text:
    Fred M. MAHLER et al., Appellants, v. CITY OF SEABROOK et al., Appellees.
    No. 1433.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 7, 1976.

      Price Daniel, Jr., Daniel, Morrison & Fielder, Liberty, for appellants.
    Bruce L. James, Burke Martin, Saeco-manno, Clegg, Martin & Kipple, Houston, for appellees.
   COULSON, Justice.

This is a suit for injunctive relief to enjoin Fred M. Mahler, and others from violating the City of Seabrook’s zoning ordinance. On July 9, 1970 the City of Sea-brook passed Ordinance No. 105 now amended as Ordinance No. 105b. This ordinance classifies the land here in question as being within an R-l Zoning District, Single-Family Detached Residential Zone. On August 22, 1975 Mahler acquired a 88.191 acre tract known as the “Bracewell Tract”. The Bracewell Tract is classified under the city’s zoning ordinance as within a Single-Family Detached Residential Zone. Mahler and others have used the land for the excavation of sand, top soil and fill. The trial court granted the City of Seabrook’s action and enjoined the defendants from violating the city’s zoning ordinance by using the Bracewell Tract as a sand pit. We affirm.

Mahler operated a sand pit business on separate tracts of land prior to the incorporation of the City of Seabrook. However, the Bracewell Tract was not acquired until 1975. The City of Seabrook filed suit seeking to enjoin Mahler and others from expanding their non-conforming use as sand pit operators to the newly acquired Brace-well Tract and one other tract on October 7, 1975. The defendants did not apply for a permit to operate a sand pit on either tract or seek a variance from the zoning ordinance. At the time of acquisition, the Bracewell Tract and the other tract did not contain any existing sand pits. At the time of trial, the other tract had been excavated and the issue as to the use of that tract was moot. Trial went forward only as to the Bracewell Tract.

Mahler and others have brought this appeal on five points of error. The primary issue is whether or not equitable estoppel will lie against the City of Seabrook and its enforcement of its zoning ordinance. In its findings of fact and conclusions of law the trial court stated that prior to the acquisition of the Bracewell Tract, the defendants had actual knowledge and notice that said tract was zoned for Single-Family Detached Residential use under the City’s zoning ordinance and that the City has had a policy of not ordering sand or other fill material from sand pits located within the corporate limits of the city. Appellants contend that the city used sand and other fill material in constructing city improvements and that it is now estopped to enforce the zoning ordinance because it accepted benefits from the sand pits (a use of the land contrary to its zoning classification).

A city may be estopped even when it is acting in its public capacity if it has received or accepted benefit from the transaction. City of San Angelo v. Deutsch, 126 Tex. 532, 91 S.W.2d 308, 311 (1936). However, Deutsch also states that the cases are not to be construed as holding that financial loss to an individual who relies upon the act of an official engaged in the performance of governmental duties is of itself sufficient to estop a city. In any case, the doctrine of equitable estoppel requires that the party relying on the estoppel show a detriment by reason of his reliance on the other party. Here, it is undisputed that Mahler and the others acquired the Bracewell Tract knowing it to be in violation of the City’s zoning ordinance. Even if we accept the argument that the City has benefitted by purchasing fill material from the Bracewell Tract, es-toppel will not lie against the City because Mahler did not rely to his detriment on the City’s actions. Furthermore, an estoppel against a municipality acting in its proprietary capacity will not be allowed to defeat a mandatory provision of a statute. 31 C.J.S. Estoppel § 141 (1964). See also Phillips v. City of Abilene, 195 S.W.2d 147, 150 (Tex.Civ.App.—Eastland 1946, writ ref’d). Here the City of Seabrook acted in a proprietary function when it accepted fill from the Bracewell Tract. This act cannot be used to estop the City in enforcing its zoning ordinance, a governmental function. Moreover, it was the City’s policy not to utilize fill material from any sand pit within the City’s limits and any use of fill from the Bracewell Tract was an unauthorized act by agents of the City. The trial court’s findings of fact and conclusions of law are based on evidence that support this reasoning.

By their second point of error appellants contend that the trial court erred in not disposing of this matter by applying the doctrine of res judicata. Appellants argue that prior suits between these parties govern the issues in the present suit. We need not go into the facts of these prior suits other than to say the prior suits involve different tracts of land., Those suits cannot be held under the doctrine of res judicata to have disposed of the issues as to the Brace-well Tract with which we are here concerned.

Appellants contend that the trial court erred in not holding the appellees guilty of laches. Appellants argue that because the City permitted non-conforming use on other tracts laches should be applied against the City as to the Bracewell Tract. We find no merit in this argument. The Bracewell Tract was acquired by Mahler on August 22, 1975. Suit was brought on October 7, 1975 by the City of Seabrook upon learning of the purchase of the Bracewell Tract. These facts do not support a claim of laches.

The appellants’ remaining points of error concern the zoning ordinance’s application to the Bracewell Tract. It is argued that the zoning ordinance does not control the use of the actual land but only uses being made on the land. This argument is without merit. The ordinance states,

In each district, no building, structure, land, premises or improvements shall be used except as permitted by this ordinance. .

(emphasis ours) Seabrook, Tex., Ordinance 105b, § 1.04. Clearly the City’s zoning ordinance speaks to the use of which the actual land may be made and the only use of which this land may be made according to the zoning ordinance is as a Single-Family Residential Zone.

Finally appellants contend that the zoning ordinance is arbitrary, confiscatory, discriminatory, oppressive and unreasonable as applied to the land in question. This argument stems from the facts that the City has an ordinance which allows residential dwellings to be built only on land which is 16 feet or more above sea level and that the Bracewell Tract is below this level. It may be that if applied literally to the Bracewell Tract, the zoning ordinance would result in an unconscionable effect because the land could not be used for family dwellings although that is the only use for which the land is zoned. However, appellants have not applied to the City for building permits on the Bracewell Tract. They have not applied for a variance from the zoning ordinance or sought administrative review. The question of the ordinances’ application to the land shall not be considered until all administrative proceedings have been exhausted.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    John R. BRODHEAD et al., Appellants, v. CITY OF FORNEY, Appellee.
    No. 5565.
    Court of Civil Appeals of Texas, Waco.
    July 8, 1976.
    Rehearing Denied July 29, 1976.

      H. P. Kucera, Dallas, for appellants.
    Robert L. Dillard, III, Saner, Jack, Sal-linger & Nichols, Dallas, for appellee.
   HALL, Justice.

John R. Brodhead and W. D. Wiser brought this suit to recover damages they allegedly suffered when the City of Forney breached an agreement to install water lines and sanitary sewer lines and do some street work in a subdivision developed by plaintiffs. The City defended on the ground, among others, that the contract is void because the “pay as you go” requirements set forth in the state constitution for payment of debts made by cities were not met when the contract was made. Trial was to a jury which, in answer to the single special issue submitted to it, set the plaintiffs’ damages at $161,314.00. Judgment was rendered that the plaintiffs take nothing. We affirm.

On March 30,1955, the City made a written contract with the plaintiffs that if they would, within nine months, purchase, subdivide, and dedicate a 50-acre tract which adjoined the City, and petition the City for annexation of the tract, the City would immediately thereafter lay water lines and sanitary sewer lines “sufficient to service the estimated houses to be constructed” in the subdivision, base the streets shown on the plat of the subdivision “with a good grade of gravel or clay” and pay for the work “out of funds which are and have been set aside [by the City] for such purposes.” On the same day the City passed an ordinance ratifying the contract. In its pertinent parts, the ordinance provides:

SECOND: The [City] Commission does hereby set aside a sum of money sufficient to comply with and carry out the obligations of the city under said contract and which action of the Commission shall be binding upon all successor Commissions governing said city until said contract is completed and the obligations thereof fully complied with;
THIRD: The Commission authorizes and empowers the Mayor to employ an engineer on behalf of the city who is competent to handle such matters and to take bids upon the actual construction of the laying of the sewer and water lines and the graveling or laying a clay base foundation suitable for the paving of the streets in said contract as soon as the dedication and annexation of said tract have been accomplished in accordance with the contract, and the Mayor shall have full power to contract and expend such sums of money necessary to complete and carry out the terms and obligations of said city under said contract;

The plaintiffs bought the property, platted it, subdivided it into lots and streets, petitioned for its annexation, and it was annexed by the City on October 3, 1955.

The City performed its work in installments. In 1956 it laid water and sewer lines and based streets to serve forty-four lots. In 1964, it did this work to serve an additional thirty-three lots. One hundred fourteen lots were then left without these services. In 1969, when called upon by the plaintiffs to service an additional forty lots, the City refused to perform. This lawsuit followed.

Article 11, §§ 5 and 7, Vernon’s Ann.Tex.Const., provides that no debt for any purpose shall ever be incurred in any manner by a city or county unless, at the same time, provision is made for levying and collecting a sufficient tax to pay the interest on the debt and provide a sinking fund of at least two per cent for payment of the debt. A plaintiff seeking to recover on a pecuniary obligation allegedly owed by a city or county must plead and prove either that these provisions were complied with or that the debt when made was one for current expenses legally payable out of available current revenues. City of Terrell v. Dissaint, 71 Tex. 770, 9 S.W. 593 (1888); McNeill v. City of Waco, 89 Tex. 83, 33 S.W. 322 (1895). The plaintiffs did not meet that burden here. In fact, the only evidence on the questions (excepting the statements in the ordinance and contract) shows that when the contract was made and the ordinance was passed the amount of money the City would be expected to spend under them was grossly uncertain; that the City had no funds on hand or currently due with which it could have performed the contract, and made no provision for levying and collecting a tax for this purpose; and that, contrary to the statements in the contract and ordinance, the City did not actually set aside any funds for meeting the contract.

The proof that the City had no money on hand to meet the terms of the contract and did not assess a tax for that purpose was made by the City through the testimony of its City Secretary and a former city commissioner. The plaintiffs objected to this proof on the ground that it was in violation of the parol evidence rule. Citing Colonial Trust Co. v. Hill County, 294 S.W. 516 (Tex.Com.App., 1927), and Colonial Trust Co. v. Hill County, 27 S.W.2d 144 (Tex.Com.App., 1930), the plaintiffs argue that absent pleadings by the City of fraud, accident, or mistake, this parol proof was inadmissible to vary the terms of the contract and the ordinance which recite that the City set aside sufficient funds to meet its obligations under the contract. We disagree. As we have said, it was the plaintiffs’ burden to show that the constitutional requirements were met or that the City intended to satisfy the contract in full from current revenues legally applicable to that purpose. The recitations in the ordinance and contract do not establish these facts as a matter of law. Paraphrasing a statement addressed by the court to a similar provision in a city contract in American Roads Machinery Co. v. City of Ballinger, 210 S.W. 265, 266 (Tex.Civ.App.—Austin, 1919, writ ref.): If the salutary constitutional safeguards in question could be circumvented by a mere statement in a contract or an ordinance creating a city debt that the City had set aside funds for payment of the debt, when in fact this was not done and funds were not available, this device would be often resorted to and the Constitution in effect nullified. This practice if permitted would be even more vicious where, as here, the obligation incurred by the City is for an uncertain amount extending over an indefinite term. T. & N.O.R.R. Co. v. Galveston County, 169 S.W.2d 713, 716 (Tex.Com.App., opinion adopted, 1943). For example, the proof here shows that the cost of laying water and sewer lines “has gone up tremendously in the last twenty years.”

The plaintiffs’ reliance on the Colonial Trust Co. cases is misplaced. There, the plaintiff pleaded and proved without contradiction that at the time the defendant County agreed to buy two tractors it ordered payment from particular county (road and bridge) funds and that current revenues were available for that purpose. Accordingly, the court held that the constitutional requirements in question were met when the contract was made and that the County’s later issuance of time warrants extending over several years for payment of the tractors did not render invalid the contract that was valid when made.

The judgment is affirmed.


author: CADENA, Justice.

text:
    GULF OIL CORPORATION, Appellant, v. Paul B. PREVOST et al., Appellees.
    No. 15491.
    Court of Civil Appeals of Texas, San Antonio.
    July 14, 1976.

      Jesse P. Luton, Jr., Joe M. Green, Jr., Morgan L. Copeland, Houston, A. W. Walker, Jr., Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellant.
    Mann, Castillon, Freed & Kazen, John E. Mann, Carlos Castillon, Laredo, for appel-lees.
   CADENA, Justice.

Defendant, Gulf Oil Corporation, appeals from an order of the district court denying its motion for summary judgment and granting summary judgment in favor of plaintiffs declaring a certain oil and gas lease terminated as to a portion of the leased premises because of defendant’s failure to commence drilling operations or pay delay rentals on such land on or before May 30, 1974.

Plaintiffs are (1) Paul B. Prevost, individually and as trustee for Marie Helen Pre-vost, Adriane Prevost, and Phillipe Prevost; (2) Paul E. Prevost; (3) Olga J. Prevost; and (4) Christelle Prevost de Riva Palacio.

The question to be decided is whether the timely commencement of drilling operations by an assignee on his geographical portion of land covered by an oil and gas lease excuses the payment of delay rentals by the owner of the mineral estate in the remaining geographical portions of the leased premises. We conclude that the question must be answered in the affirmative and, consequently, reverse the judgment of the trial court and here render judgment in favor of defendant.

On May 30, 1968, plaintiffs, as lessors, executed an oil and gas lease to James A. Mayo, lessee, covering 570.7 acres of land in Webb County. Part of the leased premises, consisting of 505.3 acres, lies west of U.S. Highway 83, while the remaining 65.4 acres, the land involved in this litigation, are located east of such highway. On October 7, 1968, the original lessee assigned all of his interest to defendant. On April 9, 1973, defendant, by means of a “farmout” agreement, assigned certain of its rights to the 505.3 acres lying west of the highway to Rameo, Inc. According to the agreement, Rameo was required to drill a well to a depth of 10,000 feet “or to production at a depth below 8,000 feet, whichever is the lesser,” on the 505.3-acre tract within a specified time. The agreement gave Rameo the right to take minerals down to, but not below, 100 feet beneath the depth of such first well. On July 5,1973, Rameo assigned its rights under the farmout agreement to Consolidated Oil & Gas, Inc. Defendant has not assigned its rights to the 65.4 acres lying east of the highway.

The lease is for a term of 10 years from May 30, 1968, “and as long thereafter as oil, gas or other minerals is [sic] produced from said land hereunder in paying quantities.” It is well settled that such language creates in the lessee a determinable fee simple estate in the minerals in place. Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290 (1923).

The lease contains a drill/rental clause, which is in the usual “unless” form and which reads as follows:

If operations for drilling are not commenced on said land on or before one year from this date [May 30, 1968], this lease shall then terminate as to both parties, unless on or before such anniversary date Lessee shall pay or tender to Lessor * * * the sum' of $570.70 (being $1.00 per acre), herein called rental, which shall cover the privilege of deferring commencement of drilling operations for a period of twelve (12) months. In like manner and upon like payments or tenders annually the commencement of drilling operations may be further deferred for successive periods of twelve (12) months each during the primary term.

The “assignment” clause of the lease provides:

The rights of either party hereunder may be assigned in whole or in part * * * but no change or division in ownership of the land, rentals or royalties, however accomplished, shall operate to enlarge the obligations or diminish the rights of Lessee. * * * In event of assignment of this lease as to a segregated portion of said land, the rentals payable hereunder shall be apportionable as between the several leasehold owners ratably according to the surface area of each, and default in rental payment by one shall not affect the rights of other leasehold owners hereunder.

The delay rentals were timely paid for the years 1969-1973, both inclusive. According to the terms of the lease, the lease thus remained in effect until May 30, 1974, on which date it would terminate unless drilling operations had been commenced “on said land” or the specified delay rental was paid.

In March 1974, Consolidated began drilling operations, under the farmout agreement which had been assigned to it, on the 505.3-acre tract lying west of the highway, and such drilling operations were in progress on May 30,1974, the date on which the next delay rental would be payable in the absence of commencement of drilling operations. The well was completed in June 1974, and is now producing gas in paying quantities.

Plaintiffs recognize that the lease remains in full force and effect as to the 505.3 acres on which the well is located, but claim that defendant’s failure to either commence drilling operations within the tract consisting of 65.4 acres or to pay $65.40 as its proportionate share of the total delay rental before May 30,1974, resulted in the expiration of the lease as to the 65.4 acres.

Assignment clauses such as that found in the lease before us are generally included in oil and gas leases in order to permit an assignee of only a geographical portion of the leased premises to continue the lease in effect as to his portion by paying his pro rata share of the rental, irrespective of the failure of the owners of other geographical portions of the premises to drill or pay rental. Such clauses make the interests of partial assignees of the lessee separate insofar as the payment of delay rental is concerned. But provisions of that type give no clues as to the effect of commencement of drilling operations on segregated portions of the leased premises following one or more partial assignments of the lessee’s interest.

It is clear that, in the absence of any assignment of any portion of the lessee’s interest, the commencement of drilling operations on any portion of the leased premises has the effect of continuing the lease in effect as to all of the leased premises without payment of delay rental. Thus, if defendant, without assigning any portion of its interest, had commenced drilling operations on the 505.3 acres, such operations would have kept the lease in effect as to the entire 570.7 acres without payment of rental. Tennant v. Matthews, 19 S.W.2d 1115 (Tex.Civ.App., Eastland 1929, writ ref’d).

There is no sound basis for applying a different rule where there has been a partial assignment of lessee’s interest. “On principle, where there has been a partial assignment, compliance with the drilling clause by a well on any part of the leased premises should relieve the owners of the other portions from the obligation [sic] to pay delay rental just as the lessee would have been released from that obligation [sic] as to the entire tract had he kept it intact.” Merrill, The Partial Assignee— Done In Oil, 20 Texas L.Rev. 298, 306 (1942).

In Wilson v. Texas Co., 147 Kan. 449, 76 P.2d 779, 782 (1938), the court, after commenting that the partial assignment should not effect an increase of lessor’s revenue, said:

The lease did not provide nor contemplate that in the event of an assignment of ■ one-half of the lease the lessors should be entitled to receive $160 rental [the total amount of the specified rental] from the lessee and an additional $80 rental [one-half of the delay rental] from the assign-ee. Nor did it provide or contemplate that lessors were to receive in addition to one well an extra rental payment . . Let us pursue the problem a step further. Assuming the 160-acre lease was divided into ten tracts of 16 acres each, and assignments of nine of such tracts were made, then on plaintiff’s theory even though the one required well was drilled by the lessee, the nine assignees would be required to drill nine additional wells in the first year or would be required to pay $144 in rentals. In our judgment such a result was not intended by the contract.

In Walker v. Lane, 233 S.W. 634 (Tex.Civ.App., Fort Worth 1921, writ ref’d), the lease embraced 1,602 acres. Lessee assigned his rights to 800 acres. The lease contained the “unless” form of drill/rental clause. As-signee timely commenced drilling operations on the 800 acres which had been assigned to him, but no such operations were commenced on the 802 acres retained by assignor, nor did assignor make any payment of rental. The court said (233 S.W. at 635):

Walker, the original lessee, had the right to procure the drilling of a well by some person other than himself, and the performance of the contract he obtained from Whiteside [his assignee] would have inured to his benefit in preserving the lease in full force and effect as to the 800 acres retained by him, .

Both reason and authority support the conclusion that the commencement of the well by defendant’s assignee on the 505.3-acre tract had the effect of continuing the lease in force not only as to such 505.3 acres but also as to the remaining 65.4 acres retained by defendant without payment of delay rental. Dacamara v. Binney, 146 S.W.2d 440, 441 (Tex.Civ.App., San Antonio 1940, writ dism’d); Pearson v. Black, 120 S.W.2d 1075, 1079 (Tex.Civ.App., Eastland 1938, no writ; Duke v. Stewart, 230 S.W. 485, 488 (Tex.Civ.App., Beaumont 1921, no writ); Sinclair Prairie Oil Co. v. Campbell, 164 F.2d 907 (5th Cir. 1947); Meacham v. Halley, 103 F.2d 967, 971 (5th Cir. 1939); Carrothers v. Stanolind Oil & Gas Co., 134 F.Supp. 191 (N.D.Tex.1955); 2 Williams and Meyers, Oil and Gas Law § 407.2 (1975); 3 Summers, The Law of Oil and Gas § 512 (Perm.Ed.1958); Junz, Oil and Gas § 3.54 (1964).

Plaintiffs assert that the authorities on which we rely involved not merely the commencement of drilling operations but also completion of, and production from, a well. This attempted distinction is unsound. In the first place, the “unless” clause refers to the commencement of drilling operations, not to the completion of a producing well. In the second place, the distinction can be accepted as controlling only if we accept the erroneous theory that the determinable fee simple created by the common Texas form of oil and gas lease does not “vest” in the lessee until production of minerals in paying quantities is obtained. This is contrary to established law in this State. Stephens v. Mid-Kansas Oil & Gas Co., supra. The production of oil or gas in paying quantities is a limitation of the estate created and not a condition precedent to the vesting of such estate. Texas Co. v. Daugherty, 107 Tex. 226, 176 S.W. 717 (1915). The conveyance creates a present defeasible title, not an estate to commence in the future.

Plaintiffs also insist that the “unless” clause is not a limitation of the estate conveyed but is a covenant running with the land. Plaintiffs concede that the “unless” clause “does not obligate the Lessee to either drill or to pay delay rentals.” This concession is fatal to plaintiff’s contention, unless we are prepared to accept the notion of a covenant which imposes no obligation on the covenantor. In any event, the “unless” clause uniformly has been held to be a limitation upon the estate granted and not a condition subsequent or covenant running with the land. W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27 (1929); Humble Oil & Refining Co. v. Davis, 296 S.W. 285 (Tex.Comm’n App.1927); Guerra v. Chancellor, 103 S.W.2d 775 (Tex.Civ.App., San Antonio 1987, writ ref’d).

The judgment of the trial court is reversed. Since the undisputed facts establish as a matter of law that the lease in question has not been terminated as to any portion of the leased premises, the trial court erred in denying defendant’s motion for summary judgment. Judgment is here rendered granting defendant’s motion for summary judgment and declaring that the lease remains in full force in effect as to the 65.4 acres involved in this litigation.


author: RENDLEN, Judge.

text:
    John Hilary DURHAM, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36146.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 12, 1975.
    Motion for Rehearing or Transfer to Supreme Court Denied Dec. 10, 1975.

      Wion, Burke & Boll, Bernhardt W. Klip-pel, Clayton, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Richard E. Vodra, Scott A. Raisher, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., J. Paul Allred, St. Louis, for respondent.
   RENDLEN, Judge.

Appeal from an order denying appellant’s Rule 27.26 motion to vacate judgment of conviction entered on a guilty verdict of statutory rape and to set aside the thirty-five year sentence imposed under the provisions of the Habitual Criminal Act, § 556.-280, RSMo 1959, V.A.M.S. Appellant contends: (1) he was subjected to double jeopardy; (2) he was denied effective assistance of counsel in that his lawyer was ignorant of the law controlling psychiatric examinations on the issue of mental competence and failed to request a second examination to determine appellant’s fitness for trial; and (3) the court improperly refused an eviden-tiary hearing to determine appellant’s competence to proceed with trial. We affirm the judgment of the trial court.

On January 23, 1964, an indictment was filed charging appellant with seven prior convictions and statutory rape. Trial was held in May, resulting in a declaration of mistrial, followed by a second attempt which ended in mistrial June 15.

Three months later appellant’s motion for mental examination was considered, sustained and appellant admitted for mental examination to Malcolm Bliss Mental Health Center in St. Louis. Appellant entered the Health Center September 29 and was under observation as to his mental condition until discharged October 21. A detailed seven-page psychiatric evaluation, received and considered by the trial court, included the following:

“ ‘We feel there is no mental disease or defect which would have made him unable to know or appreciate the nature, quality, or wrongfulness of his acts or would make him unable to conform his actions to the requirements of law.
We further feel there is presently no mental disease or defect which would make him unable to cooperate with counsel in his own defense. His insistence that he is not guilty of the crime for which he is charged ... is apparently associated with his refusal to follow his counsel’s recommendations and advice. However, we do not find evidence of mental disease or defect that would make him unable to cooperate with his counsel.’ ”

The third attempt at trial began November 16, resulting again in mistrial. The fourth, beginning January 5, 1965, concluded with a guilty verdict, judgment, thirty-five year sentence and affirmance on appeal to the Missouri Supreme Court. State v. Durham, 418 S.W.2d 23 (Mo.1967). Appellant had been assigned counsel at the inception of the criminal cause, but prior to the first trial retained private counsel, who represented him through the four trials and the original criminal appeal.

Appellant, pro se, filed his motion for post-conviction relief in 1968, followed by a supplemental motion, filed by court-appointed counsel. Under these pleadings the cause was heard and judgment entered denying movant relief. On appeal the cause was remanded for further proceedings relative to appellant’s claim of double jeopardy. Durham v. State, 473 S.W.2d 397 (Mo.1971). On September 27,1972, the circuit court, on further hearing, again denied appellant’s motion, including the claim of double jeopardy. The present appeal, filed in the Supreme Court of Missouri, was transferred here under the provisions of Art. V, § 3, Mo.Const.

Appellant first contends he was subjected to double jeopardy contrary to the fifth amendment of the U.S.Const., as applied to the states under the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Although Justice Stewart in a footnote to Ashe v. Swenson, 397 U.S. 436, 437, 90 S.Ct. 1189, 1191, 25 L.Ed.2d 469 (1970), stated that “there can be no doubt of the ‘retroac-tivity’ of the court’s decision in Benton v. Maryland,” the Missouri Supreme Court rejected retroactive application of Benton in Spidle v. State, 446 S.W.2d 793, 794[1] (Mo.1969). Anticipating the appeal would be heard by our Supreme Court, appellant asked that Spidle be reconsidered. This court has no authority to reconsider or overrule Spidle, Mo.Const., Art. V, § 2; MFA Mutual Ins. Co. v. Berry, 481 S.W.2d 513, 516[2] (Mo.App.1972); but, regardless of the applicability of Benton, appellant’s contention is without merit.

The state attempted to try appellant four times, bringing the case to a conclusion at the trial level only on the fourth attempt. On the first attempt, May 12, 1964, a mistrial was declared when the jury was unable to reach a verdict. On June 16, 1964, the second attempt resulted in mistrial at the request of appellant during presentation of the state’s ease. Appellant’s trial was undertaken the third time in November of that year, but before the selection of a jury, mistrial was declared because of a death in the family of the prosecuting witness. On the fourth attempt the trial was completed, verdict reached and judgment entered.

Appellant argues he was placed in jeopardy as a result of the first and third trials, making the fourth impermissible. Art. I, § 19, Mo.Const., provides in part:

“That no person shall be compelled to testify against himself in a criminal cause, nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury; but if the jury fail to render a verdict the court may, in its discretion, discharge the jury and commit or bail the prisoner for trial at the same or next term of court; . . .”

Appellant was not acquitted in any of the proceedings and the successive trials were not violative of our constitution’s double jeopardy clause nor that of the fifth amendment. Although Benton was denied retroactive application in this state by Spidle v. State, supra, there is no discernible difference in the application here between the fifth amendment guarantee against double jeopardy and that guaranteed under the law of Missouri. State v. Aguilar, 478 S.W.2d 351, 354[3] (Mo.1972). Neither affords appellant relief.

Termination of the first trial with a hung jury does not constitute acquittal, and declaration of a mistrial for failure of the jury to reach a verdict does not bar subsequent trials. Ward v. State, 451 S.W.2d 79, 81[4, 5] (Mo.1970). See Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).

Concerning .the third trial: “The general rule is clear: in a jury ease, jeopardy attaches when the jury is impaneled and sworn . . . This rule like most other rules, however, is not without important exceptions. Thus, even after the jury has been sworn, ‘a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.' ” United States v. Brown, 481 F.2d 1035, 1040[2] (8th Cir., 1973). The threshold issue in double jeopardy cases is whether jeopardy has in fact attached at any prior proceedings. In a jury trial jeopardy does not attach until the jury has been selected and sworn and declaration of mistrial prior thereto constitutes no prohibition to subsequent trial on the same issues. Murray v. State, 475 S.W.2d 67, 70[3] (Mo.1972); State v. Fields, 487 S.W.2d 560, 562[4] (Mo.1972). See Downum v. United States, supra. Since no jury was sworn, the mistrial during voir dire did not preclude a subsequent trial. Appellant’s contention of double jeopardy is without merit.

Appellant next urges the trial court erred in overruling his motion to set aside the judgment and sentence because (Point II) of ineffective assistance of counsel in violation of his rights under the sixth and fourteenth amendments of the United States Constitution and (Point III) because the trial court erred in failing to order sua sponte an evidentiary hearing to determine appellant’s competence to stand trial.

These issues were not raised in appellant’s pro se 27.26 motion nor the amended motion filed by counsel. It was counsel’s “duty to ascertain from the prisoner whether he has included all grounds known to the prisoner as a basis for attacking the judgment and sentence and to amend the motion to include any claims not already included.” Rule 27.26(h). Such points, not contained in the original or amended motion and appearing for the first time in appellant’s brief, are not preserved for appeal. Rule 27.26(c); Shubert v. State, 518 S.W.2d 326, 328[2] (Mo.App.1975).

Point II, in the form set forth in appellant’s brief, is defective for the further reason it fails to meet the mandate of Rule 84.04(d) that “points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . . .” See State v. Gantt, 504 S.W.2d 295, 297[1] (Mo.App.1973). “Points relied upon by any appellant (seeking reversal) should definitely isolate and formulate the precise issues to be reviewed, and if that function is observed at all, it should not be relegated to the argument portion of the brief.” State v. Freeman, 489 S.W.2d 749, 752[1] (Mo.App.1973). “The appellate courts of this State can no longer afford the luxury of searching the Argument section of appellants’ briefs for the purpose of discovering if sufficient particularity might be found therein to enable them to determine why the orders of judgments of a trial court are erroneous.” Griffin v. State, 513 S.W.2d 706, 708 (Mo.App.1974).

In an appropriate case, we may examine for plain error. This we have done in painstaking detail. Our study has taken us through the appellant’s statement and brief in the original appeal, appellant’s pro se brief and the brief of counsel in the second appeal, respondent’s original and supplemental briefs in the current appeal, the multi-volume transcript and the entire record of the criminal proceedings as well as the transcripts of the two appeals in these post-conviction proceedings. Finding no reversible error, we affirm the judgment of the trial court.

DOWD, P. J., and WEIER and CLEMENS, JJ., concur.

      . All references are to V.A.M.R. and RSMo 1969, V.A.M.S., unless otherwise indicated.


author: KELLY, Judge. SIMEONE, Presiding Judge GUNN, Judge

text:
    Mayo VOTAW et al., Appellants, v. Margaret M. SCHMITTGENS, Respondent.
    No. 36324.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 1, 1976.
    Motion for Rehearing or Transfer to Court En Banc or Transfer to Supreme Court Denied July 8, 1976.

      Hansen, Stierberger & Hartley, Union, for appellants.
    Kortenhof & Ely, Frank E. Strzelec, St. Louis, for respondent.
   KELLY, Judge.

This is an appeal from a judgment of dismissal entered by the St. Louis County Circuit Court following its order sustaining defendant-respondent’s Motion to Dismiss two counts of plaintiff-respondents’ petition seeking damages for both personal injuries and property damages arising out of an automobile collision occurring on June 22, 1968, on the ground that the claims were barred by the statutes of limitations applicable thereto. §§ 516.100 and 516.120, V.A. M.S. We reverse and remand.

On June 22,1968, Mayo Votaw was operating his motor vehicle in the vicinity of Highway 66 and Sturdy Drive in St. Louis County when it came into collision with another motor vehicle being operated by the defendant-respondent, hereinafter the defendant. Dorothy Votaw, his wife, and his minor son, David, then 15V2 years of age, were passengers in the Votaw automobile. As a result of this collision the Votaws allege in their petition that they sustained personal injuries and Mr. Votaw alleges his automobile was damaged. On May 16, 1973, the Votaws filed their petition in three counts in the Circuit Court of St. Louis County; Count I was Mr. Votaw’s claim, Count II was Mrs. Votaw’s claim, and Count III was filed by Mr. Votaw as next friend for his minor son, David. The petition recited that the address of the defendant was “8810 Manda, Crestwood, Missouri.” On May 17, 1973, summons was issued directed to the Sheriff of St. Louis County for service and on June 18, 1973, was returned “non est." On February 1, 1974, an alias summons was issued directed to the Sheriff of St. Charles County and personal service was obtained on the defendant on February 11,1974 and return on this alias summons was filed in the office of the Clerk of the St. Louis County Circuit Court on February 27,1974. This return of service contains the following:

“I hereby certify that I have served the within summons:
(1) by delivering on the 11th day of February, 1974, a copy of the summons and a copy of the petition to each of the within-named defendants, Margaret M. Schmittgens n/k/a Margaret M. Kuehler at 2940 Hummingbird, St. Charles Mo. at 6:45 P.M.
******
/s/ Robert A Koester Sheriff of St. Charles County, Missouri
by /s/ Grace Kuehler Deputy.”

On March 13, 1974, defendant, through counsel, filed a Motion to Dismiss Counts I and II of plaintiffs’ petition — the two counts wherein Mr. Votaw and Mrs. Votaw, respectively, sought damages — and an Answer to Count III of the petition — that Count brought by Mr. Votaw as next friend for and on behalf of his minor son, David. The ground stated in defendant’s Motion to Dismiss was lack of diligence on the part of Mr. and Mrs. Votaw in attempting to obtain service on the defendant because service was not accomplished until the statute of limitations had run and their claims were therefore barred. In due time this Motion was argued, taken as submitted and sustained. Plaintiffs filed a timely notice of appeal and in this court contend that the trial court erred in sustaining defendant’s Motion to Dismiss.

The only issue presented to this court is whether the trial court erred in dismissing Counts I and II of plaintiffs’ petition on the ground that it was barred by the statute of limitations, § 516.120 RSMo. 1969.

The parties to this appeal are in agreement on the law applicable to the issue in this case; where they disagree, is whether, under the circumstances the plaintiffs exercised due diligence to obtain service on the defendant, and thereby toll the limitations.

Section 516.120 RSMo. 1969, the limitations statute applicable to this case, requires that all such actions be commenced within five years of the date on which they accrue. This cause of action accrued on June 22, 1968, and was “commenced” on May 16, 1973, within the period of limitations. The filing of a petition with the court constitutes the “commencement of a civil action.” Rule 53.01. However, the filing of a petition with the court and the issuance of summons forthwith by the clerk of the court is but a conditional halting of the statute of limitations and unless the plaintiff thereafter exercises due diligence in obtaining service of process the statute continues to run. While Rule 54.01 requires that the clerk issue forthwith the required summons or other process upon the filing of the petition with the court, it is the responsibility of the plaintiff to request of the clerk the issuance of separate or additional summons. Whether a plaintiff has exercised due diligence must be decided on a case by case basis. Wooliver v. Schopp, 509 S.W.2d 216, 217[2] (Mo.App.1974). It is not possible to satisfactorily state any general standards by which it may be determined when and under what circumstances one’s lack of due diligence to proceed in the issuance of process may amount to a discontinuance of the action or destroy the effectiveness of a pending proceeding. Driscoll v. Konze, 322 S.W.2d 824, 829 (Mo.1959).

All of the cases cited by respondent show a lengthier period of lassitude by the plaintiff than we find present in this case; for that reason, and others, we find that they may be distinguished from the present case. Wooliver v. Schopp, supra, was a medical malpractice case governed by a two year statute of limitations. Suit was not commenced in Wooliver until September 15, 1967, and the cause of action accrued on September 24, 1965, and service was not had on the defendant until September 29, 1969, more than two years after the action was commenced. Tanner v. Presidents First Lady Spa, Inc., 345 F.Supp. 950 (E.D.Mo.1964) was a libel and slander action, likewise subject to a two year statute of limitations, § 516.140 RSMo. 1969, and based upon defamations which had occurred in March, 1968. The petition was filed on April 2,1971, but plaintiff there claimed the statute’ had been tolled by an action previously commenced in the District Court and his present claim was not barred. Applying the “due diligence” principle, the District Court pointed out that despite the fact that the original claim had been pending twenty-three months, personal service was never acquired over the two defendants in that case, who were also the named defendants in the current case, and constituted lack of due diligence in the prosecution of that suit. As an additional grounds, the court also said: l.c. 961: “Considerations of due diligence aside, the court also finds that the present action is barred under the rule of Mertens v. McMahon, supra (115 S.W.2d 180 (Mo.App.1938)). There was no valid process and personal jurisdiction was never acquired over Richard L. Minns or Presidents — First Lady Spa, Inc. The ‘court did not have jurisdiction and never did acquire jurisdiction over the defendant and was, therefore, never in a position to try that cause. That cause having been dismissed without the court ever having acquired jurisdiction, the legal situation is the same as though that suit was never filed.’ ”

The other two cases—Hennis v. Tucker, 447 S.W.2d 580 (Mo.App.1969) and Continental Electric Company v. Ebco, Inc., 375 S.W.2d 134 (Mo.1964)—were mechanic’s liens cases, where, because of the nature of the statutory actions and the clouds they cast upon title to realty the legislature has imposed strict procedural requisites which must be religiously obeyed. The court in Hennis v. Tucker held that a seven months and twelve days’ delay between the “non est” return of the original summons and the ordering of the alias summons, and a second period of dormancy of four months between the “non est” return of the alias summons and the ordering of service by publication which resulted in obtaining service on the defendant Tucker — a total of more than 11 months — constituted grounds for dismissal for the reason plaintiff did not prosecute his claim with due diligence. In Continental Electric Co., the cause of action was commenced on February 5, 1960, by the filing of the petition in the Circuit Court of Clay County and within six months of the filing of its lien statement. Summons was issued and service had on the owner of the buildings for which plaintiff had furnished materials. However, the summons for the sub-contractor, was sent to the Sheriff for Jackson County for service at an address in Kansas City, Missouri, on February 10, 1960. The Sheriff, unable to serve the defendant, notified plaintiff on the same day, February 10, 1960, of this fact and a “non est” return was made with the clerk on February 11,1960. The clerk likewise notified plaintiff that service was not had. No further process was issued until October 10, 1960, when, after a pre-trial conference on October 7,1960, plaintiff requested and had issued an alias summons which was served by the Sheriff of Jackson County on October 14, 1960, by serving the registered agent of the defendant. It was under these circumstances that the Supreme Court affirmed the judgment of the trial court sustaining the defendant’s motion for judgment, notwithstanding a jury verdict for the plaintiff on the ground that plaintiff had not exercised due diligence in obtaining process for service upon Ebco.

None of the decisions relied upon by respondent are factually controlling. Under all the circumstances of this case we conclude that the plaintiffs should have an opportunity for a determination of the merits of their claims and we therefore reverse and remand the cause for further proceedings.

The judgment of the trial court dismissing Counts I and II of the petition is reversed and the cause is remanded for further proceedings.

SIMEONE, P. J., concurs in separate concurring opinion.

GUNN, J., dissents in separate opinion.

SIMEONE, Presiding Judge

(concurring).

I concur in the opinion of Kelly, J., and add a few comments.

This case exemplifies the old principle that general principles do not resolve concrete cases. The cases relied upon by the respondent are factually distinguishable and are not dispositive of the circumstances in this record. Here there was little more than a seven-month delay between the time of the “non est” return and effective service upon the respondent — June 18, 1973, through February 11, 1974.

The record indicates that on May 14, 1973, plaintiffs filed their petition. The petition listed the defendant, Margaret Schmittgens, as residing at “8810 Manda, Crestwood, Missouri.” A summons was issued against the defendant by the clerk of the circuit court who delivered the summons to the Sheriff of St. Louis County for service on the defendant. The summons was returned “non est” on June 18, 1973, indicating that she lives in St. Charles and is married but indicating her married name was unknown. The fifth anniversary of plaintiffs’ cause of action arrived four days later, on June 22, 1973. On February 1, 1974, an alias summons was requested by plaintiffs’ counsel to issue against Margaret M. Schmittgens, “now named Margaret M. Kuehler, whose present address is at 530 Morgan, St. Charles County, Missouri 63301.” The alias summons was issued on February 6,1974, delivered to the Sheriff of St. Charles County for service on the defendant, served on February 11, 1974, and returned on February 27,1974. The return indicated that “Margaret M. Schmittgens, n/k/a Margaret M. Kuehler,” had been personally served on February 11,1974, at 2940 Hummingbird, St. Charles, Missouri. Under these circumstances, it can reasonably be inferred that some effort was made by counsel for appellant prior to February, 1974 to determine the new facts and obtain service on February 11, 1974.

In my opinion, the seven-month delay here does not measure up to the unexcused delays in the Mayne, Wooliver, Continental and Hennis cases. Delay is only one factor to be considered in determining due diligence. Seven months is not an inordinate amount of time under the unique circumstances in this record and does not necessarily show a lack of due diligence. We only rule on this case.

GUNN, Judge

(dissenting).

The majority opinion correctly and precisely recites the law applicable to the circumstances of this case. But I am constrained to dissent from the conclusions reached in the majority opinion, in that I would hold that there was a lack of due diligence exercised by the plaintiffs to obtain service of process on the defendant. I cannot find that the trial court was in error in failing to conclude that there had been a diligent prosecution of the plaintiffs’ claim by their nonfeasance to inquire as to the status of the service of process for a seven month, 14 day period after the statute of limitations had run on plaintiffs’ cause of action. See Continental Electric Company v. Ebco, Incorporated, 375 S.W.2d 134 (Mo.1964); Wooliver v. Schopp, 509 S.W.2d 216 (Mo.App.1974); Hennis v. Tucker, 447 S.W.2d 580 (Mo.App.1969).

      . Cf. Mayne v. Jacob Michel Real Estate Co., 237 Mo.App. 952, 180 S.W.2d 809 (1944) — period of ten years passed after a “non est” return on the original summons before service was attempted and effectuated on an alias summons; Wooliver v. Schopp, 509 S.W.2d 216 (Mo.App.1974)—two year delay in obtaining service on defendant in a medical malpractice suit which carries a two-year limitation period; Continental Electric Company v. Ebco, Incorporated, 375 S.W.2d 134 (Mo.1964), and Hennis v. Tucker, 447 S.W.2d 580 (Mo.App.1969)—delays of eight and eleven months respectively found to amount to a lack of due diligence in these mechanic’s lien cases which carry a six-month limitation period.


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles Earl PORTER, Defendant-Appellant.
    No. 36181.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 1, 1976.
    Motion for Rehearing or Transfer Court En Banc Denied July 9, 1976.

      Bell, Harris & Kirksey, James A. Bell, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., G. Michael O’Neal, Nanette Laughrey, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James J. Barta, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant appeals his conviction for first degree murder. On appeal, the defendant contends that the trial court committed prejudicial error: 1) in failing to declare a mistrial after the prosecutor allegedly injected the issue of narcotics into the case during cross-examination of two defense witnesses; 2) in limiting defendant’s counsel’s scope of inquiry into the circumstances surrounding and consequences of prior convictions of a State’s witness; 3) in failing to submit a manslaughter instruction to the jury. We find no prejudicial error and affirm the judgment.

On September 12,1973, Willie Bailey was shot in the head and died as a result of a bullet wound in the brain. A $75 debt owed by Willie Bailey to defendant apparently was the basis for the feral attack on the decedent. On the date of his death, Willie Bailey had loaned his automobile to his nephew by marriage, Fred Washington. While Fred Washington was driving about North St. Louis in Willie Bailey’s car, the defendant stopped Washington, entered the car, displayed a sawed-off shotgun and demanded the keys to the car. According to Washington:

“Mr. Porter [defendant] told me he was taking the car because Mr. Bailey owed him some money for something and Mr. Bailey would get the car back when he gave Mr. Porter the money.”

Washington reported the incident to Willie Bailey. During the day and evening of September 12, Willie Bailey and Washington met with the defendant on three occasions to adjure for the return of Willie Bailey’s car, and on each occasion, the defendant was bellicose, one time threatening to kill Bailey if he did not leave and another time portending death for Bailey if he attempted to retrieve the automobile. In each instance Bailey and Washington left peacefully, their supplications for the return of the automobile having been futile. Late in the evening of September 12, Willie Bailey, accompanied by his brother Robert, sought to make another plea for the return of the car. This time, Willie Bailey took a bundle of his clothes with him to be used as tender for the debt owed defendant. Robert Bailey, who was the only witness to the final meeting between Willie Bailey and defendant, testified that Willie made the offer of the clothing in exchange for the cancellation of the debt; that the defendant spurned the offer, became truculent, displayed a pistol and shot Willie Bailey in the head. There was no evidence of any hostile action or gesture made by Willie Bailey toward defendant — not even a strident word.

The defendant’s defense was an alibi that he was elsewhere at the time of the killing.

The defendant’s first point of alleged error on appeal relates to alleged error occurring during cross-examination of the defendant’s alibi witnesses. During the cross-examination the prosecutor asked one witness whether he was a “business associate” of the defendant. Another defense witness was asked by the prosecutor whether he was under the influence of narcotics. The defendant contends that both questions injected the issue of narcotics into the case. Assuming arguendo that the inquiry of the prosecutor did plant the nasty seed of narcotics into the case and associated it with defendant, we find no cause for reversing the judgment. Immediately after each question was asked — and only two questions were asked — defendant’s counsel objected. The trial court sustained each objection and instructed the jury to disregard the questions of the prosecutor. No further relief was sought. Defendant now argues that a mistrial should have been declared.

We first observe that defendant’s trial counsel is very experienced in criminal defense law and adroit in the protection of his client’s interests. His abilities were skillfully displayed on behalf of the defendant in this case. Mistrial is a drastic remedy to be sparingly applied and only when the prejudicial effect occurring in a trial cannot otherwise be cured. Whether it is to be applied is a matter resting largely within the discretion of the trial court. Kansas City v. LaRose, 524 S.W.2d 112 (Mo. banc 1975); State v. Williams, 525 S.W.2d 395 (Mo.App.1975). In this case, defendant’s objection was sustained and the jury instructed to disregard the question. Defendant obtained all the relief he sought. There was no request for mistrial, and the defendant may not now complain that he should have been given the further relief of mistrial. State v. Cissna, 510 S.W.2d 780 (Mo.App.1974). There is no basis for finding that there was an abuse of the trial court’s discretion in failing to declare a mistrial sua sponte. Kansas City v. LaRose, supra.

Defendant’s second point of alleged error relates to strictures placed on the scope of cross-examination concerning previous convictions of State’s witness, Fred Washington. Washington, who at the time of trial was a resident of the Missouri Training Center for Men at Moberly for a 1978 robbery, was quizzed by defendant’s counsel regarding a 1971 robbery. Defendant’s counsel inquired whether Washington had been convicted of a robbery in 1971, and Washington readily admitted that he had. Washington was also asked how much time he had received for the 1971 robbery, to which he answered, “none.” But after the answer, the prosecutor objected to the question regarding the amount of time, and the court sustained the objection and instructed the jury to “disregard the amount of time out of the 1971 robbery.” Also, without specifying whether he was referring to the 1971 or 1973 charge, defendant’s counsel asked whether Washington had fled to avoid imprisonment after pleading guilty to robbery. Objection to such line of inquiry was made by the prosecutor and sustained. The defendant argues that he should have been permitted to explore in detail the amount of prison time received by Washington for the 1971 robbery conviction and the circumstances surrounding a guilty plea for robbery.

Defendant’s argument is without merit. As stated in State v. Williams, 492 S.W.2d 1, 4 (Mo.App.1973):

“[T]he scope of cross-examination and the determination of which matters may bear on a witness’ credibility are largely within the discretion of the trial court.”

Witness Washington without any equivocation readily admitted his prior convictions. Thus, the purpose of impeaching Ms credibility by reference to prior convictions was accomplished and no further purpose could be gained by dwelling on matters corollary to the admissions of the convictions. Hoover v. Denton, 335 S.W.2d 46 (Mo.1960). Since it is desirable to eschew any retrial of a former case resulting in a conviction or the evidence or circumstances surrounding a former conviction when such conviction is unequivocally admitted the trial court did not abuse its discretion in foreclosing further cross-examination of the facts surrounding witness Washington’s prior convictions. State v. Lee, 536 S.W.2d 198 (Mo.App.1976).

Defendant argues that since the comments under MAI-CR 5.40 permit inquiry into a defendant’s flight to avoid prosecution, examination into whether Washington had fled to avoid capture for a crime for which he was convicted should have been permitted. Defendant’s argument in this regard is spurious and irrelevant, for the purpose of inquiry into a flight from prosecution bears only on the issue of a defendant’s guilt. But here the witness readily admitted his guilt, and any evidence of Washington’s flight to avoid incarceration after his admission of guilt in open court could have no bearing on the issue of his credibility.

Finally, defendant argues that the trial court erred in failing to submit a manslaughter instruction. Defendant directs attention to State v. Amerson, 518 S.W.2d 29 (Mo.1975), and contends when a MAI-CR 6.02 (murder first degree) instruction is given, it is mandatory that MAI-CR 6.06 (murder second degree) and 6.08 (manslaughter) also be given. But the automatic submission of a manslaughter instruction is not required in homicide cases tried prior to March 1, 1975, and this case was tried in February, 1974. There has been a recent flurry of cases, each consistent in holding that prior to March 1, 1975 the submission of a manslaughter instruction in a homicide case is not an automatic requirement. State v. Mudgett, 531 S.W.2d 275 (Mo. banc 1975); State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975); State v. Trotter, 536 S.W.2d 877 (Mo.App.1976); State v. Harris, 535 S.W.2d 145 (Mo.App.1976); State v. Eiland, 534 S.W.2d 814 (Mo.App.1976); State v. Schulten, 529 S.W.2d 432 (Mo.App.1975). Prior to March 1, 1975, where there was an utter lack of evidence on which to base a manslaughter instruction, such an instruction was not required. State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971); State v. Amerson, supra. As stated in State v. Anderson, 515 S.W.2d 534, 537 (Mo. banc 1974):

“If, as a matter of law, the court can declare that there is an entire absence of evidence upon which to support a verdict of guilty of a particular offense (whether it be murder in the first degree, murder in the second degree, or manslaughter), the court should not instruct thereon.” (emphasis added)

The evidence in this case is that on September 12, 1973 the defendant at least twice threatened to kill Willie Bailey. In the evening he made good his threat by shooting Mr. Bailey in the head. The record is empty of evidence of provocation to support an instruction on manslaughter. State v. Mudgett, supra; State v. Harris, supra; State v. Eiland, supra; State v. Schulten, supra. The only evidence as to how Willie Bailey was killed was that as he stood talking to the defendant, the defendant displayed a pistol and deliberately shot Mr. Bailey in the head. There is no evidence that Mr. Bailey did anything to invoke or provoke the fatal assault, and we find as a matter of law that there is an entire absence of evidence upon which to rest a verdict of manslaughter. The trial court did not, therefore, err in failing to instruct on manslaughter. State v. Mudgett, supra; State v. Ayers, supra.

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . Fred Washington had the facility of changing his name as the purpose suited and was known by several aliases.

      . We note that defendant’s counsel made extensive inquiry into the matter of the use of narcotics by certain State witnesses.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Phillip Dean MYERS, Defendant-Appellant.
    No. 36184.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 1, 1976.
    Rehearing Denied July 9, 1976.
    Application for Transfer Denied Oct. 12, 1976.

      Robert J. Thomas, Jr., St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Paul R. Otto, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted by a jury of robbery in the first degree and sentenced by the court, pursuant to the Second Offender Act, § 556.280, RSMo. 1969, to twenty-five years in the Department of Corrections.

An understanding of the points on appeal requires a brief summary of the facts. Defendant was charged with taking the purse of Susan McCool by force and violence on the night of March 19, 1973 at 7:45 p. m. At approximately 7:30 p. m. on the same evening Mrs. Sarah Green was returning home from a neighbor’s house when a man carrying a gun grabbed her arm and threatened to harm her if she screamed. Mrs. Green freed herself and ran into the street where she stopped a passing motorist. She saw her assailant run to the driver’s side of a pickup truck with a camper on top and saw the truck drive away although she did not actually observe the man enter the truck. The Maplewood police were notified and given complete descriptions of the man and the vehicle which went out by radio to all cars. Because of strictures upon permitting evidence of crimes other than the one for which a defendant is being tried, the jury learned only that at 7:30 p. m. on March 19, 1973 witness Green had seen a man, whom she later identified as defendant, that he grabbed her arm, that he carried a pistol, and that he appeared to drive off in a camper truck. Mrs. Green described the vehicle as light green with a white camper which extended over the truck cab. There was a spare tire attached to the grill and the name “Sutton” was printed on the side.

The robbery victim, Mrs. McCool, was accosted only a few blocks away and but a short time later. Mrs. McCool noticed a camper truck of the same description following her. She heard the truck door slam and turned to see a man approaching her with a gun. He grabbed her coat collar and warned her not to scream, and when she did, he struck her several times on the head with the gun. He then ran off in the direction of the truck. Mrs. McCool heard the door slam and saw the truck move away down the street. Mrs. McCool’s purse, which she had been carrying, was gone. Her head wounds required sixteen stitches. She described the man as in his forties, 5'7", medium build, with black curly hair, clean shaven, and wearing a green suit. On March 20,1973 Mrs. McCool viewed a lineup at the Maplewood Police Department and identified defendant as her assailant.

Charles Deskin was driving through Ma-plewood at about 9:20 p. m. on March 19, 1973. Mr. Deskin has a police band radio in his car and heard that they were looking for a pickup truck with a white camper. He saw a vehicle fitting the description drive north on Edgar Avenue and then park on the corner of Walter and Pacific. Mr. Deskin went to a public phone and called the police. Officer Clyde Bull received the call and drove his unmarked car to Pacific where he parked about 100 feet behind the truck which was at the time unoccupied. Mrs. Green was called to identify the truck. Minutes later defendant, carrying a flashlight, passed the officer’s car and went to the truck where he opened the door to the living quarters. The officer put his lights on high beam, activated the siren and pulled up behind the truck. Defendant was placed under arrest. A man’s green suit, damp to the touch, was lying near the open door and was taken by the officer. (P had been raining all evening.) There were dark stains on the left sleeve and the jacket front which proved to be type O human blood. Several long brown hairs clinging to the jacket front were also tested and determined to be Mrs. McCool’s. Mrs. McCool’s blood is type O.

Defendant’s counsel raises ten points on appeal. He first contends that he was entitled to have punishment determined by the jury rather than the judge because the record of his prior convictions was not properly certified and because there was no evidence identifying him as the individual named therein.

Out of the presence of the jury the state offered two sets of documents, the first an Iowa district court record of judgment and sentence following defendant’s guilty pleas to three crimes of rape, the second an Iowa State Penitentiary record of his incarceration and release including his photograph and fingerprints. The first set of documents includes a certificate of the district court clerk duly executed by a deputy clerk and by a judge of that court who is in turn certified by the deputy clerk to be duly commissioned and sworn judge of that court. The certification bears the court seal. The clerk is identified on the document as the “proper custodian of the records of said Court.”

Properly authenticated records of the judicial proceedings of other states are entitled to full faith and credit in Missouri under federal and state law. 28 U.S.C.A. § 1738; § 490.130, supra.

Section 490.130 provides that the records and judicial proceedings of federal and state courts will be accorded the full faith and credit they would receive in their place of origin if “attested by the clerk thereof, with the seal of the court annexed, if there be a seal, and certified by the judge, chief justice or presiding magistrate of the court ⅜ * The record of judgment before this court meets all the requirements of 28 U.S.C.A. § 1738 and § 490.130, and was properly admitted. The propriety of attestation by a deputy clerk has long been settled in this state. State v. Shumate, 516 S.W.2d 297, 300[6] (Mo.App.1974).

The second document is also executed as required by 28 U.S.C.A. § 1739 and § 490.220, RSMo. 1969 (for records not appertaining to a court). There being no infirmity in the manner of attestation, both documents were properly admitted.

As to the contention that defendant was not identified as the individual named in these records, we note that identity of names is sufficient prima facie proof of that fact. No evidence was introduced that he was not the same Phillip Dean Myers. Hence the record does not support the claim. State v. Shumate, supra at 299[3].

Defendant’s second point states: “The trial court erred in admitting the testimony, by deposition of Sarah Green, on the ground that said testimony constituted evidence of another crime and was so prejudicial and inflammatory as to effectively deny the defendant his fundamental right to cross-examine witnesses.” In his pro se brief defendant also complains of the introduction of evidence of another crime.

What defendant’s counsel contends in his argument, however, is that his cross-examination of the witness when her deposition was taken revealed that Mrs. Green began to cry after defendant grabbed her and threatened her with the gun. Defense counsel believed that he should read that part of her deposition because the fact that she had tears in her eyes might cast doubt upon her ability to identify her assailant. On the other hand, he feared that the jury might also infer therefrom that defendant had committed some crime against her and therefore he refrained from using the testimony.

Evidence of other separate and distinct crimes, when not related to the cause on trial, is reversible error. But one of the exceptions to this general rule is that evidence of other crimes is competent when used to prove, among other things, the identity of the person charged with the crime on trial. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954); State v. Granberry, 530 S.W.2d 714, 722[6] (Mo.App.1975). Sarah Green testified defendant grabbed her arm and she saw a revolver in his other hand minutes before and in the same area where he struck Susan McCool with a pistol and robbed her. This testimony presented no other facts indicative of attempted robbery or assault of Mrs. Green. It identified defendant as the perpetrator of the crime charged by being corroborative testimony to the identification by the victim. It has a “logical relevancy” in establishing the defendant’s guilt. State v. Tygart, 531 S.W.2d 47, 51 (Mo.App.1975).

Defendant by his counsel chose not to introduce the testimony adduced on cross-examination at the deposition in the belief that any benefit would be outweighed by its prejudicial effect. He cannot here assert that his own decision not to cross-examine a witness on certain matters is the equivalent of a denial of his fundamental right to cross-examine that witness. Defendant does not cite, nor can there be found, support for such a proposition. The particular corollary to the main issue is at any rate not preserved for review, not having been set forth in the point relied on. State v. Yearwood, 510 S.W.2d 43, 44[2] (Mo.App.1974); Rule 84.04(d).

Defendant next complains of the prosecutor’s use of leading questions during trial. He refers actually, however, to only very few places in the transcript where leading questions were asked. Other transcript references do not concern leading questions and are not considered here. The extent to which leading questions will be permitted is a matter for the trial court’s discretion and absent abuse will not constitute reversible error. State v. Todd, 372 S.W.2d 183 (Mo.1963). The trial court here permitted no leading questions and sustained defense counsel’s every objection. The record does not support defendant’s charge that the mere necessity of raising objections prejudiced him in the eyes of the jury by making it appear that he had something to hide. The trial court did not sanction improper questioning and granted all the relief requested. The point is without merit.

The fourth allegation of error deals with two separate and distinct actions of the prosecuting attorney. Defendant first contends that a mistrial should have been granted because the prosecutor spoke to Mr. White, a defense witness, without identifying himself as the prosecutor and without' the knowledge and consent of defendant. The record of the interchange in chambers between both counsel, the court and the witness discloses that the prosecutor learned of the witness’ presence during a recess and that he did not inform defense counsel that he was going to speak to him because he could not find him. The prosecutor approached White in the corridor, introduced himself and told him that he was a lawyer but not, apparently, that he was representing the state. He asked White what he had to say about Mrs. McCool and whether he had ever been convicted of anything. Throughout the in-chambers discussion the prosecutor staunchly maintained that he knew of no rule prohibiting him from interviewing a defense witness who was not a party and who was not represented by counsel. The trial court could find no prejudice to defendant and overruled the motion for mistrial. The record is indeed devoid of any evidence of prejudice to defendant as a result of the prosecutor’s conversation with the witness. Mr. White was called to present reputation testimony regarding Mrs. McCool. Had the conduct of the prosecutor constituted error, that alone would not be grounds for reversal when the facts and circumstances demonstrate, as they do here, that the defendant suffered no harm. State v. Walker, 484 S.W.2d 284, 286[4-6] (Mo.1972).

The question whether it was improper for a prosecutor to interview defense witnesses was answered long ago in State v. Weiners, 4 Mo.App. 492, 496[4] (1877). There, the circuit attorney, when he learned about a defense witness, “caused Mr. Crum to be found at his residence, and had him in court upon its resumption of proceedings. In the meantime he had taken Crum into a jury-room, and in the presence of several witnesses asked him what would be the character of his testimony. * * * If it were made to appear that any intimidation or undue influence was brought to bear upon the witness Crum, we might be able to understand the point of the defendant’s complaint. * * We are ignorant of any rule which requires that a prosecuting attorney shall not be on speaking terms with the defendant’s witnesses.” Although it may have been advisable for the prosecutor to assure himself that Mr. White understood that he represented the state, no one suggests that he attempted to intimidate or influence the witness. No error having been committed, the motion for mistrial was properly denied.

Defendant also alleges that it was improper for the prosecutor to inquire into the matter of Mr. White’s possible intoxication at the time he testified. The extent of cross-examination on collateral matters for the purpose of impeachment of a witness is largely within the trial court’s discretion. State v. Cox, 352 S.W.2d 665, 673[25] (Mo.1961). See also Chism v. Cowan, 425 S.W.2d 942, 948[6, 7] (Mo.1967). It has been held that evidence of whether a witness had been drinking intoxicating liquor at the time of the occurrence is competent for the purpose of affecting the credibility of the witness. Sanders v. Armour & Co. of Delaware, 292 S.W. 443, 446[10] (Mo.App.1927). A witness’ abnormality is a standard ground for impeachment and one form of abnormality is that which exists when one is under the influence of drugs or drink. If a witness is “under the influence” at the time of the occurrence or at the time he testifies, this condition is provable, on cross or by extrinsic evidence, to impeach. McCormick, Law of Evidence § 45 (2d Ed. 1972). The intoxication of a witness at the time he testifies goes to his credibility. Lomax v. State, 248 Ark. 534, 452 S.W.2d 646, 649[6, 7] (1970). Furthermore, the witness admitted he had had a few beers and was under the influence of alcohol. The inquiry was properly permitted.

Defendant states in his next point that it was improper for the prosecutor to ask Mr. White why another person, one “Moon Mullins”, whom White claimed as a source for reputation testimony, had not been called by defendant. The prosecutor merely asked the witness if he knew Mullins’ whereabouts. The impropriety complained of did not occur.

Error is also urged in permitting the introduction into evidence of the victim’s medical records describing the nature of her injury and the treatment administered. This portion of a hospital record is admissible if it tends to prove or disprove any fact in issue or to corroborate any relevant evidence. State v. Jenkins, 516 S.W.2d 522, 525[1, 2] (Mo.App.1974). The medical records were admissible as corroborative of the victim’s testimony that her attacker struck her on the head with a gun. In addition, one issue in the case was whether the victim was robbed by force and violence as charged in the information. The exhibit was admissible to show the manner of the assault and the amount of force and violence employed. State v. McRoberts, 485 S.W.2d 70, 72[2] (Mo.1972).

Defendant’s charge that it was prejudicial error for the prosecutor to refer to a stain on a coat sleeve as blood because there was no such evidence overlooks prior expert testimony to the effect that tests were run identifying the stain on the sleeve as human blood. Defendant contends that the testimony of defendant’s brother identifying the green suit as that worn by defendant on the night of the incident was improper rebuttal because defendant had offere.d no evidence that it was not. This, too, overlooks prior testimony, that of defendant’s wife. She was shown the jacket and pants during cross-examination and asked if she recognized them. Her testimony implied that the suit was not her husband’s because it did not have a name or label on the inside and was not as shiny as his green suit. The testimony of defendant’s brother was presented in rebuttal. The scope of rebuttal testimony is largely within the discretion of the trial court. Unless a defendant’s rights are prejudiced or the trial court abuses its discretion, a reviewing court will not reverse even though the testimony may not have been, in the strictest sense, proper rebuttal evidence. State v. Kirk, 510 S.W.2d 196, 199[4, 5] (Mo.App.1974). Defendant fails to demonstrate prejudice and none is disclosed by the record. The trial court therefore did not abuse its discretion.

The admission into evidence of a number of items seized at the time of defendant’s arrest is challenged on the ground that the arrest was invalid for lack of probable cause. He refers us to State v. Perry, 499 S.W.2d 473, 475[2, 3] (Mo.1973) which recites that for an arrest to be valid, the arresting officer must be in possession of facts or knowledge that would lead a prudent man to believe that the suspect had committed a crime. Here, the arresting officer was notified by police radio of the attack upon Mrs. Green. The suspect was described as a white male, age 35 to 40, between 5'7" and 5'8", with black wavy hair and wearing a dark suit. The suspect’s vehicle was described as a yellow or green truck with a white camper which overhung the cab. It had the name Sutton on it. The officer first observed the truck with “Sutton” on the side and shortly thereafter saw defendant, who fit Mrs. Green’s description, approach it. The officer possessed sufficient information to establish probable cause to arrest. See State v. Maxwell, 502 S.W.2d 382, 386[1] (Mo.App.1973). His arrest was valid and the very limited search incident thereto was proper.

The next point arises from Mrs. Green’s testimony, by deposition, that she identified defendant at the scene • of his arrest. The contention is that the confrontation was so impermissibly suggestive as to give rise to irreparable mis-identification, and therefore testimony of the identification should have been suppressed. Mrs. Green was originally called upon to identify the truck. Defendant was not taken into custody until she was on her way to the scene. She overheard on the police radio that a man had been arrested near the truck. The jury was informed, through Mrs. Green’s deposition testimony, that she identified the truck and the man on that occasion. She also identified defendant in a lineup photograph, shown to her at the time of her deposition, as being the man who attacked her. Defendant contends that the confrontation was permeated by a suggestive atmosphere that rendered the identification unreliable. The police had not planned the confrontation when they asked Mrs. Green to come identify the truck since defendant was not yet in custody. When Mrs. Green arrived shortly after his arrest, it was simply common sense to determine as soon as possible whether he was the man they sought. Grant v. State, 446 S.W.2d 620, 621-2 (Mo.1969). The remarkable accuracy with which Mrs. Green was able to describe her assailant to the police directly contradicts the conclusion that the confrontation at the scene of arrest led to an irreparable mis-identification. The totality of the circumstances demonstrates no prejudice to defendant and the point is ruled against him.

Defendant attacks the in-court identification by Mrs. McCool on the ground that the lineup at which she first identified him was suggestive. Examination of the photographs of that lineup does not support defendant’s charge.

Defendant in his pro se brief also challenges the sufficiency of the evidence to support the charge of robbery in that there was no evidence to prove defendant took Mrs. McCool’s purse. The evidence disclosed that when defendant started hitting her with the pistol, Mrs. McCool had her purse. After she first recovered from her dazed condition while starting to get up on her knees, she noticed that her purse was gone and defendant had just left. No other person was in the area. The purse was discovered by a school boy a short distance away in his front yard. The jury could very well infer from these circumstances that defendant took Mrs. McCool’s purse.

The judgment is affirmed.

McMILLIAN and KELLY, JJ., concur.


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Frank Joseph GUINAN, Defendant-Appellant.
    No. 36948.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 22, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.

      Crouppen, Walther & Zwibelman, Gael T. Infande, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., William M. Frain, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Frank J. Guinan was convicted in the St. Louis Circuit Court by a jury of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, § 560.120 RSMo. 1969. He was also found by the trial court to be a Second Offender within the terms of § 556.-280 RSMo. 1969, and sentenced to the custody of the Missouri Department of Corrections for a term of forty years. He appealed that conviction to this court and the conviction was affirmed. State v. Guinan, Mo.App., 506 S.W.2d 490. On May 22,1974, he filed a Motion to Vacate Judgment and Sentence in the Circuit Court for the City of St. Louis, Rule 27.26, attacking the judgment aforesaid on the grounds that he was denied effective assistance of counsel and that the trial court erred when it sustained his motion to withdraw a previously granted motion for psychiatric examination filed by his court-appointed Public Defender. Simultaneously, movant also filed a motion and affidavit to proceed as a pauper. This latter motion was sustained and counsel was appointed to represent the movant in this proceeding.

On January 24,1975, an evidentiary hearing was conducted with reference to mov-ant’s Motion to Vacate Judgment and Sentence, and thereafter the trial court entered its judgment, including Findings of Fact and Conclusions of Law overruling mov-ant’s Motion to Vacate Judgment and Sentence. This appeal followed.

Appellant presents one point in this court, i. e. “The Court erred in overruling Movant’s Motion to Vacate Sentence because it sustained the action of the trial court in allowing movant to withdraw his motion for appointment of a psychiatrist on a pro se basis. To allow movant to withdraw this motion was a denial of due process and a violation of Missouri law.”

At the evidentiary hearing — conducted by a judge other than the judge who presided over the trial, because movant-appellant had filed a motion to disqualify said trial judge, only one witness, appellant, was produced in support of the Motion and his testimony was directed at the failure of his court-appointed trial counsel to locate three witnesses he had told the counsel would have furnished him with an alibi for the night of the commission of the robbery.

The State produced the court-appointed trial counsel who testified that while he had located two of the three witnesses neither would have supported appellant’s alibi because they denied being with appellant on the night of the robbery. He was unable to locate the third witness despite efforts he made to find him.

At the conclusion of counsel’s testimony the trial court referred to the court record in Cause No. 72-724 — the charge on which appellant was convicted and the judgment he seeks to have vacated in this proceeding. The transcript before us, taken together with statements made by the counsel-witness in response to questions directed to him by the trial court reveal that there was no motion for a psychiatric examination to be found in the court file. In an effort to clarify this question, the witness testified that so far as he could recall he had filed one motion for all three cases then pending against the appellant. The court record contained an order of May 25, 1972, continuing the cause at appellant’s request and committing him to Malcolm Bliss Mental Health Center for mental evaluation. On July 14, 1972, a record entry by another Circuit Judge changed the place of commitment from Malcolm Bliss Mental Health Center to Fulton State Hospital for mental examination and evaluation. On July 17, 1972, appellant filed, pro se, his Motion to Withdraw Petition for Psychiatric Examination wherein he alleged: that he was informed by his court-appointed counsel that a motion for psychiatric examination was filed pursuant to § 552.010 and that such plea was to be his defense; that upon being informed of this fact, he requested that all such proceedings interposing this defense be stopped or delayed; that he was never informed by counsel that his request had been carried out; that on July 14,1972, he was called before the court for a hearing on the motion for appointment of a psychiatrist and, because he was misled or was unaware of the proceeding, he sat mute and raised no objections to the proceedings. He further alleged that he was told by his counsel to say nothing and that the court would set the motion aside; that, however, upon leaving the courtroom he was informed that the court had granted the order and a psychiatric examination would be conducted. He further alleged that he suffered from no mental disease or defect; that he did not request a defense under § 552.010 RSMo. 1969; that he has never in the past or present had any type of mental disease or defect to make a valid defense under the mental illness statute; that he did not at any time request a test under the statute; that he does not have any history of alcoholism or drug abuse, no mental abnormalities or any psychosis; that he does not and will not use the statute as a defense for the crimes charged; and that he was duped into a defense on that ground on the “poor judgment of appointed counsel.” He requested the court to withdraw the order granting the motion and to set aside any proceedings under the statute. He also alleged that he would refuse to be removed by such court order and would use any means to avoid said court order and to be removed from the confines of the City Jail; and if so removed by force, that he would in no way speak of any of the alleged crimes with which he was charged but would stand mute to any questions posed by the doctors. He then requested that the order of July 14, 1972, be withdrawn and set aside and that a plea of not guilty be entered for him.

According to the Public Defender this motion was filed while he was out of town.

The court file further recites that on July 19, 1972, another attorney in the Public Defender’s Office appeared on appellant’s pro se motion, the order of July 14, 1972, was stayed until further order of court and was passed to July 25, 1972. At that time the appellant’s argument in support of his pro se motion was heard and passed to August 2, 1972, at appellant’s request, for further proceedings. There was no further record entry prior to trial with reference to the motion, but it was stipulated between counsel for the respective parties that an order was entered permitting the movant to withdraw the request for psychiatric examination.

On the basis of this evidence the trial court in its Finding of Facts found that identical issues had been raised on appeal of the judgment of the trial court in Cause No. 72-724 and decided adversely to the appellant because the appellate court held that the record before it on appeal “indicates no motion for psychiatric examination. Without any record to verify his allegations we must rule against defendant on these two points.” The trial court further found that the court file in the cause did not contain the original motion nor any other allegations by movant that he was in fact incompetent to stand trial. After finding that the record entries recited above, it declared its Conclusions of Law, i. e., that appellant had not raised nor had decided his motion to withdraw the order of July 14, 1972, prior to trial as required by Rule 27.26(c); that he had presented and had decided this same issue on direct appeal; and that after studying the transcript of the record on direct appeal and on the record on the Motion, concluded that appellant’s history and actions before, during and after trial did not raise á bona fide doubt of his competency to stand trial.

We affirm.

Appellant’s argument is that the trial court, by ordering a psychiatric examination pursuant to the provisions of § 552.020 RSMo. 1969, evidenced a bona fide doubt of the movant’s ability to stand trial and that to thereafter allow the same movant, by a pro se motion, withdraw his motion for psychiatric examination without an eviden-tiary hearing and finding of competency, constituted a denial of due process and a violation of the applicable Missouri Law. As authority for this position he cites Brizendine v. Swenson, 302 F.Supp. 1011 (W.D.Mo.1969) and Rand v. Swenson, 365 F.Supp. 1294 (E.D. of Mo.1973).

This court in Jones v. State, Mo.App., 505 S.W.2d 96, 98[1] (1974) and Boyer v. State, Mo.App., 527 S.W.2d 432, 436[4] (1975) have rejected the holdings in Brizendine and Rand and held that “[t]he mere fact that a judge grants, on motion, a psychiatric examination, does not automatically establish that a bona fide doubt exists as to the defendant’s competency to stand trial.” (Emphasis supplied).

We conclude that on the basis of the record before it the trial court did not err in finding that there was no evidence to support a finding that there was a bona fide doubt of the movant’s competency and ability to stand trial on the charge of robbery in the first degree by means of a dangerous and deadly weapon in Cause No. 72-724, and that the trial court in said cause did not err in sustaining movant’s pro se motion to withdraw the Motion for Psychiatric Examination filed by the court-appointed Public Defender despite the fact the Motion for Psychiatric Examination had previously been sustained.

We affirm.

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

      . This statement of the Point Relied On fails to meet the requirements of Rule 84.04(d); nevertheless, we shall dispose of the grounds it attempts to present.

      . The ground raised in the Motion to Vacate was stated thusly: (after alleging that the trial judge erred in permitting appellant to withdraw his motion for appointment of psychiatrist), “[i]t made his counsel become inadequate and ineffective. That is to say, counsel probably rightfully assumed that if movant would be allowed to withdraw and overrule his pretrial motions, that it would be (sic) futile and time consuming jesture (sic) for him to submit other motions. This action further prevented counsel from injecting a valid and probably effective defense to the charges he was being tried on.”