author: SWOFFORD, Chief Judge.

text:
    ROZANSKY FEED COMPANY, INC., Appellant, v. MONSANTO COMPANY and General Host Corporation, Respondents.
    No. KCD 29822.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Ernest H. Fremont, Jr., Wm. Dirk Van-dever, Popham, Conway, Sweeny, Fremont & Bundschu, Kansas City, for appellant.
    Lyman Field of Field, Gentry, Benjamin & Robertson, Kansas City, for respondent Monsanto Co.
    J. Eugene Balloun and L. Franklin Taylor of Payne & Jones, Olathe, Kan., David R. Frensley of Ryder, Skeer, Rose & Frensley, Kansas City, for respondent General Host Corp.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

This is an action for damages arising from the sale, distribution and use of a chemical substance, polychlorinated biphe-nyls, known under the trade name of “Ther-minol” and referred to here as PCB. The court below dismissed this Missouri action upon the doctrine of forum non conveniens and this appeal followed. The scope of appellate review, therefore, is strictly limited to a determination of whether or not by so acting the trial court abused its discretion. State ex rel. Chicago, Rock Island and Pacific Railroad Company v. Riederer, 454 S.W.2d 36 (Mo. banc 1970); Elliott v. Johnston, 365 Mo. 881, 292 S.W.2d 589 (1956); Loftus v. Lee, 308 S.W.2d 654 (Mo.1958). The facts bearing upon this review, as pleaded in Plaintiff’s Second Amended Petition, are substantially undisputed.

Plaintiff, Rozansky Feed Company, Inc., is a New Jersey corporation and has its principal place of business in that state. It manufactures a dried bakery product referred to in the record as “wafer meal”, which was sold to grain mills in the east, including a pair of grain mill cooperatives in New York, Agway, Inc. and Inter-County Farmers Cooperative Association, Inc. These mills used Rozansky’s wafer meal to manufacture poultry feed. Agway also sold this feed to the Jurgielewicz Duck Farms in New York, where it was fed to its ducks. This firm in turn sold the duck by-products (entrails, beaks, etc.) to the Bethlehem Mink Farm, Inc. and Jubilee Food Supply, Inc. and other mink farmers in the east where the mink were fed this by-product.

Defendant Monsanto corporation is incorporated in Delaware with its principal place of business in St. Louis, Missouri, where it is engaged in the manufacture of various types of chemicals which it distributes throughout the United States, including PCB.

Defendant General Host Corporation is a New York corporation and is engaged in the manufacture and sale of baking products throughout the United States, including Jackson County, Missouri. In 1970 and 1971, Monsanto sold PCB to the Bond Bread company in Brooklyn, New York, a division of the General Baking Company, which was later acquired by defendant General Host. PCB was used by Bond Bread to conduct heat from its boilers to deep fat fryers used to cook, doughnuts. Bond Bread sold its waste bakery products to plaintiff Rozan-sky, and such products were then used by plaintiff to manufacture its wafer meal for sale to the mills for use in the manufacture of poultry feed.

On or before January 1, 1970, Monsanto learned that PCB was toxic to all forms of human and animal life and subsequently Monsanto announced that it was going to discontinue the production and distribution of PCB. However, it is alleged that, conspiring with General Host, it continued to sell PCB to Bond Bread for use in its New York plant, as above described. It is plaintiff’s claim that sometime during 1970, a leak developed in the heat transfer system at Bond Bread so that the waste bakery products which it sold to plaintiff became contaminated as a result of which the wafer meal which the plaintiff sold to the mills, the poultry feed made by the mills and sold to its poultry farm customers, and the duck by-product sold by Jurgielewicz Duck Farms to mink farmers — all became contaminated by toxic PCB.

The result of the use of this feed was that poultry became sterile or died, as did the mink, as a result of ingestion of duck by-product. Litigation resulted, all in eastern forums.

The mink farmers sued Jurgielewicz, Ag-way, Rozansky and Monsanto in the United States District Court in New Hampshire wherein the defendants filed various cross-claims and a judgment was entered in that case for $1,026,400.00 plus interest and costs in favor of the mink farmers.

Poultry and egg farmers, customers of Inter-County Farmers Cooperative Association, sued it in Sullivan County, New York. By means of third party practice, Inter-County brought in Rozansky, and Rozansky brought in Monsanto and General Host in that action.

Agway also sued Rozansky in New York for feed it was forced to destroy and Rozan-sky brought Monsanto and General Host, through the vehicle of third party practice, into that suit, pending in Ulster County, New York.

A procedural issue is raised by the appellant (Point III) that the trial court erred in dismissing the plaintiff’s petition because it improperly granted leave “for renewal or reargument of defendants’ motions to dismiss” where the original ruling was proper and based upon controlling decisions and no new facts or facts unknown or unavailable at the time of the original ruling were presented. This point should be disposed of at the outset of this decision and the record facts dispositive of it must be summarized.

It is noted at the outset that the forum wherein this suit was filed is the Sixteenth Judicial Circuit of Missouri, comprised of all of Jackson County, Missouri. It is a multiple judge circuit, now having seventeen separate divisions. At the time this suit was filed, it was assigned to Division No. 10, presided over by Judge Harry Hall. While that court had jurisdiction over the case, the defendants filed their separate motions to dismiss; plaintiff thereafter filed its second amended petition; the defendants renewed their motions to dismiss; and, thereafter, defendant General Host amended its motion to include the ground of forum non conveniens. These motions were briefed and argued before Judge Hall and on December 14,1976, he overruled General Host’s amended motion to dismiss, and on December 15, 1976 he overruled its original motion to dismiss. On January 1, 1977, Judge Hall retired and left the Bench without making any order as to defendant Monsanto’s motion to dismiss. The case was then assigned for further handling to Division No. 7, Judge Donald B. Clark. Thereupon, General Host filed its motion for a rehearing on its amended motion to dismiss and Monsanto was granted leave to file an amended motion to dismiss stating the ground of forum non conveniens. The issue of forum non conveniens was again briefed and argued before Judge Clark. In connection with this, Monsanto offered statistics reflecting the case load of the state and federal courts in Jackson County, Missouri. The record contains a letter from Judge Hall to Judge Clark in which he states that at the time he overruled General Host’s motion to dismiss, he intended to also overrule the Monsanto motion. Judge Hall made no findings of fact or conclusions of law at the time of his ruling.

The thrust of appellant’s argument on this point is that it is “black letter” law that motions which a judge fails to rule are deemed to have been denied by operation of law and that obviously Judge Hall had not ruled Monsanto’s motion, and it was therefore denied. An Arizona authority is cited, Atchison, Topeka and Santa Fe Railway Company v. Parr, 96 Ariz. 13, 391 P.2d 575, 577 [1] (1964). Based upon that premise, the appellant asserts that Judge Clark’s consideration of these motions was an unjustified and improper permission to renew or reargue, without a showing that any material factual matter had been overlooked, and lacking the support of new grounds or evidence. Appellant cites in support of this argument a New York decision, Cisco v. Lavine, 72 Misc.2d 1087, 341 N.Y.S.2d 719 (1973).

This position of appellant is not valid and the authorities cited are not persuasive in the case at bar. Missouri does not follow the doctrine that a motion once ruled upon cannot be reconsidered even in the absence of the matters appellant claims are lacking here. The case of State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 232 [5] (Mo. banc 1969) states the Missouri rule explicitly in these terms:

“Logic and justice would seem to indicate that a trial court should be permitted to retain control of every phase of a case so that it may correct errors, or, in its discretion, modify or set aside orders or judgments until its jurisdiction is extinguished by the judgment becoming final and appealable.” (Emphasis added)

To follow the view urged here by appellant would mean that a trial court could never correct what it ultimately concludes to have been a mistaken judgment even when its jurisdiction over the case remains intact. Such a doctrine would militate against the practical and effective administration of justice.

When this case was transferred to Judge Clark’s division of the Circuit Court upon Judge Hall’s retirement, he assumed complete jurisdiction over the whole case and responsibility for the processing of it at the trial level, and his jurisdiction, authority and responsibilities were identical and coextensive with those originally lodging with Judge Hall. Under Schweitzer, Judge Hall could have acted, had he remained responsible for the litigation, in the same manner as did Judge Clark. This does not involve any consideration of conflict of jurisdiction or comity involving these divisions of the court. Both divisions were and- are part of the same court.

It is concluded that Judge Clark had the power to order a rehearing of General Host’s motion to dismiss and the duty to rule on such motion and that of Monsanto (which had never been ruled by any court). No abuse of discretion appears and Point III is ruled against appellant.

Appellant’s Points I and II are both addressed to the propriety of the trial court’s application of the doctrine of forum non conveniens and therefore are considered together.

The doctrine has been recognized and applied in Missouri courts. Elliott v. Johnston, supra; Chicago, Rock Island and Pacific Railroad Company v. Riederer, supra; Loftus v. Lee, supra; and other decisions. In foreign transitory non-statutory tort actions, such as the case at bar, the decision of a trial court to apply or not to apply the doctrine clearly rests within the sound discretion of that court to be exercised against the background of the facts of the specific case. As the court said in Elliott v. Johnston, 292 S.W.2d 589, 593 [4] (Mo.1956):

“ * * * The parties are all nonresidents, the actions or claims are upon a foreign transitory nonstatutory tort and the court had the inherent discretionary power to retain or to decline jurisdiction of these actions transplanted from their ‘natural forum,’ and the meritorious question is whether in the particular circumstances the forum is inappropriate and whether the court abused its discretion. * * * >>

The factors or guidelines to be considered by the trial court in the exercise of such discretion when confronted with a forum non conveniens problem were later clearly stated and defined in State ex rel. Chicago, Rock Island and Pacific Railroad Company v. Riederer, 454 S.W.2d 36, 39 [1] (Mo. banc 1970), where the court said:

“ * * * Those factors include place of accrual of the cause of action, location of witnesses, the residence of the parties, any nexus with the place of suit, the public factor of the convenience to and burden upon the court, and the availabili- • ty to plaintiff of another court with jurisdiction of the cause of action which affords him a forum for his remedy. * * ”

See also: Campbell 66 Express, Inc. v. Thermo King of Springfield, Inc., 563 S.W.2d 776 (Mo.App.1978).

It is apparent from the Memorandum and Order on Defendants’ Motions to Dismiss that the trial court carefully and thoroughly found the operative facts, as above stated in this opinion, and applied the guidelines set forth in Riederer and concluded that the case in Missouri should be dismissed forum non conveniens. In so doing, the court below properly found that except for the fact that Monsanto had its principal office in Missouri and that General Host was licensed to and did business in Missouri and thus both were subject to suit in Missouri, that it was obvious that the case had little, if any, “nexus” with Missouri and its courts.

No useful purpose would be here served by reiteration of the obvious validity of that result under the facts of this case. The trial court acted within its inherent power and no abuse of that discretion appears.

The judgment is affirmed.

All concur.

CLARK, J., not participating.


source: Caselaw Access Project

author: ROBERT R. WELBORN, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jerry Lynn SCILAGYI, Appellant.
    No. 29836.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Lane L. Harlan, Timothy C. Harlan, Boonville, for appellant.
    John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, and SWOFFORD, C. J., and WEL-BORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

A jury in the Cooper County Circuit Court found Jerry Lynn Scilagyi guilty of burglary in the second degree and stealing in connection therewith. Acting under the second offender law, the court fixed the punishment at seven years’ imprisonment for the burglary and three years for the stealing, the sentences to run consecutively. Judgment was entered accordingly and this appeal followed.

In April, 1977, Don’s Amusement Enterprises, Inc., was operating a carnival in the Boone Village Shopping Center in Boon-ville.

On April 13, 1977, Donald Forcier, president, treasurer and general manager of Don’s Amusement Enterprises, Inc., went inside the carnival trailer office at around 1:30 or 1:45 P.M. Everything was in order when he left after a few minutes, locking the outside door with a padlock. When he returned to the trailer shortly after 2:00 P.M., he discovered that the office had been broken into. A file cabinet drawer was open and a cash bag that had been on the floor was missing. The bag had contained primarily nickels and dimes and had been about three fourths full. Forcier did not know how much money was in the bag.

Forcier went out and found all the members of his crew except Jerry Lynn Scilagyi were on the lot. Scilagyi had been hired by Forcier a few days previously before the carnival got to Boonville. While Forcier was out of the trailer he had seen Scilagyi “prancing across the shopping center parking lot, headed toward the Pizza Hut,” at about 2:10 P.M.

At a little after 3:00 P.M., April 13, James Russell Bridgewater, a taxi driver, picked Scilagyi up at the Pizza Hut and took him to a trailer in the carnival area. Scilagyi got out of the cab, went behind a trailer and returned carrying clothes on hangers and a white laundry bag. Scilagyi asked Bridgewater the fare to Columbia and was told it was $15.00. He asked Bridgewater to take him to the Hall Way Club, located next door to the cab office. This was done, Scilagyi got out of the cab and took his things with him. Ten minutes later, he appeared at the cab office and asked Bridgewater to take him to Columbia. Scilagyi put his clothes in the rear of the cab and a sack containing a six pack of beer on the floor of the front seat. He sat on the passenger side of the front seat.

As the cab drove toward Columbia, it was stopped by Boonville police. The officers ordered Scilagyi out of the cab, handcuffed him, and took his clothing from the cab. Bridgewater handed the police the sack containing the beer. Scilagyi was put in the police car. When Bridgewater went back to close the door on the passenger side of the cab, he saw something sticking out from underneath the front seat of the car. He pulled it out and found it was a green money bag. He handed the bag to the police officer. When the contents were examined and counted, it was found to contain $98.45 in nickels, dimes and quarters. Forcier identified the bag found in the cab as the one missing from the trailer office.

The foregoing is essentially the evidence relied upon by the state at the trial of Seilagyi on the burglary and stealing charge. Appellant’s first point is that the evidence is insufficient to sustain the conviction. His position is that the state’s case rested upon appellant’s possession of recently stolen property and that there was no evidence of exclusive possession of the property by appellant; that the best the state’s evidence showed was joint possession by appellant and Bridgewater and that when proof is based upon joint possession, “ * * * there must be something else in the evidence to connect the defendant with the offense.” State v. Pruett, 522 S.W.2d 823, 824 (Mo.App.1975). Appellant’s argument overlooks Bridgewater’s testimony that he had never seen the bag before he noticed it under the seat. In viewing the sufficiency of the state’s evidence, that testimony must be taken as true and Bridge-water’s ignorance of its presence in the cab would exclude his conscious and knowing possession of the bag, although it was in his cab. Therefore, the case is not one for review under principles pertaining to joint possession.

A more difficult question arises in appellant’s contention that a trailer such as that involved in this case cannot be the object of a burglary under Section 560.070, RSMo 1969, since repealed, Laws of Mo.1977, p. 658, § 1. That section provided:

“Every person who shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree, or any booth or tent, or any boat or vessel, or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal or commit any crime therein, shall, on conviction, be adjudged guilty of burglary in the second degree.”

The carnival office was in a 40-foot semitrailer, parked at the shopping center. An eight to ten-foot area in the rear of the trailer contained the files and records of the operation, kept in cabinets. Next to that area was a lounge, in which there was a couch which opened into a bed, a couple of chairs and a bar. There was a bedroom facility adjoining the lounge area and in the front of the trailer was a conference room. Forcier was “staying” in the trailer while the carnival was in Boonville. The trailer was on wheels and moved from place to place with the carnival. It was not equipped for water or sewer hookup.

In State v. Ryun, 549 S.W.2d 141 (Mo.App.1977), this court upheld a conviction of burglary of a dwelling house where the structure involved was a “typical mobile home building” which had been moved in place and remained there three years and had been used during that time as the sole place of abode of its residents. The court took note of the fact that the building had been “skirted” from floor to ground to block drafts and that it was connected to an electric power line. 549 S.W.2d 144. The structure thus had attained some degree of permanence of location. Whether, other than the fact it was apparently moved on its own wheels, the structure embodied characteristics of a “trailer” as that object is defined in the motor vehicle laws, Section 301.010(29), RSMo 1975 Supp., does not appear.

In this case, the instrumentality involved was designed and used to travel on the highways, remaining at one location only for the time that the carnival stayed there. According to Forcier, the carnival usually moved once a week in the spring and twice a week in the summertime. The record does not show how long the carnival had been in Boonville but it did leave, going to Macon. The state introduced in evidence the certificate of title to the trailer. That document is required of trailers subject to the motor vehicle laws. § 301.190, RSMo 1969. When asked whether or not the trailer was “skirted,” Forcier said it had a “possum belly,” an enclosed compartment fastened underneath it which traveled as a part of the trailer.

If this conviction is to stand, it must be on the basis that the trailer was a “building” within the meaning of Section 560.070. The appellant emphasizes the lack of any degree of permanency of the modification used to make the trailer immobile. In this case, the only thing that had been done was to detach the tow vehicle and there had been no modification of the trailer to make it immobile.

Respondent asserts that the mobility of the structure is not significant and that the statute was intended to be inclusive of “a broad range of structures” and aimed primarily at the protection of the property within a structure rather than the structure itself.

However, a fundamental rule of construction in criminal law is that statutes defining crime must be construed liberally in favor of the defendant and strictly against the state. State v. Kayser, 552 S.W.2d 27, 29 (Mo.App.1977). Any fair doubt as to the meaning of the statute must be resolved in favor of the accused. State v. McClary, 399 S.W.2d 597, 598-599[1-3] (Mo.App.1966).

Webster’s Third International Dictionary (1961) defines “building” as follows: “a constructed edifice designed to stand more or less permanently, covering a space of land, usu. covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure— distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy * * *.”

That the legislature had such meaning in view in the enactment of Section 560.070 is apparent from the specific inclusion of boats, vessels, railroad cars, tents and booths. The respondent argues that the statute applies to “edifices and structures of the same nature and kind as the specific terms” and that the generic term “any building” necessarily included types that might be invented in the future. However, the specification of removable structures or instrumentalities as the subject of burglary is clearly indicative of the fact that such structures were not within the generic term “any building.” To extend the statute to apply to movable structures or instrumen-talities not enumerated would require implication inimical to the rule of strict construction. The fact that the same reason might apply for prohibiting breaking and entering of a trailer as a railroad car affords no reason for extension of the statute beyond its terms.

Cases from other jurisdictions are not particularly helpful, inasmuch as the language of the particular statute is of major significance. In State v. Ryun, supra, the court did cite with approval State v. Ebel, 92 Mont. 413, 15 P.2d 233 (1932), in which a movable sheep wagon occupied by a sheep herder as his dwelling was held to be a “house” and “building” within the burglary statute there involved. Respondent relies upon that holding in this case. Other than the fact that the structure was erected on a “wagon” and was “portable,” there is no reference to what, if any, extent the structure there involved had acquired permanence in its location. The court was satisfied that the structure was a “dwelling house” because it was used for the purpose of habitation and housing the goods and chattels of the sheep herder and was enclosed by four walls, roofed over. The court said that the structure met the requirements of a “building.” 15 P.2d 235.

In Sanchez v. People, 142 Colo. 58, 349 P.2d 561 (1960), the court found that a telephone booth was a “building” within the statute there involved. Of interest is the following comment of the court regarding a 1957 amendment of the statute which defined burglary in terms of entry with felonious intent into “ ‘ * * * any building, railroad car, or trailer * * ” (349 P.2d 561-562):

“It seems obvious that the legislature, in adopting the amendment in question, sought to have one overall generic term, i. e., ‘building’ encompass not only the variety of structures it had listed before, but also to cover all types of structures known but not then included and possibly other types which might be invented in the future. Since a building is generally considered to be an edifice, erected by art, and fixed upon or over the soil (1 Bouv.Law Diet. Rawle’s Third Revision, p. 400), the legislature in 1957 wisely left in the statute ‘railroad car(s)’ and added ‘trailer(s)’ since these objects generally are not stationary and because trailers have been developed since the original act was adopted. Thus now all stationary structures within Colorado, no matter of what substance they may be constructed, are within the term building, so long as they are designed for use in the position in which they are fixed. As a separate class it provided that both railroad cars and trailers, which were in widespread use in 1957 both as dwellings and for the storage or carriage of personal property, were included as the subject of burglary.”

Commonwealth v. Mayer, 240 Pa.Super. 181, 362 A.2d 407 (1976), held that a completed house trailer, stored on a lot, was a “building or occupied structure” within the meaning of the Pennsylvania burglary statute. However, “occupied structure” was defined as “[a]ny structure, vehicle or place adapted for overnight accommodation of persons * * *.” 18 Pa.C.S. § 3501. The question thus presented in that case was whether or not the house trailer was adapted for overnighf accommodation of persons.

In connection with that case, it may be noted that the Revised Missouri Criminal Code which became effective January 1, 1979 (Laws of Mo.1977, p. 658) defines burglary in terms of unlawful entry of “a building or inhabitable structure.” § 569.-160 and § 569.170, pp. 694-695. The term “inhabitable structure” is defined as including “a ship, trailer, sleeping car, airplane, or other vehicle or structure” where any person lives or carries on a business. § 569-010(2)(a), p. 692.

In State v. Warner, 187 Neb. 335, 190 N.W.2d 786 (1971), the structure involved was a 60-foot trailer which had been divided into three offices and a cashier’s cage. “A fiber glass skirt had been placed around the base of the trailer, and wrought iron stairs erected at the entrance. The trailer was wired for electricity and equipped with a burglar alarm.” 190 N.W.2d 787. The court held that the jury could find that the trailer was in fact a building. It also noted that the statute made an “office” the subject of burglary.

Appellant relies upon People v. Matusik, 63 Mich.App. 347, 234 N.W.2d 517 (1975). In that case, the question was whether or not a 1961 or 1962 Chevrolet van, used to store auto parts, with doors and fenders attached, all wheels in place but with all tires flat, old license plates and a motor which was complete but which the owner had never tried to run, was a “building” within the burglary statute or a motor vehicle within the statute prohibiting unauthorized entry of “motor vehicles.” The court, relying upon State v. Ridinger, 364 Mo. 684, 266 S.W.2d 626 (1954), concluded that the inoperable condition of the van did not foreclose its being a “motor vehicle.” The court then stated (234 N.W.2d 519):

“The mere fact that the van could not be taken out and immediately driven does not necessarily make it a ‘building’.

“[3, 4] It is not the fact that a vehicle is immovable that makes it a ‘building’, but the permanency of the modifications used to make that vehicle immovable. For example, the Court in People v. McLaughlin, 156 Cal.App.2d 291, 319 P.2d 365 (1957), held that an old passenger bus converted into an office was a ‘building.’ In that case, the wheels had been removed, and the bus sat on concrete blocks. It is clear that the difficulty of converting the structure back into an operating bus led the Court to decide that it was a ‘building’. See also, State v. Warner, 187 Neb. 335, 190 N.W.2d 786 (1971), where a trailer was held to be a ‘building’. There, the trailer was set on a concrete base surrounded by a fiberglass skirt, had an attached stairway, and was wired for electricity.

“[5] We hold that the Chevrolet van here was a ‘motor vehicle’ and not a ‘building.’”

Given the language of the statute under which the appellant was charged with burglary, the contention that the structure involved was not within those covered by the statute must be sustained. This case is distinguishable from State v. Ryun, supra, on the basis of the modification of the structure there involved, designed to make its location to some extent permanent and the fact that it had been located for three years at one location and used as the sole dwelling place of its residents.

The respondent’s contention that, under State v. Ryun, supra, the charge here could have been that of burglary by entering a “dwelling house,” and therefore the conviction should be upheld, is without merit. Regardless of the application of State v. Ryun in such case, the appellant was not charged with burglary of a dwelling house and that charge was not submitted to the jury. To uphold the conviction on that basis would ignore the basis upon which appellant was tried and convicted.

The evidence would support a charge of stealing. However, the stealing was charged in connection with a burglary and the reversal of the burglary conviction requires that the stealing conviction also be reversed. State v. Cline, 447 S.W.2d 538 (Mo. banc 1969).

Reversed and remanded.

All concur.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Felix BRIGGS, Appellant.
    No. KCD 29885.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Clyde E. Rogers, Public Defender, Moberly, for appellant.
    John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Felix Briggs was convicted of escape from custody, § 557.351, RSMo 1975 Supp., and sentenced to three years confinement. On this appeal Briggs contends (1) he was denied a speedy trial because of delay in serving the warrant for his arrest; (2) that he was not guilty of escape because he was not in lawful custody of the maintenance foreman; (3) a mistrial should have been declared because of a comment that a guard searching for Briggs suffered a heart attack during the search; (4) he was entitled to a mistrial because the prosecutor mentioned that he was in prison for rape; and (5) error in the verdict director instruction. Affirmed.

On August 30, 1976, Briggs was an inmate in the Department of Corrections and confined at the Missouri Training Center for Men at Moberly. Briggs had an “outside assignment” to work on the garbage and trash truck, which allowed him to leave the confines of the Training Center. On the day in question, Briggs left the Training Center with Robert Meals, a maintenance foreman employed by the Training Center, for a trip in the trash truck to the Moberly city dump, thirteen miles away. After Meals and Briggs had unloaded the truck at the dump and started back to the Center, Briggs suddenly opened the passenger door and jumped from the truck about one-half mile from the dump. Meals looked for Briggs but could not find him, so he notified the Training Center of the escape and after a four and one-half hour search conducted by the sheriff’s office, highway patrol, prison personnel and a rescue squad, Briggs was found hiding in a ditch.

Briggs first contends he was denied a speedy trial because a complaint was filed in magistrate court on September 3, 1976, charging Briggs with escape from custody, and a warrant issued thereon but he was not arraigned in magistrate court until December 3, 1976. In this argument Briggs confuses speedy trial with speedy arrest. His real complaint is not that he was denied a speedy trial, but that he was denied a speedy arrest. This point was fully discussed in State v. Odzark, 532 S.W.2d 45, 47-48 (Mo.App.1976), where the court held a delayed arrest does not in and of itself deny any constitutional rights, and if an arrest occurs within the applicable statute of limitations a showing of prejudice resulting from the delay is a prerequisite to a grant of relief. Since no prejudice was shown here from the delay in making the arrest on the escape charge, for the reasons fully explained in Odzark Briggs is not entitled to relief on this ground.

Briggs next contends the State did not prove an escape from custody because the Department of Corrections had no authority in law to permit Briggs to be off State premises, and therefore at the time he jumped from the trash truck he was not in the lawful custody of anyone. Briggs overlooks the provisions of § 557.351 which states “[a]ny person sentenced to the State Division of Corrections upon conviction of escaping or attempting to escape from any state institution in which he was lawfully confined or from the lawful custody of any. person or willfully failing to remain within the extended limits of confinement . . .” The assistant superintendent of the Training Center testified Briggs had an outside assignment to work on the trash truck and that on the occasion, of the escape Briggs was in the custody of Meals. Under these facts Briggs was in the custody of Meals within the meaning of § 557.351. Briggs apparently argues that the State had abandoned custody of him, but certainly no abandonment of custody is shown here. Read v. United States, 361 F.2d 830 (10th Cir. 1966).

Briggs next contends the court erred in refusing to declare a mistrial when Sheriff Price of Randolph County stated during direct examination that one of the guards participating in the search for Briggs suffered a heart attack during the search. The sheriff’s remark came in response to a question as to his actions when Briggs was caught. The sheriff responded to this question by stating: “I told him to take him into the office, we process him, because a couple of minutes after that one of the guards had a heart attack there in the road and we called an ambulance to . .” Counsel for Briggs objected to matters collateral and not relevant or material to any issue in the case and requested the court to instruct the jury to disregard it. The court sustained the objection and instructed the jury to disregard the remark about what transpired with some of the personnel. Counsel then requested a mistrial be declared but the court refused. As stated in State v. Harris, 547 S.W.2d 473, 475 (Mo. banc 1977) the declaration of a mistrial rests largely in the discretion of the trial court and the function of an appellate court is to determine whether as a matter of law the trial court abused its discretion in refusing to declare a mistrial. Here, the court took prompt action to sustain the objection to the sheriff’s purely voluntary and unexpected remark and to instruct the jury to disregard it. It cannot be said as a matter of law that the trial court abused its discretion in refusing to declare a mistrial. State v. Harris, supra.

Briggs next complains that the prosecutor told the jury in closing argument that Briggs was in custody for rape. This fact was in evidence as a part of State’s Exhibit No. I, which was received without objection. It is elementary that counsel may comment in closing argument on matters in evidence and draw inferences therefrom. State v. Treadway, 558 S.W.2d 646, 650[5, 6] (Mo. banc 1977). Here, the prosecutor did nothing more than mention the fact that Briggs was in the Training Center because of a conviction for rape. Since this information was in evidence it was proper for the prosecutor to mention it.

Briggs finally complains of the verdict director. The court gave Instruction No. 4 which read as follows:

If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about August 30, 1976 the Defendant was lawfully confined in Missouri Training Center for Men at Moberly a state institution of the State of Missouri having been previously sentenced to the State Division of Corrections of the State of Missouri.
Second, that on or about the 30th day of August, 1976, in the County of Randolph, State of Missouri, the Defendant escaped from the lawful custody of Maintenance Foreman Robert Meals, an employee of Missouri Training Center for Men at Moberly,
then you will find the Defendant guilty of escape from a state institution.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.

Briggs contends the instruction “would tend to create confusion in the minds of the jury in that they might feel that they could find the appellant guilty of an escape from a state institution, if at the time the appellant left the premises with Robert Meals, he did not intend to come back with Robert Meals. Such an inference raised by the instruction would tend to lead the jury to believe that they need not find beyond a reasonable doubt that the appellant was in-the lawful custody of Robert Meals and escaped from that custody, which is the only finding that can sustain the verdict under this set of facts.” The brief continues by acknowledging that a person skilled in the law would realize that the inference just postulated is not correct. Neither is the inference correct as far as the average juror is concerned. The Instruction, which contains nothing pertaining to any intent of Briggs at the time he left the confines of the Training Center, is not subject to the inference urged by Briggs. The only issue submitted was whether Briggs escaped from the lawful custody of Meals. This issue was further sharpened with the converse instruction, which told .the jury to find Briggs not guilty if they did not find beyond a reasonable doubt that he was in the lawful custody of Meals. The instruction is not subject to the flaw urged.

The judgment is affirmed.

All concur.


author: PRITCHARD, Judge.

text:
    Betty Lou POAGUE, Appellant, v. Robert Earl POAGUE, Respondent.
    No. 29893.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Jack Cochran, Blue Springs, for appellant; Cochran, Tyree, Oswald, Miller, Barton & McDonald, Blue Springs, of counsel.
    Charles C. Curry, Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, and WELBORN, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

In this dissolution proceeding the trial court awarded a new trial on the sole issue of the marital misconduct of either party, ordering that the decree of dissolution entered on October 6, 1977, remain in full force and effect, except for those findings and orders pertaining to the division of marital assets and liabilities.

The dispositive issue (Point II) is whether under the particular facts of this case the trial court erred in limiting the new trial to the issue of marital misconduct when appellant had requested a new trial on all issues pertaining to maintenance and a division of marital property. The trial court awarded appellant maintenance in gross of $4,950.00, payable in 18 monthly installments of $275.00 each, which she also says (Point I) was error because there was no evidence of impending change in the parties’ financial condition at the time of the termination date (the last installment).

The facts are these: The parties were married September 16, 1949. At the time of the dissolution, September 1, 1977, the four children born of the marriage were emancipated, therefore, no provision was made for child support or custody.

Appellant had worked sporadically during the marriage, and at the time of trial, she was earning $135.00 gross per week from her employment. She had never earned more than that amount. Respondent was a truck driver and was earning $500 to $525 gross per week, except when he occasionally laid off a trip because of a back disability, at which times his income would be reduced to about $350 per week.

Appellant, in her initial testimony, touched briefly on respondent’s misconduct in beating her on more than one occasion. Marital misconduct is a factor to be considered by the court in making a division of marital property under § 452.330, subsec. 1(4), Laws Mo.1973; In re Marriage of Galloway, 547 S.W.2d 193, 196[4—7] (Mo.App.1977). Marital misconduct of a party seeking maintenance is also a factor to be considered under § 452.335, as is the financial resources of that party, including the award of. marital property. Thus, the division of marital property is a factor also to be considered in awarding maintenance to a needy spouse. Shroder v. Shroder, 552 S.W.2d 342, 343 [1-Footnote 1] (Mo.App.1977).

Rule 78.01 (adopted April 10,1974, effective Jan. 1, 1975) provides: “The court may grant a new trial of any issue upon good cause shown. A new trial may be granted to all or any of the parties and on all or part of the issues after trial by jury, court or master. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment.” Under this rule, the trial court clearly had the authority to grant a new trial on less than all the issues. That authority, however, is tempered as to whether the issue to be tried, and other issues in the case, are interrelated and dependent one upon the other as is the situation here. As noted in the cases cited, supra, marital misconduct bears upon the division of marital property, the amount thereof, in turn, bearing upon the amount of maintenance to be awarded. See also Forsythe v. Forsythe, 558 S.W.2d 675, 679[11] (Mo.App.1977). The court therefore erred in limiting the new trial to a determination of marital misconduct as that issue bears upon the division of marital property only.

The issue of maintenance must be retried, and in that connection, appellant is correct in her assertion that there was no evidence submitted which would justify limiting her maintenance to installments for only 18 months, termed by the trial court to be “rehabilitative maintenance.” The trial court was authorized by § 452.335, subsec. 1.(2), to consider “The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment.” However, “Awards of limited duration are entirely proper where the trial court has before it evidence of some impending change in the financial conditions of the parties or at the least some reasonable expectation that such a change will occur.” In re Marriage of Powers, 527 S.W.2d 949, 956[12] (Mo.App.1975). See also LoPiccolo v. LoPiccolo, 547 S.W.2d 501, 505[3-5] (Mo.App.1977). Upon new trial, the court may receive evidence upon the issue of appellant’s ability (considering her age, shown to be 47 years), and time necessary to acquire education or training to find employment. If there is no such evidence of appellant’s future improvement in her financial prospects, no decree of maintenance of limited duration should be entered. It should then be of unlimited duration, the amount of which might be subject to modification if appellant’s financial condition should in fact improve. It is noted that this record shows that the amounts awarded will be substantially short of appellant’s needs, while respondent’s obligations are well under his net income. The court should consider also the valuation of respondent’s separate, non-marital property in determining his ability to provide appellant with maintenance sufficient for her needs.

The judgment is reversed and the cause remanded with directions that the new trial shall cover the issues of marital misconduct as it bears upon a division of marital property, and as that division may bear upon the amount of maintenance; for a consideration of appellant’s reasonable opportunity to improve her financial condition as that issue might bear upon her right to permanent maintenance; and for a consideration of respondent’s entire resources as they might bear upon his ability to pay maintenance.

All concur.


text:
    Perry CURTIS, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29908.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Ollie R. Mack, Tofle, Mack & Oxenhan-dler, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Perry Curtis appeals the denial of his 27.26 motion. The court held an evidentia-ry hearing and made findings of fact and conclusions of law.

Curtis entered a plea of guilty to armed robbery under § 560.120, RSMo 1969, while represented by counsel. On this appeal he essentially contends the plea was involuntary because his counsel had led him to believe he would receive probation when in fact he did not. Curtis on this motion testified to his understanding about probation and his counsel testified no representation about probation was made. The court found no representation had been made. On the evidence presented the court was required to resolve the conflict in evidence and to judge the credibility of the witnesses. Nance v. State, 556 S.W.2d 193, 194[2, 3] (Mo.App.1977). In doing this the court was entitled to believe counsel who stated no promise had been made prior to the plea.

The court’s finding of fact is not clearly erroneous and an extended opinion would have no precedential value. Rule 84.16(b).

The judgment is affirmed.

All concur.


text:
    The CENTRAL TRUST BANK, Respondent, v. Lynn Berry STOUT, James M. Berry, and Mike Berry, Respondents, v. Scott Matthew STOUT, Christopher William Stout, Elizabeth Ann Berry, Janet Kathleen Berry, and the Known and Unknown Heirs of the Body of Virginia Lee Berry Barbarick, Deceased, Appellants.
    No. KCD 29970.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Richard R. Nacy, Jr., Jefferson City, for appellants.
    Carson, Monaco, Coil, Riley & McMillin, P. C., William C. Lane, Jefferson City, for respondents.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Central Trust Bank sought a declaratory judgment for the purpose of identifying the “bodily heirs” of Virginia Berry Barbarick. The court determined the heirs were the three children of Virginia, and the four grandchildren of Virginia appeal.

On this appeal it is contended the court erred in not construing the testamentary trust to include the grandchildren of Virginia who were the great-grandchildren of the testatrix. Affirmed.

Susie Williams executed her will in 1948 after it had been drafted by her attorney. The will established a trust for Susie’s daughter, Virginia Lee Berry, and provided for the distribution of the income from the trust until the death of Virginia. At that time the will provided:

Upon the death of my daughter, Virginia Lee Berry, my said trustee is authorized and directed to pay such sums as in his discretion are advisable concerning burial of the body of Virginia Lee Berry, and shall distribute any balance of my estate in equal shares to the bodily heirs of my daughter, Virginia Lee' Berry, absolute and in fee simple to do with as they see fit.

Susie died in 1949 survived by her only child, Virginia Lee Berry. At that time Virginia had one child, James. Subsequently, Virginia had two more children, Lynn Berry Stout and Michael A. Berry. Virginia was later divorced and married Barbar-ick. Virginia died in 1977, at which time her son James had two children, Elizabeth and Janet, and her daughter Lynn had two children, Christopher and Scott. Michael was unmarried and had no children.

After the death of Virginia, Central Trust Bank, trustee of the testamentary trust, filed this action for a declaratory judgment to determine the persons to whom it should make distribution as constituting the “bodily heirs” of Virginia and in what proportion such distribution should be made. The court appointed a guardian ad litem for the four minor grandchildren of Virginia who filed an answer on their behalf contending they were included within the “bodily heirs” of Virginia and entitled to equal shares along with the three children of Virginia. The three children also filed an answer alleging they were the only “bodily heirs” of Virginia and were entitled to the distribution of the estate in equal shares but the four grandchildren of Virginia were not entitled to take anything.

The court held only the three children of Virginia constituted her “bodily heirs” and were thus entitled to an equal share in the distribution of the trust estate and the grandchildren of Virginia were not entitled to any interest. The guardian ad litem for the grandchildren of Virginia perfected this appeal.

It is contended the court did not give effect to the intent of Susie that would indicate the great-grandchildren of Susie and grandchildren of Virginia should be included within the class of “bodily heirs” of Virginia. The term “bodily heirs” is a technical one. It is well settled that, “ ‘[w]ords with a well-known technical meaning should be construed according to their technical meaning unless a contrary meaning clearly appears from the context of the will.’ ” St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578, 582[2, 3] (1945).

While the phrase “bodily heirs” is found in the trust provision of Susie’s will, “[t]he rules of construction applied to wills generally are also used in the case of testamentary trusts.” First National Bank of Kansas City v. Hyde, 363 S.W.2d 647, 653[7] (Mo.1962).

The guardian ad litem does not point to any language in Susie’s will indicating an intent that the technical term “bodily heirs” not be taken ■ in its technical meaning. Rather, the argument is that if Susie had meant to exclude her great-grandchildren and limit the distribution after the death of Virginia to the children of Virginia, she could have used the term “children” instead of the term “bodily heirs”. However, the rules of construction require the technical term “bodily heirs” to be taken in its technical meaning unless the contrary appears. Since nothing to the contrary appears, then the technical meaning of “bodily heirs” must be applied.

Powell on Real Property, Volume 3, ¶ 373, p. 274 gives the definition of heirs of the body as follows:

The present-day primary meaning of the term “heirs of the body” connotes those lineal descendants of the designated ancestor, who, under the applicable local law would succeed to the property if such ancestor died owning the property and intestate at the time when the group of takers is to be ascertained in accordance with the rules discussed in ¶ 375.

The same definition is given in Restatement of Property, § 306.

The same definition in essence was adopted by the Supreme Court in Miller v. Ensminger, 182 Mo. 195, 81 S.W. 422, 425 (1904) when the court quoted a North Carolina case defining bodily heirs “as meaning that class of persons who by law take property by inheritance or succession from another.” The same definition was quoted from Thompson on Wills, Second Edition (1936) § 271, p. 350 in Godsey v. Godsey, 531 S.W.2d 547, 550, n.4 (Mo.App.1975). As used in the definition quoted from Powell, the ancestor in this case would be Virginia. Powell at ¶ 375, p. 255 states that the ascertainment of those who constitute “bodily heirs” is made by applying the relevant statute of intestate succession at the time of death of the designated ancestor. Thus, in this case, the persons constituting Virginia’s bodily heirs would be determined by applying § 474.010(2)(a), RSMo 1969, at the time of Virginia’s death in 1977. Under that section, the only persons entitled to share in Virginia’s estate were her children.

The foregoing result reached by applying the technical meaning of the phrase “bodily heirs”' complies with the rule of construction stated in Merchantile Trust Co., N. A. v. Davis, 522 S.W.2d 798, 807[5] (Mo. banc 1975) that “in the absence of an expressed intent to the contrary, children are not to compete with or share with their living parents.” In this case there is nothing in Susie’s will to indicate that she wanted her great-grandchildren to compete with her grandchildren, their parents; therefore, the phrase bodily heirs is to be taken in its technical sense. Thus construed, the “bodily heirs” of Virginia at her death were her three children, and under the laws of intestacy they share equally.

The trial court was correct in declaring this result and in holding that Virginia’s four grandchildren were not included within the definition of “bodily heirs”. The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Chester L. MYERS, Defendant-Appellant.
    No. KCD 30002.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    William F. Brown, Brown & Buckley, Se-dalia, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

The defendant, having been determined to be subject to the Second Offender Act, § 556.280 RSMo 1969, was sentenced by the court to a term of five years on a jury verdict of guilty of assault with intent to do great bodily harm.

The defendant’s appeal raises two issues. The first issue is the sufficiency of the evidence to sustain the conviction. The second issue is the propriety of the State’s cross-examination of the defendant’s character witnesses.

Because sufficiency is in issue, the bizarre facts of the offense must be related. The complaining witness and only eyewitness testified that she was walking home from her employment at about 11 p. m. and that as she was walking a white van passed her, first in one direction, then in another. She stated that the van had a sign on the door, “Myers Painting.” The van stopped, and the driver asked her if she wanted a ride; she told him no, and then upon his entreaty, entered the vehicle, thinking that he might be a distant relative. The interior of the van was described as containing painting equipment. When she got into the vehicle, she asked the driver if he was a painter, to which he responded yes, and she indicated her appreciation for the ride. After a couple of blocks of travel, the complaining witness stated that the driver picked up a 16 oz. Pepsi bottle and struck her squarely in the face with it. The van was still moving. She testified that the driver made no comment and that she did not say anything.

She stated that she jumped out of the van, while it was still in motion, and began running. She went to a home where a unidentified man gave her some towels and walked halfway to a bar with her, which was the only place that was open, and she was taken to a hospital. Officers investigated the incident the next day, discovered the defendant’s van at his place of employment and found chips of broken glass and what appeared to be blood stains in the interior of the van. There were no signs upon the truck, but the defendant testified that the signs were magnetic, that one had blown off, and that the other had been taken off. There was evidence from a forensic chemist that the glass could have come from a Pepsi bottle or a large number of other different kinds of bottles. Further tests revealed that the blood found in the interior of the van could not be typed but was of human origin. The defendant testified, asserting that he worked until about 11:00 and that he had never seen the complaining witness before the preliminary hearing. Contrary to the complaining witness’ statement, he asserted the passenger seat was in the van on the evening of the events in question. He further testified that the blood could have come from injuries to himself or other tradesmen for whom he might have given first aid. The defendant also offered two character witnesses whose testimony will be later noted. In considering the sufficiency of this evidence, the rule is well settled that after a jury verdict all the facts in evidence and all reasonable inferences must be viewed in the light most favorable to the verdict and evidence and inferences to the contrary disregarded. State v. Strong, 484 S.W.2d 657 (Mo.1972). So considered, this evidence is sufficient, but the proof cannot be said to be overwhelming.

The second issue raised by the defendant is an issue arising from the cross-examination of the two character witnesses proffered by the defendant. Both character witnesses testified on direct examination that the defendant’s reputation in the community as a truthful, moral, and law-abiding person was good. One of the witnesses was the employer of the defendant who had known the defendant during a four-year period of his employment. This witness was aware of the defendant’s prior conviction at the time the employment commenced. The other witness, apparently a co-worker, had known the defendant about a year. Both of these witnesses were cross-examined by the State. The critical question posed to each was, “Have you heard that Mr. Myers’ wife was hospitalized as a result of the beating she suffered at the hands of Mr. Myers?”

Both witnesses denied having heard of such an event.

This cross-examination poses a problem which has been both vexing and of frequent occurrence in the cases. The difficulty in the reported cases, as in the instant case, has not been one of the substantive law governing such inquiry but has been one of procedural difficulty arising from the application of the rules of substantive law.

Missouri follows other common-law evidence states in allowing questions on reputation to be used for certain limited purposes. Early cases set forth the rules for cross-examination of reputation witnesses, including the use of rumors of particular bad acts:

“There was no error in permitting that sort of examination to test a witness vouching for the good character of the defendant. If the witness admitted that he had heard of such alleged acts of misconduct, such admission would tend to weaken his testimony that defendant’s reputation for morality was good. The extent to which such cross-examination may go is largely within the discretion of the trial court.” State v. Cooper, 271 S.W. 471, 473 (Mo.1925).

See also State v. Seay, 282 Mo. 672, 222 S.W. 427 (1920); State v. Harris, 324 Mo. 139, 22 S.W.2d 1050 (1929); State v. Havens, 177 S.W.2d 625 (Mo.1944).

Although such evidence is allowed to be elicited on cross-examination, there is a requirement that questions asked about particular bad acts be asked “in good faith.” No clear definition of “good faith” has emerged, but the cases suggest some perimeters for the term. State v. Willard, 192 S.W. 437 (Mo.1917), one of the earliest cases on this point, says that “. . . the crimes inquired about ought not to be apocryphal, existing alone in the fertile fancy of a public prosecutor. Neither ought they be so remote in time and place as to furnish by that fact alone a strong inference of reformation.” supra at 440. A question may not be in good faith if the court has difficulty in determining the purpose for which the question was asked. State v. McDonald, 231 S.W. 927 (Mo.1921) at 930. There is a general requirement of fairness in cross-examination, and if “[they] have no reasonable basis on which to base such a cross-examination, it should not be made.” State v. Hicks, 64 S.W.2d 287 (Mo.1933) at 288.

Later cases have summarized and restated the rules in this area. State v. Carroll, 188 S.W.2d 22 (Mo.1945), summarizes the requirements that the evidence of particular bad acts be linked closely to the time of the offense; that the questions not be argumentative, call for a conclusion, or assume facts; that the questions should not be asked merely to improperly show other crimes or collateral details; and that the questions be carefully considered in relation to the witnesses’ direct testimony, supra at 23—24. See also State v. White, 313 S.W.2d 47 (Mo.App.1958) at 55-56 and 56-59; State v. Butler, 309 S.W.2d 155 (Mo.App.1958) at 159.

A common thread in all the authority is that the determination of the propriety of the questions to be propounded to the character witness is a matter of the exercise of judicial discretion. Judicial discretion has been defined as follows:

“An abuse of discretion is an erroneous finding and judgment which is clearly against and contrary to the facts or the logical deductions from the facts and circumstances before the court; which is untenable and clearly against reason which works an injustice, and not justified by the evidence. Harriman v. Harriman, Mo.App., 281 S.W.2d 566.” Biggs v. Biggs, 397 S.W.2d 337, 343 (Mo.App.1965).

In the application of that discretion, there must be a factual basis for the result reached. A judicial determination exercised without the necessary facts cannot be a discretionary act. Thus, in State v. Selle, 367 S.W.2d 522 (Mo.1963), the court pointed out that the record left unanswered factual questions which were vital to a determination of the issue of good faith.

The foregoing summary of the case law discloses that the substantive rules for the utilization of such cross-examination are well settled. Despite this settled law with respect to the principles applying to the use of such cross-examination, the issue continues to arise in many appeals.

The question continues to arise because there is a procedural hiatus with respect to the proper method to pursue such cross-examination. The instant case is a prime example of the difficulty engendered by a lack of a clear-cut procedure for the cross-examination of character witnesses. The questions posed by the State in the instant case clearly satisfy the substantive rules with respect to the form of the question and as to the proximity of the particular bad acts to the time of the offense. The act of beating a wife to the point of requiring hospitalization is of such a nature that it would likely be known and affect the reputation of the defendant. Therefore, an inquiry of character witnesses about these matters would tend to discredit testimony that the defendant’s reputation for lawful behavior was good.

However, the manner in which this cross-examination was conducted puts in critical context the procedural defect which the Missouri cases have not yet addressed. The apparent defect is the lack of a settled method to ensure the exercise of a proper judicial discretion in the scope of the cross-examination.

The procedural problem was recognized and dealt with by federal courts long before the adoption of the Federal Rules of Evidence, and the Rules reflect the results of the discussions in the federal cases. The applicable sections appear below:

Rule 405. Methods of Proving Character
“(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.”
Rule 608
“(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.” (Emphasis supplied).

Implicit in the rules are the principles announced in the guiding federal case, Michelson v. U. S., 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). That case contained an extended discussion of the hazards and pitfalls in this area of evidence, and evaluated the rules and procedures applied in the various jurisdictions. Finally, however, the Supreme Court approved the procedure used by the trial court. Great care was used by the trial judge in instructing the jury as to the permissible uses of the rumor questions. More significantly, the trial judge ascertained, out of the presence of the jury, “[whether] the target of the question was an actual event . . . ” supra, 335 U.S. at 481, 69 S.Ct. at 221. In essence, the Supreme Court approved an offer of proof on the “good faith” or factual basis of the prosecutor’s question; this offer of próof technique has been suggested by Wig-more III A Evidence § 988 (Chadboum Rev. 1970). Wigmore’s commentary says clearly that “There must be no question as to the fact of the misconduct . . . .” supra.

More recent cases, particularly in the Fifth Circuit, are in accord with the procedure outlined in Michelson. In U. S. v. Crippen, 570 F.2d 535 (5th Cir. 1978), the trial court carefully examined Rule 608b and “made certain there was a factual basis for the attempted impeachment,” supra at 538-39, and properly instructed the jury. Similar procedures have been followed in U. S. v. Bynum, 566 F.2d 914, 919 (5th Cir. 1978) and U. S. v. Wells, 525 F.2d 974, 977 (5th Cir. 1976). In a case where the procedure was not precisely followed, the court upheld the trial court’s procedure but added:

“We endorse, as the better practice, an in camera showing prior to cross-examination, that the prosecution has, in good faith, some factual basis for the rumors to be inquired about. The court is thus in a position to exercise its judicial discretion befóse the matter is presented to the jury.” U. S. v. West, 460 F.2d 374, 376 (5th Cir., 1972).

In Kansas, a state with a codified set of evidence rules, the Supreme Court recently thoroughly examined this area and reached much the same conclusions as the federal courts. State v. Hinton, 206 Kan. 500, 479 P.2d 910 (1971). The court carefully traced the development of the law in state and federal cases, and cited to the Michelson principles and Wigmore. Finally, the court outlined a procedure for the trial judge to follow in cases where impeachment is sought:

“The trial judge in determining whether to allow the prosecuting attorney to cross-examine the defendant’s character witness, when challenged by the defendant, should conduct a preliminary inquiry out of the presence of the jury, and he should satisfy himself:
(1) That there is no question as to the fact of the subject matter of the rumor, that is, of the previous arrest, conviction or other pertinent misconduct of the defendant;
(2) That a reasonable likelihood exists that the previous arrest, conviction or other pertinent misconduct would have been bruited about the neighborhood or community prior to the alleged commission of the offense on trial;
(3) That neither the event nor conduct, nor the rumor concerning it, occurred at a time too remote from the present offense;
(4) That the earlier event or misconduct and the rumor concerned the specific trait involved in the offense for which the accused is on trial; and
(5) That the examination will be conducted in the proper form, that is, ‘Have you heard,’ etc., not ‘Do you know.’ [Citation omitted].
If the conclusion is reached to allow the interrogation, the jury should be informed of its exact purpose, either at the conclusion of the cross-examination of the character witness, or in the charge made to the jury at the close of the case.” supra at 917.

The instant case demonstrates the need for the adoption of such procedure in Missouri to implement the settled rules concerning the cross-examination of character witnesses. At the time the questions were posed to the witnesses, an objection was made by defense counsel, asserting in general terms the inflammatory and prejudicial nature of the questions. This objection was coupled with a motion for a mistrial; both the objection and motion were summarily overruled by the trial court. After the evidence had closed, the State, apparently recognizing the issue of good faith might be involved in the questions put to the character witnesses and having asserted to the court in the colloquy that the questions were asked in good faith, asked leave to reopen the evidence, which the court granted. The State then offered in evidence the divorce petition and related papers filed by Mr. Myers’ wife. Those papers contained allegations that the defendant had beaten his wife and caused her great bodily injury, but contained no direct evidence of injury sufficient enough to require hospitalization. It should be noted that the prosecutor possessed some knowledge concerning the events since he had represented the wife in a divorce action, and a complaint had been filed with the prosecuting attorney concerning the alleged beating. These facts were demonstrated by the State’s abortive attempt to introduce the fact of the wife’s complaint into evidence on the cross-examination of the defendant.

At the motion for new trial, the defendant, in challenging the cross-examination, asserted there was no evidence of the fact of an assault causing the wife’s hospitalization. The critical part of the offending question was not the assault on the wife—there was a basis for that inquiry; but there was no basis for the inquiry about the hospitalization of the wife. The inference that arises from the very form of the question, that the defendant had beaten his wife so severely as to cause her hospitalization, is a particularly damaging inference upon the facts of this case. The apparently motiveless attack upon the complaining witness is almost inexplicable, absent a predisposition on the part of the defendant to make such assaults, and proof of a similar assault upon his wife sufficient to cause her hospitalization would tend to convince the jury that he was, in fact, guilty of the instant brutal assault. In short, if there was not a factual basis for this question, it should never have been before this jury, and the prosecutor should not have asked the question implying hospitalization without making a prior showing of a good faith basis for its being put to the witness.

The damage may be done by the time the question is put to the witness in the presence of the jury:

“ ‘It is practically impossible for a man sitting in judgment to exclude from the final make-up of his mind facts which have lodged there, even if the court gravely tells him that such facts should not have been disclosed, and tells him, further, not to consider them. The court does not tell him that such statements are not true. The objections by counsel for defendant probably convince him that they are true.’ State v. Lovan, 245 Mo. 516, 538, 151 S.W. 141, 147 (1912).

The above quotation was relied upon by the court in Selle in reversing a conviction upon strikingly similar facts, supra at 531. Selle was an assault case; the complaining witness identified the defendant, and there was a minimum of corroborative evidence. In Selle, as here, improper questions were asked of character witnesses, to which objections were not properly made or which were sustained but the court held that this did not avoid prejudice in the minds of the jury. The Selle court pointed out that a single incident can be sufficient to justify reversal, and it did reverse on the ground of the unanswered question to which an objection was sustained. The Selle court held that the motion for a mistrial should have been sustained because of the prejudice engendered by the question itself.

In this case, it cannot be said that the question, asserting as a fact that hospitalization of the defendant’s wife for a beating, did not tip the scales with a jury that deliberated for four hours to decide a case tried in one day.

The conviction is set aside, and the cause remanded for a new trial.

All concur.


author: MANFORD, Judge.

text:
    In re the MARRIAGE OF Jeanne Lyndell BARR, Petitioner-Appellant, and Gerald David Barr, Respondent-Respondent.
    No. 30045.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      P. Wayne Kuhlman, Liberty, for petitioner-appellant.
    Robert P. Sevier, Roger Guy Burnett, Liberty, for respondent-respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal by appellant-mother from decree of dissolution granting dissolution, division of marital property and the award of custody of two minor sons to respondent-father.

The parties were married in Bedford, Iowa on July 24,1966. The parties separated in July, 1977. The trial court had jurisdiction over the parties and the subject matter. This action commenced May 20, 1977 by the filing of the petition by the appellant. Two children, both boys, were born of the marriage, Terry David Barr, born July 14, 1967 and Jason Samuel Barr, born October 27, 1968.

At the time of the hearing on appellant’s motion for new trial and to reopen the cause for additional evidence, the court overruled the motion; but further, under its order of January 25, 1978, it awarded to appellant three additional items of property.

Appellant timely filed her notice of appeal and raised four points which will be considered in the order of their presentment.

I

“THE TRIAL COURT ERRED IN FAILING TO GRANT CUSTODY OF THE CHILDREN OF THE MARRIAGE TO APPELLANT IN THAT (A) THERE WAS NO SUBSTANTIAL EVIDENCE TO SUPPORT THE PROPOSITION THAT IT WAS IN THE BEST INTEREST OF THE CHILDREN FOR RESPONDENT TO OBTAIN CUSTODY AND (B) SUCH GRANTING OF CUSTODY WAS AGAINST THE WEIGHT OF THE EVIDENCE.”

Point I is ruled against appellant. While the reviewing court has the obligation to review court tried cases as to both the facts and law, Rule 73.01 3(a), the judgment of the trial court should not be overturned “. . . unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law . . . ” Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

Respondent herein attacked the fitness of appellant, but that evidence unto itself was not sufficient to establish unfitness of appellant. Conversely, appellant testified that respondent was a good father and appellant had no complaints as to respondent’s conduct toward the minor children.

Thus, we have, in essence, a balance between the parties on the question of fitness as parents, and the court is left to determine custody from other evidence.

Appellant would have the court presume she is the more fit parent because of her role as the maternal parent. It is true there are cases in which, because of the tender years of the children, custody has been awarded the mother when fitness of the parents is not the question. In re Marriage of B.A.S., 541 S.W.2d 762 (Mo.App.1976).

This presumption, however, is not a strict rule to be applied, but rather, the matter of custody is one for the discretion of the trial court based upon the evidence. See In re Marriage of H.B., 559 S.W.2d 73 (Mo.App.1977) wherein the court correctly stated the rule by declaring:

“In discussing the sufficiency and weight of the evidence, the wife commences and attempts to anchor her argument throughout on the ‘tender year’ presumption, under which a mother is deemed to be the one best able to care for a child of tender years . . . However, the wife in her brief correctly and commendably concedes that this presumption is only rebuttable ■ . . . Consequently the issue of who should be granted custody must be decided, not as a matter of law upon a presumption, but as a factual matter upon all of the evidence.”

That the application of the presumption is not automatic, see Shannon v. Shannon, 550 S.W.2d 601 (Mo.App.1977).

The evidence herein established respondent took care of the many of the day-to-day needs, including the special educational program for the oldest boy. The appellant testified that while she had decided upon the location for a new residence, she did not know of the details concerning the attendance at school by the boys, including the name of the school district. There was also evidence the boys had neighborhood friends and the boys were familiar with the area of their residence. The evidence contra to this was appellant’s plan to relocate out of the Kearney, Missouri area to the Kansas City area.

Under Murphy v. Carron, supra, point I is ruled against appellant.

II

“THE TRIAL COURT ERRED IN ITS FAILURE TO GRANT MAINTENANCE TO APPELLANT AS THERE WAS NO SUBSTANTIAL EVIDENCE TO SUPPORT A FINDING THAT APPELLANT HAD SUFFICIENT PROPERTY TO PROVIDE FOR HER REASONABLE NEEDS NOR TO FIND THAT APPELLANT WAS ABLE TO SUPPORT HERSELF THROUGHT [sic] APPROPRIATE EMPLOYMENT; AND, THEREFORE, SUCH FAILURE IS EITHER A LACK OF RECOGNITION OF OR AN ERRONEOUS APPLICATION OF SECTION 452.335, R.S.Mo.”

Appellant herein suffered from no physical or mental disability. She was gainfully employed. In addition, the court awarded appellant an amount slightly more than fifty percent of the net value of the marital property. Respondent was directed to pay specific indebtedness of the parties. Pursuant to the rule in Murphy v. Carrón, supra, there is no justification for superced-ing the judgment of the trial court. Point II is ruled against appellant.

III

“THE TRIAL COURT ERRED IN DIVIDING THE MARITAL PROPERTY IN SUCH A WAY THAT THE APPELLANT RECEIVED ONLY $14,174 FOR THE REASON THAT THERE WAS NO SUBSTANTIAL EVIDENCE TO SUPPORT SUCH A DIVISION; RATHER, THE COURT ABUSED ITS DISCRETION AND ERRONEOUSLY APPLIED THE LAW IN ACCEPTING THE OBVIOUSLY UNDERVALUED MARKET VALUES OF THE PROPERTY AS PROVIDED BY RESPONDENT ALONE; RESPONDENT’S ‘EXPERT’ TESTIMONY ERRONEOUSLY BEING ALLOWED IN BY THE COURT WITHOUT SUFFICIENT FOUNDATION.”

Appellant challenges the ruling of the trial court as to the sufficiency of the evidence as that evidence related to expert testimony regarding the value of commercial properties of the parties. The trial court did not abuse its discretion in admitting evidence from one of respondent’s witnesses. The evidence established that while the witness was not an expert on real estate values, he was familiar with the cost, operation and market of car washes in the area of property in question. The trial court properly could weigh such evidence and nothing further in evidence on the record renders this evidence suspect so as to come within the rule of Murphy v. Carrón, supra.

Appellant’s final point reads as follows:

IV

“THE TRIAL COURT COMMITTED AN ACT OF JUDICIAL MISCONDUCT IN VIOLATION OF CANONS 1 AND 2 OF THE CODE OF JUDICIAL CONDUCT FOR THE STATE OF MISSOURI BY TALKING PRIVATELY IN HIS CHAMBERS TO ONE OF RESPONDENT’S WITNESSES OUTSIDE OF THE PRESENCE OF COUNSEL AND OFF THE RECORD DURING THE COURSE OF THE TRIAL, AND FURTHER ERRED IN FAILING TO GRANT RESPONDENT A NEW TRIAL AS A RESULT OF THIS MISCONDUCT. THE LAW IMPOSES VERY HIGH STANDARDS FOR CONDUCT OF THE JUDICIARY. CANON 1 OF THE CODE OF JUDICIAL CONDUCT PROVIDES IN PART THAT A JUDGE SHOULD OBSERVE HIGH STANDARDS OF CONDUCT SO THAT THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY MAY BE PRESERVED.”

Appellant makes a very serious accusation against the trial judge. Such accusation is found to be without merit. The record herein includes a lengthy colloquy between the trial judge and appellant’s counsel concerning this issue. The record shows that during a recess of the trial of this case, a witness for respondent, who had already been excused by the parties, entered the judge’s chambers. Appellant alleged this to be an impropriety on the part of the trial judge. The record establishes the husband of the witness was an old friend of the judge and he had sustained a severe heart attack. The court disclosed the conversation to counsel for the parties.

Point IV raised by appellant is groundless unto itself and further fails to establish wherein appellant’s interests were prejudiced in any manner.

Such an accusation against a court or for that matter, such an accusation against any member of the Bar is extremely serious as it relates to the integrity of our legal system. Groundless and flagrant accusations by disgruntled litigants should be carefully investigated by counsel for the alleged aggrieved party to determine their validity before being asserted. In the record of this case, the parties stipulated as to the trial judge’s answers to questions propounded by appellant’s counsel.

In summary, the court answered appellant’s counsel’s questions fully and directly. The answers established that the court had an interest in the health of an old friend, and there is nothing to even suggest this case in any matter was discussed by the court with the witness.

Point IV is ruled against appellant.

Judgment is hereby affirmed in all respects.

All concur.


author: PER CURIAM:

text:
    STATE of Missouri, ex rel., Sylvia MILLER, Relator-Appellant, v. Edgar H. CRIST, Individually and as Commissioner of Finance for the State of Missouri, Respondent.
    No. KCD30111.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Richard B. Teitelman, Karen Tokarz, St. Louis, for relator-appellant.
    Irven L. Friedhoff, Steven M. Geary, Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   PER CURIAM:

This is an appeal from a circuit court denial of a peremptory writ of mandamus directing the Commissioner of Finance to disclose to relator certain reports filed in his office by small loan companies.

We believe the trial court was correct in denying the writ, and the judgment is affirmed.

The reports being sought were “annual reports” filed by small loan companies and annual audit reports of such companies prepared by certified public accountants. The reports are required to be filed by §§ 367.150, 367.205, and 367.210 RSMo. The Commissioner is prohibited by §§ 361.-070 and 361.080(2) from disclosing the contents of such reports “unless required by law so to do in the discharge of the duties of his said office” or as a witness in court.

Relator’s claim to the right to inspect and copy these documents is based upon §§ 109.-180, 610.015, and 610.025, RSMo. These statutes make such records as these open to public inspection, “except as otherwise provided by law.” They were enacted after the Commissioner’s confidentiality statute, and it is relator’s argument that they repeal or modify it so as to make the documents accessible to her.

We do not think the legislature intended that effect, however, and it is the legislative intent which we must try to ascertain in the interpretation of statutes.

The disclosure statutes, although enacted later, are general in their application. They apply to all government records, with certain exceptions. Sections 361.070 and 361.080, on the other hand, deal with a specific and narrow category of records, i. e., those relating to the affairs of certain financial institutions, including small loan companies. The sections contain their own exceptions, themselves quite specific, lifting the curtain of confidentiality when required by law “in the discharge of the duties of (the Commissioner’s) office,” and in court proceedings.

If the later enacted disclosure statutes were intended to repeal by implication these long-standing mandates to secrecy, the intent to do so must plainly appear as, for example, from a total repugnancy between the statutes. Kansas City Terminal Railway Co. v. Industrial Com’n, 396 S.W.2d 678, 683 (Mo.1965). We think any such intent is plainly absent. The disclosure statutes by their terms recognize that some records may be closed by law to public scrutiny. A statute dealing with a subject generally will rarely have the effect of repealing by implication, either wholly or partially, an earlier statute which deals with a narrower subject in a particular way. 73 Am.Jur.2d Statutes, Sec. 417; Ross v. Conco Quarry, Inc., 543 S.W.2d 568, 578 (Mo.App.1976).

Sections 361.070 and 361.080, we hold, were untouched by §§ 109.180 and 610.015. The statutes are entirely harmonious.

The trial court’s judgment is affirmed.

      . Relator intended to use the reports to prepare testimony before legislative committees in connection with proposed legislation allowing increased small loan rates.

      . The secrecy provisions of §§ 361.070 and 361.080, insofar as pertinent here, have been in effect without change since 1907. Section 109.180 was enacted in 1961. Sections 610.015 and 610.025, part of the act someone dubbed the “Sunshine Law,” were enacted in 1973.


text:
    Robert W. MUSGRAVE, Respondent, v. BANQUET FOODS CORPORATION, Appellant.
    No. KCD 30176.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Christian F. Stipp, Carrollton, for appellant.
    Richard N. Brown, Brookfield, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   PER CURIAM:

This appeal is from an award of compensation benefits to the employee-respondent injured while at work in the frozen food plant of the employer-appellant. The award by the referee was affirmed by the Labor and Industrial Relations Commission and, on appeal to the circuit court, the decision of the commission was affirmed.

An injury to the employee’s knee occurred as he was removing boxes of chicken from a conveyor belt and stacking them on a pallet. According to the employee’s testimony, the boxes began to arrive at his station at an accelerated rate and while running sideways in an attempt to gather boxes which were running off the end of the conveyor, his right knee turned causing the injury.

The employer contends that the evidence fails to support the finding of the referee that the injury was the result of an accident within the meaning of Section 287.120, RSMo.

The only evidence presented in this case was the testimony of the employee, that of a fellow workman and certain exhibits including a claim filed by the employee for other insurance benefits. While such evidence was not entirely harmonious, it was sufficient to support a finding of the occurrence as above summarized. In so doing, the court has considered the whole record and the inferences to be drawn, all in the light most favorable to the award. Pulliam v. McDonnell Douglas Corp., 558 S.W.2d 693 (Mo.App.1977).

The sole question presented in this review is whether the Industrial Commission correctly ruled as a matter of law that the employee’s injury was the result of an accident compensable under the act. Where the issue is restricted to a question of law, the conclusion reached by the commission is not binding on the appellate court. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292 (Mo.1965).

Prior to Crow v. Missouri Implement Tractor Company, 307 S.W.2d 401 (Mo. banc 1957), the test of a compensable accident was often a preceding or attendant slip or fall. In Crow, however, the term “accident” was broadened to include an abnormal strain arising out of and in the course of employment. Later decisions have treated various incidents of strain, a significant statement being the court’s observation in Brotherton v. International Shoe Company, 360 S.W.2d 108 (Mo.App.1962):

“We now conclude that the unexpected and abnormal strain is the important event. This will usually result from the doing of the work in an ‘abnormal manner’ or in doing work which is not routine, but it is not necessarily so.”

Considered in the light of the foregoing cases and the enlarged concept of a compen-sable “accident” as subsequently followed in Hennecke v. Washington University, 543 S.W.2d 525 (Mo.App.1976); Lindquist v. Container Corp. of America, 537 S.W.2d 676 (Mo.App.1976); Homan v. American Can Co., 535 S.W.2d 574 (Mo.App.1976); and Griffin v. Evans Electrical Construction Co., 529 S.W.2d 172 (Mo.App.1975), the injury sustained by the employee who was subjected to an unexpected and abnormal strain in performing his work in an abnormal manner was the result of accident within the definition of Section 287.120, RSMo.

The finding of the referee and the commission is supported by competent and substantial evidence and, no error of law appearing, the judgment is affirmed.


author: ANDREW J. HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Thomas NELL, Appellant.
    No. 30179.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Michael Paul Harris, Edwin Hodel Smith, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

      Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ANDREW J. HIGGINS, Special Judge.

Appeal from conviction by a jury of assault with intent to do great bodily harm without malice aforethought. § 559.190 RSMo. Appellant contends the evidence was not sufficient to show an overt act by defendant and his intent to do great bodily harm. Affirmed.

On August 23,1977, Thomas Nell, accompanied by three friends, was driving his car north across Hickory Street into the alley of the 2200 block of South 11th Street in St. Joseph. As he crossed Hickory, he “accelerated across the road a little bit fast in front of Officer [Gary É.] Gilland and down the alley.”

Officer Gilland and Officer Timothy H. Moore, who was driving behind Officer Gil-land in another patrol vehicle, pursued the motorist in the alley to the back yard of a residence at 2218 South 11th owned by his grandmother. Officer Gilland asked the motorist to step out of the car and show his operator’s license, and then arrested him for driving while intoxicated. He started walking toward the house, at which time Officer Gilland grabbed his arm and subdued him with a choke hold. Upon release, he ran into the house with both officers in pursuit. The officers were unable to gain entry and returned to their vehicles. As they proceeded to leave, defendant came running out of the residence, stopped, and made a throwing motion toward Officer Gilland’s Patrol Truck. Both officers heard a thump and stopped to pursue defendant who ran again into the house. Upon return the officers found a 6½" paring knife with a bent tip lying on the ground immediately below a new nick or dent in the paint on the passenger’s side of the Patrol Truck.

Defendant admitted he got mad and grabbed a “peeling” knife, ran out and threw it at the car.

A person is guilty of assault with intent to do great bodily harm without malice aforethought under Section 559.190, supra, if he assaults another with intent to kill or do great bodily harm. State v. Rose, 346 S.W.2d 54, 56 (Mo.1961). An assault can occur in absence of actual harm to the victim, and without a touching or striking of the victim. State v. Eddy, 199 S.W. 186 (Mo.1917); State v. Elliott, 559 S.W.2d 175 (Mo. banc 1977). A showing of intent to harm alone is not sufficient, State v. Painter, 67 Mo. 84 (1877), State v. Lemon, 263 S.W. 186 (Mo.1924), State v. Selle, 367 S.W.2d 522 (Mo.1963), State v. Parker, 378 S.W.2d 274 (Mo.App.1964); the accused must commit some overt act, that is, a hostile demonstration or intentional offer of bodily injury to another, coupled with the present ability to carry out the attempt if unprevented, State v. Boyd, 559 S.W.2d 59 (Mo.App.1977).

The evidence permitted the jury to find that defendant obtained the knife, ran toward Officer Gilland, and threw it at him. The evidence thus satisfied the requirement of an overt act or hostile demonstration against the officer. That to reach Officer Gilland the knife had to penetrate the automobile, was incidental to the assault. State v. Elliott, supra, 559 S.W.2d l.c. 177.

On the issue of intent, the jury may consider statements of the accused, the nature of his weapon, the manner of its use, and all the surrounding circumstances. State v. Chevlin, 284 S.W.2d 563, 566 (Mo.1955).

The evidence permitted the jury to find that defendant was angry when he obtained the knife, ran toward Officer Gil-land, and threw it at him with appreciable force. The knife could be considered a deadly weapon. State v. Baldwin, 571 S.W.2d 236 (Mo. banc 1978). In these circumstances it was proper for the jury to disregard the suggestion that defendant was only throwing at an inanimate object and to infer that he threw at the officer with intent to do him bodily harm. State v. Selle, supra, 367 S.W.2d l.c. 528.

Judgment affirmed.

All concur.


text:
    Dorothy R. WARDLOW, Appellant, v. Jack R. DENNY, Executor of the Estate of Fred A. Roeder, Jr., Deceased, Respondent.
    No. KCD 30182.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Thomas D. Kelley, Jim R. Petrie, Kansas City, for appellant.
    Kenneth E. Bigus, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from judgment denying claim for child support payments against decedent’s estate. Affirmed.

Appellant and decedent, Fred A. Roeder, Jr., were the adoptive parents of Steven Roeder, born November 26, 1952. They were divorced September 9, 1959 and the decree ordered decedent to pay the sum of $200.00 per month until the minor child reached his majority.

Fred A. Roeder, Jr. died and on May 13, 1975, appellant filed a claim against his estate in the Probate Court of Jackson County, Missouri for child support in the sum of $18,400.00.

The probate court allowed the claim. The executor filed an appeal to the circuit court and a hearing was held. The circuit court, under date of April 5, 1978, denied appellant’s claim and from that judgment this appeal followed.

Appellant raises the following:

“The trial court erred in denying plaintiff-appellant recovery of the amount expended in support of the minor child from the date ten years after the date of the divorce decree to the date the minor child became emancipated.”

This matter rests upon the interpretation of § 516.350, RSMo 1969 and its applicability to child support payments. The statute reads as follows:

“516.350. JUDGMENTS PRESUMED TO BE PAID, WHEN — PRESUMPTION, HOW REBUTTED Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.”

The chronology of the facts of this case appear as follows:

(1) Appellant and decedent were married in July of 1950.

(2) Steven Roeder was born November 26, 1952 and is the adopted son of appellant and decedent.

(3) Appellant and decedent were divorced September 9, 1959.

(4) Under an amended decree of divorce (October 6, 1959), decedent was ordered to pay the sum of $200.00 per month as child support until the minor son reached the age of 21 years.

(5) In April of 1966, appellant received from decedent a check for $30.00.

(6) The minor son entered the Marine Corps on January 4, 1971 and was discharged June 6, 1973.

(7) The minor son was married April 27, 1971 and divorced July 6, 1973.

(8) The minor son became 21 years of age November 26, 1973.

(9) Decedent’s death occurred (no evidence of record as to the actual date of death).

(10) On May 15, 1975, appellant filed a claim for $18,400.00 in decedent’s estate ($200.00 per month from April, 1966 to November, 1973).

(11) Probate court allowed appellant’s claim on April 15, 1976.

(12)After appeal and hearing, the trial court denied the claim.

Appellant contends § 516.350, RSMo 1969 is not applicable herein upon the basis of receipt of payment of $30.00 in April, 1966 and upon the concept that the application of § 516.350, RSMo 1969 to child support payments is against public policy.

As to the matter of the payment of the $30.00 in April, 1966, we find the appellant has failed to sustain her burden of proof to establish that this payment was made as a payment on the judgment as distinguished from a gift. A contrary finding would, of course, have tolled the running of the statute as to the ten year limitation and retained in appellant a viable claim against decedent’s estate.

This case falls directly within the rule of Peterson v. Peterson, 273 S.W.2d 239 (Mo.1954). In that case, our Supreme Court declared:

“Plaintiff in this case is relying on payments to avoid the statute of limitations. The burden of proof is therefore on plaintiff because the judgment is more than 10 years old with no credit entered thereon
“Plaintiff also has the burden of showing that the $100 was a payment on the judgment and not a gift; that it was intended as payment and accepted as such ...”

See also 54 C.J.S. Limitations of Actions § 322, p. 425.

Upon failure of appellant to sustain her burden of proof, it becomes unnecessary to take up and consider remaining issues raised by the parties herein.

The legislature, in enacting § 516.350, RSMo 1969, set forth with specific clarity the intent of the limitations on judgments. It does not fall within the province of the court to apply a different intent than that expressed, or to engage in the extension or enlargement of that intent.

Judgment affirmed.

All concur.