author: McMILLIAN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Peter FOWLER, Defendant-Appellant.
    No. 38491.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 18, 1977.

      Robert C. Babione, Public Defender, Joseph W. Warzycki, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Appellant appeals from a judgment entered upon a jury verdict in the circuit court of the City of St. Louis finding appellant Peter Fowler guilty of robbery in the first degree by means of a dangerous and deadly weapon and a sentence of ten years’ imprisonment. For the reasons discussed below, we affirm the judgment.

On December 2, 1975, at approximately 10:00 a. m., a masked gunman, later identified as a man named Stinson, held up a liquor store in the City of St. Louis. Store employees identified appellant as being present in the store for fifteen minutes before the robbery. There was further testimony that appellant entered the store while the robbery was in progress and looked out the front door until the gunman fled. Appellant opened the front door for the gunman and then left about ten seconds later.

The manager of the liquor store testified that approximately $185.00, mostly in five dollar bills, had been taken by the gunman.

Shortly after the robbery the police discovered appellant and Stinson lying on the floor of appellant’s car, which was parked across the street from the liquor store. Appellant was lying on the front floorboards, Stinson, the backseat. The police seized $85.00 in five dollar bills from appellant’s right front pants pocket, two masks cut from nylon panty hose from the backseat, and $90.00, mostly in five dollar bills, from the frontseat and floorboard where appellant had been lying.

Appellant stated that he knew Stinson and drove him to the liquor store, but did not know of Stinson’s intention to commit a robbery. Appellant further stated that he entered the liquor store only to inform Stin-son that the car had been struck by a passing car and he was going to a service station up the street. Appellant testified that he was surprised to see Stinson with a gun and wearing a mask and panicked and rushed after Stinson when he fled from the store. Appellant explained that the $85.00 found in his pants pocket by police was a Christmas present from his grandmother, Susy Jones. Appellant testified he had been given 3 twenty dollar bills, 2 ten dollar bills and 1 five dollar bill. Appellant’s grandmother, however, testified that she had given appellant $75.00 to buy a coat, in 3 twenty dollar bills, 1 ten dollar bill and 1 five dollar bill.

For reversal, appellant argues that the trial court erred in overruling the defense motion for acquittal at the close of all the evidence because the evidence showed only appellant’s presence at the scene. Appellant urges that this showing was insufficient to support an inference that appellant participated in the commission of the robbery. We disagree.

In reviewing the sufficiency of the evidence the court will consider as true evidence favorable to the state and the favorable inferences to be drawn therefrom and reject evidence to the contrary. State v. Cain, 507 S.W.2d 437, 438 (Mo.App.1974). It is not the function of the appellate court to substitute its judgment for that of the jury; if there is substantial evidence to support the jury finding, it should not be disturbed on appeal. State v. Gamache, 519 S.W.2d 34, 39 (Mo.App.1975).

Appellant first contends that the evidence, even when viewed in the light most favorable to the state, fails to show appellant obviously participated in the robbery. It is widely accepted that evidence that an accused had an opportunity to commit an offense merely raises a suspicion of guilt and is insufficient to sustain a conviction; however, any evidence showing any form of affirmative participation is sufficient. Id. at 40. Proof of conduct before, during and after the offense are circumstances from which participation in the offense may be inferred. Evidence sufficient to justify a jury finding that appellant did in any way aid, abet or encourage another in the commission of an offense is sufficient to support a conviction. Id. at 39-40.

The evidence shows that appellant drove the robber Stinson to the liquor store, entered the liquor store about fifteen minutes before the robbery and again entered the liquor store while the robbery was in progress. Appellant was seen standing by the door, looking outside, and opening the door for the gunman as he left. Appellant left the store about ten seconds later. Shortly after the robbery the police discovered appellant and the gunman lying on the floor of appellant’s car, parked across the street from the liquor store. About $85.00 in five dollar bills was found in appellant’s pants pocket. Ninety dollars, also largely in five dollar bills, was recovered from the front seat and floor of appellant’s car.

This evidence was sufficient to show that appellant actively participated in the robbery. In Gamache, the evidence established that appellant owned the getaway car driven by a gunman later identified to have held up a store. Appellant was a passenger in the car when it was stopped by the police. Appellant was not identified as present in the store prior to or during the robbery and he did not have any of the money from the robbery on his person. Appellant was not found in a “hiding” position when the car was stopped by police. The court in Gamache held that the evidence supported a finding that appellant actively participated in the commission of the crime. Id. at 40. In the present case, the state has presented substantially more evidence than Gamache.

Appellant also argues that the state’s case rests entirely on circumstantial evidence and that the state has failed to meet the circumstantial evidence test. To warrant a conviction based on circumstantial evidence the facts and circumstances must be consistent with each other, consistent with the hypothesis of guilt, inconsistent with innocence, and point clearly to guilt so as to exclude very reasonable hypothesis of innocence. Id. at 40. Specifically appellant contends that the facts and circumstances are not consistent with the state’s theory of guilt and do not exclude every reasonable hypothesis of innocence. Appellant, however, offers no explanation or reason why the facts and circumstances are inconsistent with guilt except for his contention that the evidence was insufficient to show appellant’s active participation. In view of our discussion of the sufficiency of the evidence, we do not find the facts and circumstances inconsistent with guilt.

Appellant contends that the state has not excluded every reasonable hypothesis of innocence because he did not possess the intent to “knowingly and with common purpose together with others” participate in the offense for which he was convicted. Circumstantial evidence, however, does not have to be absolutely conclusive of guilt or demonstrate the impossibility of innocence. State v. Maxie, 513 S.W.2d 338, 343 (Mo. 1974). In Maxie, the only evidence tying defendant to the victim’s apartment was his thumbprint on a box top found in the apartment. Although there was no evidence or proof of ownership of the box top and the box top was easily transportable, the court upheld defendant’s conviction. Id. at 343.

Appellant offers surprise as a reasonable hypothesis of innocence and denies any intentional participation in the robbery. Appellant’s testimony, however, was repeatedly contradicted by that of the liquor store employees and the police. The jury was free to believe all or none of the testimony of any witnesses or to accept it in part or reject it in part when considered in relation to other testimony and the facts and circumstances of the case. State v. Lane, 376 S.W.2d 128, 132 (Mo.1964).

In the present case we do not believe appellant has presented a reasonable hypothesis of innocence; and accordingly the judgment is affirmed.

STEWART and REINHARD, JJ., concur.


source: Caselaw Access Project

author: HERBERT LASKY, Special Judge. ROBERT G. J. HOESTER, Speciál Judge,

license: Public Domain

text:
    Leroy J. HAMPTON, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 38401.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 18, 1977.

      Robert C. Babione, Public Defender, James D. Ashwell, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HERBERT LASKY, Special Judge.

Defendant appeals from a denial of his Rule 27.26 motion. We find no error and affirm the denial.

The trial transcript of defendant’s conviction for armed robbery has not been filed with this appeal, but from State v. Hampton, 509 S.W.2d 139 (Mo.App.1974), we are able to indite briefly the essential facts leading to defendant’s conviction. Police interrupted defendant and a companion in the perpetration of a St. Louis store robbery. Defendant attempted his escape by seizing a customer as hostage, but the defendant’s actions proved futile for him. He was shot by police as he fled the store and was captured a short distance from the scene of the robbery. Evidence of defendant’s guilt by numerous eye-witnesses was overwhelming.

Defendant raises a multitude of points on his appeal of the denial of his 27.26 motion by the trial court; none is meritorious.

Defendant first contends that he was denied a speedy trial by reason of continuances requested by his counsel causing a 15 month delay in the start of his trial. Defendant points out that none of the continuances was authorized by him, but all were done at his counsel’s unauthorized volition. We believe that whether a defendant’s counsel obtains a continuance for his client — with or without his client’s consent or consultation — is a matter of trial strategy not subject to Rule 27.26 reflection on the correctness of such strategy. See State v. Sanders, 539 S.W.2d 458 (Mo.App. 1976); State v. Nolan, 499 S.W.2d 240 (Mo. App.1973). We also note that one of the continuances was for the purpose of obtaining a mental examination on defendant’s behalf.

Defendant also claims that he was denied effective assistance of counsel, as his attorney failed to promptly investigate the location of 3 alibi witnesses. The record shows otherwise — at least defendant’s trial attorney testified that he had made a thorough investigation of the possible alibi witnesses, and the trial court is the arbiter as to the credibility of witnesses. Williams v. State, 550 S.W.2d 821 (Mo.App.1977); Trice v. State, 540 S.W.2d 613 (Mo.App.1976). Further, there was rather persuasive evidence that the purported alibi witnesses were fabricated. We find no basis for finding ineffective assistance of counsel as a result of defendant’s attorney’s investigatory efforts. Jackson v. State, 540 S.W.2d 616 (Mo.App.1976).

Defendant claims that he was denied his due process of law by the display in evidence of a sawed-off shotgun used in the holdup and the prosecutor’s reference to the gun. These were matters subject for direct appeal and not for 27.26 review. Riley v. State, 475 S.W.2d 63 (Mo.1972).

Defendant claims that there was insufficient evidence to establish that he had taken any property in the robbery. According to the defendant’s logic, an essential element of the crime of robbery was therefore lacking. This point was specifically ruled on in defendant’s direct appeal and will not be considered in this 27.26 appeal. Riley v. State, supra.

Defendant’s final point urges that the 50 year sentence imposed by the trial court was illegal and as a result of the defendant’s exercise of his right to trial. There was evidence that the prosecutor had recommended a 25 year sentence after the defendant pleaded guilty; that there was an indication by the trial judge that the recommendation was acceptable. After jury trial and the finding of defendant’s guilt, the trial judge imposed a 50 year sentence. We find no illegality in such sentence. It was within the statutory limits. State v. Vermillion, 486 S.W.2d 437 (Mo.1972). Further, the trial judge testified at the 27.26 hearing that he was influenced in the sentencing by the fact revealed at trial as to the vicious nature of the crime and defendant’s record of 13 prior convictions. A sufficient basis clearly existed for the imposition of the term of punishment. See Garrett v. State, 486 S.W.2d 272 (Mo. 1972).

Judgment affirmed.

GUNN, P. J., and WEIER and KELLY, JJ., concur.

ROBERT G. J. HOESTER, Special Judge, concurs in separate concurring opinion.

ROBERT G. J. HOESTER, Speciál Judge,

concurring.

I concur with the Opinion of the learned Judge Lasky. This was a very frivolous 27.26 Motion which should not have been dignified by a written Opinion, but summarily dismissed.

      . Defendant cites Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as to the constitutional criterion for right to speedy trial. But even in Wingo, the state continued defendant’s case 16 times over a period of 5 years, and the conviction was affirmed. Wingo offers no solace for defendant.


author: CLEMENS, Presiding Judge.

text:
    John Earl MANNS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38785.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 18, 1977.
    Robert C. Babione, Public Defender, Jeffrey J. Shank, Terry Burnet, Asst. Public Defenders, St. Louis, for movant-appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Michael Finkelstein, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant appeals the post-hearing denial of his Rule 27.26 motion. He contends “the State had denied him his right to a fair trial when it tried him first, thus denying him access to the testimony of the two co-defendants who had not yet been tried.”

The underlying case charged an armed robbery by movant and two confederates whose cases were severed. The jury found movant guilty and the trial court sentenced him to 20 years’ imprisonment. On appeal this court affirmed. State v. Manns, 533 S.W.2d 645 (Mo.App.1976).

Movant now — for the first time — alleges that he was denied a fair trial because he was tried first and each of his confederates, then awaiting trial, had invoked the Fifth Amendment when he sought their exculpatory testimony. Movant now argues, without citing authority, that the original trial court erred in trying him first, thereby depriving him of access to favorable testimony by his two confederates.

We need not reach the questionable merits of movant’s complaint. He did not raise the point at trial, nor in his motion for new trial, nor did he brief it on direct appeal. It is not the function of a Rule 27.26 motion to adjudicate a movant’s contentions of error that could have been raised in the underlying proceeding.

For each of these three reasons, we hold the point was not cognizable in a Rule 27.26 motion. Johnson v. State, 485 S.W.2d 73[2] (Mo.1972); Fields v. State, 468 S.W.2d 31[1] (Mo.1971); Rogers v. State (Mo.App., St. Louis District, No. 38, 420, August 20, 1977).

Judgment affirmed.

SMITH and McMILLIAN, JJ., concurs.


author: SMITH, Judge.

text:
    Frederick C. WHITE, Movant, v. STATE of Missouri, Respondent.
    No. 37070.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 18, 1977.

      David A. Lang, Clayton, Forriss D. Elliott, St. Louis, for movant.
    Paul Robert Otto, Asst. Atty. Gen., John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from an order denying, without evidentiary hearing, his Rule 27.26 motion to vacate and set aside sentence. The underlying conviction was for assault with intent to maim with malice arising from the physical and sexual torture of a female victim.

Movant’s motion stated his grounds for relief as follows:

“(a) Incompetency of counsel at trial.
“(b) State’s failure to disclose favorable evidence.
“(c) Discovery of new evidence.”

The facts supporting these grounds were set out as follows:

“ ‘9. (a) Counsel who conducted the trial failed to perform any investigation prior to trial, failed to adequately voir dire the prospective jurors, failed to file any pretrial motions, and and (sic) failed to file a timely motion for new trial. Supporting evidence: partial transcript of trials in State v. White, # 72-9411, and State v. Weaver, # 72— 1660. Testimony of Attorney Wilson Gray; and business records of Wilson Gray relating to his representation of Frederick White. The address of (sic) is 508 North Grand, St. Louis, Missouri.
‘(b) The Assistant Circuit Attorney, William Frain, was aware of the existence of a medical condition of the complaining witness at the time of the alleged acts constituting the offense occurred, that cast serious doubts on the veracity of her testimony, but he failed to disclose said medical condition to my trial attorney, supportin (sic) evidence: partial transcript of companion case. State v. Weaver, # 72-1660, and partial transcript of State v. White, # 72-9411 and relevant files of the circuit attorney’s office. The business address of Wm. Frain is Ofc. of the Cir. Atty., Municipal Courts Building, St. Louis, Missouri.
‘(c) The newly discovered evidence is the existence of a medical condition of the complaining witness at the time the alleged acts constituting the offense occurred, that casts serious doubts on the veracity of her testimony. Supporting evidence: same as in 9(b) above.’ ”

The trial court, in an opinion, dealt with each of these grounds and found no facts alleged sufficient to warrant an evi-dentiary hearing. In order for a 27.26 mov-ant to be entitled to an evidentiary hearing, he must plead facts, not conclusions, which if true, would entitle him to relief and must show that those factual allegations are not refuted by the trial record. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974) [1],

Movant’s petition here fails to meet that test. An allegation of failure to investigate is insufficient in the absence of factual allegations of what possible defenses might have been discovered through further investigation or how such investigation might have been of benefit to defendant. Smith v. State, supra, [2]. In what way the voir dire was inadequate is sheer speculation. A review of the transcript of trial does not indicate any apparent inadequacies. The same is true of the allegation concerning “pretrial motions.” Just what motions could or should have been filed is not apparent on the record. No confession or statement of defendant was introduced into evidence, the victim’s identification was based upon her prior acquaintanceship with defendant, and there is no indication that evidence introduced was obtained through any improper search which defendant could challenge. We will deal with the allegation concerning the motion for new trial later. The general statement concerning a “medical condition” of the prosecuting witness is so vague as to be meaningless, and does not furnish a basis for relief under 27.26.

Movant has in his motion referred to a partial transcript in State v. Weaver. That trial was of an alleged co-participant and resulted in an acquittal. Movant contends that the material in that transcript demonstrates that movant’s counsel was ineffective. None of this material is mentioned in movant’s motion and we do not believe it to be the trial court’s responsibility to cull through that transcript to find some possible supporting grounds for movant’s conclu-sory statements. The Weaver trial occurred after movant’s, so it cannot be presumed that movant or his counsel should have been aware of the evidence in that case.

Our examination of that partial transcript reflects that most of the witnesses in that case supportive of defendant Weaver, were character witnesses or alibi witnesses. None of the testimony of those witnesses was even remotely of value to movant. Weaver himself testified in rather effective style. Movant attended the first day of his trial; failed to show up on the second day of trial; was tried and convicted in absentia; was arrested several months later in California and returned to the court for sentencing. He obviously did not testify and was not available to assist his counsel in the defense. Movant has made no allegation that the witnesses in Weaver’s case who might have been of value to mov-ant were revealed to counsel by movant or otherwise known to counsel.

The “medical condition” mentioned in movant’s motion apparently is gonorrhea. Evidence of this condition was elicited in the Weaver case to serve as a predicate to expert medical testimony that such a condition would or probably would result in bleeding if the sexual torture described by the victim had occurred. No such bleeding did occur. We can hardly conclude that this “medical condition” was known by the prosecutor to be favorable to defendant, nor that the trial court had the obligation to locate such fact from movant’s non-specific reference to the Weaver transcript in his motion.

We turn to the allegation of counsel’s failure to file a motion for new trial, which was a prerequisite for meaningful appellate review of the conviction. Mere failure to take an appeal does not constitute ineffective assistance of counsel. Only where appellant wishes to appeal and his attorney either refuses or negligently fails to take the proper steps to appeal is there ineffective assistance of counsel. Brown v. State, 512 S.W.2d 404 (Mo.App.1974) [9,10]; Green v. State, 451 S.W.2d 82 (Mo.1970) [2-5]. In the normal procedures involving prosecutions for offenses against society, the law does not force an appeal upon an accused. State ex rel. Garrett v. Gagne, 531 S.W.2d 264 (Mo. banc 1975) [2-4], An escape “disentitles the defendant to call upon the resources of the Court for determination of his claims.” Estelle v. Dorrough (1975), 420 U.S. 534 l.c. 537, 95 S.Ct. 1173, l.c. 1175, 43 L.Ed.2d 377. In the absence of some reason making it impossible to appear, an accused by his absence evidences his disdain for the law and its legal processes. State ex rel. Garrett v. Gagne, supra. [2-4]. In short, a defendant who escapes or flees the jurisdiction during his trial or during the post-trial proceedings relinquishes his right of appeal. That was what movant here did. He is in no position to charge his counsel with ineffectiveness for failing to pursue that which movant by his conduct had relinquished.

The order of the trial court is affirmed.

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


author: DONALD L. MASON, Special Judge.

text:
    ST. LOUIS UNION TRUST COMPANY, as Trustee Under the Provisions of the Last Will and Testament of Irene B. Hoffman, Deceased, Plaintiff-Appellant, v. Merlie Oliver BRUG et al., Defendants-Respondents.
    No. 38349.
    Missouri Court of Appeals, St. Louis District, Special Division.
    Oct. 18, 1977.

      R. H. McRoberts, Jr., G. William Weier, St. Louis, for plaintiff-appellant.
    James A. Pudlowski, Leo Lyng, Joseph B. Dickerson, Jr., Charles Alan Seigel, St. Louis, for defendants-respondents.
   DONALD L. MASON, Special Judge.

In this court-tried case plaintiff, as trustee under the last will and testament of Irene B. Hoffman, sought determination “as to whether or not plaintiff has authority to sell its interest in the real property described” in the will; and in the event a negative decision be rendered requested the Court to “order the will reformed so as to provide authority in plaintiff to sell its interest in such real property.” Plaintiff also prayed that it be allowed attorney’s fees and court costs from the trust estate. Suffering an adverse judgment, the plaintiff now appeals alleging the judgment of the trial court in decreeing that the plaintiff did not have the authority to sell real estate was against the weight of the evidence; and further, the refusal of the trial court to allow attorney’s fees and court costs to be collected from the trust estate was against the weight of the evidence and an erroneous application of the law.

Inasmuch as the judgment of the trial court will be sustained “unless it is against the weight of the evidence . . . or unless it erroneously applies the law,” Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the errors leveled at the trial court require an examination of the evidence and of the testamentary document.

The function of a court is to construe a will as written by the testatrix and not make or rewrite one for the testatrix under the guise of construction, First National Bank of Kansas City v. Danforth, 523 S.W.2d 808 (Mo.1975). In performing this task we must consider the will as a whole and not give undue preference to any particular clause. When the intent of the testatrix is found, the proper construction is achieved, Mercantile Trust Company National Association v. Jaeger, 457 S.W.2d 727 (Mo. banc 1970); Scullin v. Mercantile-Commerce Bank & Trust Company, 361 Mo. 337, 234 S.W.2d 597 (1950).

In the brief trial plaintiff’s trust officer testified that the Trustee had some doubt whether it had the power to sell real estate held under Item VII of the testamentary document and that one of the title companies had declared they would not pass title absent a court declaration of said power. As two of the three tracts of real estate produced no income and the third tract of real estate produced only minimal income, the trustee was of the opinion that it would be in the best interest of the trust estate to sell the real estate and invest the proceeds in income producing property.

No precedential value would be gained by a dissertation of the lengthy provisions of the testamentary document, Hereford v. Unknown Heirs, et al., 292 S.W.2d 289, 293 (Mo. banc 1956). Item VI grants extensive and discretionary powers to the trustee including the power to sell. Item VII(a) of the trust document specifically provides, in part, that the net income from a described tract of real estate be paid to identified great grandchildren; and upon the death of the last survivor of those great grandchildren, the real estate would be distributed as provided in subparagraph (d). Item VII(b) of the trust document specifically provides that a three-acre tract of real estate be held by the Trustee for the sole benefit of, including payment of net income to, an identified great grandson and granted to him the power of appointment. If he failed to exercise that power of appointment, the described real estate would be distributed equally to the surviving great grandchildren identified in subparagraph (a); and if none of them survived, then to the heirs at law of the great grandson who was the original beneficiary. Inasmuch as that great grandson survived the testatrix, the additional provisions are not germane. The third tract of real estate was detailed in subparagraph (c) which provided that the net income be paid to a daughter and the children of that daughter. Upon the death of the last of these identified beneficiaries, this tract of real estate was to be distributed as provided in subparagraph (d).

Subparagraph (d) directed the trustee to pay monthly amounts from “the balance of the property held in trust” to a daughter and to each grandchild and great grandchild who survived the testatrix. Subpara-graph (d) further provided that upon the death of the last surviving income beneficiary, the assets comprising the trust estate “shall be paid over free of the trust in such proportions and to such persons and organizations as such last survivor” shall appoint; and upon the failure of appointment, the trust estate was to be distributed in accord-anee with the laws of Missouri pertaining to those persons who died intestate.

It is obvious, and with no ambiguity, that the testatrix did not intend to grant to the trustee the power to sell the three tracts of real estate. She specifically described this part of her trust estate and made unequivocal provisions as to the distribution of the net income and the use of this real estate, and for final distribution. She recognized in subparagraph (d) that the gross income from the real estate might not be sufficient to pay taxes or assessments and insurance premiums imposed upon the respective properties by providing that the trustee could “encroach upon the principal of the remaining trust estate’’ to pay those expenses. She further directed that these expense items be charged against the individual income accounts before payment of net income and any advancement of these expense items from the remaining trust estate would be repaid when sufficient income was received. That she separated this real estate from the balance of the trust estate, to which the general powers granted to the trustee in Item VI applied, is further manifested by her specific instructions that the monthly income payments be paid only from the net income from “the balance of the property held in trust.” In all of Item VII the power of sale is not granted to the trustee.

An examination of the entire testamentary document and the specific instructions contained in that document to which we have alluded are persuasive clues that it was the intent of the testatrix that the trustee not be granted the power to sell the real estate, and she so declared without ambiguity, St. Louis Union Trust Company v. Krueger, 377 S.W.2d 303 (Mo. banc 1964). Her intention is so clearly expressed there is no room for construction, Scullin v. Mercantile-Commerce Bank & Trust Company, supra. To declare the trustee has the power of sale of the real estate would be reforming the will which the Court does not have the power to do even though it might be economically wise, First National Bank of Joplin v. Solomon, 412 S.W.2d 458 (Mo. 1967).

In conformity with an equitable doctrine that a trust fund should bear the expense of its own administration the trustee’s legal expenses are generally allowed when doubt arises as to the true construction of an instrument by which a trust is created, and there are different claimants, or where an instrument that creates a trust estate is so ambiguous that two or more persons may fairly make an adverse claim to the fund, Lang v. Taussig, 194 S.W.2d 743 (Mo.App.1946); Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104 (1934). The only reasons for the trustee precipitating this litigation that can be gleaned from the evidence is that the property produced only minimal income, the trustee was of the opinion that the best interest of the estate would be served by selling the property, and the owner (not a trust beneficiary) of a one-third undivided interest in the real estate wished to sell. There is no indication that any of the trust beneficiaries desired the trustee to sell or that the trustee was acting on behalf of one or more of those beneficiaries or engaged in a dispute with beneficiaries adopting an adverse position. The economic concern of the trustee cannot supplant the clear and unambiguous directions of the testatrix and form the basis for an allowance of attorney’s fees.

Being of the firm belief the judgment of the trial court is correct in all respects, that judgment is affirmed.

SIMEONE, C. J., and CLEMENS and DOWD, JJ., concur.

      . In its brief appellant also alleged error in the reception of certain testimony from the single defendant who testified, but that point was abandoned on oral argument.

      . See will contest case Brug v. Manufacturers Bank & Trust Company, et al., 461 S.W.2d 269 (Mo. banc 1970).


author: STEWART, Judge.

text:
    STATE of Missouri, Respondent, v. Joe S. HEGWOOD, Appellant.
    No. 37854.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 25, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.
    Application to Transfer Denied Dec. 19, 1977.

      Melvin G. Franke, Gary L. Gardner, Union, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Walter O. Theiss, Jefferson City, Daniel M. Buescher, Pros. Atty., Union, for respondent.
   STEWART, Judge.

A jury convicted defendant, Joe S. Heg-wood, of murder in the second degree and assessed his punishment at 99 years imprisonment. Defendant appeals from the judgment entered on the verdict.

In stating the facts we view the evidence in the light most favorable to the verdict. State v. Stancliff, 467 S.W.2d 26, 27 (Mo.1971). The jury could reasonably have found the facts to be as follows: Defendant met Phyllis Spurlin at Kings Bar in Bonne Terre, Missouri, in early August of 1974. He spent the next two or three days and nights with her. On August 9, they drove to Sullivan, Missouri, where they visited Phyllis Spurlin’s cousin, Delphia Bacon. They arrived in Sullivan a little after 8:00 p. m. Defendant and Phyllis Spurlin left Delphia Bacon’s house at about 8:45 p. m. The body of Phyllis Spurlin was discovered at about 11:00 p. m., about 35 feet off of Highway 66 Business Route, on a road leading to the C. & S. Packing Co. This location is approximately 1 mile east of Sullivan, Missouri and across town from the house where they visited Miss Bacon.

Mrs. Spurlin had a bullet wound to the rear of her right ear and three bullet wounds in her back below the seventh cervical vertebra. The bullet wound to the head would be an immediate cause of death. The multiple gun shot wounds of the back could also have caused death. The bullets had been fired from a gun found in defendant’s apartment in Jefferson City when he was arrested there on the 10th of August, 1974.

Persons in the vicinity where the body was found, heard what sounded like fire crackers or gun shots at about 9:00 p. m. on August 9. A car was observed driving away from the area at the same time. The jury could reasonably find that defendant had shot and killed Phyllis Spurlin.

Part A of defendant’s first point relied on reads:

“The court errored [sic] in failing to give any instruction relating to the legal effect of alcohol, be it with regard to guilt or innocence of intent, and particularly so after having given instruction number 6 containing the optional clauses that relate to intoxication or drugged condition.”

This point fails to tell us wherein and why the court erred in failing to give an instruction relating to the legal effect of alcohol. Rule 84.04(d). State v. Johnson, 537 S.W.2d 816, 819[9, 10] (Mo.App.1976). We have searched the argument and find no further reference to Instruction 6 and its connection with the point sought to be raised. We have checked the transcript and find that Instruction 6 covers the question of the voluntary character of defendant’s statements which were made to law enforcement officers and relates to defendant’s understanding of what he was saying and doing at the time the statements were made, it has no reference to defendant’s abilities at the time of the commission of the crime.

Part B of the defendant’s first point relied on charges that the court erred in refusing to give his requested Instructions D2, D3, D4, D5 and D8.

Instructions D2 and D4 are instructions on murder in the second degree. Instructions D3, D5 and D8 are on manslaughter.

The issue raised revolves around a clause common to each of the refused instructions. We set out D2 in full and underline that portion of the instruction at issue:

“If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about August 9, 1974 in the County of Franklin, State of Missouri, the defendant caused the death of Phyliss Dixon Spurlin, by shooting her and, Second, that the defendant intended to take the life of Phyliss Dixon Spurlin, and Third, that the defendant did not do so in agitation suddenly provoked by the unexpected acts or conduct of Phyliss Dixon Spur-lin, and Fourth, that the death of Phy-liss Dixon Spurlin was not an excusable homicide as submitted in instruction No_,
then you will find the defendant guilty of murder in the second degree unless you find and believe from the greater weight of the evidence that the defendant is not guilty because he was under the influence of alcohol or drugs to such a degree that his judgment was impaired and rendered him incapable of conforming his behavior to the requirements of the law.
If you do find the defendant guilty of murder in the second degree, you will fix his punishment at imprisonment by the Department of Corrections for a term fixed by you but not less than ten years nor more than life imprisonment. MAI-CR 6.06 as modified”

The evidence in the case concerning the issue sought to be raised came from the State’s witness, Sheriff Schroeder, who testified that defendant had told him that he had gone to Sullivan, Missouri, with Phyllis Spurlin to visit a relative of hers. They arrived about 7:00 or 7:30 and stayed for an hour or so. Defendant was asked if he had killed Phyllis and replied, “I don’t know if I did or not if I did I can’t imagine why I would have done it.” Defendant told the sheriff that he was pretty drunk and that he didn’t remember very much; that he had been on a two week drunk; that he had been in a drunken stupor.

Under Rule 20.02(a) the court must instruct on every defense warranted by the evidence, even though not requested. State v. Thornton, 557 S.W.2d 1 (Mo. Court of Appeals, St. Louis Dist., filed August 16, 1977); State v. Chaney, 349 S.W.2d 238, 241 (Mo.1961). The question which we are ultimately asked to determine is whether defendant’s contention that he was intoxicated to the extent that he could not remember what he was doing would constitute a defense to the crime charged. Defendant’s counsel has done extensive research in this field and asks that we rule that intoxication is a defense at least on the issue of specific intent.

The rule in Missouri is that “voluntary intoxication is not a defense to a criminal charge and . . the rule does not even allow a jury to consider such intoxication on the issue of specific intent.” State v. Richardson, 495 S.W.2d 435, 440 (Mo. banc 1973); State v. Shipman, 354 Mo. 265, 189 S.W.2d 273, 275[1] (Mo.1945). See also, State v. Hindman, 543 S.W.2d 278 (Mo.App.1976). We are constitutionally bound to follow the last controlling decision of the Supreme Court of Missouri, Mo. Const. Art. 5, § 2. State v. Wood, 531 S.W.2d 543, 546[1] (Mo.App.1975). We must follow the rule in Richardson. The court did not err in failing to instruct on this issue.

Defendant also contends that the evidence was insufficient to support a circumstantial evidence case because there was a reasonable theory of innocence; that the defendant did not have the specific intent required for a conviction of murder in the second degree or of manslaughter as submitted, because of defendant’s intoxication. Defendant concedes that absent the issue of intoxication there was sufficient evidence to warrant giving the instruction on murder in the second degree (Instruction No. 7). As with defendant’s first issue, this issue is answered by Richardson, supra. Intoxication may not be considered on the issue of specific intent.

Defendant’s next point asks us to determine that the rule in Richardson is unconstitutional as a violation of the due process clause “of the Sixth and Fourteenth amendments to the Constitution of the United States and of Article I, sections ten and eighteen of the Missouri Constitution . . ”

If this issue were properly preserved for review we would be required to transfer the case to the Missouri Supreme Court because this court has no jurisdiction where the issue is the construction of the constitution. Mo.Const. Art. V, Section 3; City of St. Louis v. Tinker, 542 S.W.2d 512, 513[1] (Mo. banc 1976); State v. Euge, 359 S.W.2d 369, 370[3] (Mo.App.1962).

We need not transfer this case because this issue was not raised at the earliest opportunity in the case nor did defendant attempt to preserve such an issue in his motion for new trial. State v. Holley, 488 S.W.2d 925 (Mo.App.1972); State v. Flynn, 519 S.W.2d 10, 12-13 (Mo.1975). Because this issue has not been preserved for review, we can neither consider the issue nor transfer this case to the Supreme Court for lack of jurisdiction. State v. Euge, supra.

We read defendant’s next point as contending that the court erred in failing to give an instruction on manslaughter by reason of culpable negligence because defendant was intoxicated. Defendant concedes that this point would “rise or fall” with his first contention. What we have said on that issue disposes of this contention and requires no further discussion.

Defendant’s next point reads:

“The court committed plain error in giving instruction number 8 because that instruction from MAI-CR 6.08 by not requiring the State to prove the specific intent to kill, unconstitutionally relieved the State of its burden of proving each and every element of the crime beyond a reasonable doubt. That is because from the circumstances of this case, if there was manslaughter, it was either voluntary manslaughter or culpable negligence manslaughter but not [injvoluntary manslaughter.”

Once again defendant seeks to raise a constitutional issue which was not presented to the trial court. Nor did he specify the sections of the Constitution or Constitutions which he claims the instruction violates. The issue is not properly presented for our review. State v. Flynn, 519 S.W.2d 10, 12[3] (Mo.1975).

The instruction questioned is MAI-CR 6.08. This instruction withstood an attack on the ground that it did not require a finding of the specific intent to kill in State v. Blockton, 526 S.W.2d 915 (Mo.App.1975). See also, State v. Stoer, 553 S.W.2d 484, 485[3] (Mo.App.1977). It requires no further discussion here.

As we interpret defendant’s next contention he claims that the giving of instruction 7 (MAI-CR 6.06 Murder: Second Degree) and 8 (MAI-CR 6.08 Manslaughter: other than by culpable negligence) was erroneous because the submissions, when considered together, resulted in instructing down from murder in the second degree to manslaughter, placing on defendant the burden of reducing the charge from murder in the second degree to manslaughter.

The instructions given were required to be given in this case under Rule 20.02(c). Instruction No. 7 conforms to MAI-CR 6.06. Instruction No. 8 conforms to MAI-CR 6.08. Notes on Use (b) under MAI-CR 6.06 requires that MAI-CR 6.08 be given in all cases where submission of 6.06 is warranted. We may not hold that the trial court erred under these circumstances. State v. Blockton, supra.

By giving Instructions 7 and 8, the trial court did not place any burden upon defendant. The state was required to prove each and every element of the crimes chárged before defendant could be found guilty on either charge. No where in the instructions was the jury charged that defendant had any burden whatever. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), has nothing in common with the case before us. We rule this issue against defendant.

Donald Brocksmith, director of the police laboratory testified on behalf of the State. His testimony was confined to his examination of defendant’s gun and the bullets recovered from the body of the victim. On cross-examination the witness testified that he had sent swab tests of the victim to the Environmental Trace Substance Research Center in Columbia, Missouri and that he had received a letter from a Dr. Morris with respect to the results of that examination made by the Research Center. When defendant attempted to have the witness testify as to the contents of the letter the court sustained the State’s objection on the ground that it was hearsay.

Defendant contends that this ruling was erroneous because “the answer to the question was an exception to the hearsay rule and within the proper scope of cross-examination.” Defendant concedes the contents of the letter were hearsay, however, he failed to inform the court of the exception to the hearsay rule that he contends is applicable.

We agree with defendant that under § 491.070 he was entitled to cross-examine the witness on the entire case. The statute does not, as defendant argues, abolish the hearsay rule on cross-examination. No effort was made to bring this letter within the Uniform Business Records as Evidence Act 490.660-490.690. The letter was clearly hearsay and defendant has not brought it within any exception to that rule. Pietrowski v. Mykins, 498 S.W.2d 572 (Mo.App. 1973).

Finding no error the judgment of the trial court is affirmed.

McMILLIAN, P. J., and REINHARD, J., concur.

      . “If you find and believe from the evidence beyond a reasonable doubt:
      First, that on or about the 9th day of August, 1974, in the County of Franklin, State of Missouri, the defendant caused the death of Phyllis Dixon Spurlin by shooting her, and
      Second, that the defendant intended to take the life of Phyllis Dixon Spurlin, and
      Third, that the defendant did not do so in anger, fear or agitation suddenly provoked by the unexpected acts or conduct of Phyllis Dixon Spurlin,
      then you will find the defendant guilty of murder in the second degree.
      However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty of that offense.”

      . “If you do not find the defendant guilty of murder in the second degree, then you must consider whether or not under the evidence in this case he is guilty of manslaughter.
      If you find and believe from the evidence beyond a reasonable doubt that on or about the 9th day of August, 1974 in the County of Franklin, State of Missouri, the defendant caused the death of Phyllis Dixon Spurlin by shooting her, then you will find the defendant guilty of manslaughter.
      However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty of that offense.”


author: REINHARD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Johnnie MITCHELL, Defendant-Appellant.
    No. 38414.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 25, 1977.

      Robert C. Babione, Public Defender, Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Julian Co-sentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   REINHARD, Judge.

Defendant Johnnie Mitchell appeals from his conviction for the offense of robbery in the first degree with a dangerous and deadly weapon, §§ 560.120, 560.135, RSMo.1969. A jury fixed punishment at five years imprisonment.

As grounds for reversal, defendant argues that the trial court erred (1) in failing to sustain defendant’s motion to suppress in-court identifications; and (2) in admitting evidence obtained by means of a war-rantless search.

On February 3, 1975, John Gray, an employee of Chowmobile, was operating the mobile food vending service on the premises of the Brown Shoe Company in St. Louis. Gray was assisted by Nathaniel Holsey, age ten, who resides in a neighborhood near the Brown Shoe Company and who worked for Gray when the latter brought his food service operation to the Brown Shoe location. As he was preparing to close, Gray was approached from behind by a man carrying a gun. Gray turned, the man pulled the gun from his coat pocket, held the gun to Gray’s face and demanded money. Gray gave the man the currency he had in his hand and a money changer containing coins, totaling approximately $120.00. Nathaniel Holsey witnessed the incident from a crouched position behind an automobile parked near the Chowmobile truck, out of view of the robber. The man fled on foot up Gamble Street, the street on which young Holsey lived.

When the police arrived, Gray offered a description of the robber, including his approximate age, height and weight, the clothes worn by him, and the fact that he wore a thin goatee and moustache. Nathaniel Holsey recognized the robber, indicating to the police that he had seen the man many times at a house on Gamble, down the street from Holsey’s. Holsey led the police to the residence at 2707 Gamble, where several officers knocked and were admitted. Inside they encountered several women and five men, including the defendant. The five men were asked to step outside onto the front porch, where they were informally lined up. The officers requested identification, and as the defendant reached for his driver’s license, a .32 bullet fell from his pocket. A pat-down search of all the men was conducted, and $8.60 in change and two more .32 bullets were discovered on the defendant’s person.

Standing on the street with another police officer, Nathaniel Holsey positively identified the defendant as the robber from among the five men on the porch. Gray tentatively identified the defendant, and upon seeing defendant at closer range, positively identified him. Gray relied on his recollection of the defendant’s facial features, the goatee and moustache, in identifying defendant as the robber. The identifications were made within thirty minutes following the robbery.

Subsequently, two officers conducted a search of the house and discovered a chrome-plated .32 revolver and a silver metal coin changer. Prior to trial, Gray was shown these items and identified the changer as his and stated that the gun was similar to that used in the robbery.

Defendant’s first contention is that in-court identifications of defendant by Gray and Holsey should have been suppressed due to the lack of an independent basis for such identifications. In support of his contention, defendant points to the limited opportunity of Gray and Holsey to observe the robber at the time of the incident. Thus, it is argued, the basis for the in-court identification must have been the opportunity to view and identify defendant shortly after the incident as the latter stood on the front porch of the house on Gamble Street. If it is determined that this confrontation was “unnecessarily suggestive and conducive to irreparable mistaken identification,” Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), then in the absence of an independent basis of identification, in-court identification testimony must be suppressed.

We hold that there was an independent basis for the in-court identification. In-court identification testimony is admissible if identification had an origin and was on a basis independent of the questioned confrontation. State v. Carter, 478 S.W.2d 358 (Mo.1972); State v. Brownridge, 459 S.W.2d 317 (Mo.1970); State v. Green, 515 S.W.2d 197 (Mo.App.1974); State v. Goshon, 506 S.W.2d 99 (Mo.App.1974). We must disagree with defendant’s suggestion that the victim and the eyewitness were unable to closely observe the defendant in the few moments during which the robbery occurred. Gray stood face to face with the robber long enough to discern the clothes he was wearing, his facial features, and his thin goatee and moustache. Young Holsey, having seen the defendant on numerous previous occasions, immediately recognized him. The evidence indicates Gray and Hol-sey had ample opportunity to observe defendant.

When there is proof of an independent source upon which a witness’s in-court identification is based, as we have found here, it is not necessary to examine the details of the questioned pre-trial identification procedure. State v. Ross, 502 S.W.2d 241 (Mo.1973). However, we do not find that the informal lineup was improper. The confrontations occurred within twenty to thirty minutes of the robbery and both witnesses identified the defendant. See State v. Smith, 465 S.W.2d 482 (Mo.1971); State v. Hamblin, 448 S.W.2d 603 (Mo.1970); State v. McDonald, 527 S.W.2d 46 (Mo.App. 1975).

As grounds for suppression of in-court identification testimony, defendant also asserts that photographic identification procedures conducted immediately before trial by the prosecutor were unnecessarily suggestive. We reject this point, again pointing out that proof of a basis of identification independent of the questioned identification procedure is sufficient to overcome a claim of unnecessary suggestiveness.

Defendant next contends that the court erred in admitting evidence on items (revolver, coin changer and change) which he alleges were obtained by means of an unlawful search and seizure.

In State v. Harrington, 435 S.W.2d 318, 320 (Mo.1968), the Supreme Court stated: “It has long been the rule in this state that evidence obtained by means of an unlawful search and seizure by police officers is not admissible in evidence against the person searched where timely objection to the use of such evidence is made * * *. The procedural rules of this state, with an exception not here material, require that the contention of an unlawful search and seizure be made by motion to suppress the evidence in advance of trial. * * * The only exception under our procedural rule is where the defendant ‘had no reason to anticipate the evidence would be introduced and was surprised.’ ” The defendant in this case did not file a motion to suppress this evidence, did not assert he was surprised upon introduction of the evidence of which he complains, and did not make a proper objection at the time of its admission at trial. The point therefore has not been preserved for appellate review. State v. Flynn, 519 S.W.2d 10 (Mo.1975); State v. Madison, 459 S.W.2d 291 (Mo.1970); State v. Brayfield, 540 S.W.2d 233 (Mo.App.1976).

The judgment of the trial court is affirmed.

McMillian, p. j., and stewaRt, j., concur.


author: McMILLIAN, Judge.

text:
    Winifred Ann BOMMARITO, Petitioner-Appellant, v. Thomas Peter BOMMARITO, Respondent.
    No. 38578.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 25, 1977.
    William E. Albrecht, Clayton, for petitioner-appellant.
    Nicholas J. Riggio, Sr., LeRoy Crouther, Jr., St. Louis, for respondent.
   McMILLIAN, Judge.

Petitioner Winifred Ann Bommarito appeals from a decree of the circuit court of St. Louis County, Missouri, dissolving the parties’ marriage and dividing their property. Petitioner claims the trial court’s division of property constituted an abuse of discretion and an improper construction and application of § 452.330, RSMo Supp. 1975. We disagree and, finding that an extended opinion would have no precedential value, accordingly affirm the decree. Rule 84.-16(b), V.A.M.R.; e. g., Czapla v. Czapla, 552 S.W.2d 286 (Mo.App.1977).

At oral argument attorney for appellant modified the value of property awarded to respondent Thomas Peter Bom-marito by deducting a $7500 property settlement. This modification made the value of property awarded each party approximately $19,500.00. The law does not require an exact equal division of property but a just distribution of property, e. g., In re Marriage of B.K.S., 535 S.W.2d 534 (Mo. App.1976). The trial court has a great deal of flexibility in dividing marital property, In re Marriage of Heddy, 535 S.W.2d 276 (Mo.App.1976). Under the facts of this case, we do not believe the trial court abused its discretion.

Judgment affirmed.

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


author: DOWD, Judge.

text:
    Lula Mae LOCKETT, Appellant, v. Frank LOCKETT, Jr., Respondent.
    No. 38589.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 25, 1977.
    Homer N. Mastorakos, Chesterfield, for appellant.

      Donald W. Paule, Clayton, for respondent.
   DOWD, Judge.

Appellant Lula Mae Lockett filed a petition for dissolution of her marriage in the circuit court of St. Louis County. She requested custody of her minor child, maintenance, child support, attorney fees, and costs.

Lula Mae Lockett and Frank Lockett, Jr. were married in 1962. Mrs. Lockett was a school teacher for several years while Mr. Lockett finished college. Mrs. Lockett has earned her masters degree and has completed her course work on her Ph.D. Only her dissertation remains before she will receive her Ph.D. At the time of the trial, Mrs. Lockett was employed at Southern Illinois University-Edwardsville campus as an instructor in the psychology department.

Frank Lockett, Jr. has a college degree and founded an employment agency in 1969. The business has grown annually. In 1974, Mr. Lockett’s income from the business was approximately $24,000.

The court granted the dissolution of the marriage and awarded custody of the minor child to the appellant. The court ordered respondent, Frank Lockett, Jr. to pay $50 per week child support, attorneys fees of $3000.00 and costs. The court made the following division of marital property: Lula Mae Lockett was awarded all the furniture, furnishings, and appliances now in her possession, a 1971 Saab automobile, and her personal effects. Frank Lockett, Jr., was awarded all the furniture, furnishings, and appliances in his possession and his personal effects. The decree was amended two days later to award all the stock in Frank Lock-ett and Associates, the employment agency, to the respondent.

Appellant raises two issues on appeal: 1) the trial court erred in awarding all the stock in Frank Lockett and Associates to the respondent; and, 2) the court erred in not awarding more than $50 per week in child support.

In this court-tried case, we are required to affirm the judgment below unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. In re Carmack, 550 S.W.2d 815, 817[1] (Mo. App.1977); Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

Appellant’s initial contention involves the division of marital property. Appellant argues that the stock awarded to the respondent was “the only substantial marital asset,” and therefore the court erred in awarding all of it to the respondent. Appellant in fact does not want the stock, but requests a monetary award to remedy the alleged disparity in the settlement.

Section 452.330 RSMo Supp.1976 lists four factors which the trial court must consider in dividing marital property: 1) the contribution of each spouse to the acquisition of the marital property; 2) the value of the property set apart to each spouse; 3) the economic circumstances of each spouse at the time of the division of the property; 4) the conduct of the parties during the marriage. These factors are not exclusive. In re Marriage of Heddy, 535 S.W.2d 276, 281 (Mo.App.1976).

We believe that when viewed in light of the above considerations, the trial court’s division of marital property is supported by substantial evidence.

It is important to note that a fair and equitable distribution of marital property cannot be accomplished by the rigidity of a mathematical formula. Seiner v. Seiner, 552 S.W.2d 54, 56[3] (Mo.App.1977). Rather the standard is one of flexibility, which usually results in fairness to both the parties.

The trial court decree awarded the appellant all the furniture, furnishings, and appliances in her possession. The record indicated that the appellant took all the furniture and furnishings from their home at the time of the separation. The uncon-troverted cost of these items was in excess of $6000.00. The respondent on the other hand had received all the furniture and furnishings in his possession which, in view of the appellant taking all the belongings at the time of the separation, amounted to his clothing and other personal items. The appellant also received a 1971 Saab automobile.

Appellant’s take-home pay is approximately $1200 per month. Respondent brings home approximately $900 per month, but has historically received a substantial bonus each year.

There is conflicting testimony as to the contributions of each spouse to the acquisition of the marital property. Suffice it to say that both parties made significant contributions.

The center of controversy in this appeal involves the stock in Frank Lockett and Associates, Inc. As stated above, the trial court amended its decree to award the stock to the respondent. The value of the stock is in dispute. Respondent contends the book value of the stock is $2,515.00. Appellant contends the book value is $56,-515.00. The reason for this discrepancy stems from a recent change in accounting practice for retainers received by the corporation. In prior years, retainers received were shown as income. The effect of his practice was to increase stockholders equity and therefrom the book value of the stock.

In 1975, the employment agency received a $50,000.00 retainer. Rather than treating this retainer as income, the accountant set up a deferred income account which did not increase income until the retainer was periodically earned. In the unaudited financial statements prepared for the hearing, the retainer appeared as deferred income, resulting in a significantly lower book value for the stock. Apparently the trial court valued the stock at the lower amount in its division of marital property.

Appellant alleges this change in accounting practice was done to deflate the book value of the stock, but is unable to present any evidence to corroborate her allegation.

We believe the trial court was correct in its valuation of the stock. The retainer is not income until actually earned. The agreement governing the retainer provides for a refund of any amount not earned by the corporation. At the time of trial, only $3,700 was earned by the corporation. The agreement also provided a right of termination, which if exercised, would obligate the corporation to refund the balance of $46,-300. We are unable to view this retainer as augmenting the value of the stock.

The second issue raised by the appellant can be considered without lengthy discussion. Appellant contends the trial court erred in not awarding more than $50 per week in child support.

Section 452.340 sets out six factors a trial court may consider in determining child support payments: 1) the father’s primary responsibility for support of his child; 2) the financial resources of the child; 3) the financial resources of the custodial parent; 4) the standard of living the child would have enjoyed had the marriage not been dissolved; 5) the physical and emotional condition of the child, and his educational needs; and, 6) the financial resources and needs of the non-custodial parent.

We believe that when viewed in light of the above considerations, the award of child support is supported by substantial evidence. Both parties are in good financial positions. Both have excellent earning capacity for the future. We see no reason to interfere with the decree of the trial court.

We find that there was substantial evidence to support the decree of the trial court, and it did not erroneously declare nor erroneously apply the law. Murphy v. Carron, supra.

The judgment is affirmed.

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


text:
    STATE of Missouri, Respondent, v. Michael FELTON, Appellant.
    No. 37522.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 25, 1977.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Frank Murphy, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael G. Ravetta, Asst. Circuit Atty., St. Louis, for plaintiff-appellant.
    Scott Richardson, Newmark & Richardson, St. Louis, for defendant-respondent.
   DOWD, Judge.

Defendant-appellant Michael E. Felton was convicted by a jury in the Circuit Court of the City of St. Louis of burglary in the second degree. In accordance with the Second Offender Act, Section 556.280 RSMo 1969, the court sentenced the defendant to five years in the custody of the Missouri Department of Corrections. Defendant does not challenge the sufficiency of the evidence, therefore, only the germane facts will be presented.

While on afternoon patrol in an unmarked car on June 24, 1974, Officers James Eichelberger and Wayne Keasling witnessed the defendant and one Hanford Tony Gaskin carrying stained glass windows from the premises located at 3952 Shaw, in St. Louis. A jacket was draped over the windows. The officers then observed the defendant and Gaskin proceed to a car and place the windows in the trunk. Driving up to where the vehicle was located, the officers, dressed in civilian clothes, alighted from their car and identified themselves as police officers. Officer Eichelber-ger asked the defendant where he obtained the windows. The defendant stated he received them from a friend, but was unable to recall his name. Officer Eichelberger informed the defendant that he was under arrest and proceeded to search him. The search produced a screwdriver which, along with the windows and jacket, was seized as evidence.

The officer returned to the premises located at 3952 Shaw where he originally observed the defendant and Gaskin. Upon investigation of the premises Officer Ei-chelberger discovered two windows were missing from the building. Further investigation revealed that Mr. John Noecker, owner of the premises at 3952 Shaw, did not know the defendant, nor give him permission to remove the windows.

The police evidence unit was called in to perform an investigation. Fingerprints taken from the inside window sill matched the defendant’s prints. Also, paint chips found in defendant’s clothing matched samples removed from the premises located at 3952 Shaw.

Prior to the trial, defendant entered a motion to suppress certain evidence. After hearing testimony, the trial court denied the motion.

Testimony adduced at the trial included that of Officers Eichelberger and Keasling; John Noecker, owner of the premises located at 3952 Shaw; police technicians John Salamone and Emile Fiala; and Criminologist Marilyn Rummler. Defendant’s counsel failed to object to the introduction of any physical evidence offered by the State. Defendant did not call any witnesses in his defense.

This appeal followed the denial of a post-trial motion which failed to contain any reference to physical evidence allegedly obtained by unlawful means.

Defendant raises one issue on appeal. Defendant contends the trial court erred in denying his pre-trial motion to suppress certain physical evidence seized by the arresting officer in violation of the fourteenth amendment. Apparently defendant contends the screwdriver, jacket, and windows seized by the arresting officer were fruits of an illegal search and therefore should have been excluded as evidence.

The merits of defendant’s contention turns on whether probable cause existed to arrest the defendant. However, the threshold question in this appeal involves the fundamental requirements to preserve alleged error for appellate review. Respondent contends the issue raised in this appeai was not preserved for review. The defendant of course argues otherwise, but in any event requests this court to consider the issue as plain error.

It is well-settled in Missouri that in order to preserve an issue relating to the validity of a search and the admissibility in evidence of fruits of that search, defendant must not only file a motion to suppress the controverted evidence, but also keep the question alive by timely objection, and by preservation of issue in his motion for a new trial. State v. Yowell, 513 S.W.2d 397 (Mo.1974).

In the case before us, the record does not contain timely objection to the controverted evidence. Nor does the motion for new trial refer to any physical evidence. The motion for new trial refers only to certain admissions made by the defendant prior to arrest. In view of the failure to follow the procedure to preserve issue for review, we are unable to consider the merits of defendant’s contention.

As stated above, defendant requests that we consider the issue raised as plain error. In State v. Meiers, 412 S.W.2d 478 (Mo. 1967), our Supreme Court set out some general guidelines on the scope of plain error (at 480, 481):

“ . . . Since its adoption we have invoked Rule 27.20(c) on a case by case basis to prevent ‘manifest injustice or miscarriage of justice’ and shall continue to do so where substantial rights are affected whether or not the error is ‘ . raised in the trial court or preserved for review, or defectively raised or preserved . . . ’ But there must be a sound, substantial manifestation (not perceivable here), a strong, clear showing that injustice or miscarriage of justice will result if the rule is not invoked. We shall not invoke the rule in every case where it is claimed for the first time on appeal that this or similar state or federal constitutional rights have been violated, or for that matter in every case where it may appear for the first time on appeal that such rights in fact have been violated.”

In the case before us we find no manifest injustice or miscarriage of justice. Here the fingerprints removed from the burglarized premises matched those of the defendant. Also, paint chips found on defendant’s clothing matched samples taken from the premises. The conduct of the arresting officers does not demonstrate a lack of adherence to constitutional standards. The evidence presented by the state was incriminating. Thus, we find neither a sound, substantial manifestation of error, nor a strong clear showing that injustice or miscarriage of justice will result if the plain error rule is not invoked. Cf. State v. Howard, 540 S.W.2d 86 (Mo.1976).

Judgment affirmed.

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


text:
    Pauletta CORBETT, Appellant, v. Michael J. SNITZER, Respondent.
    No. 38351.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 25, 1977.

      Aubuchon and Aubuchon, Daniel C. Au-buchon, St. Louis, for appellant.
    Ralph K. Soebbing, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Humanitarian negligence case. As plaintiff turned across the street into a private driveway defendant drove into the side of her car. Plaintiff submitted her case under MAI 17.15 on the theory of defendant’s humanitarian negligence. She got a $4,000 verdict but on defendant’s after-trial motion, the court granted a new trial for lack of evidence to support the humanitarian instruction.

Plaintiff appeals, contending the evidence did make a submissible humanitarian case. We consider the evidence in the light most favorable to plaintiff and accord her the benefit of all supporting inferences deductible from the evidence. Dillon v. Hogue, 381 S.W.2d 599[1] (Mo.App.1964).

The facts: Plaintiff was driving west on Ladue Road on a dark, rainy evening. She intended to turn onto 1 — 270 but missed her turnoff and continued westward. When she found a driveway where she could turn around plaintiff steered left across the eastbound land of Ladue Road at three to four miles per hour. To the west of the driveway, Ladue Road inclines gradually to the crest of a hill some 400 feet distant. Defendant, driving east at 30-35 miles per hour, crested the hill and saw plaintiff’s car angled across his eastbound lane. He braked but failed to stop before striking plaintiff’s automobile. Plaintiff never saw defendant’s car before the collision.

The issue here is whether the evidence supported plaintiff’s humanitarian submission. That doctrine, unique to Missouri, “proceeds upon the precept of humanity and of natural justice to the end that every person shall exercise ordinary [due] care for the preservation of another after seeing him in peril or about to become imperiled, when such injury may be averted without injury to others.” Dey v. United Rwys. Co. of St. Louis, 140 Mo.App. 461, 120 S.W. 134[5] (1909). The oft-cited elements of a humanitarian case are: (1) Plaintiff was in a position of immediate danger; (2) defendant had actual or constructive notice thereof; (3) defendant, after receiving such notice, had the means at hand to have averted the impending injury without injury to himself or others; (4) he failed to exercise due care to avert the impending injury; and (5) by reason thereof, plaintiff was injured. Pankey v. Claywell, 417 S.W.2d 9[3-5] (Mo. App.1967).

Accordingly, the basic element of liability under the humanitarian rule is plaintiffs position of immediate danger. Yarrington v. Lininger, 327 S.W.2d 104[2-5] (Mo.1959). It is plaintiff’s position, observable to defendant, which if unchanged is reasonably certain to result in injury to plaintiff, not a mere possibility contingent on some other occurrence. A likelihood or bare possibility of injury is not sufficient to create immediate danger. Yarrington, supra, at [8-10]. As a general rule the place and time where one comes into a position of immediate danger is for the jury to determine. Dillon, supra. The burden is on plaintiff, and a humanitarian case which leaves one or more of its essential elements to guesswork, speculation or conjecture is not for the jury. Finch v. Kegevic, 486 S.W.2d 515[1 -4] (Mo.App.1972).

In our case, the element of the position of immediate danger is left to such speculation. The fact of collision is enough to supply the essential element that plaintiff did at some time come into a position of immediate danger. But it was her burden to present substantial evidence not only as to where she and defendant were when that moment of danger arose, but further that thereafter defendant could by due care have avoided the collision. In other words, the evidence must have shown the relative positions when, and relative movements after, plaintiff came into a position of immediate danger. The evidence did not so show, and we hold plaintiffs humanitarian verdict director was not supported by the evidence.

The trial court properly granted defendant a new trial.

SMITH and McMILLIAN, JJ., concur.


author: BILLINGS, Chief Judge.

text:
    Dorothy Jean EDEN, Petitioner-Appellant, v. Vernon Duane EDEN, Respondent.
    No. 10594.
    Missouri Court of Appeals, Springfield District.
    Nov. 2, 1977.
    Motion for Rehearing or Transfer Denied Nov. 21, 1977.

      Robert P. Baker, Sarcoxie, for petitioner-appellant.
    Richard D. Copeland, Myers, Webster & Perry, Webb City, for respondent.
   BILLINGS, Chief Judge.

Dissolution of marriage proceeding. Appellant-wife appeals from the decree’s division of property, the maintenance provision for her, and the failure to award her attorney’s fees and costs.

First of all, we note our review of this court-tried case is limited by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and we are not to disturb the decree of the trial court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” 536 S.W.2d at 32.

The division of property between spouses in a dissolution proceeding is a matter within the sound discretion of the trial court, and its decision should not be overturned unless that discretion is abused. Conrad v. Bowers, 533 S.W.2d 614 (Mo.App. 1975). The same rule applies to matters of spousal maintenance, attorney’s fees and costs. Stark v. Stark, 539 S.W.2d 779 (Mo. App. 1976); Rissler v. Rissler, 541 S.W.2d 64 (Mo.App. 1976).

We have read the trial transcript, viewed the exhibits, and examined the briefs of the parties. There is substantial evidence to support the trial judge’s decree on the issues raised in this appeal and we do not find an abuse of discretion. Neither do we find any erroneous declaration or application of the law.

Missouri’s Dissolution of Marriage Act has produced a bumper crop of appellate opinions in which the evidence below has been re-plowed and disk harrowed in such a fashion that a new and different harvest has been reaped on discretionary matters of property division, maintenance and attorney’s fees. Although a fertile field, we decline to second-guess the trial judge on the division of property, maintenance award, and the matter of attorney’s fees and costs in this case.

An extended opinion in this case would have no precedential value and the judgment is affirmed pursuant to Rule 84.16(b).

All concur.


author: HOGAN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eddie GARDNER, Defendant-Appellant.
    No. 10330.
    Missouri Court of Appeals, Springfield District.
    Nov. 10, 1977.

      Daniel E. Letsch, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty.' Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., and MOORE and NORTHERN, Special Judges.
   HOGAN, Presiding Judge.

Defendant stands convicted of two counts of selling controlled substances. A jury has assessed his punishment at imprisonment for five years on each count. Defendant appeals, contending: (1) that there was no substantial evidence to support the verdicts; (2) that he was effectively denied his constitutional right to call witnesses in his behalf because police officers intimidated the witnesses he proposed to call; (3) that hearsay testimony was admitted to his prejudice; and (4) that the trial court erred in giving Instructions 5 and 7.

As against a complaint that the evidence does not support a verdict of guilty, the court must view the facts in evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the State, disregarding defendant’s evidence to the contrary. State v. Cobb, 444 S.W.2d 408, 412[3] (Mo.banc 1969); State v. Allen, 555 S.W.2d 36, 37[1] (Mo.App.1977); State v. Williams, 521 S.W.2d 29[1] (Mo.App. 1975). So synopsized, the evidence is that Bill Miller, an undercover narcotics agent, went to a bar in north Springfield, Missouri, on March 15, 1975. Miller was acting upon police “intelligence” that there was “probably narcotics traffic” at that particular bar. Miller met one Jackie Swearingin at the bar, and the two drank beer and played pool for some time. “[Approximately, around 10:00 o’clock,” defendant entered the bar, ordered a drink and “came back to the area” where Miller and Swearingin were playing pool. Swearingin took the defendant aside and told defendant Miller “was interested in buying a pound of marijuana.” Defendant replied that he had marijuana, but it was “already made up into lids” and he wouldn’t sell Miller a full pound. Defendant would, however, sell Miller a “lid” for $15. Defendant further said it would be necessary to obtain the marijuana at his residence. Miller and Swearingin followed the defendant to a house in the east part of Springfield. Miller went in the house and sat on a couch. Defendant went into another room and returned with several “small plastic sandwich-type bags” which contained a “green leafy substance.” Miller gave the defendant $20 and received $5 change. Miller placed the bag of “green leafy substance” in his “cowboy-type” boot and later transferred it to an “evidence envelope.” Tests performed by a qualified chemist disclosed that the “green leafy substance” was marijuana.

Likewise, it was shown that during the night of March 27-28, 1975, defendant approached Miller as Miller was leaving a bar in north Springfield and asked Miller if he was interested in buying some “speed.” Miller asked the defendant “how much he was wanting” for the “speed.” Defendant replied that he had a “hundred lot” which he would sell for $25. Miller agreed to pay $25 “for the hundred lot.” Defendant suggested that he and Miller return to the bar and “drink a beer.” They did so, “possibly . played a game of pool,” and left the bar about 1:30 or 2:00 a. m. Miller and defendant then drove to defendant’s residence. Defendant went in the house. He returned in about “fifteen, twenty minutes.” After some further driving around with companions, all of which was described in detail, defendant delivered a “clear, cellophane wrapper . . . with several white tablets in it,” identifying the tablets as the “speed” he had offered to sell. Miller paid the defendant $25. Miller put the tablets in an envelope. The tablets were later identified by a chemist as a “water-soluble” salt of amphetamine.

The Controlled Substances Act in effect in March, 1975, Chapter 195, RSMo Supp.1973, defined a “sale” as including any barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee. § 195.010(30) RSMo Supp.1973. The evidence establishes that defendant exchanged a small container of a green, leafy substance for $15 during the night of March 15-16,1975. Defendant also exchanged a clear, cellophane wrapper containing white tablets for $25 during the night of March 27-28, 1975. Two sales were thus established. The green, leafy material was identified as marijuana. By simple resort to the statute, § 195.-017(2)(4)(j), we determine that marijuana was then a Schedule I controlled substance. Because it has been judicially determined, we know that all amphetamines have been classified as Schedule II controlled substances since 1973. State v. Winters, 525 S.W.2d 417, 421[1] (Mo.App.1975). The quantity of marijuana sold was not shown, but § 195.200(l)(l)(c) RSMo Supp.1973 which reduced delivery of less than 25 grams of marijuana for no remuneration to a misdemeanor could not apply here; defendant took cash. Agent Miller was shown to be 25 years of age. § 195.-200(1)(4) RSMo Supp.1973 with the exception noted, denounced sales of Schedule I and II controlled substances to persons over 21 years of age as felonies punishable by imprisonment for a term of not less than five years nor more than life imprisonment. In short, the State charged, and proved two sales of controlled substances within the meaning of § 195.200(1)(4) RSMo Supp.1973. We have neither overlooked nor ignored defendant’s argument that a jury might have found the defendant not guilty if it had chosen to believe his witnesses rather than Agent Miller, but in our view the only real issue upon defendant’s guilt vel non was one of credibility and the testimony of Agent Miller and the police chemist were sufficient to sustain the verdict. United States v. Martin, 526 F.2d 485, 486[1] (10th Cir. 1975).

Defendant’s second allegation of error is that he was effectively deprived of his Sixth Amendment right to have compulsory process for obtaining witnesses in his favor because two witnesses he proposed to call were intimidated when police officers took their photographs while they were waiting to testify. Defendant relies, as we understand him, upon the proposition that intimidation of defense witnesses by an officer of the court denies a criminal defendant due process. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); United States v. Morrison, 535 F.2d 223, 226-228 (3d Cir. 1976); Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71, 139-141 (1974).

The point, though conscientiously presented, is considerably overstated. During the trial, defendant’s counsel asked to present a matter to the court out of the jury’s hearing. A police officer was called and testified that under orders from his superior officer, he had been “taking pictures” in the corridors of the Greene County Courthouse. The officer’s orders were “ . . .to take pictures of subjects in the courtroom [sic] that was intimidating witnesses from the narcotics bureau.” In response to questions by the trial court, the officer testified: that he did not know the names of any of the persons whom he photographed; that he did not speak to any of the persons whose picture he took; that he did not identify himself as a police officer and that neither he nor any person in his presence made any statement to anyone while the photographs were being made. The officer gave it as his opinion that his supervisor, a narcotics agent who was present when the pictures were taken, might have been recognized by some of the persons who were photographed.

The defendant, again out of the jury’s hearing, presented two witnesses who claimed to have been chilled by the police photography. One was Charles Ernest Johnson, who had been photographed by “[a] man in a blue denim suit, a goatee and sideburns.” Mr. Johnson felt “ . that if they’re having my photographs distributed amongst theirselves they’re going to give me some undue harassment that I don’t really need.” Johnson felt he could not testify, having been photographed. He had come prepared to impeach Agent Miller’s evidence by testifying that he had seen Miller use controlled substances and that he had seen Miller become intoxicated.

Sammy Jiminez, who had also been subpoenaed for the defense, also felt chilled by having his picture taken. Jiminez, like Johnson, knew nothing of the facts of the instant case; he was prepared to impeach Agent Miller.

The cases cited and relied on by the defendant are so radically different from the situation at hand as to be factually inappo-site. In Webb, supra, the trial judge admonished the sole defense witness that he was under no obligation to testify and that anything the witness testified to might be used against him. The court went further, and implied that he expected the witness to lie, and if the witness did, he, the trial judge, would “personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood [sic] is that you would get convicted.” No other witness was so admonished. In United States v. Morrison, supra, a controlled substance prosecution, defendant’s girl friend and sole defense witness, was on three occasions warned by the Assistant United States Attorney through defense counsel that she was liable to prosecution on drug charges if she testified, that her testimony could be used against her and that as she was 18 years of age, she could be prosecuted for perjury. Not content with that, the Assistant United States Attorney called the sole defense witness into his office and in the presence of undercover agents, again impressed upon her the dangers of testifying. United States v. Smith, 156 U.S.App. D.C. 66, 478 F.2d 976 (1973), also relied on by the defendant, was a murder prosecution. There, witness Twitty would have testified that the defendant was acting in self-defense. Witness Twitty testified on oath that the Assistant United States Attorney had told him that if he, Twitty, testified, he would be charged with carrying a deadly weapon, obstruction of justice, and as a principal in a murder. The Court of Appeals held such intimidation required reversal. United States v. Smith, supra, 478 F.2d at 979[l-3].

We do not regard taking photographs at random as inherently threatening behavior. Cf. Sckorhod v. Stafford, 550 S.W.2d 799, 802 — 803[1—3] (Mo.App.1977). Certainly there was no threat here to initiate prosecution if the witnesses testified. In addition, we note that in every case cited by the defendant, the chilled witness had something substantive to offer; in each case, the threatened witness would have offered some order of exculpatory testimony. Johnson and Jiminez knew nothing of the crime charged; their function was to discredit Agent Miller, and defendant had at least three other witnesses who testified that Miller (a) smoked marijuana; (b) smoked opium; and (c) often drank intoxicants on duty. Further, we should note, there was evidence that the photographs were taken in an effort to detect criminal activity, i. e., tampering with prosecution witnesses. The trial court might reasonably have found the photographs were taken in an effort to detect crime. In the record circumstances, defendant’s point is without merit.

A further complaint made by the defendant is that the trial court admitted hearsay and irrelevant testimony to his prejudice. The hearsay of which he complains was elicited from Agent Miller upon direct examination by the State. Agent Miller was in the process of describing his initial contact with the defendant on the night of March 15-16, 1975. As noted, Miller testified that he and one Swearingin were playing pool and drinking beer in a bar when defendant entered the bar. Over defendant’s objection, Miller was permitted to testify that Swearingin and defendant stepped aside, and Swearingin “ . . . told [defendant] that [Miller] was interested in buying a pound of marijuana.” Defendant now claims that the admission of this testimony was so prejudicial he should be granted a new trial.

We cannot agree. The hearsay rule is subject to a number of exceptions. Utterance offered to prove the state of mind which ensued in another person is admissible when relevant as against the objection it is hearsay, because it is obvious that no assertive or testimonial use is sought to be made of the utterance. 6 H. Wigmore, Evidence, § 1789, p. 314 (Chad-bourn Rev.1976). Mr. Swearingin’s utterance was expressly offered by the State to show the defendant’s reply, which was, that defendant had marijuana but “ . . .it was already made up into lids and [defendant] wouldn’t sell [Miller] a full pound.”

In other words, Swearingin’s utterance provoked a reply indicating defendant’s willingness to traffic in drugs. Put differently, it was properly received as “background” explaining Agent Miller’s subsequent activity. See State v. Bright, 269 S.W.2d 615, 623[11] (Mo.1954).

In connection with this point, defendant complains of the trial court’s failure to declare a mistrial because Agent Miller, on redirect, stated that he liked his employment “because I’ve seen a lot of people’s lives ruined from [sic] narcotics.” The point is strained and tenuous. Defense counsel made a determined effort to discredit or impeach Agent Miller’s testimony, upon which the State’s case rested. The possible prejudicial effect of Miller’s volunteered remark, which the jury was instructed to disregard, was minimal. This complaint is without merit.

Finally, the defendant complains of instructional error. Count I of the information charged defendant with a wilful sale of marijuana. Instruction No. 5 was the State’s main, or verdict-directing instruction upon Count I. Instruction No. 5 directed a verdict of guilty as to Count I if the jury found and believed beyond a reasonable doubt that (a) on or about March 15, 1975, defendant sold a drug known as marijuana in Greene County, Missouri, and (b) that the defendant was aware of the character of the drug and intentionally and knowingly sold it. The instruction, generally, is a rescript of MAI-CR 14.10; no complaint is made as to the form of the instruction, and we find none. The complaint of Instruction No. 5 is that it was improperly given because the envelope containing the marijuana was not opened by the police chemist when he testified, there was no testimony identifying State’s Exhibit 1 as marijuana, and neither the court nor the jury inspected the contents of State’s Exhibit 1.

The defendant’s point is not altogether clear to us. Agent Miller testified directly and unequivocally that State’s Exhibit 1 contained the “green leafy substance” which he purchased from defendant; the chain of custody was carefully, even meticulously established. The police chemist testified that he opened the envelope, weighed the contents and made several tests to determine what was in the envelope. The chemist concluded the envelope contained marijuana. In view of the fact that the chain of custody of State’s Exhibit 1 was carefully traced and bearing in mind that an expert testified that it contained marijuana, it was not essential to the State’s case that the contents of the envelope be produced in court nor was it necessary that the “green leafy substance” be examined by the jury. People v. Fernandez, 131 Cal.App.2d 565, 280 P.2d 808, 809[1, 2] (1955); State v. Dunn, 155 Mont. 319, 472 P.2d 288, 296-298[13] (1970); State v. Pipkin, 101 N.J.Super. 598, 245 A.2d 72, 74-75[l, 2] (1968). See also Slettvet v. State, 258 Ind. 312, 280 N.E.2d 806, 808-809[3, 4] (1972).

The defendant advances a similar claim of error with respect to Instruction 7. Instruction No. 7 was a rescript of MAI-CR 14.10 submitting the sale of “salt of amphetamine” by defendant on or about March 28, 1975, in Greene County. The defendant’s claim of error is that the controlled substance should have been produced in court and identified by the jury. As was the case with the marijuana, the chain of custody of Exhibit 2, an envelope similar to Exhibit 1, was carefully traced. The contents were identified by an expert chemist. Production of the tablets was not essential to the State’s case.

We find no prejudicial error; accordingly, the judgment is in all respects affirmed.

ALL CONCUR.