author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. David Joseph HENDERSON, Defendant-Appellant.
    No. 35686.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 23, 1975.
    Rehearing Denied Nov. 19, 1975.
    Application to Transfer Denied Jan. 12, 1976.

      Anderson, Green, Fortus & Lander, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Preston Dean, Asst. Attys. Gen., Jefferson City, Gene McNary, Pros. Atty., George Westfall, Asst. Pros. Atty., Clayton, for. plaintiff-respondent.
   KELLY, Judge.

David Joseph Henderson appeals from his conviction of Manslaughter, § 559.070 RSMo 1969 and sentence to six years in the custody of the Missouri Department of Corrections following a jury trial on a charge of Murder in the Second Degree conducted in the Circuit Court of St. Louis County. We affirm.

On appeal Mr. Henderson, hereinafter the defendant, does not contest the sufficiency of the evidence to support the verdict of the jury, and we may therefore set out briefly the facts most favorable to the jury verdict. State v. Stapleton, 518 S.W.2d 292, 296[1] (Mo. banc 1975). In this light, the jury could have found that the defendant shortly prior to 9:10 p. m. on the evening of April 10, 1972, stabbed David Clippard with a Barlow pocket knife while engaged in a fight with him after finding Mr. Clippard and Mrs. Henderson, the defendant’s wife, together in a car on the parking lot of the Bowl-A-Rama, a bowling alley, located in Overland, Missouri. Mr. Clippard was dead on arrival at St. Louis County Hospital. Cause of death was established by a medical witness as a stab wound that penetrated the heart. The wound could have been caused by a knife like defendant’s knife, but that “would not be an absolute decision on my part.” A statement the defendant made to the Overland police officers came into evidence and according to this statement the defendant jabbed at the deceased with his knife several times when the deceased alighted from the car in which he was seated with Mrs. Henderson because he knew the deceased to be a judo-karate expert. He said he did not know whether he struck the deceased with the knife, but when he started to leave he heard his wife call for help and he looked back and saw the deceased lying behind a car. He then went and helped his wife drag the deceased to her car and put him on the front seat. He gave the deceased mouth to mouth resuscitation and then went into the bowling alley, called an ambulance and left the scene. Defendant’s defense can best be described as self-defense and the preservation of his marriage from the inroads of the deceased.

Defendant’s first allegation of trial error is that the trial court was guilty of error in permitting the prosecutor to refer to the defendant as a liar and perjurer in argument. He contends that on twenty-one separate occasions the prosecutor referred to the defendant during argument as a liar and a perjurer. The State responds by pointing out that there is nothing preserved for review because the defendant made no objections to the argument at the time it was made, and the record supports this position. The defendant would, however, have us consider this as “plain error.” Rule 27.20(c).

The thrust of defendant’s argument is that the 21 separate references to the defendant as a liar or perjurer were compounded by the use of the words, lie, liar, perjurer and perjury, thirty times in his argument and together caused the prosecutor’s argument to be so highly prejudicial, improper and inflammatory as to fall within the Rule.

A reading of the record reveals that of the three persons present at the time the confrontation between the defendant and the deceased took place on the bowling alley parking lot the only one giving testimony was the defendant himself. Mrs. Henderson did not appear as a witness in the case. All of the State’s witnesses either arrived on the scene after the event, or took part in the post-attack investigations. Defendant’s statement to the Overland police officers was the only evidence the State had in support of its charge. The defendant took the stand in his own defense and testified to a different version of the facts than those attributed to him shortly after his arrest by the Overland police officers who testified for the State.

In his opening portion of summation, the prosecutor quite properly pointed out to the jury that the main issue in the case was the defendant’s credibility when he said:

“. . . Mr. Henderson has testified in this case and so you have Mr. Henderson’s version of what happened. And you are almost bound to base your verdict on whether you believe what he says or whether you disbelieve it.”

Very shortly thereafter the prosecutor inquired of the jury whether Mr. Henderson’s story as to what happened that night was credible, made reference to the credibility instruction given to the jury by the trial court and said:

“It tells you if you believe that any witness has knowingly sworn falsely to any fact or facts material to the issues in this case, then you must reject such portion of the testimony as you believe to be false. I think there is no question that you all know or believe he tells lie after lie after lie.”

Thereafter the prosecutor proceeded to argue the evidence which he contended contradicted the defendant’s version of what occurred or which were inconsistent with the defendant’s testimony, or were incredible.

The law is well settled that a prosecutor must be allowed wide latitude in argument and that in argument he has a right to comment on the credibility of the defendant’s witnesses and the truth or falsity of their testimony from the state’s point of view. State v. Griggs, 445 S.W.2d 633, 636[2] (Mo.1969). When a defendant offers himself as a witness in his own behalf his testimony is subject to the same arguments on the issue of his credibility as is any other witness. State v. Davison, 457 S.W.2d 674, 676[4] (Mo.1970).

The Supreme Court of this state refused to reverse a conviction of second degree murder where it was contended that the prosecutor at the close of his argument accused the defendant of lying five times during his testimony and the jury was thus inflamed and prejudiced in State v. Lay, 427 S.W.2d 394, 403[9] (Mo.1968). The court there noted that there was no objection to the argument by the defendant and the point was not preserved for review. Nonetheless the court read the argument and failed to see wherein it was inflammatory or prejudicial.

In State v. Jackson, 511 S.W.2d 771, 775[7] (Mo.1974) the prosecutor in his argument referred to the defendant as “a liar and a perjurer and a killer.” This was not preserved in defendant’s motion for new trial and was not therefore preserved for review on appeal. In disposing of the defendant’s urging that the Court consider the prejudicial effect of the prosecutor’s argument in its entirety as “plain error,” the Court said, 1. c. 775:

“Because control of argument is primarily the function of the trial court, this court is not prone to examine complaints regarding the matter not properly brought to the trial court’s attention.”

We conclude that in the context of the evidence in this case the argument of the prosecutor did not exceed the bounds of propriety with respect to argument requiring this court to reverse the conviction from which he appeals on this ground and we therefore rule this Point against defendant.

Defendant next contends that the trial court erred in permitting the prosecutor to argue, over his objection, that every defendant who is charged with murder and is “on trial for his life” is going to lie under oath and perjure himself, that a person on trial for murder second degree is not going to worry about perjury and that the defendant was lying from beginning to end.

The incident referred to by the defendant occurred near the end of the prosecutor’s rebuttal argument after he had compared a number of contradictions in the testimony of three of the State’s witnesses with that of the defendant while he was on the stand. The argument was as follows:

“He deserves to go to the penitentiary for perjury in this court room. You take an oath, to take an oath if you are on trial for your life, are you going to lie under oath? Of course you are.
MR. ANDERSON: I object, Your Honor. He cannot make a statement like that— to the fact that anyone on trial for his life will perjure himself.
THE COURT: Well, this is a matter of argument and the attorney’s statement is not evidence. The jury will remember the evidence.
MR. WESTFALL: You ask yourself, is a person on trial for murder second degree, is he going to worry about perjury? You ask yourself that and you ask yourself if Mr. Henderson was not lying from beginning to end. You ask yourself that.”

Lifted out of context this argument appears much more likely to produce prejudice to the defendant than when viewed in the light of the evidence and the argument of both the defense and the prosecution. As pointed out earlier in this opinion, the credibility of the defendant was the crucial issue in this case. Instruction No. 6 — the credibility instruction — advised the jury that in determining the credibility and weight that it would give to the testimony of the witnesses it could take into consideration certain matters. Among those was the “interest, if any” the witness had in the result of the trial. This argument, in our opinion, constitutes a reference to the fact that of all of the witnesses in the case it is the defendant who has the most to gain if his testimony is accepted by the jury; that, therefore, his credibility is subject to close scrutiny. While this argument could have been couched in more temperate terms and with less generalization, the courts of this State have allowed prosecutors great latitude in final argument and we conclude that while this line of argument comes close to the line, it does not, in the context in which it was made, constitute prejudicial error, and we rule this Point against the defendant.

Defendant’s third contention is that the trial court erred in giving the jury an additional instruction wherein he responded to a written note sent to him by the foreman of the jury after the jury had been deliberating for some time. After the jury had commenced its deliberations they sent the trial judge a note reading as follows:

“Two to ten years sentence. Do we say how many years?” In response to this note the trial judge sent a typewritten note to the jury which read:

“The Court cannot give you additional instructions at this time.” The first note was received by the trial court at about 7:00 p. m. and after deliberating another hour and 48 minutes the jury sent the trial court another note which read:

“Instruction Number Two. Bottom of Page (sic). ‘For not less than two nor more than ten years.’ Does this sentence stay as it is, or do we say how many years. 2 — 8—4—5—6—7—8—9—10.”

In response to this note the trial judge, over the defendant’s objection, sent to the jury “an additional written instruction” which read:

“In response to the question submitted by the Jury, the Court instructs you that if the Jury finds the defendant guilty, the Jury should then assess a specific punishment within the range specified in the instructions.”

The thrust of the defendant’s argument in support of this contention is twofold:

First, the word “should” as used in the additional instruction made it mandatory that the jury assess the punishment, and,
Second, this instruction conflicted with Instruction No. 7, the “Kerry Brown Instruction,” and therefore constituted prejudicial error.

The State points out in rebuttal that the defendant does not by his argument contest the right of the trial court to recall the jury and further instruct them. In response to the defendant’s argument that the word “should” constituted a mandate, the State argues that in the context of the jury’s difficulty the word “should” did not prejudice the defendant. The State reasons that by the note itself the jury advised the trial court that they had arrived at a verdict of guilt but with respect to the punishment that they simply did not know whether they were required to express the period of punishment in terms of a definite number of years. Therefore, any “mandatoriness found in the additional instruction could not have prejudiced appellant.”

Defendant’s position that under the law of this State and Instruction No. 7 the jury had an alternative. It had a choice to assess the punishment or to have the court assess the punishment. The jury, prior to the court’s additional instruction, indicated that they were having trouble with the question of the assessment of punishment, and the trial court by advising the jury that it “should then assess the punishment within the range specified in the instructions” deprived the jury of that alternative and required that the jury assess the punishment, to the prejudice of the defendant.

Our interpretation of the factual situation leads us to a different conclusion than that arrived at by the defendant. As we view the circumstances from the two notes sent to the trial court during the jury deliberation, the difficulties the jury was having had nothing to do with the “Kerry Brown Instruction” and the alternatives afforded thereby to a jury where it had arrived at a verdict of guilty but could not agree on the amount of punishment to be imposed. Rather, the notes advised the trial court that the difficulty the jury was having was confined to how they stated on their verdict form the number of years confinement they had decided the defendant should have assessed, in view of the terminology in the State’s verdict-director on Manslaughter— Instruction No. 2. That instruction provides not only for punishment by imprisonment in the Missouri Department of Corrections, but also for imprisonment in the county jail and/or a fine. There was never at any time any indication that the jury was considering any punishment less than two to ten years in the custody of the Missouri Department of Corrections in either of the notes sent to the trial court. Quite the contrary, for the notes merely wanted to know whether the jury should specify the number of years by a definite number. The trial judge’s second note merely advised them that if they found the defendant guilty, then they should “assess a specific punishment within the range specified in the instructions.”

We daresay this is a problem which would not have occurred had the prosecutor in his summation taken a few moments of his argument to explain this requirement to the jurors, but in light of all the circumstances we do not conclude that this additional instruction was either in conflict with the “Kerry Brown Instruction” nor constituted an impermissible clarification of the punishment portion of the State’s verdict-director, to the prejudice of the defendant. We rule this point against the defendant.

Defendant’s final contention is that the trial court erred in referring to “a Certain Knife as Mentioned in the Evidence” in Instruction No. 2, the State’s verdict-director on Manslaughter. The defendant argues that there was evidence that three knives were recovered, all three were marked as exhibits and referred to throughout the trial; that the evidence established that two of the three knives were at the scene of the crime and each appeared to have blood on them. One of these knives was the defendant’s and one the victim’s, and there was no “direct evidence” showing which knife, if either, in fact caused the mortal blow to the deceased. For this reason, the defendant argues, the instruction gave the jury a roving commission to speculate which knife of the two found at the scene inflicted the mortal wound. For this reason the defendant argues the instruction was confusing and ambiguous. We have read the cases referred to by defendant in support of this point and do not find them controlling.

We have no quarrel with the general holding of United States v. Bagby, 451 F.2d 920 (9th Cir. 1971) that instructions should not be confusing, ambiguous or equivocal; nor with State v. Winn, 324 S.W.2d 637, 642[2] (Mo.1959) that instructions must not mislead jurors. Pulse v. Jones, 218 S.W.2d 553 (Mo.1949), which defendant relies on, is a civil case for wrongful death resulting from a head-on collision of motor vehicles wherein the defendant pleaded specific contributory negligence of the plaintiff in excessive speed, failure to run as near to the right hand side as practicable, failure to turn and pass without interference and operating on the wrong side of the center line. The infirmity in the defendant’s contributory instruction there was that instead of requiring that the jury find that the deceased was guilty of any of the specific contributory negligence alleged in the defendant’s answer concluded by stating that the plaintiff was barred from recovering if her decedent was guilty of the failure to exercise the highest degree of care “in any way” caused or contributed to cause the collision complained of. In passing on plaintiff’s contention that this instruction was reversibly erroneous, the court, 1. c. 556, said:

“The general and undefined words ‘in any way’, instead of requiring a finding of some specific contributory negligence alleged, are as wide open a roving authority to the jury as could be written.
Contributory negligence is an affirmative defense. When specifically pleaded and proved to have contributed to the collision, it may be submitted for the jury’s finding thereon. But the jury may not be told without specific submission of specific contributory negligence merely that if they thought deceased was guilty of contributory negligence in any way that plaintiff could not recover.”

Three different knives were mentioned in evidence. One of these knives was a pocketknife found in the defendant’s van on the evening of the homicide and from the evidence was not connected with it. A second knife was found at the scene lying alongside the door to the driver’s side of the automobile of the victim, but it was never established whether this knife belonged to the victim. The third knife was positively identified as belonging to the defendant by both his son, who said he had given it to him, and by the defendant as the one he had in his pocket when he approached the automobile in which the victim and Mrs. Henderson were sitting on the bowling alley parking lot. It was the knife which was found at the spot towards which the defendant said he had thrown it, and it was the knife he had in his hand during the scuffle. The pathologist who examined the body of the victim at St. Louis County Hospital was of an opinion that “the wider blade knife” would have inflicted the wound he attributed which caused the death of the deceased, and that knife, in his opinion was State’s Exhibit 18 — the defendant’s Barlow knife.

In this case the Indictment charged that the assault was made upon the victim “with a certain knife.” The instruction here under attack used the wording of the Indictment and there was sufficient evidence to support a finding that the defendant stabbed the victim with the Barlow knife he admittedly owned and used to “jab” with on the occasion in issue. We find no error in the wording of this instruction, and rule this point against the defendant.

Those portions of the record which we are required to review, although not challenged in this court by Rule 28.02, have been examined and found to be in proper order.

The judgment of the trial court is affirmed.

CLEMENS, P. J., and STEWART, J., concur.

      . State v. Brown, 443 S.W.2d 805, 809[6, 7] (Mo. banc 1969).


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    In re D. L. W., a minor.
    No. KCD 27757.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.
    Application to Transfer Denied Jan. 12, 1976.

      William E. Shull, Duncan & Russell, Gladstone, for appellant.
    Rachel Hall Whipple, Kansas City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

This appeal is rooted in the filing of a petition by the juvenile officer of Jackson County alleging the environment of D.L.W. to be injurious to her own welfare because the persons legally responsible for her care failed to properly provide such care because the child had bruises, contusions, a bump on the back of the head and chin, and rib and leg fractures. After a finding by the juvenile court that such child was in need of the care and services of the court, the court entered its order placing such child in the jurisdiction of the court. A subsequent order placed the custody of the child with the State Division of Family Services for placement in a foster home. The parents have appealed.

In the adjudicatory hearing, the juvenile officer introduced records from St. Luke’s Hospital showing D.L.W. was admitted to St. Luke’s Hospital on June 25, 1974. Her birthdate was shown to be April 13, 1974, and that she resided with her parents in Kansas City, Missouri. The records further disclosed that a chest x-ray showed healing rib fractures of the left seventh and the right fifth and sixth ribs and a non-dis-plaeed fracture of the proximal tibia. The record further contained the notation “battered child?”.

The juvenile officer also offered a stipulation between counsel concerning the testimony of Dr. Herbert Davis, a board certified pediatrician, if he were to appear and testify. The stipulation recited that Dr. Davis had practiced for twenty-seven years and had been D.L.W’s. doctor since her birth. He observed the child on June 25, 1974, at St. Luke’s Hospital and noted bruises on her head and back. Because he suspected battering had occurred, he requested a skeletal survey. The survey revealed that one of the ribs had been broken in four places and the left tibia was partially fractured and the fractures were approximately three to six weeks old. The stipulation further stated in the doctor’s opinion “the child’s injuries conform to the classic description of a battered child, particularly the partial fracture of the left tibia which is the hallmark syndrome of child battering, being indicative of either a pounding or twisting action”. With the introduction of these two documents, the juvenile officer rested.

After an unavailing motion to dismiss, the mother of the child testified both she and her husband, the child’s father, were employed and a baby sitter had been hired to stay with the child while they were at work. The mother stated they had run an ad in the newspaper for a baby sitter, and after screening the applicants by examining their references, had hired one girl who appeared to be competent and qualified. She further stated that on June 7, 1974, the parents had returned home and noticed the baby sitter had left in an unusually hurried manner. Later, when the mother was changing the child, she noticed some bruises about the child’s head. She stated her husband promptly called the police and the parents took the child to the emergency room at St. Mary’s Hospital. She stated the Hospital examined the child but found nothing wrong. The parents told the police officers who came to investigate what had occurred. The mother further stated the police had made an investigation but the baby sitter had left the city and apparently no one knew her whereabouts.

On cross-examination the mother stated the same baby sitter had been hired twice subsequent to the time the bruises were noticed but no further injuries were noted after those occasions. The mother further stated that after June 7 the child did not improve and continued to be cranky and cried frequently. As a result of this, the mother stated the child was taken to St. Mary’s emergency room on two other occasions, but she was told there was nothing wrong with the child. The mother testified that finally on June 25 the child’s pediatrician, Dr. Davis, was called and the parents took the child to St. Luke’s where Dr. Davis performed the examination which revealed the findings contained in the stipulation concerning his testimony.

At the conclusion of the mother’s testimony all parties rested and the juvenile court found that a prima facie case had been made and the court found the allegations in the juvenile officer’s petition to be true. The court ordered that jurisdiction of the child be taken under the provisions of § 211.031, RSMo 1969. The court ordered a subsequent hearing as to disposition and as already noted at the conclusion of this hearing, ordered custody of the child removed from the parents.

On this appeal the parents vigorously contend there is insufficient evidence to support a finding by the court that the environment of the child was injurious to her own welfare and the court erred in taking jurisdiction of such child under § 211.031. The parents argue forcefully that the evidence did not show the parents had committed any acts of abuse on the child but on the contrary, showed the abuse had been committed by the baby sitter, and further that no negligence had been shown on the part of the parents in the selection of the baby sitter, with the result the parents could not be held responsible for the injuries suffered by the child.

§ 211.031 provides “the juvenile court shall have exclusive original jurisdiction in proceedings: (1) Involving any child who may be within the county who is alleged to be in need of care and treatment because: (c) the behavior, environment or associations of the child are injurious to his welfare or to the welfare of others; . . . ”

In any proceeding involving child custody, the consideration of supreme importance which overrides all others is the welfare of the child. In Re J.L.L., 402 S.W.2d 629 (Mo.App.1966). In this case the court was considering the environment and welfare of a two-month old child who had been physically battered to the point of inflicted fractured ribs and a fractured leg. There is no contention on the part of the parents that such injuries were or could have been accidentally suffered. On the contrary, the parents admit the child was battered but claim the deed was done by a baby sitter.

For a child of this age to have the injuries inflicted upon it as described in this case, it can hardly be debatable but that the environment of such child was injurious to its welfare. It was not necessary to prove, as in a criminal case, whether the parents actually inflicted the injury or whether such injury was inflicted by someone else. This is not a criminal proceeding and so the niceties of proving precisely who committed the act is not a necessary ingredient in determining whether or not the juvenile court should assume jurisdiction over this child. The sole question for determination is whether or not the environment of this child was injurious to its welfare. When intentional injuries are inflicted as they were in this case, then the answer to the question before the court becomes self-evident.

The nature and extent of the injuries and the fact such injuries were admittedly intentionally inflicted, constitutes more than substantial evidence to support the court’s finding that the environment of this child is injurious to its welfare and to justify the court in assuming jurisdiction of such child.

The parents further contend that even if the court properly assumed jurisdiction over the child, the court erred in removing the custody of the child from the parents. The parents cite a number of cases stating the general rule that natural parents have a primary right to the custody of their children and must be considered fit and qualified to exercise that natural right. This court has no argument with the general rule as stated in Cox v. Carapella, 246 S.W.2d 513 (Mo.App.1952). However, such general rule has well recognized exceptions which permit the court to remove the child from the parent’s custody upon a finding that the parents are in fact unfit to have such custody. State v. Pogue, 282 S.W.2d 582, 588[6—9] (Mo.App.1955).

In this case the court received evidence at the hearing as to what disposition should be made of the custody of the child. This evidence consisted in part of the juvenile file. This file reveals the mother of the child in this case had one child which was taken from her custody by the juvenile court of Jackson County in 1967 on a finding that the environment of such child was injurious to his welfare, and another child was removed from her custody on the same grounds in 1965. The file also reveals another child was taken from the custody of this mother by the juvenile court in 1965 on a finding that the parents neglected to provide her with proper support and other care necessary for her well being. This evidence was sought to be introduced by the juvenile officer at the adjudicatory hearing but objections to such evidence were sustained. Such evidence was properly received at the dispositional hearing and was also admissible in the adjudicatory hearing. This evidence showed past conduct on the part of the mother. The courts of this State have long admitted evidence of past conduct on the part of parents in determining the suitability of the parents to custody of their children. In Re Cole, 274 S.W.2d 601 (Mo.App.1955). Evidence of mistreatment of other children has been held admissible in considering the welfare of another child. In Re Phelps, 145 Mont. 557, 402 P.2d 593 (1965).

Also at the dispositional hearing the court received evidence from a psychologist at the Western Missouri Mental Health Center that both parents in this case fit the child abuse profile. This witness testified that in her opinion the parents were in a high risk category with reference to the probability of child abuse occurring in their home. This evidence was also properly received at the dispositional hearing and would also have been properly received in the adjudicatory hearing as being relevant to show the environment in which this child was living. In Re J.Z., 190 N.W.2d 27 (N.D.1971).

Under § 211.181 the court had the discretion to place this child back in the home of its parents under supervision or in custody of a relative or other suitable person, or commit the child to the custody of a public agency. Here the court exercised the discretion vested in it by this Section and committed the custody of the child to a public agency. In view of the evidence outlined herein, this exercise of discretion is not abused. That is not to say that in every case involving child battering a court must remove the child from the custody of the parents because it may well be a court would conclude that under all the facts and circumstances the child would be safe by maintaining the child’s custody in the parents under supervision. However, in this case in view of the evidence of past mistreatment of the children of this mother, and of the expert testimony that the parents in this case were in a high risk category with the probability of child abuse occurring in their home, the court was more than justified in placing custody of this child in a public agency.

The psychologist further testified that perhaps with counseling and other aids the parents in this case might well become adjusted to the point that they would not constitute a high risk to the safety of this child. Of course, the juvenile court has continuing jurisdiction and may make further orders concerning the custody of the child as the court may deem necessary to be in the best interest of the child.

The judgment is affirmed.

All concur.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard BELLEVILLE, Defendant-Appellant.
    No. 36121.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 14, 1975.
    Motion for Rehearing or Transfer Denied Nov. 19, 1975.
    Application to Transfer Denied Jan. 12, 1976.

      Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, Charles B. Blackmar, Spec. Asst. Atty. Gen., Clayton, for plaintiff-respondent.
   DOWD, Judge.

A jury found defendant guilty of robbery in the first degree and assessed his punishment at 25 years imprisonment. § 560.120 RSMo 1969. The trial judge reduced the punishment to 20 years, because at the time of trial defendant was serving a sentence for burglary in Illinois. Defendant appeals.

The sufficiency of the evidence is not challenged and from the evidence presented, the jury could have reasonably found the following facts: In the early afternoon of March 27, 1973, an 83-year-old woman was robbed of her purse as she walked along a south St. Louis sidewalk. The defendant pushed her from behind, knocked her to the sidewalk, and then grabbed her purse and ran. The woman was seriously injured, suffering a fractured hip and wrist, and injuries to her spine. The woman could not identify the defendant, but a doctor who was driving by the scene saw the defendant grab the purse and flee. The doctor followed the defendant in his auto as the defendant, “running like a deer,” raced about 50-75 feet along the sidewalk and then jumped into a waiting automobile. The doctor got a further look at the defendant when the defendant turned around in the front seat of the auto and looked at him. The doctor identified defendant as the robber the next day when shown a group of photographs, and positively identified the defendant as the robber at trial. The doctor gave the license number of the getaway auto to the police, who contacted the owner the same afternoon. The owner had lent his auto to defendant’s girlfriend that day.

The girlfriend said she was driving defendant around that afternoon and was in the area of the robbery. The girlfriend further related that after a quarrel defendant left the auto and told her to go on. She drove about a block, and then decided to wait for defendant. Soon defendant got back into the auto and told her to drive on. Defendant had a woman’s purse with him, which he opened and then threw out the window of the auto. Defendant’s girlfriend thought it was unusual for him to have a woman’s purse, but she did not ask defendant where he got it. She then drove defendant to the bus station.

Defendant testified that he did not steal the purse; he was not even sure he was in St. Louis on that day; and, he believed his girlfriend was lying because she was angry with him for breaking up with her.

Defendant raises two issues on appeal. We find the first point is not reviewable because it was neither objected to at trial nor raised in the motion for new trial. The first point is: “The trial court erred in permitting Wilbert Dauphin [owner of the getaway auto] to testify as to statements he made to police officers during the course of their investigation, because such testimony was hearsay.”

During the testimony of the prosecution’s rebuttal witness, Mr. Dauphin, the owner of the getaway car, the following exchange occurred:

“PROSECUTOR: Before you saw your car — in other words, when the police first contacted you or when they contacted you in person and took you home, did you have some conversation with them on either of those two times? '
“A: Yes, sir.
“Q: And did they describe to you any occurrence that your automobile allegedly was involved in?
“DEFENSE COUNSEL: I object to that, Your Honor. It is calling for hearsay.
“PROSECUTOR: Let’s approach the bench, Your Honor.
“THE COURT: This is notice of an event and more in the nature of a fact than hearsay. I’ll overrule the objection.”

No further objection was made during this witness’s testimony. Paragraph five of defendant’s motion for a new trial repeated this objection: “The Court erred in allowing witness Wilbert Dauphin to testify, over objection of the defendant, as to what the police officers had told him when they came to his home for the reason that said testimony was hearsay.”

Thus defendant’s hearsay objection at trial and as repeated in his motion for new trial clearly was to the admissibility of what the police officers had told the witness Dauphin. However, defendant contends in his brief here that it was hearsay and error to permit William Dauphin to testify as to statements he made to the police during the investigation. This contention was not raised in his motion for a new trial and was raised for the first time in his brief on appeal.

Any claim of error not assigned in a motion for a new trial in a criminal case is not preserved for appellate review. State v. Bowens, 476 S.W.2d 495[5] (Mo.1972); State v. Henderson, 510 S.W.2d 813[12] (Mo.App.1974).

Defendant’s second contention is: “The state’s definition of ‘beyond a reasonable doubt’ as a ‘substantial doubt’ erroneously stated the law of this State to the jury.” The prosecutor’s argument complained of is as follows:

“PROSECUTOR: ... At this point the Court has read to you the instructions of the law, which you will be given to take those instructions down with you and you will have an opportunity to read them. At this time both attorneys, as the Court indicated, has an opportunity to argue the case to you according to the instructions. The argument of the attorneys is to aid you in deciding the case by applying the law to the facts that you have heard, the testimony that you have heard in the last day. Now, we have talked before about how the State has a burden of proof and that proof must be guilty beyond a reasonable doubt. At this time it can be explained to you as a jury what reasonable doubt is. Reasonable doubt is defined by the law in the State of Missouri
“DEFENSE COUNSEL: I object to this argument, Your Honor, as not being proper argument. The Court has instructed the jury on the law in this case.
“THE COURT: Overruled.
“PROSECUTOR: (Continuing) . . . reasonable doubt, under the law of the State of Missouri, has been defined as not merely the possibility of innocence, but as a substantial doubt touching upon the defendant’s guilt. That’s what reasonable doubt is under the law of Missouri. You will not find that definition in those instructions, but that is the law in this state. Now, it is for you to decide whether or not there is a reasonable doubt in this case; whether or not the State has brought you sufficient evidence to prove this particular defendant guilty. All right. Let’s look at what he is charged with. He is charged with a crime of Robbery in the First Degree. You have to decide whether or not the crime took place, what type of crime it was, and who was the person that committed that crime . . .”

We believe the prosecutor’s definition of reasonable doubt was improper argument here.

Under the burden of proof instruction (MAI CR 2.20) the court is required to instruct the jury that the defendant is presumed to be innocent and that this presumption places on the state the burden of proving beyond a reasonable doubt that the defendant is guilty. In the Notes on Use under this instruction the court may not further define reasonable doubt. Therefore, we believe it is improper for counsel to orally instruct the jury as he did here as to the legal definition of reasonable doubt.

Although the prosecutor’s argument was improper, we cannot say here as a matter of law that a jury of reasonably intelligent men and women were confused and misled by the reasonable doubt definition in returning their verdict against this defendant. First, the prosecutor’s definition of reasonable doubt was only one sentence long and not unduly dwelt on. The prosecutor then properly discussed reasonable doubt in relation to the evidence in the case. Secondly, this case furnished strong evidence of defendant’s guilt.

One of the guidelines in determining whether we are to reverse a criminal conviction where there is error is: “Error which in a close ease might call for reversal may be disregarded when the evidence of guilt is strong.” State v. DeGraffenreid, 477 S.W.2d 57[15] (Mo. banc 1972). Likewise, only prejudicial error is reversible error. State v. Gibson, 502 S.W.2d 310[2] (Mo.1973).

The record clearly demonstrates that this is not a close case and the evidence of defendant’s guilt is strong. The doctor saw defendant commit the robbery and run from ■ the scene with the victim’s purse. The doctor later identified defendant as the robber at the trial. The doctor’s testimony was corroborated by the defendant’s girlfriend, who saw defendant leave her auto near the scene of the crime and then later return with a woman’s purse.

After careful consideration of the record in this case, we hold that the prosecutor’s improper argument complained of did not result in the deprivation of the defendant’s substantial rights or a fair trial.

The judgment is affirmed.

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

      . Likewise, any contention of error set out in defendant’s motion for new trial that is not briefed in the appellate court is considered abandoned. Metier v. Janssen, 498 S.W.2d 581, 583[1] (Mo.App.1973), cert. denied, 414 U.S. 1115, 94 S.Ct. 848, 38 L.Ed.2d 742 (1973).

      . This definition was part of the burden of proof instruction that had been used and approved by Missouri Courts since 1857. State v. Yarbrough, 506 S.W.2d 90 (Mo.App.1974); State v. Taylor, 506 S.W.2d 94 (Mo.App.1974).
      As noted in the body of the opinion, since the effective date of MAI-CR (January 1, 1974), this definition must not be given by the court.


text:
    STATE of Missouri, Respondent, v. Steven Armond HICKS, Appellant.
    No. 35910.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 14, 1975.
    Motion for Rehearing or Transfer Denied Nov. 19, 1975.
    Application to Transfer Denied Jan. 12, 1976.

      Charles D. Kitchin, Public Defender, James C. Jones, Marilyn K. Wallach, Asst. Public Defenders, Cornelius T. Lane, Sp. Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Appellant was found guilty by a jury of murder in the first degree, assault with intent to kill with malice aforethought and robbery in the first degree by means of a dangerous and deadly weapon. (Sections 559.010, 559.180 and 560.120 RSMo 1969). The jury assessed punishment of life imprisonment for the murder conviction, five years imprisonment for the robbery conviction, and two years imprisonment on the assault with intent to kill conviction. The sentences were to run concurrently. He appeals.

No challenge has been made to the sufficiency of the evidence. Briefly stated, the facts are these: On February 19, 1973, a bicycle shop in the City of St. Louis, Missouri, was robbed. The appellant was identified as the man who entered the bicycle shop and asked for a motor bike part. Upon being told that the shop did not carry motor bike parts, the appellant left the shop. Immediately after the appellant left the shop, three younger boys entered. Before the boys could be waited on, the appellant returned to the shop wearing a green windbreaker and carrying a sawed-off shotgun. The appellant then forced the shopkeeper, his daughter, his daughter’s companion, and the three customers to lie on the floor. The appellant thereafter told each of the victims to give him all their money.

As the shopkeeper was lying on the floor, one of the young boys got up and started to take a bicycle from the shop. The shopkeeper stood up and shouted at the boy to stop. The appellant turned and fired two shots; one hit the shopkeeper and the other hit his daughter. The shopkeeper died as a result of the gunshot wound. The three boys ran out of the shop. The appellant fled from the shop with the money.

Appellant’s first contention is that the trial court erred in failing to sustain his challenge for cause to three veniremen during the voir dire of the panel. The background concerning the challenges is as follows. During the voir dire examination the appellant’s attorney asked the following question: “Let me ask you this. Is anyone of the belief that if the defendant-defense would be that he was elsewhere at the time of the commission of this crime, believe he should have any burden whatsoever in proving that?”

In response to questions by appellant’s attorney as to the burden relative to the defense of alibi, three veniremen answered that if the defense was that the appellant was “elsewhere” at the time of the commission of the crime, they thought he had the burden of proving it.

This question was inartfully worded and one of the three veniremen indicated he did not understand the question. During this phase of the voir dire, another of the challenged veniremen stated that she understood that the burden was on the state to prove appellant’s guilt beyond a reasonable doubt.

Appellant argues that the three veniremen would not be able to give appellant’s testimony the weight it deserved. A juror who cannot give the testimony of a particular person the weight to which the testimony is legally entitled should be discharged for cause. State v. Spidle, 413 S.W.2d 509, 512 (Mo.1967).

We do not believe that it has been satisfactorily shown that these three veniremen would not have followed the instructions of the court as to the law regarding the burden of proof where alibi is used. After the three veniremen said they would place the burden on appellant to prove his alibi of being “elsewhere” at the time of the commission of the crime, the appellant’s attorney asked the prospective jurors:

“MR. LANE: . . . That’s what you are telling me. If the Court would instruct you with the law which governs this case, is there anyone here that would not follow the instructions of the Court, even though different from what they think? Now, you would follow the instructions of the Court with respect to the law applicable to the case, regardless of what you feel the law might be? Now, Mrs. Sieger, would you do that?
“MRS. SIEGER: Yes.”

Thus in response to these questions posed by appellant’s counsel, each venireman indicated his ability to follow the law as given in the instructions of the court. Likewise it was clearly brought out during the voir dire examination that the burden was on the state to prove appellant’s guilt beyond a reasonable doubt.

The question asked by appellant’s attorney during the voir dire concerned the application of a point of law, i. e., appellant’s burden regarding his alibi. This is not the same as a juror who has already formed a belief as to a defendant’s guilt. State v. Spidle, supra, nor is it a case where the court does not later give instructions explaining the law to be applied. State v. Rollins, 449 S.W.2d 585 (Mo.1970), cert. denied, 399 U.S. 915, 90 S.Ct. 2220, 26 L.Ed.2d 573 (1970).

The qualifications of veniremen to serve as jurors rest in the sound discretion of the trial judge and his decision should not be disturbed unless there has been a clear abuse of that discretion. State v. DeClue, 400 S.W.2d 50, 57 (Mo.1966). We do not find the trial court’s decision not to strike these jurors for cause to be an abuse of his discretion.

Appellant’s second contention is that the trial court committed prejudicial error in overruling his motion for mistrial when the prosecutor mentioned appellant’s prior felony conviction during his final argument. On direct examination, the defendant admitted he had a prior felony conviction.

During his closing argument the prosecutor told the jury that life imprisonment was the only punishment for first degree murder. The prosecutor then discussed punishment for the other two charges:

“The other two counts have much more latitude. You were given ranges from two years on up on the assault, to five years on up for the robbery. I’ll make a suggestion. You will be the sole determinant of what the punishment should be, but take into account: The defendant is seventeen years old. He is [sic] already got one felony conviction.”

The court denied appellant’s request for a mistrial, but it did sustain the objection to the remark and instruct the jury to completely disregard it.

The prosecutor was entitled to comment upon appellant’s prior conviction as it affected his credibility. State v. Mobley, 369 S.W.2d 576 (Mo.1963). Nor is this a case where the prosecutor impermissibly argued appellant’s prior conviction to establish his guilt. State v. Mobley, supra; State v. Thorpe, 359 Mo. 796, 223 S.W.2d 479, 481 (1949). Here the prosecutor merely suggested to the jury that since it would assess the punishment under statutes that provided for a range of punishment, then it should “take into account” appellant’s age and prior felony conviction after it found him guilty.

We do not decide whether the prosecutor’s comments as set out above were improper, since the jury verdict conclusively showed that appellant was not prejudiced by the comments. Here the jury gave the minimum punishments authorized by law of two years on the assault conviction and five years on the first degree robbery conviction. §§ 560.135 and 559.180 RSMo. 1969.

Likewise, we believe the trial court did not err in failing to declare a mistrial. Granting a mistrial is a drastic remedy to be exercised only when nothing short of a mistrial would remove the claimed prejudice. State v. Flauaus, 515 S.W.2d 873 (Mo.App.1974). Here the trial court quickly sustained the objection and instructed the jury to disregard the prosecutor’s remarks. The court’s action adequately cured any error.

Appellant’s third contention also involves a prosecutorial remark that is claimed so prejudicial as to have warranted a mistrial. In his closing argument the prosecutor discussed the punishment the jury could assess if it found appellant guilty. A conviction on the first degree murder charge would call for a mandatory life imprisonment sentence. The prosecutor then asked the jury to impose twenty-five year imprisonment terms for convictions on both the robbery and assault charges.

The appellant contested the prosecutor’s punishment recommendations in his final argument:

“DEFENSE COUNSEL: The State of Missouri is asking to put this man away for the rest of his life. [The prosecutor] comes up and throws the number of twenty-five on each other count. Do you know how long twenty-five years is sitting in a penitentiary? Do you know how long it is? The rest of a man’s life. He is seventeen years of age-
PROSECUTOR: There is no evidence of how long he is going to serve. I object to this line of argument.
THE COURT: Overruled.”

The appellant requested a mistrial, charging that the prosecutor’s statement inferred that the appellant would be given “something less than life if he was convicted.” The court denied the motion for mistrial; but it did sustain the objection to the prosecutor’s remark and it instructed the jury (1) to disregard the prosecutor’s statement and that (2) a life sentence was mandatory if they found the defendant guilty of first degree murder.

Contrary to the belief of both the court and the appellant, the prosecutor’s objection does not seem to have been directed to the first degree murder charge, but rather to appellant’s misleading suggestion that a twenty-five year sentence on the second and third counts would be in effect a life sentence for a seventeen-year-old defendant. The prosecutor was entitled to retaliate against this misleading suggestion by telling the jury that a twenty-five year sentence could not be equated with a sentence for “the rest of a man’s life.”

The prosecutor here did not imper-missibly urge the jury to impose sentences of twenty-five years on Counts II and III because of an anticipated mitigation, such as parole, pardon, etc. State v. Coleman, 460 S.W.2d 719, 727 (Mo. banc 1970). Nor was the prosecutor attempting to influence the jury to transfer their responsibility to some other person or body, such as the parole board. State v. Lewis, 443 S.W.2d 186 (Mo.1969). The prosecutor was entitled to give a limited but pertinent reply to the misleading statement of appellant’s counsel. State v. Richards, 467 S.W.2d 33[15] (Mo.1971).

We hold that the prosecutor’s statement did not go beyond the bounds of proper retaliatory argument. We also note that the jury evidently followed the court’s instruction to disregard the prosecutor’s remark because they imposed the minimum sentences allowed by law for the robbery and assault convictions. Appellant thus cannot claim any prejudice.

Appellant’s fourth and final contention is framed in terms of alleged instructional error, but he essentially is claiming his conviction for first degree murder under the felony murder doctrine and his conviction for first degree robbery, the underlying felony, subjected him to double jeopardy. Appellant claims that all the elements of robbery are necessary to prove the offense of felony murder and no additional fact need be proved to sustain the conviction of robbery.

We believe the recent Missouri Supreme Court case of State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975) effectively disposes of appellant’s claim. In Chambers the defendant was convicted of one count of stealing and four counts of second degree murder. He claimed that the trial court erred in submitting the stealing count and the four counts of second degree murder; that double jeopardy was violated because the underlying felony of stealing, being an essential part of felony murder, merged into the murder counts, they being the greater charge; that a conviction on one felony would exclude a conviction on the other felony.

The Chambers court extensively reviewed the rationale of the felony-murder rule and the application of that rule in Missouri and other jurisdictions. The court finally concluded at page 831:

“[WJhere a homicide is prosecuted under the felony-murder rule, the other felony does not become, a fortiori, merged in or an element of the offense of murder, and the defendant may be prosecuted for both the homicide and the underlying felony without being twice placed in jeopardy if the conviction of each offense requires proof of essential elements not required for conviction of the other. Accordingly, the convictions of this defendant did not violate the rule against double jeopardy because, as demonstrated, the underlying felony of stealing required proof of essential elements differing from or not necessary to the felony-murders in the second degree.” (Emphasis added).

In the instant case appellant was charged with and convicted of first degree murder (Section 559.010 RSMo. 1969), the elements of which are a homicide accompanied by premeditation, wilfulness, deliberation and malice aforethought or a homicide committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem. Appellant was also charged with and convicted of first degree robbery (Section 560.120 RSMo. 1969), the essential elements of which are a taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person.

The elements of the two offenses are thus dissimilar. Proof of different elements is necessary to each offense, even though the same evidence may go to both offenses. The offense of robbery requires proof of a taking of property; the offense of murder requires proof of a killing.

The judgment is affirmed.

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

      . See State v. Mosier, 102 S.W.2d 620[7] (Mo.1937) for an example of the correct phrasing of a question on voir dire.

      . In the case before this court an instruction was given to the effect that the state had the burden of proving appellant was at the scene of the crime, and that if all the evidence in the case did not establish beyond a reasonable doubt that appellant was present at the scene of the crime, appellant should be acquitted.


author: CLEMENS, Presiding Judge. STEWART, Judge

text:
    STATE of Missouri, Respondent, v. Dwane EMBRY, Appellant.
    No. 36530.
    Missouri Court of Appeals, St. Louis District, Division Two.
    October 14, 1975.
    Motion for Rehearing or Transfer Denied Nov. 19, 1975.
    Application to Transfer Denied Jan. 12, 1976.
    John C. Danforth, Atty. Gen., Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for respondent.
    Arthur Kreisman, Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

The State charged defendant with, and a jury found him guilty of robbing Dennis Eckstein of five dollars by means of a knife (Section 560.135, RSMo). Defendant appeals from a judgment and sentence of 17 years’ imprisonment.

In his motion for a new trial and his appellate brief defendant charges that during the testimony of a defense alibi witness he was denied a fair trial by the trial court “sustaining objections” that had not been made and sua sponte ordering the witness not to answer defense counsel’s questions.

A summary of the evidence will suffice. Victim Dennis Eckstein and Marilyn Andrews were standing outside Busch Stadium watching a ball game through a wire gate. As they stood there defendant and his companion came up to Eckstein. Defendant held a knife at Eckstein’s throat and demanded his money. Defendant’s companion took Eckstein’s wallet containing five dollars. Eckstein reported the robbery to police and from his description of the robbers the police soon apprehended defendant at a nearby restaurant. Police found neither money nor knife on defendant. Both Eck-stein and Miss Andrews identified defendant as the robber who held the knife.

The defense presented three alibi witnesses who testified they and defendant had met at one of their homes, had later gone to a movie at an uptown theater and thereafter defendant and Lorenzo Raybon went to the restaurant where police later located defendant. Raybon testified defendant had no money so he and the others paid for defendant’s ticket for the movie and for his meal at the restaurant. Defendant’s three companions were cross examined on what the movie was about, and in rebuttal the State produced two witnesses who contradicted defense witnesses on the movie’s content.

The critical issue on appeal arose during the direct examination of defense alibi witness Lorenzo Raybon. Defense counsel sought to learn from the witness whether at the theater defendant had money to pay for his own admission. The State’s hearsay objections were sustained to each question. Then, the judge “sustained objections” to defense counsel’s questions without the prosecutor having made any objections:

“Q. Did Embry, [the defendant] in your presence, ever offer to pay at the show?
“THE COURT: You’re asking for hearsay. We’re not going to permit that question. Objection will be sustained
“Q. After the money was paid, did you all go into the show?
“THE COURT: It’s leading and suggestive. Objection will be sustained.”

Defense counsel persisted, asking witness Raybon in similar questions whether defendant, to Raybon’s knowledge, had money to buy his own ticket and who had in fact paid for it. To each question, the state objected “as to the form” of the questions, a lack of foundation and being self-serving. The court sustained each objection. Then: On two occasions, the trial judge sua sponte prevented the witness from answering defense counsel’s questions:

“Q. Was anything said by him— Dwane Embry—
“THE COURT: We’re not going to permit that question. It’s hearsay .
“Q. Who paid the money to the cashier?
“THE COURT: It’s leading and suggestive, Mr. Kreisman. Proceed.”

On no occasion did defense counsel either object to the court’s comments or seek corrective action.

Defendant contends the judge’s intervention on behalf of the prosecution influenced the jury and thereby denied him a fair trial. He relies on an opinion of Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841 (1894) holding: “It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.” He also relies on Herman v. United States, 289 F.2d 362, 365 (5th Cir.), cert. den., 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961), holding: “A trial judge should never assume the role of prosecuting attorney and lend the weight of his great influence to the side of the government. Hunter v. United States, 5 Cir., 62 F.2d 217, 220 (1932). In our system of administering justice the functions of the trial judge and the prosecuting attorney are separate and distinct; they must not be confused. The trial judge has a duty to conduct the trial carefully, patiently, and impartially. He must be above even the appearance of being partial to the prosecution.”

These rulings run parallel to Missouri law. In State v. Castino, 264 S.W.2d 372[3—5] (Mo.1954), the court declared: “The rule is well settled that a fair trial exacts absolute impartiality on the part of a judge as to both his conduct and his remarks. A judge must not say anything that can be construed by the jury to the prejudice of a defendant.” He must “at all times maintain ... a status of neutrality.” State v. Johnson, 454 S.W.2d 27[4-6] (Mo.1970). This is “a solemn obligation.” State v. Tate, 468 S.W.2d 646[1-3] (Mo.1971).

The above principles were last applied in State v. Wren, 486 S.W.2d 447 (Mo.1972). There the court, sua sponte, interrupted defense counsel’s cross examination of a state witness, declaring: “. . .1 can’t see any useful purpose in this line of inquiry.” Then in response to the State’s objection that the inquiry was immaterial, the court ruled: “I think the objection is well justified, but I will overrule you and allow you to develop this ad nauseum. .” Defendant complained of this and also incidents where the trial court stated “I have heard you ask that, and I have heard opposing counsel ask it, and I just don’t want to hear it again”; and, “Just a minute, doctor. The Court can’t let a question like that, whether objected to or not . . . .”

In reversing the conviction in Wren the court said “we are concerned as to whether or not the comment could have conveyed to the jurors an impression that the evidence being offered was in the mind of the judge totally absurd. From the record as presented, the latter possibility is clearly present. The defense being offered was tenuous at best; but, if admissible at all, defendant was entitled to have it presented to the jury free of the stamp of disapproval placed there by the trial court. This was not an incident calling for severe action by the trial judge to maintain the dignity of the court, but one wherein an ordinary ruling on the state’s objection would have settled the issue. . . .We need not reach a conclusion that the verdict of the jury would have been different absent the circumstances noted. However, the possibility was present, and the trial court should have refrained from discouraging the same. Such reprimands or admonishments as may be called for toward counsel should be handled in such a manner as not to prejudice defendant’s case in the eyes of the jury. A full review of the record makes it apparent that an undue burden was placed on defendant and that he was denied a fair trial.”

We believe the holding in Wren is appropriate here. In the four trial incidents related the witness testifying for defendant was attempting to support the defense — that defendant had no money and was at the movie and the restaurant during the robbery. The trial court “sustained two objections” the State had not made and twice sua sponte barred the witness from answering other questions. The trial court thereby appeared to abandon its vital status of neutrality and assumed the role of prosecutor; this placed an undue burden on defendant. From the court’s attitude toward this defense witness there was a clear possibility, if not a probability, the jury would take the witness’ testimony at less than face value. As said in Wren, supra, “the defense being offered was tenuous at best; but, if admissible at all, defendant was entitled to have it presented to the jury free of the stamp of disapproval placed there by the trial court.”

Wren differs from our case in one material factor. There, the defendant’s trial objections to the court’s comments were properly preserved for review. (486 S.W.2d, l.c. 449). Here, defendant raised the point in his after-trial motion and his appellate brief, but at trial did not object to or seek corrective action because of the court’s comments. Conceding that by defense counsel’s silence at trial he failed to preserve the point for review (State v. McCullough, 411 S.W.2d 79[1] (Mo.1967), we now consider whether the point should be decided as plain error under Rule 27.20(c).

Our supreme court has held the plain error rule does not cover all trial errors, but has declined to “delineate the precise bounds” for applying it. State v. Mabery, 437 S.W.2d 91, l.c. 93 (Mo.1969). .It is to be applied on a case-by-case basis where substantial rights are affected and there is a strong, clear showing that injustice will result if the rule is not invoked. State v. Meiers, 412 S.W.2d 478[1] (Mo.1967).

We revert to the high standard of fairness and impartiality that must be maintained by a trial judge. This includes the principle that a judge must say nothing that can be construed by a jury to a defendant’s prejudice. (State v. Casino, supra). This “correctly states the rule for judicial guidance.” State v. Moore, 303 S.W.2d 60[6] (Mo.1957).

Appellate courts diligently guard a defendant’s right to trial by a manifestly impartial judge. In State v. Dixon, 463 S.W.2d 783 (Mo.1971) the trial court in ruling on a defense objection to prosecution argument made an ambiguous comment about the prosecuting attorney’s duty to prosecute. Defense counsel made no objection to the court’s comment until he appealed. In speaking of the trial court’s duty the court quoted from State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654[3] (1952): “Even if counsel or others should be guilty of misconduct the judicial calmness and the dignity and the self-restraint and obvious impartiality of the judge must always be maintained and made manifest. The judge must not indicate a belief in either the guilt or innocence of the accused. . . .We know that juries are inclined to draw conclusions and are quite sensitive to any indications of the judge’s belief as to the merits of the issue being tried.”

In holding the trial court’s comment was reversible error under the plain error rule the Dixon court at 463 S.W.2d, l.c. 785, said: “However, we must also recognize that if the comments of the trial judge were ‘of such a nature or would reasonably tend to prejudice the mind of the jury against the defendant and thereby deny him a fair and impartial trial’ . . . the verdict cannot stand. . . .We know, of course, that the remarks of the trial judge were not intended to prejudice the jury. However, on the record in this case, and under the law stated in State v. Ross, supra, we cannot say that his comments were not construed by the jury as indicating a belief in the guilt of the accused. Appellant is entitled to a new trial.”

In State v. Gray, 503 S.W.2d 457[8—9] (Mo.App.1973), at the close of the State’s case the trial court addressed the defendant: “Will you be sworn, sir; are you going to testify?” No objection was made at trial, but in reversing under Rule 27.20(c) the supreme court said: “This is for the reason that the right of self-incrimination sought to be protected ... is fundamental to our system of justice.”

In our case, as in Dixon, we cannot say the jury did not construe the trial court’s conduct adversely to the defendant, and the defendant’s right to be tried by an obviously impartial judge was, as in Gray, fundamental to our system of justice.

Here, the trial court’s four-time sua sponte intrusion into the cross examination of defendant’s only defensive witness could be construed by the jury as the court’s disfavor of the alibi defense. It was not compatible with the fair trial to which the defendant was entitled. We consider that to be plain error under Rule 27.20(c).

We find the trial court failed to accord defendant a fair trial. The judgment is reversed and the cause is remanded for a new trial.

KELLY, J., concurs.

STEWART, J., dissents.

STEWART, Judge

(dissenting).

In the format of the majority opinion we will first consider the substance of defendant’s appellate argument. In viewing the contention of error in this case it is necessary to view the incidents leading to the trial court’s sua sponte action. All of the comments of which defendant complains took place during the direct examination of Lorenzo Raybon, one of three alibi witnesses called by defendant.

The first incident of which defendant complains follows:

“Q. Was anything said by him— Dwane Embry — [defendant]?
The Court: We’re not going to permit that question. It’s hearsay.”

The second incident arose in the second question thereafter:

“Q. Did Embry, in your presence, ever offer to pay at the show?
The Court: You’re asking for hearsay. We’re not going to permit that question. Objection will be sustained.”

Prior to these incidents on three occasions within two pages of the transcript questions of the same general nature were asked and objections on the part of the State were sustained.

The other incidents complained of occurred on the fifth and sixth questions propounded thereafter:

“Q. Who paid the money to the cashier?
The Court: It’s leading and suggestive, Mr. Kreisman. Proceed.
Q. After the money was paid, did you all go into the show?
The Court: It’s leading and suggestive. Objection will be sustained.”

Within three pages before these questions were asked the defendant had sought to elicit the same information on five different occasions. At no time did defendant make an offer of proof with respect to the objections that were sustained, yet he persisted in following the same lines of inquiry.

The comments of the court were not directed toward the defendant nor toward the witness but to counsel’s persistence in following a line of inquiry that had just been ruled upon by the court.

This case can be readily distinguished from State v. Wren, 486 S.W.2d 447 (Mo.1972). The court there stressed the fact that the court had used the expression “ad nauseum” and noted that the court there characterized the “evidence being offered [by the defendant] as absurd.” Here the court’s comments were directed to the form of the questions only, questions which had previously been ruled. The remarks of the court did not indicate a belief in defendant’s guilt, impugn the credibility of defendant’s witness, tend to humiliate defendant or his counsel or indicate a deliberate attempt by the judge to influence the jury. While a judge has the obligation to assure a defendant a fair trial and should act with impartiality; he must also confine the trial within the relevant issues and maintain order and decorum. State v. Hudson, 358 Mo. 424, 215 S.W.2d 441 (1948). When a court has ruled an issue it is improper for counsel to disregard the ruling of the court. I would hold that at most the actions of the court were provoked. State v. Headley, 18 S.W.2d 37 (Mo.1929); State v. Hudson, supra. I find no prejudicial error.

Defendant made no objection to the rulings of the court until he filed a general objection to the conduct of the Judge in his Motion for a New Trial. As a general rule any impropriety which might attach to a judge’s remarks are waived by the failure to object at the time they are made. State v. Hudson, supra.

I do not believe that this case calls for the application of the “plain error rule” 27.-20(c). In my opinion State v. McCullough, 411 S.W.2d 79 (Mo.1967) is controlling. In McCullough on cross-examination of State’s witness the following occurred:

[Defendant’s attorney]: “Did you see them pay for it?
The Court: What’s the purpose of that?
The Witness: No.
The Court: What’s that got to do with the issues in this case?”

When defendant objected to a question asked by the prosecutor the court said:

“Why don’t you let him ask his question. He just gets started asking * * I don’t know what the question is.”

When the prosecutor objected to questions propounded by defendant’s counsel the court remarked:

“I don’t know what the purpose of it is. Trying to shift the burden? Is that it? What’s the purpose of it?”

The Supreme Court in that case said l.c. 81:

“If a party believes that remarks may prejudice his cause, he should object immediately and afford the court an opportunity to correct any erroneous impression, and the issue is not timely presented when raised for the first time in a motion for new trial, (citations omitted) . Nor are these remarks in themselves indicative of ‘manifest injustice or miscarriage of justice’ to invoke consideration of plain error under Criminal Rule 27.-20(c) V.A.M.R.” (citations omitted).

See also State v. Barron, 465 S.W.2d 523[6] (Mo.1971); and State v. Hudson, supra.

This case is readily distinguishable from State v. Dixon, 463 S.W.2d 783 (Mo.1971) in which the jury could reasonably have viewed the comments of the court as reflecting upon the guilt of the defendant. The effect of the comments in Dixon was that prosecutors prosecute only the guilty not the innocent, strongly implying that defendant was guilty because he was being prosecuted. The comments by the court in the present case were directed solely to counsel, as the jury could well understand, and were confined to matters upon which the court had already ruled and to a great extent to the form of the question only.

Nor do I feel that State v. Gray, 503 S.W.2d 457 (Mo.App.1973) is authority for the invocation of Rule 27.20(c) in this case. In Gray the trial court made a direct reference to defendant’s failure to testify. This court emphasized the fact that defendant was defending pro se and that neither he nor counsel assigned to sit with him made an objection. The court specifically limited Gray to the cases in which a direct reference is made to the failure of a defendant to testify and clearly distinguished such cases from the case at bar. Referring to McCuliough, supra, and similar eases the court in Gray said, “None of the cases are helpful, and each is distinguishable in that each involved remarks made by the trial court on testimony given before the court.”

I do not here, perceive a “sound substantial manifestation, ... a strong clear showing that injustice or miscarriage of justice will result if the rule is not invoked.” State v. Meiers, 412 S.W.2d 478 (Mo.1967).

For either of the reasons herein I would affirm the judgment.

      . “Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”

      . “THE COURT: He is making an objection, and the objection will be sustained, and the jury will be instructed to disregard that it is the duty of the prosecutor to prosecute persons that are not guilty. His duty is not to prosecute people that are not guilty.”

      . “Q. Was anything said there at the time about who would pay for the show?
      Mr. Allred: Objection. It asks for hearsay.
      The Court: Sustained.
      Q. Did Dwane Embry offer to pay any money?
      A. No.
      Mr. Allred: Objection. That calls for hearsay.
      The Court: Sustained.
      Q. Was anything said about who would pay?
      Mr. Allred: Objection. It’s leading.
      The Court: Sustained.”

      . “Q. Did Dwane Embry have any money on him that you know of?
      Mr. Allred: I’ll object to the form of the question.
      The Court: Sustained.

      Q. Do you know whether or not he had any money?
      Mr. Allred: I’ll object to the question, unless he first lays a foundation of some personal knowledge.
      The Court: Sustained.

      Q. Did Embry go along with you and your brother? Did he have any money that you know of on him?
      Mr. Allred: I’ll object to the form of the question.
      The Court: Sustained.
      Q. Do you have any knowledge about his financial condition?

        Mr. Allred: Objection. Only the defendant would know of that.

      Q. Why did you and your brother pay for the show?
      Mr. Allred: Objection. It asks for a self-serving statement, Your Honor.
      The Court: Sustained.”

      . Rule 4 DR 7-106(A).

      . “That the court erred in inserting itself into the trial of this cause as an advocate on behalf of the State, in that the court did on numerous occasions during the cross-examination of the witnesses and on direct examination of defendant’s witnesses, without any prior objections by the State, ordered the witnesses not to answer the question propounded to such witness and inviting an objection to be made by the State which the court thereafter sustained; that such action by the court was prejudicial to this defendant and indicated to the jury a prejudice against this defendant and in favor of the State;”

      . “The Court: He is making an objection, and the objection will be sustained, and the jury will be instructed to disregard that it is the duty of the prosecutor to prosecute persons that are not guilty. His duty is not to prosecute people that are not guilty.
      Mr. Howard: I don’t believe I understand that, Your Honor. What was that again.
      The Court: I said that it is the duty of the prosecutor not to prosecute persons that are innocent. I used a double negative.
      Mr. Howard: Do I gather from that that the prosecutor has the duty to prosecute people who are not innocent?
      The Court: He sure does.”

      (OUT OF THE HEARING OF THE JURY)
      “Mr. Howard: Quite frankly, I am going to ask the Court for a mistrial. I think the Court has given the impression that the prosecuting attorney prosecutes only those persons who are guilty of a crime.”


author: DIXON, Judge.

text:
    STATE of Missouri, Respondent, v. Darrell Gene RANDALL, Appellant.
    No. KCD 27233.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Dec. 8, 1975.

      Gerald M. Handley, Public Defender, Robert A. Simons, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

Defendant appeals a jury-imposed sentence of ten years for the sale of hashish.

Defendant raises two issues. The first is that the trial court erred in refusing to permit the closing argument to be divided between defendant, who chose to represent himself, and a lawyer acting upon appointment to counsel and advise defendant but not permitted by local rule to speak for the record. The second issue attacks the propriety of a trial court ruling permitting in evidence the testimony of a police officer that he had observed “packets” and a “suitcase” at the time of the sale which defendant asserted contained marijuana. The judgment is affirmed.

Defendant does not question the sufficiency of the evidence to sustain the conviction, and a very short statement of facts as to the basic elements of the offense shown in the evidence will suffice to place in focus the issues on this appeal. Defendant was the religious leader of the Aquarian Brotherhood Church and lived at premises which were utilized also as the church premises. A police officer went to the address and purchased an ounce of hashish. After that purchase was made, the officer tested the substance, and he returned to the defendant’s premises complaining of the quality of the hashish purchased, and the defendant readily exchanged the first substance for a second. In the course of that second exchange, the defendant insisted upon showing the officer how he prepared the hashish from marijuana and took the officer from the floor where the original and second exchanges were made to another floor of the premises where the defendant directed the officer’s attention to some packets and a suitcase which the defendant said contained marijuana from which he was making the hashish.

In due course, the case came on for trial, and the defendant requested permission to act as his own counsel. The court held an extensive hearing concerning the capacity of the defendant to conduct his own defense, including the testimony of the psychiatrist and the testimony of the attorneys previously appointed to defend him. During the course of that testimony, the defendant was questioned extensively, both by Mr. Simons who had been acting as his appointed counsel, and the assistant prosecutor trying the case, with respect to his understanding that if the defendant acted as his own counsel he might very well not preserve properly some matters which a trained attorney might preserve with respect to a claim of error or that the defendant might fail to properly object to testimony because of his lack of legal knowledge. The court also cautioned him that he would be required to abide by the rules of the court and that in the event he failed to do so, Mr. Simons would be called upon to conduct the defense. At the conclusion of that testimony, the court held that the defendant was competent to undertake his own defense and that he would permit him to do so. It appears in the colloquy between the appointed counsel and the court that the attention of the defendant was called to the fact that the court would permit only one person to conduct the defense and that if the defendant elected to serve as his own counsel, appointed counsel would not be able to make objections and examine witnesses concurrently with him. The defendant indicated his acquiescence in that procedure, and the then-appointed counsel, apparently at the request of the court, remained to advise and consult with the defendant during the trial.

The defendant’s first claim of error on this appeal is based upon the assertion in the motion for new trial that the trial court erred in refusing to permit Mr. Simons to offer a closing argument to the jury in addition to that offered by the defendant himself, thereby depriving the defendant of the adequate assistance of counsel.

That claim of error is simply not sustainable on the record presented, for it is clear that the defendant fully understood he was waiving his right to counsel, and it is clear from the examination of the defendant and his attorneys and the colloquy between the defendant, his then-counsel, Mr. Simons, and the court, that the defendant knowingly and intelligently waived the right to have any counsel. He cannot now claim, after having requested the right to appear pro se, that he was denied the right to adequate representation. To hold otherwise would make a mockery of the entire proceedings. If, as defendant concedes, he has a right to act pro se and he chooses to exercise that right and waive his right to counsel, he cannot now change positions and claim he was denied counsel by the action of the trial court in refusing to permit counsel to argue in addition to the argument presented by the defendant himself.

True, the trial court permitted Mr. Simons to remain in court and advise the defendant. That advice and assistance was, in fact, utilized. The trial court properly-limited the extent of that advice and assistance to the exact boundary of participation by counsel that the court and the attorneys had advised the defendant was permitted under the local practice if he chose to represent himself.

Trial courts, confronted with the dilemma of untrained persons acting pro se, certainly have the inherent power to require appointed counsel to remain and act in a passive role. As a practical matter, this requirement may permit the continuation of the trial and the avoidance of a mistrial if the defendant fails or refuses to continue in his pro se defense. The discretionary action of the trial court in appointing such “stand-by counsel” in the interest of the administration of justice cannot be converted to a claim of error on the basis of inadequate representation.

Moreover, it is clear from the record that the denial of the request of Mr. Simons to argue was not properly preserved. When Mr. Simons first requested additional time in chambers, the defendant was not present. Mr. Simons made the request for additional time at the request of the defendant. Mr. Simons then asserted a personal desire to argue on behalf of the defendant. The defendant was not present, and Mr. Simons made no representation that the request for his participation in the argument was at the instance of the defendant. In fact, the transcript demonstrates that Mr. Simons was making the request out of his own awareness of the nature of the argument the defendant would make concerning his religious beliefs and Mr. Simons’ belief the defendant would not adequately cover the facts and instructions. After that conference in chambers at which the defendant was not present, the court, at Mr. Simons’ urging, then inquired of the defendant himself with respect to the request for additional time. The court then granted additional time for an argument beyond the period normally allotted for cases of this kind under the local practice, and no request was made by the defendant for Mr. Simons to utilize a portion of that allotted time, and so far as the record appears, the defendant, in fact, used all of the time available for argument in his own extended discussion of what he conceived to be the issues in the case. Defendant’s counsel is not to be criticized for making the request of the court, but to assert error on the basis of the court’s refusal, requires more record than was made in this instance. In the argument portion of his brief under this point, counsel diligently seeks to broaden the base of the objection stated in the motion for new trial to include a claim of denial of due process which is not within the issue framed on the motion for new trial, was never presented to the trial court and is totally without merit.

The State has presented a variety of authorities dealing with the issue of the right to counsel and the right to act pro se, as well as the discussion addressed to the question of due process raised in the appellant’s brief. A discussion of those cases cited by the State is unnecessary; the point briefed by defendant is without any citation of authority other than McBride v. State, 484 S.W.2d 480 (Mo.1972), which as defendant indicates holds that the right to counsel may be knowingly and intelligently waived by defendant. The point is without merit and is denied.

Defendant’s second issue has no more merit than the first. Defendant’s argument is that the police officer’s testimony to the effect that the defendant took him to the attic area and told him of the presence of marijuana and the equipment for processing it to hashish constituted evidence of another separate crime improperly shown in evidence.

Defendant relies on State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954); State v. Garrison, 342 Mo. 453, 116 S.W.2d 23 (1938); State v. Holbert, 416 S.W.2d 129 (Mo.1967); State v. McLarty, 467 S.W.2d 58 (Mo.1971); and State v. Lee, 486 S.W.2d 412 (Mo.1972). Reese, Garrison, Holbert and Lee hold as defendant indicates that the admission in evidence on the trial of a defendant of unrelated additional crimes is reversible error. McLarty holds no prejudice occurred as a result of evidence as to items missing from the automobile defendant was operating without the consent of the owner. Certain exceptions to the general rule have developed, and these have been set forth in cases such as Reese, supra. The rule of exclusion of such evidence rests on the premise stated in Reese, 274 S.W.2d, l.c. 307, relying State v. Lyle, 125 S.C. 406, 118 S.E. 803, 807 (1923), that the “inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors. Hence, if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected.” (Emphasis added.) The exceptions carved out are no more than judicially recognized areas of such “logical relevancy.” The statement in terms of “exceptions” obscures rather than clarifies the inquiry that must be made in each case where such evidence is questioned.

When examined in this light, the evidence here questioned is admissible. This is because the charge of sale of the hashish necessarily involved as a prerequisite the defendant’s knowledge that the substance sold was, in fact, hashish. State v. Polk, 529 S.W.2d 490 (Mo.App.1975). The defendant’s insistence on disclosing the manner and ingredients of its manufacture clearly was “logically relevant” on the issue of the defendant’s knowledge of the nature of the substance. This instant case is, on its facts, very closely akin to two recent cases, State v. McClure, 504 S.W.2d 664 (Mo.App.1974), and State v. Tilcock, 522 S.W.2d 60 (Mo.App.1975); and they control, both holding as they do that such evidence, logically relevant, is admissible.

Defendant, apparently recognizing the admissibility of the evidence, seeks to draw from State v. Walker, 490 S.W.2d 332 (Mo.App.1973), and State v. Hudson, 478 S.W.2d 281 (Mo.1972), a principle that even when otherwise admissible the trial court has an obligation to weigh the advantage of necessity to the State against the inherent prejudice. Walker announces no such principle, holding only that the argument and use of demonstrative evidence was improper, and Hudson presents no such issue, nor even any language remotely suggesting such an issue.

The judgment and conviction are affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Michael D. FEW, Appellant.
    No. KCD 27289.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Dec. 8, 1975.

      Gerald M. Handley, Interim Public Defender, Cenobio Lozano, Jr., Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

The appellant (defendant) was found guilty by a jury of robbery first degree and was sentenced by the court below, under the Second Offender Act, to a sentence of imprisonment for a term of twenty-five years. Defendant’s sole assertion of error, upon which he seeks a mandate of reversal, deals with a question propounded to a police detective, James Theisen, by the prosecuting attorney as to a pretrial lineup conducted at police headquarters. The defendant’s brief sets forth his sole point in the following terms:

“THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION AND IN DENYING HIS MOTION FOR MISTRIAL OCCASIONED BY THE STATE’S IMPROPER ATTEMPT TO ELICIT HEARSAY CORROBORATING EVIDENCE FROM DETECTIVE THIESSEN (SIC) THAT THE VICTIM IDENTIFIED APPELLANT BY SELECTING HIM FROM A LINEUP.”

The evidence pertinent to the problem here presented may be briefly stated. On November 4, 1973, at about 8:30 a. m., the manager of the Shop-N-Go Market at 5353 E. 39th Street in Kansas City, Missouri, Luther Rice, looked up from his work and saw a man in the store brandishing a gun in his right hand. Immediately, Rice heard the gun fire and was struck in the left thigh by a bullet. Rice slumped to the floor and the robber came and stood over him and demanded to know where the money was located, and Rice directed him to a cash register. The robber went to the register, opened it and placed the money in his pocket. A girl then came into the store and the man told her to obtain the contents of another cash register, which she did.

The robber then removed some food stamps from an open safe and then at gunpoint forced Rice to a back room of the store, where he removed some money from a filing drawer. He then forced Rice to remove his wristwatch, which the robber took and then left the premises.

Rice testified that from his first sight of the robber until he left the store, about 4 to 4V2 minutes elapsed; the light conditions were good; his eyesight was good; and he had the opportunity to view his assailant from all angles, including 3 or 4 occasions face-to-face as close as one foot apart.

Rice testified that on November 9, 1973, he attended a police lineup and identified the defendant as the man who shot him and robbed the store on November 4, 1973. Such testimony of the victim was clearly admissible and proper. State v. Rima, 395 S.W.2d 102, 105[3] (Mo. banc 1965). His identification was positive and unequivocal, and no suggestion appears that such lineup was in any way improper or that any improper suggestion or influence was exerted by police officials to bring about such identification. Rice’s in-court identification of defendant was likewise positive and obviously rested upon opportunity and observations entirely independent of the lineup, and such identification was in no way impeached nor was it shown that Rice had made any prior statements inconsistent with his identification of the defendant.

Following the trial testimony of Luther Rice, the state called James Theisen, a detective assigned to the robbery unit of the Kansas City, Missouri police department. He testified that he had participated in the lineup of November 9,1973 and identified a lineup photograph taken by him on that occasion. Thereupon, the following trial incident, which forms the basis for the presently urged error, appears in the transcript.

DIRECT EXAMINATION by the State :

“Q Detective Theisen, can you tell me on that day if Mr. Rice identified anyone from that lineup?
(Counsel approached the bench and the following proceedings were had:)
MR. HAGGERTY: [Defense counsel] I am going to object to that question and answer and move for a mistrial, Your Honor, as I understand it, I am moving for a mistrial at this point. The prosecuting attorney is attempting to introduce hearsay evidence before this jury, that the person that the witness identified [was] the defendant. This is clearly prejudicial.
MR. EDWARDS: [Counsel for State] We can settle this right now. We are not trying to introduce this, that is the last—
MR. HAGGERTY: Doesn’t make any difference, he already said was identification made, [sic]
THE COURT: What is your objection?
MR. HAGGERTY: Objection, is hearsay, it is prejudicial and it is not relevant, it was not called for, there is no challenge of the identification made at the lineup of the witness Michael. I believe the defendant is entitled to mistrial for—
THE COURT: Objection overruled and motion for mistrial denied. Don’t pursue that any further, Mr. DiCaval-cante. [Coeounsel for State]
(The proceedings returned to open court.)” (Emphasis and material in brackets added)

The state thereupon offered the lineup photograph, defendant’s objection thereto was sustained, and, of course, the jury never viewed the photograph.

It is objectionable for a third person to testify as to. an extrajudicial identification made by a victim of the crime or an identifying witness, except where such testimony is introduced to rehabilitate the witness after he has been impeached. State v. Degraffenreid, 477 S.W.2d 57, 62-64[12, 13] (Mo. banc 1972).

A careful analysis of the question here involved discloses that it did not come within the precise proscription of the rule above noted. The question to Theisen was, if Rice had identified anyone at the lineup, not who was so identified. No doubt can exist, however, that the next question, as to the identity of the person so identified, would have followed'as inevitably as night follows day. However, it must be noted that the first general question was never answered. The trial court’s admonition to the prosecutor not to “pursue that any further” effectively blocked the path toward error and prevented the introduction of the objectionable hearsay.

Defendant does not claim, nor does it appear that the prosecutor was acting in bad faith in propounding the question. No request was made to the trial court to admonish the jury to disregard the question. Rice had previously testified, without objection, that he had made the lineup identification of the defendant. It therefore does not appear how the defendant’s rights were impaired or how he was prejudiced by this trial incident.

The cases of State v. Degraffenreid, supra, and State v. Fleming, 354 Mo. 31, 188 S.W.2d 12 (1945), relied upon by defendant, are not authoritative here, except as to the general principles, above recognized as applicable in cases involving extrajudicial corroborating evidence by third persons as to identification. In Degraffenreid, the testimony of a police officer corroborating the extrajudicial identification testimony of an identifying witness, and in Fleming, that testimony corroborating the extrajudicial identification testimony of a victim was admitted over objection. Here, no such corroborating testimony was ever introduced before the jury.

The granting of a mistrial rests largely within the discretion of the trial court; is a drastic remedy; should be exercised only in those circumstances in which no action short of a mistrial will remove the prejudice asserted; and, an appellate court should reverse a case only where an abuse of discretion in refusing to declare a mistrial clearly appears. State v. Johnson, 504 S.W.2d 23, 29[7] (Mo.1973); State v. Duncan, 499 S.W.2d 476, 479[6, 7, 8] (Mo.1973). Every error which may occur at trial does not require the drastic action of declaring a mistrial. State v. Smith, 431 S.W.2d 74, 82-83[21—24] (Mo.1968).

In the case of State v. Whipkey, 361 Mo. 1008, 238 S.W.2d 374, 378[11] (1951), improper questions were propounded, objections sustained, and mistrial denied. The court held that since the questions were not answered, no reversible error was established. See also: State v. Robinson, 344 Mo. 1094, 130 S.W.2d 530, 532[5] (1939).

Here, while the question propounded to Officer Theisen was improper, it was never answered. Although the trial court did not sustain the objection (in fact, it was overruled on the record and out of the hearing of the jury), effective action was taken by the trial court to shut off this line of inquiry. On this record, no abuse of discretion appears that would require reversal.

The judgment is affirmed.

All concur.