing.

In order to afford movant the relief he prays for, at the very least, we must find that movant’s trial counsel erred in failing to advise movant the state could not legally prosecute him for both counts of the information. Thus, it must be demonstrated that movant was, in fact, placed in double jeopardy in violation of his rights. The facts and law herein preclude such a finding for, as delineated in the information, defendant was charged and convicted of two separate offenses involving two separate victims. The law in Missouri, as herein applicable, is that the doctrine of double jeopardy addresses itself only to the identity of the offense, not the identity of the act. State v. Carter, 535 S.W.2d 537 (Mo.App.1976).

“Indeed, the very same act can support multiple convictions without infringement of double jeopardy so long as the convictions rest on separate offenses.” Carter, supra at 538.

Movant’s appeal is controlled by the case of State v. Neal, 514 S.W.2d 544 (Mo. banc 1974). Neal involved a three count information. Count I alleged that defendant and another robbed and took the property of one William Cordes, d/b/a Cordes Hardware, then in the care and custody of one Johnnie Walton, by putting Walton in fear. Count II alleged that defendant and another did, with malice aforethought and intent to kill, make an assault upon William 0. Cordes with a pistol. Count III was identical to Count II except the alleged assault was upon the life of Johnnie Walton. Both Walton and Cordes were working at the hardware store. Defendant Neal contended that Counts II and III subjected him to multiple convictions and punishment for a single offense without any statutory authority and contrary to his constitutional rights because the facts relied upon for the assaults alleged in those counts were exactly the same facts required to establish the personal violence or fear of immediate injury which were necessary elements of the robbery submitted in Count I.

The court said at page 548:

First, the robbery in this case of Cordes Hardware by taking money from the custody of Johnnie Walton, Count I, was the result of the assault committed upon Johnnie Walton and it was the identical assault also charged in Count III. To thus split the single crime of robbery and prosecute it in Count I and a second time in Count III as an assault violated the rule against double jeopardy. State v. Richardson, 460 S.W.2d 587 (Mo. banc 1970). Accordingly, Count III was improperly submitted; and the judgment, insofar as it convicts defendant and sentences him to five years’ imprisonment for the offense there charged, must, therefore, be reversed.
Second, since the robbery of Cordes Hardware was the result of the assault against Johnnie Walton, the assault upon William O. Cordes, charged in Count II, was, by the same reasoning, a separate crime; and trial of such assault with the separate crime of robbery accomplished by the assault upon Johnnie Walton in Count I, did not place defendant in double jeopardy.

Using the reasoning in State v. Neal, supra, we hold that attempted robbery in the present instance was the result of an assault against Philip Montgomery, whereas the assault with intent to kill Claude Smith constituted a separate crime. Defendant’s guilty plea and subsequent conviction did not expose him to double jeopardy. Also see State v. Moton, 476 S.W.2d 785 (Mo.1972) and State v. Smith, 491 S.W.2d 257 (Mo.1973).

Defendant’s reliance on State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970) is misplaced, for the Richardson court concluded only that a defendant may not be charged with attempted robbery and assault where the necessary “act toward the commission” of the attempted robbery was the identical assault upon which the second charge was based. Richardson, supra at 540. Defendant’s present situation in no way likens to the situation of the defendant in Richardson. The assault by defendant upon Philip Montgomery, which established the attempted robbery charge, was separate and apart from the assault upon Claude Smith.

It stands to reason that if movant’s allegation of double jeopardy is invalid, movant’s claim of ineffective assistance of counsel will not lie. Movant cannot successfully contend trial counsel failed him when trial counsel’s advice was not in error.

Affirmed.

CLEMENS and GUNN, JJ., concur.


author: GUNN, Judge.

text:
    STATE of Missouri, Respondent, v. Samuel MONTGOMERY, Appellant.
    No. 39828.
    Missouri Court of Appeals, Eastern District, Division 3.
    Jan. 30, 1979.

      Patrick M. Sanders, Asst. Public Defender, Twenty-First Judicial Circuit, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant was convicted of second degree burglary and stealing. His appeal raises two alleged trial errors: (1) failure to declare a mistrial after a police officer testified that a witness to the crime had been “able to pick someone out” of a group of photos, purportedly in violation of the edict in State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972); (2) giving MAI-CR 1.10— the “Hammer” Instruction. We find no error and affirm.

Mrs. Anne Volanzina and her son Tony were driving with some friends on Topping Road near Manchester Road in DesPeres. As they passed the W.A. Hedrich Company, a plumbing business, they noticed a man “hanging out” of a broken window in the building. A pickup truck was parked outside the building with a person identified as the defendant sitting behind the steering wheel. Suspicious, Mrs. Volanzina slowed to view the scene and even backed up for a review. The son looked at the defendant for about 15 seconds before he slumped down in the seat of the truck. Tony Volan-zina mused that the ring in defendant’s nose gave him a distinctive appearance. The Volanzinas made note of the truck license and reported the incident to the DesPeres police. The owner of W.A. Hed-rich Company was advised of the apparent break in and discovered that numerous brass plumbing fixtures, copper tubing, and an adding machine were missing from his building. The truck was traced through motor vehicle ownership records to the defendant, and a subsequent search of the truck disclosed a receipt from the Lu Wal-lach junk yard in St. Louis for the sale of copper on the same date as the burglary. Defendant was questioned by police regarding his participation in the burglary and after having been given his Miranda rights, he acknowledged that he had driven another man to the Hedrich building; that his companion had entered the building, removed several items, placed them in the truck and drove the truck and companion to Lu Wallach junk yard where the items were sold. Defendant denied any personal profit from the venture.

At trial an investigative police officer was questioned regarding photographs of lineups shown to the Volanzinas to obtain an identification of participants in the burglary. Defendant complains that the following interrogation of the police officer and the court’s failure to grant a mistrial because of it was prejudicial error:

Q. Whom did you show those photographs to?
A. [police officer] I showed those to Mrs. Volanzina and Tony Volanzina.
Q. Was Mrs. Volanzina able to pick some one out?
A. No, sir.
Q. How about Tony?
A. Yes, he was.

There was no further comment on the photographs.

Defendant claims that the foregoing falls within the fundamental proscription of State v. Degraffenreid, supra, which prohibits a third person from testifying as to an extra judicial identification made by an identifying witness except where there is need to rehabilitate the witness after having been impeached.

There are several reasons for denying defendant’s initial point. First, the objection was not timely. The supposed offensive answer had already been given before any objection was made, and there is no indication that the witness’ answer was too swiftly put to have been halted by timely objection. State v. Woolford, 545 S.W.2d 367 (Mo.App.1976); State v. McKnight, 539 S.W.2d 729 (Mo.App.1976). Second, assuming the question may have been improper there was no further pursuit of the identity of any one in the photographs, and no one was in fact identified. There was no prejudicial error against defendant by the answer, and the trial court did not abuse its discretion in failing to grant a mistrial. State v. Evans, 559 S.W.2d 641 (Mo.App.1977); State v. McKnight, supra; State v. Few, 530 S.W.2d 411 (Mo.App.1975); State v. Collett, 526 S.W.2d 920 (Mo.App.1975). Third, the situation here is readily distinguishable from Degraffenreid, where the identification issue was critical and shaky so far as the state was concerned. Here, identity was not contested. The eyewitness clearly saw defendant’s face for 15 seconds in daylight. There was no equivocation of identity including the observation of the distinctive ring in defendant’s nose. Further, defendant admitted being exactly where he was observed. Thus, defendant’s identity was not a real issue, and there was no prejudical error or abuse of discretion in refusing to grant a mistrial. State v. Leady, 543 S.W.2d 788 (Mo.App.1976); State v. Starkey, 536 S.W.2d 858 (Mo.App.1976); State v. Roberts, 535 S.W.2d 119 (Mo.App.1976).

Defendant’s second point of error concerns the giving of the MAI-CR 1.10, which bears the appellation “Hammer Instruction.” The jury retired for deliberation at 3:30 p.m. At 9:10 p.m. the jury was asked by the trial court how it stood numerically as to reaching a verdict. After being told that the count was 10 to 2 without indication whether for guilt or nonguilt, the trial court, over defendant’s objection, gave MAI-CR 1.10. At 10:25 the jury announced its verdict of guilty for second degree burglary and stealing. Defendant does not challenge the wording of the instruction but argues that under the circumstances of this case it was improperly coercive, particularly as the trial court had not first made inquiry as to whether further deliberation would result in agreement. Defendant concedes that it is proper for the trial court to inquire where the jury stands numerically, State v. Baker, 293 S.W.2d 900 (Mo.1956). But he urges us to follow Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), where inquiry as to numerical standing was reproved. However, our Supreme Court has specifically rejected Brasfield in this regard and approved the use of the Hammer Instruction. State v. Smith, 431 S.W.2d 74 (Mo.1968). The submission of the Hammer Instruction is discretionary with the trial court, and we find no indication of coercion or attempt to obtain an indication of the result as condemned in State v. Sanders, 552 S.W.2d 39 (Mo.App.1977). There was no abuse of discretion by the submission of MAI-CR 1.10 irrespective of the fact that no specific inquiry was made to the jury whether an agreement as to verdict could be reached prior to its submission. State v. Sykes, 565 §.W.2d 663 (Mo.App.1978); State v. Carroll, 562 S.W.2d 772 (Mo.App.1978); State v. Voyles, 561 S.W.2d 697 (Mo.App.1978).

Judgment affirmed.

REINHARD, P. J., and CLEMENS, J., concur.


author: CRIST, Judge.

text:
    John Phillip WILLIAMS, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 39868.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 30, 1979.
    John J. Allen, St. Louis, for plaintiff-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., James R. Hartenbach, Clayton, for defendant-respondent.
   CRIST, Judge.

Rule 27.26 proceeding to set aside judgment and sentence entered on a plea of guilty to Second Degree Burglary and Stealing.

Movant alleges error in his having to make a choice between a two-year sentence without probation or fifteen years with execution of the sentence suspended pending successful completion of a five year probation. Movant made the wrong choice of the longer sentence.

He had the misfortune of being convicted of burglary while on probation. He was then ordered to serve the fifteen years. He says he was denied due process in that the fifteen year sentence (ten years plus five years) showed vindictiveness on the part of the state and court against the defendant for exercising his constitutional right to pursue his liberty through probation. But not so. Movant was to blame, and not the sentence.

The granting of probation is within the discretion of the trial court. Smith v. State, 517 S.W.2d 148 (Mo.1974). Cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Movant had a history of violent behavior and was addicted to drugs. The trial court was reluctant to grant probation and encouraged movant to take two years without probation. Movant insisted upon his choice of fifteen years with probation. The trial court exercised its discretion in imposing a larger sentence with probation with the stated purpose being to protect society from further criminal acts by movant. Movant fully understood his choice. We find no abuse of discretion by the trial court. See State v. Burton, 355 Mo. 792, 198 S.W.2d 19, 22 (1946) and Hill v. State, 543 S.W.2d 809 (Mo.App.1976).

The judgment is affirmed.

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