author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Reginald NICKENS and Rodney Nickens, Appellants.
    No. KCD 29802.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      Joe L. Moseley, Asst. Public Defender, Columbia, James G. Gregory, Montgomery City, for appellants.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Reginald Nickens and Rodney Nickens were convicted by a jury of robbery in the first degree and sentenced to imprisonment for ten years each. On this appeal the Nickens contend the court erred in refusing to declare a mistrial for failure of the State to comply with a discovery request and in admitting the testimony of one of the others involved in the robbery. Affirmed.

Reginald, Rodney and several others went to the home of George Ray near Fulton, Missouri, in April, 1977, after dark. In the Ray home at that time were Mr. and Mrs. Ray and Mr. and Mrs. Ralph Neal. Reginald alone first entered the Ray home and asked to buy “pot.” Mr. Ray obtained a “brick” of marijuana and placed it on the table together with additional marijuana. Reginald then went outside. After Reginald had made two or three trips outside, he returned with Rodney, David Young, Tony Smallwood and Gary Byrd. Young and Smallwood were carrying shotguns and the Rays and Neals were ordered to get on the floor. Mr. Ray and Mr. Neal’s wallets were taken, together with the marijuana on the table. Part of the invading group went through the house, apparently looking for more marijuana. Rodney later picked up a stereo system and one of the party took a .12 gauge shotgun from the Ray home. Reginald and Rodney were charged by information and the case was thereafter tried in Boone County on a change of venue. Counsel for Reginald and Rodney filed a request for discovery under Rule 25.32 in which the prosecutor was requested to give the names and addresses of persons the State intended to call as witnesses, together with their written and recorded statements and existing memoranda reporting and summarizing a part or all of their oral statements. In response, the State furnished the names and addresses of Ralph Neal, Martha Neal, George Ray, Janice Ray and Tony Smallwood, together with a copy of the statements given by each person. In the statements supplied to counsel for the Nickens, both the Rays and Neals stated many threats were made against them during the course of the robbery. During the trial the prosecutor asked George Ray what David Young was doing during a particular period of time. In response Mr. Ray stated, “Dave — he was waving his hands, waving the shotgun around, saying, ‘We ought to blow your heads off. You ain’t no good. You ain’t nothing but white honkies,’ he says, T done killed one chick in Columbia.’ ” Immediately following this answer, trial counsel approached the bench, and in a colloquy out of hearing of the jury, stated the statement quoted from Young was not given to him in discovery. The prosecutor replied that the statements furnished revealed numerous threats had been made, but counsel argued that the precise statement, apparently referring to a killing in Columbia, had not been furnished him. The court sustained the objection to the last comment of witness Ray. Thereafter, counsel moved for a mistrial which was denied.

On this appeal different counsel represents the Nickens and contends the statement quoted from Young injected the issue of other crimes without in any way connecting Young’s crime with the Nickens, and that the State failed to comply with the discovery request when it failed to inform counsel of the statement concerning the killing in Columbia. Rule 25.32(A)(1) requires the State, when requested, to disclose the names and last known addresses of persons whom the State intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements and existing memoranda reporting or summarizing part or all of their oral statements. The Nickens do not contend there were additional memoranda or other written or recorded statements made by witness Ray which were not disclosed to them. Rather, their argument is that the State must have known of the statement concerning the killing in Columbia and since the State presumably had such knowledge this information should have been given to their trial counsel, with failure to do so resulting in violation of the discovery rule in spirit if not in practice. The difficulty with this argument is the lack of a showing that the State failed to deliver any information to counsel required to be divulged by the rule. It is conceded that prior to trial, counsel was given a copy of George Ray’s statement which said numerous threats were made during the course of the robbery but did not quote the Young statement that he had killed a person in Columbia. Whether the prosecutor actually knew of this statement is not shown by the record; only the speculation of counsel on this appeal supports the averment of knowledge: In fact, counsel does not now contend the State actually concealed any information but simply states the prosecutor must have known of this statement and the spirit of the discovery rule required him to divulge it.

Absent a showing that the State withheld information required to be divulged there is no basis on which this court could convict the State of a violation of the discovery rules.

Furthermore, if trial counsel felt the State had not fully complied with discovery, he was required to request relief under Rule 25.45 before moving for a mistrial. State v. Tate, 543 S.W.2d 514, 518[5] (Mo.App.1976). Since counsel requested no relief short of a mistrial, under the circumstances it was not error for the court to refuse a mistrial.

Moreover, the court granted more relief than the Nickens were entitled to receive because the statement was not objectionable on the basis that it was evidence of the commission of other crimes. The exclusion as to other crimes does not apply when there is no evidence linking the accused with the other crime and the statement by Young did not link the Nickens with the killing in Columbia. Counsel now urges the absence of such a connection as the basis on which the mistrial should have been declared. State v. Jones, 523 S.W.2d 152, 155[5, 6] (Mo.App.1975) held the rule of exclusion does not apply absent evidence linking the accused with the other crime. Thus, the statement here was not objectionable on the ground that it showed the commission of other crimes.

The Nickens also contend the court erred when it allowed Gary Byrd to testify. They argue that since Byrd was a participant and the information charging the Nickens alleged they acted in concert “with others,” Byrd was therefore disqualified as a witness under § 546.280, RSMo 1969 and Rule 26.07. The rule that a co-indictee is incompetent to testify against another in-dictee “‘does not apply where they are charged in separate indictments or informa-tions.’ ” State v. Haynes, 510 S.W.2d 423, 424[3, 4] (Mo.1974). Under the rule stated in Haynes, disqualification as a co-indictee did not apply to Byrd because he was not charged in the same information with the Nickens. The fact that the information charging the Nickens alleged they acted in concert “with others” does not alter the plain requirement of the rule that the persons be charged in the same information or indictment. Thus, even if persons acting together commit a crime, if they are not charged in the same information or indictment, the disqualification does not apply.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WELBORN, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Allen C. HAWKINS, Appellant.
    No. 29807.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      Charles Gallipeau, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Steve Scott Clark, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   WELBORN, Special Judge.

Appeal from judgment of conviction and sentence of life imprisonment upon jury verdict finding Allen C. Hawkins guilty of murder in the second degree.

The issues on this appeal do not require an extensive recital of the facts. The victim of the homicide, Alvin Norton, dealt with Lawrence Goshon in purchasing narcotics. Goshon in turn dealt with appellant Hawkins. In October, 1975, money and narcotics were stolen from Goshon’s apartment in a robbery. About $1,600 which Goshon owed Hawkins was taken. Hawkins asked Goshon to get Norton to come to Goshon’s apartment. Goshon did so and when Norton got there he was “jumped” by five persons, including Hawkins. Heroin was injected into Norton and a wire wrapped around his neck. Hawkins pulled on the wire and Norton choked. Norton was placed in a closet. Later his body was removed and eventually discovered in a stairway of a nearby building. The medical examiner found that Norton’s death was caused by asphyxiation by ligature.

Goshon testified for the state at Hawkins’s trial. Hawkins, the sole witness for the defense, denied that he had participated in Norton’s death.

In this court, the issues relate to the giving of a “hammer” instruction and to an incident involving a juror.

Appellant’s trial began Monday, June 27, 1977. The jury was impaneled that day. The reception of testimony began the following day and continued through Thursday, June 30, 1977.

At 4:28 P.M., June 30, the jury retired to deliberate. Shortly before 8:25 P.M., the deputy in charge of the jury gave the court a written message from the foreman requesting the testimony of one of the state’s witnesses. The court advised counsel that he intended to advise the jury that he could not provide them with any testimony. He also stated that he intended to inquire as to how the jury stood numerically. At 8:25, the jury returned to the courtroom and the court advised them regarding the testimony requested. He then asked the foreman how the last vote of the jury stood, without reference to guilt or innocence. The foreman replied: “Seven to five.”

The court then asked the foreman whether he felt that it would be worthwhile to continue the deliberations. The foreman replied, “Well, frankly I don’t.” The court then inquired whether the foreman thought it would do any good to start fresh in the morning. The reply was negative.

A discussion out of the presence of the jury ensued and the state requested that the “hammer” instruction be given. Defense counsel objected strenuously but the court said that he felt compelled to give it.

At 8:45 P.M., the jury returned into open court and the instruction in the form of MAI-CR 1.10 was read to them. The jury retired. At 9:29 the court received an inquiry from the jury regarding the “difference between a 99-year sentence and life.” The court declined to answer the inquiry. At 9:38 P.M. the jury returned into open court and announced that they had reached a verdict. The verdict finding appellant guilty of murder in the second degree and fixing his punishment at life imprisonment was read.

In this court, appellant contends that giving the instruction was unduly coercive and improper under the circumstances of this case and coerced a compromise verdict. He argues that the fact that at least five jurors changed their minds within 45 minutes of the giving of the instruction shows that without doubt the verdict was the result of the coercion generated by the “hammer” instruction.

Appellant acknowledges the discretion entrusted to the trial court in determining whether such instruction should be given. State v. Jones, 545 S.W.2d 659, 666[5, 6] (Mo.App.1976); State v. Jenkins, 516 S.W.2d 522, 528[22, 23] (Mo.App.1974).

Appellant relies upon Federal cases in support of his claim for error in this regard. However, except for general rules to be found in them, they are not helpful. As United States v. Taylor, 513 F.2d 70 (5th Cir. 1975), points out, the question of the propriety of such an instruction must be answered by examination of the facts of each case. The only case cited for its factual connection with this case is United States v. Moore, 429 F.2d 1305 (9th Cir. 1970). In that case, after the so-called “Allen” charge had been given, the jury did rehear the testimony of the witnesses and then retired to reach a final verdict. Appellant contrasts that situation with the present case. However, United States v. Moore cannot be taken to require the procedure there followed in every case where an instruction such as this is given.

The answer to appellant’s complaint may be found in Missouri cases. The fact that the jury returns a verdict shortly after receiving the “hammer” instruction does not establish coercion. State v. Smith, 556 S.W.2d 484, 485[2] (Mo.App.1977) (1½ day trial, 3½ hours deliberation, 10-2, “hammer,” verdict 50 minutes later); State v. Smith, 431 S.W.2d 74, 86[31, 32] (Mo.1968) (length of trial not shown; one hour 40 minutes deliberation, “about 8 to 4”; “hammer,” verdict one hour 35 minutes later). The fact that the judge is told by a juror that he believes further deliberation would be useless does not preclude use of the instruction. State v. Letourneau, 515 S.W.2d 838, 844[8, 9] (Mo.App.1974). The court here was not advised how the 7 to 5 vote stood, so the rule in State v. Sanders, 552 S.W.2d 39 (Mo.App.1977), does not apply. See State v. Smith, 556 S.W.2d 484, 485[2] (Mo.App.1977).

There has been no demonstration that the giving of the “hammer” instruction was coercive in fact. The circumstances of this case do not demonstrate an abuse of discretion on the part of the trial court. This assignment of error is without merit.

Before the trial resumed on the third day, the bailiffs in charge of the jury reported to the court that at around 3:00 A.M. two persons reported to them that someone had entered the unlocked motel room in which the two jurors were sleeping and had stolen $33 from the trousers of one juror. The bailiffs reported that from conversation they had heard that morning, other jurors were aware of the occurrence.

Counsel for appellant moved for a mistrial, noting that on voir dire inquiry had been directed at prospective jurors concerning their having been victims of crime and that responses to such inquiry were considered in the selection of jurors. He stated that the occurrence of what he called a “robbery” of a juror and the knowledge of that fact among the other jurors would prevent their giving appellant a fair trial.

The court stated that the theft from the juror and the case on trial were in no way so closely related that there would be an analogy between the two drawn by the juror involved or other jurors. The court noted that the juror might as well conclude that since the state was responsible for his being in the motel as a juror, the juror’s anger, if any, could as well be directed at the state. The court concluded:

“THE COURT: I would, if I were convinced that there was something about this incident that’s taken place that would in any way affect the jurors’ ability to evaluate the evidence in this case, and make a determination of this defendant’s guilt or innocence.
“MR. GALLIPEAU (attorney for defendant): We have no way of knowing that, though, judge.
“THE COURT: I recognize that. We don’t know specifically. But I don’t think there’s anything about the incident that would indicate to me that the defendant would be prejudiced. The motion will be denied.”

In his motion for new trial on this point, appellant complained that there was “no opportunity allowed to conduct further voir dire” of the juror involved. However, no such request was voiced at the trial and in this court the complaint is that the trial court should have conducted such an examination sua sponte and that in the absence of such inquiry, his motion for mistrial should have been sustained. The absence of a request precludes any finding of error on the part of the trial court in failing to conduct a hearing on this matter. State v. Mullen, 528 S.W.2d 517, 521[2-5] (Mo.App.1975). Therefore, the only question presented is that of error in the failure to declare a mistrial.

Given the drastic nature of the remedy of a mistrial and the discretion accorded the trial court in passing upon the qualification and competency of jurors (State v. Allen, 485 S.W.2d 28 (Mo.1972)), there has been no demonstrated abuse of discretion in this case in the refusal of a mistrial. The court did not dismiss the question summarily but gave it careful consideration. He exercised his judgment and the ruling was not so unreasonable as to constitute an abuse of discretion. Appellant’s “* * * claim of bias and prejudice [on the part of the juror] remains a bare allegation which he did nothing to substantiate.” State v. Mullen, supra, 528 S.W.2d at 521.

Judgment affirmed.

All concur.


author: DIXON, Presiding Judge.

text:
    CITY OF LAKE LOTAWANA, Plaintiff-Respondent, v. Michael MEAGHER, Defendant-Appellant.
    No. KCD 29879.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      Milton B. Edmonson, Greenwood, for appellant.
    Carl L. Chinnery, David C. Stover, Chin-nery, Stover & Waldo, Lee’s Summit, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   DIXON, Presiding Judge.

Defendant appeals his conviction for a violation of the ordinances of the City of Lake Lotawana, after an unsuccessful de novo review of the conviction in the Circuit Court of Jackson County.

A single issue is dispositive of the appeal. The defendant’s contention is that the ordinances upon which his conviction rests are invalid. Because the ordinances in question are invalid as being in excess of the City’s power, the contention must be sustained.

Only certain salient facts are necessary to a determination of the issue. The defendant was convicted of a violation of the Water Traffic Code of the City of Lake Lotawana, which is a fourth class city. Within the city limits of the City is a body of water known as Lake Lotawana. The title to that body of water is vested in the Lake Lotawana Development Co., a private corporation. The use of the lake by residents is upon the basis of covenants contained in the deeds to their property. There is no right in the general public to utilize the lake for any purpose. The defendant filed a motion asserting that the ordinances in question were beyond the powers of the city; the motion was overruled in the trial court and again by the Circuit Court.

The thrust of defendant’s argument is simple. He asserts that under Article VI, Section 5, Mo.Const., the powers of a municipality of the fourth class are limited to those delegated by the legislature. The further argument is that no statute expressly provides authority to the city to regulate private waters within the city and, in fact, the only legislative enactment on the subject, Chapter 806 RSMo 1969, expressly excepts privately owned lakes from such regulation. The city counters by arguing that the ordinances are authorized under the general police power of the city embodied in § 79.450(7) RSMo Supp.1975.

It is a well-settled principle of local government law in Missouri that “[a] city has no inherent police power. Its authority to exercise such power within a particular field must come from a specific delegation by the state or in certain cases from the express or fairly implied grant of powers of its charter.” Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70, 73 (Mo. banc 1949).

Tietjens was relied upon and followed by the Supreme Court in Anderson v. City of Olivette, et al., 518 S.W.2d 34, 37-38 (Mo.1975). In Anderson, the court specifically rejected an argument that the general police power could supply authority for the regulation of an activity which the statutes authorizing regulation failed to specify.

Under this principle limiting the exercise of the police power of a city to subjects upon which the legislature has delegated authority, the provisions of Chapter 306 relating to the regulation of watercraft are pertinent. The relevant portions are as follows:

“306.010. Definitions. As used in this chapter the following terms are construed to have the following meanings, except in those instances where the context clearly indicates otherwise:
(7) ‘Waters of this state’, any waters within the territorial limits of this state that are navigable, except bodies of water owned by a person, corporation, association, partnership, municipality or other political subdivision, public water supply impoundments, and except drainage ditches constructed by a drainage district, but the term does include any privately owned body of water which has been leased to the state department of conservation.” (Emphasis added). RSMo Supp.1975.
“306.190. Applicability of regulations — local regulations
1. The provisions of this chapter, and of other applicable laws of this state shall govern the operation, equipment, numbering and all other matters relating thereto whenever any vessel shall be operated on the waters of this state, or when any activity regulated by this chapter shall take place thereon; but nothing in this chapter shall be construed to prevent the adoption of any ordinance or local law relating to operating and equipment of vessels the provisions of which are identical to the provisions of this chapter, amendments thereto or regulations issued thereunder; except that the ordinances or local laws shall be operative only so long as and to the extent that they continue to be identical to provisions of this chapter, amendments thereto or regulations issued thereunder.
2. Any city or subdivision of this state may adopt special rules and regulations with reference to the operation of vessels on any waters owned by the city or political subdivision.
3. The provisions of this chapter shall not apply to farm ponds not commercially operated for boating purposes.” RSMo 1969.

Section 306.010(7) RSMo Supp.1975, isolates the central problem in this case. Under the definition of “Waters of this state,” bodies of water owned by “a person, corporation, association, partnership, municipality or other political subdivision . . . .” are specifically excepted. The record in this case shows that the lake is owned by Lake Lotawana Development Company, a corporation. Thus, not only does the state statute not authorize regulation of private lakes by municipalities, it specifically excludes them by definition from the operation of the statute. That exclusion is strengthened by the language of Section 306.190 which, by its terms, allows ordinances or local laws “only so long as and to the extent that they continue to be identical to provisions of this chapter, amendments thereto or regulations issued thereunder.” When read with the definition in § 306.-010(7), it becomes obvious that the City of Lake Lotawana acted without statutory authority in enacting its Water Code.

The City relies on City of Springfield v. Mecum, 320 S.W.2d 742 (Mo.App.1959), where the court found that the ordinance in question, one limiting the horsepower of motorboats on Lake Springfield, was a valid exercise of police power authorized by a state statute. This holding was premised upon specific authority to regulate property owned by the city. The lake in question was, in fact, owned by the City of Springfield. That case has no application to the instant case.

The City also attempts to bring the ordinances in question within the principle of Nemours v. City of Clayton, 237 Mo.App. 497, 175 S.W.2d 60 (1943). In that case, the court held that the city could extend control over a private street pursuant to statutes authorizing control of city streets when the general public had been permitted to use the private street without restriction. The City asserts that since the citizens of the City each may use the lake pursuant to the covenants in their deeds, the lake has become a public lake. That limited use by the owners of the lots adjoining the lake does not make the lake public within the meaning of Section 306.010(7).

The respondent’s motion to dismiss taken with the case has been rendered moot by the filing of appellant’s amended brief filed pursuant to leave of court, and it is, therefore, overruled.

There being no specific statutory authority for the enactment of the ordinance under which the defendant was convicted, the ordinance must be declared invalid under the principle of Tietjens, supra. It follows that the conviction must be set aside, and the judgment of the circuit court is, therefore, reversed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Kenneth Perry GREATHOUSE, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29898.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Clifford A. Cohen, Public Defender, Kevin R. Locke, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   SHANGLER, Presiding Judge.

The defendant moved under Rule 27.26 to set aside a conviction for robbery and the ten year sentence imposed by judgment. The conviction was affirmed on direct appeal. State v. Greathouse, Mo.App., 519 S.W.2d 299. In that proceeding the defendant affected to raise the claim of ineffective assistance of counsel but we declined the review because the record allowed no informed basis for that determination but reserved the question for the more appropriate Rule 27.26 remedy. A post-conviction petition followed and was denied relief without appointment of counsel or hearing but conclusively ruled against the movant on the basis of the files and records of the case.

On this appeal the movant contends that the petition alleged questions of fact and issues of law so as to require appointment of counsel under Rule 27.26(h) and an evidentiary hearing under Rule 27.26(e). We conclude, however, that the bare pleading movant had “ineffective assistance of counsels” did not plead a cause of action under the rule. The elaborate findings of the trial court from the records of the criminal proceeding to refute that counsel had not performed effectively are superfluous. The petition was properly dismissed for failure to state a claim.

The effect of Fields v. State, 572 S.W.2d 477 (Mo. banc 1978) does not benefit this Rule 27.26 motion determined before that decision. Thus, movant had no access as a matter of right to counsel, nor the court any duty to appoint one for the indigent litigant, in the absence of a justiciable controversy raised by a pleading.

The movant asks that the “ineffective assistance of counsels” allegation be construed with our opinion in Greathouse, supra, to which the motion alludes, so that the full import of the claim for relief may be assessed. Were we so disposed, the uncertainty which prevented direct review of the question is in no wise dispelled. We know no more now about the factual basis for relief meant by the movant than we did then and can no better now, than then, define the complaint.

The judgment to deny the petition for Rule 27.26 relief is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Roger D. HINES, Appellant.
    No. KCD 30001.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      Harry D. Boul, Columbia, for appellant.
    James G. Gregory,- Montgomery City, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Roger Hines was convicted by a jury of common assault, § 559.220 RSMo 1969, and sentenced to pay a fine of $50. On this appeal he contends the court erred in (1) admitting photographs in evidence; (2) giving an instruction which assumed the commission of an assault; (3) failing to give an instruction on excusable use of force; and (4) failing to define the term assault in the instructions. Affirmed.

The sufficiency of the evidence is not challenged and the jury could reasonably have found that Roger Hines and Rose Ann Fowler enjoyed both an employer-employee and personal relationship. In April, 1974, Hines located Rose Ann at the apartment of one of her friends, entered the apartment and made a disparaging remark to Rose Ann about her hairdo. Thereafter the two of them went out to the parking lot to a Volkswagen which Rose Ann was driving but on which she was making monthly payments to Hines. Rose Ann testified that an argument ensued from Hines’ demand for the keys to the car and that Hines left but later returned. Rose Ann said she finally gave Hines the keys, but did so with a jab in the palm, and she later slapped him. Thereafter, while Rose Ann was sitting in the front seat of the car, kicking Hines in the chest, he pulled her from the car by her ankles. Rose Ann stated that during the encounter her arm was twisted and she, as well as Hines, was scratched.

After Rose Ann obtained a ride home, she went first to a friend’s home and called the police, then to the University of Missouri Medical Center where numerous bruises were noted. Later she went to the Columbia police station where pictures were taken of her arms, legs and back.

Hines did not testify or offer any evidence.

Hines first contends the court erred in admitting into evidence five Polaroid color pictures taken by a member of the Columbia Police Department. When these pictures were introduced, Hines’ counsel, who was different from counsel on this appeal, objected on the grounds there had not been any connection between the condition of Rose Ann shown in the pictures and the incident relating to Hines. On this appeal counsel tends to broaden the grounds upon which he contends the pictures are inadmissible, but this court is limited to the grounds stated to the trial court at the time the objection was made. State v. Love, 546 S.W.2d 441, 450-51[8] (Mo.App.1977). The pictures showed bruises on Rose Ann’s back, forearms, left upper arm and both legs at the knee and just below. It is stated in State v. Lee, 549 S.W.2d 934, 939 (Mo.App.1977) that demonstrative evidence need only establish any fact in issue or aid the jury in any way at arriving at a correct verdict. The court further stated it is sufficient if the demonstrative evidence corroborates other testimony because the State, having the burden of proof, should not be limited as to its quantum of proof.

Here Rose Ann testified to a struggle between herself and Hines in which she stated Hines twisted her arm and pulled her from the car by her ankles. Certainly, photographs showing bruises on Rose Ann’s arms, legs and back would be proof which would help the jury understand the physical appearance of Rose Ann after the struggle. Further, the pictures would corroborate Rose Ann’s testimony as to the arm twisting and the pulling from the ear which she attributed to Hines. The photographs were properly admitted.

Hines next contends the court erred in giving Instruction No. 6 which was MAI-CR 2.40, modified. The only question relates to the first paragraph, which read as follows:

One of the issues in this case is whether the assault on Rose Ann Fowler was a ‘justifiable assault.’ By ‘justifiable assault’ is meant the assaulting of another in lawful self defense.

Hines contends this instruction assumed the existence of the assault rather than leaving it to the jury to find whether or not the assault occurred. Although the MAI-CR instruction deals with homicide, as specified in the Notes on Use, it may be adapted for use in assault cases.

It must be noted at the outset the criticism leveled at this instruction was not contained in the motion for new trial and thus was not preserved for review. State v. Pittman, 569 S.W.2d 277, 279[1, 2] (Mo.App.1978). However, Hines requests this argument be considered under Rule 27.20(c), commonly referred to as the plain error rule. It is well settled that “ ‘instructional error is not “plain error” unless the trial court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice, * * *" State v. Johnson, 559 S.W.2d 756, 758[2, 3] (Mo.App.1977).

The situation here is very similar to that in State v. Gailes, 428 S.W.2d 555, 559[6, 7] (Mo.1968), where the court first observed that the instruction there involved, standing alone and without reference to the other instructions, would assume a fact in issue. The court explained that the instruction must be considered together with the verdict directing instruction, and when so considered the instruction did not impermissibly assume a fact in issue. Here the verdict directing instruction, in the form of MAI-CR 6.26, required the jury to find: first, that Hines assaulted Rose Ann by grabbing her ankles and pulling her from a motor vehicle; second, that Hines did this intentionally; and third, that such assault by Hines was not justified as submitted in Instruction No. 6. Thus, the jury was clearly instructed that (1) they had to find Hines intentionally grabbed Rose Ann’s ankles and pulled her from the car before they could find him guilty of assault, and (2) even then they could find him guilty only if they found his acts were not justified as submitted in Instruction No. 6. As held in Gailes, Instruction No. 6 would not have led a reasonably intelligent jury to conclude that the court was assuming an assault had occurred to the exclusion of a finding by the jury that an assault was in fact committed by Hines. As also observed in Gailes, all the instructions constitute a single charge to the jury and must be considered as a whole. This court concludes, as did the court in Gailes, that Hines was not prejudiced by the first paragraph of Instruction No. 6 because the jury would not have understood that it could find Hines guilty of an assault without first finding the facts submitted by the verdict director, Instruction No. 5. Under the applicable standard of review no manifest injustice appears.

Hines next contends the court should have given on its own motion an instruction in the form of MAI-CR 2.28, submitting the issue of the use of excusable force by Hines. This instruction, also designed for use in homicide cases, would have allowed the jury to acquit if it found the assault was the result of accident or misfortune. The first paragraph of Notes on Use following MAI-CR 2.28 states this instruction must be given, whether requested or not, if there is evidence to support it. Hines fails to demonstrate what evidence in this record would justify the giving of this instruction and this court has been unable to discern any such evidence on its own. The only evidence as to the assault came from Rose Ann and under her testimony she jabbed Hines in the palm with the car keys and slapped his face; he, in turn twisted her arm and pulled her from the car by her ankles. There is absolutely nothing in this evidence to indicate Hines acted as a result of an accident. Absent evidence to support the giving of such an instruction, the failure to give it was correct.

Hines finally contends the court should have instructed the jury as to the definition of the term “assault” in connection with its use in Instruction No. 5. This same contention was rejected in State v. Hammond, 571 S.W.2d 114, 117[4] (Mo. banc 1978) when the court held the use of the term assault in connection with a description of the specific act constituting the assault adequately submitted the charge without defining the term “assault.”

The judgment is affirmed.

All concur.

      . Any person who shall assault or beat or wound another, under such circumstances as not to constitute any other offense herein defined, shall upon conviction, be punished by a fine not exceeding one hundred dollars, or imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.


author: PRITCHARD, Judge.

text:
    In re the MARRIAGE OF Roxanne L. KUHN and Richard E. Kuhn. Roxanne L. KUHN, Respondent, v. Richard E. KUHN, Appellant.
    No. WD 30027.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Grace S. Day, St. Joseph, for appellant.
    Harold Miller, Day Miller, Maysville, for respondent; Robison & Miller, Maysville, of counsel.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

The issue is the propriety of the trial court’s action, in the dissolution proceedings below, in granting custody of an eleven year old female child to appellant, and at the same time granting custody of a four year old son to respondent. Appellant contends that the court erred in separating the children as not being in their best interests; that the best interest and welfare of the son was not considered; that the court erred in not awarding him the custody of the son when it found he was a suitable parent and awarding him custody of the daughter; and that the award of custody of the son to respondent was not supported by evidence and was an abuse of discretion.

The parties were married March 29,1969. Respondent’s daughter, her natural child, was then adopted by appellant. The son was born of the marriage April 16, 1973, and the parties separated June 7, 1977. The son was five years old at the time of trial, January 11, 1978.

The evidence here tends to support the finding of the trial court that both parties are fit parents. At the time of the hearing, which is the critical time, respondent had employment at the St. Joseph State Hospital, working from 8:00 a. m. to 4:30 p. m., weekdays. Her mother took care of the minor son two days a week, and transported him to the farm home of a Mrs. Garrison who cared for him three days a week. The son was to be enrolled in pre-school where she would drop him off before she went to work and would pick him up thereafter. Respondent had rented a trailer in King City, Missouri, but had been staying with her parents in Weatherby, Missouri. Respondent’s take-home pay was $501.96 per month, and the decree awarded her $75.00 per month for the son’s support. She confessed a partiality toward the son, and that there was existent friction between her and the daughter. She had no objection to the daughter living with respondent, and she testified that the two children got along very well with each other, that the daughter played with him and had taken care of him — their relationship had always been very good.

Appellant had rented a three bedroom modular home in King City, the photographs of which show it to be adequate for the home of the children. He was employed in St. Joseph as a mechanic with take-home pay of about $160.00 per week. He left for work about 7:15 a. m., taking the daughter by the Tunks from which she rode the school bus, returning to the Tunks after school. He picked her up about 5:30 p. m., and spent evenings, Saturdays and Sundays with her. Appellant had made arrangements with the Tunks to care for both of the children should he obtain custody of them. The daughter had been a good student and presents no disciplinary problems. In chambers, she expressed the desire to live with appellant.

Appellant cites and relies upon J_ v. E — , 417 S.W.2d 199 (Mo.App.1967), to support his contention that the court erred in separating the children. That case did note, 417 S.W.2d 203[3-9], that “when there are no exceptional circumstances, the children of divorced parents should not be separated by splitting or dividing them between the parents * * That case did go on, however, to say that it is clearly within the discretionary power of the trial court to make that division if it is in the best interests of the child to do so.

The minor son here is of tender years as compared to the daughter, who was clearly mature enough to make a choice as to with which parent she preferred to live. The parties, being both employed, are practically equal in their respective abilities to be with and see to the care of the children. There is nothing in the record which convinces this court that the judgment as to custody should be disturbed. It should be noted, however, that respondent has not abided by the visitation rights accorded to both parties. She must do so or be subject to the trial court’s sanctions for disobedience of its order.

The judgment is supported by substantial evidence. It does not erroneously declare or apply the law. There is no firm belief that it is wrong. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    In re the ADOPTION OF S.
    No. KCD 30089.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      Robert G. Neds, Roger D. Odneal, Ray-town, for appellant.
    Thomas M. Sullivan, Eileen S. Sullivan, Kansas City, for respondents.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   WASSERSTROM, Judge.

This is an adoption case in which the natural father refused to consent to the adoption. The principal question for decision is whether the father willfully abandoned or willfully neglected the child so that any necessity for his consent has been eliminated under the provisions of Section 453.040(4), RSMol969.

The facts are for the most part undisputed. In the few instances of conflict, the facts will be taken as found by the trial court, pursuant to the deference prescribed by Rule 73.01-3.

The child S was born August 20, 1968. His parents, A (the mother) and J (the father) were divorced March 7, 1969, when S was less than one year old. The divorce decree granted custody to A and required J to pay child support of $20 a week.

At the time of the divorce A was 19 or 20 years old. Beginning in May, 1969, she left S with Mr. and Mrs. B to babysit while she was at work. The arrangements were that A was to pay $10 a week, furnish a daily lunch and milk and provide all laundry requirements. A fell badly behind in the agreed payments, and the Bs found it necessary to also supply the milk, lunches and do the laundry. A gradually left S with the Bs for more and more time, and S came under practically the sole care and supervision of the Bs starting in 1970. In February, 1971, A declared, “I don’t want no more to do with him” and left the child with the Bs on a permanent basis. Since that time the Bs have heard from A only once or twice.

At the time of the divorce J also was 19 or 20 years of age. During all the time that A undertook the responsibility for the child, J supplied a total of only $320, the last payment of which was in August, 1969. At least part of these payments came through the intervention of the prosecutor’s office to whom A had turned for help in collecting the child support decreed in the divorce proceedings. After the Bs took over custody, Mrs. B suggested to J on various occasions what was needed by S, but J would decline to assist in those needs on the excuse that he had a car payment or some other obligation of his own to meet. J did furnish a few items of clothing in 1972, and during the course of 1972 and 1973 he supplied to or for the benefit of S sums aggregating $135.50. During all of thé time that the Bs had custody, J made only relatively few visits, the last of which occurred in August, 1973. At no time did J ever request custody of S.

The Bs entered S in kindergarten in the fall of 1973. The school authorities advised them that S would be restricted in activities unless the Bs put themselves into a position to give authority for S to participate in such activities as school athletics. At that time, the Bs exhibited to the school authorities a letter which had been signed by A on February 27, 1971, identified in evidence as Exhibit 3, in which A stated that she did “hereby grant the care of the above mentioned child to [Mrs. B] to care for in the event of emergency, i. e. to be cared for by a Doctor or Hospital at their [sic] own discretion, to take care of him in all matters concerning his welfare.” Notwithstanding that letter, the school authorities took the position that the Bs could not give the necessary permission short of becoming adoptive parents. Shortly thereafter, on October 12, 1973, the Bs did file their original petition for adoption in this case.

After the filing of that petition, J retained an attorney, Mr. Lee Shapiro, who resisted the adoption proceeding and also filed a motion in the divorce action to modify the decree pertaining to custody. Shapiro proceeded with the latter motion to the point of calling it up for hearing, but J refused to go along with the motion on the ground that he thought that it was for the best interest of S to remain with the Bs and he therefore did not want to seek any change in the existing custody. Also J testified, “I couldn’t do it * * * He had been in the home too long.” Thereupon Mr. Shapiro withdrew from representation of J on the grounds that there was a failure of a meeting of the minds between lawyer and client. Thereafter followed a succession of attorneys on behalf of J, the last of whom was present counsel who entered the case only shortly before trial.

The Bs filed a second amended petition on September 30, 1977, in which they alleged that J had willfully abandoned and willfully neglected S for one year immediately before the date of the original petition and also for one year immediately preceding the second amended petition. A filed consent to the adoption, but J declined to consent and vigorously contested the adoption. At the conclusion of the trial, the trial court made detailed findings of fact and conclusions of law adjudging that J had willfully abandoned and willfully neglected S both during the period October 12, 1972, to October 12, 1973, and also during the period September 30,1976, to September 30, 1977. On that basis, the trial court granted temporary custody to the Bs and made that determination final for purpose of appeal.

I.

Necessity for Consent by J

J’s first point on appeal is that he had contributed to the support of S during the one year prior to the original petition, so that his consent to the adoption was not obviated under Sec. 453.040(4). A threshold question is suggested as to whether the statutory year mentioned dates back from the filing of the original petition (making the year October 12, 1972, to October 12, 1973) or from the date of the second amended petition (which would make the statutory year September 30, 1976, to September 30, 1977). If the latter, there would be much less difficulty in finding abandonment and neglect, because during that year J paid no money and made no visits whatsoever. However, it is unnecessary to decide which span of time is the controlling statutory one year, because even assuming most favorably to J, that October 12, 1972, to October 12, 1973, constitutes the statutory period, that makes no difference in result. This conclusion flows from the legal principle that in determining whether there has been abandonment or neglect, conduct of the parent both before and after the one year statutory period must be considered. Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356 (Mo. banc 1978); D.A.Z. v. M.E.T., 575 S.W.2d 243 (Mo.App.1978); Matter of Adoption of Fuller, 544 S.W.2d 345 (Mo.App.1976); D_ G_ K_ v. D_ G_ K_, 545 S.W.2d 81 (Mo.App.1976); In re Adoption of K., 417 S.W.2d 702 (Mo.App.1967).

A. Willful Abandonment

In analyzing the issue of abandonment, a remarkable feature of this case is the frank admission of J that he does not want custody of the child and that the best interests of S call for him to remain in the custody of the Bs. This alone would serve to bring this case within one judicial definition of willful abandonment, which is “ ‘conduct of the parents indicating a settled intention to leave the child permanently in the care of others.’ ” Application of Graham, 239 Mo. App. 1036, 199 S.W.2d 68, 74 (1947). This abdication of care and custody by J also shows an “intent or mental attitude to forsake the status of a parent.” Adoption of R.A.B. v. R.A.B., supra. And also it would fall within the definition of abandonment as the “intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection.” D_ G_ K_ v. D_G_K_, supra.

There is another frequently used definition of abandonment as meaning “ ‘a settled purpose to forego all parental duties and relinquish all parental claims.’ ” See for example, In Re E.C.N., 517 S.W.2d 709, 715 (Mo.App.1974). However, that definition should not be understood as permitting a parent to insist upon prying apart the two elements of “claims” and “duties.” These two aspects of the parental-child relationship are opposite sides of the same coin. They should be and are inseparable. A parent should not be able to treat a child as a plaything to pick up for sporadic enjoyment at his whim, while at the same time disclaiming the burdens, sacrifices, and oft times pains of nurturing and caring for the child. That in essence represents what J argues for here. In view of J’s plain and open disavowal of duties and any responsibility for the bringing up of S, he has brought himself within all the commonly employed definitions of abandonment. In re Adoption of K., supra, at p. 711; Matter of Adoption of Fuller, supra, at p. 350.

B. Willful Neglect

Whatever possible doubt there might be about abandonment, there can be none at all about J’s willful neglect. Willful neglect has been defined as neglect that is “ ‘intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego . . . parental duties over the period of time which the statute prescribes.’ ” D_G_K_v. D- G- K-, supra. J’s conduct clearly falls within that concept. During the approximately two year period of custody by A, J paid only $320 and this despite a court order calling for $20 per week and efforts by A to enforce that order through the prosecutor’s office. During the next period of time when S was in the custody of the Bs, J did even less. During this latter period of almost seven years, he came up only with a few items of clothing and the meager sum of $135.50. This failure of payment occurred despite the fact (found by the trial court and not challenged by J) that “Respondent [J], had the financial ability to provide proper care and maintenance for the minor child, [S], during both statutory one-year periods in question.”

In addition to the paltriness of money support, J made very few visits or efforts to see S. All in all, his conduct is kin to the “very minimal” contact and support which was held insufficient in R.F.N. v. G.R., 546 S.W.2d 510 (Mo.App.1976). Also close in point is In re Adoption of K., supra, where sporadic visits and Christmas and birthday presents were considered insufficient, the court remarking that the parent “never seriously considered assuming the burdens and obligations of parenthood.” See also D.A.Z. v. M.E.T., supra, where it was held that the furnishing of minor gifts was not sufficient to negate neglect and abandonment and where the court remarked that the father’s “efforts to support his child or maintain contact with her were sporadic and non-existent for long periods.”

The fact that this situation came to a head at the time when S entered school holds special significance. That marked a climactic point in the life and development of S, when he had a very special need for parental guidance and psychological support. At this critical juncture, J was not around to perform the vital parental function and this role and responsibility fell upon the Bs. In this respect, the present case bears strong analogy to Matter of Adoption of Fuller, supra, where custody rested in adoptive parents at the time the children there in question entered school. In discussing that situation, the court stated:

“The responsibility for the rearing of these two children, ages 6 and 5 in 1969, fell squarely and completely upon respondents. At the time these children started school, a time of emotional adjustment for many youngsters, it was the respondents and not appellant who provided the understanding and security so often necessary for a healthy adjustment in school.”

All the cases cited by J, where the parent was found not guilty of abandonment or neglect, have been read and considered. So also have the recent decisions in Adoption of R.A.B. v. R.A.B., supra, and In re Adoption of LeGrande, 581 S.W.2d 414 (Mo.App.1979). All those cases are factually distinguishable. An individual discussion of each case would unduly and unprofitably extend this opinion.

The determination of the trial court with respect to abandonment and neglect on the part of J did not incorrectly declare or apply any legal principle, it is supported by substantial evidence, and it is not against the weight of the evidence. Accordingly that determination is entitled to affirmance under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Adoption of R.A.B. v. R.A.B., supra; R.F.N. v. G.R., supra.

II.

Admission of Exhibit 3

J’s only other point on appeal is that Exhibit 3 was improperly admitted into evidence. Without in any way reflecting disagreement with the ruling of the trial court, it is unnecessary to consider J’s objection on the merits. In a court tried case like this, “it is practically impossible to predicate reversible error on the erroneous admission of evidence. The party advancing the contention must demonstrate the absence of sufficient competent evidence to support the trial court’s decree.” Broyles v. Broyles, 555 S.W.2d 696 (Mo.App.1977); Gould v. Starr, 558 S.W.2d 755 (Mo.App. 1977). J has not carried that burden.

Affirmed.

All concur.

      . J also testified in the trial court that Shapiro advised him “that the case was a problem and that if I wanted that child to kidnap him, just to kidnap the child.” This portion of J’s testimony is less credible than the interpretation of the occasion for and nature of the disagreement between him and Mr. Shapiro, as stated above.

      . The latter special ruling serves to distinguish the present case from Marsch v. Williams, 575 S.W.2d 897 (Mo.App.1978).

      . Sec. 453.040(4) provides: “The consent of the adoption of a child is not required of (4) A parent who has for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance.”

      .Witness J’s testimony as follows: “Q. Now, do you feel it is in [S’s] best interest that he remain in the custody of Mr. and Mrs. [B]? A. Yes, I do. Q. Do you feel it is in his best interest that you not be able to see [S]? A. No. Q. Explain that to the judge. A. Well, I’m his father. Q. You feel that Mr. and Mrs. [B] have done an acceptable job of raising [S]? A. I think they have. Q. You have no particular objection if they keep [S], is that right? A. No. Q. But you do want, if I understand, to have visitation rights with him? A. Yes, I do.”
      To be noted is that nowhere in his testimony did J indicate any feeling of obligation or even inclination to offer any financial or other assistance, and his past conduct demonstrates his negative attitude in that regard.


author: SOMERVILLE, Presiding Judge.

text:
    Michael JOHNSON, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30118.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      Louis Wagner, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   SOMERVILLE, Presiding Judge.

An indictment returned by a Jackson County grand jury charging Michael Johnson (movant) with the crime of murder in the second degree (Section 559.020, RSMo 1969) resulted in a plea of guilty and imposition of a twenty-five year sentence. This appeal lies from a judgment and order of the Circuit Court of Jackson County, Missouri. following an evidentiary hearing denying movant’s Rule 27.26 motion to vacate said sentence.

Movant raises and argues two points on appeal. Quoted verbatim, they are: (1) “The Court erred in finding that the defendant had effective and competent assistance of counsel.”; and (2) “The Court erred in finding that defendant’s plea of guilty was voluntary.” Viewed individually, neither point complies with Rule 84.04(d) because each fails to specify “wherein and why” the various rulings mentioned “are claimed to be erroneous”. After studying the arguments marshaled by movant in support of both points this court concludes that movant seeks to raise a single point on appeal, namely, that movant’s plea of guilty was not made knowingly and voluntarily because of the inadequacy and ineffectiveness of counsel in certain respects hereinafter amplified. This conclusion is sound so long as one subscribes to the principle that effectiveness of counsel pales into insignificance once a guilty plea is entered, as here, except to the extent it bears on whether the guilty plea was voluntarily and knowingly made. Hulett v. State, 473 S.W.2d 410, 411 (Mo.1971); Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971); Coleman v. State, 542 S.W.M 53, 54 (Mo.App.1976); and Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973). This court, ex gratia, will address the instant appeal in the context just mentioned.

When movant entered his plea of guilty to the underlying homicide charge in question a second and wholly unrelated second degree murder charge involving the homicidal death of a local citizen of some prominence, which had received considerable media coverage, was concurrently pending against movant in the Circuit Court of Jackson County, Missouri. On the morning of trial movant was advised by counsel that the state would “dismiss” this unrelated homicide case pending against him and recommend a twenty-five year sentence in the underlying homicide case in exchange for a plea of guilty. Counsel recommended that movant favorably consider the proposed disposition of both homicide cases and movant did so as evidenced by his guilty plea.

Movant argumentatively highlights three incidents as exemplars of counsel’s lack of proper representation — counsel’s failure to interview in person rather than by telephone a witness to the homicide which mov-ant pled guilty to whose testimony would support movant’s contention that he had acted in self-defense, counsel’s failure to properly assess the weakness of the state’s case in an unrelated homicide case which was simultaneously pending against movant at the time he entered his plea of guilty in the underlying homicide case, and summarily, as a consequence thereof counsel improvidently influenced movant into pleading guilty in the underlying homicide case in exchange for a sentence of twenty-five years and “dismissal” of the unrelated homicide ease concurrently pending against him.

The first exemplar of ineffective assistance of counsel relied upon by movant, and its inhibitory effect upon movant’s ability to act knowingly and voluntarily at the time he entered his plea of guilty, strains credulity. At the time movant entered his plea of guilty both he and his counsel were aware that movant’s version of the altercation with the victim of the homicide which occurred at the Magic Disco during the early morning hours of December 19, 1976, raised a viable issue of self-defense and that movant’s version would be confirmed by a female acquaintance who was present at the scene. Although defense counsel had not interviewed in person the female acquaintance who would confirm movant’s theory of self-defense, he had discussed her testimony over the telephone several times with her, and had scheduled numerous appointments at his office with her all of which she failed to keep. Not to be lightly ignored is the fact that movant’s counsel also had to reckon with the sobering reality that at the time movant entered his plea of guilty the state had two disinterested eyewitnesses whose testimony, as memorialized in their depositions taken by movant’s counsel, would negate movant’s claim of self-defense. Movant nevertheless sought to imply by his testimony at his Rule 27.26 motion evidentiary hearing that no valid basis texisted for counsel to differentiate between the projected believability of the testimony of the state’s two disinterested eyewitnesses vis-a-vis the testimony of movant’s female acquaintance. After balancing all of the testimony adduced at the guilty plea proceeding the sentencing court could, and obviously did, conclude that a pragmatic basis existed for movant’s counsel to entertain an honest conviction that the two disinterested eyewitnesses to the fatal altercation upon whom the state intended to rely possessed greater believability and jury impact than did movant or his female acquaintance and therefore the likelihood of a conviction outweighed the likelihood of an acquittal.

The second exemplar of ineffective assistance of counsel relied upon by movant, and its permeating effect upon counsel’s freedom of action at the time he entered his plea of guilty, likewise strains credulity. In the face of testimony by movant’s counsel at the guilty plea proceeding that his investigation disclosed that movant was positively identified by an eyewitness as the person who shot the victim in the unrelated homicide case in cold blood, movant at the Rule 27.26 evidentiary hearing introduced a letter from the prosecutor’s office addressed to the victim’s parents advising them that the case against movant involving their son was dismissed after movant pled guilty to the underlying homicide charge because the “evidence . . was not strong” and “if tried with the evidence presently available, the trial would result in an acquittal”. No explanation of this after-the-fact letter was forthcoming from the prosecutor’s office and it was reasonable for the trial court to have assumed that it was nothing more than a public relations effort on the part of the prosecutor’s office to placate the victim’s parents for having dismissed the homicide case involving the death of their son. Making such an assumption should in no. way be construed as casting any criticism whatsoever on the prosecutor’s office. Consideration of the families of victims is commendable and should neither be discouraged nor aspersively viewed. In view of the chronology of events, juxtaposition of the prosecutor’s after-the-fact letter and the testimony of movant’s counsel regarding the strength of the state’s case justified the court hearing movant’s Rule 27.26 motion in giving greater credence and weight to the testimony of movant’s counsel than to the after-the-fact letter, and said court obviously did so.

The third and final exemplar of ineffective assistance of counsel, which supposedly deprived movant as a practical matter of any freedom of choice with respect to his plea of guilty, is predicated upon the contention that movant’s counsel improvidently influenced movant into pleading guilty in the underlying homicide case by reason of counsel’s failure to properly assess the strength of movant’s defense in the underlying homicide case and the weakness of the state’s case in the unrelated homicide charge concurrently pending against mov-ant at the time he entered his guilty plea. It too strains credulity. The court conducting the evidentiary hearing held in connection with movant’s Rule 27.26 motion was confronted with the task of resolving the voluntariness of movant’s guilty plea in the face of conflicting evidence. Tangentially, in addition to the conflicts heretofore mentioned, movant testified that on the advice of counsel he lied when responding to questions entailed in the classic guilty plea litany, and counsel vehemently denied that he did so. Evidentiary conflicts would echo with interminability were it not for the abiding faith vested in the triers of fact to assess the credibility of opposing witnesses and the deference given to their judgment in doing so on appeal. Goodloe v. State, 486 S.W.2d 430, 432 (Mo.1972); and VanDyke v. State, 522 S.W.2d 101, 103 (Mo.App.1975). Continued subscription to and application of these principles on appeal warrant affirmance of the resultant findings of fact and conclusions of law reached by the trial court that movant’s guilty plea was knowingly and voluntarily made.

A far ranging overview of this particular Rule 27.26 proceeding, point by point and counterpoint by counterpoint, neither demonstrates nor suggests anything to cause this court to believe that the judgment rendered by the trial court was “clearly erroneous”. As the ultimate appellate function in any Rule 27.26 proceeding is to determine whether the judgment of the trial court was or was not “clearly erroneous”, Rule 27.26(j), and Shoemake v. State, 462 S.W.2d 772, 775 (Mo.banc 1971), the judgment entered by the trial court in the instant case, having been found not to be “clearly erroneous”, should be and is affirmed.

Judgment affirmed.

All concur.


text:
    Wayne FARMER, a/k/a William Farnsworth, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30119.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      Allan J. Fanning, Kansas City, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Marjorie Wholey Haines, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   DIXON, Presiding Judge.

Movant appeals the denial of his motion under Rule 27.26. The trial court disposed of the motion in a memorandum opinion on the basis of the files and records.

The movant on this appeal contends that the imposition of a 30-day sentence as a condition of probation constituted a sentence and deprived the court of further jurisdiction to sentence the defendant on revocation of probation. Movant also asserts error in a finding of a voluntary plea of guilty and attacks the indictment as being an insufficient allegation of the crime of obtaining property by means of a confidence game under § 561.450 RSMo 1969.

In 1976, the movant appeared and pled guilty to an indictment. The trial court, upon the entry of the plea, suspended imposition of sentence and placed the defendant on probation with two special conditions— first, that the defendant be confined to the detention facility of Kansas City, Missouri, for a period of thirty days, and second, that he make restitution of the sums obtained by his fraudulent scheme. Thereafter, the defendant came before the court on a revocation of probation hearing, and the court, having heard evidence, found that the mov-ant had violated his probation and imposed a sentence of five years in the Department of Corrections. The court expressly credited the defendant with thirty days credit for the incarceration imposed as a condition of the probation.

For the first two issues, the claim that the thirty-day incarceration imposed as a condition of probation constituted a sentence and the parallel claim that the trial court lost jurisdiction at the time of the imposition of that period of incarceration, the movant relies upon State ex rel. St. Louis County v. Stussie, 556 S.W.2d 186 (Mo. banc 1977).

The movant’s reliance upon Stussie is misplaced. Stussie held, at a date subsequent to the period of incarceration in this case, that a trial judge had no authority under the probation and parole statutes to impose a period of incarceration as a form of “shock” probation. It is important in analyzing Stussie to recognize the nature of the actions before the Supreme Court when it was decided. Stussie was a prohibition action brought by officials of St. Louis County against a judge of the circuit court of St. Louis County to prohibit the circuit judge from incarcerating a state prisoner in the St. Louis County jail as a condition of his probation under a state charge. The court held that the trial court was without jurisdiction to provide such a period of incarceration as a part of his probation and specifically prohibited the trial judge from enforcing that portion of his order of probation. There is no language in Stussie, nor any holding in the case, that the balance of the probation ordered in the underlying case in Stussie was invalid or of no effect.

There is nothing in Stussie to suggest that the imposition of an inappropriate condition of probation converts the condition of probation into a sentence or destroys the jurisdiction of the trial court with respect to the balance of its judgment concerning the underlying sentence. Stussie does not support the contentions of the movant.

The movant relies also on Ex parte Cornwell, 223 Mo. 259, 122 S.W. 666 (1909). In that case, the court sentenced the defendant to ninety days with a stay of execution. When it was determined that the defendant had violated the conditions of the stay, the sentence of ninety days was set aside and a fine of $200 imposed. The distinguishing characteristic between Cornwell and the present case is that in Cornwell, the entire judgment of the court was void because no power existed to sentence for any period, while in the instant case, only the invalid condition of probation is void.

Likewise, in Ex parte Thornberry, 300 Mo. 661, 254 S.W. 1087 (banc 1923), the court distinguished Cornwell and held that the sentence imposed in Thornberry was valid despite an invalid attempt to stay the execution of the sentence. The court concluded that when authorized acts are separable from unauthorized acts in a judgment, the judgment itself will not be void; only the invalid portions will be unenforceable. The same reasoning was followed in State v. Campbell, 307 S.W.2d 486 (Mo.1957), where the court imposed an improper provision that sentences should run concurrently in the face of a statutory direction to provide for consecutive sentences. The court in Campbell pointed out the ineffective provision in the judgment of conviction did not render the entire judgment void but simply invalidated the improper portion of the judgment which would be treated as sur-plusage and be disregarded.

The trial court in its memorandum on the 27.26 motion adequately refutes the third issue raised by movant, that an entry of a plea was involuntary because of the trial court’s rejection of the initial plea bargain offered by the State. The proceedings at the guilty plea show that there was a complete and full understanding between counsel, movant, and the court, of the reasons for the rejection of the proposed plea bargain of a thirty-day sentence. After the court indicated that it was rejecting the plea bargain proposed, the judge stated that he would accept a plea and suspend imposition of sentence upon the special conditions of thirty days incarceration and restitution. The judge made it clear that he was offering the alternative as a matter of mechanics and to insure the restitution portion of the plea bargain. The court then adjourned the plea hearing and gave the movant an opportunity to consult with his counsel concerning the court’s suggestion. Thereafter, the movant’s counsel, having inquired of the court with respect to the proposed judgment, appeared again before the court with his client. The movant then accepted the trial court’s proposal with respect to the judgment to be entered. The movant demonstrated his understanding of the proposal made by the court, as the following answers to questions clearly indicate:

“Mr. Farmer, you have now had a chance to talk to your attorney about what we just discussed?” Answer: “Yes, sir.”
“Does that make any difference in your thinking?” “No, sir.”
“You are perfectly willing to enter the plea of guilty understanding that is what is going to occur?” “Yes, sir.”

The movant also attacks the voluntary nature of the plea on the ground that there was an insufficient factual basis in the plea proceeding to support a plea of guilty. The point is unsupported by authority and needs no further notice, but in any event the plea proceedings unquestionably relate facts, acknowledged by the defendant, which constitute a sufficient factual basis to show his understanding of the nature of the crime with which he was charged, and the factual basis upon which it would have been proven.

The movant attacks the information as insufficient, asserting that it fails to allege that the defendant misrepresented a presently-existing fact; the movant asserts that the only promise alleged was a promise of a future act. That condition is adequately answered by the opinion in State v. Barnes, 517 S.W.2d 155, 162 (Mo.App.1974), which is remarkably similar in its facts with respect to the offense and the indictment in the instant case. The Barnes opinion points out that the language of the information in Barnes is not a model; the same can be said about the indictment in this case. However, after a plea and a sentence, only a fatal defect in the information would afford the defendant relief, as the trial court pointed out in its memorandum. State v. Collins, 519 S.W.2d 362 (Mo.App.1975).

The indictment contains all of the elements required under 561.450 RSMo 1969; it contained sufficient detail to apprise the defendant of the nature of the offense and to bar a subsequent prosecution for the same offense. State v. Byrne, 503 S.W.2d 693 (Mo. banc 1973); Kansas City v. Stamper, 528 S.W.2d 769 (Mo.App.1975). Applying this test and the ruling in Barnes, the information is sufficient.

The judgment of the trial court is affirmed.

All concur.


text:
    JEFFERSON LINES, INC., a Minnesota Corporation, Kansas City, Missouri, Greyhound Lines, Inc., Phoenix, Arizona, Continental Trailways, Inc., Dallas, Texas, American Buslines, Inc., Dallas, Texas, Midwest Buslines, Inc., North Little Rock, Ark., Missouri Transit Lines, Inc., Moberly, Missouri, Appellants, v. MISSOURI PUBLIC SERVICE COMMISSION, Jefferson City, Missouri, and James P. Mulvaney, Mrs. Leah McCartney, Hugh A. Sprague, and Stephen B. Jones, Commissioners of the Missouri Public Service Commission, Respondents.
    No. 30152.
    Missouri Court of Appeals, Western District. .
    April 30, 1979.

      Elvin S. Douglas, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for appellants.
    Paul W. Phillips, Arthur L. Conover, Mo. Public Service Commission, Jefferson City, for respondents.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Jefferson Lines, Inc. and five other bus lines filed a declaratory judgment suit in the Circuit Court of Jackson County, alleging a rule adopted by the Public Service Commission and published in 4 C.S.R. 240-110.060(1) and (1)(A) to be invalid and unenforceable as exceeding the statutory authority of the Commission. The court sustained a motion to dismiss because the proper venue for the action was Cole County under § 386.510, RSMo 1975 Supp.

On this appeal Jefferson and the other lines contend the action was properly brought in Jackson County under § 536.050, RSMo 1969. Affirmed.

The petition was filed in October, 1977, prior to the amendment of § 536.050, which at that time provided as follows:

The power of the courts of this state to render declaratory judgments shall extend to declaratory judgments respecting the validity of rules, or of threatened applications thereof, and such suits may be maintained against agencies whether or not the plaintiff has first requested the agency to pass upon the question presented. The venue of such suits against agencies shall, at the option of the plaintiff, be in the circuit court of Cole county, or in the county of the plaintiff’s residence, or if the plaintiff is a corporation, domestic or foreign, having a registered office or business office in this state, in the county of such registered office or business office. Nothing herein contained shall be construed as a limitation on the declaratory or other relief which the courts might grant in the absence of this section.

The petition for declaratory judgment alleged the Commission had adopted an order relating to the classification of common carriers by services performed in relation to school bus type equipment. It also alleged the Commission did not have the authority to adopt such a rule because the Commission was only authorized to create classifications with regard to types of carriers and not on the type of equipment to be utilized in performing a charter service. Apparently, the effect of the rule is to deny the bus lines the authority to use their regular equipment in the transportation of certain passengers and to require that only equipment designated as school bus equipment could be utilized.

The order dismissing the petition held that the exclusive procedure for reviewing the lawfulness of the order was provided in § 386.510, which specifies the venue as the county where the hearing was held or in which the Commission has its principal office. The court held the review sought by the declaratory judgment suit was not pursuant to such section and therefore, venue was not properly in Jackson County but in Cole County.

The material parts of § 386.510 to this case are:

Within thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the rendition of the decision on rehearing, the applicant may apply to the circuit court of the county where the hearing was held or in which the commission has its principal office for a writ of certiorari or review (herein referred to as a writ of review) for the purpose of having the reasonableness or lawfulness of the original order or decision or the order or decision on rehearing inquired into or determined. * * * No new or additional evidence may be introduced upon the hearing in the circuit court but the cause shall be heard by the court without the intervention of a jury on the evidence and exhibits introduced before the commission and certified to by it. * * * Upon the hearing the circuit court shall enter judgment either affirming or setting aside the order of the commission under review. * * * The court may, in its discretion, remand any cause which is reversed by it to the commission for further action. No court in this state, except the circuit courts to the extent herein specified and the supreme court or the court of appeals on appeal, shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission or to suspend or delay the executing or operation thereof, or to enjoin, restrain or interfere with the commission in the performance of its official duties.

Much the same issue in this case arose in Union Electric Company v. Clark, 511 S.W.2d 822 (Mo.1974). In Clark, Union Electric had filed a suit for declaratory judgment in St. Louis County, seeking to test the lawfulness of a general order adopted by the Commission relating to utilities paying promotional fees. The court first held that the order, challenged as being unlawful, was within the term “original order or decision” as used in § 386.510. It then held the challenge to the order contained in the petition for declaratory judgment was within the scope of review provided by § 386.510. The court noted the fact that the order was adopted by the Commission without a hearing did not make § 386.510 inapplicable because the circuit court could remand the cause to the Commission if deemed necessary for that reason.

Union Electric sought to justify its right to attack the order by declaratory judgment in St. Louis County under the provisions of Rule 100 which provides generally for administrative review. The court held the action could not be maintained under Rule 100 and concluded by stating:

We conclude that the Legislature has provided a special separate statutory procedure for the review of an “original order or decision” of the Commission; that General Rule 51 is within that category; and that the procedure provided for in § 386.510 is exclusive and jurisdictional. Therefore, the judgment of the circuit court dismissing the petition for review filed in the St. Louis Circuit Court pursuant to Rule 100 was correct.

Jefferson and the other lines seek to distinguish Clark on the grounds the court considered only whether the action was properly brought under Rule 100, but not whether such action would be proper under § 536.050. The argument continues that had the Legislature intended § 386.510 to be the exclusive procedure for review of Commission orders such as here and in Clark it could have readily repealed § 536.-050 as it did certain other sections in Chapter 536 in 1975. The argument if further made that § 386.510 is not applicable because § 386.490, RSMo 1969, requires all orders to be served by personal delivery or by mailing to any person affected, a hearing is required preliminary to the issuance of an order, and there is no evidence or exhibits before the Commission relating to the adoption of the order here in question as is contemplated by orders made appeala-ble under § 386.510. Most of these arguments were considered in Clark and rejected. Those not rejected in Clark were covered in American Hog Company v. County of Clinton, 495 S.W.2d 123 (Mo.App.1973) when this court held an action under § 536.050 was not available when a special statutory review procedure was not followed. This court quoted the general rule as follows:

“As a general rule where a statute provides a special form of remedy for a specific type of case, the statutory remedy must be followed, and under such circumstances a declaratory judgment will not be granted.” 495 S.W.2d 126[5, 6]

Since a declaratory judgment action under § 536.050 is not allowed when a special statutory form of review is provided, and since the order here in question is reviewable under the special statutory scheme contained in § 386.510, it necessarily follows that declaratory judgment is not an available action in this case to contest the lawfulness of an order adopted by the Commission.

It may be noted that in 4 C.S.R. 240-2.-180 the Commission in 1976 provided by rule a method for the attack on any of its own rules which would cover the deficiencies pointed out by Jefferson in this case. The Commission has provided that any person may file a petition with the Commission seeking the promulgation, amendment or repeal of rules adopted by the Commission. Under this rule, Jefferson and the other lines can file a petition with the Commission seeking the repeal of the rule under attack here. A record could be made and if the Commission ruled adversely to the petition, an appeal would lie under § 386.510.

For the reasons stated, a declaratory judgment action was not available in this case and thus the court properly dismissed the petition.

The judgment is affirmed.

All concur.

      . Under § 536.031(5), RSMo 1976 Supp., this court takes judicial notice of the rules printed in the code of state regulations.


author: CLARK, Judge.

text:
    STATE of Missouri, Respondent, v. Clifton TAYLOR, Appellant.
    No. KCD 30157.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      Joel Pelofsky, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   CLARK, Judge.

Defendant was convicted by a jury on two counts of sale of a controlled substance and sentenced to concurrent terms of ten years. Reversed and remanded.

Contact between police officers and defendant was by intervention of an informant who introduced the officers and vouched for them. Separate purchases of drugs were made from defendant, one of Phenmatrazine, a synthetic amphetamine, and the other of Biamphetamines. Evidence of the transactions was supplied by the undercover officers and the chemical nature of the compounds was established by expert testimony. Defendant offered no evidence.

Verdict directing instructions were given to the jury in the form of MAI-CR 14.10 as to each count, at variance only as to the identity of the controlled substances. Each contained the following paragraph:

“Second, that defendant was aware of the character of the drug and intentionally and knowingly sold it.”

After deliberating two hours and three minutes, the jury returned to the courtroom and announced a deadlock which, upon inquiry of the court, was reported to be eleven to one. Apparent difficulty with the term “character” employed in the verdict directing instructions was the focal point of inability to reach a verdict. As related to the court by the foreman, explanation of the meaning of the word was needed. The following colloquy then ensued:

“JUROR COLEMAN: Your honor, could we have the use of a dictionary?
“THE COURT: Unless both sides agree to it—
“MR. SCHAFFER [the assistant prosecuting attorney]: It’s acceptable to the State, your honor.
“MR. PELOFSKY [defense counsel]: Your honor, I’m sorry, but I can’t agree.
I think that the instructions have been given in the language of the law and it would be inappropriate, it seems to me, for us to allow definitions that may or may not be within the context of the law.
“THE COURT: Very well. Unless there is agreement by both sides, that is not permitted under our law. You are supposed to take the instructions themselves, and both the law and the evidence as you recall it.”

The jury thereupon retired upon instruction by the court to continue its effort to reach a verdict. Defendant moved for a mistrial on the ground of prejudice emanating from consideration by the court of the impermissible request for the dictionary and the resultant taint cast on defendant as the instrument obstructing the jury’s access to helpful information. The motion was overruled. The verdicts of guilty on both counts were returned by the jury after additional deliberation of five minutes.

The trial court is obligated to instruct the jury in writing and in prescribed form. Rule 26.02(6); Rules 20.01 and 20.02. The scheme of MAI instructions contemplates that ultimate issues in the case are adequately submitted by the pattern instructions which require neither clarification nor amplification. Houston v. Northup, 460 S.W.2d 572 (Mo. banc 1970). Words of common usage need not be defined and an attempted definition directed to the facts of a particular case would constitute comment on the evidence. State v. Goodman, 490 S.W.2d 86 (Mo.1973).

No definition of the word “character” was appropriate in response to the jury’s inquiry as none had been requested or submitted at the instruction conference and the cause was already under submission to the jury. No doubt may be entertained that the jury was not entitled to the use of the dictionary irrespective of concurrence of or opposition by counsel for the parties. Permitting the jury to search a dictionary and select at will definitive language in amplification of the court’s instructions would have been patently improper.

Defendant’s claim here, however, is not the error of expanding the instructions by collateral reference to a dictionary, but the unfavorable climate created when defendant was obligated, in the presence of the jury, to oppose their request for assistance in concluding their deliberations. As the situation for potential deviation from the MAI-CR instructions already given was generated by the action of the court, prejudicial error is not to be presumed, but must be ascertained. Houston v. Northup, supra.

While the report of the jury impasse at a vote of eleven to one did not disclose the verdict favored by the majority, the minority view was converted and a unanimous verdict was returned within five minutes after the request for the dictionary was rejected by defendant’s refusal to agree. The conclusion that the majority of the jurors had earlier favored conviction and that the single juror not of that mind was persuaded to alter his view is inescapable. So too is the inference that refusal of defendant’s counsel to cooperate in meeting the request for the dictionary was the ingredient which tipped the balance in favor of the state.

It is not necessary to demonstrate to a point of certainty that the error influenced the verdict, only a showing of reasonable probability of prejudice. Teaney v. City of St. Joseph, 548 S.W.2d 254 (Mo.App.1977). “If when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand [but] if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

Upon these precepts, it must be concluded that error prejudicial to the defendant occurred when the trial court entertained in open court the jury’s request for the dictionary and based the rejection of the request on defendant’s refusal to agree. The state contends, however, that the error was, in part, of defendant’s own making and that imposition of the drastic remedy of a mistrial is an exercise of discretion which is particularly within the province of the trial judge.

Considering first the response of defendant’s counsel when it appeared that the court contemplated furnishing the dictionary to the jury if the parties agreed, it is correct that defendant’s expression of opposition to the procedure, although a legally valid and appropriate objection, did operate to inform the jury as to which party was blocking the request. Consistent with the duty of trial counsel to call to the attention of the court by objection any trial error and thereby permit correction by instruction or other action, counsel here may well be faulted by not having made his objection to the court in a side bar conference. Upon appropriate request, the court alternatively could have informed the jury (1) that both the state and the defendant had agreed the dictionary could not be used, (2) that objection to use of the dictionary was a valid proposition brought to the attention of the court by the defendant, or (3) that the court had made its own inquiry and had concluded that the request could not be honored.

Assuming, however, arguendo, that the appropriate manner of presenting the objection was not employed by defendant and that defendant has therefore not preserved the question, or has imperfectly raised the issue, on the facts heretofore recited, this court must and does consider the issues under Rule 27.20(c) as plain error. In so doing, the manifest injustice of the precipitous resolution by the jury of its previous deadlock is sufficient to conclude that substantial rights of the defendant were affected adversely.

Under the particular circumstances of this case, deliberations by the jury being already in progress, the only relief sought by the defendant from the court was a mistrial. Indeed, after the exchange which occurred in open court as recited above, it would be fatuous to suggest that any other remedy were available. In the review of the trial court’s action, this court is bound to affirm the decision unless as a matter of law it is concluded that the error was prejudicial and so impressive that its effect was not removed by the action of the trial court. State v. Barnes, 535 S.W.2d 602 (Mo.App.1976). Declaration of a mistrial being in the discretion of the trial court, the case may be reversed only upon a finding that the trial court abused its discretion. State v. Ward, 457 S.W.2d 701 (Mo.1970).

No action was taken by the trial court to remove the onus on defendant created by the exercise of his legitimate right and the obligation of counsel to oppose use by the jury of the dictionary. The effect of the prejudice thereby created was peremptorily demonstrated by resolution of jury deliberations within five minutes. The error was prejudicial, it was not removed by any action of the trial court and a mistrial should have been ordered.

By reason of the conclusion reached as to Point II in defendant’s assignments of error, consideration of Points I, III, IV, V and VI is unnecessary. The constitutional issue presented in Point I may otherwise be resolved before retrial and the remaining points involve particular incidents of trial which may not again arise or may be remedied under further proceedings.

The judgment and sentence are reversed and the cause is remanded.

All concur.

      . Acquiescence by defendant to the invitation to agree to the jury’s request would, at most, amount to a relinquishment of a subsequent claim of error. State v. McQueen, 399 S.W.2d 3 (Mo.1966); State v. McQueen, 431 S.W.2d 445 (Mo.1968).


author: ROBERT R. WELBORN, Special Judge.

text:
    Oscar H. HOSFIEL, Jr., Appellant, v. John F. MEYSTRIK, Director, Division of Employment Security, and MBPXL, a Delaware Corporation, Respondents.
    No. 30166.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Jefferson G. Broady, Rock Port, for appellant.
    John F. Gillespie, Larry R. Ruhmann, Jefferson City, for respondents.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of dismissal of cause of action for judicial review of administrative ruling.

The petition filed by appellant, Oscar H. Hosfiel, Jr., alleged that he had formerly been employed by MBPXL; that on December 20, 1977, the defendants (John F. Meys-trik, Director, Division of Employment Security, and MBPXL) “entered the findings and decision of the deputy in the matter of the claim of Oscar A. Hosfiel, Jr., as against the plaintiff, in which the plaintiff was not advised that his appeal must be in writing whereas the plaintiff orally advised members of the Division of Employment Security of his desire to appeal and they ignored, forgot or otherwise did not allow his appeal.” The petition alleged that the finding of the referee was erroneous and the prayer was that the record of the proceedings in the cause be certified to the circuit court for review.

The Division of Employment Security moved to dismiss the petition for failure to exhaust administrative remedies. MBPXL moved to dismiss on the grounds that the petition for review had not been filed within 30 days after the agency’s decision (Rule 100.04). The court sustained the motions to dismiss and ordered the cause dismissed.

On this appeal, appellant contends that the trial court erred in sustaining the motions to dismiss because the petition stated a cause of action for judicial review based upon unreasonable delay on the part of the agency in deciding a contested case. Rule 100.03 provides, in part: “Unreasonable delay on the part of any agency in deciding any contested case shall be grounds for an order of the court either compelling action by the agency or removing the case to the court for decision.” No authority otherwise is relied upon here. The only supporting argument is the assertion: “ * * * [Tjhree months is an unreasonable delay by the agency for a person out of work.”

Section 288.070, RSMo Cum.Supp.1975, provides for appeals from the determination of a deputy of the Division of Employment Security on a claim for benefits.

Section 288.070 4. provides, in part:

“Unless the claimant or an interested party within ten calendar days after being notified by the deputy of his determination files an appeal from such determination, it shall be final.”

The petition here in effect acknowledges that no notice of appeal was filed. It alleges merely that appellant orally advised members of the Division of Employment Security of his desire to appeal. This is not an allegation showing compliance with the statute. See Murphy v. Burlington Overall Co., 225 Mo.App. 866, 34 S.W.2d 1035, 1037[1, 2] (1931), otherwise overruled in Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852 (1943).

No notice of appeal having been filed, there was no pending matter before the Division at the time that the petition in this case was filed. There being no pending contested case before the Division, there would be no occasion for application of the provision of Rule 100.03 regarding delay in decision by the administrative agency.

Thus, although it could not be deduced from the reading of the petition in this case that appellant was relying upon Rule 100.03 regarding delay in action, in any event, the petition states no cause for relief under that provision. That conclusion may be reached without getting to the respondent Division’s contention that 100.03 does not apply to decisions of the Division because Chapter 288 provides a complete scheme for review of decisions of the Division of Employment Security. See State ex rel. Ballard v. Luten, 555 S.W.2d 855, 858[3] (Mo.App.1977).

Judgment affirmed.

All concur.