author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. John Edward BALL, Appellant.
    No. 36297.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 5, 1975.
    Motion for Rehearing or Transfer . Denied Sept. 8, 1975.

      John C. Danforth, Atty. Gen., Preston Dean, Timothy J. Verhagen, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Robert E. Ritter, Asst. Pros. Atty., Clayton, for respondent.
    Shaw & Hewlett, Clifford Charles Schwartz, Clayton, for appellant
   CLEMENS, Presiding Judge.

Defendant was tried and found guilty of forcible rape and in accord with the jury verdict the court sentenced him to five years imprisonment. He appeals.

The State’s evidence: The victim and her boyfriend had car trouble on Woodson Road in St. Louis County. Defendant and a companion gave them a ride in defendant’s car but refused to let them out when asked. Later, the car slowed and the victim and her boyfriend bolted from the car and were separated in flight. Defendant’s companion overtook the victim when she fell, grabbed her and forced her back into the car. The two men then drove to a rural area where at knifepoint and by physical abuse both defendant and his companion twice forced the victim into acts of sexual intercourse. She again escaped from defendant’s car but was forcibly recaptured. Later a police officer stopped the car and saw a knife thrown from a car window. The victim promptly complained to the officer that she had been raped. A physician examined her and testified to recent sexual intercourse and extensive abrasions.

Defendant testified he had had sexual intercourse with the victim but with her consent and cooperation.

On appeal we first rule on defendant’s points relied on which are abstract statements and therefore preserve nothing for review. Rule 84.04(d). (We number the points as presented in defendant’s brief.)

I. Defendant contends he was “constitutionally deprived of a speedy trial.” The point is abstract and fails to comply with Rule 84.04(d) requiring points relied on to state “wherein and why” trial court rulings are erroneous. Defendant’s brief fails to do so and preserves nothing for review. State v. Dennison, 428 S.W.2d 573[8] (Mo.1968).

III. Defendant contends the trial court erred in denying a mistrial when the.State “asked the defendant on cross-examination if a certain witness was going to come into court to testify for the defendant.” We hold this point relied on is abstract and for reasons previously stated preserves nothing for appellate review.

IV, V, VI. Defendant says the court erred “in refusing to submit to the jury” instructions A, B, C and D. These abstract points preserve nothing for our review.

VII. By this point defendant contends, without stating any reason, the trial court committed prejudicial error in denying “the defendant’s motion to issue a Subpoena Duces Tecum” to a named police officer. Again the defendant has failed to comply with Rule 84.04(d) and we decline to rule the point.

IX. Again, without stating “wherein and why” the trial court erred and without supporting argument or citations, defendant contends the trial court erred in denying a mistrial when the State’s counsel read from an exhibit contrary to a previous trial court order. The point relied on preserves nothing for review. Rule 84.04(d) and Earney v. Clay, 516 S.W.2d 59[1-3] (Mo.App.1974).

Our consideration of the entire record shows none of the above points rises to the level of manifest injustice required to invoke the plain error rule. Rules 28.18 and 84.13(c).

II. By this point relied on defendant contends the trial court erred by refusing to permit him to cross examine the victim’s companion about “having been convicted of a crime as a juvenile.” The trial court correctly barred this attempted impeachment contrary to the Juvenile Code. § 211.271(3), RSMo; State v. Williams, 473 S.W.2d. 388[1] (Mo.1971). We have considered defendant’s cited case of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), where it was held a juvenile offender’s record could be received to show his bias as a witness. Davis is inapplicable here.

VIII. Defendant contends the trial court erred in barring him from cross examining the. victim to attack her previous chaste character by showing specific acts of intercourse. Not so.

Defendant cites State v. Northern, 472 S.W.2d 409[1] (Mo.1971). By obvious dicta that court held a defendant charged with rape and contending the victim had consented could show prior voluntary intimacies with the defendant. For whatever substance that case may have, it does not help the defendant here. Nor does defendant’s cited case of State v. Kirkpatrick, 428 S.W.2d 513[8-9] (Mo.1968), which not only fails to support defendant’s contention but actually refutes it by holding “in a prosecution for rape where consent or lack of resistance is an issue, an attack upon the character of the prosecuting witness for morality and chastity can only be made by evidence of her general reputation in that regard and not by proof of specific acts of misconduct with other men.”

Judgment affirmed.

KELLY and STEWART, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    CRACKERNECK COUNTRY CLUB, INC., et al., Appellants, v. CITY OF INDEPENDENCE et al., Respondents.
    No. KCD 26428.
    Missouri Court of Appeals, Kansas City District.
    Aug. 9, 1975.
    C. John Forge, Jr., Independence, for appellants.
    James S. Cottingham, Richard G. Carlisle, Independence, for respondents.
   ORDER

Whereas, it appears from the records of this Court that the above entitled cause was transferred by order after opinion to the Supreme Court of Missouri on July 22,1974, and was thereafter on April 15, 1975, by that Court by order retransferred to this Court because the transfer was improvidently granted, “for adoption in the opinion of Shangler, J., or for such other disposition of the cause as said Court shall deem appropriate”, and

Whereas, the mandate of this Court, adopting the opinion of Shangler, J., was issued on April 24,1975, and the records do not reflect the order of the Supreme Court of Missouri retransferring this cause above mentioned.

It is ordered, that the mandate of this Court of April 24, 1975, shall stand confirmed, and the adoption of the opinion of Shangler, J., herein as the final opinion of this Court shall stand.


author: HOGAN, Judge.

text:
    Morgan M. MOULDER and Nedra Moulder, Plaintiffs-Respondents, v. Ina WEBB, Defendant, and State Highway Commission of Missouri, Defendant-Appellant, and City of Camdenton, Missouri, Defendant-Appellant.
    Nos. 9538, 9527.
    Missouri Court of Appeals, Springfield District.
    Aug. 20, 1975.
    Motion for Rehearing or Transfer Denied Sept. 8, 1975.

      Robert L. Hyder, William Darmstaedter, II, Jefferson City, for State Highway Comm., Richard E. Feutz, Camdenton, for City of Camdenton.
    John F. Low, Lebanon, Morgan M. Moulder, Camdenton, for plaintiffs-respondents.
   HOGAN, Judge.

In this action to determine interest and quiet title pursuant to Rule 93.01, V.A.M.R., plaintiffs sought an adjudication that a 20-foot strip of land running squarely along the northeast side (front) of their property was not subject to any easement for public use. Upon trial without a jury, the court found all the issues tendered for the plaintiffs and adjudged 1) that title to the realty in question was vested in the plaintiffs in fee simple as tenants by the entirety; 2) that none of the defendants, nor any of them, had any right, title or interest, legal or equitable, in and to the realty. The State Highway Commission (Commission) and the City of Camdenton (City) have appealed and by our order the appeals have been consolidated.

Plaintiffs, husband and wife, own a motel located in part on Lots 1, 6, 7, 8, 9, 10 and 11 in Block 61 in the City of Camdenton, and in part on a 20-foot strip of land which lies squarely along the northeast line of those lots as platted. The 20-foot strip fronts on and abuts Highway 5 in the city limits of the City of Camdenton. Various structures appurtenant to the plaintiffs’ motel have been constructed and are being maintained on the 20-foot strip. The record makes it appear that an improvement (widening) of Highway 5 has been undertaken, and that the proposed improvement will involve utilization of part or all of the 20-foot strip in controversy. Plaintiffs’ position is that, for various reasons, the 20-foot strip is not part of the State’s easement for public use. The Commission maintains that the 20-foot strip was included in and is part of the right-of-way originally acquired when Route 5 was constructed, and it regards plaintiffs’ construction and maintenance of part of their motel on the 20-foot strip as an out and out purpresture. The City’s position is that the 20-foot strip in question was dedicated to public use by the terms of the deed of dedication and plat filed when the City of Camdenton was incorporated as a city of the fourth class in 1931. The sole question litigated and the sole question presented here is whether or not the highway right-of-way, in the sense that “right-of-way” means the whole easement condemned or otherwise acquired by the Commission, includes the strip of land claimed by the plaintiffs.

The appeal presents an unusual problem. In this court the parties have briefed a number of involved and somewhat novel issues with vigor and considerable competence, but quite obviously the primary and essential fact which must be established before the parties’ rights can be adjudicated is the location and width of the State’s easement for public use; that has not been competently established, and there is, therefore, no starting point from which we may proceed to decide the appeal on its merits.

We have repeatedly and recently held that we can no longer indulge litigants with sua sponte review of matters not properly briefed and presented, e. g., State v. Blankenship, 526 S.W.2d 78 (Mo.App.1975). We adhere to that position, but when the appeal is governed by public statutes or statutory principles we may, in the exercise of discretion, consider the effect of those statutes even though they were not called to the attention of the trial court nor considered by it in determining the merits below, particularly when, as here, the public interest appears to be involved. Cf. Berghorn v. Reorg. Sch. Dist. No. 8, 364 Mo. 121, 134-135, 260 S.W.2d 573, 580[3-7] (1953).

We take judicial notice of the constitutional and statutory provisions by which the defendant Commission is vested with its powers and duties, State ex rel. State Highway Commission v. Allison, 296 S.W.2d 104, 106[1] (Mo. banc 1956), and we are bound to take notice of the public statutes of this State. State ex rel. Ford v. Hogan, 324 Mo. 1130, 1138, 27 S.W.2d 21, 23[1] (1930). Moreover, as a court we take notice of geographical facts and matters of current history. Reineman v. Larkin, 222 Mo. 156, 170, 121 S.W. 307, 311 (1909). We therefore know, judicially, that Route 5 is part of the system of highways established by the Centennial Road Law, L.1921 (1st Extra Session), pp. 131-167, and specifically that the route here involved (Highway 5 in Camden County) was designated and made a part of that system by the second sentence of para. 15, § 29 of that act, now codified as para. 15, § 227.020, RSMo 1969, V.A.M.S. Section 31 of the Centennial Road Law provided that the Commission would “determine the width of the right of way and of the surface roadway” of the routes designated in the act as “state highways”. Section 30 required the Commission’s chief engineer to cause surveys to be made and to prepare detailed plans and specifications “for each part [of the system] as soon as practicable”. Nevertheless, § 32 provided that the Commission might “approve, disapprove, modify or amend” the plans laid out by the chief engineer, and further provided that “the action of the commission thereon shall be the action of the department [sic] on such subject”. (Our emphasis) Further in this connection, we know by consulting census statistics, which we may notice, State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 424 S.W.2d 73, 79[11] (Mo.App.1968), that at the time of its incorporation the City of Cam-denton had a population less than 2,500, and § 36 of the Centennial Road Law provided that “[a]ny state highway which passes through a municipality having a population of less than twenty-five hundred . shall be constructed through such municipality”. We do not precisely know when Route 5 was constructed through Camden-ton — plaintiff Morgan Moulder gave it as his recollection that it was “1935” or “1932” —but it seems fairly certain that it was after Camdenton was incorporated.

The plaintiffs, in the course of making their proof, offered the original plat of the City of Camdenton as evidence, and the defendant City relies on that instrument as proof of the location and width of the easement for public use. Further, parts of the original survey for Route 5 were received in evidence, and a survey (or copy) prepared for use in making the present improvement was offered. Plaintiffs also had evidence showing the location of a monument (actually a marker) indicating that the southwest boundary of the State’s easement ran 20 feet to the northeast of the line claimed by the Commission as the southwest boundary of the right-of-way. There was also evidence that the 20-foot strip in controversy had not been maintained by the Commission, and that the defendant City had exercised some control over that strip of land by permitting the construction and maintenance of utility poles on the right-of-way. In short, were this an ordinary boundary dispute and assuming for the purposes of this opinion that plaintiff invoked the proper remedy, the evidence would be sufficient to create a factual conflict concerning the location of the boundary of the State’s easement, the various contentions of the parties could be appraised in context, and the controversy could be resolved.

Such is not the case. Even if the language of the Centennial Road Law did not compel that conclusion, the precedents by which we are firmly bound hold unmistakably that the location and width of the public easement here involved may be shown only by the record made by the Commission when it included the particular route in the State highway system. State ex rel. Reynolds County v. State Highway Commission, 328 Mo. 859, 864-866, 42 S.W.2d 193, 194-195[2] (banc 1931); State ex rel. Liberty Township of Stoddard County v. State Highway Commission, 315 Mo. 747, 755-757, 287 S.W. 39, 42-43 (banc 1926); Palmer v. State Highway Commission, 334 Mo. 1070, 1076-1077[4], 69 S.W.2d 653, 655—656[6] (1934). The original plat of the City of Camdenton is not conclusive, even assuming it antedates that segment of Route 5 under consideration, because the Centennial Road Law merely described the general route to be followed and did not designate any particular road as part of the State highway system, State ex rel. Reynolds County v. State Highway Commission, supra, 328 Mo. at 865, 42 S.W.2d at 194-195[3], and in both the Reynolds County case and the Palmer case, it was held that activity on the part of the Commission such as moving fences, marking the particular highway and maintaining it with state funds did not prove the adoption of a particular road as a permanent part of the State highway system. Neither is the maintenance of utility poles on the right-of-way necessarily indicative of the extent of the easement for public use, for it is in the Commission’s discretion to permit the maintenance of those structures as long as they do not interfere with public safety. State ex inf. McKittrick ex rel. City of California v. Missouri Utilities Co., 339 Mo. 385, 400-401, 96 S.W.2d 607, 614[5], 106 A.L.R. 1169, 1180-1181 (1936). The situation is not altered by the fact that certain surveys or plans were received in evidence, because the Commission was not bound by the chief engineer’s detail plans, but had the authority to “approve, disapprove, modify or amend” those plans. L.1921 (1st Extra Session), at p. 164. So, and to reiterate, the fundamental evidentiary fact necessary to an adjudication of the parties’ rights has not been established.

In so holding, we bear in mind that it is our duty to dispose finally of the case if we can, Rule 84.14, V.A.M.R., but we are not at liberty to disregard the public statutes of this State, nor the decisions of our Supreme Court construing those statutes. Our duty to review the record as a whole and render such judgment as the trial court ought to have given presupposes a record and evidence from which we can perform that duty with some degree of confidence in the reasonableness, fairness arid accuracy of the result. Such a record is not presented here, and the cause must be reversed and remanded upon its merits. Phelps v. Watson-Stillman Co., 365 Mo. 1124, 1132, 293 S.W.2d 429, 434-435[5] (1956). Leave should be given to the parties to amend their pleadings, if they are so advised. It is so ordered.

All concur, except FLANIGAN, J., not participating because not a member of the court when the cause was submitted.

      . Huntress v. Huntress’ Estate, 235 F.2d 205, 209[6] (7th Cir. 1956); F.D.I.C. v. Vest, 122 F.2d 765, 768[2] (6th Cir. 1941); see Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L.Rev. 477, 479-480 (1958-1959).


author: KELLY, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Ruth E. M. GRAELER et al. (Exceptions of Paul Londe and Shirley Londe), Defendants-Appellants.
    No. 35432.
    Missouri Court of Appeals, St. Louis District, Division 2.
    Aug. 26, 1975.

      Klamen, Summers, Wattenberg & Compton, Norman W. Drey, Jr., Clayton, for defendants-appellants.
    Thomas H. Pearson, Kirkwood, Gregory F. Hoffmann, St. Louis, Bruce A. Ring, Jefferson City, for plaintiff-respondent.
   KELLY, Judge.

Paul Londe and Shirley Londe, hereinafter defendants, bring this appeal from a judgment of the Circuit Court of St. Louis County awarding them $35,000.00 damages for the condemnation of a 3.85 acre portion of their 39.4 acre tract of land in St. Louis County abutting Highway 40 for highway purposes.

The issues presented here are directed at what the defendants contend are errors of the trial court committed during a jury trial in ruling that for the purpose of determining damages the date of the taking of defendants’ 3.85 acres of land occurred on April 23, 1968, and in admitting into evidence for the purpose of assessing damages sales of certain properties which were not truly comparable. We have considered these Points and find no error.

The State Highway Commission, hereafter plaintiff, commenced this condemnation proceeding, Commissioners were appointed, filed their Award and both the plaintiff and the defendants filed, exceptions and requested jury trial.

Prior to the formal commencement of the trial on the issue of damages, the defendants filed a pre-trial motion by which they sought to establish the date of the taking as November 21,1962 and to exclude from the trial any evidence which employed as a basis of comparable sales for the purpose of damages other properties zoned “Non-urban”.

An in-chamber hearing was conducted prior to commencement of the jury trial on defendants’ motion and after an evidentiary hearing thereon the trial judge ruled that the date of the taking was April 23, 1968, and that plaintiff would be permitted to introduce evidence of value based on comparable sales of other properties zoned “Non-urban”. Subsequently, during defendants’ opening statement, out of the jury’s hearing, the trial judge amended his earlier ruling to the extent that he would allow either party to show the history, of the property, including plans made as early as 1962 by way of an application for a Special Use Permit by defendants for construction of a “convention-motel” on their tract of land and the provisions, relating to a 250 foot set-back line incorporated in the ordinance granting said Special Use Permit, and a letter from a District Engineer of plaintiff to the St. Louis County Planning Commission of October 9, 1962, “suggesting” that a 200 foot set-back line be established in case the Special Use Permit was to be granted.

Trial commenced and evidence was introduced from which the jury could find that the defendants purchased the 39.4 acre tract of land in 1960, at which time the entire tract was zoned “B”, a classification permitting one single family dwelling unit per acre. Much of the tract, approximately 27 acres, was unsuitable for development because of the nature of its topography and its “silty” texture which would cause structural problems if built upon. The remaining acreage was suitable for construction.

After purchasing the tract, Mr. Londe prepared some plans for the development of a 500 unit convention motel, a shopping area and office buildings on 12 acres of the tract. The remaining acreage was to be used for bridle paths, scenic walks, sewage disposal treatment plants and other supportive facilities. Defendants had a commitment from Ramada Inn Corporation to lease the facility after construction.

Subsequently, on April 11th, 1965, the St. Louis County Council passed a comprehensive zoning ordinance rezoning defendants’ tract to “Non-urban”, a categorization which was by definition designed to “guide and coordinate development within the unincorporated portions of St. Louis County in order to secure the appropriate development of the physical environment.” Section 1003.107, S.L.C.O.A. 1972. The practical effect of this classification was that non-urban land zoning — i. e., “areas within which rough natural topography, geological conditions, or location to urbanized areas creates practical difficulties in providing and maintaining public roads and public or public-utility services and facilities and also . areas in which significant non-urban uses have been established” — and the uses permitted thereunder would preclude defendants from using their tract for a convention-motel complex as defendants envisioned, in the absence of a change of zoning.

There was conflicting evidence on the value of the land taken. Defendants’ evidence was that the damages were $152,-500.00; plaintiff’s, $20,000.00. The jury, as stated supra, rendered a verdict for $35,-000.00.

Defendants’ first contention is that the judgment of the trial court should be reversed and the cause returned there for a new trial because the trial court erred in holding that the date of the taking was April 23, 1968.

This contention is based, for the most part, upon evidence heard in support of defendants’ pre-trial motion and not, in toto, presented to the jury. It is necessary, therefore, in disposing of this Point, to recite at this part of the opinion that evidence.

On September 17, 1962, Mr. Londe filed an Application for A Special Use Permit with the St. Louis County Council for the rezoning of the front 28.7 acres of the 39.4 acre tract from “B” — One Acre Single Family District — for the construction, operation and maintenance of a Motel-Motor Hotel, restaurant, riding stable and golf course thereon. Notice of the public hearing on the application was set for October 16,1962, and, as was the custom of the County authorities, the plaintiff received notice of the hearing. On October 9, 1962, plaintiff’s District Engineer wrote a letter to the St. Louis County Planning Commission with reference to the scheduled public hearing and advised the Assistant Planning Director of the St. Louis County Planning Commission of the plaintiff’s intention to improve Highway 40 “to a divided dual highway facility with limited access,” that it was thought that approximately 200 feet would be needed for additional right of way from the Londe tract and suggested that a setback line of that amount be established if the Application was granted.

On the date of the public hearing on defendants’ Application the Chairman of the St. Louis County Planning Commission submitted a report to the St. Louis County Council relative to the Application. In this report reference was made to the plaintiff’s plans for Highway 40 and the “suggestion” of the District Engineer that a 200 foot set-back line be established for that purpose. In this report it was pointed out that a 200 foot set-back line, if established, would place the proposed “entry feature” and “restaurant-reception” facility of the proposed motel within the proposed right-of-way.

On November 21, 1962, the St. Louis County Council enacted Ordinance No. 2730 granting the defendants the Special Use Permit subject however to a number of conditions, the first of which was a 250 foot set-back line. As established in the Ordinance, this 250 foot set-back line had the effect of preventing the defendants from building the convention motel and facilities as planned on 4 of the most usable acres of the entire tract, and, according to Mr. Londe, thwarted the development for the reason that construction of a motel of any smaller accommodations made the project economically impossible, and the defendants had no choice other than to abandon the project.

The law in this State is settled that the determination of the value of property taken in condemnation proceedings is made as .of the date of the taking, and that the date of the taking is that date when the condemning authority pays into court the amount of the Commissioners’ Award, because that is when the condemnor obtains the rights of ownership in the property taken. State ex rel. Highway Commission v. Anderson, 485 S.W.2d 614, 616 (Mo.App.1972).

In Anderson this Court did not rule on what recourse is available to a landowner when damage to or decrease in the value of his property occurs directly as a result of the anticipated condemnation of his property prior to the actual taking. We conclude that we need not resolve that question here either. In Anderson, l.c. 615, we said that it is clear that whatever remedy may be available to the landowner, the determination of the value of condemned property is made in a condemnation proceeding as of the date of the taking. That statement is no less applicable here. What the defendants’ property was worth on November 21, 1962, when zoned differently, is not material to the determination of damages at the time of the taking on April 23, 1968, except as it might have some bearing on the value of the property on the date of the payment into court of the Commissioners’ Award. To hold otherwise in the trial of exceptions to the Award of the Commissioners would, in the absence of appropriate pleadings and the presence of all necessary parties to a proper determination of the validity of the zoning of the condemned property at some other date, tend to the alteration of the statutory proceeding and confuse rather than enlighten the jury charged with the duty of assessing the damages sustained by the defendants.

The defendants have cited in support of their position a number of cases from other jurisdictions holding that the date for the setting of the damages for the property taken may, under some circumstances, be other than the day of the payment of the Commissioners’ Award into Court. These cases are not controlling in this State. State ex rel. Highway Commission v. Anderson, supra. We conclude that whatever damage the defendants may have sustained by the action of the St. Louis County Council in acting favorably on their Application for Special Use Permit with the set-back line in excess of that suggested by plaintiff’s District Engineer as a condition on November 21,1962, cannot be considered as a “taking” whereby the damages by condemnation are to be determined in a condemnation proceeding and we therefore rule this Point against defendants.

Defendants’ final Points in fact constitute in the first instance a collateral attack on the validity of the “Non-urban” classification of their property on the grounds that said classification “is wholly inappropriate in application for use within the area of St. Louis County” for the reason it is “capricious, arbitrary and wholly invalid.”

We decline to consider these contentions in this appeal from a jury verdict awarding damages in a condemnation proceeding because there is no evidence in the record to substantiate these attacks. This Point—Point III in defendants’ brief— states nothing other than conclusions and is unsupported by any evidence which would aid us in making the determination necessary to arrive at the conclusions espoused by the defendants.

The validity or constitutionality of a zoning ordinance cannot be collaterally attacked in a condemnation proceeding in which the authority enacting the zoning ordinance is not a party to that proceeding. Hull v. Detroit Equipment Installation, Inc., 12 Mich.App. 532, 163 N.W.2d 271, 272[4] (1968). In Marvin E. Nieberg Real Estate Co. v. St. Louis County, Mo., 488 S.W.2d 626, 630[6] (1973) the Supreme Court of this State held that if the zoning authorities acted arbitrarily, illegally or so unreasonably as to have abused the discretion vested in them, the avenue of appeal or a declaratory judgment suit was open as a means of direct attack on the ordinance, and where this was not done, a condemnation proceeding was not the proper vehicle for challenging the validity of the zoning authorities’ actions.

The other facet of defendants’ attack is directed to the admission into evidence of expert opinion on the issue of fair market value of the land taken as of the date of the taking—April 23, 1968—for the reason that the expert testimony offered by the plaintiff was based upon comparable sales of other parcels of property zoned “Non-urban”. The thrust of defendants’ argument on this Point is that the damage to the defendants from the taking was directly related to the highest and best use of the land, i. e., intensive commercial, and that the classification “Non-urban” was an artificial land holding categorization unrelated to “use” and therefore not a valid gauge against which to measure the damages they suffered.

Plaintiff responds to this argument by quoting the general rule that the market value of property taken in condemnation proceedings is established by evidence of voluntary sales of property similar to the subject property in terms of size, shape, character and use to which the property taken may be adaptable, made in the same general vicinity, and not too remote in point of time from the date of the taking. State ex rel. Highway Commission v. Southern Development Co., 509 S.W.2d 18, 27[6] (Mo.1974); State ex rel. Highway Commission v. Wertz, 478 S.W.2d 670, 673 (Mo.1972).

Plaintiff’s quotation of the rule of law to be applied in admeasuring value of property taken in condemnation proceedings is correct in cases where the land taken is unimproved land as is the case in this instance. State ex rel. Highway Commission v. Southern Development Co., supra, l.c. 27[6]. “Use”, as that term is used in the evaluation of property taken in condemnation proceedings, means the permitted utilization made of the property taken under applicable zoning ordinances, tempered by the existing needs and wants of the community, or those that may reasonably be expected in the reasonably near future. Union Electric Company of Missouri v. McNulty, 344 S.W.2d 37, 40[4] (Mo.1961). State ex rel. N. W. Electric Power Co-operative Inc. v. Stewart, 440 S.W.2d 146, 149 (Mo.App.1969). Even where there is a showing of reasonable probability of a change in zoning in the reasonably near future, the property must not be evaluated as though the rezoning were already an accomplished fact; rather, it must be evaluated under the then existing zoning restrictions and consideration be allowed to be given to the impact upon market value of the likelihood of a change in zoning. Union Electric Company v. Saale, 377 S.W.2d 427, 429[6] (Mo.1964).

Section 1003.107 S.L.C.O.A. enumerates 18 permitted land uses and developments, and 23 other uses and developments which may be allowed on Application for a Conditional Land Use Permit, in “Non-urban” zoned areas of the County.

Review of the evidence at the jury trial shows that Mr. Patton, a witness offered by the defendants and who was between October 11, 1967 and December 31, 1972, Director of Planning for St. Louis County, testified that at the time of the taking on April 23, 1968, it was his opinion that the defendants’ tract would have been rezoned from its then existing “Non-urban” classification to allow for an intensive commercial use, its highest and best usage, within “the reasonably near future”. On cross-examination, Mr. Patton explained that by the terms “reasonably near future” he meant within one or two years. He further testified that to his knowledge defendants’ tract of land had not been rezoned to permit such usage as late as the time of trial in January, 1973.

Mr. Londe testified that the highest and best use of the tract was intensive commercial, i. e., for the convention motel complex he had planned. His opinion of the fair market value of the property taken was $152,500.00, which he arrived at by placing a value on the property if used as a motel complex as he had planned at $775,000.00 and its value after the taking at $470,-000.00. He then discounted the difference —$305,000.00—by 50% because the tract had not been rezoned to permit such usage at the time of the taking, and thereby arrived at his value of the acreage taken by the plaintiff.

Plaintiff's experts — two real estate appraisers and a real estate broker — were of the opinion that the market value of the land taken could be determined by comparable sales of other tracts zoned “Non-urban”. The two appraisers opined that the fair market value of the land taken was $20,000.00. The real estate broker testified that the market value of the land taken was $4,615.00 an acre, basing this figure upon his handling of a sale of an adjoining piece of property likewise zoned “Non-urban”.

Mr. O’Toole, one of plaintiff’s experts, testified on cross-examination that while he was familiar with the fact that the defendants had applied for a Special Use Permit in 1962 and in the course of his preparations to place a market value on defendants’ property taken in condemnation he had read the ordinance granting the special use and the conditions attached thereto, nevertheless, in arriving at his fair market value figure he gave it no consideration for the purposes of adding to the fair market value of the property. He did consider it, however, for the possibilities it might have, but since he was aware of the enactment of the comprehensive zoning ordinance by St. Louis County in 1965, he gave it no weight. He said that the zoning at the time, i. e., “Non-urban”, was the most important factor in his determination of the value of the property at the time of the taking.

Mr. Herring, plaintiff’s second appraiser, testified that while he was familiar with the fact that “Non-urban” classification was one of a “holding pattern” type of zoning, and although he also knew there were long range plans for intensive development of the property, he did not know how long into the future that was going to be, one year or twenty five years, and he concluded that any development of the subject property was so far in the future that no one could predict it. It was his opinion that the reasonable probability of obtaining a change in the zoning of the defendants’ property in the reasonably near future to “anything intensive” was very, very poor. He arrived at his valuation by the highest and best use analysis of the property, and considered that any development of the property was so far into the future that no one could predict it.

Mr. Kniffen, the real estate broker who testified for the plaintiff, handled the sale of a parcel of property known as the Cram-er property consisting of 19½ acres for $90,-000.00, or $4,615.00 per acre. The property was zoned “Non-urban” and was located adjacent to the Londe tract. In arriving at the sale price he did not take into consideration the zoning because when the Cramers gave him the listing they told him the price they wanted for their property.

The admission of evidence of comparable sales rests largely in the discretion of the trial court and its judgment in this respect will not be disturbed on appeal unless it has been manifestly abused. State ex rel. Highway Commission v. Wertz, supra, l.c. 675[2]. The “abuse” of discretion for which reversal of the trial court is a proper remedy on the question of admissibility of evidence is found only “when its ruling runs counter to the logic of presented circumstances and is so unreasonable and arbitrary as to shock the sense of justice and demonstrate a lack of careful consideration.” Missouri State Park Board v. McDaniel, 473 S.W.2d 774, 778 (Mo.App.1971).

We hold that the trial court did not err in admitting into evidence comparable sales of “Non-urban” zoned land in the trial of this cause.

The judgment of the trial court is affirmed.

SMITH, P. J., and STEWART, J., concur.

      . Although evidence of this nature was introduced in the evidentiary hearing on defendants’ pre-trial motion, neither party offered any evidence of the zoning history „of defendants’ tract other than that mentioned with respect to the 1965 rezoning during the trial to the jury.


author: NORWIN D. HOUSER, Special Judge.

text:
    FIRST NATIONAL BANK OF COLLINSVILLE, ILLINOIS, Plaintiff-Respondent, v. Irvin GOLDFARB and Sybil Goldfarb, Defendants (Sybil Goldfarb, Appellant).
    No. 36251.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 2, 1975.

      Bernard Susman, St. Louis, for defendants-appellant.
    Anderson, Green, Fortus & Lander, Martin M. Green, Sidney Fortus, James A. Ei-delman, Clayton, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Appeal by Sybil Goldfarb from an order nunc pro tunc amending a memorandum of judgment to show judgment rendered against “defendants” (plural) instead of “defendant” (singular), and from an order overruling Sybil’s motion to amend the permanent record to show judgment rendered against Irvin Goldfarb only and not jointly against him and her.

First National Bank of Collinsville, Illinois sued Irvin and Sybil on a promissory note for $15,000 alleging that defendants executed the note; that defendants promised to pay; that upon demand defendants refused to pay; that defendants still owe $15,000 plus interest and attorney’s fee, and praying for judgment against defendants. Process issued against both defendants and was served upon both Irvin and Sybil. Attorney Susman filed an answer in which defendants denied generally the allegations of the petition. Bank filed a request of defendants for admission of facts and genuineness of documents. Bank moved for summary judgment, alleging that defendants had failed to answer the request within the allotted time, attaching a supporting affidavit that Irvin and Sybil gave the note; that demand was made upon “the Goldfarbs” for payment but “they” refused to pay either principal or interest. A March 12, 1970 memorandum styled the bank versus “Irvin Goldfarb, et al.,” signed by attorney Susman and by the bank attorney, recites: “Plaintiff’s Motion for Summary Judgment heard and defendants granted 30 days in which to file counter-affidavit; if counter-affidavit not filed, summary judgment to be granted in favor of plaintiff.” No counter-affidavit was filed. Bank attorneys filed a notice, copy to “Bernard Susman, Attorney for defendants,” styled the bank versus “Irvin Goldfarb, et a/.,” calling the motion for hearing on May 7, 1970. On the latter date the court rendered judgment. A memorandum of judgment, apparently in the handwriting of bank attorney, was filed, signed by the attorney and by the judge, styled the bank versus “Irvin Goldfarb,” reciting: “Summary Judgment granted in favor of Plaintiff and against Defendant in the amount of $25,781.50; Costs against Defendant.” On the same day the court’s book “Abstracts of Judgments” in Case No. 305009 shows summary judgment rendered against Irvin Goldfarb and Sybil Goldfarb in favor of bank. On the same day the permanent record book in Case No. 305009, captioned “First National Bk. of Colling sville, Ill., a corp., Plaintiffs [sic] vs Irvin Goldfarb & Sybil Goldfarb, Defendants” recites the submission and granting of the motion for summary judgment, followed by a formal entry of judgment “against the defendants, Irvin Goldfarb and Sybil Goldfarb” in the sum of $25,781.50, with interest from that day and costs. On December 13, 1973 the following memorandum in Case No. 305009, styled the bank against “Irvin Goldfarb, et al.,” signed by the same attorney and same judge who signed the memorandum of May 7,1970, was entered: “Upon oral motion of plaintiff, judgment of May 7, 1970, ordered nunc pro tunc to be as follows: ‘Summary Judgment granted in favor of Plaintiff and against Defendants in the amount of $25,-781.50; Costs against Defendants.’ ” The permanent record book of December 13, 1973 repeats the correction nunc pro tunc of the entry of May 7, 1970 as above and restates in extenso the granting of the motion for summary judgment and the wording of the judgment against “the defendants Irvin Goldfarb and Sibil [sic] Goldfarb and that said defendants are justly indebted * * *.” Sybil Goldfarb moved to set aside the nunc pro tunc order and to correct the permanent record nunc pro tunc to show judgment against Irvin Goldfarb only and not against her. These motions were overruled and Sybil Goldfarb appealed.

Appellant first asserts error in making the nunc pro tunc entry and overruling her nunc pro tunc motion on these grounds: that (1) plaintiff obtained the judgment plaintiff requested; (2) the alleged error is not the type of error correctible nunc pro tunc; (3) there is no pre-existing record or other legally acceptable proof upon which to base nunc pro tunc relief.

The memorandum of judgment dated May 7, 1970, signed by bank attorney and judge, contains an error patent of record. It purports to be a judgment against one defendant whereas in truth and fact the judgment was against two defendants. It is an error of a clerical nature made initially by bank attorney, compounded by the judge's signature, purporting to memorialize a judgment against one only of two joint defendants when in fact judgment was rendered against both defendants, as appears clearly from preceding and contemporaneous record entries.

Appellant contends that bank requested judgment against only one defendant, and therefore got what it asked for. The entire record disputes this contention. No other record or evidence supports the thesis that bank requested a judgment against Irvin Goldfarb alone. Everything else of record shows bank was proceeding unremittingly toward judgment against both signatories on the note.

The error corrected is precisely the type of error correctible nunc pro tunc. Appellant asserts that only errors made by the clerk are correctible nunc pro tunc; that this is not an error of the clerk but of attorney and judge. Appellant misconceives the scope of the remedy. It is true that judicial mistakes are not correctible by nunc pro tunc proceedings. Amendments to correct judicial inadvertence, omission, oversight, or error, or to show what the court might or should have done as distinguished from what it actually did, or to conform to what the court intended to do but did not do, may not be made nunc pro tunc. Wiseman v. Lehmann, 464 S.W.2d 539, 542-543 (Mo.App.1971); City of Ferguson v. Nelson, 438 S.W.2d 249, 253 (Mo.1969); Potter v. McLin, 240 Mo.App. 708, 214 S.W.2d 751, 753 (1948). This is not a judicial mistake. It is a mistake of a clerical nature: a mechanical mistake of omitting the letter “s” in writing the word “defendants,” resulting in a memorandum of judgment against only one person when the court actually rendered judgment against two persons. Mistakes of a clerical nature may be corrected nunc pro tunc to speak the truth of what actually happened, whether made by clerk, judge, jury, party, 6A Moore Federal Practice (2d Ed.1966), par. 60.06(3), p. 4044; Pattiz v. Schwartz, 386 F.2d 300, 303 (8th Cir. 1968), or attorney.

In Allen v. Gibbons, 425 S.W.2d 243 (Mo.App.1968), a judgment for “plaintiff” was recorded in the judge’s docket sheet, the clerk’s minute book and the circuit court record. In fact the judgment had been rendered in favor of two plaintiffs. This court noted the difference between “the judicial act of the court in rendering judgment and the ministerial act of entering it upon the record,” holding that the rendition controls. We stated that in case of doubt about a judgment a court is not restricted to the four corners of the record entry but may look beyond that to the entire record, including the pleadings and process, to ascertain for or against whom the judgment is rendered. The court cited and quoted from Mehlstaub v. Michael, 221 Mo.App. 807, 287 S.W. 1079[12] (1926), where there was a verdict against two defendants but the judgment entry was against “the defendant.” Upholding the judgment as against both defendants the court said, 287 S.W. 1. c. 1088: “From the whole record it is apparent that the suit is against both defendants. All of the instructions under which the jury could have found for plaintiff required it to find against both defendants, if any, and the verdict is admittedly against both of them. While the judgment is defective, it could be cured by amendment and is cured by the statute of jeo-fails.” (Our emphasis.)

We draw the same distinction in this ease, and look to the whole record for support of the nunc pro tunc order. For more than ninety years Missouri courts have been authorized in nunc pro tunc proceedings to search the record for evidence of what happened and to consider the court files, motions filed in the cause and clerical entries, both those made before and after the act in question, as a foundation for amendment. Hansbrough v. Fudge, 80 Mo. 807 (1883). The whole record contradicts appellant’s assertion that there is no pre-ex-isting record to support the nunc pro tunc order. Appellant’s assertion is contrary to every other pleading, process, return, motion, affidavit, notice and other paper in the case. None of the foregoing was in the singular; all were in the plural. We particularly note and emphasize the memorandum entry of March 12, 1970, which constituted an interlocutory order conditionally, but not finally, finding the issues for plaintiff and against defendants. (Defendants were given 30 days to counter the evidence in favor of plaintiffs heard by the court that day.) This entry alone is a sufficient writing to justify the nunc pro tunc amendment of the patently erroneous memorandum of judgment dated May 7, 1970. Further evidence of what actually happened is found in the notation made in the abstract of judgments, and the full-blown permanent record entry, both made on May 7, 1970, both clearly showing and plainly stating that the judgment was entered against both Irvin and Sybil Goldfarb.

Appellant also contends the court was powerless to act in the premises on December 13, 1973; that it lost jurisdiction over the judgment 30 days after rendition of the judgment of May 7,1970, citing Rule 75.01, § 510.370, V.A.M.S., Berry v. Chitwood, 362 S.W.2d 515, 517 (Mo.1962), and Wiseman v. Lehmann, 464 S.W.2d 539, 543 (Mo.App.1971). The authorities cited do not control the situation before us (a motion to amend a judgment nunc pro tunc) which, as pointed out in Berry v. Chitwood, supra, is an exception to Rule 74.32, requiring motions to set aside judgments in courts of record to be made within three years of rendition of judgment, and Rule 75.01, providing that trial courts retain control over their judgments to vacate, reopen, correct, amend or modify the same, during the 30-day period after entry of judgment. Jurisdiction of a court of record to amend its judgments by an order nunc pro tune is not lost by lapse of time. 60 C.J.S. Motions and Orders § 59(2)(d), p. 88.

Appellant further contends that the granting of bank’s oral motion of December 13, 1973 nunc pro tunc “constituted the rendition of a new judgment” against her without notice and an opportunity to be heard. A new judgment was not rendered; a clerical error was corrected. “No notice was necessary because the court’s action was based upon matters of record which could not be disputed by appellant, 49 C.J.S. Judgments § 120b, p. 254 * * Cruces v. State, 452 S.W.2d 180, 182 (Mo.1970); Collier v. Catherine Lead Co., 208 Mo. 246, 106 S.W. 971, 977-978 (1907). The latter case quotes from Black on Judgments § 134 and Freeman on Judgments § 64, both of which indicate that if the nunc pro tunc examination is confined to the records, as here, the presence of the defendant could not affect the result, “nor would he have room to contest it”; that the “more usual practice is to proceed ex parte to order entries required to complete the record, especially where the court acts solely upon matters of record.”

Appellant’s second point is that the court erred in overruling her nunc pro tunc motion; that the judgment actually rendered May 7,1970 was that recorded on the memorandum of that date signed by bank attorney and judge — a judgment against Irvin Goldfarb only, but that the abstract of the judgment and permanent record thereof erroneously show judgment against Irvin Goldfarb and Sybil Goldfarb. Appellant argues that the judgment actually rendered was against Irvin only; that the memorandum of judgment dated May 7,1970 properly reflects the judgment against Irvin only and not against Sybil, and that that writing is a complete memorandum of the order granted by the court, made pursuant to local court rule — the only written record of the judgment — the record upon which all corrections must be based; that in performing the ministerial act of entering the judgment in the abstract of judgments book the clerk erred by transcribing the judgment improperly, and perpetuated the clerical error by writing up a judgment against both Irvin and Sybil in the permanent record.

This point and argument assume that the judgment actually rendered was a judgment against Irvin Goldfarb only and not against Sybil Goldfarb. As we have demonstrated, the entire previous record in this case belies this assumption. The memorandum of judgment dated May 7, 1970 is in direct conflict with everything else in the court record prior thereto and contemporaneous therewith.

Furthermore, the memorandum of judgment dated May 7, 1970 did not in terms record a judgment against “Irvin Gold-farb,” as appellant implies. It was a judgment against “defendant.” Which defendant? In all prior captions defendants were styled “Irvin Goldfarb, et aI.” or “Irvin Goldfarb and Sybil Goldfarb.” How can Sybil conclude that “defendant” referred to Irvin and not to Sybil?

While the action of the trial court in ruling on a motion to amend nunc pro tunc “must be upheld unless the evidence in support of the motion is so clear as to leave no reasonable ground upon which to reject it,” In re Fulsome’s Estate, 193 S.W. 618, 620 (Mo.App.1917), quoted with approval in Aronberg v. Aronberg, 316 S.W.2d 675, 681-682 (Mo.App.1958), the opposite is true in the case of appellant’s motion. The evidence that judgment was actually rendered against both defendants is so clear as to leave no reasonable ground to doubt it. Nunc pro tunc procedure is an instrument of truth, not of untruth. To follow appellant’s lead would violate established rules of nunc pro tunc law and result in injustice. To reject her contentions upholds correction of an injustice, without affecting appellant’s rights adversely. Appellant has not shown that she had or has any legitimate defense to the promissory note not raised when she had an opportunity to do so, or that intervening rights exist or will be prejudiced.

Judgment affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . The emphasis placed upon the plural both within and without the quotation marks is our emphasis.

      . See Thompson v. Hodge, 348 S.W.2d 11 (Mo.App.1961).


author: RENDLEN, Judge.

text:
    Joseph A. BOYER, Appellant, v. STATE of Missouri, Respondent.
    No. 35417.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 2, 1975.

      Joseph S. Sanchez, Hillsboro, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Chief Counsel, Crim. Div., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   RENDLEN, Judge.

Joseph Boyer appeals from denial of his Rule 27.26 motion to vacate the life sentence entered on a conviction of first degree murder under § 559.010 RSMo. Appellant contends: (1) he was entitled to and did not receive a hearing on the issue of his competency to stand trial; (2) that he did not receive effective assistance of counsel at trial or (3) on appeal; and (4) the trial court erroneously admitted oral and written confessions made by Boyer after his arrest which were involuntary and tainted by a prior unlawful statement made before the Miranda warnings were given. Our review is “limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous” Rule 27.26(j). We affirm.

Appellant was apprehended and charged with theft of an automobile on the day of the crime. Following arrest and before his Miranda rights were explained, appellant admitted killing a gas station attendant in Pevely, Missouri, to one of the arresting officers. This confession was neither offered nor received in evidence. Warned thereafter of his “Miranda” rights, appellant made three confessions of the murder, twice to police officers and once to an assistant prosecutor.

On the day following Boyer’s arrest, defense counsel notified the court of his intention to rely upon the defense of insanity under § 552.030 V.A.M.S. and obtained a psychiatric evaluation of appellant at the Fulton State Hospital where he was kept under observation for 3½ months. The written report of that examination, dated February 6, 1970, concluded unequivocally that appellant was sane at the time of the crime under § 552.030 and competent for trial within the meaning of § 552.020. Roland Wegmann, appointed co-counsel in March, 1970, obtained a second psychiatric examination under order of the court by a private firm, N. K. Associates. This report, secured at the expense of co-counsel, indicated Boyer was sane at the time of the killing, and in pertinent part is as follows:

“[E]ven granting that this man needed help prior to the alleged incident, and granted that he has present problems, there is no indication that he was disoriented at the time, place, situation, identity or sequence at the time of the incident.” (emphasis supplied).

The report summarized:

“It can be said that Mr. Boyer was found to be sane and knowledgeable of what he experienced.” (emphasis supplied).
“It is not beyond the realm of possibility . that he could have had a psychotic episode at some time or other in his life, but there is no indication that one occurred at this particular time.”

With respect to appellant’s present competence, the N. K. report stated:

“[A]fter being in jail for a period, he is above average in his ability to absorb facts from the environment and in applying these facts in normal situations. He is probably at least average on school-oriented tasks such as Vocabulary and Arithmetic.”

The report from the State Hospital at Fulton, following Boyer’s 3½ month stay, pointed out that appellant’s memory was good and he had “no mental disorder” at the time of examination. This report contained the following findings and recommendation:

“That the accused has no mental disease or defect within the meaning of Section 552.010.
“That the accused has the capacity to understand the proceedings against him and can assist in his own defense.
“That the accused did know and appreciate the nature, quality and wrongfulness of his conduct.
“There is no supportive evidence to indicate that this patient was suffering from a mental disease or defect at the time of the crime and he should be returned to court for disposition of the charges pending against him.”

Considering these reports, counsel conferred with defendant, during the week preceding trial; and on the day of trial Boyer personally withdrew his plea of insanity, pleaded not guilty and advised the court this action was based on his independent judgment, not the result of coercion. The ensuing trial ended with the jury’s verdict of murder in the first degree and sentence by the court to life imprisonment. Attorney Benson Cytron, appointed to represent defendant on appeal, considered 23 assignments of error in the motion for new trial and determined that all were insubstantial except one, which he briefed and argued. The judgment was affirmed by the Missouri Supreme Court, State v. Boyer, 476 S.W.2d 613 (Mo.1972).

Appellant first contends the trial court erred in failing to conduct a hearing as to appellant's competence to stand trial in view of his two mental examinations. The requirement of a competency hearing may arise in two ways, V.A.M.S. § 552.-020(6): (1) the trial court may hold a hearing on the issue of competency to stand trial on its own motion, or (2) the court shall hold a hearing when the psychiatric report is contested. Defendant failed to “contest” the “report” or otherwise raise the issue following receipt of the written mental evaluations, effectively waiving the mandatory hearing requirement, leaving for our consideration only the question of whether the court sua sponte should have ordered a hearing.

Both motions for psychiatric examination were couched in terms of insanity at the time of the act (§ 552.030) rather than competency to stand trial (§ 552.020). These issues are distinct not only as to the proof required but also as to procedure; insanity is for the jury while competency is for the court, Franklin v. State, 455 S.W.2d 479, 484[5] (Mo.1970). The first motion cited § 552.020(4) and the report from Fulton was directed principally to that issue. The second, leading to the N. K. Associates’ examinations, was also couched in terms of § 552.020. Trial counsel testified they did not intend to raise the competency issue by that motion. The effect of these pre-trial motions was to raise or explore the issue of insanity as a possible defense and “the court is not required to conduct a competency hearing sua sponte in the absence of circumstances which render suspect the psychiatric opinion which has certified an accused fit to proceed.” Miller v. State, 498 S.W.2d 79, 85[8] (Mo.App.1973). Mere granting of the motions for psychiatric examinations did not automatically establish a bona fide doubt as to appellant’s competence to stand trial, Jones v. State, 505 S.W.2d 96, 98[1] (Mo.App.1974), nor require a sua sponte hearing under the mandate of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (Mo.1966). See also Newbold v. State, 492 S.W.2d 809, 820[5] (Mo.1973), and McCormick v. State, 463 S.W.2d 789, 790 (Mo.1971). Further, the court in Jones, supra at 98, states: “the test of competency is whether the accused has sufficient ability to consult with his lawyer with a reasonable degree of rational understanding and whether he had a rational as well as factual understanding of the proceedings against him.” Although the N. K. report raised questions as to Boyer’s emotional state, it did not suggest that he was incompetent to proceed and the existence of mere “mental problems” does not in itself raise a bona fide doubt as to competence requiring a sua sponte hearing since the accused was not hindered in understanding the proceedings and in assisting counsel. McCarthy v. State, 502 S.W.2d 397, 403[8] (Mo.App.1973); Newbold v. State, supra at 819[5] (Mo.1973); Miller v. State, 498 S.W.2d 79, 85[9] (Mo.App.1973); § 552.010. In U. S. v. Maret, 433 F.2d 1064 (8th Cir. 1970), the U. S. Court of Appeals for the Eighth Circuit commenting on a psychiatric evaluation containing reference to emotional problems and describing defendant as a “sociopathic personality,” stated:

“Some degree of mental illness does not equate with legal incompetence . when the report does not indicate a state of present insanity or mental incompetence, the trial court is not required to take any other action prior to trial.”

Id. 1067[1].

Both psychiatric reports conclude in effect that Boyer was fit to proceed. On advice of counsel and with the benefit of the psychiatric evaluations Boyer decided to voluntarily withdraw his plea of not guilty by reason of insanity. The attorneys for the defense testified at the 27.26 hearing that they never seriously doubted Boyer’s competence to proceed. The record does not show appellant incompetent; on the contrary it appears he rationally consulted with counsel and was aware of the nature of the proceedings against him. Finally, the trial court observed Boyer first-hand at the time he withdrew his plea of not guilty by reason of insanity and was able to obtain direct evidence of appellant’s capacity. State v. Lowe, 442 S.W.2d 525, 530[4] (Mo.1969); State v. Sears, 501 S.W.2d 491, 493[3] (Mo.App.1973); Newbold, supra at 818. The trial court did not err in failing to hold a competency hearing sua sponte nor was a finding of fitness to proceed required. Appellant’s first contention is denied.

Appellant’s second and third points fail to meet the requirements of Rule 84.-04(d), V.A.M.R., as neither states what actions of the court are sought to be reviewed nor why they are claimed erroneous. We have no duty “to seine the argument portion of an appellant’s brief or the transcript on appeal to ascertain the whereins and whys of claimed errors presented in the points relied on as mere conclusions.” Griffith v. State, 504 S.W.2d 324, 327[3] (Mo.App.1974). They preserve nothing for appellate review. State v. Davis, 516 S.W.2d 784, 785[2] (Mo.App.1974); State v. Robbins, 455 S.W.2d 24, 25-26[1] (Mo.App.1970). However, we will examine the points for plain error.

Appellant contends he was denied effective assistance of counsel at trial because they were unaware and failed to assert what appellant urges as a viable defense under § 552.010, V.A.M.S.: “drug abuse with psychosis.” The Missouri standard for establishing ineffective assistance of counsel is whether “there has been such failure on the part of the attorney that defendant has not had a fair trial.” McQueen v. State, 475 S.W.2d 111, 116 (Mo. banc 1971), (concurring opinion by Finch, C. J.); see McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974); Sims v. State, 496 S.W.2d 815, 817[2] (Mo.1973); Thebeau v. State, 491 S.W.2d 275, 277[1] (Mo.1973); State v. Brownridge, 506 S.W.2d 466, 468[7] (Mo.App.1974). For the omission to constitute ineffective assistance of counsel appellant must show the suggested defense was one which trial counsel could have legitimately asserted on his behalf. He has not so shown. Drug abuse, absent psychosis, is not a defense under § 552.010; therefore, psychosis is the determinative factor. It is clear his trial attorneys considered the possibility of mental disease or defect, including psychosis, and after diligent effort concluded none was present. The best available evidence, the psychiatric evaluations, support the conclusion that Boyer was not psychotic when he committed the crime. The point is without merit.

Appellant’s third contention, though improperly drawn, charges ineffective assistance of counsel on appeal, apparently because appellate counsel briefed only one of the 23 points raised in the motion for new trial. At, the 27.26 hearing, attorney Cytron testified that he reviewed and outlined the trial transcript, considered each issue raised in the motion for new trial, and while researching some, summarily dismissed others. In his judgment, all were insubstantial except the one he finally briefed. Appellant has made no effort to show that Cytron acted with prejudice or improper motives, nor that discarding the points on appeal was patently wrong. Where this had not been shown, counsel is entitled to rely upon his own judgment and under no duty to brief all assignments of error. Cardarella. v. U. S., 375 F.2d 222, 230[16] (8th Cir. 1867), cert. denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176. Though his efforts failed to achieve a reversal “counsel is not to be adjudged ineffective because of some error or mistake in trial strategy or judgment nor because some action of counsel proved unsuccessful.” Tucker v. State, 481 S.W.2d 10, 15[7] (Mo.1972). This point and number two above, are ruled against appellant and neither suggests “manifest injustice” in the presentation of the case at trial or on appeal.

Finally, appellant alleges that the trial court erred in admitting certain confessions made while in custody. Boyer made four statements — three oral and one written. The first at approximately 2:15 a.m. on September 17,1969, was made at the site of arrest to Officer Clarence Haverstick of the Festus Police Department who was guarding appellant. This statement was suppressed and ruled inadmissible.

At about 3 a.m. in Crystal City Police Station Boyer was given the Miranda warnings by Officer Paul Roth and affirming that he understood his rights, confessed freely despite Roth’s attempt to prevent him from so doing. Roth’s reluctance to take a statement stemmed from his inexperience in handling felonies and his fear of making an error during the investigation. At approximately 4 a.m. Boyer was transferred to Hillsboro by Officer Theodore Wheelis of the Jefferson County Sheriff’s Department who en route again gave Boyer his Miranda warnings to which Boyer responded that he knew all about his rights. Wheelis asked Boyer why he committed the crime and Boyer again related the entire story. Wheelis testified appellant was very talkative during the trip from Crystal City to Hillsboro where, on arrival, appellant again confessed, this time to Assistant Prosecuting Attorney Furtaw. This confession, reduced to writing and signed by appellant at about 5:15 a.m., was in narrative form rather than an exchange of questions and answers. All confessions except the first were admitted in evidence.

The circumstances surrounding Boyer’s first statement must be examined in detail. At about 2:15 a.m. Officer Nahlik of the Crystal City Police Force spotted a car on a parking lot which earlier had been reported stolen. Finding appellant in the front seat, Nahlik opened the door, told appellant he was under arrest for suspected car theft, radioed for assistance, and Officer Haverstick of the Festus Police Force drove promptly to the scene. When Haver-stick arrived, Nahlik told him to guard the handcuffed prisoner and went to a fence at the edge of the parking lot to speak with other persons as possible witnesses. Without any prior conversation between them, Boyer, when alone with Haverstick, spoke to him for the first time and asked “is this [sic] the only thing they want me for is the stolen car?” to which Haverstick replied, “well what else did you do?” Appellant responded, “I shot a man at the Pevely Standard.” No further conversation occurred between them, no mention was made of Miranda warnings and on Officer Nah-lik’s return to the car, he drove Boyer to the Crystal City Police Station. During the trip to the station, Nahlik who had not heard the conversation between Haverstick and Boyer, did not speak to Boyer of the crime but merely “passed the time with him.” Nothing in the record suggests either officer was aware of the murder or of Boyer’s involvement when the statement was made to Haverstick or when Nahlik arrested Boyer for car theft. There was no possibility that any “focus” had centered on appellant as a suspect for murder. We are unwilling, in the absence of cogent contrary reasons, to say that when the accused is the focus of one crime (here car theft), admissions as to another completely separate crime (murder) the commission of which is not shown in the knowledge of the investigating officer, will be inadmissible as falling within a blanket exclusionary rule of Miranda. We also note that Boyer’s statement to Haverstick seemed entirely spontaneous. In the conversation with Haver-stick, he asked a question of the officer which elicited a general question in response and Boyer then blurted out his admission. Thus unlike Miranda, the statement did not stem from protracted questioning initiated by law enforcement officers but was a spontaneous admission of an unrelated crime, not suspected or under investigation, to an officer who was waiting while another made an on the street investigation of other witnesses immediately following an arrest for car theft.

Appellant argues the confession to Haverstick “let the cat out of the bag” thereby tainting the subsequent statements; and since the first was inadmissible, all others should be excluded. Having ruled Boyer’s confession to Haverstick admissible, we find no taint resulted to the subsequent statements made following adequate Miranda warnings. Appellant’s “cat out of the bag” argument is inapplicable. However, assuming in arguendo that the statement made to Haverstick was inadmissible and excluded as done by the trial judge, the Missouri Supreme Court in State v. Wright, 515 S.W.2d 421 (Mo. banc 1974), held the mere fact that statements are made after one in which appropriate safeguards are not observed does not, per se, make the subsequent statements invalid. See also U. S. v. Knight, 395 F.2d 971 (7th Cir. 1968); U. S. v. Hale, 397 F.2d 427 (7th Cir. 1968). Each case must be decided individually based on the circumstances of the case to determine the existence and extent of the casual relationship between the multiple confessions. The Supreme Court in U. S. v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947) which suggested the “cat out of the bag” theory noted the psychological and practical effects of having confessed and recognized that, in a sense, a subsequent confession is always the fruit of the first. However, the court also declared that it “has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.” Id. at 331 U.S. 541, 67 S.Ct. 1398.

In the present case the statements made by appellant were not the result of protracted interrogation, physical or psychological force. The second confession, made to officer at Crystal City following the Miranda warnings, was volunteered by Boyer. Further, though not widely separated in time, the statements were made to four different individuals at four different places in four distinct settings and were so independent of one another we can not call one the fruit of the other. There is no indication from the record that the last three statements were induced by appellant’s knowledge that he admitted the shooting to Officer Haverstick at the time of his arrest. We find that even if the original confession were inadmissible (as the trial court ruled) it did not induce those that followed and for this reason also appellant’s rights were not abridged by use of the subsequent statements, State v. Wright, supra, at 427.

Appellant further contends the confessions were not voluntary because they were made while under the influence of drugs and the trial court erred in not determining at the hearing to suppress, that appellant was not under the influence of drugs. The trial court found that the last three confessions were “voluntarily knowingly and intelligently” made and were not produced by coercion, threats or promises of leniency. Expert testimony elicited by appellant showed that an overdose of Demerol, the drug allegedly taken by appellant, would have left him dizzy, mentally confused, nauseated, uncoordinated, passive, incoherent, withdrawn and unreasonable. The evidence shows quite the contrary; appellant was talkative, coherent and appeared to be acting normally. Boyer told Officer Roth that he was not taking drugs. The evidence is insufficient to support the claim that any of appellant’s confessions were prompted by the influence of drugs. From the record in this case the trial court was justified in finding the confessions voluntary and we cannot say this decision to be clearly erroneous. State v. Mountjoy, 420 S.W.2d 316, 323[8] (Mo.1967). Appellant’s fourth contention is denied.

Judgment affirmed.

DOWD, C. J., and CLEMENS, J., concur.

      . All statutory references are to V.A.M.S. 1969 and rule references are to V.A.M.R. unless otherwise indicated.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . At the time of the murder, appellant had taken Demerol under prescription of his family physician to reduce the pain of a kidney or urinary problem. This fact was raised at trial to attack the prosecution’s assertion of a criminal intent and to challenge the voluntary nature of the confessions made.

      . For similar rulings under the Rule in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; see Miller v. U. S., 354 F.2d 801 (8th Cir. 1966), and Wakaksan v. U. S., 367 F.2d 639 (8th Cir. 1966). Under the Rule in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See State v. Goodpaster, 479 S.W.2d 449 (Mo.App.1972); Commonwealth v. Clark, 454 Pa. 329, 311 A.2d 910 (1973); Montgomery v. U. S., 268 A.2d 271 (D.C.Ct. App.1970).

      . The first confession had been ruled inadmissible; accordingly no findings concem-ing its voluntary character was made or required.


author: WEIER, Presiding Judge.

text:
    HAMILTONIAN FEDERAL SAVINGS & LOAN ASSOCIATION, a corporation, Plaintiff-Appellant, v. RELIANCE INSURANCE COMPANY, Defendant-Respondent, Helen CAREY, Third-Party Defendant.
    No. 36405.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 2, 1975.

      Gentry, Bryant & Hereford, Stephen M. Hereford, St. Louis, for plaintiff-appellant.
    Joseph L. Leritz, St. Louis, Theodore S. Martin, Clayton, for defendant-respondent.
   WEIER, Presiding Judge.

Plaintiff, Hamiltonian Federal Savings & Loan Association, brought suit against the defendant, Reliance Insurance Company. Plaintiff sought recovery under an indemnity bond issued by the defendant in the sum of $8,545.61, which the plaintiff had paid to the public administrator. Defendant filed a third party petition against a third party defendant, Helen Carey (formerly Helen Lowry), alleging that should defendant, Reliance Insurance Company, be held liable to plaintiff, the third party defendant would be liable for the claim against the defendant. Motions for summary judgment filed by both the plaintiff and defendant were overruled. The parties had waived a jury trial and submitted the action on stipulated facts. Under this stipulation it was agreed defendant issued its Savings and Loan Blanket Bond with an effective date of May 20, 1968 and a limit of $1,350,000.00, agreeing to indemnify the plaintiff within its terms. At all times pertinent to this action the bond was in effect. On April 17, 1974 the trial court entered its finding and judgment for the defendant. From this order, plaintiff appeals.

Third party defendant, Helen Carey (then Helen Lowry), was appointed guardian of the estate of her three minor children by the Probate Court of St. Louis County, and in that capacity opened an account with Hamiltonian in the amount of $7,780.55. On July 23,1965 the Probate Court entered an order restricting the deposit by Helen Lowry by subjecting $7,144.17 to withdrawal only upon an order from the court. One of plaintiff’s employees was instructed to prepare the account card and to indicate thereon the withdrawal restriction. Through negligence, however, the employee failed to note the restriction and therefore plaintiff’s tellers did not receive notice of the court order. At various times in 1968 Helen Lowry withdrew $8,126.05. She did so without a court order and it was stipulated she did so without bad faith or fraudulent or dishonest intent. It was also stipulated the withdrawn funds were used solely for the benefit of her minor children.

Because of Helen Lowry’s failure to file an annual settlement, she was removed as guardian of her children’s estate and replaced by the public administrator, Patrick M. Fiandaca III. On August 14, 1969 the public administrator demanded that plaintiff pay him, in his official capacity as guardian, all of the money paid to Helen Lowry without a court order plus interest. And thereupon $8,545.61, a sum equal to the original deposit plus all interest had there been no withdrawals, was paid by plaintiff to the public administrator. Plaintiff then demanded reimbursement from defendant, claiming the terms of its blanket bond policy covered the plaintiff’s loss. Defendant refused to comply with plaintiff’s demand. Thereafter, plaintiff filed the suit against defendant from which this appeal arises.

The facts, having been stipulated, are not in dispute. So the resolution of this case must turn on the terms of the bond; the issue being whether or not plaintiff’s claim was a recoverable loss within the meaning of the bond for which the parties contracted. Thus the language of the bond is crucial in determining whether plaintiff has actually suffered an indemnifiable loss. The plaintiff contends the “On Premises” clause of paragraph B of the “Insuring Agreements” section of the bond entitles them to be reimbursed for their payment to the public administrator. The bond, in part, provides:

“The Underwriter, in consideration of an agreed premium * * * agrees with the Insured, in accordance with the Insuring Agreements hereof * * * and with respect to loss sustained by the Insured at any time but discovered during the Bond Period, to indemnify and hold harmless the Insured for:
⅝ # * ⅜! ⅜ S¡C
ON PREMISES
(B) Any loss of Property through robbery, burglary, common-law or statutory larceny, theft, hold-up, misplacement, mysterious unexplainable disappearance, damage or destruction, abstraction or removal from the possession, custody or control of the Insured (whether with or without negligence on the part of any Employee) * * (Emphasis added.)

Plaintiff argues that blanket bonds indicate wide coverage and should be construed broadly in favor of the insured; thus since the insurance contract covers “abstraction or removal from the possession” without a qualifying requirement that dishonesty must also be involved, the loss plaintiff incurred due to their employee’s failure to note the account restriction is covered by the bond.

While the general rule concerning bonding contracts is that when ambiguous they will be construed against the bonding company, the company’s liability cannot be extended beyond the terms of the contract. State ex rel. State Dept. of Public Health & Welfare, Division of Welfare v. Hanover Insurance Company, 431 S.W.2d 141, 143[3, 4] (Mo.1968); Jordan v. United Equitable Life Ins. Co., 486 S.W.2d 664, 666[1, 3, 5, 7] (Mo.App.1972). In addition, before such a presumption favoring the insured can operate, the language in the contract must in fact be ambiguous and thus susceptible to different constructions; unequivocal words must be given their plain and ordinary meaning. State ex rel. State Dept. of Public Health & Welfare, Division of Welfare v. Hanover Insurance Company, supra at 143[1, 2]. But it is also clear that in Missouri insurance contracts must be reasonably construed consonant with the apparent objectives and intent of the parties. Jordan v. United Equitable Life Ins. Co., supra at 667[8]. And finally, we note a pertinent elementary contract principle — in constru-tag a contract, its component parts must be taken together and construed in relation to each other to determine the true intent and meaning. Mathews v. Knoll Associates, Inc., 388 S.W.2d 529, 532[1] (Mo.App.1965).

Admittedly, no specific language in the bond requires the “abstraction or removal” to be a dishonest one. The terms, however, must not be read in isolation from the other terms of the clause and the other clauses of the contract in ascertaining the parties’ intent. The other clauses of the bond include protection from fidelity losses due to a dishonest act of an employee, losses of office furnishings, supplies, and equipment due to criminal acts, losses in transit, losses through forgery, and losses due to fraud. Each of these categories of losses, however, if not dishonest by its very nature, is specifically limited by qualifying language in the relevant clause to acts involving dishonesty. Thus from an overview of the entire bond and the fact that the insured was a savings and loan association, it would seem the purpose of the contract was to secure protection from dishonest, fraudulent or criminal acts.

A bond provision identical to section (B) of the bond in question here was similarly interpreted in a New York case. Although the New York case was specifically concerned with the “misplacement or mysterious disappearance” language, the analysis is the same. Neither phrase, “misplacement or mysterious disappearance” or “abstraction or removal”, when viewed alone, requires the element of dishonesty, yet the court reached that conclusion when the terms are used in the context of the bond.

“A banker’s or broker’s blanket bond, such as that involved in this suit, is not, * * * broad insurance against the risk of loss in its banking operations. No degree of construction of alleged policy ambiguities can broaden the scope of the coverage beyond what a reasonable reading of the insurance coverages could permit. Primarily, the blanket bond is designed to protect the financial institution against the risks of dishonesty. This may be external dishonesty — robbery, burglary, larceny, theft, holdup, or counterfeiting, or it may be internal as in the case of embezzlement, forgery or employee defalcation. And because pinpointing the exact cause of the loss or the party responsible with legal proof may so often be difficult or nearly impossible, the coverage is broadened to include loss of valuable property through destruction, misplacement, or mysterious disappearance.” (Emphasis added.)

Metropolitan Savings & Loan Association v. Hanover Insurance Co., 55 Misc.2d 593, 286 N.Y.S.2d 129, 131[1] (1967).

Regardless, therefore, of the possibility of defining “abstraction” narrowly, as to withdraw or take-away, without dishonest connotations, such a definition is not consistent with the parties’ probable intent since the insured’s business is that of accepting deposits, paying withdrawals, and dealing with other people’s money. A Pennsylvania court in interpreting the word “abstraction” as used in a statute said that “abstraction” “is to be understood in the popular sense of the word and as the act of one who, with intent to injure or defraud a bank, takes or withdraws from it any of its funds and converts them to his own or another’s use.” (Emphasis added.) Commonwealth v. Dauphinee, 121 Pa.Super. 565, 183 A. 807, 813[4] (1936).

Plaintiff concedes that losses from normal banking operations are not covered by the terms of the bond. Plaintiff contends, however, that his loss was an “extraordinary” one which is covered and that it was so understood by both the plaintiff and defendant at the time of the bond’s issuance. Plaintiff’s argument is not persuasive. Clerical matters, such as noting restrictions on deposits, clearly are part of “normal banking operations”. As the defendant points out in its brief: “[t]o carry plaintiff’s argument to its logical conclusion, any loss suffered by the insured would be covered under the ‘abstraction or removal’ phrase of Section B. * * * Indeed, plaintiff must take the position that any money paid out under any circumstances falls under the phrase ‘abstraction or removal’ ⅜ * Yet it is difficult to imagine that such was the intent of either party when making the contract. We must conclude then that the bond does not cover a loss due to negligence as that claimed by the plaintiff.

Even if we were to construe the bond to include losses not involving dishonesty, it would still not be clear that the plaintiff could recover in this action. It is a well established rule that the insured has the burden of proving that a loss occurred from causes within the terms of the insuring contract. Bensinger v. California Life Insurance Co., 459 S.W.2d 511, 516[7] (Mo.App.1970). An indemnity contract against losses does not cover losses for which the indemnitee is not liable to a third person and which he improperly pays as a voluntary payment. Paro v. Pennsylvania Railroad Co., 348 S.W.2d 613, 616[2] (Mo.App.1961). Here, it would appear that the plaintiff might not have been liable to the public administrator for the funds withdrawn by the guardian, the person entitled to withdraw money from the account. It was stipulated in the statement of facts that the guardian withdrew the money without bad faith or fraudulent or dishonest intent and that it was used by her as guardian solely for the benefit of her wards and minor children.

While customary, it is not necessary that a guardian obtain a court order authorizing expenditures. He may take the chance of the disallowance of his accounts upon submission at time of settlement if such expenditures were not necessary and proper for the support, maintenance and education of his ward. §§ 475.120(1), 475. 125, RSMo 1969; DeWald v. Morris, 397 S.W.2d 738, 742[5, 6] (Mo.App.1965). It is true that according to the statement of facts, Mrs. Carey was removed as guardian for failure to file ah annual settlement, but there is no mention made of any order of the probate court requiring payment of any amount due the successor guardian as required by § 475.300, RSMo 1969. Rather, it is indicated that the successor guardian made demand of Hamiltonian for the funds withdrawn by Mrs. Carey plus interest and Hamiltonian thereupon paid him the amount here in controversy. No reference is made as to any misapplication of the funds by the guardian.

A volunteer who pays money in the absence of fraud or duress is not entitled to the return of his money provided he has full knowledge of the facts even though he may be mistaken as to the applicable law. An unjust demand should be resisted at the threshold of the matter. American Motorists Insurance Company v. Shrock, 447 S.W.2d 809, 811 (Mo.App.1969). Since by the terms of the bond defendant only agrees to indemnify plaintiff for a loss of property, it does not cover a voluntary payment made by plaintiff without liability to so pay. Paro v. Pennsylvania Railroad Co., supra, 348 S.W.2d 613, 616[2] (Mo.App.1961).

Plaintiff also contends that its motion for summary judgment should have been sustained since there was no genuine issue of material fact. This contention is not properly before this court since the matter of the propriety of a court’s action in denying a motion for summary judgment is not an appealable order. Wilson v. Hungate, 434 S.W.2d 580, 583[5] (Mo.1968); Parker v. Wallace, 431 S.W.2d 136, 137[2] (Mo.1968); Hoevelman v. Reorganized School District R2 of Crawford County, 430 S.W.2d 753, 754[3] (Mo.App.1968); Rule 74.04. In support of this contention, however, plaintiff reasons that both plaintiff and defendant filed motions for summary judgment and in so doing both parties, as a part of their motions, advised the court that there was no genuine issue of fact. Plaintiff further urges that since no agreed statement of facts had been filed at that time, there was no issue as to the presence or absence of dishonesty or the use to which Mrs. Carey put the funds. Hence at least one of the parties should have received judgment in its favor by reason of the submission under the motions based only upon the facts therein admitted to be those upon which the litigation should turn. But the court considered otherwise, denied the motions, and the parties thereupon submitted an agreed statement which included the reference to the absence of dishonest acts and the use made by Mrs. Carey of the funds. Certainly the trial court cannot be faulted for seeking all of the facts which it might reasonably consider in arriving at its final judgment. This is consonant with Rule 74.04 which requires that “a summary judgment [should not] be rendered on [any] issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Rule 74.04(h); Sherman v. AAA Credit Service Corporation, 514 S.W.2d 642, 644[4] (Mo.App.1974).

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.


author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Melvin HARVELL, Defendant-Appellant.
    No. 36598.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 2, 1975.

      Kent W. Fanning, James C. Jones, Andrew Kotschar, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

This is an appeal from a judgment of conviction entered by the circuit court of the City of St. Louis whereby the defendant-appellant, Melvin Harvell, was sentenced to the department of corrections for five years for the offense of burglary in the second degree. § 560.045, RSMo 1968. For reasons hereinafter stated, we affirm.

On the evening of January 3, 1974, between 7:15 and 7:30 p. m., Mr. George Johnson, the night manager of rental property located at 4118 McPherson Avenue in the City of St. Louis, observed appellant and another man carrying a refrigerator across McPherson. Mr. Johnson and the day manager of the property were watching television when Mr. Johnson saw appellant and his companion through the window of his apartment. Johnson and the day manager left the apartment and “came outside to see where they was [sic] going with the refrigerator.”

Mr. Johnson, who had known appellant for five or six years, came within twelve feet of the two men and clearly recognized appellant. When appellant saw Mr. Johnson, he dropped his end of the refrigerator and ran down an alley. Appellant was wearing dark brown pants and a sweater. Mr. Johnson saw appellant enter the rear of his house, located across the street from the rental property. Although the incident occurred at dusk, street lights were operating and there was snow on the ground, which “made a good light.” Mr. Johnson did not, however, recognize appellant’s companion, because “[h]e had his back toward me.”

Thereafter, Mr. Johnson called the police, and Patrolman Floyd Owens arrived. Mr. Johnson accompanied Patrolman Owens to the appellant’s house. Appellant answered the door, wearing “[d]ark brown trousers and [was] bare chested from the waist up [sic].” Mr. Johnson identified appellant as one of the men carrying the refrigerator, whereupon he was arrested by Patrolman Owens.

The refrigerator hád been taken by the two men from a locked, vacant apartment located at 4128 McPherson and owned by Mr. John Charles Dolsen.' The hinges had been removed from the door of the apartment and the door had been “pried open.”

Officer George Ratermann, assigned to the Evidence Technicians Unit of the St. Louis Police Department, arrived at the scene and began an investigation for latent fingerprints. Officer Ratermann observed the refrigerator “lying on its back . . , adjacent to one curb across the street from the building that had been burglarized.” He dusted those portions of the refrigerator for fingerprints “that I felt the subject would have handled the refrigerator in moving it.” Consequently, he “lifted” a palm print from the upper-right hand portion of the door of the refrigerator. The print was lifted with two-inch transparent scotch tape and was .transferred to the “black hinge lifter.” It was then packaged in an envelope and delivered to Officer John Salamone of the Fingerprint Identification Division.

Following appellant’s arrest, Officer Joseph Boul, a latent fingerprint examiner for the St. Louis Police Department, took an inked print of appellant’s palm at the holdover and delivered it to Officer Salamone.

At trial and over appellant’s objection, Officer Ratermann testified to the procedure followed by him in developing and removing the latent palm print from the refrigerator door. Officer Ratermann had two weeks of training in such procedure with the Identification Division of the St. Louis Police Department. He also had several weeks of on the job training “riding with another officer” and had been with the Evidence Technicians Unit for one and a half years, during which time he had investigated in excess of two thousand cases and had lifted at least one thousand prints. Officer Ratermann admitted that he was not an expert at identifying fingerprints.

Officer John Salamone, a latent fingerprint identification officer for the St. Louis Police Department, testified that the palm print taken by Officer Ratermann was of “very good quality” and that it had in excess of twenty identifying characteristics which matched the- characteristics of the inked print taken by Officer Boul. He further testified that a minimum of eight identifying characteristics must match before it may be said that two given prints are identical. Officer Salamone was a graduate of both the St. Louis Police Academy and the Institute of Applied Science in Chicago and attended the F.B.I. school. No objection was made to his testimony or to the introduction in evidence of the latent palm print exhibit.

At the close of the state’s case, the court found that the appellant had a prior felony conviction. Appellant presented no evidence in his behalf. The jury returned a verdict of guilty of the offense of second degree burglary, and the court, under the provisions of the Second Offender Act, § 556.280, RSMo 1969, sentenced appellant to five years imprisonment.

Appellant’s sole contention on this appeal is that the trial court erred in failing to sustain appellant’s objection to the testimony of Officer Ratermann because the prosecution failed to qualify him “as an expert in fingerprint removal and retention.”

We find this point to be without merit. The well established rule is that the qualification of an expert witness in a criminal case is a matter resting primarily in the sound discretion of the trial court and is not reversible on appeal absent a clear showing of abuse of that discretion. State v. Jones, 518 S.W.2d 304, 311 (Mo.App.1975); State v. Williams, 515 S.W.2d 463, 466 (Mo.1974); State v. Burley, 523 S.W.2d 575, 579 (Mo.App.1975). We find no such abuse of discretion here. Since no exact standard by which to determine the qualifications of an expert witness exists, much is necessarily left to the discretion of the trial court. Billings v. State, 503 S.W.2d 57, 61 (Mo. App.1973). The testimony of Officer Rater-mann was limited to an explanation of the procedure utilized in the development and removal of appellant’s latent palm print from the surface of the refrigerator door. The state did not attempt to elicit an opinion from Officer Ratermann regarding identification or comparison of the latent print. Rather, Officer Ratermann’s testimony established the procedure of fingerprint removal and the transfer of custody of the palm print exhibit to Officer Sala-mone. See 5 Am.Jur., Proof of Facts, Fingerprints at 77 (1960).

The state showed that Officer Ratermann had attended a two-week formal training course in the procedure of fingerprint removal followed by several weeks of “on the job” training. Moreover, he had worked in the Evidence Technicians Unit for more, than a year, during which time he had “lifted” at least a thousand fingerprints.

It is argued fay appellant that, notwithstanding his practical experience, the extent of Officer Ratermann’s formal education in the field of latent fingerprint “removal and retention” was insufficient to qualify him as an expert. There is no requirement that an expert be a technical scientist or a college graduate. State v. Foster, 355 Mo. 577, 197 S.W.2d 813, 325 (1946). The test of expert qualification is whether he has knowledge from education or experience which will aid the trier of fact in forming an opinion on the subject matter of the inquiry. Billings v. State, supra, 503 S.W.2d at 61. We hold that Officer Ratermann’s training and experience in the field of latent fingerprint development was sufficient to enable him to testify on the particular procedure followed with respect to the retrieval of appellant’s latent palm print. His testimony was confined to the scope of the procedure followed and was necessary as a prerequisite to the comparison testimony of Officer Salamone. See State v. Johnson, 351 Mo. 785, 174 S.W.2d 139, 141 (1943); State v. Richetti, 342 Mo. 1015, 119 S.W.2d 330, 341 (1938).

We find no merit in appellant’s point, and we conclude that the trial court did not err or abuse its discretion (1) in admitting the testimony of Officer Ratermann regarding the procedure followed in obtaining the latent print, and (2) in permitting Officer Ratermann to testify “as an expert in fingerprint removal and retention.”

We have read the record, the briefs and authorities relied upon by the appellant and find no prejudicial error.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . Mr. Dolsen testified that he had seen the refrigerator there two or three days earlier, and when he later checked, the refrigerator was missing.

      . We perceive no justification for appellant’s statement in his brief that “[Officer Ratermann’s] testimony indicated that he performed his functions in a very peremptory and half-hearted manner.” On the contrary, Officer Ratermann’s testimony revealed that he was very knowledgeable and competent in his work and carefully followed established procedure on the occasion in question. Officer Salamone’s testimony was supportive of this conclusion.

      . See Moennssens, Moses and Inbau, Scientific Evidence in Criminal Cases, 337, 338 (1973), wherein it is stated: “The overwhelming majority of fingerprint experts have acquired their knowledge and experience ‘on the job.’ There are no courses of formal study at universities or colleges leading to a degree in fingerprint identification or for preparing one to become a fingerprint expert. But there is a voluminous literature on the subject. There are also various training courses organized by law enforcement agencies . . . . None of these courses purport to prepare its students for the job of being a fingerprint expert, they aim only to teach the rudimentary skill which will permit one to work in an identification bureau. . . . Experience is a necessary adjunct.”