text:
    Jack SIMS, Appellant, v. Harold ATWELL and Jimmy McCoy, George Lang, Conroy Harris and G. A. (Slim) Shelton as members of the Hart County Board of Elections, Appellees. Harold ATWELL, Cross-Appellant, v. Jack SIMS and Jimmy McCoy, George Lang, Conroy Harris and G. A. (Slim) Shelton as members of the Hart County Board of Elections, Cross-Appellees.
    Court of Appeals of Kentucky.
    Oct. 14, 1977.

      Davis Williams, Munfordville, for appellant, Jack Sims.
    Joseph R. Huddleston, Bowling Green, Marion Vance, Glasgow, for appellee, Harold Atwell.
    George E. Lang, Munfordville, for appel-lees, Hart County Board of Elections.
    Before COOPER, GANT and PARK, JJ.
   PARK, Judge.

This is an election contest arising out of the Democratic primary for county judge-executive of Hart County conducted on May 24, 1977. As certified by the board of elections, the contestee-appellant, Jack Sims, was the apparent winner by a plurality of forty-five votes, based upon the following tabulation:

Jack Sims 1626
Harold Atwell 1581
Eursie L. Sullivan 384

The contestant-appellee, Harold Atwell, instituted an election contest proceeding in the Hart Circuit Court challenging all of the votes in Euclid precinct (A-103). As tabulated by the board of elections, the following votes were cast in Euclid precinct:

Jack Sims 84
Harold Atwell 37
Eursie L. Sullivan 14

Thus, if the votes in Euclid precinct were all eliminated, Atwell would be the winner by a plurality of two votes.

The case was tried before the circuit court by deposition as permitted by KRS 120.065. In an Order, Opinion and Judgment entered September 9, 1977, the trial judge held that all of the votes cast in Euclid precinct should be disregarded. On the basis of the vote in the remaining sixteen precincts and the absentee ballots, At-well was declared the winner by a plurality of two votes. Each party was directed to pay his own costs. Because the case was tried by deposition, the costs were substantial. Sims appeals from that portion of the judgment declaring Atwell to be the Democratic nominee for county judge-executive. Atwell cross-appeals from that portion of the judgment relating to costs.

Throughout the proceedings, Atwell has contended that the irregularities in the conduct of the election in the Euclid precinct were of such magnitude as to justify disregarding all of the votes cast in that precinct. Atwell relies primarily upon the decision in Upton v. Knuckles, Ky., 470 S.W.2d 822 (1971). Sims has conceded that there were illegal votes cast in the Euclid precinct, but he asserts that Atwell has failed to prove that the illegal votes were cast for Sims. Because of this failure of proof, Sims asserts that all of the illegal votes in the Euclid precinct should be charged against Atwell. He cites Watts v. Fugate, Ky., 442 S.W.2d 569 (1969). Although the paramount issue relates to violations of the secret ballot, there are numerous other irregularities which must be considered in determining whether the vote in Euclid precinct should be disregarded.

GENERAL CONDUCT OF ELECTION

Pursuant to KRS 117.045(1), the county board of elections appointed the following precinct election officers: Willie McCoy, Judge (Democrat); Lawrence Bacon, Judge (Republican); James Wood, Clerk (Democrat); and Mable Bratcher, Sheriff (Republican). James Wood did not serve as precinct clerk at the May primary election. Betty Horton was appointed by McCoy to act in Wood’s place as the Democratic clerk of the election. As he was the only duly appointed Democratic election officer present at the Euclid precinct on the day of the election, McCoy apparently was acting under the authority of KRS 117.-045(3) when he selected Betty Horton to act as the Democratic clerk.

Atwell attacks the appointment of Betty Horton on two grounds. First, Atwell relies upon the testimony of Wood that, several days before the election, he informed McCoy that he would be unable to serve as clerk. McCoy testified that Wood stated only that he might not be able to serve. According to McCoy, he asked Betty Horton to be available to serve as an election officer in the event that Wood did not come to the polls on election day. The trial judge made no findings of fact with respect to this issue. The record is clear that the county board of elections was not informed by anyone of Wood’s intention not to serve so that the vacancy could be filled by the board of elections pursuant to KRS 117.-045(2).

Even more important than the method of her appointment is the fact that Betty Horton was a registered Republican. However, the record also establishes that Mrs. Horton had been a registered Democrat until 1973 until she switched registration to assist a Republican candidate. At the time of the election in question, she was on the Democratic party executive committee by virtue of being Democratic chairwoman for Euclid precinct. On one prior occasion she had served as an election officer.

Betty Horton was not lawfully qualified to serve as the Democratic clerk at the primary election May 24,1977, at the Euclid precinct. Nevertheless, the defect in her appointment should not disfranchise all of the voters in the Euclid precinct. Burchell v. Smith, Ky., 262 S.W.2d 365 (1953); Harmon v. Wilson, Ky., 254 S.W.2d 693 (1953). Atwell cites no authority for the proposition that the vote of an entire precinct will be disregarded merely because one of the persons serving as an election official was not properly qualified. In view of McCoy’s authority under KRS 117.045(3) to fill a vacancy in the office of Democratic clerk, Betty Horton was, at the very least, a de facto officer. Schaffield v. Hebel, 301 Ky. 358, 192 S.W.2d 84 (1946). Consequently, the election at Euclid precinct will not be invalidated merely because of the irregularity in the appointment of Betty Horton as the Democratic clerk of election.

None of the election officers at the Euclid precinct took an oath of office. At-well cites no statute requiring an oath for precinct election officers. KRS 116.120 formerly required an oath, but it has been repealed. 1972 Ky. Acts, Ch. 188, § 69. Assuming that an oath were required by Section 228 of the Kentucky Constitution or the general statute relating to oaths, KRS 62.010, the failure of the precinct election officers to take an oath does not invalidate the election in that precinct. Hodges v. Hodges, Ky., 314 S.W.2d 208 (1958).

The election in Euclid precinct was conducted in a small storeroom attached to a grocery in the Kessinger community. Although the evidence is conflicting, the great weight of the evidence indicates that McCoy spent most of the day on the front porch of the store. The trial judge made no specific finding on this issue, but did find that a large number of persons were permitted to electioneer “even at the very doors of the voting room.” There is also evidence that other election officers were absent for short periods of time during the day. Even if McCoy were absent from the voting room for most of the day, that fact alone would not invalidate the election. Schaffield v. Hebel, supra.

The record establishes that none of the precinct election officers received the instruction required by KRS 117.185(1). We deem this fact to be immaterial. The statute refers to instruction “in the use of the voting machines.” There is no evidence that the precinct officers were presented with any problem in the operation of the voting machine in Euclid precinct at anytime during the election day. The record also establishes that the Hart County Fiscal Court had not authorized electioneering at polling places as provided by KRS 117.-235(3). Not only was there electioneering in the vicinity of the polls at the Euclid precinct, but, as the trial judge found, the electioneering occurred up to the very doors of the voting room. However, there was no evidence that the electioneering interfered with the secrecy of the voting or that it in any way affected the outcome of the election at the Euclid precinct. The trial judge specifically found that there was no disorder or intimidation. Under these circumstances, electioneering adjacent to the polls does not justify invalidating all of the votes in the precinct. Stanley v. Goff, Ky., 324 S.W.2d 124 (1959).

None of the general objections to the conduct of the election in Euclid precinct would sustain a judgment invalidating all votes cast in that precinct in the election, and the judgment of the trial judge was not based upon those grounds. Nevertheless, the foregoing evidence relating to McCoy’s actions on election day and the appointment of Betty Horton is relevant on the question of open voting.

OPEN VOTING

The secret ballot has been a cornerstone of our representative form of government since the adoption of the present Constitution of Kentucky in 1891. Section 147 of the Kentucky Constitution provides:

. . . [A]ll elections by the people shall be by secret official ballot, furnished by public authority to the voters at the polls, and marked by each voter in private at the polls . . The General Assembly shall pass all necessary laws to enforce this section, and shall provide that persons illiterate, blind, or in any way disabled may have their ballots marked or voted as herein required.

Pursuant to this constitutional mandate, KRS 117.255(2) provides:

No voter shall be permitted to receive any assistance in voting at the polls unless he makes and signs an oath that, by reason of inability to read English, or by reason of blindness or other physical disability he is unable to vote without assistance. Upon making and filing with the judges such oath, the voter shall retire to the voting machine, with the judges, and one (1) of the judges shall then, in the presence of the other and the voter, operate the machine as the voter directs. The disabled person applying to vote may, if he prefers, be assisted by a person of his own choice who is not an election officer. The clerk shall swear the person accompanying the disabled or blind voter to operate the voting machine in accordance with the direction of the disabled or blind voter, and the disabled or blind voter and person sworn shall then enter the voting booth and the one so sworn shall operate the machine for the disabled or blind voter as he directs. No voter shall be assisted under this subsection unless the judges and sheriff of election are satisfied of the truth of the facts stated in the oath. The voter shall state in his oath the specific physical disability that requires him to receive assistance, and the judges of election shall enter in writing, on a record' of assisted voters, the voter’s name and the specific physical disability which required him to receive assistance.

The record clearly establishes that these procedures enacted to protect the secret ballot were openly flouted by the election officials in Euclid precinct at the primary election of May 24, 1977.

In his findings of fact, the trial judge stated:

The proof shows that KRS 117.255 was the most flagrantly violated election law. Not a single voter signed the required affidavit of disability. Yet, voter after voter was accompanied in the voting booth by a single election officer who either voted or assisted the voter. Many of them appeared to be under no disability. Forty or more such votes were cast among the witnesses from Euclid precinct that testified. All of these votes were illegal.

From our examination of the record in this case, we conclude that there were forty-eight voters who cast their vote with another person present in the voting booth.

Of the forty-eight persons who did not vote by secret ballot, four were accompanied into the voting booth by Mable Bratcher, the Republican sheriff, and four were accompanied by close relatives. Atwell concedes that Mrs. Bratcher and the voters’ family members acted in good faith for the purpose of assisting the voters in question. Nevertheless, Mrs. Bratcher acknowledged that she knew that a judge from each party should go into the booth with any voter needing assistance.

With respect to Willie McCoy and Betty Horton, the evidence of impropriety is even stronger. McCoy accompanied nine voters into the booth, and Mrs. Horton accompanied thirty-one voters. On many if not most occasions, McCoy and Horton accompanied the voter into the booth without any prior request for assistance. McCoy and Horton observed how the vote was cast in each instance. In many instances, McCoy or Horton actually cast the vote by pulling the levers. Because McCoy and Horton were alone in the booth with many voters who were illiterate or unable to see, there was no way to determine whether they in fact voted the wishes of the voter. Some voters complained that McCoy or Horton voted for them when they were perfectly capable of voting themselves. On one occasion, McCoy questioned a voter why she wanted to vote for Atwell. Three of the persons “voted” by Betty Horton received three or four dollars in cash after they left the building in which the election was conducted.

The action of McCoy and Horton was not based on ignorance. McCoy had served as an election official for many years, and on two occasions he had served as county judge of Hart County. He personally selected Betty Horton to serve as the other Democratic precinct officer. With McCoy stationed outside the door to the polls and Horton accompanying voters into the voting booth, there was good reason for Atwell to suspect that the arrangement was intended to insure that persons voted as they were paid to vote. The evidence does not establish that this actually occurred, but the potential for fraud by such an arrangement is awesome.

The practice of open voting without the execution of an affidavit of disability was condemned more than sixty years ago in Allen v. Griffith, 160 Ky. 528, 169 S.W. 1003 (1914).

It is well settled that ballots voted openly on the table by voters who are not sworn as to their disability are illegal and cannot be counted. ... It may be that in the early operation of the secret ballot there was some confusion as to the proper method of voting; but the law has now been in force so many years, and its provisions are so well known at this time, it may be doubted if the wholesale voting on the table, such as was practiced in several of the precincts involved in this contest, can be attributed to mere ignorance on the part of the election officers.

169 S.W. at 1005. Over fifty years ago in Marilla v. Ratterman, 209 Ky. 409, 273 S.W. 69 (1925), the court again condemned the illegal assistance of voters in the following language:

. The laws relating to voting by secret ballot having been on the statute books for 30 or more years it is difficult to conceive that persons acting as officers of election and voters would so persistently and completely violate and disregard these laws, without being moved thereto by an illegal purpose. At this time, in our history, there can be no excuse for such pretended elections, and the sooner those who conduct elections become fully aware of this fact, it will redound to their interest, as well as all others.

273 S.W. at 75. The specific practice involved in this case was condemned in Mills v. Broughton, Ky., 365 S.W.2d 315 (1962). In that case, fifty percent of the voters in a precinct were aided by the judges in voting on the voting machine, and none of the assisted voters made the oath then required by statute. The court held that the making of the oath of disability was mandatory, and that there had been a violation of the secrecy of the ballot required by section 147 of the Kentucky Constitution. At this point in time, the open voting in Euclid precinct is inexcusable.

Sims suggests that the actions of the precinct election officers were not intended to benefit either candidate. Even if this were true, the absence of an express intent to benefit a specific candidate does not detract from the wrong done to the voters themselves. In discussing open voting in Harrison v. Stroud, 129 Ky. 193, 110 S.W. 828, 33 K.L.R. 653, 16 Ann.Cas. 1050 (1908), the court stated:

. In the case at bar all who were permitted to vote openly, as it is called, had not a bad purpose. They intended to vote. They had the legal right to vote. They attempted to exercise that right. They were misled by the officers of election so that their suffrage in this instance was destroyed.

110 S.W. at 830. In discussing what constituted fraud in an election contest, this court recently adopted the following definition from Black’s Law Dictionary:

FRAUD — An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. .

Kirby v. Wood, Ky.App., 558 S.W.2d 180 (1977).

By their actions, the election officers in Euclid precinct led numerous voters to believe that they could legally receive “assistance” without executing the statutory affidavit and that a single election officer could accompany the voter into the booth. Because of the action of the precinct election officers, the votes cast by these voters were illegal. We have no hesitancy in declaring that a fraud was practiced upon the voters who were led to believe that they could cast a legal vote without complying with the requirements of KRS 117.255(2).

OTHER ILLEGAL VOTES

Atwell asserts that there were votes that were illegal for reasons other than open voting. In many cases a vote was illegal for more than one reason. For example, a convicted felon awaiting transportation to the Kentucky State Reformatory was permitted to vote. As he received assistance in voting, his vote has already been calculated in determining the number of illegal open votes. When all of the duplications are eliminated, we find from the evidence that there are ten additional illegal votes.

Four voters failed to sign the precinct list as required by KRS 117.225. This statute is mandatory. The signing of the precinct list is a pre-requisite to the right of a voter to cast a ballot. Gross v. Helton, Ky., 267 S.W.2d 67 (1954). In this case, the failure to sign the precinct list was not widespread. In each instance, the voter’s name was signed on the precinct list by a relative, election officer or other unknown person. However, it is clear that each voter in question actually voted in the election. This is not a case in which a third person used a legal voter’s name to cast an illegal vote and refused to sign the precinct list in order to escape detection. We find no fraud with respect to the four voters who did not sign the precinct list.

The evidence establishes that five persons who were not residents of Euclid precinct voted illegally. Gambrell v. Parker, Ky., 261 S.W.2d 447 (1953); KRS 116.-025; KRS 116.055(1). However, the evidence in the record also establishes that each of the five voters was, in fact, a bona fide resident of Hart County who would have been entitled to vote in the primary election for county judge-executive if he or she had requested a transfer of registration pursuant to KRS 116.085(1). Although illegal, these votes are not tainted with fraud.

The remaining illegal vote cast at the Euclid precinct was the vote of Betty Horton. Because she was a registered Republican, she was not entitled to vote in the Democratic primary for county judge-executive. KRS 116.055(1). Betty Horton served as clerk, and she had possession of the precinct list. She was in no position to claim that she did not know that she was a registered Republican. Under these circumstances, her vote should be deemed fraudulent and considered with the forty-eight open votes.

EFFECT OF ILLEGAL VOTES IN EUCLID PRECINCT ON THE PRIMARY ELECTION RESULTS

One hundred forty-seven persons voted in Euclid precinct during the May 24, 1977, primary election. Of that number, fifty-eight voted illegally. It follows that eighty-nine persons cast their votes at the Euclid precinct without any violation of the election law. In his findings of fact, the trial judge stated it was impossible to determine for. whom the illegal voters cast their vote. The trial judge disregarded all of the votes cast in the Euclid precinct because of what he deemed to be “the large percentage of illegal votes cast.”

Of the one hundred forty-seven persons who voted in Euclid precinct, one hundred twenty-eight testified by deposition. Most of these voters were asked for whom they voted in the primary race for county judge-executive. Those persons who cast legal votes did not have to testify how they voted. Little v. Alexander, 258 Ky. 419, 80 S.W.2d 32 (1935) (dictum). When the illegality of a vote is established, the voter may be compelled to state how he east his illegal vote. Bentley v. Wright, 303 Ky. 618, 197 S.W.2d 420 (1946). In the present case, the voters who cast illegal votes were not compelled to state for whom they had voted. Evidence indicates that Sims encouraged some voters to decline to state how they cast their votes. The record also establishes that Atwell’s attorney indicated to many voters that they had a right to decline to testify how they voted. An illegal voter may refuse to testify for whom he or she voted only on the grounds that the answer might tend to incriminate. See Wilkinson v. Queen, Ky., 269 S.W.2d 223 (1954); Black v. Spillman, 185 Ky. 201, 215 S.W. 28 (1919) (dictum). In the present case, neither party moved the trial court for an order pursuant to CR 37.01(2)(A) requiring the illegal voters to disclose for whom they had voted.

The trial judge was correct in finding that it was impossible to determine for whom all the illegal voters cast their votes. However, some of the illegal voters did reveal for whom they voted. Consequently, it is possible to determine for whom some of the illegal voters cast their votes.

With respect to the forty-eight open votes, the record establishes that fourteen voted for Sims and four voted for Atwell. With respect to the ten other illegal votes, the record reveals that one voted for Atwell and that one voted for the third candidate, Sullivan. These known illegal votes should be deducted from the candidates as follows:

Sims Atwell Sullivan
1626 1581 384 14 5 1
1612 1576 383

After deducting the known illegal votes, Sims’s plurality is reduced from forty-five votes to thirty-six votes.

Based upon the record in the case, it is not possible to determine for whom the remaining thirty-eight illegal votes were cast. Of that number, thirty-one can be deemed to have been tainted by fraud — the remaining thirty open votes plus the illegal vote of Betty Horton. These thirty-one “fraudulent” votes would not be enough to affect the outcome of the election, even if all were charged against Sims. Consequently, the entire vote in Euclid precinct should not be thrown out solely on the basis of the thirty open votes and the vote of Betty Horton as a registered Republican.

The outcome of the election could be affected only if the remaining seven illegal votes are in some way chargeable to Sims. These votes were untainted by fraud. Three voters failed to sign the precinct list, and four voters resided outside Euclid precinct but within Hart County. Atwell had the burden of proving for whom these votes were cast. Napier v. Noplis, Ky., 318 S.W.2d 875 (1958); Watts v. Fugate, supra. Having failed to prove for whom the seven votes were cast, Atwell should be charged with those votes. There is no justification for charging these votes against Sims. Consequently, we conclude that the trial judge erred in holding that Atwell was the winner of the election. See Miller v. Wathen, Ky., 528 S.W.2d 733 (1975).

We are not required to disregard all of the votes in the Euclid precinct under the authority of Upton v. Knuckles, supra. The violations of the election laws were not so flagrant, extensive and corrupt that all of the votes in the Euclid precinct should be deemed void and illegal. Because a substantial majority of the votes cast in the Euclid precinct were untainted by any fraud or illegality (89 out of 147), we would be extremely reluctant to throw out the vote of the entire precinct. To do so would disenfranchise the legal voters because of the illegal acts of the election officials which would not have affected the outcome of the election. We seriously question the validity of a rule which would throw out the entire vote of a precinct even though a significant number of legal votes were cast. When presented with a similar question in Marilla v. Ratterman, supra, the court held:

Neither of the contestants was elected because neither did or could demonstrate with a reasonable certainty that he had received a majority of the legal votes. The official returns are presumed to be correct, and if one would overturn them, he must show with reasonable certainty that he was elected. The casting out of the precincts is not a holding that there were no legal votes cast in them, but that it was impossible to separate them from the illegal and that without a total disregard of the votes in these precincts, the contestants would not have any majority.

273 S.W. at 77. If the illegal votes are so numerous that it is impossible, as a practical matter, to determine for whom they were cast so that the election cannot be determined on the basis of the legal votes, the entire election should be declared void rather than the result in a particular precinct. Wells v. Wallace, Ky., 337 S.W.2d 18 (1959); Browning v. Lovett, 139 Ky. 480, 94 S.W. 661 (1906). We believe that there is much merit to the dissenting opinion in Upton v. Knuckles, 470 S.W.2d at 827. Nevertheless, we need not decide when the vote of an entire precinct may be disregarded rather than declaring that there was no valid election. In the present case, the contestant has failed to introduce sufficient evidence to establish that Sims did not receive the Democratic nomination for county j udge-executive.

In appeal No. CA-1748-MR, the judgment of the circuit court is reversed with directions to enter a judgment dismissing the contestant’s complaint. In the cross-appeal No. CA-1778-MR, the judgment as to costs must be affirmed, because Atwell has not shown that he is entitled to any relief. The mandate shall issue forthwith. KRS 120.075(3).

All concur.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Cornelius DODSON, Appellant.
    No. 37584.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 16, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.

      James A. Bell, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   GUNN, Judge.

A jury found defendant guilty of two counts of first degree murder and two counts of kidnapping. Defendant was sentenced by the trial court to two life sentences on the murder convictions and two ten year terms for the kidnappings, all to be served consecutively. A multitude of points has been raised on appeal, none of which is meritorious; we affirm the conviction.

Defendant has challenged the sufficiency of the evidence which requires us to disser-tate on the facts. A grand jury, in a four count indictment, charged defendant and Billy Rabun of acting jointly in the commission of the kidnapping and murder of Sandra Smith and Kenneth Clay. Defendant’s motion for severance of his trial from Ra-bun was granted, but his motion for separation of counts was denied.

The State’s primary witness linking defendant to the crimes was 18 year old Karen Cravens, an acknowledged heroin addict. It was her testimony that she and her boyfriend, Darryl Black were making a search for some narcotics and were directed to 4136 Westminster in St. Louis as a place where narcotics could be purchased. On May 29, 1975, Ms. Cravens and Black were admitted into the house at 4136 Westminster and purchased some “buttons” of heroin which they injected into their systems. Cravens and Black remained on the Westminster premises throughout the day and evening of May 29 while a brisk narcotics sales operation took place.

During the course of the evening of May 29, Cravens, who was on the first floor of the house, heard an argument taking place between the two subsequent kidnapping and murder victims, Kenneth Clay and Sandra Smith. Billy Rabun, an alleged principal in the drug operation, then entered the house for the first time and went upstairs to be with Clay and Smith. About 20 minutes after Rabun had gone upstairs, Ms. Smith left the house claiming to have been injured, and Rabun and Clay took Ms. Cravens with them to look for her. When the threesome was unable to locate Ms. Smith, Ms. Cravens was taken back to 4136 Westminster where she spent the night.

The next morning, May 30, Ms. Cravens saw Rabun, Clay and Smith enter the house. Ms. Smith was weeping and protesting that she had not taken any money. Rabun was truculent. Directing his animus at Ms. Smith, he told her to “shut up,” and with Clay took Ms. Smith upstairs. In the afternoon of May 30, Ms. Cravens went upstairs to a kitchen area where drugs were distributed to customers. She observed both Clay and Ms. Smith tied to chairs with their hands bound behind their backs. Ms. Cravens returned downstairs to participate in the bustling narcotics trade which was apparently not hampered by the nefarious activities upstairs. Rabun himself assisted by taking over Clay’s assigned duty of dispensing narcotics after the latter’s confinement.

Between one and four o’clock in the afternoon of May 30, the defendant arrived. He proceeded directly to the second floor. About an hour after defendant arrived, Ms. Cravens heard a moan from Ms. Smith upstairs. Then, at defendant’s request, Ms. Cravens took a can of Drano to defendant. At that time she noted Rabun was present with defendant in the presence of Smith and Clay who were still tied to their chairs. Clay was now pleading for Ms. Cravens to vouch that he had not taken any money.

The day’s activities apparently caused defendant and Rabun to be hungry, and they sent Ms. Cravens to purchase their evening meal. When she returned with the food, Ms. Cravens noticed that Clay was still tied to his chair but that Ms. Smith was lying motionless on the floor of another room. Cravens saw the defendant standing over Ms. Smith’s body, smilingly admitting that he had strangled her to death.

A short time later, Ms. Cravens was again downstairs when she heard at least two shots fired. When defendant called for someone to come upstairs, Ms. Cravens complied and helped move Clay’s dead body to a bed from the chair where it had been tied. Defendant and another person lifted Ms. Smith’s body onto the same bed with Clay who was bleeding from the head. Ms. Smith’s face and head were badly burned. After everyone left the room where the bodies of Clay and Smith had been deposited, defendant stated aloud and in no uncertain terms in the vernacular of his trade that he would kill anyone he caught defalcating with his money.

Defendant then offered Ms. Cravens the dead Clay’s former job of distributing drugs to customers, which she accepted. Defendant stayed for a short period of time preparing quantities of drugs for sale.

After defendant and Rabun departed Ms. Cravens cleaned Clay’s blood from the chair and floor. Sometime after midnight on May 31, the two men returned and wrapped each body in separate, colored blankets using wires and electrical cords as ligatures. As the blanket shrouded corpses were being carried outside, Rabun warned Ms. Cravens: “you haven’t seen anything, you haven’t heard anything.”

The two bodies were found by police in the early morning of May 31, on a vacant lot in East St. Louis. The bodies were enclosed in the blankets described by Ms. Cravens and wrapped with wire and electrical cord as she had depicted. Smith’s purse and Clay’s wallet were found with the bodies with a .25 caliber shell casing inside Clay’s blanket matching the casing later found at 4136 Westminster.

Cause of Clay’s death was attributed to four .25 caliber bullets in his head. Ms. Smith had been strangled to death and had third degree alkaline chemical burns on her face, neck and shoulders. $125 was found in her vagina.

On June 1, 1975, St. Louis police, pursuant to a warrant, searched 4136 Westminster, ostensibly for the purpose of uncovering evidence of narcotics trafficking. The police also had reason to believe that they would find evidence relating to the murders of Clay and Smith, but the warrants were not obtained for that purpose. A contingent of approximately 20 police officers arrived at the house, and after making their presence and purpose known, entered. When police arrived upstairs Ms. Cravens and Black were flushing red capsules down a sink. Both were arrested for murder. All other persons in the house were arrested for narcotics possession. Neither defendant nor Rabun was present at the time of the search, but the defendant did arrive about two hours after the police first entered. He was arrested for murder, and Rabun was arrested shortly thereafter at his apartment.

Various narcotics and narcotics paraphernalia were seized and photographs of the items as well as the items themselves were introduced at trial over defendant’s objections. The partially dissolved red capsules and a .25 caliber shell casing were recovered from the sink drain pipe. The capsules were found to contain heroin, and the shell casing was determined to have been fired from the same weapon as the casing found with Clay’s body.

Defendant’s defense was an alibi that he was elsewhere at the time of the murders; that he had no connection with 4136 Westminster. The owner of the house, testifying for defendant, stated that she rented it to another person and that the defendant had no possessory interest in the property. Defendant’s alibi witnesses were a bail bondsman testifying that on May 30, between 3 and 3:30 p. m., he had made bond for defendant on another charge. Defendant’s sister and a girlfriend testified that they had been with defendant shortly after 3 o’clock at the courthouse when defendant was released on bond shortly after 3 p. m.; the girlfriend testified she spent the evening thereafter with defendant. The State’s rebuttal testimony was from Circuit Judge Clyde Cahill, Jr. that he had signed defendant’s bond on May 30 somewhere between 10:30 a. m. and 1:30 p. m. An assistant circuit attorney, testified that defendant left Judge Cahill’s courtroom free on bond prior to 12:30 p. m. on May 30.

Defendant’s first allegation of error is that he was unconstitutionally denied bail prior to trial thereby hindering the preparation of his defense. The specific allegation of prejudice is that he could not assist his counsel in locating alibi witnesses.

Article I, § 20 of the Missouri Constitution guarantees: “That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.” One charged with a non capital crime, therefore, may be admitted to bail as a matter of right with a few narrowly drawn exceptions. Ex parte Burgess, 309 Mo. 397, 274 S.W. 423 (banc 1925); State ex rel. Corella v. Miles, 303 Mo. 648, 262 S.W. 364 (banc 1924). The only legitimate purpose in setting bail is to ensure the accused’s appearance at trial, and any amount in addition to that figure is excessive. State v. Thompkins, 515 S.W.2d 808 (Mo.App.1974); Ex parte Chandler, 297 S.W.2d 616 (Mo.App. 1957). Denial of bail prior to trial to inflict punishment on the accused would not only hamper the preparation of his case, but would render meaningless the presumption of innocence. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Bail is to be denied, therefore, only under the most compelling circumstances.

On June 27, 1975, defendant filed a motion to be admitted to reasonable bail. A hearing was held in which he was represented by counsel. At the time of the hearing, in addition to the four counts which are the subject of this appeal, defendant was also charged with and was awaiting trial on four other felony charges including one count of first degree murder. It was alleged that he had committed these most recent crimes while free on bail from the earlier charges. Defendant also had a prior conviction in 1973 for armed robbery and carrying a concealed weapon.

Defendant, testifying at the bail hearing, stated that he had been a resident of St. Louis his entire life (defendant was 23 years old at the time) and that his immediate family lived in the City as well. He stated that he had previously been released on bail on other charges, that he had always reported to court when directed, and that he had never forfeited bail. Defendant’s bondsman testified that he had written four previous bail bonds for defendant and considered him a good bond risk.

Testifying for the State, Officer William Jones, a St. Louis policeman, related a portion of a conversation he had overheard between defendant and another police officer shortly after defendant’s arrest. In response to a question about what he would do if he found the witnesses against him defendant stated, “I’d kiss them,” and then began laughing. He further testified that in a conversation between himself and defendant regarding the brutality of the murder of Sandra Jean Smith, defendant stated, “I’d kill a brick if it crossed me.” Officer Jones interpreted these statements as threats against potential witnesses.

After noting that defendant had allegedly committed two murders and kidnappings while free on bail from other murder charges the court denied his motion to be admitted to bail. It ruled that “the defendant if at liberty on bond would be a danger to the State’s witnesses and to the people of this community and that the extent of the charges against the defendant are such that it is not likely that he would respond to any bond.” The court stated that it was denying bail “specifically upon the theory that to admit defendant to bond would be a danger to the administration of justice in the State of Missouri.” Defendant subsequently challenged the denial of bail by filing a writ of habeas corpus with this court, Dodson v. Dyer, No. 37,227 (Mo.App. July 15, 1975), and with the Missouri Supreme Court, Dodson v. Dyer, No. 59,156 (Mo. banc July 23,1975). Both applications were denied without opinion.

There are at least three independently sufficient grounds upon which this point may be ruled against defendant. The first of these relates to the effect of the aforementioned denials of the writs of ha-beas corpus. Piling an application for a writ of habeas corpus is the proper procedure for contesting the denial of bail. State v. Thompkins, supra. A person deprived of his liberty is not limited in the number of applications he may make except in that the additional applications may not be made to a court of inferior jurisdiction. Section 532.040 RSMo 1969; Rule 91.58 V.A.M.R.; In re Breck, 252 Mo. 302, 158 S.W. 843 (1913); Weir v. Marley, 99 Mo. 484, 12 S.W. 798 (1890). There is, however, no right of appeal from denial of a writ of habeas corpus though the decision may be reviewed by certiorari. Jones v. State, 471 S.W.2d 166 (Mo. banc 1971); State v. Blair, 357 Mo. 287, 208 S.W.2d 268 (banc 1948); State v. Carver, 355 S.W.2d 324 (Mo.App. 1962). Defendant, in once again raising the issue of denial of bail, in effect attempts to appeal the previous denials of his applications for writs of habeas corpus by a court of inferior jurisdiction. This procedure is not sanctioned under the statute or the rules and serves as a basis for refusing to rule on this point further.

Second, courts have an inherent power to deny or revoke bail to protect its processes and the community. Carbo v. United States, 82 S.Ct. 662, 7 L.Ed.2d 769 (1962); Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683 (1961); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976); United States v. Gilbert, 138 U.S.App.D.C. 59, 425 F.2d 490 (1969). “While bail is favored and is granted in the ordinary course of events, an accused by his actions can forfeit his right to bail and the court is under a duty to protect its processes and to protect prospective witnesses.” United States v. Smith, 444 F.2d 61, 62 (8th Cir. 1971), cert. den., 405 U.S. 977, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972).

In this case there was reliable, direct evidence that defendant, if he were released, would be'a threat to prospective witnesses against him. Moreover, his past conduct indicated that his freedom would be potentially harmful to the safety of the community, as these murders were allegedly committed within a few hours after he had been released on bail on another murder charge. Under a protection of processes theory defendant could lawfully be denied bail.

Apt here is People ex rel. Hemmingway v. Elrod, 60 Ill.2d 74, 322 N.E.2d 837 (1975), where the Illinois Supreme Court, while holding there were no “capital offenses,” recognized that the “constitutional right to bail must be qualified for the authority of the courts, as an incident of their power to manage the conduct of proceedings before them, to deny or revoke bail when such action is appropriate to preserve the orderly process of criminal procedure. This action must not be based on mere suspicion but must be supported by sufficient evidence to show that it is required.” 322 N.E.2d at 840.

We believe it proper and lawful to preserve the integrity of the administration of criminal justice to deny bail in exceptional and high risk cases. And we find here that there was sufficient evidence to support a denial of bail to defendant; that such denial of bail was necessary to preserve the integrity of the criminal justice system.

Third, there is no showing that defendant suffered any prejudice as a result of being denied bail. His alibi witnesses appeared at trial and testified to his whereabouts at -the time of the murders. No additional punishment was imposed because of his confinement prior to trial. Section 546.615, RSMo Supp.1975 requires that credit be given against any sentence imposed for all time spent in jail awaiting trial. Defendant’s first point, regarding denial of bail is therefore destitute of merit.

Defendant next alleges that the trial court erred in overruling his motion for separation of the murder and kidnapping counts. This point is also without merit. The State may not divide one crime into its component parts and prosecute the accused under the individual parts in order to obtain multiple convictions. State v. Parsons, 513 S.W.2d 430 (Mo.1974). Under Rule 24.04 Y.A.M.R., however, the State may join in a single indictment or information “[a]ll offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan . .” As the Supreme Court noted in State v. Baker, 524 S.W.2d 122, 126 (Mo. banc 1975), which upheld the constitutionality of Rule 24.04, when joinder of offenses in a single indictment is authorized under the Rule “it is clear that trial of the separate offenses in a single trial is permissible.” In this case the State alleged and proved that the acts of kidnapping and confining the victims were integral parts of a common scheme leading to their murder. The joinder of these two separate offenses in a single trial, was proper. See State v. Neal, 514 S.W.2d 544 (Mo. banc 1974); State v. Brooks, 513 S.W.2d 168 (Mo.App.1973).

Defendant’s next point relates to the introduction of photographs of the bodies of the two murder victims into evidence. He contends that their admission was error, because they were so inflammatory and prejudicial as to deny him a fair trial. The photographs in question were taken at the vacant lot where the bodies were discovered and at the coroner’s examination as they were removed from the blankets in which they were wrapped. Eleven photographs were admitted into evidence over objection. According to the record only three of the photographs were passed to the jury. These depicted the position of the bodies while still wrapped in the blankets on the vacant lot. The court specifically denied the State’s request to pass to the jury exhibits 9 and 11 which revealed the facial burns on Smith’s face in gruesome detail.

Though he asks us to review their content and determine their possible prejudicial effect, defendant has failed to include the photographs with the transcript on appeal. Thus, we have no basis on which to judge the propriety of their admission. The burden is on defendant to file a complete transcript for appellate review including all exhibits whose admission is alleged to be error. Rule 28.18 V.A.M.R.; Rule 81.12 V.A.M.R.; Rule 81.14 V.A.M.R.; Rule 81.15 V.A.M.R.; Jackson v. State, 514 S.W.2d 532 (Mo.1974); Garrett v. State, 486 S.W.2d 272 (Mo.1972); State v. Clark, 522 S.W.2d 332 (Mo.App.1975); State v. Davis, 515 S.W.2d 181 (Mo.App.1974). As defendant has not met this burden, his allegation may not be considered. We will not presume error where none is shown on the record before us.

Further, from our study of the verbal description of the photographs in the transcript we believe that defendant could not have prevailed on this point even if he had delivered them for our inspection. The admissibility of demonstrative evidence such as photographs of dead bodies lies within the sound discretion of the trial :ourt. State v. Robinson, 328 S.W.2d 667 (Mo.1959); State v. Frazier, 550 S.W.2d 590 (Mo.App.1977); State v. McClain, 536 S.W.2d 45 (Mo.App.1976). Such evidence is properly admissible when it sheds light on any material matter in issue. Thus, when it tends to connect the accused with the crime, prove the identity of the deceased, show the position of the body, show the location and nature of the wound, or tends to corroborate the testimony of a witness or refute a defense it is admissible unless the prejudicial effect is so great as to outweigh any possible probative value. State v. Jones, 515 S.W.2d 504 (Mo.1974); State v. Jackson, 499 S.W.2d 467 (Mo.1973); State v. Floyd, 360 S.W.2d 630 (Mo.1962); State v. Frazier, supra. In this case the photographs served a number of the above mentioned purposes and were relevant to show that defendant acted with the requisite premeditation and malice to constitute first degree murder. The trial court elaborated on his reasons for admitting certain of the photographs — that they were relevant for the jury’s consideration in determining the degree of homicide. See State v. Pinkus, 550 S.W.2d 829 (Mo.App.1977). It is inherent that in such brutal murders as here a gruesome scene may be depicted. There was not sufficient ground to deny the photographs’ admissibility, State v. Moore, 303 S.W.2d 60 (Mo.banc 1957), especially where, as here, the trial court refused to allow the most shocking photographs to be viewed by the jury.

Defendant next argues that admission into evidence of narcotics and narcotics paraphernalia seized from 4136 Westminster was improper because it constituted evidence of crimes other than those for which he was tried. He relies on the well recognized general principle that “evidence of commission of separate and distinct offenses is not admissible unless it has a legitimate tendency to directly establish the defendant’s guilt of the crime for which he is being tried.” State v. Williams, 539 S.W.2d 530, 533 (Mo.App.1976). See also State v. Jackson, 446 S.W.2d 627 (Mo.1969); State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954); State v. Cox, 508 S.W.2d 716 (Mo.App.1974). Indiscriminate admission of evidence of unrelated crimes violates the accused’s right to be tried for the offense charged. Equally well recognized is the exception to the general principle; i. e., that evidence of unrelated crimes may be admitted where relevant to show the motive for the accused’s actions. State v. Richardson, 515 S.W.2d 571 (Mo.1974); State v. Jackson, supra. Wide latitude is given the prosecution to develop evidence of motive. Billings v. State, 503 S.W.2d 57 (Mo.App.1973). The test to determine if the motive exception applies “is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime.” State v. Reese, supra, 274 S.W.2d at 307 (quoting from State v. Lyle, 125 S.C. 406, 118 S.E. 803, 807).

The prosecution’s theory was that these killings were directly attributable to defendant’s drug trafficking operations at 4136 Westminster. The State attempted to show that defendant’s motive for killing Smith and Clay was his anger over their alleged theft of proceeds from his drug sales. This theory is borne out by Kenneth Clay’s request for Karen Cravens to tell defendant and Rabun that he did not take any money, by defendant’s statement after Clay’s murder that he would kill anyone who took his money, and by the discovery of money secreted in Sandra Smith’s body. Thus, drug use and sales were inextricably linked to the motive for the kidnappings and murders. The logical relevancy test was satisfied, and the narcotics evidence was admissible. Under these circumstances the evidence of separate crimes was so interwoven with the evidence of the crime charged that one crime could not be coherently shown without proving the other. See State v. Larkins, 518 S.W.2d 131 (Mo.App.1974).

Defendant further alleges that the evidence of narcotics sales as well as all other evidence seized in the search of 4136 Westminster was inadmissible and should have been suppressed prior to trial, because it was obtained under a search warrant defective on its face. His allegation rests primarily on a claim that the affidavits in support of the warrant were insufficient to establish probable cause. But defendant has neglected to make the affidavits or the warrant a part of the record for review as required by Rule 81.12 V.A.M.R. Thus, we have no basis to rule on defendant’s contention that the documents are insufficient on their face. Jackson v. State, 514 S.W.2d 532 (Mo.1974).

A review of the motion to suppress proceedings convinces us that even a complete record would be unavailing to defendant, because he lacks the requisite standing to contest the legality of the search. An individual may not assert vicariously the Fourth Amendment’s protections against unreasonable searches and seizures, as its purpose is to protect the individual’s reasonable expectations of privacy. In re J.R.M., 487 S.W.2d 502 (Mo. banc 1972); State v. Drake, 512 S.W.2d 166 (Mo.App.1974). A person must be a victim of the illegal search to assert those protections. He must be the one against whom the search is directed as opposed to one who claims prejudice by the use of the fruits of a search directed at another. United States v. Kelly, 529 F.2d 1365 (8th Cir. 1976); State v. Hill, 539 S.W.2d 521 (Mo.App.1976). Thus, the issue of standing turns on whether the movant can show that under his peculiar circumstances the governmental intrusion violated his reasonable expectation of privacy. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); In re J.R.M., supra. No such showing can be made here, and no standing exists “where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.” Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208, 214 (1973). See also United States v. Tortorello, 533 F.2d 809 (2d Cir. 1976); State v. Ross, 507 S.W.2d 348 (Mo.1974); State v. Bates, 540 S.W.2d 161 (Mo.App.1976).

Defendant has satisfied none of the Brown criteria. He did not arrive at 4136 Westminster until after the search was completed. The owner of the premises searched stated that someone other than defendant was the lessee. Defendant maintained that his home was at 768 Hamilton and at no time claimed a possessory interest in the Westminster address. Finally, possession of the evidence seized, though relevant to show motive, was not an essential element of the crimes charged; therefore, defendant was not entitled to “automatic standing.” See Jones v. United States, supra. Defendant’s motion to suppress the evidence was properly denied.

Defendant raises three separate points relating to the sufficiency of the evidence to sustain his conviction. First, he argues that the testimony of Karen Cravens, the State’s chief witness, should have been stricken because she was under the influence of narcotics when the events to which she testified occurred. Second, he argues that Cravens was an accomplice to the crimes and that as such her testimony was insufficiently corroborated to support a conviction. Finally, he argues that even if Cravens’ testimony were admissible and corroborated the State failed to make a submissible case.

Defendant’s first allegation was not raised in the motion for a new trial and therefore was not properly preserved for appellate review, Rule 27.20(a) V.A.M.R.; State v. Bowens, 476 S.W.2d 495 (Mo.1972); State v. Hammonds, 459 S.W.2d 365 (Mo. 1970). We, therefore, will not consider it unless it constitutes plain error under Rule 27.20(c) Y.A.M.R. We find that it does not. Cravens testified to her drug addiction and narcotics use at the time of the commission of the crimes. She also testified she was completely lucid during the entire period of time about which she testified. The jury was aware of these facts and was free to consider them in evaluating her credibility and the weight to be accorded her testimony. Such evaluation is solely within the province of the jury and is not a matter for review on appeal. State v. Wright, 476 S.W.2d 581 (Mo.1972); State v. Starkey, 536 S.W.2d 858 (Mo.App.1976); State v. Berry, 526 S.W.2d 92 (Mo.App.1975); State v. Morris, 518 S.W.2d 79 (Mo.App.1974).

Defendant’s second challenge to the sufficiency of the evidence is likewise without merit. Even if we assume arguen-do that Cravens was an accomplice, Missouri courts have long adhered to the common law rule that a conviction may stand on an accomplice’s uncorroborated testimony. State v. Lang, 515 S.W.2d 507 (Mo.1974); State v. Tressler, 503 S.W.2d 13 (Mo.1973), cert. den. 416 U.S. 973, 94 S.Ct. 2000, 40 L.Ed.2d 563 (1974); State v. Strong, 484 S.W.2d 657 (Mo.1972). Such testimony is insufficient to support a conviction only where it is so lacking in probative force as to be insubstantial evidence. State v. Powell, 433 S.W.2d 33 (Mo.1968); State v. Harris, 295 S.W.2d 94 (Mo.1956); State v. Morris, supra. It is insubstantial only where it is inherently incredible or self-destructive, totally impeached by contradictory evidence or such that reasonable minds could not believe it. State v. Tressler, supra; State v. Harris, supra; State v. Morris, supra.

Karen Cravens’ testimony suffered from none of these infirmities. On the contrary, her testimony provided a plausible account of the events leading up to and following the murders of Sandra Smith and Kenneth Clay. Moreover, her testimony was well corroborated by the physical and other circumstantial evidence at trial. Smith’s face was shown to have been severely burned by a caustic agent such as Drano, taken by Ms. Cravens to defendant. Cravens’ description of the manner in which the victims were killed was corroborated by the expert testimony of the two examining pathologists. Her description of the manner in which the bodies were bound for disposal was corroborated by East St. Louis police, even to the color of the blankets in which they were wrapped. So corroborated, Cravens’ testimony was not insubstantial and could serve as the basis for defendant’s conviction if believed by the jury.

Finally, defendant argues that even with Cravens’ testimony the circumstantial evidence of his guilt was insufficient to submit the case to the jury. His argument is essentially that the kidnappings occurred pri- or to his arrival at 4136 Westminster and that there were no eyewitnesses to the murders while other persons were present at the scene who could have committed them.

In order to test the sufficiency of the evidence in a criminal prosecution we must accept the facts in evidence, along with all favorable inferences which may reasonably be drawn therefrom, in the light most favorable to the State and the jury verdict. All evidence and inferences to the contrary must be disregarded. State v. Franco, 544 S.W.2d 533 (Mo. banc 1976); State v. Sloan, 548 S.W.2d 633 (Mo.App. 1977). It is not the function of the appellate court to substitute its evaluation of the facts for that of the jury to determine if the defendant’s guilt was proved beyond a reasonable doubt. We decide only if there was substantial evidence from which the jury could reasonably reach such a conclusion. State v. Strong, supra; State v. Mason, 506 S.W.2d 458 (Mo.App.1974). We find that there was substantial evidence of defendant’s guilt.

It is of no consequence here that there was no direct evidence of defendant’s precise role in the kidnapping-murders. It is not necessary for the State to prove that defendant personally committed acts constituting all of the essential elements of the crime charged. One who aids and abets in the commission of a criminal offense is guilty as a principal without proving a conspiracy. State v. Goodman, 482 S.W.2d 490 (Mo.1972); State v. Reed, 453 S.W.2d 946 (Mo.1970). All that is necessary to support a conviction is a showing of any form of affirmative participation in the crime by appellant. State v. Reed, supra; State v. Reynolds, 521 S.W.2d 486 (Mo.App.1975); State v. Mills, 495 S.W.2d 715 (Mo.App.1973).

Defendant was indicted jointly with Billy Rabun and is criminally liable for his acts so long as the necessary affirmative participation is shown. It is uncontroverted that Rabun initially seized Smith and Clay. The offense of kidnapping, however, is also committed by confinement of the persons seized, and, thus is a continuing crime. Section 559.240 RSMo 1969. There is no doubt that defendant actively participated in the victims’ continued confinement against their will once he arrived at 4136 Westminster. There is evidence that the victims were bound to their chairs in defendant’s presence for at least one hour as a prelude to their murder. This fact constitutes sufficient evidence of defendant’s affirmative participation with Rabun in the kidnappings and is sufficient to support his convictions on those charges.

The same is true regarding the murder convictions. Cravens testified that just pri- or to the murders she went to the second floor offering to get dinner for defendant arid Rabun. The only parties present in addition to Smith and Clay, who were bound but still alive, were defendant and Rabun. When Cravens returned with the food the same parties were present, but Smith was lying face down and motionless in a front room. Defendant was standing in the room with Rabun and smiling when he boasted: “I strangled that bitch to death.”

At this time Clay was still alive, tied to his chair. A short time after Cravens had gone downstairs she heard gun shots from upstairs. When she returned upstairs Clay had been shot. Defendant and Rabun were the only persons on the second floor when she entered the room. On this occasion Cravens could see that Smith’s face had been badly burned. After assisting in removing the bodies to a front room, she heard defendant state that he would kill anyone caught taking his money. This statement lends support to the State’s theory that defendant personally killed Smith and Clay because he suspected them of stealing money from his drug operations. All of Cravens’ testimony regarding these events was corroborated by the physicians who performed the autopsies on the victims. Smith’s death was attributed to asphyxiation by strangulation, and the presence of facial burns was noted. Likewise the cause of Clay’s death was confirmed to be gunshot wounds to the head. In view of Cravens’ testimony with its corroboration and in light of defendant’s direct admissions of responsibility, the evidence was not only sufficient to sustain the conviction but was overwhelming as to his guilt.

Defendant contends the trial court erred in failing to give two instructions he offered because they were “proper in these proceedings.” He then sets out the instructions and his argument, which consists of one sentence for each instruction, stating that the trial court erred in failing to give the instructions, because they are “essentially the same as” MAI-CR 3.52 and 3.58. Defendant cites no authority in support of his contention. Unsupported and essentially unargued points such as these violate Rule 84.04(d). We will not review points “briefed” without citation of authority and asserted without at least some semblance of argument. State v. Thomas, 529 S.W.2d 379 (Mo.1975); State v. Warters, 457 S.W.2d 808 (Mo.1970). State v. Paige, 550 S.W.2d 582 (Mo.App.1977). Moreover, defendant’s assertion that the refused instructions are “essentially the same” as MAI-CR is sufficient to dispose of these points. MAI-CR instructions are required to be given where applicable and the trial court commits error when it fails to do so. Rule 20.02(a),(c),(e) V.A.M.R.

At the conclusion of the evidence the court made the following statement to the jury:

“Ladies and gentlemen, it is my understanding that the evidence in this case is concluded. It will now be the duty of the Court to prepare for you the written instructions. This will necessarily take some time. Therefore, I am going to ask the sheriff to transport you back to the hotel where you can check out and return here and hopefully by that time we will have finished the instructions, counsel can present their arguments and the case can be presented to you for your deliberation.”

There was an immediate objection and motion for a mistrial by defendant’s counsel on the grounds that the court’s statement indicated to the jury that they should hurry their deliberations to end the case. The court denied the motion for a mistrial and responded out of the hearing of the jury:

“On the contrary, Mr. Bell. What I intend to say to the jury if I get an opportunity to finish my remarks is that after the case is presented to them they can deliberate as long as they please.”

The court then continued its remarks to the jury:

“We can proceed in that manner and you will not have to be concerned about leaving the hotel and you can have all the opportunity to deliberate on this case that you can ask for and require after the matter is submitted to you later on without any pressure or concern about being up in the hotel or anything of that kind.”

Immediately before the instructions were read to the jury the court once again informed them:

“Ladies and gentlemen, I don’t want anybody to feel any pressure upon you as far as transportation and I don’t want you to feel under any pressure in your deliberations in this case.”

Defendant renews his objection on appeal alleging that the trial court’s remarks intimated that the verdict was a foregone conclusion. It is a fundamental tenet of our system of jurisprudence that in order to protect the accused’s right to a fair trial the judge must maintain a high standard of fairness and impartiality throughout the course of the trial. He should make no remark which could reasonably be construed by the jury to the accused’s prejudice. State v. Hudson, 358 Mo. 424, 215 S.W.2d 441 (1948); State v. Hurd, 550 S.W.2d 804 (Mo.App.1977); State v. Embry, 530 S.W.2d 401 (Mo.App.1975).

“[T]he measure for determining if the trial court has acted improperly is whether the trial court’s conduct is such as to prejudice the minds of the jury against defendant thereby depriving defendant of a fair and impartial trial.” State v. Hill, 518 S.W.2d 682, 685 (Mo.App.1975).

On the basis of the record we cannot say that the remarks complained of deprived defendant of a fair trial or that they operated to his prejudice in any manner. Even if we were to construe the court’s remarks as “intimating that the verdict was a foregone conclusion” and as intended to expedite jury deliberations, there is nothing within the context of the court’s remarks which indicates any bias against defendant. The statement complained of is completely neutral on its face. Comments by the trial court directed towards the expeditious disposition of the litigation and in terms applicable to both parties without any hint of partiality could not have impaired defendant’s right to a fair trial. State v. Brown, 524 S.W.2d 188 (Mo.App.1975).

Furthermore, even where the trial court’s remarks are improper the prejudicial effect created may be removed where the court promptly cures the prejudice by instruction, admonition, or further explanation to the jury. State v. Castino, 264 S.W.2d 372 (Mo.1954); State v. Hudson, supra. The trial court here thoroughly emphasized, after its initial remarks were interrupted by counsel’s objection, that the jurors were to take as much time to deliberate as they needed. The court’s curative statements (if, indeed, any were necessary) were prompt and proper; any possible prejudice defendant suffered from the earlier remarks was removed. We are convinced that the fact that the jury’s deliberation time was short was caused not by the court’s remarks.

Defendant’s final point related to the interviewing of Ms. Cravens by his attorney. Prior to trial, at defendant’s counsel’s request, the State was directed to make its witnesses, including Ms. Cravens, available to be interviewed. The interviews were conducted before a court appointed commissioner, and, at the insistence of the circuit attorney, Ms. Cravens was interviewed by defendant’s counsel with an assistant circuit attorney present. Defendant’s counsel objected to the procedure regarding Ms. Cravens, but followed through with his interview of her and acknowledged that she had answered “everything” asked of her by him. Immediately prior to trial, defendant’s attorney requested an opportunity to again interview Ms. Cravens outside the circuit attorney’s presence. The private interview was denied, but defendant’s counsel was granted leave to interview her in open court before trial — an offer accepted by counsel. However, defendant’s counsel ultimately declined further interview of Ms. Cravens, stating “. . .1 think I have asked her too many questions already.”

Defendant contends on appeal that the trial court’s refusal to accord him a private interview with Ms. Cravens denied him due process and the right to a fair trial. The decision to be interviewed is, in the first instance, that of the prospective witness, and Ms. Cravens was under no obligation to talk to any counsel. State v. Gilliam, 351 S.W.2d 723 (Mo.1961); United States v. Long, 449 F.2d 288 (8th Cir. 1971), cert. den., Tocco v. United States, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1972). But, of course, an accused has a right to interview consenting prospective witnesses prior to trial. State v. Berstein, 372 S.W.2d 57 (Mo.1963); Cf. Kern v. State, 507 S.W.2d 8 (Mo. banc 1974). It is palpable that defendant’s counsel was afforded the right to interview Ms. Cravens.

The issue on this point is whether the defendant has a right to conduct the interview outside of the hearing of the prosecutor. Defendant in arguing that he has such a right relies primarily on the following statement from State v. Berstein, supra at 61: “In order to avoid coercion or intimidation of the witness for the prosecution, and so as not to hamper the defendant’s counsel, the interview with the witness should be conducted out of the presence of the prosecutor and with as much privacy as is consistent with reasonable security measures However, as the State points out, the statement, in addition to being couched in directory rather than mandatory terms, is dictum. In Berstein, defendant’s counsel requested and was refused any opportunity to interview the prospective witness. Thus, the issue of the propriety of the prosecutor’s presence at the interrogation was not before the court for decision, and its statement regarding that issue is not controlling.

Nevertheless, we agree, as in Berstein, that a private interview is the preferred procedure to follow and that under certain circumstances a denial of this opportunity could constitute reversible error. See State v. Gress, 210 Kan. 850, 504 P.2d 256 (1972); Bobo v. Commonwealth, 187 Va. 774, 48 S.E.2d 213 (1948); Frazier v. State, 142 Miss. 456, 107 So. 674 (1926); Gallman v. State, 29 Ala.App. 264, 195 So. 768 (1940). It is only where the trial court’s error results in prejudice to the defendant’s rights, that it may serve as the basis for reversal. State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972); State v. Gibson, 502 S.W.2d 310 (Mo.1973); State v. Martin, 530 S.W.2d 447 (Mo.App.1975); State v. Belleville, 530 S.W.2d 392 (Mo.App.1975). Where the evidence of guilt is strong, otherwise improper actions by the trial court may be rendered harmless when they do not contribute substantially to defendant’s conviction. In this case defendant’s attorney acknowledged that Ms. Cravens had answered all of his questions, and he declined a further interview offered by the court. Furthermore, at the time Cravens testified there was no claim of surprise or any other objection based on the inability to interview her in private. We cannot discern any way in which defendant was prejudiced. The conviction will not be disturbed on this point.

Finding no reversible error, we affirm defendant’s convictions.

WEIER, J., concurs.

KELLY, P. J., concurs in result.

      . Ms. Craven’s birth date was April 10, 1957.

      . Darryl Black was the father of Karen Craven’s two children.

      . The officer to whom this statement was made, Henry Harris, did not testify at this hearing. He did, however testify at trial that defendant had told him that once he was on the street no one would testify against him. He further testified that defendant’s threat was even more explicit than Officer Jones had stated. He stated that defendant had said he “was going to hug them [the witnesses] and kiss them to death.”

      . There is yet another theory for denying bail, but which we need not and do not apply in this case — the so-called “capital offense” exception.
      The crime of murder in the first degree is one which the Missouri legislature had determined to be punishable by death. § 559.030 RSMo 1969, now repealed. It was universally recognized as a capital offense. At the time of defendant’s trial, however, this legislatively mandated punishment was not constitutionally enforceable. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Whether that fact eliminated the existence of the classification of crimes previously accepted as capital offenses, and therefore made all offenses bailable, is a question which has not been addressed in this State. It is true that in Ex parte Dusenberry, 97 Mo. 504, 11 S.W. 217 (1889), and in Ex parte Welsh, 236 Mo.App. 1129, 162 S.W.2d 358 (1942), a capital offense was defined as one which may be punished by death. Those decisions, however, were decided long before, Furman v. Georgia, supra, and do not necessarily supply the exclusive definition of capital offense in light of its holding.
      Courts in several states have considered the effect of Furman on the meaning of “capital offense” in the interpretation of constitutional provisions similar or identical to ours dealing with bailable offenses. Two mutually exclusive theories have been developed which bring about opposite results. Those courts which hold that there are no capital offenses in the wake of Furman accept the penalty theory. They hold that the term capital offense relates solely to the penalty which may be imposed and not to the gravity of the crime. A capital offense is defined as one which may be punished by death. Where such punishment is not within the range of possibilities, no crimes are interpreted to fall within this category, and all crimes are bailable. See People ex rel. Hemmingway v. Elrod, 60 Ill.2d 74, 322 N.E.2d 837 (1975); State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972); Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972); Donaldson v. Sack, 265 So.2d 499 (Fla. 1972); Edinger v. Metzger, 32 Ohio App.2d 263, 290 N.E.2d 577 (1972); Ex parte Contella, 485 S.W.2d 910 (Tex.Cr.App. 1972).
      Those courts which continue to recognize certain crimes as capital offenses after Furman do so on the classification theory. They hold that the Supreme Court’s decision did not obviate the system of gradation of crimes established by the legislatures. Under the classification theory, courts look to the gravity of the crime to determine its classification. If it is one which the legislature determined to be so serious as to be punishable by death, then it remains a capital offense even though that specific punishment is unenforceable. “[T]he removal of the death penalty in no way affected the nature of the crime or the seriousness of the offense. It was the nature of the crime and seriousness of the offense which, we believe, the legislature had in mind when bail was limited . . .in capital cases.” State v. Haga, 81 Wash.2d 704, 504 P.2d 787 (banc 1972); See also Ex parte Bynum, 294 Ala. 78, 312 So.2d 52 (1975); Jones v. Sheriff, Washoe County, 89 Nev. 175, 509 P.2d 824 (1973); Roll v. Larson, 30 Utah 2d 271, 516 P.2d 1392 (1973); State v. Flood, 263 La. 700, 269 So.2d 212 (1972); Hudson v. McAdory, 268 So.2d 916 (Miss.1972); People ex rel. Dunbar v. District Court, 179 Colo. 304, 500 P.2d 358 (banc 1972); In re Kennedy, 512 P.2d 201 (Okl.Cr.App.1973).
      The precedent is almost equally divided between the two positions.

      . In his brief, defendant phrases this point in the following manner: “The trial court committed error in overruling appellant’s motion for a separation of counts.” As such, this point could be dismissed without discussion, because it violates Rule 84.04(d), in that it does not state wherein and why the trial court’s ruling is erroneous. State v. Redd, 550 S.W.2d 604 (Mo.App.1977).

      . This point was not raised in defendant’s motion for a new trial and was not properly preserved for review. Rule 27.20(a) V.A.M.R.; State v. Bowens, 476 S.W.2d 495 (Mo.1972); State v. Rowden, 452 S.W.2d 210 (Mo.1970).

      . In addition, such evidence is relevant to prove intent, absence of mistake or accident, common scheme or plan and the identity of the accused. State v. Reese, supra.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. John E. BLOCKTON, Appellant.
    No. 38293.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 23, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.
    Robert C. Babione, Public Defender, Mary Louise Moran, James W. Whitney, Jr., Asst. Public Defenders, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

In this jury-waived burglary case the trial court found defendant Blockton guilty and sentenced him as a second offender to seven years’ imprisonment. Defendant appeals, contending the court erred in receiving in evidence a bent screwdriver and a pistol found on an accomplice. We relate the evidence relevant to defendant’s challenges.

Mrs. Augar Smith locked her home when she left in the afternoon. Early the next morning police were informed the front door was open and they found the door broken and the house ransacked. Some household goods had been sacked and others readied for removal. The police found defendant Blockton, Glenn Holmes and Zachary Jackson hiding in the basement; the three were arrested and searched. The challenged exhibits — a bent screwdriver and an automatic pistol — were found on Glenn Holmes.

Defendant testified he, Holmes and Jackson saw Mrs. Smith’s front door had been broken open and they entered out of curiosity.

Defendant first contends admitting the bent screwdriver found on Glenn Holmes was irrelevant as to him, the defendant. Considering that the evidence showed Mrs. Smith’s front door had been forcibly opened, the bent screwdriver was relevant to the element of burglarious entry. Compare State v. Marler, 453 S.W.2d 953 [2, 3] (Mo. 1970). Marler further held such instruments are admissible when found in an accomplice’s possession. On this point see also State v. McAllister, 534 S.W.2d 611 [1] (Mo.App.1976). The bent screwdriver was admissible.

Over defense objection of inadequate identification the court admitted into evidence a pistol, missing from Mrs. Smith’s bedside table and found on defendant’s accomplice Holmes. Defendant contends the pistol was inadequately identified as Mrs. Smith’s. Although Mrs. Smith was unfamiliar with firearms and had never used the pistol, she testified it was the one given to her husband and kept by her for eight years in a bedside table that had been ransacked. The stolen object, in possession of an accomplice, was relevant to the burglary charge and was properly admitted. Compare State v. Richards, 467 S.W.2d 33[3] (Mo.App.1971).

Judgment affirmed.

DOWD and SMITH, JJ., concur.


author: WASSERSTROM, Judge.

text:
    ADVANCE CONCRETE AND ASPHALT CO. and Turnpaco, Inc., Appellants, v. Sam INGELS, Harold Ingels, Ida K. Ingels and Beverly Ingels, and First Federal Savings and Loan Association of St. Joseph, Respondents.
    No. KCD 28532.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    As Modified On Courts’ Own Motion Oct. 11, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.
    David M. Rhodus, Morris, Larson, King, Stamper & Bold, Kansas City, for appellants.
    Wm. Rex Bevers, Maryville, for respondents Sam and Harold Ingels.

      William H. Strop, St. Joseph, for respondent First Federal Savings.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

This is a joint suit by Turnpaco, Inc. and Advance Concrete and Asphalt Co. for money damages and the establishment of a mechanics’ lien. The trial court entered summary judgment for defendant First Federal Savings and Loan Association of St. Joseph and partial summary judgment for defendants Sam Ingels and Harold Ingels. Pursuant to a provision of those orders making them final for purposes of appeal, Turnpaco and Advance pursue this appeal. They urge as their single point that there exists an unresolved issue of material fact which prohibited the summary judgments rendered. We reverse.

This litigation arises from a contract signed by Sam Ingels and Turnpaco under which the latter was to furnish labor and material for a mobile home park, Thunderbird Mobile Home Estates. Turnpaco then subcontracted for the concrete work to be done by Advance. Claiming that $58,614.54 remained unpaid on the amount due it, Turnpaco filed its claim for mechanics’ lien on May 17, 1974; and Advance claiming $89,226.55 filed its claim on May 22, 1974. Prior thereto, Advance had given notice of its claim which it delivered to Harold Ingels on May 10,1974. A joint petition was filed in the Circuit Court by Turnpaco and Advance on November 15, 1974, against Harold and Sam Ingels, alleging those two to be the owners of the property and the ones who had contracted for the labor and material. First Federal Savings and Loan was joined as a defendant for the purpose of the plaintiffs’ establishing priority of their mechanics’ lien against the First Federal deed of trust.

On June 23, 1975, First Federal moved for summary judgment against both plaintiffs, and two days later Sam and Harold joined in those motions. The grounds set forth as the basis for summary judgment were that Sam’s wife, Ida, and Harold’s wife, Beverly, were co-owners of the property but had not been notified of the claims for mechanics’ liens, had not been served with a statement of the claimed mechanics’ liens, and had not been made parties defendants in this lawsuit. The movants attached to their motions copies of warranty deeds demonstrating the participation in title ownership by those two wives.

In response to those motions, on July 17, 1975, plaintiffs moved for leave to file an amended joint petition and concurrently they did file the proposed amended petition. The major change was to add Ida and Beverly as parties defendants and to add an allegation that “Defendants and each of them were partners, joint adventurers, and mutual agents with respect to one another for all purposes and all dealings with the aforedescribed real estate including the construction of improvements thereon and the operation of the Thunderbird Mobile Home Estates.”

On October 2,1975, the court held a hearing on the motions for summary judgment and the motion for leave to file an amended petition. At the conclusion of the hearing, those motions were all taken under advisement. While the motions were so pending, defendants on November 20, 1975, filed a motion for leave to refile their motions for summary judgment. The reason given for this new motion was so that “all motions may be adjudicated upon their merits and Court render order thereon.”

On December 5, 1975, the court entered its order sustaining the motion for summary judgment by First Federal in full as to both plaintiffs and sustaining the motions of Sam and Harold against both plaintiffs with respect to the claim for mechanics’ lien. (The order expressly excluded any ruling with respect to Turnpaco’s claims for damages for alleged breach of contract.) The order stated as the basis for the summary judgment that the plaintiffs had “failed to comply with the Statutory procedure for impressing a mechanics’ lien on the real estate subject to this litigation” and that in that respect there was no genuine issue as to any material fact. As part of the order, the court further noted that “although properly included as parties Defendant to this litigation at the time of this disposition of these various motions for summary judgment, Beverly Ingels and Ida Kathleen Ingels have not entered their appearance on this record nor has service on them been requested on this record.”

The court order of December 5,1975, does not state in what respect the court believed that the plaintiffs had “failed to comply with the Statutory procedure.” Defendants in their brief, however, offer the following two explanations: 1) that the plaintiffs had failed to include the wives as parties Defendant within the required statutory six month period; and 2) that evidence of record showed by unassailable proof that Sam and Harold were not agents on behalf of Ida and Beverly, so that there was no proper service of notice upon the latter two co-owners. These explanations will be discussed in reverse order.

I.

AGENCY

If Harold had no agency authority on behalf of Ida or Beverly, then the notice of claim for mechanics’ lien served upon Harold in May, 1974, was ineffective to meet the statutory notice requirement of Sec. 429.100. Even more fundamental, neither Harold nor Harold and Sam together had power to subject the land to a mechanics’ lien in the absence of agency to act on behalf of the wives. Kaufmann v. Krahling, 519 S.W.2d 29 (Mo.App.1975); Bryant v. Bryant Construction Company, 425 S.W.2d 236 (Mo.App.1968); Poore v. International Paper Company, 455 S.W.2d 13 (Mo.App.1970).

Defendants argue that the evidence of record shows affirmatively and unassail-ably, as required for summary judgment under Rule 74.04(h), that there was no such agency. They rely for such proof upon the answers to interrogatories signed by Harold and filed of record on April 1, 1975, and on testimony given by Sam in his deposition which was filed October 21,1975. So far as the answers to interrogatories are concerned, those answers do evidence that the wives were not partners in Thunderbird Mobile Home Estates. It can further be assumed (although this is far from certain) that those answers were sufficient to show that the husbands had no authority to bind the wives to any personal obligation on business contracts pertaining to the operation of the enterprise. However, nothing in those answers negatived the possibility of another limited type of agency, that is an agency for the special purpose of subjecting the wives’ real estate interest to a mechanics’ lien incident to the improvement thereof. The distinction between these two different types of agency has been sharply drawn in Bryant v. Bryant Construction Company, supra. Since the answers to interrogatories do not unassailably disprove agency for the purpose of subjecting the property to mechanics’ lien, those answers are insufficient to support the summary judgments.

With respect to Sam’s deposition, any consideration of that testimony is basically improper for the reason that the deposition was not filed until after the hearing on and submission of the motions for summary judgment. One important purpose of requiring a hearing on summary judgment is to insure the parties an opportunity to assemble and present all of their evidence for consideration by the court in connection with the motion. Sherman v. AAA Credit Service Corporation, 514 S.W.2d 642 (Mo.App.1974). Rule 74.04(c) provides for consideration of the pleadings, depositions and affidavits “on file.” Since Sam’s deposition was not on file at the time of the hearing held on October 2, 1975, plaintiffs did not have any notice that Sam’s testimony would be taken into consideration and they subsequently had no opportunity to counter that deposition testimony. The motion for leave to refile the motions for summary judgment only intensified this point; for in that motion to refile defendants stated it was “based on the facts and evidence adduced at the previous hearing [held October 2, 1975],” thereby lulling plaintiffs into the belief that only items on file as of that date would be taken into account.

Moreover, even if the deposition were to be considered, it affirmatively showed that Ida and Beverly did sign together with Sam and Harold the improvement loan in the sum of $330,000 to First Federal and that they also signed a deed of trust securing that note. This joining in those financing documents is significant and important evidence of participation by the wives in the transaction of improving the property and is substantial evidence upon which to subject their interests in the property to mechanics’ liens. Bryant v. Bryant Construction Company, supra; Kaufmann v. Krehling, supra; Poore v. International Paper Company, supra.

The evidence of record taken as a whole does not show by unassailable proof as a matter of law that the husbands had no agency on behalf of the wives. Accordingly the summary judgments entered on December 5, 1975, cannot be sustained on that ground.

II.

FAILURE TO TIMELY JOIN THE WIVES AS PARTIES

This theory now advanced by defendants was not a ground for granting summary judgment by the trial court. To the contrary, the trial court stated in the order that Beverly and Ida had been “properly included as parties Defendant to this litigation at the time of this disposition of these various motions for summary judgment ..” Nevertheless, this theory must be considered, because the ruling of the trial court must be sustained if correct even though it may have been arrived at for the wrong reason. Ricketts v. Kansas City Stock Yards of Maine, 537 S.W.2d 613 (Mo.App.1976).

Defendants are correct in their contention that additional parties cannot be joined in a suit to establish a mechanics’ lien after the expiration of the six month period prescribed by Sec. 429.170. Hiller v. Schulte, 184 Mo.App. 42, 167 S.W. 461 (1914); Badger Lumber Co. v. Staley, 141 Mo.App. 295, 125 S.W. 779 (1910). The attempt to bring in the wives as parties defendant by amendment on July 17, 1975 (more than a year after the filing of the lien claim) was therefore a nullity so far as the claim of mechanics’ lien is concerned. That would give the wives adequate reason to demand that claim be dismissed against them, had they been served at the time these motions were decided.

However, a right on the part of the wives to be dismissed in that regard does not give rise to any right by the other defendants to a summary judgment. In order to have such a right, they would have to show that the wives were necessary parties to a mechanics’ lien adjudication. On that question defendants direct us to Sec. 429.190 which provides that: “the parties to the contract shall, and all other persons interested . in the property charged with the lien may be made parties, but such as are not made parties shall not be bound by any such proceedings.” (Emphasis added.)

Under the statutory provision quoted, the wives would have to be parties to the contract in order to be necessary parties. The contract itself shows they were not signatories — which leaves only the question whether they were parties by way of agency through Sam. On this question, all the evidence relied upon by defendants to support their motion for summary judgment is submitted to show and does tend to show that neither husband had authority to bind either wife to any personal obligation on any partnership contract. Defendants’ evidence therefore not only fails to show the wives to be necessary parties, but to the contrary their evidence contradicts such a conclusion.

True, plaintiffs’ amended petition alleges that the wives were contracting parties, and the court’s order of December 5, 1975, apparently was intended to grant leave for that document to be filed. Nevertheless, those allegations are not conclusively binding upon plaintiffs, because they are subject to further amendment. For purposes of summary judgment, all factual matters must be resolved against the mov-ants if any reasonable doubt appears, and it must therefore be taken for present purposes that the wives were not parties to the contract. Weldon, Williams & Lick v. L. B. Poultry Co., 537 S.W.2d 868, 871 (Mo.App.1976).

Thus, the parties to the contract (Sam and Harold) were necessary parties, but Ida and Beverly are merely optional parties. Accordingly, even in the wives’ absence as parties to the litigation of the mechanics lien, the suit may proceed as originally filed against the original defendants. Of course, whatever judgment is entered at the conclusion of the litigation will not be binding on either Ida or Beverly, under the express terms of Sec. 429.190.

Neither of the theories advanced by defendants justify the summary judgments entered. The order dated December 5, 1975, is therefore reversed and the cause is remanded for further proceedings.

All concur.

      . AH statutory references are to RSMo 1969.

      . The statutory section cited is identical with Rule 101.04.

      . Sam’s deposition discloses that he and Ida became divorced July 8, 1974, and that she has relinquished to him all of her interest in this real estate.


author: REINHARD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert James THORNTON, Defendant-Appellant.
    No. 37395.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 16, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.
    Deeba, De Stefano, Sauter & Herd, James B. Herd, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, James G. Gregory, Pros. Atty., Montgomery City, Montgomery County, for plaintiff-respondent.
   REINHARD, Judge.

Defendant Robert James Thornton appeals from a conviction in the Circuit Court of Montgomery County, Missouri, for the offense of stealing property of the value of at least $50.00. §§ 560.156, 560.161, RSMo. 1969. Punishment was assessed by the jury at imprisonment for a term of six years.

Taking the evidence most favorable to the state, the jury could reasonably have found that Kenneth Knipmeyer owned a Forney welder and a Westinghouse welder which were located on his farm in Montgomery County, Missouri, and that they were stolen by the defendant and his companion on or about June 23, 1974. The evidence was that the welders had a combined value of over $50.00. The welders, along with other property, were sold by the defendant and his friend to George W. Pfis-ter, the owner of a salvage yard in Jones-burg, Missouri.

Defendant and his wife testified that the former had purchased the Forney welder in 1969 or 1970 from Charles Fortman. Defendant testified that he and a companion had found the Westinghouse welder in June of 1974 while searching for scrap at a dump near the town of Bellflower in Montgomery County. Defendant stated that the two returned the next day, loaded the welder onto a borrowed pickup, and then delivered the Westinghouse welder, the Forney welder, and other scrap materials to Pfister.

The court gave a verdict directing instruction (No. 7) which combined MAI-CR 7.70 and 2.12, and, at the request of defendant, gave a converse instruction (No. 8). However, an instruction which undertook to negate defendant’s special negative defense that the property was purchased or found was not given.

Defendant on appeal contends that the court erred in failing to instruct the jury on his special negative defense of innocent possession. He argues that evidence tending to show that he purchased the Forney welder and found the Westinghouse welder warranted a special negative defense instruction as to innocent possession. While conceding this point, the state contends the issue was not properly preserved for review in the motion for new trial.

Rule 27.20(a) requires that “A motion for a new trial shall be in writing and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.” The relevant portion of defendant’s motion for a new trial states:

“Instruction No. 7 is erroneous and prejudicial in the following particulars:
a). The instruction permitted a finding of guilt if the jury believed that the defendant merely ‘took two welding machines’ despite defendant’s announced defense that he had found and taken one of the machines from a public dump.”

In the motion for a new trial, counsel for defendant explicitly objected neither to the absence in the verdict director of any reference to the special negative defense, nor to the failure of the court to give a separate instruction on the defense. The motion for a new trial contained no reference whatsoever to the claim of purchase of one of the welders. The reference in the motion for a new trial to the alleged deficiency of the’ verdict director as to the innocent finding of the welder was sufficiently specific to preserve that point for review. See State v. Cummings, 516 S.W.2d 49, 50[3] (Mo.App.1974).

Having decided the issue is properly before us, we conclude that the failure of the trial court to instruct on the defense of innocent possession constituted prejudicial error.

The defendant testified that he had found the abandoned Westinghouse welder at a dump. This was evidence supportive of the defense of innocent possession of the property, which defense is part of the law of the ease. Under Criminal Rule 26.02, the court, whether or not requested, is required to instruct the jury upon “all questions of law necessary for their guidance in returning their verdict * * State v. Powers, 442 S.W.2d 4, 6 (Mo.1969); State v. Drane, 416 S.W.2d 105, 107-08[3] (Mo.1967); State v. Fox, 510 S.W.2d 832, 836 (Mo.App.1974).

The defendant next alleges that there was not substantial evidence of value to submit the issue of stealing property of the value of at least $50.00 to the jury or, in the alternative, that the court should have given an instruction on the lesser and included offense of stealing property valued at less than $50.00. We find no merit in defendant’s contention. All the evidence in this case relating to the value of the property was that its value exceeded $50.00. The court properly instructed the jury as to the charge of stealing property of a value of at least $50.00.

George Pfister testified that he paid $30.00 for the Westinghouse welder and $40.00 for the Forney welder. Evidence of the price at which property is sold is admissible as evidence of value, provided the sale did not occur at a time too remote from the time as of which the property value is to be determined. Skillman v. First National Bank of Kansas City, 524 S.W.2d 51, 58[8] (Mo.App.1975); 31A C.J.S. Evidence § 183(2), p. 481.

Mr. Knipmeyer, the owner, testified as to value in excess of $50.00. Testimony by an owner as to the reasonable value of his property is usually deemed to be competent and substantial evidence. State v. Brewer, 338 S.W.2d 863, 868[8] (Mo.1960); State v. Brewer, 286 S.W.2d 782, 783[1, 2] (Mo.1956). Although on cross-examination, defense counsel discredited to some degree Knipmeyer’s actual knowledge of the value of the machines, such efforts bear on the weight of the owner’s testimony and not on his competency to testify.

The defendant presented no evidence that the value of the property was less than $50.00. When, as here, all the evidence in the case relating to value is that it exceeded $50.00, the trial court is not required to instruct on stealing property of a value of less than $50.00. State v. Burrage, 418 S.W.2d 101,106-07[9] (Mo.1967).

Reversed and remanded for a new trial.

McMILLIAN, P. J. and STEWART, J., concur.

      . The new criminal pattern instructions embody the requirements set forth in Rule 26.-02(6) and § 546.070(4), RSMo. 1969. As a “special negative defense”, the defense of innocent possession must be the subject of a separately numbered instruction and accompanied by a cross-reference to same in the verdict director. See Notes on Use, MAI-CR 2.04, p. 2-9.

      . Defendant was charged with stealing two welders with a combined value of at least $50.00. In order to find the defendant guilty of stealing property of a value of at least $50.00, Instruction No. 7 required a finding by the jury that the defendant had stolen both welders and that their combined value was at least $50.00.