author: PER CURIAM: SEILER, Judge, BARDGETT, Chief Justice,

text:
    STATE of Missouri, Respondent, v. Johnnie TAYLOR, Appellant.
    No. 61269.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.
    Rehearing Denied Dec. 6, 1979.

      Richard Burke, Asst. Public Defender, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

This case was transferred by order of this Court after opinion by the Missouri Court of Appeals, Eastern District. It was argued and submitted here on September 12, 1979. The opinion of Judge George F. Gunn, Jr., in the Court of Appeals is adopted, substantially as originally written, without quotation marks.

Johnnie Taylor was convicted in a trial by jury of robbery in the first degree and was sentenced to fifteen years imprisonment pursuant to the Second Offender Act. He now appeals the conviction, citing as error: (1) the prosecutor’s display of police records during the cross-examination of a defense witness; (2) the prosecutor’s improper attempts to impeach the defense witness; (3) the trial court’s refusal to admit surrebuttal testimony; (4) the refusal to grant a new trial based upon newly discovered evidence. We affirm.

On October 8,1976, at approximately 6:00 P.M., a Kroger store in St. Louis was robbed. The manager of the store testified that three to four armed men entered the premises, forced the guard to give up his weapon, and proceeded to empty the cash registers. One of the robbers leaped on the bottle collection bin and vaulted over a plexi-glass screen into the manager’s office. He ordered the manager and an assistant to leave the office, then emptied the cash drawer. At trial, the manager identified Taylor as one "of the four men involved in the robbery and stated that he had selected a photograph of Taylor from a group of six photos shown to him by police officers on the day after the robbery. Another witness, a customer, also made an in-court identification of Taylor and further testified that he had identified him in a lineup. Both witnesses agreed that only one of the robbers vaulted into the manager’s office area and both testified that Taylor was the nimble offender. An investigating police officer who dusted for fingerprints at the top of the plexi-glass screen recovered a palm and fingerprint from the glass. Neither matched those of Taylor.

Taylor offered Ray Washington, field operation’s coordinator for the Human Development Corporation of St. Louis, as an alibi witness. Mr. Washington testified that Taylor kept an appointment with him at 6:00 P.M. on the night of the robbery at a location some distance away from the Kroger store. In support of this statement Washington presented a photocopy of a page from a 1976 logbook which listed the Taylor appointment. It was developed that Washington kept a log of all appointments in the normal course of business; that the particular entry was recorded in his handwriting; that the photocopy was made on June 6, 1977, when Washington received a request for the information from Taylor’s attorney; and that between June 6 and the trial on July 11, 1977, the original logbook was misplaced. With the exception of one listing on the photocopy page, Washington claimed that he personally recorded the re-" maining entries. One of Washington’s business cards, allegedly given to Taylor with a time, 6:00 P.M., and date, October 8, 1976, written in Washington’s handwriting on the back, was received in evidence. During cross-examination, Mr. Washington admitted that he had been convicted of a felony for which he had been incarcerated but denied knowledge of two other felony convictions alluded to by the prosecutor. He also admitted that he had visited Taylor in jail prior to trial but was very vague about the purpose of the visit and stated that he had not discussed the existence of the log entry which could substantiate Taylor’s alibi.

The State presented rebuttal evidence by a handwriting expert who testified that identical script recorded the appointment information on the back of Washington’s business card and in the logbook. However, in contradiction to Washington’s testimony, the expert concluded that the remaining notations on the photocopied log sheet were by a different author.

During the cross-examination of Washington on his conviction record, the prosecutor produced a Missouri State Highway Patrol record sheet and “Hoover” report. Defense counsel objected, complaining that the prosecutor should not be “flashing things around”; that the documents were insufficient proof of prior convictions and that the prosecutor’s actions would have an improper prejudicial effect on the defendant before the jury. The prosecutor’s response was that the documents were being utilized in good faith. Washington, after first admitting only one prior felony, did on cross-examination admit to a second offense for issuing an insufficient funds check, which he claimed he did not know was a felony. Washington steadfastly denied pleading guilty to a third charge of uttering a forged instrument.

Assigning the trial court’s failure to sustain his objection as error, appellant maintains that the display of the documents, which could not be admitted as evidence of a conviction, nevertheless bolstered in the jury’s mind the possibility that Washington had an extensive police record. We believe that the prosecutor’s inquiries and the trial court’s actions were proper. The Missouri rules of evidence provide that any person who has been convicted of a crime is, notwithstanding, a competent witness. However, his credibility may be challenged by proof of conviction, either by the record or by his own testimony on cross-examination. § 491.050, RSMo 1978. The prosecutor was able to uncover a previously undisclosed conviction, and his examination with regard to the other charge could hardly be described as prejudicial:

“Q. How about in 1969, were you convicted of a plea of guilty in Clayton, Missouri, on a charge of uttering a forged instrument in 1969? Do you recall that?
“A. [Washington] Uttering a forged instrument? You said uttering a forged instrument?
“Q. Yes, a check charge.
“A. I do not recall it.
“Q. You don’t recall that? All right.

[Compare: State v. Amos, 490 S.W.2d 328 (Mo.App.1972).] The State had an absolute right to demonstrate the prior convictions of the witness for the purpose of impeachment, State v. Sullivan, 553 S.W.2d 510 (Mo.App.1977), and the statutory limitations placed upon the prosecutor’s inquiry were not violated. There is no indication that the jury was aware of the contents of the records held by the prosecutor, and it is too speculative to be of merit to suggest that the jury was so aware. Hannibal Sales Co. v. Solter, 551 S.W.2d 936 (Mo.App.1977). But even if the panel was cognizant, the fact that Washington admitted a second conviction mitigates any conceivably detrimental effect. For similar reasons we reject appellant’s second argument regarding the continued cross-examination of witness Washington after he had denied any other prior convictions. As the State’s inquiry revealed only the nature, date, place and sentence associated with each conviction, the admission of such testimony constituted no error. State v. Sullivan, supra. A prosecutor is permitted to further examine a witness who initially fails to disclose all prior convictions. State v. Payton, 559 S.W.2d 551 (Mo.App.1977); State v. Williams, 532 S.W.2d 826 (Mo.App.1975).

Appellant next contends that the court erred in refusing to admit surrebuttal testimony offered to counter the impeachment testimony of the handwriting expert. During the course of direct examination, the expert discussed the possible authorship of certain notations on Washington’s business card. While it was his opinion that the writing on the back of the card was the product of Washington, he could not identify the penman who had crossed out an old address printed on the front of the card and had written in the new address of the Human Development Corporation. Appellant offered to prove the identify of the writer by surrebuttal, but the court sustained the prosecutor’s objection as to relevancy. Clearly, the rejection of irrelevant testimony is a matter which rests within the diseretion of the trial court, as does the admission or exclusion of rebuttal evidence. State v. Kerr, 548 S.W.2d 295 (Mo.App.1977); State v. Huff, 454 S.W.2d 920 (Mo.1970). Only where there is abuse of discretion — and there is no abuse here — may we interfere. Mr. Washington testified that he did not know who wrote on the front of the card and the expert verified that Washington had not. The identity of the true author was simply not at issue.

Finally, appellant charges the trial court with error in failing to grant his motion for new trial based on newly discovered evidence. According to appellant, about a month before his trial, it was revealed to him by his city jail cellmate that an individual known as Charles Scruggs had participated in the Kroger robbery and had recently been committed to the state penitentiary. It was subsequently determined that a Charles Scruggs was serving a ten year sentence in the state penitentiary for robbery. Through further investigation, Scruggs’ fingerprints were compared with those taken from the plexi-glass screen and found to be identical. As the store manager and the identifying customer testified that only one of the four robbers had entered the manager’s office, appellant contends that new evidence as to the identity of the person who' jumped into the manager’s office is “ . . .so material that a different result in a new trial is probable. ...” State v. Harris, 413 S.W.2d 244, 247 (Mo.1967). However, the discovery of Scruggs is of no value to appellant in this appeal. In order to obtain a new trial on the basis of newly discovered evidence, the facts must have come to the knowledge of the accused after the end of the trial. State v. Harris, supra; State v. Cole, 547 S.W.2d 494 (Mo.App.1977). While recognizing the disadvantage of conducting an investigation from a jail cell, we find no error in the trial court’s denial of the motion for a new trial. As appellant was aware of the information prior to trial — at least a month before — but failed to tell his attorney, the data does not meet the prerequisites of newly discovered evidence. State v. Nelson, 532 S.W.2d 806 (Mo.App.1975). Three other requirements of State v. Harris that a movant must satisfy in order to obtain a new trial on the basis of newly discovered evidence are:

1) the fact that the evidence did not come to movant’s knowledge until after trial must not be owing to any want of due diligence on his part;
2) the evidence is so material that it would probably produce a different result on a new trial; and
3) the evidence is not cumulative only or merely of an impeaching nature.

We feel that appellant does not meet these requirements. Appellant had the key piece of information which easily led to the fitting together of the puzzle once this key was revealed. His due diligence in disclosing this link would have expedited the identification of the fingerprints. Secondly, the jury clearly was made aware of the fact that the fingerprints could not be attributed to appellant, but still convicted him on the basis of the identification of him by two witnesses. Thus, it is debatable whether the inclusion of the name of Charles Scruggs in evidence at trial or in a new trial would make a different result probable. Finally, the evidence at issue is of an impeaching nature in that it impeaches the identification by two witnesses of appellant as one of the robbers and as the one who scaled the plexi-glass office.

The judgment is affirmed.

DONNELLY, RENDLEN, WELLIVER, MORGAN and HIGGINS, JJ., concur.

BARDGETT, C. J., and SEILER, J., dissent in separate dissenting opinions filed.

SEILER, Judge,

dissenting.

I respectfully dissent. In my opinion we should order a new trial on the basis of newly discovered evidence. Because this all depends on certain facts and circumstances, they must first be set forth.

The state’s case against defendant depended entirely on the identification of defendant as one of the robbers by the store manager and a customer. There was no physical evidence linking defendant to the crime. The manager said his observation of the robber’s face was only 5 to 10 seconds. The customer said his observation was a minute or two. The two witnesses were not in agreement as to the number of robbers — one said there were three, the other that there were four. Both were positive that defendant was the man who jumped, vaulted, or climbed over the plexiglass into the manager’s office, that he was wearing sunglasses and a knit skull cap pulled down to his ears, and that there was another of the robbers standing near the office enclosure, dressed the same way — “dressed identical”, the manager put it. The two witnesses disagreed as to whether the sunglasses were light or dark colored. Another store employee, however, who was in the office enclosure with the manager and also saw the man jump into the office, was unable to identify the defendant as the man. The manager identified a picture of the defendant from a group of six photographs which the police showed him the day following the robbery, but the manager did not identify anybody in a lineup. The customer mentioned above picked defendant out of a lineup held 16 days after the robbery. Unquestionably, the foregoing is sufficient for the state to make a submissive case against defendant, but it is far from being airtight on identification. It leaves room for a defendant to convince a jury it was a case of mistaken identity and that he was somewhere else at the critical time.

Central to the issue, under the facts of this case, was the unquestionable fact that whoever it was who scaled the plexiglass wall or partition left a palm print and fingerprint on the glass when he did so. The witnesses were in general agreement on this.

There was a good deal of testimony about the fingerprint and palm print in the state’s case. One state witness was Officer William Hetzel, a fingerprint investigator. He recovered an identifiable fingerprint from the plexiglass and delivered the print to the identification section. The identification section said it was not the fingerprint of the defendant, that it was that of some unknown person.

The prosecution took pains to establish that the plexiglass was accessible to every employee and customer of the store and that there was no practical way to eliminate the possibility that the fingerprint might have been made by one of them. One prosecution witness testified that even if a man did put his hand on the glass in vaulting or jumping over it, he would not necessarily leave prints on the plexiglass. The state thus developed the possibility that the unknown fingerprint might be that of some innocent employee, customer or bystander — that it might not have been left by one of the robbers at all and might even have been left there on some other day. This set the stage for the jury to dismiss as inconclusive and of no major consequence the fact that the fingerprint on the plexiglass did not match that of the man the witnesses said was the one who jumped or vaulted over the glass into the manager’s office. The fingerprint evidence viewed in this light was not at all inconsistent with defendant’s guilt.

Then, just before the state rested, the court read to the jury a stipulation which the parties had entered into as follows:

“It is stipulated to and agreed by the parties that a palm print was discovered and lifted from the exterior plexiglass enclosure at the Kroger store located at 1700 South Jefferson on the east side of said enclosure and that a fingerprint was found on the interior plexiglass surface at the same place.
“It is further stipulated and agreed that the palm print was not of sufficient clarity to be identified, but that the fingerprint was identifiable; that it was compared with the fingerprints of the defendant, Johnnie Taylor, and found not to be the fingerprint of the defendant.”

It is to be noted that this stipulation does not commit the state to anything about the identification of the fingerprint other than that it was not that of the defendant.

As stated in the principal opinion, the defendant attempted to establish by the witness, Ray Washington, that defendant was keeping a business appointment with Washington at a location some distance away from the Kroger store at the hour of the robbery. The testimony of Washington, although also far from being airtight,-was sufficient to make a submissible issue for the jury and the court properly gave the MAI-CR alibi instruction, 3.22, as requested by defendant.

As would be expected, both sides argued the identification issue, the fingerprint evidence and the alibi testimony to the jury. In particular defendant’s counsel argued the fingerprint stipulation and that the evidence from the police was that the fingerprint was not defendant’s, that the robber “left his calling card” but didn’t get caught, that the state had stopped looking for the real robber and were trying to convince the jury that they had caught him in the defendant. In closing argument the state responded to the fingerprint argument by pointing out that the fingerprint technician did not say the fingerprint was that of the robber, that the man who vaulted over the glass did not necessarily leave a print in so doing, that the fingerprint technician was “very honest” in his testimony.

As we know, the jury resolved the question of identification against defendant. On motion for new trial the defendant offered to show through the St. Louis police records that the print on the plexiglass was that of Charles Scruggs, a convicted felon, who had an identification number with the St. Louis police department, the Missouri highway patrol and the Federal Bureau of Investigation. Counsel further offered to show that Scruggs is currently serving a 10 year sentence in the penitentiary at Jefferson City for robbery. During oral argument before us the parties advised the Court that Scruggs is now confined in the penitentiary in Jefferson City; that the penitentiary records show that he was received at the penitentiary on April 28,1977; that he had been released from the penitentiary from an earlier confinement on May 4, 1976. Two facts follow therefrom: Scruggs had to be a participant in the Kroger robbery, October 8, 1976, and he had a prior record.

These facts, in my opinion, would have had a significant impact on the jury and could well have tipped the scales in defendant’s favor. It would have eliminated the state’s attempt to explain away the fingerprint evidence on the premise that it was that of some innocent person — some customer, an employee or some other third person. So long as the state had this explanation open (and it was so argued by the state to the jury in the closing argument) the jury did not have to face up to the fact that if the man who left the fingerprint in going over the glass was the robber, it could not have been defendant. Had the defendant been able to show, however, that the fingerprint belonged to Scruggs, a convicted felon, with a previous record with the St. Louis police department, who was then serving a term in the state penitentiary for robbery, it would have been apparent at once that the fingerprint was not left accidentally by some innocent person, but that it truly was the fingerprint of the man who vaulted over the plexiglass into the manager’s office and so could not have been the defendant. This would have seriously impaired the state’s entire case, which as earlier stated, depended on a less than airtight identification by the manager and the customer that it was defendant who vaulted over the glass and into the manager’s cubicle. At the same time it would have strengthened the likelihood that the witness, Washington, was correct and credible when he testified that defendant was keeping a business appointment with him at the time in question, not robbing the Kroger store.

This newly discovered evidence is not mere impeachment. It goes directly to the principal issue in the case: the true identity of the man who entered the plexiglass enclosure in the Kroger store on October 8, 1976, a material matter of the highest concern. It is not far-fetched or extravagant to state that were this evidence before a jury in a new trial that a different result is probable. As to what is meant by “probable” or “probably” with reference to the new evidence producing an opposite result on a new trial, the Court said in State v. Jennings, 326 Mo. 1085, 34 S.W.2d 50, 54-55 (1931):

“To be given thoughtful consideration, such evidence must be material. What then is meant by the word probably as used in its connection with the rule mentioned? We think and hold that it means nothing more than that the newly discovered evidence submitted was credible and reasonably sufficient to produce a different verdict on a retrial; or, that it must be credible and reasonably sufficient to raise a substantial doubt in the mind of a reasonable person as to the result in the event of a new trial. It is said on this subject in State v. Bailey, 94 Mo. 311, loc. cit. 316, 7 S.W. 425, 427: ‘Of course, if it be clear that the new evidence will have no effect upon another verdict, the motion for a new trial should be denied; but, if it be doubtful how the evidence would affect the result, the motion should be granted. The court, in such cases, should not attempt to pronounce for the jury in advance, but should give them an opportunity to pass upon the evidence, if competent and material, and to determine its weight for themselves.’ ”

Defendant’s counsel filed a motion for new trial, setting forth the ground of newly discovered evidence and complied with Rule 78.05 by accompanying it with defendant’s affidavit setting forth the facts. No coun-. ter-affidavits were filed and no objections were made to the affidavit. “In such posture the affidavit may be considered and is to be accorded its natural probative value.” Bailey v. Hilleman, 566 S.W.2d 504, 506 (Mo.App.1978); McCartney v. Taylor Aircraft Co., 140 S.W.2d 95, 99 (Mo.App.1940). The state did not and does not now contest the fact that the fingerprint is actually that of Charles Scruggs, the man now serving time in the state penitentiary, for robbery, nor is there any denial or doubt that defense counsel obtained the information on Scruggs from the Department of Corrections, the penitentiary records and the St. Louis police department or that the information obtained is accurate.

The newly discovered evidence here is so strong that I believe defendant’s failure earlier to tell his lawyer about what he had heard as to one Charles Struggs being involved in the robbery should not bar relief. I do not believe the failure was deliberate or devious. It probably was because defendant did not trust the man who gave him the information, because that same man had told the police defendant was one of the robbers, which, of course, defendant insists he was not. In addition, defendant was confined in jail at the time and had no way of knowing that Struggs was actually Scruggs and that the latter had left his fingerprint on the glass enclosure. Defendant was in no position at that point to appreciate what hindsight shows the name would lead to. His not saying anything about it should not be treated as though he were in full possession of the true facts and said nothing.

Otherwise defendant is being held to a lack of due diligence based on what hindsight reveals. He “had the key piece of information which easily led to the fitting together of this puzzle once this key was revealed”, says the per curiam, and “[h]is due diligence in disclosing this link would have expedited the identification of the fingerprints.” Based on hindsight the same could be said of the prosecution. Scruggs had a previous record with the St. Louis police department and his fingerprints were on file there. The police, also, therefore, had a “key piece of information.” Their own files would have shown at any time whose fingerprint it was. But the police did not realize it, anymore than did the defendant as to his information. It would not be fair to charge the police or prosecution with lack of due diligence in furnishing this material evidence to defendant as constituting a failure to disclose on their part, nor is it fair to charge the defendant with lack of due diligence in not sooner informing his lawyer of what he had heard about Struggs (who turned out to be Scruggs).

It is true State v. Harris, 413 S.W.2d 244 (Mo.1967) lists four requirements for newly discovered evidence. As best I can ascertain, the requisites for a new trial on the basis of newly discovered evidence were first stated by this Court in State v. McLaughlin, 27 Mo. 111, 112 (1858). The rationale was that “Applications for new trials on the ground of evidence discovered after the trial are entertained with reluctance because of the temptation to parties smarting under defeat to make them and on account of the facility with which plausible grounds are manufactured.” The court wanted to protect itself from imposition.

But the claim here is not a manufactured one and by its assertion the court is not being imposed upon. After all, the really important part of the newly discovered evidence — the fact that the fingerprint was that of Charles Scruggs, a convicted felon, who at the time of the trial was serving time in the penitentiary for robbery — is not in dispute. This is not a case where there is something shady or manufactured about the new evidence or where improper pressure has been brought on proposed witnesses. The evidence in question is open and above board, and in my opinion the per curiam does not correctly evaluate its true significance. As pointed out earlier, the fact that in the original trial the jury was made aware that the fingerprint was not that of the defendant, but nevertheless convicted him on the basis of the identification by two witnesses, does not mean that in a second trial where the jury would know that the fingerprint came from a convicted robber that the jury would do the same. On the contrary, it is likely they would not. The state would not be able to explain away the fingerprint as having been made innocently or legitimately (as it did in the first trial). The jury would realize that if the man who made the fingerprint was the one who vaulted into the manager’s enclosure (and there is no other way Scruggs’ fingerprint would have been there) it could not have been the defendant, and that the two witnesses were simply mistaken in their identification.

No doubt both were honest and sincere in their testimony, but the fact remains that they observed the man whom they identified as the defendant for only a short time (5 to 10 seconds was all the manager saw his face); the man was wearing sunglasses and had a knit skull cap pulled down to his ears, another robber standing near the office enclosure was dressed the same way and also wearing sunglasses, and a third eyewitness, another employee of the Kroger store, in the same place as the manager, was unable to identify defendant as being the man at all. Realizing these shortcomings in the identification testimony and knowing that Scruggs, a convicted robber, left the fingerprint, and with the testimony that defendant was at a job interview elsewhere at the same time, the jury could easily conclude the manager and the customer were mistaken in their identification.

We are not being fair or just when we do not give defendant a new trial under the unusual circumstances of this case. There is plain error here. I would reverse and remand for a new trial.

BARDGETT, Chief Justice,

dissenting.

I respectfully dissent and concur in the dissenting opinion of Seiler, J. I file this opinion in order to set forth the following. As shown by both the principal and dissenting opinions, the stark realities of this case are that defendant was not only identified as a robber but the eyewitness identification included as a key element that the person the eyewitnesses were identifying was the one person who jumped or hurdled over a certain plexiglass shield. In connection with this act on the part of the robber, the eyewitnesses showed the police precisely where he went over that plexiglass shield and, pursuant to that information, the police lifted a hand and thumb print from the plexiglass. This hand and thumb print were not on a single side of the glass but rather the hand print was on one side with the thumb on the other. The fingerprint evidence then became extremely important because, as a matter of credibility, a fingerprint is a rather immutable type of evidence. It does not depend upon the vagaries of memory or eyesight and is, I believe, accepted as one of the strongest items of evidence to show that a particular person was in a particular place. Eyewitness identification has varying degrees of credibility, but so far as I know the fingerprints of a person are exclusive to him.

In this case, it is not only the absence of the defendant’s fingerprints from the plates on the plexiglass where the person who came over the plexiglass would have left prints, but, additionally, the presently identified print of a person who is a known felon.

The evidence with respect to the prints on the glass is admitted by the State to be true.

All human systems are fallible and our system of justice is designed with that in mind and, although cumbersome at times, has for its purpose the conviction of the guilty and the acquittal of the not guilty. Even with all the safeguards that are built into the system, it occurs from time to time that an innocent person is imprisoned. That is one of the reasons why Rule 27.20(c) permits plain errors affecting substantial rights to be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.

The person whose print was identified on the plexiglass shield was at the time of oral argument in this case confined in the Missouri State Penitentiary. I, of course, cannot predict whether the fact that he is a felon would be admissible in evidence during a retrial of this case even if the defense called him as a witness. What probably would happen, however, is that the defense would either take his deposition or call him to testify on retrial. He would be called upon to admit or deny that he was at this store on the day of the robbery or if he was ever in the store. He may or may not have an explanation as to how his thumb print got onto one side of the plexiglass shield. I regard the print of this identified felon being on the plexiglass at the place where the robber was seen by the eyewitnesses to have come over the glass, which print was lifted promptly by the police, to be entirely too significant and strong to permit the present conviction to stand.

In my opinion the failure to grant a new trial so as to permit the introduction of the additional evidence concerning the fingerprint as now identified was an abuse of discretion. I am firmly convinced that a miscarriage of justice has resulted from the failure to grant a new trial in this case. I would therefore reverse and remand this cause for a new trial.

      . The name first revealed to defendant by his cellmate was Charles Struggs, but further inquiry brought forth Charles Scruggs.

      . An appellate court can reverse a trial court on this point and order a new trial accordingly. While it does not occur often, it has been done a number of times. See, for example, State v. Jennings, 326 Mo. 1085, 34 S.W.2d 50, 54 (1931) where the Court said:
      “[M]any cases reported in the state and federal reports demonstrate that appellate courts reverse, remand, and order new trials [on the ground of newly discovered evidence], notwithstanding the statement that such action is within the sound discretion of the trial court.”
      See also State v. Butler, 501 S.W.2d 61 (Mo. 1973); State v. McClain, 498 S.W.2d 798 (Mo. banc 1973); State v. Kyle, 259 Mo. 401, 168 S.W. 681 (1914); State v. Bailey, 94 Mo. 311, T S.W. 425 (1887); State v. Wheeler, 94 Mo. 252, 7 S.W. 103 (1887); State v. Murray, 91 Mo. 95, 3 S.W. 397 (1887); State v. Koonce, 504 S.W.2d 227 (Mo.App.1973); State v. Platt, 496 S.W.2d 878 (Mo.App.1973).
      In all these cases the appellate court ordered a new trial on newly discovered evidence where the trial court had refused to do so.

      . While eyewitness identification testimony is widely used, lawyers and judges know that much of it is unreliable. As Justice Felix Frankfurter has said: “The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials.” F. Frankfurter, The Case of Sacco and Vanzetti, at 30 (1927). For a collection of authors who have compiled case histories of miscarriages of justice resulting from faulty identifications see Note: Eyewitness Identification, 29 Stanford L.Rev. 969 (1977). “Although improper suggestive procedures used by law enforcement officials in procuring identification evidence account for many mistaken identifications, the great majority probably are attributable both to the inherent unreliability of human perception and memory and to human susceptibility to unintentional, and often quite subtle, suggestive influences. That most juries, and even some judges, are unaware of the sources of error in eyewitness testimony and consequently place undue faith in its veracity seriously aggravates this problem . . . Note, Eyewitness Identification, at 970.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    Joseph L. WALLACE, Movant, v. STATE of Missouri, Respondent.
    No. 39882.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 25, 1979.
    Rehearing Denied Oct. 25, 1979.
    Neal P. Murphy, St. Louis, for movant.
    John D. Ashcroft, Atty. Gen., Richard Engel, Asst. Atty. Gen., Jefferson City, for respondent.
   CRIST, Judge.

Movant incurred a jury conviction for first degree murder and his punishment assessed at life imprisonment. His appeal was unavailing (State v. Wallace, 504 S.W.2d 67 (Mo.1973)), as was his first Rule 27.26 motion which was denied without an evidentiary hearing. Wallace v. State, 556 S.W.2d 471 (Mo.App.1977). Movant’s second Rule 27.26 motion, also denied without an evidentiary hearing, provides the subject of this appeal. We affirm.

Movant has alleged new matters as grounds for relief in his second Rule 27.26 motion, which matters were not addressed in his first unsuccessful motion, to-wit:

(1) “Movant was denied full effective assistance of counsel in that of the fact that counsel neglected to subpoena a dentist as an expert witness for the defense.”
(2) “Movant was denied the effective assistance of counsel and due process of law in that of the fact that a juvenile served on his lineup.”
(3) “Movant was denied equal protection of the law in that in effect stemmed from the wiretapping of telephones.”

Rule 27.26(c) requires inclusion of every ground known to the movant for vacating, setting aside or correcting his conviction and sentence. Rule 27.26(d) specifically prohibits a sentencing court from entertaining a second or successive Rule 27.26 motion where the grounds presented are new but could have been raised in the prior motion pursuant to Rule 27.26(c). Rule 27.26(d) further states that the movant must shoulder the burden of proof to establish that any new ground raised in his second motion could not have been raised in his prior motion. Johnson v. State, 472 S.W.2d 433, 435 (Mo. 1971).

Movant’s enunciated reasons for his failure to raise these new grounds in his first motion were,

“(a) Ineffective assistance of counsel; I was not aware of these grounds as the federal court decisions involved in this matter were determined after the instant case was decided, (b) Newly discovered evidence!!!”

Movant’s second motion does not acknowledge the relationship between the federal decisions and his newly alleged grounds. Movant’s bare allegation that he lacked the requisite legal expertise to apprise him of the significance of potential error is an insufficient basis upon which to grant his motion. Careaga v. State, 552 S.W.2d 25, 27 (Mo.App.1977); Evans v. State, 545 S.W.2d 674, 675 (Mo.App.1976). Likewise, newly discovered evidence will not afford movant grounds for relief. Hatfield v. State, 529 S.W.2d 180, 181 (Mo.App.1975).

Accordingly, the judgment appealed from stands affirmed.

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


author: PRITCHARD, Judge.

text:
    Chester Lee BOWEN, Appellant, v. Fred LOYD, Executor of the Estate of Goldie M. Woodard, Respondent.
    No. 30432.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Rehearing Denied Oct. 29, 1979.

      Lynn M. Ewing, Jr., and Christopher Hoberoek, Nevada, for appellant; Ewing, Ewing, Carter, McBeth & Smith, Nevada, of counsel.
    Fred M. Teel and Everett E. Teel, Nevada, for respondent; Teel & Teel, Nevada, Eddison.Kaderly, Lamar, of counsel.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

This is a suit in equity to compel respondent executor to execute a deed to certain real estate in Nevada, Vernon County, Missouri, in accordance with the terms of an alleged oral contract to convey to appellant by testatrix and her husband, who predeceased her. The issue is whether testatrix, owning title with her deceased husband, A. K. Woodard, joined with him in the alleged oral contract to convey so as to be bound thereby.

The facts are these: Prior to 1967, A. K. Woodard operated a carburetor and electric shop in Nevada, Missouri. It was located on real estate owned by him and his wife, Goldie M., as tenants by the entirety. In 1967, because of health conditions, A. K. sold the business to one Wesley Litten who financed his purchase with an S.B.A. loan procured through the Citizens State Bank in Nevada. A. K. told Litten at the time that if he would keep the business in the building and run it and pay him and his wife rent on the building so that they would have an income as long as they lived, Litten could buy their building, “Well, like a dollar to the estate and it would be mine, supposed to of been a contract to that effect, but I never did get it.” Goldie had nothing to do with any part of the business that Litten knew about, and did not participate in the negotiations or agreements between him and A. K.

In early 1970, Litten’s business closed and he defaulted in the S.B.A. guaranteed note to the Citizens State Bank. Mr. James H. Denman, president of that bank, testified-that before the sale to Litten, A. K. came in and talked about selling the business. A. K. told him that he had a good, going business which he wanted to sell to somebody who would continue it and let him work when he wanted to, but on account of his health he was going to have to get out of it. At the time of the conversation, A. K. had Litten in mind and had talked to him about it. A. K. said “that if somebody came into it he was going to make it possible that he would own the whole thing, real estate and all, when he died. Q. When he and Mrs. Woodard died? [Objection; overruled.] A. He said whichever went first, he didn’t know, but he was concerned about his health and he said anybody would be fixed up to where there was no problem.” There was a lengthy discussion about the real estate, and Mr. Denman tried to get A. K. to deed it so more could be loaned on the sale, but A. K. said that was not what he was interested in, “he was interested in income. We couldn’t touch the real estate the way he did it and I tried to counsel him, I asked him, I said ‘well, at least contract to where we could take an assignment’ and there was no way you were going to change A. K.’s mind, he had his mind made up how he wanted to do it.” After Litten’s default, A. K. was quite interested because the bank had all of the equipment and everything tied up with a government insured loan and A. K. had a second (security interest) behind the government. A. K. was trying to get someone to purchase the property because he was still interested as before — income and when he wanted to, a place to work. At one time, perhaps, A. K. brought in appellant with him to the bank, but Mr. Denman had no recollection of Goldie being at the bank during these times.

Appellant’s wife, Melba Bowen, who was not a party to the contract and thus was not barred from testifying under the dead man’s statute, related these facts: Appellant acquired in early 1970 all of the assets and liabilities of the business from Wesley Litten, and assumed the loan at the Citizens State Bank, which loan was subsequently paid off by appellant. Melba was present in the office portion of the business along with appellant, A. K. and Goldie, when discussions were had as to appellant’s taking over of the business from Litten. Melba testified: “Q. If you will limit your answer in describing the agreement, to what you heard in the presence of A. K. Woodard and Goldie Woodard concerning the agreement, I would appreciate it. A. An evening prior to Lee taking over A. K. asked him to come up to the shop after his working hours and look the inventory over and talk over the business and I went down and Mr. and Mrs. Woodard were present. Lee and A. K. looked ever thing over and then the four of us se t down in the office area and Lee and A. K. discussed how this would be handled and A. K. was wanting Goldie to be protected so he said: ‘Lee, if you will pay an amount as rent, $125.00, as long as we both shall live, then the property will be yours.’ He said he had offered this to other people, the same deal, because he wanted it to be set up for the lifetime of either of them because he had no relatives and he wanted it to be handled in this manner. Q. Was Mrs. Woodard present? A. She was present. Q. Did she hear the conversation? A. Yes. The four of us were sitting in the office area. Q. Did she make any objection? A. Not at that time that I heard, nothing was said. A. K. and Lee were talking. Q. She did hear it and did understand it? A. Yes.” On another occasion at the Citizens State Bank, Goldie was present when the same agreement was discussed. A. K., individually, told Howard Conway that he had given appellant the same deal as he had with Litten — that appellant would pay so much per month for his or her lifetime, then the property would become appellant’s. Up to the time of Goldie’s death, $10,125.00 was paid by appellant to A. K. and Goldie by monthly checks, $125.00 each, “as rent.” After her death, which was apparently in January, 1977, upon the advice of counsel, the $125.00 monthly checks were continued payable to “Woodard Estate” upon Melba’s understanding that the payments were to be held in escrow by the Citizens State Bank. Fourteen of these payments were made and endorsed by the bank “credited to the payee thereof.” These payments totalled $1,750.00 through April 1, 1978. Appellant made repairs on the building totalling $1,021.87, but did not pay the taxes or insurance on it, because that was the way A. K. wanted it — “for her protection should the building burn or something.” On one occasion, the Woo-dards repaired the roof which was covered by insurance. The property was appraised in Goldie’s estate at $25,000.00.

A. K. worked for appellant' from May through November, 1970, until he could draw his social security. This was part of the agreement. Apparently, in the latter part of 1970, appellant discussed the situation with attorney Robert Middleton who advised him that the agreement should be reduced to writing. Documents were prepared by Middleton and delivered by him to appellant and A. K. at the shop, A. K. then said he was going to take the agreement home and sign it. The documents, however, were never executed by either A. K. or Goldie, as far as the record shows. Middleton’s office notes indicate that the document presented to A. K. was a warranty deed reserving a life estate to the longer liver of him and Goldie, and reserving $125.00 per month rents and profits to them, and an amortization of the taxes for the preceding year. Bob Gibson, at trial, testified that A. K. was concerned that if the business did not continue, as happened with Litten, that he would have to come back and take it over. This may account for the nonexecution of the warranty deed to appellant, that deed not being conditioned on the continuation of the business.

Prior to appellant’s purchase of the business, A. K. offered the same proposition of monthly payments for the lifetimes of A. K. and Goldie with Kenneth Hartzfeld, after which the property would be his.

A. K. died in late 1971. On January 12, 1972, Goldie came into the Citizens State Bank with her brother. She was inquiring if the bank had in their records any signed deed or contract that would indicate that the property had been or intended to be deeded to either Litten or appellant. She was permitted entry into the safe deposit box to look for such papers, and her indication to Senior Vice President Chester Miller afterwards was that no papers were found.

At the trial Bob Gibson, a witness for appellant, testified on cross-examination that as far as he knew, Goldie never entered into any agreement with reference to the real estate — she was there with A. K., Mrs. Bowen and appellant at the place of business, but Bob did not overhear what was then said. On motion for new trial his additional testimony was taken. After the trial, in talking with his wife and “Stubby” Wilson, Bob recalled that after appellant and his wife left, Goldie and Bob were sitting in the garage drinking coffee or coke, and A. K. then told Goldie about what arrangements they had made with appellant, and she said, “ ‘Well, Woody whatever you think is best I’ll go along with it.’ One thing led to another and he says: ‘Well, I made the same deal with Mr. Bowen that I had with Mr. Litten.’ ”

The trial court found that appellant’s evidence was not sufficient to bind Goldie on the contract to transfer the real estate to appellant upon her death. “It is true that Mrs. Woodard was present on two occasions when A. K. announced the terms of the contract, i. e., that the real estate was to be conveyed to Lee upon the death of both A. K. and Mrs. Woodard, if Lee had continued to pay rent of $125 per month up to that time. Mrs. Woodard made no comment on either occasion. However, a written contract was contemplated by all the parties, and Mrs. Woodard would naturally suppose that she would have a later chance to consider the deal. There was no finality to it. I do not believe her silence on these occasions has the effect of binding her interest in this real estate. As to A. K.’s agency for Mrs. Woodard in making the agreement: Actually, this has not been contended by the plaintiff but the Court has considered it, anyway. There is no evidence at all that A. K; was expressly or impliedly empowered by Mrs. Woodard to bind her in this contract. Agency of husband for wife cannot be inferred from the marital relationship.” Other facts and conclusions of law were found in favor of appellant: The actual existence of the contract between A. K. and appellant; appellant’s full performance of his obligations under the contract; and that the contract was definite enough. These latter findings are fully satisfied by the evidence as between A. K. and appellant, and under the factual elements to be established in order to enforce an oral contract set forth in Burgess v. Wright, 565 S.W.2d 854, 856[2, 3] (Mo.App.1978).

It is true, as the trial court noted, that the agency of the husband for the wife cannot be inferred from the marital relationship (alone). Henry v. Sneed, 99 Mo. 407, 12 S.W. 663, 667 (1889); Link v. Cox, 529 S.W.2d 189, 191[4-6] (Mo.App.1975), where it was sought to connect wives to the fraudulent actions of husbands, the court saying: “But there was no evidence that either wife was aware of such source [of salaries paid them] or knew that the money was the product of their husband’s fraud. The agency of the husband for the wife cannot be established merely by their marriage, but may be shown by circumstantial evidence. Ethridge v. Perryman, 363 S.W.2d 696 (Mo.1963) and Murphy v. Olds, 508 S.W.2d 249 (Mo.App.1974).”

The inquiry here is whether there is sufficient circumstantial evidence to show that A. K. acted for both himself and Goldie in making the business arrangement with appellant. It is clear from the whole record that A. K. alone managed the business. In fact, the further evidence is that Goldie rarely came to the carburetor and electrical shop. When he dealt with Litten, he did so alone; and when he approached Hartzfeld and offered him the same proposition as he had with Litten. Clearly, also, the propositions offered by A. K. to Litten, Hartzfeld and indeed to appellant, had reference to a joint benefit for their lifetimes of an income from the sale of the property. Goldie was present when the matters were discussed in the shop office with appellant and his wife — that is undisputed evidence. The question now becomes, although Goldie then made no comment, did her subsequent conduct and other circumstances show her acquiescence in the business arrangement so as to create an estoppel against her and bind her to A. K.’s dealings as her agent?

The evidence shows that Goldie was present on two occasions when the oral arrangement for the sale of the real estate conditioned upon a monthly payment for A. K.’s life and her life. She did not remonstrate, although she was bound to know that she-held title to the property with A. K. as tenants by the entirety. Thus, there is some admission by her silence, she being present, and being interested, that she assented to the arrangement [see Nelson v. Nelson, 90 Mo. 460, 2 S.W. 413, 414 (1886), where statements made by a parent intestate in the presence of a child as to advancements to the child not then controverted by the child, were held admissible], although as stated in Kelso v. C. B. K. Agronomics, Inc., 510 S.W.2d 709, 729[23, 24] (Mo.App.1974), such evidence should be received with caution and there must be a showing that there was a duty to speak. Other than Goldie’s entirety interest in the property, there was here no further showing that she was under a duty to speak. But the circumstances do not there end. Thereafter, appellant remained in possession of the property, and pursuant to the oral contract, made payments to A. K. during his lifetime, and after his death, to Goldie alone. She accepted those payments and the only evidence is that those payments were referable to the contract, payable “as rent”, as stipulated by A. K. in Goldie’s presence.

In the case of Hoffmann v. Hoffmann’s Ex’r., 126 Mo. 486, 29 S.W. 603 (1895), which was a suit by a widow upon an antenuptial contract with her deceased husband, it was sought to elicit from the widow’s witness detailed statements made in her presence by the widow’s former husband during his last sickness, ruled inadmissible. The court said, page 605: “That statements made by a third party in the presence and hearing of a party to a suit, and against his interest, and which were not disputed at the time, are, as a general rule, admissible against him, is not denied. -Silence in such cases raises an inference from which acquiescence may be assumed, provided the ‘statement is one which calls for action or reply.’ (Citing authority and cases.) Admissions or declarations by a husband or wife in the presence of the other stand upon an entirely different footing. Generally speaking, at common law the husband and wife are not competent to testify against each other in contests with third persons. Much less could mere statements of one be used as evidence against the other. Neither, therefore, would one stand under obligation to dispute a statement made by the other, unless the circumstances were such as would create an estoppel to deny it. Besides, the very relation of husband and wife is such as should deter one from disputing, in the presence of strangers, an assertion made by the other.” [Italics added.] See also McCarty v. Bishop, 231 Mo.App. 604, 102 S.W.2d 126, 129[6—9] (1937), alluding to exceptions to the general rule of evidence excluding testimony of silent acquiescence in the statements of one spouse to others in the presence of the other.

At 41 C.J.S. Husband and Wife § 70 p. 548, this statement is made: “While the agency of the husband for the wife is not to be implied from the fact that he may have undertaken an enterprise with a view to her benefit as well as his own, yet when a husband assumes to act for his wife and when his action naturally tends to accomplish her known wishes it needs but little " evidence to warrant an inference that the action was authorized by her. Slight evidence of the agency of the husband for the wife is sufficient to charge her where she receives, retains, and enjoys the benefit of the contract.” [Italics added.] See Vaughn v. Great American Insurance Company, 390 S.W.2d 622, 627[10, 11] (Mo.App.1965), where the issue was whether the husband was acting as his wife’s agent in cancelling an insurance policy, the court saying: “We agree that neither husband nor wife has the power to act as the other’s agent merely by virtue of the marital relation, but the fact that a husband is habitually permitted by the wife to attend to some of her business affairs — which to us is the sense of Mrs. Vaughn’s testimony — furnishes some basis for finding that he is authorized to attend to all of her business affairs. Restatement (Second), Agency § 22, comment b, p. 94.” Here, from the totality of the evidence, it is clear that A. K. attended to all of their business, justifying an inference that he was authorized to act for Goldie in arranging the sale of the business and property for their joint benefit.

But, as noted, this is not all. In reliance upon the rather informal arrangement, appellant entered into possession of the property, made repairs thereon and paid the $125.00 per month to A. K. during his lifetime, and then to Goldie for her lifetime. In this situation she would have been es-topped to deny the agency of A. K. for her, and would have been deemed to have ratified the arrangement made by him for their joint benefit, and respondent, standing in her place as executor, is likewise estopped. See 41 C.J.S. Husband and Wife § 296 p. 781, and Ethridge v. Perryman, supra, where a mistake of a husband was held attributable to the wife, in conveyance of entirety property, upon the theory that he acted as her agent, the court saying 363 S.W.2d at page 702. “There is nothing to indicate that she did not benefit from the loan. In these circumstances she is es-topped to deny his authority to act as her agent in her behalf, and she is chargeable with her husband’s knowledge and understanding of the true contract; her husband’s mistake is her mistake and she is bound thereby and must assume full responsibility therefor. (Citing cases.)” After A. K.’s death, the evidence shows that Goldie went to the Citizens State Bank to inquire and search for a written instrument that would indicate the property had been intended to be deeded to either Litten or appellant. Upon finding none, there is no evidence to show that she remonstrated, but contrarily she continued to accept and retain appellant’s monthly payments. This is further evidence of her ratification of the arrangement and of the estoppel to deny A. K.’s agency for her. The facts here constitute an exception to the general rule of inadmissibility of statements made by one spouse to others in the presence of the other spouse who then voices no objection.

Respondent urges that the matters of apparent authority, ratification and es-toppel were not pleaded, as usually is required. It is unnecessary to pursue the contention because evidence bearing upon those matters was received without objection. Under Rule 55.33(b), the pleadings may therefore be treated as having been amended. See Kreutz v. Wolff, 560 S.W.2d 271 (Mo.App.1977).

The above evidence, without the additional after-trial testimony of Bob Gibson, is clear and convincing beyond a reasonable doubt that appellant is entitled to the relief for which he prays. The credibility of Gibson, as to which version of the facts was true, was for the trial court to determine. Estate of Sheets v. Sheets, 558 S.W.2d 291, 296[7—9] (Mo.App.1977).

With respect to Goldie’s assent to A. K.’s arrangement, considering her continued receipt of benefits thereon, and the evidence bearing upon agency, ratification and estop-pel, it must be held upon a firm belief that the judgment of the trial court is wrong. Murphy v. Carron, 536 S.W.2d 30, 31 (Mo. banc 1976).

The judgment is reversed and the case is remanded with directions to enter a decree of specific performance for appellant, either by directing respondent to execute an executor’s deed to the property, or to effect a transfer of the title to the property by the court’s decree. §§ 511.280, 511.300, RSMo 1978.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Wade SHANKS, Plaintiff-Respondent, v. Fannie P. (Shanks) KILGORE, Defendant-Appellant, and Harold L. Miller, Defendant-Respondent.
    No. 30023.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Rehearing Denied Oct. 29, 1979.
    Snowden & DeCuyper, Joseph Y. DeCuy-per, Hsiang-Lin Lee, Kansas City, for defendant-appellant.

      Sevier & Burnett, Robert F. Sevier, Roger Guy Burnett, Liberty, for Shanks.
    Harold L. Miller, Maysville, for defendant-respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Interpleader arising out of dispute over attorney’s fee. Trial court allowed fee and fee for stakeholder’s attorney. Client appeals from both allowances.

Harold L. Miller represented Fannie P. Shanks, now Kilgore, in marriage dissolution proceeding with her husband, Wade Shanks, filed June 4,1975 in the Clay County Circuit Court. A decree of dissolution was entered January 28,1976. On the same date a property settlement agreement was entered into between the parties. It provided for the payment by Wade to Fannie of $300,000, with the first $100,000 (plus $1,380.60 child support payment) to be made within five days, the second $100,000 on February 1,1977, and the third on February 1, 1978. The agreement provided for the payment by Wade of $4,279.20 to Fannie “as and for all attorneys fees due to her for the dissolution of the marriage, by check payable to the Wife and Harold L. Miller, her attorney.”

According to Miller, on the morning of January 28, 1976, he explained the property settlement agreement to Fannie before it was executed by her. He told her that the court “might” allow an attorney fee to be paid by Wade, “ * * * but that would only.be for the dissolution action, and that her fee — the fee for the enforcing and obtaining of her property rights would be her separate expenses and would not be paid, in any event, by her husband.” He told Fannie that his fee for his services in that regard would be $60,000, to be paid by paying him twenty per cent of each of the installments when, as, and if they were paid to her. According to Miller, Fannie agreed to this arrangement. By letter, addressed to Wade and his attorneys and signed by Fannie and Miller, dated January 27, 1976, the request was made that all payments due Fannie under the settlement agreement be made to Fannie and Miller, “ * * * her attorney.”

The first $100,000 was paid as per the settlement and Miller received $20,000 as his fee from the payment.

On June 25,1976, Fannie, then residing in Broomfield, Colorado, addressed a letter to Miller: “This letter is to inform you I do not have any intentions of paying any more attorney’s fees to you.”

By letter dated July 6, Miller responded, stating, “ * * * [W]e had an express agreement and understanding that our fee would be based upon 20% of the amount, received by you in the settlement. * * * [W]e will expect you to pay the remainder of the fee due to us, which is $40,000.00.”

On September 21,1976, Fannie addressed a letter to Wade and his attorneys, advising them that the previous authorization to make payments due under the property settlement to Fannie and Miller was revoked and that all payments should be made directly to Fannie.

On October 1, 1976, Miller wrote Wade and his attorneys:

“You are hereby advised and notified that pursuant to Section 484.130 and 484.-140 of V.A.M.S., and pursuant to my agreement with Fannie Pearl Shanks, I have an attorney’s lien upon the balance of the proceeds of the property settlement agreement by and between Wade Shanks and Fannie Pearl Shanks, in Case No. 48118, Division 3 in the Circuit Court of Clay County, Missouri, which property settlement agreement is dated January 28, 1976, and which attorney’s lien attaches to and shall be paid when payments are made of the balance due upon that agreement under Section lc and d of Schedule A, the first of which such payments shall be due and payable February 1, 1977 and the second of which shall be due and payable February 1, 1978, and each in the sum of $100,000.00, and further that said attorney’s lien is 20% of those amounts due and payable.”

On November 15, 1976, Wade filed his interpleader petition in the DeKalb County Circuit Court, admitting the indebtedness to Fannie under the settlement and setting forth the direction of Fannie to make future payment to her alone and Miller’s notice of his claim of an attorney’s lien. The petition sought direction for the portion that Fannie and Miller were entitled to receive of the payment due February 1, 1977 and February 1, 1978. Under an amended interpleader petition, Wade paid the amount of the 1977 and 1978 payments, less credits not here significant, into the registry of the court.

Miller answered, asserting an attorney’s lien equal to 20% of the principal amounts owed by Wade. Fannie (by then Fannie Kilgore) answered, denying Miller’s claim, and asserting that she did not know or understand the nature or extent of the alleged oral contingent fee contract relied upon by Miller, and that if she agreed to such a contract, “she did so * * * while under strong medication for physical injuries and that such agreement is void and unenforceable and is against and violates public policy.” Fannie cross-claimed against Miller for the $20,000 he had received, but the cross-claim was later dismissed.

At the hearing of the case, Miller testified to his arrangement with Fannie for his fee. Fannie denied any such arrangement. She testified that she was taking medication at the time of the property settlement and disclaimed any recollection for the events surrounding its execution. She did say that Miller never told her that she owed him a fee, saying that Miller told her that he’d collect his fee from Wade.

The trial court rejected Fannie’s testimony and found the facts as testified to by Miller. The trial court allowed Wade $1,613.75 for his attorney’s fees in the inter-pleader, Miller $40,000, and ordered the balance paid to Fannie or for her account with others.

In this court, appellant, insofar as her appeal against Miller is concerned, relies upon the rule that a contract between an attorney and a client in a divorce proceeding calling for a contingent fee based upon a percentage of alimony or property settlement received in such proceeding is contrary to public policy and void. 7 Am. Jur.2d Attorneys at Law, § 217 (1963); 17 C.J.S. Contracts § 235 (1963). Appellant cites no Missouri authority where this rule has been applied. The Code of Professional Responsibility states: “Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relation cases are rarely justified.” Rule 4, Canon 2, EC 2-20.

The trial court in this case concluded that the fee arrangement between Miller and Fannie was not a contingent fee contract “ *' * * as that term is known and commonly used in the practice of law in Missouri.” The trial court further found:

“18. It was not until after the Defendant, Kilgore had agreed to settle upon those terms that she was advised by the Defendant, Miller of the amount of her attorney’s fees in such litigation and such advice was that she was to pay to the Defendant, Miller, as and for such fees, 20% of the payments made upon the sum of $300,000.00 ‘as, when and if payments were made thereupon to her by the Plaintiff.’

“19. One of the circumstances relied upon by Mrs. Kilgore to support her claim of a contingent fee contract is that the additional fee was to be paid one-third from each of the scheduled payments from Mr. Shanks. This fact can just as easily be attributed to Defendant, Miller’s feeling that either further litigation might be necessary to effect payment or an unwillingness on his part to collect his entire fee and leave his client with an unpaid debt from her former husband. Defendant, Miller’s testimony and the documentary evidence indicate that if Mr. Shanks failed to meet his obligation on the remaining payments due Mrs. Kilgore, Miller was willing to participate proportionately with her in the loss occasioned by the non-payment. Such losses to attorneys are frequently sustained.”

Appellant attacks the court’s findings of fact as against the weight of the evidence and its conclusions of law as inconsistent with the court’s findings of fact. Insofar as the weight of the evidence argument is concerned, appellant relies upon statements of Miller in a deposition, to the effect that he had a contingent fee contract with appellant, the statement in the July 6 letter, quoted above, to the effect that his fee was “based upon 20% of the amount received by you in the settlement” and Miller’s giving notice of his attorney’s lien under Section 484.140 dealing with contingent fee contracts. Appellant asserts that these statements and acts were inconsistent with Miller’s trial testimony of an agreed $60,000 fee, payable at the rate of 20% of each of the installments of $100,000.00.

Miller’s characterization of the fee arrangement is not the decisive factor in this case. The question is whether or not the arrangement was, as a matter of law, of the nature which the law condemns. Miller’s position basically is that there was no contingency because the amount of the fee was fixed at $60,000 after the decision to accept the $300,000 cash settlement was made. Appellant contends that even at that point, liability for the fee remained contingent upon payment of the installments by Wade and was also subject to the trial court’s authority to approve or disapprove the settlement agreement. § 452.325, RSMo 1978.

As Miller points out, the cases from other states relied upon by appellant involved more or less traditional contingent fee arrangements, arrived at early in the employment of an attorney, with liability of the client dependent upon the outcome of the anticipated litigation and stated as a percentage of the sum awarded the client by way of alimony or property allowance. Appellant's authorities include Succession of Butler, 294 So.2d 512 (La.1974); Sobieski v. Maresco, 143 So.2d 62 (Fla.1962); Barrelli v. Levin, 144 Ind.App. 576, 247 N.E.2d 847 (1969); McDearmon v. Gordon & Gremillion, 247 Ark. 318, 445 S.W.2d 488 (1969); Avant v. Whitten, 253 So.2d 394 (Miss.1971). See 1 S. Speiser, Attorneys’ Fees, § 2:6, p. 89 (1973).

Generally, these cases relied upon the public policy antagonistic to divorce and favorable to reconciliation and condemned the contingent fee arrangement because it gave the attorney an interest in avoiding reconciliation. See also Baskerville v. Baskerville, 246 Minn. 496, 75 N.W.2d 762, 768[6] (1956); Burns v. Stewart, 290 Minn. 289, 188 N.W.2d 760, 765-766[3] (1971). Some cases also emphasize the absence of necessity for contingent fee contracts in domestic relation cases in view of the power accorded the court to award attorney’s fees. Barrelli. See also Newman v. Freitas, 129 Cal. 283, 61 P. 907, 910 (1900). .

In the present case, the fee arrangement between Miller and Fannie involved at least three contingencies: First, that the court grant the requested dissolution of marriage (This contingency was not stated but was implicit in the arrangement.); second, that the court, approve the property settlement agreement entered into by the parties, §. 452.325; and third, that Wade make the payments as agreed. Miller makes no contention that upon execution of the settlement agreement Fannie was bound in any event to pay him $60,000 for his services.

The policy considerations which would have condemned an arrangement under which at the outset of Miller’s employment would have provided a fee of 20% of any cash property settlement are equally present in this case. Particularly, Miller’s explanation to his client that the court would allow a fee for his services in the dissolution but that Fannie would be obligated to pay the fee in connection with the property settlement cannot be ignored. Settlement of property rights is an integral part of the dissolution proceeding and the court would have the right to include compensation for services in that respect in the fee which it is authorized to include in the cost to be paid by the other party. § 452.-355.

The trial court’s conclusion of the law that there was no contingent fee contract in this case was erroneous. The timing of the fee arrangement was unusual and the fact that the basis for its computation was considered established, eliminated the element of uncertainty in the amount to be exacted, but liability for the fee remained contingent and had not become fixed. The arrangement violated the prohibition against a contingent fee contract in a case such as this and the allowance to Miller cannot be upheld.

Fannie has appealed from the trial court’s allowance of attorneys’ fees to Wade, to be paid out of the fund. In view of the conclusion that Miller is not entitled to share in the fund, the costs of the proceedings including attorney’s fee in the trial court would become his obligation. Spicer v. New York Life Ins. Co., 237 Mo.App. 725, 167 S.W.2d 457, 468[5] (1942). Therefore, the appeal in this regard becomes moot. However, the appeal has been examined. It is insubstantial, being based to some extent upon obviously inapplicable authority. In view of the insubstantial nature of the appeal, one half of the costs on appeal plus a reasonable attorney’s fee for services on appeal to be allowed Wade should be charged against the balance of the fund in the trial court, the balance of the costs on appeal to be assessed against respondent Miller. No damages will be awarded Wade. His motion for damages under Rule 84.19 is overruled as is the motion of Miller under such rule.

Judgment reversed as to claim of respondent Miller. Cause remanded to trial court with direction to enter new judgment, disallowing claim of respondent Miller for allowance from the funds deposited with the court; assessing the costs of the proceeding in the trial court, including $1,613.75 allowed as attorney’s fees to plaintiff against respondent Miller; assessing the costs of this appeal, one half against respondent Miller and one half against appellant Fannie plus a reasonable attorney’s fee to Wade for attorney’s services on appeal, to be assessed against Fannie and paid from the balance of the fund in deposit in the trial court.

Reversed and remanded with directions.

All concur.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Jerome RUFF, Appellant.
    No. 40656.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 16, 1979.

      Robert A. Hampe, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, James R. Cumbee, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Senior Judge.

The state charged defendant Jerome Ruff with armed robbery. He does not challenge the sufficiency of the state’s evidence; his defense was alibi. The jury found defendant guilty and pursuant to its verdict the court assessed punishment at imprisonment for 25 years.

By defendant’s first point he contends the trial court erred in denying his motion to suppress his identification by the robbery victim. This, on the ground that on the morning of trial the prosecutor had shown the victim a photograph of defendant, which he contends was impermissibly suggestive. At the evidentiary hearing the victim testified he had glanced at the photograph, but that it did not refresh his recollection of the defendant because “I positively identified him.” On direct examination the victim testified that at the scene of the crime, a well-lighted room, he had observed defendant for almost an hour, and a week later had identified him to arresting officers. The victim had given police a description that fit the defendant. The alleged infirmity in pre-trial display of defendant’s photograph to the victim must be measured against the other positive evidence concerning identification. Defendant has utterly failed to show, as he must, that under the totality of the circumstances the victim’s identification of the defendant was not reliable. Compare State v. Dickerson, 568 S.W.2d 559 (Mo.App.1978).

We also deny defendant’s contention that the court erred in permitting the state to impeach its own witness, Nathaniel Ellis. As a foundation the prosecutor declared Ellis had led him to believe he had known defendant since high school days and would identify him as one of the three robbers. At trial Ellis testified squarely to the contrary. Ellis then denied he had named defendant to police as one of the robbers. By leave of the court the state then impeached Ellis by the testimony of officer Vincent Edwards who testified Ellis had told him he had in fact known defendant as one of the robbers who was a former schoolmate of his named Jerome.

The oft-cited case of Crabtree v. Kurn, 351 Mo. 628, 173 S.W.2d 85 [9-12] (1943) establishes the principle that when a party is surprised by unfavorable testimony from its own witness that party may cross examine the witness as to previous inconsistent statements, and if denied, may then impeach the witness by other witnesses to show those inconsistent statements had in fact been made by the challenged witness. The principle has been consistently followed. State v. Williams, 522 S.W.2d 641 [5, 6] (Mo.App.1975). We hold the trial court did not err in permitting the challenged impeachment.

Judgment affirmed.

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


author: PREWITT, Judge.

text:
    In re the MARRIAGE of Stephen Paul WOFFORD and Jennifer Lynn Wofford, Stephen Paul Wofford, Petitioner-Appellant and Jennifer Lynn Wofford, Respondent.
    No. 11092.
    Missouri Court of Appeals, Southern District, En Banc.
    Oct. 5, 1979.

      Albert A. Crump, Jr., Williams & Small-wood, Rolla, for petitioner-appellant.
    Ronald J. Fuller, Rolla, for respondent.
   PREWITT, Judge.

Appellant appeals from a judgment dissolving the marriage of the parties, dividing their property, granting maintenance to respondent, and providing for custody of their children. The portions of the judgment complained of are a finding that neither party is able to care for the two minor children of the parties and placing them in the custody of the Phelps County Department of the Missouri Division of Family Services; granting respondent $100 per month maintenance “for such period of time as she is unable to support herself”; and approving in part and disapproving in part a written property settlement agreement.

Two children were born to the parties; a boy, born December 3,1971, and a girl, born February 5,1973. The parties separated in October of 1977. There was evidence that, at the time of the separation, appellant told respondent he wanted his freedom and told her to go to her mother’s or wherever she wanted; just to get out of his life. She and the children went to Indiana to live with her mother. Her mother’s home consisted of three small bedrooms, one bathroom, a dining room, living room, kitchen, and basement. Respondent and her two children made a total of eight persons living in the house. She had no money and could not obtain an apartment for herself and her children. Appellant would not send her money, so she asked him to have his parents take care of the children until she could get situated. Appellant went to Indiana and brought the children back to Phelps County. Appellant had custody of the children at the time of the hearing. Previous to the trial, the parties signed a written separation agreement. Among other provisions, it provided that the children of the parties would be in the custody of appellant. No maintenance was provided in the agreement. At the time of trial both parties sought custody of the children. This was the only contested issue before the trial court.

Of primary importance is the custody of the children, and we shall consider that first. Appellant contends that the evidence was insufficient to support the trial court’s placing the children with the Division of Family Services. Respondent here argues that the trial court’s action was proper.

A court can transfer the custody of children to third persons if the welfare of the child requires it. State v. Weinstein, 413 S.W.2d 178, 181 (Mo. banc 1967); Stockton v. Guthary, 415 S.W.2d 308, 312 (Mo.App.1967). However, there should be special circumstances and extraordinary reasons to refuse to give custody to either parent and to award it to a third person. State v. Weinstein, supra, 413 S.W.2d at 181; Neustaedter v. Neustaedter, 305 S.W.2d 40, 43 (Mo.App.1957). A child should be placed with a third person where both parents are unfit, incompetent, or unable to care for the child, or the welfare of the child manifestly calls for such placement. Downing v. Downing, 537 S.W.2d 840, 843 (Mo.App.1976). Where the courts are faced with a choice between the natural parent and a third person, they have usually been unwilling to disregard the traditional belief that it is in the best interests of a young child to be placed in the custody of a natural parent, unless that natural parent is wholly unsuitable. Ex Parte McCarter, 434 S.W.2d 14,17 (Mo.App.1968). In our review we should defer to the finding of the trial judge unless we are firmly convinced that the welfare of the child requires some other disposition. Stockton v. Guthary, supra, 415 S.W.2d at 313.

The trial judge found “that at this time neither party is able to care for their minor children and said children are made wards of the court and . . . placed in the Phelps County Department of the Missouri Division of Family Services until further order of this court.” A minor child should not be placed in the custody of a third person except as a necessary expedient, usually temporarily, until one of the parents becomes physically and economically capable of having custody, and permanent placement with a third person is done only when both parents are unfit to have custody. Yount v. Yount, 366 S.W.2d 744, 749 (Mo.App.1963); Wilson v. Wilson, 260 S.W.2d 770, 779 (Mo.App.1953). The evidence and the court’s order causes us to believe that this custody was a temporary measure and not intended to be a permanent grant of custody, if there can actually be permanent custody in a dissolution proceeding. The evidence did not justify permanent custody to the Division, but may have justified temporary custody.

The evidence indicated that either party when situated could take care of the children. The judge believed that respondent should not have moved to Indiana and taken the children with her to live with her mother in a crowded situation. She did not have regular employment nor receive funds from appellant during this period. The evidence indicated that with a job and child support she might make other living arrangements. The fact that she did not choose to remain in Missouri should not be a reason by itself to deny her custody. While that would make it more difficult for visitations by the appellant, it is still proper to allow the children to be removed from this jurisdiction where it is in the best interests of the child. Hart v. Hart, 539 S.W.2d 679, 682 (Mo.App.1976); Richards v. Hayes, 320 S.W.2d 65, 70-71 (Mo.App.1959).

At the time of the trial, appellant had custody of the children. During work hours his mother, who lives nearby, took care of them. There was no evidence that they had not been properly cared for by appellant or his mother. Appellant had made arrangements for a babysitter or his mother to care for the children while he was working. The appellant's difficulty, as apparently found by the trial court, with custody, is his moving to different jobs, sometimes where he has to stay all night. He works as a roofer. Respondent testified that he had totally left the care of the children to her while they lived together and more than once had beaten the girl severely for wetting her pants. Appellant, respondent, and appellant’s parents all testified. We recognize, of course, that the trial judge had an opportunity to observe these witnesses and we give his ruling much deference. Certainly, child custody cases are the most difficult to determine at every level of the judicial process, but probably even more difficult in the trial court; for it is there that the initial decision is made.

The care and affection which a parent normally exhibits for a child is not to be taken lightly. There is no evidence in the transcript that either party was morally unfit or any indication that either had anything but love and affection for the children. By giving deference to the trial court, we believe there was sufficient evidence to place the children with the Division of Family Services temporarily, until one or the other parent could make satisfactory arrangements for caring for the children. Considerable time has passed since the trial, and we do not know what the present circumstances may be. We believe it would be in the best interests of the children to remand the case for further evidence, to determine who should have custody as it may be shown at that time. See V. M. v. L. M., 526 S.W.2d 947, 950-951 (Mo.App.1975). The parties have now had time to make suitable arrangements which might be acceptable to the court, if they in fact want custody, and have the love and affection for the children that they claim.

Nothing we have said here is to be taken as requiring or preferring custody in either parent or to affect the authority of the court, upon a proper showing, to deny custody to either party and to place the children with others. Hopefully, the circumstances upon further hearing will not justify separating the children from their parents. Viewing the trial court’s order as a temporary measure, we remand for further proceeding regarding custody as may be now shown.

We now consider the question of maintenance. The court awarded maintenance to respondent of $100 per month, “for such period of time as she is unable to support herself.” The quoted language makes this order unenforceable. A judgment must be in such form that execution may issue without requiring external proof and another hearing. Brolinson v. Brolinson, 564 S.W.2d 911, 913 (Mo.App.1978); Sunderwirth v. Williams, 553 S.W.2d 889, 894 (Mo.App.1977). The circuit clerk would not know when to issue an execution or for what amount. The standard employed, by which she receives the monthly award, might never terminate the award or might terminate it the day after the judgment. A hearing would be required to make that determination.

Respondent, in her pleading, did not ask for maintenance. Section 452.335.1, RSMo 1978 allows the court to grant maintenance if it finds “that the spouse seeking maintenance” meets certain criteria. Nothing in the record indicates that she sought maintenance. It does not appear that she offered any evidence for the purpose of seeking maintenance. The evidence as to her financial condition related to child custody. She apparently gave that information as justification for asking appellant’s parents to care for the children and to show that with funds she could care for them.

However, the maintenance award must be reversed because of its indefinite nature. We believe the court should reconsider the maintenance grant in light of the conditions as they may then appear, including the custody of the children. On a retrial, respondent may apply to the court for permission to amend and ask for maintenance. While there may have been sufficient evidence to support the trial court’s finding, there was not more than a bare minimum of evidence relating to the financial standings and needs of the parties. If maintenance is granted, it should not be conditioned on future happenings, unless the evidence shows that the circumstances of the parties would likely change in the future and then a definite termination time should be set forth in the judgment. C. B. H. v. R. N. H., 571 S.W.2d 449, 455 (Mo.App.1978); In re Marriage of Powers, 527 S.W.2d 949, 955-956 (Mo.App.1975). Maintenance awards of limited du ration should not be based on speculation as to the future conditions of the parties, but the duration may be limited where there is evidence of impending change in the financial conditions of the parties. In re Marriage of Powers, supra, 527 S.W.2d at 956.

Appellant’s remaining point is his complaint of the trial court’s failure to approve all of the separation agreement. The trial judge found that the separation agreement should be approved as to paragraphs 4,6, and 7, and disapproved as to the remainder. Paragraphs 4, 6, and 7 divided the property of the parties. The appellant received the property he asked for in the agreement. He had it prepared, presented to respondent, and introduced into evidence. It apparently covers all of the property of the parties. Appellant does not state what else he expected to receive. Custody of the children was not binding on the court, so he cannot complain of those provisions. Portions of a separation agreement regarding children are only advisory. § 452.325.2, RSMo 1978; Goodman v. Goodman, 576 S.W.2d 747, 751 (Mo.App.1979). Appellant is correct that who should pay the debts of the parties was not determined. The court did not approve paragraph 5, which required appellant to pay and to hold respondent harmless from any debt secured by a lien upon property which he received. No reference to debts was made in the judgment. There was no evidence as to what, if any, debts there are. Respondent does not complain of the court’s action, although paragraph 5 would seem to be exclusively for her benefit. We should not reverse the trial court unless we find that error was committed against the appellant “materially affecting the merits of the action”. 84.-13(b) Y.A.M.R. The record and briefs do not disclose if the provision regarding debts materially affected appellant or how the court’s action was prejudicial to him. We cannot make this determination on conjecture. Farrar v. Moore, 416 S.W.2d 711, 715 (Mo.App.1967). The trial court’s findings regarding the division of property are affirmed.

The judgment is affirmed as it pertains to the disposition of the property of the parties, reversed as to the monthly maintenance award, and remanded for further proceedings regarding maintenance and child custody as hereinabove set forth.

All concur.


author: SNYDER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Samuel Lee CRUMP, Defendant-Appellant.
    Nos. 40918, 41061.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 23, 1979.
    Blair K. Drazic, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Michael P. Do-negan, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   SNYDER, Judge.

Samuel Crump was convicted of burglary in the second degree and stealing. §§ 560.-070, 560.095, RSMo 1969. He was given concurrent sentences of eight years on the second degree burglary conviction and five years on the stealing conviction. He appeals, alleging that the trial court erred in depriving him of due process by compelling him to proceed with voir dire examination in his jail clothing.

The judgment is affirmed.

Appellant’s trial began Wednesday, September 6, 1978 at 4:00 p. m. Before appellant was brought into the courtroom for voir dire, defense counsel told the court that appellant should not appear in jail clothes and that appellant had told counsel he had readily available clothes he wished to wear.

When appellant came into the courtroom dressed in a blue jump suit in view of all prospective jurors, defense counsel moved for a mistrial. He also requested a continuance so that appellant could change. The court indicated that the warden would be instructed that the next morning appellant should be allowed to wear any clothes he possessed at the city jail. The court then asked appellant, “Do you have an objection to selecting a jury and making a statement? Do you have some better clothes? It’s all right with me.” Appellant replied, “Yes, sir.” The trial court and apparently defense counsel interpreted the appellant’s acquiescence to mean he agreed to proceed dressed as he was.

Defense counsel objected, stating that he was better qualified to assess the effect of the clothing on the jurors than appellant, and asked for a new panel for Thursday. The court overruled the objection and told defense counsel he could explain the clothes to the panel. The court also remarked for the record that the jump suit was neat, clean and pressed, and bore no identifying marks.

Defense counsel requested that the court indicate for the record that his motion was made at 4:00 p. m. and a new jury could be obtained by 10:00 a. m. the following morning, and the court did so. After reviewing the file and the number of witnesses involved, the court determined that it was “in the best interest of justice” to proceed with voir dire.

At the beginning of voir dire, defense counsel told the panel that appellant was wearing the jump suit because he was not given an opportunity to change before being brought to court. Following defense counsel’s remarks, the court asked the jury if any of the members could be prejudiced against appellant because of the jump suit. No response was received from the panel.

On Thursday, the second day of the trial, appellant appeared in black clothing. Defense counsel again moved for a mistrial on the grounds that appellant had been forced to stand trial in prison clothing. He stated that the trial would be finished by Friday if started anew, and agreed to offer the clothing into evidence. The court overruled the motion, noting that appellant had agreed the day before to begin the trial clothed in the jump suit. Defense counsel claimed he was better able to determine the effect of the clothes on the jury than was appellant. The motion was overruled again, the court observing that the jump suit was blue in color and had no markings identifying it as prison garb.

Appellant cites Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) for his proposition that he was denied the presumption of innocence by being forced to stand trial in his prison clothing. In Williams, the court stated, at page 512, 96 S.Ct. at page 1697 that, “the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes [emphasis supplied] . .” The court in Williams found the defendant had waived the right not to stand trial in the clothes by not objecting. In doing so, the court, at page 512, 96 S.Ct. at page 1697, distinguished this right from a “fundamental right,” labelling it as part of the “vast array of trial decisions, strategic and tactical, which must be made before and during trial . . . .”

In Wright v. State of Texas, 533 F.2d 185 (5th Cir. 1976) and Goodspeed v. Estelle, 436 F.Supp. 1383 (N.D.Tex.1977), it was held that Williams required reversal of a conviction only where a defendant had been compelled to stand trial in identifiable prison garb. The courts found no denial of due process in those cases because the clothing was not typical of and recognized as jail clothing.

This court has examined the clothes in question. The garment described as a jump suit by appellant is a one-piece coverall type of garment, blue in color with no markings of any kind.

The shoes worn by appellant were white sneakers with the usual three black stripes on each side above the instep. The letters “C J” one inch high in faded red ink are hand-printed on the outside of each shoe on the counter or portion of the shoe above the heel. However, the counters or uppers of the shoes above the heels have been flattened against the insole by the wearer, resulting in partial or complete concealment of the letters when the shoes are being worn. The only letter visible in its entirety was the “J” on the one shoe, the “C” on that shoe having been entirely hidden. Only the top halves of the letters were visible on the other shoe.

There was no way a juror could have identified the clothing worn by appellant as being jail attire.

Although the exchange between the trial court and appellant was somewhat ambiguous the record indicates both the judge and defense counsel interpreted the appellant’s “Yes, sir.” as evincing a willingness to proceed clothed as he was in the jump suit and sneakers. Even without a waiver, the trial court considered the issue but found that the jump suit and shoes would not be recognized by the panel as prison clothing.

A trial court has wide discretion in the conduct of a trial. State v. Wilwording, 394 S.W.2d 383 (Mo.1965). Appellant was entitled to a fair trial, not a perfect one. State v. Keeble, 427 S.W.2d 404 (Mo.1968). The trial judge weighed the effect of the clothing on the jury, and also asked on voir dire whether any juror would be prejudiced because of appellant’s appearance. The response from the members of the panel was negative. The trial court’s discretion was not abused by refusing to grant a mistrial or continuance.

The judgment is affirmed.

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