author: SWOFFORD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Charles L. TATE, Appellant.
    No. KCD 29875.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.
    Application to Transfer Denied July 17, 1979.
    Clifford A. Cohen, Public Defender, Kevin Locke, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

Appellant was convicted by a jury of Robbery First Degree and sentenced to twelve (12) years confinement in the Missouri Department of Corrections. From this judgment, he appeals. The robbery as charged in the Information occurred on April 7, 1977. The trial began September 20,1977 and the jury returned its verdict on September 21, 1977.

Prior to the selection of the jury the defendant (appellant) filed his motion to quash the jury panel upon the ground that the procedure for the selection of jury panels in Jackson County, Missouri under § 494.031 and § 497.130 RSMo 1969, and Article I, Section 22(b) of the Constitution of Missouri (1945) allowing women automatic exemption from jury service denied him his right to a jury composed of a representative cross-section of society and thus denied him his Sixth Amendment rights.

In support of this motion to quash the jury panel the defendant filed a written stipulation which referred to and incorporated supporting exhibits, agreeing to the procedures followed in the selection of the 1976 jury wheel from which trial jury panels were drawn which in lieu of evidence supported the charge that under the above-noted statutes and the forms and questionnaires used to implement them, women were, in fact, granted automatic exemption upon request in that year and that these procedures resulted in a disproportionate number of women jurors for service. In open court, the state agreed that the same method was employed to select the jury wheel for 1977, from which the jury panel that tried defendant in this case was drawn. It was further stipulated in open court and on the record that of the 38 persons on the panel three were women and of the twelve persons comprising the jury one was a woman.

The state takes the position that, although there is no dispute as to the nature and description of the exhibits referred to in the stipulation, the defendant did not in fact file such exhibits as a part of the stipulation or as part of the record on the trial in support of his motion to quash the panel. During the presentation of the motion to quash the jury panel it appears, however, that the prosecuting attorney made the following statement to the court:

“MR. WILLIAMSON: (Prosecutor) I believe that Mr. Sterling (defense counsel) said the exhibits aren’t attached to the stipulation, Judge.
This motion has been filed in a number of cases, and I don’t have any objection to the exhibits being filed at a later time, as they have been — the same exhibits that have been in other cases, I think, that has been before yourself and most of the other judges here in the circuit.”

The methods of selection of prospective jurors whose names were placed in the jury wheel of Jackson County, Missouri and the policy employed as to automatic exemption of women upon request has in the last few years been spread upon the records of many trial courts, this Court and the Supreme Court of Missouri in a number of cases and was well and generally known. There was no issue as to this in the trial below, and, if any purpose would be served, this Court could order the exhibits referred to in the stipulation filed here as part of the record. However, this Court is intimately familiar with these forms and documents and they are unnecessary for a determination of this case in the light of the decision in Duren v. State of Missouri, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579, decided by the Supreme Court of the United States on January 9, 1979, and other cases decided by that Court in January wherein it was held that the methods employed by Jackson County, Missouri as affecting jury service of women violated the fair cross-section requirement set forth by that court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) and was in violation of the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment of the Constitution of the United States. Duren v. State of Missouri, supra, requires reversal of the judgment in this case.

Reversed and remanded.

All concur.


source: Caselaw Access Project

author: KENNEDY, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Buddy M. McCOLLUM, Defendant-Appellant.
    Nos. KCD 29962, KCD 29925.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.
    Application to Transfer Denied July 17, 1979.

      Howard L. McFadden, Jefferson City, for defendant-appellant.
    Paul R. Otto, Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

We affirm defendant’s conviction of failure to return to prison after being permitted to go at large, a felony under § 557.351, RSMo Supp.1975. The judgment followed a jury verdict of guilty. Under the Habitual Criminal Act he was sentenced by the Court to five years in the Department of Corrections.

The facts are these:

Defendant McCollum, a prisoner at Church Farm, a prison of the Division of Corrections, was granted temporary leave “for the purpose of re-establishing family ties and visiting”. The time of the leave was 72 hours, beginning at 10:00 a. m. on June 1, 1976, and ending at the same time on June 4. The leave was authorized by a document signed by prison officials and also by defendant McCollum, which contained the beginning time, the duration and the ending time of the leave.

He did not return at the end of the leave period.

He was arrested in St. Louis on October 27, 1976. After he was returned to the main penitentiary on November 1, he made and signed a statement as follows: “Inmate McCollum states due to many things he had on his mind, he was irrational on making the right decision in returning to Church Farm at the end of temporary leave.”

Defendant’s own testimony was that he was permitted at his own request to leave the prison at 10:30 p. m. on May 31. The authorization for the early departure was contained in an “out count” signed by Captain Morrow. Defendant’s testimony seems to indicate that he believed, since he was permitted to leave early, that the return time contained in the leave document was not applicable, and that he was absent from the prison in some other unspecified status. He said he knew he would have to return to the prison when he was caught.

Appellant’s first complaint is that Lieutenant McQuaid was permitted over his objection to testify that he, defendant McCollum, had been at the prison shortly after midnight on June 1, 1976, when, as the witness said, he was picked up by his wife upon a furlough which was authorized to begin at 10:00 a. m. on June 1. This fact as a voir dire examination brought out, had been reported to the witness and was not personally known to him.

Hearsay testimony, as we are taught in the hornbooks, is inadmissible. This testimony of witness McQuaid was plainly hearsay, ergo, inadmissible. State v. Hermann, 283 S.W.2d 617, 621 (Mo.1955). (There is some suggestion that the witness was basing his testimony upon a business record, namely, an “out count” which had been in defendant McCollum’s prison file, but which had since been destroyed. In view of the disposition we make of the question in the next paragraph, we do not need to go into the question of testimony based upon the lost business record.)

Error though it may have been to allow the challenged testimony, it was plainly innocuous. State v. Young, 490 S.W.2d 28, 30 (Mo.1973); State v. Thomas, 540 S.W.2d 97, 98 (Mo.App.1976); State v. Proctor, 535 S.W.2d 141,143 (Mo.App.1976). The fact of defendant’s release on furlough, and that by permission he left during the preceding evening or night, was abundantly proved by other evidence, and was not disputed, and indeed was admitted by defendant in his own testimony. The precise time of his leaving, and by what means he left, are details of no consequence. The hearsay testimony of McQuaid could have been left out entirely without weakening the state’s case or strengthening the defendant’s case. The error was not prejudicial.

The point is disallowed.

Appellant claims error at several points in the use of the word “furlough” to describe the period of defendant’s authorized absence from the prison.

The statute, insofar as applicable here, punishes the failure to return to a division of corrections institution “when permitted to go at large”. The information charges that defendant failed to return after he was “furloughed”. The verdict-directing instruction authorized conviction of “failure to return from furlough” if the jury found (among other findings, of course) that the defendant was “furloughed”.

Defendant points out that the statute does not punish failure to return from “furlough”; that the state’s evidence of defendant’s authorized leave, consisting of a document signed by prison officials and also by defendant, described the period as “temporary leave” and not as “furlough” — and therefore, he argues, two necessary conclusions follow: (1) That the evidence was insufficient to sustain the conviction, and (2) the instruction which hypothesized a finding defendant was “furloughed”, and which allowed a conviction of “failing to return from furlough” lacked an evidentia-ry basis and allowed conviction of an unknown crime.

We are unable to accept defendant’s argument. A “furlough” is by definition “a leave of absence”. As a transitive verb, it means “to grant a furlough to”. It is an apt and a convenient term to describe defendant’s temporary leave from the prison. The information might have alleged that the defendant was “permitted to go at large”, and the instruction might have required such finding, and might have described the crime as “failure to return after having been permitted to go at large”. But “furlough” is interchangeable with “temporary leave” and both are — if we may borrow a phrase from another area of law — a lesser included concept within “permitted to go at large”. See State v. Harris, 564 S.W.2d 561, 573 (Mo.App.1978).

It may be more satisfying to find the precise statutory language in informations and in instructions, but it is not essential if terms are used which convey the same meaning with clarity and precision. In this case the use of the term “furlough” meets that standard and its use is not error.

The judgment of conviction is affirmed.

All concur.


author: PRITCHARD, Judge.

text:
    STATE of Missouri, Respondent, v. Harold HAWKINS, Appellant.
    No. KCD 29994.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.
    Application to Transfer Denied July 17, 1979.
    Clifford A. Cohen, Public Defender, Kevin R. Locke, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

On November 15, 1977, a jury found appellant guilty of the commission of three crimes: Robbery in the First Degree; Assault with Intent to do Great Bodily Harm with Malice; and Armed Criminal Action. Upon a finding that appellant was a second offender, the court sentenced him, respectively, to imprisonment in the Department of Corrections, ten years, fifteen years, and three years, to run consecutively, a total of twenty-eight years.

Counsel for appellant moved the court to quash the jury panel on the ground that § 494.031 RSMo 1969, permitting women on juries to be excused from jury service upon their timely application, is unconstitutional. Counsel stated to the court that he was not prepared to put on any evidence in regard to the motion, resting his motion on asserted invalidity of the juror questionnaire, and “the fact that as women may opt off jury panels at their whim, I feel, is unconstitutional on its face”. The court noted that there was a test case pending in the Supreme Court on this issue, which was pending in a number of other cases, and for the purpose of the trial, the motion was denied. See Duren v. Missouri, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). The issue was presented in the motion for new trial, but it is not included with appellant’s briefed two points on this appeal.

The matter pertaining to the Duren, supra, question, being one of constitutional nature, may and should be considered by this Court sua sponte as plain error under Rule 27.20(c). State v. Coyne, 452 S.W.2d 227, 228[1] (Mo.1970), and cases cited; State v. Tolliver, 561 S.W.2d 407 (Mo.App.1977); State v. Henderson, 510 S.W.2d 813 (Mo. App.1974).

There was no evidence, as noted, presented as to the number or percentages of women who were excused upon their request from being members of the jury wheel; as of any resultant disproportionate number or percentage of women who actually appeared for jury service in this case. The Duren case, supra, held that in March, 1976, Duren was unconstitutionally deprived of a fair cross-section of the community by reason of the exemption of women from petit jury service—which had been done systematically. In several other cases tried in Jackson County, Missouri, the state stipulated that for the year 1977, the same method of selecting jury wheels as was employed in 1976 was used. See for example, State of Missouri v. Heavey, 582 S.W.2d 284 (Mo. App.1979) (No. WD 29,834); and State of Missouri v. Peters, 582 S.W.2d 323 (Mo. App.1979) (No. WD 29,710); State of Missouri v. Tate, 582 S.W.2d 329 (Mo.App. 1979) (No. WD 29,875); State of Missouri v. Buford, 582 S.W.2d 298 (Mo.App.1979) (No. WD 29,658). It is noted in the Tate case that “ * * * [T]he policy employed as to automatic exemption of 'women upon request has in the last few years been spread upon the records of many trial courts, this Court and the Supreme Court of Missouri in a number of cases and was well and generally known”. In State of Missouri v. Coleman, 582 S.W.2d 335 (Mo.App.1979) (No. WD 30,043) it is held “These proofs concede, and these precedents decide, that the systematic gender discrimination in Jackson County venires for the year 1976 which prompted reversal in Duren continued into year 1977 * * [All these cited cases are handed down concurrently herewith.]

The fact of systematic gender discrimination existing in the foregoing eases for the year 1977 (when this case was tried) may be judicially known by this Court under the exception to the the general rule stated in Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889[3] (1943). ‘“Of course a court can judicially notice its own records, and courts, when justice requires, should and do, in deciding a case, consider the records of other cases, * * *. And “there may be cases so closely interwoven, or so clearly interdependent as to invoke” a rule of judicial notice in one suit of the proceedings in another suit.’ 23 C.J., pp. 113-114; Thompson v.Scott, supra. See, also, 31 C.J.S., Evidence, § 50.” Note also, Sympson v. Rogers, 314 S.W.2d 717, 721[3] (Mo.1958); Layton v. State, 500 S.W.2d 267, 269[4-8] (Mo.App.1973); and Mince v. Mince, 481 S.W.2d 610, 614 [9-14] (Mo.App. 1972). The fact judicially noticed here appears with certainty, upon which controversy is unlikely. Therefore, for this reason, this case must be reversed and remanded for new trial.

One issue must be determined before remand. Appellant contends (Point I) that the trial court erred in failing to suppress evidence of his flight(s). The first flight in evidence was about one hour after the alleged robbery, when an officer spot-i ted appellant eleven blocks from the scene. ' Appellant fled, was pursued, but was not .; apprehended, but the officer recognized i him. The second flight was from appellant’s home and he was seen in the back yard thereof, ordered to freeze, but escaped after a foot chase. Forty-one days later, appellant was seen again by officers at 47th and Troost, and then after pursuit he was arrested. This evidence will be admissible on new trial as a circumstance the jury might consider as an intention to avoid trial because of a consciousness of guilt. State v. Duncan, 336 Mo. 600, 80 S.W.2d 147 (1935); State v. Adams, 537 S.W.2d 201 (Mo.App.1976). In State v. Rutledge, 524 S.W.2d 449, 458[14] (Mo.App.1975), it was said, “Unexplained flight is a relevant circumstance in connection with guilt or innocence. Flight may be either from the scene of the crime or elsewhere if it is in order to avoid arrest or prosecution. Remoteness of the flight — in space and time — from the scene and time of the alleged crime goes only to the weight of the evidence and not to its admissibility, (citing cases).” (Emphasis supplied). These cases control and Point I is overruled. Point II relates to argument of counsel which is unlikely to recur on new trial and thus need not be considered.

The judgment is reversed and the case is remanded for new trial.

All concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. John COLEMAN, Appellant.
    No. KCD 30043.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.
    Application to Transfer Denied July 17, 1979.
    Clifford A. Cohen, Public Defender, Kevin Locke, Lee M. Nation, Asst. Public Defenders, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

      Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   SHANGLER, Presiding Judge.

The appeal is from a conviction by jury for murder in the second degree. We reverse and remand for new trial on the principle of Duren v. State of Missouri, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

At commencement of trial the defendant moved quashal of the jury venire on the grounds that the procedures by law [Article I, § 22(b) of the Missouri Constitution of 1945 and § 494.031, RSMo 1969)] which exempt from service as a juror any woman who requests excuse on account of gender deny a right to jury by a representative segment of the community in violation of the Sixth and Fourteenth Amendments to the United States Constitution. The motion was accompanied by a stipulation that the method used by the Jury Commissioner of Jackson County to devise the jury wheel for the year 1976 was employed for the year 1977. The stipulation was amplified by an agreed incidence of statistics [between January and July of that year] of women who claimed gender exemption and, ultimately, the numbers by gender which made up the wheel. The motion for quashal of the ve-nire was denied by the trial court and the proceeding went to judgment and conviction.

The same challenge [but on a statistical incidence between June-October of 1975 and January-March of 1976] was made to the petit jury venire, and rejected, in State v. Duren, 556 S.W.2d 11 (Mo. banc 1977). On certiorari, the United States Supreme Court found, however, that the petit jury selection process by Missouri law, as given effect in Jackson County, resulted in a systematic exclusion of women so that the jury venires were not representative of the community in violation of the Sixth Amendment rule in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

The defendant contends that the United States Supreme Court opinion in Duren, made retrospective by effect, determines his contention for reversal. It is the contention of the State, however, that neither the statistical data for Duren [which dealt with the jury wheel and venire compositions for segments of the years 1975 and 1976] nor the statistical data by stipulation [as to the jury wheel composition for the first seven months of 1976] determines a comparable discriminatory effect for the petit jury pool for 1977, when the defendant was tried.

We have rendered opinions concurrently to reverse and remand criminal convictions returned in 1977 on a stipulation by the prosecution that the method used to devise the Jackson County petit jury wheel was that employed in year 1976 [State v. Tate, 582 S.W.2d 329, No. KCD 29,875; State v. Buford, 582 S.W.2d 298, No. KCD 29,658] on a stipulation of statistics which show continued underrepresentation of females in jury venires of that venue in year 1976 beyond the base period of Duren [State v. Peters, 582 S.W.2d 323, No. KCD 29,710], and on a stipulation that the method for selection of the petit jury was that used in State v. Hardy, 568 S.W.2d 86 (Mo.App. 1978) reversed on certiorari companion to Duren, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) [State v. Heavey, 582 S.W.2d 284, No. KCD 29,834], These proofs concede, and these precedents decide, that the systematic gender discrimination in Jackson County venires for year 1976 which prompted reversal in Duren continued into year 1977 and requires reversal of the conviction against the defendant Coleman.

Quite apart from these rationales, where a defendant has raised and preserved the contention of gender discrimination in the petit jury selection process, Duren requires reversal of a year 1977 conviction by a Jackson County jury, without further proof of an underrepresented venire [99 S.Ct., 1. c. 669]:

[The] undisputed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of nearly a year manifestly indicates that the cause of the underrepre-sentation was systematic — that is, inherent in the particular jury-selection process utilized.

We understand that to mean that a jury selection system installed by law gender-discriminatory in method and gender-discriminatory by prolonged practice [the 1975 and 1976 base period proven in Duren] is deemed to continue until shown abated by the State.

That the Missouri Supreme Court shares our understanding is evident from its mandate for reversal and new trial entered in State v. Arrington, 559 S.W.2d 749 (Mo. bane 1978) on remand from the United States Supreme Court “for reconsideration in light of Duren v. Missouri.” That order for new trial issued despite any evidence on the trial court motion to quash that the venire from which the jury was drawn was not fairly representative of the female gender. State v. Arrington, supra, l. c. 751.

The discriminatory method of jury selection and the incidence of discriminatory venires in Jackson County proven at the time Duren was tried persisted into year 1977 when the defendant Coleman was tried. The defendant on his timely motion was entitled to a quashal of the petit jury venire by which he was convicted.

The judgment is reversed and remanded for new trial.

All concur.

      . The mandate in these terms issued from the Supreme Court of Missouri on March 15, 1979, in State v. Arrington, 559 S.W.2d 749, to give effect to the decision of the United States Supreme Court in Arrington v. State, - U.S. -, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Willard TERRY, Defendant-Appellant.
    No. KCD 30053.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.

      William F. Bauer, Tim L. Warren, St. Joseph, for defendant-appellant.
    Paul R. Otto, Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., and TÜRNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

Appellant was convicted upon a trial by jury of first degree robbery and of rape. In accordance with the verdict, he was sentenced respectively to 30 years and 25 years imprisonment by the Department of Corrections, to be served consecutively. He appeals. We affirm.

We will briefly state the facts, omitting the ugly details which are unnecessary for our purpose:

At about 3:00 o’clock in the morning of July 23, 1978, Sharon (the rape victim) was in her apartment with three guests — Randy Moore, her boy friend, Raymond Belcher and Gary Bashor. A man later identified as appellant came to the door and asked if any of them knew where a person named McDonald lived. None of the four was able to give him the information, and he left.

Fifteen or twenty minutes later the man reappeared at the door. Belcher and Ba-shor had left, and Sharon had gone to the bathroom. Moore answered the door. The man asked to borrow ice. Moore went back to ask Sharon if there was any ice to be given to him. On Moore’s return to the front room, the man produced a gun. He demanded Moore’s money and got about $450 from him. He then got about $50 or $60 from Sharon.

He then forced Moore into a back room of the apartment and required Sharon, under threat of death, to accompany him. He ushered her outside and into a nearby field where he raped her twice.

Other facts will appear as the opinion progresses.

We will take in order defendant’s points of error:

Prosecutor’s remark in argument relating to adulterous interracial living arrangement. Linda Shouse, a white woman, had testified in defendant’s behalf that she lived with defendant, a black man, and that defendant had been with her when the offense was alleged to have occurred.

In argument the prosecuting attorney made the following statement: “And the same thing for Linda Shouse. Again, does she have a right to be believed when common sense, common experience tells you that a woman who has lived with a man for two years, no doubt with the kind of moral certainty or the kind of moral conviction that it would take for a white man — for a black man to live with a white woman — ”

Here he was interrupted by an objection. Defendant’s counsel urged that the prosecuting attorney was “inciting racial prejudice”. The prosecuting attorney explained to the court, outside the jury’s hearing, that the thrust of his argument “was that a woman who has the conviction, the moral conviction, the ability to stand up to pressure on the outside to live with a man of a different race . . . that she would certainly have the strength to come up on the stand and testify for him. He certainly means a great deal to her.”

The court refused to declare a mistrial, a ruling now assigned as error, but sustained the objection and instructed the jury to disregard the argument. “I had some difficulty in following it,” said the court, “but whatever it is, you’re instructed to disregard it. The racial characteristics of the people involved here have nothing to do with this case one way or the other.”

The prosecutor continued: “This woman indeed has a great deal of moral conviction, indeed has a great strength, in that she is willing to forego a great deal, and we simply say to you to take that, because you have to take that into consideration as to their testimony on the stand.”

The trial court having found the prosecutor’s argument was improper, we cannot say the court’s action was not sufficient in sustaining the objection and admonishing the jury to disregard the remark. He was well within his discretion in refusing a mistrial. We are reminded that mistrial is a drastic remedy, to be granted only when the trial court believes the prejudicial effect of the error cannot be obviated by more conservative measures. To this judgment the trial court brings a sense of the ambience of the trial. He can assess the impact upon the jury of the improper argument. Unless we can discern upon the record an abuse of discretion, we accept the trial court’s ruling as correct. State v. Frankoviglia, 514 S.W.2d 536, 539 (Mo.1974); State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970).

Alleged misstatement of the evidence in prosecutor’s argument. A portion of the hospital record of the examination of the rape victim was read in evidence:

“Patient states — This is complaints.”
“Patient states she was raped during armed robbery. No other physical trauma.”

In his final argument the prosecutor said: “. . . Mr. Dale said that the doctor’s report shows no mention of bruises or abrasions. On the other hand, it does not show that there are not bruises or abrasions.” Defense counsel objected that this was a misstatement of the evidence. The court’s adverse ruling is assigned as error.

The report is open to some construction. The report did not say, as defense counsel stated in his objection, that there was no other evidence of physical trauma. The word “trauma” may mean either the blow or other insult, or the resultant condition. Furthermore, the statement in the report, “No other physical trauma”, could be interpreted as a part of the patient’s report of the incident, rather than as a finding by the examining physician that there were no marks of injury on the witness’s person. The attorneys disagreed, apparently before the jury, on the meaning of the statement in the report. The trial court did not discern, nor do we, any bad faith on the part of the prosecutor. The court in effect referred the jury to the exhibit itself, to decide for themselves what was meant by the statement. No prejudice could have resulted. We have no criticism of the court’s disposition of the incident, and defendant’s point is disallowed. State v. Taylor, 496 S.W.2d 822, 824 (Mo.1973); Collins v. Cowger, 283 S.W.2d 554, 561 (Mo.1955).

Allowance of identification evidence. Appellant complains of the admission of the identification testimony of witnesses Moore and Belcher and of Sharon, claiming that the lineup and showup procedures at which appellant was first identified were imper-missibly suggestive, were conducive to irreparable misidentification, and therefore violated his Due Process rights.

Moore and Belcher had been asked by Lieutenant Pasley to come to the police station to give information about the crime. During the forenoon of the day of the occurrence, as they were sitting in an outer office, defendant was brought in handcuffs through the office by three officers. He was being taken to Inspector Schott’s office, which adjoined and opened off the outer office where Moore and Belcher were sitting. A pickup order had been issued for defendant, but his arrival at that time and the encounter with Moore and Belcher were unplanned. Moore and Belcher simultaneously and spontaneously identified the defendant as the person who had been at Sharon’s apartment the night before.

That afternoon defendant was lined up with four others and Sharon was brought in to view the lineup. She immediately identified defendant. Without describing each person in the lineup in detail, we can say that there was no gross disparity in the appearances of the subjects, and that the police evidently made a good faith effort to line up persons somewhat similar in appearance. Defendant was wearing blue jeans and a white T-shirt, which he was wearing at the time of his arrest. (Sharon said he had on blue jeans and a light blue T-shirt at the time of the crime.) The others were dressed in comparable style.

The point of condemning suggestive lineup and showup procedures is that a witness whose grasp of the culprit’s appearance is tenuous and uncertain, because of a lack of opportunity to see him for sufficient time in adequate light, may be misled into a wrong identification which becomes irreparable. If, however, the court is convinced that the identifying witness had sufficient opportunity at the time of the crime to fix in his mind’s eye the appearance of the culprit, then the witness will not have been misled even by a suggestive lineup or show-up. Therefore the court looks at the “totality of circumstances ” to see if there is “a substantial likelihood ’ of irreparable mis-identification”. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 et seq. (1972).

In this case we are entirely satisfied that there was no such “very substantial likelihood of irreparable misidentification.” Here Moore, Belcher and Sharon had all seen the defendant when he came to the apartment door at 3:00 a. m. — two witnesses placed him a step inside the door — and had asked if they knew where “McDonalds” lived. There was sufficient light that he could plainly be seen. On his return 15 or 20 minutes later to ask for ice, when he committed the robbery and abducted Sharon, he was inside the lighted apartment. Moore and Sharon — Belcher and Bashor had left — saw him quite plainly for some period of time. They were able to give an accurate description of the defendant which enabled the police to apprehend him. As pointed out above, Moore and Belcher, when they saw defendant at the police station later in the morning, and Sharon, when she saw him in the lineup that afternoon, were positive and unhesitating in their identification.

All the factors, therefore — the opportunity to view, the degree of attention, the accuracy of the description, the witnesses’ level of certainty, and the time between the crime and the confrontation — make for an identification which would overcome a good measure of undue lineup and showup suggestiveness, even if that were present. The court, therefore, quite correctly overruled the defendant’s motion to suppress in-court, lineup and showup identification, and left them to the jury to evaluate. Manson v. Brathwaite, supra; Neil v. Biggers, 409 U.S. at 201, 93 S.Ct. 375; State v. Simmons, 559 S.W.2d 557, 561 (Mo.App.1977). In this connection, we commend the following statement from the majority opinion of Mr. Justice Blackmun in Manson v. Brathwaite, 432 U.S. at 116, 97 S.Ct. at 2254:

Short of that point [i. e., a very substantial likelihood of irreparable misidentifi-cation], such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.

Refusal to allow defendant to show complaining witness’s venereal disease. One point remains: Defendant says the court erred in making an in limine ruling denying defendant the right to show by extrinsic evidence that the victim, Sharon, had gonorrhea at the time of the rape. The relevance of such evidence has not been shown to us. It would certainly not tend to prove any issue in the case. It would not be admissible on the issue of the rape victim’s credibility. Although invited by the trial judge to do so, defendant could suggest no theory of relevance. The trial court was entirely correct in refusing without a showing of relevance to allow the unfortunate woman’s humiliation to be compounded. State v. Yowell, 513 S.W.2d 397, 403-4 (Mo. banc 1974); State v. Lee, 404 S.W.2d 740, 749 (Mo.1966); State v. Kain, 330 S.W.2d 842, 845 (Mo.1960).

Defendant points to § 491.015(1), subpar-agraphs (1) and (2) as allowing this evidence. But not so. This section comes into play when prosecutrix claims rapist gave her a certain disease. The statute then allows proof of other specific sexual activity to show another source or sources of the disease.

Defendant in his brief here, in an attempt to make the evidence relevant, says that it might have been shown that the disease was highly contagious and that defendant didn’t catch it, and therefore he was not the rapist. Defendant did not claim to the trial court that he could produce any such evidence, and does not claim so here. The evidence is by no means admissible on the basis of such hypothetical connecting evidence. State v. Lee, 404 S.W.2d 740, 749 (Mo.1966); State v. Martin, 124 Mo. 514, 28 S.W. 12, 14 (1894).

The judgment is affirmed.

All concur.

      . Clothing similar to apparel worn at time of offense does not indicate impermissible suggestiveness. State v. Arnold, 528 S.W.2d 164 (Mo. App.1975).

      . Cf. People v. Fong Chung, 5 Cal.App. 587, 91 P. 105, 107 (1907), where prosecution had already placed the fact of venereal disease in evidence, the defendant had produced medical evidence that he had never had the disease, and the question improperly excluded concerned whether the prosecutrix already had the disease at the time of the alleged rape.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Ben L. DAVIS, Appellant.
    No. 39044.
    Missouri Court of Appeals, Eastern District.
    May 9, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 15, 1979.
    Application to Transfer Denied July 17, 1979.

      William J. Shaw, Public Defender, Dennis N. Smith, Asst. Public Defender, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Lawrence Mooney, Clayton, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of four counts of first degree robbery. Defendant was tried under the second offender act and sentenced to three concurrent ten year terms on the first three counts and a fifty year consecutive term on the fourth count.

No contention is raised that the evidence was insufficient to support the verdict so only a short factual statement is required. At approximately 11 a. m. on July 11, 1975 three men robbed a Tennessee Jed’s restaurant on Lindberg in Frontenac. Two of the men carried sawed-off shotguns, the third may have had a pistol. Defendant was identified as one of the robbers. Following arrest on another charge, defendant made some inculpatory statements, both oral and written, and took policemen to a house in Wellston where a sawed-off shotgun was found in a location described by defendant. Further discussion of defendant’s statements will be made subsequently.

Defendant’s first contention is that he was denied due process because the sentence imposed on Count IV exceeded the sentence he would have received had he pled guilty. After hearings on certain pretrial motions plea bargaining negotiations were conducted between counsel for defendant and the State. Following these negotiations a discussion occurred between counsel and the court. The court indicated that if defendant entered a plea of guilty the court would sentence him in accordance with the recommendation of the State. The recommendation of the State would be fifteen years on each of five counts (the four here involved and one other still pending) to run concurrently. Defendant opted to go to trial.

During the trial, following several requests by defense counsel, the court advised counsel that based upon testimony he had heard and having been advised that defendant had several prior felony convictions, if defendant was convicted and sentencing was up to the court defendant would receive “a substantial amount of time . more than recommended.” The court also advised counsel that the time for such determination had not arrived, that the court could give no definite length of sentence at that time, and that the sentence “would be in accordance with the evidence and all of his background.”

Following conviction the court assessed the sentences set out above. We attach as an appendix hereto the colloquy between defense counsel and the court following sentencing.

In North Carolina, v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) the United States Supreme Court held that it was a denial of due process to enhance or threaten to enhance a defendant’s punishment to prevent him from exercising a constitutional right. But the doctrine of those cases has been expressly held not applicable to cases involving plea-bargaining. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978). In the latter cases it is recognized that in the “give-and-take” of plea bargaining, concessions are made by the prosecutor and leniency is granted by the court in exchange for the plea.

“There is no doubt that those homicide defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed.” Corbitt v. New Jersey, supra, 439 U.S. .212, l.c. 223, 99 S.Ct. 492, l.c. 500, 58 L.Ed.2d 466, l.c. 477.

Missouri has also recognized the propriety of plea bargaining. Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978). While judicial participation in the bargaining itself is not approved (State v. Tyler, 440 S.W.2d 470 (Mo. banc 1969) [4-7]) indication of the judge’s willingness to accept a particular disposition is not improper (Bonner v. State, 535 S.W.2d 289 (Mo.App.1976) [8]) and in fact the court must advise the defendant of its intention to reject the bargained for recommendation, Schellert v. State, supra, [5]. It is therefore apparent that, without more, a judge’s willingness to accept a bargained for disposition does not establish that his subsequent refusal to grant leniency after trial constitutes an unconstitutional denial of due process by punishing defendant for exercising his right to trial.

Nor does the record here support a contention that in this case the court enhanced punishment as a penalty for going to trial. The court pointed out its reasons for assessing the punishment it did and the consideration it made of the offenses committed as well as defendant’s background. Defendant points to the first sentence of the court’s last statement at the sentencing hearing — “I would rather that such is the situation” — as indicating that the court was utilizing higher sentences to coerce waiver of jury trials. We cannot attribute to the statement that meaning. It is ambiguous on its face and when read with the remainder of the court’s comment clearly indicates that the court was stating that it makes its sentencing decisions on the basis of all the facts before it. We find no error in the sentencing.

Defendant’s second point is that he was denied due process because the prosecuting attorney told the main state witness not to discuss the case with defense counsel. We do not find it necessary to address the legal issue presented. Defense counsel called the witness, Mrs. Johnson, late one evening. Mrs. Johnson said he identified himself as from the prosecutor’s office. She advised defense counsel that she had had two martinis and did not wish to discuss the case at that time. The next evening the prosecuting attorney called. In the course of the conversation he suggested that Mrs. Johnson not talk to defense counsel unless he, the prosecutor, or someone representing her interests was present. The defense attorney called shortly thereafter. Mrs. Johnson told him that she wanted to discuss the matter with her husband before agreeing to meet with defense counsel. She had told the prosecutor that she wanted to discuss the matter with her husband before talking with the prosecutor. She was apprehensive because defendant had escaped from jail while awaiting trial and she thought she might not proceed further because of that. Defense counsel had advised her of the escape during his first call. Mrs. Johnson advised defense counsel that she would call back the next day after consulting with her husband. By the time she arrived home the next day it was too late to call. Defense counsel never attempted thereafter to contact Mrs. Johnson. On this record we are unable to conclude that the prosecutor’s statements to Mrs. Johnson blocked defense counsel’s opportunity to interview. Mrs. Johnson, of course, had the right to refuse to meet with counsel and she consistently indicated that she wished to consult with her husband before making a decision. There is no indication this desired consultation was prompted by the prosecutor’s statements, in fact, it appears to have originated because defense counsel advised Mrs. Johnson that defendant had escaped. Defense counsel thereafter failed to follow up his prior request, or to learn what Mrs. Johnson’s decision was. We find no error in the court denying defendant’s motions to dismiss, for continuance, and to strike based upon this alleged prosecutorial misconduct.

Defendant’s remaining points arise from the testimony of two police officers. This testimony concerned certain inculpatory statements made by defendant to the officers. Defendant was originally arrested by the City of St. Louis police in connection with an unrelated crime. At the time of his arrest defendant received Miranda warnings and defendant refused to make any statement. Defendant was subsequently asked if he wanted an attorney present before a lineup was conducted. He stated he did and gave the name of an attorney. Police contacted the attorney who advised that he did not represent defendant and would not unless hired by defendant’s parents. He further told the police that he would not be present at the lineup but to please advise him of the results. When advised of the conversation with the lawyer, defendant declined having a public defender represent him at the lineup. The lineup was never held because of the refusal of the victim to proceed further.

Approximately an hour later, defendant was interviewed by a St. Louis County policeman, Detective Newberry, in connection with different crimes. The record is unclear whether Newberry was advised that defendant had asked for counsel at the lineup. Defendant was given Miranda warnings. In his statements to Detective New-berry defendant denied participation in the robberies Newberry was investigating, but admitted participating in the Tennessee Jed robbery and volunteered to take Newberry to a house in Wellston where a sawed-off shotgun defendant claimed was used in that robbery was hidden. This was done the next day following additional Miranda warnings and police located the gun in the house pointed out and the place described by defendant. Defendant was then placed in the county jail.

At 7:00 p. m. on the day of his original arrest in the city, defendant was interviewed by Officer Franey of the Frontenac police. Franey had been advised by New-berry of defendant’s admission of involvement in the Tennessee Jed robbery and went to the City Jail to serve defendant with a warrant. At that time defendant indicated he did not want to make a statement because “the walls have ears.” The next day Franey obtained permission from a Magistrate judge to remove defendant from the County Jail to the Frontenac police station. Defendant was given his Miranda rights by Franey immediately upon entering the automobile for transportation to Frontenac. Defendant stated he understood his rights and wished to make a statement to clear up his involvement in the robbery so that he could get married. He was advised not to make any statement until they reached the Frontenac police station where Miranda rights were again given. While at the Frontenac station defendant executed a waiver of rights form, gave an oral statement, and wrote out a statement in longhand. In essence, he admitted his participation in the Tennessee Jed robbery although he denied being armed. While there were some discrepancies between defendant’s statements and the testimony of the witnesses, these discrepancies were explainable and were not of substance. While at the Frontenac station, defendant was booked and processed. He was returned to the County Jail three hours after he left it.

Defendant denied that he was given his rights or that he gave an oral statement, contended that he was beaten, and stated that the written statement was dictated to him by Officer Franey. The police officers denied that any coercion or force was used to obtain the statements, and testified that defendant voluntarily made the oral and written statements attributed to him.

Defendant challenges the statements on only two grounds. The first is that he was denied effective assistance of counsel because he requested counsel and was interrogated without having had an opportunity to consult with counsel. Secondly, he contends the statements made at the Frontenac station were the product of an illegal arrest. The trial court resolved the conflict of testimony in favor of the testimony of the police officers and found the statements were voluntarily made. In so ruling, the court stated it disbelieved the testimony of defendant. It further found that the only request for an attorney arose in connection with the lineup which was never held and that thereafter defendant voluntarily waived his right to counsel. Weight of the evidence and credibility of witnesses are questions to be resolved by the trial court. The factual findings of the trial court have evidentiary support and we defer to the findings of fact of the court. See State v. Olds, 569 S.W.2d 745 (Mo. banc 1978).

We are left, therefore, with the question whether as a matter of law defendant’s initial request for a lawyer in connection with a lineup on a different charge vitiates any subsequent voluntary uncounseled statements or confessions.

We were confronted with the same contention that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), creates a per se rule in State v. Blevins, 581 S.W.2d 449, Mo.App., Eastern District, No. 39631, April 24, 1979. We rejected the per se rule in that case. We reject it here for the same reasons.

Defendant also contends that the removal from the St. Louis County Jail to the Frontenae police station was an unlawful arrest and the confession made at the police station should therefore be suppressed pursuant to Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In support of his contention that the arrest is illegal, defendant cites only Sec. 544.470 Mo.Supp.1972, which deals with bail. We do not consider that that statute makes the transfer for booking and processing an arrest. If it was an arrest, it was done with probable cause and under a warrant. The doctrine of Brown, supra, and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) is inapplicable. See State v. Fields, 536 S.W.2d 56 (Mo.App.1976) [2, 3],

Judgment affirmed.

WEIER, C. J., and SNYDER, P. J., concur.

APPENDIX

“MR. SMITH (DEFENSE COUNSEL): I think it is important to put this on the record. I would make a motion sentence on Count IV be set aside and corrected. Earlier, we have spoken about this case. It was my understanding, prior to trial, the state would recommend a sentence of 15 years in this case.

Mr. Davis has stood trial and let the state prove their case. I feel, in other words, this man is being punished for going to trial. He didn’t take the witness stand during the course of the trial and the court indicated to me, prior to trial and after the motion after it heard all the evidence in the case, they would follow the state recommendation. I can’t see why, if a man goes to trial on a case, he should receive an additional 35 years, an additional 45 years sentence.

THE COURT: What did you say about my stating I would follow the recommendation of the prosecuting attorney?

MR. SMITH: Prior to trial and after the motion in this case, you stated you would follow the recommendation of the state.

THE COURT: Prior to trial, you asked me if I would follow the recommendation of the state on a plea of guilty. I said yes, I would. The defendant was tried. I have heard all the evidence in the case. It was a robbery with a shotgun. He has been found guilty of robbery with a sawed-off shotgun and I heard the testimony of terrorizing and intimidating the victims during the trial. I heard the testimony about the woman who became hysterical and even the calm victims who were worried the hysterical woman would cause them to be killed during the robbery.

As a result of all of this evidence that I have heard and the finding of guilty, I feel that a proper sentence in this case is a total of 60 years in the penitentiary. I. do not think Mr. Davis should be on the street for a long, long, long time.

The fact I was willing to follow the state’s recommendation on a plea prior to trial — and I am sure the state would take in the uncertainties of a conviction prior to trial and the uncertainties of proving the guilt beyond a reasonable doubt.

MR. SMITH: Your Honor, that is my point on this matter. If Mr. Davis is penalized, in this effect by going to trial on this situation, any person standing trial in any court before you, especially, would have a situation if he does not accept the state’s offer, either come out with increased sentence, therefore killing that right to a jury trial.

THE COURT: I would rather that such is the situation. The court considers all the facts at all times. You can refer back to the front page of one of the daily newspapers when this court put a man on probation for a crime of forcible rape, a black on white rape, and after having been convicted by a jury. So, the record will not support what you state.

I have heard enough evidence in this case to find that 60 years is an extremely lenient recommendation and a lenient sentence. Because, Mr. Davis should spend a long, long time behind bars and he has proven by his conduct he cannot be allowed to be permitted to be outside in society.

That is the sentence of the court and this concludes the record.”


author: BILLINGS, Judge.

text:
    CARTER COUNTY SCHOOL DISTRICT, R-1, Plaintiff-Respondent, v. Joe Wayne PALMER, Defendant-Appellant.
    No. 10957.
    Missouri Court of Appeals, Southern District, Division Three.
    May 11, 1979.
    Motion for Rehearing or Transfer Denied May 30, 1979.
    Application to Transfer Denied July 17, 1979.

      L. Dwayne Hackworth, Piedmont, for plaintiff-respondent.
    David G. Neal, Eminence, for defendant-appellant.
   BILLINGS, Judge.

The Carter County School District, R 1, Board of Education terminated the indefinite teacher’s contract of Joe Palmer. The Circuit Court of Carter County affirmed the action of the school board, finding five charges levelled against the teacher were supported by substantial and competent evidence. We reverse and remand.

The reason for the termination, as reported in the board’s written findings and decision, was “Joe W. Palmer’s wilfull [sic] and persistent violation of and failure to obey the published regulations of the Board of Education of the Carter County School District R-l.” The grounds for termination of an indefinite contract with a permanent teacher are found in § 168.114 RSMo 1969, which reads in pertinent part: “An indefinite contract with a permanent teacher shall not be terminated by the board of education of a school district except for one or more of the following causes: . (4) Willful or persistent violation of, or failure to obey, the school laws of the state or the published regulations of the board of education of the school district employing him . . . We find that the termination of Mr. Palmer’s contract was not in conformity with the terms of § 168.114.

Twenty-four charges were brought against Mr. Palmer by the board. The incidents alleged in fourteen of the charges occurred before the regulations of the board of education were published, and for that reason were not considered as bases for the termination. Further, it was found in the circuit court that five other charges were not supported by substantial and competent evidence, but that Charges 10, 13, 16, 18, and 21 were supported by substantial and competent evidence. Thus our review is limited to an examination of whether or not Charges 10, 13, 16, 18, and 21 can properly serve as bases for termination.

Charge 13 accuses appellant of distracting the class of a fellow teacher, but no reference is made to any regulation which might have been contravened by appellant’s conduct. The board of education rested its decision to terminate appellant’s contract on the finding that “. Joe W. Palmer has failed and refused over a period of time to be in compliance with the published school board policies and regulations . . . as specifically set out in 5205, 5210, 5229, and 5710 . We can discover nothing in these four regulations, the only foundation for the board’s action, which appellant could have violated or failed to obey by the conduct alleged. It follows that Charge 13 was an invalid ground of termination.

Charges 18 and 21 describe incidents in which the conduct of appellant is said to be contrary to section 5710 of the published regulations of the board. The statute which must be followed in the termination of an indefinite contract, § 168.114, requires a violation of, or failure to obey, published regulations. Regulation 5710 is descriptive and recommendatory, not prohibitory that one might violate it, nor mandatory that one might fail to obey it. The only phrase which is directive in any way does not apply to this case. We hold that the statute does not allow termination on the basis of a regulation which neither forbids nor commands action, for one cannot violate nor fail to obey such a regulation.

Two charges, Charges 10 and 16, remain as possible bases for the termination of appellant’s contract as affirmed by the circuit court. Again, we must adhere to the statute in our scrutiny of each charge as a ground of termination. Mr. Palmer is said, in Charge 10, to have treated certain students in an unkindly and unjust manner and with partiality on one described occasion, in disregard of Regulation 5205. Charge 16 also refers to only one day and one topic of discussion; the appellant’s behavior in confrontations with the principal that day was said to be contrary to Regulation 5229. Each charge relates to a single instance of violation or failure to obey different published regulations. A single act of disobedience to, or violation of, a published regulation does not constitute persistent disregard thereof, Oakdale Union School District v. Seaman, 28 Cal.App.3d 77, 104 Cal.Rptr. 64, 527 (Ct.App.1972), as required by § 168.114, subd. 1(4). We are led to conclude then, that if either Charge 10 or Charge 16 is to support the termination, it cannot be because either was a persistent violation of, or failure to obey, a regulation; rather, only if there is substantial and competent evidence from which the board could have found a willful violation of, or failure to obey, published regulations, may the termination be permitted to stand.

To determine whether or not evidence of a willful violation is present in this case, we must first decide what meaning the legislature intended the word “willful” to have. Is it enough in the Teacher Tenure Act that the offender intends to act, and the action taken happens to be inconsistent with a regulation, or must he or she act with the intention of violating or failing to obey a regulation? The first of these interpretations merely involves one intention, viz. to act in the absence of reflex or coercion; the second involves two intentions, viz. one to act and one to violate or disobey. We believe the latter interpretation provides the meaning intended by the legislature.

“[Ojne of the commonplace rules of statutory construction is that some significance and effect must be given .every word, phrase, sentence and part [of a statute], if possible.” (Citations omitted). Ross v. Conco Quarry, Inc., 543 S.W.2d 568, 575 (Mo.App.1976). It seems to us that if the statute were construed to allow termination for one volitional act done without the purpose of disobeying or violating a regulation, such construction would cause another provision of the statute, namely persistent disregard of a regulation, to become redundant and to lose its “significance and effect.” If one act, not motivated by intentional disregard of a regulation, had been considered sufficient for termination, the provision for termination for persistent, i. e. continuing or repeated, activity of the same kind would be superfluous. Unless it was the appellant’s purpose to violate or disobey Regulation 5205 or 5229 by his conduct, his contract cannot be terminated for willful violation or failure to obey those regulations.

With the definition of “willful” in mind, we take up the final question: Was there substantial and competent evidence on either Charge 10 or Charge 16 to sustain the board’s finding that appellant had willfully violated or failed to obey the board’s published regulations? Our review of this administrative decision is limited. We may only examine the board’s decision to ascertain whether or not it is supported by competent and substantial evidence on the whole record, viewing the evidence and all reasonable inferences arising therefrom in a light most favorable to the board’s decision. Harrod v. Board of Education, City of St. Louis, 500 S.W.2d 1 (Mo.App.1973); Board of Education, Mt. Vernon Schools, Mt. Vernon v. Shank, 542 S.W.2d 779 (Mo. banc 1976).

We recognize that willfulness can seldom be directly proved. State v. Adams, 532 S.W.2d 524 (Mo.App.1976). But in this case there was no evidence at all that appellant had ever read or had any knowledge of the regulations he is charged with having willfully disregarded. Much less is there any indication in the record that appellant acted with the intention to violate or fail to obey any regulation. In this respect, the case at bar differs greatly from the Shank case, supra, where there was direct evidence that the teacher was aware of the particular regulation involved, and it could reasonably have been inferred from Mrs. Shank’s own statement and the fact that she received prior warnings, that she struck students in defiance of, and with the intention to violate, the corporal punishment regulation. No evidence appears in the case before us which would permit even an inference of an attitude or willfulness on the part of Mr. Palmer similar to Mrs. Shank’s. There is no evidence of Mr. Palmer’s willful violation of, or failure to obey, a published regulation.

For the foregoing reasons, we hold that appellant’s employment was terminated without satisfaction of the statutory requirements. We therefore reverse and remand this case to the circuit court with directions to enter judgment in accordance with §§ 168.116, subd. 4 and 168.120, subd. 4, RSMo 1969, reinstating appellant to the status of a permanent teacher and ordering that he receive compensation for the period of the pendency of his appeal, subject to the doctrine of mitigation, Bishop v. Board of Ed. of Francis Howell Sch. Dist., St. Charles, 575 S.W.2d 827 (Mo.App.1978); Pollard v. Board of Ed. Reorg. Sch. Dist. No. III, Platte County, 533 S.W.2d 667 (Mo.App.1976), as that doctrine is set forth in Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138 (Mo. banc 1974).

FLANIGAN, C. J., and MAUS and GREENE, JJ., concur.

       5205.
      The teacher shall deal kindly and justly with every child as an individual without prejudice or partiality.
      5210
      The teacher should respect the confidence of the pupil; information given in confidence should be passed only to authorized persons or agencies that are attempting to aid the pupil.
      5229
      The teacher should maintain an attitude and personal appearance which strengthens public respect for the teaching position and for the school system.
      5710
      Classroom teachers are under the direct supervision of the building principal. The administrative policies communicated from the Board of Education, assignment of daily work, instructional schedules, and courses of study will reach the classroom teachers through the principal. All problems and requests of the teachers for assistance, for materials, or information pertaining to school work should be directed to the principal. A teacher may expect the principal to guide and assist him with problems pertaining to his work with the pupils. He may expect the principal to share his disciplinary problems, and to guide and sustain him as they work together for the good of the children. Either or both may seek the advice of the Superintendent of the Schools or other school personnel on specific problems or on interpretation of policy.


author: CRIST, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Omar HUTCHINSON, Defendant-Appellant.
    No. 40151.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 15, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 15, 1979.

      Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kathryn Marie Krause, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Clayton, for plaintiff-respondent.
   CRIST, Judge.

Conviction by a jury of robbery in the first degree (eight counts) and armed criminal action (one count). Defendant was sentenced to twenty-five years imprisonment on each of the nine counts; the sentences are to run concurrently. We affirm.

Defendant first complains of double jeopardy. He robbed several persons in a beauty parlor, with the aid of a pistol, on April 16, 1977. The first degree robbery charges were based on defendant’s forcibly taking the property of another from the other’s person or presence; the armed criminal action charge was based on defendant’s use of the pistol. The defendant’s complaint was laid to rest in State v. Treadway, 558 S.W.2d 646, 651-652 (Mo. banc 1977). The robbery and armed criminal action convictions were separate offenses. Accordingly, defendant was not put in double jeopardy.

Defendant next complains the manner in which the police conducted several photographic arrays and a lineup were suggestive and the resultant out-of-court identifications of the defendant were unreliable. We disagree. We are unconvinced the photographic arrays and the lineup were suggestive. Ten people made out-of-court identifications of defendant. Had not all ten been of the same opinion, defendant would have had more reason to complain. There is no evidence as to how the police could have suggested to all ten people that this defendant was the robber in lieu of someone else. Nevertheless, even if the out-of-court identification procedures were mildly suggestive, there is no reason to think the factors favoring reliability were outweighed by the suggestiveness. The robbery occurred at 11:30 a. m. in the morning. The shop was well lighted. The robber was in the store from two to ten minutes. The description of the robber, albeit composite, was accurate. The witnesses were certain about their identifications. We rule this point against the defendant. Manson v. Brathwaite, 432 U.S. 98, 113-17, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Madison, 537 S.W.2d 563, 564-565[1-3] (Mo.App.1976).

Defendant next complains about a statement by a state witness (the owner of the beauty parlor) on direct examination that she felt that the defendant had probably stolen a ham a year or so earlier in an unrelated incident when their paths had crossed. Defense counsel immediately objected and requested a mistrial. The court sustained the objection but denied the mistrial. The court instructed the jury to disregard her testimony on this point. Defendant failed to preserve this error for review in his motion for new trial. Defendant asks us to invoke the “Plain Error Rule.” Rule 27.20.

The complained of statement entered the record as follows: The owner of the beauty parlor stated that she had seen the defendant once before, about a year prior to the robbery, when he entered her shop and asked whether any of her customers wanted to buy a ham. Some of her customers wanted to buy a ham so the defendant left and later returned with a ham. In response to the prosecuting attorney’s question as to whether she remembered the clothing the defendant was wearing on the day he came in to sell the ham, she responded:

“Well, when he first came in I didn’t — I didn’t you know, pay too much attention to his clothing. All I know is what he asked. But then when he came back I noticed because he was all out of breath and had been running, you know. So I felt like he probably had stolen the ham at one of the stores.”

A declaration of a mistrial is a drastic remedy and properly rests in the discretion of the trial judge who observed the complained of incident giving rise to the request. State v. Cuckovich, 485 S.W.2d 16, 24 (Mo. banc 1972). A mistrial should be given only when the complained of incident is so grievous in character that the prejudicial effect cannot be removed in any other way. State v. Johnson, 504 S.W.2d 23, 29 (Mo.1973).

The prosecuting attorney was not attempting to prove another crime. The remark came into evidence unexpectedly. The court exercised proper discretion, and accordingly there was no plain error. State v. Brauch, 529 S.W.2d 926, 931 (Mo.App. 1975).

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ronald NEELY, Appellant.
    No. 40510.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 15, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 15, 1979.
    Application to Transfer Denied July 17, 1979.

      Robert C. Babione, Public Defender, Judge L. Clark, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals his conviction of Burglary in the First Degree. He was charged under the Second Offender Act, waived a jury and upon conviction, was sentenced to twelve years in the Department of Corrections.

The evidence, when cast in a light most favorable to the state, demonstrated that defendant and another entered a home at 1601 Belt, St. Louis, Missouri, shortly after midnight on September 23,1977. The owner was at work and had left her three children (18 year old James and 16 year old Jackie, both boys; and, Celestine, an 11 year old girl) at home. The two younger children were asleep when a pair of men came to the door claiming they were police officers who had received a call regarding a disturbance at this address. James refused them admittance, stating no such call had been made. The pair left, but returned within minutes again asking to be admitted. James again refused and this time called the police himself. Hearing a noise which seemingly came from a bedroom he shared with his brother, he went to investigate. He was met in the kitchen by defendant who was holding a gun to his brother’s head.

The three children were led to the basement and locked in a closet. The pair ransacked several rooms in the home but the police arrived just as defendant was attempting to leave. James’ watch, which he had left on his dresser, was found on defendant’s person.

The testimony revealed that before the burglary, all the doors and windows in the home were closed and locked, save one window in the boys’ bedroom which had been left open approximately one inch. After the burglary, the sash was open much wider. Defendant claims that this evidence was insufficient to establish a “breaking” and thus his conviction for Burglary in the First Degree cannot stand.

We first refer to Section 560.040 RSMo 1969 which states:

Every person who shall be convicted of breaking into and entering the dwelling house of another, in which there shall be at the time some human being, with intent to commit some felony or larceny therein, either: First, by forcibly bursting or breaking the . . . window of such house . . .; or, second by breaking in any other manner, being armed with some dangerous weapon, or with the assistance and aid of one or more confederates, then actually present aiding and assisting; or, third, by unlocking an outer door by means of false keys, or by picking the lock thereof, shall be adjudged guilty of burglary in the first degree.

The Missouri Supreme Court recognized three distinct modes of burglarious entry provided by this statute in State v. Young, 345 Mo: 407, 133 S.W.2d 404 (1939). In the instant case, defendant was not charged with “forcibly bursting or breaking” or with the use of “false keys,” etc., but only with “breaking” while being armed with a dangerous weapon. There was evidence that the entry was into the dwelling of another in which there was, at the time, a human being. On appeal, the sole issue presented for our consideration is whether the raising of the window from a height of one inch to a height sufficient for entry was an adequate demonstration of a “breaking” as the statute’s second mode required.

It has been held that entry through an open door or window does not constitute burglary. State v. Allen, 344 Mo. 335, 126 S.W.2d 236[1] (1939). However, the raising of an unlocked, but unopened, window in order to gain entry is a sufficient “breaking” to establish burglary. State v. O’Brien, 249 S.W.2d 433[1-4] (Mo.1952). See also, State v. Sullivan, 452 S.W.2d 802 (Mo.1970). We are of the belief that the raising of the partially opened window, as the evidence shows here, is a sufficient breaking as contemplated in the second mode of § 560.040 RSMo 1969. We find no Missouri cases so holding, but feel such a determination comports with the modern trend. See cases cited in 70 A.L.R.3d 881 (1976).

It is inconsistent to say that the mere lifting of a closed window is a “breaking” but the further raising of a partially opened window is not. The force required in both instances would be of the same character, differing only in degree.

It seems to us that what the cases are saying, except those where the charge is “forcibly bursting or breaking” under § 560.040 RSMo 1969, is that “breaking” occurs whenever there is the slightest application of force to push aside any part of the structure which forms an obstacle to entrance and which is relied upon as security against intrusion. This is entirely different from a situation where an intruder can gain entry without the use of any force at all, such as through a fully opened window or door.

Therefore, as defendant was required to apply force to raise the window from an opening of one inch to that sufficient for him to enter, the essential “breaking” element of Burglary in the First Degree was both alleged and proved. The other elements having also been alleged and proved, we find no error.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


text:
    Sheila RODRIGUEZ, Appellant, v. CIVIL SERVICE COMMISSION, Respondent.
    No. 40532.
    Missouri Court of Appeals, Eastern District, Division 3.
    May 15, 1979.

      John R. Igoe, Leonard P. Cervantes, St. Louis, for appellant.
    Joseph R. Niemann, St. Louis, for respondent.
   CRIST, Judge.

This appeal involves the dismissal of an employee of the City of St. Louis. The employee-appellant sought review of her discharge by the Civil Service Commission which upheld her dismissal because she was “unwilling or unable to perform” her work. The circuit court sustained the decision of the Civil Service Commission and this appeal followed. We affirm.

On January 18, 1975, while working in a typist-clerk position for the Community Development Agency, appellant sustained a work-related knee injury compensable under the Missouri Workmen’s Compensation laws. For a period directly after her injury, appellant attended work irregularly until she used all but eight hours of her vacation time to receive pay for her absences. Thereafter, from March 3, 1975 to March 31, 1975, appellant was away from work without pay on a leave of absence. Appellant worked from March 31,1975 to May 19, 1975 at which time she was again granted a leave of absence without pay until November 17, 1975 to enable her to have an operation on her knee.

On November 17, 1975, appellant’s physician granted her a release and she returned to work. However, on the next day she left work early to take her son to an emergency dental appointment. At that time, her knee caused her so much pain that she did not return to work for the rest of the week. On November 24, 1975, the following Monday, appellant attempted to return to work but while enroute, suffered injury in an automobile accident. Thereafter, she was again under doctor supervision.

In December, 1975, upon the request of the Director of the Community Development Agency, appellant submitted two doctor’s statements which recommended that appellant not return to work “for an undetermined time” and that she was not “sufficiently recovered.” On January 12, 1976, the Director of the Community Development Agency terminated appellant’s employment.

In April of 1975, appellant had filed a Workmen’s .Compensation claim for her knee injury. On October 5, 1976, a settlement was reached. The city paid the appellant temporary total disability for forty weeks as well as medical bills totaling $1,540.20 and a lump sum award of $5,800.00.

On appeal, appellant claims the trial court erred in affirming the discharge decision of the Civil Service Commission because the decision “denied appellant the free exercise of her rights under the Workmen’s Compensation Statutes of the State of Missouri.” The rights which appellant claims she is unable to “freely exercise” are those under § 287.190, RSMo Supp.1975 which guarantee her compensation for a maximum of forty weeks for a “healing period.” Appellant argues that because the agency dismissed her before the forty week healing period had run, that she was dis-criminatorily discharged for exercising her rights under the Workmen’s Compensation laws in violation of § 287.780, RSMo Supp. 1975. In essence, appellant maintains that § 287.190 creates in employees an absolute right to retain their jobs for forty weeks after a work-related injury so long as they are unable to return to work.

We find no merit in appellant’s contention, Section 287.190 provides, in part:

In addition to the compensation in this section provided for all permanent partial disabilities, whether scheduled or unscheduled, the employer shall pay to the employee for a healing period, a period of not to exceed forty weeks of that compensation allowed for temporary total disability under Section 287.170. The healing period shall end at any time within the forty weeks that the employee is able to return to and remain in any employment. The total healing period allowed for all injuries arising out of one accident shall be no more than forty weeks.

It does not attempt to guarantee injured employees jobs. Rather, the purpose of the section is to provide monetary compensation to an employee for a work-related injury. The only duty of an employer dictated under § 287.190 is a duty to compensate for the maximum of forty weeks, a duty which can terminate if, during the forty week period, “the employee is able to return to and remain in any employment.” The use of the words “any employment” clearly demonstrates the legislature contemplated that an injured employee might resume working at some place other than the place injured, a possibility which could occur only if: (1) the employee quit; or (2) the employer discharged the employee. The latter occurred here.

Section 287.780 provides:

No employer or agent shall discharge or in any way discriminate against any employee for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his employer.

Under this statute a cause of action lies “only if an employee is discharged discrimi-natorily by reason of exercising his or her rights under the Workmen’s Compensation Law.” Mitchell v. St. Louis County, 575 S.W.2d 813, 815 (Mo.App.1978). Here, the appellant was not discharged for exercising her rights under § 287.190 in collecting pay during the healing period, but rather because she was “unwilling or unable” to work.

As such this case is indistinguishable from Mitchell in which appellant claimed because she was absent from work due to a work-related injury and then fired because of her inability to work, she had a cause of action under § 287.780. This court found that discrimination, the critical element of proof under § 287.780, was missing. In Mitchell, we held that the mere filing of a claim and subsequent discharge for absenteeism due to a work-related injury created no cause of action under § 287.780.

Here we have a very similar situation. The record is destitute of any evidence of a discriminatory discharge. As we explained earlier, the appellant’s discharge during the forty week healing period is irrelevant to the issue of discrimination. The Community Development Agency legitimately discharged appellant for her inability and unwillingness to work which manifested itself in excessive absenteeism.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    Charles TROUPE et al., Appellants, v. BOARD OF EDUCATION OF the CITY OF ST. LOUIS et al., Respondents.
    No. 39755.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 15, 1979.

      William P. Russell, St. Louis, for appellants.
    Judson W. Calkins, Thomas E. Tueth, St. Louis, for respondents.
   REINHARD, Presiding Judge.

This appeal involves the denial of appellants’ Motion for Costs of Proceedings. The trial court cited a lack of jurisdiction as its basis for denial of the motion.

On September 20,1971, appellants filed in the circuit court a petition naming respondents Board of Education of the City of St. Louis and its members as defendants. In their petition, appellants sought a declaratory judgment and injunctive relief against respondents, based on respondents’ allegedly improper contract with Bi-State Transit Company, under which the Board used Bi-State buses to transport students. The action was brought under Chapters 527 and 162, RSMo 1969. On September 23, 1976, the matter was tried to the court, and on December 15, 1976, the trial court entered its judgment in favor of appellants. In that judgment the court assessed the costs of the proceeding against the respondents. During the 30 day period following the entry of the court’s judgment, no motions to amend nor motions for a new trial were filed by either party, nor did the court make any amendments on its own motion.

On January 21, 1977, 37 days after the entry of the circuit court’s judgment, appellants filed a “Motion for Costs of Proceedings” in which they sought approximately $19,000 in attorneys’ fees and an additional $190 to cover “other expenses.” Respondents filed a motion to deny appellants’ motion for “costs.” On September 21,1977, after a hearing on appellants’ motion and the submission of memoranda by the parties, the court denied appellants’ motion. In its ruling the court stated that it had “no jurisdiction to enter the order as requested by plaintiffs [appellants] because more than 30 days elapsed from the date of the judgment in this case ... to the date the motion was filed. . . .” This appeal followed.

We will deal briefly with respondents’ motion to dismiss the appeal, because of alleged deficiencies in appellants’ brief. Respondents cite a variety of violations of the requirements of Rule 84.04. We note that appellants’ first two sets of Points Relied On were stricken by this court. Appellants’ second Amended Points, while rather inartfully drawn, do marginally satisfy the requirements of Rule 84.04 and present the appellants’ position to the respondents and this court. The other derelictions raised by respondents are generally appropriate criticisms of a brief that certainly could suffer several improvements. However, we do not believe that these failings warrant dismissal of the appeal. We proceed to the merits.

As recited in its ruling, the trial court dismissed appellants’ motion because the court perceived a lack of jurisdiction. We agree. The time during which a court retains jurisdiction over a case is well-defined in the rules and statutes of this state. Rule 73.01 provides that not later than 15 days after the entry of judgment a party may file a motion for a new trial or a motion to amend the judgment and opinion. No such motions were filed here. Rule 75.01 explains that the trial court retains control over judgments during the 30 day period after entry of judgment and may on its own motion amend its judgment within that 30 day period. The trial court neither amended the judgment on its own motion nor reserved its jurisdiction in the matter. Finally, Rule 81.05(a) states that a judgment becomes final at the expiration of 30 days after the entry of judgment, if no timely motion for a new trial is filed. Again, no such motion was filed here. The case law is just as explicit, holding that once the judgment of the court becomes final upon the expiration of the 30 day period, the court loses its jurisdiction and the judgment passes beyond the reach of the trial court to amend or modify, on either its own motion or the motion of the parties. Berry v. Chitwood, 362 S.W.2d 515, 517 (Mo.1962); Wilkinson v. Wilkinson, 546 S.W.2d 737, 738 (Mo.App.1977); State ex rel. Campbell v. Anderson, 536 S.W.2d 200, 202 (Mo.App.1976); Schenberg v. Schenberg, 307 S.W.2d 697, 701 (Mo.App.1957). Under these authorities, the judgment became final before appellants filed their motion.

To be sure, as appellants note, § 527.100 provides that the court may award “costs” in a declaratory judgment action; furthermore, we note the Supreme Court has stated that “costs,” as used in § 527.100, may include attorneys’ fees. Labor’s Educational and Political v. Danforth, 561 S.W.2d 339, 350 (Mo. banc 1977). However, the simple awarding of “costs” does not, ipso facto, constitute the awarding of attorneys’ fees. If a court intends to award attorneys’ fees as costs under § 527.100, such intent should be explicit. We do not believe that the attorneys’ fees were encompassed by the granting of “costs” to appellants, and the taxing of attorneys’ fees as costs would constitute a modification of the court’s award.

In holding that the trial court was correct in denying appellants’ motion, we do not abrogate the court’s award of costs in the judgment. However, costs as awarded in the judgment are limited to the costs of the litigation as provided by statute which the clerk will ministerially tax. St. Louis 221 Club v. Melbourne Hotel Corp., 227 S.W.2d 764, 771 (Mo.App.1950). Regardless of the court’s dismissal of their motion, appellants are still entitled to these limited costs as provided by statute.

The judgment of December 15, 1977, became final on January 14,1978, no post-trial motions having been filed and the court having taken no actions to preserve its jurisdiction. Upon the expiration of the 30-day period, the judgment was no longer subject to amendment or modification by the court. The court had lost its jurisdiction and properly dismissed the action. Any proceeding by the court on appellants’ belated motion would have been void. State ex rel. Campbell v. Anderson, 536 S.W.2d at 202-203.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


author: DOWD, Presiding Judge.

text:
    Henry McKINNIES, Respondent, v. UNIVERSAL CARTAGE AND DELIVERY SERVICE CO., INC., a corporation, Appellant.
    No. 39616.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 15, 1979.

      Michael J. Pitzer, John J. Horgan, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Kea-ney & Brown, St. Louis, for appellant.
    George D. Chopin, St. Louis, for respondent.
   DOWD, Presiding Judge.

Universal Cartage and Delivery Service Co. appeals from the Circuit Court’s denial of its motion to set aside a stipulation to the dismissal of a claim.

Respondent, Henry McKinnies, filed a petition against appellant in the Circuit Court of the City of St. Louis to recover $15,000 for injuries suffered by his person and property following an automobile collision with appellant on September 25, 1974. Appellant filed an answer denying respondent’s allegations, and raising the issue of the latter’s contributory negligence. Appellant also filed a counterclaim against the respondent in which it sought to recover $2,800 for property damages sustained in the collision by its truck.

An agent of appellant’s insurance carrier negotiated a settlement of respondent’s claim with the latter’s attorney. Thereafter, a stipulation for dismissal of the claim was prepared by respondent’s attorney, signed by Mr. McKinnies, and filed by appellant’s attorney on July 11, 1977. When the bill for court costs was forwarded to the law firm which represented the appellant, a member of the firm discovered that the stipulation purported to dismiss not only respondent’s personal injury claim, but also, the entire suit.

The stipulation read as follows:

“All matters and things in controversy having been compromised and settled, it is hereby stipulated that the within cause may be dismissed with prejudice at defendant’s costs.”

On August 10, 1977 appellant’s attorney filed a motion to set aside the stipulation and to reform the release. The verified motion set forth the following contentions: the defendant’s insurance agent negotiated a settlement of plaintiff’s claim with the latter’s attorney; this negotiation resulted in the signing of a claims release by the plaintiff and the filing of a stipulation of dismissal; the insurance agent was not aware of the fact that the defendant had filed a counterclaim against the plaintiff; the counterclaim was not discussed during settlement negotiations; and said counterclaim was not intended to be resolved by the settlement of plaintiff’s claim; the insurance agent lacked the authority to negotiate or effect a settlement of defendant’s counterclaim; and defendant had no direct knowledge of the settlement of its counterclaim and that it was not intended or contemplated that defendant’s counterclaim be dismissed. Following a hearing on the motion that same day, the motion was denied. Respondent did not produce any evidence in opposition to the motion. The trial judge gave no reason for the denial of the motion.

In its appeal from the court’s order overruling the motion, appellant contends that the verified motion was competent evidence; that the facts contained in the motion indicated that the settlement was intended to compromise only respondent’s personal injury claim, that the insurance agent was unauthorized to negotiate a settlement of the counterclaim; and, that a full hearing on the issue should have been ordered by the court.

We need not address each complaint raised by the appellant, for we regard one point as being dispositive of this appeal.

It is well established that a stipulation entered into under the court’s superintendence will be enforced until it is challenged or set aside. Landers v. Smith, 379 S.W.2d 884 (Mo.App.1964). A stipulation of settlement of claims may be set aside upon proof of fraud or mistake. In order to establish mutual mistake, the moving party must show that there existed a “misconception of fact”; that said fact was material; that the party relied upon said fact to its detriment; and that its reliance was justifiable. Southern Agency Company v. La-Salle Casualty Company, 393 F.2d 907, 914 (8th Cir. 1968). Immediate parties to a compromise or settlement upon which a stipulation of dismissal is predicated, are ordinarily estopped from litigating counterclaims which stem from the underlying claim. England v. Yellow Transit Co., 240 Mo.App. 968, 225 S.W.2d 366 (1949). In order for the settlement embodied in the stipulation to estop appellant from proceeding with its counterclaim however, it must be proved that appellant had knowledge of the settlement of the plaintiff’s claims, consented to, ratified or approved the purported dismissal of its counterclaim, or extended authority to its insurance carrier or the carrier’s attorneys to dismiss the counterclaim. Faught v. Washam, 329 S.W.2d 588 (Mo.1959).

There is no such evidence in the record before us. In fact, the evidence before us indicates that the insurance agent was unaware of the fact that a counterclaim had been filed by its insured, and had no authority to negotiate the settlement of same. The verified motion also contained the assertions that appellant neither had direct knowledge of the settlement negotiations, nor affirmed the stipulation. As the verified motion was undenied, it may be regarded as competent evidence of the facts stated therein. Kingsley v. Burack, 536 S.W.2d 7[1] (Mo. banc 1976); Rule 55.28. We are of the opinion that the court’s failure to set the motion for a hearing at a later date when both parties could produce evidence on the issue of the apparent mutual mistake inherent in the settlement, amounted to an abuse of discretion.

Accordingly, this case is reversed and remanded for a full hearing on the motion to set aside the stipulation for dismissal and reform the release.

Reversed and remanded.

CRIST, J., and ALDEN A. STOCKARD, Special Judge, concur.


author: BILLINGS, Presiding Judge.

text:
    Bob ALLEN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10950.
    Missouri Court of Appeals, Southern District, Division Two.
    May 29, 1979.
    C. R. Rhoades, Pineville, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Marjorie Wholey Haines, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Presiding Judge.

Bob Allen, serving sentences for burglary and stealing, filed this Rule 27.26, V.A.M.R., motion seeking to vacate his sentences. Without appointment of counsel or an evi-dentiary hearing, the trial court, relying upon the files and records in movant’s criminal case and our opinion affirming the judgment, entered an order denying the motion. We affirm.

Movant’s complaints in this appeal are threefold. He avers he was entitled to an evidentiary hearing on his motion; the trial court was required to make findings of fact and conclusions of law conclusively showing he was not entitled to relief; and, the sentencing judge failed to exercise his discretion as to whether the sentences were to be concurrent or consecutive.

Movant’s contention regarding his sentencing is not for review. His motion to vacate did not present this matter. His motion claimed his sentences were disproportionate to the offenses and exceeded the sentences meted out to co-defendants Pen-rod and Thurston. Further, that the court was required to order a presentence investigation and consider the same before sentencing him. His present complaint, made for the first time on appeal, presents nothing for appellate review. Day v. State, 516 S.W.2d 53 (Mo.App.1974). Furthermore, movant’s original allegations as to his sentencing raise no issue of fact or law in a postconviction motion. Perryman v. State, 506 S.W.2d 480 (Mo.App.1974). Sentences within the statutory limits are not considered disproportionate. State v. Mitchell, 563 S.W.2d 18 (Mo. banc 1978). And, it was entirely discretionary with the trial judge to forgo a presentence investigation. Rule 27.07(b), V.A.M.R., State v. Goforth, 535 S.W.2d 464 (Mo.App.1976).

Movant’s contention than an evi-dentiary hearing was required on his ground of ineffective assistance of counsel is without merit. In his motion several factors in support of this ground were alleged but the only allegation carried forward in his brief herein is the failure of his trial attorney to have the two co-defendants at the trial and offer their purported testimony that movant’s participation in the crimes was as an “unknowing participant.” This postconviction proceeding was prior to our supreme court’s decision in Fields v. State , 572 S.W.2d 477 (Mo. banc 1978). Consequently, we need only to determine whether the facts alleged in support of this ground, if true, would entitle movant to relief from his sentences. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975).

Movant, in his direct appeal, first raised the issue of ineffective counsel. The point was ruled as having no merit. Here, mov-ant did not allege that the testimony of his companions would have provided a defense. Jackson v. State, 465 S.W.2d 642 (Mo.1971); Sherrill v. State, 515 S.W.2d 611 (Mo.App.1974). His conclusory allegation that his co-defendants would have testified he was an “unknowing participant” after the commission of the burglary and theft do not suffice for facts. We observe such testimony, if given, would have been cumulative to the trial testimony of the movant — which the jury rejected. The decision to call witnesses at trial is a matter of trial tactics and strategy. “Cheek v. State, 459 S.W.2d 278 (Mo.1970); Williams v. State, 566 S.W.2d 241 (Mo.App.1978). Having failed to allege facts, as opposed to conclusions, which if true would entitle him to relief, movant was not entitled to an evidentiary hearing on the ground of ineffective assistance of counsel. An evidentiary hearing not being required, the court was not, under Rule 27.26 as it then existed, required to make findings of fact and conclusions of law. Baker v. State, 584 S.W.2d 65 (Mo. banc 1979).

The judgment is affirmed.

HOGAN and MAUS, JJ., concur.

      . State v. Allen, 555 S.W.2d 36 (Mo.App.1977).

      . Fields requires appointment of counsel, provides for the “opportunity and obligation” to amend the motion, and requires the trial court to make findings of fact and conclusions of law on all issues presented whether or not an evi-dentiary hearing is held.