author: BARDGETT, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator, v. The Honorable J. O. SWINK, Judge of the Circuit Court of Perry County, Missouri, Respondent.
    No. 59155.
    Supreme Court of Missouri, En Banc.
    June 14, 1976.

      John Yarbrough, Legal Counsel for State Highway Commission, Kirkwood, and Bruce Ring, Jefferson City, for relator.
    John Schneider and Samuel Richeson, Hillsboro, for respondent.
   BARDGETT, Judge.

The issue in this case is whether a property owner may maintain a suit against the State Highway Commission of Missouri (commission) for damages occasioned by the taking or damaging of real property by the state of Missouri for public use in the county where the land lies or must the landowner sue in Cole county, Missouri, where the commission has its principal office.

Relator, the commission, filed an original action in the Missouri court of appeals, St. Louis district, seeking a writ of prohibition against respondent judge of the circuit court of Perry county, Missouri, to prevent him from exercising jurisdiction over the commission .which is the defendant in the underlying “inverse condemnation” case styled Alfred A. Berkbigler et al., v. Missouri State Highway Commission et al., cause No. 9295. The court of appeals issued its preliminary writ of prohibition and later, by opinion, made its preliminary writ absolute holding that the suit could only be maintained in Cole county. In due course, respondent filed a motion in the court of appeals for rehearing or, in the alternative, for an order transferring the cause to the Supreme Court of Missouri. The court of appeals denied the rehearing but sustained the motion for transfer and ordered the case transferred here pursuant to Art. V, sec. 10, Mo.Const., and Rule 83.02. Parts of the court of appeals opinion are utilized without use of quotation marks.

For reasons stated infra, the court holds that venue of a suit for the taking or damaging of private property for public use by the commission is in the county where all or part of the land lies and, therefore, the preliminary writ of prohibition is discharged.

The underlying suit was commenced on July 20, 1973, by Berkbigler in the circuit court of Perry county against the commission and R. B. Potashnick, a private contractor. In that suit Berkbigler sought damages for injury to his property allegedly occasioned by the state’s construction of a road. According to Berkbigler’s petition, the commission in 1970 had condemned a portion of his land for the construction of interstate highway 55 in Perry county, Missouri, in an action styled State of Missouri ex rel. State Highway Commission v. Arthur W. Ruehling et aL, cause No. 8970, circuit court of Perry county and for which he was compensated. The petition further alleged that in the construction of the highway further property rights of Berkbigler were taken, or land not actually appropriated damaged, for which he seeks compensation. Having been duly served, the commission appeared specially and moved to quash the service of summons on the ground that venue of actions against the commission is in Cole county where the commission has its principal office. On April 12, 1974, the respondent circuit judge overruled the motion after which the commission filed this proceeding in the court of appeals, St. Louis district, as noted above.

The parties have referred to this as an inverse condemnation case. It should be recognized at the outset that there are at least two types of factual situations which give rise to a suit by a landowner for damages against a condemning authority. One situation is where the authority, having condemnation power, does not condemn a parcel of property but, nevertheless, through mistake or design, actually appropriates the property to public use, i. e., the highway commission constructs a road over land, part of which was not taken in the condemnation case. Another situation is where the condemning authority does not actually appropriate the property itself to public use but, as a direct consequence of the improvement, the land which has not been condemned nor taken is damaged. An example of the latter type is Wells v. State Highway Commission, 503 S.W.2d 689 (Mo.1973). In this kind of situation, the title and use of the damaged property remains in the landowner. In the first example the whole use of the property is in the condemning authority and remains there for so long as the property is in public use.

The Missouri constitution protects the landowner against both types of conduct by a condemning authority. Art. I, sec. 26, Mo.Const., provides in part: “That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be provided by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.” This constitutional provision is self-enforcing. McGrew v. Granite Bituminous Paving Co., 247 Mo. 549, 564, 155 S.W. 411, 415 (1912); Wells v. State Highway Commission, supra, at 693. It appears from the pleadings in the underlying suit of Berkbigler that the instant case is similar to Wells.

The commission has the power to initiate condemnation proceedings in the name of the state of Missouri to acquire, inter alia, the right-of-way for the location, construction, reconstruction, widening, improvement or maintenance of any state highway or any part thereof (sec. 227.-120(1), RSMo 1969), and is required to proceed in accordance with the provisions of chapter 523, RSMo., insofar as that chapter is applicable to the commission (sec. 227.-120(13), RSMo 1969).

Section 523.010 requires the condemnation suit to be filed in the county where the land or any part thereof lies (State ex rel. State Highway Commission v. McDowell, 236 Mo.App. 304, 152 S.W.2d 223 (1941)), and all parties to the suit are entitled to a jury trial as to damages (see. 523.060, RSMo 1969), and that jury trial as to damages would, of course, take place in the county where the suit was filed in the absence of a change of venue.

In State ex rel. State Highway Commission v. Day, 327 Mo. 122, 35 S.W.2d 37, 38 (banc 1930), this court held that, “The exercise of the power of eminent domain has been delegated by the Legislature to the state highway commission and to various municipal and public services corporations, but not to the courts. The condemnor in every case, in the exercise of a discretion not subject to judicial review, makes its own appropriation of private property for public use. When it pays to the owner of the property so appropriated just compensation, the title [interest acquired] passes by operation of law. The only function that the court performs in a condemnation proceeding is in the ascertainment of just compensation, unless the question of public use is drawn into the proceeding.” (Emphasis ours.)

The court further held at 38 of 35 S.W.2d that, “Within the contemplation of the statute [Laws 1921,1st Ex.Sess. p. 131, creating the state highway commission, now sec. 226.010 et seq., RSMo 1969], the commission is not a number of individuals; it is an artificial legal entity — a quasi public corporation, empowered as such to contract and to sue and be sued.” (Emphasis supplied.)

Section 523.090, RSMo 1969, provides:

“In case property is to be, will be, or has been by any corporation damaged for public use, any person interested may have such damages ascertained. The proceedings for ascertaining and paying such damages shall be the same as are and may be provided by law for assessing damages which owners of land may sustain in consequence of its appropriation for railroad purposes.”

The proceedings for assessing damages which owners of land may sustain in consequence of its appropriation for railroad purposes are governed by sec. 423.010.

Section 227.120(13), as noted supra, requires the commission to also proceed under chapter 523. The proceedings under chapter 523 are to be instituted in the county where all or part of the land lies.

Thus, it clearly appears that the legislature, by requiring the commission to proceed in accordance with chapter 523, intended that the judicial determination of damages suffered by a landowner be made in the county where all or part of the land lies. That is to say that the legislature has determined, and by chapter 523 declared, that venue in these types of cases is in the county where the land lies.

Only two other jurisdictions have been discovered which have ruled directly on the issue of venue in inverse condemnation actions, Commonwealth, Department of Highways v. Gisborne, 391 S.W.2d 714 (Ky.1965), and State v. Hollis, 93 Ariz. 200, 379 P.2d 750 (1963). In both cases venue was found to lie in the county where the land was located. In State v. Hollis, the state highway department made improvements on a highway in Gila county which resulted in the raising of the roadway five to eighteen feet over the adjoining property and the construction of a drainage ditch next to the property line. The state having commenced no condemnation proceedings, the landowners filed suit in Gila county seeking to recover damages for impairment of access to their property. A jury awarded $85,450 to plaintiffs and the state appealed. The only assignment of error found to satisfy the rules of the court related to the state’s statutory power to demand a change of venue to Maricopa county, A.R.S. sections 12-821 and 12-824(B). The court in Hollis found that plaintiffs’ complaint was in inverse condemnation and that the change of venue provisions were only applicable to actions in contract or tort. The court held at 751 of 379 P.2d:

“That the landowner, in default of proper condemnation action by the State, must himself institute proceedings to secure compensation does not change the essential nature of the cause of action. It is still in the nature of a condemnation of a private property right by the State under the sovereign right of eminent domain. The property involved is located in Gila County and the action was properly brought in that county.”

Venue was thus controlled by A.R.S. 12-1116(A) which provides that: “All actions for condemnation shall be brought as other civil actions in the superior court of the county in which the property is located.”

Kentucky courts have also ruled directly on the issue of venue in inverse condemnation actions. In Commonwealth, Department of Highways v. Gisborne, supra, the state highway department purchased a small amount of plaintiff’s farm in Hardin county for the purpose of widening a highway to four lanes. Due to a mistaken measurement by a highway department employee, a subcontractor for the department graded an unacquired strip of plaintiff’s land. The plaintiff sued the subcontractor who joined the highway department by a third-party complaint. A jury awarded the plaintiff $1,050 against the department. The department appealed. The court of appeals, at p. 716, viewed the action as a condemnation in essence, or “what is sometimes called a condemnation in reverse.” Venue in such an action was said to be controlled by K.R.S. 177.082 and thus to lie in Hardin county.

K.R.S. 177.082 is the general venue statute for condemnation proceedings. This statute provides in part that: “The commonwealth of Kentucky, department of highways, when seeking to condemn lands and material and the use and occupancy of lands, under the provisions of K.R.S. 177.-081, shall direct the county attorney or any attorney authorized to represent the commonwealth to file a petition in the office of the county court clerk in the county in which all or the greater portion of the land or material is located.” (Emphasis added.)

It is noted that neither Kentucky nor Arizona has a statute specifically stating that inverse condemnation suits and suits for damages to property consequent to a taking are to be brought in the county where the land lies.

In both of the cases cited supra, the courts of Kentucky and Arizona relied upon the statute requiring the condemnation suit to be brought in the county where the land lies as the statutory foundation for the decisions that inverse condemnation cases also lie in the county where all or part of the land lies. Consideration was also given to the nature of the proceedings. In Kentucky and Arizona, as in Missouri, the primary function and purpose of the court proceedings in condemnation actions is to decide just compensation. That is also the primary function of inverse condemnation actions. The proceedings are basically the same with the burden of proof as to damages on the landowner in both instances. See MAI 2.01, note 1.

There is dicta in one decision of the court of appeals, St. Louis district, reflecting an understanding that venue in an inverse condemnation action against the state would lie in Cole county only, Luttrell v. State Highway Commission, 379 S.W.2d 137 (Mo.App.1964). The opinion in that case cites no authority as a basis for its understanding. It was also noted that the issue of venue was not before the court because the original action had been brought for ejectment, Luttrell v. State Highway Commission, supra. At least two inverse condemnation suits against the highway commission which reached an appellate court were brought in the county where the land was situated, Marvin E. Nieberg Real Estate Co. v. St. Louis County, 488 S.W.2d 626 (Mo.1973), and Wells v. State Highway Commission, supra. We do not know how many others, if any, have been litigated in the county where the property lay but not appealed. Respondent relies heavily on Wells arguing that the case establishes that venue in inverse condemnation actions must be at the situs of the property. The issue of venue, however, was not raised in Wells or in Nieberg and, therefore, the cases are not definitive on the subject matter of the present action. A case advanced by the relator to establish that section 508.030 has been held not to control in inverse condemnation actions against the state is similarly unconvincing. In Hamer v. State Highway Commission, 304 S.W.2d 869 (Mo.1957), the plaintiff brought an inverse condemnation action alleging a “taking” of land in Clay county. The plaintiff chose to bring the action in Cole county. If section 508.030 controlled the venue in the action, the suit theoretically should have been dismissed on a procedural ground of improper venue because venue under this statutory section has been held to be jurisdictional and non-waivable, Howell v. Reynolds, 249 S.W.2d 381, 383 (Mo.1952); Hughes v. Spence, 409 S.W.2d 701, 705 (Mo.1966); March v. Gerstenschlager, 322 S.W.2d 743, 744 (Mo.1959); and Sisk v. Molinaro, 376 S.W.2d 175, 177 (Mo.1964). The court in Hamer did not dispose of the case on the venue question but rather examined the merits. The relator argues that this case should be read as implicitly deciding that venue in an inverse condemnation action against the state lies only in Cole county. The opinion in Hamer, however, contains absolutely no discussion of the issue of venue. It should be observed that neither the plaintiff nor the defendant had any motivation to raise the issue of venue. This court is most reluctant to base the important decision in this case on an opinion in which the issue of venue was never raised and in which the court held that on the merits the plaintiff had failed to state a cause of action in inverse condemnation by failing to establish state action amounting to a “taking”.

The commission cites State ex rel. State Highway Commission v. Bates, 317 Mo. 696, 296 S.W. 418 (banc 1927), which was prohibition to prevent the circuit court of Jasper county from proceeding in a suit brought by plaintiffs-partners, d/b/a Highway Construction Company against the commission alleging a breach of contract and seeking damages therefor. This court made its writ absolute on the holding that the commission is, by statute, required to maintain its principal office in Jefferson City (Cole county), Missouri, and service is to be had on the commission by serving its secretary. The secretary is required to reside at Jefferson City, Missouri.

State ex rel. State Highway Commission v. Billings, 123 S.W.2d 170 (Mo.1938), also cited by the commission, was prohibition to prevent the circuit court of Stoddard county from proceeding in an action by Pike township, a political subdivision of Stoddard county, against the commission. Pike township sued to recover $4,556 for 2.461 miles of road taken over as part of the state highway system under sec. 8127, RS 1929 (now sec. 227.140, RSMo 1969), and the court, following Bates, made its temporary writ of prohibition absolute.

Neither of the above actions arose out of the taking or damaging of private property for public use and, of course, the causes of action in the cited cases are not the subject of any of the provisions of chapter 523 (condemnation proceedings). It is the provision of chapter 523 which requires the condemnation action to be filed in the county where all or part of the land lies, and the recognition that the court’s function in condemnation cases is restricted to the determination of damages (except where public use is in issue) that persuades this court that the legislative intent, per force chapter 523, is that damages for land taken or damaged for public use is to be decided in the county where the land lies. Chapter 523 is, in effect, a special venue act for this type of action.

The commission urges that it should not have to appear in courts all over the state to defend against charges of taking or damaging private property for public use; that this would dissipate public funds.

If the commission proceeds as the law requires by the filing of the condemnation case itself, then it will be litigating in the county where the land lies. It is difficult to understand why the condemning authority ought to be able to avoid the local forum by simply not proceeding according to law and requiring the landowner to institute suit himself.

It seems obvious that the action known as the condemnation suit (chapter 523) exists for a singular purpose — to give meaning to the constitutional prohibition against taking or damaging private property for public use. If it were legal to take property without paying for it, then why have any proceeding to assess the damages? Whether the action be brought by the condemning authority or, in default of such action, by the landowner, it exists for the protection of constitutional rights under the Missouri constitution. In order to- accomplish that protection, the legislature has declared that the proceedings by the condemning authority be filed where the land lies. The court holds that actions by the landowner against the commission for the assessment of damages resulting from the taking or damaging of private property for public use may be instituted in the same county where the condemnation action, had it been filed, would have to be instituted pursuant to chapter 523 — the county where all or part of the land lies.

The preliminary writ of prohibition heretofore issued is quashed.

All of the Judges concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Russell T. STOKES, Jr., Respondent, v. Joseph J. KELLY, Jr., and Edward Fischer, Appellants.
    No. 36747.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 30, 1976.
    Motion for Rehearing or Transfer Denied May 17, 1976.
    Application to Transfer Denied July 12, 1976.
    Harold P. Heitinann, Weil, Eyerman & Schenberg, Eureka, for appellants.
    Lucas & Murphy, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

In an action for unpaid architectural fees plaintiff had a verdict and judgment. Defendants appeal, but their brief fails to comply with rules of appellate procedure.

Rule 84.04(d) requires appellants’ briefs to state the points relied on, pointing out “what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” Disregarding that simple rule, these appellants’ points relied on are these:

“I. The court erred in allowing plaintiff to testify that the homes were built from plaintiff’s plans.
“II. The court erred in not directing a verdict for defendants because plaintiff failed to prove the essential elements of his case.”

Appellants’ brief obviously fails to comply with Rule 84.04(d). In accord with Rule 84.08, we dismiss the appeal, for the reasons stated by this court in Kellin v. ACF Industries, 528 S.W.2d 533 (Mo.App.1975) and Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223 (Mo.App.1973).

DOWD and STEWART, JJ., concur.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Maurice MADISON, Defendant-Appellant.
    No. 36479.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 6, 1976.
    Motion for Rehearing or Transfer Denied May 17, 1976.
    Application to Transfer Denied July 12, 1976.

      Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   DOWD, Judge.

Defendant appeals his conviction by a jury of stealing from a person. § 560.156 RSMo 1969. He was sentenced to seven years imprisonment. We affirm.

On October 12, 1973, at approximately 1 p. m., the defendant and a companion entered a supermarket in the City of St. Louis. The defendant, with a newspaper and a candy bar in his hands, proceeded to stand in the checkout line. The customer ahead of the defendant in the line handed a $10 bill and a $20 bill to the checker to pay for purchases. As the checker started to put this money into the cash register drawer, the defendant grabbed the $20 bill from her hand. The checker reflexively snatched at the $20 bill and tore it. The defendant then threw down his portion of the $20 bill and fled from the store.

Hearing the checker’s shouts, the store’s manager and co-manager chased the suspect. The defendant and his companion were apprehended a short distance from the store by a policeman, who had seen the two men being chased down the alley. Both the defendant and his companion were carrying guns. The policeman placed the two men in the backseat of a police car. The checker was promptly brought to the police car and positively identified the defendant as the man who had grabbed the $20 bill from her hand in the store.

There was additional evidence that the defendant’s fingerprint was found on the candy bar.

Defendant’s first appellate contention is that the trial court erred in overruling his pretrial motion to suppress the checker’s identification of the defendant. Defendant claims the process by which the defendant was identified in the police car was unnecessarily suggestive and conducive to an irreparably mistaken identification. We disagree.

It is not improper for the police to immediately return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the suspect minutes before. State v. Maxwell, 502 S.W.2d 382[5] (Mo.App.1973). This kind of confrontation, however, can be unduly suggestive and thus prejudice the rights of the apprehended suspect. To determine the suggestiveness of a particular confrontation and the likelihood of misidentification it is necessary to consider “the totality of the circumstances.” State v. Hamblin, 448 S.W.2d 603, 611 (Mo.1970). The evidence shows that the defendant and his companion were pursued from the scene of the crime and taken into custody. The checker was immediately brought to the police car in which the two men were seated. With no prompting from the police, the checker positively identified the defendant as the man who had grabbed the money from her hand.

In evaluating the suggestiveness of a confrontation between the accused and a witness and the likelihood of misidentification, we consider such factors as: (1) the opportunity of the witness to view the accused at the time of the alleged crime, (2) the accuracy of the witness’s prior description of the accused, (3) the certainty of the witness at the confrontation, (4) the length of time between the crime and the confrontation, and (5) the need for the police to determine at the earliest opportunity whether the person suspected is the person sought. State v. Hudson, 508 S.W.2d 707[7] (Mo.App.1974); State v. McDonald, 527 S.W.2d 46, 49 (Mo.App.1975). In this case the checker had an opportunity to view the defendant when he was standing in her checkout line and did look at him for a few seconds. The checker positively identified the defendant in the police car as the man who had snatched the $20 bill from her. Only a few minutes had elapsed between the theft and the checkers’ identification. Finally, in this case there was a need for quick identification because the arresting police officer had not actually seen the crime; he had merely noticed the two men fleeing from some pursuers. Thus it was important for the police to determine whether the suspects in their custody were the persons sought for the theft.

We hold that the prompt identification was not unnecessarily suggestive nor conducive to an irreparable mistaken identification. The trial court properly overruled the defendant’s motion to suppress the identification testimony and properly admitted the subsequent in-court identification of the witness.

We will not review the defendant’s second and third points on appeal because they have not been preserved for appellate review. The two points were not “set forth in detail and with particularity” in the defendant’s motion for a new trial. Rule 27.20(a). The plain error rule is not applicable to this case, for our careful review of the record and the appellate briefs has convinced us that our failure to consider these points will not result in manifest injustice or miscarriage of justice. Rule 27.20(c).

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.

      . The defendant was originally charged with robbery in the first degree by means of a dangerous and deadly weapon. At the close of all the evidence, the court sustained the defendant’s motion of acquittal as to the robbery charge. The jury found the defendant guilty of stealing from a person.


text:
    STATE of Missouri, Respondent, v. Michael Jerome ISREAL, Appellant.
    No. 36844.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 6, 1976.
    Motion for Rehearing or Transfer Denied May 17, 1976.
    Application to Transfer Denied July 12, 1976.

      Howard, Edwards & Singer, Raymond Howard, Jr., Roy A. Walther, III, St. Louis, for appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas J. Kavanaugh, Asst. Circuit Atty., St. Louis, Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant guilty of first-degree robbery (Section 560.120, RSMo 1969) but could not agree on punishment. The trial court sentenced defendant to twenty years’ imprisonment. Two witnesses identified defendant as being among five men who robbed a restaurant on March 18,1974. Defendant appeals, raising seven points relied on.

I. Defendant contends the circuit court lacked jurisdiction since the juvenile court had not waived its jurisdiction and certified him for trial as an adult.

There was some confusion in the original transcript filed here concerning the matter of the juvenile court having waived its jurisdiction pursuant to § 211.071, RSMo 1969. Under Rules 28.18 and 81.12(c), the trial court amended the transcript to include a juvenile court order certifying defendant to be tried as an adult. The supplemental transcript shows the juvenile court did dismiss the petition against defendant and thereby effectively waived jurisdiction. We find no prejudice to defendant.

II. Defendant contends he was prejudiced by State’s counsel referring to the fact he had been indicted by the grand jury and thus equated indictment with guilt.

During his opening statement the prosecutor said, “. . . this crime that this man has been charged with, indicted on by the Grand Jury, is a felony.” The trial court denied defense counsel’s request for a mistrial, but instructed the jury to disregard the prosecutor’s remark.

The court had a broad discretion in its choice of remedy. State v. Raspberry, 452 S.W.2d 169[7—11] (Mo.1970). In State v. London, 295 S.W. 547[4, 5] (Mo.1927), the prosecutor made several references to an indictment, even after being admonished by the trial court and directed to avoid such comments. The court ruled the mere mention of an indictment was not prejudicial. Here, as in London, the trial court believed its caution to the jury was sufficient to counteract the prosecutor’s remark. We find no abuse of discretion.

III. During jury voir dire the prosecutor asked two questions which defendant says committed the jury to vote for conviction. The questions: “Is there anybody who feels for whatever reason, that they could not under any circumstances go to a jury room, no matter what testimony they hear, no matter what instructions the judge gives, to go to a jury room and vote to convict a man of felony? . . . Will you be able, presuming of course, after you hear the evidence you do find the man guilty and the judge does tell you that you must assess punishment?”

Some questions by prosecutors attempting to discern whether veniremen are unable to conscientiously return a guilty verdict under any circumstances have been subjected to judicial criticism, but such questions are not necessarily prejudicial. State v. Turnbough, 498 S.W.2d 567[l-3] (Mo.1973) and State v. McCaine, 460 S.W.2d 618[11] (Mo.1970).

The quoted questions appear to be intended to uncover moral scruples against returning a verdict of guilty. Questions inquiring into the ability of a juror to reach a conclusion do not necessarily commit a juror to return a guilty verdict. Questions beginning with “could” or “will you be able,” as in the instant case, indicate an inquiry into such ability. State v. McCaine, supra, at p. 622[11], Neither question here was improper.

IV. During opening statement the prosecutor told the jury a state’s witness would testify he was taken by police officers to the juvenile court where he identified defendant at a lineup. Defense counsel’s general objections were overruled.

Defendant argues the remarks locating the lineup at juvenile court were improper, citing § 211.271(3), RSMo 1969, declaring “all admissions, confessions, and statements by the child ... as well as all reports and records of the juvenile court, are not lawful or proper evidence . . . .”

In State v. Thompson, 533 S.W.2d 689 (Mo.App., Kansas City District, 1976), a witness’ reference to seeing the defendant “in juvenile court” was deemed non-prejudicial, the court saying the statement does not violate the juvenile code since no admission or statement made by defendant nor any reports or records of juvenile court were quoted or referred to. Here, nothing done in the juvenile court was used against defendant at his trial. That is the essence of the proscriptions of § 211.271(3), RSMo 1969; State v. Ford, 487 S.W.2d 1[2] (Mo.1972).

V. Defendant contends the trial court should have granted his motion for a mistrial when the prosecutor in narrating the evidence to be presented said that police working on the case arrested and spoke to one Carl Dunlap. The trial court denied the motion but directed the prosecutor to avoid referring to Mr. Dunlap, and instructed the jury to disregard previous references to him.

Defendant cites State v. Fenton, 499 S.W.2d 813 (Mo.App.1973) to support his claim of error. That case held a prosecutor may not dangle a joint defendant’s confession before a jury at another defendant’s trial. This was not done here. Carl Dunlap was never even identified as an accomplice. Without more, the defendant was not prejudiced by the prosecutor’s mention of Dunlap’s name and the hint of it having some connection with the case. We defer to the trial court’s discretion in refusing to grant a mistrial. State v. Spears, 505 S.W.2d 92[2] (Mo.1974).

VI. Defendant asked for a mistrial when the prosecutor in closing argument said the jury need not assess punishment: “In the alternative [to assessing punishment yourselves], perhaps you might feel that Judge Gaertner based on his experience as a Circuit Judge, based on what he knows about this case and his experience generally is in a better position to assess punishment. That’s your . . At this point defense counsel objected and moved for a mistrial. The court denied the motion but ordered the jury to disregard the prosecutor’s comment and directed the jury’s attention to written instructions in the case declaring the primary responsibility for punishment was on the jury. The prosecutor then retracted his former statement saying “the primary responsibility in assessing punishment is with the jury.”

The prosecutor’s statement was improper. Counsel’s arguments may not “attempt to persuade the jurors to shirk their duty regarding assessment of punishment after they have determined guilt.” State v. Matzker, 500 S.W.2d 54[6] (Mo.App.1973). Granting a mistrial, however, is an extreme remedy. State v. Dennison, 428 S.W.2d 573[2-4] (Mo.1968). The statement was not inflammatory and the trial court’s corrective instruction and the prosecutor’s retraction dispelled whatever harm might have resulted. The denial of a mistrial was not an abuse of discretion. See State v. Johnson, 534 S.W.2d 844 (Mo.App.1976).

VII. Defendant’s last point is that in fixing punishment the trial court erroneously relied on juvenile court records contrary to § 211.271, RSMo 1969.

The pre-sentence report relied on by the court in sentencing the defendant included the results of a consultation with a juvenile officer in defendant’s certification proceeding. Defendant misconceives the scope of the statute. The trial court ordered a Rule 27.07 pre-sentence investigation. That rule declares such an investigation shall include the defendant’s “social history and the circumstances affecting his behavior as may be helpful in imposing sentence . . . The trial judge’s remarks at sentencing shows he relied on considerations proper under Rule 27.07. The judge stated he did not know what juvenile offenses the defendant had been involved in and that punishment was based on defendant’s attitude, the seriousness of the offenses and on defendant’s lack of concern for the lives and property of other persons. Aside from this, the only grounds for challenging a sentence is its excessiveness. Bracy v. State, 456 S.W.2d 302[5] (Mo.1970). The sentence in this case is within limits prescribed by law.

Judgment affirmed.

DOWD and STEWART, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Lawrence Eugene LANE, Appellant.
    No. 36687.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 6, 1976.
    Motion for Rehearing or Transfer Denied May 17, 1976.
    Application to Transfer Denied July 12, 1976.
    James C. Jones, Asst. Public Defender, St. Louis, for appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

The State charged defendant with felonious assault (§ 559.180, RSMo 1969), contending he shot and tried to rob Charles Clark, a karate expert, who thwarted the robbery by felling and disarming defendant. Defendant, a pimp, maintained he shot Clark in self-defense in an argument over a prostitute’s fee.

The jury found defendant guilty of assault with intent to rob, with malice aforethought. The court fixed defendant’s punishment at twenty years’ imprisonment; he appeals, contending error (1) in refusing his instruction on the lesser included offense of assault without malice, (2) allowing the victim to display his wounds and (3) admitting testimony that defendant, while hospitalized, did not respond to questions. These in turn.

The court instructed the jury on the felonious offense of assault with malice aforethought. § 559.180, RSMo 1969; MAI-CR 6.22. The court also instructed the jury on self-defense (MAI-CR 2.40) but refused to give defendant’s instruction on the graded felony of assault without malice. § 559.190, RSMo 1969; MAI-CR 6.24. Each of the two offenses included the elements of assault and felonious intent. The greater offense also requires evidence the assault was “with malice aforethought — that is, intentionally and without just cause of excuse, and after thinking about it beforehand . ” (MAI-CR 6.22). As said in State v. Webb, 518 S.W.2d 317[3] (Mo.App.1975): “Many decisions of our courts have stated that the essential ingredient of § 559.180 is ‘malice aforethought’, and that the existence of malice aforethought is the basic distinction between §§ 559.180 and 559.190.”

Defendant contends the trial court erred in refusing to instruct on assault without malice. This calls for a statement of evidence by the state and by the defendant.

The victim, Charles Clark, testified: On the night in question he was “tavern hopping,” looking for another bar, when Clark asked defendant for directions. They walked along a dark street together and suddenly defendant drew a pistol and demanded Clark’s money. Defendant shot Clark when he made a sudden movement. They struggled, defendant shot Clark again, but Clark wrested the pistol from defendant and hit him with it. Police stopped the fray and took both men to a hospital.

According to defendant, Clark stopped him and said he “wanted a girl.” Defendant said he had one available nearby but they argued about the cost. As defendant was walking away Clark called to him and said, “I’m a karate expert and I’m going to beat your ass.” Clark then went into a “karate stance” and started towards defendant. Defendant drew his pistol and as Clark grabbed his wrist defendant fired to protect himself. Clark then threw the defendant to the ground and defendant fired once more as Clark jumped on top of him. Clark got the pistol away from defendant and struck him with it.

We look to this evidence in resolving defendant’s contention the trial court should also have instructed the jury on assault without malice. That instruction must be given if — but only if — supported by the evidence. State v. Webb, 518 S.W.2d 317[4] (Mo.App.1975); State v. Hyster, 504 S.W.2d 90[2] (Mo.1974).

To support his right to an instruction on assault without malice defendant relies on State v. Swiney, 296 S.W.2d 112 (Mo.1956). In that case, as here, the State’s evidence showed defendant assaulted the victim with a deadly weapon in an attempt to rob him, and defendant claimed self-defense. The trial court dually instructed on assault, both with and without malice. The jury found defendant guilty of the lesser offense. On this appeal defendant contends that in Swiney “there was no evidence to support his conviction on the lesser charge.” We do not so read Swiney. There, at 1. c. 116[16], defendant’s objection to submitting the greater offense was held unprejudicial and was denied since he was convicted only of the lesser offense. Swiney is inapposite.

More pertinent here is State v. Webb, 518 S.W.2d 317 (Mo.App.1975). There, defendant shot at a police officer attempting to question him. We pointed out that an assault with a deadly weapon was presumptively malicious. The trial court instructed on assault with malice and also on mistake. On appeal we denied defendant’s contention that since there was evidence to warrant an accident instruction he was entitled to an instruction on the lesser offense of assault without malice, saying at 1. c. 321: “We disagree. Under the facts of this case defendant was either guilty of assault with malice or he was entitled to an acquittal because the assault was excusable. State v. Johnson, 326 Mo. 1030, 33 S.W.2d 912, 913 (1930).” That is true here. Defendant was either guilty of assault with malice or he was not guilty at all because of self-defense. There was no evidentiary basis for an instruction on assault without malice. To the same effect, see State v. Washington, 357 S.W.2d 92[6-8] (Mo.1962).

For his second point defendant challenges the trial court’s ruling permitting Clark to display the two abdominal gunshot wounds defendant had inflicted. The record gives no indication the display was inflammatory and the wounds were relevant to the State’s charge of malicious assault. The State should not be unduly limited in the quantum of its proof. State v. Spica, 389 S.W.2d 35[35-37] (Mo.1966). The admission of demonstrative evidence rests largely in the trial court’s discretion and we find no abuse of that discretion. State v. Moore, 303 S.W.2d 60[1] (Mo.1957).

Defendant’s last point challenges the State’s evidence taken from a hospital record that the defendant “was not responsive to questions.” He now contends this violated his right against self-incrimination. When the question to and answer by a hospital record clerk came in there was neither objection nor motion to strike. Later, on cross examination concerning defendant’s admission to the hospital:

“Q. Did you tell them what happened out there on the street?
A. No, I did not.
Q. So, the medical records were correct when they say, ‘the patient did not tell what happened to him’—
MR. MARSHALL: I object to that.
THE WITNESS: I made no statement to anyone at the hospital.
THE COURT: Let the record show that there is nothing before the Court. The witness has answered and in spite of the fact you objected — ”

Again, there was neither a timely objection nor motion to strike. Rule 78.09 requires counsel desiring an evidentiary ruling to then make known to the court just what action he desires the court to take and his grounds therefore. Since the objection was neither timely (Durbin v. Cassalo, 321 S.W.2d 23[4,5] (Mo.App.1959), nor stated grounds (Crabtree v. Reed, 494 S.W.2d 42[3-4] (Mo.1973), nothing is preserved for appellate review.

Judgment affirmed.

DOWD and STEWART, JJ., concur.

      . In Johnson the defense was accident and an instruction on assault without malice was properly denied.


text:
    Keith P. WILLIAMS and Phebe Williams, as husband and wife, Plaintiffs-Appellants, v. CITY OF KIRKWOOD, Missouri, et al., Defendants-Respondents.
    No. 36883.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 6, 1976.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 17, 1976.
    Application to Transfer Denied July 12, 1976.

      Millsap, Weil, Eyerman & Schenberg, Clayton, for plaintiffs-appellants.
    Kappel, Neill, Staed & Wolff, Robert E. Staed, St. Louis, for defendants-respondents.
    Ziercher, Hocker, Tzinberg, Human & Michenfelder, Albert A. Michenfelder, Jr., Edward F. Fehlig, Clayton, for defendants-respondents Kirkwood Knights of Columbus and Kirkwood Columbus Realty Co.
   DOWD, Judge.

This is an appeal from a judgment of the St. Louis County Circuit Court in which respondents’ motions to dismiss appellants’ amended petition with prejudice were sustained. The substance of respondents’ motions was that the Circuit Court lost jurisdiction over the subject matter since appellants failed to bring an appropriate petition for administrative review within 30 days after receipt of written notice of an administrative decision. Appellants were complaining about a decision of the City of Kirkwood in granting a special use permit to respondent Kirkwood Knights of Columbus for a private recreational development.

The facts are undisputed. Appellants Keith and Phebe Williams filed suit on June 20, 1974, seeking injunctive relief against the City of Kirkwood, the mayor, the members of the city council, the Kirkwood Knights of Columbus, and the Kirkwood Columbus Realty Company, alleging that application had been made for a special use permit for the use and benefit of respondent Knights of Columbus. The land in question adjoined the Williams’ property, and the proposed use was to be. a private recreational development, which is permitted in all zoning districts. City of Kirk-wood Ordinance No. 5085, Article IX, Sec. 1, Special Use Exceptions, Requirements, and Procedure (A)(12). The court issued a temporary restraining order. On the return date of the order to show cause, the parties agreed to the dissolution of the restraining order since the ordinance in dispute had not yet been enacted. After a public hearing, the city council on June 13, 1974 voted to grant respondent Realty Company’s request for a special use permit. On July 11, 1974, the respondent city councilmen enacted an ordinance to this effect. Ordinance # 5736 granted a special use permit to the Realty Company for the use and benefit of the Kirkwood Knights of Columbus for a private recreational development. On July 17, 1974, the attorney for the City of Kirkwood sent a letter to appellants’ attorney notifying him of the passage of this ordinance.

On October 5, 1974, appellants filed their first amended petition alleging that they had no adequate remedy at law and requesting injunctive relief against the enforcement of Ordinance # 5736, and against the use of said property as a private recreational development. All respondents moved to dismiss on the grounds that the petition was not timely filed pursuant to the requirements of the Administrative Procedure and Review Act. The specific requirement breached was that which requires filing a petition to review a final decision “within thirty days after the mailing or delivery of the notice of the agency’s final decision.” Rule 100.04(a), V.A.M.R. 1969. Respondents claim that the Circuit Court lost subject matter jurisdiction after the said 30 days had elapsed without a petition for review having been filed. The motions of respondents were sustained on January 29, 1975.

Appellants’ appeal from the dismissal of their first amended petition is based on a three-pronged attack: 1) that the granting of the special use permit was a legislative act of the city council and not an administrative act subject to the provisions of Rule 100, V.A.M.R.; 2) assuming arguendo that the action of the city council was administrative, appellants “substantially” complied with Rule 100; and 3) even if appellants did not substantially comply with said rule, respondents “waived” their rights to plead the 30-day statutory limit as an infirmity in appellants’ position.

In arguing that the city council acted legislatively when granting the special use permit, appellants see as crucial the fact that the special use permit was granted through an ordinance. Appellants cite Kirkwood’s Zoning Ordinance, Article XVI-A, which provides that amendments to the zoning ordinance be enacted by ordinance. Appellants argue that this indicates that whenever an ordinance pertaining to zoning is issued it amends the general zoning ordinance. Thus, appellants reason, an amending ordinance is a legislative enactment and not subject to the review procedures for administrative actions. This is not the case. “A special permit is granted pursuant to the literal language of the zoning regulations. It does not, in any sense, effect an amendment of the zoning ordinance.” 3 R. ANDERSON, AMERICAN LAW OF ZONING § 15.04 (1968). In a recent case involving the affirmance of a grant of a special use permit it was stated: “No amendment to an existing zoning ordinance is involved here . the action taken by the Board . . . was merely the exercise of an administrative discretion expressly granted to it by the enabling act and the zoning ordinance.” City of Lake Lotawana v. Lehr, 529 S.W.2d 445, 449[2] (Mo.App.1975).

An ordinance can be legislative or administrative in nature. Carson v. Oxenhandler, 334 S.W.2d 394 (Mo.App.1960); State ex rel. Ludlow v. Guffey, 306 S.W.2d 552, 556—57[1—3] (Mo. banc 1957). There is no basis for appellants’ assertion that this principle is limited to cases involving the availability of referendum provisions to particular acts of government. The fact that this special use permit was granted by ordinance is not controlling. “The form of a municipal procedure will be disregarded and the substance of its act, as administrative or legislative, will be considered . . ” 5 E. McQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 16.55, at 214 (3d ed. 1969). Within this treatise, zoning is given as an example of a case in which “[m]uncipal legislative bodies may reserve to themselves . . . the power to grant or deny licenses or permits . . . The action ... in such circumstances ordinarily is regarded as administrative, rather than legislative in character.” McQUIL-LIN, supra, at § 25.217.

“The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself . . . ” Anderson v. Smith, 377 S.W.2d 554, 558[2] (Mo.App.1964), quoting McQUILLIN, supra, at § 16.55. Since Article IX, Sec. 1, of Kirkwood’s zoning ordinance, entitled “Special Use Exceptions, Requirements, and Procedures,” makes specific provision for special use permits, the issuance of a special use permit is in pursuance of an already adopted plan, and thus administrative. A legislative body of a city acts administratively in granting special use permits. State ex rel. Manchester Improvement Company v. City of Winchester, 400 S.W.2d 47, 48[1] (Mo.1966). The same is true regarding the grant of conditional use permits. State ex rel. St. Louis County v. Jones, 498 S.W.2d 294, 299[2] (Mo.App.1973).

Appellants further argue that under § 78.060, RSMo 1969, which governs third-class cities such as Kirkwood, land use, zoning, and planning are not among the five enumerated departments to which administrative authority is delegated. Therefore, such determinations are legislative, appellants argue. This is not the case. The fact that administrative powers over land use, zoning, and planning are not delegated to an executive department means that the city council retains power to act both legislatively and administratively in this area.

Appellants’ second point is that if a 30-day requirement is to be enforced, then they “substantially complied” with it since Missouri courts have rejected “any technical interpretations of the Administrative Procedure Act.” We cannot accept this argument. In all five cases that appellants cite, the 30-day requirement was followed, but the petition in question was deficient in some other respect. The courts in each case permitted the appeal in spite of the deficiency, but all were influenced by, and commented favorably upon, the fact that the appeals were filed within the 30-day statutory limitation.

In State Board of Registration for Healing Arts v. Masters, 512 S.W.2d 150, 159[6] (Mo.App.1974), the court held that a circuit court was without jurisdiction to hear a petition for review of an agency decision not filed within the 30-day period. Clearly the 30-day period is not just a “technicality” which courts can choose to overlook. “The right of appeal is purely statutory and courts may not enlarge the period in which notice is required. Such timely notice is a prerequisite to jurisdiction.” Lafayette Federal Savings & Loan Association of Greater St. Louis v. Koontz, 516 S.W.2d 502, 504[6-7] (Mo.App.1974).

The fact that appellants proceeded under the remedy of injunctive relief is further evidence that they did not “substantially comply” with Rule 100. In State ex rel. St. Louis County v. Jones, supra, the court held that parties who objected to a proposed grant of a conditional use permit had a clear and adequate remedy at law under Rule 100 and thus could not maintain an action for injunction.

Here appellants had an adequate remedy at law as provided for by Rule 100. The appellants totally failed to comply with Rule 100 by not filing a petition for review within 30 days of the notification of the enactment of the ordinance.

Nor does the fact that appellants had instituted litigation prior to the passage of the ordinance cure the jurisdictional defect. Appellants had succeeded in obtaining a temporary restraining order on June 20, 1974. This was dissolved by agreement of all the parties on July 1, 1974, since the special use permit had not yet been granted. On July 17, 1974, appellants’ attorney was notified of the passage of the ordinance granting the special use permit, but no action against the ordinance was taken until appellants’ first amended petition was filed October 5, 1974—two and one-half months later. The June 20 action, which was before the final action of the city council, in no way satisfies the requirement that notice of appeal be filed 30 days after mailing or receipt of notice of the decision. Rather, the earlier action only demonstrates that appellants had actual notice of the action contemplated by the city council and should have been prepared to petition for review within 30 days after the decision was final. The court looks to actual notice in this type of situation. State ex rel. Pruitt-Igoe District Community Corp. v. Burks, 482 S.W.2d 75, 79[5,6] (Mo.App.1972), Cohen v. Ennis, 318 S.W.2d 310, 315-16 (Mo. banc 1958).

Finally, appellants allege that respondents “waived their respective rights” to plead the 30-day statutory requirement against appellants. They rely on the July 1, 1974, dissolution of the temporary restraining order by the stipulation of all the parties. However, the fact that within the stipulation all parties agreed “that a special use permit shall not be utilized until such time as this Court shall hear evidence on the issues presented herein . .” did not mean that appellants were released from the 30-day filing requirement after the decision to grant the special use permit became final. Appellants could have readily transformed their then pending action into a petition for review pursuant to Rule 100.04 within the 30-day period.

Furthermore, this Court has held that jurisdictional rules can be waived neither by the courts nor the litigants. In Lafayette Federal Savings & Loan Association of Greater St. Louis v. Koontz, supra, respondent had stated in writing to appellants that it would not object to the late filing of a petition for review. The court, relying on Bash v. Truman, 335 Mo. 1077, 1080[1], 75 S.W.2d 840, 842 (banc 1934), restated the following rule: “[I]t is a maxim of the law of procedure that litigants can not by consent confer jurisdiction of the subject-matter,” Lafayette, supra, at 504.

The words we stated in the Lafayette opinion are an appropriate closing here: “While we are in sympathy with plaintiff-appellant, we find nothing in the statutes or the case law in Missouri which would permit this court to waive the jurisdictional defect in the suit below. Rather, the case law and statutes prohibit this or any court from so doing.” Lafayette, supra, at 504.

The judgment is affirmed.

WEIER, P. J., and McMILLIAN, J., concur.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eugene Joseph BARNES, Jr., Defendant-Appellant.
    No. 36732.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 6, 1976.
    Motion for Rehearing or Transfer Denied May 17, 1976.
    Application to Transfer Denied July 12, 1976.

      James C. Jones, Asst. Public Defender, Kent W. Panning, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

This is an appeal by defendant Eugene Barnes from a conviction of attempted rape, a felony. Sections 559.260 and 556.-150, RSMo 1969. We affirm.

M_M_, the victim, testified that on December 4, 1973, at about 10:30 P.M., she hailed a cab at the corner of Page and Kingshighway Boulevards in the City of St. Louis; but when she told the cabdriver where she was going he refused to take her. She turned around and a man was behind her. He began talking, to her about his getting drunk that day, then said, “ ‘Bitch, put that umbrella over my head and walk just like- you are with me because . I’m going to fuck your- drawers off.’ ”. He told her that he had a gun and would kill her if she screamed. One hand was in his pocket and one around her.

The man walked her up a short alley. He made her lie down and then tore off one of her pantyhose and- pulled her panties off. Over the course of the next two and one half hours he attempted to enter her. four or five times but was unable to induce an erection. It was cold and wet, and she told him that there was an empty building across the street. He said that they would go there and that if she was lying he would kill her.

They began to cross the street at the intersection of Page and Kingshighway Boulevard. At this point the man took her purse, which contained several personal items. A truck was stopped at the intersection and Ms. M_broke away and beat on the truck, asking for help. The man hit her and said that she was “his bitch.” The truck driver, Robert Branscombe, opened the door and took her in. He then drove to the Seventh District Police Station.

Ms. M_gave the police a description of the man; the police report said: “Negro male, 40, wearing a gray or black overcoat, with a tan shirt and black trousers.” Upon receiving this information, Officer Rangel went out to search for the man. He found a person fitting the description at 5091 Page Avenue. The man, defendant, was searched and was taken to the police station. He was searched, and several items belonging to Mrs. M_were found in his possession.

Officer Rangel brought defendant back to the Seventh District Police Station and, showing him to Ms. M_, asked her if he was the one. She said “Yes.” There had been a lapse of about one-half hour from the time Ms. M_escaped from the man and the time defendant was shown to her. The truck driver, Mr. Branscombe, was also at the police station when defendant was brought in and, when asked if he recognized him, answered, “Yes.”

Later the police, at Ms. M_⅛ direction, went to the rear of 1336 Kingshighway Boulevard and found a pair of women’s panties, pantyhose, and a wine bottle.

At trial, both Ms. M_ and Mr. Bran-scombe identified defendant as the man they had seen on December 4, 1973. Defendant presented no evidence. The case was submitted to the jury on instructions which permitted, the theory that defendant, by means of threats, forced M_M_to submit to his attempts to commit the offense of rape. The court also submitted an instruction on common assault. The jury returned a verdict of guilty on the attempted rape charge. Defendant’s motion for a new trial was-overruled, and he was sentenced to ten (10) years in the Department of Corrections.

On appeal, defendant contends that the trial court erred in denying defendant’s motion to suppress the identification testimony of M— M— and Robert Branscombe, on the grounds that the confrontation at the police station was so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law under the Fourteenth Amendment to the United States Constitution. This contention must be considered in two parts: (1) Was the pretrial confrontation between the witnesses and the defendant prejudicial? (2) If so, did the witnesses have an independent basis for their in-court identification?

First, defendant alleges that the positive identifications one-on-one showup at the police station were prompted by a combination of prejudicial factors. In support of his claim, defendant cites the following circumstances: (1) the fact that defendant was shown to the witness alone, not as part of a lineup; (2) the fact that defendant was clearly under arrest and accused as her assailant; and (3) Ms. M_’s volatile state of mind at the time of the confrontation. Defendant argues that these factors created a substantial risk of misidentification.

It is not improper for the police to immediately return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before, State v. Maxwell, 502 S.W.2d 382 (Mo.App.1973) and State v. Hamblin, 448 S.W.2d 603 (Mo.1970). In Maxwell, supra at 389, the victim was brought to the scene of the arrest for the purpose of identifying an automobile found on the parking lot there. Upon his arrival he saw not only his car, but three males, “handcuffed and in police custody, standing near his ‘stolen’ automobile.” This on-the-scene confrontation between the victim and the defendant shortly after the crime was committed was not found to be unduly suggestive or unfair.

In the case at bar, the victim was taken from the scene to the police station. Within one-half hour of having escaped her assailant she was confronted by the defendant whom she positively identified as her attacker. The mere fact that this victim positively identified the defendant as her assailant does not render the confrontation at the police station suggestive nor unfair. See State v. Dodson, 491 S.W.2d 334, 338 (Mo.1973). On the basis of the evidence before the trial court we conclude that the trial court correctly ruled that the confrontation was neither unconstitutionally suggestive nor conducive to irreparable mistaken identity.

Second, defendant asserts that there was no valid independent basis for the in-court identifications. In support of his claim defendant relies on (1) dark and rainy conditions on the night of the occurrence; (2) inadequate lighting at the scene of the crime; and (3) the questionable descriptions of the witnesses. Defendant argues that the identifications made by the witnesses were simply a reaffirmation of an identification made at an emotionally charged confrontation at the police station.

When in-court identification is attacked on the ground that the pretrial identification procedures violated due process, inquiry extends to a determination of whether the procedures were unduly suggestive, and if unduly suggestive, whether there is an independent source of identification. State v. Hampton, 509 S.W.2d 139, 140 (Mo.App.1974) and State v. Parker, 458 S.W.2d 241 (Mo.1970). Even though pretrial identification procedure may have been unduly suggestive, procedure does not so offend due process as to make subsequent in-court identification inadmissible if the pretrial identification is otherwise reliable. State v. Hampton, supra.

Various factors are relevant to consider those facts which, despite the out-of-court identification, determine whether the in-court identifications had an independent basis. They include “the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.” United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149 (1967).

In Hampton, supra, the defendant contended that the lineup was a suggestive confrontation because he was the only person appearing in it who had a portion of his head shaved. He argued that the witnesses were aware of the fact that one of the robbers had been shot during the robbery, and the witnesses’ identifications may have been influenced by his shaved head. The court held that where both witnesses had an ample opportunity to view the defendant during the robbery and both stated that their in-court identification was based upon such independent observation the in-court identifications had a source independent of allegedly suggestive pretrial lineup and confrontation identification.

In State v. Grimm, 486 S.W.2d 427 (Mo.1972), the victims of sodomy attacks were in the presence of their assailants in a coffee house for twenty (20) or thirty (30) minutes, in adequate light, and later subjected to sexual attacks for two or three hours. The court in Grimm concluded that such facts demonstrated a clear and convincing independent basis for identification supporting the finding of the trial court.

In the instant case both witnesses testified in detail about their opportunity to observe the appellant, and both witnesses gave a positive in-court identification of the defendant as the attacker. The victim testified that she was first approached by the defendant at the intersection of Page Avenue and Kingshighway Boulevard. She stated that she was forced to accompany the defendant to an alleyway off of King-shighway and that once there, over a period of approximately two and one-half hours, the defendant tried to have sexual intercourse with her four or five times. The witness clearly stated that she had repeated opportunities to get a clear look at defendant’s face by the light of a nearby street lamp and the lights in the alleyway on the Sears’ property. Additionally, the witness, when she first talked to the police, described her attacker by stating that he was a black male, weighing about 200 pounds. At that time, she stated that her attacker wore a “natural” and had a beard and a mustache, and she described his clothing by giving the color of her attacker’s shirt, pants and coat. And lastly, she positively identified the defendant, in court, as the man who had attempted to rape her.

The truck driver, who gave the victim a ride to the police station following her escape from her attacker positively identified defendant as the man he saw scuffling with the victim on the night in question.

We hold that under the facts presented the in-court identifications of defendant by the witnesses had a source independent of the pretrial identification procedures so that admission of such identification testimony was proper even if there had been improper pretrial identification procedures.

Judgment affirmed.

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


text:
    STATE of Missouri, Respondent, v. Donald STEWART, Appellant.
    No. 36874.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 13, 1976.
    Motion for Rehearing or for Hearing by Court En Banc Denied May 17, 1976.
    Application to Transfer Denied July 12, 1976.

      John C. Danforth, Atty. Gen., Preston Dean, Sheila K. Hyatt, Asst. Attys. Gen., Jefferson City, for respondent.
    Robert E. Ahrens, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

This case stems from a planned payroll robbery that didn’t quite happen. A jury found defendant guilty of attempted first-degree robbery and carrying a concealed weapon. Pursuant to the verdicts the court sentenced defendant to eight years’ imprisonment on the attempted robbery charge and two years’ imprisonment on the concealed weapons charge, to run consecutively. Defendant appeals.

We first take up defendant’s contention that despite evidence of prolonged planning and preparation to rob, there was no overt act sufficient to constitute an attempt to rob. The gist of the State’s case was that defendant and three accomplices planned to rob a courier as he left a bank with payroll money, armed themselves, took their assigned positions outside the bank and as the courier left the bank the police intervened and arrested the four men.

Two basic principles apply. The first is unchallenged: Where two or more persons knowingly act together unlawfully, the act of each is the act of all in the eyes of the law. Second, the four requisite elements of an attempt to commit a crime are an intent to commit it, an overt act toward its commission, failure of consummation and the apparent possibility of commission. The challenged element here is the “overt act.” State v. Thomas, infra, that is, did the acts go beyond mere preparation and became perpetration? We take a closer look at the evidence.

The State’s principal testimony came from Raymond Jones, whom defendant had recruited as one of the robbers, and from Paul Bosch whom Jones in turn had recruited. We summarize their testimony.

Some two months before the final act, defendant Donald Stewart, a sometime bondsman and security officer, had learned that every other Thursday morning a police officer-courier left the Jefferson Bank carrying money for a police department payroll. Stewart solicited Raymond Jones to aid in robbing the courier as he left the bank. More men would be needed, so Jones recruited Paul Bosch and Guy Burroughs. The four men met often and various plans were discussed, agreed upon, and modified. Defendant Stewart supplied Bosch and Burroughs with pistols and ammunition. By one of the plans Burroughs, the look-out man, was to be armed with Stewart’s carbine rifle and cover the robbery from a nearby rooftop to prevent interference. The final plan was for Jones and Bosch, with drawn pistols, to intercept the courier as he moved from the bank toward his car in an adjoining parking lot, then to rob and disable him. Burroughs was to protect Jones and Bosch from action by the bank’s guard stationed in a building on the parking lot and was to take whatever action necessary to prevent the guard from the interfering or pursuing. Meanwhile, defendant was to wait a block away in his parked car with motor running, in full view of the robbery, drive up, get Jones and Bosch, and escape.

From time to time the four men “cased the joint” and made “dry runs.” (On one occasion they headed for the bank intending to carry out the robbery but their plans aborted when the car ran out of gas.)

The final plan was to rob the the courier on February 21, 1974. Meanwhile, treachery had crept in. Paul Bosch decided to drop out and for reasons of his own told St. Louis police in detail of the plot and its planning. In turn, police put Stewart, Jones and Burroughs under surveillance and got regular telephone reports from Bosch about preparations for the robbery. The police made detailed plans to thwart the robbery. On the morning of February 21 sixteen policemen were stationed in, around and atop the bank, most in civilian clothes. They had alerted the courier to the plot.

At the appointed hour defendant Stewart, Jones, Bosch and Burroughs drove to the bank and saw the courier’s car in the parking lot. Each took his planned position, Jones and Bosch some sixty feet from the bank door, ready to intercept and rob the courier as he headed for his parked car with the payroll money. The courier left the bank door toward his parked car, but had walked only fifteen feet when, on signal from the police officer in charge, the police arrested all four “subjects.” None had yet drawn a weapon nor threatened the courier.

We revert to the four requisite elements of an attempted crime. Here, there was clear evidence of intent to rob, of the possibility of robbing and of failure of consummation. The challenged element is the overt act. In 21 Am.Jur.2d, Criminal Law, at § 111, it is pointed out that “no definite line can be drawn” between preparation and the overt act necessary to constitute criminal attempt, but “it may be said that preparation consists in devising or arranging the means or measures necessary for commission of the offense and that the attempt is the direct movement toward the commission after the preparations are made.” Cases cited infra, support this.

Although Missouri cases state principles governing attempts, none is so factually similar to precisely solve the issue here. We adopt the general principles of State v. Thomas, 438 S.W.2d 441[5-11] (Mo.1969): “An ‘attempt’ is an intent to do a particular thing which the law has declared to be a crime, ‘coupled with an act towards the doing, sufficient, both in magnitude and in proximity to the fact intended, to be taken cognizance of by the law, that does not concern itself with things trivial and small. Or, more briefly, an attempt is an intent to do a particular criminal thing, with an act towards it falling short of the thing intended.’ . . . To be found guilty of an attempt to commit a crime there must be some overt act in part execution of the intent to commit the crime, which falls short of the completion of the crime, which overt act must move directly toward the consummation of the crime. Mere preparation is not sufficient to constitute an attempt to commit a crime. The defendant must have taken steps going beyond mere preparation, by doing something bringing him nearer the crime he intends to commit. 22 C.J.S. Criminal Law § 75(2), p. 231. The act need not, however, be the ultimate step toward, or the last proximate, or. the last possible, act to the consummation of the crime attempted to be perpetrated.”

These principles in Thomas were applied where the State charged defendant with attempting to cash a bogus check. Defendant gave a storekeeper a false name, falsely claimed he was an employee of the maker, identified himself by a forged driver’s license, and presented the check for cashing. He was arrested and contended on appeal he was not guilty of an attempt to pass the check since he had not committed an overt act by endorsing the check. Denying this contention, the court said: “It is reasonable to conclude that but for the alertness of the store’s representatives the crime would have been consummated; that there was no inherent impossibility but rather an apparent possibility of committing the crime; that the intervening circumstances which thwarted the consummation of the crime occurred as a result of the actions of third parties, acting apart from and independent of appellant’s will and control. Appellant’s acts went beyond mere preparation; they went far enough toward the eventuality of obtaining the cash so as to cross the line which divides criminal intention from criminal attempt.” See also Comments on MAI-CR, Attempts, pp. 2-5.

We also look beyond Missouri decisions for answers to the question: What acts constitute an attempt? A logical factor is the proximity to the crime’s completion. The Model Penal Code is enlightening. At §§ 5.01 and 5.02 it declares one guilty of attempt who purposely does an act constituting a substantial step planned to culminate in committing the crime.

Each case must be considered in the light of its own facts, and the problem is to determine at what point a defendant’s acts go beyond preparation and are in the nature of perpetration.

Other courts have considered cases factually similar to our problem and determined what acts have gone beyond preparation and become criminal perpetration.

In People v. Stites, 75 Cal. 570, 17 P. 693 (1888), the defendant and an accomplice intended to place a home-made bomb on a streetcar track. Defendant made the bomb and started with it to meet his accomplice at the planned place but was arrested in route. Upholding conviction for attempted bombing, the court reasoned: “Before he left house he was already fully prepared, and carried with him the instrument he was to use in effecting the crime he intended; nothing, in fact, remained for him to do but deposit it on the railway, at the time easily within his reach.”

In Stokes v. State, 92 Miss. 415, 46 So. 627 (1908), the defendant paid a gunman to kill his victim. The defendant procured a loaded pistol and after dark went with the gunman to the intended place of ambush, where they expected the victim to appear. Police arrested defendant as he handed the pistol to the gunman. Although the victim had not yet appeared, the court upheld defendant’s conviction for attempted murder.

In Bell v. State, 118 Ga.App. 291, 163 S.E.2d 323 (1968), the court upheld the sufficiency of an indictment charging that defendant intended to destroy a place of business and entered thereon with dynamite in his possession. Without specifically distinguishing between preparation and perpetration, the court viewed the indictment in the light of Georgia’s statutory definition of attempt as “any act toward the commission of such crime.” The court held that “it is sufficient if there is an act done in pursuance of the intent, and more or less directly tending to but falling short of, the commission of the crime.”

In People v. Gibson, 94 Cal.App.2d 468, 210 P.2d 747 (1949), the defendant intended to burglarize a store. Late at night when walking down an alley carrying a ladder and a sack of burglar tools he was arrested near the store. On appeal for attempted burglary, the court illustrated the principle of attempted crime: “When a man threatens to kill his neighbor then (1) buys a gun and (2) conceals himself on the neighbor’s premises, his two acts are clearly done in furtherance of his declared purpose.” Having thus distinguished the elements of preparations and perpetration, the court upheld defendant’s conviction for attempted burglary, saying: “Slight acts in furtherance of a criminal purpose . . are sufficient [to constitute an attempt] when they constitute a direct movement towards the consummation which was prevented by an agency inhibitive of the offense.”

In People v. Gormley, 222 App.Div. 256, 225 N.Y.S. 653 (1927), the court upheld an attempted robbery conviction where defendants were found armed and lurking near a bank, intending to rob a messenger, but before the messenger appeared police arrested them. The court upheld defendants’ conviction for attempted robbery.

These out-of-state cases upheld convictions based on an overt act, that is, an act going beyond preparation and constituting perpetration. Better to view the case before us, we contrast these out-of-state convictions with hypothetical cases that do not constitute attempts because they do not go beyond preparation. We quote Perkins Criminal Law, Second Edition, page 560: “A, intending to murder X, conceals a long dagger in his clothing and goes out to discover where X may be found. A is arrested on a charge of attempting to murder X before receiving a lead as to X’s whereabouts. . B also intends to murder X but has a different plan. He has prepared some poisoned candy, knowing X is very fond of that kind, and intends to send it to X. B is arrested on a charge of attempted murder while the poisoned candy is still in his possession. . C has placed combustibles in X’s dwelling house intending to return and set the fire at a later time. He is arrested on a charge of attempted arson while at his own home waiting for the appropriate moment. . D intends to break into X’s house at midnight and steal certain valuable goods kept there. With this in mind he has procured an effective set of burglar’s tools, but is arrested in his own home about noon on a charge of attempted burglary. E has obtained some counterfeit foreign treasury notes which he intends to pass as genuine. He received them late at night with no thought of using them until the following day. He is arrested that night on a charge of attempting to utter counterfeit foreign securities.”

These examples of no attempt each show a negative factor precluding conviction. We find no such negative factors in our case.

We must now evaluate our case, applying the general principles recited above in State v. Thomas, 438 S.W.2d 441[5-11] (Mo.1969), and considering the applications of those principles in the out-of-state cases cited above. So considered, we hold that when defendant Stewart and his three accomplices conspired to rob the courier, agreed upon detailed plans as to where, when and how each man was to do his part and escape, then armed themselves with deadly weapons — all this might be considered mere preparation. But when the four men drove to the bank, alit and took up their assigned positions, then being armed, ready, willing and able to intercept, assault and rob the courier, they had then gone beyond mere preparation. This conduct, under the principles announced in Thomas, supra, was “an act towards the doing, sufficient, both in magnitude and in proximity to the fact intended, to be taken cognizance of by the law . . .

We hold the evidence supported the charge of attempted robbery.

Having denied defendant’s challenge to the sufficiency of the evidence, we look to his contention the trial court erred in admitting into evidence a carbine rifle discovered by a warrantless search of his getaway car some hours after defendant’s arrest when police had towed the car to a garage.

The State admits the carbine rifle was not seized as an incident to defendant’s arrest, but contends the police had reasonable cause to believe defendant’s car contained material evidence of the attempted robbery. Defendant had supplied his accomplices with pistols and shotguns and at one point Guy Burroughs had defendant’s carbine rifle. Police knew that at one of the early planning sessions defendant had planned that at the robbery Guy Burroughs would be on a rooftop with the carbine to prevent interference with the robbery. Since defendant’s automobile was an instrumentality of the attempted crime, its search was a valid step in investigating the robbery and preserving evidence pertinent to it. State v. Barngrover, 513 S.W.2d 751[1, 2] (Mo.App.1974), and see Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975). We find no prejudicial error concerning the carbine rifle.

Concerning the charge of carrying a concealed weapon, defendant contends the court erred in admitting into evidence the pistol police took from him as he sat in his getaway ear. Defendant concedes the taking was incidental to his arrest but contends the arrest was improper since an attempted robbery was not proven. We have ruled against defendant on his premise, so his conclusion falls.

Judgment affirmed.

McMILLIAN and RENDLEN, JJ., concur.

      . Or public service in the eyes of the police.

      . For a discussion and illustrations of the distinction, see Perkins, Criminal Law, Second Edition, pp. 557-561.


text:
    Lowell COCHRELL, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36973.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 13, 1976.
    Motion for Rehearing or Transfer to Court En Banc or Transfer to Supreme Court Denied May 17, 1976.
    Application to Transfer Denied July 12, 1976.

      James C. Jones, Asst. Public Defender, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant Lowell Cochrell appeals denial of his 27.26 motion based on his conténtion of inadequate assistance of counsel. A jury had found Cochrell guilty of statutory rape and the trial court sentenced him as a second offender to 35 years’ imprisonment. That conviction was affirmed on appeal. State v. Cochrell, 492 S.W.2d 22 (Mo.App.1973).

At the original trial defense counsel attempted to draw from a police officer, the State’s witness, a self-serving alibi statement made by the defendant. Because of defendant’s prior convictions, counsel had decided not to adduce this exculpatory evidence by placing his client on the witness stand. The strategy backfired.

Defense counsel testified he had read the police report in the case which stated: “At this time Cochrell made the statement that he was drinking with an unknown Negro male at an unknown location on Kingshigh-way and that he was walking to work when stopped. He stated further he knew nothing about the incident.” Hoping to elicit this statement from the police officer, defense counsel asked, “What did he [the defendant] say?” The response was, “He stated that he knew all this and he didn’t like being stopped and he didn’t want to make any statements at all because he had been through it before and they convicted him before ... for the same thing . ” Counsel dropped this line of questions immediately trying not to emphasize its damaging effect.

Movant contends his conviction should be vacated because counsel ineptly prepared the case, failing to adequately investigate. Defense counsel testified he had not taken the policeman’s deposition or interviewed him informally. This, because he did not want to alert the prosecution to his client’s exculpatory remark in the police report. This was a matter of trial strategy. The Sixth Amendment right to counsel requires representation which will seriously strive to investigate and prepare a criminal defendant’s case for trial, but failure to investigate a particular facet of a case does not per se constitute a violation of that principle. Thomas v. State, 516 S.W.2d 761[1] (Mo.App.1974). The question is whether the circumstances of the case warrant an investigation. Floyd v. State, 518 S.W.2d 700[11-12] (Mo.App.1975).

In this case defendant had told counsel he had made no statement to the police. We cannot fault defense counsel for relying on defendant’s statement.

There is a “too prevalent idea that counsel is ‘ineffective’ in the constitutional sense unless he obtains an acquittal, and that hindsight should be the standard to determine the competency of counsel. In the preparation of a case a lawyer is not required to be clairvoyant, and he must of necessity rely on information furnished him by his client.” Johnson v. State, 479 S.W.2d 416[6] (Mo.1972).

This case is similar to the situation in Barker v. State, 505 S.W.2d 448[9, 10] (Mo.App.1974). On that 27.26 motion, the mov-ant contended vacating his conviction would be proper because trial counsel failed to interview a particular patrolman or move for the disclosure of any exculpatory statements made by defendant. There, as in our case, defendant told his attorney he had made no statement to the police. The court affirmed the denial of the motion, saying “the fact that appellant’s attorney was surprised by testimony of the incriminating statement was due to the understandable reliance upon what his client, the appellant, had told him.”

Thomas, supra, relied upon by movant, is factually dissimilar in that the defendant there did make his attorney aware of facts requiring investigation.

Judgment affirmed.

DOWD and STEWART, JJ., concur.