author: SIMEONE, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Earl MACON, Defendant-Appellant.
    No. 37475.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 15, 1977.

      Robert C. Babione, Public Defender, John M. Putzel, Neal P. Murphy, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Donald A. Purdy, Jr., Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Raymond A. Bruntrager, Jr., Evelyn Baker, Asst. Circuit Attys., St. Louis, for plaintiff-respondent.
   SIMEONE, Chief Judge.

This is an appeal by defendant-appellant, John Earl Macon, from a judgment of conviction entered by the circuit court of the City of St. Louis on October 6, 1975, sentencing him to the department of corrections for a period of twelve years for the offense of robbery in the first degree by means of a dangerous and deadly weapon. Sections 560.120, 560.135, RSMo. Appellant was found guilty by the jury for the offense; the jury could not agree on punishment so the court assessed punishment.

Appellant appeals and raises several points urging a reversal of the judgment of conviction and remand for further proceedings. For reasons hereinafter stated, we affirm.

The jury could reasonably find the following. In the early evening of November 25, 1974, Mrs. Jacqueline Sharp was engaged in her employment as a barmaid at the Barcelona Cocktail Lounge located in the City of St. Louis. The lounge was owned by Mr. Edward Mansfield. There were ten or fifteen customers in the lounge including Mr. L. C. Collins and Mr. Laird Mitchell. The lounge contained two bars— one east and one west. At about 8:00 p. m. three men came into the lounge. Two of the men went to the bar on the west side and one came up to the east bar where Mrs. Sharp was standing and requested her to give him change for a dollar so that he could get some cigarettes and play the juke box. The man was in front of the bar. The lights were “clear enough where you could see someone clearly.” The man was about seven or eight feet away from her. Mrs. Sharp saw the man’s face. Mrs. Sharp gave the man change for a dollar which she obtained from the cash register behind the bar. She asked the other two men if they wanted anything and they replied, “No.” After giving the man change, Mrs. Sharp “went to wait on a customer” and the man announced, “it’s a holdup.” He had a silver gun in his right hand. When she heard these words, she “froze.” The man said, “ T want all the money in the cash register.’ ” Mrs. Sharp “got all the green” and took “all the silverware — silver and put it in a glass” and “handed it to him.” One hundred and forty eight dollars and some change was taken. The other two men were “[mjessing with the customers” — taking their money and jewelry. These two men also had guns. After that, the man who requested the change and announced the holdup ordered Mrs. Sharp and the customers into respective restrooms.

Mrs. Sharp eventually came out of the restroom and called the police. When the police came she gave them a description of the man who robbed her — five feet five, light brown complexion, long sideburns, a mustache and a goatee.

One of the customers, Mr. L. C. Collins, had been in the lounge since mid-afternoon and was present when the three men came in. He was seated at the bar.

One of the men who came in stood behind him. After about “fifteen, maybe twenty minutes, some fellow hollered, ‘stick-up,’ so when I looked back, I looked back and this fellow had a gun.” He did not see the man who took the money from the cash register (Macon) but testified that the man who stood behind him took from him “[fji.fty-two dollars and some change.” He testified that he could not identify the appellant, did not see a man hold a gun on Mrs. Sharp, but did state that he lost his money. He corroborated the fact that the customers were forced into the restroom “after the stickup.”

Another customer in the cocktail lounge was a student, Mr. Laird Mitchell. While he could not recall the exact time of the year this episode took place, he was in the lounge the night of the robbery. He was seated at the bar and was drinking beer. He noticed the three men come in “[bjecause they were young like myself and normally no young guys about my age come in there.” He saw two men with guns, and “[tjhey pointed them up at us, told us it’s a stick-up, don’t nobody move, all the money and wallets on the bar.” He complied and put his wallet on the bar. At trial, Mr. Mitchell identified the defendant as one of the robbers and the one who robbed him. “I never forget his face, never.” Mitchell testified that he “knew his [Macon’s] face but not his name . . . [tjhrough a friend of his that is a friend of mine.” He was “absolutely positive” that the defendant was the man. Mr. Mitchell did not tell the police that he had seen the defendant before “because I was afraid.”

When Mrs. Sharp called the police, Officer Russell Nothdurft responded to the call and spoke to Mrs. Sharp. He received a description from Mrs. Sharp and put it on the police radio.

Later that evening of November 25, 1974, some policemen returnea to the lounge and showed Mrs. Sharp some ten to fifteen photographs showing the faces of different men. She could not identify the defendant from any of these pictures. Sometime later, on January 14, 1975, (although at one point Mrs. Sharp indicated it was about a week or two weeks later but later said it was in January), she examined two photographs. One photo had four men and the other five. The photos were shown to her by Detective Wilbert Farrell. She examined the two photographs for about “fifteen minutes” and identified only the defendant. According to Detective Farrell, Mrs. Sharp picked out the defendant from one of the pictures and he was the only person she identified. Later, Detective Farrell participated in the arrest of the defendant at defendant’s home. At one point in her testimony she indicated she picked out two men — “one of the two gentlemen I think was at the door.” Sometime later, on January 22, 1975, Mrs. Sharp was requested to view a lineup at the police headquarters. She viewed a lineup consisting of four men, one of whom was the defendant. She identified the defendant as the man who robbed her. The lineup was conducted with the assistance of Detective John Vardeman who had also participated in the arrest. At trial he was shown a photograph of the individuals who were in the lineup and indicated that the appellant was somewhat shorter than the others.

On February 13, 1975, the appellant was indicted by the grand jury. The indictment charged that he, with others, “did rob, steal, take and carry away, one hundred and forty-eight dollars . . . the property of Ed Mansfield in the care and custody of Jacqueline Sharp . . . .” Prior to trial, defendant moved to suppress the identification testimony “on the grounds that the conduct of identification procedures at a pretrial confrontation were so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of constitutional due process of law.”

Prior to the opening statements at the trial, a hearing was held on the motion. Mrs. Sharp, Detective Vardeman and Detective Farrell testified. Mrs. Sharp testified that she viewed two sets of photographs — one on the evening of November 25 and one sometime later. On the evening of the robbery she was shown ten — fifteen photos but did not identify the defendant. But, when asked by the court whether she identified anybody she saw in the tavern that night, she replied, “I picked a couple of other ones out, but that was other fellows, not that gentleman.” [apparently referring to defendant] She further indicated she picked out “[t]wo or three” photographs that night. When she was shown the second set of two photographs later in January containing four or five men on each picture, she identified the defendant. She was later called to view the lineup, and when she did so she identified the defendant. She indicated they were not all the same height, did not have the same complexion and “really didn’t look alike.”

Detective Vardeman testified on the hearing on the motion. He testified that he participated in the conduct of the lineup which was held on January 22,1975. There were three other persons in the lineup, all “approximately the same height.” Mrs. Sharp viewed the lineup, but, before she did so, she was not shown any photographs. Detective Vardeman testified that the defendant was not the “smallest” in the lineup.

Detective Farrell also testified on the hearing on the motion. He stated that he participated in the investigation concerning the Barcelona Lounge and interviewed Mrs. Sharp on January 14, 1975. He showed her the second set of two full-length photos which included the picture of the defendant. While he was not present at the lineup on January 22, 1975, he was aware that a lineup took place. To his knowledge the only person who appeared in the lineup was the only person identified from the photographs.

The last witness on the hearing on the motion was Henry J. Rieke, employed by the public defender. He was present at the lineup when the defendant was identified. He indicated, from a photograph, that the subjects were not of the same height. And that “[s]ubject number two [the defendant]” was the shortest in the lineup.

At the conclusion of the hearing on the motion to suppress the identification testimony, the trial court found that “there is no evidence to indicate that the identification procedures were in any way suggestive or tainted,” and the court therefore overruled the motion. The trial then proceeded during which the above facts were brought out in the state’s case. Mrs. Sharp, at trial, identified the man who announced the holdup and to whom Mrs. Sharp gave the money from the cash register as the defendant, John Earl Macon. When asked “Will you ever forget the face?”, she replied “Never.” She was “positive” that the appellant was the man.

In the defendant’s case, Mrs. Essie Ma-' con, defendant’s mother, and the defendant testified. The mother testified that the defendant was ill during the week of November 25, but she could not be certain that he was ill or at home on the evening of November 25. Mr. Macon, the defendant, testified and denied that he was at the Barcelona Lounge on the night of November 25, and denied robbing anyone in that lounge. During the direct examination of the defendant, the following occurred:

“[Defense Counsel] Q. Okay John, have you ever been convicted of a crime?
“A. No, sir.
“Q. You’ve never been in any trouble, is that right?
“A. No, sir.”

On cross examination the assistant circuit attorney asked:

“Q. ... In view of [defense counsel’s] question to you, have you ever been arrested — for what have you been arrested?
“A. I was arrested for stealing under fifty.
“Q. Stealing under fifty or stealing over fifty?
“A. I don’t know, one of them.
* * * * * *
“Q. 1973. You were arrested for the possession of a Missouri controlled substance, a narcotic drug?
“A. No, sir.
******
“Q. You don’t recall being arrested in St. Louis County by the St. Louis County police on the charge of unlawful possession of a controlled substance on that day?
“A. No, sir.”

The case closed; the jury was instructed and the cause argued. The court gave the verdict director, MAI-CR 7.62, an alibi instruction, MAI — CR 3.20 and instruction No. 5 based on MAI — CR 2.10 at the request of the state. Instruction No. 5 told the jury:

“All persons are guilty who knowingly act together with the common purpose of committing an offense, or who knowingly and intentionally aid or encourage another in committing it, and whatever one does in furtherance of the offense is the act of eacjji of them.”

The second paragraph of MAI — CR 2.10 was omitted.

The cause was argued and, in the course of the first part of the state’s argument, the assistant circuit attorney discussed the testimony of the defendant that he had never been in trouble before and that it was brought out that he had been arrested before.

After the arguments, the jury retired to deliberate. After “approximately one hour and forty-five minutes” the jury returned with two verdicts — one indicating the punishment at seven years and the other “merely says unanimous verdict.” The court had the clerk read the verdict which found the defendant guilty and assessed his punishment at seven years. The jury was then polled and it was determined that not all the jurors agreed with the punishment. The court then indicated that it could not accept the verdict and stated that it would send the jury back to deliberate further. The court told the jury that if it could not agree on punishment the court would assess the punishment. The dinner hour was near and other verdict forms would have to be prepared. The sheriff indicated that it would take fifteen to twenty minutes to prepare other verdict forms. The court then asked the foreman whether, if the jury had another fifteen or twenty minutes, it could reach a verdict. The foreman was unsure. The court again indicated that it would return the jury for further deliberation. After an objection by defense counsel to the court’s indication that it would set punishment, and after some discussion, the trial court then inquired of the foreman whether the jury agreed “upon a verdict with regard to the guilt or innocence of the defendant.” The foreman replied that it had reached a verdict of guilty. Then the following occurred:

“THE COURT: It is guilty. Now do I understand that this jury cannot agree upon the punishment?
“[FOREMAN]: True.
“THE COURT: All right.
“[FOREMAN]: We would like to rebolish [sic] it to the Court.”

The court thereupon requested a verdict form which indicated that the jury finds the defendant guilty but could not agree on punishment and asked the foreman to sign the form. Over the objection of defense counsel, the foreman signed the verdict form finding the defendant guilty “but [that the jury] cannot agree on punishment.” The jury was polled and each member concurred in the verdict. The verdict was then received.

Within due time, a motion for new trial was filed, allocution was granted, the motion was overruled and the defendant sentenced to twelve years.

On this appeal appellant contends that the trial court erred (1) in overruling his motion to suppress the identification testimony of Mrs. Sharp because “the conduct surrounding the pre-trial confrontation was so unnecessarily suggestive and conducive to irreparable misidentification as to amount to a denial of constitutional due process of law”; (2)(a) in overruling his objection to the testimony of Mr. Collins “when he stated that he was robbed[ — ]such testimony being proof of other crimes with which appellant was not charged and in connection with which appellant was not identified,” and (b) in overruling his objection to the state’s argument referring to the robbery of Mr. Collins; (3) in allowing the state to cross-examine the defendant concerning his prior arrests; (4) in giving MAI-CR 2.10 without the second paragraph; and (5) in submitting to the foreman of the jury a verdict form because “in doing so the Court took upon itself . the duty of assessing punishment and thereby infringed defendant’s right to have the jury deliberate and arrive at its verdict in private.”

As to the first point, appellant contends that the inconsistencies in Mrs. Sharp’s testimony regarding the two occasions when she viewed photographs suggest that a likelihood of misidentification occurred and that the inconsistencies indicate that her in-court identification was impermissibly tainted. He also complains that the “uncertainty of Ms. Sharp’s testimony regarding men she did (or did not) identify from the two photographic displays shows a great likelihood that misidentification took place.” He further argues that the fact that appellant was the only person included in the lineup from among the men in the photographs shows that her attention was necessarily and impermissibly focused on appellant at the lineup thus tainting her in-court identification.

Despite these contentions we hold that the trial court did not err in overruling the motion to suppress the identification testimony.

The principles relating to due process protection against the admission of evidence derived from allegedly suggestive identification procedures are now well settled and have been set forth by the United States Supreme Court and by the courts of this state. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); see discussion in State v. Rutledge, 524 S.W.2d 449, 455-456 (Mo.App.1975). Whether the identification procedures are so unnecessarily suggestive is to be determined from the totality of the circumstances. And, even though the photograph or lineup identification is tainted or in some way suggestive, where there is an independent factual basis for the in-court identification, an in-court identification is proper. State v. Hall, 541 S.W.2d 327, 328 (Mo.App.1976).

Tested within these principles, there was no error in overruling the appellant’s motion to suppress Mrs. Sharp’s identification testimony. Under the totality of the circumstances, the photographic and lineup identifications were not impermissibly suggestive or conducive to irreparable misiden-tification. The appellant’s real complaint is that there are some inconsistencies in her testimony as to the photographs — -having said she identified only the defendant in the second set of photographs and later indicating she identified two of the individuals in the lounge. This is not sufficient to show impermissible suggestive procedures. The apparent inconsistencies in Mrs. Sharp’s testimony regarding the occasions when she viewed photographs do not, under the circumstances, show a likelihood of misidenti-fication.

Furthermore, there was an independent factual basis for Mrs. Sharp's in-court identification. Mrs. Sharp observed the defendant at the time of the robbery; she was only a few feet away from him; he asked her for some change; and she was positive that the defendant was the man who held a gun and announced the holdup. Under all the circumstances, there was a positive in-court identification made upon a factual basis independent from such photographic or lineup procedures. Under such circumstances, the in-court identification was proper. State v. Johnson, 536 S.W.2d 851, 854-855 (Mo.App.1976); State v. Hall, supra, 541 S.W.2d at 328.

We rule this point against appellant.

Second, appellant argues that Mr. Collins’ testimony was improperly admitted because Mr. Collins “offered no testimony whatsoever which connected appellant with the crime committed against Collins” and could not and did not testify that he saw anyone rob Jacqueline Sharp. Collins’ testimony should have been excluded, he argues, “since it encouraged the jury to draw the legally spurious conclusion that appellant was connected with the offense which Collins said was perpetrated against him.”

The well-established rule is that evidence of the commission of separate and distinct crimes is not admissible in evidence. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954); State v. Wing, 455 S.W.2d 457, 464 (Mo.1970), cert. denied 400 U.S. 1009, 91 S.Ct. 566, 27 L.Ed.2d 621; State v. Lee, 491 S.W.2d 317, 320 (Mo. banc 1973). The testimony of Mr. Collins here did not violate that well-established principle. The appellant was charged with “acting with another” in the robbery; the three men entered the lounge; the appellant went to the bar, asked for change, held a gun and announced a holdup; the other two men were at the other bar nearby. Under such circumstances, it was not necessary for Mr. Collins to offer testimony to connect appellant with the crime committed against him. The robbery by the three men was one continuous transaction. Under such circumstances, the testimony of Mr. Collins was admissible.

“. . . [W]here the circumstances are such as to constitute one continuous transaction in the accomplishment of a common design and the crimes are concurrent so that the proof of one cannot be made without a showing of the facts tending to establish the other, the entire facts may be admissible since they are regarded as part of the ‘res gestae’ and therefore all the facts may be admitted. In such circumstances the state is not required to nicely sift and separate the evidence and exclude the testimony tending to prove the crime for which the accused is not on trial when it forms a part of the ‘res gestae’ of the crime charged . . . ”

State v. Cox, 508 S.W.2d 716, 723 (Mo.App.1974); State v. Griffin, 497 S.W.2d 133, 134-135 (Mo.1973); State v. Wilson, 320 S.W.2d 525, 527 (Mo.1959); State v. Peterson, 543 S.W.2d 566, 568 (Mo.App.1976).

Third, appellant argues that it was error to permit the prosecutor to inquire on cross-examination about appellant’s prior arrests. On direct examination appell.ant testified that he had never been in trouble before, and on cross-examination the prosecutor inquired about his previous arrests for stealing and narcotic violations.

It is, of course, the general principle consistently applied that it is error to inquire on cross-examination about mere arrests of a witness or the defendant which have not resulted in a conviction. State v. Rumfelt, 258 S.W.2d 619, 619-620 (Mo.1953) and cases cited therein; State v. Sanders, 360 S.W.2d 722, 725 (Mo.1962).

“. . . [T]he established rule [is] that a witness’ credibility may not be attacked by showing a mere arrest, investigation, or criminal charge which has not resulted in a conviction. . . .”

State v. Sanders, supra, 360 S.W.2d at 725 [citing many decisions].

Appellant relies on State v. Todd, 468 S.W.2d 632 (Mo.1971) which adhered to this general principle and reversed and remanded the cause. In Todd, the defendant on direct examination gave a long narrative concerning occurrences on the occasion when he was arrested. In the course of the narrative he was asked if he had been arrested before. He answered “ ‘Yes.’ ” When asked on what charges he answered “ ‘Tickets or suspicion of burglary is all.’ ” Id. at 633. Thereafter, on cross-examination, the prosecutor was permitted to question him concerning fifteen prior arrests. Our Supreme Court reversed. “The fact that defendant made a brief voluntary reference to the subject of his arrests in his narrative testimony did not justify the flagrant violation of the rule . . . under the guise of explanatory cross-examination. . . .” Id. at 635.

Todd is not dispositive of the circumstances here.

Where the defendant in direct examination voluntarily opens up the subject that he is a person of good character and testifies that he has never been in any “trouble” before and hence is less likely to commit a crime than a person not of good character, it is permissible for the state to attempt to impeach the defendant’s efforts to present to the jury a record of previous good conduct by showing prior arrests or criminal charges for the purpose of testing (a) whether he truthfully is a person of good character and (b) his trustworthiness and credibility as a witness in his own behalf.

In State v. Elbert, 471 S.W.2d 170 (Mo.1971), the defendant on direct examination was asked by his counsel: “ ‘Now, Robert, you have been in trouble before, haven’t you, with the police?’ ” He answered, “ ‘Yes, sir, I have, I got caught, couple fellows smoking marijuana.’ ” He was then asked whether that was the only time he had been in trouble and he replied, “Yes, sir.” Id. at 171. On cross-examination the state inquired regarding prior arrests for peace disturbance, possession of marijuana and gambling. The Supreme Court held, citing State v. Withers, 347 S.W.2d 146 (Mo.1961), that the cross-examination was, under the circumstances, proper as a permissible attempt to impeach appellant’s effort to present to the jury a record of previous good conduct.

In State v. Withers, supra, 347 S.W.2d at 150, defendant was asked on direct examination: “ ‘Now I will ask you if prior to August 4, 1958, you had ever been arrested or in any kind of trouble?’ ” The defendant replied, “ ‘No, sir, I don’t think so.’ ” He was again asked: “ T will ask you, since August 4, 1958, to the present time, have you been in any trouble?’ ” The defendant replied, “ ‘No, sir.’ ” Thereafter on cross-examination he was asked whether he had been charged with other offenses in connection with his activities with young ladies. Our Supreme Court stated that “. the purpose of the [direct] interrogation was to lead the jury to believe that, with the exception of his admitted criminal misconduct [for which he was charged] defendant, both prior and subsequent thereto, had been a law-abiding person. . . . ” State v. Withers, supra, 347 S.W.2d at 150. The court held that:

“We think it clear that under the circumstances here shown defendant subjected himself to cross-examination as to any prior criminal misconduct or arrests for such misconduct for the purpose of testing in good faith, first, whether he truthfully was (as he had sought to induce the jury to believe) a person of good character (and, therefore, in law presumed less likely to commit a crime than a person not of good character) and, second, testing generally his trustworthiness and credibility as a witness in his own behalf. . . . ” State v. Withers, supra, 347 S.W.2d at 150-151.

Furthermore, while the established rule is that credibility may not be attacked by showing mere arrests, an accused, pursuant to § 546.260, RSMo., may be questioned during cross-examination as to any matter referred to in his examination in chief and “. . . this is particularly so when the purpose is to show his trustworthiness and credibility as a witness in his own behalf. . ” State v. Elbert, supra, 471 S.W.2d at 172; State v. Connell, supra, 523 S.W.2d at 135, and discussion therein.

Therefore, under these principles of law established by judicial decisions and statute, we hold that under the circumstances here there was no error in permitting the state to attempt to impeach the appellant’s credibility by showing prior arrests which were not so remote.

We rule this point against appellant.

Fourth, appellant argues that the court erred in failing to include the second paragraph of MAI-CR 2.10 in its instruction No. 5. He relies on State v. Vernor, 522 S.W.2d 312, 316-317 (Mo.App.1975) — “. . Any deviation from the printed page [of MAI-CR] now constitutes error, the prejudicial effect of which is to be judicially determined. Rule 20.02(e). . . .’’He argues that the court’s failure to include the second paragraph prejudiced the appellant by making it possible for the jury to infer that his mere presence at the scene of the offense would be a sufficient basis for a finding of guilt.

Not every deviation from MAI-CR is prejudicial error. State v. Vernor, supra; State v. Gaye, 532 S.W.2d 783 (Mo.App.1975). However, here, there was no deviation from MAI-CR 2.10. There was sufficient evidence for the jury to conclude that the defendant was present at the scene of the offense and acted as principal in the offense. The defendant pulled a gun and announced the holdup. The instruction given informed the jury that “[a]ll persons are guilty who knowingly act together with the common purpose of committing an offense . and whatever one does in furtherance of the offense is the act of each of them.” MAI-CR 2.10 is entitled “Parties: General Responsibility for the Conduct of Others.” The second paragraph is designed and intended for circumstances where the responsibility of the defendant for an act is sought to be imposed because of the conduct of others which the defendant aids and encourages. In the absence of knowingly and intentionally aiding or encouraging others or in furtherance of the offense, mere presence is insufficient to make the defendant responsible. Thus the second paragraph is then required. But, when the defendant is a principal in the offense — here robbery — and knowingly acts with others for a common purpose of committing the offense, the second paragraph of MAI — CR 2.10 is not necessary.

Under the evidence here, the jury could not have been misled to believe that “appellant’s mere presence at the scene of the offense would be sufficient basis for a finding of guilt.” The jury was informed that all persons who act together with a common purpose of committing an offense are guilty. There was sufficient evidence that the three men entered the lounge and that the defendant acted as a principal. The verdict director, MAI — CR 7.62, was given which informed the jury to find the defendant guilty if he took property from Mrs. Sharp against her will by causing her to fear immediate injury to her person.

Furthermore, we do not believe that under the circumstances MAI-CR 2.10 was a necessary instruction. The state submitted its case to the jury on the basis that the defendant by means of a dangerous and deadly weapon took money from the possession of Mrs. Sharp by putting her in fear; the evidence all indicated that the defendant acted as a principal; there was an absence of evidence showing that the defendant was only an aider or encourager. See Note 4 of Notes on Use and State v. Stewart, 542 S.W.2d 533, 539 (Mo.App.1976). Since there was substantial evidence that defendant was a joint actor and a principal and not just an aider or encourager, it would not have been error not to have given MAI-CR 2.10. Since the whole instruction could have been omitted, the failure to include the second paragraph cannot therefore be prejudicial error. Note 4 to MAI-CR 2.10 states that the failure to use the instruction will not be deemed error even if there is substantial evidence the defendant was a joint actor “so long as there is no evidence that he was only an aider or encourager.” There was no evidence here that the defendant was only an aider or encourager; in fact, there was substantial evidence that he was a joint actor and a principal. Under Note 4 the failure to give MAI-CR 2.10 could not have been error; therefore, the failure to use the second paragraph cannot be error.

Lastly, appellant contends that the court improperly took upon itself the duty of assessing punishment, thereby infringing on the appellant’s right to have the jury deliberate and arrive at its verdict. He argues that, when the trial court submitted to the foreman and had the foreman sign a verdict form saying that the jury finds the defendant guilty but could not agree on punishment, the court erred because the procedure did not comport with the Court’s duty to “give a jury ample time in which to try to resolve their differences about the degree of punishment and not be too hasty in assuming that burden . . . .” State v. Burton, 355 Mo. 792, 198 S.W.2d 19, 22 (1946).

When the jury returned from its deliberations after about an hour and forty-five minutes, it found the defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon and fixed his punishment at seven years. A poll of the jurors indicated that not all of the jurors agreed on the punishment. The court did not accept the verdict and indicated that it would return the jury for further deliberations. The court told the jury at that time that if the persons could not agree “on the amount of time, you can return a verdict form which does not state the amount of time, and the Court will assess the punishment.”

The court then questioned the foreman whether the jury agreed upon a verdict as to guilt or innocence; the foreman replied in the affirmative and that the verdict was guilty. The court then inquired, “. Now do I understand that this jury cannot agree upon the punishment?” The foreman answered, “True” and “We would like to rebolish [sic] it to the Court.” At that point the court requested the clerk to provide a verdict form which instructed the defendant’s guilt but that the jury could not agree on punishment and requested the foreman to sign the form. The foreman then signed the form indicating guilty but unable to agree on punishment; the jury was polled and all the jurors concurred in the verdict.

It is in this context that appellant complains that the court erred in taking upon itself the duty of assessing punishment without giving it ample time to resolve the differences as to the degree of punishment thereby infringing upon the defendant’s right to have the jury deliberate and arrive at a verdict in private.

While it is true a trial judge must give a jury ample time to resolve their differences about the degree of punishment and not be too hasty in assuming that burden, State v. Burton, supra, 198 S.W.2d at 22, much must be left to the discretion of the trial court. No exact standard can be laid down, nor should there be. Under the circumstances, we cannot conclude that there was an abuse of discretion. The members of the jury indicated that they had all agreed on a verdict of guilty but could not agree on punishment and relinquished their right to assess punishment. It was at that point that the court requested the foreman to sign the verdict form indicating that the jury found the defendant guilty but “cannot agree on punishment.” We find no clear abuse of discretion in this procedure. See State v. Hampton, 317 S.W.2d 348, 353 (Mo.1958); Cf. State v. Cain, 507 S.W.2d 437, 442 (Mo.App.1974).

We have read the entire transcript, the briefs and authorities relied upon. We are convinced that there is no prejudicial error and therefore affirm the judgment of conviction.

The judgment is affirmed.

KELLY and GUNN, JJ., concur.

      . See also State v. White, 313 S.W.2d 47, 54-55 (Mo.App.1958) — “. . . After defendant voluntarily opened the subject of whether he had ‘been in any trouble’ since September 8, 1956 . certainly he could not complain of cross-examination on the same or related matters. State v. Duncan, 254 S.W.2d 628 (Mo.1953) — where defendant brought the matter out on direct examination he cannot complain; Cf. State v. Connell, 523 S.W.2d 132 (Mo.App.1975) — defendant testi-tied freely on direct examination as to arrests subsequent to convictions — not error to show arrests on numerous occasions prior to admitted convictions.

      . “The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible therefor, although his presence may be considered together with all of the evidence in determining his guilt or innocence.”


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Willie BUSH, Appellant.
    No. 37575.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 15, 1977.

      Robert C. Babione, Public Defender, Charles S. Stone, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James F. Booth, Asst. Circuit Atty., St. Louis, for respondent.
   PER CURIAM:

Defendant has appealed his conviction for attempted second degree burglary. After verdict the trial court sentenced him to five years’ imprisonment.

Defendant challenges the sufficiency of the evidence. He did not raise this point in his motion for new trial but it is reviewable under plain error Rule 27.20(c), VAMR. State v. Potter, 530 S.W.2d 268[1] (Mo.App.1975).

The state’s evidence: On July 20, 1975 at 3:20 A.M. police officer White was patrolling the 4200 block of Natural Bridge when he heard a banging sound as he approached the 905 Liquor store. He noticed defendant sitting at a bus stop across the street from the store and as he drove around back he heard defendant yell, “Here come the man.” The officer saw a hole had been cut in the store’s back wall and people were running away in the alley; he neither apprehended nor identified them. He returned to the street and arrested defendant, who by then was walking west on Natural Bridge.

Since the evidence against defendant is circumstantial the facts must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence. State v. Burnley, 480 S.W.2d 881[1] (Mo.1972).

To sustain defendant’s conviction there must be evidence “defendant in some fashion associated himself with the venture or participated in the crime in some manner as something he wished to bring about or to make the offense succeed.” State v. Jackson, 519 S.W.2d 551[2-9] (Mo.App.1975). Defendant stresses three exculpatory facts in the state’s evidence—the attempted burglary was taking place half a block away and out of defendant’s view; defendant was not shown to be acquainted or associated with the burglars; and defendant did not flee when officer White went into the alley to investigate. To sustain the conviction the state relies on the single incriminating fact of defendant’s words, “Here come the man.” So, those words are crucial.

To find participation in the crime by an alleged aider or abettor “By far the most important element is the sharing of the criminal intent of the principal, and this is concededly difficult to prove; nevertheless, the Government must prove this sharing of criminal intent.” Snyder v. United States, 448 F.2d 716[1—2] (8th Cir. 1971). The state argues this intent is found in defendant’s role as “lookout,” but calling defendant a lookout does not make him one. United States v. Irons, 475 F.2d 40 (8th Cir. 1973).

Defendant’s words could have warned the burglars of the approaching policeman, but without evidence pointing to his sharing of criminal intent, the words “Here come the man” are ambiguous. Speculatively, defendant might have been a lookout, or he might have been a non-participating bystander who may have hindered the police officer in effecting an arrest, but not all related action by a defendant is tantamount to participation in a crime. In State v. Taylor, 542 S.W.2d 91[1] (Mo.App.1976) defendant was seen standing by his car 20 feet away from where his companion was standing inside the screen door of an apartment. As a mailman approached, defendant’s companion walked to the car and they drove away. The apartment door was found broken. In reversing, we held there was no active involvement by defendant in the attempted burglary.

This is not a case in which defendant has admitted to involvement in the preparatory stages of the crime, such as in State v. Hudson, 508 S.W.2d 707 (Mo.App.1974), nor one in which defendant is shown to have been inside the burglarized store and had stolen items in his possession at the time of arrest. State v. G’Sell, 497 S.W.2d 882 (Mo.App.1973).

Bearing in mind that in a circumstantial evidence case the evidence must “ ‘point so clearly to guilt as to exclude every reasonable hypothesis of innocence,’ ” we must conclude the fact defendant yelled “Here come the man,” standing alone, does no more than raise a suspicion of participation. It is insufficient to show he shared in the necessary criminal intent to aid in the burglary. In light of three exculpatory facts that defendant could not see the burglary attempt, did not associate himself with the burglars before or during the burglary attempt, and did not flee when he could have, defendant’s words, standing alone, do not exclude a reasonable hypothesis of his innocence of participating in the attempted burglary.

Because there is nothing in the record to indicate the state has other evidence to retry defendant, he is discharged. State v. Morse, 503 S.W.2d 450[3] (Mo.App.1973).

Reversed and defendant discharged.

All concur.

      . State v. Taylor, 542 S.W.2d 91[2-5] (Mo.App.1976).


text:
    Lewis Lee HARRIS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37893.
    Missouri Court of Appeals, St. Louis District, Division Pour.
    Feb. 15, 1977.

      Robert C. Babione, Public Defender, Jeffrey J. Shank, J. C. Jones, Asst. Public Defenders, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, J. Michael Davis, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas M. Daly, Asst. Circuit Atty., St. Louis, for respondent.
   SIMEONE, Chief Judge.

This is an appeal by Lewis Lee Harris from a denial of his motion to vacate judgment of conviction and sentence pursuant to Rule 27.26 V.A.M.R. Movant was sentenced to two concurrent eighteen-year terms on his plea of guilty to the crimes of assault with intent to kill with malice and robbery first degree by means of a dangerous and deadly weapon. §§ 559.180, 560.120 and 560.135, RSMo.

Movant’s 27.26 motion was predicated upon the allegations that his plea of guilty was involuntarily made and that he was ineffectively assisted by counsel in that (1) counsel failed to conduct an appropriate investigation to establish and develop mov-ant’s alibi defense, (2) counsel failed to interview members of movant’s family even though movant informed his counsel that he was in the company of these family members at the time of the crime, (3) counsel failed to prepare an adequate defense as evidenced by counsel’s failure to interview any of the state’s prospective witnesses and his failure to examine the scene of the crime, and (4) counsel was not physically capable of advising and assisting movant in making a knowing and intelligent plea of guilty.

The trial court denied appellant’s motion after holding an evidentiary hearing at which movant, his mother, two of his sisters and his former counsel testified. In denying appellant’s motion, the trial court stated:

. . [T]he Court herein denies the defendant’s 27.26 [motion], and finds that the defendant was adequately represented. ... Mrs. Perry [movant’s mother], based on what the lawyer testified, and the evidence I am denying your son’s petition for new trial, for a writ for the 27.26. The lawyer had adequate time records to indicate the amount of time he spent on the case, and what he had done to prepare the case. . . .”

Then, on February 10, 1976, the trial court in a memorandum, stated:

“The Court finds the claims in [mov-ant’s] 27.26 Petition is [sic] without merit.

On this appeal appellant urges that the cause should be remanded because the trial court failed to make findings of fact and conclusions of law as required by Supreme Court Rule 27.26(i). This is the only assignment of error that need be considered.

Pursuant to Supreme Court Rule 27.26(i), the trial court is required to “make findings of fact and conclusions of law on all issues presented” in a motion for post-conviction relief. Appellate review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j); Crosswhite v. State, 426 S.W.2d 67 (Mo.1968). Such a review is possible only where the trial court makes adequate findings of fact and conclusions of law in accordance with the express provisions of the rule. Thomas v. State, 465 S.W.2d 513, 515 (Mo.1971); Gerberding v. State, 433 S.W.2d 820, 824 (Mo.1968). A mere recital or statement that the motion, files and records conclusively show that the movant is entitled to no relief is not a compliance with the rule. Gerberding v. State, supra, 433 S.W.2d at 824. A mere recital that the court finds that the motion should be denied is not a compliance with the rule. Keith v. State, 511 S.W.2d 896, 897 (Mo.App.1974). Specific findings of fact and conclusions of law on each issue presented are required; anything less presents an insufficient basis for intelligent appellate review as contemplated by the rule. Thomas v. State, supra, 465 S.W.2d at 515. Findings of fact and conclusions of law will not be supplied by implication from the trial court’s ruling. Thomas v. State, supra, 465 S.W.2d at 516.

The trial court here did not make specific findings of fact and conclusions of law on all issues presented. The oral statement and the memorandum filed by the trial court were mere conclusions and not in accordance with Rule 27.26(i). We are, therefore, compelled to reverse the judgment and remand the cause for specific findings.

The judgment is reversed and the cause remanded with directions to make specific findings of fact and conclusions of law in compliance with Rule 27.26(i).

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

      . The allegation that his plea was involuntarily made and the fact of counsel’s physical incapa- • bilities were added by amendment.

      . Appellant also contended, in the alternative, that the trial court’s findings were clearly erroneous.

      . A specific finding relating to each and every fact testified to by each witness at the hearing is not required as long as there are specific and adequate findings as to all issues. Thomas v. State, 512 S.W.2d 116, 121 (Mo. banc 1974). See also Garrett v. State, 528 S.W.2d 174 (Mo.App.1975) — holding that the court must make findngs on all issues presented and that it was error for the trial court in a post-conviction proceeding to fail to include in its findings and conclusions any reference to trial counsel’s failure to request a psychiatric examination for the defendant where that issue was properly before the trial court.

      .In Thomas v. State, supra, the Supreme Court held that the trial court’s nine page “dissertation” at the conclusion of the hearing on the motion did not comply with Rule 27.26 because, although the court discussed generally the conduct of the prosecuting attorney and the conduct of defendant’s attorney at the original trial, no specific findings of fact or conclusions of law with respect to their conduct were made.


text:
    In re the MARRIAGE OF Karen Marie CAPSTICK, Petitioner-Respondent, and Patrick Robert Capstick, Respondent-Appellant.
    No. 37760.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 15, 1977.
    Terry A. Bond, Luke, Cunliff, Wilson, Herr, Chavaux & McCluggage, St. Louis, for respondent-appellant.
    Kemper R. Coffelt, St. Louis, for petitioner-respondent.
   SIMEONE, Chief Judge.

This is an appeal by appellant, Patrick Robert Capstick, from a judgment entered on December 2, 1975, by the circuit court of St. Louis County dissolving the marriage of appellant and Karen Marie Capstick and awarding Karen Marie Capstick custody of a child, support, maintenance and certain property.

On this appeal Mr. Capstick makes one contention — that the court erred in granting dissolution because the wife “failed to prove that the marriage was irretrievably broken” as provided by Chapter 452, RSMo.

The action was begun by the petitioner, Karen, by filing her petition against Patrick alleging the date of the marriage (July 7,1973), the date of the separation (July 25, 1975), the birth of a daughter, Leanna Marie, and that the marriage was “irretrievably broken” because Mr. Capstick “behaved in such a way that petitioner [Karen] cannot reasonable [sic] be expected to live with respondent, which behavior is in part .” that he would “quarrel with and nag” her, that he struck her, and that he became “cold and indifferent” in his attitude. Karen prayed in her petition (1) that the marriage be dissolved, (2) that she be awarded custody of the minor child, support and maintenance, and (3) that the court divide the marital property.

Mr. Capstick filed his answer denying that the marriage was irretrievably broken and denied the specific allegations as to his behavior.

In due time, income and expense statements were filed by Karen and Patrick. The cause was heard on November 19, 1975. Almost all of the testimony from Karen and Patrick related to their income, debts and expenses, expenses for their daughter and what constituted the marital property. In ■her testimony Karen testified over objection that in her opinion the marriage was “irretrievably broken and cannot be saved.” In his testimony Patrick offered no testimony that the marriage was not irretrievably broken testifying only as to his employment, his earnings, his debts and expenses and his property.

At the conclusion of the hearing, the court found that “there remains no reasonable likelihood that the marriage between the parties can be preserved, and that the marriage is, therefore, irretrievably broken” and granted dissolution, awarded custody of the child to Karen, gave her support and maintenance and awarded to her certain personal property. After an unavailing motion to amend the findings and decree, Patrick duly appealed.

He contends that the court erred in granting the dissolution because Mrs. Capstick “failed to prove that the marriage was irretrievably broken as provided in Chapter 452 . . . ." He argues (1) that Karen, in order to be granted a dissolution, must “satisfy the Court of one or more of the five facts which are enumerated in Section 452.320(2)(l)(a-e), R.S.Mo. 1969,” and (2) that, although Mrs. Capstick testified that in her opinion the marriage was irretrievably broken and could not be saved, this was a mere conclusion and was of no probative value.

Our new dissolution law provides that if one of the parties to the marriage “has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors . and after hearing the evidence shall . make a finding whether or not the marriage is irretrievably broken,” but, in order to find that the marriage is irretrievably broken, the “petitioner shall satisfy the court” of one or more facts listed. § 452.-320, subsection 2, (l)(a)-(e).

Recently, we had occasion to examine the new dissolution law in this regard in Mitchell v. Mitchell, Mo.App., St. Louis Dist., 1976, 545 S.W.2d 313. We held there that, while the thrust of the new dissolution law is pointed toward the elimination of the “fault concept” in the resolution of marital problems, our new law is not a true “no fault” dissolution law. Unlike other states which have adopted the “no fault” concept of dissolution, the General Assembly clearly did not enact a total “no fault” dissolution law. Rather, our General Assembly adopted a modified no fault law. Under our statutes, there are clearly two well-defined situations. The first is where the marriage partners have stated under oath or affirmation that the marriage is irretrievably broken, or where, when one of the partners has so stated and the other has not denied it, the sole ground for dissolution is that there “remains no reasonable likelihood that the marriage can be preserved and therefore the marriage is irretrievably broken.” §§ 452.305, 452.320 subsection l. The other situation is where “one of the parties has denied under oath or affirmation that the marriage is irretrievably broken.” § 452.320 subsection 2. In such an instance the trial court is then required to consider all the relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and, after hearing the evidence, shall make a finding whether or not the marriage is irretrievably broken. And, in order for the court to find that the marriage is irretrievably broken, the petitioner must satisfy the trial court of one or more of the factors listed in § 452.320 subsection 2.(l)(a)-(e). In short, when one of the parties denies “under oath or affirmation that the marriage is irretrievably broken,” the court must then make a finding that (a) the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent, or (b) the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent, or (c) the respondent has abandoned the petitioner for a continuous period of at least six months preceding the petition, or (d) the parties have lived apart by consent for a continuous period of twelve months prior to the filing of the petition, or (e) the parties have lived apart without mutual consent for a continuous period of twenty-four months preceding the filing of the petition.

When one of the parties “has denied under oath or affirmation that the marriage is irretrievably broken,” the court must find one or more of the above factors, and, in the absence of such a finding, the court may not grant a dissolution of the marriage.

In the circumstances of this record, Mrs. Capstick alleged that the marriage was irretrievably broken; Mr. Capstick, under oath, denied that the marriage was irretrievably broken. Although in her petition she alleged that Mr. Capstick behaved in such a way that she could not reasonably be expected to live with him, on the hearing Mrs. Capstick did not present, or was precluded from presenting, any evidence of that ground or any of the factors listed in § 452.320 subsection 2, (l)(a)-(e). She did not “satisfy” the court of one or more of such factors.

We are therefore compelled under the dissolution law as adopted by our General Assembly to reverse the judgment in this cause. However, while we reverse the judgment, we remand the cause to the trial court in order to provide the petitioner with an opportunity to “satisfy the court” of one or more of the facts listed in § 452.320 subsection 2, (l)(a)-(e) and for the court to make a finding.

The judgment is reversed and the cause is remanded for further proceedings.

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

      . During the course of Karen’s testimony, the following occurred:
      “Q. [By Karen’s counsel]: Now, Mrs. Capst-ick, during the course of your marriage and prior to the time of your separation, did anything occur between you and your husband that in your opinion, made your marriage irretrievably broken?
      “[Counsel for Mr. Capstick]: Object to that, Your Honor, as calling for opinion of the witness.
      “THE COURT: I will sustain it. Her testimony that the marriage cannot be saved and is irretrievably broken should be sufficient.
      “Q. [By Karen’s counsel]: Mrs. Capstick, is it your opinion that the marriage between you and Patrick is irretrievably broken and cannot be saved?
      “A. Yes.
      “[Counsel for Mr. Capstick]: Same objection, Your Honor.
      “THE COURT: Overruled.”

      . The Missouri dissolution law is in this respect different from the English Divorce Reform Act of 1969 which requires in Section 2(1) that the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more factors including that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. See Ash v. Ash, [1972] 1 All E.R. 582.


author: WEIER, Judge.

text:
    STATE of Missouri, Respondent, v. Jerry W. RECTOR, Appellant.
    No. 37727.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 15, 1977.
    M. E. Williams, Public Defender, James A. Mantia, Asst. Public Defender, Hillsboro, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Donald A. Purdy, Asst. Atty. Gen., Jefferson City, James R. Hall, Pros. Atty., Doniphan, for respondent.
   WEIER, Judge.

While incarcerated in a penal institution in Arizona, Jerry W. Rector sent a letter to the public defender’s office in Jefferson County, Missouri, stating that he had pled guilty to three counts of first degree murder before a circuit court in Jefferson County because he was “continuously harassed” by his lawyer into pleading guilty even though his lawyer admitted that he knew that defendant Rector was not guilty of committing the murders. The public defender’s office forwarded this letter to the court which had sentenced Rector (to three concurrent life sentences) with the suggestion that the letter be treated as a Rule 27.26 motion to vacate judgments and sentences. The court treated the letter as a Rule 27.26 motion and determined from the records and files that Rector was not entitled to relief. Rector was permitted to appeal this decision in forma pauperis represented by the public defender.

This case must be reversed and remanded with directions to dismiss the proceeding for two reasons. The first reason relates to the form of this “motion” and the second concerns defendant’s incarceration outside of Missouri.

Rule 27.26(c) requires that motions under the rule “must be submitted on a form substantially in compliance with the form appended hereto . . . The prisoner shall verify the correctness of the motion, including the fact that he has recited all claims known to him.” The letter from prisoner Rector is not in the correct form for a Rule 27.26 motion and has not been verified. The suggestion by the public defender’s office that it be treated as a Rule 27.26 motion is not binding on the prisoner because that office had not been appointed counsel in the case. Furthermore, “. proceedings to withdraw pleas of guilty or to vacate sentences contemplate an orderly lawyer-like presentation of meritorious issues.” Davis v. State, 442 S.W.2d 510, 512[1] (Mo.1969). Treating this letter as a Rule 27.26 motion does not further this purpose.

In addition, since defendant is incarcerated outside of this state he is not in custody under the judgment and sentence he seeks to overturn. For this reason he cannot proceed under Rule 27.26. Lalla v. State, 463 S.W.2d 797, 801[2] (Mo.1971); Wing v. State, 524 S.W.2d 443, 444[2] (Mo.App.1975). As stated in Lalla at 798: “Missouri has not denied defendant a post-conviction remedy; it has merely said that, not having him within its custody, a hearing on the matter will be postponed until he is available (and in custody) in Missouri.”

Judgment reversed and remanded with directions to dismiss the Rule 27.26 proceeding without prejudice.

CLEMENS, P. J., and DOWD, J., concur.


author: HENRY, Justice.

text:
    Mary BOWMAN, etc., Petitioner, v. Hal HENARD, M.D., et al., Respondents.
    Supreme Court of Tennessee.
    Jan. 31, 1977.

      Robert J. Shockey, Frank P. Pinchak, Shockey, Boehm & Pinchak, Chattanooga, for petitioner.
    John A. Armstrong, Greeneville, for Dr. Henard.
    J. Paul Coleman, Herndon, Coleman, Brading & McKee, Johnson City, for Dr. Reviere.
   OPINION

HENRY, Justice.

We granted certiorari in this malpractice action in order to clarify the practice and procedure in the use of motions for summary judgment under Rule 56, Tenn.R. Civ.P. in medical malpractice actions. More specifically, we address the issue of the propriety of dismissing a medical malpractice action on the basis of opinion evidence as contained in affidavits of medical doctors. This is a question of first impression in this jurisdiction.

The trial judge sustained motions for summary judgment and his action was affirmed by the Court of Appeals.

We affirm.

I.

Petitioner’s suit charged the respondent physicians with (1) negligent, faulty and erroneous diagnosis, (2) negligent failure to interpret x-rays, tests and studies, (3) negligent failure to obtain proper diagnostic tests, and (4) failure to refer deceased husband to a specialist.

Respondent, Henard, moved the court for a summary judgment, supporting his motion by his affidavit and that of two fellow practitioners of medicine and surgery. In his affidavit, Dr. Henard detailed the specifics of his contact with decedent going back to 1947 and continuing through 1974 and concluded by stating that his diagnosis and treatment “were appropriate, medically advisable and in rendering same I exercised that degree of care and skill ordinarily exercised by other physicians in good standing under the same or similar circumstances in the community. . . .”

Dr. Nathan P. Horner, in his affidavit, asserted that he “carefully inspected and reviewed” the appropriate hospital records to include “x-rays and other interpretations by radiologists” and the office medical records maintained by Dr. Henard, from all of which he stated that the diagnosis and treatment “were appropriate, medically advisable and in rendering same the defendant Hal Henard, M.D. exercised that degree of care and skill ordinarily exercised by other physicians in good standing under the same or similar circumstances in the community. . . . ”

Dr. Haskel B. McCollum’s affidavit is virtually identical.

Respondent, Reviere, a radiologist, supported his motion for a summary judgment by the affidavits of three Board certified radiologists. Each was familiar with the prevailing standard of care in the community as it relates to radiology and had examined the x-rays and each had examined the interpretations made by Dr. Reviere’s radiological group and each was of the opinion that these interpretations reflected the findings as shown on the films. Further, each was of the opinion that the interpretations in connection with the x-rays conformed to the standard of practice in the community.

The petitioner countered with the affidavit of one of her attorneys of record which reads in pertinent part as follows:

3. I have examined the hospital and other medical records that are relevant to this lawsuit, and based upon my experience in the specialty area of medical malpractice, it is my opinion that a case of negligence can be made out.
4. I have done substantial medical research and have learned that the diagnosis that the defendants made in this case was so wrong based upon the facts that were then appearing to the defendants that a jury will likely conclude the defendants were guilty of negligence.

It was on the basis of these pleadings and affidavits that the trial court held that there was no genuine issue of fact.

II.

Justice Harbison, speaking for this Court in Evco Corporation v. Ross, 528 S.W.2d 20 (Tenn.1975), properly pointed out that

[t]he summary judgment procedure was designed to provide a quick, inexpensive means of concluding cases, in whole or in part, upon issues as to which there is no dispute regarding the material facts. 528 S.W.2d at 24-25.

But as Justice Harbison further said in Evco “summary judgment proceedings are not in any sense to be viewed as a substitute for a trial of disputed factual issues.” Rule 56, Tenn.R.Civ.P. provides a remedy in the nature of a pre-trial inquiry for the purpose of determining whether there is any genuine issue of fact, but, again, it was not designed to force a party to try his case on affidavits with no opportunity to cross-examine witnesses.

As a general rule summary judgments are not appropriate in negligence cases. See Wright & Miller, Federal Practice and Procedure: Civil Sec. 2729. We particularly consider them inappropriate, as a general rule, in malpractice actions against professionals, recognizing, as we must, the natural tendency of their colleagues to be good Samaritans and come to their rescue in a time of distress. We, of course, do not restrict this view to men of medicine.

Petitioner very forcefully urges upon us the proposition that these affidavits are expert and opinion evidence and, therefore, may not be used to support a motion for summary judgment. Specifically, she quotes Wright & Miller, Federal Practice and Procedure: Civil Sec. 2738 as follows:

Because opinion testimony always is subject to evaluation by the fact finder, it generally has been held not an appropriate basis for summary judgment. (Emphasis supplied). Wright & Miller, Civ. Sec. 2738 at 690-92.

Our research leads us to the conclusion that this is a correct statement of the general rule of law. However, the ensuing sentence, not quoted by petitioner, is of critical significance. It reads:

However, if the only issue is one of the kind on which expert testimony must be presented, and nothing is presented to challenge the affidavit of the expert, summary judgment may be proper. Wright & Miller, Civ. Sec. 2738 at 692-94.

We approve this as an exception to the general rule.

In 16 Am.Jur. Trials, p. 534, these matters are put in proper perspective thus-iy=

In negligence cases generally, lawyers usually decide against moving for summary judgment, unless a special defense bars the action, because the existence of negligence is a question of fact and lack of merit is difficult to establish by affidavit. In a malpractice case, however, the negligence of the defendant physician usually must be proved by expert testimony. If the defendant makes a showing, therefore, on a motion for summary judgment that the case has no merit, plaintiff must produce a competent opinion, by affidavit, supporting his claim of malpractice, and this is helpful to the defense. (Emphasis supplied)

We approve this as a correct general statement subject to the qualification that counter-proof is not restricted to affidavits.

Petitioner asserts that “since the Tennessee and Federal Rules of Civil Procedure, as they apply to motions for summary judgment, are identical, the federal authorities must be followed in Tennessee courts.” (Emphasis supplied).

It is correct that Rule 56, Tenn.R. Civ.P. and the federal rule bearing the same number are identical; however, counsel is laboring under a complete misapprehension as to the binding effect of decisions of the courts of the federal system upon this Court. The Supreme Courts of the respective states are bound only by decisions of the Supreme Court of the United States when that Court holds that a given course of conduct is unconstitutional under the federal constitution. The opinions of the other courts of the federal system are persuasive, but not controlling.

Petitioner indicates that we are bound by the holding of the Fifth Circuit in Elliott v. Massachusetts Mutual Life Insurance Company, 388 F.2d 362 (5th Cir. 1968) and cites it for the proposition “if opinion evidence is relevant, then the case is simply not one to be determined on a motion for summary judgment.” Without laboring the point, we disagree.

III.

It is the established law in Tennessee that malpractice actions involving issues of negligence and proximate cause require expert testimony, St. Martin v. Doty, 493 S.W.2d 95, 98 (Tenn.App.1972) unless the act of alleged malpractice lies within the common knowledge of a layman. Rural Educational Association v. Bush, 42 Tenn. App. 34, 298 S.W.2d 761 (1956). See also Phelps v. Vanderbilt University, 520 S.W.2d 353 (Tenn.App.1974).

In the instant case petitioner’s deceased husband died of “cardio-renal failure”, following “an exploratory operation” revealing “a mass in the pelvis, probably a ruptured Mechel’s Diverticulum”. These are not matters within the common knowledge of a layman. Expert testimony was required.

Thus the case falls within the exception to the general rule and the expert opinions of medical doctors, as contained in the affidavits, were sufficient to justify the trial judge in sustaining the motion for a summary judgment, in the absence of a showing to the contrary by petitioner.

Rule 56.05, Tenn.R.Civ.P., provides in part:

When a motion for a summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. (Emphasis supplied.)

In this case the only response made by petitioner was the affidavit of one of her attorneys, not shown to have any expertise in the field of medicine, based upon an asserted, but not demonstrated, experience in the specialty area of medical malpractice, to the effect that in his opinion “a ease of negligence can be made out”; that his “substantial medical research” convinced him the diagnosis was incorrect; and that “a jury will likely conclude the defendants were guilty of negligence.”

The affidavit of an attorney stands precisely on the same plane with all other affidavits. Accordingly, it must rest upon his personal knowledge in an area in which he is competent to testify. The affidavit of the attorney in this case was totally ineffectual as a response.

In summary we hold that, in those malpractice actions wherein expert medical testimony is required to establish negligence and proximate cause, affidavits by medical doctors which clearly and completely refute plaintiff’s contention afford a proper basis for dismissal of the action on summary judgment, in the absence of proper responsive proof by affidavit or otherwise. In those cases wherein the acts are complained of are within the ken of the common layman, the affidavit of medical experts may be considered along with all other proof, but are not conclusive.

Affirmed.

      . Petitioner raised the question of whether the appeal was to this Court or to the Court of Appeals. That issue is foreclosed by Allstate Insurance Company v. Hartford Accident and Indemnity Company, 483 S.W.2d 719 (Tenn.1972) wherein we held that where a motion for summary judgment is supported by “evidentiary matters, such as depositions, affidavits, or exhibits”, the appeal is to the Court of Appeals. We reiterate that holding. Nothing in Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974) modifies this holding, nor is there any legitimate confusion on this issue.