author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary AMBUS, Defendant-Appellant.
    No. 35763.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 8, 1975.

      Charles D. Kitchin, Public Defender, Edwin H. Steinmann, Jr., Henry J. Rieke, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Mark A. Brown, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, Gary Ambus, was charged with assault with intent to rob with malice aforethought, found guilty by the jury and sentenced by the court to thirteen years in the department of corrections. He appeals. For reasons hereinafter stated, we affirm.

Since appellant does not question the sufficiency of the evidence, only those facts pertinent to resolve the points on appeal need be stated.

On the morning of September 25, 1972, Walter Westerhold, the manager of Boni-fied Oil Station located at 454 North Skinker Boulevard in the City of St. Louis opened the service station for the day’s business. He opened the station about 8:00 a. m. At about 8:25 a. m., when he was at the gas pumps, he noticed a person, later identified as the appellant-Ambus, outside the station by the soda machines. He also noticed another person, identified as Robert Young, inside the station. He approached Ambus and asked what he could do for him. Ambus stated that “he wanted a pack of cigarettes.” Westerhold walked into the station to the “back room door where the cigarette rack was hanging on the door.” Ambus followed him into the station. Westerhold then asked Young what “I could do for him.” He stated that “he needed a can for gasoline.” Wester-hold noticed that Young had a gun in his belt under his jacket. Westerhold then decided to go inside the store room and “try and slam the door behind me. . . .” As he did so, the two men “burst through the doorway” and “both had weapons in their hands.” Ambus had a “blue steel automatic.”

Westerhold tried to slam the door and “they both kind of threw the door back open and they fired.” They said, “ ‘Let’s have the money’ or something to that nature.” Ambus fired a shot. Westerhold jumped to the back of the store room where “I had a gun laying on the oil” cans, and fired back five shots. Both men ran from the station. They went halfway across the lot and then turned around and came “right straight back.” Westerhold at that time was trying to call the police. When the men started coming back, he fired a shot through the window and shot Ambus. Both men then continued to go south on Skinker Boulevard. Westerhold called the police. Within minutes, Officers McLaughlin and Sexton came to the station. McLaughlin observed blood on the ground and followed the trail. About 45 feet away on the sidewalk, he found a pistol (.32 automatic) which was identified as the one Ambus carried. Officer McLaughlin examined it and could “faintly smell what appeared or what I sensed to be a recently fired weapon and there was a bit of heat on it which would indicate that it was, indicate possibly was just recently fired.” “It was a strong smell.”

Officers Dember Bonds and Jack Billings also came to the service station. When Bonds arrived, he observed Officer McLaughlin holding the .32 caliber automatic. Bonds and Billings followed the trail of blood, which led to 6145 Waterman, about two blocks away. Other officers also came upon the scene. Officer Robert Wencewicz followed the trail of blood to the Waterman address. When Wencewicz reached that address, he went in with gun drawn and found the defendant partially under a bed. Officers Bonds and Billings also entered the room. They found the defendant was injured. He “might have been in a state of shock ..” His hand was wrapped in a towel, and when uncovered his thumb was “almost off, it was just hanging.” Officer Wencewicz did not remember “the man saying anything.” In the room also there was Officer Richards with a police dog.

Officer Billings advised Ambus of his Miranda rights; Ambus responded and said “he knew his rights.” Billings then asked him what happened, and Ambus said he “hurt his thumb when we hit the place up the street.” Ambus was quiet and spoke in a low tone of voice. A cruiser was called for, and Ambus was taken to the hospital. He had been shot several times — in the right front chest area and in the upper right back area.

In due time, the defendant was tried on August 27, 28 and 29, 1973. In that trial, the jury could not reach a verdict. Trial was then reset for September 24, 1973. On the preceding Friday, September 21, counsel for the defendant filed a motion to produce a transcript of the previous trial, alleging that the defendant was indigent and that he needed the transcript to “properly retry said cause.” Failure to provide the transcript, it was alleged, would result in “fundamental unfairness. . . .’’In an affidavit filed with the motion, counsel stated that on the previous day the defendant expressed his intention to maintain his plea of not guilty, although earlier he had indicated he would plead guilty. The motion was denied by the judge in the assignment division.

The trial judge below adopted the ruling of the assignment judge and also overruled the renewed motion to produce a transcript of the previous trial.

Prior to the first trial, defendant moved to suppress any statements made by him on the ground that they were not voluntarily and intelligently made. A hearing was held on the motion and was overruled. The trial judge below at the beginning of the second trial also adopted the ruling and denied the motion to suppress statements made by the def^idant.

Trial was then held on September 24-26, 1973, and the facts as stated above were adduced.

During the defendant’s case, counsel called the court reporter in the first trial. She testified as to certain differences in the testimony of Officer Wencewicz from the first trial. Counsel also called Officer Bonds, who wrote the police report, as his witness. He testified that although Ambus had made a statement to Officer Billings concerning how his thumb was hurt the statement was not in the report because of an error.

When the evidence was completed, the court gave several instructions including a “flight” instruction.

On this appeal, defendant contends that the trial court erred (1) in denying the defendant’s motion to produce the transcript of the first trial for the reason that defendant was thus deprived of his right to adequate cross-examination, equal protection and effective assistance of counsel during the second trial; (2) in overruling the motion to suppress statements because they were not made voluntarily or after an intelligent waiver of his right to remain silent; and (3) in giving the flight instruction because there was no evidentiary support for the giving of the instruction.

As to the first point, appellant argues (1) that his attempts to impeach the state’s witnesses were impeded because of the absence of the transcript of the first trial, hence the transcript was valuable to him; and (2) that alternative devices were not available. Appellant relies on Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), and its progeny as authority for the proposition that he is entitled to the first trial transcript.

In Britt, supra, petitioner was tried for murder. The first trial ended in a “hopeless deadlock.” A retrial was then scheduled for the following month. In the interim, petitioner filed a motion alleging he was indigent and requested a free transcript of the first trial. The North Carolina appeals court affirmed the denial of the motion, stating that the record did not reveal a sufficient need for the transcript. The Supreme Court of the United States granted certiorari. The court held that, while the principle of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955), is applicable, no violation of that rule has been shown “in the narrow circumstances of this case.” The court stated that “Griffin v. Illinois and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. . . (Emphasis added). 404 U.S. at 227, 92 S. Ct. at 433.

There are two relevant factors, the court stated, to determine need: (1) the value of the transcript to the defendant and (2) the availability of alternative devices that would fulfill the same function as a transcript. As to value, the court agreed that there would be serious doubts of the North Carolina decision if it rested on the failure to specify “how the transcript might have been useful to him.” The cases recognize value to a defendant “without requiring a showing of need tailored to the facts of the particular case.” Value exists either as a discovery device in preparation for trial or for the impeachment of witnesses. The Supreme Court affirmed the denial of the transcript, because the North Carolina court rested its decision on the “availability of adequate alternatives to a transcript.” The second trial was before the same judge, with same counsel, the same court reporter, and the two trials were only a month apart. The trial court suggested that the memory of petitioner and his counsel should have furnished an adequate substitute for the transcript, and in addition the petitioner could have called the court reporter to read to the jury the testimony of the previous trial. While the court rejected the suggestion that counsel must keep exhaustive notes of the testimony at trial or have a perfect memory, during the oral argument on appeal, it “emerged” the petitioner could have had the reporter read back to counsel his notes of the mistrial in advance of the second trial if “counsel had simply made an informal request.”

There are striking similarities between Britt and this cause. The first trial was tried by the same defense counsel, the two trials were held less than a month apart, the trial was held in the same city, counsel for defendant did have the reporter read some discrepancies in the testimony to discredit the witness, and counsel in this case did not informally request the reporter to read the notes back to him.

We hold the trial court did not err in denying the motion to produce the transcript in the circumstances of this case. First, the motion was not timely filed. The trial court denied the motion on the ground, inter alia, that the motion was not presented until after noon on the Friday before the case was set for trial, and because “[tjhis is the eighth setting of the case.” Delay in seeking similar evidence has been held to be grounds for refusing a requested continuance. State v. Brown, 480 S.W.2d 843 (Mo. 1972) [deposition].

Secondly, we believe that the circumstances of this case are analogous to Britt, in that there were available alternative devices that fulfilled the same function as a transcript. As stated, the first trial was tried by the same defense counsel, the two trials were held only a month apart, counsel did not request the reporter to read the transcript to him during the two or three days prior to trial on September 24, 1973. Trial was held in the same city, counsel did as a matter of fact have the reporter in the first trial read certain portions of the first trial in an attempt to discredit certain witnesses, counsel during the cross-examination of the victim referred to matters he stated in the previous trial.

Under these circumstances, we hold that the trial court did not err in denying the motion to produce the transcript at state expense.

There is no equal protection problem here. The appellant was not denied the transcript because he was indigent. The trial court in the exercise of its discretion denied the motion on other grounds.

Defendant next contends that the court erred in denying the motion to suppress his statements relating to the injury to his thumb. He contends the statement in answer to Officer Billings’ question “What happened to your finger ?” that Ambus said he “hurt his thumb when we hit the place up the street,” should have been suppressed because the defendant did not knowingly, intelligently and voluntarily waive his right to remain silent after being given the Miranda warnings. He contends that under the circumstances at the time' of the warnings — (a) defendant had been shot, (b) he was alone surrounded by officers, (c) one officer had his weapon drawn, (d) his left hand was wrapped in a towel, (e) his left thumb was almost severed, (f) a police dog was somewhere nearby — the totality of circumstances surrounding the arrest was such that defendant, in pain, and under mental and psychological pressure, could not make an intelligent waiver of his right to remain silent. He relies on Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and State v. Edmondson, 461 S.W.2d 713 (Mo.1971).

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that the waiver of constitutional rights must be given voluntarily, knowingly and intelligently. Whether there is such a waiver depends upon the totality of the circumstances of the case.

Defendant was given the standard Miranda warnings, he indicated he understood them and “knew his rights,” and thereafter Officer Billings asked, “What happened to your finger?” The defendant despite his injury was quiet and spoke in a low tone. Schnechloth involved a consent search, but the Supreme Court thoroughly discussed the question of volun-tariness. The ultimate test is whether the will was overborne in the totality of the circumstances. In State v. Edmondson, supra, 461 S.W.2d at 717, our Supreme Court stated that the proper rule is whether the totality of the circumstances deprived the defendant of a free choice to admit, to deny, or to refuse to answer, and whether physical or psychological coercion was of such a degree that the will was overborne at the time he made a statement. One datum of importance is the presence or absence of advice concerning the defendant’s constitutional rights.

We do not believe that the trial court erred in denying the motion to suppress the statement. Appellant was advised of his rights, he indicated he understood them, the officer testified he was quiet and spoke in a low tone. The fact that the defendant was wounded does not preclude a waiver or make the statement involuntary. We know of no constitutional prohibition against a seriously wounded person making a statement. State v. Granberry, 484 S.W.2d 295, 300 (Mo.banc 1972).

There was adequate evidence which could be found to be a waiver of the right to remain silent. The appellant answered that “he knew his rights” after being informed of them by Officer Billings. The officer did not inquire about the crime, but his inquiry was directed to his injured hand. The appellant was lucid, he was able to converse enroute to the hospital with the officer who accompanied him.

Previous cases in Missouri and other jurisdictions have dealt with the issue of psychological stress, impaired judgment and voluntary statements. Recently, this court held that a suspect’s statements were voluntarily made despite the fact that he was intoxicated when he made them. State v. Heather, 498 S.W.2d 300 (Mo.App.1973). In State v. Hyster, 504 S.W.2d 90 (Mo.1974), the defendant’s statements were held to be voluntarily made even though he had been drinking heavily and was shown to be moderately mentally retarded. Finally, our research discloses two cases where the defendants’ statements were held to be voluntarily made despite the psychological stress and physical pain of gunshot wounds. State v. Selman, 433 S.W.2d 572 (Mo.1968); United States ex rel. Cronan v. Mancusi, 444 F.2d 51 (2nd Cir. 1971).

Under the circumstances, we find that the trial court did not err in denying the motion to suppress the statement.

Finally, appellant contends that there was error in giving the flight instruction because there was no evidentiary support for the giving of such instruction. He argues that the defendant was shot and the reason for removing himself from the scene was not motivated for the purpose of avoiding arrest, but for the reason of “self-preservation and not an attempt to avoid arrest and trial.” This point was not set forth in the motion for new trial, and hence was not preserved for review. Rules 27.20(a) and 70.02, V.A.M.R.

We have read the full transcript, the briefs, the authorities cited by the parties and find that there is no reversible error.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . The judge denied the motion for the following reasons:
      “ ‘One, it was not presented until after noon on Friday, September 21 and this case is ready to be assigned for trial on 'September 24 and therefore not timely filed.
      Two, the Motion does not show that it is necessary for the trial of the case, nor in what way it is necessary in order for the Defendant to obtain a fair trial.
      Three, this Court has the responsibility of disposing of eases within a reasonable length of time, and to permit this Motion to become ■ grounds for continuance would bring about great delay in our cases on the docket.
      Four, to permit this to become grounds for continuance (because the Defendant changes his mind at the last minute) would result in many other defendants taking a like action, as it is a matter of common knowledge that such happenings as this become a matter of common knowledge to all confined prisoners.
      This is the eighth setting of the case. So ordered.’ ”

      . INSTRUCTION NO. 8:
      “ ‘The Court instructs the jury that if you believe and find from the evidence, beyond a reasonable doubt, that the defendant immediately or shortly after the incident described in the evidence fled or attempted to flee from the scene for the purpose of avoiding arrest and trial for an offense, if you find an offense was committed at the time in question and that the defendant committed it, then such flight, if you find he did so flee, is a circumstance which may be taken into consideration by you in connection with all the other facts and circumstances in the case in determining his guilt or innocence of the charge placed against him in the amended information, and unless you so find the defendant fled or attempted to flee for the purpose of avoiding arrest and prosecution in this cause then you shall not consider the same in arriving at your verdict.’ ”

      . Counsel for defendant was asked by the trial judge: “Did you have the court reporter read the notes back to you?” A. “No.” “Why not?” The attorney answered: “Following this trial and not having yet the opportunity to talk to my client, I had to be up in 17 on another matter because I was assigned out to trial again. I talked to the court reporter and said I wanted to get a transcript at that time. I didn’t realize my client was going to plead guilty and that the offer would be reduced. She informed me that I could get the transcript in about four months.”

      . United States v. Young, 472 F.2d 628 (6th Cir. 1972), holds that defendant is entitled to a transcript of the first trial. One of the reasons given by two judges of a three-judge panel (one dissented) was that the record did not reflect that the trial court made any reference to the availability of the court reporter to read back the testimony of the first trial until an order made three months after the conclusion of the second trial. Furthermore, there is no indication in the case that witnesses were attempted to be impeached or that the court reporter was called to testify as to statements in the first trial.

      .Although the point was not preserved, we believe the court did not err in giving this instruction under the circumstances of this case. The defendant was at the scene, a shoot-out occurred and the defendant, although shot, and his companion ran south on Skinker. The police quickly came to the scene. The trail of blood led to where the defendant was located. He was found by the officers in a bedroom, partially under a bed. Under such circumstances, we believe that the court did not err in giving the flight instruction.
      The flight of the defendant under the circumstances here was not for the “sole” purpose of preserving himself, as defendant argues. The flight was not simply out of the line of fire, but the defendant proceeded for two blocks to his bedroom. Under the facts, the jury could determine that it was also for the purpose of avoiding arrest.


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. George VERNOR, Defendant-Appellant.
    No. 36145.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 15, 1975.

      Charles D. Kitchin, Public Defender, Thomas J. Prebil, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Charles B. Black-mar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

George Vernor, convicted by a jury of robbery by means of a dangerous and deadly weapon and sentenced under the Second Offender Act to 17 years’ imprisonment, has appealed.

On September 12, 1973 one Frank Put-ney, a clerk in an A & P store in the City of St. Louis, noticed'a white Mercury automobile come into the parking lot. Two Negro males got out of the car. Their actions and demeanor aroused his suspicions. The engine of the automobile was left running. Putney made a note of the license number. The two men entered at the front and walked the length of the store to the manager’s office. One of them, later identified as this defendant, climbed over a ledge and entered the office of Donald Buhr, assistant manager. The other man, armed with a shotgun, remained outside the office. Defendant had a black revolver. He took money out of the cash drawer, ordered Buhr to lie down on the floor, left the office, proceeded to one of the check-out counters, ordered the clerk to lie down on the floor and took money out of the cash register. Then both men left the store. A total of about $800 in cash was taken. Buhr called the police. When the police arrived Putney gave them the license number.

On September 13, 1973 police officers went to the home of Mrs. Ozel Washington, owner of the automobile, and arrested her on a charge of robbery. Mrs. Washington testified to the following set of facts as a witness for the State: While driving on Delmar she saw defendant and another, both of whom she had previously seen at parties, standing at a bus stop. At their request she took them to the A & P store in question, where she parked and stayed at her car while the two entered the store. They were gone long enough to pick up a couple of items and check out. They came out walking, not running. She did not know what was going on. They did not tell her what they had done until just before they got out of the car, at which time they told her about the robbery (“heist” as she termed it). Defendant gave Mrs. Washington a brown bag, which she did not look at until she got home. The bag contained about $250 in “bills wrapped up.” She had the money when the officers arrested her. The police took her downtown, where she “told them everything.” She was charged with armed robbery, as the driver of the getaway car. The charges against her were dismissed when she turned State’s evidence.

On September 14, 1973 five police officers went to a residence located at 1253 Amherst Street where, without an arrest search warrant, they knocked on the door, observed defendant at a second story window, told him he was under arrest and ordered him to open the door. He refused to do so. They forced the door open and found him sitting upon a bed, front room, second story. They placed him under arrest, handcuffed him and searched the entire premises, consisting of three rooms in addition to the front room where defendant was arrested. One officer found and seized five shotgun shells from the top of a dresser in the bedroom. Cash in the amount of $83.50 was taken from defendant’s pants pocket. These items were the subject of a motion to suppress, heard and overruled prior to trial. They were admitted in evidence at the trial, over objections that they were seized in the course of an illegal search and seizure; that the $83.50 had no probative value because it is currency and there is “no possible way they can tell this currency from any other currency.”

Appellant’s first point is that the court erred in admitting the cash in evidence because it was irrelevant, immaterial, of no probative value and clearly prejudicial because it raised the inference that it was taken at the time of the robbery. Appellant cites State v. Roswell, 153 Mo.App. 338, 133 S.W. 99 (1910), a larceny case. Roswell was charged with stealing $10, the property of one Sorrells. The State proved that a $10 bill was in Sorrells’ pocketbook, which disappeared from his pocket when pushed by defendant as he was boarding a streetcar, but there was no specific proof as to the ownership of the $10 bill. The conviction was reversed for insufficiency of proof of an essential element of the offense of larceny, namely, proof of ownership of the $10 bill. This case was severely criticized by the Supreme Court, which disagreed with the conclusion reached by the court of appeals, as “opposed to the universal experience of mankind.” The Supreme Court reasoned that ordinary possession of money, in the absence of proof to the contrary, is sufficient evidence of ownership in the possessor. State v. Starr, 244 Mo. 161, 148 S.W. 862, 864-865 [3] (1912).

More to the point is State v. Ball, 339 S.W.2d 783 (Mo. banc 1960), in which the Supreme Court reversed an armed robbery conviction for improper admission of testimony that defendant had $258.02 in cash on his person when arrested. A jewelry store was robbed of jewelry worth $4,455 and $140 in cash. Officers found a lady’s ring, a man’s wristwatch and $258.02 in cash on defendant’s person when arrested 19 days after the robbery. The jeweler could not identify either the jewelry or the money as having been taken in the robbery. There was no proof of “sudden affluence” — that defendant had suddenly come into possession of the $258.02. In these circumstances the Court applied the rule that “The mere possession of a quantity of money is in itself no indication that the possessor was the taker of money charged as taken, because in general all money of the same denomination and material is alike, and the hypothesis that the money found is the same as the money taken is too forced and extraordinary to be receivable.” 1 Wigmore on Evidence, Sec. 154, p. 601. Continuing, the Court said, “In the absence of proof or of a fair inference from the record that the money in Ball’s possession at the time of his arrest came from or had some connection with the robbery and in the absence of a plain showing of his impecuniousness before the robbery and his sudden affluence (State v. Garrett, 285 Mo. 279, 226 S.W. 4), the evidence was not in fact relevant and in the circumstances was obviously prejudicial for if it did not tend to prove the offense for which the appellant was on trial the jury may have inferred that he was guilty of another robbery. [Citing cases.] The admission of the evidence in the circumstances of this record infringed the right to a fair trial * * *. 339 S.W.2d 786.

In State v. Hampton, 275 S.W.2d 356 (Mo. banc 1955), the defendant was convicted of larceny. Thirty dollars in cash, including a $5 roll of dimes wrapped in green paper, and 6 quarts of whiskey were stolen from a tavern. Defendant’s fingerprint was found on a bottle of whiskey near the place from which the 6 bottles had been removed. Defendant was arrested the same day the larceny occurred. On his person was found a $5 roll of dimes, wrapped in the same colored paper as the missing roll and like those normally used by banks to wrap dimes. This was a circumstantial evidence case and the Supreme Court held that the finding of the roll of dimes was a circumstance admissible in evidence, but since there was no evidence sufficiently identifying the roll of dimes as that taken from the tavern the circumstance was not substantial evidence inconsistent with a reasonable hypothesis of defendant’s innocence.

In State v. Britt, 504 S.W.2d 38 (Mo. 1973), $300 was taken in an armed robbery by two men who escaped in a Buick automobile with a “bashed in” front end. A few hours later the Buick was found, its occupants arrested and searched. Defendant had $50 in his possession. The total amount found on all occupants of the car was $301.29. Part of the money taken consisted of coins in green wrappers. A green dime coin wrapper was found in the front seat of the Buick. The denominations of the paper money corresponded with the description of the missing money (none over $20). A patrolman was permitted to testify over objection that when arrested the occupants of the car, including defendant, had a total of $301.29 upon their persons. On appeal it was contended that this evidence was irrelevant and prejudicial. The Supreme Court held the evidence admissible, reciting that the evidence showed these people were together in the car prior to the robbery; that the two who committed the robbery escaped in that car; that they were arrested in the car 2½ hours later with the same group of people; that a coin wrapper of the type taken was found in the car. The Court, citing State v. Hampton, supra, said, 504 S.W.2d l.c. 42, “In view of the close time element, and the connection of the car and its occupants with the robbers, we do not think it was wholly irrelevant to show that the car occupants had in their possession a sum of money of approximately the amount taken in the robbery.”

In the case for review the amount taken in the robbery was $800, of which $250 was left with the driver of the getaway car, so there was $550 to split. Assuming they divided it equally and each received $275, the amount found on defendant’s person when arrested two days later ($83.50) was a little less than one third, which is of little significance in attempting to associate the $800 and the $83.50. Eighty-three dollars and a half in a time of inflation could hardly be considered enough to constitute “affluence.” There was no evidence of previous impecuniousness. There was no identification of the money — no associated identifying object, such as the coin wrapper in two of the above cases. The time period between robbery and arrest was two days, not two hours as in Britt. There simply was no evidence of any connection between the $83.50 and the $800 taken from the A & P store. All that is shown is that appellant was in possession of an unconnected, unidentified $83.50 two days after the robbery. In the light of the decided cases the evidence with respect to the $83.50 was irrelevant, immaterial, of no probative value, and it should have been excluded. An error in the admission of evidence, however, does not necessarily call for a reversal of a conviction. Only prejudicial error is reversible error. State v. Gibson, 502 S.W.2d 310, 314[2] (Mo.1973). A defendant claiming error in the reception of evidence has the burden of showing both error and prejudice. Appellant does not point out why and in what manner this evidence was prejudicial, except to say that its prejudicial effect is manifest. In such case the conviction is not required to be reversed because of the admission of evidence. State v. Fitzgerald, 174 S.W.2d 211, 215[12] (Mo.1943). Under the circumstances of this case there was no reasonable basis for the jury to have inferred from the fact that he had $83.50 in his pocket that appellant was guilty of another robbery. Quoting from appellant’s brief, “From all that appears, the money simply belonged to defendant.” Error which in a close case might call for a reversal may be disregarded as harmless where the evidence of guilt is strong. Thomas v. United States, 281 F.2d 132 (8th Cir. 1960), cert. den. 364 U.S. 904, 81 S.Ct. 239, 5 L. Ed.2d 196. The State made a strong case. Appellant was identified by three employees of the A & P store and the testimony of Mrs. Washington, an actual participant in the crime (albeit an unknowing participant, according to her), who positively incriminated appellant. The error in admitting evidence that $83.50 was found on appellant’s person when arrested was harmless.

Appellant’s second point is that the court erred in admitting the $83.50 in evidence “because the arrest of the defendant was illegal and thus the property taken from him was inadmissible.” Appellant contends there was insufficient probable cause for the officers to believe that appellant had participated in the robbery; that under Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1970), it was necessary for the officers to have factual data tending to corroborate the informer’s tip that appellant had committed the crime. There is more than an informer’s tip in this case. Mrs. Washington was a participant in the crime — an eyewitness to the entry and exit of appellant from the store. She heard appellant admit the “heist.” She retained a portion of the loot, given her for providing transportation for the actual robbers. Her statement to the police was not based upon suspicion, rumor or hearsay. It was not a mere conclusion. The information she gave the police led directly to appellant. Clearly under State v. Perry, 499 S.W.2d 473 (Mo.1973), there was sufficient basis for the officers to reasonably give credence to the information supplied to them. See also United States v. Trice, 476 F.2d 89 (9th Cir. 1973); People v. Wright, 56 Ill.2d 523, 309 N.E.2d 537 (1974). Finally, as previously determined, the admission of the $83.50 in evidence was harmless and nonprejudicial, which renders immaterial any question with respect to the validity of the arrest, search or seizure.

Appellant’s third point, that the court erred in not instructing the jury in the form specified by MAI-CR No. 1.08 at the final recess, is without merit. Instead of giving MAI-CR No. 1.08(b) as follows:

“The Court again reminds you of what you were told at the first recess of the court. Until you retire to consider your verdict, you must not discuss this case among yourselves or with others, or permit anyone to discuss it in your hearing. You are not to form or express any opinion about the case until it is finally give to you to decide,”

the court gave the following instruction:

“We are going to submit it to you first thing tomorrow morning at 9:30, so keep in mind the admonition I have been talking about. Don’t talk to anybody about this case. Don’t permit anybody to talk to you about it. If anybody does, report that back to the Court immediately.”

MAI-CR No. 1.08(b) is substantially the same as the admonition required in pre-MAI days by § 546.230, RSMo 1969, V.A. M.S. Absolute and literal application of that statute was not required by the Supreme Court; substantial compliance was tolerated. State v. Brown, 502 S.W.2d 295[5, 6] (Mo.1973); State v. Harris, 477 S.W.2d 42, 46[6] (Mo.1972). The requirements under MAI-CR are more stringent than under § 546.230. Absolute and literal compliance with MAI-CR is ordered and expected by the Supreme Court. Any deviation from the printed page now constitutes error, the prejudicial effect of which is to be judicially determined. Rule 20.-02(e). For the same reasons excusing literal compliance with § 546.230 in State v. Brown, supra, we find the error harmless in this case.

Judgment affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Raymond McGuffery JACKSON, Defendant-Appellant.
    No. 35721.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 15, 1975.

      Charles D. Kitchin, Public Defender, James E. Wynne, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Donald R. Bird, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, J. Brendan Ryan, Circ. Atty., Thomas C. Muldoon, Asst. Circ. Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant Raymond McGuffery Jackson was convicted of manslaughter (§ 559.070, RSMo 1969, V.AM.S.). Since the jury was unable to assess punishment the court sentenced defendant to eight years imprisonment (§ 559.140, RSMo 1969, V.A.M.S.). Defendant, in this appeal, urges two assignments of error by the trial court. We find both contentions lacking in merit and affirm the trial court’s judgment.

The evidence at trial revealed the following. On October 21, 1972, at 5:00 p. m., defendant was visiting Tommie Peyton at Peyton’s apartment at 5107 Maple in St. Louis. Peyton’s nephew, George Thomas, also arrived and soon after left the third floor apartment to go to the bathroom on the first floor. Upon returning, Thomas told Peyton and the defendant that he “got into a scuffle downstairs with some dude that was trying to get him to leave the house and trying to put him out”. All three men then proceeded downstairs to the kitchen where they found Allen Stewart, the deceased, with whom Thomas had previously “scuffled. ”. An argument ensued, followed quickly by a “fist fight” between the deceased, Thomas, and Peyton. After a couple of minutes the defendant attempted to pull his two companions off the deceased whereupon he was hit with some object by the deceased. The defendant was knocked backwards, but did not fall, and as the deceased advanced on him the defendant pulled a knife from his pocket and stabbed him. The deceased’s wife discovered him at the doorway of their home at 5010 Minerva at about 8:00 p. m. that night, about one block away from the scene of the stabbing. The deceased was taken promptly to Homer G. Phillips Hospital where he remained until his death caused by two stab wounds on November 3, 1972.

Defendant asserts the trial court erred in denying his motion for judgment of acquittal at the close of the entire case, contending the evidence showed the defendant acted in self-defense. What constitutes self-defense, of course, is not a question of fact for the jury, but a question of law. State v. Rash, 359 Mo. 215, 221 S.W.2d 124[1] (1949); 41 C.J.S. Homicide § 344, p. 108. But where the evidence is conflicting or of such a character that different inferences might reasonably be drawn therefrom, it is generally a question of fact for the jury to determine whether the accused acted in self-defense in a particular case. State v. Hammonds, 459 S.W.2d 365, 368[4] (Mo.1970); State v. Hicks, 438 S.W.2d 215, 219[4] (Mo.1969); State v. Vincent, 321 S.W.2d 439, 442[6], 444[11] (Mo.1959). Only when all the evidence is undisputed and clear should a court dispose of a murder or manslaughter charge by acquittal without tendering the issue of self-defense to the jury. State v. Rash, supra, 359 Mo. 215, 221 S.W.2d 124, 125 [2] (1949). Rarely, then, is self-defense declared by law so as to bar the submission of the homicide offense altogether.

Generally, to support a plea of self-defense there must be 1) an absence of aggression or provocation on the part of the slayer [State v. Aubuchon, 394 S.W.2d 327, 334[15] (Mo.1965)]; 2) there must be the presence of real or apparently real necessity to kill in order to save oneself [State v. Young, 510 S.W.2d 732, 734[1] (Mo.App.1974)] ; 3) reasonable cause must exist for belief of such necessity [§ 559.-040(2), RSMo 1969, V.A.M.S.; State v. Hicks, supra, 438 S.W.2d 215, 218[2] (Mo.1969)]; and 4) the slayer must have done everything in his power consistent with his own safety to avoid the danger and avert the necessity, and he must retreat, if retreat be practicable [State v. Sherrill, 496 S.W.2d 321, 325[14] (Mo.App.1973)].

Applying these elements, it is readily apparent this situation is not, as defendant contends, the rare and unusual case where the proof clearly and uncontradictedly demonstrates the defendant was forced to kill in order to defend himself as in State v. Rash, supra. Defendant asserts he was a peacemaker and in no manner the aggressor or provoker of the difficulty, but a contrary inference is certainly supported by the evidence. Defendant had knowledge of the previous scuffle between the deceased and George Thomas, yet he voluntarily accompanied Thomas and his uncle downstairs to confront the deceased. Had he remained in the third floor apartment, he would not have been in danger of attack; thus the situation is one in which the defendant placed himself in the midst of a fist fight on the first floor, a choice of his own making.

Nor does the evidence demonstrate a clear showing of the necessity of defendant’s actions once he became physically involved in the affray. Something more than fear is required to justify such extreme conduct as the taking of another’s life with a deadly weapon. Some affirmative action, gesture, or communication by the person feared indicating the immediacy of danger, the inability to avoid or avert it, and the necessity to use deadly force as a last resort must be present. State v. Brown, 502 S.W.2d 295, 299[3] (Mo.1973); State v. Young, supra, 510 S.W.2d 732, 735[4] (Mo.App.1974). Defendant testified he was “afraid” of the deceased, but fear of simple assault and battery is not sufficient to justify homicide. State v. Jackson, 511 S.W.2d 771, 777 (Mo.1974).

Defendant saw no weapon on the deceased and none was found in deceased’s clothing, although defendant did allege he was struck with an “object” which was never identified. In fact, the only relevant circumstance to cause fear was the deceased’s large size. But that alone cannot justify a killing. State v. Parker, 403 S.W.2d 623, 627[4] (Mo.1966). Furthermore, as the state points out, both of defendant’s friends were in the immediate area and able to assist him, and apparently they did not feel their smaller size precluded them from physically overpowering the deceased since they voluntarily argued and fought with him.

It cannot be said, therefore, as a matter of law, that what occurred in this case was justifiable homicide and nothing else. But rather the issue of self-defense was a question properly submitted to the jury with appropriate instructions. State v. Hammonds, supra at 368[4]; State v. Hicks, supra at 219[4]; State v. Vincent, supra at 442[6]. In fact, there have been many cases where the inferences to be drawn from the evidence were much less likely to differ and where the evidence of self-defense was much more persuasive, yet the self-defense issue was still not declared by the court, but was sent to the jury for determination. See e. g. State v. Ford, 491 S.W.2d 540 (Mo.1973); State v. Hicks, supra; State v. Austin, 367 S.W.2d 485 (Mo.1963). The trial court was not in error when it overruled the defendant’s motion for acquittal.

The defendant’s second contention raised on appeal is that the trial court erred in receiving the jury verdict because it was not agreed to freely and voluntarily. Admittedly the jury did have some difficulty arriving upon their verdict, “guilty of Manslaughter * * * unable to assess the punishment”, but we do not find it to have been coerced or in any other manner influenced by the trial judge’s conduct.

The circumstances leading to the verdict are as follows. The jury retired to deliberate at 12:42 p. m. on August 21, 1973. At 5:10 p. m. the jury returned to the courtroom and the foreman reported a decision had been reached as to guilt but that they were unable to assess punishment. The judge refused to hear the details of the jury’s difficulties, but gave them the “Hammer” instruction, reminding the jury of the desirability of reaching a verdict, and sent them back to deliberate. At 5:55 p. m. the jury again returned to the courtroom, still without a verdict, informing the court that all twelve jurors agreed as to the issues of guilt and the particular crime, but could not assess punishment. When the judge inquired as to why Instruction No. 6 had not been followed in regard to finding the defendant guilty but unable to assess punishment, the foreman explained one person was troubled by a “small technicality” and would not agree. The judge read this instruction to the jury again, and then directed them to once again return to the jury room and to execute “the form of verdict that suits the crime that you agree upon and which states that you are unable to agree upon the punishment.” Upon their return at 6:05 p. m. with the signed verdict, the jury was polled. As the tenth juror was polled, the following colloquy-occurred :

“THE CLERK: * * * Herbert Wilson, Junior, is the verdict I have just read your verdict ?
“HERBERT WILSON, JR.: No.
“THE COURT: Stop right there. You members of the jury know that this verdict must be unanimous before it is received. You are Mr. Herbert Wilson, Junior?
“HERBERT WILSON, JR.: Yes.
“THE COURT: Mr. Wilson, in the proceedings in this case you heard the foreman agree that you all agreed upon the guilt of the defendant; do you agree upon that ?
“HERBERT WILSON, JR.: Yes, sir.
“THE COURT: And do you agree, Mr. Wilson, in your verdict that the defendant is guilty of manslaughter; do you agree to that ?
“HERBERT WILSON, JR.: Yes, sir.
“THE COURT: Then what is it that you object to, Mr. Wilson? Why do you say it is not your verdict ?
“HERBERT WILSON, JR.: Because I agree on the term and fine which we have one — you said you could do that but none of the rest of them — it was 6 to 6 at one time that they—
“THE COURT: Wait just a moment. At this stage, I have no right to inquire into the jury problems. In other words, as a juror you agree that the defendant is guilty of manslaughter?
“HERBERT WILSON, JR.: Yes.
“THE COURT: But you can’t agree with the other 11 jurors insofar as the punishment is concerned; is that right ?
“HERBERT WILSON, JR.: And they can’t agree either. They can’t agree on the punishment.
“THE COURT: Isn’t that what they say here: WE further find that we are unable to assess the punishment.’
“HERBERT WILSON, JR.: Yes, sir.
“THE COURT: So isn’t it correct then that you can’t agree upon the punishment and the other 11 jurors can’t agree upon the punishment ?
“HERBERT WILSON, JR.: I can agree upon it.
“THE COURT: Well, the others can’t agree with you on the punishment?
“HERBERT WILSON, JR.: Right.
“THE COURT: But, Mr. Wilson, there is no question is there that once you agree upon the guilt of the charge of manslaughter; isn’t that right ?
“HERBERT WILSON, JR.: Yes.
“THE COURT: All right. You may be seated. You may finish the polling of the jury.”

This exchange between judge and juror does not show judicial coercion but only the judge’s proper attempt to clarify Mr. Wilson’s confusion. See Williams v. United States, 136 U.S.App.D.C 158, 419 F.2d 740, 744-746[5, 6, 7] (banc 1969). Questioning a juror in open court as to his decision need not be “inherently” coercive as defendant maintains; a distinction must be drawn between questioning a juror to alleviate some element of confusion and an attempt to compel a juror to change his or her vote or to coerce a unanimous verdict. Amos v. United States, 496 F.2d 1269, 1273 [3] (8th Cir. 1974); United States v. Edwards, 469 F.2d 1362, 1367[7] (5th Cir. 1972); Williams v. United States, supra at 746[6, 7].

Nor can we find a violation of Rule 27.01(e), V.A.M.R., which requires the jury to be discharged or retired for further deliberation when the polling shows a lack of unanimous consent. Although we have found no Missouri case dealing precisely with the issue before us, Rule 31(d) of the Federal Rules of Criminal Procedure is substantively the same and has been interpreted as granting the trial judge discretion in assessing the impact of a dissenting vote. Amos v. United States, supra at 1272[1]. In evaluating the polling procedure of the trial court, we must give deference to the views of the trial judge who was present at the scene on whether the juror’s ultimate acquiescence in the verdict was free from pressure from the court. Amos v. United States, supra at 1273 [4].

The practice in this state for a trial judge to inquire of the jury how they stand numerically, without indicating what party or result they favor, to ascertain whether there is a reasonable probability of agreement on a verdict has been approved. In such instance, the inquiry on appeal is whether from what was said and done at the time there was any indication of coercion by the court exerted on members of the jury to influence their verdict. State v. Morris, 476 S.W.2d 485, 489 [4] (Mo.1971); State v. Baker, 293 S.W.2d 900, 905 [4] (Mo.1956).

Here, this was not an instance of court interrogation directed to force an open court decision where a juror expressed reservation, or an attempt by the court to achieve unanimity, which have correctly been disapproved.' See e. g. United States v. Sexton, 456 F.2d 961 (5th Cir. 1972); Jones v. United States, 273 A. 2d 842 (D.C.App.1971); Matthews v. United States, 252 A.2d 505 (D.C.App. 1969); Bruce v. Chestnut Farms-Chevy Chase Dairy, 75 U.S.App.D.C. 192, 126 F. 2d 224 (1942). Instead the evidence indicates the judge knew, prior to the polling, the jurors were unanimous as to the guilt issue and that a “technicality” as to the verdict, stating the guilt but unable to reach a punishment, remained in one juror’s mind. Where uncertainty of a juror results from confusion rather than dissent, the trial judge may question him to obtain clarity. Simons v. Federal Bar Building Corporation, 275 A.2d 545, 554[11] (D.C. App.1971); Williams v. United States, supra at 746 [5, 6, 7]. Only when it is clear the verdict of one juror differs from the others, has the conduct of the trial judge been held improper. Simons v. Federal Bar Building Corporation, supra at 554. The circumstances were not such in this case. Mr. Wilson was in total agreement on defendant’s guilt but was confused as to the requisite amount of disagreement needed among the jurors to return a verdict stating they could not agree upon punishment. Defendant, therefore, was not denied his right to a unanimous verdict derived from private deliberation.

No purpose would have been served if the judge had retired the jury to deliberate once more, as defendant argues would have been the proper conduct under Rule 27.-01(e). The jury had been sent back twice before with the same dilemma and could not resolve it. The judge did not invade the province of the jury by clearing up the confusion of one juror who assented to the jury’s verdict of guilt but disagreed as to punishment.

Judgment affirmed.

DOWD and RENDLEN, JJ., concur.

      . Instruction No. 6: “You are further instructed that under the laws of this State the Jury, after hearing the evidence and the instructions of the Court, should retire and decide upon the guilt or innocence of the defendant in this case; and if the defendant is found guilty by you, to assess his punishment in accordance with the other instructions of the Court. If, however, after due deliberation, you have been able to and do agree upon the guilt of the defendant but you are unable to agree upon the punishment to be assessed in this ease for such guilt, you may return into court a verdict which states that you have agreed upon the guilt of the defendant but are unable to agree upon the punishment for such guilt, and, in that event, the Court may assess the punishment.”

      . Rule 27.01(e) provides: “When a verdict is returned and before it is recorded, the jury shall be polled at the request of any party or upon the court’s own motion. If at the conclusion of the poll all of the jurors do not concur, the jury may be directed to retire for further deliberations or may be discharged by the court.”

      . Rule 31(d) of Federal Rules of Criminal Procedure provides: “When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.”


author: HOGAN, Judge.

text:
    STATE of Missouri, Respondent, v. Clifford GARDNER, Appellant.
    No. 9531.
    Missouri Court of Appeals, Springfield District.
    April 10, 1975.
    John B. Newberry, Springfield, for appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
   HOGAN, Judge.

Appeal is taken from a judgment of conviction arising from violation of § 559.190, RSMo 1969, V.A.M.S. Defendant was found guilty of felonious assault with intent to do great bodily harm, and his punishment was assessed at a fine of $1,000 and imprisonment in the county jail for a period of six months. In essence, it is urged on appeal that: 1) the evidence does not support a conviction of the charge of felonious assault because defendant did not use force likely to cause great bodily harm; 2) that the trial court erred in refusing to admit a cassette tape offered to impeach one of the State’s witnesses; 3) that the trial court erred in permitting the State to amend the information after the close of its case-in-chief, and 4) that the trial court erroneously permitted the State to introduce evidence of threats made by the defendant after commission of the crime on trial.

Upon review of the record, we are satisfied there is no merit to the claims here presented. Detailed consideration of every point made is unnecessary, but two of defendant’s claims of error should be briefly discussed. The first of these is defendant’s contention that the trial court erred in permitting the State to amend the information after it had presented its case-in-chief, supplemented by his argument that he was prejudiced because the amendment operated to charge a new and different offense in violation of Rule 24.02, V.A.M.R.

At the outset, we observe that Rule 24.02 permits amendment of an information “at any time before verdict” and defendant’s argument that he was in some way deprived of a “right to know the nature of the charge against him” because the amendment was untimely was implicitly ruled and decided against defendant in State v. Collins, 383 S.W.2d 747, 749-750 [3] (Mo.1964). Defendant’s contention that the amendment operated to charge an “additional and different offense” is similarly without merit. The information as originally filed charged that defendant “on or about the 26th day of June did then and there wilfully, unlawfully and feloniously make an assault upon one Larry Allen Lockmiller, with his the said Clifford Gardner’s fists, and knees with force likely to do great bodily harm to the said Larry Allen Lockmiller”. In substance, the information alleges an assault and the means used in much the same sequence as the information discussed in State v. Gillespie, 336 S.W.2d 677, 680 (Mo.1960), except that the allegation of malice is omitted, thereby making it clear that the State was attempting to charge felonious assault without malice under § 559.190, RSMo 1969, V.A.M.S. The State was permitted to add the words “and with the intent” by interlineation. The intent to kill or do great bodily harm is an essential element of the offense proscribed by § 559.190, and must be alleged. State v. Cooper, 358 Mo. 269, 271-272, 214 S.W.2d 19, 21 [5] (Mo.1948); State v. Brown, 267 S.W. 871, 872-873 [3] (Mo.1924). The effect of the amendment was merely to charge correctly and sufficiently the offense attempted to be charged in the original information and did not operate to prejudice the substantial rights of the defendant. Johnson v. State, 485 S.W.2d 73, 75 [1] (Mo.1972).

Defendant’s basic complaint, which has been argued with great candor and directness, is that the defendant simply gave Mr. Lockmiller a thrashing and therefore should have been convicted only of common assault. The evidence shows that the defendant struck Mr. Lockmiller with his fists, knocking him to the ground. Defendant then held Mr. Lockmiller on the pavement, kicked or hit Mr. Lockmiller in the groin, and pounded Mr. Lockmiller’s head against the pavement. It was necessary for Mr. Lockmiller to have several stitches taken to close the head wound thereby inflicted. An assault with fists may be a force likely to produce death or great bodily harm, State v. Selle, 367 S.W.2d 522, 527 [8] (Mo.1963), an aggravated assault with the fists may constitute a crime even under the malicious assault section, § 559.180, State v. Gillespie, supra, 336 S.W.2d at 680-681 [1-4], and the assertion that the evidence does not support the judgment of conviction is wholly without merit. State v. Himmelmann, 399 S.W.2d 58, 60 [1] (Mo. 1966); State v. Townsel, 506 S.W.2d 59 [2] (Mo.App.1974).

Accordingly, the judgment is affirmed.

All of the Judges concur.


author: PER CURIAM:

text:
    Millicent L. DORS, Plaintiff-Appellant, v. William J. WULFF et al., Defendants-Respondents.
    No. 9723.
    Missouri Court of Appeals, Springfield District.
    April 10, 1975.
    Gary Eldredge, Eldredge & Sterling, Kansas City (John W. Newhart, Newhart & Newhart, Savannah, on brief), for plaintiff-appellant.
    William E. Brandecker, Columbia, P. Pierre Dominique, Jefferson City, for defendants-respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   PER CURIAM:

By deed executed September 28, 1970, plaintiff (as sole grantor) conveyed eleven lots to defendants. On the same day, plaintiff and one Denton et uxor executed a deed granting defendants certain roadway easements. Thereafter on January 15, 1973, plaintiff filed this suit against defendants to set aside the two deeds because of alleged fraud and lack of consideration. Denton and wife were not included as parties. The court nisi entered judgment for defendants January 25, 1974, and overruled plaintiff’s timely motion for new trial and for order to set aside the judgment on April 12, 1974. Six days later plaintiff filed notice of appeal “from the judgment entered ... on the 12th day of April, 1974.”

“The right of appeal shall be as provided by law” (Rule 81.01, V.A.M.R.), but § 512.020 RSMo 1969, V.A.M.S., does not provide for an appeal from an order overruling a motion for new trial. Plaintiff should have appealed from the judgment entered January 25, 1974, not from the nonappealable order made April 12, 1974. Mills v. Berry, 395 S.W.2d 228, 231 [8] (Mo.App.1965). However, as we attribute to plaintiff a good faith effort to appeal from the judgment, her notice of appeal shall be so treated. World Franchisers, Inc. v. Birk, 456 S.W.2d 606, 607 (Mo.App.1970).

Our next consideration with this appeal is defendants’ motion to dismiss it for plaintiff’s failure to comply with Rule 84.04 in preparation of her brief. Defendants say plaintiff’s brief, contrary to Rule 84.04(c), does not contain “a fair and concise statement of the facts relevant to the questions presented for determination without argument” nor “a proper statement of points relied on” [mislabeled “Points and Authorities”], as required by Rule 84.04(d), because that section of the brief wholly fails to show “what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” We note, sua sponte, that plaintiff sorely neglected Rule 84.04(h) which instructs: “All statements of fact and argument shall have specific page references to the transcript on appeal.”

The “Statement of Facts” is principally devoted to the time, place, signing and recording of the various instruments involved, and to reciting the dates various pleadings, judgments and orders were filed and entered. Restricted to a reading of the statement of facts in plaintiff’s brief, no one could gain an insight into the evi-dentiary .facts apropos of the issues, whatever they might be. This portion of the brief contains only eight references to the transcript; six of these refer to the location of pleadings, judgments, orders and the notice of appeal, while one, purporting to locate a statement of fact, directs the peruser to a petition allegation that was denied by the answer and escaped existence when it was not proved. In the argument part of plaintiff’s brief she scatters a scant seven references to transcript pages. The provisions of Rule 84.04(c) and (h) were intended to afford a quick, accurate and complete understanding of the facts and issues in the case, and a ready directory to the transcript on appeal where the testimony and evidence relative thereto can be found. Geiler v. Boyer, 483 S.W.2d 773, 774[1, 2] [3] (Mo.App.1972). Plaintiff’s brief in the areas just noted is not in substantial compliance with the rules.

In plaintiff’s brief the lone point is that the court erred in its judgment because “the evidence required a cancellation of the instruments enumerated on the grounds of lack of consideration authorized by Appellant and fraud; and for the further reasons of Appellant’s advanced age, physical infirmities and circumstances surrounding the transaction.” Merely asserting what alleged errors are without stating “why” they are errors neither satisfies Rule 84.04(d) nor preserves anything for review. Chambers v. Kansas City, 446 S.W.2d 833, 841 [14] (Mo.1969); Freshour v. Schuerenberg, 495 S.W.2d 116, 118 (Mo.App.1973). The requirements of Rule 84.04(d) are mandatory [M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470 [1] (Mo.App.1974)] and are just as applicable to appellate review of court-tried cases as in the other kind. Boyd v. Boyd, 459 S.W.2d 8, 12[9] (Mo.App.1970). “Why” the evidence may have required cancellation of any instrument for lack of consideration and fraud is left for us to guess. “Why” plaintiff’s advanced years (a purely relative term) had any effect on the issues is relegated to speculation. How plaintiff’s unspecified and unrelated physical infirmitives or the undefined circumstances surrounding the transaction were enmeshed with any error the trial court may have committed is left for us to ponder. The Court of Appeals is not obliged to seine the argument portion of an appellant’s brief nor search the transcript on appeal in an effort to ascertain the meaning of a point relied on which amounts to nothing more than an abstract assertion. In re Estate of Barks, 488 S. W.2d 928, 930[5] (Mo.App.1972). When points on appeal are not recognizable from the appellant’s brief, the court is unwilling to speculate. Butterbaugh v. Public Water Supply Dist. No. 12, 512 S.W.2d 445, 447[6] (Mo.App.1974).

To quote Ward v. Johnson, 480 S. W.2d 104, 107 (Mo.App.1972), the “Rules of Civil Procedure are the result of decades of experience, refinement, review and simplification, calculated to promote and speed the processes of justice. There are valid reasons for each of them. They are calculated to serve the interests of justice and thus of all our citizens. They should and must be substantially followed and not disregarded. The courts in the past have meticulously pointed up the reasons for each rule, laid down simple examples and guidelines, and indulged in generous forgiveness and excuse for deviation. But modern realities no longer permit a disregard of these standards by either the bench or the bar.” Although we conclude that because of plaintiff’s failure to comply with Rule 84.04 the defendants’ motion to dismiss the appeal should and will be sustained, we have gratuitously conned the briefs, the transcript on appeal, the exhibits, and the citations of authority without detecting any reason why the trial court did not reach the proper result in the cause.

The appeal is dismissed.

All concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Willie Lee WILLIAMS, Appellant.
    No. 35713.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 8, 1975.

      John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit. Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for respondent.
    Charles D. Kitchin, Public Defender, Michael C. Horn, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Defendant was tried and convicted of murdering Michael Johnson and robbing Johnson’s wife, Dorothy. The trial court sentenced defendant to consecutive terms of life imprisonment and twenty-five years. We affirm.

Murder was submitted on two theories: felony-murder and first-degree murder in common form. Defendant concedes he did not challenge either submission below. He now seeks reversal under the plain error rule, which requires that we determine submitting the instructions caused a “manifest injustice.” Rule 27.20(c), V.A.M.R. We cannot so find.

The State’s evidence showed the John-sons and their children were at home when defendant and Grover McKinney entered their house. While Mrs. Johnson stood in the bedroom with her two children, she saw McKinney standing near the front door holding her husband by his collar. She heard them argue but could not understand the words. Defendant entered the bedroom armed with an open knife, and Mrs. Johnson then tried unsuccessfully to get a shotgun from under her bed. Defendant grabbed the shotgun himself and demanded money. Mrs. Johnson handed him a coin purse containing forty dollars in change. When she refused defendant’s demands for more money, he held the open knife on her three-year-old daughter and asked, “You love your children, don’t you?” Mrs. Johnson then gave defendant four hundred dollars.

At about this time, Mrs. Johnson heard two shots from the front room. After the second shot, McKinney entered the bedroom with a handgun and told defendant to grab jewelry from the dresser and “come on.” McKinney called to defendant several times, after which defendant took a pair of sunglasses from the dresser. The two men then ran out the front door. Mr. Johnson died from gunshot wounds.

On appeal, defendant first complains the felony-murder submission was unwarranted, since the evidence did not show he was acting in concert with McKinney when the latter fired the fatal shots into Michael Johnson. We disagree. When two persons commit a crime in concert, each person, whether actually or constructively present, is guilty as principal of crimes the other commits in pursuance of a common purpose or as a natural and probable consequence thereof. State v. Paxton, 453 S.W.2d 923[1,2] (Mo.1970). The evidence showed defendant and McKinney came to the Johnson home together, that McKinney argued with and shot Michael Johnson while defendant was robbing Mrs. Johnson, that McKinney urged defendant to steal items from the dresser, that defendant stole a pair of glasses therefrom, and that the two men fled together. The jury could have found the murder occurred while defendant and McKinney were acting jointly with the common intent to rob Mrs. Johnson, and the jury was therefore properly instructed on felony-murder.

Defendant next contends the evidence did not support the first-degree murder instruction. The point presents nothing for review. Defendant did not object to the instruction at trial or in his motion for new trial, as required by Rule 70.02 (made applicable to criminal trials by Rule 28.01). Nor does defendant’s brief set out the challenged instruction as required by Rule 84.04(e). Nor was there “plain error” since the evidence failed to show a resultant “manifest injustice” from the first-degree murder submission: “All persons who act together with a common intent and purpose in the commission of a crime are equally guilty even though they are not personally present at the commission of the offense . . . ” State v. Siekermann, 367 S.W.2d 643[1] (Mo.1963).

Defendant also contends the trial court erred in denying his motion to suppress Mrs. Johnson’s in-court identification testimony. Before trial, police showed Mrs. Johnson a single photograph of defendant and permitted her to have a one-to-one view of defendant after his arrest. Evidence was that defendant had been Mrs. Johnson’s schoolmate for several years. She saw him frequently for six years after leaving school, although she had not seen him for five years before the robbery. During the robbery Mrs. Johnson observed defendant closely for over ten minutes, and because she recognized him as a former schoolmate she promptly reported to police that it was defendant who had robbed her. The police showed Mrs. Johnson the photograph and permitted her to view defendant in order to verify her previous identification.

Even if the pre-trial procedures had been defective, the trial court did not err in refusing to suppress Mrs. Johnson’s in-court identification testimony, since her identification had a basis independent of the questioned pre-trial identifications. State v. Ross, 502 S.W.2d 241 [2] (Mo.1973), State v. Parker, 458 S.W.2d 241 [3, 4] (Mo.1970). In view of Mrs. Johnson’s long acquaintance with defendant, her prolonged close-range observation of him while he was robbing her, and her prompt report to police that it was defendant who had robbed her, the pre-trial identifications were not “so impermissively suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” State v. Reeder, 436 S.W.2d 629[2] (Mo.1969). And see State v. Garrett, 518 S.W.2d 97[2, 3] (Mo.App.1975), upholding the post-arrest showing the prosecutrix a single photograph of defendant when he was previously well-known to her.

Defendant finally contends the trial court committed a plain error in admitting corroborative testimony. (Defendant did not object to this testimony at trial or in his post-trial motion.)

On direct examination, Mrs. Johnson testified her identification of defendant was bolstered by the fact they had attended grade school together. After Mrs. Johnson was vigorously cross examined on this point, the State presented two witnesses who testified defendant had in fact attended that grade school. Defendant asks us to rule the trial court committed “plain error” in allowing what defendant labels “improper corroborative testimony.” But the testimony of the two witnesses was merely cumulative. The alleged error in its admission was harmless. State v. Gaines, 261 S.W.2d 119[12] (Mo.1953). In any event, it caused no “manifest injustice” or “miscarriage of justice.”

Finding no reversible error the judgment is affirmed.

KELLY and STEWART, JJ., concur.


text:
    CITY OF FLORISSANT, Plaintiff-Appellant, v. ELLER OUTDOOR ADVERTISING COMPANY OF ST. LOUIS, Defendant-Respondent.
    No. 35855.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 15, 1975.

      V. Jack Muehlenkamp, St. Louis, for plaintiff-appellant.
    Robert C. Jones, St. Louis, for defendant-respondent.
   NORWIN D. HOUSER, Special Judge.

City of Florissant brought suit in its municipal court charging Eller Outdoor Advertising Company with violating its newly enacted amendment to its municipal code by failing to obtain a 1973 business license for the maintenance of billboards located within the city limits. Found guilty and fined $25 in municipal court, Eller appealed to the circuit court. Following trial to the court without a jury defendant was discharged and judgment rendered in its favor. The city has appealed.

The amended ordinance requires the payment of an annual license fee of $100 for each billboard within the city limits, on a flat fee basis, without any provision for inspection or regulation of billboards. (Prior to the amendment the fee was $50 per billboard.) Eller, which maintained 3 billboards within the city limits, failed to pay the $300 required by the ordinance for the year 1973.

In circuit court Eller took the position that the cost of licensing must bear a reasonable ratio to the cost of inspection and regulating, otherwise the ordinance is void; introduced evidence that the city does not undertake to regulate or inspect the billboards, or require any reports from Eller with respect to its billboards or contact El-ler in any way with respect to the billboards, except to send a bill for the license fee; argued that raising the annual charge from $50 to $100 per billboard unconstitutionally deprives Eller of its property without due process of law and is unreasonable, arbitrary, capricious and oppressive, since the charge bears no reasonable ratio to the cost of inspection and regulation.

The question before this Court is one of construction, not constitutionality. The constitutional question, not having been raised at the earliest opportunity (in the municipal court), is not before us.

A city, acting under its police powers, may provide for the inspection and regulation of businesses and occupations and levy a license tax for the purpose of defraying the necessary costs and expenses involved. In such case, as Eller points out, the cost of licensing must bear a reasonable ratio to the cost of inspection and regulation. Eller’s contention (that it cannot be prosecuted under this ordinance, as amended, because the $100 annual license fee is not related to the cost of inspection and regulation) wholly ignores the rule that a city, acting in the exercise of its taxing powers, under charter or statute, may levy a license tax without any provision for inspection or regulation, solely for the purpose of raising revenue. Thunder Oil Co. v. City of Sunset Hills, 349 S.W.2d 82 (Mo. banc 1961); Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700, 702 (banc 1924). Florissant imposed this license tax under the latter rule, in the exercise of its taxing powers. The ordinance requires payment of a $100 fee per billboard per year, without any requirement of the owner or operator other than payment of the fee and with no provision for inspection or regulation by city authorities. Payment of the fee gives the right to maintain the billboard, without any further condition. The only purpose served by the imposition of this fee is the raising of revenue. The exaction is a tax properly imposed under the taxing powers. It is not a regulatory measure passed in the exercise of the police power. Moots v. City of Trenton, 358 Mo. 273, 214 S.W.2d 31, 34[8-10] (1948). “We are not impressed with the argument that this ordinance does not contemplate any real regulation or inspection. As we have already pointed out, [license] taxes may be levied for regulation, or revenue, or both.” Thunder Oil Co. v. City of Sunset Hills, supra, 349 S.W.2d l. c. 88.

License fees for revenue purposes must be reasonable, but such a fee fixed by ordinance is prima facie reasonable. Before the courts will interfere and declare a license tax unreasonable a flagrant case of excessive or oppressive abuse of power on the part of the city authorities in levying the license tax must be established. Eller adduced no extrinsic evidence demonstrating any such abuse of power. Unreasonableness in this respect does not appear on the face of the ordinance. 508 Chestnut, Inc. v. City of St. Louis, 389 S.W.2d 823, 832[21-24] (Mo.1965).

The circuit court erred entering judgment for defendant. The judgment is reversed and the cause remanded to the circuit court for the entry of judgment finding Eller guilty and for the assessment of punishment under the provisions of the ordinance.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: McMillian, judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Earl CLARK, Defendant-Appellant.
    No. 35835.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 15, 1975.

      David M. Adams, Rachel Eidelman, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMillian, judge.

Defendant appeals from a judgment of conviction entered by the Circuit Court for Criminal Causes of St. Louis City, Missouri, on a jury verdict finding him guilty of two counts of robbery in the first degree by means of a deadly and dangerous weapon, §§ 560.120 and 560.135, RSMo 1969, V.A.M.S. Pursuant to § 556.280(1), RSMo 1969, V.A.M.S., the court sentenced defendant to serve consecutive sentences of fifteen years in the custody of the Department of Corrections.

Since the sufficiency of the evidence is not contested, we give only a brief summary of the facts. On 23 January 1973, at the Red Top Tavern, in St. Louis, Mr. Michael Demsko, the bartender, saw defendant holding a knife to the throat of a customer, Mr. Hall, and demanding his watch and money. Thereafter, defendant also took another customer’s (Mr. Wilhelm) watch, wallet, lighter, diamond ring and $349 in currency. During the same period, defendant’s companion removed the money from the cash register and upon defendant’s direction took the bartender’s wallet and filled two bags with bottles of whiskey.

Mrs. Dorothy Burns, who operates the tavern, heard the rattling of bottles from her living quarters above the tavern. From her window she saw two men leaving the tavern. Both men glanced up, proceeded north, and then ran up the alley between Rutger and Park Streets.

Several days after the robbery, Mrs. Burns, Mr. Demsko and Mr. Wilhelm identified defendant in a lineup at the police station. Defendant offered no evidence on his own behalf.

On appeal, defendant raises three points. His first allegation of error is that the court erroneously sustained an objection to a question asked by his counsel of the witnesses at the hearing on the motion to suppress. Although a motion to suppress was filed, the record shows neither the question asked nor the prosecutor’s objection. Moreover, the record indicates that defendant specifically advised the court reporter that it would be unnecessary to include the testimony adduced at the motion to suppress identification in the transcript on appeal.

The general rule is that the burden of presenting a record of the proceeding to the appellate court is on the appealing party, State v. Quinn, 337 S.W.2d 84, 86 (Mo.1960). The appellant must bring the reviewing court a transcript of the proceedings, including the evidence to show error, State v. Jackson, 477 S.W.2d 47, 51 (Mo.1972). See also Rules 81.12(b) and 81.14, V.A.M.R., made applicable to criminal cases by Rule 28.18, V.A.M.R. We hold that defendant has not met his burden, since he failed to bring forward the record showing the alleged error; therefore, there is nothing for this court to review. State v. Lowe, 365 S.W.2d 613 (Mo.1963). See also State v. Long, Cause No. 9709 (Springfield District) 12 March 1975.

During the course of Mr. Dem-sko’s examination, he testified that defendant took all the money except some change from the cash register. The court, over defendant’s objection, asked two questions of Mr. Demsko. One question was whether prior to the time the two men came in, was there any United States currency and coins in the cash register ? The other was, whether or not when they left was the cash register empty of this currency and coins? Defendant now claims this questioning of the court to be improper. We disagree. Neither question supports defendant’s claim that the trial judge, by these two inquiries, abandoned his position of neutrality and assumed the role of a prosecutor. In fact, defendant’s objection is frivolous. Clearly, a court has a right to ask clarifying questions to protect the record. Here, on his direct examination, Mr. Demsko failed to establish that the money and coins taken were United States currency and coins as charged in the indictment. And the court’s inquiries served only to develop more extensively what had already been developed by the witness’s prior testimony. One of the well-recognized powers of the judicial function is the right and duty of the trial judge to propound additional questions in order to develop the truth more fully and to clarify the testimony given, State v. Grant, 394 S.W.2d 285, 287 (Mo.1965). Uniformly, we have recognized the authority of the trial court to interrogate witnesses where the purpose of the question is to elucidate testimony previously given. State v. Cain, 485 S.W.2d 60, 62 (Mo.1972); State v. Tate, 468 S.W.2d 646 (Mo.1971); State v. Gibson, 502 S.W.2d 310 (Mo.1973). We find neither an abuse of discretion in the questioning nor any demonstrated hostility so as to impair the atmosphere of impartiality. See State v. Crockett, 419 S.W.2d 22, 27 (Mo.1967).

Defendant’s final assignment of error is that the court erred in overruling his objection to the prosecutor’s statement made in closing argument that police make an effort to try to match the individuals in the lineup. As we understand the import of defendant’s argument, he is claiming that the prosecutor abandoned his role as a prosecutor and became a witness. While defendant is correct that this exact statement is not supported by the evidence adduced at trial, however, we find the statement is supported in a general way by Mr. Wilhelm’s testimony that all the men in the lineup were black men and all were about the same height and age. In State v. Cromwell, 509 S.W.2d 144, 148 (Mo.App.1974), we noted that counsel may properly comment, during argument, on matters in evidence and on reasonable inferences to be drawn therefrom. We hold, under the circumstances of this case, the statement as made by the prosecutor was a fair, permissible and legitimate inference to be made from all the evidence presented at trial. Consequently, since the questions of the propriety of oral arguments are addressed to the discretion of the court, State v. Jewell, 473 S.W.2d 734, 741 (Mo.1971); State v. Spears, 505 S.W.2d 92, 94 (Mo.1974), we find no such abuse that would warrant our reversal. State v. Turnbough, 497 S.W.2d 856 (Mo.App.1973).

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joel Edward RICE, Defendant-Appellant.
    No. 35849.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 15, 1975.

      Alfred I. Harris, Samuel Raban, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from a judgment of conviction entered by the Circuit Court of the City of St. Louis, Missouri, on a jury verdict finding him guilty of murder, sec- . ond degree, § 559.030, RSMo 1969, V.A.M. S., and assessing his punishment at ten (10) years in the custody of the Department of Corrections.

For reversal the defendant has brought forward four claims of error: (1) failure of the state to make a submissible case; (2)admission of state’s exhibit without proper identification; (3) improper cross-examination of defendant’s wife and (4) failure to correct improper jury argument. For reasons hereinafter given, we affirm the judgment of conviction entered by the trial court.

First, we hold that defendant’s claims as to the insufficiency of the evidence is without merit for two reasons. In his brief, defendant makes the assertion that the court erred in failing to sustain his motion for judgment of acquittal at the close of the entire case. Rule 26.10, V.A. M.R., requires that a defendant make his motion for a judgment of acquittal at the Conclusion of the evidence on either side. Defendant, for some undisclosed reason, filed his motion for judgment of acquittal on 29 October 1973, twenty-seven days after the rendition of the jury verdict.

While we note that defendant’s motion was unseasonably filed, yet we hold that the question of the sufficiency of the evidence is not foreclosed if the question is raised in the motion for a new trial. State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335 (Mo. Banc 1956).

On 11 February 1975, in the case of State of Missouri v. Rice, Division Four of this court, 519 S.W.2d 573, Cause No. 35767 affirmed the conviction of Antonia Rice, defendant’s wife. The state proceeded on the theory that the two were accomplices even though the actual shooting was done by a third party. Thus, for a full, detailed narrative of the evidence we refer you to the 11 February 1975 opinion. Here it will suffice to say that the evidence in this case showed that immediately before the shooting both defendant and his wife told Chester Ward to shoot the deceased, and thereafter they all fled in defendant’s car. Thus, we hold that there was sufficient evidence to make a prima facie case because (1) accessories to a crime may be convicted in the same manner as principals, § 556.160, RSMo 1969, V.A.M.S., and (2) the evidence of defendant’s participation and flight was sufficient to support the conviction. See State v. Fletcher, 320 S.W.2d 476 (Mo.1959).

Our review of the record convinces us that each of the exhibits complained about were properly identified and admitted into evidence. Exhibits 6-8 consisted of spent shell casings and a spent pellet. Both were stored in evidence containers, properly marked and identified. The positive identification by the officer rendered proof of chain of custody unnecessary. State v. Strong, 484 S.W.2d 657 (Mo.1972) and State v. Coleman, 441 S.W.2d 46 (Mo.1969).

After the state offered Exhibits 13 through 21 (photographs) into evidence, the defendant’s counsel stated that he had no objections. Thereafter the court asked again whether or not counsel had any objections to the admission of the photographs. Counsel said, “Just general objections, Judge.” The court replied that the general objections were overruled and counsel said, “No questions.” And the court said, “Very well.” The records show neither any objection to the admission of the exhibits nor any inclusion of the issue into the motion for a new trial. For these reasons alone, we could overrule the contention now being urged. In any event, we hold where exhibits are offered into evidence and the opposing party makes no objection and there is no showing of prejudice, that there is no reversible error simply because the court failed to expressly say that the exhibits are admitted into evidence in compliance with the offer. We rule this point against defendant.

Defendant’s third complaint centers around what he contends to be improper cross-examination of his wife, Antonia Rice. On direct examination, in defendant’s case in chief, his counsel established not only that Antonia Rice was a prostitute but also that defendant had knowledge of the fact. On cross-examination, the prosecutor, without any objections, reaffirmed that defendant knew that his wife was a prostitute who worked the Fort Leonard Wood area; that the deceased, Michael Collor was contributing to her, and that on occasions defendant visited Antonia Rice at Fort Leonard Wood. Defendant denied, however, that any of his visits were to pick up the proceeds of her vocation or that he was her pimp. These last two inquiries prompted defendant’s counsel not only to object but also to request a mistrial for “ . . . trying to influence the jury and . . . [n]o evidence at all about that . . . .” A defendant who testifies in his own behalf may be cross-examined regarding any matter referred to in his direct examination and may be contradicted and impeached as any other witness, § 546.260, RSMo 1969, V.A.M.R., and State v. Wallace, 504 S.W.2d 67 (Mo.1973). Nor is the state confined to a categorical review of matters covered on direct examination but rather may cover all matters within the fair purview of the subject matter of the direct examination. See the discussion in State v. Scown, 312 S.W.2d 782 (Mo.1958). Moreover, the trial court enjoys wide discretion in the determination of the scope of cross-examination. State v. Winn, 324 S.W.2d 637 (Mo.1959). Here defendant brought up the subject of prostitution on his direct examination and the state was merely permitted to cross-examine him as to the details. So, we find no abuse of discretion or error in this regard.

In connection with the same claim of error defendant raises on appeal, that the inquiries as to his receipts of the proceeds from his wife’s vocation and whether or not he was her pimp, impermissibly and prejudicially injected other crimes for which he was not on trial. Our search of the record reveals that the objection made at the time of the question neither called the court’s attention to the present claim nor was the present claim of error contained in defendant’s motion for a new trial. Thus, the allegation now made has not been preserved for review because the objection was untimely and unspecific and the allegation was not included in the motion for a new trial. Rule 27.20(a), V.A. M.R.; State v. Simmons, 500 S.W.2d 325 (Mo.App.1973) and State v. Wallace, supra.

Defendant’s final contention that the court permitted unfair and prejudicial remarks of the state’s prosecutor during closing argument has not been preserved for our review. Three times the remark was made by the prosecutor, “[Tjhat’s him; shoot him.” At no time did defendant’s counsel object to the remarks. Nor did the motion for a new trial present, with particularity, the claim now being asserted. Rule 27.20(a).

Finding the judgment not clearly erroneous, the judgment is affirmed.

SIMEONE, P. J., and GUNN, J., concur.