author: PER CURIAM:

text:
    L. M. COLEMAN, Plaintiff-Appellant, v. John DUNCAN and Jerry Bartle, d/b/a J. B. Implement Co., Defendants-Respondents.
    No. 9817.
    Missouri Court of Appeals, Springfield District.
    July 20, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Denied Aug. 9, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Kenneth W. Shrum, Marble Hill, for plaintiff-appellant.
    John Z. Williams, Northern, Williams & Smallwood, Rolla, for defendants-respondents.
   PER CURIAM:

At an advertised public auction held by defendant Jerry Bartle, d/b/a J. B. Implement Co. and described in the printed sale bill as “owner,” a hammerless auctioneer (with the declaration “sold”) struck off a D-7 tractor to plaintiff upon acceptance of the latter’s $2,050 bid. Although the D-7 tractor was listed on the printed sale bill (along with some 200 other items of equipment) without indication that it belonged to anyone other than defendant Bartle, the tractor was actually owned by defendant Duncan. As later explained by defendant Bartle, a few items belonging to his friends and customers had been included in the auction “as a courtesy deal.” No sale conditions were contained in the sale bill. After the D-7 tractor was struck off and while plaintiff was attempting to make payment of his bid, defendant Duncan, as owner of the tractor, stated that he would not sell the tractor for the amount of plaintiff’s bid which had been accepted by the auctioneer. Plaintiff’s tender was refused and he brought the instant action to recover damages for alleged breach of contract. Following a bench trial and judgment for defendants, plaintiff appealed. The trial court did not make written findings of fact or conclusions of law.

The auction site consisted of a two- to four-acre tract. The selling commenced near 9:30 a. m. and the D — 7 tractor was not struck off to plaintiff until close to 4:30 p. m. Some “miscellaneous items” were sold before the sale of “bigger merchandise and hard items” was undertaken. When the second truck was put up for sale, defendant Bartle took the speaker from an auctioneer and announced, according to his testimony, that “ ‘There are a few items at the sale here today that does [sic] not belong to me or J. B. Implement Company. The stuff that belongs to J. B. Implement Company we are definitely going to try to sell if you will get in and bid . but these other items that belong to other people . . [t]hey have the right to reject any or all bids on these items.’ ” One of the auctioneers said the announcement made by defendant Bartle was “that there were several items in the sale he did not own, they were assigned by customers and friends, they would have the right to ‘No Sale’ them if they weren’t satisfied with the price.” Plaintiff and his companion at the sale testified they had heard no announcements to the effect related by defendant Bartle and the auctioneer, and indicated the possibility that they had arrived at the auction site after the averred announcements had been made.

With possible exception of a cultivator and some planters, the “few items” or “several items” being offered at the auction which belonged to persons other than defendant Bartle were never described to the bidders or known to be such by the auctioneers. No announcement was made prior to offering the D-7 tractor that it was not owned by defendant Bartle or that it was subject to the owner’s right to reject bids. Both defendants were close by when the auction of the tractor was taking place, but neither said anything regarding its ownership or that its sale was subject to any condition.

The basic statute governing sales by auction is § 400.2-328, V.A.M.S. As pertinent here, it states: “(2) A sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner. ... (3) Such a sale is with reserve unless the goods are in explicit terms put up without reserve. In an auction with reserve the auctioneer may withdraw the goods at any time until he announces completion of the sale. In an auction without reserve, after the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn unless no bid is made within a reasonable time.

At the particular auction under consideration the goods were not “in explicit terms put up without reserve.” Therefore, we may uncomfortably assume the auction was one “with reserve” since that “ ‘is the normal procedure’ ”. Drew v. John Deere Company of Syracuse, Inc., 19 A.D.2d 308, 241 N.Y.S.2d 267, 270 (1963). We say “uncomfortably assume” because it could be logically argued that defendant Bartle’s announcement, ante, would justify an interpretation that the auction, as it pertained to goods owned by him was one “without reserve.” 1 Williston on Contracts, § 29, at p. 69. As indicated by subsec. 3 of Sec. 400.2-328, supra, unless otherwise provided, the owner’s right at an auction with reserve to reject any and all bids must be exercised before acceptance by the auctioneer of the successful bid. The auctioneer is the seller’s agent, whose act of accepting a bid is binding on his principal, and the seller has no right to reject a bid once it has been accepted and the bidder has delivered or tendered the required payment. Collins v. Heitman, 225 Ark. 666, 284 S.W.2d 628, 632[3-5] (1955).

Assuming, as we have done, that the major part of the auction was one with reserve and governed by the statute and general principles just noted, what of the auction as it related to the sale of items belonging to persons other that defendant Bartle who allegedly claimed the right to “No Sale” or reserved the right to reject any and all bids? Albeit was said in 1 Corbin on Contracts, § 108, at p. 483, a statement “that ‘the privilege is reserved to reject any and all bids,’ ... is merely evidence that the goods are not being offered ‘without reserve,’ ” or in other words that the sale is “with reserve,” there appears to be authority that such a reservation sets a sale apart from the garden variety of auctions with reserve.

“It is the right of the owner of property sold at auction to prescribe, within reasonable limits, the manner, conditions, and terms of sale [Jones v. Tennessee Valley Authority, 334 F.Supp. 739, 743[2] (D.C.Fla.1971)]. Usually the auctioneer, at the time and place appointed for the auction, announces these terms and conditions which, when so announced, are generally deemed to supersede all others and to bind the purchaser even though he did not hear or understand the announcement, or was not present at the time of the announcement and such terms [or conditions] were not brought to his actual attention.” 7 Am.Jur.2d, Auctions and Auctioneers, § 18, p. 236. “Where the seller reserves the right to refuse to accept any bid made, a binding sale is not consummated between the seller and the bidder until the seller accepts the bid. Furthermore, where a right is reserved in the seller to reject any and all bids received, the right may be exercised by the owner even after the auctioneer has accepted a bid, and this applies to the auction of public as well as private property.” Id. § 20, at p. 238.

In cases involving auction sales advertised or announced by the auctioneer that “ ‘The commissioners reserve the right to reject any and all bids received’ ” [Continental Can Co. v. Commercial Waterway Dist. No. 1 of King County, 56 Wash.2d 456, 347 P.2d 887 (1959), aff’d 354 P.2d 25 (1960)], or that “All this property is sold subject to Owner’s Confirmation” [Moore v. Berry, 40 Tenn.App. 1, 288 S.W.2d 465 (1955)], or that “ ‘The State Forester reserves the right ... to reject any or all bids’ ” [Eugene Stud & Veneer, Inc. v. State Bd. of Forestry, 3 Or.App. 20, 469 P.2d 635 (1970)], or that “Cosigners [sic] will have the privilege of no sale if they do not wish to sell for the last bid on the animal” [Bradshaw v. Thompson, supra n. 1, 454 F.2d 75], or that the commissioner reserves the right to “ ‘reject any or all bids if in his judgment he deemed it for the best interests of the city’ ” [City of New York v. Union News Co., 222 N.Y. 263, 118 N.E. 635 (1918)] it was held that the rights thereby reserved in the seller could be exercised by the owner even after the auctioneer had knocked down the property to the highest bidder.

If we should, arguendo, accept the foregoing principle that the seller’s expressly reserved right to reject any and all bids may be exercised even after the auctioneer accepts the highest bid, we need remember that the texts and cases so holding were solely concerned with situations where the condition imposed applied to all of the items being offered for sale by auction. We have been cited no authority and have found none dealing with heterogeneous auctions, i. e., where the auction, in general, was not subject to conditions save those that may be inherent in an auction “with reserve,”’ but interspersed among the items offered for sale were “a few” unspecified items owned by unidentified persons claiming the right to “No Sale” or the right to reject any and all bids. Although an item or more may have been identified as belonging to someone other than defendant Bartle and subject to the condition above mentioned, it is undisputed that the D-7 tractor was never said to be the property of defendant Duncan or otherwise isolated as being subject to any condition before being struck off to the plaintiff by the auctioneer.

It may be true that at auctions where all items are subject to the same condition, a bidder, though ignorant thereof, is affected thereby if the condition be one which he should have reasonably understood to exist or which he should have ascertained (1 Williston on Contracts, § 29, at pp. 69-70); however, we do not find it reasonable to hold a bidder to be affected by a condition not applicable to the great majority of the sale items but only to a limited number of items which are never identified as being subject to the condition. In our view, a condition to be properly imposed at a “heterogeneous auction” (our label), should be specifically applied to the particular item upon which it is sought to be imposed, and the failure of the auctioneer, or the holder of the auction, or the owner of the involved item, to specifically state, mark or otherwise identify which item or items are subject to the special condition, at least in the published sale bill or by appropriate announcement during the auction, does not adequately impose the condition or affect the bidder with it.

As previously noted, the trial court made no findings of fact or conclusions of law. Neither did it indicate by “brief opinion the grounds for its decision”. Rule 73.01-1(b), V.A.M.R. Therefore, not knowing the basis for its finding for defendants, considerable effort has been expended brief-wise by plaintiff to show trial court error in permitting defendants’ evidence regarding custom and usage when it had not been pleaded by defendants in their answers. State ex rel. H. K. Porter Company, Inc. v. Nangle, 405 S.W.2d 501, 504[8] (Mo.App.1966). Although the clear direction of defendants’ evidence at trial, received over plaintiff’s objections, was to show a general auction custom allowing rejection after a bid is accepted without prior specific reservation of such a right, defendants now say “[t]he issue between the parties is not the custom of ‘no sale’. The issue rather is whether an owner of property sold at an auction may refuse the highest bid after the auctioneer has announced the property ‘sold’ when conditions reserving the owner’s right to refuse all bids have been announced. The evidence of custom in this case was mere evidentiary matter bearing upon the owner’s right to impose conditions on the sale, i. e., his right to refuse all bids.” Thus having abandoned their initial claim that a substantive right of “No Sale” existed through usage and custom, we are saved a wearisome forage among the not-too-clear cases to determine whether custom and usage was required to be pleaded here, whether the evidence relating thereto was substantive or evidentia-ry, and what role the Uniform Commercial Code may have otherwise played in the matter. The emphasis on this appeal has, therefore, been shifted to whether or not an effective explicit condition was placed on the sale of the D — 7 tractor. We have, of course, heretofore concluded that under the facts peculiar to the auction in question, it was not.

Plaintiff and defendants have suggested that if we determine the judgment nisi should have been for plaintiff, which we have done, we should enter judgment for damages. The parties suggest varying amounts and as the evidence on the subject of damages was in dispute and widely varied, we have no confidence that we could determine the proper amount of damages in this case. Also, the trial court having found for defendants, naturally did not lay any basis from which we could properly conclude what plaintiff’s damages should be and we cannot direct a judgment for plaintiff in any given amount. Lindsborg Milling & Elevator Co. v. Danzero, 189 Mo.App. 154, 174 S.W. 459, 461[4] (1915).

The judgment is reversed and the cause is remanded for determination of plaintiff’s damages only.

All concur.

      . In addition to “the fall of the hammer,” expressions such as “ ‘going, going, gone’ ”, “sold”, etc. constitute “other customary manner[s]” for demonstrating the completion of a sale by auction. 1 Corbin on Contracts, § 108, at p. 485; 7 Am.Jur.2d, Auctions and Auctioneers, § 31, p. 248. We cannot agree with Bradshaw v. Thompson, 454 F.2d 75, 80 (6th Cir. 1972), cert. denied, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972), that the term “other customary manner” relates to conditions imposed by an owner upon a sale by auction, and lament the confusion caused by some writers who use “terms” and “conditions” of auction sales interchangeably and erroneously as synonymous, which they are not.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    Gracie E. BUTLER, Appellant, v. David L. CROWE, Respondent.
    No. 27203.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 30, 1976.
    Application to Transfer Denied Oct. 12, 1976.
    Lantz Welch, Kansas City, for appellant.
    David R. Odegard, James, Odegard & Millert, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from verdict and judgment for defendant in action for personal injuries sustained in an automobile collision at 43rd and Main, Kansas City, Missouri. The questions are whether the court erred in receiving a Uniform Accident Report in evidence and allowing it to be passed to the jury, and in permitting expert testimony regarding stopping distances. Affirmed.

Plaintiff’s theory was that she was stopped headed north in the intersection on her side of Main Street waiting for the intersection to clear to make a left turn and go west on 43rd Street when defendant negligently drove his southbound vehicle at excessive speed onto her side of the road and hit her. Defendant’s theory was that plaintiff negligently drove her vehicle into the path of defendant’s vehicle in the course of making her left turn from Main Street into 43rd Street and collided with defendant on his southbound side of Main Street.

During the cross-examination of plaintiff’s witness, Officer Thomas Gaugh, the court received into evidence defendant’s Exhibit 28A:

Appellant contends the court erred in receiving the exhibit and allowing it to be passed to the jury, “since it graphically expressed the opinion of the investigating officer as to the place and point of impact and this was not a proper subject for expert or opinion evidence.” Appellant’s argument indicates that she also complains that the exhibit contained a notation that she “failed to yield the right-of-way,” and was arrested.

Appellant argues and respondent concedes that opinion evidence contained in accident reports is generally inadmissible, particularly with respect to point of impact, Chester v. Shockley, 304 S.W.2d 831, 834 (Mo.1957), and where the opinion is offered by direct testimony, Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, 247-248 (1948). See also Ryan v. Campbell “66” Express, 304 S.W.2d 825, 828 (Mo. banc 1957); Housman v. Fiddyment, 421 S.W.2d 284 (Mo. banc 1967).

The location of debris on Exhibit 28A by Officer Gaugh indicated the area of concentration of debris as he had observed it in contrast to the improper conclusion in Hamre v. Conger, supra, where the officer stated that the “point of impact is at the center of the debris and that is where we come to the conclusion that that is the point of impact * * *,” 209 S.W.2d l. c. 247, and Chester v. Shockley, supra, where a like conclusion was condemned. The graphic location of debris aided the jury in understanding Officer Gaugh’s testimony and was properly admitted for that purpose. Schneider v. Prentzler, 391 S.W.2d 307, 310-311 (Mo.1965).

The admission of an opinion on the relative location of vehicles at impact and plaintiff’s “failure to yield,” is generally erroneous, but on this record any such error was harmless.

Prior to defendant’s cross-examination of plaintiff’s witness Gaugh during which Exhibit 28A was admitted, the following direct examination by plaintiff occurred:

“Q [by Mr. Welch for plaintiff]: * * do you, without refreshing your recollection and looking at that , report, actually have any recollection or memory of that accident— A. No, sir, I don’t. Q. * * * So what you have to tell us would be basically what, then you have written down here in your report? A. That’s correct. * * * Q. So, turning to that, * * * Do you indicate what day of the week this accident occurred? A. Yes. It was on a Tuesday. Q. And what time of day did it occur? A. 4:30 P.M. * * *

“Q. * * * Let’s talk for just a minute about that intersection of 43rd and Main. * * * Was ⅛ controlled by electric-traffic lights at that time? A. Yes, sir. Q. * * * as you lead up to that intersection, let’s say on Main Street, is there a center line on Main Street as you approach 43rd? A. Yes, sir. Q. Are there crosswalks at the intersection? A. Yes, sir. Q. Does the center line then terminate at the crosswalk, or does it go on across the intersection? A. No, sir, it terminates. Q. * * * p)0 y0U indicate here what the weather conditions were at the time of this accident. A. Yes, sir; it was raining. * * * Streets were wet and it was cloudy. * * *

“Q. * * * let’s assume no obvious visible signs of injury such as arms cut off, or blood all over — what is your first concern under those circumstances? A. To move the vehicles out of the line of traffic as soon as possible. * * * Q. * * * Then after moving those vehicles, would you then have proceeded to interview the drivers? A. Yes, I would.

“Q. * * * you indicate here the number one driver to be David L. Crowe. * * Does it indicate here on the front page of your report what direction he was going ***? A. * * * he was going southbound on Main. Q. * * * does it show on there his speed? A. No.

“Q. * * * And then the number two driver is listed as Gracie Butler; * * * What do you show as far as the direction of traveling? A. Attempting to turn from northbound on Main to westbound onto 43rd Street. * * * Q. And did you then proceed to interview the number one driver, Mr. Crowe? A. Yes, I did. Q. And please tell the jury what it was that he stated to you? A. Mr. Crowe stated that he was southbound on Main through the yellow light at 43rd Street when number two vehicle attempted to turn from northbound on Main to westbound on 43rd into his path. He applied his brakes, but too late to avoid.

“Q. * * * what did the number two driver Mrs. Butler tell you? A. Mrs. Butler stated she was stopped facing northbound in the intersection at 43rd and Main, waiting for traffic to clear to turn westbound on 43rd Street when number one vehicle ran the southbound * * * light * * *. Q. * * * So the number one driver Crowe claimed the lady was turning left in front of him at that time, and the number two driver Mrs. Butler said she was just stopped there waiting for the light to — What did you say now? A. For— waiting for traffic to clear. Q. * * * so that she would turn westbound. * * * Turning to your diagram that you have here, I notice those cars that you have drawn in are done in a solid line? A. That’s correct. Q. Do you have any other method of drawing in cars in a diagram? A. Well, we show after impact with dotted lines, but I have shown that on this diagram. Q. * * * So what does that tell you then, based on your general habits and custom, and usage, as you looked at this diagram the only diagram that you have here of the cars, and the fact that there are solid lines? A. This shows where the impact occurred. * * * As far as what I was told by the drivers. * * * q. * * Now the number two driver there stated she was stopped facing northbound in the intersection, meaning let’s say that this is her direction of travel here, and this is her center line * * * A. Yes. Q. And the other fellow told you at that time that he was just coming down there and she in fact turned * * *. A. Right. Q. And of course, you weren’t there, so you don’t know which one to believe? A. That’s correct.

“Q. * * * Now do you show some debris out there? A. Yes, I do. Q. * * Basically, what is debris, as it relates to this accident, in this case? A. Debris is mud, dirt, paint chips, road tar, anything that would come off a vehicle after an impact. Q. * * * Now let’s say, then, that a vehicle is traveling down a street * * * and it hits — the corner of that vehicle hits this steel post or a rock wall, or another car or whatever — does it then, whatever you have talked about, the particles, fall loose because of that shock? A. They fall from the vehicle. * * *

“Q. * * * So from your college physics knowledge, have you learned that if a particle is either setting on top of a fender of a car, or underneath it, and that car stops moving, that that particle will continue on? A. Yes. Q. * * * Now in this particular diagram, * * * do you show the debris here — or do you try to show it in your diagram in a neat little pile or in a very large area. A. In a general area. Q. * * * What is the average width of a front of a motor car, let’s say? A. Well, between five and six feet, depending on the model of the vehicle. * * * Q. Let’s take an average vehicle of five or six feet, and when that vehicle impacts something on the corner, * * * does the debris cross-clear across the front end, drop to the pavement? A. Yes, sir. Q. * * * Now I want you to assume, Officer, that there is a car setting here on Main Street, headed north * * * on its own side of the center of the street, and another car comes toward it * * * and hits it * * left fender to left fender. In your opinion, would the debris fall from in front of this southbound car from across the front end you have described earlier? A. Yes, sir. Q. * * * and if that car were one or two feet over the center line, could you find debris then as far west as three feet west of the center line? A. Yes, sir. Q. How far do you show the debris here as being to the west of the center line? A. Three feet.”

Defendant proceeded with cross-examination, also covering the subjects contained in the exhibit, after which defendant offered and the court received the exhibit in evidence.

Further redirect examination covered the following:

“Q [by Mr. Welch], * * * Officer, what has your practice been, in situations like this where you have differing versions? Do you act as judge and jury or do you charge both the parties to have their matter handled by a judge in a court? A. * * * I charge both parties. Q. What did you do in this occasion, according to your report? A. I charged both parties.”

This record demonstrates that plaintiff’s witness testified to all the contents of Exhibit 28A. It was only when it was offered in evidence and to be passed to the jury that plaintiff objected. She will not be heard to complain of the admission of evidence which she has already introduced. Baker v. Woodbury, 492 S.W.2d 157 (Mo.App.1973). Thus, any error in the admission of the exhibit itself in this case does not require reversal. Landum v. Livingston, 394 S.W.2d 573, 580 (Mo.App.1965). As observed by the court, “the subject had been so opened up that it is necessary to admit the diagram.”

Appellant contends the court erred in allowing Officer Way to testify in behalf of defendant on stopping distances without laying a proper foundation, “since the expert was not furnished facts comparable to those existing at the time and place of the accident in question.” Her argument indicates that she complains of a number of omissions, e. g., road grade, whether its surface was new sharp asphalt, traveled asphalt, or polished asphalt, length of slide, whether there was rain on snow, the temperature of the air and road surface, and tire pressures. This, she argues, violated the “well-settled principle of law that, before a witness will be allowed to give his opinion as an expert upon a state of facts, a knowledge of which he derives from other witnesses, he must be put in possession of all the facts, as ascertained or supposed, on the question about which the inquiry is made.” Turner v. Haar, 114 Mo. 335, 21 S.W. 737, 738 (1893). See also Begley v. Connor, 361 S.W.2d 836, 842 (Mo.1962); State v. Koberna, 396 S.W.2d 654 (Mo.1965).

The difficulty in appellant’s contention and argument is the record shows that any such objection was waived.

Defendant called Officer Benjamin E. Way, an expert in traffic investigation, to testify on stopping distances. He related his familiarity with the grade and road surface at 43rd and Main; that the surface was asphalt with no difference from the condition in 1970 as to affect his calculations. Defendant began his hypothetical question and was interrupted by plaintiff for qualifying questions “preparatory to making an objection.” Plaintiff examined Officer Way concerning several factors which could affect his calculations on braking distance. Plaintiff concluded with an objection to the witness “giving any answer as to what distance would have been required to stop this vehicle on 12-15-70 as previously asked in the question.” The court reserved ruling to permit defendant to further question the witness. Subsequent examination concluded with a restatement of the hypothetical question including a further assumption that the road surface was “old pre-existing asphalt well traffic worn.” Plaintiff objected again “ * * * for all the reasons hereto given, and for the further reason that in asking this officer to assume that this was old pre-existing well-worn asphalt, that assumes facts not in evidence.”

“THE COURT: I assume that will be connected up. MR. ODEGARD [for defendant]: Those facts will be supplied, Judge. MR. WELCH [for plaintiff]: And with that understanding, then any answer given by this officer, if not supplied, will be stricken; is that further understood? THE COURT: Well, any facts that have been hypothesized, are not supplied, either have not been and do not happen eventually be supplied. Objection is overruled, you may answer.”

The foregoing demonstrates that plaintiff’s objection did not go to anything other than the assumption of the surface condition of the asphalt, which was not then in evidence and was never thereafter introduced. Neither did plaintiff move to strike the testimony of Officer Way, nor did she request a withdrawal instruction grounded on the failure to supply the missing hypothetical fact.

Such circumstances subject appellant’s contention to the general rule that “[ojrdinarily the court is not required to carry in its own mind the details of the trial and, of its own motion, without a request therefor, strike evidence, although it may do so under some circumstances. * * *

A motion to strike is necessary * * * where evidence is conditionally admitted, where evidence is admitted which is required to be supplemented by other evidence which is not introduced * * * and, if evidence is admitted subject to rejection or to a motion to strike, and such motion is not made, the objection is waived.” 88 C.J.S. Trial § 133, pp. 267-268.

Judgment affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    HARRISBURG R-VIII SCHOOL DISTRICT, Plaintiff-Respondent, v. Cora Lou O’BRIAN, Defendant-Appellant.
    No. KCD 28132.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 30, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Thomas D. Cochran, Joe F. Willerth, Piedimonte & Cochran, Independence, for appellant.
    John W. Inglish, Inglish & Calhoun, Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

This is an appeal from a judgment of the Circuit Court of Boone County, Missouri, affirming a decision of the Board of Education of Harrisburg R-VIII School District (respondent, hereinafter “District”) terminating an “indefinite contract” with Cora Lou O’Brian (appellant, hereinafter “O’Brian”) a “permanent teacher”. See generally Sections 168.102 to 168.130, RSMo 1969-Teacher Tenure Act. In many respects it is a case of first impression.

O’Brian seeks reversal of the judgment, reinstatement as a “permanent teacher”, and an “award” for “lost compensation”. The points specified by her on appeal to support this multi-faceted relief are seven in number. Although challenging and innovative in part, they are somewhat complex in view of the context in which they arise, and, in many instances, convolutely argued, and supported, at best, with only sparing and nebulous authority. After setting forth and making reference to certain basic facts and statutory and regulatory provisions, the seven points raised by O’Brian will be seriately discussed.

The District’s compliance with the procedural requirements of Sections 168.116 and 168.118, RSMo 1969, has not been questioned by O’Brian. The written charge brought against O’Brian, considerably abbreviated, specified that she unreasonably absented herself from the teaching duties assigned to her by the District’s board of education for the 1974-1975 school year, teaching special education at the high school level, in violation of paragraph VII D of the published regulations of the District which were incorporated by reference in her contract of employment. Sub-paragraph (5) of paragraph 1 of Section 168.114, RSMo 1969, sets forth one of several statutory grounds, which, if violated, constitutes cause for termination of a permanent teacher’s indefinite contract:

“(5) Excessive or unreasonable absence from performance of duties; . . . ”

Paragraph VII D of the published regulations of the District reads: “The Board of Education has the authority to assign any duties, to a teacher, in any field for which they may be certificated.”

In December of 1973, the District, cognizant that it had to offer special education at the high school level in order to obtain a “double A classification”, initiated steps to have O’Brian temporarily certificated to teach special education at the high school level. At that time O’Brian, a teacher for some thirty years, was certificated to teach special education at all grade levels from kindergarten through the ninth grade. Absent O’Brian’s consent or knowledge, the District’s superintendent contacted the State Board of Education and was instrumental in obtaining temporary certification for O’Brian to teach special education at the high school level as well as at the elementary level. O’Brian first learned that she had been temporarily certificated to teach special education at the high school level on April 17, 1974. The temporary certificate, enlarging the scope of curricula subjects which O’Brian was licensed to teach, was issued by the State Board of Education pursuant to Section 168.021, RSMo 1969, which, in part, reads:

“1. Certificates of license to teach in the public schools of the state shall be granted as follows:
(1) By the state board of education, under rules and regulations prescribed by it,
(a) Upon the basis of college credit;

Prior to April 17, 1974, the matter of her teaching special education at the high school level was broached in conversations between O’Brian and the District’s superintendent, at which time she protested on the ground that she did not consider herself qualified because all of her college training was geared to teaching at the elementary level and it was unfair to expect her to do so since there was a younger teacher in the system who was as qualified as she was to teach the contemplated course of instruction during the coming school year. During the earlier part of April, 1974 (the record fails to disclose the exact date), O’Brian learned that her teaching assignment for the coming school year of 1974 — 1975 would be teaching special education at the high school level. Subsequent to the events and incidents just related, and prior to August 26, 1974 the start of the 1974-1975 school year, O’Brian repeatedly remonstrated with the District about her teaching assignment for the coming school year. The District concluded that O’Brian, notwithstanding her remonstrations, was qualified to teach special education at the high school level. Moreover, many students who would be in her special education class at the high school level were former students in special education classes taught by her at the elementary level. The transcript of the record of the hearing held by the board of education of the District pursuant to Section 168.118, RSMo 1969, reveals that the parties stipulated (subject only to an objection reserved by the District which need not be ruled on) that when the superintendent of a school district, as here, requests broadened temporary certification for a teacher, the State Board of Education assumes that the affected teacher has given the superintendent permission to request the temporary certification; the stipulation further reveals that if temporary certification is granted solely upon the request of a superintendent of a school district, the State Board of Education, upon being advised that temporary certification has been granted without permission of the affected teacher, will, upon request of the affected teacher, withdraw the temporary certification. O’Brian, prior to the hearing conducted on October 15,1974, passively sat by and made no effort to have the temporary certificate issued by the State Board of Education withdrawn. When school started on August 26,1974, O’Brian failed to report to her designated classroom and adamantly refused to assume her assigned duty of teaching special education at the high school level. Her refusal, following a hearing held by the board of education of the District pursuant to Section 168.118, supra, culminated in termination of her “indefinite contract” as a “permanent teacher”.

Points I and II: O’Brian charges (I) that issuance of the temporary certificate by the State Board of Education without any request from her to do so, and absent her consent or knowledge, deprived her of due process of law as guaranteed by both the state and federal constitutions. For reasons just stated, she contends (II) that she was not “validly” certificated to teach special education at the high school level and, accordingly, was not guilty of an “unreasonable absence from performance of duty” [sub-paragraph (5) of paragraph 1 of Section 168.114, supra] predicated upon a violation of paragraph VII D of the published regulations of the District, supra. Points I and II, by their very nature, lend themselves to being jointly discussed and disposed of.

O’Brian makes a split argument to support these points. First, she. appears to contend that issuance of the temporary certificate by the State Board of Education, without her consent or knowledge, violated her inherent academic freedom to choose the subjects which she desired to teach and for which she personally deemed herself qualified, thereby constituting a deprivation of her “liberty . . . without due process of law.” The dispositional basis, infra, of O’Brian’s first point makes it unnecessary to decide whether her academic freedom of choice in the context claimed is or is not a constitutionally protected right and the court’s opinion in the instant case should in no way be construed as doing so. Second, she appears to contend that it is implicit in Section 168.021, supra, and Section 168.031, RSMo 1969, that the temporary certificate issued by the State Board of Education was “invalid” because of her lack of consent and knowledge. The “split” argument will be dealt with in reverse order.

Neither party has cited any rule or regulation promulgated by the State Board of Education touching upon or which prohibits temporary certification solely upon the request of a school district. This court assumes that if a prohibitory rule or regulation existed, or one touching upon the process of temporary certification existed which was violated, O’Brian would have cited same and made it or them available to this court on appeal.

This court finds nothing in the language of the statutes relied upon by O’Brian which explicitly or implicitly renders “invalid” temporary certification of a teacher by the State Board of Education when done solely on the request of a school district. On the other hand, the stipulation of the parties heretofore referred to reveals that the State Board of Education, as a matter of policy, followed a practice of temporarily certificating teachers solely upon the request of a school district when the teacher involved, as here, was found to be academically qualified. This policy was tempered by the concomitant policy of the State Board of Education to withdraw such temporary certification upon request of an affected teacher when notified that the same had been done without the teacher’s consent. In the instant case O’Brian, prior to the hearing on October 13, 1974, made no effort to contact the State Board of Education and protest the validity of her temporary certification on the ground that it was done without her consent, nor did she seek to have her temporary certification withdrawn. Instead, her protests were lodged exclusively with the District on the asserted ground that she did not feel she was qualified to teach special'education at the high school level. Although the policy followed by the State Board of Education, as evidence by the stipulation, provided a simple and speedy remedy to protect her pedagogic freedom, she made no effort to inquire into or avail herself of the remedy. To the contrary, she chose to lodge repeated protests with the District that she did not personally feel that she was qualified to teach special education at the high school level, and when school started on August 26, 1974, she adamantly refused to assume her assigned duties and stayed away from her classroom. In short, she took matters into her own hands and defied the District’s administrative decision.

The essence of “due process of law”, in the sense contended by O’Brian, is that an aggrieved person must be afforded a procedural remedy to seek redress for deprivation of a claimed right. As held in State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 358 (Mo.banc 1958) “[d]ue process is satisfied if there be either an administrative hearing subject to judicial review or the right to have a hearing in a court which may adequately review the administrative decision.” See also: Bourjois, Inc. v. Chapman, 301 U.S. 183, 189, 57 S.Ct. 691, 81 L.Ed. 1027 (1937) and Boone v. Wyman, 295 F.Supp. 1143, 1150 (S.D.N.Y.1969). It is not clear from the stipulation heretofore referred to, nor otherwise from the record, just when O’Brian learned of the simple, speedy remedy which the prevailing policy of the State Board of Education afforded. Assuming, arguendo, that she was completely unaware of it prior to the start of school, Section 536.150, RSMo 1969, and Rule 100.08 provided a procedural vehicle whereby she could have obtained judicial review of the State Board of Education’s decision granting the controversial temporary certification. The right of review statutorily and by Supreme Court rule given to her (Section 536.150, supra, and Rule 100.08, supra), which she made no effort to avail herself of after she learned of her temporary certification, vitiates her contention that she was stripped of a fundamental liberty without due process of law.

In view of at least one presumptively known and available remedy (Section 536.-150, supra, and Rule 100.08, supra), O’Brian’s belated attack on the “validity” of her temporary certification appears to be collateral in nature. As stated in 78 C.J.S. Schools and School Districts § 168, p. 993, “[a] teacher’s certificate is prima facie evidence of the teacher’s qualifications and of the fact that the members of the board or committee issuing such certificate have properly performed their duty as to the manner and requisites of their issuing it. [and] [i]n the absence of fraud it cannot be collaterally impeached, . . ..” O’Brian does not expound any claim that the State Board of Education perpetrated a fraud when it temporarily certificated her to teach special education at the high school level, and if she did, it would find no support in the record.

Point III: O’Brian charges (1) that the hearing was “unfair” because the District’s regular counsel represented it at the hearing and (2) was both “unfair” and violative of due process of law because the District’s board of education occupied the triple role of investigator, prosecutor and judge.

Active participation on behalf of a board of education by its regular counsel at a hearing resulting in the discharge of a permanent teacher, vis-a-vis a charge that such gives rise to an “unfair” hearing, has not been previously addressed in this state. The record does not imply or suggest that the board of education’s regular counsel participated in the deliberative process that resulted in O’Brian’s discharge. The board of education of the District alone shouldered the burden and duty of determining whether O’Brian should be discharged because of the charge leveled against her, as it alone was empowered by law to do (Section 168.118, supra). The Appellate Court of Illinois, Second District, confronted with having to decide a similar charge, held that active participation by a board of education’s regular counsel at a hearing resulting in discharge of a permanent teacher did not render the hearing unfair. Yuen v. Board of Education of School Dist. No. U-46, 77 Ill.App.2d 353, 222 N.E.2d 570, 573 (1966). This court is constrained to reach the same conclusion in the instant case.

The charge that a de facto combination of investigatory, prosecutory, and adjudicatory functions in an administrative tribunal statutorily vested to initially pass judgment or make a decision after a hearing, stamps any hearing so held with unfairness, and renders it constitutionally infirm because violative of due process, is far from novel. The crux of O’Brian’s argument to support her third ground is subject to being isolated in a brief statement — the board of education of the District had knowledge of the facts before the hearing was held. This argument ignores reality. The preferment of charges against O’Brian presupposes that the board of education of the District had some prior knowledge of the facts. After a careful perusal of the record, this court finds nothing which indicates that the board of education’s prior knowledge of facts resulted in an irrevocable commitment on its part to terminate O’Brian’s “indefinite contract” regardless of what the evidence at the hearing, pro or con, might reveal, or that it conducted the hearing and passed judgment with an un-bendable or preconceived notion that she was guilty as charged. Rose v. State Board of Registration for Healing Arts, 397 S.W.2d 570, 574-575 (Mo.1965), answers this aspect of O’Brian’s third ground adversely to her. See also the following cases, likewise adverse to O’Brian, specifically passing on similar charges in cases involving the discharge of teachers: Spruce Hill Tp. School Dist. v. Bryner, 148 Pa.Super. 549, 25 A.2d 745 (1942); Griggs v. Board of Trustees of Merced Union H.S. Dist., 61 Cal.2d 93, 37 Cal.Rptr. 194, 389 P.2d 722 (banc 1964); and Petitions of Davenport, 129 Vt. 546, 283 A.2d 452 (1971). Hortonville Dist. v. Hortonville Ed. Assn., - U.S. -, 96 S.Ct. 2308, 49 L.Ed.2d 1, handed down by the Supreme Court of the United States on June 17, 1976, is even more persuasive authority for ruling this aspect of O’Brian’s third point against her.

Point IV: O’Brian charges that the board of education’s decision terminating her “indefinite contract” was “arbitrary”, “capricious”, “not supported by the weight of the evidence”, and “constituted an abuse . of discretion.” She relates the same to the scope of judicial review delineated in Section 536.140, RSMo 1969. A common theme runs through all the arguments advanced by O’Brian in support of Point IV. Its genesis is certain evidence which she has chosen to isolate and which she unilaterally claims is controlling to the exclusion of all other evidence. This evidence, briefly alluded to, is as follows: The record discloses that previous attempts, albeit unsuccessful, were made to discharge her, she had previously been given various mundane duty assignments, her professional rapport with the District’s superintendent was less than desirable, and her rate of pay, notwithstanding her years of service, was only slightly higher than that of starting teachers in the District. Based thereon, O’Brian contends that the charge which precipitated termination of her contract was a mere facade to get rid of her because she was considered a problem teacher by the District. This contention, regardless of how well-intentioned on O’Brian’s part, rests, at best, on a suspicional reaction on her part to the matters just mentioned. The record bears out that the District was anxious to obtain a “double A classification” for its school system. It concluded that O’Brian was qualified to teach special education at the high school level if she could be temporarily certificated by the State Board of Education to do so. Even though the judgment it exercised in getting O’Brian temporarily certificated may, as a matter of hindsight, appear to have been ill-advised, the trappings which O’Brian seeks to attach to it are not sustained by the record. To rule otherwise would be tantamount to holding that a vendetta against O’Brian motivated the District’s decision rather than a concern for the best interest of its pupils and patrons. Moreover, to so hold would completely ignore and effectively obliterate the undisputed fact that O’Brian chose to take matters into her own hands by refusing to go to her assigned classroom and teach special education at the high school level, thereby attempting to usurp the District’s right to decide and implement policies affecting its school system. This undisputed fact not only constitutes substantial evidence to prove the charge brought against O’Brian, but it also frees the District’s decision from being branded as “arbitrary”, “capricious”, “unsupported by the weight of the evidence”, or an “abuse of discretion”.

Point V: O’Brian charges that she was “invidiously discriminated” against, and thereby denied “equal protection of law”, because she was singled out for temporary certification to teach special education at the high school level. She appears to hinge this charge on the argument that a younger teacher in the system with only one year’s experience could also have been temporarily certificated. True enough, the prohibition of “invidious discrimination” is a primary function of the “equal protection” clause of the 14th Amendment to the Constitution of the United States, as held in Burns v. Swenson, 430 F.2d 771, 778 (8th Cir. 1970) and State v. Champ, 477 S.W.2d 81 (Mo.1972), both cited by O’Brian. However, the board of education’s selection of O’Brian, a teacher with some thirty years’ experience to teach special education at the high school level, as opposed to selection of a younger teacher with one year’s experience, does not ring with “invidious discrimination”. O’Brian’s contention otherwise, suspicional at best, is ruled against her.

Point VI: O’Brian charges that the board of education of the District erred in not considering regular “evaluation reports” concerning her professional competency and efficiency which were prepared in accordance with written standards of the District. She claims that paragraph 2 of Section 168.114, RSMo 1969, compelled their consideration. She is wrong. Sub-paragraphs (1), (2), (3), (4), (5), and (6) of paragraph 1 of Section 168.114, supra, list the .“causes” for which the “indefinite contract” of a “permanent teacher” may be terminated by a board of education of a school district. Sub-paragraph (3), supra, reads: “Incompetency, inefficiency or insubordination in line of duty”. Paragraph 2 of Section 168.114, supra, relied upon by O’Brian, reads: “In determining the professional competency of or efficiency of a permanent teacher, consideration should be given to regular and special evaluation reports prepared in accordance with the policy of the employing school district and to any written standards of performance which may have been adopted by the school board.” O’Brian was not charged with “professional” incompetency or inefficiency. She was charged with “unreasonable absence from performance of duties”, sub-paragraph (5) of paragraph 1 of Section 168.114, supra. Her professional “competency” or “efficiency” were not in issue and bore no relationship whatsoever to the charge leveled against her. It is self-evident from the clear wording of paragraph 2 of Section 168.114, supra, that the board of education of the District was not required to consider O’Brian’s professional “competency” or “efficiency” when deciding whether or not she was guilty of “unreasonable absence from performance of duties.”

Point VII: O’Brian charges that the board’s decision terminating her “indefinite contract” because of “unreasonable absence from performance of duties”, resting as it did upon paragraph VII D of the regulations of the District, supra, deprived her of “due process of law” because the “regulation failed to adequately define ‘certificated’ ”. According to the argument tendered in support of this charge, O’Brian feigns a lack of understanding or knowledge as to what was meant by the term “certificated”. It is incomprehensible to this court that a teacher with some thirty years of experience did not know what was meant by the term “certificated” in the context in which it was used. O’Brian’s final point is ruled against her.

Judgment affirmed.

All concur.


author: FLANIGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Junior Ernest GIBSON, Defendant-Appellant.
    Nos. 9965, 9966.
    Missouri Court of Appeals, Springfield District.
    Aug. 5, 1976.
    Motion for Rehearing or Transfer Denied Sept. 1, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Norman S. London, Lawrence J. Fleming, London & Greenberg, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.
   FLANIGAN, Judge.

Appellant Junior Ernest Gibson was charged with murder in the second degree (§ 559.020 V.A.M.S.) of Buster Harrison Farrell and with murder in the second degree of Bobbie Gene Hopkins. Both slayings took place on May 18, 1970. By stipulation of the parties the two cases were tried together before a jury. The jury found appellant guilty of the second degree murder of Hopkins. On the charge pertaining to the victim Farrell, the jury found appellant guilty of manslaughter. Thq defendant was sentenced to 10 years on each conviction, the sentences to run consecutively. Appellant does not question the sufficiency of the evidence to support the two convictions.

Appellant presents three assignments of error, each dealing with alleged misconduct on the part of the prosecuting attorney.

Appellant’s first contention is that the closing argument of the prosecutor was improper in six particulars and that he should have received a new trial by reason thereof.

Of the six portions of the prosecutor’s argument singled out for complaint in this court, three were not objected to at the time of trial nor was complaint concerning them made in the motion for new trial. Thus “no proper foundation has been laid for presentation of the matter on this appeal,” State v. Jackson, 511 S.W.2d 771, 775[3] (Mo.1974) and they need not be considered.

The fourth portion of the prosecutor’s argument, of which complaint is made here, was not mentioned in the motion for new trial although an objection, somewhat indefinite and belated, was made at the trial itself. This assignment has not been preserved for appellate review because it was not included in the motion for new trial. State v. Raspberry, 452 S.W.2d 169, 172[1] (Mo.1970); State v. Jackson, 511 S.W.2d 771, 775[7] (Mo.1974); State v. Brown, 528 S.W.2d 503, 505[4, 5] (Mo.App.1975). Moreover, the record does not fully substantiate appellant’s description of the fourth portion.

Appellant seeks to predicate appellate review of the foregoing four portions of the argument by invoking the “plain error rule,” Rule 27.20(c). However, this court’s review of the four portions does not cause it to deem “that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 27.20(c). There is no “strong, clear showing” that injustice will result if the rule is not invoked. State v. Embry, 530 S.W.2d 401, 404[2] (Mo.App.1975). The plain error rule “cannot be used as a vehicle for review of every alleged trial error which is not asserted or properly preserved in the trial court.” State v. Murphy, 521 S.W.2d 22, 25[2] (Mo.App.1975). Rule 27.20(c) is of no avail to appellant.

As his fifth challenge to the prosecutor’s argument, appellant claims that the prosecutor “improperly argued matters concerning the alleged violent nature of defendant.”

At the trial appellant testified in his own defense. On cross-examination the prosecutor elicited that appellant had been convicted of assaulting his wife. That charge arose out of the occurrence of May 18,1970, from which stemmed the present charges. The appellant also admitted that he was convicted in Illinois of assaulting a woman.

During prosecutor Zane White’s argument the following occurred:

MR. WHITE: “He had killing on his mind. His personality and his tendency to viciousness has been established twice in court, once over in Illinois where he was convicted and received a 6 months sentence for an assault upon a woman.”

MR. WISEMAN [defense counsel]: “Just a moment. I object to that, Your Honor. Your Honor instructed the jury just a moment ago that the conviction over in Illinois could not be used for any purpose in this case.”

THE COURT: “That’s correct. That conviction was shown only for the purpose of his credibility, Mr. White. Stay within the record and the court’s instructions.”

MR. WHITE: “Do you believe that a man — do you believe his story of this thing is believable? This man of this degree of violence, this tendency?

“He has not only killed two people but been convicted of shooting his wife and assault upon a woman way over in Illinois, not in any way related, connected with this incident here — ”

MR. WISEMAN: “I object to that, Your Honor.”

MR. WHITE: “I’m arguing with respect to the believability of his story itself.”

THE COURT: “All right; if that’s the purpose of showing it, overruled.”

In support of his position, appellant relies upon the following language in State v. Mobley, 369 S.W.2d 576, 580[2, 3] (Mo.1963): . “[T]he only legitimate purpose of an argument concerning prior convictions lies in its bearing upon the credibility of the defendant . . . It is improper to argue prior unconnected crimes as reflecting upon the defendant’s character or as a basis for a conviction in the case on trial.”

However, Mobley is distinguishable. There the prosecutor made five separate references to the criminal record of the defendant and the only ruling of the trial court helpful to the defendant was one which struck a portion of one of the five references and instructed the jury to disregard it.

Here the original objection of defense counsel was only a general one — “I object to that.” No ground for the objection was stated. But defense counsel said that the Illinois conviction “could not be used for any purpose in this case.” The trial court stated that counsel’s remark was “correct” and added that the Illinois conviction was shown “only for the purpose of his credibility.” Because the defendant had testified, the Illinois conviction could properly be shown as affecting his credibility. § 491.050 V.A.M.S.; State v. Phelps, 478 S.W.2d 304, 307 (Mo.1972). The second objection of defense counsel also stated no ground for the objection and apparently was directed to the Illinois conviction. The prosecutor stated that he was “arguing with respect to the believability of his story itself.” The court, after stating “if that’s the purpose of showing it,” overruled the general objection. No further relief was requested by appellant.

This court concludes that the portion of the argument here under consideration “taken in [its] full context, should be construed as going merely to the question of credibility.” State v. Slay, 406 S.W.2d 575, 580 (Mo.1966). This is not a situation where there was “almost complete lack of action by the trial court” which, according to State v. Renfro, 408 S.W.2d 57, 60 (Mo.1966), was the situation in Mobley.

The facts here are more akin to those in State v. Patrick, 420 S.W.2d 258, 262[1] (Mo.1967) and State v. Phelps, 478 S.W.2d 304, 307 (Mo.1972), in each of which a prosecutor’s argument, alluding to the criminal record of the defendant without expressly limiting its effect to the defendant’s credibility as a witness, was held, under the particular circumstances, not to require the granting of a new trial. See also State v. Raspberry, 452 S.W.2d 169, 173[7-11] (Mo.1970).

Appellant’s fifth challenge to the prosecutor’s argument has no merit.

Appellant states his sixth attack upon the prosecutor’s argument as follows: “The prosecutor improperly implied the guilt of defendant because he had retained a particular counsel from Illinois.”

This attack is based on the following occurrence during the closing argument of prosecutor Zane White:

MR. ZANE WHITE: “Now of course this defense attorney, Mr. Wiseman, wise man, I guess his name means in some language or the other. He is no doubt wise and no doubt extremely successful. They have gone through this thing once before, as the evidence indicates and lost, and the man is now in the Penitentiary — ”

MR. JAY WHITE: “I object, Mr. Wise-man wasn’t in that case.”

MR. ZANE WHITE: “I know that. But let me finish my statement before you jump up and interrupt so rudely.”

THE COURT: “Well, stay within the record here.”

MR. ZANE WHITE: “They no doubt searched in an ever-widening circle for a man who was capable and bright enough to clear this man and they eliminated the whole State of Missouri and had to get over in Illinois to get one they felt could do the job.”

MR. WISEMAN: “Now, just a moment, I want to make my objection, his selection of counsel is not involved in this case.”

THE COURT: Sustained.”

During voir dire examination Mr. Wise-man, one of appellant’s attorneys, introduced himself to the panel as “a lawyer from Alton, Illinois.” Twice during Wise-man’s closing argument, which preceded the attacked portion of the prosecutor’s argument, he mentioned the fact that he was from Alton, Illinois. His first statement was: “I am from Alton, Illinois. Do you know where it is? Across the river from St. Louis, 13 miles.” His second statement was: “I came from Alton, Illinois, it is still in the United States, I think. You do not have to go through a customs board when you cross the Lewis-Clark Bridge. I came over to Missouri. It says ‘Welcome to Missouri.’ ”

Of course the fact that Mr. Wiseman came from Alton, Illinois, had nothing to do with the guilt or innocence of appellant and neither the prosecutor nor Mr. Wiseman is to be commended for emphasizing that extraneous fact.

The first objection made by Mr. Jay White was general in nature and the segment of the argument to which it was addressed made no mention of Mr. Wiseman’s being from Illinois. The second objection, made by Mr. Wiseman, was sustained. No further relief was requested by appellant.

“ . . . Questions of the propriety of oral argument are addressed to the discretion of the court; and a reversal on such ground occurs only upon abuse of such discretion.” State v. Jewell, 473 S.W.2d 734, 741[8] (Mo.1971). State v. Farmer, 536 S.W.2d 748, 751[7] (Mo.App.1976). This court finds no such abuse. Appellant’s sixth attack upon the prosecutor’s argument has no merit.

Appellant’s second contention is that the trial court erred in not declaring a mistrial and in not granting a new trial on “grounds that the prosecutor repeatedly, through his questions, interjected immaterial matters which were highly prejudicial, inflammatory, and which were not supported by the evidence.”

Appellant’s brief, in setting forth the factual predicate for this assignment of error, gives only two citations to specific pages in the transcript. See Rule 84.04(h). Those pages are 311 and 396 (the transcript, which this court has read, is 531 pages long). Page 311 contains a portion of the prosecutor’s cross examination of appellant’s mother. Page 396 contains portions of the prosecutor’s cross examination of appellant. On neither of the two pages did appellant’s counsel make any objection to the cross examination now attacked. Moreover, the topics of the cross examination were matters which had been developed on direct examination of the two witnesses by appellant’s counsel. Appellant’s second contention has no merit.

Appellant’s third contention has two prongs. The first is that the trial court erred “in allowing the prosecutor to imply during cross examination that defense witnesses had gone through a mock trial.”

During the course of the testimony of defense witnesses Fannie Gibson (appellant’s mother) and Orville Gibson (appellant’s son), it was developed that on the night before the trial these two witnesses, several other members of appellant’s family, and appellant’s three lawyers met together at a local motel. Fannie testified that at that session “each one of us read the transcript.” The record does not disclose what transcript the witness was referring to but it seems a reasonable inference that it was the transcript of the testimony at the trial of appellant for assaulting his wife, or the transcript of a prior proceeding in the cases at bar.

Orville Gibson testified that in the motel session “we just went over what was previously said and stuff like that. The lawyers read the testimony of various troopers and different ones.” Orville added that this was done “to get me to think about what I remembered.”

The conduct of the prosecutor, assailed by appellant, consisted of asking Mrs. Gibson whether, at the motel, she “went through a practice session of testifying,” and whether she “did not have a mock court set up.” The witness answered in the negative to both questions.

There is no claim that the prosecutor acted in bad faith in making the inquiries concerning the practice session and the mock trial. The extent of cross examination on collateral matters for the purpose of impeaching a witness is largely within the trial court’s discretion, State v. Parton, 487 S.W.2d 523, 526[7] (Mo.1972), and the record does not show an abuse of that discretion.

Moreover, a substantial array of authorities supports the proposition that the prosecutor’s inquiries were within the proper scope of cross examination.

The second prong of the third contention is that the trial court committed error in refusing to give an instruction, offered by appellant, purporting to deal with the right of appellant’s counsel to interview witnesses. The second prong need not be considered for the reason that appellant’s brief fails to comply with Rule 84.-04(e); State v. Fleming, 528 S.W.2d 513, 515[2] (Mo.App.1975). That rule provides, in part, “If a point relates to the . refusal . . . of an instruction such instruction shall be set forth in full in the argument portion of the brief.” The argument portion of appellant’s brief does not set forth the refused instruction.

Appellant’s third contention has no merit.

There is no error in the matters of record reviewed pursuant to Rule 28.02 V.A.M.R.

The judgment in each case is affirmed.

All concur.

      .(a) “The prosecutor improperly argued that if the victims were alive, they would testify differently than defendant.”
      (b) “The prosecutor improperly argued that if the jury acquitted the defendant they would be condoning his actions and subjecting the public to great dangers.”
      (c) “The prosecutor improperly argued matters of character which were irrelevant and which were not supported by the evidence.”

      .“The prosecutor improperly argued his personal opinion regarding the guilt of defendant.”

      .Among the instructions given the jury was MAI-CR 3.58 which deals with limiting the effect of a prior conviction to the issue of credibility.

      . “An objection to arguments or statements of counsel must be specific and the objection must call the attention of the court to the ground or reason for the objection.” State v. Farmer, 536 S.W.2d 748, 751[10] (Mo.App.1976).

      . See State v. Taylor, 486 S.W.2d 239 (Mo.1972).

      . “The defendant did not adhere to the general rules in developing his evidence in chief and, consequently, having brought the matter out on direct examination may not now complain of the cross-examination of his witness with reference to the same or related subjects.” State v. Carroll, 188 S.W.2d 22, 24[5] (Mo.1945).

      . “During cross examination of some of defendant’s witnesses, counsel for plaintiff questioned them concerning a meeting held at a hotel in Carrollton, the night before, which was attended by defendant and by certain of his witnesses, invited by him, and by two of his attorneys. Some of the witnesses stated that, at that meeting, they discussed with counsel what their testimony would be. During colloquy between opposing counsel the Court admonished counsel for plaintiff not to make remarks which might reflect on defense counsel. It is not, and could not successfully be contended, that plaintiff could not properly inquire concerning the meeting, its purpose, the subjects there discussed, and the interest of witnesses in defendant’s cause.” Vitt v. Baer, 335 S.W.2d 681, 682 (Mo.App.1960).
      See also State v. Carson, 239 S.W.2d 532, 538[15] (Mo.App.1951); Solar v. United States, 94 A.2d 34 (D.C.1953); State v. Hayward, 62 Minn. 474, 65 N.W. 63 (1895); People v. Becker, 210 N.Y. 274, 104 N.E. 396 (1914); Boulden v. State, 102 Ala. 78, 15 So. 341 (1894); Anno. 35 A.L.R.2d 1045 (Cross examination of witness in criminal case as to whether, and with whom, he has discussed facts of case.)
      In Boulden, p. 343, the following language appears; “It is common, and we think allowable, practice to inquire of witnesses, on cross-examination, if they have talked with others in reference to the facts of the case; not as a means of impeaching the character of the witness, but of testing the accuracy or reliability of his recollection. If a witness’ memory has been refreshed before going on the stand by having the facts rehearsed to him by others, we think the jury ought to know it, that they may consider it for what it appears to be worth in determining how far the recollection of the witness is reliable. Hence, if the wife of the deceased, who was in the courthouse, rehearsed to the witness Banks, before he went upon the stand, the alleged dying declarations of her husband, the defendant should have been permitted to prove the facts on cross-examination of Banks, as he proposed to do.”


author: CLEMENS, Presiding Judge.

text:
    Steven Thomas FOERSTEL, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37407.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 31, 1976.
    Timothy A. Braun, Public Defender, St. Charles, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Ronald L. Boggs, Pros. Atty., St. Charles, for respondent.
   CLEMENS, Presiding Judge.

Movant Foerstel appeals denial of his Rule 27.26 motion to vacate a judgment sentencing him to a twenty-five year term on his plea of guilty to forcible rape. He makes two related contentions: The court should have, sua sponte, held a competency hearing before accepting his guilty plea and he was denied effective assistance of counsel by counsel’s failure to request a competency hearing.

After an evidentiary hearing on movant’s first contention, the court concluded it had not been required, sua sponte, to hold a competency hearing. We agree.

A psychiatric report stated the accused was free of mental disease or defect, was capable of understanding the nature of the proceedings against him and of assisting counsel in his defense. There is no evidence here of a challenge to the initial report certifying movant as competent to stand trial or of any circumstance casting doubt on the report’s conclusions. Absent a specific challenge to the report, the court was not required, sua sponte, to hold a competency hearing unless circumstances cast suspicion on the report’s conclusions. Davis v. State, 517 S.W.2d 97[2] (Mo.1974); Newman v. State, 481 S.W.2d 3[2] (Mo.1972); § 552.020, Laws, 1975.

Relator now argues that a later medical examination made on the parties’ stipulation cast doubt on his mental condition sufficient to require the court to conduct a hearing. Contrary to movant’s contention, there is no indication this medical examination was related to defendant’s mental competency. Movant had a hepatitis condition and we cannot conclude that medical examination was related to or cast doubt on his mental condition.

The transcript shows a knowledgeable awareness by movant as to the trial court’s cautiously conducted guilty plea proceedings and shows his competence to assist counsel. We find no error in failing to hold a competency hearing.

Movant’s second allegation charging ineffective assistance of counsel was denied without an evidentiary hearing. He contends counsel was ineffective because he failed to challenge the report certifying him as competent to stand trial. Since we have held the record is devoid of any bona fide doubt requiring a competency hearing, we cannot say counsel was ineffective in not demanding it.

We do not find the judgment clearly erroneous.

Judgment affirmed.

STEWART and RENDLEN, JJ., concur.

1


author: MeMILLIAN, Judge.

text:
    MARK TWAIN BANCSHARES, INC., et al., Plaintiffs-Respondents, v. William KOSTMAN et al., Respondents, and First National Bank of St. Peters et al., Respondents-Appellants.
    No. 35552.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 17, 1975.
    Motion for Rehearing or Transfer Denied Sept. 8, 1975.

      Niedner, Moerschel, Nack & Ahlheim, Paul F. Niedner, St. Charles, for respondents-appellants.
    Hearnes, Padberg, Raack, McSweeney & Slater, Godfrey P. Padberg, St. Louis, for plaintiffs-respondents.
   MeMILLIAN, Judge.

This appeal arises out of an attempt by plaintiff-respondent Mark Twain Bancs-hares, Inc., a bank holding company, to join with a group of individuals in chartering a new bank in O’Fallon, Missouri. The facts of this case are very similar to those in another case recently before Division Two of this court, Mark Twain Cape Girardeau Bank v. State Banking Board, Mo.App., 528 S.W.2d 443 (1975). Following that case, we sustain the position of the State Banking Board regarding corporate incorporators of banks.

The new bank in this case, Mark Twain O’Fallon Bank, was chartered on January 2, 1973, by the Commissioner of Finance following an investigation conducted pursuant to § 362.030, RSMo 1969. The new bank’s incorporators, organizers, and first shareholders were fifteen (15) individuals and Mark Twain Bancshares, Inc., the holding company. The charter application showed that the holding company dominated the group, holding 80.5% of the bank’s stock compared to 19.5% held by the individuals.

After the charter was issued, several existing banks in the O’Fallon area, appellants here, appealed the Commissioner’s decision to the State Banking Board. They alleged that because the new bank would be owned and controlled by a holding company, its operation would be a violation of Missouri statutes prohibiting branch banking, §§ 362.105 and 362.107.

At a hearing on the appeal on March 1 and 2, 1973, the Board heard evidence and argument from both appellants and the Mark Twain O’Fallon Bank. In an opening statement before the Board, counsel for appellants specifically challenged the presence of the holding company, a corporation, as an incorporator of the new bank. Counsel argued that the provision of § 362.030 allowing “any five or more persons” to organize a bank did not include corporate “persons” as permissible incorporators. Counsel for the new bank did not object to the introduction of this issue, and the matter was debated at some length throughout the hearing.

On March 8,1973, the Board reversed the Commissioner and held the Mark Twain O’Fallon Bank charter for naught. In the only points of the Board’s findings of fact and conclusions of law pertinent to this appeal, the Board said that:

“Bancshares (the holding company) as such is the primary organizer and applicant for the charter of Mark Twain O’Fallon Bank and was the primary initiator of the concept of said proposed bank; that this effort is an attempt to organize a bank by a holding company as distinguished from an acquisition or an affiliation .

“The Board finds that this application is an application for a bank charter which is in effect an application by a corporation for a branch bank . . . .”

Other portions of the Board’s ruling dealt with the question of the new bank’s operation and the state prohibition against branch banking. We do not consider that issue here.

The holding company and the individual incorporators thereafter appealed the Board’s decision to the Circuit Court of St. Louis County. Again the issue of a corporate “person” appearing as an incorpo-rator of the new bank was raised (this time by pleadings) and debated. On June 27, 1973, the Circuit Court reversed the Board and reinstated the new bank’s charter. The court found that “the order of the State Banking Board of 8 March 1973 reversing the action of the Commissioner of Finance was contrary to the weight of the competent, substantial and credible evidence and therefore arbitrary and capricious in that said Board substituted its discretion and judgment for that heretofore exercised by the commissioner.”

The dispositive issue on this appeal is whether a corporate entity is a “person” which can incorporate a bank pursuant to § 362.030, RSMo 1969. This question goes to the validity of the bank charter itself and precedes any other question raised concerning the proceedings in this case. Our decision on this issue is that a corporation is not a “person” within the meaning of § 362.030, and may not be an incorporator and applicant for a new bank. In reaching this decision we concur with Judge Clemens in his opinion in Mark Twain Cape Girardeau Bank v. State Banking Board, supra, a case which involves facts very similar to those here. A further discussion of the reasons for our decision here would only repeat what Judge Clemens stated in the Mark Twain Cape Girardeau Bank case, and is therefore omitted.

Respondents have contended that the issue of a corporate incorporator is not properly before this court because the issue was not raised before the Board or the Circuit Court. As our brief review of the facts above shows, the record discloses otherwise. The issue was raised without objection before the Board, and then was raised by pleadings before the circuit court.

The judgment of the circuit court is reversed and that part of the decision of the Banking Board relating to incorporation of the new bank is sustained. The cause is remanded with instructions that circuit court reinstate and affirm the decision of the Banking Board.

SIMEONE, P. J., and GUNN, J., concur.

      . The Board’s findings of fact and conclusions of law on the branch banking issue are woefully uninformative. As we noted in Central Bank of Clayton v. State Banking Board, 509 S.W.2d 175 (Mo.App. banc 1974), § 536.090 requires a written statement of the agency’s findings of fact and conclusions of law as well as “a concise statement of the findings on which the agency bases its order.” The ruling here does not comply with the statute on the branch banking issue, and would, if considered here, leave the court with “an impossible task” of determining the case de novo. Century State Bank v. State Banking Board, 523 S.W.2d 856 (Mo.App.1975).
      The question of when a bank holding company operation becomes a violation of branch banking prohibitions has been hotly contested in recent appeals, although no appellate decisions have been addressed directly to the issue. We make three observations. First, it is the responsibility of the State Banking Board, as the administrative agency charged with banking regulation, and not the courts, to decide initially questions concerning banking statutes. The function of the courts in administrative procedure is to review actions taken by the Board, not to make initial decisions for the Board. Second, the Board has the statutory authority to move against what it feels to be violations of branch banking statutes in proceedings other than bank chartering appeals. See §§ 361.260, 361.270 and 361.280, RSMo 1969. And third, under § 361.105, the Commissioner and the Board have rule making powers that could be used to clarify some of the questions raised by holding company operations. Use of the rule making authority on these questions would do much to ensure fair and even regulation of bank holding companies, while also allowing all banks the opportunity to be heard on decisions which can substantially affect their operations even though they are not parties to a given case.

      . The Circuit Court’s conclusion is a misstatement of the law. The substantial evidence test of administrative decisions is a judicial standard only. In an appeal from a decision by the Commissioner, the Board hears the case de novo. Century State Bank v. State Banking Board, 523 S.W.2d 856 (Mo.App.1975). Further, the test is whether the agency action is supported by substantial evidence upon the whole record, not whether substantial evidence supports a position contrary to that taken by the agency. See Central Bank of Clayton v. State Banking Board, 509 S.W.2d 175 (Mo.App. banc 1974).


author: DIXON, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eddie Joe CONLEY, Defendant-Appellant.
    No. KCD 28063.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Thomas M. Larson, Public Defender, Sixteenth Judicial Circuit, Douglas N. Merritt, Asst. Public Defender, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., and PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

A jury convicted defendant of robbery in the first degree in violation of Section 560.120 RSMo 1969, and the court, in accordance with the verdict, sentenced him to ten years in prison.

Defendant assigns error in the overruling of his motion to suppress pre-trial identification testimony of two witnesses, and error in the refusal of the trial court to sustain a motion to quash the jury panel on the ground of a claimed systematic exclusion of females. The judgment is affirmed.

The robbery was perpetrated by four black men at a drive-in restaurant in Kansas City, Missouri.in November of 1974. It was accomplished in daylight hours, and no disguises or masks were utilized by the robbers. The witnesses whose identification testimony is challenged were waitresses at the drive-in, one of them being a cashier at the register which the defendant emptied. This witness had a clear view of the defendant’s face throughout the robbery which lasted from five to seven minutes and was able to provide the police with a description. This witness and the other employee witness examined many photographs and attended a number of lineups during the period of approximately two months following the event and finally identified one Chester Words as a part of the group who performed the robbery. After that identification of Chester Words, a photograph of the defendant was exhibited to the witnesses. They made a tentative identification, but indicated they would prefer seeing the individual in a lineup. Subsequently, they were independently shown a lineup containing the defendant, at which time they both made positive identification of the defendant. At trial both positively identified the defendant as a participant in the robbery.

What has been recited thur far constitutes the only evidence that was presented on the motion to suppress. At trial, these witnesses further testified on cross examination by defendant’s counsel that they had been told by the police that Chester Words had implicated the defendant in the crime. One of the witnesses said that it was only after her tentative photographic identification; the other witness testified that the police statement occurred after the positive lineup identification.

The defendant’s first claim of error is that the trial court erred in overruling the motion to suppress the identification testimony. Upon the basis of the point, it is totally without merit because the only colorable contention of improper suggestion, the police officer’s statements to the eyewitnesses, was not developed on the evidence taken on the motion to suppress. It entered the case only during the trial in chief when it was developed by the defendant on cross examination of the eyewitnesses. Defendant did preserve the issue of the court’s failure to strike the testimony of the witnesses in his motion for new trial. However, even if the argument portion of the brief which refers to the statements made by the police officers is considered as fleshing out the point sufficiently to raise that issue on appeal, it is without merit. Defendant concedes that a claim of improper and suggestive identification procedure must be evaluated in the light of the totality of surrounding circumstances. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In the circumstances of this case, considering the clear opportunity for identification afforded these eyewitnesses — the lack of disguises, the obvious sincerity of the eyewitnesses in insisting upon a personal view of the subject after a tentative identification by photograph and the uncertainty as to when the police statements were made — all considered together indicate no improper or suggestive identification exists in this case.

Initial identification by photograph followed by lineup identification is not a per se violation of a defendant’s constitutional rights, State v. Reeder, 436 S.W.2d 629 (Mo.1969); and certainly will not require suppression of eyewitness identification where grounds independent of the photograph are shown. State v. Parker, 458 S.W.2d 241 (Mo.1970).

Defendant’s second point assigns as error the trial court’s failure to grant his motion to quash the jury venire because of the systematic exclusion of females from the jury panel. The point is ruled against defendant for the reason that he did not sustain his burden of proof in showing that a jury is not composed of a fair cross section of the community. State v. Amerison, 399 S.W.2d 53 (Mo.1966). Here, there was a mere oral assertion with no offer of proof; and that is a patently insufficient basis for his claim. State v. Kelly, 506 S.W.2d 61 (Mo.App.1974); State v. Davis, 462 S.W.2d 798 (Mo.1971); State v. Mooring, 445 S.W.2d 303 (Mo.1969); State v. Merridith, 433 S.W.2d 578 (Mo.1968); State v. Dowe, 432 S.W.2d 272 (Mo.1968).

The judgment of the trial court is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Ronald E. TIMLEY, Appellant.
    No. KCD 28091.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Ronald E. Timley was charged in the Jackson County Circuit Court with burglary and stealing. On trial, a jury found him guilty of the burglary charge, fixing punishment at two years’ imprisonment, and not guilty of stealing. He has appealed from the ensuing judgment and sentence.

At around 11:30 A.M., October 7, 1974, Ms. Victoria J. Milligan left her apartment, Apartment One at 1007 East 42nd Street, Kansas City. She secured both the front and rear doors. When she returned to her apartment at around 4:00 P.M., she noticed that her television receiver had been moved to the rear door. She had given no one permission to enter her apartment.

At around 12:00 or 12:30 P.M., October 7, Ms. Leola C. Anderton, owner of the building where Ms. Milligan lived, was cleaning her automobile in a driveway behind her office at 4206 Troost, near the apartment building at 1007 East 42nd Street. Ms. Anderton noticed an automobile which she described as a white Cadillac backing down the driveway to the rear of 1007 East 42nd. She noticed that the driver was black and knew that no black person lived in the apartment. She saw the driver, whom she identified as appellant, stop the ear and open the trunk. Ms. Anderton went up to the driver and asked if she could help him. “ * * * [T]he backs of four people, plus him, scurried up to my first floor landing, * * * and went in the door.” They went in the rear door of Ms. Milligan’s apartment.

Ms. Anderton noted the license number of the automobile and went to her office and called the police. When police arrived she went with an officer to the rear of the apartment building. The automobile had left. There, at the ground level, they found a television set, belonging to Ms. Milligan. They returned the television to the apartment but did not see Ms. Milligan. Ms. Anderton locked the apartment and left it at around 12:30 P.M.

At around 12:20 P.M., Officer Jones on police patrol received a dispatch to go to 1007 East 42nd Street, “a prowler call.” He met Ms. Anderton there and went to Apartment One where he found the front door open. He entered the apartment and found that things appeared to have been moved. He left and went to the rear and started up the steps to the apartment and discovered a television set. He then went up the steps to the rear door which he found partially open, with pry marks on it.

Officer Jones got the license number of the auto from Ms. Anderton M S 5-249, Missouri. The only description of the prowlers which he obtained was “Negro males.”

Police ascertained that license M S 5-249 had been issued to Nathaniel Combs, 4505 Virginia, for a Lincoln automobile.

Officers Kopp and Rathburn were sent to the Virginia address at between 12:25 and 12:30. They saw a blue Lincoln bearing license M S 5-249 parked in front of that address.

The police dispatch was for the pickup of four Negro males in connection with the burglary. Officer Kopp went to the front door of the residence, knocked and a woman who identified herself as Mary Combs answered. The officer asked if Nathaniel Combs was there and she said that he left early in the morning to go to work. She said no one was in the house but her and her baby.

The officers returned to the car and checked the motor block and found that it was warm.

At about that time a pedestrian was struck by an auto at 45th and Virginia. The investigating officers saw appellant come from the house at 4505 Virginia and walk toward the scene of the accident. The pedestrian was his daughter. Police approached appellant and asked him his identity. He told them and they placed him under arrest for burglary. The police returned to the Virginia address and eventually discovered three other black males in the attic of the residence. They were Nathaniel Combs, DeWayne Ashley and Al-gene Hall. Ms. Combs is the mother of appellant. Nathaniel Combs is his half-brother.

Fingerprint examination of the burglarized apartment, including the television set, produced no prints identified as those of appellant; nor did fingerprint examination of the automobile. Ms. Anderton picked appellant from a six-man lineup at around 9:00 P.M. on the date of the burglary.

At his trial, appellant denied that he took part in the burglary, testifying that he had been out looking for work earlier in the morning and returned to the house at around 11:30 A.M. and went to sleep. He was awakened by his mother’s calling that his daughter had been in an accident and when he went outside to investigate, he was arrested.

Oh this appeal, the first contention of appellant is that the trial court erred in overruling his motion to suppress Ms. Anderton’s lineup identification because it was the “fruit” of his unlawful arrest. As pointed out in State v. Lynch, 528 S.W.2d 454, 458-460[73—[9] (Mo.App.1975), courts which have considered the question “have been virtually unanimous in holding that an illegal arrest does not render inadmissible identification testimony resulting from a subsequent lineup or photographic identification.” 528 S.W.2d 459. In State v. Thomas, 491 S.W.2d 328 (Mo.1973), the court held that the “poisonous tree” doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), relied upon by appellant, is inapplicable to evidence of a lineup identification where such evidence emanated from an independent source or where the causal relationship between the claimed illegal arrest and the prosecution’s proof became so attenuated as to dissipate the proof.

Here, the identification of appellant by Ms. Anderton had an independent source in her meeting appellant outside the apartment house when the burglary occurred and was not causally connected with the arrest. Therefore, the “poisonous tree” doctrine is not applicable and the validity of the arrest need not be further considered. State v. Lynch, supra; State v. Thomas, supra.

Appellant contends that the trial court erred in giving Instruction No. 7 on general responsibility for the conduct of others (MAI-CR 2.10) when the verdict-directing instruction on burglary and stealing made no reference to joint action. Appellant contends that when an instruction in the form of MAI-CR 2.10 is given, the court is required to give a verdict-directing instruction in the form of either MAI-CR 2.12 or 2.14, as the facts require.

The state contends that Paragraph 4 of Notes on Use under MAI-CR 2.10 permits the use of MAI-CR 2.10 in the absence of the use of either MAI-CR 2.12 or 2.14. The Note on Use states:

“4. The failure to use MAI-CR 2.10 and 2.12 will not be deemed error even if there is substantial evidence that the defendant was a joint, active participant or actor so long as there is no evidence that he was only an aider or encourager.”

The state contends that this language pérmits the use of MAI-CR 2.10 alone so long as there is no evidence that the defendant was only an aider or encourager.

The St. Louis District recently considered the use of 2.10 alone in a case in which the defendant was only an aider or encourager and concluded that in such case 2.14 was required to be used in connection with 2.10 in order to submit to the jury the issue of knowing and intentional aid and encouragement. State v. Poor, 533 S.W.2d 245, 251-252[10, 11], [12] (Mo.App.1976). See also State v. Lemon, 504 S.W.2d 676, 683-684[14] (Mo.App.1973).

Here there was evidence that appellant was an active participant in the burglary and he makes no contention that 2.14 should have been given.

The scheme of MAI-CR clearly contemplates the use of 2.10 in connection with either 2.12 or 2.14. The language of Paragraph 4 of the Notes on Use under 2.10, relied upon by the state, does not mean that 2.10 may be given without a verdict-directing instruction in the form of either 2.12 or 2.14. Absent the verdict-directing instruction in such language, the jury is given no instructional guide for the application of the abstract principles stated in 2.10. State v. Lemon, supra.

The question remains whether failure in this case to phrase the verdict-directing instruction in the form of 2.12 was prejudicial error. Rule 20.02. Appellant contends that the jury might have construed the instruction as an implied comment on the unbelievability of his defense that he was home sleeping at the time of the offense. That is a far too strained construction to place upon the instruction. The state’s evidence clearly showed that more than one person was involved in the burglary. Therefore, Instruction No. 7 did relate to evidence before the jury. The instruction in no way assumes that appellant was one of the persons involved. The jury was required to find that he did actively participate in order to find him guilty under the verdict-directing instruction. In these circumstances, the giving of Instruction No. 7 was not prejudicial. State v. Brown, 332 S.W. 904, 909-910[7-10] (Mo.1960).

Appellant complains of the trial court’s refusal to give an instruction, tendered by appellant, which would have required the jury to scrutinize carefully the testimony of the eyewitness who identified appellant. The instruction was in the form of Instruction No. 5, given by the court in State v. Murphy, 508 S.W.2d 269, 275 (Mo.App.1974).

State v. Murphy, supra, did not change the law that such an instruction is a cautionary instruction, to be given in the exercise of the trial court’s discretion. State v. Taylor, 472 S.W.2d 395, 401-402[3, 4] (Mo.1971). No abuse of discretion has been demonstrated here.

Appellant’s contention that the evidence was insufficient as a matter of law to sustain a conviction for burglary is without merit. Appellant concedes that the evidence showed that a burglary occurred but contends that it was insufficient to show that he participated in it. The evidence showed that appellant was the driver of the automobile which backed up to the apartment building where the burglary occurred; that he opened the trunk of the auto and, when spoken to by Ms. Anderton, fled up the rear stairs into the apartment which was subsequently found to have been forcibly entered. Appellant relies upon an obvious misstatement by the prosecutor in one of his questions to Ms. Anderton in which he stated that the witness had said she was cleaning her car at around 10:00 or 10:20. Appellant argues that on this basis he was in the vicinity according to Ms. Anderton more than an hour before the burglary was discovered. Ms. Anderton had previously placed the time at between 12:00 and 12:30 and again did so in her cross-examination. This time was consistent with the testimony of the police officer who investigated the burglary. In passing upon the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the state’s case. State v. Stapleton, 518 S.W.2d 292, 296[1] (Mo.banc 1975). Appellant would view the evidence in the least favorable light.

The state’s evidence was more than adequate to permit the jury to conclude beyond a reasonable doubt that appellant was an active participant in the breaking and entering of the apartment and that, although their efforts were frustrated, the entry was with intent to steal.

Judgment affirmed.

All concur.