author: McMILLIAN, Judge. SMITH, Judge,

text:
    STATE of Missouri, Plain tiff-Resp ondent, v. Gregory SYKES, Defendant-Appellant.
    No. 38964.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 20, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.
    Paul E. Corning, Jr., Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant Gregory Sykes appeals from a judgment entered in the circuit court of St. Louis County upon a jury verdict finding him guilty of two counts of robbery in the first degree by means of a dangerous and deadly weapon, §§ 560.120, 560.135, RSMo 1969. Appellant was sentenced to five (5) years imprisonment on Count I and five (5) years imprisonment on Count II, said terms to run consecutively. For reversal appellant argues that the trial court erred in (1) permitting Detective Sergeant Frank Harris to testify, over objection, that David Jones, appellant’s co-actor, had confessed to the offense charged and implicated appellant and (2) permitting, over objection, the prosecutor to ask appellant how he became aware that he was a suspect in the robbery (the offense charged). For the reasons discussed below, we agree with appellant’s analysis and accordingly reverse and remand for a new trial.

Appellant does not challenge the sufficiency of the evidence presented; therefore, only those facts necessary to the discussion of appellant’s points shall be set forth in detail.

The evidence showed that on March 4, 1976, at about 8:20 a. m., a Quick Shop in the city of Creve Coeur, Missouri, was robbed by a lone gunman. Gerald Dillon, the manager of the Quick Shop and the only employee in the store at the time of the robbery, testified that a man came into the store, waited until the other customers left, approached the cash register with several items, and then pulled out a small gun. Dillon further testified that the gunman said, “Give me all your money,” which Dillon did. During the robbery a young girl, about thirteen years old, and a delivery man from a potato chip company came into the store and were told by the gunman to lie down on the floor. They did so.

The gunman then told Dillon to get the money out of the store safe and put it in a paper bag. Dillon did so. Then the gunman told them to walk into the refrigerated cooler and stay there for awhile. The gunman returned about five minutes later to ask Dillon to get the money out of the store’s other cash register. Dillon did so and afterwards went back into the walk-in cooler. The gunman picked up the money in the paper bag, the money from the cash register and the grocery items and then left.

Michael Crecelius, the delivery man from the potato chip company, testified to substantially the same facts. He added that the gunman asked him if he had any money and, after he answered he had $5.00, told him to take the money out of his wallet and put it on the counter. He did so.

Appellant testified that on the day of the robbery he was at home sleeping. He also testified that his mother was at work, and that his nephews and nieces were at school. He also stated that he knew where the Quick Shop was located but had never been there.

Appellant first argues the trial court erred in permitting Detective Sergeant Frank Harris to testify, over appellant’s objection, that David Jones, allegedly appellant’s co-actor, had confessed to the robbery and implicated appellant. Appellant urges that Detective Harris’ testimony concerning these extrajudicial statements constituted inadmissible hearsay. Appellant argues that because David Jones, the declarant, did not testify, he was unable to cross-examine and was thereby denied his right to confrontation. U.S.Constitution Amend. VI; Mo.Const. Art. I, § 18(a) (1945).

Detective Harris was called by the prosecution to testify about appellant’s alleged oral confession. The prosecutor began questioning Detective Harris about the circumstances of the confession: whether there had been any physical abuse or mental coercion, whether any promises had been made. Detective Harris answered there had been none. He then proceeded to relate the substance of the confession.

On cross-examination appellant’s attorney asked Detective Harris:

“Q. You didn’t happen to tell him at that time that you got a witness who will testify absolutely against you, it would go easier for you if you talk now? Remember making that statement?
“A. I remember making half of that statement, but the last half I didn’t make. But I can recall when I spoke to Mr. Sykes he had inquired what David Jones had said, and I told him David Jones—
“Q. You remember making the first half of that statement?
“A. Yes.
“Q. That you had a witness against him?
“A. Yes.
“Q. You didn’t say that today, but that’s what you testified to at that prior hearing that you told him you had a witness that would testify against him. You remember making that statement at that time?
“A. No, not at that time, I don’t, no.”

On redirect examination the prosecutor asked Detective Harris to state specifically what he said to appellant about a witness who would testify against appellant. Appellant’s attorney made a general objection. The prosecutor argued that this subject matter had been opened up on cross-examination. The trial court overruled the objection. Detective Harris answered the question:

“A. Yes, sir, I do. As I recall, Mr. Sykes prefaced anything he was asking me with ‘What did David say?’ And I told him that David had confessed and implemented (sic) him and he was prepared to testify as to his involvement and to his involvement.”

Detective Harris clarified his last sentence, stating that he meant that David Jones was ready to testify about his own involvement as well as appellant’s. Appellant’s attorney objected on the grounds that this testimony was “immaterial and irrelevant to this cause of action” and requested that the jury be instructed to disregard it. The trial court did not rule on the objection but declined to so instruct the jury.

We initially note that we review appellant’s first point under the plain error rule because it has not been properly preserved for review, Rule 27.20(c), V.A.M.R. Appellant’s attorney made only a general objection to Detective Harris’ testimony on direct examination.

“It is universally held in Missouri that specific objections are required to evidence, arguments, or statements of counsel, and the objection must call the attention of the Court to the ground or reason for the objection. (Citations omitted.) Such an objection as ‘we object’ does not preserve any question for review. . .” State v. Lang, 515 S.W.2d 507, 511 (Mo. 1974).

Furthermore, appellant’s attorney’s specific objection that the testimony was immaterial and irrelevant, made after Detective Harris had testified, is different from the hearsay objection now presented on appeal. The point raised upon appeal must be based upon the theory of the objection made at trial. Id.; see also State v. Harper, 553 S.W.2d 895, 897 (Mo.App.1977).

We also note that “. . . [t]he admission of such hearsay evidence, over objection, deprives an accused of his constitutional right of confrontation and attendant right of cross-examination, thereby infusing the error attached with prejudice of constitutional proportions. . . . ” State v. Rayner, 549 S.W.2d 128, 131 (Mo. App.1977). Constitutional error, however, does not necessarily require notice under the plain error rule; in some cases even federal constitutional error may be considered harmless. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824,17 L.Ed.2d 705 (1967); State v. Howard, 540 S.W.2d 86, 87 (Mo. banc 1976). We must “. . . ‘review all the facts and circumstances in each case and determine on a case-to-case basis whether manifest injustice has resulted from the alleged error.’ ” 540 S.W.2d at 87. Our analysis will consider whether the admission of the alleged hearsay evidence constituted constitutional error and, if so, whether such error was harmless error.

Respondent first contends that Detective Harris’ testimony was not used in an “objectionable hearsay sense.” By this respondent apparently means that the testimony was used only to clarify what, if any, statements Detective Harris had made to appellant that may have prompted appellant’s confession. According to respondent, Detective Harris’ testimony disclosing David Jones’ confession and implication of appellant was offered because “. . . the statements themselves formed necessary • links in a chain of circumstantial evidence, .” In re Thomasson’s Estate, 347 Mo. 748, 148 S.W.2d 757, 763 (1941), not to prove the fact therein asserted to be true, namely that David Jones had in fact confessed and implicated appellant. See State v. Trotter, 536 S.W.2d 877, 879 (Mo.App. 1976). Respondent also argues that the prosecutor had the right to rehabilitate Detective Harris’ credibility by asking what specific statement had been made to appellant. Respondent finally argues that the cases prohibiting the use of co-conspirator’s or co-actor’s statements made after the conspiracy has ended are distinguishable from the present case. We disagree and, for the reasons discussed below, hold that the testimony of a police officer disclosing that a purported participant, in an extrajudicial statement made after the consummation of the offense, had confessed and implicated appellant in the offense was inadmissible hearsay and denied appellant the constitutional right to confrontation and the attendant right to cross-examination, and, in the circumstances of the present case, such error was plain error and could not as a matter of law be declared harmless beyond a reasonable doubt.

We note that there was no dispute about the voluntariness of the alleged confession. Appellant simply denied ever making such an inculpatory statement. Nor do we find that Detective Harris’ credibility had been attacked on cross-examination and as such that it needed to be rehabilitated by fully relating that an alleged participant in the robbery had confessed and implicated appellant. From the record it does not appear that appellant’s attorney challenged Detective Harris’ statement that he had a witness who would testify against appellant. The disputed testimony, and thus the attack on Detective Harris’ credibility, was related to whether he induced appellant to confess by inferring that it would go easier for him if he talked now.

More importantly, the police officer’s testimony falls squarely within the rule prohibiting the use of a co-conspirator’s or co-actor’s statement made after the conspiracy has ended, as inadmissible hearsay. See Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); State v. Newell, 462 S.W.2d 794, 797 (Mo. 1971); State v. Chernick, 278 S.W.2d 741, 748 (Mo. 1955) (assault); State v. Chernick, 280 S.W.2d 56, 59 (Mo.1955) (robbery); State v. Rayner, 549 S.W.2d 128,131 (Mo.App.1977); State v. Johnson, .538 S.W.2d 73, 77 (Mo. App.1976); cf. State v. Kirkland, 471 S.W.2d 191, 193-4 (Mo. 1971) (witness rather than co-conspirator or co-actor).

“. . . [I]f the declaration of a co-conspirator or co-actor sought to be shown in evidence is not in furtherance of the object of the unlawful combination, or if it was made prior to the formation thereof, or after the consummation of the purpose thereof . . . such declaration is hearsay . . . and not binding upon the co-conspirator or co-actor on trial . . . (Citations omitted.) [ajfter the common enterprise is ended, whether by accomplishment or abandonment, no one of the conspirators or joint actors is permitted by any subsequent act or declaration of his own to affect the others. . . . ” State v. Chernick, 278 S.W.2d 741, 748 (Mo.1955).

The admission of such hearsay evidence deprives an accused of the constitutional right of confrontation of the witnesses against him and the attendant right of cross-examination. Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); State v. Rayner, 549 S.W.2d 128, 131 (Mo.App.1977). As recognized in Bru-ton, the inherent unreliability of an accomplice’s incriminating statement is compounded when such extrajudicial statements are introduced by a third party and the declarant does not testify and cannot be cross-examined. 391 U.S. at 136, 88 S.Ct. 1620.

In the present case David Jones’ declaration was made after the robbery was completed and not in furtherance of the robbery and does not fall within “[the confines of] any recognized exception to the hearsay rule.” Bruton v. United States, 391 U.S. at 128, n.3, 88 S.Ct. at 1623; see Campbell v. United States, 415 F.2d 356 (6th Cir. 1969); State v. Ledford, 550 S.W.2d 871, 873 (Mo. App.1977) citing State v. Samuel, 521 S.W.2d 374, 375 (Mo. banc 1975) (tacit admission rule). The declaration was made extrajudieially and introduced by a third party to show that appellant’s alleged co-actor had confessed and implicated appellant in the robbery. Because David Jones did not testify, appellant had no opportunity to confront and cross-examine him and thereby test his credibility. For this reason, the trial court erred in admitting the testimony.

We also conclude that this error was not harmless error and therefore reverse and remand for a new trial. The theory of the prosecution at trial was that appellant was the driver of the car during the robbery. None of the witnesses testified about a second man and, in fact, identified only David Jones as the robber. In fact, aside from the hearsay testimony, the only other evidence was appellant’s alleged oral confession, which he denied making. There was no other substantial evidence which implicated appellant in the robbery. On this basis we distinguish State v. Edwards, 435 S.W.2d 1 (Mo.1968) (other substantial evidence already obtained from other witnesses) and State v. Harris, 535 S.W.2d 145 (Mo.App.1976) (other substantial evidence, hearsay testimony was not heavily relied upon to identify accused.) Cf. State v. Stevens, 467 S.W.2d 10 (Mo.) cert, den., 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971) (no indication that hearsay declarant was a co-conspirator; no statement of declarant implicated the accused); Annot., 50 A.L. R.3d 96. Under the circumstances of the present case we cannot as a matter of law declare the admission of this hearsay testimony, which was highly prejudicial and constitutionally impermissible, was harmless error.

In view of our disposition of the first point raised by appellant, we will not review the second point. Accordingly, judgment is reversed and remanded for a new trial.

CLEMENS, P. J., concurs.

SMITH, J., dissents in separate dissenting opinion.

SMITH, Judge,

dissenting.

I respectfully dissent. I am unable to conclude that the trial court committed error, much less plain error, in allowing the testimony of Harris about the statement which he, Harris, made to defendant.

I do not believe the testimony was hearsay. When an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply. Such a statement may be admitted if it is relevant. In re Thomasson’s Estate, 347 Mo. 748, 148 S.W.2d 757 (1941) [10]; Bond v. Wabash Railroad Company, 363 S.W.2d 1 (Mo.1962) [3, 4]; State v. Trotter, 536 S.W.2d 877 (Mo.App.1976) [3]. Harris’ testimony was offered not for the truth of what Jones said but to show the circumstances under which defendant made his statements. The question presented is not one of hearsay, it is one of relevancy. While a plausible argument of non-relevancy could be made had the question arisen on direct examination, relevancy was clearly established by defendant’s cross-examination. It is simply not accurate to say that voluntariness of the confession was not in issue. The cross-examination by defendant was directed to establishing that the confession was the product of either trick or coercion. In addition, the jury was instructed that it must find the defendant’s statements were freely and voluntarily made before it could consider the statements in arriving at its verdict. Such an instruction is required if requested. See MAI-CR 3.44, Notes on Use 1. The State had the burden of establishing the voluntariness of the defendant’s statements and in doing so was entitled to elicit the circumstances under which the statements were made. This is particularly true where defendant in cross-examination had elected to elicit part but not all of the conversation between Harris and defendant.

In fact, the question asked on redirect was not directed to what Jones told Harris but only to what Harris told defendant, and Harris was available for cross-examination on that subject. Whether or not Jones in fact made the statement attributed to him and whether it was true or not does not determine the admissibility of the testimony. Admissibility must be determined on the basis of the relevancy of what Harris told defendant prior to defendant making a statement. That relevancy is clear.

The foregoing discussion also points up the impropriety of treating this matter as plain error. Had a proper objection been made and proper relief been requested, the trial court could have cautioned or instructed the jury of the purpose of the testimony and the limitations on its relevancy. Defendant did not accord the court this opportunity.

I would affirm the judgment.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James Phillip LAWRENCE, Appellant.
    No. 39288.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 30, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.

      London, Greenberg & Fleming, Lawrence J. Fleming, Thomas F. Flynn, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas E. Dittmeier, St. Louis, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of manslaughter and assault with intent to kill without malice and the resultant two year consecutive terms of imprisonment. We affirm.

On appeal defendant challenges a portion of the closing argument of the state and the failure of the trial court to give a defense of habitation instruction. Daniel Loehr and Laird McLane were at McLane’s house around midnight on August 20,1976. They were drinking beer and sniffing glue. About 2 a. m. they walked down the alley near McLane’s house to a point near defendant’s residence. Loehr and McLane and defendant and his brother got into an argument. We need not set forth in detail the varying testimony of who started the argument, what was said and in what sequence events occurred. At some point in the argument defendant went into his house and got his shotgun. Loehr and McLane made some attempt to come through the gate into the Lawrence yard and toward the Lawrences who were on the porch. Defendant fired two shots from the shotgun. McLane was killed, Loehr was injured. Police were called and officer Hol-lifield arrived at the scene. Loehr accused defendant of having shot McLane and himself. Hollifield asked defendant what happened, to which defendant replied he didn’t know but there was a body in his yard and would the policeman remove it. Defendant was then placed under arrest, given his Miranda rights and his shotgun was seized. Some further questions were posed to the police officer during his testimony concerning defendant’s failure to make further statements. It was unclear whether these questions were directed to defendant’s silence prior to arrest or afterwards. Objection was made and the trial court indicated its intention to grant the requested mistrial. Defendant then withdrew his request for mistrial and requested instead a cautionary instruction that the jury was to disregard the questions and answers concerning defendant’s silence after his arrest inasmuch as he had a right to refuse to make any statement at that time. This instruction was given. In argument the prosecutor made the following statements:

“MR. DITTMEIER: Ladies and gentlemen, you know from common sense, you know how people react and somebody acts to protect their life. They have committed the ultimate act. They have killed someone. They don’t tell the policeman, “Hey, these guys were coming in the yard. They were trying to get me. Look around him. There’s a gun there.”
MR. FLEMING: Objection, your Honor, to this line of argument as a comment on his refusal to make a statement.
THE COURT: Overruled at this stage, before arrest.
MR. DITTMEIER: He didn’t tell the police that. Loehr was pointing to him and telling the police what happened. All he said was, “I know there’s a body in the back yard.” Lawrence says the policeman is lying about that. He says Loehr is lying. He said everybody is lying but him and his brother. That policeman had no reason to lie in this case. He told you exactly what he said. But if you want to assume for one minute that before he was arrested what he said was true; what did he tell you on the stand? He told you that he told him, “I shot him and the gun is inside.” Did you say anything else to him?” “No.” That is not consistent with having killed somebody.
MR. FLEMING: I object on the same grounds as previously stated.
THE COURT: Overruled.
MR. DITTMEIER: Ladies and gentlemen, you have heard this evidence. I think you’ve got a pretty good idea of what happened out there. There was an argument going on.”

Defendant contends that the foregoing was improper for two reasons i. e. the argument does not restrict itself to silence before the arrest and if it does the argument was improper because defendant was actually “in custody” when the police officer asked him what happened. Defendant raises no question of the propriety of the prosecutor’s statement except as it relates to his fifth amendment right to silence during or after his arrest. We do not find the statement to have been improper. The prosecutor and the judge both made it clear that the failure to make an exculpatory statement related only to the period prior to arrest. The court had earlier cautioned the jury, at defendant’s request, that no obligation existed on the part of defendant during or after his arrest to make any statement.

Under the circumstances we find no indication that the statement referred to post-arrest silence or that a jury would believe it did.

We also reject defendant’s contention that he was in custody at the time of the question, answer, and silence referred to. The failure to make exculpatory statements under circumstances where only a guilty party would remain silent is admissible as a tacit admission. Such silence may not be shown if it occurred while an arrest is being made or after arrest, or when defendant is in custody. State v. Butler, 512 S.W.2d 466 (Mo.App.1974) [1, 3], Defendant had not been placed under arrest when the police officer first made an inquiry. The police officer was newly-arrived on the scene and his question was of a generally investigatory nature. Loehr had stated that defendant had shot McLane. The officer simply asked defendant what happened. Defendant was sitting on his own porch, only the one police officer was present and none of the pressures of a custodial interrogation were present. The facts do not bring this inquiry within the facts or the rationale of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See, State v. Hale, 463 S.W.2d 869 (Mo. 1971); State v. Williams, 522 S.W.2d 641 (Mo.App.1975). Nor does the police officer’s admitted, but not expressed, intention not to let anyone leave the scene mean that defendant was in custody or deprived of his freedom of action in any significant way. See, State v. Hale, supra [1].

The trial court gave an instruction on self-defense, but refused to give an instruction on defense of habitation. We find no error as the evidence did not support such a defense. The defense of habitation apparently arose as an exemption to the common law duty to retreat when attacked, if feasible, before one was justified in taking a life. Under certain circumstances one is justified in killing to prevent an entry to the home or dwelling. State v. Brookshire, 353 S.W.2d 681 (Mo.1962) [23]. This attempted entry occurs at the time when and the place where the intruder seeks to cross the protective barrier of the house. State v. Brookshire, supra [24]; State v. Hunter, 444 S.W.2d 392 (Mo.1969); State v. Kizer, 360 Mo. 744, 230 S.W.2d 690 (1950); State v. Shiles, 188 S.W.2d 7 (Mo.1945). Here the defendant was on the back porch when he fired the shotgun. The victims were at most just inside the fence in the backyard. There is no evidence they intended to enter the house. We find no case in which the mere breaking of the curtilage is sufficient to support a defense of habitation. The instructions on that defense were properly refused.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. William Aaron PATTERSON, Defendant-Appellant.
    No. 39312.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 30, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.

      Mary Louise Moran, Asst. Public Defender, Kevin M. O’Keefe, Mary E. Dockery, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Kathryn Marie Krause, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., David 0. Fischer, St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant William A. Patterson appeals from a judgment entered in the circuit court of the City of St. Louis finding him guilty of burglary in the first degree, attempted rape, robbery in the first degree by means of a dangerous and deadly weapon, and carrying a concealed weapon. The trial court sentenced appellant to a term of twenty (20) years imprisonment for the burglary, twenty (20) years for the attempted rape, thirty (30) years for the robbery, and five (5) years for the weapons charge; all sentences were to run concurrently.

For reversal appellant argues the trial court erred in (1) finding appellant guilty of attempted rape because the evidence showed that the offense attempted was perpetrated and (2) permitting the victim’s daughter, who was eleven (11) years old at the time of the trial, to testify. For the reasons given below, we affirm the judgment.

The indictment charged appellant with burglary in the first degree (Count I), rape (Count II), robbery in the first degree by means of a dangerous and deadly weapon (Count III), exhibiting a dangerous and deadly weapon (Count IV), and carrying a concealed weapon (Count V). Before trial appellant attempted to enter a guilty plea. The trial court, however, refused to accept the plea because the court was not convinced appellant was telling the truth. Appellant waived his right to a jury trial and was tried by the trial court. Rule 26.01(b), V.A.M.R.

Appellant does not challenge the sufficiency of the evidence. Briefly, the evidence presented showed that on April 27, 1976, at approximately 2:15 p. m., appellant broke into a house by forcing a locked rear door. A woman, her ten-year old daughter and another child were in the basement of the house. Appellant confronted them with a gun and demanded money. After the woman answered that she had none, appellant forced her upstairs into a bedroom. They passed the woman’s son on the stairs. Appellant then attempted to rape the woman. Subsequently appellant searched through the woman’s dresser and took five rings and an earring. Appellant threatened the woman with the gun before leaving the room. She then called the police.

Appellant ran down the stairs and was confronted by a police officer, who had responded to a call from one of the neighbors. Appellant ran out the rear door and across the backyards. The police officer had already warned appellant to halt and fired several shots at appellant, hitting him once in the leg. The police apprehended appellant a few blocks away. The police searched appellant and found a .22 caliber gun, four rings and an earring.

At the trial the woman, her daughter and a neighbor identified appellant as the burglar and testified about the events of that afternoon. Certain medical evidence indicated the presence of human seminal fluid. Appellant’s defense was mistaken identification.

Appellant first argues the trial court erred in finding appellant guilty of attempted rape because the medical evidence and the victim’s testimony supported a finding that the offense attempted had been committed. Because the evidence showed that the offense of rape was completed, appellant argues that he cannot be convicted of either an assault with intent to commit rape or attempted rape, § 556.160 RSMo 1969; e. g., State v. Baker, 276 S.W.2d 131 (Mo.1955); State v. Scott, 172 Mo. 536, 72 S.W. 897 (Banc 1903). Respondent, however, argues that although the victim’s testimony and the medical evidence support a finding of a completed offense, this does not amount to substantial evidence from which a trier of fact, in this case the trial court, could believe beyond a reasonable doubt that the offense of rape was in fact accomplished or completed. See State v. Famber, 358 Mo. 288, 214 S.W.2d 40 (1948); State v. Dalton, 106 Mo. 463, 17 S.W. 700 (1891). Respondent urges that in the present case a conviction for attempted rape was appropriate because the testimony of the victim apparently “. cloud[ed] this court’s mind with doubt, regarding penetration . . . .” State v. Nevels, 537 S.W.2d 824, 827 (Mo.App.1976).

Appellant’s first point has not been properly preserved for review. Appellant during the trial and in the motion for a new trial argued that the evidence was not sufficient to support a conviction of rape or attempted rape. On appeal appellant advances the opposite argument, arguing the evidence was sufficient. Issues not raised either at trial or in the motion for new trial are not preserved for appellate review, e. g., State v. Johnson, 537 S.W.2d 816 (Mo.App. 1976); State v. Gordon, 536 S.W.2d 811 (Mo.App.1976). Thus, our review is limited to whether the finding of the trial court was plain error. Rule 27.20(c), V.A.M.R.

Even if we assume the trial court erred in finding appellant guilty of an attempt because the evidence showed that the offense attempted was perpetrated, we cannot find that any manifest injustice or miscarriage of justice has resulted therefrom. We can only conclude that this error operated to appellant’s advantage. The trial court apparently gave appellant the benefit of the doubt and found him guilty of attempted rape rather than rape on the theory that there was insufficient evidence of penetration. We do not believe appellant can argue plain error under these circumstances.

Appellant’s second argument is that the trial court abused its discretion in permitting the victim’s daughter, who was eleven (11) years old at the time of trial, to testify. Appellant argues that the child did not possess the intelligence, maturity or understanding to recognize an obligation to speak the truth. Appellant specifically notes that the child did not know what an oath was, what happened to people who lie in a courtroom or what would happen to her if she swore and then did not tell the truth.

The test of competency of a child witness involves four necessary elements: (1) present understanding of or intelligence to understand, an instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence to observe and register such occurrence; (3) memory sufficient to retain an independent recollection of the observation made; and (4) capacity to translate into words the memory of such observation. See, e. g., State v. Lawrence, 566 S.W.2d 243 (Mo.App.1978); State v. Bali, 529 S.W.2d 901 (Mo.App.1975). Appellant’s main attack is upon the child’s understanding of the obligation to tell the truth. We note initially that the child witness in the present case was eleven (11) years old at the time of trial. Her age alone raised a rebuttable presumption of competency. Section 491.060(2) RSMo Supp.1978; see, e. g., State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971); State v. Obie, 501 S.W.2d 513 (Mo. App.1973).

The fact that the child did not understand the term “oath” does not rebut this presumption. “A child need not understand the term ‘oath’ in order to give testimony, provided the child exhibits some present understanding of the obligation to give true testimony.” State v. Starks, 472 S.W.2d 407, 409 (Mo.1971); see also State v. Williams, 545 S.W.2d 680 (Mo.App.1976); State v. Ball, supra. Thus, the appropriate inquiry is not restricted to whether the child understands particular words or knows the specific consequences of failing to tell the truth in a courtroom, but whether the child has “a practical understanding of the abstract concepts of truth and falsity.” State v. Sanders, 533 S.W.2d 632, 633 (Mo.App.1976). At the competency hearing the child testified that she understood what it meant to be sworn in as a witness, what the truth is, that it is wrong to tell a lie, that her mother had told her not to lie, and that if she told a lie, she would be punished. This testimony clearly indicates that the child did understand the difference between the truth and falsity and the obligation to tell the truth.

Appellant also alleges that the competency hearing failed to establish the child had the mental capacity at the time of the occurrence in question to truly observe and to register such occurrence, or the memory sufficient to retain an independent recollection of the observations she made at that time, or the capacity truly to translate into words the memory of such observations. After reviewing the record, we cannot agree. Her testimony indicated that she was observant, could remember the events of that afternoon and had the verbal capacity to answer the questions asked.

The trial court did not abuse its discretion in permitting the eleven year old daughter of the victim to testify.

Judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.

      . Appellant’s theory on appeal is that there was evidence that the offense attempted was completed and that appellant was guilty of rape and could therefore not be convicted of the attempt.

      . The part of the victim’s testimony at issue is:
      “Q. (By Mr. Fischer) [the prosecuting attorney] Then after you heard that zipper upzip (sic) then what happened?
      “A. Then he told me to open my legs and I didn’t so he forced them open.
      “Q. Okay.
      “A. And then he got on top of me and he penetrated me.”

      . Under Missouri law, the essential elements of the crime of rape are: (1) penetration, however slight, of a female’s sexual organs; (2) accomplished by force or threats; and (3) against the will of the woman, § 559.260 RSMo 1969; e. g., State v. Robinson, 484 S.W.2d 186 (Mo. 1972); State v. Nevels, 537 S.W.2d 824 (Mo.App. 1976); State v. Ruhr, 533 S.W.2d 656 (Mo.App. 1976).
      It is respondent’s position that there was no explicit reference in the victim’s testimony to male or female sexual organs or to sexual intercourse which would warrant the trial court’s finding penetration and thus a completed act of rape. The victim did use only the conclusory term “penetrated,” and not, in the words of the trial court, “the magic words penis and vagina.” Thus, her testimony was vague in the sense that no explicit questions were asked, presumably out of a desire on the part of the prosecuting attorney to spare the victim additional emotional distress. Compare State v. Franklin, 459 S.W.2d 314, 315 (Mo.1970); State v. Nevels, 537 S.W.2d 824, 827 (Mo.App.1976) (use of more explicit language).
      We agree with respondent that whether or not there was penetration, and thus a complete act of rape, is a question of fact. Under different circumstances we would agree with the trial court that, at best, this controversy is a matter of semantics and presents a technical point. We believe that this is especially true in view of the fact that the victim is a mature, married woman and the mother of several children.

        Furthermore, her testimony was unchallenged and corroborated to a certain extent by medical evidence. We would, however, caution the prosecution against the use of vague, concluso-ry language when the use of explicit language may be necessary to prove the essential elements of the crime.

      . The statute provides: “The following persons shall be incompetent to testify: . . . (2) A child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which [he is] examined, or of relating them truly . . . .” § 491.060(2) RSMo Supp.1978.


text:
    STATE of Missouri, Respondent, v. Sharon Ann Marie BETHEL, Appellant.
    No. 38963.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 6, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.

      McQuie & Deiter, Walter D. McQuie, Jr., Montgomery City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John M. Morris, Asst. Attys. Gen., Jefferson City, Roy L. Richter, Pros. Atty., Montgomery City, for respondent.
   SMITH, Judge.

Defendant appeals from her conviction by a jury and resultant five year sentence for selling a controlled substance (marijuana) in violation of Section 195.020. We reverse and remand for new trial.

Defendant attacks the giving of MAI-CR 2.50, Character of Defendant Bearing on Guilt or Innocence, on the basis that it impliedly indicates there was evidence of defendant’s bad character. We do not find the instruction subject to this attack. It was required to be given because defendant had introduced evidence of her good character. MAI-CR 2.50, Notes on Use. We believe defendant’s reading of the instruction to be unduly strained.

Defendant’s other point is that the court erred in failing to instruct the jury on the lesser included offense of delivering less than twenty-five grams of marijuana without remuneration. The evidence warranted a jury finding that defendant sold a “lid” of marijuana to a minor for $15. The state concedes, and the record supports the concession, that there was evidence from which a jury could conclude the “lid” was given to the minor for no remuneration.

Sec. 195.020 prohibits the sale of any controlled substance. A sale includes a gift. Sec. 195.010(30). Marijuana is a Schedule I controlled substance. Sec. 195.017.2(4)(j). The sterilized seeds of marijuana which are not capable of germination are not a controlled substance. Sec. 195.010(20). Upon conviction under Sec. 195.020 based upon a sale of marijuana (if a first felony offense involving controlled substances), the punishment shall range from five years, to life imprisonment. Sec. 195.200.1(4). If, however, the delivery involved less than 25 grams of marijuana and delivery was made without remuneration and the offense is the first (presumably felony or misdemean- or), then the maximum punishment is one year in the county jail and/or a fine. Sec. 195.200.1(l)(c). No charge was made and no evidence was produced that the offense here was not the first. Therefore, if the transaction was for remuneration, regardless of the amount transferred, the offense was a felony. If the transaction was without remuneration, it became a felony only if the amount of controlled substance transferred exceeded 25 grams.

The evidence of the state was that the “lid” was marijuana and weighed 25.1 grams. This weight was based upon rounding off to the nearest tenth of a gram, so the actual weight could have ranged from 25.05 grams to 25.15 grams, subject to a scale accuracy of one-hundreth gram, making the range 25.04 to 25.16 grams. Contained within the “lid” and included in the weight were seeds. Whether these seeds were sterilized and incapable of germination and how much they weighed the state’s chemist did not know. The only evidence, therefore, of the amount of marijuana transferred is that the transferred substance weighed 25.04 grams and included some unknown amount of seed which might or might not have been a controlled substance. This evidence does not establish beyond a reasonable doubt that the controlled substance involved exceeded 25 grams in weight. By this we do not mean to indicate that in every case it is necessary to establish precisely the amount of non-controlled substance present in the substance transferred, providing it is reasonable to infer or there is an expert opinion that the non-controlled portion of the substance is not sufficient to lower the weight below the statutory demarcation line. In this case, the weight is too, close to the statutory line (within 14 one thousandths of an ounce) to infer that possible non-controlled substances did not push the weight above the 25 gram level.

Nor do we accept respondent’s contention, supported to some degree by State v. Dixon, 546 S.W.2d 774 (Mo.App.1977), that proof of the presence and weight of non-controlled substances within the transferred substance is an exception upon which defendant bears the burden under Sec. 195.-180 RSMo 1969. We do not regard this as an exception. It is not a crime to possess, sell or otherwise transfer non-controlled substances. It is the state’s burden to establish that defendant sold controlled substances and, if pertinent, the amount. Sterilized seed is not a controlled substance anymore than blue grass or wheat. If the controlled substance is mixed with a non-controlled substance and the weight of the controlled substance is important,, the state must establish what that weight is. See also State v. Nierstheimer, 500 S.W.2d 732 (Mo.App.1973).

Upon the evidence in the record, it was possible for the jury to conclude that the transaction here involved the sale for remuneration of less than 25 grams of marijuana — a felony. It could also determine that it involved a transfer of less than 25 grams without remuneration — a misdemeanor. Respondent contends that the latter is not a lesser included offense of the former. We cannot agree. While precise definitions of lesser included offenses are not clear under Missouri law (See MAI-CR Comments Lesser Graded or Included Offenses, p. 9), the general test appears to be whether the elements necessary to establish the higher crime would establish all the elements of the lesser crime. By statutory definition, a sale includes delivery with or without remuneration. All of the elements of delivery of less than 25 grams without remuneration are established by proof of delivery of more than 25 grams with or without remuneration, or of delivery of less than 25 grams with remuneration. The decisive question is whether there is evidence to support a finding that the delivery was without remuneration and was of less than 25 grams. We have held both of these elements to have evidentiary support. The only remaining “element” is whether there existed a prior conviction for violation of the controlled substances laws. We do not regard that as an element for purposes of determining whether the misdemeanor is a lesser included offense. See State v. Thompson, 299 S.W.2d 468 (Mo.1957) [2-4]. Whether a prior conviction exists is a matter of fact and law to be determined by the court not the jury. Sec. 195.200.3. The state has neither alleged nor proved the existence of such prior conviction so as to eliminate the availability of the misdemean- or. Whether we treat the misdemeanor as a lesser included offense of the felony or as a lesser grade or degree of the felony, an instruction on the misdemeanor was required. See MAI-CR, Comments, Lesser Graded or Included Offenses, p. 13.

Judgment reversed and cause remanded for new trial.

CLEMENS, P. J., and McMILLIAN, J., concur.

      . All statutory references are to RSMo 1975 Supp. unless otherwise noted.


author: SNYDER, Judge.

text:
    STATE of Missouri ex rel. McHAREVO DEVELOPMENT CORPORATION, a Missouri Corporation, Relator, v. The Honorable Herbert K. LASKY, Judge of the Circuit Court of St. Louis County, Missouri, Division IV, Respondent.
    No. 39410.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 6, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.
    Roberts & Roberts, V. Kenneth Rohrer, Farmington, for relator.
    Sleater & Sleater, W. W. Sleater, M. C. Sleater, Clayton, for respondent.
   SNYDER, Judge.

Relator McHarevo Development Corporation petitions for a writ of prohibition against respondent judge of the circuit court of St. Louis County, seeking to prohibit respondent from proceeding further to consider cause # 378,090, styled: Ladue-In-nerbelt Bank and Trust Company, Plaintiff v. McHarevo Development Corporation, et aL, Defendants. Preliminary writ made absolute.

This is the second petition for a writ of prohibition filed in this cause. An earlier writ of prohibition requested by the three individual defendants only was made absolute in State ex rel. Hails v. Lasky, 546 S.W.2d 512 (Mo.App.1977).

The original suit for a money judgment was brought by Ladue-Innerbelt Bank and Trust Company, successor to Pine Lawn Bank and Trust Company, against the McHarevo Development Corporation and Carl Hails, Frank J. McDowell and L. J. Mueller as individuals.

The claim against relator McHarevo is based on its alleged failure to fulfill the terms of a contract between relator and J.M.C. Investments, Inc., under which relator was appointed exclusive agent to collect certain rentals on St. Francois County real property for J.M.C. and to remit to other parties, from the sums collected, mortgage payments, real estate taxes and insurance premiums. The balance, if any, was to be sent to plaintiff Ladue-Innerbelt in discharge of J.M.C.’s obligation as maker of a promissory note in the face amount of $300,000.00 (Three Hundred Thousand Dollars) held by Ladue-Innerbelt.

The petition alleged that the individual defendants owed Ladue-Innerbelt contract sums which relator owed and failed to pay. The claim against the individual defendants was based on a written “Guarantee of Indebtedness of Corporation, etc.”, signed by them as majority stockholders of relator.

Summons were issued and returns of service made as to the individual defendants, but no return of service was ever made as to relator, although respondent asserts that because defendant Hails was the registered agent of relator corporation, service on him as an individual constituted valid service on relator.

Separate motions to dismiss filed by the three individual defendants based on a claim of improper venue were overruled by the trial court, after which the individual defendants filed the first petition for a writ of prohibition with this court. Our preliminary writ of prohibition in that case was made absolute on March 15,1977. State ex rel. Hails, supra. It prohibited the respondent judge from proceeding further in the cause entitled Ladue-Innerbelt Bank and Trust Company v. McHarevo Development Corporation, et ah, # 378,090.

On March 17, 1977, Ladue-Innerbelt voluntarily dismissed without prejudice its cause of action against individual defendants Hails, McDowell and Mueller. On June 9, 1977 respondent, in spite of the absolute writ of prohibition which had been issued by this court, ruled on and denied relator’s motion to set aside the court’s order of default and inquiry which had been entered as of May 18, 1976 prior to the filing of the first petition seeking prohibition. This second petition for a writ of prohibition was then filed on June 24, 1977.

Our former writ of prohibition was broad enough to prevent the respondent trial judge from proceeding further in this cause of action even though it was dismissed as to the individual defendants. Respondent’s theory is that a different situation exists now that the individual defendants are out of the case and the sole remaining defendant is the relator corporation. In truth, the applicable venue statute when the corporation and the individuals were co-defendants was § 508.010, RSMo 1969, whereas § 508.-040, RSMo 1969 controls now that relator is the sole defendant. State ex rel. Hails, supra; State ex rel. Columbia Nat. Bank of Kansas City v. Davis, 314 Mo. 373, 284 S.W. 464 (Mo.banc 1926). Because of the change in the applicable venue statute and because the question remaining as to proper venue would be unresolved if we were to rule that our prior writ of prohibition remains fully in effect as to the entire cause, and with the further belief that perhaps the former writ was over broad, we will consider the issues raised in this second prohibition petition.

Relator argues that Ladue-Innerbelt is only an incidental third-party beneficiary of the contract, not a creditor beneficiary, and hence lacks the standing to sue on the contract. We will consider this issue since it may be raised in future litigation.

Respondent has not spoken to this point in his brief. Nonetheless, we rule against relator and hold that Ladue-Innerbelt has standing to sue as a third-party creditor beneficiary.

It is a well-settled principle of law that a contract between parties upon a valid consideration may be enforced by a third party when entered into for his benefit even though he is not named in the contract nor privy to the consideration. Beattie Mfg. Company v. Gerardi, 166 Mo. 142, 65 S.W. 1035 (1901). Crone v. Stinde, 156 Mo. 262, 55 S.W. 863 (1900) [adopted by court in banc, 156 Mo. 262, 56 S.W. 907 (Mo.banc 1900)]; Bank of Corning v. Consolidated School District No. 6 of Atchison County, 225 Mo.App. 821, 37 S.W.2d 982 (1931); Black and White Cabs of St. Louis, Inc. v. Smith, 370 S.W.2d 669 (Mo.App.1963).

Relator cites Stephens v. Great Southern Savings & Loan Ass’n, 421 S.W.2d 332 (Mo. App.1967) and Mertens v. MGR, Inc., 507 S.W.2d 433 (Mo.App.1974) for definitions of donee, creditor and incidental beneficiaries, the three classes of third-party beneficiaries of contracts. The court in Mertens adopted the definitions in the Restatement of Contracts, § 133, including, at pages 435-6:

(b) a creditor beneficiary if no purpose to make a gift appears from the terms of the promise in view of the accompanying circumstances and performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary, or a right of the beneficiary against the promisee which has been barred by the Statute of Limitations or by a discharge in bankruptcy, or which is unenforceable because of the Statute of Frauds;

Ladue-Innerbelt is not a donee beneficiary because obviously J.M.C. did not intend to give anything of value to the bank. Ladue-Innerbelt does fit the definition of a creditor beneficiary. There is an actual duty of the promisee, i. e. J.M.C., to the beneficiary, Ladue-Innerbelt, to pay the amount due on the promissory note signed by J.M.C. and payable to the bank. In the contract, relator agreed to remit directly to Ladue-Innerbelt, in payment of J.M.C.’s debt on the note, the balance of rents collected over and above the sums required for payments on the first mortgage, taxes and insurance.

Incidental beneficiaries are those who do not fit the definition of a donee or creditor beneficiary. Relator argues that Ladue-In-nerbelt was an incidental beneficiary in the face of the clear evidence that J.M.C. was obligated as a debtor to Ladue-Innerbelt and that relator in the contract specifically promised J.M.C. to discharge that obligation. The benefit to Ladue-Innerbelt was direct and specific, not collateral and incidental, and Ladue-Innerbelt clearly had standing to sue as a creditor beneficiary.

Two additional points are relied on by relator. The first is the question of jurisdiction over the corporation, for relator contends that there was no effective service of process on it. The second is whether there is proper venue under § 508.040, RSMo 1969.

The question of venue will be considered first and since we find that venue is lacking in St. Louis County, the need for consideration of the question of effective service of process is eliminated. It should not arise again if suit is filed in a proper court.

Respondent contends that his determination of where the cause of action accrued, and hence the venue of the action, is subject to review only by appeal, not by prohibition, but cites no cases to support his contention. The facts are not disputed, only the law as to the place of accrual of the cause of action which determines venue under § 508.040, RSMo 1969.

“It is well-established .that lack of venue is a defect of a jurisdictional nature which authorizes issuance of prohibition.” State ex rel. Hails, supra, at page 514, citing cases. See also State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62 (Mo.banc 1956). Prohibition is a proper proceeding to prevent respondent from acting without jurisdiction because of improper venue.

The applicable venue statute reads as follows:

Suits against corporations shall be commenced either in the county where the cause of action accrued, or in case the corporation defendant is a railroad company owning, controlling or operating a railroad running into or through two or more counties in this state, then in either of such counties, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.

§ 508.040, RSMo 1969 (emphasis added). Relator does not have an office or agent for the transaction of its usual and customary business in St. Louis County. Therefore, venue in St. Louis County is proper only if the cause of action accrued there.

A cause of action for breach of contract accrues where the breach occurs. Wood v. Saylor Tie & Timber Co., 67 S.W.2d 826 (Mo.App.1934); Moherstadt v. Harry Newman, Inc., Motor Cars, 204 Mo.App. 619, 217 S.W. 591 (1920). Where did the breach alleged in Ladue-Innerbelt’s petition occur? We rule that the breach occurred and the cause of action accrued, and therefore venue lies, in St. Francois County.

The parties to the contract sought to be enforced are relator and J.M.C. Investments, Inc. Plaintiff Ladue-Innerbelt is not a signatory nor privy to the contract which was executed in St. Francois County. Relator’s only office for the conduct of business and its registered agent were located in St. Francois County. The only place of performance of the contract was in St. Francois County where relator agreed to collect rentals on St. Francois County property and remit to various payees on behalf of J.M.C. Investments, Inc. Relator’s primary obligation was to J.M.C. Investments, Inc., and it is possible, depending on the amount of money collected by relator, that no payments at all would have been due to Ladue-Innerbelt under the contract. Even assuming that relator collected funds over and above those needed to pay the mortgage obligation, taxes and insurance, as alleged by Ladue-Innerbelt, the payments would actually be made to Ladue-Innerbelt on behalf of J.M.C. Investments, Inc., to be applied to discharge the obligations of J.M.C. to the bank.

The finding that venue lies in St. Francois County is strongly supported by the case of Moherstadt, supra in which the parties were a St. Louis motor car company and a resident of Stoddard County who came to St. Louis to purchase an automobile. A used automobile was transferred to the motor car company at St. Louis as partial payment under an agreement that the motor car company would pay a sum of money to the Stoddard County resident when the used automobile was sold. The sale was accomplished, but the motor car company refused to pay. The Stoddard County resident sued in Stoddard County. The defendant motor car company appeared specially to raise the question of venue claiming that the cause of action accrued in St. Louis instead of Stoddard County and was upheld by the trial court, which dismissed the suit. The court of appeals affirmed, holding that St. Louis was the proper venue, stating, 217 S.W. at page 592:

While a number of cases dealing with the place of the accrual of the cause of action as fixing the proper venue have held that the place of the breach of the contract rather than the place of its making is the proper venue, none have gone to the extent of holding that, where the breach consists in a mere refusal to pay and no place of payment has been made part of the obligation, then the place where the creditor resides or may be found when the refusal to pay is made is the place where the cause of action accrues and fixes the venue of the cause of action.

The court went on to distinguish classes of cases which might seem to support a finding of venue at the residence of the creditor, such as cases involving tender of payment.

The court also cited the case of Barnett v. Colonial Hotel Bldg. Co., 137 Mo.App. 636, 119 S.W. 471 (1909). In Barnett, a company having its chief office and place of business in Greene County and no activity in St. Louis was sued in St. Louis by a firm of St. Louis architects for the balance of fees allegedly due for architectural services on a construction project. A representative of the architectural firm went to Springfield and made a proposition to the company. It was accepted at Springfield by the board of directors of the company. The work on the plans and specifications was done in St. Louis and delivered to the defendant in Springfield. The company paid only a portion of the agreed fee and the architects brought suit in St. Louis. The trial court dismissed the suit for lack of jurisdiction. The court of appeals affirmed, holding that the contract was entered into in Greene County and the breach occurred there. The court said, 119 S.W. at page 474:

We know of no authority anywhere for the proposition that an action will lie in a venue where the contract was neither formed, nor to be performed, nor breached; yet such is the posture of this case as regards the St. Louis venue. Certainly, if all those acts happened in one venue, the cause of action could not be regarded as having accrued in another, where one of them happened.

The Barnett facts and those under consideration here are similar and the same reasoning applies. There was even more reason to find venue in St. Louis, the residence of the creditor in Barnett, since there was partial performance in St. Louis when the architects prepared the plans and specifications for the construction project there. Even so, the court held that venue lay in Greene County.

Respondent cites Deering Milliken Research Corp. v. Textured Fibres, Inc., 310 F.Supp. 491 (D.S.C.1970) to support his position that venue lies in St. Louis County. The court in Deering Milliken Research Corp., held at page 500, “The general rule is that place of payment of a debt or contractual obligation, absent clear agreement to the contrary, is the residence or headquarters of the creditor.” (citations omitted). The court went on to hold that the cause of action accrued and venue was proper at the place of payment. Deering Milliken Research Corp., lends some support to respondent’s position but it was decided under the law of South Carolina. In addition, the case can be distinguished in two material respects. First, the contract in Deering Milliken Research Corp., specified that payments were to be made at the headquarters of plaintiff whereas here there was no agreement as to place of payment. Second, a substantial part of the Deering contract was performed at plaintiff’s headquarters. Here the entire contract was to be performed in St. Francois County.

Venue in St. Louis County is improper.

Preliminary writ made absolute.

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


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Roscoe James PITTMAN, Appellant.
    No. 39489.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 6, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.

      Oliver, Oliver & Jones, P. C., J. Fred Waltz, Cape Girardeau, for appellant.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, William L. Syler, Jr., Special Pros. Atty., Cape Girardeau County, Cape Girardeau, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Charged by information in two counts, Roscoe James Pittman was found guilty by a jury of robbery, first degree, and of assault with intent to kill without malice, and he has appealed from the ensuing judgment. We affirm.

A jury reasonably could find from the evidence that on October 21 1976, appellant entered the ladies’ rest room at a rest area on Interstate 55 in Cape Girardeau County and knocked Mrs. Mabel Stewart to the floor, choked her and hit her in the face with his fist. He then grabbed some car keys from Mrs. Stewart’s hand and a watch from her wrist, and attempted without sue-cess to remove a ring from her finger. After making a sexually-related assault on her person he told her to remain in the rest room and that if she tried to leave he would kill her then instead of later. However, she did leave the building and told Mr. Gary S. Lively, a truck driver who had stopped at the rest area, that appellant and his companion had her car keys. After some discussion the keys were handed over to Mr. Lively. The watch was not recovered. Mr. Lively followed appellant to his automobile and obtained the license number and, in the meantime, Mrs. Stewart obtained a pistol from her automobile and gave it to Mr. Phillip Brough, another truck driver who had entered the rest area. Mr. Brough walked toward appellant and his companion with the pistol held at his side. His purpose was to prevent appellant from leaving the rest area until Mr. Lively could block the exit with his truck. When Mr. Brough was 20 to 40 yards away, appellant leveled a rifle at him and started shooting. Mr. Brough heard a bullet hit a picnic table which he had jumped behind and he started shooting back. Appellant and his companion then left the rest area by driving over a grass area to get around Mr. Lively’s truck.

Following appellant’s arrest a short distance away, he gave a written statement in which he related that while his companion was “fixing” their automobile he went to the ladies’ rest room where he saw a white woman lying on the floor. There were some car keys nearby and he “picked the keys up and helped the lady up off the floor, then"[he] walked out the door.”

Appellant’s first point is that the trial court erred in failing “to instruct the jury on the lesser offense of stealing from the person.” His theory is that if the story he related in his written statement, which was introduced in evidence by the State, is believed, the jury could have found him guilty only of stealing the car keys.

In his motion for new trial appellant assigned as error the failure of the court to instruct on robbery, second degree, but the error now asserted was not presented in the motion for new trial. The point presents nothing for appellate review. State v. Flynn, 541 S.W.2d 344 (Mo.App. 1976); State v. Rennert, 514 S.W.2d 579 (Mo.1974). Assuming appellant was entitled to such an instruction, which we seriously doubt, when we consider the total circumstances of this case, as authorized in State v. Patterson, 443 S.W.2d 104 (Mo. banc 1969), we conclude that the failure to so instruct did not result in “manifest injustice or miscarriage of justice.” Rule 27.-20(c). See particularly State v. Kurtz, 564 S.W.2d 856 (Mo. banc 1978).

Prior to trial appellant filed a motion to sever the two counts. In his second point he contends that the refusal to do so constituted prejudicial error. He relies primarily on the concurring opinion of Judge Donnelly in State v. Neal, 514 S.W.2d 544 (Mo. banc 1974), in which he concluded that Rule 24.04, as amended, permitting joinder of offenses in a single indictment or information in limited circumstances, left unaltered the rule stated in State v. Terry, 325 S.W.2d 1, 5 (Mo.1959), “that a defendant may not be convicted at the same trial of two distinct felonies.” However, in the later ease of State v. Baker, 524 S.W.2d 122 (Mo. banc 1975), the court upheld the constitutionality of amended Rule 24.04, and held that trial of separate offenses in a single trial is permissible where the factual situation falls within the prescribed limits of Rule 24.04. See also State v. Duren, 556 S.W.2d 11 (Mo. banc 1977). Therefore, the determinative issue is whether the factual circumstances of this case are such that Rule 24.04 authorized the conviction of appellant of the separate offenses of robbery, first degree, and assault with intent to kill without malice.

Rule 24.04 authorizes the joinder of charges of offenses in an information in separate counts when the offenses 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.” State v. Baker, supra; State v. Toney, 537 S.W.2d 586 (Mo.App.1976). Appellant contends the two offenses are “factually unrelated” because the robbery took place in the rest room of the rest area while the assault occurred in the parking area; the assault did not involve Mrs. Stewart or Mr. Lively but only Mr. Brough; and Mrs. Stewart and Mr. Lively knew nothing of the shooting incident and Mr. Brough knew nothing of the robbery. We consider these to be only evidentiary differences.

Rule 24.04 is patterned after Rule 8(a) of the Federal Rules of Criminal Procedure, State v. Johnson, 508 S.W.2d 18, 20 (Mo. App.1974), which is designed to encourage joinder of offenses in the interest of more efficient administration of criminal justice. State v. Brannom, 539 S.W.2d 747 (Mo.App. 1976). The rule should not be so narrowly construed as to defeat its purpose. The robbery and the assault were “two * * * acts or transactions which constitute])!] parts of a common scheme or plan.” That scheme or plan was to commit robbery and escape, and the acts constituting the two offenses were committed in the furtherance of that plan. Both offenses occurred at the rest area within a few moments of each other with no complete break in the related activities. We conclude that under the factual circumstances the joinder was authorized by Rule 24.04.

Appellant next asserts that the court erred in failing to quash the jury panel because “the selection procedure used resulted in a systematic exclusion of racial and ethnic minorities.”

The transcript shows that the prospective jurors were selected by taking every sixth name from the voter registration lists. From that group 400 names were drawn, and from that group 75 names were drawn to comprise the jury panel. The court stated that the “group is selected strictly without regard to race, without regard to occupation or anything else other than the fact that they are registered to vote in Cape Girardeau County.” Appellant does not contend that the panel was otherwise selected. He asserts that he was “constitutionally entitled to a jury which has been selected from a cross section of the eligible persons in the community at large,” there were no blacks on the jury panel; and that “the exclusive use of voter registration lists prevents the panel from being representative of the county.”

Appellant was not absolutely entitled to have negroes on the jury that tried him, or even on the panel from which that jury was drawn. State v. Crockett, 543 S.W.2d 314 (Mo.App.1976). It is only when a defendant is by design deprived of the chance of having negroes on the jury that constitutional principles apply. State v. Logan, 341 Mo. 1164, 111 S.W.2d 110 (1937).

It has been held in numerous cases that the use of voter registration lists as the sole source of obtaining names of prospective jurors is not of itself constitutionally impermissible “unless this system results in the systematic exclusion of a ‘cognizable group or class of qualified citizens.’ ” Camp v. United States, 413 F.2d 419 (5th Cir. 1969). See also State v. Parker, 462 S.W.2d 737 (Mo.1971). As stated in the Camp case at p. 421, “those who do not choose to register to vote cannot be considered a ‘cognizable group.’ ” See Grimes v. United States, 391 F.2d 709 (5th Cir. 1968); Gorin v. United States, 313 F.2d 641 (1st Cir. 1963); Chance v. United States, 322 F.2d 201 (5th Cir. 1963). In Simmons v. United States, 406 F.2d 456, 463 (5th Cir. 1969), in commenting on the use of voter registration lists for jury selection, it was said that “ ‘the best thought of all three branches of government points toward voter registration lists as representing “the best cross-section of the community; indeed, they are probably the most broadly based lists available,” ’ ” and in People v. Powell, 40 Cal.App.3d 107, 115 Cal.Rptr. 109 (1974), the use of voter registration lists was said to be an “unassailable” method of making the initial selection of residents to serve as jurors.

The burden of showing systematic exclusion was on appellant, and the burden of going forward with evidence to the contrary was not on the State until appellant presented a prima facie case of illegal exclusion. State v. Mooring, 445 S.W.2d 303 (Mo.1969); State v. Crockett, supra. The mere showing that on a particular panel there were no negroes does not establish a prima facie case because, as stated in State v. Logan, supra, 111 S.W.2d at pp. 114-115, “It may happen that no negroes (or members of any other particular class of our citizens) will be on the regular panel for a given term of court, or on the special venire for a particular case. If that occurs in due course and good faith because of the ratio of white to negro population, or because of actual disqualifications, pure chance or the like, it is within the law; * * *.” Appellant made no prima facie showing of any systematic exclusion of a cognizable group or class of citizens qualified for jury duty.

Appellant’s final point is that the court erred in refusing his oral motion for acquittal because “the state’s evidence failed to show beyond a reasonable doubt that [he] was guilty of robbery in the first degree * * * as a matter of law.” We note that there is no mention in this point of the charge of assault with intent to kill. Our previous recitation of what a jury reasonably could find from the evidence clearly establishes that a submissible case was made as to both offenses. In argument under this point appellant states that it is his position that because the car keys “were returned without objection outside the restroom” the State “failed to established a taking of property with intent to permanently deprive Mrs. Stewart of the use of the items mentioned in evidence.” In State v. Kennebrew, 380 S.W.2d 293 (Mo.1964), it was held that an intent to permanently deprive the owner of his property is not an essential element of robbery in the first degree.

The judgment is affirmed.

DOWD, P. J., and SNYDER, J., concur.


author: FLANIGAN, Judge.

text:
    In the Matter of the ESTATE of Ralph TAPP, Deceased. Lewis W. TAPP et al., Appellants, v. John Wesley TAPP, a/k/a John Wesley Oliver, Respondent.
    No. 10179.
    Missouri Court of Appeals, Springfield District.
    June 12, 1978.
    Motion for Rehearing or Transfer Denied July 3, 1978.
    Application to Transfer Denied Sept. 12,1978.

      William B. Waters, Thomas E. Allen, Hale, Kincaid, Waters & Allen, Liberty, for appellants.
    Robert Ernest Gould, Sheridan, Sanders, Mason & Simpson, Kansas City, for respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

On January 10,1970, Ralph Tapp, 91, died intestate in St. Clair County, Missouri, leaving an estate appraised at $89,306.64. Letters of administration were issued by the probate court of that county. During the pendency of the administration John Wesley Tapp, a/k/a John Wesley Oliver, respondent in this court, filed in the probate court a “Petition for Establishment of Right to Inheritance.” In that petition John Wesley Tapp claimed that he was the sole natural child of the decedent. The petition was opposed by three nieces and two nephews of the decedent. They are the appellants here. The administrator is a formal but neutral party. The outcome of the appeal will determine whether the estate will be distributed to respondent or to appellants, decedent having left no surviving spouse.

To avoid confusion arising from similarity of names, respondent will be referred to as “Wesley.” Both the probate court and the trial court found in favor of Wesley. They also found that Wesley is the sole natural child of the decedent and appellants concede the validity of that finding.

It is the position of appellants that Wesley is precluded from inheriting from the decedent because in 1920, by the decree in Case No. A973 in the Juvenile Division of the Circuit Court of Jackson County, Missouri, Wesley became the adopted son of John W. Oliver and his wife Harriet Oliver. Wesley counters that assertion by claiming that the adoption decree is void for lack of consent of Wesley’s natural parents, Ralph Tapp (decedent) and Nellie Tapp, to the adoption. Appellants claim that the adoption decree is not deficient in the respect claimed by Wesley. Additionally, appellants argue that whether or not the adoption decree is valid, Wesley has no standing to challenge its validity for two independent reasons: (a) the issue of the consent or lack of consent of the natural parents may be raised only by them and (b) Wesley has estopped himself from denying the validity of the adoption decree by reason of his reliance thereon in a will contest which he filed in Illinois in 1956, contesting the will of John W. Oliver. This court finds merit in reason (b) and it is unnecessary to rule on the other contentions.

If the 1920 adoption decree was valid, it had the effect of barring Wesley from inheriting the estate of his natural parent. Wailes v. Curators of Central College, 363 Mo. 932, 254 S.W.2d 645, 649[6] (Mo. banc 1953). The same result is reached in the instant action if, as this court holds, Wesley has estopped himself, by conduct to be described hereafter, to deny the validity of the adoption decree.

In the circuit court both sides invoked Rule 73.01(b) by requesting findings of fact. The trial court, in its findings, said “there was no conflict in the evidence upon any material issue in the case.” Most of the evidence to be recounted was introduced by Wesley himself or on his behalf. In its memorandum accompanying its judgment, the trial court attached no significance to the Illinois proceeding and made only passing reference to it.

On March 28, 1917, Ralph Tapp married Nellie Dykes. One witness testified that Nellie was a relative, perhaps a second cousin, of Ralph. Both Nellie and Ralph were born in 1878. As a young girl Nellie lived in the home of Ralph and his parents, because Nellie’s mother had died.

In the latter part of March 1917, the Tapp family doctor informed Dr. J. A. Robertson that “he had a patient expecting a child to be born too soon after their marriage and that this presented quite an embarrassment to the family as there were some girls in the home and he wanted to know if Dr. Robertson would take this woman into the hospital, to be there for about three months, and until after the baby was born.” Nellie was admitted to Wesley Hospital in Kansas City, Missouri, and on June 19, 1917, she gave birth to Wesley. Dr. Robertson was attending physician and the nurse in charge of the delivery room was Bertha Loomis, R.N.

On July 3, 1917, a document entitled “deed of adoption” was executed and acknowledged by Ralph Tapp and his wife Nellie Dykes Tapp. That document was also executed and acknowledged by John W. Oliver and Harriet Oliver, his wife, but that was done on September 12, 1918, before a different notary public. By the terms of the deed of adoption the Olivers adopted Wesley and the Tapps consented to the adoption and released their parental rights. The deed of adoption was recorded in Jackson County on September 17, 1918.

In July 1917 Nellie was released from the hospital and returned with Ralph to the home of his parents. Before leaving the hospital Ralph told Dr. Robertson to “find a home for the brat.” Baby Wesley remained in the hospital “until the Olivers took him” in 1918, and he made his home with the Olivers until 1938. As heretofore noted, in 1920 the adoption decree was entered in Case No. A973 in Jackson County, Missouri, by the terms of which the Olivers adopted Wesley. Until 1926 the Oliver home was in Kansas City, Missouri. Later the Olivers and Wesley moved to Philadelphia for a few years and then they moved to Illinois. Wesley continued to make his home with the Olivers in Illinois until 1938. Nellie Tapp died in 1924.

As a child in the Oliver home in 1925 Wesley “opened some papers and started to read them.” He saw on the papers, “Regarding adoption, [Wesley].” Mrs. Oliver snatched the papers from him but Wesley “continued to think about them.” As a teenager he started questioning Mrs. Oliver, “trying to find out from her who my natural parents were because I believed that they [the Olivers] were not and they refused for a good many years to discuss it with me.” In 1935 or 1936 the Olivers “finally told me the whole story.” Mrs. Oliver was “quite candid” and she and Wesley “had lots of discussions about it, my origin, and her knowledge of the Tapp family.” After his discussions with Mrs. Oliver, Wesley “finally knew all of the facts.”

On direct examination Wesley testified that Mrs. Oliver had discussed with him “the procedures that were involved in going through this second adoption procedure . we had a lot of candid discussions about it and it was a continuing thing that came up from time to time. We would discuss it. She told me that they had to go through the second adoption because they found out that the original deed was not valid and at that time she said that they tried to contact the Tapps again to get a consent for the second adoption, but that at that particular time they received no reply from the Tapps. The letters were unanswered.” Mrs, Oliver told Wesley that her attorney, Mr. Woodbury (a nephew of Dr. Robertson), had tried unsuccessfully to contact the Tapps.

On cross examination Wesley admitted that during the 1930⅛ he learned that “there was some question about the legality” of the adoption. Asked to pinpoint the time when he first “questioned the legality of the adoption,” Wesley responded that by 1935 he knew “that there was an alleged technical deficiency or technical problem.”

Wesley left the Oliver home about 1938 “because I had to earn a living.” After he “finally knew all the facts” he did not make any immediate attempt to locate his natural parents or contact the Tapp family because of “finances more than anything else.” In January 1940 Wesley and John Oliver came to Missouri and went to the courthouse in Liberty. One of the clerks there showed Wesley the marriage certificate of Ralph and Nellie Tapp. Wesley made an unsuccessful attempt to locate Ralph Tapp at that time.

In July 1942 Wesley went again to Kansas City, this time to obtain a birth certificate which he needed in connection with a job application. With the help of Dr. Robertson, with whom Wesley spent several days, and attorney Hal Thurston, together with an affidavit supplied by Nurse Loomis, Wesley obtained a “substituted birth certificate” showing that he was born to the Olivers on June 19, 1917. Attorney Thur-ston had been Wesley’s guardian ad litem in the 1920 adoption proceedings. Thurston and Wesley inspected “records” at the Jackson County Courthouse and “got the information that [Thurston] needed.” He also learned that the original birth certificate was made out to Nellie and Ralph Tapp but he did not see that certificate.

Wesley testified that in 1942, while obtaining the birth certificate, “I was confronted with the fact that the Tapps were my parents and as far as I was concerned they must have been my legal parents if I had never been adopted — I felt that I was the son of Ralph and Nellie Tapp and in 1942 I knew all the facts. In 1942 when Dr. Robertson told me all of the facts and I was able to think about it myself and I talked to Mr. Hal Thurston and at that time I was thoroughly convinced in my own mind that Ralph and Nellie Tapp were my legal parents.” It was then that Wesley concluded that he was not “legally adopted by John and Harriet Oliver.” This conclusion was based in part upon information given him by Dr. Robertson and attorney Thurston.

Wesley was living in California when John Oliver died in 1956 in Illinois. Harriet Oliver had predeceased her husband. Wesley returned to Illinois for the funeral. The next day Wesley was present during the reading of the will of John Oliver. The will left the entire estate to the testator’s brother Jackson Oliver.

Later in 1956 Wesley hired attorney James Wolf of Los Angeles “to find out if I had any legal standing, if I had any benefits accruing to me.” Wesley explained to Wolf “that I was adopted. I explained that there was a question about the adoption, as to the legality of it.” An Illinois lawyer, Ralph Suddes, deceased at the time of the trial, was hired as local counsel.

On October 25, 1956, Wesley, through his two attorneys, filed a complaint to set aside the will of John Oliver on the grounds of undue influence and lack of testamentary capacity. The complaint alleged that Oliver died “leaving surviving him one son, the complainant herein.” The complaint made many references to Wesley as Oliver’s “son and only heir.”

On January 25, 1957, Wesley, through his attorneys, filed a motion to dismiss the will contest with prejudice, the motion reciting that the cause “had been settled.” On the same day the order of dismissal was entered.

As a result of the settlement of the will contest, Wesley received $1,500 from the Oliver estate. Records of the Illinois probate court in which the Oliver estate was pending, and in which Wesley had entered his appearance, contained an “order finding heirship.” The latter order recited that John Oliver died “leaving surviving him: [Wesley] adopted son.”

One who has accepted and retained the benefits of a judgment (or decree) is estopped to deny, on any ground, the validity thereof, or any part thereof, or any of its burdensome consequences, even where the invalidity arises from want of jurisdiction over the person or over the subject matter. Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W.2d 935, 946 (Mo. banc 1928); Sage v. Finney, 156 Mo.App. 30, 135 S.W. 996, 1000[9] (1911); Wilson v. Union Electric Light & Power Co., 59 F.2d 580 (8th Cir. 1932); In Re Reynolds’ Will, 85 N.W.2d 553, 562[9, 10] (N.D.1957); Mason v. Urban Renewal of North Little Rock, 245 Ark. 837, 434 S.W.2d 614, 615[1, 2] (1968); Burgess v. Nail, 103 F.2d 37, 44 (10th Cir. 1939); Marshall v. Lockhead, 245 S.W.2d 307, 308 (Tex.Civ.App.1952); Crain v. Foster, 230 Ark. 190, 322 S.W.2d 443, 445 (1959); 46 Am. Jur.2d Judgments § 51, p. 350; and § 629, p. 788; 49 C.J.S. Judgments § 453, p. 884. See also Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631, 637 (1941); Clark v. Mississippi Valley Trust Co., 357 Mo. 785, 211 S.W.2d 10, 16 (1948); Pierson v. Pierson, 369 S.W.2d 272, 277[7, 8] (Mo.App.1963); Magenheim v. Board of Education, 347 S.W.2d 409, 419 (Mo.App.1961); Owen v. City of Branson, 305 S.W.2d 492, 497 (Mo.App.1957).

In order for Wesley to have had the standing to institute the Illinois will contest, it was necessary that he be the son (natural or adopted) of John Oliver; that is to say, merely living with the Olivers as a foster child would not alone accord him that standing. Crumley v. Worden, 201 Ill. 105, 66 N.E. 318 (1903); Wohlgemuth v. Browning, 384 S.W.2d 820, 825[1] (Mo.App.1964); In Re Stoiber’s Estate, 101 Colo. 192, 72 P.2d 276 (1937).

Long prior to the institution of the Illinois will contest Wesley knew that the 1920 adoption decree was of doubtful validity. He knew of the specific imperfection, lack of the consent of his natural parents, which is the basis of his present attack upon that decree. He had discussed that matter with attorney Wolf. Despite such knowledge Wesley’s complaint in the will contest was filed upon the express theory that Wesley was the son of John Oliver. He knew of course that he was not Oliver’s natural son. In effect the complaint recognized and was bottomed on the validity of the 1920 adoption decree. Having recognized the validity of that decree, and having benefited to the extent of $1,500 (which he still retains) by reason of such recognition, Wesley may not now challenge its validity.

It follows that Wesley is not an heir of Ralph Tapp and is not entitled to the distribution of his estate.

The judgment is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

It is so ordered.

All concur.

      . For a case discussing and upholding the jurisdiction of the probate court to determine heir-ship in this type of proceeding, see Estate of Fedina v. Fedina, 491 S.W.2d 552, 557[2] (Mo. 1973).

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . It is clear from the record that Wesley, in using the term “second adoption procedure,” was referring to the 1920 proceedings in Case No. A973. It was the “second adoption procedure” in the sense that the recordation of the deed of adoption in 1918 was the “first.”

      . In the instant proceeding Wesley admitted the truth of the following request for admission: “that prior to the death of John Oliver in January 1956, you [Wesley] had knowledge of some alleged deficiency or irregularity in the adoption proceeding pertaining to you in the Juvenile Court of Jackson County, Missouri, in April 1920.”

      . In answers to interrogatories in the instant proceeding, Wesley denied that he received, “by inheritance or otherwise,” any property, real or personal, from John Oliver or Harriet Oliver or either of their estates.

      . It may well be, which need not be decided, that both Illinois and Missouri would have recognized Wesley as the child of John Oliver under the doctrine of equitable adoption, which the courts of each state recognize. Lukas v. Hays, 283 S.W.2d 561, 566 (Mo.1955). Among the very few cases which have considered the question, there is a split of authority on whether a child who has been equitably adopted has standing to contest the will of the adoptive parent. See 112 A.L.R. 1422.
      The Illinois complaint filed by Wesley makes no mention of equitable adoption; it alleged no facts which would support the invocation of that doctrine; it alleged, many times, that Wesley was the son of the testator, not that he should be declared to be the son or that the testator and his privies should be estopped to deny the relationship.
      “[W]e can not agree to the contention that there can be an adoption by contract and performance without either compliance with ‘the statutory formalities required by law relating to the adoption of children,’ or a decree of a court of equity based upon equitable principles and decreeing an equitable adoption.” Menees v. Cowgill, 359 Mo. 697, 223 S.W.2d 412, 416 (1949) (emphasis added).
      Wesley’s complaint in the Illinois will contest neither mentioned nor sought such a “decree of a court of equity.” This is not to say that, had it done so, this appeal would necessarily receive a different disposition.

      . Although Wesley testified that the Illinois will contest was filed without his authority, and that it was his intention to file a claim against the Oliver estate, this court has determined that his testimony is not believable. In effect it conflicted with the testimony of attorney James Wolf who filed the Illinois proceeding. The trial court made no finding with regard to the truthfulness of Wesley’s testimony and it did not figure in the trial court’s holding.


author: DIXON, Judge.

text:
    Joyce M. SAWTELL, Petitioner-Respondent, v. Bob K. SAWTELL, Respondent-Appellant.
    No. KCD 28965.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.
    Motion for Rehearing and/or Transfer Denied July 20, 1978.
    Application to Transfer Denied Sept. 12,1978.

      Robert G. Duncan, Robert E. Hart, Michael E. Reardon, Kansas City, for petitioner-respondent.
    R. Brian Hall, Hall & Stahl, Gladstone, for respondent-appellant.
    Before SOMERVILLE, P. J„ and PRITCHARD and DIXON, JJ.
   DIXON, Judge.

This is a civil action for dissolution. The judgment entered by the court dissolved the marriage and granted petitioner-wife custody of the two minor children. It further ordered respondent-husband to pay $250 per month for the maintenance of the minor children, granted the wife maintenance in gross of $15,000, periodic maintenance of $150 per month, and attorney’s fees of $1,000. The judgment also made a division of property. The wife was awarded the residence, all furnishings, and a 1975 Granada automobile. The husband was awarded the lake house at Table Rock Lake, with all furnishings, a Cobalt boat with motor, sailboat, and trailer. The trial court also set off to each of the parties the respective pension rights. The husband appeals the award of gross and periodic maintenance but does not question the division of property. The husband raises a single point of error, that is, that the trial court abused its discretion in awarding excessive maintenance in the amount of $15,000 in gross and periodic payments of $150 per month.

Husband and wife had been married for 23 years. They have two children, ages 15 and 19. At the time of trial, wife was 43 and husband was 45. Wife worked until she got pregnant with the first child and started working again the later part of 1972. All of her earnings went towards the lake house. Wife works for a school district doing video taping, and her net income is $398.46 per month. Her house payment is about $180 per month. She doesn’t have a savings account or any money. Wife was “surprised” when they separated because she thought they had a normal marriage. A great deal of evidence was offered concerning the misconduct of the husband during the marriage.

Husband works for the Kansas City, Missouri, Police Department and was promoted to Major in March, 1976. His yearly gross income is now about $20,500. Before this raise, his monthly net take-home was $1,154.51. Husband estimated his living expenses to be $721 per month. He testified that he wants to give the wife a fair amount of maintenance if she needs it. Husband now lives in an apartment and agreed that the lake house is a luxury.

The residence in Kansas City was purchased in 1961 for $21,500. The mortgage is around $12,000. The lake property cost $6,600 for the lot and $23,500 for the house, a total of $30,100. There is $2,000 owed on the lot and $7,000 owed to the credit union for acquisition of the lake house. There was conflicting testimony on the present values of these properties so the low to high values are given here. The residential property is now worth between $30,000— $40,000, and the lake property between $33,000 — $35,000. The value of the wife’s pension rights is not shown but could only have been of relatively small value considering the length of time she had worked and her salary. On the other hand, the husband’s pension, payable at age 52 or some five years subsequent to the divorce, was in the amount of at least $1,000 a month and would be paid in addition to any other earnings.

The standard of review of court-tried cases is governed by Rule 73.01 as enunciated in Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976). The trial court’s determination of the amount of maintenance is discretionary, and we review this record only to determine whether that discretion has been abused. Naeger v. Naeger, 542 S.W.2d 344 (Mo.App.1976).

Recognizing that limitation upon this court’s review, the husband argues the necessary abuse of discretion is shown because (1) there were no findings of fact or law; (2) that the evidence does not support the awards and is insufficient to justify them; and (3) that there was “evidence” the awards were punitive in nature.

First, the husband complains that there were no specific findings made by the court in accordance with the requirements of the statute. This contention is without merit. Relevant here is the fact that no specific request for findings of facts or conclusions of law was made by counsel. In the absence of a specific request by counsel, Rule 73.01 imposes no duty on the trial court to make specific findings of fact or conclusions of law. The trial court is not required to make specific findings on the necessary statutory elements before decreeing maintenance. When no findings or conclusions are made, all fact issues are considered found in accordance with the result reached. Butcher v. Butcher, 544 S.W.2d 249 (Mo.App.1976); Stark v. Stark, 539 S.W.2d 779 (Mo.App.1976).

Next, the husband contends that these awards were contrary to the intent and clear language of § 452.335, RSMo Supp. 1975, in that there was no evidence of record which would sustain such awards. Here, the husband claims that there is no evidence as to the wife’s expenses except the payment of $180 per month mortgage upon the house. But, the wife’s financial statement is attached at the end of the transcript filed with this court. This was filed in the circuit court as a sort of pleading, as was the husband’s. Both were referred to without objection at trial as having been previously filed with the trial court and were utilized in cross examination. This financial statement estimates the wife’s total monthly expenses, including the $180 house payment, to be $874. Both parties’ attorneys approved the transcript as filed, and the statements were a part of it and obviously were considered by the trial court in making the awards.

Guides to the factors a court considers in determining whether a maintenance award should be made and, if so, in what amount, are outlined in In re Marriage of Schulte, 546 S.W.2d 41 (Mo.App. 1977), and need not be repeated here. In determining the reasonableness of the award, the court balances the spouse’s ability to pay against the reasonable needs of the spouse seeking maintenance. Badalam-enti v. Badalamenti, 566 S.W.2d 229 (Mo. App.1978); Larison v. Larison, 524 S.W.2d 159 (Mo.App.1975). To warrant appellate interference, the amount of the maintenance award must be patently unwarranted or wholly beyond the means of the spouse who pays maintenance. In re Marriage of Schulte, supra.

Applying these rules to the facts presented here, the wife has no property other than the marital property apportioned to her, and this property was non-income producing. Her earnings are not sufficient for her to support herself. Therefore, the two conditions prescribed by § 452.335 are met, and it was appropriate for the trial court to make a maintenance award.

In determining the amount to be awarded, the facts considered relevant are that the parties had been married for 23 years, the wife was 43 years old at the time of the dissolution, a fairly high standard of living had been established during the marriage, there was no evidence of misconduct on the wife’s part during the marriage, and. the husband’s yearly gross income is $20,500 while his estimated monthly expenses are $721.

Also to be considered in connection with the allowances made is the property set off to the parties. The husband received his pension free of any claim of the wife, as well as the equity in the lake home which was from $24,000 to $26,000. The value of the husband’s pension is not shown, but obviously $1,000 a month at age 52 is a valuable annuity.

There was substantial evidence presented to justify the maintenance award, and the amount of the award was a reasonable balance between the husband’s ability to pay and the wife’s reasonable needs. The trial court did not abuse its discretion in the maintenance awards made to the wife.

The husband’s final argument is that there was evidence that the maintenance award was punitive in nature. Here, the husband contends that the court had punitive motives in making the maintenance award to the wife based solely on the following language of the court in giving its judgment:

“. . . I do want you to understand this is not to reward or punish anyone, that is not my intention. At the same time, I will say that I wonder what in the world is going on in the Police Department over there. It sounds like a Peyton Place to me. That’s the reason we don’t get any more done than we do.”

The trial judge’s casual remark simply indicated his concern over the “extra-curricular” activities of the police department in general. The remark was not only directed at the husband in this case, but also two other persons who work for the police department and whose extra-marital activities were in evidence. Without going into detail, suffice to say that in this context, the trial judge’s comment is understandable.

In addition, the trial court prefaced its remark with a cautionary note to the effect that the comment was not to be understood as indicating any punitive intention on its part. Indicative, also, of the lack of punitive intent on the part of the trial court, is the amount of the award itself in the light of the evidence of earning capacity and the property division. It does not assume punitive proportions, but was entirely reasonable.

Under these circumstances, we hold that no punitive intent has been shown to exist on the part of the trial judge, and there has been no abuse of the court’s discretion in this regard.

The decree of the trial court granting the wife maintenance in gross of $15,000 and periodic maintenance of $150 per month is affirmed.

All concur.