text:
    STATE of Missouri, Respondent, v. Bradford R. JONES, Appellant.
    KCD No. 28667.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.
    Application to Transfer Denied Nov. 14, 1977.
    See also Mo.App., 558 S.W.2d 233; 558 S.W.2d 246.

      Roy W. Brown, John A. Wilson, Kansas City, for appellant.
    John C. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Bradford R. Jones was found guilty on a jury trial of robbery in the first degree with a deadly weapon. Acting under the second offender law, the trial court fixed his punishment at 20 years’ imprisonment. Jones has appealed from the judgment and sentence so imposed.

At around 10:30 P.M., February 13, 1975, two men carrying guns and wearing bandana masks over their faces entered the Hen House Market at 95th and Blue Ridge in Kansas City. They pointed the guns at Dennis Kurtz, a Hen House employee, and ordered him to open the cash registers. He did so and the robbers removed the cash from the registers. According to Kurtz, about $100 was taken. The robbers directed Kurtz and another Hen House employee to lie on the floor and the robbers then fled. Police were called and the scene of the offense was processed for fingerprints with negative results.

On March 28, Bradford R. Jones, Gerald Miller and Miller’s wife were arrested at the Miller residence. Police interrogation of Miller and Jones followed as detailed in the case of State v. Jones, No. 28,583, Mo. App., 558 S.W.2d 233, decided contemporaneously with this case. Miller’s statement admitted that he and Jones carried out the Hen House robbery.

Jones was indicted for the offense. On the day of trial, the state substituted an information for the indictment. The information added the charge of a prior conviction in Kansas in order to invoke the second offender act. At a pretrial hearing the court found the second offender law applicable.

At Jones’s trial, the Hen House employees testified, but neither could identify either Jones or Miller as the robbers. Miller testified to the carrying out of the robbery. Detective VanBuskirk testified that Jones had stated that Miller’s statement which VanBuskirk reduced to writing was true.

No evidence was offered by the defendant.

The jury returned a verdict of guilty and the trial court fixed punishment at 20 years’ imprisonment and entered judgment and sentence accordingly.

In this court, appellant has repeated verbatim the objection and argument made in State v. Jones, No. 28,583, to the trial court’s overruling of his motion to suppress the use in evidence of his statement to VanBuskirk. A single hearing was held on the motion to suppress. The evidence so presented has been detailed in No. 28,583. What was there said is dispositive of the complaint here voiced.

Appellant’s second assignment of error also employs the identical argument found on the second point in No. 28,583 — the complaint of the state’s use of evidence of other offenses. Here appellant complains of evidence of his possession and use of narcotics, the theft of an auto for use in the Hen House robbery, and the numerous offenses with which Miller was charged, which appellant contends were inferentially charged to him also. In addition to the reasons for rejecting the assignment of error in No. 28,583, the assignment here is without merit for the further reason that there was no objection to Miller’s testimony about the car theft nor to his testimony that “we were coming off of heroin” at the time of his arrest. Furthermore, appellant’s cross-examination of VanBuskirk went into at length appellant’s withdrawal symptoms at the time of his interrogation. For this reason as well as those stated in No. 28,583, this assignment of error is without merit.

Appellant’s third assignment of error relates to VanBuskirk’s reading of the excerpts from Miller’s statement dealing with the Hen House robbery. Again the same argument is advanced as was rejected in No. 28,583 and what was said there is dis-positive of the objection here.

The fourth assignment of error is based on statements of the prosecutor in his argument to the jury. Again, as in No. 28,583, the complaint raised is that the prosecutor commented upon the failure of the defendant to testify. The remarks objected to at trial on that ground were: “Now there is no evidence to the contrary that Brad Jones was not with [Miller], Now the only evidence in the case * * * .” At this point, defense counsel objected and the objection was overruled. The prosecutor continued:

“As I said, there is not one shred of evidence in his case that Bradford Jones was anywhere but the Hen House when it was robbed. There is not one shred of evidence in this case that indicates anything other than the robbery takes place on February 13th. There has been no witnesses testified about that, that it took place on any other date or there has been no other robbery at that place.”

Again, as with the points previously considered, the argument here advanced is identical with that made by appellant in No. 28,583. What was said there answers the complaint now considered. There was no direct reference to appellant’s failure to testify and the trial court’s ruling was not error.

Appellant’s next assignment of error is based on the overruling of his oral motion to disqualify the judge. As above noted, on the day that the case came on for trial the state was permitted over his objection to substitute an information for the indictment against appellant. The only change was to allege a Kansas conviction which would make the second offender act applicable.

Defense counsel then moved orally to disqualify the judge on the grounds that because the judge had presided at the trial of No. 28,583, “the Court would have judicial knowledge of matters that would cause him to be prejudiced against this defendant * * * The motion was overruled. Inasmuch as the motion was neither in writing nor supported by affidavit as required by Rule 30.12, the trial court’s action was not error. State v. Thost, 328 S.W.2d 36, 39[5] (Mo.1959); State v. Johnson, 522 S.W.2d 106, 110 — 111[7—8] (Mo.App.1975).

Appellant next contends that the trial court failed to make specific findings calling for the application of the second offender act. § 556.280, RSMo 1969. The only ground of error relating to the second offender act found in appellant’s motion for new trial was that the evidence of the previous offense was erroneously admitted for various reasons. The objection here raised has not been preserved for appellate review.

Appellant next contends that the trial court made prejudicial remarks to defense counsel during the cross-examination of Miller. Counsel cross-examined Miller concerning the arrangement with Missouri officials whereby numerous charges were dropped in return for Miller’s agreement to testify against appellant. Miller was also asked about pleading guilty to a Kansas charge. Defense counsel expressed interest in the arrangements whereby Miller went back and forth between Missouri and Kansas in connection with the charges. Miller testified that he pleaded guilty to two charges in Missouri but was not sentenced on the pleas. He remained free on bond on the Missouri charges. He then went to Kansas, entered a plea and was sentenced on the Kansas charge. He then reappeared in Missouri to testify against appellant. In the course of the examination, the following incident, which is the basis of the claim of error, occurred:

“Q [by defense counsel] Were you given some permission by someone to then go to Kansas and try to dispose of your matters over there?
“A By my lawyers.
“Q Do you mean you went to Kansas without Court approval?
“A I don’t know whether — you know, I take it it was worked out, because that was part of the agreement, as I understood it.
“Q Well, do you understand or not, I don’t want to put words in your mouth, that ordinarily when you are on a bond in a certain jurisdiction, like the State of Missouri—
“THE COURT: Mr. Brown, I don’t think we are going to have to inform this jury about what the law is. You may be 100 percent right, but this isn’t the way we do things.
“MR. BROWN: Your Honor, what I am attempting to do—
“THE COURT: You can ask him what the facts are, but I am just not going to let counsel testify as to what the law in Missouri is, whether it is for the State or for the defendant.
“MR. BROWN: May I approach the bench, Your Honor?
“THE COURT: Yes, you may.”

At the bench counsel objected that the court’s remarks demonstrated a hostile attitude on the part of the court against defense counsel and a mistrial was requested. The request was overruled.

In this court appellant asserts that the remarks of the trial court embarrassed defense counsel, “intimidated him and unduly limited his effective cross-examination of such an important witness.”

Appellant characterizes the remarks as “angry” but the transcript on appeal cannot, of course, reflect the tone of the court’s remarks. The question is whether the remarks of the court as they now appear prejudiced appellant’s right to a fair trial.

Appellant would equate the remarks here to those of the same trial judge which were found to have been prejudicial to the defendant in State v. Wren, 486 S.W.2d 447 (Mo.1972). In that case, the remark of the court was held to have had the possibility of causing the jury to feel that the court disbelieved the defense offered. The remark here was hardly of that nature. Of significance in that case is the court’s observation that it involved “* * * an area * * * wherein precedent is of little value and each case must be resolved on its own facts.” 486 S.W.2d at 448.

State v. Wendel, 532 S.W.2d 838 (Mo.App. 1975) also relied upon by appellant involved a remark by the trial court which “served to notify the jury that the trial court considered defendant a man of violence— * * *532 S.W.2d at 839. The remark was held prejudicially erroneous. However, the remark here involved was certainly not of that nature.

The transcript shows that, despite the claim now made of embarrassment, intimidation and limitation of cross-examination, defense counsel continued to examine the witness at length concerning his comings and goings between Kansas and Missouri, demonstrating generally that the witness had no knowledge of what, if any, arrangements existed on that score.

The test of error in a matter such as this is whether or not the trial court’s remarks may have prejudiced the minds of the jury, depriving the defendant of his right to a fair trial. State v. Hill, 518 S.W.2d 682, 685[6 — 9] (Mo.App.1975); State v. Ross, 371 S.W.2d 224, 228[7, 8] (Mo.1963). The remarks here, although better not to have been volunteered, reflect neither upon defendant nor defense counsel. They could not conceivably have affected defendant’s right to a fair trial. State v. Thompson, 465 S.W.2d 590, 593[7] (Mo.1971).

Appellant next complains of the trial court’s refusal of two instructions offered on behalf of defendant, cautioning the jury concerning Miller’s testimony in the light of his having been granted immunity from further prosecution. The trial court’s refusal to give these instructions was directed by Notes on Use to MAI-CR 2.01, limiting instructions to be given on the credibility of witnesses and the weight to be accorded their testimony. State v. Lang, 515 S.W.2d 507, 510-511 (Mo.1974).

Appellant suggests that “the MAI committee and the Appeals Court should re-examine their thinking in line with [Federal criminal instruction 9.04].” This court has no authority to introduce such an instruction, directly contrary to MAI notes on use.

Appellant also complains because, after two hours-40 minutes deliberation the jury stood 11 to 1, the court gave MAI-CR 1.10, the so-called “hammer instruction.” As pointed out in No. 28,583, the giving of such an instruction lies in the trial court’s discretion and no abuse of that discretion has been demonstrated here.

Finally, appellant contends that his motion for directed verdict should have been sustained because of inconsistencies in the testimony of the state’s witnesses. The inconsistencies were between the Hen House employees’ description of the robbers’ attire and Miller’s testimony. The employees said one robber had a red bandana over his face and the other a blue bandana and that neither wore headgear. Miller said they both had blue bandanas and that both he and appellant wore beanies pulled down to their eyes. An employee said $100 was taken. Miller said it was $300. These inconsistencies did not destroy the submissi-bility of the state’s case.

Miller’s statement was corroborated by the testimony of VanBuskirk that appellant said that what Miller said was true. Miller’s credibility is not to be determined as a matter of law. The factors affecting his credibility, including the deal with the state in return for his testimony and the relations between appellant and Miller’s wife, were fully explored and were before the jury, to be passed upon by that body and not by this court.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: ROBERT R. WELBORN, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Bradford R. JONES, Appellant.
    No. KCD 28868.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      Roy W. Brown, John A. Wilson, Kansas City, for appellant.
    John C. Ashcroft, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of guilty and sentence to 20 years’ imprisonment for assault with intent to kill with malice. § 559.180, RSMo 1969. Jury returned verdict of guilty and court fixed punishment under the second offender act.

This is the third in a series of cases involving the appellant. See State v. Jones, No. 28,583, Mo.App., 558 S.W.2d 233 and No. 28,667, Mo.App., 558 S.W.2d 242 decided contemporaneously. The charge here arises out of a robbery by two persons of a Pizza Hut restaurant on Wornall Road in Kansas City on January 22, 1975. Two persons carrying guns entered the Pizza Hut at around 11:30 P.M. The lower part of their faces was covered with bandanas. One went to the cash register and took its contents. The other went behind the counter and approached an employee, Corwin Gohn, who was talking on the telephone. This man, described by another witness as the shorter of the two robbers, told Gohn, “We want the money.” When Gohn turned his head, the robber shot him in the neck.

The robbers fled and police were called. A spent .22 caliber bullet was found some 8½' from the telephone used by Gohn.

On March 15, 1975, a police officer was told that an automobile had been struck by a second vehicle on a shopping center parking lot. The driver of the second vehicle was pointed out to the officer who approached the car and noticed that the driver appeared to be intoxicated. The driver was Gerald Wayne Miller. Miller was placed under arrest for driving while intoxicated. Search of Miller’s person produced a .22 caliber pistol carried in his waistband. A blue and white bandana, a pair of wire cutters, a stocking cap and two pairs of leather gloves were found on Miller’s person. A pillowcase was discovered under Miller’s jacket. Miller was charged with careless driving, driving while intoxicated, driving while under the influence of narcotics and carrying a concealed weapon. He was released on bond.

Ballistics tests revealed that the .22 caliber bullet found at the Pizza Hut had been fired from the weapon found on Miller’s person. On March 28,1975, police arrested Miller, Miller’s wife and appellant at the Millers’ residence in Kansas City. Interrogation produced a statement from Miller, admitting the Pizza Hut robbery and naming appellant as the robber who shot Gohn. Interrogation of appellant ended with the questioned statement “What Jerry (Miller) says is true.”

Appellant was charged with assault with malice by reason of the shooting of Gohn. Gohn and another employee testified concerning the robbery and shooting but neither could identify the assailants. Miller testified and said that appellant participated in the robbery and shot Gohn. Officer VanBuskirk testified to appellant’s statement.

The only evidence offered by appellant was a Kansas City Police pick-up order issued in connection with the Pizza Hut robbery which described the persons sought as: “Race N” “Sex M.”

The case was submitted to the jury at around noon on April 21, 1976. At 6:00 P.M., the jury returned to the courtroom and the foreman told the court that the jury stood 11 to 1. The court thereupon, over appellant’s objection, gave the “hammer” instruction. At 6:30 P.M., the jury returned to the courtroom and announced that it had reached a verdict of guilty.

After his motion for new trial had been overruled, the trial court, having previously found the second offender act applicable, sentenced appellant to 20 years’ imprisonment, the sentence to be consecutive to those imposed in No. 28,583 and No. 28,667. This appeal followed.

In this court, the assignments of error duplicate those advanced and considered in the other two cases involving this appellant. In many instances, the argument is the same, verbatim, as in the other cases. Thus, in this case there is the objection to the overruling of the motion to suppress, to the admission of evidence of other crimes, to VanBuskirk’s reading of the excerpts from Miller’s statement dealing with the Pizza Hut robbery, to argument on the grounds of reference to failure of appellant to testify, to failure to direct a verdict of not guilty because of inconsistencies in the testimony of the state’s witnesses, and finally to the giving of the “hammer” instruction.

There is no need to repeat what has been said concerning the ruling on the motion to suppress. See State v. Jones, No. 28,583, Mo.App., 558 S.W.2d 233. The evidence of other crimes deals with the stealing of an auto preparatory to the crime, evidence of drug possession and use and other crimes by Miller. The same argument is advanced as in the other cases, with no notice having been taken of the fact that the only reference to the auto theft was in the prosecutor’s opening statement, the court ruling thereafter that evidence on that matter could not be produced and none was. The argument is lacking in merit here as in the other cases.

VanBuskirk’s reading of the excerpts from Miller’s statement relating to the Pizza Hut is subject to the same objection as in the other two cases and the same argument is advanced as was previously found wanting.

The argument objected to appeared in the prosecutor’s statement: “The evidence uncontroverted that Bradford Jones was an addict.” Objection was on the ground that there was no evidentiary basis for the statement. The objection was sustained and the jury instructed to disregard the statement but request for a mistrial was denied. Some time later, the prosecutor said: “Now it’s evidence of that particular evening that we’re talking about and the State’s evidence of what happened that night is un-controverted.” No objection to that statement was made. Appellant now contends that the remarks of the prosecutor were comments on the failure of the appellant to testify. Again, it is to be noted that the first remark was not objected to on that ground and the second remark was not objected to at all. In any event, the same argument made in the prior cases is repeated. Again there was no direct reference to the failure of appellant to testify and what was said in the prior cases in disposing of similar objections is here applicable.

The inconsistency in the testimony of the state’s witnesses lies largely in the fact that the employees said that the shorter of the two robbers went behind the counter and shot Gohn, whereas Miller, who was shorter than appellant, testified that appellant was the man who fired the shot. The discrepancy is not destructive of the state’s case since both Miller and appellant would be responsible, regardless of who fired the shot, and the case was submitted on that basis. Again the credibility of Miller is argued but that is not determinable as a matter of law.

The problem with the “hammer” instruction is the same as that in the other two cases. No abuse of discretion has been demonstrated.

Judgment affirmed.

All concur.


author: ANDREW J. HIGGINS, Special Judge.

text:
    Charles C. VADNAIS, Jr., Appellant, v. Rosemary J. VADNAIS, Respondent.
    Nos. 28904, 28994.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      Wm. Harrison Norton, Jr,, Norton & Pollard, Inc., Kansas City, for appellant.
    Cleaveland, Macoubrie, Lewis & Cox, David P. Macoubrie, Chillicothe, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from that part of decree in dissolution of marriage which apportioned marital property and awarded attorney’s fees to respondent. The questions are whether the property was marital property; whether respondent was without sufficient means to pay attorney’s fees, and whether the fees awarded were excessive. Affirmed.

The parties were married December 31, 1952, and separated June 16, 1975. They had three children, one of whom, Chad, age 13, is unemancipated.

During the marriage, the parties engaged in a farming operation which included grain, custom work, and livestock. Their operation was conducted on and involved three tracts of land. A 90 or 92-acre tract of land was received by Mr. Vadnais from his father prior to the marriage. No consideration was paid for the deed. A 292 to 300-acre tract was acquired by Charles C. Vadnais, Jr., and Rosemary Vadnais, husband and wife, in 1958, from Charles Vad-nais (Sr.), Raymond Vadnais and Gertrude Harper and their spouses. Mr. Vadnais stated that he paid nothing for the land, but he and his wife obtained an “operating” loan from FHA. He also stated that only his father’s part came by gift; that he could not say whether he had paid anyone; that he could not find any payment check; that he did not know what use was made of the FHA loan proceeds; that he could not say that he was not out money for purchase of the 292 acres; that there was $26.40 in revenue stamps on the deed; that Gertrude Harper was paid for her interest. A 22-acre tract was acquired by Charles C. Vad-nais, Jr., and Rosemary Vadnais, husband and wife, in 1973. They paid $7,500 for the tract, and various improvements were made to it including placement on it of a “double-wide” mobile home.

In 1973 the 90 or 92-acre tract and the 292 to 300-acre tract were sold by the parties as a 383-acre farm for $145,000. The parties’ home, a 1500-square-feet modern dwelling built on the smaller tract after the marriage went with the farm. Mr. Vadnais received a down payment of $45,000 which, after deduction of five per cent commission on the sale price, netted him approximately $38,000. The purchaser also assumed and agreed to pay a balance of $33,000 to $35,-000 owed on a mortgage against the farm. The balance of the purchase price was represented by a promissory note payable to Charles C. Vadnais, Jr., and Rosemary Vad-nais as joint tenants or as husband and wife. Subsequent payment of the note was deposited by the parties in two escrow accounts of $37,225.84, one in Citizens National Bank of Chillicothe and the other in Community Bank, both in the joint names of Charles C. Vadnais, Jr., and Rosemary Vadnais, husband and wife. The other indebtedness was paid at the same time.

The 22-acre tract with mobile home was valued at $50,000 by Mr. Vadnais, and by other witnesses at various sums, e. g., $50,-000, $35,000 to $40,000, and $34,000.

Appellant stated that as of June, 1973, after the farm sale, he no longer owed money to the Bank of Gallatin and, after November 15, 1973, no longer owed the Community Bank. In 1973, he sold machinery accumulated during the marriage for $28,000, received $57,407.67 from the sale of swine, and $9,444.54 from the sale of grain. In 1974 he received $946.62 from the sale of swine, $31,443.72 from the sale of grain, and $28,000 from the sale of machinery. These plus additional smaller sums totalled $184,036.41, part of which he gave away in bonds to his children and friends, and part of which he took for his own use.

After sale of the farm, the parties moved to Florida where Mr. Vadnais became employed by a ranching corporation at a salary of $11,000 per year and living accommodations. Mrs. Vadnais became unhappy with the situation in Florida and returned to the home on the 22-acre tract in Missouri. Mr. Vadnais acknowledged that Rosemary had been a good wife until the time in Florida. He complained, however, that she saw too much of their mutual friend, Sonny Roberts, during the later years in Missouri. Mrs. Vadnais detailed similar concern for her husband’s admitted fondness for Arlene Skinner.

Suit was instituted by Mr. Vadnais, Mrs. Vadnais answered and filed a cross-petition. Mrs. Vadnais testified that she had no income or assets with which to pay attorney’s fees for trial and appeal, and suit and appeal costs. She requested that she be awarded the 22-acre tract and home because she had no place to go and Chad wished to stay with her and live there.

Among other things not in question, the court divided marital property by giving each of the parties one of the escrow accounts in sum $37,225.84, awarded Mrs. Vadnais custody of the minor child, and gave her the 22-acre tract and home free of $4,000 debt ordered paid by Mr. Vadnais.

Counsel stated he had devoted 60¾ hours through trial toward representation of Mrs. Vadnais, and the court awarded her attorney’s fees of $3,100. After Mr. Vadnais took this appeal, the court allowed Mrs. Vadnais an additional $2,500 for attorney’s fees and $500 for the brief in response to her husband’s appeal.

Appellant contends the court erred in determining that the two farm tracts that were sold were marital properties, and thus the division of the proceeds of the sale of the two tracts equally between the parties was erroneous for the reason the division was not supported by the evidence and is an erroneous application of Section 452.330, RSMo 1969, governing disposition of property.

Appellant argues that the 90 or 92-acre tract was a gift from his father prior to his marriage; and that the 292 to 300-acre tract was a gift from his father, uncle and aunt to him alone after his marriage. Hence, the proceeds from the sale of both tracts should have been set off to him as his separate property acquired by gift.

The difficulty in appellant’s position is that the court was not required to and did not make a determination whether the two tracts of land were marital property. At the time of division of marital properties there was no such property standing in the name of either of the parties. Instead, the court had for its consideration the division of two escrow accounts of equal value deposited by both parties in the names of both parties as husband and wife representative of payment of a promissory note payable to them as husband and wife. Such was presumptively marital property and the presumption is not conclusively overcome. Accordingly, the court properly determined the escrow accounts to be marital property and the equal division between the parties was appropriate. Forsythe v. Forsythe, 558 S.W.2d 675 (Mo.App.1977).

Appellant charges the awards to Mrs. Vadnais of attorney’s fees were erroneous and not allowable because she was possessed of sufficient means of her own to finance litigation, the awards were not supported by evidence, and were excessive. He argues that Mrs. Vadnais was not entitled to attorney’s fees because she had been awarded a certificate of deposit and the 22-acre tract as marital property; that there was no evidence of reasonableness or time involved, and that the fees awarded were so “substantial” as to be excessive.

Appellant’s argument overlooks the evidence of the income and expenses of Mrs. Vadnais, her testimony that she did not have funds with which to pay her attorney’s fees, the income of Mr. Vadnais, the predissolution division of marital properties made by Mr. Vadnais, the value of the properties held by the parties, the number of hours expended by her attorney through trial and the time and expertise required of her lawyer at both trial and appeal stages of this litigation. The trial judge is an expert on the matter of reasonable value of legal services rendered, Cascio v. Cascio, 485 S.W.2d 857 (Mo.App.1972); and the allowance made comports with the criteria established for attorney’s fees awards, First National Bank v. Danforth, 523 S.W.2d 808, 823 (Mo.1975).

Appellant charges the court erred in the division of marital property “by ignoring the scandalous and improper conduct” of Mrs. Vadnais during the marriage and thus erroneously failed to apply the provision of Section 452.330, supra.

Section 452.330.1(4) requires that in making division of marital property, the court shall consider “all relevant factors including: * * * The conduct of the parties during the marriage.” The decree demonstrates adherence to this requirement in that it recites that the division of marital property was made “after considering all relevant factors”; and upon this review the conduct of the wife does not appear any less worthy than that of the husband so as to be an element of weight in division of marital property according to the statute. The division made by the court accorded with provisions of the statute, including consideration of the conduct of the parties during the marriage, and will not be disturbed. Williams v. Williams, 548 S.W.2d 224, 226 (Mo.App.1977); Conrad v. Bowers, 533 S.W.2d 614, 624 (Mo.App.1975).

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri ex rel. Roger D. HINES, Relator, v. The Honorable L. F. COTTEY, Special Judge, Respondent.
    No. KCD 29253.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      Harry D. Boul, Columbia, for relator.
    James G. Gregory, Montgomery City, for respondent.
    Before PRITCHARD, P. J., and SWOF-FORD, DIXON, SHANGLER, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   PER CURIAM.

This original proceeding in prohibition seeks to prevent respondent judge from rendering formal judgment and imposing sentence against relator in a misdemeanor case in accordance with the guilty verdict and punishment returned and assessed by the jury before whom relator was tried.

Relator contends the preliminary rule in prohibition issued by this court should be made absolute as respondent judge is divested of jurisdiction to render formal judgment and impose sentence by reason of non-compliance with Rule 27.07(a). Said rule, so far as here pertinent, reads as follows: “If the defendant is convicted, sentence shall be imposed and judgment rendered without unreasonable delay." (Emphasis added.)

Relator’s reliance upon Rule 27.07(a)’ arises in the following context. The Prosecuting Attorney of Boone County filed an information in the Circuit Court of Boone County charging relator with commission of a misdemeanor. The charging prosecutor was given leave to withdraw from the case and the Prosecuting Attorney of Montgomery County was appointed special prosecutor to continue prosecution of the case. The circuit judge to whose division the case was assigned disqualified himself and the Supreme Court transferred respondent to hear the case. The jury before whom relator was tried found him guilty and assessed a fine of $50.00 as his punishment. A motion for new trial filed by relator was never called up; hence, it was overruled by operation of lawcon December 29, 1974. Relator took an appeal in the underlying case even though respondent judge had never sentenced him or entered judgment in the case. On October 22, 1975, relator’s appeal was dismissed by this court on its own motion “as premature because judgment was not entered”. A certified copy of this court’s mandate was filed in the Circuit Court of Boone County on October 24, 1975. It appears that the ease then lay dormant for all practical purposes until on or about March 19, 1976, at which time the special prosecutor wrote relator and inquired about “a convenient date for sentencing”. The letter implies that at that time relator’s trial counsel no longer represented him in the matter. Relator responded to the special prosecutor’s inquiry by letter dated April 26, 1976, wherein he conjunctively submitted some “convenient” dates and questioned respondent judge’s right to proceed with sentencing because of the passage of time. Apparently the matter again lay dormant until December 2,1976, at which time the special prosecutor contacted relator by telephone and again made inquiry about some “convenient dates” for sentencing. Relator, although questioning once more respondent judge’s right to proceed with sentencing because of the amount of time which had elapsed, again submitted some “convenient dates”. Shortly thereafter relator retained his present attorney who, on December 7, 1976, wrote respondent judge and suggested that he no longer had jurisdiction to sentence relator and any indication that he presently intended to do so would be challenged at the appellate level by seeking out a writ of prohibition. Respondent judge, by letter dated December 13, 1976, informed relator’s attorney that unless a writ of prohibition was issued to restrain him he would sentence relator at 9 A.M., December 28, 1976, in the Circuit Court of Boone County, Missouri. Relator responded by obtaining a preliminary rule in prohibition from this court. From inception of the misdemeanor charge to date relator has been permitted at all times to go at large without bail. Furthermore, as one might well expect, relator at no time ever requested or demanded that he be sentenced.

In grappling with the basic issue involved the parties have taken polarized positions. Greatly simplified, relator contends the tormenting language of Rule 27.07(a), “without unreasonable delay”, has only a temporal dimension. Hence, a time lapse of over two years following his conviction without imposition of sentence is inordinately long and per se “unreasonable”. Such being the case, respondent judge no longer has jurisdiction to sentence relator. Likewise greatly simplified, respondent judge equates Rule 27.07(a)’s command that relator be sentenced “without unreasonable delay” with relator’s right to a speedy trial. Respondent judge then urges application of the rigid demand-waiver rule enunciated in State v. Harper, 473 S.W.2d 419 (Mo.banc 1971), and held applicable in State v. Horn, 498 S.W.2d 771, 774-75 (Mo.1973), to an accused’s constitutional right to a speedy trial.

Neither of the extreme views taken by the respective parties offers a satisfactory solution. Under certain circumstances, for example, when a convicted person suffers no prejudice by reason of a delay in sentencing, relator’s view would turn Rule 27.-07(a) into an offensive weapon for such convicted person. Under certain circumstances, for example, when a convicted person is prejudiced by reason of a delay in sentencing, adoption of respondent judge’s view would turn Rule 27.07(a) into nothing more than a pious platitude.

Avoidance of the pitfalls inherent in a stereotyped approach for resolving whether a delay in sentencing constitutes an “unreasonable delay” as proscribed by Rule 27.-07(a) necessarily involves a pragmatic analysis of each delay in the context of the totality of its own particular circumstances. Doing so is not without authoritative support. Rule 32(a)(1), Federal Rules of Criminal Procedure, the federal counterpart of Rule 27.07(a), reads in part, as follows: “Sentence shall be imposed without unreasonable delay”. Welsh v. United States, 348 F.2d 885, 886 (6th Cir. 1965), recognizes that the federal counterpart of Rule 27.7(a) has more than a temporal dimension: “Appellant contends the sentences are void in that they violated the provisions of Rule 32, Rules of Criminal Procedure, which provides, ‘Sentence shall be imposed without unreasonable delay.’ It is well settled that passage of time alone will not bar imposition of sentence or require a defendant’s discharge. But the delay must not be purposeful or oppressive.” Welsh cites Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 486, 1 L.Ed.2d 393 (1957), where a delay in the imposition of sentence was addressed both in terms of Rule 32(a)(1), Federal Rules of Criminal Procedure, and the Sixth Amendment to the Constitution of the United States. Although the tenor of relator’s brief herein clearly disavows any state or federal constitutional implications surrounding the application of Rule 27.07(a), Pollard v. United States, supra, 352 U.S. at 361, 77 S.Ct. at 486, augers against the extreme position advanced by both relator and respondent judge regarding Rule 27.-07(a): “We will assume arguendo that sentence is part of the trial for purposes of the Sixth Amendment. The time for sentence is of course not at the will of the judge. Rule 32(a) of the Federal Rules of Criminal Procedure requires the imposition of sentence ‘without unreasonable delay.’ Whether delay in completing a prosecution such as here occurred amounts to an unconstitutional deprivation of rights depends upon the circumstances. See, e. g., Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950; Frankel v. Woodrough, 8 Cir., 7 F.2d 796, 798. The delay must not be purposeful or oppressive.”

Logic and reason suggest that a multitude of factors should be considered when establishing criteria for judging when an “unreasonable delay” in sentencing has occurred. Although both the length of delay and a convicted person’s failure to affirmatively demand sentencing are appropriate criteria for judging whether a given delay is “unreasonable” within the purview of Rule 27.07(a), neither constitutes an inexorable, all-inclusive criterion. This court is not prepared to hold that a convicted person’s failure to affirmatively demand sentencing, standing alone, precludes him in every instance from successfully challenging a lengthy delay as being “unreasonable”. Nor is this court prepared to hold that an unaccountable, lengthy delay in sentencing, standing alone, can never render a delay in sentencing “unreasonable”. This court is, however, prepared to hold that a failure to affirmatively demand sentencing and an unaccountable, lengthy delay in sentencing are but two of a multitude of salient considerations which should be weighed and balanced when judging whether a delay in sentencing was “unreasonable”. Certain additional considerations, although by no means all-inclusive, readily spring to mind as bearing upon whether a delay in sentencing was “unreasonable”. Was the delay purposefully occasioned as a mere facade to unreasonably impose a form of unlimited probation? Did the delay, in and of itself, adversely affect the convicted person’s period of incarceration? Has the delay prejudiced the convicted person’s rights in the event a new trial is granted on appeal? Was the convicted person lured into believing his prosecution was abandoned? Was sentencing so inordinately delayed that the remedial purpose and effect perceived by society for punishment no longer remained viable?

Tested in the crucible suggested above, the conceded delay in sentencing relator was not “unreasonable” within the meaning and purview of Rule 27.07(a). The record in the instant case is bereft of any hard evidence that the delay in sentencing was purposeful or contrived, that it adversely affected any period of incarceration, that it would in any way impair relator’s defense to the charge in the event a new trial is granted on appeal, that relator was lured into believing that his prosecution had been abandoned, or that the imposition of punishment at the present time would serve no societal purpose. The only hint that presently sentencing relator would be prejudicial springs from relator’s contention that doing so is “almost certain” to generate extensive adverse publicity. This contention is stripped of all efficacy by reason of the conjectural hypothesis upon which it necessarily rests, namely, that presently sentencing relator would generate more adverse publicity than would have been generated if he had been timely sentenced.

A fortuitous indifference on the part of the state appears to be the only plausible explanation for the delay in sentencing relator. Relator’s inertia in the matter following dismissal of his appeal implies a tacit indifference on his part to the delay which is antithetic to any present claim of prejudice.

The preliminary rule in prohibition in this case, having been improvidently issued, is hereby quashed.

All concur.


author: KELLY, Presiding Judge.

text:
    GROSSMAN IRON & STEEL CO., etc., Plaintiff-Appellant, v. BITUMINOUS CASUALTY CORP., Defendant-Respondent.
    No. 37794.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 30, 1977.
    As Modified on Court’s Own Motion Sept. 13, 1977.
    Appellant’s Motion to Modify and to Correct Opinion and Judgment Denied Nov. 14, 1977.

      Alvin A. Wolff, St. Louis, for plaintiff-appellant.
    Robertson, Ely & Weiland, Louis A. Robertson, St. Louis, for defendant-respondent.
   KELLY, Presiding Judge.

In this appeal from a judgment of the Circuit Court of the City of St. Louis entered in favor of the respondent Bituminous Casualty Corporation two questions are presented for decision: whether the trial court erred in sustaining respondent’s motion for directed verdict at the close of the case and in denying appellant Grossman Iron & Steel Company’s motion for directed verdict at the close of the case.

This case had its origin in a policy of insurance issued by the respondent to the Grossman Wrecking Company for one year commencing April 1,1961, wherein the respondent agreed to pay on behalf of the appellant all sums, not to exceed $25,000, which appellant became legally obligated to pay as damages because of injury or destruction of property during the policy period. The accident out of which appellant’s claim arose occurred on August 4, 1961, when a crane and boom operated by one of appellant’s crane operators tipped over, fell on and damaged a pipe line belonging to the Laclede Gas Company. Laclede Gas Company made a claim for damage to these pipes for $5,018.65. Appellant notified respondent thereof but respondent denied liability for payment of the claim on the sole ground that the casualty was excluded from coverage by Exclusion (1) of the policy. On advice of counsel, appellant paid Laclede Gas Company’s claim on July 30, 1962, and when the respondent refused to pay the amount of the claim to appellant a two-count petition was filed in the Circuit Court of the City of St. Louis.

Count I of appellant’s petition sought damages for breach of contract, vexatious delay and attorney’s fees; Count II sought reformation of the contract by eliminating Exclusion (1) from the policy of insurance by Endorsement 13 in accordance with an alleged prior agreement between respondent’s agent and appellant. Respondent’s motion to transfer the cause to the equity division of the court for trial was granted and Count II was tried and decided adversely to appellant. On appeal that judgment was affirmed. Grossman Wrecking Company v. Bituminous Casualty Corporation, 518 S.W.2d 719 (Mo.App.1975).

The case then came on for trial on Count I of appellant’s First Amended Petition. At the close of the case respondent’s motion for directed verdict was sustained and appellant’s motion for directed verdict was denied.

In deciding whether the trial court erred in sustaining the respondent’s motion for directed verdict at the close of the case we look to the pleadings to ascertain what facts were at issue and then view all of the evidence in a light most favorable to the appellant, giving it the benefit of any and all reasonable inferences to be drawn from the evidence not in conflict with its theory of the case, and we disregard respondent’s evidence except insofar as it might aid appellant’s case. Kaelin v. Nuelle, 537 S.W.2d 226, 232[6] (Mo.App.1976).

It was conceded by the respondent that the appellant purchased from it through its “authorized agent” a Comprehensive Liability Policy, No. CL 852975 with a policy period from April 1, 1961, to April 1, 1962. According to this policy Declarations the named insured was Grossman Wrecking Company, # 5 North Market Street, St. Louis, 6, Missouri, and the insured, a corporation was the tenant of a portion of the described premises. Although there was a provision in the policy for entry of the “Business of the named insured,” no entry was made indicating insured’s business. Schedule No. 1 of the Declarations in describing the hazards covered on the appellant’s premises and operations identified it as the wrecking of buildings or structures which were “Not Marine.” The Advance Premium for coverage under the policy was $748.90 for “Property Damage Liability— Except Automobile.” A total of 13 Endorsements were enumerated on the face of the policy in typewritten entries under “Endorsements forming part of this policy at issuance.”

Under “Insuring Agreements” the respondent undertook, by affording appellant “Coverage C — Property Damage Liability— Except Automobile,” to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.”

Among these Endorsements was Endorsement # 6 which reads:

“ENDORSEMENT RESTRICTION ENDORSEMENT-LIMITING LOCATIONS
It is agreed that such insurance as is afforded by this Policy shall not apply as respects the insured’s WRECKING, DISMANTLING AND SALVAGE operations performed at any location other than as stated in Item 1. (sic) ‘Location of Premises,’ of the Declarations, forming a part of this Policy, unless the Insured notifies the Company prior to the undertaking of such aforementioned operations and the Company accepts coverage for each specific project or job, by means of a written endorsement to this Policy.”

There were also a number of Exclusions contained in the policy, but the only one germane to the issues here was (1):

“(1) under coverage C, to injury or destruction of any property arising out of (1) blasting or explosion, other than the explosion of air or steam vessels, piping under pressure, prime movers, machinery or power transmitting equipment, or (2) the collapse of or structural injury to any building or structure due (a) to grading of land, excavation, borrowing, filling, back-filling, tunneling, pile driving, coffer-dam work or caisson work, or (b) to moving, shoring, underpinning, raising or demolition of any building or structure or removal or rebuilding of any structural support thereof; . . .” (Emphasis supplied).

While this policy was in effect the appellant entered into a contract with the Lac-lede Gas Company to dismantle a large gas holder on its premises at 322 East Catalan Street in St. Louis. Prior to commencing performance of the contract, and in compliance with Endorsement # 6 to the policy, appellant notified the respondent of the contract for the dismantling of the gas holder and requested coverage for this job. Upon receipt of the notice the respondent dispatched Mr. Charles L. Blaylock, one of its safety engineers, to the premises on Catalan Street for the purpose of conducting an inspection to ascertain the hazards to which the respondent would be subject if coverage was extended as requested. Thereafter, effective July 3, 1961, by Endorsement # 17 to the policy, coverage was extended to “the insured’s operation of dismantling steel gas holder,” subject to “all exclusions, conditions and other terms of the policy except as specifically amended herein, . . .” A certificate of insurance was issued by the respondent to Lac-lede Gas Company certifying that this policy was in effect and covered the contract with the appellant for the dismantling of the gas holder located on the premises on Catalan Street.

Appellant commenced performance of the contract, and while a crane operator it had hired from the Union Hall and put on its pay-roll, was moving a crane and boom from one place to another on the premises, the crane and boom toppled over and fell on a pipe-line six to eight inches in diameter which led from a battery of butane or propane tanks and was not connected to the gas holder. This pipe-line was elevated and supported by steel supports; it was not to be dismantled or wrecked in performance of the contract with Laclede Gas Company. The Gas Company claimed that the damage to this pipe-line amounted to $5,018.65 and made demand upon the appellant for this amount. As stated previously, appellant notified the respondent but it denied any liability under the terms of the policy on the sole ground that the casualty was excluded from coverage under Exclusion (1) of the policy. Appellant paid Laclede Gas Company its claim for damages to the pipes on July 30,1962, but the respondent refused to pay this amount to it. This suit followed.

At the close of the evidence respondent filed its motion for directed verdict on the following grounds.

“1. That under the law, the pleadings and the evidence plaintiff is not entitled to recover against the defendant.
2. That plaintiff has not made a submis-sible case against the defendant upon which relief can be granted.
3. That plaintiff has not proved any violation of the terms and conditions of the policy of insurance by this defendant.
4. That the evidence does not support any pleaded assignment for any action against defendant for its failure or refusal to extend coverage to plaintiff under the policy.”

In sustaining this motion the trial court did not specify on which one or more grounds its action was based.

In considering whether a plaintiff in a suit to recover on a policy of insurance has made a submissible case, the principles generally applicable to civil jury trials determine whether the evidence has been sufficient to establish a prima facie case. 11 Couch on Insurance 2d, § 44:258, p. 685. In an action of this kind, the plaintiff makes a prima facie case by establishing issuance of the policy of insurance, delivery, payment of the premium, the loss through or on account of the cause insured against, and the furnishing of notice and proofs to the insurer as required by the policy. 44 Am. Jur.2d Insurance, § 2059, p. 1002. The insured must, of course, bring himself within the terms of the policy and prove by substantial evidence that the claim sued on is within the coverage provided by the terms of the insurance contract. Smith v. American National Insurance Company, 278 S.W.2d 796, 797[1] (Mo.App.1955).

The defense relied on here by the respondent is that appellant’s claim is not covered by reason of Exclusion (1) in the policy. It contends that the overhead pipes were a “structure” within the meaning of “building or structure,” as these terms are used in Exclusion (1) and that because the crane which toppled over was being used in connection with the dismantling operation the damage to the pipes had a direct causal relationship with the demolition work and resulted therefrom so that the claim came within the “demolition” Exclusion of the policy.

We have found no Missouri appellate decisions construing this Exclusion and neither party to this appeal has cited us one. We do believe, however, that even were we to assume, arguendo, that the pipe-line damaged by the toppling over of the crane constituted a “structure” as that term is used in Exclusion (1), the accident here is within the coverage afforded by the policy of insurance.

When the insurer relies upon an exclusion within the contract of insurance as a defense to a claim by the insured, the burden of proof is on the insurer to both plead and prove that the loss sustained by the insured was within the policy exclusion. Michigan Mutual Liability Co. v. Stallings, 523 S.W.2d 539, 545[5] (Mo.App.1975), 12 Couch on Insurance 2d, § 44:421, p. 9. Except where the plaintiff in its own evidence establishes an exclusion while making out its prima facie case, the trial court may not properly sustain a motion for directed verdict for the insurer. Kinney v. Home Security Life Insurance Company, 2 N.C.App. 597, 163 S.E.2d 520, 522[1] (1968).

Appellant purchased, and respondent issued, this policy of insurance to afford appellant liability protection for accidents occurring in the course of its business of “WRECKING, DISMANTLING AND SALVAGE operations” at its place of business and, as extended by Endorsement # 17, to the dismantling job on E. Catalan Street. According to Schedule No. 1 of the Declarations “Description of Hazards,” the hazards to be covered on “Premises — Operations” were “Wrecking Buildings Or Structures— Not Marine — All Operations, Including Salesmen or Clerical at Site of Wrecking.” Appellant, in our opinion, made a prima facie case on showing that the policy of insurance was issued to it, the premium paid, the policy delivered, and the accident occurred on the premises on E. Catalan Street during the course of its wrecking and dismantling operations conducted there. None of these factual issues were actually in dispute. If the respondent was to avoid performance under the terms of the contract it had the burden of proving that the claim fell within the terms of Exclusion (1) of the policy. Michigan Mutual Liability Co. v. Stallings, supra.

Exclusion (1) — commonly referred to in the insurance industry as the “Collapse Exclusion” — has been the subject of interpretation by the courts of New York. The Court in Blades v. Indemnity Insurance Company, 149 N.Y.S.2d 670 (1956) held that this exclusion did not apply to personal property — in this case the property of a print shop — which was damaged while in a building adjacent to the building being dismantled and demolished to make way for a parking lot when the wall of the adjacent building which the plaintiff was dismantling fell upon the adjacent building. It said, 1. c. 673:

“The exclusion applies only to damages from raising or demolition of a building resulting in the collapse or structural injury to the building itself. Certainly damages to the contents of a building cannot be construed either as a collapse of or structural injury to the building itself. If it had been the intent to exclude from coverage damages generally resulting from or caused by demolition, one would expect the exclusion to relate not only to property damages but to personal injuries. The failure to exclude property damages other than those to the building or structure itself is just as significant as the failure to exclude personal injuries. It seems clear that damages to property within an adjacent building were just as fully covered as damages for personal injuries. Neither was within the exclusion clause of the endorsement.” (Emphasis supplied).

In D’Agostino Excavators, Inc. v. Globe Indemnity Company, 7 A.D.2d 483, 184 N.Y. S.2d 378 (1959) the exclusion was identical to Exclusion (1) here and the typewritten rider entitled “Liability Extension Schedule” contained a description of the insured’s operations as follows: “Excavation — for cellars or foundations of buildings — bridges or retaining walls including borrowing, filling or back-filling (excavation in connection with street or road construction or tunneling to be separately rated).” Plaintiff’s bulldozer struck and damaged certain walls and structures on the property of another. A judgment was recovered against the plaintiff and, defendant having refused to defend said action, plaintiff brought this action for indemnification. The court construed the policy provision “in the light of the reasonable expectation and purpose of an ordinary businessman in making the contract of insurance,” and noting that the specified operations of the plaintiff were embraced within the activities enumerated in the exclusion clause, held that unless the exclusion and purported coverage of plaintiff’s regular business activities could be reconciled the exclusion clause would cancel out the purported policy coverage — a result that should not have been contemplated by the parties to the policy because it would require the payment of premiums without affording coverage. The court held, 1. c. 381:

“We are also of the opinion that the language of the exclusion fairly and reasonably construed is limited to the collapse of or injury to any building or structure due solely to excavation or filling or backfilling and does not include injury due to the impact between plaintiff’s bulldozer and the affected property. It does not appear that the excavation or backfilling directly caused the damage; the forceful impact of the bulldozer with the affected structures was the cause thereof.” (Emphasis supplied).

The respondent adduced no eyewitness testimony relative to what the crane and boom was actually doing when it toppled over on the pipe-line. What it did adduce was a “personal injury report” on a form prepared for the respondent, written in pen and ink under date of August 9, 1961, and signed for the appellant by “U. H. Colligar-on, Comptroller.” According to this “report” the time and place of the accident reported was August 4, 1961, at 10:30 a.m. at Laclede Gas Company, 322 East Catalan Street, City of St. Louis, Missouri. In describing how the accident occurred, the report stated: “Earth gave way under an outrigger of Lorraine crane model MC-760, Serial No. 30375, while in the process of removing gas holder at above address causing crane to overturn. The boom section fell across several overhead propane gas lines belonging to Laclede Company causing damage to them.” The report further stated that there were no personal injuries involved but that the propane gas lines had been bent and broken. Cause of accident was given as “Nature of work, demolition of gas holder.” One question, “Was the accident caused by the breaking of or defect in any part of the ways, works, machinery or appliance,” was answered “No.” The name of the person in charge and of three witnesses, with their addresses, were also furnished the respondent in this report.

According to the testimony of Mr. Gross-man, the President of appellant, Mr. Colli-garon, the man whose signature he identified on the report, was, at that time, appellant’s office manager. He also testified that although he was not on the scene when the accident happened, he was called and went there immediately, and when he arrived there he could see that the crane had toppled over while it was being moved around the tank because there were no outriggers and had it been engaged in dismantling operations at the time the outriggers would have been on the crane. The accident had been reported to him, including the manner in which it had occurred and he went to the scene to verify this.

We, like the New York Courts, believe that this exclusion clause in the context of this Comprehensive Liability Policy issued to the appellant for the purpose of affording liability insurance protection in its wrecking, dismantling and salvage operations, is ambiguous and subject therefore to construction in an effort to resolve the apparent conflict between the purpose for which the Policy was purchased and this clause. We hold that in this context and under the facts here adduced, the exclusion does not apply; that the damage to the “structure,” if such they be, was not by reason of “the collapse of or structural injury to any building or structure due to . demolition of any building or structure,” it was due, rather, to the negligent moving of the crane and boom or, according to the respondent’s evidence, the subsidence of the earth under it. There is absolutely no evidence, neither in the appellant’s nor in the respondent’s case, that the crane and the boom toppled over by reason of any collapse of or structural injury to the gas holder or any other building or structure adjacent thereto.

Because the only defense available to the respondent under the pleadings and the evidence was this exclusionary clause, and, inasmuch as we have held that such clause was not available to the respondent, we further find that the trial court erred in denying appellant’s motion for directed verdict at the close of the case.

Appellant did not brief its prayer for vexatious delay and attorney’s fees in this court and those issues are therefore abandoned. Metter v. Jenssen, 498 S.W.2d 581, 583[1] (Mo.App.1973), certiorari denied, 414 U.S. 1115, 94 S.Ct. 848, 38 L.Ed.2d 742.

Although we could reverse and remand this cause to the trial court with directions, we have chosen to dispose of this aged litigation in this court pursuant to the authority vested by Rule 84.14. Judgment is therefore entered for the appellant in the sum of $5,018.65 and interest at 6% per annum from July 30, 1962, in the sum of $4,516.80, for a total judgment of $9,536.35 and court costs.

SIMEONE, C. J., and GUNN, J., concur.

      . During the pendency of this action Grossman Wrecking Company, the named insured in the policy, merged with Grossman Iron and Steel Company.

      . Endorsement 13, which formed a part of the policy at issuance effective April 1, 1961, is:
      “COMPLETION OF DECLARATIONS WITH RESPECT TO APPLICATION OF EXCLUSIONS (L) AND (M)
      It is agreed that the operations described by each classification stated under item (a), Premises — Operations, of Schedule # , for which the code number is indicated below, are not subject to the exclusion or exclusions noted opposite the code number for such classification.
      CODE NUMBER 3451s xc
      EXCLUSION (M) ”

      . On appeal the respondent, for the first time, sought to interpose res adjudicata as a defense. Res adjudicata, however, is one of those affirmative defenses which the party seeking to interpose must set forth affirmatively in its responsive pleading. Rule 55.08; Jones v. Des Moines & Mississippi River Levee Dist. No. 1, 369 S.W.2d 865, 872[3] (Mo.App.1963). Respondent did not allege this affirmative defense in its pleadings and we do not for that reason consider it here.


author: NORWIN D. HOUSER, Special Judge.

text:
    Jerry DEMPSEY, Sedge Mead, Judy Shehan and Sue White as Individuals and Officers of the Soulard Restoration Group, and John B. Kelly and Janice Lee Kelly, Plaintiffs-Appellants, v. BOYS’ CLUB OF the CITY OF ST. LOUIS, INC., a corporation, the Board of Adjustment of the City of St. Louis and Individual Members Martin Beffa, Charles K. Baker, Gregory Gunn and Joseph Failoni, Defendants-Respondents, Lafayette Square Restoration Committee, Incorporated, Amicus Curiae.
    No. 38488.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 30, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.

      Schmitz & Fischer, J. Peter Schmitz, St. Louis, for plaintiffs-appellants.
    London, Greenberg & Fleming, C. John Pleban, St. Louis, for Boys’ Club of the City of St. Louis, Inc.
    Jack L. Koehr, City Counselor, Edward M. Peek, Assoc. City Counselor, St. Louis, for Board of Adjustment.
    Peter J. Wunderlich, St. Louis, for amicus curiae.
   NORWIN D. HOUSER, Special Judge.

Certiorari to review the proceedings of the Board of Adjustment of the City of St. Louis granting permits for the demolition of nine buildings located in an area of the city governed by Soulard Historic District Ordinance No. 57078 and its enabling Ordinance No. 56100. These buildings were acquired by respondent Boys’ Club of St. Louis, Inc. with the intention of demolishing them for the purpose of expanding its adjacent athletic field. The circuit court granted its writ of certiorari and issued an order restraining demolition. After a hearing the court entered judgment affirming the decision of the board of adjustment and dissolving the restraining order. From this judgment plaintiffs have appealed. Plaintiffs are property owners residing within the district and members and officers of a voluntary organization called Soulard Restoration Group.

Point I of appellants’ brief presents the question whether the decision of the board of adjustment granting demolition permits is supported by competent and substantial evidence upon the whole record.

Carl Nicholoff, a registered architect, surveyed the whole area with a surveyor’s level, and in so doing observed the exterior of the buildings in question. Since he did not see the interior of the buildings he could not testify as to their condition inside but he thought you could tell the interior condition of a building “pretty well by the exterior.” He testified that the buildings owned by Boys’ Club are “a detriment . really in sad shape . . . very questionable buildings structurally, aesthetically . not one is worth talking about . there’s nothing to preserve . they have outlived their usefulness . they do need work, most of them . in a derelict condition ... a pretty scummy job . . .1 drove around here and it looks like no man’s land. It looks like East Harlem.” He was particularly critical of the building located at 1000 Victor Street, stating that it is ready to cave in; that it is really a hazard ... a detriment to human lives and safety; big hunks of the wall have been falling out; no effort has been made to repair it; a wooden porch has a post swaying in the wind, and the downspouts are connected to nothing. His testimony with reference to the property at 1000 Victor Street, however, was extraneous to the issue because that property is not owned by Boys’ Club. As to the buildings owned by Boys’ Club he testified that it would “take a lot of gutting and a lot of money to bring them up to a liveable shape, such as plumbing, electrical wiring, heating, air conditioning and so on and all .the things you would want to rehabilitate and in preserving it. You don’t do it for nothing, you know.” Although a basis for his knowledge concerning the financial condition of Boys’ Club was not shown he volunteered the opinion that Boys’ Club could not afford to remodel these buildings. He did not know how many rooms there are in each of the various buildings. Asked if the buildings are secured from unauthorized entry he answered, “I don’t think they’re secured against anything at this time.”

Charles Nash, Assistant Activity Director for Boys’ Club, testified that the buildings on Tenth Street “are totally wrecked inside.” One day there was a fire in one. The mantles were gone. These buildings were “totally gutted ... a total shambles . . . one is through the roof . really in bad shape ... really a dangerous building . . . the building directly behind us is bowed and has a wave in it . . . this building is dangerous . . . one fire in the last building . . . was totally burned to and through the top floor and it was burned bad ... it was totally in bad shape.”

Mrs. Barbara Cash would not live in these houses or let anybody live in them; would not go in them; would be afraid to go in these old houses, which “ought to be torn down.”

James Proprotnick, head of the development and design evaluation staff of the Community Development Agency testified that the staff recommended to the Landmarks and Urban Design Commission as part of its compromise plan that two of the buildings on Tenth Street, and the structures behind a building on Victor Street, be demolished but recommended that the other buildings be preserved.

There is evidence of a survey of 27 or 28 old buildings located in the district, buildings which have been or are now in the process of being restored (evidence introduced by the opponents of demolition to demonstrate that there is a growing market for this type of property). The total amount spent to buy these homes, plus the cost of improvements to date and improvements projected in the future, divided by the number of properties, showed the total cost per home to be “somewhere around” $26,000. The estimated cost of rejuvenating a single family building ranges from $14,000 to $18,000, and the cost of a 4-fami-ly property plus the cost of rejuvenation so as to make luxury apartments would be $65,000. There was testimony that four-unit apartments at Shenandoah and South Eleventh Streets rent for $175 downstairs and $150 upstairs.

The board of adjustment made the following findings of fact relating to the status of the subject property:

“1008 Victor Street — Located on the front portion of the lot is a 2V2 story brick residence. The building is a narrow structure with three small rooms on the ground floor and separate quarters on the upper floors. It is vacant, open to unauthorized entry and the window glass is broken throughout. The interior is extensively damaged and electrical and plumbing facilities are missing. The rear porch is deteriorated.
“Located on the rear portion of the lot is a one story brick ‘alley house.’ The exterior brick walk is deteriorated and in need of extensive maintenance.
“1010 Victor Street — Located on the front portion of the lot is a narrow 3 story brick residence with 3 small rooms on each floor with access to the upper floors by means of a rear entrance stairs and porch. It is vacant and obviously vandalized; open to unauthorized entry; the window glass is broken throughout, the exposed wood is deteriorated; the interior is strewn with combustible material, ceiling lathes are exposed and hanging down; electrical and plumbing fixtures are missing.
“1012 Victor — Located on the front portion of the lot is a narrow 3 story brick residence. It is the same type as 1010 Victor and is vacant, vandalized, open to unauthorized entry, the front door is missing, window glass is broken out throughout; the interior is extensively damaged and cluttered with debris; the electrical and plumbing fixtures are missing and there is evidence of fire damage.
“A two story brick ‘alley house’ on the rear of the lot is also vacant, vandalized and open to unauthorized entry; the windows are broken throughout and there is sign of a bulge in the exterior wall. “2500-2502 South 10th —There is a 3 story brick store front type building with residential facilities on the upper floors. The building is vacant, vandalized, open to unauthorized entry; the doors are missing, windows are broken throughout, exposed wood is deteriorated and the interior of the building has been ‘gutted.’ “2504-06 South 10th —There is a two story brick, four family flat. The building is vacant, vandalized, and open to unauthorized entry. The windows are broken throughout and doors are missing. The interior portion of the building has been ‘gutted.’
“2514-16 and 2518-20 South 10th —Each lot contains a three story brick multiple family apartment building. In both instances the buildings are vacant, vandalized and open to unauthorized entry. The windows are broken throughout, exposed wood is deteriorated and portions of the mansard roof in the front, are missing. The interior of the buildings have been ‘gutted.’ ”

The board of adjustment made the following conclusion of law and order:

“It is the decision of this Board that in applying the standards for demolition as contained in the ‘Development Plan for the Soulard Historic District’ to the buildings located on the seven lots which are the subject of this appeal, and bearing in mind the historical or architectural significance, if any, of each structure, each of the subject buildings are in such a state of deterioration and disrepair as to make rehabilitation impracticable.

“In view of the living space available in each and the amount of restoration and repairs that would be necessary to make these buildings habitable, the Board concludes that although rehabilitation is possible, it is impracticable under the circumstances.

“Since the facts and circumstances in each case are different, the decision in this matter should not be viewed as a precedent for future cases.

“The action of the Building Commissioner in denying the permits for demolition is hereby overruled and the permits ordered to issue.”

We find no evidentiary basis for the following findings of fact: that the interior of 1008 Victor Street is extensively damaged, electrical and plumbing facilities are missing and the rear porch is deteriorated; that the interior of 1010 Victor Street is strewn with combustible materials, ceiling lathes are exposed and hanging down, and electrical and plumbing fixtures are missing; that the interior of 1012 Victor is extensively damaged and cluttered with debris and electrical and plumbing fixtures are missing.

Photographs of the several buildings do support the finding, that doors are missing, windows are broken out and the buildings are not secured from unauthorized entry.

The generalized conclusions and unsubstantiated opinions of various witnesses that the buildings were totally wrecked, totally gutted, in total shambles, and in bad and sad shape; that they need work done on them and have outlived their usefulness; that they are structurally questionable and that it would take “a lot of gutting” and “a lot of money” to make them habitable; that plumbing, electrical wiring, heating and air conditioning would have to be installed and that this cannot be done “for nothing,” etc., having gone in evidence without objection, could be considered by the board of adjustment for whatever they were worth. § 536.070(8), RSMo 1969; Williams v. Cavender, 378 S.W.2d 537[1] (Mo.1964); Crampton v. Osborn, 356 Mo. 125, 201 S.W.2d 336 (1947); Bridgeforth v. Proffitt, 490 S.W.2d 416[3] (Mo.App.1973); 30 Am.Jur.2d Evidence § 1089. Assuming that the board accorded these conclusory statements full weight and accepted them as fact, they nevertheless do not constitute competent and sufficient evidence to support a finding that the buildings are in such a state of disrepair or so badly deteriorated or structurally unsound as to make rehabilitation impracticable.

The standards for determining whether the city authorities may order demolition are prescribed in the Development Plan for the Soulard Historic District. The plan, adopted and incorporated in Ordinance No. 57078 by reference, provides that “No building or structure within the Historic District shall be demolished, and no permit shall be issued for the demolition of any such building or structure, unless the Landmarks and Urban Design Commission and the Community Development Agency both shall find that the building or structure is in such a state of deterioration and disrepair or is so unsound structurally as to make rehabilitation impracticable.” In order to meet constitutional objections these standards “must be interpreted to authorize demolition when the condition of the structure is such that the economics of restoration preclude the landowner from making any reasonable economic use of the property. The decision of the City authorities cannot be based simply upon a determination that it is physically possible to save the structure at an expense unwarranted by the possible use which could be made of such structure after rehabilitation.” Lafayette Park Baptist Church v. Scott, et al., 553 S.W.2d 856,1. c. 862 (Mo.App.1977). In that case the board of adjustment was held to have applied an improper standard in that the board determined whether a demolition permit should issue by considering only technological feasibility and not economic feasibility. That case establishes that the Board must view the standards of impracticality established by the ordinance from an economic standpoint as well as from a technological one.

The term “rehabilitation impracticable” as used in the ordinance implies something more than infeasibility of restoration because of physical condition. It contemplates the broader question whether the property can be turned to use or account profitably. If so, the declared public policy of protecting the historic and cultural heritage of the city saves the property from destruction, in the absence of constitutional limitations. There is in this record no substantial evidence that it would be uneconomic to restore and rehabilitate these buildings — no evidence that the cost of restoration and rehabilitation precludes the owner from making any reasonable economic use of the properties. Boys’ Club, Inc. is not entitled to a permit to demolish these buildings without making such a showing. There was no evidence that the 27 or 28 old buildings being restored, or those yielding rentals, were comparable in purchase price, original condition, square feet of floor space, and in other pertinent particulars with the properties in question, or that the cost of rehabilitating the buildings owned by Boys’ Club, Inc. would be the same or substantially the same. Nor was there evidence of the amount of rental income Boys’ Club, Inc. could reasonably expect after rehabilitation of these particular buildings, some of which were originally 2-family and some 4-family structures. There is no evidence of the reasonable market value of these particular buildings if offered for sale after rehabilitation. There is no evidence that Boys’ Club cannot economically utilize the properties or that it is impracticable to sell or lease them, or that Boys’ Club is incapable of obtaining a reasonable return from the properties, or that no market exists for this type of property at a reasonable price.

The stated conclusions of the board of adjustment indicate that it considered rehabilitation of the buildings not technologically feasible because of their condition of deterioration and disrepair. While the second paragraph indicates that some consideration was given to economic factors in determining impracticability, the record does not contain substantial evidence sufficient to support a finding of economic infeasibility. For these reasons the judgment of the circuit court affirming the decision of the board of adjustment cannot stand.

We realize that Boys’ Club is not in the business of renting houses or apartments; that considerations of a commercial nature applicable to investors or others engaged in the rental business may be deemed inappropriate by a benevolent or humanitarian organization seeking a permit to demolish property in order to carry out and promote its chartered objectives and purposes; that to deny such a request may effectively deprive such an organization of any practical use or benefit of ownership, and that in conceivable circumstances such a denial might be considered to constitute a taking of private property for public use. We recognize that a property may turn out to be of no practical or effective use to an organization (because its only or principal commercial value is for rental purposes, an activity foreign to its operational setup), or the organization may be financially unable to rehabilitate the property within reasonable economic limitations, or the property may not be salable for an amount sufficient to recoup the organization’s investment, as a result of which the enforcement of the ordinance by denying an application for demolition would for all practical purposes amount to confiscation of the property. In such case, where the building or monument is of such historic importance that it should be preserved for posterity, the public body might be empowered to acquire the property by condemnation, or a refusal to allow demolition might be accompanied by a tax credit arrangement, or other economic incentives or palliatives. This ordinance makes no such provisions. These are practical problems as yet not provided for by legislation. Until such legislation is enacted the only recourse of an organization finding itself in this situation may be to resort to the remedy commonly referred to as inverse condemnation.

We further observe that Boys’ Club has not raised the constitutional question whether the refusal of the permit to demolish constitutes a taking of private property for public use without just compensation. In this connection see Lafayette Park Baptist Church v. Scott, et al., supra.

Point II of appellants’ brief relates to certain unfortunate and ill-advised statements made by two members of the board of adjustment while the hearing was in progress. One of them praised the fine work being done by the officers and supporters of Boys’ Club. His remarks were susceptible of an interpretation that he was predisposed in favor of respondent Boys’ Club. The other characterized the efforts of the opponents of demolition as “obstacles” to the aspirations of the Boys’ Club people and implied they were interposing a “technicality” to preserve a few buildings.

Point III raises the question whether the board was properly constituted as a legal board capable of entertaining this proceeding. City Code 916.010 provides that the board of adjustment shall consist of five members, one of whom shall be a registered structural engineer of not less than ten years’ professional experience. Pour months prior to the date of the hearing the member of the board who was a registered structural engineer resigned, and at time of hearing he had not been replaced. The hearing was conducted by the remaining four members of the board.

In view of our holding on the first point, Points II and III need not be passed upon on this appeal. It is unlikely that the members of the board on rehearing will demonstrate bias in favor of one side or the other. It is likely and to be expected that they will accord both sides a fair, impartial, unprejudiced and unbiased hearing, and decide the matter on the law and the evidence without allowing their personal feelings or predilections to interfere with the performance of their public duties. By the time the rehearing is scheduled the Mayor of the City of St. Louis doubtless will have filled the vacancy on the board of adjustment, thus enabling the hearing to be conducted with a full complement of five board members.

In Point IV appellants contend that the court erred in dismissing Count III of their petition, in which they prayed for equitable relief. Count III alleged that Boys’ Club, Inc. purchased these buildings with knowledge of the passage of Ordinance No. 57078; that when Boys’ Club, Inc. purchased the buildings they were occupied as residences; that Boys’ Club, Inc. evicted the occupants or encouraged or forced them to leave until all the buildings became vacant, and failed to board up the vacant houses or otherwise protect them, thereby permitting vandalism, resulting in breakage of most of the windows and further damage by the elements; that in equity Boys’ Club, Inc. should not be permitted to rely on the resulting deterioration as the basis for its appeal to the board of adjustment or benefit from a decision of the board based on the resulting deterioration. Plaintiffs prayed for an order enjoining demolition based on evidence of deterioration permitted by Boys’ Club in violation of law.

The court on motion dismissed Count III. In view of our holding and the necessity of remand for a rehearing this point has become moot. The equitable considerations alleged in Count III may be presented to and urged upon the board of adjustment at the rehearing.

Judgment reversed; cause remanded to the circuit court with directions to vacate the order granting demolition permits and remand the cause to the Board of Adjustment of the City of St. Louis for a rehearing and for further proceedings consistent with this opinion.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.

      . Neither the Landmarks and Urban Design Commission nor the Community Development Agency made such a finding. On the contrary, the Commission by a 5-1 vote rejected the application for a building permit to wreck the buildings on the ground that the buildings were “salvageable.” Upon its review the Agency recommended an alternative plan.

      . Lafayette Park also provides that where the general impracticality standard has been resolved against demolition, the landowner may still raise the question of unconstitutional application upon proving his economic inability to rehabilitate and that no market for sale or lease at a reasonable price exists.

      .See Maher v. City of New Orleans, 516 F.2d 1051, 1066[22] (1975); Opinion of the Justices to the Senate, 333 Mass. 773, 128 N.E.2d 557, 562[8] (1955).

      . Penn Central Transp. Co. v. City of New York, 50 A.D.2d 265, 377 N.Y.S.2d 20, 28 (1975).

      . Maher v. City of New Orleans, supra, 516 F.2d 1. c. 1065.

      . See First Presbyterian Church of York v. City Council of York, 360 A.2d 257 (Pa.Cmwlth. 1976), wherein that was the contention, and the court applied the test “whether the refusal of the permit to demolish went so far as to preclude the use of York House for any purpose for which it was reasonably adapted; * * * that the Church, having failed to show that a sale of the property was impracticable, that commercial rental could not provide a reasonable return or that other potential uses of the property were foreclosed, had not carried its burden of proving a taking without just compensation.” 360 A.2d 1. c. 261.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James E. BRYANT, Defendant-Appellant.
    No. 10148.
    Missouri Court of Appeals, Springfield District.
    Sept. 13, 1977.
    Motion for Rehearing or Transfer Denied Sept. 27, 1977.
    Application to Transfer Denied Dec. 19, 1977.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    John S. Pratt, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant James E. Bryant was convicted by a Greene County jury of the first degree murder of Clarence Lamb, liquor store employee, and sentenced to life imprisonment. We affirm.

The trial court was not required to give MAI-CR 1.08 [Instructions at Each Recess and Adjournment] after the prospective jurors had been selected, but not sworn, and permitted to return to their homes for the night and obtain necessary personal articles for their sequestration. State v. Underwood, 530 S.W.2d 261 (Mo. App.1975). Nor, was it error to permit them to so separate. State v. Williams, 515 S.W.2d 463 (Mo.1974).

The court’s failure on two occasions during the five-day trial to admonish the jury pursuant to Rule 20.02(a), V.A.M.R., by reading the second portion of MAI-CR 1.08, constituted error. We have read the three volumes of transcript, consisting of 1158 pages, and judicially determine the court’s two omissions did not result in prejudicial error to the defendant. Rule 20.02(e), V.A. M.R.

Defendant put his general reputation for good character in issue and the trial court was required under Rule 26.02(6), V.A.M.R., to give MAI-CR 2.50. The discovery this instruction had not been given until the other instructions had been read and giving it last did not prejudice the defendant. Any error in the deviation of order of giving this instruction was harmless error. State v. Billingsley, 534 S.W.2d 484 (Mo.App.1975).

We have examined defendant’s remaining eleven points in this appeal. The evidence is sufficient to support the jury’s verdict. No error of law appears. Detailed discussion of the points would have no prec-edential value.

The judgment is affirmed pursuant to Rule 84.16(b), V.A.M.R.

All concur.

      . Point 4: Timely objection was not made to testimony and statements and defendant cross-examined on subject matter of testimony. State v. Brown, 527 S.W.2d 15 (Mo.App.1975) and State v. Simmons, 500 S.W.2d 325 (Mo. App.1973).

        Point 5: Defendant invited answer of witness by question asked. State v. Nenninger, 354 Mo. 53, 188 S.W.2d 56 (1945).

        Point 6: Scope of voir dire of jury panel within discretion of trial court. State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974). No right to cause pledge or speculation by prospective jurors. State v. Heickert, 217 S.W.2d 561 (Mo. 1949).

        Point 7: No timely objection to alleged improper prosecutorial argument. State v. Carter, 478 S.W.2d 358 (Mo.1972).

        Point 8: Interest of state’s witness shown and his cross-examination on collateral and cumulative matters within trial court’s discretion. State v. Foster, 338 S.W.2d 892 (Mo. 1960); State v. Pigques, 310 S.W.2d 942 (Mo. 1958).

        Point 9: Weight of testimony and credibility of witnesses at confession suppression hearing fer trial court. State v. Alewine, 474 S.W.2d 848 (Mo. 1971).

        Point 10: Search warrant was based on probable cause and shotgun shell within plain view. Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); U.S. v. Pointer, 348 F.Supp. 600 (W.D.Mo.1972).

        Point 11: Cross-examination within trial court’s discretion. No foundation for attempted impeachment concerning collateral matter. State v. Ball, 529 S.W.2d 901 (Mo.App. 1975).

        Point 12: Judge’s remark, considered in context, out of hearing of jury, non-prejudicial. State v. Phelps, 478 S.W.2d 304 (Mo.1972).

        Point 13: Cross-examination of defendant was proper impeachment of his direct testimony. State v. Connell, 523 S.W.2d 132 (Mo.App. 1975).

        Point 14: Defendant’s untimely objection sustained and his request jury disregard answer granted. No motion for mistrial. State v. Harms, 507 S.W.2d 29 (Mo.App. 1974). Not in motion for new trial. State v. Peterson, 518 S.W.2d 1 (Mo.1974). No authorities cited. State v. Schulten, 529 S.W.2d 432 (Mo.App. 1975).