author: GUNN, Judge.

text:
    Martha MAGRUDER, Plaintiff-Appellant, v. Ruth MAGRUDER and John Allen Magruder et al., Defendants-Respondents.
    No. 36061.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 24, 1975.

      Rolin T. Boulware, Kenneth D. Schloman, Shelbina, for plaintiff-appellant.
    Bollow, Crist, Bollow & Wallace, Shelbi-na, for defendants-respondents.
   GUNN, Judge.

This appeal arises from a declaratory judgment action brought by plaintiff-appellant Martha Turney Magruder to construe the will of her testator-husband, Glenn P. Magruder, and to quiet title to 40 acres of land owned by the testator at the time of his death. In 1925, the testator moved into the Dan and Bessie Turney home located on 80 acres in Shelby County. He lived in the Turney home and farmed their 80 acres until his death in 1969. In 1941, the testator bought for himself 40 acres of land adjoining the Turney farm. After Dan Turney’s death in 1958, the testator executed his will dated July 21, 1959 whereby he gave a life estate in his property with power of sale for support and maintenance to Bessie Turney and the Turneys’ daughter, Martha Turney. Martha Turney was subsequently married to the testator and is now plaintiff-appellant, Martha Turney Ma-gruder. By the terms of the testator’s will, the remainder of his estate was to go to his brother and sister, John Allen Magruder and Ruth Magruder, defendants-respondents. Bessie Turney died in June, 1965. The testator and Martha Turney (now plaintiff-appellant, Martha Turney Magru-der) were married on November 7,1965 and continued to live on the Turney 80 acre farm. On October 10, 1969 the testator died survived by his wife, Martha Turney Magruder, and defendants-respondents, John Allen Magruder and Ruth Magruder, his brother and mentally retarded sister. The testator was possessed of the 40 acre tract of land and a one half interest in 9 sows at the time of his death.

The portion of the testator’s will which is the subject of this litigation provides:

“THIRD: All the rest, residue and remainder of the property which I may own at the time of my death, both real and personal, and of every kind and description, wherever the same may be situated, I give, bequeath and devise to Martha Turney (now Martha Turney Magruder, testator’s wife) and Bessie A. Turney (deceased) for and during the term of their natural life,' and the natural life of the last survivor thereof, and in the event that it becomes necessary, in their opinion or in the opinion of the survivor thereof, for them or the survivor thereof to sell said property or any part thereof for their support and maintenance or the survivor of them, then I authorize, empower and direct them or either of them to sell such part or all of said property as may be necessary for their support or the support of the survivor thereof, and to make contracts and deeds as may be necessary to convey the same to the purchaser or purchasers thereof, and at the death of the last survivor thereof the remainder of said property shall go to and vest in fee in my sister and my brother, Ruth Ma-gruder and John Allen Magruder, in equal parts, share and share alike.” (emphasis added)

On March 12, 1973, Martha Turney Ma-gruder, believing it necessary to sell the testator’s 40 acres for her support and maintenance, entered into a sales contract for the sale of the land for $22,000. To resolve any controversy as to claims of interest in the 40 acres and to construe her husband’s will as to her rights thereunder, Martha Turney Magruder brought suit for declaratory judgment naming as defendants John Allen Magruder and Ruth Ma-gruder, the testator’s brother and sister, who were remaindermen under the will, Also named as defendants were numerous other persons and unknown persons who might possibly have some claim to the 40 acres. Inasmuch as the testator’s sister, Ruth Magruder, was a mental incompetent, the trial court appointed a guardian ad litem to represent her interest in the litigation.

The trial court found that defendants, except for defendants-respondents Ruth and John Allen Magruder, had no right, title or interest in the 40 acres of the testator and divested them of any claim of title in and to the 40 acres. No appeal has been taken from the portion of the judgment divesting the other defendants from any interest in the 40 acres, and it stands.

The trial court also found that Martha Turney Magruder did have the right under the will to sell the 40 acres but imposed a trust on the assets from the sale of the land so as to preserve the assets for the remain-dermen Ruth and John Allen Magruder. The trial court also ordered that the guardian ad litem for Ruth Magruder be paid his fee of $710 from the trust assets.

Martha Turney Magruder has appealed from the judgment imposing the trust and awarding the fee for Ruth Magruder’s guardian ad litem. Martha Turney Magru-der insists that she clearly has need of the assets from the sale of the 40 acres of land for her support and maintenance. In support of her position, she testified that since the testator’s death she has been receiving the income from the 40 acre tract under a share crop arrangement; that while she owns an undivided five eighths interest in the 80 acres upon which she lives, she has only been receiving a one half interest in the income therefrom; that she possesses a life estate in the residence in which she lives and has a one third interest in nine hogs and 50 shoats. She receives as income $78.20 a month in social security, has a checking account of about $200 to $300 and United States Government bonds of approximately $4,000. While income figures were not precise, apparently in 1972, .the year prior to trial and the only year for which figures were available, Martha Tur-ney Magruder had income of about $1,800 on the 80 acres and $2,000 on the 40 acres. She had approximately $500 in crop expenses and $197 in taxes. She did not earn enough in 1972 to file a federal income tax return, and she knew of debts owed by her of approximately $400. Her home was in need of minor repairs. There were no exact figures as to how much net income she received from her farming operations, but from the evidence presented it would not exceed $3,100 a year.

Martha Turney Magruder testified that she believed it necessary to sell the 40 acres acquired from the testator for her support and maintenance, because “I am 69 and I think I need the money to live on so I won’t have to worry about bills and things . . ” It was her intention to use the proceeds only for her own needs; there was no plan on her part to change her pattern of spending: “I have been very thrifty. I have never been a spendthrift and I don’t intent to start now, but I do need a living.” It was also her testimony that she did not intend to use all the proceeds of the sale nor squander or waste the assets so that Ruth and John Allen Magruder would be left with nothing. Martha Turney Magruder has experienced two heart attacks and is afflicted with very high blood pressure requiring constant medical attention.

The trial court found that Martha Turney Magruder had the right and power to sell the land devised to her by her husband, but in order to protect the interests of the re-maindermen, John Allen Magruder and Ruth Magruder, the trial court imposed a trust on the proceeds from the sale of the property, finding that Martha Turney Ma-gruder was a proper person to act as trustee. Under the court’s judgment, the proceeds of the sale of the 40 acres were to be invested by Martha Turney Magruder, as trustee, only in United States obligations, savings accounts and time deposits and savings and loan association accounts. The trial court found no present need to invade the corpus and ordered the trustee not to invade the corpus without prior court approval, with the trustee accounting to the court annually.

In her appeal, Martha Turney Magruder asserts that the trial court erred: 1) in imposing a trust on the proceeds of the sale; 2) in holding that there was no present need to invade the corpus of the trust; 3) in limiting the investments which could be made by her with the assets of the sale of the property; 4) in allowing a $710 fee to Ruth Magruder’s guardian ad litem. The basic thrust of Martha Turney Magru-der’s challenge to the trial court’s judgment is that the trial court substituted its judgment for the will of the testator.

Under the circumstances of this case, we believe that the imposition of a trust on the assets of the sale of the testator’s 40 acres of land was unwarranted, and we reverse the judgment of the trial court. In reaching our decision, we are guided by certain maxims concerning will construction. A court may not make a new will, rewrite a will, attempt to make what may seem to be a more equitable distribution nor impart an intent to the testator that is not expressed in the will. Mercantile Trust Go. v. Muckerman, 377 S.W.2d 355 (Mo.1964); In re Estate of Wahlin, 505 S.W.2d 99 (Mo.App.1973); In re Howe’s Estate, 379 S.W.2d 154 (Mo.App.1964). It is presumed that the testator knows the legal effect of the language he uses in a will. Neagle v. Hitt, 425 S.W.2d 102 (Mo.1968); Lehmann v. Janes, 409 S.W.2d 647 (Mo.1966). The guide for the court in the construction of a will is the intent of the testator as gathered from the language from the will read as a whole. St. Louis Union Trust Co. v. Morton, 468 S.W.2d 193 (Mo.1971). Thus, it is only if the language of the will is ambiguous or wanting in clarity that the court is authorized to look at surrounding facts, circumstances and conditions affecting the testator at the time the will was executed. In re Estate of Wahlin, supra; Seltzer v. Schroeder, 409 S.W.2d 777 (Mo.App.1966).

We find that a reading of the testator’s will does not afford a basis for judicial interference by construction of its clear terms through the imposition of a trust. The situation before us is closely analogous to Husser v. Markham, 210 S.W.2d 405 (Mo.App.1948). There, the terms of a will devised a life estate to the husband in real estate where the husband was to be the sole judge of the amount “required for his maintenance” and “necessary for his comfort” and the remainder to the testatrix’ sister. These terms were determined to be clear and unequivocal and held to afford no basis for judicial interference by engaging in construction of the will. It was also held that anticipitated waste was not a sufficient ground for relief; that it was not the obvious intent that the life estate be set aside in trust to protect the interest of the remain-dermen. Such is the situation before us.

In analyzing the facts of this case, the testator’s language strongly indicates the intention to permit his wife, Martha Turney Magruder, to use such property of her life estate as, in her opinion, was necessary for her support and maintenance. The respondents argue that Martha Turney Ma-gruder has other assets, such as her 80 acre farm and her own government bonds, which she should exhaust before tampering with the life estate; that there is no necessity for any plunder of the life estate. Where the power of disposition is dependent upon a life tenant’s own personal opinion that such action is necessary for support and maintenance, the exercise of that power is not dependent upon the existence or showing of the fact of reasonable necessity. The written language of the testator disposing or devising a life estate to Martha Turney Magruder does not impose the added requirement of reasonable necessity before the sale and encroachment on the corpus could occur. Even if limits of “reasonable necessity” are read into Martha Turney Ma-gruder’s power of disposition of the life estate devised to her, there is no requirement that she be totally destitute before being able to invade the corpus for her support and maintenance. Morisseau v. Biesterfeldt, 345 S.W.2d 210, 213 (Mo.1961).

The trial court found “that the sale of the 40 acres by the plaintiff, Martha (Turney) Magruder, was reasonably necessary for her support and maintenance as she reasonably contemplated the facts at the time she entered into the contract;” that although the trial court could not find as a matter of law any need to sell the 40 acres, it did “recognize that Martha (Tur-ney) Magruder could and did, in her opinion, feel the need to sell. This opinion was based on her consideration of probable future needs due to health. It was not a capricious act. The will gave her the right to determine the need for the sale.” Therefore, the court found that under Gent v. Thomas, 363 Mo. 528, 252 S.W.2d 345 (1952), Martha Turney Magruder had sufficient justification, right and power to sell the land without the consent of the remainder-men. And indeed she did have such right and power. However, the trial court found the necessity to preserve the interest of the remaindermen by imposing the aforesaid trust provisions. The respondents; John Allen and Ruth Magruder, do not challenge Martha Turney Magruder’s right to convey the property but do insist that the trust be imposed, arguing that before there can be any invasion of the corpus by the life tenant, her personal assets must first be exhausted. Recognizing that there is a conflict of authority whether a life tenant’s other means of support are to be considered in determining whether the life tenant may invade the life estate corpus, the Missouri Supreme Court in Winkel v. Streicher, 365 Mo. 1170, 295 S.W.2d 56 (banc 1956), held that the better rule is that when a testator, without other indication, gives the life tenant the right to entrench upon the corpus for his maintenance and support, it is intended that such support be received without regard to the beneficiary’s other income. See also Morisseau v. Biesterfeldt, supra.

It has been stated:
“In the great majority of cases, it is held that if the grant of power [of disposition — as for support and maintenance] is otherwise full or general in its terms and the determination of the question is one which involves the exercise of judgment and discretion, the decision made in good faith by the life tenant himself is final. It is likewise held in these eases that the amount required or used by the life tenant for his support and maintenance rests entirely in his honest judgment and discretion, which cannot be controlled or limited by the courts in the absence of bad faith or fraud.” 51 Am.Jur.2d Life Tenants and Remaindermen, § 66 at p. 293 citing Annots., 2 A.L.R. 1243, 1285 et seq., 27 A.L.R. 1381, 1384, 69 A.L.R. 825, 830, 114 A.L.R. 946, 951.

There has not been any showing or suggestion of any bad faith or fraud on the part of Martha Turney Magruder. Hence, there has been no need shown for the exercise of judicial interference with Martha Turney Magruder’s actions with regard to expenditures. This is not to say that the remain-dermen do not have some protectable interest or that the life tenant does not have an obligation to preserve the estate for the benefit of the remaindermen. But the power of disposition of real estate by a life tenant is not inconsistent with the life estate or remainder. Threlkeld v. Threlkeld, 238 Mo. 459, 141 S.W. 1121 (1911). The life tenant retains only the life interest in the proceeds from the disposition by sale of the real property, and the remaindermen retain their claims to the remainder following the life estate. Generally, a mere change in the form of real property as from real estate to money does not enlarge the estate of the life tenant; the proceeds of the sale simply take the place of the real estate and are subject to the same disposition as the real estate. In this case, Martha Turney Ma-. gruder would have the right to the use of any proceeds for her support and maintenance during her life. St. Louis Union Trust Co. v. Morton, supra; Guthrie v. Crews, 286 Mo. 438, 229 S.W. 182 (1920).

Whatever remains at Martha’s death must be distributed to the remaindermen.

The law is clear that in a limited sense, the life tenant — in this case, Martha Turney Magruder — holds the corpus of the life estate in trust for the remaindermen with the fiduciary obligation not to commit waste thereto and to preserve the property for ultimate transmission to the remainder-men, subject, of course, to the life tenant’s right to invade as conferred by the will. Bollenger v. Bray, 411 S.W.2d 65 (Mo.1967); Muzzy v. Muzzy, 364 Mo. 373, 261 S.W.2d 927 (1953); Cole v. Lamb, 461 S.W.2d 14 (Mo.App.1970). But it is also clear that Martha Turney Magruder was given broad powers to invade the corpus for her support and maintenance without the stricture of posting a security for the life estate. In this regard, this case is similar to Smith v. Smith, 359 Mo. 44, 220 S.W.2d 10 (1949), where it was said, l.c. 14:

“Although testator apparently intended his heirs at law should have the residue after the death of his wife, Dora, and although Dora's power to consume or diminish the residue is qualified so as to be exercisable only for her own use and comfort, the testator did not expressly require her to give security for the protection of the heirs at law against her waste, or her conversion of the property to some other purpose. Since Dora’s welfare was the testator’s primary thought and since, as we have noted, he directed that she should not be required to give bond as executrix, it could be reasonably said he manifested an intention she should not be required to secure the corpus to the heirs at law or, as the decree puts it, to the ‘remaindermen.’ ”

We have previously noted, as in Smith v. Smith, supra, that there is no evidence of Martha Turney Magruder’s intent to commit waste or squander the assets of her life estate. Thus, the need for the imposition of a trust or the giving of security is not necessary, and such imposition would be dissonant with the testator’s intent. See also Guthrie v. Crews, supra, and Woolley v. Dorl, 68 S.W.2d 869 (Mo.App.1933), which hold that a trust for preservation of funds should not be imposed upon a life tenant receiving a life estate under terms similar to those in this case.

Bollenger v. Bray, supra; Masterson v. Masterson, 344 Mo. 1188, 130 S.W.2d 629 (1939); Phipps v. Doak, 235 Mo.App. 659, 145 S.W.2d 167 (1940), relied upon by respondent as authority for imposing the trust are not apposite, for in those cases, the life tenant’s powers under the will were more restrictive than those granted Martha Turney Magruder. So here, without evidence of waste and with the grant of use the testator’s funds, we believe the following statement in Griffin v. Nicholas, 224 Mo. 275,123 S.W. 1063 at 1073 (1909), to be particularly appropriate:

“We do not mean to say that if she (the life tenant) was recklessly or fraudulently wasting the estate the court could not interpose to restrain her, but until a showing is made to justify the chancellor in laying his hands on her the disposal of the property is in her discretion.”

Respondents refer to the following wording in the testator’s will:

“ . . .in the event that it becomes necessary in their opinion . . . for them ... to sell said property or any part thereof for their support and maintenance . . ., then I authorize, empower and direct them ... to sell such part or all of said property as may be necessary for their support .” (emphasis added)

Respondents then suggest that the foregoing language presents a dual subjeetive-ob-jective standard as to Martha Turney Ma-gruder’s powers under the will. Respondents argue that Martha may apply the subjective standard as to determining whether the property may be sold, that is, it may be sold if in Martha’s opinion it becomes necessary. But respondents would inject an objective standard as to the use of the property for her support, that is, an independent opinion other than Martha’s (for example, the trial court’s) to determine if, in fact, the proceeds of the sale are needed for Martha’s support. We reject respondents’ argument in this regard, as it paints with too broad a brush on the plain meaning of the testator’s will. It is manifest from the wording of the testator’s will that it was the testator’s intent that Martha was to determine whether the proceeds were necessary for her support, subject, of course, to the limitation that the proceeds not be wasted. But the need for support is to be determined initially by Martha Tur-ney Magruder.

In her testimony, Martha Turney Magruder indicated that she had no plans for separating her personal funds and those received from the sale of the testator’s 40-acres. Respondents raise the very practical and disquieting point that if the testator’s assets are commingled with Martha Turney Magruder’s other assets, the life estate will lose its identity and become dissolute. Respondents asserverate that once the life estate identity is lost through the commingling of funds that no method exists for determining whether the life estate is being preserved for the remaindermen consistent with the terms of the will or what, if any, remainder will pass to the remaindermen upon the death of the life tenant. Martha Turney Magruder, too, has recognized the problem of commingling and has offered to place the funds from the sale of the 40 acres and any other assets received by her from the testator as a life tenant in a separate account and to maintain such an account. Under the circumstances of this case we find no legal rubric for imposing upon Martha Turney Magruder the obligation to maintain a separate account for funds and assets received as a life estate from the testator. And, we are aware of the legal aphorisms we have heretofore recited which say that courts are not to rewrite or make a new will for a testator. However, we can see the danger that without a segregation of funds that only oracular discernment can determine what is and what is not part of the testator’s estate left to be passed to the remaindermen. As such, the life estate can become vitiated without intended fault of the life tenant — a situation which defeats and is inimical to the purpose of the creation of a life estate with a remainder. Therefore, we do give our judicial imprimatur to the maintenance of a separate account of the life estate assets given by the testator to Martha Tur-ney Magruder- so it may be determined whether she is committing waste and what, if anything, is to pass to the remaindermen upon termination of the life estate.

Finally, we find that respondent Ruth Magruder’s guardian ad litem is not entitled to his attorney’s fees from the testator’s life estate. Attorney’s fees are not an allowable item to any party, other than the executor, against an estate in a will construction contest where no trust is involved. First Trust Co. v. Myers, 239 Mo.App. 403, 188 S.W.2d 519 (1945). See also St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114,186 S.W.2d 578 (1945). While a court is authorized to make an allowance out of an estate for the guardian ad litem, such allowance occurs only where there are no other funds available to pay such expenses. See Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321 (banc 1952); St. Louis Union Trust Co. v. Kaltenbach, supra. We note that there was evidence that Ruth Magruder possesses funds for paying the guardian ad litem fee. Respondents assert that despite the above rules, counsel fees are allowable from the fund at issue when the dispute concerns the interpretation of ambiguous phrases or where the guardian’s efforts are designed to result in real benefit to the estate. Neither situation is present here.

The judgment is reversed and the cause, remanded with directions to enter judgment in accordance with the views herein expressed regarding a separate accounting by Martha Turney Magruder of life estate assets received by her from the testator.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . The testator was also apparently survived by two married daughters not affected by or involved in this litigation.

      . “Reasonable necessity” is an objective standard to be shown to justify invasion of the corpus where a testator has willed that “it is my wish that she (life tenant-wife) consumed so much of my estate as may be required for her support in the manner to which she is accustomed . . .” Bollenger v. Bray, 411 S.W.2d 65, 68 (Mo. 1967).

      . See Simes and Smith, the Law of Future Interests, 2d Ed.1956, § 1712, for a treatment of the law regarding the requirement of security by a life tenant absent an expressed demand by a testator for security.

      . For discussion on rights of remaindermen see: Annot., Rights as between estate of life tenant and remaindermen in respect of proceeds of sale or disposition made in exercise of power given to life tenant, 47 A.L.R.3d 1078 at 1082, 1083 (1973).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles H. POPE, Jr., and Elizabeth J. Pope, husband and wife, Plaintiffs-Appellants, v. Harry F. GORDANIER et al., Defendants-Respondents.
    No. KCD 26749.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    John J. Phillips, Phillips, Rice & McElli-gott, Independence, for plaintiffs-appellants.
    James S. Cottingham, Independence, for defendants-respondents.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   PER CURIAM.

In this suit for declaratory judgment the plaintiffs seek an adjudication of right to use and enjoy certain recreational facilities of Tomasha Village, a subdivision, without the necessity of membership in the association of the homeowners of the village. The plaintiffs appeal from the adverse judgment of the trial court.

The individual defendants, Gordanier, Sutherland and Shaw, developed Tomasha Village and set apart Tract D for a swimming pool and other recreational purposes.

They conveyed a lot in the subdivision to the plaintiffs, husband and wife, who thereafter engaged a private builder, Scott, to construct a home on the lot at a cost of $32,000. The plaintiffs used the pool on Tract D without restriction for about three years.

Shortly after the plaintiffs gained occupancy, a Baptist Church expressed interest in the purchase of part of Tract D for a sanctuary. That tract was not available for use either for a church edifice or for a swimming pool because the deeds of conveyance to the subdivision lot owners, including the plaintiffs, contained a restrictive covenant, limiting the use of Tract D to residential purposes. The defendant Gorda-nier sought from plaintiffs the release of the restrictive covenant so that the church structure and pool could be lawfully accommodated. The alternative was to “bulldoze the pool in”. The plaintiffs gave their release.

Thereafter, the defendants conveyed the pool site- on Tract D to the Tomasha Homes Association which adopted a declaration limiting the use of the pool to fee paying members. The plaintiffs refused to submit their land to the terms of the declaration and have since been denied use of the swimming pool.

On this appeal the plaintiffs contend the judgment of the trial court was in error because their evidence shows inducement to purchase the subdivision lot by advertising and other blandishments that the pool facilities would be available for their use, and that the inducement to release the restriction on the use of Tract D was “a combined threat and promise which amounted to an agreement that if he would sign the release, [plaintiffs’] continued use of the pool would be insured.”

This contention of error, however, is concluded by findings of fact 12 and 16 of the trial court [based upon substantial evidence] that the developers did not induce the purchase of the lot or the waiver of restrictions by promises or representations to plaintiffs of their unfettered use of the pool in perpetuity.

The plaintiffs also contend error in the conclusion of law adopted by the trial court that the defendant Homeowners Association violated no legal duty to the plaintiffs by denying them the use of the pool in conformity with their declaration of restrictions and other governing articles. The plaintiffs contend, all without definition in argument, factual reference or citation of authority, other than the maxim: Equity will not suffer a wrong without a remedy— that if a legal duty was not breached, then equity was owed. This abstract statement of principle fails to comply with Rule 84.-04(d), V.A.M.R. and does not engage our review.

No error of law appears and a full opinion would have no precedential value. We affirm the judgment under Rule 84.16(b).


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jewell J. SCOTT, Appellant.
    No. KCD 27195.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Willard B. Bunch, Public Defender, Douglas N. Merritt, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

Appellant, Jewell Scott, having waived a jury, was tried before the court and found guilty of fraud by use of a credit card in violation of § 561.415, RSMo 1969, V.A.M.S., and sentenced to two years in prison. Execution of the sentence was, however, suspended, and appellant was placed on probation for a period of five years with the condition that she make restitution to the victim of the offense.

The sole assignment of error on this appeal is that the judgment of the trial court was not supported by the evidence.

This case involves the misuse of a lost credit card issued by the J. C. Penney Store Company to Mr. Maurice Robinson. On December 13, 1972, Mr. Robinson inadvertently left his card with a clerk at the J. C. Penney Company store located at 31st and Troost in Kansas City, Missouri. The following month, he received a bill for fourteen purchases, which both he and his wife denied having authorized. Fourteen credit sales slips were introduced into evidence by the state; all were issued by sales clerks at the J. C. Penney Company store at the Blue Ridge Mall in Independence, Missouri. The sales slips were dated from December 14 through December 23, 1972, and signed in the name of Mrs. Maurice Robinson.

Mr. Robinson contacted the J. C. Penney Company, in regard to these purchases, and they began an investigation. It was discovered that on December 13, one of the Troost store managers had taken Mr. Robinson’s card and placed it on a desk at the credit office. Since one of the sales slips in question began the name of “Maurice” with a “J” instead of an “M”, payroll records were examined to determine if any employees who had access to the credit office area also had a name beginning with “J”. Appellant fit this criteria. She was employed at the store at 31st and Troost and worked in a department adjacent to the credit office.

The store also engaged the services of a handwriting expert to compare the signatures on the sales slip with other examples of Jewell Scott’s handwriting. However, this man did not testify at the trial. The state elicited testimony from another handwriting expert that appellant Scott “most likely” executed the questioned signatures on the sales slips. This expert witness stated on cross-examination, “I am willing to state the same hand wrote the question (sic) and executed known samples.” His qualifications as a handwriting expert were not questioned.

The evidence further showed that ten of the transactions occurred on days or times when appellant was not at work. As to four transactions on December 23, there was no direct evidence as to the time. Appellant testified that she was at work from 9:00 a. m. to 6:00 p. m., with a lunch break (as indicated on her time sheet) between 2:25 p. m. and 3:10 p. m. Other testimony showed that the sales were made by Blue Ridge Mall employees who worked no later than 6:00 p. m. on that day.

Finally, there was testimony that appellant underwent two polygraph examinations made by agreement between the state and defense counsel, the results of which were used by both the state and defense, without objection. The results of the first were inconclusive. As to the second test (which differed in that pictures of various stereo phonograph sets, including the particular model obtained by use of the credit card, were used) the examiner concluded that while he could not say positively that appellant was the signer of the slips, he could say positively that she was involved in the fraud.

It is well settled that this court, in considering the sufficiency of the evidence to support a criminal conviction, will view all the evidence, direct and circumstantial, in the light most favorable to the state, consider said evidence as true, together with all reasonable inferences which may be drawn therefrom, and will ■ disregard all contrary evidence and inferences. State v. Summers, 506 S.W.2d 67, 69[1] (Mo.App.1974); State v. Garrett, 494 S.W.2d 336, 337[1] (Mo.1973); State v. Harris, 485 S.W.2d 612, 613[2] (Mo.1972); State v. Cobb, 444 S.W.2d 408, 412[3] (Mo. banc 1969). Thus, review is limited to a determination of whether substantial evidence supports the verdict. State v. Simpson, 502 S.W.2d 451,451[1] (Mo.App.1973). Rule 26.-01(b), V.A.M.R., provides that the findings of the court in a jury-waived criminal case will have the effect of a jury verdict, and must be reviewed in the same manner. State v. Daniels, 487 S.W.2d 465, 469[4] (Mo.1972).

The appellant argues that Rule 26.-01(b) and the decisions relating to the scope of review when considering the sufficiency of evidence to support a verdict places an “uncommon burden” on her and is contradictory to Rule 27.20(c), the so-called “plain error” rule, and in effect destroys the viability of any defense to the charge. This argument is without merit. The two rules have no real relationship to one another. The plain error rule, Rule 27.20(c), is invoked only in those instances where blatant error appears resulting in “manifest injustice or miscarriage of justice”, where such error is not properly preserved for appellate review. The rule requiring the most favorable view of the evidence to support a conviction comes into play only when the question of the sufficiency of that evidence is raised on appeal. To argue, as does appellant here, that to disregard evidence unfavorable to the state on appeal renders any defense nonviable and eliminates the state’s primary burden of proof is to disregard the classical and historical functions of the role of the trier of facts, on the one hand, and the appellate court on the other hand, under our criminal justice system.

Here, the evidence of the handwriting expert that appellant “most likely” executed the signatures, the appearance of the letter “J” on one sales slip, and its similarity to other examples of appellant’s handwriting, appellant’s proximity to the credit office and subsequent opportunity to use the card at the times of the transactions in question, and the opinion of the polygraph examiner that appellant did participate in the fraudulent use of the credit card constituted substantial evidence of the guilt of the defendant. This is not a case “where the state’s evidence is inherently incredible, self-destructive, or opposed to known physical facts” so that to deny appellant relief would shock the sense of justice. State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, l. c. 53 (1936); State v. Dupepe, 241 S.W.2d 4, 7 (Mo.1951).

Accordingly, the judgment of the trial court is affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Samuel Andrew PRYOR, Appellant.
    No. KCD 27515.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    William G. Mays, II, Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

Defendant, charged by a two count information with the crimes of rape and sodomy, was found guilty by a jury of both offenses and was sentenced to twenty years imprisonment on each count, said sentences to run concurrently. Defendant appealed.

Defendant does not challenge the sufficiency of the evidence to sustain the guilty verdicts, therefore the facts will only be briefly alluded to in view of their unsavory nature.

There was substantial evidence from which the jury could find beyond a reasonable doubt that shortly after 11:30 p. m. on September 24, 1973, defendant ran up to one G_S_(a twenty-two year old female) as she was crossing the MFA Service Station lot in Columbia, Missouri, grabbed her with both arms, pointed a knife at her and said, “Don’t scream, don’t move, don’t do anything or you will get this.” He held the knife on her shoulder and pointed it at her face. He led her first to the west side of the service station, and then to the east side where the restrooms were located. An L-shaped lattice facade covering the doors to the restrooms was attached to the service station. Defendant pushed G— S— into this L-shaped structure and blocked her exit. Still pointing the knife at her, he demanded that she remove her clothing and lie down. He then forced her to engage in an act of oral copulation with him, and thereafter proceeded to rape her. During the act of intercourse, an automobile entered the service station and its headlights shined through the lattice work illuminating the defendant’s face. At trial, G— S— positively identified defendant as the man who perpetrated the abominable and ravishing acts upon her.

Defendant claims there are two instances of purported error at the trial level that are of reversible proportions.

First, defendant claims the trial court erred in overruling certain objections to portions of the state’s closing argument. The transcript ordered and approved by defendant did not include either the state’s closing argument or that of defendant.

Therefore, there is nothing before this court upon which to predicate a review of defendant’s first point. State v. Hite, 298 S.W.2d 411, 413 (Mo.1957), and State v. Taylor, 486 S.W.2d 239, 245 (Mo.1972).

Second, defendant claims it was error for the trial court to overrule two motions filed by him two days before trial for a continuance. Both motions urged a continuance should be granted since a motion to suppress the knife allegedly wielded by defendant was still pending and could not be properly heard until the defense deposed two witnesses who purportedly gave information concering the knife to the state. During the hearing on the motions, which occurred just prior to trial, the prosecutor flatly stated as a matter of record that the knife would not be offered in evidence, and he kept his word to the letter. The trial court, in denying the motions for a continuance, stated, inter alia, that since the knife would not be offered in evidence, the motions were moot. In his brief defendant has not even attempted to point out how or why he claims to have been prejudiced by the court’s ruling, and this court’s search of the record fails to reveal any prejudice inuring to defendant because of the trial court’s refusal to grant him a continuance. An application for a continuance is addressed to the sound discretion of the trial court and its decision respecting a granting or refusal thereof will not be disturbed on appeal unless an abuse of discretion is clearly shown. State v. Cuckovich, 485 S.W.2d 16, 21 (Mo. banc 1972); State v. Le Beau, 306 S.W.2d 482, 486 (Mo.1957), and State v. Bibee, 496 S.W.2d 305, 311 (Mo.App.1973). The record here reveals no abuse of discretion.

Judgment affirmed.

All concur.


author: SHANGLER, Judge.

text:
    STATE of Missouri, Respondent, v. Larry ABERNATHY, Appellant.
    No. KCD 26765.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Motion for Rehearing and/or Transfer Denied May 6, 1975.

      Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, Paul R. Katz, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Ellen S. Roper, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

The appellant was convicted of the armed robbery of David Griner, manager of the American Sentry Alarm Systems, and sentenced to imprisonment for a term of fifteen years. He appeals that conviction.

At about 5:30 P.M., Griner had concluded work at the office of the American Sentry Alarm Systems office and crossed the hall to the lavatory to tidy his appearance before leaving. As he left the wash room, he was accosted from the rear by someone who placed an object against his back, pushed him into an open office, and directed Griner to get all the money. Gri-ner turned and informed the assailant [whom he identified at trial as the appellant] that it was not his office. The assailant then directed Griner to his office and as they proceeded, he struck Griner on the head. Once in the office, the assailant put a gun against Griner, stripped him of valuables and ordered him to get the company money. The assailant took seven dollars in petty cash, the only money on the premises. Griner again was struck on the head and fell unconscious. When he was restored, Griner found the office in flames.

At the trial Griner identified appellant as the robber and as the same man he had seen a few weeks before the event at the 7-11 Store across the street from the office.

The defense was alibi which contended that at the time of the offense, appellant was at the home of a Mr. Fisher.

In aid of cross-examination, the appellant requested discovery of any statements made by witness Griner to investigating officers, and was given the entire file by the prosecutor. A review of the file by the appellant disclosed that a witness, Tom Anderson who was employed at the 7-11 Store mentioned by Griner, had given a statement to the police to the effect that he did not recall ever having seen in his store prior to the date of the robbery anyone of the description given by Griner. The appellant thereupon moved for dismissal on the contention that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) imposed upon the prosecutor the affirmative duty of disclosure of witnesses. The court refused the dismissal. The motion for new trial iterates that the failure of the prosecution to disclose Anderson until cross-examination effectively deprived the defense of a witness, a prejudice which requires dismissal.

On this appeal, the claim of error is broadened into the contention that a prosecutor owes a defendant an affirmative duty not only the identity of witnesses but also all material evidence in his possession favorable to the accused.

The essential ruling of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the primary authority cited by appellant, holds [l. c. 86, 83 S.Ct. 1196]:

[T]he suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. (Emphasis supplied.)

A debate has been astir whether the due process rationale of Brady is contingent upon request by the accused for the discovery of evidence or whether a prosecutor owes the spontaneous disclosure of exculpatory evidence, even without request. See, 34 A.L.R.3d 16 [§ 14], Withholding Evidence — By Prosecution. The appellant here concedes that he made no request, prior to trial, for access to the prosecution file, but claims nevertheless that the failure of the prosecutor to inform him of the Anderson statement denied him due process.

Our decisions have recognized both dimensions of the Brady principle. On the premise, however, that criminal discovery was not available to an accused as a matter of course in this State, our courts have read Brady to require disclosure by a prosecutor upon a showing by the accused that the evidence sought for discovery was of such a nature that without it, the trial of the offense would be fundamentally unfair. State v. Yates, 442 S.W.2d 21, 26[16] (Mo.1969); State v. Cannon, 465 S.W.2d 584, 586[1] (Mo. banc 1971); State v. Tressler, 503 S.W.2d 13, 17[4] (Mo.1973). Our courts have determined, also, that a prosecutor owes an affirmative duty not to suppress favorable evidence; that to allow false testimony to go uncorrected violates due process and requires a new trial under Brady. State v. Thompson, 396 S.W.2d 697, 700 [4, 5] (Mo. banc 1965); State v. Brooks, 513 S.W.2d 168, 174[ 12, 13] (Mo.App.1974); State v. Koonce, 504 S.W.2d 227, 230 [2] (Mo.App.1973); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

Since the trial of this case, a procedure for systematic criminal discovery has been promulgated by our Supreme Court which codifies in Rule 25.32, V.A.M.R. the discovery principle of Brady, operative upon the request of the accused:

(A) Except as otherwise provided in these Rules as to protective orders, the state shall, upon written request of defendant’s counsel, disclose to defendant’s counsel such part or all of the following material and information within its possession or control designated in said request:
(9) Any material or information, within the possession or control of the state, which tends to negate the guilt of the defendant as to the offense charged, mitigate the degree of the offense charged, or reduce the punishment.

We need not determine whether, under the decisions of our Supreme Court, the failure of appellant to request the Anderson statement with a showing that a denial of that evidence would render his trial fundamentally unfair, forecloses a claim for new trial under Brady. The conduct of the prosecution of this case was governed by Supreme Court Rule 4, DR 7-103(B) (Code of Professional Responsibility):

A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.

This standard of conduct, expressed in the essential language of discovery Rule 25.-32(A)(9), imposes upon a prosecutor an affirmative duty of disclosure even in the absence of request by an accused. This rule means that the proper role of a public prosecutor is not only to convict, but to do justice. State v. Brooks, supra, 513 S.W. 2d l. c. 174[ 11]; see also, State v. Cannon, supra, 465 S.W.2d l. c. 587.

The question remains whether the failure of the prosecutor • to disclose the statement given by Anderson to the police violated any duty which the law imposed upon the prosecutor. We notice first that the police report which contained the statement has not been made part of the record on this appeal, so that we cannot test the assertion by appellant that he was deprived of favorable evidence. State v. Spica, 389 S.W.2d 35, 51 [23] (Mo.1965). If, however, we assume a palpable record of a police report statement that Tom Anderson did not recall the appellant in his store within two weeks of the robbery, such evidence would have been such slight impeachment of witness Griner as to lack probative tendency to “negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment”.. A prosecutor, of course, may not decide what information is usable to the defendant, and request under Rule 25.32(A)(9) would require production of such a statement, but, we conclude, there was no such suppression of material evidence shown as to nullify the conviction either under Brady [Link v. United States, (8th Cir. 1965), 352 F.2d 207] or under Rule 4, DR7-103(B).

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Loren WINTERS, Appellant.
    No. KCB 26801.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Motion for Rehearing and/or Transfer Denied May 6, 1975.

      Howard L. McFadden, Circuit Public Defender, Jefferson City, for appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special JJ.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment and sentence to eight years’ imprisonment, imposed under Second Offender Act, upon jury verdict, finding Loren Winters guilty of selling amphetamine, a controlled substance.

On November 14, 1972, an undercover agent of the Jefferson City Police Department told other officers that he had arrangements to make a purchase of “speed.” The undercover agent and other officers met at a Jefferson City motel, where the agent was “strip searched,” his money taken from him and he was given a $20 bill. A radio transmitter was taped to the agent’s back.

The agent drove downtown where he parked and entered a bar. Police officers followed him in an unmarked car and parked across the street.

The agent sat at a table in the bar with appellant Loren Winters, whom he had known previously, Donna Hunt and a fourth person. Winters asked the agent if he “still wanted some.” The agent said “Yes,” and suggested they take a ride. The agent, Winters and Miss Hunt went to the agent’s auto. He and Winters got in the front seat and Miss Hunt in the rear. The agent drove around the block three times, with the unmarked police car following.

Winters removed a plastic container with about 40 red “pills” in it and asked the agent how much he wanted. The agent said, “About $10 worth.” Winters said they were $1.50 apiece so the agent asked for six, and gave Winters a five and four one dollar bills. After the sale had been completed, Winters and Miss Hunt were let out of the auto in front of the bar. The agent advised the other officers that “Everything was completed.”

The agent and other officers returned to the motel. There the agent was again “strip searched.” The capsules which he had purchased were taken to the police station where a “Nartec” field test showed the capsules had an amphetamine content. The capsules were turned over to a chemist at the Missouri State Highway Patrol Technical Laboratory for examination.

Winters was charged with illegal sale of a controlled substance: six capsules of amphetamine. §§ 195.020, 195.017, RSMo Supp.1973, V.A.M.S. The agent, one of the police officers and the highway patrol chemist testified at the trial. Appellant testified and denied that he made the sale. Miss Hunt testified on behalf of appellant that no sale was made while she was in the auto. After the trial court found that appellant was subject to the Second Offender Act, the jury found him guilty as charged and the court fixed his punishment at eight years’ imprisonment under § 195.200, subd. 1(4), RSMo Supp.1973, V.A.M.S.

On this appeal the first contention of appellant is that he was sentenced under an inappropriate section of the statutes. This contention is based on the proposition that by § 195.017, subd. 6(2) (a), RSMo, supra, amphetamine is a Schedule III controlled substance, and -that its illegal sale, in violation of § 195.240 is punishable, under § 195.270, by a term of from two to ten years in the penitentiary, a jail term of not more than one year, a fine of not more than $1,000, or both the jail term and fine. § 195.200, subd. 1(4), under which the court sentenced appellant, fixes the punishment at from five years to life imprisonment.

The state offered in evidence “Missouri Controlled Substances Regulations,” promulgated by the Division of Health, dated October 4, 1972, which classified amphetamine as a Schedule II controlled substance. Appellant argues that § 195.017, subd. 6(2) (a), classifies amphetamine as a Schedule III controlled substance and that the Division of Health had no authority to classify amphetamine under a schedule different than that prescribed by the legislature. Appellant relies on the language of § 195.015, subd. 1, authorizing the Division of Health to “add” substances to the schedules and argues that this authority applies to newly discovered substances. Appellant argues that no authority is granted to “subtract” a substance from an existing schedule.

This argument ignores subparagraph 4 of § 195.015, which provides:

“If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the division of health, the division of health shall similarly control the substance under sections 195.010 to 195.-320 after the expiration of thirty days from publication in the federal register of a final order designating a substance as a controlled substance or rescheduling or deleting a substance, unless within that thirty day period, the division of health objects to inclusion, rescheduling, or deletion. In that case, the division of health shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the division of health shall publish its decision, which shall be final unless altered by statute. Upon publication of objection to inclusion, rescheduling or deletion under sections 195.010 to 195.320 by the division of health, control under sections 195.010 to 195.320 is stayed until the division of health publishes its decision.”

Effective July 7, 1971, the Federal Director of the Bureau of Narcotics and Dangerous Drugs, under the authority of 21 U.S.C. § 811, rescheduled amphetamine from Schedule III to Schedule II of the Federal Drug Abuse Act. 36 F.R. 12735 (1971). This action authorized the Missouri Division of Health to act under § 195.015, subd. 4, supra. Appellant does not attack the validity of the grant of authority to the Division of Health. This assignment of error is without merit.

Appellant has assigned error based upon the admission into and use in evidence of the regulations of the Division of Health placing amphetamine under Schedule II. He contends that the rules were not properly identified and authenticated. The exhibit consists of 26 pages of regulations to which is affixed the certificate of the Secretary of State “that the annexed pages contain a full, true and complete copy of MISSOURI CONTROLLED SUBSTANCES REGULATIONS FILED IN THIS OFFICE BY THE DIVISION OF HEALTH OF THE DEPARTMENT OF PUBLIC HEALTH AND WELFARE ON OCTOBER 4, 1972 AND WHOLLY IN EFFECT UNTIL THE UNDERSIGNED DATE WITHOUT CHANGE, ADDITION OR DELETION * * * The certificate is dated March 1,1973.

This certificate, under the seal of the Secretary of State, was sufficient to make the document admissible in evidence under § 490.180, RSMo 1969, V.A.M.S. Appellant’s contention that the document was required to bear the seal of the Division of Health mistakes the requirement of § 490.180. The requirement is that the seal of the officer receiving the document for filing appear on the certification, not the seal of the agency which promulgated the document. § 536.020, RSMo 1969, V.A.M. S., required the filing of this regulation in the office of the Secretary of State and his certificate adequately authenticated the document offered in evidence.

Appellant objects to the trial court’s permitting the prosecuting attorney to read from the exhibit on the grounds that it amounted to an instruction to the jury that the substance in question was in fact proscribed by the rules. The prosecutor did, over appellant’s objection on this ground, read to the jury the language of the regulation including amphetamine under Schedule II. However, appellant’s contention that the court was required to submit to the jury the question of whether or not amphetamine was under Schedule II is based on a misreading of State v. Carter, 475 S.W.2d 85 (Mo.1972), which he cites. In that case the court stated (475 S.W.2d 90[5]):

“Therefore, in the instant case the questions of whether or not the list of proscribed stimulant drugs was sufficiently clear and definite and whether dl amphetamine sulfate appears on the list of proscribed stimulant drugs and is, therefore, proscribed are questions of law and must properly be left to the court, not the jury, to decide. People v. Bruner, [343 Ill. 146, 175 N.E. 400] supra; Ex parte Taft, [284 Mo. 531, 225 S.W. 457] supra.

“It was the function of the jury to decide, inter alia, as a matter of fact, whether or not the substance defendant was charged with selling was dl amphetamine sulfate. However, it was not the jury’s function to determine if dl amphetamine sulfate was a proscribed drug, just as it was not the function of the jury in State v. Thompson, Mo., 425 S.W.2d 80, to determine whether marihuana was or was not a narcotic drug.”

That case is contrary to appellant’s position here. He has shown no error in the trial court’s ruling on this matter. A further contention, based on similar grounds, of error in permitting testimony that the capsules contained a “controlled substance” is, for the same reason, without merit.

Appellant also claims that Exhibit 5 included a great deal of extraneous, inadmissible and highly prejudicial matter. Such an objection was made in the trial, but neither then nor here has appellant made any effort to point out what portion of the exhibit he considers objectionable. Failure to do so precludes any finding of error on the part of the trial court.

Appellant contends that the certified copy of the record of his prior conviction, relied upon in the court’s finding that he was subject to the Second Offender Act, was inadequate because its authenticity was not properly established. The state produced a certified copy of a judgment of the Cooper County Circuit Court entered April 22, 1968, in the case of State of Missouri v. Loren De Wayne Winters, finding the defendant guilty, on a plea of guilty, of burglary and stealing, and sentencing him to two years’ imprisonment on each charge, the sentences to run concurrently. Appellant states that the procedure for authentication under § 490.130, RSMo 1969, V.A. M.S., has not been met, but he in no way points out in what respect the requirements of that section were not met.

The copy was produced by the Chief Records and Identification Officer for the Department of Corrections. Regardless of who produced the document, it was properly authenticated, in accordance with § 490.130, RSMo 1969, V.A.M.S., and was for that reason admissible. Appellant’s argument based upon “The Uniform Business Records as Evidence Law” (§§ 490.660-490.690, RSMo 1969, V.A.M.S.) is irrelevant since the admissibility of a duly authenticated judgment is not dependent upon its status as a business record. State v. Washington, 335 S.W.2d 23, 25[7-9] (Mo.1960).

On the day that the case was set for trial, the state asked leave to endorse as a witness the name of the second police officer who had been present at the motel and was in the police car, as above related. The trial court permitted defense counsel to interview the prospective witness during a 45-minute recess. After the recess, counsel objected to the endorsement and also asked for a continuance. The ground of this request was that counsel learned that the officer had made a written transcript of the conversation which he overheard via the transmitter strapped to the back of the agent. Counsel asked for a continuance so that he might subpoena the written record of this conversation to determine whether in fact it existed, to determine whether an unlawful search and seizure was involved, to determine whether the record contained exculpatory material and to determine whether it contained evidence of entrapment. The court overruled the motion for continuance, but refused to permit endorsement of the witness. The refusal of a continuance is assigned as error.

Granting or refusing a continuance in a criminal case is a matter entrusted to the trial court’s discretion. Absent clear abuse of such discretion, the refusal of a continuance is not reversible error on appeal. State v. Thomas, 433 S.W.2d 537, 539[ 1 — 3] (Mo.1968); State v. Reece, 505 S.W.2d 50, 52[2-6] (Mo.1974); State v. Tschirner, 504 S.W.2d 302, 307 [10-12] (Mo.App.1973). In this case, the request had a speculative basis. With or without a continuance, counsel had means to obtain the report if it existed but insofar as the record discloses took no steps to do so, leaving the question of what it might have disclosed purely in the realm of speculation. No abuse of discretion on the part of the trial court has been demonstrated.

In his statement prior to examination of the jury panel, the prosecutor explained that the defendant was “charged with the sale of a controlled substance. This is what the statute calls it. You and I know it by other names, perhaps drugs, narcotics. * * *” No objection to the remark was made, but on this appeal appellant contends that the use of the term “narcotics” was so calculated to inflame the minds of the jurors that it requires reversal of the conviction as plain error under Rule 27.20(c), V. A.M.R.

Objection at the time of the alleged error is the fundamental basis for appellate review of alleged trial errors. No objection was made here. That precludes consideration of the question according to the general rules. Relief on the grounds of plain error is available only in the exceptional situation when the reviewing court is convinced that manifest injustice or a miscarriage of justice has resulted. The single use of the word “narcotics” at the preliminary stages of the trial is far different from the repeated inflammatory remarks of the prosecutor in his closing argument, held reversible plain error in State v. Heinrich, 492 S.W.2d 109, 113 [7] (Mo.App.1973), cited and relied upon by appellant. The remark now objected to would not have been of such import as to affect appellant’s substantive rights. State v. Agee, 474 S.W.2d 817, 820[9, 10] (Mo. 1971). No reversible error has been shown in this regard.

Appellant charges that there was a fatal variance between the pleading and proof, with respect to the substance alleged to have been sold. The information charged the illegal sale of “six capsules of amphetamine.” The police officer testified that a Nartec field test of the capsules showed they had an amphetamine content. The highway patrol chemist testified that the Marquis test of the substance was positive for amphetamine. When asked what particular amphetamine it is, he responded : “Well, * * * at this stage it is an amphetamine derivative. It could be any of the optical isomers of the amphetamine.” He said it could be called “racemic amphetamine sulfate.” When asked by the prosecuting attorney whether the substance fit within the classification of “amphetamine, its salts, optical isomers and salts of its optical isomers,” the chemist replied: “The capsules contained a salt of an optical isomer.”

This testimony was sufficient to permit a finding that the substance sold was amphetamine as listed among the controlled substances of Schedule II of the drug control law. The schedule includes:

“Amphetamine, its salts, optical isomers, and salts of its optical isomers; * * *

Contrary to the situation in State v. Bridges, 398 S.W.2d 1 (Mo.1965), the evidence here did show that the capsules contained amphetamine within the terms of the schedule.

Appellant next contends that the trial court erred in not sustaining his motion for a directed verdict at the close of the state’s case for the reason that the state’s evidence was contradictory. The defendant offered evidence in his own behalf. That waived any error based on the overruling of his motion at the close of the state’s case. State v. Spraggins, 368 S.W. 2d 407, 408[1] (Mo.1963); State v. Turnbough, 497 S.W.2d 856, 858[1] (Mo.App. 1973).

Appellant asserts that the trial court erroneously limited his cross-examination of the police agent. Defense counsel inquired of the witness about his employment by the Jefferson City Police. Department. The witness acknowledged that prior to that employment he had been convicted for “hit and run driving.” He was then asked: “Were you guilty of another hit and run accident in December of 1972?” Objection to the form of question was sustained. Defense counsel continued by inquiring about the age of Donna Hunt. The witness said she was 17 or 18 years of age. Counsel asked whether the witness had told the police at the time of his employment he was living with her. An objection was sustained. Counsel then asked the witness whether he lived with Miss Hunt while he was employed by the police department. He replied that she was staying in his trailer. The witness ' was then asked whether he was also living with another girl. Objection to the question was sustained. The witness was then asked whether he knew the girl. He said he did, that she was 15 years old. He was then asked: “Were you having sexual intercourse with her at your trailer?” Objection to the question was sustained. Defense counsel then returned to the police investigation of the witness upon his employment. Objection was sustained to an inquiry as to whether or not the witness had dealt in narcotics before his employment by the police. In support of such inquiry, defense counsel stated:

“My objective is to establish that he witnessed — has committed so many major crimes that are known to the police department; that he is motivated to lie and commit perjury in order to avoid prosecution by the police department. And I seek to establish that this is not — he is not on the police department and that — well, that is the objective. His credibility is affected not necessarily because he has been convicted of hit and run driving, but they are holding this over his head.”

The court stated that counsel could ask the witness whether he was offered leniency or nonprosecution but that counsel was going at the matter the wrong way.

Counsel then asked the witness whether he had been charged by the police department with any offense arising out of the acts of misconduct he had been asked about. The witness replied negatively. After objection by the prosecutor, the trial court asked counsel to be more specific. Counsel asked whether or not the witness had been charged with leaving the scene of an accident for an incident which occurred on December 12, 1972. The witness responded: “No, I haven’t.” He was then asked:

“And you haven’t been charged with the felony of contributing to the delinquency of a minor for living with Donna Hunt in your trailer, have you ?”

Objection by the prosecutor was sustained. Defense counsel then asked:

“And you haven’t been charged with the felony of statutory rape in connection with your association with * * *, have you ?”

Again, objection of the prosecutor was sustained. The trial court told defense counsel that the form of question was improper for impeachment. Defense counsel then dropped the line of inquiry.

Essentially, appellant’s objection here is that the trial court prevented his showing circumstantially the motive for the police agent’s testimony, i.e., that he was seeking to avoid prosecution for his own offenses and was coerced by the police in his testimony.

A witness is, of course, subject to impeachment by a showing of a motive for the witness’s testimony which might bear on his credibility. An interest in avoiding prosecution for his own misdeeds may be shown and becomes significant particularly when the testimony is the result of an arrangement for nonprosecution of the witness. This problem arises primarily in cases where the witness is an accomplice, but is not necessarily limited to those situations. See Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 77, 75 L.Ed. 736 (1931). Nor is proof of such an arrangement necessarily limited to proof of an express promise of nonprosecution in return for cooperation with the prosecution. See State v. Roberson, 215 N.C. 784, 3 S.E.2d 277, 280[6] (1939).

Appellant now asserts that the entire series of questioning outlined above was an effort to show circumstantially the motive of the witness to avoid prosecution for his own offenses. His first inquiries relative to the second hit and run incident and having sexual intercourse with a 15-year-old girl on their face were inquiries designed to impeach on the basis of specific criminal acts. The law is well-established that cross-examination in that regard is a matter for the trial court’s discretion. State v. Miller, 22 S.W.2d 642, 643-644[3] (Mo.1929). State v. Messley, 366 S.W.2d 390, 393[2-6] (Mo.1963), cited and relied upon by appellant, recognizes the discretion accorded the trial court in such matters. The court not having been advised at the time that it ruled on objections to these questions that the inquiries were intended otherwise than they appear on their face, no error was committed in the trial court’s rulings on these questions.

These questions having been unanswered, there was no basis for subsequent questioning premised on the theory that the witness might have been subject to criminal prosecution regarding those matters. The Hunt girl having been 17 or 18 years of age, according to the evidence, the question as to her improperly assumed that cohabitation with her might have given rise to a charge of contributing to the delinquency of a minor. See § 559.360, RSMo 1969, V.A.M.S.

There simply was no evidentiary support for the inquiry regarding the claimed statutory rape. No effort was made to pursue the claim of dealing in drugs.

Appellant did receive the benefit of the witness’s admission regarding the alleged 1972 hit and run incident, and argued to the jury on the basis of that admission that the witness’s testimony was unworthy of belief.

Considering all of the circumstances, the rulings of the trial court on this issue were not erroneous.

Appellant’s next point relates to the admission into evidence of six capsules which the state claimed were the items sold by appellant. He objects that the witnesses were unable to state positively that the capsules were those received from appellant, that the capsules were not shown to have been in the same coñdition as when they were first obtained, and “ * * * most fatal to the State’s cause is the fact that the chain of possession * * * was completely broken while in the hands of the Missouri State Highway Patrol * *

The state’s evidence showed that when the agent and the police officers returned to the motel, the police officers took the six capsules from the agent. They were placed in a paper container and all three of the men initialled the paper and noted the date and time of the delivery. Putnam took the material to the police station where it was examined by Officer Miller. The capsules were returned to the paper container and the container placed in a sealed cellophane evidence bag. The bag was put in the police evidence locker. The next "morning, Officer Putnam delivered the bag to the Highway Patrol laboratory.

The Highway Patrol chemist testified that he received from Officer Putnam at 9:01 A.M., November 15, 1972, a sealed cellophane bag which contained a sealed paper packet containing six capsules partially filled with a white powder. An identification number was placed on the container and it was put in the evidence locker at the patrol laboratory where it remained until January 9, 1973, when analysis of the contents of the capsules was made. After the analysis had been completed, the chemist returned the capsules to the paper container and again placed the paper container in the cellophane bag which he sealed. The sealed container was returned to Officer Putnam on January 11, 1973. The container and its contents were shown to the agent at the trial on April 13, 1973, and identified by him on the basis of his initials on the paper container. He did state that he could not at that time positively identify the capsules as those which he received from appellant.

What appellant says is “fatal to the state’s cause” is an alleged break in the chain of possession of the evidence after it. was placed in the highway patrol evidence locker. Appellant asserts that the chemist testified that some ten other laboratory personnel had access to the locker and, inferentially, that the possibility of their tampering with the exhibit was not excluded by the state’s evidence.

The state’s evidence here was sufficient to meet the requirement for proof of a chain of possession adequate “to vouchsafe assurance that the exhibit has not been altered or tampered with and that there has been no substitution.” State v. Lemon, 504 S.W.2d 676, 684[15, 16] (Mo.App.1973). There is no requirement that the article be watched continually. State v. Day, 506 S.W.2d 497, 502 (Mo.App. 1974). The fact that other laboratory employees had access to the highway patrol laboratory locker does not destroy the adequacy of the chain of custody. State v. McCrary, 478 S.W.2d 349, 350 (Mo.1972). The adequate chain of custody was sufficient to support the identification of the capsules produced at the trial as those delivered by appellant, even though the capsules themselves had not been marked and the witnesses relied upon the marks on the container in identifying the capsules. The trial court did not err in admitting the evidence. State v. Baines, 394 S.W.2d 312, 316[6, 7] (Mo.1965).

Complaint that the verdict-directing instruction was erroneous because it required a finding that the appellant sold six capsules of amphetamine when the evidence failed to show that the contents of the capsules was amphetamine is adequately answered previously in conclüding that the evidence did show the sale of amphetamine. Objection that the instruction told the jury that amphetamine was a controlled substance rather than requiring the jury to find as a matter of fact that it was likewise answered by the previous discussion of the objection to testimony of the chemist that amphetamine is a controlled substance. The fact question for the jury is what substance was sold. Whether or not the substance is a “controlled substance” is a matter of law. State v. Carter, supra; State v. Thompson, 425 S.W.2d 80, 84[6] (Mo.1968).

Finally, appellant contends that the trial court erred in overruling his objection to the prosecuting attorney’s argument in summation regarding the problems encountered in dealing with the “drug culture.” Appellant objects here that there was no evidence linking appellant with the “drug culture.” Reading the argument as a whole, it is clear that this reference was a part of the prosecutor’s explanation or apology for the caliber of witnesses which the state must rely upon in drug cases. He did not make any argument for the appellant’s guilt because he was involved in the “drug culture.” In these circumstances, the ruling of the trial court was not error.

Judgment affirmed.

All concur.


author: WASSERSTROM, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Cornell T. BREWSTER, Appellant.
    No. KCD 26909.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Motion for Rehearing and/or Transfer Denied May 6, 1975.

      Kenneth K. Simon, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Dan Summers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Defendant appeals from a conviction of first degree murder. He assigns four points of error, none of which is sufficient to warrant disturbance of the conviction.

I.

Defendant’s first point on appeal is that there was no evidence of deliberation sufficient to sustain a charge of murder in the first degree. This calls for a summary of the facts. In making this review, the well established rule requires that the facts in evidence and all favorable inferences reasonably to be drawn must be considered in the light most favorable to the State. State v. Wing, 455 S.W.2d 457 (Mo.1970); State v. Rogers, 380 S.W.2d 398 (Mo.1964).

This tragic episode had its origin in a fight over a bet on a game of pool between defendant and Floyd Elmore. Defendant prevailed in the fight, but apparently aroused some strong animosity on the part of Floyd Elmore and his brothers.

On the night following that fight, the glass was broken out of the windshield and side door of defendant’s automobile. Officer Fiene discovered the broken glass, notified the defendant and offered to make out a report for defendant so that he could take it up with his insurance company. Defendant responded, “Never mind I known who done it just forget it; I’ll take care of it myself.”

The next day defendant accosted on the street Evelyn Elmore, who was a sister-in-law to Floyd and his brother Freddie, and stated to her: “You tell Freddie to either fix my windshield by this weekend or I’ll kill him.”

That night defendant and Freddie El-more had an encounter on a street in front of the bowling alley. After some preliminaries, the situation developed to where Freddie got out of his car on the driver’s side and started coming around the front of the car toward defendant who was standing on the sidewalk. When Freddie got to about the point of the headlights of his car, defendant drew a gun and cocked it. Freddie then turned around and started in the opposite direction. Defendant came off the sidewalk and started toward Freddie, who then started running. At that point defendant fired a shot. As Freddie continued to run, defendant fired two more shots. Freddie fell to the ground and tried to crawl under the gas tank of an automobile. Defendant followed and as Freddie lay on the ground, face down, defendant fired still a fourth shot into his back.

This evidence was fully adequate from which the jury could infer deliberation on the part of defendant and that he acted in cool blood. From the comment which defendant made to the deceased’s sister-in-law on the afternoon of the shooting, it was fairly inferable that defendant was thinking in terms of killing the deceased at that early point. Defendant now argues that this evidence is undependable since it came from a member of the El-more family. However, that merely went to the weight of the evidence, and whether or not the sister-in-law was to be believed constituted a classic jury question.

Moreover, even if that conversation be disregarded and only the events immediately connected with the shooting be considered, the State’s evidence showed that Freddie Elmore retreated, that defendant pursued him, and that even after the deceased was prone on the ground, face down, defendant fired a final bullet into his back. This was amply sufficient, wholly aside from the afternoon conversation with Evelyn Elmore, to show deliberation. State v. Davis, 400 S.W.2d 141, 146 (Mo.1966); State v. Cheek, 413 S.W.2d 231 (Mo.1967).

IL

Defendant next complains of the introduction into evidence of a picture of the deceased’s nude body. The objection made at trial was, “We object to the gruesome nature of the exhibit; that is my objection, I’ll hold to that.” However, immediately prior to that quoted statement, defense counsel had also made mention of the fact that the photograph was merely cumulative of oral testimony; and on this appeal, he makes a still further contention that the photograph was not relevant to any issue in the case. For the sake of completeness, all three of these contentions will be considered.

The photograph was plainly relevant to show the location of the bullet wounds with point of entry in deceased’s back, so as to support the State’s position that defendant had not acted in self-defense and that the shooting was deliberate. The fact that this photographic proof was corroborative of oral testimony to the same effect and that the photograph may have added some gruesom effect does not serve to make the photograph inadmissible. State v. Crow, 486 S.W.2d 248, 255 (Mo.1972) ; State v. Wallace, 504 S.W.2d 67, 72 (Mo.1973); State v. Davis, 515 S.W.2d 181 (Mo.App.1974).

III.

Defendant next complains that the trial court failed to give a cautionary instruction specifically informing the jury of its obligation to weigh and evaluate the evidence. In his motion for new trial, defendant’s complaint along this line was confined to the contention that the trial court should have given on its own motion MAI 2.01 and 2.02. On appeal, defendant expands the scope of his argument by also referring to MAI-CR 1.02, and he also argues that Instruction No. 1 which was given could have misled the jury with respect to its obligation to weigh and evaluate the evidence. Even though the latter two arguments have not been properly preserved, nevertheless, all phases of defendant’s argument in this court will be considered as a matter of grace.

With respect to MAI 2.01 and 2.02, very little need be said. Those instructions are intended for civil cases and are inapplicable to criminal procedure. State v. Bohlen, 487 S.W.2d 543, 544 (Mo.1972); State v. Howard, 486 S.W.2d 660, 662 (Mo.App.1972).

With respect to MAI-CR 1.02, the approved criminal instructions did not become effective until January 1, 1974. The trial in this case occurred in June, 1973. Accordingly, MAI-CR 1.02 was not required and its lack cannot constitute error.

Turning to Instruction No. 1, that was the verdict directing instruction on murder in the first degree. Defendant objects to the second paragraph of that instruction which reads as follows:

“It is the duty of the Court to instruct you on all questions of law arising in this case, and it is your duty to receive such instructions as the law of the case, and to find the defendant guilty or not guilty, according to the law as declared by the Court, and the evidence as yoii received it under the directions of the Court.”

Defendant argues that this paragraph “could have misled the jury into a passive measuring of the quantity of evidence rather than an active qualitative analysis of the evidence.” The argument has no substance. The same Instruction No. 1 also told the jury that they could find the defendant guilty of murder in the first degree only if they believed and found from the evidence all of the specified elements “beyond all reasonable doubt.” This informed the jury of the heavy burden of their duty, the performance of which necessarily involved “an active qualitative analysis of the evidence.”

Moreover, a further cautionary instruction to the jury on the nature of their duty would have related to a collateral matter and was not required since not requested. State v. Wing, 455 S.W.2d 457, 464 (Mo.1970).

IV.

Finally, defendant objects to the manslaughter instruction given by the court on the ground that it did not require a finding of either an intentional killing or culpable negligence. The State argues (1) that any error in the manslaughter instruction is nonprejudicial because defendant was actually convicted of murder in the first degree; and (2)' that in any event there was no error in the manslaughter instruction. Because the State’s second and more basic argument is clearly sound, it is unnecessary to reach the question whether the instruction would have been prejudicial, if erroneous.

Instruction No. 3, being the verdict director on manslaughter, told the jury that if it did not find defendant guilty of murder in the first or second degree, then it must consider manslaughter; and if it found beyond a reasonable doubt that defendant caused the death of Freddie El-more by shooting, then it should find defendant guilty of manslaughter, unless it believed that defendant was not guilty by reason of self-defense as defined in a separate instruction. This Instruction No. 3 is virtually identical to the present MAI-CR 6.08. That identity would suffice in itself for the approval of the instruction given here. State v. Yeokum, 516 S.W.2d 535, 536-537 (Mo.App.1974).

Moreover, there is perfectly good reason why a manslaughter. instruction need not specifically require a finding of intentional killing or culpable negligence. This results principally from the manner in which manslaughter is defined under RSMo § 559.070:

“Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter.”

It has been aptly held that under this statute, manslaughter has become a “residual offense,” and encompasses every killing which is neither first nor second degree murder nor excusable or justifiable homicide. State v. Ryan, 492 S.W.2d 116, 122 (Mo.App,1973). Therefore, an instruction on manslaughter is sufficient if it excludes first and second degree murder and (where necessary under the evidence) justifiable and excusable homicide, and follows the language of the statute. State v. Clark, 412 S.W.2d 493, 496 (Mo. 1967).

Affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Melvin JACKS, Appellant.
    No. KCD 27084.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Motion for Rehearing and/or Transfer Denied May 6, 1975.

      Willard B. Bunch, Public Defender Sixteenth Judicial Circuit, Henri J. Watson, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRIT-CHARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

This appeal stems from defendant’s conviction by a jury of robbery in the first degree and imposition of a three year sentence.

No claim as to the sufficiency of the evidence having been raised, and no insufficiency appearing, a brief statement of facts will suffice. At approximately 6:30 P.M. on the evening of January 5, 1973, an off-duty detective employed by the Kansas City Police Department was walking to his car parked in a lot behind a tavern. The area was well illuminated by an “arc lamp” affixed to the top of a twenty foot pole. En route thereto the detective was approached by a man of the Negro race carrying a “sawed-off rifle” who demanded his money. Someone standing behind the detective removed his wallet, while the man carrying the “sawed-off rifle” seized his Smith and Wesson revolver. At defendant’s trial the detective postively identified defendant as the man carrying the “sawed-off rifle”.

Defendant impugns his conviction and sentence on the basis that the trial court erred (1) in denying him a hearing on his motion to declare a mistrial and discharge the petit jury finally selected to try the case and (2) in not permitting him to introduce testimony at the trial that he agreed to and did submit to a polygraph examination.

After the petit jury was selected, but prior to the time it was sworn to try the case, defendant filed a motion to discharge the petit jury. Defendant alleged therein that the state used its peremptory challenges to strike all Negroes on the ve-nire panel, thus excluding all Negroes from the petit jury, and that the state “systematically did so in case after case”, thereby denying defendant equal protection of the law as guaranteed by the Fourteenth Amendment of the Constitution of the United States. The failure of the trial court to grant defendant an evidentiary hearing on his motion is the. gravamen of his claim of error on appeal. Defendant relies on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), as the embarkation point for his position. The venire, from which the petit jury which tried defendant was selected, contained four members of the Negro race. It stands undisputed that the state expended four of its peremptory challenges to strike them and that no member of the Negro race sat on the petit jury which tried and convicted defendant. Their removal by the state in this particular case, standing alone, was not constitutionally impermissible. Swain v. Alabama, supra, (l. c. 837, 85 S. Ct.). However, a systematic exclusion by the state, via peremptory challenges, “in case after case” of members of the Negro race who have been selected as qualified jurors and who have survived challenges for cause, with the result that no Negroes “over a period of time” ever serve on petit juries, presents a Fourteenth Amendment question that takes on “added significance”. Swain v. Alabama, supra (l. c. 837, 85 S.Ct). The burden rested upon defendant to prove that selection of the petit jury in the instant case fell within the foregoing admonition. Swain v. Alabama, supra (l. c. 837, 85 S.Ct.). This reaches the crux of defendant’s contention since, for all practical purposes, he claims that if afforded a hearing he could have met the burden of proof imposed by Swain. The record surrounding defendant’s motion does not bear out his claim.

Mr. J. D. Williamson, Assistant Prosecuting Attorney of Jackson County,' tried the case for the state. Defendant was present in court at all times hereinafter mentioned. After the twelve petit jurors were selected, but prior to the time they were sworn, defendant, through counsel, filed his motion to discharge the jury and requested a hearing thereon. The trial court responded as follows to defense counsel’s request for a hearing: “[W]hen you say a ‘hearing’, I assume the only person you could hear from would be Mr. Williamson.” Defense counsel replied he had no desire to question Mr. Williamson as to reasons for striking any particular jurors from the panel, but, instead, would limit his questioning of Mr. Williamson to whether or not he had, in fact, employed part of the state’s peremptory challenges to strike all members of the Negro race from the panel in question and whether or not he had done likewise in “case after case” respecting other criminal cases he had tried. Defense counsel then concluded by advising the court “that would be the limit of my questioning”. At this juncture, Mr. Williamson stated on the record that in trying criminal cases for the state he had never systematically employed peremptory challenges to strike Negroes or any other classification of individuals, and that “many times” he “had Negroes on juries in criminal cases.” Immediately thereafter defense counsel stated “Well, Your Honor, obviously Mr. Williamson is an Officer of the Court and I don’t doubt what he just said.” The trial judge also made the following statement which appears of record: “I’ve had a number of jurors, black jurors, serving in cases where there was a black defendant.” Defense counsel further stated on the record that his allegation was that the state “through Mr. Williamson, has engaged in the practice of systematically excluding members of the Black race from sitting as jurors in criminal cases merely because of the race.” With the record in the foregoing posture, the trial court overruled defendant’s motion to discharge the jury without an evidentiary hearing.

It is explicit throughout the record, as evidenced above, that defendant intended to rely solely on questions directed to and answers elicited from Mr. Williamson to meet the burden of proof imposed upon him by Swain. The above statements made on the record by Mr. Williamson, if given under oath in response to questions by defense counsel, would have failed to bring the selection of the petit jury which tried and convicted defendant within the constitutionally proscribed area drawn in Swain. Defense counsel’s statement of record, “I don’t doubt what he just said”, with reference to Mr. Williamson’s statements, can be fairly ascribed as a judicial admission by defense counsel, binding upon defendant, as to the nature and veracity of Mr. Williamson’s testimony if questioned under oath by defense counsel. In State v. Levy, 262 Mo. 181, 170 S.W. 1114, 1117 (1914), the court quoted with approval and applied the following principle announced in Pratt v. Conway, 148 Mo. 291, 49 S.W. 1028, 1030 (1899) : ‘“Courts are warranted in acting upon the admissions of counsel in the trial of a cause. They are officers of the court, and represent their clients, and their admissions thus made bind their principals.’ ” See also State v. McIntosh, 500 S.W.2d 45 (Mo.App.1973). Basic logic is even more persuasive for binding a defendant as to admissions of counsel in collateral proceedings where neither the proceedings nor the admissions directly relate to the merits of the charge for which a defendant stands accused. While refusal of an evidentiary hearing on a motion such as involved here is not condoned, and the state’s attorney is not clothed with any immunity from being questioned in the limited area prescribed by defense counsel, the latter’s admission of record as to the nature and veracity of the statements of record made by the state’s attorney precludes denial of an evidentiary hearing in this particular case from constituting reversible error.

Defendant’s final assertion of error, that the trial court erred in not permitting him to introduce testimony at the trial that he agreed to and did submit to a polygraph examination, is also ruled adversely to him. This assertion is silhouetted by the following facts. Prior to trial defendant and the state jointly executed a written “stipulation” providing that defendant' would submit to a polygraph examination to be administered by Corporal Merle Buesing of the Missouri State Highway Patrol. The “stipulation”, inter alia, provided as follows: “It is further agreed and stipulated that the results of the polygraph examination, in the form of an opinion, may be offered in evidence on behalf of the defendant, or on behalf of the prosecution without objection by either, provided that if the polygraphist determines that the results of said examination are indefinite and/or inconclusive then the polygraphist will not be required to testify nor will the examination results be introduced by either the prosecution or the defendant.” Pursuant to the “stipulation”, and after being given a Miranda warning, defendant submitted to a polygraph examination conducted by Corporal Buesing, the results of which were “inconclusive”. The conditions under which defendant took the polygraph examination, his voluntary submission thereto, the Miranda warning given, and the “inconclusive” result of the examination, were all disclosed by interrogation of Corporal Buesing under oath outside the presence of the jury. On the basis of the facts disclosed the trial court ruled that both the results of the polygraph examination and the fact that defendant submitted thereto were inadmissible. Defense counsel then made an offer of proof — that Corporal Buesing and defendant would both testify, if permitted to do so, that defendant, after being given a Miranda warning, voluntarily agreed to and did submit to a polygraph examination — which was denied on the state’s objection.

In State v. Cole, 354 Mo. 181, 188 S.W.2d 43 (1945) this state firmly committed itself to the proposition that results of polygraph examinations are inadmissible in evidence because they lack scientific support for their reliability. This commitment has been consistently adhered to: State v. Stidham, 305 S.W.2d 7 (Mo.1957); and State v. Weindorf, 361 S.W.2d 806 (Mo.1962). State v. Bibee, 496 S.W.2d 305, 316 (Mo.App.1973), constitutes well reasoned authority for the proposition that an accused’s offer or professed willingness to submit to a polygraph examination is, likewise, inadmissible because it is “merely a self-serving act or declaration which obviously could be made without any possible risk, since, if the offer were accepted and the test given, the result, whether favorable or unfavorable to the accused, could not be be given in evidence.” In State v. Fields, 434 S.W.2d 507 (Mo.1968) the court, absent consideration of whether the results of polygraph examinations have any scientific support for their reliability, held that if an accused stipulates to submit to such an examination and agrees that the result, favorable or unfavorable, is admissible at trial, then he has effectively waived all objections as to admissibility. In view of the stipulation in the instant case, and the holding in State v. Fields, supra, the results of the polygraph examination which defendant submitted to, if conclusive, would have been admissible whether favorable or unfavorable to defendant. For this reason defendant contends his actual submission to the examination transcends the holding in State v. Bibee, supra, excluding admissibility of a mere offer or proffered willingness to submit to such an examination, because he took all attendant risks, and, figuratively speaking, should be entitled to reap a reward for having done so. While innovative, to say the least, defendant’s argument does not “score” for the basic and fundamental reason that to date the case law of this state still remains committed to the proposition that the results of polygraph examinations are inadmissible because they lack scientific support for their reliability. Expressed in conventional legalese, results of polygraph examinations have no probative value because they lack scientific reliability. If the results lack probative value, then mere submission to a polygraph examination, with the result kept from the jury, has even less probative value. Perforce, the trial court did not err when it refused to permit defendant to introduce evidence that he agreed to and did submit to a polygraph examination.

Judgment affirmed.

All concur.