author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Lawrence Henry HUTSON, Appellant.
    No. 36887.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 4, 1976.
    Motion for Rehearing or Transfer Denied June 15, 1976.
    Floyd E. Lawson, Paris, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant, Lawrence Henry Hutson, was convicted by a jury of murder in the first degree and was sentenced to life imprisonment. He has appealed from the ensuing judgment. We affirm.

Appellant’s only point is that the trial court erred in admitting in evidence his confession because it was “obtained as the result of promises or inducements held out by the prosecuting attorney and by Captain Webster [a police officer], thus rendering the confession involuntary and inadmissible.”

On December 6, 1973, the prosecuting attorney of Marion County, Missouri, and Captain Charles Webster of the Hannibal Police Force, went to the Menard State Penitentiary at Chester, Illinois, to talk to appellant who was an inmate there serving a sentence for armed robbery. At that time no charge against appellant had been filed by the Missouri authorities. After formal introductions, although the three previously knew each other, appellant was given the “Miranda” warnings by Captain Webster, and appellant then opened the conversation on the issue of “plea bargaining” by asking the prosecuting attorney what he would “recommend in the way of a sentence” if appellant would plead guilty to the murder of Charles Matson and also agree to testify against anyone else that might be involved. The prosecuting attorney first said he would recommend “about twenty-five years,” but in answer to appellant’s subsequent inquiry if he would recommend twenty years the prosecuting attorney replied, “Yes, I will make that recommendation.” The prosecuting attorney also told appellant that he would “make no promises” (apparently meaning that he could make no promises as to the result of his recommendation), and that “It would be nothing more than a recommendation,” and “would not be binding upon any court.” Appellant then said, “All right, I am going to tell you how it happened.” Captain Webster then again gave appellant the “Miranda” warnings, and appellant affirmatively stated that he understood those rights, including that “he had a right to remain silent” and that “anything you say can and will be used against you in a court of law.” Appellant then answered questions asked by Captain Webster, all of which were recorded on a portable tape recorder, in which he stated that he shot Charles Matson at the request of Matson’s wife who agreed to pay him one thousand dollars. The recording device was in the sight of appellant, and he admitted that he knew his statements were being recorded.

The prosecuting attorney returned to Missouri and filed first degree murder charges against Bonnie Matson, the former wife of Charles Matson. No charges were filed against appellant at that time. Subsequently, appellant wrote a letter to the prosecuting attorney, postmarked January 2, 1974, in which he denied any knowledge of the murder of Charles Matson and stated that he would not be a witness to any matter of which he had no knowledge. The prosecuting attorney then filed a first degree murder charge against appellant, and at arraignment he entered a plea of not guilty. There is nothing to indicate that the prosecuting attorney ever declined to carry through with his proposed recommendation.

At the trial the questions and answers which were recorded on December 6, 1973 at the Menard prison were introduced in evidence over the objections of appellant that the statements were “the result of promises and illegal inducements offered by the prosecuting attorney” and for that reason were “involuntary” and “not binding” upon him.

Following the hearing on appellant’s motion to suppress his tape recorded statement the trial court expressly found: (1) Appellant was experienced in criminal proceedings. (2) On a previous occasion, and twice on December 6, 1973, prior to making any statement appellant was informed of his constitutional rights. (3) Appellant understood his constitutional rights, and “he understanding^, knowingly, intelligently, voluntarily, and affirmatively waived said rights.” (4) Appellant initiated the discussion as to what the prosecuting attorney would recommend, that “any hope for leniency came about as a product of his experienced and calculated solicitation,” and that “the prosecuting attorney’s statement as to what he would recommend was solicited freely and voluntarily” by appellant. (5) The tape recorded statement “was understandingly, knowingly, intelligently, and voluntarily made while defendant was in full possession of his faculties.” (6) An examination of all the circumstances discloses that “the conduct of the law enforcement officers was not such as to overbear [appellant’s] will to resist and to bring about a confession not freely self-determined.” Appellant does not challenge any of these findings except as such challenge is necessarily contained in the contention that the statement of the prosecuting attorney that he would recommend a sentence of twenty years results in the statement being involuntary.

We have here the factual situation where appellant instigated the inquiry concerning plea bargaining, and as a result of his inquiries the prosecuting attorney told him that if he elected to plead guilty to a charge of murder, not then filed, and to testify in another case he would recommend to the court that appellant be sentenced to a term of twenty years. This was not a proposal or promise made by the prosecuting attorney to induce a plea of guilty on the part of appellant or to obtain a confession. Instead appellant volunteered to relate the facts of the homicide, or as he said, “to tell * * * how it happened.” As far as the record shows neither the prosecuting attorney nor the police officer asked appellant to make a statement, but when he volunteered to do so, the statement in the form of questions and answers was recorded on tape with his knowledge and approval.

Appellant was not subjected to lengthy interrogation and there were no threats. He was not in any way mislead or given any false promise. He argues, however, that under the circumstances of this case his statement, which amounted to a confession, must be considered to have been involuntary because it was made after the prosecuting attorney answered his question and told him that he would recommend a sentence of twenty years. Appellant relies on a statement (by way of dictum, see Pontow v. State, 58 Wis.2d 135, 205 N.W.2d 775 (1973)), in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897) as follows: “ ‘But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’ ”

The facts of the Bram case were that the defendant was in the custody of the police of Halifax, Canada, who had him brought from jail to a private office, and “when there alone with the detective he was stripped of his clothing, and either whilst the detective was in the act of so stripping him, or after he was denuded, the conversation offered as a confession took place.” The detective told defendant that a person who was also being held had made a statement that he saw defendant commit the murder. Defendant replied, “He could not have seen me.” No promise of any kind was made to the defendant by the detective. The court held that “the situation of the accused, and the nature of the communication made to him by the detective, necessarily overthrows any possible implication that his reply to the detective could have been the result of a purely voluntarily mental action.” We thus see that the Bram case did not involve the issue of whether a promise of leniency made by the prosecutor to an accused during discussions concerning the disposition of the case, without anything more, results in a statement by the accused being involuntary as a matter of law. However, the dictum statement in the Bram case as above set out has subsequently been quoted with approval. For example, see Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). But, in the Brady case the court accepted the defendant’s confession in the form of a plea of guilty even though it was induced by the implied promise of a lesser penalty if he waived a jury trial. The substance of the ruling in the Brady case was that in the determination of the voluntariness of a confession in the form of a plea of guilty, all the circumstances must be considered. It was held: “[The] Bram [case] is not inconsistent with our holding that Brady’s plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial. [The] Bram [case] dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency [but as previously noted we do not find that any promise was made] was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess.” Although appellant in this case was not represented by counsel when he made the statement in the form of a confession, no charge against him for the murder of Charles Mat-son had been filed, he had been advised twice that day and once previously of his right to counsel, and he does not now contend that he did not intelligently and understandingly waive his right to counsel.

A good, and we think correct, analysis of the decision in the Bram ease is to be found in United States v. Ferrara, 377 F.2d 16, 17 (2d Cir.1967) as follows:

"Ferrara relies on Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568 * * * . The Bram opinion cites with approval the statement in an English textbook that a confession is not voluntary if ‘obtained by any direct or implied promises, however slight’. That language has never been applied with the wooden literalness urged upon us by appellant. The Supreme Court has consistently made clear that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of ‘law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined * * *

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), which involved a guilty plea in exchange for a promise of leniency which promise was not kept by the prosecution, the case was remanded for a granting of specific performances of the promise or, in the alternative, withdrawal of the plea. This clearly indicates an approval of the plea of guilty, which was a confession, when the promise of leniency is kept by the prosecution.

We have been referred to two cases which present a somewhat similar factual situation. In Taylor v. Commonwealth, 461 S.W.2d 920, 922 (Ky.App.1970), two jointly tried defendants signed confessions which were “part of a ‘deal’ in which certain felony charges [against each defendant pending in Indiana] were dismissed.” As stated in the opinion, “The Commonwealth’s attorney for McCracken County told the two men that the Indiana authorities would dismiss the Indiana charges if the two would make confessions satisfactory to him. They made and signed the confessions and the Indiana charges were dismissed.” The two were then tried for murder and armed robbery and the confessions were admitted in evidence over the defendants’ objection that the confessions were induced by a promise and therefore were involuntary. The Kentucky Court of Appeals held: “[T]he circumstances of the promise * * * were entirely compatible with the exercise by the appellants of a free volition in the giving of the confessions, and therefore the confessions were admissible. The evidence respecting the circumstances of the making of the confessions warranted the conclusion that the initial proposal for the ‘deal’ came from Taylor [one of the defendants], who feared personal harm at the hands of a former acquaintance, then confined in the Indiana penitentiary, if he were convicted on one or more of the Indiana charges and sentenced to the Indiana penitentiary; that both Taylor and Brown [the second defendant] were of the belief that they were in danger of conviction on the Indiana charges but could ‘beat’ the Kentucky charges; and that Brown obtained the advice of his counsel before agreeing to the confession deal.” It was pointed out that in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it was held that “Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence,” and in the Taylor case it was concluded: “We think it is obvious that the ‘compelling influences’ referred to are ones exerted by the public authorities in such a way as would be calculated to affect the accused’s exercise of a free and voluntary choice of whether or not to confess. Here the promise was solicited by the accused, freely and voluntarily, so they cannot be heard to say that in accepting the promise they were the victims of compelling influences.” We note that the United States Supreme Court denied certiorari in this case. Brown v. Kentucky, 404 U.S. 837, 92 S.Ct. 126, 30 L.Ed.2d 70 (1971).

Pontow v. State, supra, involved a situation where the defendant contended that his plea of guilty was made only because the trial court had improperly refused to suppress his confession which he claimed was involuntary because it was induced by assurances of the prosecuting attorney that he would be charged with only one of a possible eighteen offenses. Reliance was placed on the dictum statement in Bram v. United States, supra. The court pointed out that the defendant was not subjected to lengthy or harassing questioning, that he was experienced in the criminal process, and that he “initiated hard-headed, arms-length bargaining with the police to attempt to gain favorable treatment.” It was held that “a promise of leniency does not in itself evince involuntariness,” but it is a factor to be considered by the court in making its determination whether under the totality of the circumstances the confession was voluntarily given, and that it would be inappropriate to lay down a rule that forbids the prosecutor from discussing the disposition of charges with a defendant.

Another case deserves mention. In State v. Cydzik, 60 Wis.2d 683, 211 N.W.2d 421 (1973), we find this statement: “The sole issue then is whether the defendant’s statements to the police were voluntarily made. The defendant claims that the voluntariness of his subsequent statements was eroded by the fact that Detective Conway told him his cooperation would be to his benefit. Such statement by a law enforcement officer falls far short of creating the ‘compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.’ Even a promise of leniency would not, standing alone, do that. Whether such statements by the defendant are voluntary or the result of coercion depends upon the ‘totality of the circumstances.’ ”

Appellant cites numerous cases in his brief, and five additional cases in an addendum. The two Missouri cases upon which he places his principal reliance are State v. White, 316 Mo. 576, 292 S.W. 411 (1927), and State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76, 79 (1936).

In the Williamson case the court stated that for a confession to be inadmissible on the ground that it was involuntary it must be made to a person in authority in consequence of improper influences exerted by him, and it was further stated: “The promises made must be positive in their terms or clear in implication, but it is not necessary that they offer some particular and specific advantage or favor. If they leave the accused free to exercise his own judgment about confessing, or if, notwithstanding them, he does use his own independent judgment, the confession is voluntary.” It was also stated that if the promises “suggest an advantage to be gained by the confession * * * and if they are reasonably sufficient to induce and do causally induce an expectation or hope of worldly benefit as against the pending charge, it is enough to bar the confession.” We consider this to be equivalent to the rule that whether a statement is voluntary depends on the totality of the circumstances, which is the generally accepted rule. The White case does not purport to lay down general rules, but the facts concerning the taking of a statement are reviewed and the court concluded that under those facts the statement was not a voluntary one. We note one distinguishing feature between these two cases and the one before us. In each case it was the prosecutor or sheriff, not the defendant, who initiated the discussion which led to the confession.

Appellant cites other cases in which a promise of leniency was coupled with the other conduct, not conducive to the free exercise of the choice to make a voluntary statement. In those cases the totality of the circumstances forced the conclusion that the statement was not voluntary. We do not consider them to be controlling when applied to the facts of this case.

Mention is required of a recent case by the Missouri Supreme Court. State v. Hoopes, 534 S.W.2d 26 (Mo. banc 1976), involved the use of a confession given as a part of an agreement that the accused plead guilty. But in that case the State .did not keep its part of the agreement. Instead it tried the accused, and in the course of that trial offered the confession in evidence. The court reversed the judgment because of the improper use of the confession, and in the opinion we find this comment: “When statements are obtained from an accused upon promises of leniency in return for a plea of guilty and the plea of guilty is aborted, the admissions obtained pursuant to the agreement * * * should ‘never have been heard of again.’ ” We consider this comment to be limited to the facts of that case, and not to be controlling of the factual situation of this case.

We have here a situation where the appellant initiated the negotiations for a plea of guilty. There was no improper questioning, no threats, no false promises, and no failure or refusal of the prosecution to carry out its part of the agreement. There is nothing to indicate that there was any improper conduct on the part of the prosecuting attorney or the sheriff which brought about appellant’s statement. Any rule to the effect that appellant’s statement was not a free and voluntary expression on his part would ignore, for the sake of technical rules, the practicalities of the situation. When the totality of all the circumstances are considered, the trial court correctly ruled that the confession was voluntary and therefore admissible in evidence.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge.

license: Public Domain

text:
    Robert A. HUGHES, Sr., et al., Respondents-Plaintiffs, v. CIVIL SERVICE COMMISSION OF the CITY OF ST. LOUIS et al., Appellants-Defendants.
    No. 36643.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 11, 1976.
    Rehearing Denied June 15, 1976.
    Jack L. Koehr, City Counselor, Joseph R. Niemann, Assoc. City Counselor, St. Louis, for appellants.
    Arthur Friedman, Howard J. Kraner, Charles R. Oldham, St. Louis, for respondents.
   NORWIN D. HOUSER, Special Judge.

The Civil Service Commission of the City of St. Louis and its individual members appeal from a judgment reversing Commission rulings in two cases consolidated for purposes of trial.

The question for decision is whether employees in the classified service of the City of St. Louis assigned to the Department of Parks, Recreation and Forestry who, in addition to their employment by the city, are also employed by the Board of Education of the City of St. Loüis, are in violation of Article VIII, Section 8 of the Charter of the City of St. Louis, which reads in pertinent part as follows:

“ . . . nor shall any officer or employe receive any additional compensation for serving in any other capacity under the city while in such office or employment; nor hold any office or employment under the state or United States except in the militia or as notary public, . . Any person guilty of any wilful violation of this section shall thereby forfeit his office or employment.”

Briefly put, do employees of the board of education hold an “employment under the state”?

The assigned hours of duty with the city and board of education do not conflict. The affected employees were notified by the city that they must either resign from one of the employments or be discharged by the city. They petitioned for relief. After a hearing the commission ruled that holding a position with the board of education constitutes holding “employment under the state” within the meaning and intent of the charter provision; that the violation arising out of such dual employment forfeits the city employment and constitutes just cause for dismissal from city service. The circuit court reversed the commission’s ruling. This appeal followed.

The circuit court reasoned that school districts are unique quasi-public corporations which do not partake of state features; that school district employees are not state officers or employees of the state and therefore plaintiffs, employees of the board of education, “are not holding office or employment under the state.” This reasoning fails to distinguish between “officer or employee under the state” and “state officer,” and overlooks several cases which lead to the opposite conclusion. There is a recognized difference between the two terms. They refer to separate and distinct classes. Valliant, J. noted the difference in State ex rel. Frisby v. Hall, 152 Mo. 234, 53 S.W. 1062, 1063 (1899). He pointed out that “[a]ll state officers are embraced in the first class, but all embraced in the first class are not state officers,” and interpreted the term “officer under the state” to mean “an office whose authority is derived from the state, and in which some of the sovereign functions of the state government are exercised.” He interpreted the term “state officer” to mean “one whose jurisdiction is co-extensive with the state.” The court held that the office of director of a school district is an “office under this state.” Other cases holding that the office of school director constitutes an “office under the state” include State ex rel. Worsham v. Ellis, 329 Mo. 124, 44 S.W.2d 129 (1931); State ex inf. Mitchell v. Heath, 345 Mo. 226, 132 S.W.2d 1001 (1939); Bernhardt v. Long, 357 Mo. 427, 209 S.W.2d 112 (1948); State ex inf. Kamp v. Pretended Consolidated School Dist. No. 1, 359 Mo. 639, 223 S.W.2d 484 (banc 1949); Young v. Brassfield, 223 S.W.2d 491 (Mo.1949); State ex inf. Rice v. Hawk, 360 Mo. 490, 228 S.W.2d 785 (1950); Utt v. Oster, 235 S.W.2d 577 (Mo.App.1951); State v. Underwood School Dist. No. 16, 250 S.W.2d 843 (Mo.App.1952); New v. Corrough, 370 S.W.2d 323 (Mo.1963).

School districts are political subdivisions of the state, § 70.210(2), RSMo 1969; State ex inf. McKittrick v. Whittle, 333 Mo. 705, 63 S.W.2d 100 (banc 1933); Consolidated School Dist. No. 1 of Jackson County v. Bond, 500 S.W.2d 18, 19 (Mo.App.1973), and a school board is an instrument, or arm, of the state government, Dick v. Board of Education of City of St. Louis, 238 S.W. 1073 (Mo.1922); City of Edina, etc. v. School District of City of Edina, 305 Mo. 452, 267 S.W. 112, 115 (banc 1924), exercising a public or governmental function. Krueger v. Board of Education of City of St. Louis, 310 Mo. 239, 274 S.W. 811 (1925). School directors, members of boards of education and their employees owe their official existence to and derive their election, appointment or employment from the authority of the laws of the state, and perform duties prescribed by the laws of the state. As such school directors, members of boards of education and their employees come within the definition of officers or employees “under the state.” They are not "state officers” or “state employees” in the technical sense defined in State ex rel. Fris-by v. Hall, supra, because their jurisdiction is not “co-extensive with the state” — the concerns of school districts, boards of education and their employees, in the exercise of their governmental functions, are local in nature.

For these reasons the members of the Board of Education of the City of St. Louis and their employees hold their offices and employments “under the state.”

Judgment of the circuit court reversed and rulings of the Civil Service Commission reinstated.

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


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Rayfield Rene JOHNSON, Appellant.
    No. 36908.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 18, 1976.
    Rehearing Denied June 15, 1976.

      Gael T. Irifande, Peter Collary, Huck, Kasten & LaBeaume, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

The State charged defendant Rayfield Johnson by Count I with first degree burglary and by Count II with rape. The jury found him guilty of both crimes and the court sentenced him to five years’ imprisonment for burglary and twenty-five years for rape.

On appeal defendant challenges the sufficiency of the indictment and the evidence, the submission of two offenses at a single trial, and the trial court’s failure to give MAI-CR 2.70 on separate consideration of evidence of each crime. These contentions in turn.

In related points concerning the first degree burglary conviction defendant contends the indictment was sufficient only to charge, and the evidence sufficient only to prove, second degree burglary. This, defendant argues, since there was neither a charge nor evidence of forcible breaking.

Relevant to these challenges are the words of § 560.040, RSMo.1969, declaring a person guilty of first degree burglary who makes entry “by forcibly bursting or breaking the . . . window ... or the fastening of such window . . . .” The indictment charged defendant “did break and enter” the dwelling “by unlatching and opening a window.”

Defendant’s attack on the indictment mistakenly relies on State v. Young, 345 Mo. 407, 133 S.W.2d 404 (1939). There, the court pointed to the specific statutory manner of burglarious entry and faulted the information for failing to specify the manner of entry since it charged defendant only with “feloniously and forcibly entering the front door.” The court ruled: “The manner of the breaking into a dwelling house is one of the ingredients of burglary in the first degree.” Young does not help defendant since the indictment here did charge the manner of entry “by unlatching and opening a window.” We hold the indictment charged first degree burglary.

Defendant contends the evidence does not support the State’s submission that there was a “breaking of the fastening of an outer window by force.” This, since police found only disturbed dust on the window sill and no objective signs of forcible breaking. We review the evidence of entry. The kitchen window of the prosecutrix’ home was closed and locked when she went to bed and open when her assailant left. This window had a metal frame, was hinged at the top and opened outward; it was fastened at the bottom by a latch on the inside. The latch had worn loose and the window could be — and the prosecutrix had on two occasions — opened it from the outside by sliding a screwdriver or a plastic card under the bottom of the window to disengage the latch. As she slept, the prosecutrix was momentarily awakened by “a clicking sound”; while her assailant was inside the house he was armed with “a sharp metal object.”

This evidence sufficed to prove entry by forcibly breaking the kitchen window. Precedent rarely provides a “case on all fours” but it comes close here. In the first degree burglary case of State v. Moore, 117 Mo. 395, 22 S.W. 1086[5] (1893) the court held: “Here the evidence showed that the house was closed, and it was entered by a window that was fastened with a clasp over the lower sash. To get into the window this clasp must be removed from over this sash. It could be done with a knife or a sharp stick. There is no sort of doubt that the thief both entered and fled through this window, nor that it was fastened. The lifting of the window clasp, and thus effecting an opening, was a breaking, within the meaning of our statute.”

We deny defendant’s challenges to the sufficiency of the indictment and the evidence on the charge of first degree burglary-

Akin to this, defendant contends the trial court erred in failing to instruct on second degree burglary, citing State v. Bell, 442 S.W.2d 535 (Mo.1969). Bell ruled this necessary if, but only if, the evidence shows entry in some manner other than by a forcible breaking, and held a second degree burglary instruction improper where the only evidence of entry was by forcibly breaking a window. Here, entry was through the prosecutrix’ locked window, possible only by unlatching the window from the outside. There was no evidence to support an instruction on entry in a manner other than forcible breaking, so the trial court properly declined to instruct on second degree burglary.

Defendant separately challenges the sufficiency of evidence on the charge of rape. He did not testify but did present alibi witnesses. He does not challenge the fact of rape, only proof of his identity.

According to the prosecutrix, the rapist held a sleeping bag over her head before and during the rape; before being raped prosecutrix threw it off momentarily and saw the rapist standing between her bed and the partially opened door into a lighted bathroom. She had seen defendant on previous occasions; some days later she again saw him on the street. She then notified the police and later identified defendant by photographs and at a lineup. In court, prosecutrix identified defendant as her attacker. This testimony of identity was vigorously challenged by cross examination which tended to weaken the defendant’s identification but the jury chose to accept the prosecutrix’ evidence and reject defendant’s alibi evidence.

Defendant’s present attack on the sufficiency of identification evidence goes to its weight, and that was a jury issue. We hold there was sufficient evidence to establish defendant’s identity. Compare State v. Tucker, 451 S.W.2d 91[4, 5] (Mo.1970), holding: “ ‘The testimony of a single witness, if believed by the jury beyond a reasonable doubt, is sufficient to establish the identity.’ ” We deny defendant’s challenge to the sufficiency of the evidence.

Defendant contended below, and contends here, that the State had no right in a single trial to try him for the two offenses of burglary and rape. He concedes Rule 24.04, VAMR permits the joinder of offenses which as here are part of the same transaction. Defendant contends, however, that Rule 24.04 impermissibly changes the substantive law. We deny that on the authority of State v. Baker, 524 S.W.2d 122[5] (Mo.1975), which analyzed the same contention, denied it, and held flatly: “Rule 24.04 is a procedural rule.”

In the argument section of his brief defendant claims prejudicial error in the trial court’s failure to give mandatory MAI-CR 2.70 requiring separate consideration of evidence on each of dually submitted felonies. Defendant did not raise this point either at trial or in his motion for new trial and thereby failed to preserve the point for appellate review. State v. Newman, 514 S.W.2d 527[1, 2] (Mo.1974). Furthermore, defendant raises the point imprecisely and abstractly in his Points Relied On. For this additional reason the point is not reviewable since it fails to comply with Rule 84.04(d) by stating wherein and why the trial court erred. “Defendant’s point [relied on] should have precisely isolated the issues and the facts relating thereto . because an appellate court is not required to search either the transcript on appeal or the argument portion of the brief to discover the meaning of a point presented in a conclusionary and abstract fashion.” State v. Gardner, 534 S.W.2d 284[6] (Mo.App.1976). See also State v. McCarthy, 336 S.W.2d 411[3] (Mo.1960).

The State concedes error but not prejudice in the trial court’s failure to give MAI-CR 2.70 since by Rule 20.02(e) the omission was error, but “its prejudicial effect [is] to be judicially determined.” Had the point been preserved we would require the State to demonstrate a lack of prejudice. Watterson v. Portas, 466 S.W.2d 129[5, 6] (Mo.App.1971). But since defendant failed to preserve the point we limit our inquiry to whether the omission was plain error under Rule 27.20(c). By its own terms that rule applies only if the failure to instruct has caused manifest injustice. See State v. Broomfield, 510 S.W.2d 843[1] (Mo.App.1974). We consider defendant’s point in that light.

Notes on Use to omitted MAI-CR 2.70 declare that where multiple counts are submitted the instruction’s purpose is to tell the jury that evidence on separate counts is not to be intermingled but is to be considered separately.

Here, the burglarious entry and the rape were clearly “part of the same transaction.” But the testimony about each offense was distinct and unrelated to the other. There were separate verdict directors on burglary and rape, each carrying a tail directing acquittal if the jury did not believe every submitted element. The court also gave a separate MAI — CR 3.02 converse instruction to each verdict director. Further pinpointing the issues, the trial court gave the jury four verdict forms: guilty of burglary, not guilty of burglary, guilty of rape, and not guilty of rape.

We hold that reading the instructions together and considering the explicit verdict forms there was no room for the jury to intermingle the evidence of burglary and the evidence of rape. We therefore find there was no manifest injustice by failure to give MAI-CR 2.70 and hence no plain error.

Judgment affirmed.

DOWD and STEWART, JJ., concur.

      . “The court erred in failing to given an instruction from the group of instructions numbered from MAI-CR 2.70 to 2.77 inclusive immediately before MAI-CR 2.80 in the present case which involved multiple counts.”


author: DIXON, Presiding Judge.

text:
    MUTUAL AUTO PARKS, INC., et al., Plaintiffs-Appellants, v. KANSAS CITY, Missouri, a municipality, et al., Defendants-Respondents.
    No. KCD 27642.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.

      James H. Stein, Leonard Rose, Kansas City, for plaintiffs-appellants.
    Aaron A. Wilson, City Atty., Ned B. Bahr, Walter J. O’Toole, Jr., Asst. City At-tys., Kansas City, for defendants-respondents.

      Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

This appeal, involving multiple plaintiffs and intervenors, was dismissed after submission. The dismissal was on the grounds that the plaintiffs and intervenors remaining in the case after a settlement as to some of the plaintiffs had failed to perfect their appeal.

A motion for rehearing was filed, asserting that the record had been misconstrued and certain of the plaintiffs and intervenors were still appellants and a viable appeal remained. The record is at best ambiguous, but the motion has been sustained; and the matter will be considered on the merits.

Plaintiffs brought suit against the City of Kansas City, Missouri, seeking declaratory judgment and injunctive relief to limit the City’s program of sidewalk repair as it affects properties plaintiffs own or lease. Under the program, repair costs are assessed against abutting owners. After the original filing, other parties intervened and were sometimes referred to as intervenors and sometimes as plaintiffs. In any event, the original plaintiffs and intervenors have similar interests and positions. For simplicity, the remaining appellants will be referred to as plaintiffs.

Pending a decision on the merits, the trial court temporarily restrained the City from proceeding with repairs affecting plaintiffs. When the trial court found against plaintiffs, it dissolved the temporary injunction, then reinstated it pending outcome of this appeal.

In this court, defendant moved to dismiss, alleging plaintiffs’ brief violated Rule 84.04 because their statement of facts was incomplete and misleading, and the points relied on were abstract statements of law not related to any action or ruling of the trial court. Plaintiffs filed an amended brief, and the motion to dismiss was “taken with the case.” Even after the amended brief, questions are raised in defendant’s brief as to the propriety of plaintiffs’ brief under the rules.

First, plaintiffs allege “[t]he court erred in failing to find that the notices given of the proposed sidewalk repairs did not meet legal requirements.” Defendant contends this point violates Rule 84.04(d) and preserved nothing for review. •

The point does identify in general fashion the alleged error, but it fails to allege wherein and why the ruling is claimed to be erroneous. It is totally unclear whether the notice provisions are attacked as written or whether the complaint is that the City failed to comply with a presumably correct method of giving notice.

The argument under this point reflects the confusion resulting from the failure to assign the reasons for the error alleged. Plaintiffs mention the fact that the Director of Public Works did not know if notice of the proposed improvements was posted. Then there is a complaint that the notices published were too all-inclusive, failing to provide each abutting owner individual notice of specific proposed improvements.

There follows an attempt to argue that Article VIII, Sec. 224 of the allegedly applicable City Charter provision requires notice to individual landowners specifying the particular improvements contemplated. On its face, Section 244 contains no such requirement. Therefore, the flaw, if any, is in the ordinance as written. But plaintiffs make no attack on the ordinance as written.

Even if the argument is considered, plaintiffs lack a meritorious claim. By its terms, Section 244 provides that failure to post notice “shall not affect the validity of the proceedings . . . .” The Sec. 244 notices listed the street segments affected in compliance with the method prescribed by that section, and could not be construed, as plaintiffs contend, “as if the Director of Public Works had given notice that he intended ' to cause repairs to be made anywhere in the City when they are necessary.”

Also, this point assumes the repairs were ordered pursuant to Article VIII, Secs. 243 and 244 of the City Charter. The City claims to have acted pursuant to Article VIII, Sec. 286 of the Charter. Individual notices were sent pursuant to that section. Thus in any case the owners received individual notice of repairs to be made, the only flaw complained of under point one.

Second, plaintiffs allege error in the trial court’s failure to find illegality in the City’s delegation of authority to the Director of Public Works to determine what sidewalks need repair. The claim is that che Director’s discretion is not sufficiently limited by standards or criteria. Defendant alleges this point also violates Rule 84.04(d). However, the claim is essentially a claim of illegal delegation of legislative power, and it is stated in language sufficient to identify it as such a claim.

Section 286 states simply, “When in the opinion of the director of public works, any sidewalk, curb, gutter or driveway is out of repair, said director of public works may cause the same to be reconstructed or put in good substantial repair

Section 286 should not be read in isolation from other provisions governing the role of the Director. In Sec. 30.99 of the Kansas City Administrative Code, the City set out standards for repair as “Whatsoever is necessary for the preservation of such sidewalk, curbing, guttering . . . and to render it safe and convenient for the public.” Thus, the appropriate question is whether these standards are sufficient to guide the Director’s discretion in finding a sidewalk “out of repair.”

Defendants rely primarily on a line of old Missouri cases in which delegation of legislative authority was limited. However, the law of delegation of power to administrative officials has undergone substantial evolution. “The modern tendency of the courts is toward greater liberality in permitting grants of discretion to administrative officials in order to facilitate the administration of the laws as the complexity of governmental and economic conditions increases.” Milgram Food Stores, Inc. v. Ketchum, 384 S.W.2d 510 (Mo.1964), cert. den. 382 U.S. 801, 86 S.Ct. 10, 15 L.Ed.2d 55 (1965), quoting from Pressman v. Barnes, 209 Md. 544, 121 A.2d 816 (1956). The Milgram court pointed out that the practice is similar in Missouri, citing Ex Parte Williams, 345 Mo. 1121, 139 S.W.2d 485 (1940), cert. den. in Williams v. Golden, 311 U.S. 675, 61 S.Ct. 42, 85 L.Ed. 434 (1940).

Howe v. City of St. Louis, 512 S.W.2d 127 (Mo. banc 1974) is analogous to the case at bar and illustrative of the modern trend. Delegation of authority to a Council on Human Relations to permit real estate sales solicitation if the Council found the solicitation was not for purposes of “blockbusting” was upheld because the authorizing ordinance contained sufficient standards. The standards permitted solicitation if the Council found that solicitation “will not result in or cause a representation that any block, neighborhood or area has undergone, or will undergo a change with respect to the religious, racial or national composition of the block, neighborhood, or area which would discourage the purchase or encourage the sale of any property in a particular area because of such real or possible change.” These standards cannot be said to be narrower than the standards here considered for the preservation of sidewalks. The standards of Section 286 are related to the aim of making the sidewalks safe and convenient for the public which is at least as clear a standard to guide the director as the standard approved in Howe, supra.

Plaintiffs’ third contention is an allegation that the trial court erred when it failed to find an unreasonable and arbitrary abuse of discretion in the Director’s requirement that sidewalk repairs be made with port-land cement concrete using iron mountain traprock aggregate and forbidding use of asphalt.

Plaintiffs cite to no authorities. They fail to state why the ruling is erroneous. The point violates Rule 84.04(d). Moreover, there was substantial evidence to support the Director’s choice of material for repair purposes. There was testimony that the mix required stands up best under heavy pedestrian use and extensive salt application. The evidence was that asphalt patches are more difficult to apply and do not work well as overlays on concrete. Asphalt does not last as long, is less resistent to deterioration and scoring and it is more difficult to make an even surface with asphalt.

Repair often requires an overlay. Sections 30.4 and 30.100 of the Kansas City Administrative Code require property owners who make their own repairs to comply with City standards. Those standards do not permit asphalt overlays, and Sec. 30.98 of the Administrative Code prohibits asphalt sidewalks or overlays on first class sidewalks.

Plaintiffs’ point IV alleges the trial court erred in finding that there was no showing that sidewalk repairs were ordered for “purely aesthetic reasons.” The claim violates Rule 84.04(d). There is no attempt to state why the finding is claimed to be erroneous. In any event, there was evidence that no repairs were ordered for aesthetic purposes. The finding of the trial court is within the guidelines of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) and should be sustained.

Judgment affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Alfreddie NEVELS, Defendant-Appellant.
    No. KCD 27673.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.
    William G. Mays, II, Public Defender, 13th Judicial Circuit, Columbia, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

This appeal stems from a trial by jury which found defendant guilty of forcible rape (Section 559.260, RSMo 1969) and imposed a ten year sentence.

Defendant’s assignments of error on appeal are two in number: (1) Insufficiency of the state’s evidence to prove penetration; and (2) Inadmissibility of “foreign hair” removed from his pubic area.

A synopsis of the evidence is in order. According to the state’s evidence the prose-cutrix (a student at the University of Missouri, Columbia) was alone in her apartment between 7:30 and 8:00 P.M. on March 21, 1974, when she heard someone open the front screen door. Believing the person at the door to be her roommate’s boyfriend, the prosecutrix went to the front door, unlocked and opened it. In doing so, she encountered a black male who was a total stranger to her, and she positively identified him during the trial as the defendant. While peering into the apartment, defendant asked the prosecutrix if anyone else was present. Thereupon, the prosecutrix attempted to close the door. Defendant, however, managed to reach inside the door and grab the prosecutrix by the arm. After doing so he forced his way into the apartment and then closed and locked the front door.

After gaining admittance defendant told the prosecutrix, “Don’t scream or don’t yell or you will make me hurt you.’’ The prose-cutrix was crying and pleading with defendant not to hurt her. Defendant responded to the prosecutrix’s tears and pleas by telling her “that he had friends outside who were watching over the place and watching out for him and that if [she] screamed or made any noise that he would hit [her].” Defendant then ordered the prosecutrix into the bedroom of the apartment. Still in tears, she refused to comply with defendant’s order. Defendant then reached towards his pocket two or three times and “drew his hand back” and admonished the prosecutrix, “Be quiet or I’ll hurt you. You will make me hurt you. Be quiet.” Defendant then grabbed the prose-cutrix by the arm and pushed her towards the bedroom, and, while doing so, told her, “Go back there. Be quiet or I’ll hurt you.”

In the bedroom defendant compelled the prosecutrix to partially disrobe herself, then he “pulled [her] underwear off.” Defendant then pushed the prosecutrix onto the bed, in a prone position, dropped his pants and undershorts, “pulled [the prosecutrix’s] legs apart”, and forced her to have sexual intercourse with him.

Before leaving the apartment, defendant, on three separate occasions, warned the prosecutrix not to tell anyone what happened or he “would come back and get [her].” As soon as the prosecutrix was sure that defendant had left the apartment she locked the front door and then returned to the bedroom and “wiped [herself] off with a Kleenex.” She then called her boyfriend and told him that she had been raped. Her boyfriend arrived at the apartment in about ten minutes. Immediately after his arrival, the prosecutrix telephoned the Columbia Police Department and reported the incident. The police responded to the call and took the prosecutrix to the University of Missouri Medical Center where she was examined at approximately 9:30 P.M. by Dr. Henry Frederick Williams, Chief Resident of Obstetrics and Gynecology.

According to Dr. Williams, a microscopic examination of the fluid content of prosecu-trix’s vagina revealed “eight to ten sperm per high-power field” which were “non-motile”. He did not deem it “unusual” that the sperm were non-motile. In his opinion, the sperm revealed by his microscopic examination resulted from “sexual contact”. Defendant’s cross-examination of Dr. Williams ferreted out that approximately 400 million sperm are normally emitted per ejaculation.

Dr. John Steven Morris, Senior Research Chemist at the University of Missouri Environmental Trace Substances Research Center, testified that a “neutron activation analysis” which he performed revealed that a “foreign hair” identified as having been removed from defendant’s pubic area (facts surrounding its removal will be discussed in greater detail when defendant’s second assignment of error is specifically addressed) was of “common origin” with hair specimens identified as having been removed from the pubic area of the prosecutrix.

Mark Pellham, a forensic chemist employed by the Missouri Highway Patrol in its “crime laboratory”, testified that an “acid phosphatase and an anti-human semen sera” test which he performed on the victim’s “underwear” and the Kleenex which she had cleaned herself with revealed the presence of “seminal stains” on both items.

Defendant, after a full explanation by court and counsel of the panoply of rights afforded him as an accused, and the state’s right of cross-examination, voluntarily chose to take the witness stand in his own behalf. According to defendant’s testimony, his presence in the prosecutrix’s apartment on the night in question, without explanation, was by “invitation”; the prosecu-trix began to act “sort of sexy”; she then enticed him into the bedroom where she proceeded to completely disrobe; after disrobing she “laid on the bed” and suggested to defendant that he disrobe; he acquiesced to the extent of disrobing from the waist down, and, after doing so, “got on the bed” and “laid on top” of the prosecutrix; he occupied this position for “five or six minutes”; he denied having sexual intercourse with the prosecutrix or ejaculating while occupying the position heretofore described; he then dressed and left the prosecutrix’s apartment.

Defendant does not attack the quantity or quality of the state’s evidence to support the guilty verdict returned by the jury except as to one narrow aspect — penetration, one of the essential elements of the crime of forcible rape. His argument in this respect is tiered: (1) “It is almost impossible to believe that there could have been penetration prior to ejaculation when only eight to ten non-motile sperm are found in the vagina.”; (2) “[I]t would seem certain that some of the sperm would be motile.”; and (3) “The weight of the evidence in this case is that there was no penetration.” It is patently obvious that the true thrust of defendant’s argument in support of his first assignment of error faults the weight of the evidence respecting penetration. Defendant’s first assignment of error and the argument tendered to support it are inconsistent. The assignment of error questions the sufficiency of the evidence and the argument proffered in its support questions the weight of the evidence.

The weight to be given the evidence pertaining to penetration was within the province of the jury and is not re viewable on appeal. State v. Wright, 476 S.W.2d 581 (Mo.1972); and State v. Tschirner, 504 S.W.2d 302 (Mo.App.1973). It is the sufficiency of the evidence to support a verdict of guilty which is reviewable on appeal, not the weight of the evidence. In testing the sufficiency of the evidence, appellate courts must consider the facts in evidence and all favorable inferences reasonably to be drawn therefrom in the light most favorable to the state, and reject all contrary facts and inferences. State v. Gantt, 504 S.W.2d 295 (Mo.App.1973); State v. Whaley, 512 S.W.2d 431 (Mo.App.1974); and State v. Morris, 518 S.W.2d 79 (Mo.App.1974). Notwithstanding the irreconcilability between defendant’s first assignment of error and the argument tendered to support it, this court must and will look at the evidence appertaining to penetration, in the light heretofore mentioned, and judicially determine whether substantial evidence existed from which the jury could find beyond a reasonable doubt that penetration occurred.

Defendant possesses a somewhat obdurate attitude regarding the evidence. Such is indicated by the fact that he completely ignores certain salient facts. For instance, defendant ignores the testimony of the examining physician that he did not deem it “unusual” that the sperm which he found were non-motile. Defendant also ignores the testimony of the prosecutrix that she “wiped [herself] off with a Kleenex” almost immediately after being raped and prior to being examined by said physician. Additionally, defendant ignores the testimony of the forensic chemist that “seminal stains” were found on prosecutrix’s “underwear” and on the Kleenex which she “wiped [herself] off with.” The most telling evidence disregarded by defendant came from the lips of the prosecutrix:

“Q. . . . When you say he raped you, what exactly do you mean?
A. He made me have intercourse with him.
⅜ ⅜; * * sf: ⅜
Q. Then what happened after he pulled your legs apart . . . ?
A. He got on top of me.
Q. Then what happened?
A. He made me have intercourse with him.
Q. Could you tell me what you mean by that?
A. Yes. He forced his penis into my vagina.
* * * * * *
Q. Is it your testimony at this time that during the course of the incident that happened at your home, that you were penetrated and ejaculation occurred inside you?
A. Yes, sir.”

Defendant appears to possess an equally obdurate attitude regarding the prevailing law. In Missouri, essential elements of rape are penetration, however slight, of a female’s sexual organs, accomplished by force or threats against her will. State v. Robinson, 484 S.W.2d 186 (Mo.1972); State v. Deckard, 426 S.W.2d 88 (Mo.1968); and State v. Ruhr, 533 S.W.2d 656 (Mo.App.1976). Even a complete absence of sperm in the prosecutrix’s vagina after the emotionally charged incident which, according to her testimony, she was subjected to, would not be conclusive proof of lack of penetration. State v. Ruhr, supra (Mo.App.1976). See also People v. Wright, 3 Ill.App.3d 829, 279 N.E.2d 398 (1972). This for the reason that ejaculation is not an element of the crime of rape, but merely a circumstance tending to prove the element of penetration. The testimony of the prosecutrix was not contradictory, nor so lacking in convincibility as to cloud this court’s mind with doubt, regarding penetration and, as well, the other requisite elements of forcible rape. Consequently, defendant’s first assignment of error, viewed by this court as an attack on the sufficiency rather than the weight of the evidence, must fail.

Defendant’s final assignment of error— the admission into evidence of “foreign hair” removed from his pubic area — requires the delineation of certain additional facts in order to put it in proper perspective for disposition. Although a careful search of the transcript on appeal fails to disclose defendant’s age, it is implicit throughout that the trial court, the state and defense counsel recognized that defendant was a juvenile when the offense with which he stood charged was perpetrated. Bearing this in mind, the transcript reveals that defendant was taken into custody by the Columbia police on the night of March 21, 1974, following the prosecutrix’s report of the incident, and brought to police headquarters. After his arrival at police headquarters the Boone County juvenile officer was called and defendant was apparently delivered to the juvenile officer, although the record is far from clear in this respect. In any event, while defendant and the juvenile officer were still present at police headquarters, the police asked both defendant and the juvenile officer if they would consent to defendant’s submission to the removal of some hair from his pubic area. Both the juvenile officer and the defendant readily gave their separate consents thereto and no threats or force were involved. The controversial “foreign hair” heretofore alluded to was obtained at the time.

Defendant, with notable brevity of argument and authority, contends that removal of the “foreign hair” from his pubic area violated Sections 211.061 and 211.-151(2), RSMo 1969, and therefore said “foreign hair” should not have been admitted into evidence. It is unnecessary to construe the statutory sections of the juvenile code, supra, relied on by defendant, or to predicate disposition of his final assignment of error thereon, for the following reason. The “foreign hair” removed from defendant’s pubic area, in conjunction with known hair specimens removed from the prosecu-trix’s pubic area, merely tended to prove that the bodies of the prosecutrix and the defendant were in close physical contact while in a state of bilateral nudity. Defendant, as heretofore noted, voluntarily testified that his body and that of the pros-ecutrix were in close physical contact while in a state of bilateral nudity. Whether or not removal of the “foreign hair” from defendant’s public area was proscribed by Sections 211.061 and 211.151(2), supra, is purely academic because defendant’s own positive testimony rendered admission of the complained of evidence harmless. Authoritative support for this conclusion is found in State v. Smith, 357 Mo. 467, 209 S.W.2d 138 (1948) rev’d on other grounds, and State v. Bray, 278 S.W.2d 49 (Mo.App.1955) rev’d on other grounds.

Judgment affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    In the Matter of the ESTATE of Lilly E. FISK, Deceased. David A. WELTE, Administrator ad litem for the Estate of Lilly E. Fisk, Deceased, Appellant, v. Ralph L. MARTIN, guardian of the Estate of Gary Fisk, Respondent.
    No. KCD 27691.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.

      David A. Welte, Olsen, Talpers & Welte, Kansas City, for appellant.
    W. Raleigh Gough, Independence, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Ralph Martin, as guardian of Gary Fisk, filed a motion in the probate court requesting an order nunc pro tunc to show that he had filed an application for a homestead allowance for his ward within the time allowed by law, because the records of the probate court failed to show such application had been filed.

The probate court refused to make such order, but on appeal the circuit court reversed and ordered the probate court to make a homestead allowance. Affirmed.

The Estate concedes Martin did prove the homestead application was filed, but argues such proof is legally insufficient because it consisted solely of the oral testimony of Martin’s deputy public administrator. This testimony showed the deputy gave the homestead application and proposed order approving such allowance to the clerk of the probate court. The Estate says this proof cannot be accepted to show the filing because of the holding in Scharlott v. Gibson, 468 S.W.2d 849 (Mo.1971). In that case the court applied the well established rule in which it is generally stated that an amendment nunc pro tunc may not be made to depend upon the memory of the judge or of a witness or of counsel, but must be supported by facts in the record. The rule also requires some record basis for the amendment, such as an entry either in the minutes kept by the judge or clerk or some paper filed in the cause.

The argument of the Estate completely overlooks the fact there is a distinction between ministerial acts performed by the clerk and judicial acts performed by the judge. The rule stated in Scharlott, and in numerous other cases, applies to orders nunc pro tunc concerning judicial acts by the judge. This rule has no application to establishing ministerial acts performed by the clerk.

This distinction is drawn in Dorrance v. Dorrance 242 Mo. 625, 148 S.W. 94 (banc 1912). In that case the court was considering a motion for an entry nunc pro tunc to show the filing of an amended petition, when otherwise the record of the clerk did not show the date on which such petition was filed. The court referred to the rule stated above with reference to judicial acts and pointed out that such rule applied only to judicial acts and not to the ministerial acts of the court’s officers. The court quoted from Baker v. Henry, 63 Mo. 517, 519 (1876):

“ ‘The mere indorsement by the clerk on the paper is not the sole constituent element of filing that paper, for in legal contemplation the presentation and delivery of the paper to the court or officer is the filing, which dates from its receipt by the clerk and lodgement in his office, although the clerk’s indorsement is the highest legal evidence of the filing and, that indorsement being merely ministerial, is amendable at common law.’ ” 148 S.W. 97[1].

It is interesting to note the Baker case involved an entry nunc pro tunc to show the filing of certain papers in the probate court. In that case much the same objection to making the entry was raised as is raised in the present case.

In Dorrance the court also relied on Grubbs v. Cones, 57 Mo. 83 (1874). In Grubbs the court was considering a request for an entry nunc pro tunc to show a mechanic’s lien had actually been filed on a certain day when the record did not so show. In that case the court stated at Page 84:

“The filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon. If the clerk commits a clerical error, or makes a mistake in reference to the time at which he received the paper, that will not make any difference. He may indorse upon it the wrong date, or an impossible date, and still the real date of the filing will be the same.”

From the foregoing it is abundantly clear Missouri has consistently drawn a distinction between an order nunc pro tunc as to judicial acts performed by the judge and such an order to change the record concerning the performance of ministerial acts by other officers of the court. This case involves only the changing of the record concerning the ministerial act of the clerk of the probate court. For this purpose parol evidence may be used and if such evidence satisfies the court that a paper was actually filed when the record does not show it to have been, then the court may make an entry nunc pro tunc to require the record to reflect the true fact of the filing.

This is true under Dorrance although the paper in this case could not be found in the probate records. The purpose of the Dorrance rule is to remove the requirements inherent in changing records of judicial acts and to allow the record of ministerial acts to be amended in the absence of any record or paper filed in the case and upon parol evidence. Of course, the evidence adduced must satisfy the court to justify an order amending the record.

The Estate raises the further contention that Martin’s evidence was insufficient to show the exact date his deputy did file the application. The deputy testified he filed it “sometime around the 15th of October” and the Estate claims this is too vague to meet the burden of proof cast upon Martin to show when the application was actually filed. The evidence was un-contradicted in this case and the Estate concedes Martin did file the application. In that circumstance, and in the absence of any evidence to the contrary, it cannot be said the testimony that the application was filed around the 15th of October is too vague. The deadline for filing the application was actually over a month after October 15th. Such testimony was sufficient to indicate that the date was stated with approximate certainty and without substantial variance from that date. State v. Armstead, 283 S.W.2d 577, 582[11-12] (Mo.1955). For that reason the testimony was definite enough to place the date of filing well within the time allowed.

The judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    In the ESTATE of G. Wilse ROBINSON, Deceased. COMMERCE BANK OF KANSAS CITY, N. A., Executor and Testamentary Trustee, Respondent, v. G. Wilse ROBINSON, III, and Van Robinson, Appellants.
    No. KCD 27799.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.

      Thomas M. Howell, Kansas City, for appellants.
    George H. Gangwere, Robert W. McKinley, Kansas City, for respondent; Swanson, Midgley, Gangwere, Thurlo & Clarke, Kansas City, of counsel.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment made pursuant to executor’s application construing a will adversely to individual claimants. The dispos-itive question is whether the devise to testator’s sons of proceeds of a sale of testator s real estate was conditioned upon the property remaining unsold by the testator prior to his death. Affirmed.

On August 15, 1968, G. Wilse Robinson executed a Last Will and Testament, Article Four of which provided:

“If my home at 110 Vine Street, in Colorado Springs, Colorado, shall not have been disposed of by me prior to my death, I hereby authorize and direct my executor to sell the same * * *.

“The proceeds from the sale * * * shall be distributed, one-half thereof to my wife, one-third thereof to my son VAN M. ROBINSON, and one-sixth thereof to my son G. WILSE, III: provided, however, that the said fractional share of any of them who shall have predeceased me shall pass as a part of my residuary estate.”

Testator’s wife predeceased him and, on February 14,1969, he executed a First Codicil, Item Four of which provided:

“I hereby delete and revoke the second paragraph of Article Four of my said will and in lieu thereof adopt and insert the following paragraph:

“ ‘The proceeds from the sale * * * shall be distributed, two-thirds thereof to my son VAN M. ROBINSON and one-third thereof to my son G. WILSE ROBINSON, III, etc.’ ”

Testator executed additional codicils April 16, 1970, and August 30, 1971, which affect neither Article Four nor the property there mentioned.

Article Two, paragraphs 1, 2, 3, and 4 bequeathed various items of personal property to Van M. Robinson and G. Wilse Robinson, III, and their wives; other paragraphs bequeathed items of personal property to testator’s brother and to various organizations.

Article Four-A of the First Codicil devised “any interest owned by” testator in certain real property in California to Van Robinson.

Article Six established a trust to be funded from testator’s residuary testate. Paragraph 3 gave $5,000 each to Van Robinson and G. Wilse Robinson, III, after which the trust was to benefit each of them, their wives and children. Upon termination of the trust, the trustee was directed to distribute the principal and undistributed income to certain Catholic orders, a memorial fund, and Van Robinson and G. Wilse Robinson, III.

On June 24, 1969, testator sold the real estate described in Article Four pursuant to an agreement whereby the purchasers, Matt L. and Thea K. Kamper, paid $5,000 cash and gave their promissory note for $23,000 secured by deed of trust payable over a 15-year period. This note is an asset of the estate and the executor has received payments on it since the testator’s death.

In response to the executor’s application for construction, testator’s sons, Van Robinson and G. Wilse Robinson, III, contended that the Kamper note represented the proceeds of the sale of the Colorado real estate, and that the note as the proceeds of the sale was distributable to them under Article Four.

The probate court found “that the testator’s intention is clearly stated in said Article Four, and that there is no ambiguity in said Article. The testator intended that the provisions of Article Four would come into play only ‘if my home at 110 Vine Street in Colorado Springs, Colorado shall not have been disposed of by me prior to my death .’ The home had been sold by the decedent in June, 1969, over three years prior to his death, and thus the executor has no duties whatsoever to perform under Article Four. If the testator had intended for his sons to receive the Kamper note, then he could have easily so provided by an inter vivos gift to them or by an additional codicil to his will, [and] ORDERED that Article Four of the will of G. Wilse Robinson, Jr., dated August 15, 1968, as amended by the first codicil dated February 14, 1969 is hereby construed in accordance with the findings and conclusions set forth above, so that the promissory note of Mr. and Mrs. Kamper described above shall not be distributed to the decedent’s sons under said Article Four as amended, but it shall be distributed as a part of the decedent’s residuary estate to Commerce Bank of Kansas City, N.A. as trustee, in trust, under paragraph 3 of Article Six of decedent’s will.”

The circuit court, upon appeal, entered judgment which affirmed the finding and order of the probate court.

Appellants contend the court erred in finding testator’s gift of the proceeds of sale of testator’s residence under Article Four of the will to be conditional upon testator’s not disposing of the property during his lifetime.

Appellants cite the rules that courts shall have due regard to the directions of the will and the intent and meaning of the testator, Section 474.430, RSMo 1969; Ussher v. Mercantile Trust Co., 328 S.W.2d 699 (Mo.1959), and that in ascertaining a testator’s intent, the court must give effect to the intention of the testator as gathered from the entire will, Garrett v. Damron, 110 S.W.2d 1112 (Mo.1937); Ussher v. Mercantile Trust Co., supra. They argue that the court failed to follow these rules and extracted a single phrase from the first paragraph of Article Four and interpreted it to mean that the entire operation of Article Four is conditioned upon “said prefatory phrase” of the first paragraph of Article Four, and that the court overlooked the plain words of the separate and independent second paragraph of Article Four which contains the devise to them of the proceeds of the property subject only to their survival at testator’s death.

Appellants’ argument is that the testator’s intent is not ascertainable from Article Four alone but that the whole will expresses an intent that even if the testator did not own the property at his death, the devisees should receive the proceeds from the sale of the property.

Appellants’ construction is contrary to the language of Article Four, i. e., “If my home * * * shall not have been disposed of by me prior to my death * The words of such provision are unambiguous and “must be given their ordinary meaning and grammatical construction, unless it is manifest from the whole instrument that they were used in a different sense.” Meiners v. Meiners, 179 Mo. 614, 78 S.W. 795, 796 (1904). See also Housman v. Lewellen, 362 Mo. 759, 244 S.W.2d 21 (banc 1951). Testator’s unequivocal language shows that his devise of proceeds of a sale of his Colorado Springs residence was to take effect only if such real estate was owned by him at his death. Unless the home was owned by testator at his death, the executor had no duties to perform with respect to its sale and distribution of proceeds. It would be necessary to disregard the introductory clause of Article Four in order to accommodate appellants’ contention. This the court cannot do. “ ‘The function of a court is to construe a will and not to make or rewrite one for the testator under the guise of construction. * * * If a will expresses the intention of the testator in clear and unequivocal language, there can be no occasion for construction * * *.’ ” Scullin v. Mercantile-Commerce Bank & Trust Co., 361 Mo. 337, 234 S.W.2d 597, 602 (1950). See also Grenzebach v. Grenzebach, 315 Mo. 392, 286 S.W. 79 (1926); Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d 634 (1929).

Appellant asserts “the trial [probate] court held, by inference, that the legacy was adeemed by testator’s act in selling the said home,” to charge that the court erred also “in finding that the gift of the proceeds of sale of testator’s home was adeemed * * * by testator’s act in selling said home prior to his death and retaining the proceeds.”

As demonstrated, testator’s language in Article Four of his will created a devise conditional on the property devised being owned by the testator at his death. The court so found, and there is no indication in the record that the court found an ademption of the devise. The court’s finding and order refutes any such inference. Accordingly, it is unnecessary to determine whether the judgment can be sustained on that ground also.

Judgment affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Sharon J. FOSTER, Plaintiff-Respondent, v. Monte D. FOSTER, Defendant-Appellant.
    No. KCD27818.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.

      Francis L. Roach, Dean F. Arnold, B. W. Jacob, Kansas City, for defendant-appellant; Bagby, Benjamin & Arnold, Kansas City, of counsel.
    Robert B. Zeldin, Legal Aid & Defender Society of Kansas City, Independence, for plaintiff-respondent.
    Before Shangler, P. J., and SWOFFORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The decree of divorce awarded custody of the three teenage children to the mother and provided $80 per week for their support. At that time, the father was a truck driver and earned a gross income of $254 per week. About thirteen months later, the freight business slackened and he lost employment. The father brought his motion to modify the judgment of support based upon this change of circumstance. The trial court denied modification and the father appeals.

The evidence was that the divorce was granted on December 31, 1973. The gross income of the appellant father during that year was almost $11,000 as a part-time employee. He was given full employment status in early 1974 and was increased to $254 per week, his earnings at the time of the original custody order. He lost that employment in November of 1974 and in late January of 1975, the motion to modify was heard.

At the time of the hearing, the father was without funds other than the $67 unemployment compensation remittance which he had received for the past ten weeks and which was due to expire after an additional twelve weeks. He disbursed $19 per week from those funds for payment of hospitalization insurance for the children and another $20 per week to his mother with whom he lived. He was indebted on numerous accounts for purchases made for himself and the children, on a loan incurred to pay the attorney fee for his former wife, money borrowed from his mother, the debt on his car, and in all was $4,000 in arrears.

The appellant was placed on the extra-board at his employment, subject to recall on the basis of seniority, with little expectation of work resumption before the summer of 1975. He testified to his various aptitudes and experience for employment, including precision grinding, sales work, freight dock work and the like. He had made some attempts at re-employment with other truck lines, searched the want ads, consulted the State Division of Employment Security but did not seek the services of private employment agencies.

The respondent mother had remarried. At the time of the decree of the divorce she gained title to their residence and appellant had no obligation for the house payments. She had to give up her employment recently on the advice of her physician due to complications of pregnancy. At the time of hearing neither she nor the children had income. Application for ADC had been made but had not yet materialized. She had a mortgage obligation of $113.90 per month on the home and payment of $207 per month for a food plan. It was also shown that of the $4560 support installments which had matured to judgment since entry of the original decree, $2177.82 remained unpaid at the time of the hearing on the motion to modify. The appellant offered no explanation for this arrearage.

The appellant contends that the refusal of the court to reduce the support payments, in view of his condition of hopeless indebtedness brought on involuntarily by the loss of employment, was simply against the logic and effect of the facts [citing Adkins v. Adkins, 325 S.W.2d 364, 367[5, 6] (Mo.App.1959)] and was an abuse of discretion.

There can be no doubt that at the time of the modification hearing the appellant was without actual means, other than the $67 weekly unemployment compensation remittance. It is to be doubted, however, that his condition of indebtedness was involuntary, as the more than $2000 payable to the wife during this period of employment was neither remitted in obedience to the court order nor, apparently, used by the appellant to reduce his own private obligations. The accumulation of indebtedness appears to be the fruit of his own improvidence. Nor does it escape notice that during the period of unemployment, although according to his own account, there was available from each compensation check $25 above the money required for his own immediate needs, the appellant never offered any sum for the children, however modest.

The appellant cites authorities [Mortensen v. Mortensen, 469 S.W.2d 852 (Mo.App.1971); Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974) and C.E.McM. v. A.V.McM., 506 S.W.2d 14 (Mo.App.1974)] on the proposition that an award for child support should not be so great as to destroy the incentive of the father or impair his position, and in this determination his indebtedness is a proper consideration. The question of the aptness of the child support award originally entered is not before us, however, but only the refusal of the court to modify that judgment. On that issue, the movant has the burden to prove change of circumstances both substantial and continuing. § 452.370(1), RSMo Supp.1976.

It may be conceded that the appellant proved a substantial change of circumstance; the evidence fails, however, to prove that the change was also continuing. It shows only that the appellant would remain unemployed until he was either recalled or found new work. While his recall to employment was undoubtedly beyond his control the evidence raises a serious doubt as to his good faith in seeking new employment. Although he acknowledged a wide variety of job experience, his actual applications were directed to trucking concerns. He was confronted on cross-examination with the want-ad section of a current Kansas City Star, marked for positions for which appellant had described an aptitude. The appellant was asked to cross out any job he felt was not suitable; all were eliminated for one reason or another. [He had earlier responded to the Court that he would accept any kind of employment in order to support his children.] His lack of initiative in the face of his own wants and the needs of the children suggests both a lack of interest in employment and a pretense as to his personal circumstance. The inaction of the appellant, otherwise physically fit and talented for varieties of work, could reasonably have been understood by the trial court as a voluntary refusal to use his capacity to earn and pay. See, Weiss v. Weiss, 392 S.W.2d 646, 647[1, 2] (Mo.App.1965).

The authorities agree that a court may, in proper circumstances, impute an income to a husband according to what he could have earned by the use of his best efforts to gain employment suitable to his capabilities. 18 A.L.R.2d 1, Annotation: Modification of Alimony Decree, § 15. Those courts which have considered the question also agree that “unemployment of the husband is a common ground for a modification application, and modification or reduction should be granted in such cases unless the court can see the lack of employment is from choice rather than from necessity or the condition of the times.” Nelson on Divorce, § 17.15, p. 87 (1961); Commonwealth v. Naselsky, 199 Pa.Super. 270, 184 A.2d 288 (1962); Lambert v. Lambert, 66 Wash.2d 503, 403 P.2d 664 (Wash.1965); Towles v. Towles, 243 Miss. 59, 137 So.2d 182 (1962).

The order of the trial court which denied modification of the support decree meets the requirements of Rule 73.01. Accordingly, that judgment is affirmed.

All concur.

      . . . . [T]he provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.


text:
    STATE of Missouri, Respondent, v. Gerald W. HUFF, Appellant.
    No. KCD 27844.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.
    Jeffery L. Alena, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Douglas Mooney, Asst. Atty. Gen., Jefferson City, for respondent.

      Before SHANGLER, P. J., and SWOF-FORD, and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Defendant, having been found guilty of robbery in the first degree by means of a dangerous and deadly weapon (Section 560.-120, RSMo 1969) and impressed with a sentence of five years imprisonment by a jury, seeks reversal and remand for a new trial on the sole ground that the trial court erred in permitting the state to cross-examine him concerning an arrest for an offense which never culminated in a conviction.

Briefly, the state’s evidence discloses (defendant does not question the sufficiency of the evidence) that on the morning of May 1, 1974, defendant placed a knife against the stomach of one Jack Jones and relieved the latter of his billfold. Jones positively identified defendant as the person who robbed him.

Taking the witness stand in his own behalf, defendant denied that he was in any way involved in the offense charged by the state. During the course of direct examination defendant was asked, and freely admitted, that he had previously been convicted of (1) “burglary, second degree” and (2) “stealing”. According to defendant, the “stealing” offense which he had been convicted of occurred in the State of Minnesota. The following instance during the state’s cross-examination of defendant prefaces the single point raised on appeal. Defendant was asked if he had been convicted a third or additional time for an offense which also occurred in the State of Minnesota. Defense counsel lodged an objection thereto which was overruled, and defendant answered “No.” No record of conviction for a third or additional offense was ever produced by the state.

Defendant contends that the third “offense” probed by the state during its cross-examination of him was “obviously” prompted by a “rap sheet” which merely showed that the defendant had been arrested for a third “offense” which never culminated in a conviction. Defendant advances this argument without a scintilla of evidence to support it. The transcript on appeal has been carefully combed. It contains nothing whatever indicating that the state formulated the apical question by referring to a “rap sheet”. Even more crippling to defendant’s argument is the fact that there is not one iota of evidence in the record that the supposed “rap sheet” purportedly relied on by the state showed merely an arrest for an offense which never peaked into a conviction. Asserted legal points, in order to rise to the level of justiciable issues, must rest on a footing more solid than Speculation, conjecture and surmise. In the same vein, this court declines defendant’s invitation to view as “obvious” that which is obviously inobvious.

Concededly, it is impermissible for the state to attack the credibility of an accused who has taken the stand by asking him about prior arrests. State v. Rumfelt, 258 S.W.2d 619 (Mo.1968); State v. Taylor, 498 S.W.2d 614 (Mo.App.1973); and State v. Massa, 512 S.W.2d 912 (Mo.App.1974). However, the question objected to by defense counsel discloses on its face that it sought to elicit an answer regarding a criminal conviction, not an arrest as contended by defendant, which is permissible. Section 491.050, RSMo 1969. On appeal, defendant has verbally strained to bootstrap the question into one seeking an answer concerning an arrest by his unfounded contention that the state “obviously” formulated the question from a “rap sheet” which showed nothing more than an arrest. This court neither can nor will infer that the question posed to defendant was asked in bad faith by the state solely because the state failed to come forward with a conviction record after defendant’s negative answer. State v. McBride, 231 S.W. 592 (Mo.1921); State v. Ware, 449 S.W.2d 624 (Mo.1970); and State v. Charlton, 465 S.W.2d 502 (Mo.1971).

Defendant’s single point, ingenious though it may be, lacks both facts and authority to support it, and, accordingly, is overruled.

Judgment affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Hardin L. SCOTT, Administrator of Hazel M. Scott, Deceased, and Hardin L. Scott, Respondents, v. ALLSTATE INSURANCE COMPANY and Clifford T. Coy, Appellants.
    No. 27877.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.
    Robert J. Graeff, Kansas City, for appellants.
    Allan R. Browne, Ennis, Browne, Martin & Tapp, Kansas City, for respondents.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal by defendants from order sustaining motion for new trial on behalf of one of two plaintiffs.

The cause has been submitted here on the following stipulation:

“This case arose in the Circuit Court of Missouri, Sixteenth Judicial Circuit in Jackson County, Missouri, from an automobile collision occurring at 23rd and 1-435, in Kansas City, Missouri. Defendant Coy was proceeding east in the right hand lane of two east-bound lanes on 23rd Street and a car which Hardin Scott was driving and in which Hazel Scott was a guest had been proceeding west in the lane provided for a left turn; at the time of collision, the Scott car had turned south to proceed on 1-435. The intersection had traffic lights which, in a certain sequence provided a left turn arrow for west-bound traffic. When the left turn green arrow was on, east-bound traffic had a red light. The factual issue was whether defendant Coy negligently speeded as he drove along and failed to yield to the Scott car and whether the Scott car proceeded with the right-of-way of a left turn arrow, or otherwise; as to the two counts relating to the injuries of Hardin Scott, the driver, only, the issue was whether he was compelled to yield to east-bound traffic and negligently failed to do so. Both Hardin Scott and Hazel Scott were injured in the collision. There was no evidence and no submission to the jury that Hazel Scott, a guest in the automobile, was guilty of any negligence, actual or imputed. Prior to trial, Hazel died of causes other than injuries resulting from the collision, and Hardin Scott was substituted as her Administrator.

“The east-bound driver, Coy, was a named defendant in each of two counts, but was uninsured, and the Allstate Insurance Company, the uninsured motorist carrier was added in two separate counts.

“The issues were tried under the pleadings attached and the jury received the instructions attached, numbered 1-17.

“Instruction 2 was the verdict director for Hazel Scott’s case against Coy under Count I. Instruction 3 was Hardin Scott’s verdict director for his injuries against Coy under Count II. Instruction 4 was the verdict director for Hazel’s injuries against Allstate on Count III. Instruction 5 was the verdict director for Hardin Scott’s injuries against Allstate under Count IV. Instruction 7 was the contributory negligence instruction specifically applying only to the instructions under Counts II and IV (Hardin Scott). Instruction 14, burden of proof instruction, as to Counts I and III (Hazel Scott), did not provide for any defense of contributory negligence.

“The verdict read as follows:

“ ‘We, the undersigned, find the issues as to Count I, II, III and IV in favor of the defendant under Instruction VII.’

“The verdict was not specifically objected to when read in Court, but was objected to in plaintiffs’ motion for a new trial. The Court granted a new trial as to each Count involving Hazel Scott.

“The single issue involved in this appeal is whether the administrator for Hazel Scott is entitled to a new trial as granted by the Court on Counts I and III.”

The trial court correctly concluded that the verdict against respondent as administrator of the estate of Hazel Scott was erroneous because it found the issues against her claim on the basis of contributory negligence on the part of the driver. As the stipulation recognizes, contributory negligence was not a proper issue with respect to the claim of Hazel Scott. “A verdict will be set aside when it is apparent from its form that the jury misapprehended the issue.” 89 C.J.S. Trial § 501, p. 170 (1955).

Appellants argue that the reference to Instruction 7 should be considered surplus-age and the verdict corrected by deleting such reference, leaving a valid general verdict. In support of the argument appellants cite Crystal Tire Company v. Home Service Oil Company, 465 S.W.2d 531, 533-535[4] (Mo.1971), and State ex rel. St. Louis Public Service Co. v. Becker, 334 Mo. 115, 66 S.W.2d 141, 144-146[2, 3] (1933), in which it was held that where a jury fixes plaintiff’s damages against two defendants at a gross amount but then endeavors to apportion the gross verdict between the defendants, the attempted apportionment will be disregarded as surplusage and the verdict will stand against both defendants for the gross amount.

Appellants assert that in those cases the jury failed to follow the instruction, yet the verdict, stripped of the surplusage, was permitted to stand. The situation there is distinguishable from this case in that in those cases the jury went beyond the instruction in attempting the apportionment, after they had fixed the damages to which plaintiff was entitled under the court’s instruction.

Here, the verdict was determined, according to its terms, on an wholly erroneous basis, insofar as respondent is concerned. “ * * * [Wjhere it clearly appears that the jury did not comprehend the charge, and brought in its verdict on an erroneous view of law, the verdict will be set aside.” 89 C.J.S. Trial § 510, p. 188 (1955). That principle has been recognized and applied in cases in this state. See Abbey v. Altheimer, 215 Mo.App. 1, 263 S.W. 471, 472-473[1] (1924); Akin v. Matthews, 50 S.W.2d 689 (Mo.App.1932); Cole v. Armour, 154 Mo. 333, 55 S.W. 476 (1900); Schulte v. Crites, 318 S.W.2d 387, 390-391[3][4] (Mo.App.1958).

Appellants’ contention that respondent waived objection to the verdict by not voicing an objection at the time the verdict was returned is without merit. Stroud v. Govreau, 495 S.W.2d 682, 684-685[3] (Mo.App.1973). Cases relied upon by appellants, such as Cobb v. Cosby, 416 S.W.2d 222 (Mo.App.1967), Bunch v. Crader, 369 S.W.2d 768 (Mo.App.1963), and Cable v. Metropolitan Life Ins. Co., 233 Mo.App. 1093, 128 S.W.2d 1123 (1939), involved a legally sufficient verdict which contained a formal deficiency not shown to have been prejudicial to the complaining party.

Order affirmed and cause remanded for new trial.

All concur.