author: SMITH, Presiding Judge.

text:
    Walter HORTON and Keith Horton, Plaintiffs-Appellants, v. STATE FARM FIRE & CASUALTY CO., Defendant-Respondent.
    No. 37260.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 15, 1977.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 6, 1977.
    Application to Transfer Denied June 14,1977.

      Carter & Becker, P. C., Donald S. Singer, Clayton, for plaintiffs-appellants.
    Gerard Hempstead, St. Louis, for defendant-respondent; Evans & Dixon, Ralph C. Kleinschmidt, Gerre S. Langton, St. Louis, of counsel.
   SMITH, Presiding Judge.

Plaintiffs appeal from a judgment in favor of defendant based upon a jury verdict. Plaintiffs sued defendant for the theft loss of an automobile under an insurance policy issued by defendant.

Plaintiffs make no attack upon the sufficiency of the evidence to support the verdict. Their basic attack is that as a matter of law they had an insurable interest in the vehicle, and since that was defendant’s only defense, they were entitled to a directed verdict. Certain trial errors are also claimed, some of which are determined by the basic issue raised.

We review the facts in accord with the jury verdict, including all reasonable inferences which may be drawn from those facts. Keith Horton was 17 years old at the time of the acquisition of the automobile involved. Walter Horton is his father. On March 9,1972, Keith purchased a 1968 black Camaro from a Mr. Pew. He received, at that time, a title to a 1968 Camaro with an identification number of 124378N329375. Neither plaintiff attempted to determine or knew whether the identification number on the title was the same as that affixed to the vehicle. The title was in the name of Carolyn Pew and a signature purporting to be hers appeared on the assignment of title. The signature was not at that time notarized, but Mr. Pew found a notary public who notarized the document. Keith received possession of the car at that time and immediately obtained insurance from defendant on the vehicle described in the title, including coverage for theft. Within five days after the purchase of the automobile, it was stolen, and has never been recovered. Keith and Walter Horton obtained from the Department of Revenue a title to the vehicle described in the Pew title. There is no dispute that this title was ordered immediately after the purchase of the vehicle from the Pews. Nor is any challenge made to the validity of Carolyn Pew’s signature. This foregoing evidence was undisputed.

.Following the theft a police investigation ensued which brought a Mr. Waller into the picture. On January 1 or 2, 1972, Mr. Waller’s 1968 black Camaro was stolen. Based upon pictures of that vehicle, a similar scratch mark, certain special equipment, and general similarity of the automobiles, a jury could reasonably conclude that the vehicle stolen from Mr. Waller and that stolen from Keith Horton were the same. There was evidence that some differences between the cars were the product of changes made by Mr. Pew. There was also evidence that Mr. Pew sold to a Mr. Cragg some equipment from the Waller vehicle and offered to sell him other equipment originally on the Waller vehicle but not on the Horton vehicle when Keith purchased it.

There was further evidence that a white 1968 Camaro bearing a vehicle identification number of 124378N329375 was purchased in a wrecked condition by a Mr. James Egner, Belleville, Illinois, from a Mrs. Goldsmith. This vehicle was cannibalized and its parts used to rebuild another damaged car, which was sold to a Ms. Cummings. The cannibalized vehicle was then no more than a frame, non-repairable economically. This frame and the title, signed for transfer by Mr. Egner, were then given to an unknown young man providing he would haul the frame away.

The title history of the Waller car showed it was originally owned by a Michigan resident who sold it to Waller, who titled it in California. The identification number for that vehicle was 123378L340502. There was testimony that the vehicle identification number appears in the dashboard area and also in a place on the frame known only to the manufacturer and law enforcement authorities. The frame location varies according to the model and in some cases can be found only after cutting through structural portions of the vehicle.

Defendant contends that the evidence warranted the conclusion the Horton vehicle was the stolen Waller vehicle; the title application did not contain the true identification number for the vehicle actually transferred; the sale to the Hortons was therefore void pursuant to Sec. 301.210.4 RSMo 1969; therefore the Hortons had no insurable interest in the automobile.

Plaintiffs contend that as a matter of law the holder of a Missouri Certificate of ownership has an insurable interest in the vehicle transferred with said title and that additionally they were good faith purchasers for value and had an insurable interest in the vehicle.

A certificate of title is only prima facie evidence of ownership and may be rebutted. Evidence that the certificate was not properly assigned can constitute such rebuttal. Case v. Universal Underwriters Ins. Co., 534 S.W.2d 635 (Mo.App.1976) [3, 4]. The Missouri courts have consistently held that absolute technical compliance with Sec. 301.210 is required, otherwise the sale is fraudulent and void. Case v. Universal Underwriters Ins. Co., supra; State v. Glenn, 423 S.W.2d 770 (Mo.1968); State ex rel. Connecticut Fire Ins. Co. of Hartford v. Cox, 306 Mo. 537, 268 S.W. 87 (1924). Failure to strictly comply with the statute means no title passes and the purported buyer has no ownership. State Farm Mutual Automobile Ins. Co. v. MFA Mutual Ins. Co., 485 S.W.2d 397 (Mo. banc 1972). This is -true, painful as it may be, even where the buyer was guilty of no intentional wrongdoing, i. e., has acted in good faith. Moore v. State Farm Mutual Automobile Ins. Co., 381 S.W.2d 161 (Mo.App.1964) [3, 4]; Robertson v. Snider, 63 S.W.2d 508 (Mo. App.1933) [l].

It is also clear under the Missouri law that a difference between the identifying number in the certificate of title and the actual vehicle number is a violation of the statute and renders the transaction void. Craig v. Rueseler Motor Co., 159 S.W.2d 374 (Mo.App.1942); Robertson v. Snider, supra; Case v. Universal Underwriters Ins. Co., supra.

Evidence here was sufficient to allow the jury to find that the vehicle acquired by the plaintiffs was stolen and that the number in the certificate of title and that of the vehicle itself were different. The jury so found. The transaction was therefore void and the plaintiffs had no ownership interest in the vehicle.

Does plaintiffs’ lack of ownership mean they have no insurable interest? “Insurable interest” is a requirement of public policy prerequisite to the enforcement of an insurance contract. It is intended to foreclose gambling contracts, which are void. American Central Ins. Co. v. Kirby, 294 S.W.2d 556 (Mo.App.1956) [1, 2].

It is generally true that “ . . anyone has an insurable interest in property who derives a benefit from its existence or would suffer a loss from its destruction.” Bernhardt v. Boeuf & Berger Mutual Ins. Co., 319 S.W.2d 672 (Mo.App.1959) [1]; American Central Ins. Co. v. Kirby, supra, [3]. Utilizing the above definition, it would appear that a person purchasing a stolen vehicle in good faith would have an insurable interest and the public policy concerns about gambling contracts would not be compromised. Several states have so held. See Skaff v. United States Fidelity & Guaranty Co., 215 So.2d 35 (Fla.App.1968); Smith v. State Farm Mutual Automobile Ins. Co., 220 So.2d 389 (Fla.App.1969); Treit v. Oregon Automobile Ins. Co., 262 Or. 549, 499 P.2d 335 (1972); Barnett v. London Assur. Corp., 138 Wash. 673, 245 P. 3 (1926); Savarese v. Hartford Fire Ins. Co., 99 N.J.L. 435,123 A. 763 (1924). The rationale of these decisions is summed up in the court’s statement in Skaff v. United States Fidelity & Guaranty Co., supra, [2]:

“The appellant’s interest in the insured vehicle stems from the $4,110.90 he paid for it as well as the loss of its use. By insuring such a substantial interest, the contract can hardly be considered a wager.” l.c. 37.

Other jurisdictions have come to the opposite conclusion on the basis that the purchaser of a stolen vehicle does not acquire

“ownership” as required by the “sole ownership” clause of most insurance policies. See Southern Farmers Mutual Ins. Co. v. Motor Finance Co., 215 Ark. 601, 222 S.W.2d 981 (1949); Hessen v. Iowa Auto Mutual Ins. Co., 195 Iowa 141, 190 N.W. 150 (1922); Gurley v. Phoenix Ins. Co., 233 Miss. 58, 101 S.W.2d 101 (1958).

We are in full agreement with the public policy behind the provisions of Sec. 301.210 to prevent trafficking in stolen cars and with the courts’ requirements of strict technical compliance to uphold that policy. We have, however, some doubts that implementation of that public policy is effectuated by invalidating property damage and theft insurance policies purchased in good faith for valuable consideration. However, despite any doubts we may have, the law of Missouri is that a violation of 301.210 precludes the purchaser from obtaining ownership of the vehicle and also precludes him from having an insurable interest therein. See State ex rel. Connecticut Fire Ins. Co. of Hartford v. Cox, supra; Rankin v. Wyatt, 335 Mo. 628, 73 S.W.2d 764 (1934) [8]; Evans v. Home Ins. Co. of New York, 231 Mo.App. 932, 82 S.W.2d 111 (1935) [1]; Kelso v. Kelso, 306 S.W.2d 534 (Mo.1957) [5, 6]; Still v. Travelers Indemnity Co., 374 S.W.2d 95 (Mo.1963) [1]; Moore v. State Farm Mutual Automobile Ins. Co., supra. The question of “insurable interest” as it relates to loss coverage of an automobile is not controlled by the general principles or cases relating to other forms of property. See Still v. Travelers Indemnity Co., supra, [1]; Moore v. State Farm Mutual Automobile Ins. Co., supra [7, 8], The trial court did not err in refusing to direct a verdict for plaintiffs.

Several of plaintiffs’ allegations of error relate to the court’s failure to instruct the jury on the issue of plaintiffs’ good faith in the purchase of the car. What we have heretofore said disposes of those contentions — good faith is not an issue. Plaintiffs’ remaining instructional contentions of error relate to the verdict director. The verdict director was “prepared at the court’s direction.” It was, however, identical to an instruction tendered by plaintiffs except for one paragraph relating to good faith. The challenges now made pertain to language contained in plaintiffs’ tendered instruction. Plaintiffs are not now entitled to complain of that language. Brown v. Bryan, 419 S.W.2d 62 (Mo.1967) [3 — 5] Leathern v. Longenecker, 405 S.W.2d 873 (Mo.1966) [1]. Additionally, the instructions were in the words of the statute which is generally sufficient. Rooney v. Lloyd Metal Products Co., 458 S.W.2d 561 (Mo.1970) [9, 10]. If the instructions were considered by plaintiff to be confusing, a clarifying instruction could and should have been requested.

Plaintiffs also complain of the denial of a mistrial following a question about whether Mr. Pew had been arrested. No answer was given, an objection was sustained and the jury was admonished. We find no abuse of discretion in the denial of a mistrial.

Plaintiffs’ last point relates to the exclusion of evidence relating to attorney’s fees under plaintiffs’ claim of vexatious refusal to pay. In view of our disposition we need not reach this contention.

Judgment affirmed.

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.

      . We do not conclude as plaintiffs suggest that Robertson v. Snider, 86 S.W.2d 966 (Mo.App. 1935) in any way relaxes this rule by reference to Rankin v. Wyatt, 335 Mo. 628, 73 S.W.2d 764 (1934). The Rankin case simply held that a person who had possession pursuant to a void sale had a greater right to possession than a trespasser.

      . In its brief defendant raises the declaration in the policy respecting “sole ownership” in the insured. In its amended answer, however, it did not raise this contractual defense, but only alleged the legal doctrine of lack of insurable interest. In view of our conclusion on the insurable interest question, we need not decide the status of the policy declaration or whether it was properly raised by defendant.

      . We are cognizant that policies covering liability stand upon a different footing. See State Farm Mutual Automobile Ins. Co. v. MFA Mutual Ins. Co., supra.


source: Caselaw Access Project

author: KELLY, Presiding Judge.

license: Public Domain

text:
    Lillian HIGGINS, Administratrix of the Estate of Grant Higgins, Deceased, and Lillian Higgins, Individually, Plaintiffs-Respondents, v. MFA MUTUAL INSURANCE CO., Defendant-Appellant.
    No. 37510.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 15, 1977.
    Motion for Rehearing and for Transfer Denied April 15, 1977.
    Application to Transfer Denied June 14,1977.
    Godfrey, Vandover & Burns, Inc., Samuel T. Vandover, James E. Godfrey, St. Louis, for defendant-appellant.
    Robert F. Ritter, Gray & Ritter, St. Louis, for plaintiffs-respondents.
   KELLY, Presiding Judge.

This appeal from a judgment of the Circuit Court of St. Louis County awarding the plaintiff-respondent $20,000.00 aggregate damages in a declaratory judgment suit presents a case of first impression in Missouri, i. e., whether the enactment of § 379.-203 RSMo.1967 Supp., wrote into a policy of automobile liability insurance the uninsured motorist coverage therein mandated although the policy of automobile liability insurance had been issued prior to the effective date of the enactment of said statute and did not contain uninsured motorist coverage when issued. We hold that it did not and therefore reverse the judgment of the Circuit Court and enter judgment for the defendant-appellant. Rule 84.14 V.A. M.R.

Plaintiff-respondent’s petition was in two counts. Count I set forth the claim of plaintiff in her capacity as the administra-trix of the Estate of Grant Higgins, her deceased husband, and Count II, her individual claim. The damages sought in each Count were $10,000.00, an aggregate of $20,000.00. In each instance the damages sought were the maximum coverage required by § 379.203. Her theory of the case was that uninsured motorist coverage was engrafted onto the automobile liability insurance policy “by operation of law.” Defendant-appellant’s Answer was a general denial — although it did admit certain allegations of plaintiff-respondent’s petition— but also contained an allegation by way of an affirmative defense that the policy of insurance was issued prior to the effective date of the Statute, October 13, 1967, and therefore the statutory mandate was inapplicable to the policy of insurance.

The facts are not in dispute. A “Stipulation of Facts” was filed in the trial court by the parties as follows: Lillian Higgins and Grant Higgins were injured in an automobile collision occurring on February 24, 1968, in Washington, Missouri, with a car negligently driven by one Catherine Politte; Ms. Politte’s negligence directly caused the Higginses serious and permanent bodily injuries; judgments were obtained against Ms. Politte upon a petition for damages filed by plaintiff for bodily injury and property damages resulting from the occurrence in the sum of $47,500.00 in the Circuit Court of Washington County and have become final; at the time of the automobile collision Ms. Politte was the operator of an uninsured motor vehicle within the terms of § 379.203. Both of the Higginses were occupants of an automobile which was an insured vehicle under a policy of automobile liability insurance issued by the defendant-appellant to Grant Higgins, now deceased. Between February 12, 1959, to and including the time of the accident on February 24, 1968, Grant Higgins and Lillian Higgins carried at least one policy of automobile liability insurance with the defendant-appellant; and they carried their automobile liability insurance policy exclusively between the dates aforesaid through Lawrence Giles, an agent, servant and employee of the defendant-appellant acting within the scope and course of his authority. The deceased, Grant Higgins, on June 16, 1964, applied for the insurance policy numbered 24-1-442685-003 and coverages for Bodily Injury Liability and Property Damage Liability were issued to him. At the time these coverages were issued to Mr. Higgins, uninsured motorist insurance coverage was available for purchase from the defendant-appellant but was not offered to him by the defendant-appellant. At no time, before or after June 16, 1964, was uninsured motorist coverage offered to him by the defendant-appellant nor did he reject same in writing. The policy of insurance was “renewed” by Mr. Higgins on May 27, 1965, May 27, 1966, May 27, 1967 and April 25, 1968, when premiums for the policy were due. The policy of insurance was cancelled on August 14, 1970. The policy of insurance was a continuing one, which would continue indefinitely unless a change was requested by the defendant-appellant or by Mr. Higgins. The policy provided that the premiums could be paid on a quarterly, semi-annual or annual basis at the discretion of the policyholder. From the initial issuance of the policy until April 25, 1968, premiums were paid on an annual basis; but after April 25, 1968, they were paid on a semi-annual basis. Section 379.203 became effective on October 13, 1967, and prior to that date there was no Missouri law obligating an insurance company to include uninsured motorist coverage in policies of automobile liability insurance delivered or issued for delivery in Missouri. The policy of automobile liability insurance issued to Mr. Higgins was last “renewed” on May 27, 1967, and continued in effect from the date of renewal to May 27, 1968. This policy of insurance was in effect on February 24, 1968.

The trial court filed Findings of Fact and Conclusions of Law. In its Findings of Fact it found that the defendant-appellant had sufficient notice of the effective date of the statute, October 13,1967, to notify each of its insureds of their right to the required Uninsured Motorist coverage as of that date, or, in the alternative, of their right to reject uninsured motorist coverage in writing, but that it failed to so notify either of the Higginses and at no time obtained their rejection in writing of such coverage as required by the statute. In its Conclusions of Law the trial court found that § 379.203, effective October 13, 1967, was mandatory in its requirement that all policies of automobile insurance written or issued in the State of Missouri and in force as of the effective date of said statute contain Uninsured Motorist coverage in the minimum limits unless such coverage had been rejected in writing by the named insured. Since neither of the Higginses rejected such coverage in writing at any time prior to February 24, 1968, they were afforded uninsured motorist coverage by operation of law on that date and were covered by said uninsured motorist coverage when the accident occurred, and therefore Mrs. Higgins was entitled to judgment against the defendant-appellant in the sum of $10,000.00 for the death of her husband and $10,000.00 for her damages, a total of $20,000.00.

On August 1, 1975, after the aforesaid order of July 25, 1975, entering judgment for plaintiff-respondent was entered, the defendant-appellant filed a “Motion of Defendant For Order Making New Findings of Fact and to Direct Entry of A New Judgment” which was called up, heard, and overruled on October 10, 1975. Notice of appeal was filed from the judgment on October 17, 1975.

On appeal the appellant contends that the trial court erred in finding and concluding that the Uninsured Motorist Law, § 379.203, applied to require this policy of automobile liability insurance, issued before the effective date of said law, to provide uninsured motorist coverage because this finding and conclusion is contrary to the expressed intent of the Missouri legislature. The thrust of appellant’s argument is that for the trial court to arrive at this conclusion the statute must be applied retroactively, and for this to be so, there must be a clear expression of a legislative intent to that effect, otherwise the statute may be applied prospectively only. The respondent retorts that the trial court, in fact, has given the statute prospective operation only, because appellant’s duty to afford its insureds the uninsured motorist coverage mandated by the statute began as of the effective date of the statute and continued thereafter.

The statute provides that “No automobile' liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state . unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury or death set forth in section 303.030, RSMo, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, . . ., including death, resulting therefrom; . . . ” (Emphasis supplied). Appellant contends that the intent of the legislature that the statute shall apply prospectively only is evidenced by the terms “shall be delivered or issued for delivery;” and that since this policy of insurance was delivered and issued for delivery prior to the effective date of the statute and there had been no reis-suance or redelivery of the policy between the effective date of the statute and February 24, 1968, the date of the accident, the uninsured motorist coverage was not in force. <

Respondent replies to this argument by pointing out that this particular policy of automobile liability insurance was a “continuing one” which would continue for an indefinite time; that if appellant’s argument is sound, then the policy would never be “delivered or issued for delivery” after its initial issuance to Mr. Higgins on June 16, 1964, and the Higginses would never have been afforded the mandatory coverage until they purchased an entirely new policy of insurance.

The cases our research has surfaced on the question whether uninsured motorist coverage required by an uninsured motorist statute with terminology similar to § 379.-203 is to be afforded an insured under an automobile liability policy of insurance uniformly hold that the statute does not apply retroactively to policies already in effect at the time the statute takes effect. Ball v. California State Auto. Ass’n Inter-Ins. Bureau, 201 Cal.App.2d 85, 20 Cal.Rptr. 31, 33[1] (1962); Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 549 P.2d 1354, 1360[1] (1976); Liberty Mutual Insurance Company v. Rambin, 185 So.2d 851, 852[1] (La.App.1966); Pierce v. Hartford Accident & Indemnity Co., 184 So.2d 241, 244[1] (La.App.1966); Langley v. Home Indemnity Company, 272 A.2d 740, 744[2] (Me.1971); Baune v. Farmers Insurance Exchange, 283 Minn. 54, 166 N.W.2d 335, 337[1] (1969); Lee v. Michigan Millers Mutual Insurance Company, 250 S.C. 462, 158 S.E.2d 774, 775[1] (1968). See also Couch on Insurance, 2d, § 45:622, p. 569.

In construing the terms “issued or delivered” in § 11580.2 of the Insurance Code of that state, the court in Ball v. California State Auto. Ass’n Inter-Ins. Bureau, supra, 20 Cal.Rptr. at p. 32, said:

“The issue of the case turns upon the simple question as to whether the contract of insurance conflicted with section 11580.2 of the Insurance Code- if there were such conflict, the contract would pick up and incorporate the legislative provision. The legislative provision, however, reads that no liability policy shall be issued or delivered unless it provides uninsured motorists protection. The terms ‘issued’ and ‘delivered’ must refer to the original issuance and delivery of the policy; they are fixed as to time and do not stretch into infinity.”

Further, 20 Cal.Rptr. at p. 33, the court continued:

“. . . Here the legislation refers to policies which ‘shall be issued or delivered * * *.’ The specific act of issuance and delivery predated the legislative provision and cannot conceivably operate to bring within its meaning later legislation which was enacted after such issuance and delivery. The later legislation embraced only policies thereafter issued or delivered; it did not purport to affect the existing contracts, and, indeed, according to appellants, ‘could not, of its own force, affect’ appellant Ball’s existing policy, ‘under the Federal and California Constitutions.’ ”

We conclude that the General Assembly in enacting the Missouri Uninsured Motorist Law intended that it be applied prospectively, and not retroactively. We do not, therefore, reach the question whether the General Assembly, had it so desired, could have made the statute have retrospective application because that question is not necessary to our decision in this case.

However, respondent contends that validity of the trial court’s judgment is not dependent upon whether the Law could be applied retrospectively, because the trial court found, and respondent contends, that the newly enacted mandatory uninsured motorist coverage was not made applicable as to her until the effective date of the statute, and therefore was, in fact, applied prospectively by operation of law.

According to this approach, between the time the law was passed in the General Assembly and signed by the Governor and the date it became effective, every insurance company in the State of Missouri writing automobile liability insurance policies covering liability arising out of the ownership, maintenance, or use of any motor vehicle in this state, was required to notify each of its insureds of the availability of the uninsured motorist insurance by reason of the newly enacted statute so that the insured could exercise his right to accept or reject such coverage in writing and pay the additional premium incident thereto, except were he to reject the coverage. Appellant, on the other hand, takes the position that it was only necessary for the insurer to notify insureds of the availability of this coverage and their right to accept or reject it at the time each of its policies came up for renewal. As respondent argues, if appellant’s position is correct, this would result in a large number of Missouri residents who operate motor vehicles on the public highways of the state doing so without uninsured motorist coverage until such time as they either had delivered or issued for delivery to them a new policy of insurance, or, their premium due date for renewal of their current policy of insurance came to pass.

While these are both arguments involving questions of the practicalities of the insurance business and the public policy behind the enactment of the law, we conclude from the phraseology of the law itself that the immediacy of the mandatory insurance was not clearly enunciated and that future compliance as automobile liability policies expired or came up for renewal was intended. Had the legislature so desired, it might have provided as the respondent argues; but, as we view the question, it did not. The entire thrust of the statute is in futuro. To hold otherwise is to interfere with contractual relationships already in existence and to write a new contract for the contracting parties during the course of performance of the existing contract. If the statute is made applicable at the commencement of the contractual relationship, or as each new period of the contract is commenced, there is less interference with the contractual relationship and more continuity permitted. Anyone desiring uninsured motorist coverage is not precluded by the statute from purchasing it even though his contract of insurance has not run its course; all he need do is to apply and pay an additional premium. Legislators are men of practical knowledge, aware of everyday business, and had they intended the result championed by the respondent, could have done so clearly and explicitly. They did not. We conclude, therefore, that plaintiff-respondent was not afforded uninsured motorist coverage by operation of law on the date of the accident, as found by the trial court. We reverse, and enter judgment for the appellant. Rule 84.14 V.A.M.R.

SIMEONE and GUNN, JJ., concur.

      . All references to § 379.203 are to RSMo.1967, Supp.

      . Defendant-appellant, further alleged as an alternative affirmative defense that if § 379.203 is applicable to provide plaintiffs uninsured motorist coverage by operation of law, it is then unconstitutional by reason of being repugnant to Article I, § 13, of the Missouri Constitution, and Article I, § 10, paragraph 1, and the Fourteenth Amendment to the United States Constitution. We are without jurisdiction to decide these constitutional issues. Art. V, § 3, Constitution of Missouri, 1945.


author: DOWD, Judge.

text:
    In re the MARRIAGE OF Victor P. CARMACK, Petitioner-Respondent, and Evelyn Carmack, Respondent-Appellant.
    No. 37703.
    Missouri Court of Appeals, St. Louis District.
    March 15, 1977.
    Motion for Rehearing and for Transfer Denied April 15, 1977.
    Application to Transfer Denied June 14,1977.

      W. H. S. O’Brien, Pestus, Hanks, Taylor & Suddarth, Clayton, for respondent-appellant.

      Charles W. Medley, Farmington, for petitioner-appellant.
   DOWD, Judge.

Appellant contests the provisions of a dissolution of marriage decree concerning child custody, division of marital property, and maintenance. Appellant and respondent will be referred to herein as wife and husband, respectively.

The parties were married on May 18, 1961. Dissolution was decreed September 12,1975. The wife’s four children by previous marriages resided with the couple, and a daughter was born to them in 1966.

The husband is employed as an electrical mechanic and has been so employed for the last twenty years. He testified that typical bimonthly paychecks totaled $754 a month. He supplements his income occasionally with odd jobs. His net income in 1974 was $13,600, or approximately $1,133 per month. Although the wife worked prior to the marriage, she has only sporatically worked since, her total employment during the marriage being one month.

The parties own a house and 35 acres of land, purchased for $9,500 and appraised at $17,000. They also own 3 automobiles including one that is inoperable, one 1971 Gremlin, and a 1970 Pontiac. No testimony was given as to the value of the cars, but loans against them total approximately $2,700. The parties also own 3 horses, life insurance worth $500, and household furnishings. Outstanding debts total approximately $7105.71.

Each party accused the other of misconduct. The wife testified that her husband was an unreliable provider, that she could not tell when checks would be returned for insufficient funds, that he threatened her and attempted to physically abuse her. He testified that she visited psychics and fortune tellers, that after these visits she would accuse him of gambling, homosexuality, keeping another woman, and playing a numbers game, that she refused to sign a joint tax return unless a dentist bill was paid, and that she wrote the president of her husband’s company and informed him that the husband had bought electrical items for personal use through the company name.

The court in its decree awarded the husband custody of the nine year old daughter and all the marital property, after payment to his wife of $3,000.00 at the rate of $75.00 per month. The husband was also ordered to pay the outstanding debts. The wife was not awarded maintenance.

We are asked to decide if the trial court abused its discretion by giving the husband custody of the nine year old daughter, by giving the husband an excessive amount of marital property, or by denying the wife maintenance. Our disposition of these three points makes it unnecessary to consider appellant’s allegation of bias on the part of the trial judge.

Supreme Court Rule 73.01 directs us to review this court tried case upon both the law and the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. The trial court’s decree is to be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo.Banc 1976); Blessing v. Blessing, 539 S.W.2d 699, 702 (Mo.App.1976). If the appellate court believes that the trial court erred in its decree, it is its duty to enter such judgment as the trial court should have entered. Blessing v. Blessing, supra; In re Marriage of Powers, 521 S.W.2d 949, 954 (Mo.App.1975). Since the record in the present case is complete as to the relevant factors including the financial conditions of the parties, we review the evidence and reach our own conclusion as to the proper judgment to be entered.

Resolution of the child custody issue affects our consideration of the division of marital property and the award of maintenance. The standard for determination of who shall have custody is the best interests of the child. § 452.375, RSMo Supp. 1976, In re Marriage of Powers, supra at 925. The trial court did not make a finding that the best interests of the child would be served by placing her with her father, and the record lacks substantial evidence to support such a finding.

Neither party was shown to be an unfit custodian by the evidence adduced at trial. Although each accused the other of misconduct, neither showed misconduct relevant to the other’s fitness to care for the child. The husband alleged that the wife attempted to convince the child that the accusations the wife made against him were true, but he also testified that she had taken good care of the child and had otherwise been a good mother. Other testimony concerning the wife’s misconduct was not relevant to the custodial welfare of the child and should not be considered in determining custody. L_E_S_ v. S_A_ E_, 507 S.W.2d 681 (Mo.App.1974). Custody awards are not to be used as punishment for marital misconduct by one of the parties to the dissolution. McCallister v. McCallister, 455 S.W.2d 31, 35 (Mo.App.1970).

Nor does the record, considered in the light of the factors the trial court was required to consider under § 452.375 RSMo Supp.1976, reveal any family circumstances or patterns to support the award of custody to the father. The father did care for the child in the evenings and occasionally on weekends during the separation. However, he did not move for an award of temporary custody during pendency of the proceedings, and did not even seek permanent custody until the day of trial. His only testimony regarding his plans to care for the child was that he intended to hire a babysitter to care for her while he was at work.

On the other hand, the wife was at home to care for the child while the couple was married and she had the child during the separation. The child was raised with the wife’s children by previous marriages and and her testimony in chambers revealed that she considered them to be her “real” brothers and sisters. There was no evidence as to the child’s adjustment to school or the health of the child involved. Nor was there any evidence that the mother had neglected or abused the child or had been anything but satisfactory in caring for the child. The child did not indicate a preference to stay with either parent.

Where, as here, the record shows no abnormal family patterns or unequal circumstances between parents, and neither parent is demonstrably unfit to be custodian, the principle that the mother is the better custodian for a child of tender years is applicable. In re Marriage of Zigler, 529 S.W.2d 909 (Mo.App.1975); S. G. E. v. R. L. J., 527 S.W.2d 698 (Mo.App.1975). This is particularly true where the child is a girl. S. G. E. v. R. L. J., supra at 703; Horst v. McLain, 466 S.W.2d 187 (Mo.App.1971). The rule is merely a judicial statement of a common understanding of normal family relationships which foster the best interests of young children, and is not a conclusive presumption. Johnson v. Johnson, 526 S.W.2d 33, 37 (Mo.App.1975); McCallister v. McCallister, 455 S.W.2d 31, 34 (Mo.App.1970). However, when the rule is not followed, there must be some evidentiary support for the court to find that a young child’s best interests are served by placement with the father. S. G. E. v. R. L. J., supra at 703; Baker v. Baker, 475 S.W.2d 130, 133 (Mo.App.1972).

Since the record before us does not show any particular circumstances that support deviation from the presumption that the mother is best able to care for the child, we hold that the child’s interests would best be served by awarding custody to the mother. Other factors support awarding custody to the mother. The child would thereby remain with her stepbrothers and stepsister. She has been in her mother’s custody during the separation and this arrangement would not be disturbed. Since we are aware that maintenance of relationships with both parents best fosters a child’s development, we hold that the father should have the care and custody of the child upon two specified weekends of each month, beginning on Friday evening at an appropriate hour and continuing until Sunday evening at an appropriate hour and for a period of at least 3 weeks during the summer months.

Appellant further contends that the award of $3,000 for the wife’s share of the marital property was erroneous, not supported by substantial evidence, an abuse of discretion, and against the weight of the evidence. The trial court did not make a finding as to the total value of the marital property. Appellant values it at $22,000; respondent at $20,000. In light of the factors the court is directed by statute to consider in the division of marital property, and our decision to grant the wife custody of the minor daughter, the trial court’s property division is erroneous.

The wife contributed to acquisition of the marital property. She testified, without contradiction, that she paid one-half of the down payment on the house, paid one-half of the house payments for 2 years prior to the marriage, and furnished the home. She contributed to the marriage as a homemaker for 12 years. The husband’s economic circumstances are far superior to the wife’s. He has twenty years work experience and his monthly income is between $754.00 and $1,133.00 a month. Both parties agree the wife has had no appreciable work experience in the last twelve years. Since we have decided she should have custody of the parties’ minor daughter, it is desirable for her to have the family home. In re Marriage of B. K. S. and D. D. S., 535 S.W.2d 534, 536 (Mo.App. 1976). While the trial court may have weighed the wife’s misconduct in its decision, conduct is only one factor to be considered under § 452.300, and is not controlling. In re Marriage of Powers, 527 S.W.2d 949, 957 (Mo.App.1975). In our judgment the wife’s conduct is not marital misconduct which justifies awarding the husband 85 to 86 percent of the marital property, particularly in view of the other relevant factors discussed above. We therefore direct the trial court to award the wife the real estate as described in its decree, the household furnishings, the 3 horses, and the 1970 Pontiac automobile. The husband should be awarded the life insurance policy and the 1971 Gremlin automobile, the 1966 Pontiac automobile, and should pay the debts and attorney fee set forth in the decree.

Consideration of the factors set forth in § 452.335 leads us to conclude that the wife is entitled to maintenance. The marital property to be awarded her in accordance with this opinion is not income producing, and the record does not reveal any separate property. Even if she were able to find employment, as respondent suggests, we must consider the fact that, as a result of our opinion herein, she has the custody of a nine-year old child, so that it is appropriate that she not be required to seek employment outside her home. See In re Marriage of Neubern, 535 S.W.2d 499 (Mo.App.1976).

The wife’s testimony established her monthly expenses as $270.00 to $300.00 a month. The husband testified to living expenses of approximately $300 a month. In addition, $149.00 is taken from his paycheck to cover a credit union loan. His monthly income averages between $754.00 and $1,133 a month.

The wife’s limited work experience and responsibility for the care of the minor child indicates that she will not be able to meet her needs independently. Dodd v. Dodd, 532 S.W.2d 885, 889 (Mo.App.1976); Nixon v. Nixon, 525 S.W.2d 835, 838 (Mo. App.1975). The award of maintenance may of course be modified if the wife acquires education or training and is able to support herself. Nixon, supra at 838. The marriage lasted for twelve years, and the wife is 45 years old. Conduct is only one factor to consider under § 452.335, and in the present case neither party was exemplary in their conduct. The wife’s misconduct is not sufficient grounds to deny her maintenance as punishment. In re Marriage of Powers, 527 S.W.2d 949, 957 n. 6 (Mo.App.1975). We believe the husband can financially bear payment of maintenance to the wife in the sum of $25.00 a week, and direct the trial court to enter an order to that effect.

Bearing in mind the financial resources and needs of husband and wife as discussed above the father’s primary responsibility for support of his child, we also find that the husband should be ordered to pay $35.00 a week to his wife for the support of their child.

In summary, we reverse the trial court’s decree of dissolution insofar as it relates to child custody, child support, marital property, and maintenance. We remand and instruct the trial court to enter a decree in accordance with the directions herein.

CLEMENS, P. J., and WEIER, J., concur.

      . Section 452.375, RSMo Supp.1976, provides that:
      “The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
      (1) The wishes of the child’s parents as to his custody;
      (2) The wishes of the child as to his custodian;
      (3) The interaction and interrelationship of the child with his parents, his siblings, and any. other person . who may significantly affect the child’s best interests;
      (4) The child’s adjustment to his home, school and community; and
      (5) The mental and physical health of all individuals involved.”

      . Section 452.330, RSMo Supp.1976, provides that:
      “. . . the Court set apart to each spouse his property and shall divide the marital property in such proportions as the Court deems just after considering all relevant factors including:
      (1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
      (2) The value of the property set apart to each spouse.
      (3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right'to live therein for reasonable periods to the spouse having custody of any children; and
      (4) The conduct of the parties during the marriage.”

      . Section 452.335, RSMo Supp.1976, provides that:

        “. . the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance
      (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
      (2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
      2. The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
      (1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
      (2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
      (3) The standard of living established during the marriage;
      (4) The duration of the marriage;
      (5) The age, and the physical and emotional condition of the spouse seeking maintenance;
      (6) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
      (7) The conduct of a party seeking maintenance during the marriage.”


author: GUNN, Judge.

text:
    Jimmie Lee WILLIAMS, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 37849.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 15, 1977.
    Motion for Rehearing and for Transfer Denied April 15, 1977.
    Application to Transfer Denied June 14,1977.
    Preston Dean, Asst. Atty. Gen., John D. Ashcroft, Atty. Gen., David L. Baylard, Jefferson City, George A. Peach, Terrence J. O’Toole, St. Louis, for defendant-appellant.
    Robert C. Babione, Public Defender, Mary Louise Moran, Jeffrey J. Shank, Asst. Public Defender, Sarah T. Harmon, St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Movant appeals from a denial of his Rule 27.26 motion to vacate the 25 year sentence imposed upon him after conviction for assault with intent to kill. Movant’s appeal raises four points of alleged error, none of which is meritorious.

Movant first argues that the conviction and sentencing under the charge of assault with intent to kill with malice aforethought, a felony under § 559.180 RSMo. 1969, instead of attempted murder, deprives him of equal protection of the laws. Movant reasons that the charge of assault with intent to kill with malice aforethought carries a range of punishment from two years to life imprisonment; that under § 556.150(2) attempted murder carries a maximum penalty of 10 years imprisonment. According to movant, the elements of the two crimes are the same; hence, the movant argues, the two crimes must bear the same penalty — in this case a maximum of 10 years imprisonment. In rejecting this point, we note that the two offenses are not the same. Assault with intent to kill with malice aforethought requires proof of an assault. See State v. Buckhanan, 416 S.W.2d 166 (Mo.1967). Actual assault is not necessarily essential to prove attempted murder. The two offenses are separate and distinct crimes. In any event, the identical contention raised here by movant was ruled on in Turnbough v. State, 533 S.W.2d 609 (Mo.App.1975), where it was specifically held that the § 559.180 crime of assault with intent to kill with malice did not fall within the purview of the § 556.150 attempt statute; that no error occurred in prosecuting under the assault statute rather than the attempt statute which carried a lesser penalty. Such is the case here.

Movant’s second and third points charge that he was prevented from presenting the testimony of Walter O’Neal, an eyewitness to the assault resulting in mov-ant’s conviction. Movant contends that the prosecutor threatened to cross-examine O’Neal on an unrelated arson charge and prosecute O’Neal on such charge if he testified. O’Neal asserted his Fifth Amendment rights and did not testify. Movant argues that the threat of improper cross-examination on the arson charge effectively removed O’Neal as a witness. The matter of the cross-examination of O’Neal was specifically dealt with and disposed of in mov-ant’s direct appeal of his conviction. In State v. Williams, 525 S.W.2d 395 (Mo.App. 1975), it was held that “[ajppellant [mov-ant] had the right to call O’Neal as [a] witness, and there is absolutely nothing in the record to indicate that if he was called and testified the trial court would not have required the cross-examination to have been kept within the authorized and permissible limits. We are not to assume that the court would not have ruled correctly on any objection made to a question issued on cross-examination. . . . Appellant had the right to call O’Neal as a witness subject to the rules applicable to all such witnesses, and there is nothing to indicate that the appellant was in any way denied that right.” Id, at 397. In view of the foregoing, we need not further consider the issue regarding the possible cross-examination of O’Neal.

As to the alleged threats of the prosecutor that he would charge O’Neal with arson if he testified, the prosecutor emphatically denied that he had made any such threats. It is for the trial court to determine the credibility of witnesses in a Rule 27.26 proceeding. Bibee v. State, 542 S.W.2d 540 (Mo.App.1976). The trial court chose to believe the testimony of the prosecutor that no threats of prosecution had been made to O’Neal to prevent his testimony, which, of course is in the trial court’s discretion. Trice v. State, 540 S.W.2d 613 (Mo.App.1976).

Finally, movant argues that although the jury was instructed at trial on accident, no self-defense instruction was given. Matters regarding instructions are trial errors, and not properly subject for review on a Rule 27.26 motion. Lee v. State, 526 S.W.2d 329 (Mo.App.1975). There was no error in the trial court’s refusing to favorably consider movant’s contention regarding the failure to give a self-defense instruction.

The judgment is affirmed.

KELLY, P. J., and JAMES R. REIN-HARD, Special Judge, concur.

      . Statutory references are to RSMo. 1969.

      . Specifically, the trial court found the prosecutor’s testimony to be creditable, and O’Neal’s not worthy of belief.


author: BILLINGS, Chief Judge.

text:
    In re the MARRIAGE OF Harry Mack CORNELL, Jr., Petitioner-Respondent, and Shirley Frerer Cornell, Appellant.
    No. 9979.
    Missouri Court of Appeals, Springfield District.
    March 28, 1977.
    Motion for Rehearing or Transfer Denied April 27, 1977.
    Application to Transfer Denied June 14,1977.

      William O. Russell, Joplin, for petitioner-respondent.
    William C. Myers, Jr., Myers, Webster & Perry, Webb City, for appellant.
    Before BILLINGS, C. J., and STONE and HOGAN, JJ.
   BILLINGS, Chief Judge.

Dissolution of marriage proceeding. Issues presented by the wife’s appeal are the lower court’s division of marital property, the monthly maintenance award to the wife, and the amount of the monthly child support for a minor child. We reverse in part and remand with directions.

Harry and Shirley were married in 1948. During the following two years while he was completing his degree at the University of Missouri at Columbia, Shirley worked as a secretary and receptionist. After Harry’s graduation in 1950 he went to work for Leggett & Platt, Inc., at its plant in Louisville, Kentucky. In 1953 he became manager of a Leggett & Platt plant in Ennis, Texas, and in that year the first of the parties’ three daughters was born.

In 1958 or 1959 Harry and several associates formulated a plan to acquire control of the company which had its main office in Carthage, Missouri. The take-over plan succeeded and the family moved to Carthage in late 1959. Harry became president and chief operating officer of Leggett and Platt in 1960. From 1960 to 1974 the number of operating plants grew from three to thirty-two. The number of employees increased from 400 to 4500. Sales and profits dramatically increased. During 1972 and 1973, Harry grossed more than $100,000 from salary, bonuses, fees and dividends. His 1974 gross income totalled more than $140,000. During the years of marriage the parties accumulated sizeable real and personal assets.

Additional facts will be noted as specific points are discussed.

Division of Property

In its division of property the circuit court first set aside to the wife her separate property, as required by § 452.330, RSMo •Supp.1975. This included a savings account of $4,468, a $5,000 certificate of deposit, 3999 shares of Leggett & Platt valued at $5.25 per share, and other stock worth $1,000. The total value of her separate property was $31,462.75. All other property was held to be marital property and was divided as shown below. Since the trial court made no findings concerning the values of the properties, the following illus-r trations set forth the valuations given by each party.

Using the wife’s values and deducting debts assigned to each party, the wife received about 29.7% of the marital property. Using the husband’s values and again deducting debts, the wife received about 32% of the marital property. She contends this was an inadequate share and that she should be awarded at least half of the marital property.

§ 452.330.1 lists four nonexclusive factors to consider in making a just division of the marital property. The legislature has left this matter to the sound discretion of the trial court and its decision should be upheld unless that discretion has been abused. In Re Marriage of Vanet, 544 S.W.2d 236, 240 (Mo.App.1976); In Re Marriage of Símpelo, 542 S.W.2d 558, 561 (Mo.App.1976). The statute requires that there be a just division of the marital property; it does not require that there be an equal division in every case. In Re Marriage of B. K. S. and D. D. S., 535 S.W.2d 534, 536 (Mo.App.1976); Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975).

The first factor under § 452.330.1 is “[t]he contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as [a] homemaker.” Although the husband was the obvious breadwinner and his efforts at Leggett & Platt were the primary source of the family’s wealth, the statute also requires recognition of the wife’s role as a mother and homemaker. Cain v. Cain, 536 S.W.2d 866, 874 (Mo.App.1976). Also not to be ignored is the fact Shirley worked for two years to support the family while Harry completed his college education. In Re Marriage of Va net, supra, 544 S.W.2d at 241.

The second consideration is the value of the property set apart to each spouse. As stated earlier, the wife was awarded separate property worth about $31,500. This is a rather insignificant amount in comparison with the marital property involved, but it does increase the net value of all property (marital and separate) received by Shirley to approximately $230-$236,000, depending upon how the properties are valued.

The next factor, the economic circumstances of the parties, has been briefly discussed above. Harry, age 46 at time of trial, has a lucrative position with Leggett & Platt and had earned over $100,000 in each of the three years prior to trial. Shirley was 45 years old and had not worked since 1953, having devoted her time to motherhood, household, civic, and social functions.

The final factor listed under § 452.330 is the conduct of the parties. Harry and Shirley first separated in October of 1971 when he moved out of the home and took an apartment. After a two-month reconciliation from January 1,1972, to March 2,1972, Harry again left the home and the parties have lived apart since. Harry admitted that after each separation he engaged in adulterous relationships with Ann, a recently divorced woman, and later began to live with Ann in her home in Joplin.

Although Ann helped Harry find an apartment in the same complex in which she lived and Harry admitted he began to have intercourse with her within thirty days after he first left Shirley, he denied any involvement with her prior to this time. Shirley believed otherwise. In any event, after he and Shirley separated, Harry began to give Ann and her children money, jewelry, and other gifts, including stock worth $18,000 which Ann liquidated and applied toward the purchase of a new home. He also gave her a piece of realty in which he had invested over $8,000. In addition, he and Ann made many out-of-town trips together. Harry testified he planned to marry Ann after his divorce from Shirley.

Harry blamed the marital break-up upon Shirley’s smoking habit, saying it disgusted him and her refusal to quit finally caused him to become impotent. He also voiced complaints that Shirley was often cold and indifferent and rejected his amorous advances. Shirley denied all these allegations, including the seriousness of her smoking, and claimed she quit before the first separation and did not resume smoking until after the reconciliation attempt failed. In regard to the smoking allegations, Harry admitted that when he first began seeing Ann she was an “occasional smoker” but claimed she “stopped immediately.”

Considering the conduct of the parties and the other factors enumerated by statute, we are forced to the conclusion that the trial court abused its discretion in awarding Harry approximately 70% of the marital property. We find no disparity in the contributions of Harry as the breadwinner and Shirley as mother and homemaker. There is a substantial disparity in the economic circumstances of the parties. Finally, on the question of the conduct of the parties, the evidence warrants a finding that Harry’s extra-marital activities with Ann were a major factor in the shipwreck of a twenty-six year marriage upon the rock of dissolution.

§ 452.330 calls for a just division of the marital property after considering all relevant factors. In our opinion, and we so hold, the trial court’s decree failed to meet that standard in the division of marital property. Under prior law the parties would have become tenants in common of jointly owned property at divorce. Professor Krauskopf [A Theory For “Just” Division of Marital Property In Missouri, 41 Mo.L.Rev. 165 (1976)] suggests the background for § 452.330 reveals two major guiding principles inherent in the statute: “first, property division should reflect the concept of marriage as a shared enterprise similar to a partnership; and, second, property division should be utilized as a means of providing future support for an economically dependent spouse.” 41 Mo.L.Rev. at 165.

We recognize there is no pat formula to be followed in the division of marital property and what may seem just in one case may be unjust in another. Nevertheless, applying § 452.330 to the facts and circumstances of this case, we believe that to reach a just division of the property accumulated by the parties to this marriage the lower court’s order of division must be modified by increasing the number of shares of Leggett & Platt stock to Shirley by 20,597 shares and reducing the number of shares of said stock awarded to Harry by a like amount. Of the marital property Shirley will then have 30,597 shares of the Leggett & Platt stock and Harry will have 77,661 shares. Taking the agreed values of the properties listed earlier and averaging the few disputed values, the award of these additional shares to Shirley, together with her non-marital property, will result in a total net value to Shirley of $322,760.67 and a total net value to Harry of $322,756.50. The remainder of the division of marital property is affirmed.

Maintenance Award

On the issue of maintenance for Shirley the trial court made the following order:

“The petitioner [husband] shall pay to the Respondent [wife] the sum of $1,700.00 per month as and for her maintenance for a period of twelve (12) years; and thereafter the sum of $1,200.00 per month for a period of five (5) years; and thereafter the sum of $600.00 per month for a period of five (5) years, at the end of which time maintenance payments shall terminate.”
* * % * * *
“The foregoing order for maintenance for the first twelve years in the amount of $1,700.00 per month is made by the Court assuming that Respondent chooses to live in the matrimonial home which the Court has awarded to her, and if she chooses not to do so, then the Court being advised of the disposition of the matrimonial home and the removal therefrom of the Respondent and the child, Kathy, the Court would on its own motion reduce the monthly payments from $1,700.00 to a sum that would be appropriate under the circumstances that would then and there exist upon Respondent’s moving from the matrimonial home.”

Shirley contends the initial $1,700 monthly award and future reduction thereof is inadequate, unjust, and erroneous. She requests a sum of not less than $2,878 per month with no provision for decreasing or terminating maintenance in the future.

In answer to interrogatories Shirley stated basic expenses were about $17,000 in 1971 and $21,000 in 1972. Her trial exhibit showed home and household expenses for the years 1972-74 ranged from $27,000 to $34,000. Another trial schedule of estimated maintenance expenses required by Shirley and her minor daughter projected annual expenses of $38,000.

Admittedly, the parties established a high standard of living during the marriage. However, there was no clear proof of what sums Shirley needed to maintain herself in a similar manner, and we believe a $1,700 monthly award is supported by the evidence. § 452.335 enumerates seven factors to consider in arriving at a just maintenance award and most of these have been touched upon in our discussion concerning the division of marital property. Further, our modification of the division of marital property is a factor for consideration in reviewing this issue and we affirm the $1,700 monthly award to Shirley for maintenance.

The trial court fell into error in “stair-stepping” the maintenance award. § 452.-335 provides that the “maintenance order shall be . for such periods of time as the court deems just . . . In Re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975) recognized that this language authorizes the trial court to make maintenance awards of limited duration, but held such awards must be based not upon mere speculation but upon some evidence of a change in the financial conditions of the parties. 527 S.W.2d at 956. In LoPiccolo v. LoPiccolo, 547 S.W.2d 501 (Mo.App.1977) (Filed February 15, 1977), the court said, 547 S.W.2d at 505:

“If the evidence indicates that the dependent spouse’s financial prospects will not improve dramatically in the future and the means of the spouse providing maintenance are not likely to decrease in the future, the trial court abuses its discretion when it speculates that the original maintenance award will no longer be required in the future. In Re Marriage of Powers, supra at 955. Maintenance should not be prospectively decreased or terminated if there is no evidence or reasonable expectation that the circumstances of the parties will be markedly different in [the] future.”

Here, there was no evidence or reasonable expectation that the circumstances of Shirley and Harry will be markedly different in 12 years, 17 years, or 22 years. Future conditions and circumstances of the parties may well necessitate a revision of the maintenance order in years to come, but any such revision or modification is to be based on evidence, not speculation or conjecture. The “stair-stepping” provision for decreasing or terminating the award is ordered set aside. See In Re Marriage of Valleroy, 548 S.W.2d 857 (Mo.App.1977) (Filed March 15, 1977).

Child Support

Three daughters were born of the marriage. The two oldest were of age and pursuing careers at the time of trial. Kathy, age 15 and a sophomore in high school, resided with and her general custody was vested in her mother. The trial judge ordered the father to pay child support of $250 monthly.

We have reviewed the evidence on the question of support for the minor child in light of the six factors enumerated in § 452.340 and have concluded that the award is not so inadequate as to constitute an abuse of discretion by the trial court. The decree in that respect is affirmed.

The judgment is reversed in part and the cause remanded for further proceedings consistent with this opinion.

All concur, except TITUS and FLANI-GAN, JJ., not participating.

      . All statutory references are to RSMo Supp. 1975.

      . Neither party contests the finding that the remaining property is marital property.

      . If the total values of the assets are used with no deductions for the debts assigned to the parties, the wife received about 28.3% of the marital property under her valuations and about 30% under the husband’s valuations.

      . According to net worth statements prepared by Harry and received as exhibits, reflecting assets owned jointly and individually, approximately five-eighth’s of the more than $800,000 combined net worth of the couple was jointly owned.

      . These computations exclude the L & P Investment Co., stock and the disputed values assigned thereto by the parties. The court awarded 18,050 shares to Shirley and 20,911 shares to Harry.


author: HOGAN, Presiding Judge. PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Chyral Lynn PINKUS, Defendant-Appellant.
    No. 9972.
    Missouri Court of Appeals, Springfield District.
    March 29, 1977.
    Motion for Rehearing or Transfer Denied April 29, 1977.
    Application to Transfer Denied June 14,1977.

      James W. Newberry, Springfield, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.
   HOGAN, Presiding Judge.

About 9:00 p. m. on August 26, 1974, Emmanuel Ernest Spickard was discovered lying on a parking lot in the City of Springfield, Missouri. He had been fatally stabbed. By amended information filed December 9, 1974, defendant Chyral Lynn Pinkus was charged with homicide committed during the attempted perpetration of a robbery, an offense then denounced as first-degree murder by former § 559.010, RSMo 1969. Upon trial to a jury in the Circuit Court of Greene County, defendant was found guilty and her punishment was fixed at life imprisonment. She appeals.

Defendant, 24 years of age at trial time, lived at Billings, Missouri, with her three-year-old daughter and one Bob Harris, an unemployed bricklayer. During the evening of August 26, defendant, her daughter and Harris drove to a parking lot adjacent to the Battlefield Lanes, a bowling alley located in south Springfield. Defendant was armed with a Government Issue M-6 bayonet. The M-6 bayonet has a tapered knife blade 6V2" long, 7/s" wide at the base. It is milled from ¾6" steel. Defendant’s evidence was that she carried this weapon, tucked in her boot, as a means of self-protection.

Two versions of the operative facts were given, one by Harris, testifying as an immunity witness, the other by the defendant. Harris testified that he and defendant were “just drivin’ around”, and about 9:00 p. m. they went to the Battlefield Lanes to see if Harris’ ex-wife was still employed there. Harris was sitting on the right — the “passenger seat” — holding defendant’s child, who was asleep. Harris testified, without objection, that defendant stopped her automobile, said “she was going to rip someone off” and got out of the car. Defendant then “just wandered off” on the parking lot; two or three minutes later, Harris saw the defendant “off to [his] left”, fighting with Spickard. Harris saw Spickard “throw [defendant] on the ground by her hair”, became angry, and got out of the car. Harris heard no outcry but was afraid Spickard “was going to hurt” the defendant. Spickard “swung at [Harris] and missed [him] and he swung at [him] again and hit [Harris] in the head and tore [Harris’] shirt off so [Harris] hit him.” Spickard fell to the ground and Harris ran back to defendant’s car. Harris did not intend to take Spickard’s wallet, but the defendant told him to go back and get it, and he did so.

Harris further testified that he saw no knife while he was fighting with Spickard. After he and defendant left the parking lot, however, defendant complained that she had been injured, and “finally [defendant] told [Harris] she went up behind the man, stabbed him in the back.” Defendant handed Harris the bayonet; Harris “dropped it on the floor.” Later, at the defendant’s house, defendant boasted that she had stabbed Spickard “for the hell of it”, stating that “it was a good clean drive, [defendant] didn’t hit any bones.” Defendant further stated “she ran it all the way to the handle.” Harris and defendant divided the contents of Spickard’s wallet — $41.00.

Defendant’s account of the killing was that she had driven onto the Battlefield Lanes parking lot to determine what time it was because her clock was not working properly. Defendant left the automobile to relieve herself on the parking lot. Shortly after returning she saw a man coming in the general direction of her automobile; Harris asked her to get out to inquire what time it was. Defendant approached Spick-ard, Spickard asked defendant, “What do you want?”, and defendant asked, “Do you have the time?” Spickard told defendant, “It’s 9 o’clock.” Spickard then turned and saw Harris sitting in the car a short distance away. Defendant’s testimony was that Spickard thereupon asked defendant what she wanted, grabbed her by the hair, and threw her to the ground. Defendant tried to arise twice, but each time Spickard “threw [defendant] down again by the hair.” Spickard then pushed defendant to the pavement and fell on top of her; then, according to the defendant, Spickard began beating her head “sideways” across the asphalt. Defendant’s bayonet fell out of her boot; she raised her right arm over Spick-ard’s body and made “a downward stroke” with the bayonet. Spickard then arose, telling defendant if she did “that again” he would kill her. Harris then came to defendant’s aid and struck Spickard. Harris then said, “Let’s get the hell out of here.” Defendant took the bayonet back to the car, and Harris threw it on the floorboard. Defendant denied that she had said she intended to “rip somebody off”, and denied she had said she drove the bayonet “all the way in to the handle.”

The State had evidence establishing the crime in retrospect, so to speak. An autopsy was performed on the victim’s body on August 27. The autopsy surgeon testified that he found four external wounds, one at the outside of the left eye, one through the left ear lobe, one through the tragus of the left ear and another, similar wound inside the external ear. All four wounds were about ⅝" long; all penetrated to the bone. All were, in the surgeon’s opinion, inflicted by a sharp knife of some sort. The victim also had a split upper right lip. There were scraping wounds on the right elbow and right ankle indicating a fall to the pavement. The autopsy also disclosed one transverse wound, 2" wide inflicted between the 6th and 7th ribs on the right side of the victim’s back. Upon dissection, the wound was found to be five to six inches deep. Further dissection showed a laceration of the right lung at the junction of the upper and middle lobes, including a laceration of the right pulmonary artery. The right chest was full of partially liquid and partially clotted blood. The autopsy surgeon testified without objection that in his opinion the victim’s back wound had been inflicted at a right angle; that the fatal instrument had been moved laterally in the victim’s body, and that massive hemorrhage from the pulmonary artery was the cause of the victim’s death. Further, this physician’s opinion was that the type of wound he found would induce shock from blood loss within five minutes and would be fatal within 30 minutes. He further noted that the fatal instrument passed through no bone or cartilage.

From the testimony of the victim’s personal physician, it was established that he was 81 years of age at the time of his death, that he was 5'6¾" tall and weighed about 140 pounds. Both physicians indicated the victim appeared to be in good health, considering his advanced age. Other facts will be noted, as material, in the course of this opinion.

Defendant’s counsel on appeal has meticulously briefed and argued 13 assignments of error. Some of the contentions made are extremely strained and tenuous, for example, defendant’s argument that venireman Richard D. Marlin should not have been stricken for cause. The record indicates, in point of fact, that venireman Marlin approached the bench following voir dire examination and indicated that because of previous drug abuse he had difficulty concentrating, had “visions”, and in general “felt sorry for people” because he “had a pretty rough life, too.” The court, as indicated, excused Marlin for cause. Manifestly, defendant had no right to be tried by an incompetent juror, and the point is patently without merit. A good many other allegations of error of the same order of merit are advanced, obviously because counsel recognizes that defendant’s appeal to this court is her appeal of right. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). We commend counsel for his thoroughgoing discharge of his duty to present and argue every point which can be presented without compromising professional standards, see State v. Gates, 466 S.W.2d 681, 683 (Mo.1971); State v. Barnes, 517 S.W.2d 155, 167-170 (Mo.App.1974), but it does not follow that we must recite and discuss each point advanced. The record has been three times read and twice abstracted in this court, the defendant’s claims of error have been fairly presented, and we confine our discussion to those arguments which merit serious consideration.

The first of these is defendant’s argument that the trial court erred in admitting the bayonet, the victim’s wallet, several items of clothing and two briefcases in evidence, because these items were seized pursuant to an unlawful search. The defendant admittedly consented to the search in writing, and the only issue here is whether her consent was voluntarily given or was the product of coercion. Defendant argues that her consent was not voluntary because 1) at least one officer’s weapon was exposed to view; 2) she was told that if she did not consent to the search, a search warrant would be obtained; 3) at least nine officers were present when she was taken in custody and the search was conducted, and 4) a so-called “confrontation” took place at defendant’s mother’s home.

The trial court held an extensive hearing on the defendant’s motion to suppress. Contrary to the assumption made by both parties, no ruling was ever made on the motion, and when the demonstrative evidence now complained of was offered, trial counsel contented himself with remarking that he had no objection beyond those which he had already advanced. We doubt the point is preserved for review, see State v. Young, 534 S.W.2d 585, 588 (Mo.App.1976); State v. Ealey, 519 S.W.2d 314, 320 (Mo.App.1975), but because defendant insists her constitutional rights were infringed, we prefer to notice it.

To determine whether a criminal defendant has voluntarily consented to a search, a court looks to the “totality of all the circumstances”, Schneekloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 863 (1973), which means, we suppose, that the presence or absence of persuasion or compulsion is always subjective. State v. Witherspoon, 460 S.W.2d 281, 288-289 (Mo.1970). State v. Rush, 497 S.W.2d 213, 215 (Mo.App.1973). Factors to be considered are the number of officers present, the degree to which they emphasized their authority, whether weapons were displayed, whether there was any fraud on the part of the officers, the acts and statements of the person giving consent, and other matters comprising the so-called “totality of the circumstances”. State v. Berry, 526 S.W.2d 92, 98 (Mo.App.1975); State v. Rush, supra, 497 S.W.2d at 215.

The defendant claims that at least one officer’s weapon was exposed; this, she says, was a coercive factor. The record discloses that the arresting officers were armed, but defendant’s own testimony was that no weapons were displayed. The fact that the officers were carrying sidearms does not constitute coercion in the absence of a display of those weapons. State v. Berry, supra, 526 S.W.2d at 99; cf. Drummond v. United States, 350 F.2d 983, 988-989[5] (8th Cir. 1965), cert. denied, Castaldi v. United States, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542 (1966). Defendant also complains that nine officers were present at her house when the search was conducted. The number of officers present is one factor bearing on the existence of coercion, State v. Rush, supra, 497 S.W.2d at 215, but this factor alone is not determinative, and the presence of a group of officers upon the premises, without more, does not render her consent involuntary. United States v. Peterson, 524 F.2d 167, 178 (4th Cir. 1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976), and 424 U.S. 925, 96 S.Ct. 1136, 47 L.Ed.2d 334 (1976). The defendant’s argument concerning a “confrontation” is no more convincing. What the record shows is that the defendant was allowed to consult her mother before authorizing the search. Defendant’s mother stated that she had no objection to a search and saw no reason why defendant should object. The so-called “confrontation” in no sense indicates police coercion. Defendant now says she would not have consented if the arresting officers had not told her they would obtain a search warrant if she did not consent. The State produced evidence that the defendant was told no such thing, and there is no evidence of any suggestion of dire consequences if defendant did not consent. In view of the evidentiary showing that defendant was advised by at least two officers that she was not obliged to consent, nor sign the written consent which was prepared, and in view of the fact that defendant was advised of her rights after she was taken in custody and before her premises were searched, the statement, if it was made, that a warrant would be obtained if she did not consent does not amount to coercion. Fairly read, the record shows 1) that defendant’s consent was given at her home, “not in the confines of the police station”, see United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598, 609 (1976); 2) that she had not been subjected to custodial interrogation and no threats were made; 3) the arresting officers did not undertake any show of force and did not emphasize their authority; 4) there was no evidence of any fraud or misleading on the part of the officers; 5) the defendant stated she wanted to give written consent after being advised she was not obliged to do so; 6) the defendant was alert and appeared to be aware of what she was doing; 7) the defendant was cooperative and voluntarily handed the murder weapon over to the officers present. Considering the “totality of the circumstances”, the defendant’s consent to the search was entirely voluntary.

Two further points argued by the defendant may be considered together. She argues that the trial court erred in receiving certain in-custody statements made by her prior to the time she confessed in writing, and that there was similar error in admitting a letter defendant wrote to Harris while she was in custody awaiting trial. Defendant does not seriously contend, nor could she, that the evidence complained of was not admissible; inculpatory statements of comparable tenor and effect were held properly admitted in evidence in State v. Seals, 515 S.W.2d 481, 484-485[l] (Mo.1974), and State v. Spica, 389 S.W.2d 35, 46-48[17], 49-50[20] (Mo.1965), cert. denied 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966). The whole substance of the two points raised is that the defendant was prejudiced because the oral statements and the letter received in evidence show that she uses the word “fuck” in various forms and contexts, as part of her usual vocabulary. The word complained of, according to the O.E.D., was “until recent times not often recorded in print but frequent in coarse speech”. 1 Oxford English Dictionary 1170 (Supp.1972). As a verb, the word appeared in English as early as 1503, and is now, according to the O.E.D., in common coarse use as an adverb and participial adjective. Evidence otherwise admissible is not rendered inadmissible because it may tend to prejudice and inflame the jury against a defendant, State v. Tillett, 233 S.W.2d 690, 692[9] (Mo.1950), and the jury was entitled to hear and read this defendant’s admissions as they were made, not after they had been expurgated to spare her character. State v. Spiea, supra, 389 S.W.2d at 49-50[20]. The admission of defendant’s incul-patory statements was not erroneous for the reason assigned.

A complaint of no greater import is that the trial court erred in failing to grant a mistrial because the State introduced evidence tending to prove defendant’s involvement in other, unrelated crimes.

In the course of the search which we have discussed the arresting officers seized two briefcases. These briefcases were discovered to have been stolen. Defendant denied having taken them and professed ignorance of their presence in her house. During the trial, however, Harris was asked if he had “ever seen [defendant] steal before”. Harris answered that he had, “several times”. The State inquired further about these incidents and Harris testified — without objection — that he had seen the defendant steal the briefcases at two Springfield restaurants. Later, Officer Jared, one of the arresting officers, was questioned about the two briefcases; Jared stated, “they were taken out of car burglaries approximately a week and a half or two weeks prior to the time we recovered them in [defendant’s] home.” At this point, defendant moved a mistrial. The trial court denied the motion, and counsel requested the jury be admonished to disregard Jared’s testimony concerning the briefcases. The trial court did so. Having failed to raise this point in her motion for new trial, defendant asks us to consider it as plain error pursuant to Rule 27.20(c), V.A.M.R. We have done so, and find no plain error. Jared’s testimony indicating the commission of other, unrelated offenses by the defendant was merely cumulative to other testimony received without objection, and the error, if any, is harmless. State v. Burnside, 527 S.W.2d 22, 25[5] (Mo.App.1975).

A further claim of error advanced by the defendant is that the trial court erred in admitting Exhibits 5, 15 and 16, which were photographs of the victim. Exhibit 5 is a black and white photograph of the victim lying on his back on an ambulance cot which has been set on an operating table. This photograph clearly shows the multiple stab wounds about the left side of the victim’s head which were described by the autopsy surgeon. Exhibit 16 is a photograph of the victim on the same ambulance cot, showing the location of the fatal wound and indicating considerable hemorrhage from that wound. Exhibit 15 is a picture of the deceased upon an autopsy table. Taken with the testimony of the autopsy surgeon, as it was, Exhibit 15 clearly shows the severity of the wound which was the cause of death. Defendant’s objection is particularly directed to Exhibit 5, which shows the head wounds; in fact, in her brief, the defendant concedes that “one and possibly two of these exhibits were admissible."

We find this claim of error without merit. We agree that a photograph of the victim in a homicide case may be so gruesome and inflammatory that its probative value is outweighed by the prejudicial effect it has on the jury. In such cases the photograph or photographs should be excluded. State v. Floyd, 360 S.W.2d 630, 632-633[l-3] (Mo.1962). What the defendant overlooks is that exhibits 5, 15 and 16 were offered and received for quite conventional purposes. Photographs are admissible to show the degree of the crime, State v. Floyd, supra, 360 S.W.2d at 633[4]; Annot., 73 A.L.R.2d 769, 831-832 (1960), and to refute the defendant’s plea of self-defense. State v. Aubuehon, 394 S.W.2d 327, 331[5] (Mo.1965); State v. Perkins, 382 S.W.2d 701, 704-705[6,7] (Mo.1964); State v. Floyd, supra, 360 S.W.2d at 633[4]. In her confession and on the witness stand, defendant claimed she killed Spickard in an attempt to ward off an unprovoked attack. The State’s position was that Spickard was deliberately killed. Taken as a group, the photographs show that the victim was subjected to a vicious attack with a knife and are thus relevant on the issue of malice; considered with the evidence that the victim was an 81-year-old man who weighed only 140 pounds, the photographs tend to negate defendant’s plea of self-defense. The court did not err in admitting the photographs.

The defendant further argues that an instruction on circumstantial evidence should have been given. The State’s case did not rest wholly on circumstantial evidence; part of its case, including defendant’s admissions, was direct and the trial court did not err in refusing the requested instruction pertaining to circumstantial evidence. State v. Stevens, 467 S.W.2d 10, 25[23 — 25], 50 A.L.R.3d 96, 115 (Mo.1971), cert. denied, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971).

Defendant further asserts that the trial court erred in refusing to grant her a new trial because of newly discovered evidence. This point was first raised in defendant’s amended motion for new trial, which was timely filed. Evidence was heard on the motion. The substance of the evidence received from four witnesses, three of whom were inmates of the Missouri State Penitentiary, was that during his confinement in the Greene County Jail, Harris confessed that he, not defendant, struck the fatal blow. Defendant testified, but her testimony is not such as to absolve her from active participation in the crime. She was present, she was in possession of the bayonet, and she stated positively that she “just swung” at the victim with the bayonet. The trial court rejected defendant’s evidence on the motion for new trial on the grounds 1) that it was not credible and not worthy of belief, and 2) that the testimony only affected Harris’ credibility as a witness and therefore was not sufficient to warrant a new trial.

The trial court acted well within its discretion in denying the motion for new trial upon the grounds stated; there was no actual recanting testimony, and the trial court was not obliged to accept the defendant’s evidence at face value. State v. Harris, 428 S.W.2d 497 (Mo.1968). The real difficulty with defendant’s position regarding a new trial, however, is that in order to obtain a new trial on the basis of newly discovered evidence, a criminal defendant must show that the newly discovered evidence would probably produce a different result on a new trial, State v. Harris, 413 S.W.2d 244, 247 (Mo.1967); State v. Stroud, 362 Mo. 124,127-128, 240 S.W.2d 111, 113[5] (Mo.1951); Duncan v. State, 520 S.W.2d 123, 125[4] (Mo.App.1975), and no such showing was made here. The most that was shown is that defendant and Harris were unsure who had inflicted the fatal wound. The distinction between principals and accessories has been abrogated in this state, § 556.170, RSMo 1969, all persons who participate in a crime may be charged, tried, convicted and punished alike, State v. West, 484 S.W.2d 191, 195 (Mo.1972), defendant’s presence and participation were not denied upon the motion for new trial, and it is immaterial whose hand struck the very blow which took Spickard’s life. State v. Tolias, 326 S.W.2d 329, 333-334 (Mo.1959); State v. Chernick, 278 S.W.2d 741, 746 (Mo.1955).

The final two points for consideration are a) the sufficiency of the information, and b) the sufficiency of the evidence to support the verdict of the jury. Read as a whole, the amended information charged that defendant, on August 26, 1974, did “wilfully, unlawfully and feloniously deliberately, premeditatedly and of her malice aforethought cause the death of Emmanuel Ernest Spickard by striking him and stabbing him with a bayonet, during the commission of a felony, to-wit: attempted robbery, from which wounds the said Emmanuel Ernest Spickart [sic] did die . .” The information is not artfully drawn, but it charges that the defendant inflicted a wound from which the victim died, and includes allegations of deliberation, premeditation and malice. The information is sufficient to charge murder in the first degree. State v. Harley, 543 S.W.2d 288, 292[5,6] (Mo.App.1976); State v. Kerr, 531 S.W.2d 536, 539[1,2], [3] (Mo.App.1975). The con-clusional averment that the murder was committed during the commission of an attempted robbery may and should be disregarded as surplusage. State v. Meyers, 99 Mo. 107, 114,12 S.W. 516, 517 (1889); State v. Harley, supra, 543 S.W.2d at 292[6],

The sufficiency of the evidence is not seriously challenged. The defendant admitted stabbing the victim; she maintained she did so in self-defense, but of course the jury was not bound by that explanation. The jurors were entitled to accept or reject any part of her admission or her testimony. State v. Deyo, 358 S.W.2d 816, 822[9] (Mo.1962). Given the general propositions that the effects of conflicts or inconsistencies in any testimony are questions for the jury, State v. Turnbough, 497 S.W.2d 856, 858[5] (Mo.App.1973), and that a jury may believe all or none of the testimony of a witness, or accept it in part or reject it in part, just as they may find it to be true or false when considered in relation to other testimony and the facts and circumstances of the case, State v. Wynn, 391 S.W.2d 245, 247[1] (Mo.1965); State v. Berry, supra, 526 S.W.2d at 95[5], the jury in this case could find either that the defendant killed Spickard in self-defense, or that she wantonly took his life while attempting to rob him of $41. By their verdict, they chose the latter alternative, and their verdict is amply supported by the evidence. Accordingly, the judgment is affirmed.

All concur.

ON ALTERNATIVE MOTION FOR REHEARING OR TO TRANSFER TO SUPREME COURT

PER CURIAM.

The defendant has timely filed an alternative motion for rehearing or to transfer the appeal to the Supreme Court, pursuant to Rule 84.17, V.A.M.R. Defendant asserts: 1) that this court overlooked a material matter of fact and law in failing to consider her 12th assignment of error, specifically that the trial court erred in refusing to permit her to introduce the testimony of Dr. George Parlato, a practicing psychiatrist; 2) that this court erred in holding that defendant’s consent to the search of her dwelling was made voluntarily, and 3) that this court erred in holding there was no prejudicial error in permitting the State to introduce evidence tending to implicate the defendant in the commission of other, unrelated offenses. Points two and three are mere rearguments of issues determined by the principal opinion; they must be disregarded. Rule 84.17, V.A.M.R. Point one was not overlooked by this court; our conclusions were simply not articulated in the principal opinion. We concluded there was no merit in assignment of error number 12, and perhaps, again in view of the fact that defendant has received a life sentence and this is her appeal of constitutional right, we should address defendant’s claim of error on this motion for rehearing. We note that this assignment of error was not preserved in the motion for new trial; it is before us only as a possible matter of plain error under Rule 27.20(c), V.A.M.R.

It was developed during the trial that Harris, at the request of his counsel, was examined by Dr. George Parlato, a practicing psychiatrist, to determine whether he was competent to stand trial. Upon cross-examination, Harris was asked if he had had psychiatric examination and treatment; he responded that he had. Later, and before the defendant testified, her counsel asked to call Dr. Parlato as a witness. Defendant’s trial counsel indicated that Dr. Parlato would testify that Harris had a tendency to become “extremely tense and agitated” in situations involving physical violence, and would further testify that Harris placed his own conduct in as favorable a light as possible. The State objected on the ground that such testimony would introduce a collateral issue, and upon the ground that “this doctor has only seen this young man one time.” The court inquired whether defendant’s counsel based his offer on Dr. Parlato’s report; counsel answered “yes”. The court asked about a particular sentence which read: “[Harris] was quite persistent in disclaiming any knowledge of [defendant’s] intention to rip somebody off in regards to the instant offense. He tries to place himself in as favorable a light as possible. For instance, he offered me a cigarette when talking about Chyral’s alleged activities.” Counsel stated he would offer the whole sentence, except the part about cigarettes. The State objected on the ground that Dr. Parlato’s testimony would not constitute “direct evidence of [Harris’] reputation for truth and veracity.” Counsel for Harris, who was present, objected to the introduction of any evidence based on Dr. Parlato’s examination because any statements made by Harris would be privileged by the operation of § 552.020, para. 9, RSMo Supp. 1975. Without specifying its reason, the trial court refused to allow the defendant to call Dr. Parlato. Defendant now suggests that denying her the benefit of Dr. Parlato’s testimony amounted to a manifest injustice.

The real difficulty with this point, and the reason it was not specifically discussed in the principal opinion is that defendant’s argument has far outrun the record. Apparently Dr. Parlato’s examination and report were made pursuant to § 552.020, RSMo Supp. 1975, and apparently that report was before the trial court but it is not before us, sealed, under protective order or otherwise. Perhaps it is possible in the arcane world of modern psychiatry to determine whether or not a person is a soeiopathic or pathological liar in one examination, but this record does not demonstrate that Dr. Parlato arrived at any such conclusion. We will concede that the existence of mental derangement may be shown to discredit a witness provided it affected the witness at the time of the incident testified to, or while he is on the stand or in the meantime so as to cripple his powers of recollection. 3A J. Wigmore, Evidence § 932 (Chadbourn rev. 1970), and see United States v. Hiss, 88 F.Supp. 559, 560[2] (D.C.N.Y.1950); Fries v. Berberich, 177 S.W.2d 640, 643-644[8-10][11-13] (Mo.App.1944). It should appear clearly, however, that the expert’s observation of the witness was sufficient for the expert to form a reasonably certain opinion, Annot., 20 A.L.R.3d 684, 697-698 (1968), and no such showing was made here. In any event, and quite apart from questions of privilege, we believe the admission of such expert testimony is a matter resting in the discretion of the trial judge, and we find no abuse of that discretion, much less manifest injustice in this case. United States v. Barnard, 490 F.2d 907, 912-913[11-14] (9th Cir. 1973), cert. denied 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974).

The motion for rehearing is denied; the motion to transfer to the Supreme Court is denied.

      . The statute read, in pertinent part: “[E]very homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem shall be deemed murder in the first degree.” (Emphasis added)

      . We are inclined to think the privilege conferred by § 552.020, para. 9, may be more extensive and complex than defendant argues, see, e. g., United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975), (construing 18 U.S.C. § 4244, from which the language of § 552.020 is in part taken), but we do not here examine the question of privilege.