text:
    Vivian PATTERSON et al., Plaintiffs-Respondents, v. BELGER CARTAGE SERVICE, INC., Defendant-Appellant.
    No. 29743.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Max W. Foust and G. Spencer Miller, Kansas City, for defendant-appellant.
    William H. Pickett and Sandra C. Mid-kiff, Kansas City, for plaintiffs-respondents.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   PER CURIAM.

Suit for damages for personal injuries in three count petition by mother and minor son. Failure of separate Respondent Vivian Patterson to answer interrogatories caused Circuit Court to enter dismissal of Counts I and III. Respondents’ counsel of record withdrew and other counsel was granted leave to file entry of appearance. At the time of receipt of entry of appearance, Respondents’ counsel was advised by the court that Respondents had seven days to answer interrogatories. Separate Respondent Vivian Patterson failed to answer interrogatories and second order of dismissal of Counts I and III was entered.

Separate Respondent Vivian Patterson, within six months, filed motion to set aside the dismissal and after hearing, the Circuit Court sustained Respondents’ motion. From that ruling, this appeal was filed alleging Respondents’ counsel did not establish good cause, and that sufficient notice pursuant to Rule 74.78 was received by Respondents’ counsel.

If those were the main questions to resolve, perhaps a different result could be obtained on this appeal; however, there remains pending Count II of a three count petition and the trial court order as to Counts I and III was not specifically designated as final for purposes of appeal, which it had authority to do under Rule 82.06.

In Weir, et al. v. Brune, et al., 256 S.W.2d 810 (Mo.1953), the rule was affixed that where some counts of a petition remained unresolved, there is no final judgment. In Lester v. Dyer, 518 S.W.2d 213 (Mo.App.1974), this court ruled, “ * * * judgment is not final for purposes of appeal unless it disposes of all counts in a petition.”

Appeal dismissed as premature.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF KANSAS CITY, Missouri, Plaintiff-Respondent, v. Patricia CURTIS, Defendant-Appellant.
    No. 29749.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    L. Patrick O’Brien, Legal Aid of Western Missouri, Kansas City, for defendant-appellant.

      Aaron A. Wilson, Louis W. Beneeke and Dan R. Sharp, Kansas City, for plaintiff-respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   PER CURIAM.

Upon trial before the Municipal Court of Kansas City, Missouri, Appellant was convicted of disorderly conduct and breach of the peace under Section 26.10(b) of the ordinances of the City of Kansas City, Missouri. Appeal was taken to the Circuit Court of Jackson County and upon trial de novo without jury, she was convicted. Motion for new trial was timely filed and overruled.

Appellant raises two points on appeal:

I
“The trial court erred in denying defendant’s motion for judgment of acquittal at the conclusion of all the evidence and in denying defendant’s motion for a new trial for the following reasons:
A. Because the city failed to make a submissible case due to a complete absence of evidence tending to establish any or all of the essential elements of the offense of disorderly conduct.”
II
“The trial court erred in denying defendant’s motion for judgment of acquittal at the conclusion of all the evidence and in denying defendant’s motion for a new trial for the following reasons:
B. Because application of the ordinance to the defendant would operate to punish her for exercising her constitutionally protected rights of freedom of speech and freedom of association.”

Consideration of point 11(B) is first taken up because it raises a constitutional question and may be disposed of without recitation of the facts or ordinances involved herein. Point 11(B) is without merit because the section of the constitution allegedly violated must be specified and preserved through the trial proceedings. Upon this failure, there was nothing preserved for appellate review. Kansas City v. Miller, 463 S.W.2d 565 (Mo.App.1971); State v. Flynn, 519 S.W.2d 10 (Mo.1975); State v. Shouse, 519 S.W.2d 13 (Mo.1975); State v. Richardson, 519 S.W.2d 16 (Mo.1975); State v. McClain, 541 S.W.2d 351 (Mo.App.1976); Rule 27.20(c) and Rule 28.18.

Consideration of point 1(A) necessitates a recitation of the ordinance involved and a brief summary of the facts established upon trial.

The pertinent portion of Section 26.10(b) of the ordinances of Kansas City, Missouri states:

“Any person who, with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:
(b) Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others * * * ”

Appellant was charged by information dated June 16, 1977 which read:

“Disorderly conduct whereby a breach of the peace might have been occassioned, to wit: did stand on sidewalks and street corners and flag down vehicle traffic and pedestrian traffic thus creating a public annoyance by impeding traffic, thereby interfering with and obstructing those. persons.”

Upon trial, only the arresting officer testified. The Appellant offered no evidence. The officer stated he observed the Appellant during the hours of 1:30 p. m. and 4:00 p. m. at the intersection of 36th and Troost, during which time she and other women waved at passing motor vehicles. Some of these vehicles turned on to 36th Street and the occupants spoke with some of the women, including Appellant.

Evidence indicated that when these vehicles slowed, this caused other vehicles to slow, producing a hazardous traffic situation, although no collisions occurred. As to vehicles which turned and stopped, the evidence established they ended up on the wrong side of the street as regards proper parking and stopping of vehicles at that location.

In addition to the vehicular activity, the police officer testified that Appellant stopped pedestrians upon the sidewalk and engaged them in conversation. Some of these pedestrians were persons going to and from a local business establishment. Testimony concluded the officer could not overhear any conversation and that no violent or “outward emotions” were expressed by any of the pedestrians.

While reviewing courts should be and are reluctant to reverse the trier of facts, the decisions made upon trial must be, from the evidence, in conformity to the law of our state.

On the question of breach of peace, in the case of City of St. Louis v. Tinker, 542 S.W.2d 512 (Mo. banc 1976), breach of the peace has been determined to be such conduct by the actor as to intend “ * * * to incite the other people present to immediate violence in the circumstances then and there prevailing?”

The evidence of this case does not support Appellant’s conviction under City of St. Louis v. Tinker, supra, and is accordingly reversed.

Reversed.


author: PER CURIAM:

text:
    Henry Thomas WILLOUGHBY, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29750.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    James W. Fletcher, Public Defender, Platte City, for appellant.
    Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   PER CURIAM:

In 1973, movant (hereafter defendant) entered a plea of guilty to the offense of sodomy and was sentenced to a term of twenty-five years. Thereafter, defendant filed three successive motions for post-conviction relief, all of which were consolidated and an evidentiary hearing was granted February 25, 1977. This appeal followed the order of the trial court denying defendant’s motion. Affirmed.

Defendant’s Rule 27.26 motions all charged that trial counsel in the criminal case was inadequate. On this appeal, defendant may not prevail unless he shows that the denial of his motion by the trial court was clearly erroneous. Stewart v. State, 542 S.W.2d 544 (Mo.App.1976).

Evidence at the hearing on defendant’s motion was conflicting. While defendant testified that trial counsel had failed to interview a witness, had neglected to seek the benefit of a change of venue and had misled defendant as to the sentence which would be imposed, other evidence contradicted each of defendant’s contentions. Defendant's credibility was thereby in issue. By defendant’s admission, he had previously pleaded guilty to an earlier felony charge and, by reason of conflict between his testimony at the guilty plea hearing and the testimony he offered to support his Rule 27.26 motion, one or the other was false. The trial court was not required to believe defendant’s testimony. State v. Hurtt, 509 S.W.2d 14 (Mo.1974).

By its order, the trial court rejected defendant’s evidence as not credible. The ruling was not clearly erroneous and must be upheld. Stewart v. State, supra.

Judgment affirmed.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Charles INMAN, Appellant.
    No. KCD 29777.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      E. Richard Webber, Memphis, for appellant.
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J„ and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged with receiving stolen property (Section 560.270, RSMo 1969). A Putnam County jury before whom he cast his lot found him guilty as charged and fixed his punishment at thirty days confinement in the county jail and payment of a fine in the amount of $350.00 (Section 560.161.1(2) and .2(2), RSMo 1969). Judgment and sentence were rendered and pronounced accordingly.

None of the three rulings of the trial court with which defendant takes issue on appeal need be set forth as the evidence was insufficient to make a submissible case. Defendant’s incarceration and subjection to a fine for commission of a crime wholly unsustained by the evidence is legally intolerable, and as its inseparable companions are “manifest injustice” and “miscarriage of justice” a prime situation for sua sponte application of the “plain error” rule within the intendment of Rule 27.20(c) is presented. State v. Goodwin, 352 S.W.2d 614, 619 (Mo. banc 1962). See also State v. Sockel, 490 S.W.2d 336, 339 (Mo.App.1973).

State v. Armstrong, 555 S.W.2d 640, 642 (Mo.App.1977), citing State v. Kelly, 365 S.W.2d 602 (Mo.1963), spells out the essential elements, four in number, of the offense of receiving stolen property: “(1) the property must be ‘received in some way’ from another person; (2) the property at the time of reception must be stolen property; (3) the receiver, at the time of reception, must have guilty knowledge that it is stolen property; and (4) the accused must have received the property with a fraudulent or criminal intent”. (Emphasis added.) The first element makes eminent good sense. The general rule underlying it, “that one cannot at the same time be a principal in the larceny and in the legal sense a receiver of stolen property”, was acknowledged in State v. Honig, 78 Mo. 249, 252-53 (1883), wherein the court observed by way of explanation that if one “is a principal actor in the theft — the actual captor of the property, it is illogical and contradictory to say he has received it from another.” (Emphasis added.) Obversely stated, a thief cannot receive stolen property from himself.

Insofar as the first element of the charged offense is concerned, a recitation of the germane facts is most noteworthy for what they fail to prove rather than for what they do prove. On or about August 7, 1975, a 1975 green Chevrolet pickup truck was stolen from the lot of Smith Chevrolet, Inc., in Bloomfield, Iowa. Shortly thereafter defendant purchased a wrecked 1974 Chevrolet pickup truck from a salvage yard in Fort Dodge, Iowa. Various parts of the wrecked vehicle were cannibalized, including a plate bearing its “vehicle identification number” (VIN), and utilized on the stolen 1975 green Chevrolet pickup for the obvious purpose of concealing its true identity. The end product was thereafter observed in defendant’s possession in Putnam County, Missouri. Be that as it may, there is not one iota of evidence as to who stole the 1975 green Chevrolet pickup truck from the Smith Chevrolet, Inc., lot or how it ever came into defendant’s possession. With the record in this posture there is no escape from the conclusion that evidence to support the first essential element of the offense of receiving stolen property was totally lacking.

No solace for the state is to be found in the general principle that in ruling upon the sufficiency of the evidence to sustain a judgment of conviction the facts in evidence and all favorable inferences to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. Chase, 444 S.W.2d 398, 401 (Mo. banc 1969); and State v. McGlathery, 412 S.W.2d 445, 447 (Mo.1967). Evidence to support the first element of the charged offense is simply nonexistent. Regarding the drawing of a permissible inference to support the first essential element, although possession of recently stolen property may be invoked to establish an inference that the possessor is the thief, State v. Dobson, 303 S.W.2d 650, 651 (Mo.1957), it may not be invoked to establish an inference that the possessor received the property from another, State v. Armstrong, supra, 555 S.W.2d at 643. In the instant case the state has nothing more than mere suspicion to rely upon in support of the essential element that the property was “ ‘received in some way’ from another person”. Deprivations of human liberty and extractions of penal fines must rest upon something more solid than mere suspicion. To hold otherwise would be tantamount to advancing speculation, conjecture and sheer surmise to the ranks of probative evidence.

By virtue of the record before this court it cannot be said that an evidentiary basis existed from which the jury could have found that defendant received the stolen property from another as opposed to stealing it himself. The state’s case was fatally remiss in this respect and the judgment of conviction cannot stand.

Any inclination to remand this case for retrial on the supposition that sufficient evidence to fill the evidentiary void may be available to the state is effectively stifled by the recent decision of the Supreme Court of the United States in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). It was held in Burks that the policy of the Double Jeopardy Clause denies the prosecution under circumstances comparable to those at hand a “second bite at the apple”. As therein stated, 98 S.Ct., at 2147, “[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding . . . [t]his is central to the objective of the prohibition against successive trials.” The “binding” effect of Burks upon the courts of this state was recognized and enunciated in State v. Basham, 568 S.W.2d 518 (Mo. banc 1978).

Judgment reversed and defendant ordered discharged.

All concur.


text:
    Billy Edward FITZPATRICK, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29859.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      Denise V. Phillips, Columbia, for appellant.
    Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   PER CURIAM:

This appeal is from the order of the trial court denying relief to appellant on his Rule 27.26 motion. Supporting his claim to post trial relief, appellant contended trial counsel was ineffective in (a) failing to supply appropriate advice and information on opportunities for change of venue; (b) adversely affecting appellant’s cause by the conduct of voir dire and in closing argument, and; (c) failing to preserve for appellate review alleged error in closing argument by counsel for the state.

Appellant was convicted by a jury of the offense of rape and was sentenced to a term of thirty years. The judgment and sentence were affirmed by this court on direct appeal. State v. Fitzpatrick, 525 S.W.2d 342 (Mo.App.1975). The trial court’s ruling on the subsequent motion for post conviction relief followed appointment of counsel and an evidentiary hearing and included extensive findings of fact and conclusions of law. Upon this review, the appellate court is limited to a determination of whether the findings, conclusion and judgment of the trial court are clearly erroneous. Rule 27.26(j). The result may not be regarded as clearly erroneous unless the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Crosswhite v. State, 426 S.W.2d 67 (Mo.1968).

The burden is on appellant who seeks relief on grounds of ineffective assistance of counsel “to establish a serious dereliction of duty on the part of his counsel which materially affected his substantial rights * * * The dereliction should be of such grave nature as to obviously result in a miscarriage of justice”. Cole v. State, 553 S.W.2d 877, 882 (Mo.App.1977).

In the subject case, the record demonstrates that the opportunity to seek a different trial forum was discussed between appellant and his trial counsel and the decision not to seek removal from the known circumstances prevailing in Boone County to the unknown circumstances in a different circuit was a matter of trial strategy. A tactical decision by counsel not to seek a change of venue is not a subject for hindsight and does not demonstrate incompetency of counsel, unless manifestly wrong. Beeman v. State, 502 S.W.2d 254 (Mo.1973). Appellant’s first point is not supported in the record by a significant factual basis and, further, involves a decision on trial strategy which was a value judgment not now available for retrospective reevaluation on a charge of ineffective counsel.

Appellant next directs attention to segments of the voir dire and to closing argument both by appellant’s counsel and counsel for the state. He complains of voir dire reference to published accounts of other crimes and the effect upon the ability of prospective jurors to remain unprejudiced and objective.

The examination of the jury panel by defense counsel was obligatory by reason of current newspaper publicity on crimes similar in nature to the offense with which appellant was charged. More extensive inquiry of particular panel members was necessitated by reason of equivocal responses, and such questioning ultimately resulted in disqualification of two prospective jurors for cause. Upon the record, it is apparent that appellant’s counsel employed voir dire for the intended purpose of qualifying an open minded, unbiased jury and that the charge of incompetent counsel associated with the voir dire inquiry lacks any substance in fact.

Appellant further notes that in closing argument, his attorney referred to him several times as “Billy Fitzgerald” rather than Billy Fitzpatrick, and contends that closing argument by the state improperly called attention to the fact that appellant’s evidence was given under affirmation rather than under oath.

Counsel’s reference to appellant as “Fitzgerald” occurred four times in the argument while he was correctly identified as Fitzpatrick some sixteen times. Totally apart from the natural assumption that counsel in the vigor of argument confused the two similar names, this lapse is unavailing to appellant as he has neither shown nor attempted to show in what manner he was thereby prejudiced. Not only must the movant seeking post trial relief show failure of counsel to perform some duty, he must also establish that the failure actually prejudiced the defense. Haynes v. State, supra.

Finally, appellant complains of improper argument by the prosecuting attorney. The subject addressed a comparison between appellant’s refusal to accept the witness oath and his testimony which included a reference to the deity as a witness to appellant’s innocence. Although testimony by affirmation is fully sanctioned, the line of argument here was invited by the inconsistency or flexibility of appellant’s personal beliefs and was well within the bounds of the evidence and of propriety in argument. The issue, however, is not the error of the argument but the contention that appellant’s counsel was remiss in failing to preserve the point on direct appeal. Even if it be assumed that the prosecutor’s argument exceeded permissible limits, mere failure of defense counsel to preserve the issue on appeal is not a basis to grant relief under Rule 27.26. An error or mistake in trial strategy or judgment must, to justify vacating judgment of conviction, have been of such character as to deprive movant substantially of his right to a fair trial. McConnell v. State, 530 S.W.2d 43 (Mo.App.1975). Such is not demonstrated to have been the effect in this case.

Judgment affirmed.


text:
    STATE of Missouri, Respondent, v. Bryant E. CUNNINGHAM, Appellant.
    No. KCD 29894.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      Clifford A. Cohen, Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Richard Thurman, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

Defendant Cunningham was convicted after a trial to the court, a jury being waived, of the offense of assault with intent to do great bodily harm with malice. He was sentenced to eight years in the Department of Corrections.

He raises no question of the sufficiency of the evidence to prove an assault with a machete upon his estranged wife, Harrietta, on August 25, 1976. Neither is any question raised of the sufficiency of the evidence to show all the elements of the offense defined by § 559.180, RSMo 1969, with which the defendant was charged and of which he was convicted. Harrietta received several lacerations on her face, head, fingers, arm and back, and two fractures of the left arm. A machete was described as a knife a little less than three feet long, used “to cut trees or sugar cane or something of that nature.”

Defendant’s only complaint is that Har-rietta was permitted to testify that the defendant had attacked her on June 28 of the same year with the same instrument, at which time she had received injuries for which she was hospitalized four days. The point is disallowed.

This testimony was relevant and therefore admissible on the question of defendant’s intent to do great bodily harm and the issue of defendant’s malice aforethought. Defendant’s own testimony tended to negative those elements. He admitted the attack, although with a butcher knife instead of a machete, but explained that he had gone berserk in a jealous rage when he saw Harrietta in the company of Dickie Harris, with whom he believed she was having an affair. Defendant said he had gone to her house to discuss the return of a ring belonging to him. Defendant also presented some evidence of mental disease or defect excluding responsibility.

The testimony of the earlier crime, against the same victim, tended to show a continuing animus against the victim. It tended to show defendant’s malice and his intent to do great bodily harm by the present attack. The rule against allowing proof of other unrelated crimes of a defendant has no application in this case. State v. Bolden, 494 S.W.2d 61, 65 (Mo.1973).

The judgment is affirmed.

      . “The parties have joined issue on the question of admissibility of the evidence, and we have decided the case on the issue. However, the erroneous admission of evidence, which would be prejudicial in a jury trial, will usually be harmless in a court-tried case. State v. Whaley, 512 S.W.2d 431, 435 (Mo.App.1974); State v. Young, 477 S.W.2d 114, 117 (Mo.1972).”


text:
    FAIRWOOD HOMES ASSOCIATION, Respondent, v. Charles D. PIERCE, Appellant. FAIRWOOD HOMES ASSOCIATION, Respondent, v. Marvin McWHORTER, Appellant.
    Nos. KCD 29935, 30117.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    James L. McMullin, Kansas City, for Pierce.
    William F. Washburn, Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   PER CURIAM.

Appeal from final judgment in the alternative of mandatory injunction or that Appellants modify structure to comply with restrictive covenant.

Separate actions were filed against Appellants and the matter was tried to the court upon a stipulation of facts. Appellant McWhorter filed notice of appeal but no brief. The facts, procedures and issues are, from the record, applicable to both Appellants and for purposes of this appeal, the cases are joined.

This being a case of first impression, a brief summary of the facts is necessary.

Respondent is a non-profit corporation organized to conduct business applicable to and within the residential subdivision wherein Appellants reside. As part of its purpose, Respondent is charged with enforcement of restrictive covenants that run with the land.

Prior to the purchase, by Appellants, of their respective properties, Respondent had filed a “Property Owners Association Declaration” with the Recorder of Deeds of Jackson County. This declaration subjected all properties in the Fairwood sub-division, where Appellant Pierce resides, and by its content subjected certain properties in the Robandee subdivision, including the property of Appellant McWhorter, to a “Declaration of Restrictions”. This declaration limits the height of structures above the roof of any home. The pertinent portion of this declaration provides:

“No radio or television aerial wire or structure shall be maintained more than five (5') feet higher than the roof of any structure.”

Both Appellants are citizen band (C.B.) enthusiasts, duly licensed and have installed antennas exceeding the five foot maximum height restriction as prescribed in the homeowners declaration.

The trial court ruled that Appellants were to remove the antennas or in the alternative, to modify their design so as not to exceed the restrictive covenant requirement. Only one point is raised by Appellants, alleging:

“The court erred in granting the injunction directing the Defendant/Appellant to remove his two (2) citizen’s band radio antennas, or in the alternative to modify their construction whereby they would extend only five (5') feet above his residence, for the reason that the Federal Communications Commission’s rules permit the Defendant/Appellant’s antenna, as installed, and the Federal Communications Commission’s rules supercede the restrictions with the land.”

There being no authority on this point in our state, the court is left to determine the authority of the Federal Communications Commission as it relates to state law, local laws and ordinances upon the question of zoning and restrictive covenants running with the land.

While the use of C.B. radios has become an accepted part of modern life and continues to be a useful aid in emergency situations, it must be remembered that licensure related to the lawful use and operation of such equipment is limited.

The F.C.C., being a federal agency, derives its authority from Congress. Reference to the Federal Communications Act of 1934, 47 U.S.C. § 151 (1934), provides the purpose and intent of this agency and also includes the limits of its authority as that authority relates to the question raised herein. The act provides the F.C.C. shall have no jurisdiction with regard to “charges, classifications, practices, services, facilities or regulations for or in connection with * * * (any such services) * * * in any case where such matters are subject to regulation by a State commission or by local governmental authority.” 47 U.S.C. § 221(b) (1934).

Appellants’ contention that the F.C.C. has pre-empted this area of authority by the mere granting of a C.B. radio license is without merit and it is hereby declared that the state and local governing agencies do have authority over local zoning and property restrictions, inclusive of restrictive covenants running with the land whereby the parties have actual or valid constructive notice of such covenants and further provided all other requirements related to such restrictive covenants under our law have been met.

While neither Appellants nor Respondent provided the court with any reference on the question of validity of covenants running with the land, see Hall v. American Oil Company, 504 S.W.2d 313 (Mo.App.1973), Lake Saint Louis Community Ass’n v. Kamper, 503 S.W.2d 447 (Mo.App.1973) and Greenberg v. Koslow, 475 S.W.2d 434 (Mo.App.1971).

Judgment affirmed.

      . See Fairwood Homes Association v. Pierce (# KCD 29935), Circuit Court of Jackson County, Missouri No. CV77-2073 and Fairwood Homes Association v. McWhorter (# KCD 30117) Circuit Court of Jackson County, Missouri No. CV76-4028.

      . See also Presnell v. Leslie, 3 N.Y.2d 384, 165 N.Y.S.2d 488, 144 N.E.2d 381 (N.Y.Ct.App.1957); Skinner v. Zoning Bd. of Adjustment of the Township of Cherry Hill, 80 N.J.Super. 380, 193 A.2d 861 (1963); Annot., 92 A.L.R.2d 878.


author: DIXON, Judge.

text:
    SWANSON’S, INC., Plaintiff-Respondent, v. Brenda C. SCOTT, Defendant-Appellant.
    No. KCD30006.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Jon Reginald Gray, Kansas City, for defendant-appellant.
    Herbert R. Fineburg, Berman, DeLeve, Kuchan & Chapman, Kansas City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a judgment entered against her by the circuit court on appeal from the magistrate court. The case was tried to the court.

The defendant raises an issue concerning the propriety of the trial court’s denial of an oral motion for continuance and a claim of error with respect to evidence which was not raised in the motion for new trial.

The points stated and the brief are so violative of the rules with respect to the presentation of an appeal to this court that dismissal would be justified. Since it would require more effort to catalog the error in the briefing than it would to deal with the only substantive question presented, the claims will be considered.

Defendant claims the trial court erred in denying an oral request for a continuance. The request for a continuance was not in writing as required by Rule 65.03 and contained no affidavit. In the absence of compliance with this rule, there can be no abuse of discretion in denying a continuance. Searles v. Searles, 495 S.W.2d 759 (Mo.App.1973). In the brief, defendant has argued the reasons submitted to the trial court for continuance — that she had obtained an expert witness who was unable to be present and that she had been unable to obtain counsel. The record does not support those claims. The case was set pursuant to a written request for continuance in writing by the defendant, consented to by the plaintiff, and granted by the court on or about July 25, when the court advised her to obtain counsel. The case was filed originally in the magistrate court in October, 1973, and the defendant discharged her counsel two days before a default was rendered in the magistrate court and approximately six months elapsed after the magistrate court judgment before the setting of the circuit court. There is no basis to find that the trial court abused its discretion in failing to grant a continuance.

The second issue raised by the defendant is not contained in the motion for new trial. Defendant argues that she had obtained an expert witness who was unavailable, but that claim of error was not contained in the motion for new trial, and nothing in the transcript even suggests that it was called to the attention of the trial court. Apparently some claim was made in the suggestions in support of motion for new trial in respect to this matter, but the suggestions are not contained in the transcript. This court may not consider any matter not set forth in the transcript. Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625 (Mo.App.1975).

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Russell Allen LONG, Defendant-Appellant.
    No. KCD30025.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      Carlos D. Edwards, Carrollton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

This is a direct appeal from a conviction on a three-count information. Defendant was convicted of burglary and stealing, theft of a motor vehicle, and tampering with a different motor vehicle. The jury found defendant guilty on all three counts. Proof of the applicability of § 556.280 RSMo 1969 having been made, the trial court sentenced the defendant to 10 years for burglary, 5 years for stealing, 5 years for theft of the motor vehicle, and 5 years for tampering with the second motor vehicle, all of the sentences to be served consecutively.

Defendant claims error as follows: First, that the evidence was insufficient and could not support the verdicts and additionally, that a motion for judgment of acquittal at the close of the State’s evidence should have been sustained. Second, defendant claims the proof of the applicability of § 556.280 RSMo 1969 was insufficient, and error occurred in its presentation before the trial commenced. Third, the defendant asserts error in the use of an unendorsed witness to prove the identity of the defendant in the second offender hearing.

Because the sufficiency of the evidence is questioned, the evidence will be stated to the extent necessary to determine whether substantial evidence exists which, if believed by the jury, would sustain a verdict of guilty. State v. Ruth, 567 S.W.2d 716, 718 (Mo.App.1978). The substantive evidence concerning the offenses was from testimony of an accomplice, one McComas. McComas and a person named Hodge were drinking with the defendant at a tavern in Marshall, and they discussed a burglary. Hodge suggested a drug store, and the men left separately, bent, ostensibly, on that burglary. The three finally ended up in the McComas vehicle. While enroute to the burglary site selected initially, the vehicle overheated. Hodge suggested the burglary of the nearby Bacon Sales. When the trio arrived at Bacon Sales, they attempted to hot-wire a truck in the outside parking lot. When this failed, they broke out a window to see if the premises contained a burglar alarm, and when no alarm sounded, the defendant pried open a door with a 4-foot metal bar. All three entered the building. Hodge hot-wired a pickup truck parked inside. While this activity was in progress, Hodge told the defendant to keep watch, and the defendant did so. As the defendant watched, Hodge and McComas loaded three cartons containing lawn mowers into the truck and stole some tools from a work room. An overhead garage door was opened, and Hodge drove the truck out of the building. Hodge and the defendant then posted McComas as a lookout; they went around the building and broke a window which caused an alarm to go off in the main building. The defendant got in McCo-mas’ car, and Hodge drove the stolen pickup. McComas’ car experienced some mechanical difficulty, so McComas and the defendant hitchhiked to a truck stop.

McComas, on cross-examination, acknowledged that he had been charged in connection with the events he was testifying to and that the prosecutor had promised to recommend a sentence of two years in the county jail in exchange for his agreement to testify at the defendant’s trial. The defendant offered alibi testimony.

Adverting now to the first issue, the sufficiency of the evidence, the defendant’s contention that McComas’ testimony did not constitute substantial evidence of defendant’s guilt is without merit. “A conviction may be had on the uncorroborated evidence of an accomplice unless such testimony is so lacking in probative force as not to amount to substantial evidence.” State v. Powell, 433 S.W.2d 33, 34 (Mo.1968). McComas’ testimony was not inherently suspect nor incredible. It was not seriously impeached and was such that, if believed, would constitute substantial evidence of guilt. The trial court did not err in refusing the defendant’s motion for judgment of acquittal at the close of all the evidence, and the verdict of the jury is supported beyond question with respect to the sufficiency of the evidence.

Defendant’s second claim is that the evidence concerning the applicability of § 556.280 RSMo 1969 was insufficient. The State offered a certified transcript of the serial record of the Missouri Department of Corrections concerning Russell Allen Long. The serial record showed a conviction by the Circuit Court of Saline County on a plea of guilty to forgery on May 10, 1971 and a sentence of two years. The transcript further shows that Russell Allen Long was received at the state penitentiary on May 11, 1971 and was discharged on a commutation on August 17, 1972. The defendant makes the frivolous argument that because there was no showing as to the nature of the commutation, the proof of a prior offense fails. The assertion in the brief is almost incomprehensible. Defendant claims that the evidence was received to show a prior conviction “for reason that there is no indication as to the nature of the commutation and as to whether or not the sentence was commuted to a sentence which would not be punishable by confinement in the state penitentiary.” That proof clearly showed that the defendant had been convicted of and sentenced for an offense punishable by imprisonment in the penitentiary and that he was subsequently imprisoned. State v. Wilson, 544 S.W.2d 859, 863 (Mo.App.1976). The fact of commutation of the senténce does not affect the proof of his imprisonment from May 11, 1971, to August 17, 1972 upon a felony charge. Defendant also contends that the trial court erred in hearing the evidence of the prior conviction preceding the trial of the issues in the instant offense before the jury. Defendant cites no authority in support of this argument. Defendant claims only that this demonstrated prejudice on the part of the trial judge because he found the defendant was a “second offender” before the evidence was heard on the instant conviction. It is worth noting that the trial court in its finding put “second offender” in quotation marks, indicating he was making a conditional determination. The language of the trial judge is awkward, but it demonstrates no prejudice on its face. A review of the record reveals that the trial court conducted the trial with complete impartiality, and no error appears. The motion for new trial does not raise the issue, and there is certainly no showing that this procedure resulted in manifest injustice or miscarriage of justice justifying the application of Rule 27.20(c).

Finally, defendant challenges the late witness endorsement of the deputy sheriff who testified that he had been present at the time of the defendant’s guilty plea in the Circuit Court of Saline County, and who identified Russell Allen Long as the same defendant as in the Saline County case. Again, the defendant cites no authority for his contention. He does not identify any prejudice arising from the trial court’s permission to endorse, and he asked for no relief, such as a continuance, at the trial court level. The trial judge properly exercised his discretion in permitting the late endorsement of the witness. State v. Strawther, 476 S.W.2d 576, 579 (Mo.1972); State v. Cobb, 444 S.W.2d 408, 415 (Mo. banc 1969). There being no error, the judgment and conviction is affirmed.

All concur.


text:
    James BLANKS, Plaintiff-Appellant, v. Robert CANTWELL, Defendant-Respondent.
    No. KCD 30072.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Dwight L. Larison, Kansas City, for plaintiff-appellant.
    John E. Burruss, Jr., Jefferson City, for defendant-respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   PER CURIAM:

Appellant, hereafter plaintiff, appeals the judgment of the trial court dismissing plaintiff’s petition for damages as barred by the limitation of Section 516.120, RSMo 1969. Affirmed.

Disposition of the cause by the trial court was upon defendant’s motion for summary judgment supported by attached affidavits. Plaintiff filed no opposing affidavits and the facts thereby adduced in support of the motion stand admitted for the purpose of the motion. Cherry v. City of Hayti Heights, 563 S.W.2d 72 (Mo. banc 1978). Although summary judgments are not generally favored, the procedure is an appropriate vehicle for assertion of an affirmative defense entitling the party to judgment as a matter of law. Hunt v. State Farm Mutual Automobile Insurance Company, 560 S.W.2d 280 (Mo.App.1978).

The applicable portions of the record disclose the following facts. Plaintiff was injured in an automobile accident July 7, 1968, while riding as a passenger in a vehicle driven by defendant. Plaintiff’s petition for damages was filed July 2, 1973, but summons issued to defendant was returned non est. An alias summons was issued August 30, 1976, and served on defendant the following day. No request for summons nor other process in the case appears between the dates of the non est return in 19.73 and the issuance of the alias summons more than three years later.

The accident giving rise to the cause of action in 1968 occurred in Miller County which was then the residence of plaintiff and defendant. Defendant continued to live in Miller County until mid-1972 when he moved to Ohio where he obtained employment. He returned to Miller County in 1974 and lived and worked there during the succeeding two year period up to the date when service of process was completed. In fact, defendant was employed at the same place of business as plaintiff’s father for more than one year subsequent to May 1, 1974, and was personally acquainted with the Miller County Sheriff who saw and spoke with defendant from time to time between May 1, 1974, and August 30, 1976.

The five year limitation applicable to this action was tolled by the filing of the petition within the limitation period which would otherwise have expired some five days thereafter. Continued suspension of the limitation period is, however, conditioned upon due diligence being exercised in obtaining service. Votaw v. Schmittgens, 538 S.W.2d 884 (Mo.App.1976). Whether due diligence has been exercised is to be determined on a case by case basis. Wooliver v. Schopp, 509 S.W.2d 216 (Mo.App.1974).

As shown above, defendant’s presence in Miller County where he was available for service of process for more than two years before any alias summons was requested is undisputed. The trial court found that by permitting the cause of action to lie dormant for more than three years, plaintiff failed to prosecute the cause without delay. Under the standard for appellate review as announced in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the court’s finding must be sustained unless against the weight of the evidence or erroneous in declaration or application of the law. No such error appears and dismissal of plaintiff’s cause must be affirmed.

Defendant also directs attention to failure of plaintiff to comply with Rule 84.04(d) in stating the points relied on to show wherein and why the action of the trial court was erroneous. As stated by plaintiff in his brief, the points were, “The court erred in granting summary judgment based on the statute of limitations” and “The court erred in granting summary judgment when there was a genuine issue of fact regarding the issue of due diligence after the original summons was returned non est.” So stated, plaintiff’s points are mere abstract, conclusionary observations which totally fail to state wherein and why the trial court erred in granting summary judgment and what issue of fact precluded entry of the judgment. Neither point as stated preserves anything for appellate review. Hamilton Music, Inc. v. York, 565 S.W.2d 838 (Mo.App.1978); Baker v. Lake Lorraine, Inc., 562 S.W.2d 374 (Mo.App.1978).

Judgment affirmed.


author: WASSERSTROM, Judge.

text:
    J. Everett COCHRAN and Ruby Ellen Cochran, Plaintiffs-Appellants, v. Richard D. GREBE and Nellie R. Grebe, Defendants-Respondents.
    No. KCD 30129.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      Gordon N. Myerson, John A. Koepke, Morris, Larson, King, Stamper & Bold, Kansas City, for plaintiffs-appellants.
    Bernard W. Gorman, Tarkio, for defendants-respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Claiming termination by them of a contract for sale of land because of defendants’ breach, plaintiffs sued for ejectment (Count I) and to quiet title (Count II). Both parties moved for summary judgment. The trial court overruled plaintiffs’ motion and granted that of the defendants, from which order plaintiffs appeal. We reverse.

The parties entered into a contract dated December 10, 1970, under which plaintiffs agreed to sell and defendants to buy certain real estate for $72,000. $60,000 of that was payable in annual installments, plus interest. Closing documents were deposited in escrow with the First National Bank of Tarkio, Missouri, to be delivered to defendants upon full compliance by them with the contract. Under the contract provisions, defendants were allowed to miss up to two annual principal payments, if necessary, without that being “grounds for foreclosure.” The defendants were obligated to maintain insurance and to pay taxes when due. The agreement specifically provided that “nonpayment of the insurance premiums or taxes when they become due and payable shall be considered as a default.” A subsequent paragraph provides that in the event the defendants “fail to meet the terms of this contract, the said escrow agent upon the request of [the plaintiffs] shall declare all payments heretofore made by [defendants] be determined rental payments of said real estate and for liquidated damages for the nonfulfillment of this contract and all of said payments shall be retained by [plaintiffs], together with the full right of possession of said land herein described.”

The 1975 taxes became due on this real estate on December 31, 1975. Those taxes not being paid by that date, plaintiffs sent notice dated February 9, 1976, to the First National Bank declaring the contract in default. On February 13, plaintiffs served upon defendants Notice to Vacate. Three days thereafter, on February 16, 1976, defendants did pay the 1975 taxes.

All of the facts so far stated are agreed by the parties. Other facts, as to some of which dispute does exist, will tie referred to in the course of this opinion.

Plaintiffs’ single point on this appeal is that Rule 74.04(c) authorizes summary judgment only where “there is no genuine issue as to any material fact” and subsection (h) prohibits such relief “unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Plaintiffs assert that the trial court erred because the record in this case as presently constituted leaves for consideration genuine issues of fact concerning defaults by defendants in: (1) maintenance of insurance; (2) payment of the 1975 taxes when due, and (3) late payments of past installments of principal and interest.

It is doubtful whether plaintiffs are in any position to make any argument about either the maintenance of insurance or past late payment of annual installments. This is for the reason that their motion for summary judgment was based solely on the alleged default in timely payment of the 1975 taxes, and plaintiffs specifically stated to the trial court that said default was the one upon which they relied to declare the contract forfeited. Moreover, even if the issues as to insurance and timely past annual installments are properly in issue on this appeal, defendants made a strong showing in regard to both of those matters, except only that their proof pertaining to the continuous maintenance of insurance was presented in the form of unsworn letters and purported insurance records. With respect to whether this served to deprive those items of probative value, see Allen v. St. Luke’s Hospital of Kansas City, 532 S.W.2d 505 (Mo.App.1976) and compare Westbrook v. Mack, 575 S.W.2d 921, (Mo.App.1978). However, these questions need not be pursued, because this appeal can and will be disposed of on the different ground that there are genuine issues of fact pertaining to the late payment of the 1975. taxes.

Defendants freely admit that those taxes were not paid when they became due on December 31, 1975. Their claim is that this eliminates any question of fact and leaves only the question as to the legal effect of that admitted late payment. They go on to argue that the late payment is not sufficiently significant to support a forfeiture. The only authority cited by them in support of that proposition is O’Fallon v. Kennerly, 45 Mo. 124 (1869). O’Fallon is not applicable here.

O’Fallon recognizes the rule that notwithstanding a default in payment upon the day specified and despite an express stipulation for forfeiture, equity may nevertheless decree specific performance of a contract for sale of land in order to prevent consequent unfairness to the vendee. This rule can be justified on the ground that a contract for deed is a form of security device similar in purpose to a mortgage or deed of trust. Just as redemption is permitted to a mortgagee, so also a parallel right of “equitable redemption” should be extended to a vendee under a contract to purchase. Annot., “Specific Performance of Land Contract Notwithstanding Failure of Vendee to Make Required Payments on Time,” 55 A.L.R.3d 1, l.c. 16; H & L Land Company v. Warner, 258 So.2d 293 (Fla.App.1972). But just as the debtor under a deed of trust must tender full payment of the total amount due in order to accomplish statutory redemption (Section 443.410, RSMo 1969), so also the vendee under a contract for deed must make a similar tender of the full purchase amount in order to be entitled to specific performance. O’Fallon v. Kennerly, supra at 129. Defendants made no such tender here and consequently have not brought themselves within the doctrine of O’Fallon upon which they rely.

Although not so articulated by defendants, the tenor of their argument seems to be that their delay in paying the 1975 taxes was too minor in character to support the drastic penalty of forfeiture, particularly in view of their prompt curing of the default within three days after notice from the plaintiffs. This general argument invokes consideration of the legal rules relating to whether in a given situation time should be considered of the essence.

Clearly the parties may stipulate by their contract that time is of the essence. 3A Corbin on Contracts, Section 714, p. 358; 8A Thompson on Real Property, 1963 Replacement, Section 4460, p. 339; Johnson v. Schuchardt, 333 Mo. 781, 63 S.W.2d 17 (1933); Branch v. Lee, 159 S.W.2d 677 (Mo.1942). Where, as in this case, the parties have not so expressly stipulated, such a condition nevertheless may be implied depending upon the language of the contract, the purpose which it was intended to serve and all of the surrounding circumstances. Johnson v. Schuchardt, supra; Branch v. Lee, supra. This case was not presented to the trial court nor is it presented in this court on the theory of an implied stipulation for time to be of the essence, and therefore there is no way to say with any assurance that the facts have been fully developed in this regard. For that reason alone, this case is not now in a posture for determination on summary judgment.

Furthermore, even if the parties at the outset had not intended time to be of the essence, nevertheless plaintiffs assert in their affidavit in.support of their motion for summary judgment, “[t]hat on several occasions we told, asked, and otherwise directed defendants to make payments as provided for in said Contract” and “[t]hat on several occasions we told defendants that prompt payment was required and continued failure to do such would result in declaration of forfeiture rights.” Those demands, if made as alleged, might have the effect of making time of the essence. 17 Am.Jur.2d, Contracts, Section 334, p. 772; 91 C.J.S., Vendor & Purchaser § 104c, p. 1003; Wimer v. Wagner, 323 Mo. 1156, 20 S.W.2d 650 (1929). See also Rayburn v. Atkinson, 206 S.W.2d 512, 516 (Mo.1947). On the other hand, these allegations on the part of plaintiffs have been sharply challenged by defendants’ affidavit in which they state that, “at no time did the Plaintiffs remonstrate with us or direct us to be prompt in making the payments or paying the taxes, nor did they warn us, iterate or reiterate that our failure to pay on the exact date would result in forfeiture.” Thus the matter of whether plaintiffs made demand upon defendants for prompt performance presents a genuine issue of fact which must be resolved on live evidence rather than upon summary judgment based on mere affidavits.

Another basis upon which the issue concerning payment of 1975 taxes could have been and may have been resolved by the trial court in defendants’ favor would be that plaintiffs have waived or are es-topped to assert any demand for prompt payment on the precise date specified in the contract. Forfeitures are highly disfavored by the law and the courts are therefore quick to find a waiver or estoppel in a case of this sort. 8A Thompson on Real Property, 1963 Replacement, Section 4474, p. 421; 3A Corbin on Contracts, Section 754, p. 489; Bogad v. Wachter, 365 Mo. 426, 283 S.W.2d 609 (1955); Rayburn v. Atkinson, supra; Annot., 55 A.L.R.3d 34, Section 5[c]; Porter, “Installment Contracts For the Sale of Land in Missouri,” 24 Mo.L.Rev. 240 (1959); Parrish, “Property — Forfeiture Provisions in Missouri Installment Land Contracts,” 29 Mo.L.Rev. 222 (1964).

Defendants have produced substantial evidence by affidavit and answers to interrogatories tending to show that plaintiffs did engage in a course of conduct evidencing a waiver of prompt payment under the contract between the parties. However, plaintiffs by their affidavit state that they (at some unspecified times) protested defendants’ failure to make payments on time and that plaintiffs on several occasions stated to defendants that “continued failure to do such would result in declaration of forfeiture rights.” If those statements were made, then the past waivers would not excuse subsequent late payments. 91 C.J.S., Vendor & Purchaser § 104g, p. 1006; Rayburn v. Atkinson, supra. But defendants by their affidavit directly deny that such statements were made to them. In view of these diametrically opposing affidavits, the conflict must be resolved by trial with a regular presentation of evidence by means of which the fact finder may see and evaluate the testimony of the witnesses in person and subject to cross-examination. This constitutes a genuine issue of fact, not appropriate for disposition on summary judgment.

Reversed and remanded for further proceedings.

All concur.


text:
    STATE of Missouri, Respondent, v. Joe J. MAZZERI, Jr., Appellant.
    No. KCD 30178.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    L. R. Magee, Hines & Magee, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., and SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant appeals from a jury conviction of rape and a sentence of 35 years. We affirm.

The victim was hitchhiking on Highway 435 in the early morning hours. Defendant stopped his car in which he was driving with two companions, and the victim got in. After driving a short distance the young men demanded that the victim undress and while she was doing so, defendant drove off the highway and onto a back road. He asked his two companions to leave the car and then demanded that the victim perform oral sex upon him. When she resisted, he struck her and forced her to the act of sodomy. The other two men were then each called back to the car in turn, and at defendant’s demand the victim performed further acts of oral sex upon those two. Then defendant demanded that the victim leave the car with him and he took her to the back of the car, ordered her onto the trunk and committed an act of intercourse upon her. When this was over, the men threw part of the victim’s clothes out the window and drove off. The victim ran away and hid in the brush. Defendant drove back, but the men did not see the victim, threw her blouse and stockings out of the window, and drove away.

The victim proceeded on foot until she reached the home of Mrs. Stepp. Mrs. Stepp was aroused from sleep and opened the door to see the victim crying, hysterical, upset and scared. Mrs. Stepp called the police. Upon responding to the call, they were given a description of the car and of the young men and an account of what had happened. The police did spot a car matching the description, and on their attempt to stop the car for investigation, defendant attempted to escape at a high rate of speed. His car was eventually halted by means of a road block. The police investigated the scene of the incident in question and found the victim’s blouse and one of her stockings.

Defendant’s first point on this appeal is that the evidence given by the victim was conflicting, there was no corroboration of her testimony and therefore the evidence was insufficient to support conviction. The law is well settled that the uncorroborated testimony of the victim in a rape case is sufficient to support conviction unless her testimony conflicts with the physical and surrounding circumstances or with common experience so as to be so unconvincing and improbable that it is extremely doubtful. State v. Tripp, 558 S.W.2d 809 (Mo.App.1977). The victim here did make some untrue statements initially to Mrs. Stepp and to the police officers as to her activities earlier in the evening and how she came to be afoot on the highway. She also initially stated untruthfully that she had been forced into the defendant’s car. There were also some minor discrepancies between her testimony given at the preliminary hearing as opposed to her testimony at trial. However, none of these misstatements or discrepancies went directly to any essential element of the state’s case necessary to prove rape. With respect to all of those essential matters, the victim’s statements were all straightforward and without conflict. That was sufficient to make her testimony the basis for submission to the jury even without corroboration. State v. Lee, 404 S.W.2d 740 (Mo.1966); State v. Barnes, 536 S.W.2d 932 (Mo.App.1976).

Moreover, the record shows that there was corroboration for the victim’s testimony. Sutton, one of the other young men in defendant’s car, testified to the manner in which the victim had been picked up, her disrobing with the car leaving the highway, her crying, and the various acts of sodomy. He also testified that defendant took the victim to the back of the car, it felt like somebody got on the trunk, and he felt the car move a couple of times. Further corroboration of the prosecutrix’s testimony lies in her immediate report of the incident, the matching description of the car driven by the rapist, his flight from the police, the location of the victim’s blouse and stocking at or near the scene described, and the physical condition of the victim shortly after the incident as described by the testimony of Mrs. Stepp and the police officers and photographic evidence. The failure of a hospital examination to show presence of sperm does not serve to destroy the victim’s account. The state need not prove ejaculation as an element of rape. State v. Barnes, supra. A negative finding with respect to sperm does not contradict the prosecutrix’s testimony and does not even bear upon any essential element of the case.

Defendant’s second point is that the court erred in permitting evidence of acts of sodomy, which were separate crimes with which defendant was not charged. Where a defendant is on trial for a sexual offense, evidence is admissible as to other similar acts committed at about the same time as part of a continuous and inseparable episode. The whole transaction is viewed as one and as parts of the res gestae of the crime charged. State v. Shumate, 478 S.W.2d 328 (Mo.1972); State v. Parton, 487 S.W.2d 523 (Mo.1972); State v. Torrence, 519 S.W.2d 360 (Mo.App.1975). So it is here.

Defendant argues as his final point that the length of the sentence shows bias and prejudice on the part of the jury and constitutes cruel and unusual punishment. The punishment assessed here is within the statutory limits set by Section 559.260, RSMo 1969. It therefore cannot be considered excessive. State v. Motley, 546 S.W.2d 435 (Mo.App.1977).

Nor can the sentence be deemed cruel and unusual punishment unless it is so disproportionate to the offense as to shock the moral sense of all responsible men. State v. Motley, supra; State v. Brownridge, 353 S.W.2d 715 (Mo.1962); State v. Agee, 474 S.W.2d 817 (Mo.1971). It has been held that a sentence of even 99 years for rape does not show bias and prejudice by the jury or constitute cruel and unusual punishment. State v. Brownridge, supra; State v. Agee, supra. Nothing in this record shows bias and prejudice on the part of the jury, and the 35 year sentence is not so disproportionate to the crime as to be shocking to this court.

Affirmed.

All concur.


author: TURNAGE, Judge.

text:
    Robert J. EDWARDS, Appellant, v. John E. KELLEY, Robert W. Wallerstedt, Samuel Epstein, William Dancy, Constituting the Board of Election Commissioners of Kansas City, Missouri, Charles L. Stitt (Contestee), William Hayden (Contestee) and Carol A. Coe (Contestee), Respondents.
    No. KCD 30497.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      Robert L. Shirkey, Kansas City, for appellant.
    Willard B. Bunch, Gladstone, David B. Dysart, Kansas City, Duncan, Russell & Bunch, Gladstone, for respondent Charles L. Stitt.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Robert J. Edwards filed an election contest following the primary election held on August 8, 1978. He was an unsuccessful candidate for the Democratic nomination for Magistrate Judge for the Fifth District of Jackson County, Missouri. The court found there was no basis on which to either order a recount or invalidate the election. On this appeal Edwards contends that he showed violations of the election code sufficient to cast doubt upon the validity of the election and, therefore, the court erred in refusing to order a new election. Appeal dismissed.

Edwards filed a notice of appeal to the Supreme Court which was later transferred to this court. All briefs were not filed until December 29, 1978, and this case was submitted on January 23, 1979.

The parties agree the general election was held in November, 1978, and this appeal was obviously not decided prior to that time. In Winchester v. Adkisson, 522 S.W.2d 825 (Mo.App.1975) it was held that a primary election contest which was not decided on appeal prior to the general election for which the primary was held made the appeal moot. The court reviewed a number of Missouri decisions and other authorities in its opinion and gave a full discussion of the reasons the holding of the general election renders a primary election contest moot.

The Legislature has since repealed the sections referred to in Winchester and passed The Comprehensive Election Act of 1977, comprising §§ 115.001 to 115.641 and §§ 51.450 and 51.460, RSMo 1977 Supp. effective January 1, 1978. The legislative intent as discussed in Winchester has been carried into the new Act. Section 115.551, providing that an appeal may be taken from the judgment of the circuit court in primary election contests, specifies that the appellate court shall “modify its rules to the extent necessary in order to conclude the appeal as many days prior to the general election as possible . . . .” Furthermore, § 115.549 requires a court which orders a new primary election to set a date for the election “which shall not be less than fourteen or more than thirty days after the order is issued . . . .” There is no doubt the Legislature in The Comprehensive Election Act intended primary election contests to be fully decided prior to the general election as further demonstrated by the failure to provide any mechanism for the holding of a new general election if a primary election contest is decided after the general election.

The only exception mentioned in Winchester for deciding a primary election contest after the general election has occurred is to resolve questions of public interest. The irregularities relied upon in this case do not involve questions of public interest which require resolution even though the case is otherwise moot.

The appeal is dismissed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Clifford R. COMBS, Defendant-Appellant.
    No. KCD 29290.
    Missouri Court of Appeals, Western District.
    Feb. 27, 1979.
   MEMORANDUM AND ORDER

The defendant herein prosecuted his appeal to this Court from a conviction for Burglary Second Degree and Stealing, which judgment was affirmed by decision of this Court on February 27, 1978 and our mandate issued May 11, 1978. State v. Combs, Mo.App., 564 S.W.2d 328. In so doing, this Court followed the binding authority of State v. Duren, 556 S.W.2d 11 (Mo.banc 1977) which ruled the Missouri jury selection statutes as they pertained to the exclusion of women from jury service to be constitutional. The Missouri decision in Duren was thereafter held to be unconstitutional and void by the Supreme Court of the United States in the case of Billy Duren v. State of Missouri, 1979, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579.

This Court has received from the Supreme Court of the United States its mandate dated February 13, 1979 in the above entitled cause No. KCD 29,290, ordering that the judgment of this Court in this case be vacated and remanding the same for reconsideration by this Court in the light of Duren v. Missouri, supra, and directing this Court to take such proceedings herein in conformity with such opinion in Duren as will accord with right and justice and the Constitution and Laws of the United States.

It appears from the record in this case that the defendant, Clifford R. Combs, raised the constitutional question as to jury selection laws in Missouri pertaining to women, decided in Duren v. Missouri, by moving to quash the jury panel in his criminal trial at the earliest possible 'time and preserved the question throughout the criminal trial and appeal to this Court.

IT IS THEREFORE ORDERED, CONSIDERED AND ADJUDGED That our decision herein of February 27, 1978, and our mandate herein of May 11, 1978, be and the same are hereby withdrawn and this cause is remanded to the Circuit Court of Jackson County, Missouri.

IT IS FURTHER ORDERED That the defendant, Clifford R. Combs, be transported from his present place of confinement by the Department of Corrections of the State of Missouri to the Jackson County, Missouri jail at Kansas City, Missouri and be placed in the custody of the Department of Corrections of Jackson County, Missouri pending further proceedings in the court below.


text:
    STATE of Missouri, Respondent, v. Herbert BURNFIN, Appellant.
    No. KCD 28630.
    Missouri Court of Appeals, Western District.
    Feb. 27, 1979.
   MEMORANDUM AND ORDER

The defendant herein prosecuted his appeal to this Court from a conviction for First Degree Murder and sentence of life imprisonment, which judgment and conviction were affirmed by decision of this Court on December 5, 1977 and our mandate issued on February 9,1978. State v. Burnfin, 560 S.W.2d 283. In so doing, this Court followed the binding authority of State v. Duren, 556 S.W.2d 11 (Mo. banc 1977) which ruled the Missouri jury selection statutes as they pertained to the exclusion of women from jury service to be constitutional. The Missouri decision in Duren was thereafter held to be unconstitutional and void by the Supreme Court of the United States in the case of Duren v. State of Missouri, 1979, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579.

The Supreme Court of the United States granted a writ of certiorari to the defendant here and thereafter that proceeding in the Supreme Court was numbered 77-6701, Burnfin v. State of Missouri.

This Court has received from the Supreme Court of the United States its mandate dated February 13, 1979 in the above entitled cause No. KCD 28,630, ordering that the judgment of this Court in this case be vacated and remanding the same for reconsideration by this Court in the light of Duren v. Missouri, supra, and directing this Court to take such proceedings herein in conformity with such opinion in Duren as will accord with right and justice and the Constitution and Laws of the United States.

It appears from the record in this case that the defendant, Herbert Burnfin, raised the constitutional question as to jury selection laws in Missouri pertaining to women, decided in Duren v. Missouri, by moving to quash the jury panel in his criminal trial at the earliest possible time and preserved the question throughout the criminal trial and appeal to this Court.

IT IS THEREFORE ORDERED, CONSIDERED AND ADJUDGED That our decision herein of December 5, 1977, and our mandate herein of February 9,1978, be and the same are hereby withdrawn and this cause is remanded to the Circuit Court of Jackson County, Missouri.

IT IS FURTHER ORDERED That the defendant, Herbert Burnfin, be transported from his present place of confinement by the Department of Corrections of the State of Missouri to the Jackson County, Missouri jail at Kansas City, Missouri and be placed in the custody of the Department of Corree-tions of Jackson County, Missouri pending further proceedings in the court below.


author: SWOFFORD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Claude M. HARDY, Appellant.
    No. KCD 29221.
    Missouri Court of Appeals, Western District.
    Feb. 27, 1979.
   MEMORANDUM AND ORDER

SWOFFORD, Chief Judge.

The defendant herein prosecuted his appeal to this Court from a conviction of Kidnapping and Rape, which judgment was affirmed by decision of this Court on June 12, 1978 and our mandate issued July 25, 1978. State v. Hardy, 568 S.W.2d 86. In so doing, this Court followed the binding authority of State v. Duren, 556 S.W.2d 11 (Mo. banc 1977) which ruled the Missouri jury selection statutes as they pertained to the exclusion of women from jury service to be constitutional. The Missouri decision in Duren was thereafter held to be unconstitutional and void by the Supreme Court of the United States in the case of Duren v. State of Missouri, 1979, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579.

The Supreme Court of the United States granted a writ of certiorari to the defendant here and thereafter that proceeding in the Supreme Court was numbered 78-5606, Hardy v. State of Missouri, - U.S. -, 99 S.Ct. 1037, 59 L.Ed.2d 85.

This Court has received from the Supreme Court of the United States its mandate dated February 20, 1978 in the above entitled cause No. KCD 29,221, ordering that the judgment of this Court in this case be vacated and remanding the same for reconsideration by this Court in the light of Duren v. Missouri, supra, and directing this Court to take such proceedings herein in conformity with such opinion in Duren as will accord with right and justice and the Constitution and Laws of the United States.

It appears from the record in this case that the defendant, Claude M. Hardy, raised the constitutional question as to jury selection laws in Missouri pertaining to women, decided in Duren v. Missouri, by moving to quash the jury panel in his criminal trial at the earliest possible time and preserved the question throughout the criminal trial and appeal to this Court.

IT IS THEREFORE ORDERED, CONSIDERED AND ADJUDGED That our decision herein of June 12, 1978, and our mandate herein of July 25, 1978, be and the same are hereby withdrawn and this cause is remanded to the Circuit Court of Jackson County, Missouri.

IT IS FURTHER ORDERED That the defendant, Claude M. Hardy, be transported from his present place of confinement by the Department of Corrections of the State of Missouri to the Jackson County, Missouri jail at Kansas City, Missouri and be placed in the custody of the Department of Corrections of Jackson County, Missouri pending further proceedings in the court below.


author: GUNN, Judge.

text:
    STATE of Missouri, Respondent, v. Anthony ROGERS, Appellant.
    No. 39704.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 27, 1979.

      Quinn & Ground, Paul E. Ground, Manchester, for appellant.
    John D. Ashcroft, Atty. Gen., Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant was convicted of second degree burglary — a § 560.045, RSMo 1969 offense. His appeal is based on the following: (1) that defendant was improperly interdicted in his cross-examination of the victim as to whether she had insurance to cover her loss; (2) that under the Uniform Business Records as Evidence Act, § 490.-660, RSMo 1969, the trial court erred in foreclosing defendant’s examination of a witness on the contents of a police report; (3) that denial of his motion for acquittal was error. We affirm.

Amy Harper’s St. Louis residence was burglarized. Her teenage daughter first noticed the evidence of burglary about noon when she observed that a downstairs bedroom glass door and basement window had been broken. The lock to the basement door had also been broken and furniture had been moved. Three new carpets were missing from the bedroom. Ms. Harper’s daughter notified her mother and police, and an investigation ensued. Police were able to lift two fingerprints and a palm print from the broken glass of the downstairs bedroom door, and one of the prints was identified as defendant’s.

During the cross-examination of Ms. Harper, defendant’s attorney inquired if she had homeowner’s insurance. An objection by the prosecutor as to the relevance of the question was sustained, but Ms. Harper answered anyway: “I don’t have Homeowners Insurance.” On appeal defendant contends that he was denied his proper right of cross-examination, in that he was seeking to show that the prosecution witness had a motive to falsify her testimony. But the trial court cannot be charged with error, for at trial defendant made no offer of proof or explanation as to the nature and purpose of his examination. As we cannot say that the pertinence of the question was apparent on its face, an offer of proof was necessary to show its relevance. State v. Tolliver, 562 S.W.2d 714 (Mo.App.1978); State v. Davis, 515 S.W.2d 773 (Mo.App.1974).

Further, there was no possible prejudice to defendant by the trial court’s action. The witness, in disregard of the court’s ruling, volunteered her answer that she had no insurance. The witness’ testimony had the effect of totally enervating the thrust of defendant’s theory — that the victim had a motive to falsify her testimony as she was seeking to benefit from the crime by insurance; she had no insurance. Thus, the defendant would not have benefited even from a favorable court ruling, and no harm occurred. See State v. Williams, 513 S.W. 718 (Mo.App.1974).

Defendant’s second point relates to the trial court’s refusal to allow the state’s fingerprint expert to testify as to the police report prepared by another officer covering the investigation. Defendant claims that the fingerprint expert was qualified to testify under the Uniform Business Records as Evidence Act by reason of his past experience as a police officer and the fact that he had prepared such reports previously. However, the trial court is vested with substantial discretion in determining whether a witness is qualified to testify under the Uniform Business Records Act. State v. Boyington, 544 S.W.2d 300 (Mo.App.1976); State v. Jones, 518 S.W.2d 322 (Mo.App.1975). We find no abuse of discretion here in refusing to allow the fingerprint expert to testify as to the police report. The witness had not been a regular patrolman for 6½ years. There is no indication that he could testify from personal knowledge as to the current practices of keeping police reports or their mode of preparation. The record is barren of any indication that he had means of knowing whether the information in the report was accurate. Therefore, the trial court cannot be accused of acting capriciously in disallowing the fingerprint expert’s testimony regarding a police report prepared by another officer. Olsten v. Susman, 362 S.W.2d 612 (Mo.1962). In addition, the defendant offered no evidence as to the unavailability of the witness who kept or prepared the report. The proper evidence here would have been the testimony of the officer who prepared the report, its official custodian or, at least, someone whose duty it was to be familiar with its preparation and to whom the information had been transmitted. State v. Weindorf, 361 S.W.2d 806 (Mo.1962); State v. Boyington, supra; State v. Brauch, 529 S.W.2d 926 (Mo.App.1975). In any event, the defendant was not prejudiced by being rebuffed in his effort to present the information in the police report, which supposedly would highlight inconsistencies in the victim’s daughter’s testimony as to the time of her discovery of the burglary and its report to the police. These inconsistencies were fully elicited and developed in the defense cross-examination of the daughter, and the police report would have added nothing more.

Defendant’s final point is that defendant’s fingerprint at the scene of the crime was not sufficient evidence to support the conviction. As defendant has cited no authority in support of this point relied on, it is deemed abandoned and not preserved for review. State v. Crowell, 560 S.W.2d 889 (Mo.App.1978); State v. Robinson, 555 S.W.2d 667 (Mo.App.1977). Also, the fingerprint evidence here was sufficient proof of identity to sustain defendant’ conviction. State v. Parker, 535 S.W.2d 126 (Mo.App.1976); State v. Ivery, 534 S.W.2d 107 (Mo.App.1976).

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.


text:
    STATE of Missouri, Respondent, v. Joseph J. BARGEON, Appellant.
    No. 39934.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 27, 1979.

      Stephen C. Moore, Asst. Public Defender, Twenty-First Judicial Circuit, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

The defendant was convicted of rape and armed criminal action for which he received consecutive sentences of 75 years and 25 years respectively. His appeal charges trial court error: (1) in failing to suppress certain evidence seized from him and within his auto; (2) in overruling his motion for judgment of acquittal as to armed criminal action for lack of evidence. We affirm.

The 17 year old victim of defendant’s attack worked in a St. Ann victualing establishment. She had closed for the evening at midnight and was in the process of cleaning up when about 1:00 a. m. she noticed an older model stationwagon with wood paneling drive through the restaurant parking lot. The same auto subsequently passed slowly on the street in front of the restaurant and then parked nearby before slowly driving off again. The victim continued in her cleanup work. As she opened the backdoor of the restaurant to take out the trash, a man who had been lurking outside came crashing in, knocking the victim down and falling on her. The victim described her assailant as a white male, having a red beard and wearing a blue and red ski mask. The attacker held a knife to the victim’s face, blindfolded her and forced her to the floor. The assailant then told the victim that he had put his knife down but that- if she started to grab for it or screamed, he would kill her. The victim was then raped, and the rapist departed. She called the St. Ann police and described her assailant to them, including reference to his red beard, ski mask and a description of the old model wood paneled stationwag-on. Police responded quickly, and the rapist’s knife and a piece of cloth were found on the floor of the restaurant. Later, the victim noted that her wallet was missing from her purse.

A report of the rape and a description of the assailant with red beard, red ski mask and driving a wood paneled stationwagon was relayed by general police broadcast. An Overland police officer received the call over the radio shortly after the rape was reported and observed a 1967 stationwagon with wood paneling with a single occupant driving through Overland about a mile or two from the point of rape. The officer stopped the stationwagon, and the red bearded defendant exited and reached for his left rear pocket. “Due to the nature of the call,” the police officer had the defendant raise his hands for a pat down search and found a red and blue ski mask in his left rear pocket. St. Ann police were summoned, and the defendant and his car were taken to St. Ann where the auto was impounded. As the defendant was being taken back to St. Ann, the ski mask fell from his pocket and was retrieved and kept by a St. Ann policeman. Looking through the window of defendant’s car, the police could see on his floor what was determined to be the victim’s wallet. A man’s torn shirt which matched the material of the piece of cloth found at the restaurant was in plain view on the seat of the auto.

Defendant’s first complaint relates to the stopping of his auto by police allegedly without proper cause based on “a vague radio broadcast description of an automobile which has not been linked to any offense.” As a consequence — so argues defendant — all evidence seized was macu-lated. We disagree. A police officer may in appropriate circumstances stop a person to investigate possible criminal behavior although no probable cause to make an arrest exists. A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time. Therefore, if a police officer entertains a reasonable suspicion that criminal activity may be afoot he may stop the suspicious person, identify himself, require the suspect to identify himself and make reasonable inquires concerning his activities. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Johnson, 566 S.W.2d 510 (Mo.App.1978); State v. Taylor, 538 S.W.2d 761 (Mo.App.1976); Kansas City v. Fulton, 533 S.W.2d 677 (Mo.App.1976). We specifically find that the Overland police officer who halted defendant’s vehicle after receiving a report of a rape in nearby St. Ann and the connection of an older model stationwagon with wood side paneling could have reasonably suspected under the circumstances that the occupant of the stationwagon with wood side paneling carrying the defendant may have been involved in criminal activity and could therefore be momentarily detained for investigation. State v. Johnson, 558 S.W.2d 424 (Mo.App.1977), is felicitous to the issue here. In Johnson, id., it was held that the stopping, arrest and search of defendants and their Dodge Polara auto was proper after a police officer received a radio broadcast that a Dodge Polara had been involved in a robbery. The stopping and search had been made solely on the basis of the radio description of the auto. Also, closely on point is State v. Carter, 572 S.W.2d 430 (Mo. banc 1978), where the witnesses’ description of a tan or light colored car served as the basis for probable cause for arresting and searching the defendant found in a cream colored car. In State v. Murray, 445 S.W.2d 296 (Mo.1969), the only description given for a robbery getaway vehicle was “a black convertible with white top.” This information was held to give a police officer probable cause to stop a 1955 black and white Buick convertible and search and arrest its occupants. Thus, the radio broadcast describing the defendant’s vehicle, gave the Overland police officer reasonable ground to stop him for purposes of investigation. State v. Granberry, 530 S.W.2d 714 (Mo.App.1975). See also State v. Johnson, 566 S.W.2d 510 (Mo.App.1978).

Once having legitimately stopped the auto, under the facts here the Overland police officer properly frisked the defendant. The police officer knew that a violent crime had been committed; that the defendant matched the description of the rapist. Further, defendant made a move to his hip pocket on exiting from the auto. Thus, a limited “pat down” intrusion was invited and warranted, including the removal of the ski mask. Terry v. Ohio, supra; State v. Singleton, 560 S.W.2d 379 (Mo.App.1977); State v. Taylor, supra.

After taking the defendant to the St. Ann police station for booking, defendant’s auto was impounded and items such as the victim’s wallet and defendant’s shirt were taken from it and used in evidence. These items were plainly visible to the police officers viewing the interior of the auto inside or were available through proper inventory procedures. State v. Jines, 539 S.W.2d 801 (Mo.App.1976); State v. Taylor, supra. The fact that the items were not seized instantly is of no moment. State v. Jines, supra. We find that all articles which defendant complains were obtained as a result of unlawful search and seizure were properly received in evidence either as incident to lawful investigatory detention, Terry v. Ohio, supra, State v. Johnson, 558 S.W.2d 424 (Mo.App.1977), were in plain view, State v. Epperson, 571 S.W.2d 260 (Mo. banc 1978), or, in the case of such exhibits as photographs of the defendant’s footprints at the crime scene and the victim’s shoes, the defendant lacked possessory interest to challenge their admission on the basis of unlawful search and seizure. State v. Hatten, 561 S.W.2d 706 (Mo.App.1978); State v. Dodson, 556 S.W.2d 938 (Mo.App.1977); State v. Vineyard, 497 S.W.2d 821 (Mo.App.1973).

Defendant’s final point is that the state’s evidence did not support his conviction for armed criminal action. We believe defendant’s argument on this point to be chimercal. Section 559.225, RSMo Supp. 1976, relating to the crime of armed criminal action, provides:

“ . any person who commits any felony under the laws of this state by, with, or through the use, assistance or aid of a dangerous weapon is also guilty of the crime of armed criminal action . . .."

The evidence clearly established that the defendant used a knife to accomplish his rape of the victim. Indeed, the knife was found at the crime scene and in the manner used here was a dangerous and deadly weapon. State v. Baldwin, 571 S.W.2d 236 (Mo. banc 1978). Hence, the evidence supports the conviction for armed criminal action.

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.


author: HARBISON, Justice.

text:
    Walter Adrian McCULLOUGH, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    March 19, 1979.
    Charles E. Baucum, Asst. Public Defender, Memphis, for petitioner.
    Robert A. Grunow, Asst. Atty. Gen., Nashville, for respondent; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.
   OPINION AND ORDER

HARBISON, Justice.

This cause is before the Court on petition for writ of certiorari to the Court of Criminal Appeals, which affirmed petitioner’s conviction of robbery.

The single assignment of error made in this Court is that the Court of Criminal Appeals erred in its interpretation of T.C.A. § 40-2446. The court held that after any witness in a criminal trial has been called for direct examination, not only must the direct examiner produce, upon request, copies of any statement of the witness which he possesses; but the court further held that the moving party, who proposes to cross-examine, must also produce any statements of the witness which that party possesses. The trial court had so construed the statute, and the Court of Criminal Appeals affirmed.

We are of the opinion that both courts below were in error in this interpretation of the statute. By its terms, the statute has application only to statements of witnesses called for direct examination, whether called by the State or by the defendant. It states that after any witness has testified on direct examination, upon request of the opposite party, the party who called the witness shall produce any statement of the witness in his possession relating to the subject matter of his testimony.

The statute has nothing to do with statements in the possession of the moving party who proposes to cross-examine the witness, and both courts below erred in so holding. At the trial of the case, after a State’s witness was called for direct examination, counsel for the defendant, petitioner here, requested to see any statements of the witness in the possession of the District Attorney. At this time, upon motion of the District Attorney, defense counsel was also required, over his objection, to produce copies of a statement which defense counsel had taken from the witness.

While the foregoing trial procedure was erroneous, we do not find that it was prejudicial or that it affected the results of the trial. The witness who gave the statement was fully cross-examined about it by defense counsel. The State made no use of it on redirect examination. Later, the investigator who took it for the defense was examined in detail about it. Defendant received full benefit of any impeachment value it had and was not prejudiced by being required to furnish a copy to the District Attorney. We reiterate, however, that it was error for the trial court to order such production of the statement as a condition to the right of counsel to cross-examine the witness.

The petition for certiorari is denied at the cost of petitioner, this Court concurring in the result reached by the Court of Criminal Appeals.

HENRY, C. J., and COOPER, FONES and BROCK, JJ., concur.

      . Upon request, before the witness testifies upon direct examination, the trial judge is required to inspect any such statement in camera to determine whether it contains information relating to the subject matter of the proposed testimony, and to excise any irrelevant portion.