author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Defendant-Appellant, v. Lela BYERLY, Plaintiff-Respondent.
    No. 35599.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 1, 1975.

      Stephen C. Banton and John A. Newton, Asst. Pros. Attys., Clayton, for defendant-appellant.
    Brady, Brady & Devereaux, St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

This is an appeal by the State of Missouri from an order of the circuit court of St. Louis County dismissing its appeal from the magistrate court which reinstated respondent-Lela J. Byerly’s driving privileges. For reasons hereinafter stated, we reverse the order and remand the cause for further proceedings.

The issue presented — one of first impression in this state — is whether the driver’s license of an operator, arrested for allegedly driving under the influence of intoxicating liquor and who has refused to submit to a sobriety test, may be revoked when the driver is subsequently acquitted of the charge for driving under the influence of liquor. Or stated somewhat differently, if a driver arrested for driving while intoxicated refuses to submit to a chemical test and is later acquitted of the offense, may the state nevertheless revoke the license under the provisions of § 564.444, RSMo 1969, V.A.M.S., on the ground that the driver refused to submit to a chemical test of his breath? We hold that even though the driver is subsequently acquitted of the charge of driving under the influence of intoxicating liquor, the license may nevertheless be revoked by the Director of Revenue for refusal to submit to a chemical test.

In 1973, respondent Lela J. Byerly was arrested for allegedly driving under the influence of intoxicating liquor. She refused to submit to an intoximeter test (§ 564.444), and as a result the Director of the Department of Revenue, on February 26, 1973 revoked her driver’s license for one year.

On March 9, 1973, respondent-Byerly filed her petition for review in the sixth district magistrate court in St. Louis County, the place of her residence. In her petition she stated that she received a notice of revocation of the privilege of operating a motor vehicle in Missouri for a period of one year for the reason that she refused to submit to a chemical test “when arrested” for allegedly driving under the influence of liquor. She sought an order of the court to set aside the revocation.

On April 17, 1973, the magistrate ordered the Director of Revenue to show cause why the order of revocation should not be set aside. On May 17, 1973, the magistrate, after a hearing, ordered the state to reinstate respondent’s driving privileges.

The state appealed the order to the circuit court of St. Louis County. §§ 512.180, 512.270. On July 16, 1973, the cause was heard in that court. The attorney for Mrs. Byerly explained that she had been acquitted of the charge in the municipal court of the City of St. Louis on May 15, 1973, and that the magistrate in St. Louis County had reinstated her driving privileges. The circuit court thereupon dismissed the state’s appeal “for the reason that Petitioner’s Driving Privileges have been reinstated by the Sixth District Magistrate Court & she has been acquitted of the charge of Driving Under the Influence by the Judge of City Court # 2 (Two) in the City of St. Louis, Mo.”

The state appealed this order. On this appeal the state contends that the circuit court erred in affirming the reinstatement of the driving privileges of the respondent because of her acquittal by the City Court “ . . .as such a holding was irrelevant to the question of reinstatement of those privileges.” The state requests a new trial.

The respondent has not favored us with a brief. Rather, respondent has moved to dismiss the appeal on the ground that the transcript of the proceedings was not timely filed. Rules 81.18, 81.19, V.A.M.R. This court, however, through the Chief Judge, granted an extension of time to file the transcript. The transcript was filed within the time authorized by the Chief Judge. The respondent’s motion to dismiss the appeal is therefore denied.

In 1965, our General Assembly passed comprehensive statutes dealing with the problem of driving while intoxicated upon the public highways. § 564.441 provides in part that :

“Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to ... a chemical test of his breath for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while intoxicated.”

§ 564.444 provides in part that: “If a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, . . . the director .shall revoke the license of the person for a period of not more than one year.”

These statutes were upheld against constitutional attacks in Blydenburg v. David, 413 S.W.2d 284 (Mo. banc 1967). These statutes provide a method whereby an operator’s license may be revoked for refusal to submit to a sobriety test and for judicial review of such administrative action. For an analysis of the law, see Comment, The Missouri Implied Consent Law, 12 St. Louis U.L.J. 287 (1968).

§ 564.444 mandates that the director shall revoke the license of a person arrested for driving while intoxicated if (1) a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, (2) the officer includes in the request the reasons for the person to submit, (3) the officer informs the person that his license may be revoked upon refusal, and (4) the officer makes a sworn report to the director that he has reasonable grounds to believe that the person was driving under the influence and that, on his request, the person refused to submit to a test. This section further provides that if a person’s license is revoked because of refusal to submit to a test, he may request a hearing before a court at which the judge is required to determine only: “(1) Whether or not the person was arrested; (2) [wjhether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and, (3) [wjhether or not the person refused to submit to the test.”

These revocation proceedings under the so-called “Implied Consent Law” are administrative and civil in nature and are not criminal or quasi-criminal. The operation of a motor vehicle while under the influence of intoxicants may give rise to two separate and distinct proceedings— one civil and the other criminal or quasi-criminal. Each proceeding is independent of the other. Severson v. Sueppel, 260 Iowa 1169, 152 N.W.2d 281, 285 (1967). The outcome of one action is of no consequence to the other. Acquittal, vel non, has no bearing on the revocation for refusal to submit to a chemical test.

All jurisdictions which have considered the question at hand conclude that the fact that the motorist who is subsequently acquitted on a charge of driving under the influence does not preclude an administrative revocation of a driver’s license because of his refusal to submit to a chemical test.

Under all these authorities, we believe that a criminal or quasi-criminal charge is a separate and independent proceeding from the proceedings under § 564.444 mandating the director to revoke the license of a person who refuses to take a sobriety test. Regardless of whether driving on the highways of our state is a right or a privilege, the state, acting through the General Assembly, may provide, in the exercise of its police powers, for revocation of a driver’s license for refusal to submit to a breath test, although the person is subsequently acquitted on the charge of driving under the influence of intoxicants. The General Assembly has the right to address itself to this societal problem.

As stated in Fritts v. Department of Motor Vehicles, supra, 492 P.2d at 562, the purpose of such a statute revoking the license for refusing to submit to a test is to protect the public, not to punish the licensee. The revocation of the license for refusal is an administrative function flowing from the police power of the state to regulate driving in the interest of public welfare and safety. The fact that the criminal (or quasi-criminal) charge is not proved has no bearing on the civil revocation proceedings to revoke a license for refusal to submit to a test of his breath. “Indeed, the very value of the implied consent legislation is that the outcome of the criminal charges be of no consequence to the administrative proceeding on the license revocation. . . . ” Fritts v. Department of Motor Vehicles, supra, 492 P.2d at 562.

We conclude therefore that (1) a charge of driving under the influence of intoxicants is a separate and independent proceeding from an administrative revocation of a driver’s license under § 564.444; (2) an acquittal upon a charge of driving under the influence does not preclude an administrative revocation of a driver’s license under § 564.444 for refusal to submit to a chemical test requested by the arresting officer; (3) upon the judicial hearing requested by the person whose license has been revoked, the judge is authorized to determine only (a) whether the person was arrested, (b) whether the officer had reasonable grounds to believe that the driver was driving a vehicle in an intoxicated condition and (c) whether the driver refused to submit to a chemical test of his breath; and (4) the relevant issues to reinstate the license under the statute were not determined.

Since we hold that the acquittal in City Court Number 2 in the City of St. Louis is irrelevant to the administrative revocation of respondent’s driver’s license for refusal to submit to a test under § 564.444, and conclude that the circuit court did not determine the relevant issues for reinstatement and could not reinstate the driving privileges on the ground that the respondent had been acquitted of the charge of driving under the influence of intoxicants, the judgment and order of the circuit court of St. Louis County is reversed, and the cause is remanded for further proceedings.

The order is reversed and the cause remanded.

McMILLIAN and GUNN, JJ., concur.

      . See Kansas City v. Bott, 509 S.W.2d 42 (Mo. banc 1974), which holds that a person acquitted in a municipal court cannot be tried de novo in the circuit court.

      . Fritts v. Department of Motor Vehicles, 6 Wash.App. 233, 492 P.2d 558, 562-563 (1971); Severson v. Sueppel, supra, and cases cited therein at 285; Anderson v. MacDuff, 208 Misc. 271, 143 N.Y.S.2d 257, 259 (S.Ct.1955); Bungardeanu v. England, 219 A.2d 104, 107 (D.C.App.1966); Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75, 81 (1961), (blood test); Smestad v. Ellingson, 191 N.W.2d 799, 802 (N.Dak.1971), (dismissal of criminal charge); State, Department of Highways v. Styrbicki, 284 Minn. 18, 169 N.W.2d 225, 227 (1969); Commonwealth, Dept. of Transportation v. Abraham, 7 Pa.Cmwlth. 535, 300 A.2d 831 (1973); Commonwealth, Dept. of Transp., etc. v. Everett, 8 Pa.Cmwlth. 502, 303 A.2d 850 (1973); Commonwealth, Dept. of Transp., etc. v. Pregard, 303 A.2d 851, 8 Pa.Cmwlth. 500 (1973); Annot., 88 A.L.R.2d 1064, 1076 (1963).

      . In Blydenburg v. David, supra, such a license is termed a privilege. 413 S.W.2d at 289.


source: Caselaw Access Project

author: SHANGLER, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Sonny TOWNES, Appellant.
    No. KCD 26967.
    Missouri Court of Appeals, Kansas City District.
    Nov. 4, 1974.
    Motion for Rehearing or for Transfer to Supreme Court Denied Feb. 18, 1975.

      Richard R. Nacy, Jr., Asst. Circuit Public Defender, Jefferson City, for appellant.
    John C. Danforth, Atty. Gen., Charles B. Blackmar, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, C. J., and SHAN-GLER, WASSERSTROM and TUR-NAGE, JJ.
   SHANGLER, Judge.

The defendant Townes, an inmate of the Missouri State Penitentiary was indicted under § 216.460, RSMo 1969, V.A.M.S., for the offense of offering violence to a prison guard. He was convicted by a jury and given punishment of two additional years imprisonment.

The evidence was that Townes, an inmate serving ten years for first degree robbery, was working in the metal factory of the penitentiary. He complained of illness and was taken to the prison hospital. Townes was examined and found to be sound, so Wyrick, a prison guard, was ordered to take Townes to the control center. Once there, Lt. Turner gave Townes the choice of going to work or going to punitive segregation. As Wyrick began to lead Townes away, Townes struck him in the face and then fled through the security door.

The first point made on this appeal is that a conviction for an offer of violence to a prison guard under § 216.460 cannot stand upon an indictment which charges, and evidence which proves, an actual assault. The appellant argues that the statutory language “offers any violence” expresses a legislative intent to proscribe only threats or attempts of violence, not accomplished assaults. We have recently examined the meaning of “offers any violence” within the context of § 216.460 [State v. Foster, Mo.App., 513 S.W.2d 657, adopted July 1, 1974] against a similar contention, and found the statute to prohibit actual as well as threatened violence.

At the trial a dispute arose between appellant and his counsel as to the advisability and manner of probing the prejudice of the jury venire concerning the doctrines of the Black Muslim sect, which appellant professed. When his counsel demurred, appellant asked the court to permit him to question the jury panel. The court directed him to communicate his questions to counsel for voir dire purposes, but appellant explained that his counsel refused to put the questions appellant had suggested. This essential colloquy followed :

THE COURT: You’re sure you want to do this?
TOWNES : Yes your Honor.
THE COURT: Go right ahead.
[AT THE BENCH, WITHOUT THE HEARING OF THE JURY]
MR. NACY [Counsel for Townes] :
I regard one of the questions, at least, having to do with the Muslim belief that all white people are Devils, I would like to have the record show that I think it’s prejudicial to the defendant to ask that question and do not think it should be asked because I think it would be prejudicial to him.
TOWNES: Your Honor, the defendant would like to ask the question at this time because it will show the true nature of the defendant and his belief, and this is something that the jury and the witnesses should hear, that they are entitled to know in order to establish a true verdict.
5⅜⅞ ⅝ ⅝ ⅜ ⅝ ⅜
THE COURT: It’s over my better judgment and its over the objection of his counsel. Now, if he wants to ask them, let him ask them.
[BEFORE THE COURT AND JURY]
TOWNES: Jurors, I am no lawyer, not a very educated man so please do not hold my manner of speaking or grammar against me, but I have a few questions to ask the Jury because I feel they will be very important when it comes time for the jury to depart from the room to bring back a verdict.
I’m the defendant in the case and I’m what people call Black Muslim
⅜ ⅜ ⅞: ⅜ ⅜ ⅜
[I]t’s our belief, we believe all white people are Devils. I’m asking the Jury, here with this statement and knowing that I feel that you all here are Devils, would this have any effect upon you bringing back a, decision? Just knowing that I will be sitting here watching you—
THE COURT: Well, now, let’s don’t make a statement, let’s just ask a question.
TOWNES: I would like to know if there is anyone here that would feel that it would be impossible for them to give me a just verdict knowing or hearing that the evidence in my favor to show that I am innocent, would you rule upon such evidence knowing that I feel that you are Devils ?
THE COURT: Well, we have one hand up.
JUROR JUNE JUNGMEYER: I don’t consider myself a Devil.
THE COURT: Mr. Jungmeyer, would that influence your verdict ?
JUROR JUNE JUNGMEYER: Well, I don’t consider myself a Devil.
THE COURT: Members of the Jury, he isn’t saying that you are or aren’t Devils, he’s saying that’s his belief.
TOWNES: I’m saying that you are. I ■ would like to know if there is anyone here that believes he is not a Devil.
THE COURT: Sit down. Just a minute. Mr. Sheriff, put the defendant in his chair.
TOWNES: Let the record show that everyone in the room raised their hands to the question that they were Devils.
UNIDENTIFIED JUROR: I didn’t raise my hand.
TWO UNIDENTIFIED JURORS: I didn’t either.
THE COURT: Alright. Any other questions ? Step up, Gentlemen.

The appellant now contends that it was error for the court to have allowed him to inform the jury that he was a Black Muslim, and that one of the principal beliefs was that all white people were devils, over the objection of counsel that such questioning would be prejudicial to appellant and in the face of the court’s expression of misgiving.

To begin with, whether a defendant should be permitted to personally participate in a trial when he is represented by counsel is a matter resting within the sound discretion of the trial court. State v. Velanti, 331 S.W.2d 542, 546 [5] (Mo.1960). The propriety of the acquiescence of the court in this case must be viewed in the perspective of complaints of the defendant, throughout the proceedings, that he was being denied due process, that he did not approve of his public defender counsel, and that he wished to present his own case. What is more to the point, however, the defendant framed his defense on the hypothesis that it is contrary to Black Muslim doctrine to strike anyone first and that the prison guard Wyrick, who had borne a long-standing animosity against the defendant, was the aggressor. Thus the disclosure that the defendant was a Black Muslim was inevitable under the evidence and trial strategy, and the voir dire inquiry which identified defendant as a member of that sect and probed for racial prejudice was proper. 54 A.L.R.2d 1204, Juror — Racial or Other Prejudice. Any inquiry into the latent prejudices of jurors is not calculated to ingratiate, and the defendant’s even less so. We can only conclude, however, that the defendant considered the Black Muslim tenet that all whites are devils such common knowledge as to require his tactic in order to ensure him a fair trial. In this, he knew best. He now complains that this voir dire inquiry prejudiced him; how, he does not say. The record discloses that the voir dire, including the episode conducted by appellant, was supervised fairly by the trial judge. Although the appellant attempted to ask a proper voir dire question directed to any prejudice harbored by the jurors caused by the beliefs of Black Muslims, he proved to be an inartful inquisitor, and required admonition by the court. These admonitions proved futile and when it became apparent that the defendant’s questioning and comments were causing confusion to the jury, the court promptly halted his activity. The trial court is given a broad discretion to control the voir dire examination and his rulings will not be disturbed unless a manifest abuse of discretion is shown. Handshy v. Nolte Petroleum Company, 421 S.W.2d 198, 201 (Mo.1967). In this case the conduct of the court was consistent with both the rights of the defendant and orderly procedure.

The appellant contends next that the trial court erred in failing to grant his application for change of venue. On July 5, 1973, counsel for appellant received a letter from appellant dated July 3, 1973, requesting counsel to file an application for change of venue. Counsel prepared and on July 5, 1973, filed an application for change of venue with five affidavits, all to the effect that the inhabitants of Cole County were prejudiced against appellant because he was an inmate of the penitentiary. The court denied the application because filed less than five days before trial on July 9, 1973. Rule 30.04.

The appellant argues that since the allowed period.was less than seven days, Rule 44.01 [Rule 31.01 as to criminal causes] required that July 4, a legal holiday, be excluded in the computation of this five day period, and consequently, the application filed on July 5, 1973, was timely. Appellant then contends that since it was timely and since Cole County is of a population of less than 75,000, the court had no choice but to grant the change of venue as of course. Rule 30.04; State ex rel. Johnson v. Green, 452 S.W.2d 814 (Mo. banc 1970). The point is without merit. A Sunday or legal holiday which falls within the period of time in which an act is to be done does not shorten the period, but is reckoned as part of it. State v. Light, 484 S.W.2d 275 [1] (Mo.1972). Consequently, in this case, the application for change of venue made after July 3, 1973, was untimely-

The final point is that the trial court erred in admitting the records and testimony of Harry Lauf, Records Officer of the Missouri State Penitentiary, which showed that appellant had been convicted of first degree robbery and was serving a ten year sentence for that conviction at the time of the charged offense. Appellant argues that there was nothing to be proved by this evidence since he had admitted in voir dire that he was an inmate of the penitentiary, thus the only purpose for the additional proof was to prejudice the jury against him.

In this prosecution for offering violence to a prison guard in violation of § 216.460, the burden was on the state to prove beyond a reasonable doubt that Townes was a prisoner. State v. Jackson, 500 S.W.2d 306, 309 [2] (Mo.App.1973). The best evidence of such fact, necessarily, would be the record of his conviction and testimony concerning his confinement under the conviction. State v. Denmon, 473 S.W.2d 741, 744 [2] (Mo.1971). The admissibility of the record was not compromised by the admission of defense counsel that Townes was an inmate. In Denmon, when the state offered the record of defendant’s conviction and sentence, defense counsel offered to stipulate that the defendant was an inmate lawfully confined. The state refused the stipulation and offered the record in evidence. The Missouri Supreme Court held that the trial court was not required to compel the state to the stipulation and that the records showing Denmon was serving fifteen years for second degree murder were admissible. Neither, we hold, did the admission by defendant Townes that he was a prisoner at the time of the offense charged preclude the state from its proof of that fact. The right of the state to offer, and to have received, evidence which is relevant and material to the issue cannot be taken away by an offer for stipulation or by an admission. State v. Boyer, 342 Mo. 64, 112 S.W.2d 575, 579 [5] (Mo.1937).

The judgment is affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Larry Dale WINTJEN, Appellant.
    No. KCD 26966.
    Missouri Court of Appeals, Kansas City District.
    Nov. 4, 1974.
    Motion for Rehearing or for Transfer to Supreme Court Denied Feb. 18, 1975.

      Richard R. Nacy, Jr., Asst. Circuit Public Defender, 19th Judicial Circuit, Jefferson City, for appellant.
    John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PRITCHARD, P. J., and SWOFFORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

On March 20, 1973, Larry Dale Wintjen, a prisoner confined in the Missouri State Penitentiary in Cole County, Missouri, was indicted for having offered violence to Sergeant Donald Beckley, a prison guard employed by the State Department of Corrections, in violation of Section 216.460, RSMo 1969, V.A.M.S., a felony. The indictment, in part, recited that Wintjen did, “. . . feloniously offer violence to the said Donald Beckley by then and there striking him in the face with his fists

Defendant was found guilty by a jury; the trial court, since the jury was unable to agree on the punishment to be fixed, assessed Wintjen’s punishment at confinement in the custody of the State Department of Corrections for a term of three years. Allocution was granted, and judgment and sentence were pronounced.

Wintjen seeks redress on appeal on three separately assigned grounds.

Wintjen first asserts on appeal that the trial court erred in overruling his motion to dismiss made at the close of the state’s opening statement, and his motions for acquittal made at the close of the state’s evidence and at the close of all the evidence, because the statutory language employed in Section 216.460, supra, “offers any violence”, proscribes only threats or attempts of violence, not accomplished assaults. Conjunctively, Wintjen asserts the state’s opening statement, and all the evidence in the case, showed an accomplished assault rather than a mere threat or attempt of violence. This court recently examined the meaning of “offers any violence” in the context employed in Section 216.460, supra, against a similar contention in State v. Foster, 513 S.W.2d 657 (Mo.App. Kansas City Dist. 1974, motion for transfer denied by the Supreme Court October 16, 1974), and therein held that an accomplished assault was within the ambit of the generic term “offers any violence” as used in Section 216.460, supra. Accordingly, Wintjen’s first assertion of error is ruled against him.

Wintjen next asserts that the trial court erred in failing to instruct the jury as to the definition of the term “offer violence” as employed in Instruction No. 4, the state’s verdict directing instruction. Wintjen at no time offered an instruction defining the term. The complained of instruction, in part, reads: “. . . offer violence to the said Donald Beckley by striking Donald Beckley in the face with his fists . . Under comparable circumstances involving a parallel instruction, a like attack was unsuccessfully leveled against the state’s verdict directing instruction in State v. Foster, supra. In Foster, this court held that the words “offer” and “violence” were words in common usage and, therefore, required no definition, and, in any event, the trial court had no duty to define them absent the tender of an appropriate instruction by defendant.

Foster dispenses with any necessity to expatiate on Wintjen’s second assertion of error and, accordingly, it is ruled adversely to him.

Finally, Wintjen asserts on appeal that the trial court erred in admitting evidence of prior convictions which were still pending on appeal for the purpose of impeaching his testimony. An examination of the transcript discloses that the state, on cross-examination, asked Wintjen if he had ever been convicted of any prior felonies. Wintjen replied that he had. Although the transcript is a bit murky, it does reveal that Wintjen had been convicted of a number of prior felonies in addition to the one for which he was presently confined in the penitentiary, at least one of which had become a final conviction and three of which were pending on appeal. Further examination of the transcript reveals that the state, during its cross-examination of Wintjen, persisted in questioning him about three prior felony convictions (forcible rape—99 years, felonious assault—50 years, and felonious assault —10 years) after he had testified that the three referred to convictions were pending on appeal. State v. Blevins, 425 S.W.2d 155 (Mo.1968) dispels all doubt that convictions pending on appeal are not admissible for purposes of impeachment. But this does not end the inquiry posed by Wint-jen’s final assertion of error. The state responds thereto with the argument that Wintjen’s final assertion of error was not preserved for review because the objec-tional evidence was not timely objected to and no motion to strike it was ever lodged. The transcript shows that subsequent to Wintjen’s testimony that certain of the felonies for which he stood convicted were pending on appeal, the state, without objection, proceeded to ask him nine questions and to elicit nine answers in the taboo area. Finally, at this point, and for the first time, Wintjen’s counsel lodged an objection. Clearly, the objection was untimely made, and its untimeliness was accentuated by the fact that it was preceded by the posing of nine unobjected to questions and the elicitation of answers thereto. When Wintjen’s counsel finally objected to the improper evidence ferreted out by the state in its cross-examination, the trial court failed to rule on the objection. Wintjen’s counsel did not press for a ruling and, more importantly, did not move to strike the legally objectionable evidence.

In view of the above posture of Wint-jen’s final assertion of error, the state’s response to it is persuasive and finds firm support in State v. Sykes, 372 S.W.2d 24, 27 (Mo.1963): “An objection made after the witness has answered is untimely and, in the absence of a motion to strike the answer, the ruling of the court or its failure to rule is not preserved for review. State v. Velanti, Mo., 331 S.W.2d 542, 546[7].”

Wintjen’s failure to preserve his final assertion of error for review, coupled with the fact that the alleged error lies beyond the perimeter of Rule 28.02, V.A.M.R., terminates all further inquiry. Perforce, his final assertion of error fails to afford him any appellate relief.

Judgment affirmed.

All concur.

      . The sufficiency of the evidence to sustain the conviction is not challenged (assuming Section 216.460, RSMo 1969, proscribes an accomplished assault) and a review of the evidence reveals tliat it was sufficient. Since a recitation of the evidence is not necessary to a discussion of the issues presented, such is omitted.


author: SWOFFORD, Presiding Judge.

text:
    Donald F. WILLSEY and Marjorie L. Willsey, Appellants, v. W. C. PORTER FARMS COMPANY, and W. C. Porter, Respondents.
    No. KCD 27063.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      Sherwin L. Epstein, Steven J. Borel, Stubbs, Epstein & Mann, Kansas City, for appellants.
    James H. McLarney, Kansas City, for respondents; Swanson, Midgley, Eager, Gangwere & Thurlo, Kansas City, of counsel.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

This action is one in equity wherein the appellants (hereinafter designated “plaintiffs”) sought a decree of specific performance of a contract to convey real estate, dated April 20, 1971, which contract is asserted to be valid and binding upon the corporate defendant and which it had failed to perform. The individual defendant,. W. C. Porter, while named in the original suit, was dropped as a party by amended petition, and the trial proceeded as to the corporation only. The court below entered its decree for the defendant corporation and this appeal followed.

The plaintiffs raise only one point in their brief. They assert that the trial court erred in entering a decree for the defendants because the “weight of the evidence” demonstrated that plaintiffs were entitled to specific performance of the contract and the judgment was therefore “clearly erroneous”. This point presents nothing for review and clearly violates the requirements of Rule 84.04(d), V.A.M.R., although it implies that there was some evidence to support the judgment of the court below so that it does not purport to raise the sufficiency of that evidence. Robbins v. Robbins, 328 S.W.2d 552, 556[7, 9] (Mo.1959); Nutz v. Shepherd, 490 S.W.2d 366, 369[4, 5] (Mo.App.1973); Stanziale v. Musick, 370 S.W.2d 261, 265[2, 3] (Mo.1963); Shell-Con, Inc. v. Architectural Concrete, Inc., 486 S.W.2d 662, 663-664[1, 2] (Mo.App.1972). However, as the plaintiffs’ violation of this rule has not prejudiced the defendant corporation and the real controversy on this appeal is a single and simple issue which may be ascertained from the briefs and the title to the real estate is involved, this violation, while strongly condemned, will be disregarded in this case and the appeal will be decided upon its merits. Hans Coiffures International, Inc. v. Hejna, 469 S.W.2d 38, 38[1] (Mo.App.1971); State ex rel. Aimonette v. C & R Heating and Service Company, 475 S.W.2d 409, 412[1] (Mo.App.1971).

The determinative and decisive issue centers upon the authority of W. C. Porter to contract to convey real estate, the legal title to which was held in the name of the corporation of which he was president, without the approval of the board of directors and in the face of a prompt and definite disavowal and renunciation of such agreement by W. C. Porter and the board of such corporation. In deciding this issue, certain undisputed evidence should be noted.

The W. C. Porter Farms Company, at times pertinent here, is a Missouri corporation organized in January, 1967 to carry on the business of farming and all related activities. The principal capital assets of such corporation consisted of 560 acres of farm land near Blue Springs, Missouri, formerly owned by W. C. Porter and his wife Naomi M. Porter. Some of this land had been in the family for many years and he and his wife had acquired additional acres by purchase during their marriage. The Porters conveyed the 560 acres to the corporation in exchange for common stock. From time to time thereafter, shares of this stock were transferred by the Porters to their daughter, Harriett Copple, and her husband, William P. Copple, as gifts. However, before the formation of the corporation, the Porters and the Copples entered into a written agreement designating the responsibilities of each in the operation of the proposed corporation. According to this agreement and the actual operation of the corporation’s farming business between January of 1967 and April of 1971, when this controversy arose, the respective positions, duties and stock ownership of the members of the corporation can be briefly described as follows:

W. C. Porter is president of the corporation and a member of the board of directors and owned approximately 8 to 10 percent of the common stock. At the time of the trial, he was 80 years of age and had farmed all of his adult life. He managed the day-to-day farming operations but left the business affairs of the corporation to the other officers and directors.

Naomi Porter was vice president and a member of the board of directors and owned approximately 40 to 41 percent of the common stock. So far as the record discloses, she did not actively participate in the day-to-day affairs of the corporation but acted strictly as an officer and director. At the time of the trial, she was completely incapacitated, paralyzed and unable to speak. Her daughter, Harriett Copple, had been named her legal guardian prior to the trial.

Harriett P. Copple is secretary and treasurer and a member of the board of directors of the corporation and owned 40 percent of the common stock. Her duties consisted of keeping and maintaining the corporation’s records, including books, income tax records, minutes of stock and directors’ meetings and all stock and financial records.

William P. Copple was married to Harriett in December, 1961. He holds a degree in Agricultural Economics from the University of Missouri, is a member of or certified by various real estate appraisal societies, is employed by the United States General Services Administration as a staff appraiser, and also manages a farm owned by him and his wife near Trenton, Missouri. He has been a shareholder in the corporation since its formation and, at times pertinent here, owned approximately 10 percent of the common stock. He has done some manual work on the farm, such as planting and harvesting crops and handling livestock, but most of his efforts in behalf of the corporation were in an advisory capacity. He and W. C. Porter conferred about the farm approximately once a week, discussing crops, livestock, the Federal Feed Grain Program and real estate sales and development in the area.

The minute book of the corporation reveals that at a shareholders’ meeting held January 5, 1971, a resolution was adopted authorizing the president (W. C. Porter) to “discuss with any prospective buyer the sale of” the 200 acres of the farm here involved “with any decision resulting therefrom to require the consent of the Board of Directors”.

On April 15, 1971, the plaintiff, Donald F. Willsey, contacted W. C. Porter on the farm while he was working in the fields and entered into a discussion as to the sale of the 200 acres. As a result of this discussion, Mr. Willsey roughed out some notes as to terms of sale on a piece of tablet paper, which was signed “Donald F. Willsey — W. C. Porter”. Mr. Porter testified that he made it clear to Willsey that the property was owned by the corporation and that any tentative agreement which they might reach was subject to the approval of the corporation shareholders and directors. Willsey was shown by the record to be possessed with wide experience in business and real estate matters and himself a member of a number of corporations.

He testified:

“Q. And at the time Mr. Porter also told you that the land was titled to a corporation ?
A. I would say that’s right.
Q. So it is fair to say that the land was owned by the corporation and the family was involved in this corporation ?
A. Right.”

As a result of this conversation between W. C. Porter and Willsey, the latter prepared the Real Estate Contract dated April 20, 1971, here sought to be enforced, which showed “W. C. Porter Farms Co.” as seller, and the plaintiffs as buyers. This document was signed “W. C. Porter Farms Co.—W. C. Porter” and by the plaintiffs. Space was left for the signatures of the other corporate officials. The purchase price was in excess of $400,000.00.

Porter testified that when he had an opportunity to study the contract, it wasn’t “at all like I thought it was” and did not reflect his tentative agreement with Will-sey. When it was shown to the Copples (Naomi Porter does not appear to have personally entered into any phase of this transaction) a special meeting of the shareholders and directors of the corporation, with corporate counsel in attendance, was arranged and held on April 26, 1971, at which time a resolution was adopted specifically rejecting the terms offered by Willsey but authorizing counsel to make a counterproposal and further stating:

“Resolved, that the President is not authorized to bind the company to this or any other sale.”

Willsey was advised of this decision by Porter via telephone and by a letter from counsel dated April 28, 1971, in which the tendered down payment under the Willsey contract was returned. Willsey in turn rejected the counterproposal from the company, and another special meeting of the shareholders and directors of the corporation was held on May 4, 1971 and Willsey’s “counterproposal” was rejected and counsel was instructed to advise Willsey that “the company was not bound by any contract agreed to by the President”.

Plaintiffs contend that W. C. Porter had both actual and apparent authority to execute the contract in question and thus bind the corporation. The voluminous record and exhibits before the trial chancellor have been carefully reviewed and do not support plaintiffs’ position. It is true that W. C. Porter was given a free hand in the day-to-day management of the farming operations (the purpose for which the corporation was organized) with the advice and assistance of Mr. Copple. Within that area of the usual course of the corporate business, the record would support his authority to bind the corporation. The general rule is that a president of a corporation is empowered to transact, without special authorization from the board of directors, all acts of an ordinary nature which are incident to his office by usage or necessity and to thus bind the corporation. Stevens Davis Co. v. Sid’s Petroleum Corporation, 157 S.W.2d 246, 249[7] (Mo.App.1942); Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751, 753[1] (1949). Such officer’s actual authority stems from the statutes, articles of incorporation, by-laws and either specific authority from or longstanding acquiescence by the board of directors. Apparent authority “is brought into existence by the principal’s creation of an appearance of affairs which would cause a reasonable person to believe that the officer had actual authority to do a particular act, upon which appearance a third person relies”. Parks v. Midland Ford Tractor Company, 416 S.W.2d 22, 26[8, 9] (Mo.App.1967); Fair Mercantile Co. v. Union-May-Stern Co., supra.

W. C. Porter did not have actual authority to bind the corporation to sell approximately 35% of its farm land. The articles of incorporation, as above noted, limited the power of the corporation to “carrying on the business of farming and all related activities”. Of course, its president could have been given authority to bind the corporation to sell the land. But no such authority had ever been conferred upon him. To the contrary, the directors had strictly limited his powers in this regard to discussing with any prospective buyer the sale of the 200 acres “with any decision resulting therefrom to require the consent of the Board of Directors”.

Neither does this record support a conclusion that W. C. Porter was clothed with apparent authority within the above-stated rule. No other activity than farming had ever been carried on by the corporation so that the contract to sell the land would not be the usual and customary activity of the corporation. The corporate purpose was to farm, not to barter or trade in real property. Josephine Hospital Corportaion v. Modoc Realty Co., 307 Mo. 336, 270 S.W. 638, 641[2] (1925); Grafeman Dairy Co. v. Northwestern Bank, 315 Mo. 849, 288 S.W. 359, 362[1] (banc 1926); Roth v. J. N. Roth & Co., 363 Mo. 767, 253 S.W.2d 802, 806-808[3, 4] (1952); Grimm v. Gargis, 303 S.W.2d 43, 48[5] (Mo.1957). Furthermore, the record supports the solid conclusion that Willsey was advised that the land involved was owned by a corporation and that the approval of the other members of the corporation was necessary to validate the contract. While some of the testimony of W. C. Porter was somewhat vague and conflicts in some details with the testimony of Willsey, the inevitable conclusion from his testimony and that of the plaintiff, Donald Willsey, emerges that Willsey could not have been misled by appearances to believe that Porter could act alone in binding the corporation, particularly in the light of Willsey’s extensive business background and admitted business knowledge. At most, he might have hoped that Porter had the necessary influence with the other corporate owners to secure their approval. However, such was not forthcoming and in fact Porter testified that the contract drawn by Willsey did not reflect his idea of the terms discussed, and he also voted to reject the proposal.

The case of Jones v. Williams, 139 Mo. 1, 39 S.W. 486, 40 S.W. 353 (Mo.1897), relied upon by plaintiffs, is clearly distinguishable upon the facts. The case of Parks v. Midland Ford Tractor Company, 416 S.W.2d 22 (Mo.App.1967), also cited by plaintiffs and cited supra herein, is completely consistent with and supportive of the conclusions here reached.

The judgment is affirmed.

All concur.


text:
    Mrs. John Melba ROBINSON, Plaintiff-Respondent, v. Ovied CONLEY, Defendant-Appellant.
    No. KCD 27093.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      Gordon Gamm, The Legal Aid and Defender Society of Greater Kansas City, Inc., Kansas City, for defendant-appellant.
    H. George Lafferty, Jr., Kansas City, for plaintiff-respondent.
    Before SWOFFORD, P. J„ and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

This is a civil action seeking damages for injuries sustained by plaintiff-respondent when she was struck by an automobile driven by defendant-appellant as she attempted to walk across Prospect Avenue in Kansas City, Missouri. Trial was to the court sitting without a jury. The defendant-appellant conceded the issue of liability, and chose to have the case tried only on the issue of damages. The trial court awarded plaintiff-respondent damages in the amount of $2,712.00. This appeal followed.

The evidence tended to show that on December 8, 1971, Mrs. John Melba Robinson, a 24-year old woman, was crossing Prospect Avenue near the 44th Street intersection. At this intersection, Prospect Avenue runs north and south, and 44th Street runs east and west. She was walking east-wardly along the south side of the intersection, when appellant’s automobile, going westwardly on 44th Street, struck her near the middle of the street. The automobile was going between 15 and 20 miles an hour when it struck her in the stomach and left arm. She was thrown up onto the hood of the car, and when the automobile stopped, she was thrown onto the street pavement and knocked unconscious. She was placed in an ambulance and taken to St. Joseph Hospital. At the hospital she was treated for injuries to her head and left ear. Although her head was bleeding and she was vomiting some blood, no stitches were taken and she was released. That evening, she returned to the hospital because her head was hurting, and she was given a prescription.

She testified that she was unable to work for two months and one week following the accident. She said that during that period of time she was continually bothered by the injuries she sustained in the accident, and experienced periods of dizziness and throbbing at the back of her head. She had never had this type of discomfort before the accident. At the time of the accident, she was employed at Parmelee Plastics, and was making approximately $300.-00 per month. Even after she went back to work she continued to have headaches and dizzy spells several times a week. By the time of trial, almost twenty-three months after the accident, she had gotten over the dizzy spells, but still experienced some head discomfort. She also testified that she had had to go see a doctor about some stomach pains which developed after the accident. Apparently, the stomach pains had subsided by the time of trial.

On this appeal, appellant argues: (1) the testimony of plaintiff-respondent was unworthy of belief, because it was vague, equivocal, and inconsistent with her pretrial statements; (2) the amount of the award was inconsistent with previous judicial awards for comparable injuries; and (3) plaintiff-respondent failed to show that her injuries were caused by the accident.

The first assignment of error is directed at the credibility of the plaintiff-respondent as a witness. The trial court in awarding damages herein impliedly gave credence to her testimony. We have reviewed the record and do not find her testimony vague, equivocal, or so inconsistent as to rob it of all probative force. We give deference to the trial court’s determination with respect to the credibility of her testimony. Rule 73.01(b), V.A.M.R.

We further find that the amount of the award is not out of line with previous judicial awards for comparable injuries. See: Hiken v. Wilson’s Shoes, 317 S.W.2d 673 (Mo.App.1958), where $3,500.00 was approved as an award for a 16-year-old girl who, two years previously, had fallen down a flight of stairs and had received temporarily disabling but not serious nor permanent injury; and, Moore v. Glasgow, 366 S.W.2d 475 (Mo.App.1963), where a $2,500.00 award was approved for a man who had received lacerations on his head, scraped skin, and bruises in an automobile accident, was not hospitalized, and went back to work in two weeks.

Lastly, we find that a sufficient nexus between the accident and plaintiff’s injuries was established. The injuries hereinbefore described (stomach pains, dizziness, and head throbbing), were such as naturally and directly result from an accident such as this (automobile striking pedestrian in stomach, and throwing her onto ground causing her head to strike pavement). Plaintiff unequivocally testified she had not had these particular types of disorders before the accident. Appellant argues that since plaintiff did not call as witnesses the physicians who examined her, a presumption arises that their testimony would have been unfavorable to plaintiff. ' However that may be, such a presumption is not conclusive, but is merely a circumstance which may be pointed out to the trier of fact for whatever value the latter may accord it. See: Edwards v. Zahner, 395 S.W.2d 185 (Mo.1965); Transamerican Freight Lines, Inc. v. Monark Egg Corp., 236 Mo.App. 1047, 161 S.W.2d 687 (1942).

This being a court-tried case, we review the case upon both the law and the evidence as in suits of an equitable nature. Rule 73.01(a). We hold that the judgment of the trial court is based on findings of fact supported by the evidence; that no error of law appears in this record; and the judgment is therefore affirmed.

All concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    In re ESTATE of Charles A. CROMWELL, Deceased. Robert E. MURRAY, Claimant, Respondent, v. Charles A. CROMWELL, Jr., Successor Executor of the Estate of Charles A. Cromwell, Deceased, Appellant.
    No. 35707.
    Missouri Court of Appeals, St. Louis District, Division 4.
    April 1, 1975.
    Love & Lacks, Thomas K. Edelmann, Clayton, for appellant.
    Muehlenkamp & Murray, V. Jack Mueh-lenkamp, St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

The question is the propriety of an order of the circuit court allowing Robert E. Murray an attorney’s fee of $5,800 for services rendered Janice Joy Yadon, executrix of the Estate of Charles A. Cromwell, Deceased. Charles A. Cromwell, Jr., as successor executor, asserts error in finding that claimant was entitled to any fee for his services in connection with the estate; claims that the attorney “improperly advised the executrix of the estate with regard to her ability to sell corporate stock which was an asset of the estate, causing direct economic loss to the estate,” and that the court erred in refusing to so find.

Mr. Cromwell died testate February 2, 1969, leaving a daughter, Janice Joy Ya-don, named executrix in the will, and a son, Charles A. Cromwell, Jr. On February 3 Mrs. Yadon employed claimant, Robert E. Murray, an attorney, to represent her. The estate, which was substantial, consisted principally of corporate stocks. Mrs. Yadon discharged claimant as her attorney on June 3, 1970.

Between February 3, 1969 and June 3, 1970 claimant, according to his testimony, spent 189 hours performing services for the estate, as follows: Preparation and/or filing papers in connection with the appointment of the executrix; initial and supplemental inventories; several petitions for partial distribution; semi-annual and annual settlement; federal and state income tax returns; federal estate tax return, and petitions and settlements and notices for final discharge. He negotiated for the settlement of an automobile accident claim; negotiated the sale of the stock of a closely held corporation and arranged for transfer of the stock; handled claims; placed various claims and motions on the probate court dockets. He testified that on the date of his discharge there was in the estate a cash balance of $209,599, warranting an attorney’s fee of $6,314 under the statutory minimum fee schedule; that when discharged there remained to be done to close the estate legal work reasonably worth $500.

Executrix denies that claimant is entitled to any fee for the reason that he misad-vised her with respect to the sale of the Fedders stock, one of the principal assets of the estate, as a result of which the estate sustained financial loss.

The circuit judge, on his own motion, caused a jury to be empanelled to act in an advisory capacity. Five interrogatories were submitted to the jury. The gist of the interrogatories and the jury’s answers follow:

1. Were any of the services or actions rendered or performed by the attorney wrong, improper or injurious to the estate P Answer: Yes.

2. Did the estate suffer economic loss as a direct result of wrong, improper, or injurious actions of the attorney? Answer: Yes.

3. Did the attorney wrongfully advise the executrix that she could not sell the stocks in the estate on either January 12, 1970, or February 17, 1970, or April 6, 1970? Answer: Yes.

4. Did the executrix, at any time between January 1, 1970 and April 6, 1970 request the attorney to prepare an application to the probate court for authority to sell any or all of the stocks in the estate? Answer: “The jury is unanimous in that executrix requested the attorney to take the necessary actions which would allow her to sell the stocks, yes.”

5. Credibility of a witness means believability of a witness, in other words, which witness’s testimony do you feel is more credible or believable, taken as a whole, the testimony of Mr. Murray or the testimony of Mrs. Yadon? Three jurors signed their names under Mr. Murray’s name. Nine jurors signed their names under Mrs. Yadon’s name.

The circuit court found that claimant’s services and actions were not wrong, improper or injurious to the estate; that the estate did not suffer economic loss as a direct result of wrong, improper or injurious actions on his part; that claimant did not wrongfully advise executrix that she could not sell the stocks on January 12, February 17 or April 6, 1970; that in January and February, 1970 executrix talked to claimant in general terms, and made requests of claimant of a general nature that the stocks be converted into street name in order for her to buy and sell in the stock market with proceeds of the estate, at times she deemed advisable, but made no request of claimant at any time to sell any particular stock for the purpose of conserving the estate. Disregarding the answers to interrogatories made by the advisory jury, and entering findings of fact and conclusions of law contrary thereto, the court awarded claimant an attorney’s fee of $5,800. This appeal followed.

Both sides agree that in reviewing a case tried by the court -with an advisory jury the appellate court is obligated to review the case upon both the law and the evidence; that the judgment shall not be set aside unless clearly erroneous, and that it is the reviewing court’s duty to give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Appellant suggests, however, that where an advisory jury has returned a “verdict” contrary to that of the court the appellate court’s duty to defer to the trial court’s findings of fact diminishes, and urges that the court’s findings be reviewed “with greater skepticism than [the court] normally employs in reviewing the facts in a court-tried case.”

Due to the unfortunate manner in which the interrogatories were framed the advisory jury’s answers were of little assistance in deciding this case. Instead of submitting definite questions calling for specific findings of fact, and without the jury having the benefit of instructions on the law relating to the duties and obligations of attorneys in advising clients in this field of the law, the first three interrogatories submitted questions of mixed law and fact, calling for legal conclusions with respect to the wrongfulness of the attorney’s conduct. The only properly drawn interrogatory calling for a specific finding of fact was Interrogatory No. 4. Whatever slight value there may have been in the answers is clouded by the confusing fact that whereas the answers to the first four interrogatories were unanimously in favor of executrix on disputed questions of fact, three jurors in answering the fifth interrogatory indicated that claimant’s testimony was the more credible.

Executrix testified as follows: In April 1969 she told claimant that the largest concentration of stocks in the estate was in a very volatile stock, Fedders, which she was advised by her broker to watch very carefully. In June, 1969 she told claimant that she was worried about market fluctuation and that she would not have control over the Fedders stock. She asked him to do something about having control so she could sell it if it looked like a good thing to do. In July, 1969 she learned that for an executrix to sell stock it had to be changed to street name to be negotiable, a process that took 2-3 weeks. At that time she requested of claimant that he get the stock in street name “so it would be negotiable immediately, and so forth, for professional management or to sell it and keeping [sic] the money in the estate, and, he said yes, he would do that.” In September, 1969 he had not done it. He said that “he had found out you cannot sell the stock until twelve months after the date of [her] father’s death.” Executrix watched the stock market. She “constantly” worried about it and brought it up in conver-stations with claimant. On January 9, 1970 the stock reached the high point at which executrix’ father had told her he was going to sell Fedders stock. On January 12 executrix told claimant she wanted to sell Fedders and asked him to “go talk to the judge about it.” Claimant said only 11 months had elapsed since her father died and it could not be sold then; that they had to wait 15 months. Around the anniversary date, February 2, 1970, executrix again discussed the matter with claimant, pointing out that the stock market was going down; that the estate was “bouncing like a balloon in the wind.” Claimant said he had to get court orders for her to do anything; that she could not get authority until the IS months were up and that it now looked like she would not have control of the stocks for 2 or 3 years. The next day she suggested the stocks be sold and the money held in escrow. Claimant said it could not be done. When executrix threatened to go see the judge herself claimant agreed to talk to the judge about it. The next day claimant reported that the judge would let her keep a portion of the estate in escrow and deal with the rest of it at the end of the 15 months. On February 17 executrix, upset by an advisory report recommending getting out of the stock market, pleaded with claimant to do something about it, but claimant declined to do so. On April 6 she again asked him to “talk to the judge and try to get out of the stock market, the stocks are going down * * Claimant refused to act until May 2, the end of the 15-month period. When actually sold, without court order, between May 15 and May 28, 1970, the stocks netted the estate $150,400. If the stocks had been sold on January 12, 1970 they would have netted the estate $199,500. If sold on February 17, 1970, $190,000; if sold on April 6, 1970, $187,200. (All figures in nearest round numbers.)

Charles A. Cromwell, Jr. testified that on April 6, 1970 he told claimant that his sister was excited and concerned that the estate was losing money steadily because the stock market and their stocks were dropping and that she was most anxious to be able to sell the stock before they lost any more money, to which claimant answered that she could not do it; that the law would not allow it.

Executrix’ broker testified that his firm’s recommendation to her was that she try and eliminate some of the overconcen-tration in Fedders stock; to break it down in more pieces; that if she had sold the Fedders stock in 1969 it might have been reinvested in five different securities.

Edwin Raeder, who succeeded claimant as attorney for executrix, testified that a sale of the stocks could have been made within the first nine months following issuance of letters of administration, under the power in the will, which would have permitted the sale without a court order, or by an order of the probate court, which sometimes is obtained for protection; that a sale could be made during the first nine months even without a power in the will; that the probate court will rarely interfere with the discretion of the beneficiaries if they are desirous of converting stock on the stock market into cash.

Claimant testified as follows: Within a month after issuance of letters testamentary executrix informed claimant that the stocks in the estate were good stocks and that she wanted to hold on to them. From time to time there was general discussion of sale of the Fedders stock, but claimant was given no definite instructions that executrix wanted to sell. They discussed sale in the fall of 1969 but there was no insistence at that time that the stock be sold. Sometime in January, 1970 there was further discussion of sale of the stock. Claimant denied that at that time executrix told her that the Fedders stock had reached the point where her father had told her to sell and that she wanted to sell it. He said the discussion at that time related to the question whether the stocks ought to be liquidated before or after the estate was closed. In the earlier discussions in 1969 claimant told executrix that the probate court would have to authorize the sale of the stock but in the meantime he was informed to the contrary. Claimant testified that the will provided that executrix had a right to sell real or personal property in her sole discretion at any time without an order of the court. Claimant knew, however, that the Probate Court of St. Louis County took the position that the court would not honor such a provision in a will with respect to personal property and stocks. He concluded that no court order was necessary, under the power in the will, and he so informed executrix in the fall or winter of 1969, prior to December 31 of that year. Testator’s residence property and the stock in the closely held corporation had been sold under the power in the will, without court order, and these sales were never questioned. Claimant and executrix had a discussion in March or April, 1970 in which she stated that she wanted to sell stocks, but there were no definite instructions from executrix to “Get it ready to sell” until the first part of May, 1970. That was the first time executrix told claimant to sell the stock, whereupon claimant prepared the necessary papers to “take care” of the sale. (Getting “waivers from Jefferson City.”) The stocks were sold without prior court approval. Claimant did not remember having advised executrix in March or April that the probate court would not permit a sale of the stock and that she wanted to go see the judge herself. Claimant denied having said he would go talk to the judge; denied calling her the next day and telling her the sale could be worked out by holding the proceeds in escrow; denied telling her that he would not be able to get court approval because there was no compelling need for money in the estate; denied that on April 6, 1970 claimant told Cromwell, Jr. that the stock could not be sold.

John L. Sullivan, an attorney specializing in probate practice, testified that a will does not become “final” until the 9-month period runs within which it may be contested; that while an executor, acting under a power in a will, can make a sale at any time, he does so at his peril, and the only way for him to protect himself from collateral attack is to procure an order of sale from the probate court.

We are not apprised of the exact wording of the power of sale, the will itself not having been reproduced in this record.

The circuit court, not bound by the answers given by the advisory jury, made extensive findings of fact. We concur in the first 22 findings of fact made by the circuit court touching the services rendered the estate by claimant, and his right to compensation therefor, and find the facts to be the opposite from the answers given by the advisory jury to the first three interrogatories.

Appellant’s claim of error is grounded on the refusal of the court to find that claimant advised executrix that she could not sell stocks belonging to the estate, which appellant asserts was supported not only by the testimony of executrix but also by the testimony of claimant. Appellant argues that from this necessary finding it follows that the stock was not sold (and the estate therefore suffered financial detriment) because of claimant’s advice to executrix.

We find from the evidence that at the outset of the administration of this estate claimant did advise executrix that the probate court would have to authorize the sale of the stock, but we further find that thereafter and before January 1, 1970 claimant changed his mind about the necessity of first obtaining court approval, and that prior to January 12, 1970, when executrix claims she definitely stated she wanted to sell the Fedders stock and directed claimant to “go talk to the judge about it,” claimant advised executrix that no court order was necessary. We further find on controverted evidence that executrix did not communicate to claimant a definite determination on her part to sell the stock and did not direct him to take the necessary preliminary steps until early May, 1970, and that upon receiving this information and direction claimant promptly complied with her wishes.

Accordingly, although our findings do not coincide in all respects with those of the circuit court, that court reached the correct result and its judgment is not “clearly erroneous.”

Notice of the appeal was given by “the Estate of Charles A. Cromwell, deceased,” which is not an entity with the capacity to be a party appellant. The capacity to be a party appellant reposes only in persons in being, natural or artificial. Farrar v. Moore, 416 S.W.2d 711[1] (Mo.App.1967); 67 C.J.S. Parties § 30. The personal estate of a decedent is not a legal entity. It cannot sue or be sued as such, and it cannot appeal as such. “In all proceedings against the estate of deceased persons the administrator or executor is an indispensable party.” Eisiminger v. Stanton, 129 Mo.App. 403, 107 S.W. 460, 462 (1907). That case approved an appeal affidavit executed by the administrator as against the contention that it was fatally defective for not stating that the estate was aggrieved. The real party in interest —the party entitled to maintain this appeal on behalf of the estate — is its legal representative. The authority of Charles A. Cromwell, Jr. to defend this action and maintain this appeal is not a matter of record in this case. Appellant’s brief relates but the record does not show that Mrs. Ya-don resigned as executrix prior to the date of filing the notice of appeal and that Charles A. Cromwell, Jr. succeeded her by appointment as executor after that date. His name appears on the briefs as appellant, and the case has been appealed, briefed and argued as though he were the lawful party appellant, although he has no standing in this Court in the present state of the record. The situation is comparable to that encountered in Board of Public Works of Rolla v. Sho-Me Power Corp., 362 Mo. 730, 244 S.W.2d 55, 61-62[14, 15] (Mo. banc 1951). For the same reasons given in that case, if within fifteen days, by instrument of writing filed in this Court, Charles A. Cromwell, Jr., in his capacity as Executor of the Estate of Charles A. Cromwell, Deceased, adopts the notice of appeal, transcript of the record, exhibits and briefs, and asks to be substituted as party defendant and appellant herein, the notice of appeal, records, briefs and judgment will be considered as amended in conformity therewith, and the judgment affirmed; otherwise the appeal is dismissed.

SMITH, C. J., and STOCKARD, Special Judge, concur.


author: CLEMENS, Presiding Judge.

text:
    Peter WILEY, Appellant, v. STATE of Missouri, Respondent.
    No. 36057.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 1, 1975.

      Schurr & Inman, Robert L. Inman, Clayton, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Cosentino, Asst. Circuit Atty., Charles B. Blackmar, Sp. Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Peter Wiley appeals from denial of his Rule 27.26 V.A.M.R., motion to set aside three judgments and to withdraw pleas of guilty to charges of first degree murder, first degree robbery and stealing a motor vehicle. Upon Wiley’s entry of guilty pleas, the trial court sentenced him to consecutive terms of life imprisonment, life imprisonment and ten years. We affirm as to the murder judgment but reverse as to the robbery and stealing convictions.

Trial on the murder charge began May 25, 1964 and Wiley’s attorney declared his client wished to plead guilty thereto. Before accepting that plea the court questioned Wiley extensively. Wiley acknowledged he had discussed the plea with his family and with trial counsel. He acknowledged he Understood the penalty for murder was death or life imprisonment and that the state would not recommend the latter. He understood the court alone would decide the punishment, from which he could not appeal. He acknowledged no promises of leniency had been made. In answer to the court’s question as to why he wished to plead guilty to murder, Wiley said, “Well, I want to plead guilty and throw myself on the mercy of the court.” The court then asked, “What are you pleading guilty to ?” Wiley responded, “To the murder.” The prosecutor then related the State’s anticipated evidence, not only about the murder but also the preceding robbery and stealing, all of which Wiley admitted was stated correctly.

Wiley does not now specifically challenge the court’s sentence of life imprisonment on the murder charge. Instead, he contends the trial court erroneously failed to inform him that although the crime involved murder, robbery and stealing, the latter two charges were separate charges for which he could be sentenced separately and consecutively.

Before acting formally on the murder plea, the trial court and Wiley’s counsel discussed disposition of the robbery and stealing charges. The court suggested to counsel that Wiley might as well plead guilty to the three charges, since all related facts would be considered in assessing punishment. During the court’s questioning of him, Wiley acknowledged the murder and robbery were all part of one transaction. But at no time prior to arraignment or sentencing did anyone advise Wiley that by changing his pleas, he could be sentenced separately for three offenses, either concurrently or consecutively. At the 27.26 hearing, Wiley testified he pleaded guilty believing all the charges were merged and that he would be sentenced only for the murder. Wiley’s attorney testified he did not recall advising his client that the robbery and stealing charges were separate from the murder to which he was pleading guilty. The trial court never informed Wiley he could receive separate and consecutive sentences on the robbery and stealing charges as well as on the murder charge. Indeed, before sentencing Wiley on the murder charge, the court perfunctorily arraigned him on the robbery and stealing charges, and at that time Wiley acknowledged the robbery and murder were “all one transaction.”

In State v. Conner, 500 S.W.2d 300[3] (Mo.App.1973), the court said: “Although not so expressed in terms, Rule 25.04 contemplates that a defendant be advised of the consequences of his plea of guilty — including the punishment which may result from his admission of guilt . ” Conner relies on the earlier case of State v. Bursby, 395 S.W.2d 155[3—5] (Mo.1965). There, defendants pleaded guilty to a three-count information and were sentenced to three consecutive four-year terms. Our facts differ, but the Bursby principle applies here: On multiple charges the court must be particularly cautious and “should question carefully the accused to determine that he is fully informed and correctly understands . that he may and will be sentenced on each and all [offenses] . . . and that the sentences may run concurrently or consecutively. A perfunctory examination will not suffice.”

We conclude the plea arraignment on the murder charge could well have led Wiley to believe the robbery and stealing charges were merged into the murder charge. Further, the plea arraignments on the robbery and stealing charges did not meet the Rule 25.04 requirement that “defendant be advised of the consequences of his plea of guilty — including the punishment which may result . . . ” State v. Conner, supra. See also State v. Bonds, Mo.App., 521 S.W.2d 18, opinion filed March 11, 1975. Because of these deficiencies in the pleas to the robbery and stealing charges, the trial court erred in denying Wiley’s motion at his Rule 27.26 hearing to set aside the guilty pleas to robbery and stealing.

The judgment is affirmed in part and reversed in part, and the cause is remanded to the trial court with instructions to set aside the judgments as to the robbery and stealing charges and to set aside movant’s guilty pleas thereto.

KELLY and STEWART, JJ., concur.


author: DOWD, Judge.

text:
    Mary Helen CROWDER, Plaintiff-Respondent, v. Don James CROWDER, Defendant-Appellant.
    No. 35760.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 1, 1975.

      Downs & Johnson, Gerald H. Johnson, Cape Girardeau, for defendant-appellant.
    Limbaugh, Limbaugh & Russell, Stephen N. Limbaugh, Cape Girardeau, for plaintiff-respondent.
   DOWD, Judge.

Proceeding by wife for divorce, wherein husband filed cross-bill for divorce. The trial court on September 7, 1973 granted the plaintiff-wife’s petition for divorce and denied defendant’s cross-bill for divorce. Plaintiff-wife was found to have been the injured and innocent party, and the trial court ordered the defendant to pay plaintiff alimony in the sum of $200.00 per month.

Defendant appealed claiming that there was insufficient evidence from which to find that the plaintiff was the injured and innocent party and further contending that the defendant should have been granted the divorce.

The evidence showed that the parties were married on August 29, 1947 and separated March 5, 1973. They had one child, a son who was emancipated.

Plaintiff’s testimony, in relevant part, was to the following effect: that defendant had hit her “quite a number of times”, that he hit her both with his open hand and with a fist, and that on one occasion her jaw was dislocated; that defendant spent many nights away from home drinking; that in the past two years his drinking had gotten worse; that he had threatened her a number of times, including once when he threatened to shoot her with a gun; that he could not control his temper; and that she had strong evidence that defendant was associating with other women. For the most part this alleged conduct was neither denied nor explained by defendant.

In order to support a decree of divorce on the ground of indignities, plaintiff was required to prove wrongful acts over a period of time which were of sufficient gravity to make her life intolerable. Nahm v. Nahm, 477 S.W.2d 713, 715 (Mo.App.1972). Since this is a divorce action, we review the case upon both the law and the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(3), V.A.M.R.

On the basis of the testimony referred to above, we cannot say that the court was erroneous in finding plaintiff to be the injured party. Defendant’s conduct, as testified to by plaintiff, fully warrants a finding that he was guilty of such indignities as to render her life with him intolerable. See Spainhower v. Spainhower, 441 S.W.2d 755 (Mo.App.1969); Pointer v. Pointer, 251 S.W.2d 334 (Mo.App.1952).

In order to sustain the decree, however, it is also necessary that plaintiff prove she was an innocent party — i. e., that she herself was not guilty of such conduct as would have entitled defendant to a divorce. Plaintiff testified that subsequent to her separation from defendant she had spent the night with a certain man on about ten separate occasions. She specifically stated that they did have sexual intercourse. As said, the divorce decree was entered by the trial court on September 7, 1973. As of that date adultery was of course one of the statutory grounds for divorce. Section 452.010 RSMo 1969, V.A.M.S. Thus one who has committed adultery cannot be adjudged an innocent party as that term is used here. While the evidence may show plaintiff to be innocent of any misconduct before the time of the parties’ separation, the statutes make no distinction between conduct occurring prior to or subsequent to that time. Hugeback v. Hugeback, 444 S.W.2d 23, 27 (Mo.App.1969). Plaintiff’s admitted adultery must therefore preclude a finding that she was an innocent party. See Day v. Day, 433 S.W.2d 52 (Mo.App.1968).

Having found that plaintiff was an injured party, defendant likewise cannot be innocent. His conduct was sufficient to establish that plaintiff had a valid ground for divorce. This case comes within the general rule that where both parties have a valid ground for divorce neither is entitled to relief. Gregg v. Gregg, 416 S.W.2d 672, 675 (Mo.App.1967).

Plaintiff suggests that if this court is unable to affirm the judgment awarding her a divorce and alimony because of her “indiscretion”, we should nevertheless find that the trial court “correctly decided the case below following the no fault philosophy.” We disagree. Neither the trial court nor this court can apply the provisions of the new Divorce Reform Act (Sections 452.300 to 452.415, RSMo Supp.1973) which is also referred to as the “no fault” divorce law. This act did not become effective until January 1, 1974. This case was tried and the judgment entered on September 7, 1973.

Judgment as to plaintiff’s decree of divorce and alimony is reversed and affirmed as to the denial of defendant’s cross-bill for divorce.

WEIER, P. J., and RENDLEN, J„ concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Nathaniel FRAZIER, Defendant-Appellant.
    No. 35915.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 1, 1975.

      Nelson B. Rich, St. Louis, for defendant-appellant.
    John C. Danforth, Atty, Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Arthur Friedman, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

A jury found defendant guilty of Robbery in the First Degree By Means of a Dangerous and Deadly Weapon. [560.135 RSMo 1969, V.A.M.S.]. A prior felony conviction for forcible rape was proved, and sentence was set by the court under the Second Offender Act, § 556,280 RSMo 1969, V.A.M.S. at twenty-five years imprisonment. Defendant appeals.

On November 16, 1972 at about 10 a. m., the University Drug Store, 609 N. Grand Avenue, St. Louis, Missouri, was robbed by two armed men. The two men left the pharmacy carrying a manila envelope containing seven bottles of Schedule II narcotics. Shortly thereafter, two plainclothes police officers in an unmarked police car at the intersection of Grand and Delmar saw the defendant and two other men run out of an alley, run across the street in front of the officers, and enter a parked car. As the defendant was running he was carrying in both hands a yellow envelope which appeared to contain “some fairly large items for the size of the envelope.” The defendant then threw the envelope across the seat of the waiting car and then seated himself in the rear seat of the car.

The two officers stopped their car next to the car the men had entered and observed the defendant attempt to conceal a handgun under the rear seat. The officers also observed a man in the front seat attempt to conceal a gun. The officers placed the occupants of the car under arrest for carrying concealed weapons. As the defendant got out of the car the officers discovered that the envelope was full of bottles of narcotics.

Shortly after the arrest of the suspects, two more officers arrived on the scene. These new officers had received a radio dispatch concerning the armed robbery of the drugstore which was only a short distance away. All three suspects were conveyed to the drugstore to see if an identification could be made. None of the three employees were able to identify defendant as one of the robbers. However, the employees were able to identify another of the suspects as one of the robbers, as well as the envelope and the narcotics. All three suspects were photographed in the drugstore and taken to police headquarters.

At police headquarters defendant made an oral confession to the police to the effect that he and one of the suspects had planned the robbery the night before; that both of the guns used in the robbery were defendant’s; that defendant did not go into the pharmacy because he had a “heavy hand” and would have shot someone; and, that one of the robbers had handed defendant the narcotics as they fled the scene of the crime. At trial, the police officers related defendant’s confession to the jury.

The defendant did not testify and no defense testimony was submitted to the jury.

Defendant contends that the trial court erred in overruling his objection to a portion of the prosecutor’s closing argument. The argument is as follows:

“MR. FRIEDMAN: [Assistant Circuit Attorney] They were going to stick up the University Drug Store which they did, and they were going to get narcotics. They didn’t want money; they didn’t take money or anything else. Why? Because, then, they were going to take the narcotics out on the street and peddle—
“MR. RICH: I object to it. No evidence of this whatsoever. Highly prejudicial and—
“THE COURT: Be overruled. It’s an inference that might be drawn from the evidence.
“MR. FRIEDMAN: All they wanted was narcotics and this narcotics was worth one hundred sixty to one hundred eighty bucks and then they were going to take the narcotics on the street because that’s more valuable than money. And what were they going to do? Can you imagine what crimes and misery would result from that ? And they were stopped because of the sharp police work of two officers, two officers who decided to get involved.”

Defendant’s objection to this line of argument is that: (1) There was no evidence in the record that defendant was going to sell the drugs and, therefore, there was no evidence from which such an inference could be drawn. (2) The state’s comments were calculated to inflame the jury’s passions against defendant so as to deny defendant a fair trial upon the charge of robbery.

The state contends that the prosecutor’s arguments were reasonably inferable from the evidence, and argues further that the trial court did not abuse its discretion in allowing such comments to be made.

The question presented for our decision is whether there was an abuse of discretion in allowing the state to argue that the defendant was going to sell the stolen drugs on the streets. The trial court ruled that the argument was a proper inference from the evidence.

It is well settled that the permissible scope of argument rests within the trial court’s discretion. The reviewing court will not disturb a ruling by the trial court unless there has been an abuse of discretion to appellant’s prejudice. State v. Spears, 505 S.W.2d 92[2, 3] (Mo.1974), State v. McCreary, 504 S.W.2d 132 (Mo.App.1973). Furthermore, the state’s attorney may make vigorous arguments so long as his remarks are confined to the record and the legitimate inferences to be drawn therefrom. State v. Baldwin, 358 S.W.2d 18[13] (Mo.1962).

We hold that in a case like this, where there is an armed robbery of a drugstore and 1800 tablets of a controlled substance are taken, it was not an abuse of discretion for the trial judge to allow the prosecutor to argue that the drugs were stolen for the purpose of selling them on the streets.

Furthermore, even assuming arguendo that the comment was improper, we believe that the alleged error would be governed by the doctrine of harmless error.

The rules governing harmless error are best articulated in the case of State v. Degraffenreid, 477 S.W.2d 57, 64-65 (Mo. banc 1972): “Harmless error is not grounds for reversal, State v. Spica, Mo., 389 S.W.2d 35, 53; however, error in the admission of evidence should not be declared harmless unless it is so without question.” An error which in a close case might call for reversal may be disregarded as harmless when the evidence of guilt is strong. State v. Degraffenreid, supra, 65. The judgment should not be reversed when this court is fully satisfied that the error did not contribute to the result reached in the trial court. State v. Bauman, 1 S.W.2d 153, 156[4, 5] (Mo.1927). Also see, State v. Maxwell, 502 S.W.2d 382 (Mo.App.1973)

This is not a close case. Three police officers testified to an incriminating confession voluntarily made by defendant shortly after his arrest. Two officers testified that shortly before the arrest, defendant was seen running near the scene of the armed robbery carrying the envelope of stolen narcotics. We hold that under such strong evidence of guilt, the comments of the prosecutor, even if erroneous, would have only amounted to harmless error and a new trial would not be appropriate.

Defendant’s remaining point on appeal is his contention that the trial court erred in admitting as evidence certain photographs. The photographs in question were taken inside the drugstore after the police took defendant and the other two suspects to the scene of the crime to see if any of the employees could make an identification. The photographs show defendant and the other two suspects standing in the drugstore. Defendant contends that the photographs were not relevant and were “misleading, confusing, and inflaming.” We conclude that the point is without merit.

The trial court has wide discretion in admitting photographic evidence. State v. Bryant, 507 S.W.2d 672[1] (Mo.App.1974); State v. Jackson, 499 S.W.2d 467, 472 (Mo.1973). If a photograph is relevant, it is not to be excluded because it is inflammatory, unless the resulting prejudice overrides its relevancy and probative value. State v. Jackson, supra [8]. Generally, if the photograph tends to corroborate the oral testimony of the state, it is admissible. State v. Jackson, supra [9].

Here, the testimony by the arresting officers was that defendant was arrested with two armed robbery suspects. Since defendant was not identified as one of the robbers, a necessary element of the state’s case is to show a connection between defendant and the other two suspects, one of whom was positively identified as being one of the robbers. Since the testimony was that defendant was arrested with the two suspects, the photograph of defendant with the suspects corroborates this testimony.

The remaining task is to determine if the prejudicial effect of showing defendant in the drugstore outweighed the photographs’ relevancy. It was made clear through all the trial that defendant was not identified as being one of the actual robbers. It was equally clear that defendant was arrested and taken by the police to the drugstore. In fact, the trial court’s ruling on the objection was “Testimony was very clear that he [defendant] was brought there after the robbery and the pictures only portray that which occurred after the robbery at the drugstore, after these men were apprehended. The record is very clear on that.” Defendant has failed to show an abuse of discretion in admitting these photographs, as he is required to do. State v. Kinder, 496 S.W.2d 335[8] (Mo.App.1973).

Finding no reversible error in this record, the judgment is affirmed.

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