author: WASSERSTROM, Presiding Judge.

text:
    Darrell Keith ARNEL, By and Through His Next Friend, Delbert Henry Luadzers, Respondent, v. Kenneth Joseph ROETTGEN, Appellant.
    No. KCD 27168.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      Tweedie Fisher, Jefferson City, for appellant.
    Thomas D. Graham, Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

This is a suit for personal injuries in which the jury returned a verdict for defendant. The trial court sustained plaintiff’s motion for a new trial, stating as grounds therefor error in the submission of Instruction No. 2. Defendant appeals, seeking a reinstatement of the jury verdict.

At the close of the evidence, plaintiff submitted and the court gave Instruction No. 3 which was a verdict director and Instruction No. 2 on the burden of proof. Defendant submitted and the court gave Instruction No. 5 which directed a verdict for the defendant if the jury found plaintiff guilty of contributory negligence. Instruction No. 2, being the one now in question, was as follows:

“In these instructions you are told that your verdict depends on whether or not you believe certain propositions submitted to you. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. The burden is upon plaintiff to cause you to believe the propositions necessary to support his claim against defendant. If the evidence in the case does not cause you to believe a particular proposition submitted or if you are unable to form a belief as to any such proposition, then you cannot return a verdict requiring belief of that proposition.”

After the jury returned its verdict for the defendant, plaintiff filed his motion for new trial in which assignment No. 1 was as follows:

“Because the Court erred in giving Instruction No. 2, being M.A.I. 3.01, in that it failed to include the applicable words ‘The burden is upon the defendant to cause you to believe the propositions necessary to support his defense that plaintiff was contributorily negligent,’ placing the burden of proof upon the defendant where an affirmative defense was asserted and the defendant relied upon the affirmative defense of contributory negligence.
“The above constitutes clear and reversible error in that it placed the entire burden of proof upon the plaintiff, when the burden of proof as to contributory negligence should have been upon the defendant.”

After consideration of the motion, the court set aside the verdict and granted a new trial, giving as its reason that “[tjhis Court has concluded that it erred in giving to the Jury Instruction NO. 2, in the respects set out in Paragraph 1 of Plaintiff’s Motion for a New Trial.”

Defendant’s argument for a reversal can be encapsulated by the following paragraph from its brief:

“It is, therefore, not the court that erred in giving or submitting Instruction No. 2, it is the plaintiff that erred. Such error was invited by plaintiff. In effect, plaintiff seems to say that the court was required to and did give the instruction and hence such instruction was that of the court. In civil eases the court is not required to give instructions. Luikart v. Miller, Mo.Sup., 48 S.W.2d 867. Further, the court is not under a duty to modify instructions offered by a party. Wors v. Glasgow Village Supermarket, Inc., Mo. Sup., 460 S.W.2d 583.”

That argument misstates the law. Rule 70.01(d) states that “all [instructions] shall be given as instructions of the court.” Furthermore, the committee instructions accompanying the Missouri Approved Jury Instructions states:

“The instructions are the Court’s and they should be given only when the trial judge, after careful consideration, believes they are proper. The judge is not a reading agent. If such were his job it could be as ably handled by the courthouse janitor or a reasonably literate trusty on loan from the county jail.
“Neither the proposed instruction system nor any other system will succeed without the active supervision of the most important man in our judicial system, the trial judge.” (MAI, LIII).

Furthermore, the court is required to give 3.01; its use is mandatory: “This instruction must be given in every case” (Notes on Use, MAI 3.01). The inclusion of the statement on defendant’s burden of proof is likewise mandatory when pertinent; the Notes on Use, MAI 3.01, direct, “if defendant submits an affirmative defense, such as contributory negligence, insert the words: ‘The burden is upon the defendant . . .”

So, contrary to appellant’s claims, the court is required to give MAI 3.01, it is an instruction of the court, and the omission was error by the court, not by the plaintiff. Nor do the Luikart and Wors cases, cited by defendant, militate to the contrary. Lui-kart precedes MAI and therefore is not pertinent. Wors dealt only with the question of the giving or modification of a withdrawal instruction, which stands on a completely different footing from MAI 3.01.

In face of the foregoing, defendant nevertheless insists that plaintiff is barred from any complaint as to Instruction No. 2, inasmuch as that instruction was prepared by him and submitted at his own insistence. He contends that this conclusion is required by Blankenship v. Kansas City Terminal Railway Co., 462 S.W.2d 650 (Mo.1971), which according to defendant presented “the identical situation.” Blankenship is plainly distinguishable. That was a suit under the Federal Employers Liability Act, to which the defendant pleaded contributory negligence in mitigation of damages. The court gave a burden of proof instruction submitted by plaintiff which followed MAI 3.01, except that the instruction, just as the one here, failed to include a “tail” dealing with the burden of proof upon the defendant with respect to contributory negligence. The jury returned a verdict with which plaintiff was dissatisfied, and he therefore appealed. On appeal he objected to the incompleteness of the burden of proof instruction. Since he had not made the complaint in his motion for new trial, he found it necessary on appeal to claim the omission constituted “plain error” under Rule 79.04 (now Rule 84.13). The essence of the court’s ruling in Blankenship is that “[t]he omission of a submission of the burden of proof of plaintiff’s contributory negligence is not such that relief may be given under Civil Rule 79.04.” Blankenship is not in point in the present situation for the reason that plaintiff here did make his objection in his motion for new trial and indeed received favorable action by the trial court thereon. The trial court had full authority to grant the relief so requested in the motion for new trial, even though plaintiff had not objected to Instruction No. 2 at the time it was given. Rule 70.02. Accordingly, plaintiff here had no need for exceptional treatment under the plain error doctrine, as was sought in Blankenship.

The doctrine of “invited error” on which defendant relies in this case may apply in proper cases to instructions. A good statement of how the rule should be so applied appears in Morris v. Klein, 400 S.W.2d 461, 465 (Mo.App.1966), where it is stated that “a party may not predicate error on a theory of law he himself has adopted.” The doctrine therefore prevents a party from attacking an instruction which he himself selected or devised under which to submit to the jury his theory of substantive law on which he asks the case to be decided. Thus, a party has frequently been barred from complaining of his own verdict-directing instruction. Parsons Construction Co. v. Missouri Public Service Co., 425 S.W.2d 166 (Mo.1968); Leathem v. Longenecker, 405 S.W.2d 873 (Mo.1966); Brown v. Bryan, 419 S.W.2d 62 (Mo.1967); Birmingham v. Smith, 420 S.W.2d 514 (Mo.1967); Beard v. Jackson, 502 S.W.2d 416 (Mo.App.1973). On the other hand, the doctrine should not be extended to a situation, such as the one in this case, where the issue involves mandatory instruction MAI 3.01, which must be given in every case regardless of the legal theory relied on by the plaintiff.

Error in failure to comply with MAI 3.01 should not be judged on the basis of who submitted the defective instruction, but rather on the basis of whether the error is prejudicial. When the error is in the omission of instruction on defendant’s burden of proof on a contributory negligence defense, the jury receives only a direction that the burden of proof is on the plaintiff, and the jury can hardly escape the conclusion that it is upon the plaintiff to prove his freedom from contributory negligence. The misconception so conveyed is obviously prejudicial. Hartley v. Oidtman, 410 S.W.2d 537 (Mo.App.1966); see also Brannaker v. Transamerican Freight Lines, Inc., 428 S.W.2d 524 (Mo.1968).

A complete MAI 3.01 instruction is mandatory, and the instruction here which was incomplete under the Notes on Use is presumptively prejudicial. The defendant has not shown the omission to be non-prejudicial. The granting of a new trial was proper.

Affirmed.

All concur.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    R. Sheldon STAFFORD and Ruth M. Stafford, Respondents, v. The TRAVELERS INSURANCE COMPANY, Appellant.
    No. KCD 27191.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      Glenn McCann, Stephen D. Manz, Kansas City, for appellant.
    Joseph H. Moore, Kansas City, for respondents.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Defendant Travelers Insurance Company (Travelers) appeals from a judgment in favor of plaintiffs on a fire insurance policy following a trial without a jury.

Travelers issued a fire policy to plaintiffs which provided coverage in the amount of $50,000 for the dwelling and $5,000 for appurtenant private structures. Travelers paid the $50,000 for total loss to plaintiff’s dwelling and the sole issue in this case is whether or not Travelers is obligated to pay plaintiffs $5,000 under the appurtenant private structures coverage for a garage which was also totally destroyed.

Plaintiffs’ house faced Lake Lotawana with a two story exposure toward the water. The actual rear of the house was on the west toward the road with only the upper story exposed at that point. The garage was built after the house and occupied a single story on the same level as the upper story of the house facing the west. A corner of the garage touched the northwest corner of the house with the garage then extending toward the south and west at about a 45° angle from the house. This resulted in the garage extending on the west beyond the west side of the house. Both the house and the garage had complete exterior walls, however, there was a concrete area between the two from the point where the corners came in contact and extending almost one-half of the width of the garage. This concrete area had been enclosed with a wall on the southwest and a roof.

The area between the house and the garage was referred to as a breezeway and was used primarily for food storage. The garage was used for the normal purpose of storing automobiles, but in addition, a lawnmower and a deep freeze were located there. The roofline of the breezeway was not level with the house and garage, so there was not a common roofline extending from the garage to the house.

According to plaintiff’s testimony they had paid $55,000 for the house, including the garage and lot. The policy provisions which give rise to this controversy are contained in what are referred to as Coverages “A” and “B”. The portion of Coverage “A” causing the difficulty reads as follows: “This policy covers: (a) the building described, including additions in contact therewith, occupied principally for dwelling purposes.” The portion of Coverage “B” in question reads: “This policy covers private structures appertaining to the premises and located thereon, . . . This coverage does not include . (b) any structure (except structures used principally for private garage purposes) which are wholly rented or leased to other than a tenant of the described dwelling.”

The plaintiffs contend they are entitled • to the $5,000 in coverage afforded under Coverage “B” because in their view the garage was a private structure appertaining to the premises. Travelers contends the plaintiffs are not entitled to any more than the $50,000 paid under Coverage “A” because the garage was included under that coverage.

The trial court made findings of fact and conclusions of law in which it was concluded the garage was an appurtenant private structure which fell under Coverage “B”.

It is rudimentary that the test of the meaning of a nontechnical word in an insurance policy is not the meaning given it by insurance experts, but rather the courts are concerned with the meaning which would be ordinarily understood by the layman who purchased the policy. Adams v. Covenant Security Insurance Company, 465 S.W.2d 32, 34 (Mo.App.1971). Also the objective is to determine the intent of the parties, and this is to be drawn from the language employed. Reese v. Preferred Risk Mutual Insurance Company, 457 S.W.2d 205 (Mo.App.1970).

Assuming arguendo the garage was covered under Coverage “A”, there can be no question it was also covered under “B”. The language of “B” clearly includes a garage in express terms. The language used is tested by common understanding and speech of men. Greer v. Zurich Insurance Company, 441 S.W.2d 15 (Mo.1969). Under this test the garage was covered by Coverage “B”.

Travelers has argued only the garage is included in Coverage “A”, and for that reason plaintiff is not entitled to recover under “B”. It advances no basis on which to deny coverage under “B”. Neither does it give any reason to deny coverage under “B” even if a garage was included under both coverages. Independent reading of the policy reveals no impediment to plaintiff recovering if the garage is included in both clauses. If Travelers intended to limit coverage to just one of the two provisions, it should have done so by clear and unmistakable language. Rosen-Reichardt Brokerage Co. v. London Assur. Corp., 214 Mo.App. 672, 264 S.W. 433 (1924). Absent a policy provision or any argument demonstrating a bar to recovery under “B”, even if the garage was covered under “A”, plaintiffs may be paid under “B”.

For these reasons plaintiffs are entitled to be paid the coverage for the garage under Coverage “B”. The judgment is affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    Roscoe FORD, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27332.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      Martin Anderson, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

Roscoe Ford, a black man, was convicted of first degree murder (1971) by an all white jury in Jackson County. Failing to obtain relief by way of direct appeal, State v. Ford, 495 S.W.2d 408 (Mo. banc 1973), he then resorted to Rule 27.26.

Ford’s Rule 27.26 motion was denied by the trial court on March 7, 1974, absent an evidentiary hearing. He contends on appeal that the trial court erred in summarily denying his Rule 27.26 motion without affording him an evidentiary hearing.

Resolvement of Ford’s singular contention on appeal pivots on whether a certain “ground” and “facts” in support thereof set forth in his Rule 27.26 motion “conclusively” show that “he was entitled to no relief”. Rule 27.26(e) provides, and Smith v. State, 513 S.W.2d 407, 411-412 (Mo. banc 1974), holds, that if the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, an evi-dentiary hearing is not required.

The “ground” alluded to reads as follows: “Movant, Roscoe Ford, a Negro, was deprived of equal protection of law and a fair and impartial trial by jury in violation of his rights under the 6th and 14th Amendments to the Constitution of the United States for the reason that all Negroes were systematically excluded from Movant’s jury solely because of their race by the use of peremptory challenges which is a common practice, case after case, of the State within Jackson County, Missouri, to so do.” The “facts” alluded to may be fairly paraphrased as follows: (1) the state by use of its peremptory challenges deliberately and intentionally struck all qualified Negro jurors from the jury panel in Ford’s ease with the end result that he was tried by a jury from which all qualified Negro jurors were excluded and which was comprised exclusively of white jurors; (2) that it is common practice in criminal cases involving Negro defendants in Jackson County, Missouri, for the state to use its peremptory challenges to systematically exclude qualified Negro jurors from sitting on juries trying Negro defendants charged with criminal offenses; (3) that before, at the time, and subsequent to Ford’s trial, in sixteen specified criminal cases involving Negro defendants tried in Jackson County, Missouri, the state, by use of its peremptory challenges, deliberately and intentionally struck all qualified Negro jurors from the respective panels, with the end result that each respective Negro defendant was tried by a jury comprised exclusively of white jurors; and (4) additional existing case records in Jackson County, Missouri, if made available to Ford, would disclose that the state, by use of its peremptory challenges, has systematically excluded qualified Negro jurors from serving on pet-it juries in criminal cases involving Negro defendants in “case after case” with the end result that Negro defendants charged with criminal offenses are invariably tried by “all white” juries. As summed up by Ford in his brief, in order to resolve the “ground” set forth in his Rule 27.26 motion it was incumbent upon the trial court . .to have an evidentiary hearing and cause the Prosecuting Attorney of Jackson County, Missouri to produce the record of each case thus tried involving a Negro defendant . . .”.

Ford bottoms his charge of error upon the following language contained in Swain v. Alabama, 380 U.S. 202, 223, 85 S.Ct. 824, 837, 13 L.Ed.2d 759, 774 (1965): "[W]hen the prosecutor in a county, in case after ease, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance.”

The apical issue on appeal is best posed by framing it in terms of the following fundamental question. Does the specified “ground” heretofore alluded to when viewed in conjunction with the supportive “facts” pleaded, assuming, arguendo, that the supportive “facts” alluded to are true, conclusively demonstrate that Ford is entitled to relief under Rule 27.26 because of the admonitory language contained in Swain v. Alabama, supra? If the answer is no, the trial court did not err in summarily disposing of Ford’s Rule 27.26 motion without an evidentiary hearing. Rule 27.26(e), supra; and Smith v. State, supra.

Pleading and proofwise, one who seeks redress from a criminal conviction on the ground that the jury which tried him was unconstitutionally structured within the ambit of Swain v. Alabama, supra, carries a heavy burden. The concept of peremptory challenges, whether exercised by the state or by an accused, is historically infused into our jury trial system. What a cold record might fail to disclose as juror prejudice to support a challenge for cause, but which one side or the other innately senses as juror prejudice, has long been the “bailiwick” of the peremptory challenge. On the other hand, invidious discrimination, racial or otherwise, in the selection of jurors is abhorrent to even the most basic concept of fairness and justice and smacks of constitutional repugnancy. A close reading of Swain v. Alabama, supra, impresses one with the conclusion that the Supreme Court of the United States attempted to preserve inviolate the best of both concepts — the concept of peremptory challenges and the concept of the constitutional noncounte-nance of invidious discrimination in the selection of trial jurors. In order to reconcile the best of both concepts, the court recognized that certain indispensible components were required to be present before it could be said that the state’s exercise of its peremptory challenges became, in reality, mere vehicles with which to perpetrate invidious discrimination. The key to ascertaining some of the indispensible components referred to is found in the following language, “. . . whatever the circumstances, whatever the crime and whoever the defendant or the victim may be . . ” (Swain v. Alabama, supra, 380 U.S. at 223, 85 S.Ct. at 837). The Supreme Court of this state recently had occasion to take a hard look at this particular language in Swain and held in State v. Baker, 524 S.W.2d 122, 125 (Mo. banc 1975), that to come within the proscription of the Fourteenth Amendment it was mandatory for a complainant to show that qualified Negro jurors were systematically excluded from serving as petit jurors in criminal trials in “case after case” irrespective of whether the defendants in “case after case” were black, white, or of some other racial origin. The foregoing interpretation of the holding in Baker comports with the interpretation given it in the recent case of State v. Davis, Mo.App., 1975, 530 S.W.2d 25.

In the instant case the “ground” and supportive “facts” pleaded by Ford in his Rule 27.26 motion made no mention or claim whatsoever that qualified Negro jurors were systematically excluded (by the state’s exercise of its peremptory challenges) from serving as petit jurors in “case after case” involving criminal accuseds of every racial origin, black, white, or otherwise, and for this reason alone the jury which tried and convicted Ford was not constitutionally infirm within the purview of Swain v. Alabama, supra, and therefore the trial court did not err in summarily denying Ford’s Rule 27.26 motion.

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. James H. MASTERS, Appellant.
    No. KCD 27470.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      William G. Mays, II, Public Defender, 13th Judicial Circuit, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   PER CURIAM.

The defendant was convicted by a jury of stealing property of the value of at least fifty dollars and sentenced to imprisonment for a term of five years.

On the night of June 15,1973, a man who identified himself as Reverend H. B. Miller registered at the Columbia Best Western Inn and was given occupancy of Room 324. The guest made payment for the room by the use of a credit card issued to the City Union Mission. On the next afternoon, the housekeeper reported to the manager that the door of Room 324 displayed a DO NOT DISTURB sign although her records indicated that the occupant was to have released the room that day. The manager proceeded to the room, unlocked the door, and discovered that the television set, normally bolted to the chest, was missing.

Four days later, the defendant was arrested in his Kansas City apartment by police of that city for the theft and fraudulent use of credit cards. At the time of arrest, the defendant was in discomfort, apparently an adverse reaction to prescription medicine he had taken, so the officers delivered him under custody to a hospital. At the hospital, within 20 minutes of the arrest, the police searched the defendant and removed from his person a wallet which contained several credit and identification cards, among them those bearing the names Reverend H. B. Miller and Herman B. Miller. On the day of arrest, after release from the hospital, the defendant admitted to the police that he had registered at a Columbia motel as Reverend H. B. Miller and that he had taken a television set from his room, but refused to sign a written statement.

At the conclusion of the opening statement by the prosecutor, the defendant moved the dismissal of the charge on the objection that the prosecutor failed to state any evidence of ownership of the television and that the set was taken without the permission of the owner. The dismissal was denied by the trial court and the point now comes on appeal.

The prosecutor is required by statute [§ 546.070, RSMo 1969] to state the case and offer the evidence in support of the prosecution. The purpose of the rule is to advise the jury of the facts which the State intends to prove and thereby inform the defendant of the contemplated course of prosecution so as to fairly enable the defendant to meet the accusation. State v. Feger, 340 S.W.2d 716, 724[12-16] (Mo.1969); State v. Fenton, 499 S.W.2d 813, 815[1, 2] (Mo.App.1973). The scope and extent of the opening statement, however, is largely within the control of the trial court and will be sufficient if, when aided by the inferences reasonably to be drawn therefrom, the defendant is informed of the charges against him. State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 805[6, 7] (1953).

In his statement of the case, the prosecutor delineated the proof he intended to make, including testimony by the manager of the Inn that following the defendant’s occupancy of Room 324

“the TV that normally sat in the room, as they do in all the rooms at the Columbia Best Western, was gone, removed . that the TV in that room is normally bolted down . . . and that it had been removed from its bolts and removed from where it had been”

and that the defendant was the thief. Contrary to the complaint made by the defendant to the trial court and now on this appeal, ownership in the Inn is reasonably inferable from the proposed proof that each room was furnished by the Inn with a TV set, just as the lack of the owner’s consent for the taking is inferable from proof that the TV in Room 324, normally bolted down, had been unfastened and removed. The first contention is not sustained.

The defendant next contends that the police search at the hospital [which yielded the incriminating credit cards] was invalid and the conviction based upon that evidence was unlawful. The defendant contends that had the search been conducted at his apartment it would have been valid as incident to a lawful arrest, but that a warrantless search at another time and another place violates constitutional principle. It is firmly established that a search of the person at the police station is both a valid incident to arrest and a valid inventory procedure. State v. Murray, 445 S.W.2d 296, 298[7] (Mo.1969); Cotton v. United States, 371 F.2d 385, 392 (9th Cir. 1967).

The judgment is affirmed.

All concur.


text:
    STATE of Missouri ex rel. SENIOR ESTATES OF KANSAS CITY, INC., Petitioner-Respondent, v. Milton C. CLARKE et al., Respondents-Appellants.
    No. KCD 27476.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      Aaron A. Wilson, James C. Bowers, Jr., Kansas City, for respondents-appellants.
    Clem W. Fairchild, Philip B. Green, Kansas City, for petitioner-respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

The Kansas City Board of Zoning Adjustment (Board) appeals from a judgment of the circuit court which reversed an order made by the Board denying a permit to Senior Estates of Kansas City, Inc. (Senior).

Senior operates a nursing home which was built in 1960 pursuant to a permit issued by the Board. In 1964 the Board again issued a permit for the construction of an addition. By the application in question here, Senior sought a permit to build an addition which would accommodate an additional ten beds, and a parking lot for an additional twenty-one cars. In connection with its application, Senior submitted a site plan and a plot plan. From these plans the land area owned and occupied by Senior can be determined as well as the amount of space constituting the side yards. The number of beds which Senior would have after the addition was before the Board.

The Board’s staff made a field investigation of the application and in connection therewith took pictures of the site occupied by Senior and the immediate surrounding area. In addition, the staff submitted to the Board at the hearing a large aerial photograph which has the area occupied by Senior marked in red with street designations for the streets in that immediate vicinity. This aerial shows the area for a considerable distance in all directions from Senior’s property.

At the hearing on Senior’s application, the chairman of the Board asked for the staff report. This report showed the permits previously issued, the request being made, and then stated that a part of the tract was in the right-of-way of the proposed south midtown freeway. The report further stated a number of properties in the near vicinity had already been acquired for this freeway by the State Highway Department.

The staff also presented the Board correspondence between the staff and George Satterlee, district engineer with the State Highway Department. The staff had sent the plot plan submitted by Senior to Mr. Satterlee and requested him to mark on the plan the proposed right-of-way lines for the south midtown freeway. The staff also presented a letter from Mr. Satterlee by which he transmitted the plot plan back to the staff indicating he had drawn the right-of-way on the plan. Mr. Satterlee also stated his department opposed the application of Senior because to permit Senior to build the new parking lot in the area covered by the right-of-way of the proposed freeway would increase the right-of-way costs.

The public hearing consisted entirely of statements made by the attorney for Senior and John Monroe, an architect who had prepared plans for Senior. Before the hearing had formally started, Mr. Daly, the attorney, was asked several questions concerning the location of the proposed right-of-way. The chairman then asked if anyone representing the Highway Department was at the hearing and learned that no such representative was there. The remainder of the hearing consisted of statements and questions concerning the fact that the location of the proposed parking lot was within the right-of-way of the proposed south midtown freeway. This revealed that there had been talk of locating a south midtown freeway for a number of years. In fact, at one point Mr. Monroe stated: “As architects, we have been continually running into the midtown freeway for the past seventeen years and I think Mr. Satterlee was in kindergarten when it started and he may be retired before this portion is finished .” Mr. Daly also told the Board that an outdoor theater had been located some sixteen years previous at a point contrary to the desire of the theater owner, but solely to accommodate the right-of-way of the elusive freeway. Mr. Daly stated the freeway had yet to make an appearance anywhere near the theater.

The Board thereafter voted to deny the application with four members voting in favor of denial and one opposed. After this vote a letter was written to Senior’s attorney by a Board staff member advising the application had been denied and stating, “said addition being within the present parking area serving this facility and the alternate further parking area being proposed on land to be acquired for future public right-of-way.”

Thereafter Senior filed a writ of certiora-ri in the circuit court and upon issuance of the writ the complete file of the Board was certified to the court. Without taking any additional evidence the circuit court found there was not sufficient competent evidence in the record to warrant the Board denying the application.

On this appeal the Board contends the application was properly denied because the applicant did not introduce any evidence to show compliance with the requirements of the zoning ordinance before the Board would be authorized to issue a permit. These requirements include a finding by the Board, (1) the use does not materially damage or curtail the use of neighboring property, (2) the use conforms to the district regulations, (3) the use is compatible with the general use of the district, (4) the use does not jeopardize the public health, safety or welfare, and (5) the use does not violate the general spirit and intent of the zoning ordinance. In addition the applicant is required to have, (1) a minimum lot area of twenty-thousand square feet and a minimum width of one-hundred feet, (2) five-hundred square feet of lot area for each bed, (3) side yards of at least one-hundred percent greater width than the side yards required in District R-2B, and (4) off street parking on a basis of one space for each four beds and for each four employees.

On appeal in this type of case the review “is limited to a determination of whether the ruling is authorized by law and is supported by competent and substantial evidence upon the whole record.” Rosedale-Skinker Improvement Ass’n v. Board of Adjustment, 425 S.W.2d 929, 936[7, 8] (Mo. banc 1968). See also § 89.110, RSMo 1969. The same review is applicable both on this appeal and in the circuit court.

A review of the evidence before the Board shows the applicant submitted more than ample evidence to satisfy all of the requirements set out above. The aerial photograph showing the entire surrounding area, together with the individual photographs of Senior’s property and the immediate surrounding area, shows the use here does not materially damage neighboring property and is compatible with the general character of the zoning district and does not jeopardize the public health, safety or welfare. The fact the Board had issued permits to Senior in 1960 and 1964 is ample evidence that the Board found the use made by Senior conformed to the applicable district regulations and did not violate the general spirit and intent of the zoning ordinance. While it had been a few years since these previous permits had been issued, it is a well recognized principle that “[p]roof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within logical limits, that it exists at a subsequent time.” Martin v. Sloan, 377 S.W.2d 252, 256[2] (Mo.1964). See also 31A C.J.S. Evidence § 124.

Here there is no indication of any material change in the neighborhood where Senior was located nor any other change which would indicate any reason to find that Senior’s effect on the neighborhood operation would be any different than it was at the time the previous permits had been issued. In this circumstance the above principle is peculiarly applicable and the conditions existing at the time of the previous permits are presumed to continue in the absence of any countervailing evidence.

The plot plan and site plan presented by Senior demonstrate a compliance with the area and parking requirements.

However, an examination of the record leaves the unmistakable impression that the Board’s position on this appeal is contrary to the position the Board took at the hearing and in denying the application. The discussion in the public hearing and the letter which the Board caused to be sent to the applicant leaves no doubt the Board denied this application solely on the ground the parking lot which Senior was going to build was located within the right-of-way of the proposed south midtown freeway. This despite the evidence before the Board that talk of this freeway had been going on for at least seventeen years.

It cannot be disputed that Senior was the owner of this property and was entitled to the free and untrammelled use of it subject only to the valid exercise of the police power of the city. The possibility that a part of this property would be acquired for a highway right-of-way would in no way deprive Senior of the right to use and develop its property. Hamer v. State Highway Commission, 304 S.W.2d 869 (Mo.1957).

In Hamer the court held that until condemnation proceedings have been finally concluded any improvement which the land owner would make in contemplation of the location of the highway would be voluntary and would be at his own risk. The court further stated that until such time as the taking was complete, “[t]he quantum of plaintiff’s interest in and the permissible use of his property has not in any way been reduced.” 304 S.W.2d 874[7, 8].

In DeAngelis v. Minor, 8 Misc.2d 994, 166 N.Y.S.2d 568 (Sup.Ct.N.Y.1957) the court stated at p. 569, “nor may the board deny the application on mere speculation that the State of New York may at some future date condemn some of the property.”

In this case it is plain the Board was attempting to deny Senior the right to add to its facilities solely to prevent improvements which might increase right-of-way costs for a freeway which might be built at some future time. As shown by Hamer and DeAngelis, this is a wholly impermissible reason. The Board would have no right to deny an application on this ground. For this reason the order of the Board denying Senior’s application is illegal. The order also must fall because it is not supported by substantial and competent evidence.

Senior has filed a motion to dismiss the Board’s appeal for deficiencies in their brief. While the brief is not a model, the motion is overruled.

The judgment of the circuit court is affirmed and the cause is remanded with directions to direct the Board to issue the requested permit to Senior.

All concur.


text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Mamie REYNOLDS et al., Exceptions of Charles E. Watson, et al., Respondents.
    No. KCD 27558.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      Bruce A. Ring, Chief Counsel, Earl H. Schrader, Jr., Terry P. Thompson, George L. Sharp, Asst. Counsel, Missouri State Highway Com’n, Kansas City, for appellant.
    Robinson & Miller, Maysville, for respondents.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

The State of Missouri ex rel. State Highway Commission of Missouri, plaintiff below and appellant here (hereinafter referred to as the Commission), in exercise of the power of eminent domain, brought a condemnation action in the Circuit Court of Daviess County, Missouri, to acquire a 62.59 acre tract of land for construction of Interstate 35. The owners of the property were Charles E. Watson and Eva F. Watson, husband and wife (hereinafter referred to as the owners). The whole of the tract of land owned by them was being taken. At the time in question the owners had 25 acres of the tract in “conservation reserve” and the overall tract was described as being used for “farming and for recreational purposes.” Hallett Construction Company (hereinafter referred to as the lessee) had a lease from the owners to mine and remove rock and sand from the property. As of the legal date of taking the lessee had not exercised its rights under the lease. However, the term of the lease did not expire until approximately two years after the legal date of taking.

The owners and lessee filed exceptions to the Commissioners’ Report fixing and assessing $13,850.00 as damages for the taking of the 62.59 acre tract of land. The amount awarded by the Commissioners was paid into court on January 5, 1973.

On change of venue a Caldwell County jury rendered a verdict for $13,851.00 as damages for the taking of said tract of land. Thereafter, lessee filed a separate motion for a new trial which was sustained by the trial court on the sole ground that it erred in prohibiting Ronald E. Harken, in response to a question posed to him by lessee’s counsel, from giving his opinion as to the best use of the tract of land in the reasonably foreseeable future as of the date of taking. The transcript discloses, from an offer of proof made, that if permitted to testify Harken’s opinion would be that the best use of the tract of land in the reasonably foreseeable future as of the date of taking would be for the purpose of mining and removing limestone rock and sand. The owners also filed a separate motion for a new trial which was sustained by the trial court on two grounds: (1) that it erred in prohibiting Ronald E. Harken from giving his opinion as to the best use of the tract of land in the reasonably foreseeable future as of the date of taking and (2) it erred in prohibiting Ronald E. Harken from giving his opinion as to the fair market value of the tract of land as of the date of taking.

The Commission appealed from the order of the trial court granting the owners and lessee a new trial. In the crucible of appeal the only reason advanced by the Commission in attacking the order granting a new trial is that Harken was not “qualified as competent” to give an opinion as to either the best use of the tract of land in the reasonably foreseeable future or as to its fair market value as of the date of taking.

Whether the trial court erred in granting a new trial because of its refusal at trial to permit Harken to give his opinion as to the best use of the tract of land in the reasonably foreseeable future as of the date of taking is an issue common to both the owners and the lessee. If this court concludes that the trial court did not err in granting a new trial to the owners and lessee on the issue common to both of them, then it becomes unnecessary to address the propriety of the trial court’s action in granting a new trial to the owners on the basis of its failure to have permitted Harken to testify as to the fair market value of the land as of the date of its taking. This for the reason that “ . . .if either of the reasons assigned for the granting of a new trial is proper, the action of the trial court [in granting a new trial] should be affirmed.” Davis v. Perkins, 512 S.W.2d 868, 870 (Mo.App.1974), and cases therein cited. Consequently, appellate disposition of this case rests on the narrow basis that the trial court, for reasons subsequently set forth, did not err in granting a new trial to the owners and lessee premised on the issue common to both of them.

Missouri Edison Company v. Gamm, 379 S.W.2d 166, 172 (Mo.App.1964), holds that it is proper for a jury to consider the value of limestone rock present on land subject to condemnation in determining the fair market value of such land for the purpose of assessing damages. The presence of sand would seem to lend itself to the same consideration. Concomitantly, the best use of land in the reasonably expected near future is a proper jury consideration in determining the fair market value of land subject to condemnation. State ex rel. Board of Regents for Central Missouri State College v. Moriarty, 361 S.W.2d 133, 136 (Mo.App.1962); and MAI No. 16.02. It is noted, parenthetically, that MAI No. 16.-02 was one of several instructions given by the trial court to the jury in the instant case.

In view of the above, the only remaining question is whether Harken was “qualified as competent” to render an opinion that the best use of the tract of land in question in the reasonably foreseeable future as of the date of taking was for mining and removing limestone rock and sand. The answer to the question pivots on the scope and measure of the discretionary power possessed by the trial court to preliminarily decide whether Harken was qualified to render the opinion sought to be elicited from him. It is the general rule that the trial court is vested with broad discretion in preliminarily deciding the qualifications of an expert (or one standing in the role thereof), and its exercise of discretion relative thereto will not be disturbed on appeal absent a showing that it was abused. Christian v. Jeter, 287 S.W.2d 768, 771 (Mo.1956); Minor v. Lillard, 306 S.W.2d 541, 546 (Mo.1957); and Union Electric Company of Missouri v. Simpson, 371 S.W.2d 673, 677 (Mo.App.1963). As noted in State ex rel. State Highway Commission v. Barron, 400 S.W.2d 33, 36-37 (Mo.1966), there is “no exact rule” to measure the qualifications of a witness regarding their expertise to testify as to the value of land subject to condemnation and the “tendency is to admit any evidence which sheds light on the question, leaving it to the discretion of the trial court to keep it within bounds”, and if the proffered witness’s “knowledge and information is superior to that possessed by the ordinary person who composes the jury, then he should be permitted to testify.” The aforementioned appear equally valid and applicable for measuring the qualifications of a witness asked to render an opinion as to the best use of land subject to condemnation in the reasonably foreseeable future as of the date of taking. No viable distinction between the two springs to mind.

The trial court in sustaining the separate motions of the owners and lessee for a new trial on the common ground under consideration obviously concluded that it had abused its discretion during trial in not permitting Harken to give an opinion as to the best use of the tract of land in question in the reasonably foreseeable future. The case was still within the exclusive jurisdiction of the trial court when it did so, and since it was vested during trial with the obligation and right to preliminarily determine Harken’s qualifications to render such an opinion, it was no less vested with a comparable obligation and right to do so when ruling on the motions for a new trial filed by the parties. Otherwise expressed, if the trial court could not be said to have been guilty of an abuse of discretion if it had permitted Harken during trial to have given an opinion as to the best use of the tract of land in the reasonably foreseeable future, it can not be said to have erred, i. e., abused its discretion, in sustaining the respective motions of the owners and lessee for a new trial on the ground that it wrongfully prohibited Harken from giving such an opinion.

Attention now focuses on evidence relative to Harken’s qualifications as disclosed by the record, bearing in mind the guidelines previously referred to gleaned from Christian v. Jeter, supra, Minor v. Lillard, supra, Union Electric Company of Missouri v. Simpson, supra, and State ex rel. State Highway Commission of Missouri v. Barron, supra.

The following evidence is found in the record, all preceding the controversial question posed by lessee’s counsel, bearing on Harken’s qualifications: He was a graduate geologist with approximately fifteen years practical experience in the field as an employee of lessee. His duties consisted primarily of “exploration work” for rock, sand and gravel, and prospecting, drilling and testing for such materials. Additionally, he evaluated prospective rock, sand and gravel sites for his employer. He had performed the aforementioned duties for his employer on approximately fifty or sixty prospective sites. He evaluated prospective rock, sand and gravel sites for his employer for the purpose of outright purchase as well as for leasing.

Harken was familiar with the tract of land in question prior to the time it was leased by his employer and his familiarity with it had continued since that time. He was present when core drillings were made on the tract of land in question to determine the amount and availability of rock and sand thereon. The maximum “overburden” that would have to be removed to reach the rock and sand was twenty-eight feet.

The core drilling that was done disclosed the presence of Bethany Falls limestone that was acceptable for “base material, possibly masonery stone and probably asphalt stone.” The core drilling also disclosed the presence of “fine sand” that was suitable as a “fill material” and as an “asphalt material”. He was knowledgeable as to the “reserves of rock and sand available” on the tract of land which was taken.

Harken was also knowledgeable as to the “marketability” and “market price” of rock and sand and further testified that the demand for such materials from the tract of land in question was increasing.

When the above evidence touching upon Harken’s qualifications is viewed in conjunction with the previously iterated guidelines, this court is unable to brand the trial court with an abuse of discretion in making its post-trial determination that Harken was qualified to give an opinion that the best use of the tract of land in the reasonably foreseeable future as of the date of taking was for the purpose of mining and removing rock and sand. By doing so the trial court, as a practical matter, rectified what it obviously concluded had been an abuse of discretion on its part during the course of trial. It is difficult to envision anyone more qualified than a geologist to render an opinion as to the practical and advantageous adaptability of a tract of land for mineral purposes in the reasonably foreseeable future as of the date of taking. It is equally difficult to imagine that the ordinary juror would be possessed with the requisite expertise, whether obtained by way of formal education or practical experience, to independently conclude that a tract of land in the reasonably foreseeable future best lent itself to the mining and removal of rock and sand. The weight to be given the testimony sought to be elicited from Harken was a jury matter. The concern of the trial court, as well as the concern of this court, is as to the admissibility of such testimony, not as to its weight.

Before review of this case is concluded, a belated argument advanced by the Commission in its reply brief requires passing mention. Therein the Commission argues that since Harken, without objection, testified that the best use of the tract of land in question, both as of the date lessee originally leased it and as of the date of taking in the condemnation action, was for “mining purposes”, error, if any, on the part of the trial court in prohibiting Harken from answering the question which generated the common issue decisive of this appeal was harmless. In doing so the Commission, either intentionally or by oversight, fails to recognize any distinction between the best use of land as of the date of taking and the best use of land in the reasonably foreseeable future as of the date of taking. In the context of this particular case the distinction takes on added significance. Lessee initially acquired its lease in 1964 and as of the legal date of taking the lease still has two years to run. From inception of the lease up to and including the date of taking lessee had never exercised its rights thereunder to expose and remove rock and sand from the tract of land in question. For this reason, it is not difficult to surmise that the ordinary juror might conclude that since the tract of land during the period mentioned had never been used for mining purposes it had no enhanced use in the reasonably foreseeable future for mining purposes. The distinction previously mentioned, standing alone, blocks what the trial court in its discretion concluded to be reversible error from being converted into harmless error.

The action of the trial court in granting the owners and lessee a new trial on the ground that it erred in prohibiting witness Ronald E. Harken from giving his opinion as to the best use of the tract of land in the reasonably foreseeable future as of the date of taking is hereby affirmed and the case is accordingly remanded for a new trial.

All concur.


text:
    STATE of Missouri, Respondent, v. James Edward COOK, Appellant.
    No. KCD 27633.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      Larry L. Zahnd, James W. Whan, Zahnd & Whan, Maryville, for appellant.
    Alden S. Lance, Pros. Atty., Andrew County, Savannah, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Defendant was convicted of driving while intoxicated in violation of § 564.440, RSMo 1969. Since the charge was a misdemeanor, he was tried originally in the magistrate court and after being convicted there, appealed to the circuit court. On trial de novo, the court, sitting without a jury, found, defendant guilty and assessed a fine of $200.

The charge originated on January 25, 1972, when Trooper Meade of the Highway Patrol observed defendant cross the center-line of Highway 71 a number of times. Trooper Meade stopped the defendant and on talking with him noticed a strong odor of intoxicants on his breath. The trooper had defendant get out of his car and requested defendant to walk the white line painted on the edge of the pavement. The trooper stated the defendant was unable to do this.

Defendant was then taken to the Andrew County Jail where he was observed by Sheriff Miller and Deputy Gegg. Trooper Meade, holding the proper license to do so, then administered the breathalyzer test to defendant. This test revealed a reading of .15. Trooper Meade, Sheriff Miller and Deputy Gegg all testified that based on their experience and on their observation of defendant’s unsteadiness on his feet and his appearance he was intoxicated, in their opinion. Sheriff Miller further testified as to his observation of defendant when he was released from jail the following morning and expressed his opinion that defendant was intoxicated based on his observation in the difference in defendant’s condition from the night before and the morning after.

On this appeal defendant raises two points concerning admission of the results of the breathalyzer test. Defendant contends first the State did not show that Trooper Meade had complied with the rules and regulations of the Division of Health in administering the test. Contrary to defendant’s position, Trooper Meade testified that in administering the breathalyzer test he did follow the prescribed procedure given by the Division of Health for the administration of breathalyzer tests. This was held to constitute a sufficient foundation for the reception in evidence of the result of the test in State v. Kramme, 491 S.W.2d 24 (Mo.App.1973).

Defendant next contends the State failed to show the measurement of the amount of alcohol in the blood of defendant was made in accordance with the requirements of § 564.442, RSMo 1969. In his argument defendant quotes that Section as it reads now. However, at the time of this offense that Section had been amended by Laws 1969, Third Ex.Sess., p. Ill, ¶ 1. As the Section existed in January, 1972, it provided in ¶ 2: “[pjercent by weight of alcohol in the blood shall be based upon milligrams of alcohol per one-hundred milliliters of blood.” Trooper Meade testified on cross-examination that the measurement by the breathalyzer test which he ran was milligrams to milliliters, or weight to volume. Thus the record reveals the State did show the measurement complied with the requirements of § 564.442 as that Section existed at the time of the offense.

Defendant’s final contention is that he should have been discharged because he was not brought to trial by the fourth term after his appeal was lodged in the circuit court. His claimed relief is based on §§ 545.900, 545.920 and 545.780. A hearing was held on defendant’s motion to dismiss the information on this ground prior to the commencement of his trial. The evidence adduced at this hearing did not show the defendant had requested any trial. It was further shown defendant was on bond. Further he had not appeared in circuit court prior to his trial. In this circumstance, defendant does not bring himself within § 545.780.

In State v. Harper, 473 S.W.2d 419 (Mo. banc 1971) it was held a defendant is not entitled to his discharge under §§ 545.900 and 545.920 merely because he has not been tried within the required number of terms. The court there held at p. 424, the defendant “ . . . must show that he has demanded a trial, and that such request was made without success for a reasonable length of time before his right to release has been asserted.”

Under the holding in Harper the defendant is not entitled to his release since he did not show he had ever demanded a trial.

Even though the evidence of the breathalyzer test has been held to be admissible, it should be observed that defendant’s conviction would have to be affirmed in any event because there was evidence to support the judgment other than the results of the breathalyzer test. State v. Kramme, supra.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Darryl K. THREAT, Appellant.
    No. KCD 27683.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.
    James L. McMullin, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Defendant was tried by a jury and found guilty of armed robbery in the first degree, by means of a dangerous and deadly weapon, a felony under Sections 560.120 and 560.135, RSMo 1969. Punishment was assessed at 20 years in prison.

On July 1, 1974, at approximately 8:30 a. m., three masked and armed men entered the Three Star Market at 2226 Vine in Kansas City, Missouri. While one of the men watched the door, a second went to the back of the store and the third approached Mr. Isadore Gross, the owner and demanded that he open the cash registers, which request Gross complied with. Gross was then ordered to go to the back room of the store and open the safe. He did so and took out and handed over to the robber a cigar box which contained approximately $1,500.00 in cash. Gross was then ordered to lie down while his assailant fled the store. In the meantime, the second robber approached Mr. Leon Z. Johnson who was working in the store’s butcher shop. Johnson was ordered to place his hands on the counter, was patted down and relieved of pocket money by the robber and then ordered to lie down. Johnson did have time, however, before being approached by the robber to activate the store’s alarm system which alerted the police.

Several officers responded to the scene. Officer James D. Bryan of the Kansas City, Missouri Police Department arrived at the scene at approximately 8:30 a. m. and observed defendant come out of the front door of the market. Defendant was carrying a box in his left hand, a revolver in his right hand, and reached up and removed a nylon stocking from his head. Bryan fired one round from his service revolver, and defendant dropped to the ground. Upon approaching and apprehending defendant, Bryan found an El Producto, red and white cigar box containing $1,514.02 and a loaded revolver. Detective James Theisen, also of the Kansas City, Missouri Police Department arrived at the scene at approximately 8:35 a. m. and proceeded to the location where defendant had been arrested and in an attempt to find any evidence that might have been left or dropped discovered a nylon stocking.

On this appeal defendant argues that the trial court erred in admitting into evidence State’s Exhibit No. 2, a cigar box, and State’s Exhibit No. 7, a nylon stocking, for the reason that neither were properly identified and shown to be connected with the crime or the accused.

Defendant takes the position that these exhibits were not “positively” identified as those used in the crime and thus were inadmissible. This insistence finds no support in the law. It is true that to be admissible demonstrative evidence must be identified as the articles they are purported to be, and shown to be connected with the crime or with the accused. However, such identification is not required to be positive, absolute, certain, or wholly unqualified, and where there is some evidence for this purpose, objections to its sufficiency go to the weight rather than the admissibility of the articles in question. 22A C.J.S. Criminal Law § 709, pp. 949-951. State v. Murphy, 521 S.W.2d 22 (Mo.App.1975); State v. Hollins, 512 S.W.2d 835 (Mo.App.1974); State v. Stancliff, 467 S.W.2d 26 (Mo.1971); State v. Kern, 447 S.W.2d 571 (Mo.1969); State v. Maxwell, 376 S.W.2d 170 (Mo.1964); State v. Johnson, 286 S.W.2d 787 (Mo.1956); State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314 (1945); State v. Boothe, 485 S.W.2d 11 (Mo. banc 1972); State v. Evans, 237 S.W.2d 149 (Mo.1951).

In the case at bar Exhibit No. 2 was identified by Isadore Gross, owner of the Three Star Market, as the cigar box taken from the safe during the robbery. Gross further stated that at the time of the robbery, the box contained approximately fifteen hundred dollars. James D. Bryan, a Kansas City, Missouri police officer, testified that when he sighted the defendant outside the market immediately after the robbery, the defendant was carrying a red and white El Producto cigar box containing $1,514.02. Bryan testified that Exhibit No. 2 “resemble[d]” the box he recovered from the defendant and that it “appear[ed]” to be the same box. Larry Ealy, another police officer, also testified that Exhibit No. 2 resembled the cigar box taken from the defendant, even though he could not positively state that it was the same box.

As to the nylon stocking, Sgt. Bryan testified that he observed the defendant run from the market immediately following the robbery and remove a nylon stocking from his head. The defendant dropped the mask near the doorway of the Heart of America Golf Club. Detective James Theisen, a Kansas City, Missouri police officer, arrived on the scene within minutes after the robbery and recovered the stocking that the defendant had discarded. Although the defendant asserts that Detective Theisen “could not positively identify the nylons as the ones he found at the scene,” this assertion is refuted by the record. When Detective Theisen was asked if he could identify Exhibit No. 7, he stated:

“Yes, sir, that’s the nylon stocking I found on the street and in front of the building just to the north of the market on the same side of the street which would be the west side of the street.”

It is apparent from the record that both the cigar box and the nylon stocking were shown to be connected with the defendant and the crime.

An examination of the cases cited by defendant show them to be factually distinguishable. In State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299 (1944), the murder weapon was recovered at the scene but subsequently misplaced. At trial the prosecutor used a similar gun as part of a demonstration. The court found it clear that the gun neither belonged to the defendant nor was connected with the crime and reversed stating “[t]he inherent nature of the weapon was such, under the circumstances of this case, that the jury would undoubtedly have a tendency to infer from a demonstration with it ‘the truth of all that is predicated of it’ when in fact it had nothing whatever to do with the defendant or the crime.” Wynne, supra at 300.

In State v. Merritt, 460 S.W.2d 591 (Mo.1970) defendant was convicted of assault with intent to kill with malice aforethought. The police searched the area around the bar after the shooting and found no gun but the next day a person claimed to have found the gun in the snow on the sidewalk. The court held no circumstances permitted an inference that the gun belonged to the defendant or was in any manner connected with him or the offense charged and therefore the admission of the gun into evidence was prejudicial error. State v. Holbert, 416 S.W.2d 129 (Mo.1967) involved a conviction for carrying a concealed weapon. In reversing and remanding the court held that the admission of revolvers other than the one on which defendant’s prosecution was based was improper and prejudicial as the revolvers were in no way connected with the charged offense.

Having found no merit in defendant’s assignments of error, the judgment of the trial court is affirmed.

All concur.


text:
    James F. McCONNELL, Appellant, v. STATE of Missouri, Respondent.
    No. 27702.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      J. Kirk Rahm, Warrensburg, for appellant.
    John C. Danforth, Atty. Gen., Dan Summers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Movant was jointly indicted along with three others for burglary and stealing. On his separate trial, he defended on the theory that he had been entrapped, but the jury found him guilty. That conviction was affirmed on appeal. State v. McConnell, 507 S.W.2d 58 (Mo.App.1974). He thereafter filed a motion under Rule 27.26 to have the judgment of conviction vacated on the ground that he was denied effective assistance of counsel. After hearing, the trial court overruled the motion. Movant appeals.

At Movant’s jury trial, during the State’s opening argument, the prosecutor informed the jury members that the evidence would show that Movant and the three other persons burglarized and stole from a Safeway Store. The prosecutor then remarked:

“The evidence will show that one of the other defendants has been convicted, as charged in this case, by a jury in Henry County. The evidence will show that the other two, besides the one convicted by the jury, and Mr. McConnell, have entered pleas of guilty to this crime.”

Movant’s retained trial attorney did not object to the above quoted statement nor did he request a mistrial. It is this non-action upon which Movant bases his claim of ineffective assistance of counsel.

In order to warrant reversal, the findings of fact and conclusions of law made by the trial court rejecting that claim must have been clearly erroneous. 27.26(j). Additionally, the action of trial counsel in failing to object and to request a mistrial must have gone beyond an error or mistake in the trial strategy or judgment and must have been of such character as to result in a substantial deprivation of Movant’s right to a fair trial. Lillibridge v. State, 499 S.W.2d 573 (Mo.App.1973); Myrick v. State, 507 S.W.2d 42 (Mo.App.1974).

Seeking to come within those standards, Movant states in his brief that, “defense counsel’s failure to object to the prosecutor’s comment in his opening statement reduced the rest of the trial to a series of inconsequential motions prior to the ‘lynching’. It has always been correct procedure that a man be entitled to a trial of his own. Interjecting comments about convictions or guilty pleas of extraneous third parties, in the prosecutor’s opening statement, are certainly grounds for a mistrial.”

We can agree with the sentence last quoted, that the prosecutor’s remarks, if objected to, would have been grounds for a mistrial. However, no such objection was made either at the time, in the motion for new trial, or by new counsel who filed a supplemental motion for new trial and who handled the direct appeal. The question at this late stage has become whether failure of trial counsel to object, now raised for the first time by a new third counsel, was so grossly unfair to defendant’s fundamental rights as to require overturning the entire proceedings.

The trial court, who presided at the original trial, thought not. This court, after reviewing the entire record, can find no clear error in that conclusion under all of the facts shown and therefore affirms.

All concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    Charles P. SPEICHER, Plaintiff-Respondent, v. Norman James DUNN, Jr., and Eunice Dunn, Defendants-Appellants.
    No. 36496.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 4, 1975.

      Jack C. Harper, Clayton, Shifrin, Trei-man, Bamburg & Dempsey, Richard B. Dempsey, St. Louis, for defendants-appellants.
    David C. Godfrey, Clayton, Eugene K. Buckley, Evans & Dixon, St. Louis, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Suit for personal injuries and property damage brought by Charles P. Speicher against Norman James Dunn, Jr. and Eunice Dunn, arising out of an intersectional automobile collision in St. Louis County. Each defendant filed a counterclaim, Eunice for property damage, Norman for personal injuries. A trial jury found the issues for plaintiff and against defendants on both petition and counterclaims. Defendants have appealed.

Appellants’ sole point follows: “Where the entire trial was conducted by plaintiff in a manner calculated to arouse and inflame the jury with feelings of hostility towards defendants and their witnesses, a closing argument suggesting that defendants’ attorney tries his lawsuits in an improper manner is reversible error.”

The adjective clause is so general and lacking in specificity as to what was done in the conduct of the trial to arouse and inflame the jury with feelings of hostility, or wherein and why hostility was engendered, and is so vague and general, that it utterly fails to comply with Rule 84.04(d) requiring points relied on to “state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” Lawson v. Cooper, 475 S.W.2d 442, 447[7] (Mo.App.1972). We decline to seine through the transcript, assume the role of adversary and ferret out possible errors in the conduct of “the entire trial” for examination and review. Cavaness v. Armstrong, 525 S.W.2d 446, 447[3] (Mo.App.1975). That is appellants’ responsibility.

Appellants’ chief complaint, stated in the main clause of the assignment of error, is that counsel committed reversible error in closing argument suggesting that defendants’ attorney “tries his lawsuits in an improper manner.” Perusal of the closing argument, reported in full, discloses that counsel did not make that argument in those words. Perusal of the argument portion of their brief discloses that appellants’ complaint relates to five certain remarks of counsel. To be properly presented for appellate review such allegedly improper remarks should have been stated with particularity in the assignment of error. “Compliance with Rule 84.04(d) required plaintiff, at least, to specify the statements and arguments and to particularize why the allowance of such was prejudicial to it. Lawson v. Cooper, 475 S.W.2d 442, 447[7] (Mo.App.1972); Epperson v. Nolan, 452 S.W.2d 263, 267[7] (Mo.App.1970); Hays v. Proctor, 404 S.W.2d 756, 761[6] (Mo.App.1966).” M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470[4] (Mo.App.1974). Although not so specified and particularized, we will review the challenged remarks, in the liberal exercise of our discretion, because of the brevity of the argument portion of appellants’ brief (consisting of one and one-half pages), which makes it possible to ascertain the precise complaints.

First, appellants take exception to counsel’s reference to Norman Dunn as a “hot rod.” Respondent had testified that after he entered the intersection of Highway 140 and Whitehall Manor Drive his automobile stalled in the intersection; that Norman Dunn approached in a sports car at 45-50 m.p.h. and ran into the side of respondent’s car. Respondent’s counsel, referring to his client, argued, “he wanted to get out of the intersection quickly; he could not do it quick enough though for the hot rod.”

Appellants’ second and third complaints relate to counsel’s reference to Norman Dunn’s Camaro automobile as a “hot sports car” and to Dunn’s shifting it down from fourth gear into third gear — not downshifting to reduce his speed — but “putting the car into drag.”

Appellants characterize the above as “gutter language” and a “highly improper accusation.” Reference to an automobile driver as a “hot rod” is improper. Counsel should not engage in name calling in the trial of a lawsuit. Counsel’s reference to the automobile as a “hot” sports car was inappropriate and subject to exception. These were not mortal sins, however. The impropriety of using these epithets could have been cured by reprimand of counsel or proper instruction of the jury, on objection and motion or request of appellants, but no objection was registered by appellants and no motion or request of any kind was addressed to the court. “It has long been the general rule that when no objection is made to improper argument it is not a matter subject to review on appeal. The theory is that the erroneous feature thereof is waived [citing cases]. Also, the failure to request the trial court to instruct the jury to disregard improper argument * * * constitutes a waiver of the right to complain on appeal that the jury was not so instructed [citing cases], and the same is true when there is no request that the trial court reprimand counsel for improper argument.” Olsten v. Susman, 391 S.W.2d 328, 330, 15 A.L.R.3d 1095 (Mo.1965). And see Baumle v. Smith, 420 S.W.2d 341, 346 (Mo.1967).

Counsel’s comments on the manner in which Norman Dunn operated gears in reducing his speed as the Camaro approached the intersection were within the bounds of fair comment in argument of the issues tried.

Appellants’ fourth and fifth complaints are set in this background: In his argument appellants’ counsel made the statement, “Now, in all my practice as a lawyer, I have yet to run across a case like this,” where a man violates a stop sign and then comes into court “for something as a result of his own negligence * * * .” In the last half of final argument counsel for respondent, referring to Mr. Harper’s remark, said, “As you all know, we know each other's tactics. We’ve heard each other before * * * we know each other and we know how lawyers try cases ⅜ * *. You file a counterclaim, as Norman and Eunice Dunn have, as we call it, it’s in effect a smoke screen, to take the minds off the real issues, as Mr. Harper well knows, take your minds off what really happened in this case. ⅞ ⅜ * why file (the counterclaim)? I don’t know. Don’t listen to that smoke screen. * * *” Appellants complain that this is a direct allegation that appellants’ counsel had filed the counterclaims as a smoke screen and distraction with the purpose of misleading the jury, and that the tactics of appellants’ counsel in this regard are known by respondent’s counsel. At one point during these comments appellants’ counsel said, “Objection to this line of argument.” This objection, patently general, was insufficient to present anything for review. Ternetz v. St. Louis Lime & Cement Co., 252 S.W. 65, 71 (Mo. banc 1923). The trial court should be advised of the basis for the objection. Gil more v. Union Construction Co., 439 S.W.2d 763, 767 (Mo.1969); Cassin v. Theodorow, 504 S.W.2d 203, 205[2] (Mo.App.1973). Nevertheless, we are constrained to say that counsel’s reference to the counterclaim as a “smoke screen” was improper. These words constitute an unjustified personal attack on counsel, clashing with the “orderly tone of a properly tried lawsuit.” Lindsey v. P. J. Hamill Transfer Co., 404 S.W.2d 397, 399[2] (Mo.App.1966). Likewise, impugning to opposing counsel the motive of misleading the jury is improper and subject to censure but again, because of the generality of their objection, appellants have waived their right to relief on appeal from the effects of these improprieties.

Appellants would have us rule that the trial court was obliged, with or without objection, to intervene to make sure that the parties have a fair trial and that tactics of this type are not permitted, citing Critcher v. Rudy Fick, Inc., 315 S.W.2d 421 (Mo.1958); Hancock v. Crouch, 267 S.W.2d 36 (Mo.App.1954); and Fitzpatrick v. St. Louis-San Francisco Railway Co., 327 S.W.2d 801, 80 A.L.R.2d 825 (Mo.1959). Neither of these cases is authority for upsetting this judgment on the facts of this case. In Fitzpatrick a new trial was granted because of the presence in the courtroom during argument of a blind man, in a suit for damages for loss of an eye. In Hancock the improper argument was held not sufficient to justify a new trial on that ground alone. Arguments and misconduct of counsel in Critcher, resulting in a reversal, were inexcusable and highly reprehensible. They went far beyond the comparatively mild improprieties in this case. “Unless the misconduct is so serious that no action by the court could undo the damage, the misconduct is waived by failure to object.” 88 C.J.S. Trial § 196e, p. 388. Prompt objection, followed by a reprimand of counsel, and an admonishing of the jury to disregard, might very well have cured or forestalled the improprieties in counsel’s conduct in this case. Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 499[11] (Mo.App.1973).

Finally, appellants seek to excuse their failure to object on the ground that if upon request they had been granted a mistrial they would have been subjected to considerable additional expense because appellants live outstate and their chief witness would have to be brought from Pennsylvania; that this required appellants to face an impossible choice which they should not be compelled to make. This contention is without merit. “A party is not entitled, in such a situation, to gamble on the verdict of the jury, and if he loses then assert in a motion for new trial or on appeal that prejudicial error resulted from the incident.” Gilmore v. Union Construction Co., supra, 439 S.W.2d l.c. 766. This is analogous to the contention sometimes advanced that improprieties not objected to at trial be considered on appeal under the plain error Rule 78.08, which contention is rejected on the ground that the plain error rule cannot be employed as a refuge “for the maladroit or neglectful,” Stevens v. Wetterau Foods, Inc. supra, or a refuge “for counsel who make no record of objection because counsel may consider certain trial situations to be ‘difficult to deal with by objections.’ ” Peterson v. K. C. Pub. Serv. Co., 259 S.W.2d 789, 791[3] (Mo.1953).

Judgment affirmed.

SMITH, C. J., and STOCKARD, Special Judge, concur.


author: WEIER, Judge.

text:
    Virgil Griffin PEARSON, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 36533.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 4, 1975.
    Huck, Kasten & La Beaume, Herbert A. Kasten, Jr., St. Louis, for plaintiff-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for defendant-respondent.
   WEIER, Judge.

Movant has appealed from a denial of his motion to vacate judgment and sentence of life imprisonment entered upon his plea of guilty in a first degree murder case. The state contends that the appeal must be dismissed because of our lack of jurisdiction for the reason that the notice of appeal was not timely filed. We agree.

In this Rule 27.26 proceeding, the court, after a full evidentiary hearing, denied the motion to vacate judgment and sentence on August 1, 1974. No after-trial motions were filed and on September 23, 1974 mov-ant filed notice of appeal. Since no motion for a new trial was filed, the judgment denying the motion became final for purpose of appeal thirty days after it was entered, that is, on August 31, 1974. Rules 28.03 and 81.05(a); State v. Lindner, 498 S.W.2d 754, 755 (Mo. banc 1973).

Notice of appeal must be filed within ten days after the judgment becomes final; otherwise the appellate court does not have jurisdiction to hear the appeal. Rule 81.04; State v. Lindner, supra; Johnson v. State, 521 S.W.2d 479, 480 (Mo.App.1975). Here, no notice of appeal was filed within the ten days following August 31, 1974. Nor was any application made for a special order of this court allowing a late filing of the notice of appeal as authorized by Rule 81.-07(a), and no order was made.

The appeal is dismissed.

DOWD and RENDLEN, JJ., concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Leonard HILL, Appellant.
    No. 9722.
    Missouri Court of Appeals, Springfield District.
    Nov. 7, 1975.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Paul W. Seabaugh, Cable & Seabaugh, Kennett, for appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Leonard Hill was convicted by a jury of arson of insured property [§ 560.-030, RSMo 1969] and his punishment fixed at two years in prison. He contends the trial court erred in denying him a continuance and in failing to give his tendered instructions concerning accomplices’ testimony. We affirm.

The sufficiency of the evidence to support the defendant’s conviction is not questioned. The jury could reasonably find the defendant engaged the services of one Ayers to burn a motorcycle owned by the defendant so that the defendant could collect the insurance on the vehicle. After Ayers and his companion, Hobgood, beat and burned the cycle, the defendant reported it stolen and subsequently was paid the proceeds of the insurance policy insuring the motorcycle.

Defendant’s motion for a continuance because of defendant’s alleged condition of health was orally made before the trial started. According to defense counsel, a Chicago doctor had diagnosed the defendant with having pneumonia shortly before trial and a local physician who saw the defendant the day of the trial opined defendant was ill. The two doctors’ reports were marked as exhibits but never offered by defendant in support of his application.

An application for a continuance of a criminal case is addressed to the sound discretion of the trial court. This discretion is wide in scope, and an appellate court will not interfere unless it clearly appears that such discretion has been abused. State v. Le Beau, 306 S.W.2d 482 (Mo.1957); State v. Bibee, 496 S.W.2d 305 (Mo.App.1973). Determination of whether a defendant is physically able to proceed to trial is within the broad discretion vested in the trial judge. State v. Walters, 29 S.W.2d 89 (Mo.1930). We have reviewed the record in its entirety and find no abuse of discretion in the denial of defendant’s application.

Defendant’s remaining point concerns the failure of the trial court to give his tendered instructions regarding the credibility of his accomplices’ [Ayers and Hob-good] testimony.

The instructions are not set forth in the argument portion of defendant’s brief and are therefore not for review. Rule 84.04(e); State v. Mesmer, 501 S.W.2d 192 (Mo.App.1973). However, we note (1) the court gave a general witness credibility instruction and (2) such a cautionary instruction as sought by defendant was not mandatory prior to MAI-CR when this case was tried and is forbidden under MAI—CR 2.01, note 2. State v. Lang, 515 S.W.2d 507 (Mo.1974).

We find no reversible error.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Bill STRANGE, Appellant.
    No. 9859.
    Missouri Court of Appeals, Springfield District.
    Nov. 7, 1975.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Ted M. Henson, Jr., Poplar Bluff, for appellant.

      Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Bill Strange was found guilty by a Wayne County jury of felonious stealing and sentenced by the court to five years imprisonment. We affirm.

Defendant’s complaint relating to the order in which certain instructions were given is not preserved for appellate review. No objection was lodged concerning the matter nor mention made of such alleged error in defendant’s motion for new trial. Rule 27.20(a); State v. Cook, 491 S.W.2d 324 (Mo.1973); State v. Henderson, 510 S.W.2d 813 (Mo.App.1974). We decline the invitation to consider this point under the plain error rule [Rule 27.20(c)] inasmuch as no “manifest injustice or miscarriage of justice” appears.

Defendant’s second point is directed to the cross-examination of his witness Kim-brow. This point is not preserved for our review because the testimony defendant now complains of was received without objection. State v. Brookshire, 353 S.W.2d 681 (Mo.), cert. denied 371 U.S. 67, 83 S.Ct. 155, 9 L.Ed.2d 119 (1962).

Defendant’s final assignment claims error in the court permitting, over objection, an unendorsed witness to testify as a rebuttal witness for the state. The assignment is without merit since rebuttal witnesses are not required to be endorsed on the information [State v. Hayes, 391 S.W.2d 338 (Mo.1965)] and the scope of rebuttal testimony is within the sound discretion of the trial court. State v. Arrington, 375 S.W.2d 186 (Mo.1964). We find no abuse of discretion.

The information is sufficient, and the verdict is responsive and in proper form. Allocution was granted. Sentence and judgment were lawfully imposed and entered.

The judgment is affirmed.

All concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Edward Jeff NEVILLS, Defendant-Appellant.
    No. 35526.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 12, 1975.

      Daniel P. Reardon, Jr., St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Arthur Friedman, Asst. Circuit At-tys., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant Edward Jeff Nevills was found guilty of first degree robbery with a dangerous and deadly weapon and of first degree murder. He was sentenced to respective consecutive terms of fifteen years and life imprisonment.

The evidence leading to defendant’s conviction showed that when he entered the room of Mr. Cairo Fowler, Fowler and his friend, Shelley Pearson, were present. Defendant grabbed a gun belonging to Pearson. He took thirty-five cents from him and then forced the two men upstairs to Pearson’s apartment where he made Fowler assist him in tying Pearson’s hands and feet. Defendant then placed a pillow over Pearson’s head and shot him through the head. After taking a coat from Fowler and threatening his life if he talked, defendant left. Fowler subsequently told his story to police. When they arrested defendant at his home, the officers noticed a wood burning stove and retrieved from it a smoldering coat which Fowler identified as the coat he gave to defendant.

Defendant’s sole allegation of error on appeal revolves largely around the following interchange which occurred after two prior warnings by the judge that side comments to the jury would not be allowed:

“MR. FRIEDMAN: I object as repetitious. He’s already testified he went into the drawers and he got the watch.
THE COURT: Let’s get along with the case.
MR. RICH: [Defense counsel] Well, Your Honor, a man’s life is in danger, I believe an innocent man’s life is in danger.
THE COURT: I don’t care what you believe. You will conduct this case in an orderly manner and you will not make any more remarks like that or I will hold you in contempt. The jury will determine who is innocent and who is not.
MR. RICH: I am simply trying to find—
THE COURT: I know what you were trying to do and you are not going to do anything like that in this courtroom.
MR. RICH: I am simply trying to find out the facts.
THE COURT: I am not restraining you from finding out the facts but I expect you to do so in an orderly manner.”

No objection was made at that time. In his motion for a new trial, appellant alleged that the trial court erred in “threatening to hold defendant’s attorney in contempt, in front of the jury, without valid reason.” Appellant’s brief on appeal raises this issue, but expands upon the point arguing that appellant was denied a fair trial because the remark prejudiced his case. In addition, his brief calls our attention to various comments by the trial court not mentioned in his motion for a new trial, the cumulative effect of which he alleges denied him a fair trial by obscuring the merits of his case.

The long standing general rule is that: “If a party believes that remarks may prejudice his cause, he should object immediately and afford the court an opportunity to correct any erroneous impression, and the issue is not timely presented when raised for the first time in a motion for new trial.” State v. McCullough, 411 S.W.2d 79, 81[1-3] (Mo.1967); State v. Whitaker, 275 S.W.2d 316, 321[19] (Mo.1955). An appellate court cannot totally reconstruct the atmosphere of a trial and all the intangible factors that might lead counsel to believe that his client has been prejudiced by a remark of the court. It is therefore incumbent upon counsel, who can sense and observe the effect of prejudicial comments, to voice his objections promptly. State v. Hudson, 358 Mo. 424, 215 S.W.2d 441, 443[7] (1948). Such matters, when presented for the first time in a motion for a new trial, have been held not preserved for review. State v. Jones, 462 S.W.2d 715, 717[1] (Mo.1971). Similarly, when contentions not presented to the trial court in a motion for a new trial are presented for the first time in the brief on appeal, nothing has been preserved for review. State v. Stucker, 518 S.W.2d 219, 221[1] (Mo.App.1974); State v. Kinder, 496 S.W.2d 335, 339[3-5] (Mo.App.1973). Situations may arise, however, in which the court’s remarks “were so prejudicial that their effect is considered ineradicable.” State v. Hudson, supra at 442[1-3]. In light of the latter remark, we have reviewed the record to determine whether the court’s warning, in the presence of the jury, that counsel might be held in contempt, or any other remarks, so prejudiced defendant that he was denied a fair trial and hence might be considered manifestly unjust so as to require us to consider them plain error under Rule 27.20(c).

The following principles should be kept in mind. In discharging its duty to maintain order and decorum and to exercise general control over the trial, the court may correct or reprimand counsel when necessary, State v. Pinkston, 333 S.W.2d 63, 66[1—3] (Mo.1960), provided it is done in a manner that does not subject counsel to “contempt or ridicule, or which does not prejudice the party he represents with the jury.” State v. Hudson, supra at 442[6], The court may, in or out of the jury’s presence, punish counsel for contempt if undue prejudice does not result therefrom. State v. Montgomery, 223 S.W.2d 463, 469[18, 19] (Mo.1949); State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774, 780[12-14] (1947).

Defendant’s allegation that the court committed reversible error in threatening counsel with contempt could not be sustained even if properly preserved. No ease compels us to overturn a conviction and remand a case for a new trial solely because an attorney was threatened with contempt of court in the presence of the jury. Rather, all of the circumstances must be considered. The cases cited by appellant support this view. In State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654 (1952) the court threatened to impose “some punishment” and to fine defense counsel for contempt after counsel sought to placate the court by apologizing for an error that he had not committed. The court then ordered counsel to sit in his chair. Animosity, noted the Supreme Court, was reflected in other respects and in other circumstances throughout the record. When combined with the serious improprieties in the closing argument of the state’s attorney, the court’s attitude and remarks were held instrumental in depriving defendant of a fair trial. State v. Montgomery, supra, 251 S.W.2d at 658. In State v. Hicks, 438 S.W.2d 215, 220[11] (Mo.1969), the court found that the prejudicial effect of other errors was intensified by the obvious hostility of the trial court toward defense counsel exhibited during the course of the trial. The constant wrangling between judge and counsel augmented the adverse effect of the other errors. It has been stated, though in dicta, that “the court’s mere remark, in some circumstances, might constitute prejudicial, reversible error”. State v. Montgomery, supra, 223 S.W.2d at 469[18, 19]. We can find no case, however, in which the court’s threat to hold counsel in contempt, standing alone, has led to a reversal.

The trial record in the instant case has been given a thorough consideration. A detailed discussion of appellant’s complaints and the remarks to which they relate would be of no value. The majority of the “remarks” to which we are specifically directed consist of rulings upon objections and statements by the court of reasons for the rulings; or, in certain instances, of proper admonishment of counsel. Neither form of comment constitutes error. State v. Hudson, supra, 215 S.W.2d at 442[4]; State v. Murphy, 111 S.W.2d 132, 135[3, 4] (Mo.1937). Nothing in the record reveals the “constant bickering”, the “open dispute”, or the “obvious rancor” referred to in appellant’s brief. On the contrary, the trial court displayed a commendable patience and permitted great latitude to defense counsel. There is no indication of prejudice, misconduct or bias on the part of the trial judge. See State v. Turner, 320 S.W.2d 579, 583[4—7] (Mo.1959).

Appellant also complains that the trial judge commented upon and interpreted the evidence. To do so would be error. State v. Carter, 451 S.W.2d 340, 345[7] (Mo.1970). The comments to which we are referred, however, were merely repetitions of witnesses’ answers for the benefit of defense counsel who appeared not to have heard them or to have forgotten that the question had been answered. This does not constitute a comment upon or an interpretation of the evidence. A thorough consideration of the trial record discloses nothing that would .sustain the allegations of misconduct prejudicial to defendant or his cause. See generally, State v. Barnholtz, 287 S.W.2d 808, 812[4, 5] (Mo.1956). Application of accepted principles in the light of all the facts and circumstances reveals no improper judicial conduct which would require a reversal and a new trial.

Defendant’s conviction is therefore affirmed.

DOWD and RENDLEN, JJ., concur.