author: HENLEY, Judge.

text:
    Clarence T. SAUPE, Appellant, v. Raymond C. KERTZ, Administrator of the Estate of Louis Paul Kertz, Deceased, Respondent.
    No. 58706.
    Supreme Court of Missouri, En Banc.
    May 12, 1975.
    Rehearing Denied June 9, 1975.

      David G. Beeson, Albert C. Lowes, Buerkle, Buerkle & Lowes, Jackson, for appellant.
    Roberts & Roberts, by Raymond R. Roberts, Farmington, for respondent.
   HENLEY, Judge.

This is an action for damages for personal injuries suffered in a collision of two motor vehicles. Verdict and judgment were for defendant and plaintiff appealed to the Court of Appeals, St. Louis district. That court affirmed. On application of appellant we ordered the case transferred to this court. Mo.Const. Art. V, § 10, V. A.M.S.; Rule 83.03, V.A.M.R. We reverse and remand, because the trial court gave a contributory negligence instruction not supported by evidence.

During the early morning hours of August 21, 1968, Clarence T. Saupe, aged 63, left his home in Jackson, Missouri, driving a two-ton truck north on U.S. Highway 61 enroute to St. Louis on a regular business trip. At 5:25 that morning .Louis Paul Kertz, aged 18 (son of defendant, Raymond C. Kertz, administrator), left his parents’ home near Ste. Genevieve driving his automobile south on U.S. Highway 61 enroute to Baldwin, Illinois, his place of employment. Shortly before 6:00 a.m. that day, the motor vehicles operated by these persons were involved in a head-on collision on this highway in Ste. Genevieve, resulting in the death of Louis Kertz and personal injuries to Clarence Saupe (plaintiff).

Plaintiff pleaded and submitted on negligence of defendant’s decedent in either (1) failing to keep a careful lookout, or (2) driving on the wrong side of the road. Defendant’s defense of contributory negligence was submitted in an instruction which authorized a verdict for defendant whether or not his decedent was negligent if the jury believed plaintiff either (1) drove on the wrong side of the road, or (2) "knew or by [the úse of] the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have [a] swerved, or [b] sounded a warning, or [c] slackened his speed and swerved but that plaintiff failed to do so * *

Louis Kertz having been killed in the accident, plaintiff Saupe, on objection of defendant based on § 491.010, was not permitted to testify in his own behalf as to how the collision occurred.

The only evidence presented having any bearing on the negligence issues is (1) the testimony of Corporal Robert A. North, a member of the state highway patrol, describing what he found and observed upon his arrival at the scene within a few minutes after the collision; (2) a plat of the scene showing, according to measurements made by Corporal North, where he found the two vehicles, the location and length of their skid marks, the location of gouge marks in the highway surface near where he found the vehicles, and a very general description of the terrain; (3) photographs of the damaged vehicles, of the highway at the scene, and of the highway and general area made from unidentified points and unspecified distances from the scene north and south of the vehicles; and (4) the testimony of Theodore and Roy Busch, brothers, who were traveling north on this highway somewhere south of plaintiff’s truck at the time of the collision. The' damage done to the right front portion of the Saupe truck and the left front portion of the Kertz automobile, as shown by photographs, indicate a violent collision causing the automobile to be driven back several feet from what appears to have' been accepted as the point of impact in the west lane.

At and near the point of collision U.S. 61 is a two-lane concrete highway twenty feet wide with a nine-inch lip at each edge and an eight-foot wide macadam shoulder on each side; it runs generally north-south. The posted speed limit in the vicinity is 45 miles per hour. The area is hilly.

Corporal North testified that he investigated this accident and found plaintiff’s truck and the Kertz automobile at rest on the west side of the highway, both headed in the same direction (west of northwest) approximately 3'9" apart; that the front half of the automobile was on the west shoulder and the back half in the west lane of the highway (lane for southbound traffic) ; that the left front corner of the truck was on the west edge of the west shoulder and the balance of it extended back east across the highway to a point where its right rear corner was approximately 4/9" west of the edge of the east lane (lane for northbound traffic); that he found skid marks on the highway leading up to each vehicle and debris in the west lane; that the skid marks leading to the truck began in the east lane and ran generally northwest into the west lane, the marks from the right rear dual wheels being 34' long and those from the left rear wheels 40 long; that the skid marks leading to the automobile also began in the east lane and ran generally southwest into the west lane, the marks from its wheels being 39' long; that the skid mark made by the left wheel of the automobile began at a point 5'8" west of the edge of the east lane; that the surface gouge marks and debris found in and near the edge of the west lane indicate, according to measurements from where the skid marks stopped, the approximate point of impact of the two vehicles ; that the approximate distance between the beginning points of the two sets of skid marks is “roughly 95 feet”; that the east shoulder of the highway at this point “ * * * is certainly [of] adequate width to hold a motor vehicle”; that at the scene of the collision the highway runs upgrade from north to south. We note that the evidence does not show the degree of this change in grade or the approximate distance from the vehicles, or any other reference point, south to where the highway crosses the crest of this hill or the percentage of the grade downhill south of the crest. Hence, we do not know whether either driver could have seen the other before plaintiff’s truck reached the crest of the hill.

Theodore Busch testified that early in the morning of August 21, 1968, below Ste. Genevieve and shortly before this accident, he and his brother, Roy, were in their truck traveling north on U. S. Highway 61 enroute to St. Louis with a load of fireplace wood; that he was driving about 50-55 miles per hour when plaintiffs truck passed him “back in the flat * ⅜ * runnin’ around tween 65 and 70”; that plaintiff’s truck continued at that speed up the hill toward the scene of the collision; that after the truck went over the crest of the hill it was out of his sight for a few seconds; that “when I come up over the hump I seen the back end of the truck raise up and it went across [to] the left side of the road”; that he (Busch) did not see the Kertz automobile.

Roy Busch testified that he was asleep and was awakened by plaintiff passing their truck; that he was still drowsy when he and his brother reached the crest of the hill and did not see the collision. His testimony is essentially the same as that of his brother regarding the location where plaintiffs truck passed theirs, the relative speeds of the two trucks, their direction of travel, the terrain, and what they saw after they stopped at the scene of the collision.

Plaintiff’s first point is that the court erred in not directing a verdict in his favor on the issue of liability in accordance with his motion filed at the close of all the evidence.

To direct a verdict in an automobile accident case in favor of a party having the burden of proof is rare. In Zag-gari v. Nichols, 429 S.W.2d 758, 760[1, 2] (Mo.1968), the court said: “Only in exceptional circumstances, as in the case where the defendant in his pleadings or by his counsel in open court admits or by his own evidence establishes plaintiff’s claim, or ‘where there is no real dispute of the basic facts supported by uncontradicted testimony essential to a claim * * *,’ [Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, 287 (1954)] have the courts indicated that there may be an exception to this general rule.”

Plaintiff concedes in argument that there is not sufficient evidence to support his charge that defendant’s decedent negligently failed to keep a careful lookout, and that he is not entitled to a directed verdict on that basis. However, he insists that since there is undisputed evidence that prior to the collision defendant’s decedent was driving south in the lane for northbound traffic, on the wrong side of the road, the deceased was guilty of negligence per se which entitled plaintiff to a directed verdict on liability, leaving the amount of damages as the only issue for the jury.

Plaintiff recognizes the fact that at the time of the collision his truck was in the lane for southbound traffic, on the wrong side of the road, but he argues that this does not show negligence per se on his part, because, he says, the undisputed evidence, the physical facts, show that he was in the west lane as a result of his turning or swerving his truck to the left and applying his brakes, in the exercise of due care, to avoid a collision in the east lane with the southbound automobile being driven by defendant’s decedent. There is at least one significant fallacy in this argument: the physical facts to which plaintiff refers do not show conclusively that, at the time he moved his truck toward the west lane, the southbound automobile was or was not still in the wrong lane. Nor, for that matter, is there any evidence showing where on the highway either of the two vehicles were, the distance that separated them, or their respective speeds, when the driver of one first saw, or could have seen, the other.

Different minds reasonably could draw different conclusions from the undisputed but meager facts of this case; hence, the question of defendant’s negli-' gence was for the jury instead of the court. The court did not err in refusing to direct a verdict for plaintiff. Richardson v. Wendel, 401 S.W.2d 455, 459[6] (Mo. 1966); Rickman v. Sauerwein, 470 S.W.2d 487,489[2] (Mo.1971).

Plaintiff also contends the court erred in giving instruction No. 4 on contributory negligence, because the alternative submissions are not supported by substantial evidence.

Each element of a disjunctive contributory negligence instruction must be supported by substantial evidence, and the lack of such support on any one renders the submission erroneous. Shaffer v. Kansas City Transit, Inc., 463 S.W.2d 606, 609 [1] (Mo.App.1971); Cook v. Cox, 478 S. W.2d 678, 680 [2] (Mo. 1972). On the submission of negligent failure to avoid the collision by swerving, sounding a warning, or slackening speed and swerving, the evidence must show plaintiff had the means and ability to have avoided the collision by doing each act described. In Cook v. Cox, supra, at 680, the court said: “Having the means and ability to avoid a collision means not only the mechanical appliances, such as steering apparatus with which to swerve, signalling equipment with which to warn, or braking appliances with which to slow down * * *, but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged to take effective action in avoidance.”

There is no evidence whatever which would support a finding that plaintiff could have avoided the collision by sounding a warning, or that he failed to sound a warning, or, for that matter, that he had “the signalling equipment with which to warn.” Since there is no substantial evidence to support this submission, there is no need to consider the other alternatives. For error in giving the contributory negligence instruction, the case must be remanded for a new trial.

Plaintiff next contends that the court erred in refusing to permit him to testify as to the facts relating to the collision, because (1) defendant did not make a proper objection to his testimony; and (2) defendant waived the protection of the Dead Man’s Statute (a) by filing a motion requiring plaintiff to produce all his medical records for inspection and copying, as well as payroll records showing wages lost as a result of the injuries allegedly suffered in this collision; and (b) by filing a counterclaim for damages for wrongful death of defendant’s decedent.

The record shows that during direct examination, after plaintiff had stated his name, defendant made the following objection: “Your Honor, at this time the law under the Dead Man’s Statute provides that where one party to a transaction has been killed that the other party to that transaction is disqualified from testifying to those events and we would object for that reason to any further testimony.”

Plaintiff contends that the objection made is not proper, because it stated that § 491.010 “disqualified” the witness from testifying, whereas the statute is a “qualifying” one and the objection should have been that the witness was not competent to testify. This attack upon the objection is tenuous at best. The objection includes the substance of the applicable portion of the statute, is sufficiently clear and definite for the court to understand the reasons therefor, and is adequate. Rubinstein v. New York Life Ins. Co., 153 S.W. 2d 760, 763 [4] (Mo.App.1941).

In support of his contention that defendant waived the protection of the Dead Man’s Statute by filing a motion to produce records, plaintiff relies on cases holding that the protected party waives the incompetency of the survivor by the taking of his deposition or the service of interrogatories upon him. Plaintiff argues that the waiver rule stated in those cases must be applied to a motion compelling the production of his medical and employment records, because there is no basic difference between these methods of discovery.

Defendant contends that it does not follow that because there may be no basic difference between these methods of discovery, the waiver rule is applicable in this case; that depositions — interrogatories and the motion to produce records in this case are distinguishable in that the first seeks testimony and the second records; that the record evidence sought is evidence about which the deceased could not possibly have testified had he lived; that the survivor is incompetent to testify only as to matters about which the deceased could have testified had he lived, and that this principle is applicable to the survivor’s medical and employment records as evidence.

Since the fact appears to be that defendant’s decedent had no knowledge of the records sought and, therefore, could not have testified about them had he lived, these records were not matters about which plaintiff was incompetent to testify. Hence, the motion to produce did not constitute a waiver of plaintiff’s incompetency to testify as to how the accident occurred.

The counterclaim of the administrator was dismissed by the court for the reason that an administrator may not maintain an action for the wrongful death of his decedent, where, as here, the deceased is a childless unmarried minor who left parents surviving him. Section 537.-080. In support of his contention that defendant waived the protection of the Dead Man’s Statute by filing this counterclaim, plaintiff cites Bruce v. Ullery, 58 Cal.2d 702, 25 Cal.Rptr. 841, 375 P.2d 833 (1962) and 58 Am.Jur. § 360. Bruce v. Ullery, supra, is an action for damages for personal injuries (arising out of an automobile accident) in which a counterclaim was filed by a defendant who subsequently died of causes not connected with the accident. The deceased defendant was succeeded by his administratrix who prosecuted the counterclaim and introduced evidence in support thereof. Judgment was for the administra-trix on plaintiff’s claim and the counterclaim. On appeal, the California Supreme Court held that the filing of the counterclaim waived the protection of the “dead-man’s statute,” but distinguished that case from the prior case of Norgard v. Nor-gard’s Estate, 54 Cal.App. 82, 128 P.2d 566 (1942) which held that there was no waiver where the counterclaim was dismissed before the introduction of evidence.

In the instant case not only was the counterclaim dismissed before trial but the claim it asserted was one over which the court did not have jurisdiction, because, under the existing facts, the administrator was not authorized to recover for the wrongful death of his decedent. Section 537.080. In these circumstances, there was no waiver of the protection of the Dead Man’s Statute.

Plaintiff’s final points are that the court erred in permitting defense counsel (1) to attempt to commit members of the jury panel to certain facts by his inquiries during voir dire examination; and (2) to seek, during closing argument, the sympathy of the jury and argue facts allegedly outside the record and having no bearing on the issues. The matters about which plaintiff complains in these points will not likely arise again in the same context in any lawsuit. Hence, what we might say in stating, discussing and ruling upon each voir dire question and each point of the argument about which plaintiff complains would be of no particular benefit to the parties in another trial and of no preceden-tial value to the bench and bar. It is sufficient to say that we have examined carefully the record of these matters and determine that the trial court did not abuse its discretion in the respects claimed by plaintiff.

The judgment is reversed and the case remanded.

All concur.

      . References to rules are to Missouri Supreme Court Rules.

      . References to sections of the statutes are to RSMo 1969 and V.A.M.S.

      . Instruction No. 4 is as follows:
      “Your verdict must be for the Defendant whether or not Defendant’s decedent was negligent if you believe:
      First, Plaintiff either:
      drove on the wrong side of the road; or Plaintiff knew or by the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to bave swerved, or sounded a warning or slackened his speed and swerved but that Plaintiff failed to do so; and
      Second, plaintiff’s conduct, in any one or more of the respects submitted in paragraph First, was negligent, and
      Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.”

      . In re Trautmann’s Estate, 300 Mo. 314, 254 S.W. 286 (1923) ; Lehr v. Moll, 247 S.W.2d 686, 690[6] (Mo.1952). See also: Ess v. Griffith, 139 Mo. 322, 40 S.W. 930, 931 [1] (1897) ; Baker, et al. v. Baker, 363 Mo. 318, 251 S.W.2d 31, 33 [3] (1952).


source: Caselaw Access Project

author: WASSERSTROM, Presiding Judge.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent, v. Henderson Lee JESSEE, Appellant.
    No. KCD 26929.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Motion for Rehearing and/or Transfer Denied May 6, 1975.
    Application to Transfer Denied July 14, 1975.

      Larry L. Zahnd, Zahnd & Whan, Mary-ville, for appellant.
    Brown, Douglas & Brown, R. A. Brown, Jr., St. Joseph, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Plaintiff insurance company insured a truck owned by James Thompson, which was damaged in a highway accident. Plaintiff settled with Thompson on the basis of the loss being in the amount of $1,295, but it paid Thompson only $1,195 because of a $100 deductible provision in the policy. As part of the settlement, Thompson executed a Subrogation Receipt which recited a consideration of $1,295, the full amount of the loss. In addition to the amount paid directly to Thompson, plaintiff also paid $25.50 for tow-in and truck storage.

Alleging that defendant’s negligence was the cause of the accident and the damages to the Thompson truck, plaintiff sued and attempted to collect from defendant for the full amount of the loss suffered. The jury returned a verdict and the court entered judgment for that full amount of $1,320.50.

Defendant appeals claiming that the jury should not have been permitted to consider the $100 deductible item as part of the damages recoverable by plaintiff, and he also asserts error in one of the jury instructions.

I.

The Subrogation Receipt provided that Thompson “subrogates” the insurance company to all of his rights and further provided that he would not settle nor give any release of his claim “without the written consent of the said insurer.” Defendant argues that under the opinion in Holt v. Myers, 494 S.W.2d 430 (Mo.App.1973), those provisions create only subrogation, not an assignment. On that basis he further argues that as subrogee, plaintiff is entitled to recover only that which it paid out and has no right to the $100 deductible item absorbed by Thompson. Defendant argues still further that if the Subrogation Receipt is construed to be an assignment, then the plaintiff still should not be permitted to recover the $100 in question because the proof would constitute a departure from the cause of action pleaded.

Defendant’s analysis is faulty, leading it to pose a false issue. The cause of action upon which plaintiff sought recovery in this case was one of negligence. The matter of subrogation or assignment relates only to the question of whether plaintiff has a right to assert that cause of action. In other words, when defendant delves into the distinction between subrogation and assignment, the only point of the inquiry is to ascertain whether plaintiff is the real party in interest under Rule 52.01, V.A.M. R., and 507.010, RSMo 1969, V.A.M.S.

The firmly established rule in Missouri, although apparently obtaining only in this jurisdiction, is that when an insurer pays a property loss, then its right to maintain suit against the tort-feasor depends upon whether it receives from the insured an assignment of the whole claim as compared with merely rights of subro-gation. If the insurer receives such an assignment, then it has the exclusive right to maintain the suit against the tort-feasor for the entire claim including any deductible item. On the other hand, if the insurer’s rights are simply those of subrogation, then legal title remains in the insured and he retains the exclusive right to bring the suit. This subject is extensively annotated in 13 A.L.R.3d 140, with a discussion of the Missouri cases in Section 15 at page 218. A scholarly discussion of the rule also appears in Automobile Insurance — Assignment, Subrogation and the Real Party in Interest Statute in Missouri, 26 Mo.L. Rev. 62 (1961). See also Kroeker v. State Farm Mutual Automobile Ins. Co., 466 S.W.2d 105 (Mo.App.1971); Holt v. Myers, supra; Alsup v. Green, 517 S.W. 151 (Mo.App.1974).

At the time the present case was being prepared for trial the application of the foregoing rule under the facts of this case was controlled by the decision of this court in Ewing v. Pugh, 420 S.W.2d 14 (Mo. App.1967). That case dealt with a settlement by the terms of which the insured agreed to make no compromise with any third party and “hereby subrogates the said company to all rights and causes of action.” The Ewing opinion treated that document as constituting an assignment, so that the right to sue the tort-feasor for all elements of the loss (including the deductible sum absorbed by the insured) became vested exclusively in the insurer. Plaintiff here states that it relied upon the Ewing decision in pressing suit in this case solely in its own name.

One month prior to the date on which the trial of this case commenced, the St. Louis District of this Court handed down the Holt opinion in which it distinguished but also disagreed with the Ewing opinion. Regardless of what state that left the law on this subject, there was hardly time for the Holt opinion to have appeared in the advance sheets or otherwise to have reached the attention of the bar of this state before the trial of his case. After the conclusion of the trial here, it has become quite clear that Holt, rather than Ewing, will be followed by all three Districts. This District cited Holt with approval in State ex rel. Bartlett and Company, Grain, v. Kelso, 499 S.W.2d 579, 582 (Mo.App.1973), and the Springfield District in Alsup v. Green, supra, adopted Holt and stated express doubt as to the validity of Ewing. Ewing is essentially inconsistent with the later cases, and it should no longer be followed. It should be noted that application of this new ruling would result in denying the insurer the right to maintain this suit for any portion of the loss (not just a denial of a right to recover the $100 deductible amount as contended for by defendant) and to recognize that the exclusive right to sue for the entire loss still remains with the insured.

Had defendant properly raised this point in the trial court and in this court, he would have been entitled to a reversal. Unfortunately for him, he has not done so. It is questionable whether he adequately raised the point even in his answer; although he did make a specific averment that “the plaintiff has no capacity to sue,” he did not include any supporting particulars as required by Rule 55.13. Even if the failure to give supporting particulars could be excused on the ground that they were not within the defendants knowledge, still no point concerning plaintiff’s capacity to sue was preserved in the motion for new trial. Nor has such a point been presented to this court in defendant’s Points Relied Upon. Therefore, any question respecting plaintiff’s right to sue as the real party in interest has been waived and is not here for consideration.

The point which defendant does attempt to raise and the result which that argument would reach flies squarely in the teeth of all the Missouri law on this subject. The real party in interest statute has been consistently interpreted by the Missouri courts to require the unitary presentation of all claims for property damage in one lawsuit. Missouri courts have constantly denied the splitting of damages between an insurer and the insured, so as to allow the insurance company to sue for only that portion of the loss paid by it, with the insured , retaining the right to sue for the balance. In Missouri, the complete cause of action must be presented by one or the other. In this case, the complete cause of action covering all elements of damage has been presented to and awarded by the jury. The plaintiff will receive under this award $100 which it will hold in trust for the benefit of the insured. Far from being inimical to the interest of the defendant, this result in reality will be for his benefit in that it will eliminate the necessity of still another lawsuit in order for the insured Thompson to be made whole.

II.

The accident in this case occurred when Thompson was southbound on Highway 71, while defendant was traveling in the opposite direction, northbound. The testimony on behalf of Thompson and his passenger was that “as the two vehicles approached, defendant was in the southbound lane and angling toward the Thompson truck; that after barely missing the forward part of the truck, and just after defendant passed their point of vision, they heard and felt a crash in the back part of the truck. Defendant testified that he was always on his own northbound side of the road and at no time came into collision with the Thompson truck.

The case was submitted to the jury under a verdict-directing instruction, No. 3A, which read as follows:

“Your verdict must be for plaintiff on plaintiff’s claim for damages if you believe :
“First, defendant drove on the wrong side of the road, and
“Second, defendant was thereby negligent, and
“Third, as a direct result of such negligence the plaintiff sustained damage,
unless you believe plaintiff is not entitled to recover by reason of Instruction Number 4.”

Defendant contends that this instruction erred in assuming the fact of a collision and failing to submit that disputed fact to the jury. This argument must be rejected. Instruction 3A followed MAI 17.13 (in the old form still in effect at the time of trial) and 17.01. It did submit the ultimate facts in accordance with the plaintiff’s theory of the case. A plaintiff is not required to hypothesize or otherwise notice defensive evidence introduced by his adversary and may omit reference to the defendant’s evidence which merely tends to disprove the plaintiff’s affirmative allegations and evidence. Turner v. Cowart, 450 S.W.2d 441, 444 (Mo. 1969).

A fundamental concept underlying the Missouri Approved Instructions is that only ultimate facts are to be submitted to the jury in counterdistinction to detailing a mass of evidentiary material. In this case the ultimate factual issue between the parties was submitted by paragraph Third of Instruction 3A which demanded that the jury find that plaintiff’s damage was a direct result of defendant’s negligence. The insistence by defendant that every subsidiary debated fact be included in plaintiff’s verdict directing instruction is virtually identical to that rejected by the Springfield District, pertaining to a wrongside of the road submission, in McCroskey v. Marshall, decided February 19, 1975.

III.

Defendant also attacks Instruction No. 3A on the ground that the introductory portion includes the phrase “on plaintiff’s claim for damages.” This phrase appears in brackets in MAI 17.01, with a Note on Use to the effect that this phrase is to be used where defendant has made a counterclaim. There was no counterclaim in this case, and defendant therefore argues that the insertion of the quoted phrase constitutes an impermissible deviation.

Rule 70.01 does require that where an MAI is applicable it must be given in that form. Furthermore, Rule 70.01(c) provides that the giving of any other form of instruction “shall constitute error, its prejudicial effect to be judicially determined.” The tendency of our courts is to insist upon strict compliance with this rule. Nevertheless, this insistence falls short of mechanical rigidity, and minor inadvertent deviations have sometimes gone without penalty. The appropriate criterion in such cases was stated in Wegener v. St. Louis County Transit Co., 357 S.W.2d 943, 949 (Mo. banc 1962), as follows: “ . for this Court to justify [the instruction’s] refusal for such slight and inconsequential deviations would be to set the standard above that required in the practical administration of justice.”

Illustrative of cases holding minor deviations to be nonprejudicial are Offenbacker v. Sodowsky, 499 S.W.2d 421, 424 (Mo. 1973), where an instruction incorrectly used the phrase “to have stopped” instead of “to stop”; Price v. Bangert Brothers Road Builders, Inc., 490 S.W.2d 53, 57 (Mo. 1973), where the instruction incorrectly used the phrase “defendant was negligent” instead of “defendant’s conduct was negligent”; Newsom v. Crockett, 453 S.W.2d 674, 676 (Mo.App.1970), where the instruction incorrectly contained insertion of the phrase “ordinary care which means”; Stahlheber v. American Cyanamid Co., 451 S.W.2d 48, 62 (Mo.1970), where the instruction incorrectly used the word “there” instead of “thereby”; Burrell v. Mayfair-Lennox Hotels, Inc., 442 S.W.2d 47, 48 (Mo.1969), where “should” was incorrectly used instead of “could”; Jackson v. Cherokee Drug Co., 434 S.W.2d 257, 262 (Mo. App.1968), where two unauthorized commas were inserted; and State v. Campbell, 433 S.W.2d 606, 613 (Mo.App.1968), where the instruction incorrectly used the phrase “willing and desirous” instead of “willing or desirous”.

The insertion into Instruction 3A of the unnecessary phrase “on plaintiff’s claim for damages” does not reflect the care which should be expected of good lawyers. Such error jeopardizes the results of a full trial and exposes a successful result to heavy risk. This type of practice is hardly to be commended. Nevertheless, a consideration of the facts of this particular case persuades the conclusion that the jury could not have been misled and that the deviation was not prejudicial.

Affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Winford Ray DURANT, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 26935.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Motion for Rehearing and/or Transfer Denied May 6, 1975.
    Application to Transfer Denied July 14, 1975.

      Willard B. Bunch, Public Defender, James W. Fletcher, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Donald R. Bird, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from denial of motion under Rule 27.26, V.A.M.R., to vacate and set aside judgment and sentence to twenty-five years’ imprisonment entered upon plea of guilty to a charge of murder, second degree.

On November 15, 1967, at about 8 p. m., Winford Ray Durant, age 14, and five other youths were assembled near Westport High School in Kansas City, Missouri. Mrs. Kinderman, a teacher at Westport, came out the front door of the school. Durant snatched her purse and ran. Prim-itivo Garcia came to the aid of Mrs. Kind-erman, whereupon Durant obtained a pistol from one of his companions and went after Garcia. Garcia ran, Durant shot at him twice attempting to wound him in the leg, and then fired a third shot which struck and wounded Garcia in the left side.

On November 21, 1967, the Juvenile Officer of Jackson County, Missouri, filed a petition in juvenile court pursuant to Section 211.091, RSMo 1959, V.A.M.S., alleging that Winford Ray Durant, age 14, was in need of care and treatment by the juvenile court in that on November 15, 1967, he did feloniously, wilfully, on purpose and with malice aforethought make an assault with a revolver on Primitivo Garcia and wound him in the side.

On November 22, 1967, the petition was sustained by reason of proof of the allegations there asserted, and Winford Ray Durant was committed to the temporary custody of the Missouri State Board of Training Schools for an indeterminate period of time. He was delivered forthwith to the custody of the training school at Boonville, Missouri.

On November 28, 1967, Primitivo Garcia died as a result of the gunshot wound inflicted on him on November 15, 1967, by Winford Ray Durant.

On December 8, 1967, the Juvenile Court of Jackson County directed the training school to deliver the temporary custody of Winford Ray Durant to the temporary custody of the juvenile court for proceedings arising from the death of Primitivo Garcia.

On December 11, 1967, after Garcia’s return to the juvenile court, a new petition in the interest of Durant came on for hearing and the juvenile court, pursuant to Section 211.071, RSMo 1959, V.A.M.S., dismissed the petition to permit prosecution of Durant under the general law.

On December 12, 1967, Winford Ray Durant was indicted for the murder, first degree, of Primitivo Garcia.

On February 5, 1968, Winford Ray Durant pleaded guilty to a charge of murder, second degree, reduced from the charge of murder, first degree, of Primitivo Garcia. The court made a record pursuant to Rule 25.04, V.A.M.R., determining that the guilty plea was voluntarily and knowingly entered, and, on May 13, 1968, following presentence investigation, rendered the judgment and sentence in question.

The motion in question was filed November 27, 1972, and it alleged, as grounds for relief: I. The plea of guilty was neither voluntarily nor intelligently entered; II. Movant was denied effective assistance of counsel; III. Discrimination and personal prejudice were permitted which denied movant equal protection of the laws.

The motion was amended March 22, 1973, to allege as grounds for relief: 1. Movant was denied effective assistance of counsel in that his attorney failed to prosecute an appeal from denial of a prior motion under Rule 27.26, denied July 9, 1969; 2. Error in allowing amendment of the charge; 3. Denial of due process in that (a) on November 22, 1967, movant was found to be under age 17 and in need of care and treatment under supervision of the juvenile court as a result of committing an assault with intent to kill upon Primitivo Garcia, (b) on December 11, 1967, after the death of Primitivo Garcia, the court found movant was not a proper subject for treatment under the Juvenile Code, (c) movant committed no further acts between November 22, 1967, and December 11, 1967, the only additional evidence being the death of Primitivo Garcia, (d) as a result, movant was denied due process of law.

Appellant no longer questions the volun-tariness of his guilty plea. Notwithstanding, he now contends: I. That he was denied due process of law, asserting that “the purported certification * * * to stand trial as an adult by the juvenile court * * * was void and beyond the jurisdiction of the juvenile court in that the court was without jurisdiction * * * after his commitment to and reception by the Missouri State Board of Training Schools for Boys as the result of his assault of November IS, 1967, of one Primitivo Garcia”; and II. That he was denied due process of law for the reason he was twice placed in jeopardy for the same offense in violation of Amendments V and XIV, United States Constitution and Constitution of Missouri, Article I, Section 19, V.A.M.S.

Appellant’s argument under Point I is that under Section 211.041, RSMo 1959, V.A.M.S., a juvenile court is deprived of jurisdiction to make any orders or findings with respect to a child once he has been committed to and received by the State Board of Training Schools and that a juvenile court can be reinvested with jurisdiction only by action of the State Board of Training Schools under Section 219.220, RSMo 1959, V.A.M.S.

Section 211.041, supra, did, at the time of these proceedings, provide that jurisdiction of a child could be retained for purposes of Chapter 211 until he attained the age of twenty-one years, “except in cases where he is committed to and received by the state board of training schools,” and Section 219.220, supra, does provide a procedure whereby the State Board of Training Schools may apply to the committing court for relief from its custody in cases where the child is in need of care which the training school is not equipped to provide.

Nevertheless, a fair reading of Section 211.041, supra, indicates that the loss of jurisdiction which results from a commitment to the State Board of Training Schools has reference to only those proceedings in which jurisdiction was initially obtained by the committing juvenile court. The obvious purpose of the statute was to prevent the juvenile court from retaining jurisdiction over a child in the original proceedings after his commitment to and receipt by the State Board of Training Schools. The statute does not purport to and may not reasonably be construed to prevent a juvenile court from acquiring anew, as distinguished from retaining jurisdiction over the child in other proceedings coming within the purview of Sections 211.021 and 211.031, RSMo 1959, V.A.M.S., as a result of jurisdictional facts arising subsequent to the original commitment of a child to and his receipt by the State Board of Training Schools.

In this case, Primitivo Garcia died subsequent to Durant’s commitment to and receipt by the State Board of Training Schools for care and treatment under the first petition as a result of his felonious assault upon Garcia. Durant was returned to the jurisdiction of the Jackson County Juvenile Court by the training school, and was thereafter subject to its jurisdiction under Section 211.031, supra; a new petition was filed under Section 211.091, supra, upon which the juvenile court exercised its newly acquired jurisdiction; and the petition was dismissed to permit prosecution under the general law as provided by Section 211.071, supra.

Appellant does not question that the circuit court thereafter acquired jurisdiction of the murder charge by way of the indictment; and the voluntary plea of guilty to that charge entered by Winford Ray Durant in the subsequent prosecution waived the defects, if any, in the proceedings preliminary to his guilty plea. Gallegos v. Cox, 358 F.2d 703 (10th Cir. 1966); McClure v. State, 470 S.W.2d 548, 557[5] (Mo.1971). See also McGlathery v. State, 465 S.W.2d 496 (Mo. 1971).

Appellant’s argument under Point II is that the State, by electing to prosecute him as a juvenile and by committing him as a delinquent to the State Training School for Boys for the assault upon Garcia, placed him in jeopardy so as to preclude further action against him for the homicide which resulted from the assault.

Other jurisdictions have recognized that adjudication and commitment in juvenile court proceedings for a specific offense bars subsequent criminal prosecution for the same offense. See, e. g., United States v. Dickerson, 168 F.Supp. 899 (U.S.D.C.D. C.1958), where the juvenile court took jurisdiction over a child on a charge of robbery and a subsequent prosecution for robbery upon waiver of juvenile court jurisdiction was held to be barred; Garza v. State, 369 S.W.2d 36 (Tex.Cr.App.1963), where a juvenile court adjudication of delinquency on account of the killing of Antonio Rodriguez was a bar to a subsequent prosecution for the same murder; Sawyer v. Hauck, 245 F.Supp. 55 (W.D.Tex.1965), where provision against double jeopardy barred prosecution of a child for killing his parents subsequent to a juvenile court adjudication based on the same two killings; Hultin v. Beto, 396 F.2d 216 (5th Cir., 1968), where a juvenile delinquency adjudication arising from a nonfatal assault of Michael Lethcoe and the killing of Linda Ruble barred subsequent prosecution for the same two offenses. See also Anonymous v. Superior Court In and For the County of Pima, 10 Ariz.App. 243, 457 P. 2d 956 (1969), recognizing “substantial authority that the constitutional ban against double jeopardy prevents prosecution in the adult court for the same offense upon which an adjudication of delinquency was predicated * * * [and] applies to juvenile proceedings, at least insofar as the charges are serious enough to carry a risk of the child being placed in an institution for juvenile offenders.” 457 P.2d l.c. 959[4].

The provision against double jeopardy is generally stated to be that an accused may not be twice tried for the same offense; and in order for a former conviction or acquittal to be a bar to a subsequent prosecution, the two offenses charged must be the same both in law and fact. State v. Toombs, 326 Mo. 981, 34 S. W.2d 61 (1930). In determining application of the principle, it must be recognized that a person may by one act violate more than one statute or commit more than one offense, State v. Moore, 326 Mo. 1199, 33 S.W.2d 905 (1930); that the test whether the offenses charged are one and the same is whether each offense necessitates proof of an essential fact or element not required by the other, United States v. Phillips, 432 F.2d 973 (8th Cir. 1970); Cardarella v. United States, 375 F.2d 222 (8th Cir. 1967), cert. den. 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967); that it is immaterial that the same evidence is utilized to prove each offense if each requires proof of an essential fact or element not required to support a conviction on the other, United States v. Johnson, 284 F.Supp. 273 (W. D.Mo.1968), affd. 410 F.2d 38 (8th Cir. 1969), cert. den. 396 U.S. 822, 90 S.Ct. 63, 24 L.Ed.2d 72 (1969); State v. Moton, 476 S.W.2d 785 (Mo.1972). See also Block-burger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

In this case the essential facts or elements that make the second charge of murder differ from the first charge of assault are the different statutes involved and the death of the victim. The charge of felonious assault on Primitivo Garcia which served as the jurisdictionál fact, Section 211.091, supra, in the original juvenile court proceeding involving Winford Ray Durant was thus not the same as the charge of murder subsequently placed against him to which he voluntarily pleaded guilty and upon which the judgment and sentence now in question were rendered.

Accordingly, this movant was not twice placed in jeopardy for the same offense. See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), holding that a charge of homicide made after the death of the person assaulted is not the same as a charge of the assault before the death of that person; one cannot be put in j eopardy for the offense of homicide prior to the death of the person upon whom the crime is committed. See also People v. Harrison, 395 Ill. 463, 70 N.E.2d 596 (1946), cert, den. 334 U.S. 812, 68 S.Ct. 1013, 92 L.Ed. 1744 (1948), holding that defendant’s acquittal on a charge of assault with a deadly weapon was no bar to subsequent prosecution for murder after death of the victim; State v. Wilson, 85 Ariz. 213, 335 P. 2d 613 (1959), holding that where defendant had been convicted of assault with a deadly weapon and the victim subsequently died, the former conviction did not bar a second prosecution for murder of the same victim because the crimes were not .identical or different grades of the same offense; and, to the same effect, see Commonwealth v. Vanetzian, 350 Mass. 491, 215 N.E.2d 658 (1966).

Judgment affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Calvin ROSS, Appellant.
    No. 9777.
    Missouri Court of Appeals, Springfield District.
    April 21, 1975.
    Motion for Rehearing or Transfer to Supreme Court Denied May 7, 1975.
    Application to Transfer Denied July 14, 1975.

      John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for respondent.
    James E. Spain, Briney, Welborn & Spain, Bloomfield, for appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Calvin Ross was convicted by a Mississippi County jury of assault with intent to kill with malice aforethought (§ 559.180, RSMo 1969, V.A.M.S.) and armed robbery (§ 560.135, RSMo 1969, V.A.M.S.). The jury could not agree on the assessment of punishment, and the trial judge sentenced the defendant to a prison term of 25 years on the felonious assault conviction and 30 years on the robbery conviction, the sentences to be served consecutively. In this appeal the defendant contends: (1) his prosecution and conviction for both the assault and robbery violated the rule against double jeopardy since the robbery was the result of the assault; (2) evidence of neutron activation analysis of gunshot residue on his hand was erroneously received; and, (3) the giving of MAI-CR 2.10 without modification was error. We affirm.

The defendant and his cousin, Robert Ross, were initially charged in New Madrid County. The information was in two counts. The first count alleged that, with intent to kill and with malice aforethought, they assaulted Willie Hardin with a loaded revolver and shot him, and the second count charged the two men with the armed robbery of Willie Hardin. Following a change of venue to Mississippi County an amended information was filed again charging the defendant and his cousin in two counts, the assault charge in the first count and the robbery charge in the second. A motion to require the state to elect between the two counts was denied.

The sufficiency of the evidence has not been questioned, but in order to demonstrate the non-applicability of the double jeopardy rule and to consider the defendant’s remaining points, we must narrate some of the facts giving rise to the charges and convictions.

Dee Barry owned and operated a grocery store-service station on Highway 61 about six miles north of New Madrid at a place locally referred to as Kewanee Junetion. On December 4, 1973, Mr. Barry had a medical appointment in Cape Girardeau and enlisted the services of 67-year-old Willie Hardin to operate the store during his absence.

Shortly after three o’clock in the afternoon Mr. Hardin heard a car drive into the driveway of the business. The defendant and Robert Ross entered the store, and Robert Ross began striking Mr. Hardin in the face and on the head with a pistol. Before losing consciousness from the blows and as he was lying on the floor, Mr. Hardin heard one of the men saying “hit him again, hit him again” and felt his billfold (containing $130.00 or $140.00) being removed from his pocket. The cash register was rifled of its contents. A canister containing contributions to a charitable organization and a double-barreled shotgun were also taken. Subsequent to the pistol-whipping of Mr. Hardin and removal of his billfold and while he was unconscious, Mr. Hardin was shot in the face by a pistol, resulting in the loss of an eye.

The defendant and Robert Ross emerged from the store and got into an automobile driven by Charles Williams. The car sped out of the driveway but was wrecked a short time later near the intersection of the road from Kewanee and Interstate Highway 55. Several hours later another car in which the defendant and Robert Ross were passengers was stopped by police officers and the two men were taken into custody. Two pistols were found in the car in the immediate area of where the defendant and Robert Ross had been sitting. The driver of the vehicle was unaware of the presence of the weapons.

In essence, Count 1 of the amended information alleged that Calvin Ross and Robert Ross on December 4, 1973, in New Madrid County, feloniously, and of malice aforethought, made an assault upon Willie Hardin with a pistol with intent to kill Willie Hardin and shot him. Count 2 charged that the cousins feloniously and by means of a loaded pistol, robbed Hardin of $230.00 by force and violence to his person.

At the close of all of the evidence the defendant re-filed his motion to compel the state to elect between the two counts, but it again was overruled and in separate verdict directing instructions both the assault and robbery charges were submitted to the jury.

In support of his double jeopardy claim the defendant relies upon the decisions of our Supreme Court in State v. Neal, 514 S.W.2d 544 (Mo. banc 1974), and State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970).

In State v. Neal the defendant and two others entered a store. The owner of the store was struck over the head with a pistol. A clerk was shot and forced to open the cash register and turn over money to the robbers. The robbers then left without doing anything else. The defendant was charged in three counts of an information. He was charged with the robbery of the clerk, assaulting the owner, and assaulting the clerk. The defendant was convicted on all three counts and consecutive sentences were imposed. The court held that since the robbery by taking money from the custody of the clerk was the result of the assault committed upon the clerk charged in a separate count, the separate assault of the clerk conviction could not stand. “To thus split the single crime of robbery and prosecute it in Count I and a second time in Count III as an assault violated the rule against double jeopardy.” 514 S.W.2d at 548. The court affirmed the robbery conviction, and further held that the assault of the owner was a separate crime and that submission and conviction of the defendant for that crime, along with the conviction for the robbery of the clerk, did not place the defendant in double jeopardy.

In State v. Richardson the defendant had been convicted of attempted robbery of a store clerk by placing a butcher knife in the clerk’s stomach and demanding money. A year later he was charged and convicted of assaulting the clerk with a knife. In reversing the second conviction the court said: “The applicable general rule, with which we agree, as stated in 22 C.J.S. Criminal Law § 287 at p. 752, is that ‘If there is but a single act of force proved as an essential element of the crime of robbery, then such act of force cannot be availed of as constituting the separate crime of assault, but the rule is otherwise where the existence of the distinct elements as realities is established, as where the force relied on to establish assault occurred after the robbery has been accomplished.’ ” 460 S.W.2d at 540.

The Richardson opinion contains cases in which the general rule has been applied and cases in which the aforementioned exception was held applicable. One of the latter cases is that of Ex parte Chapman, 43 Cal.2d 385, 273 P.2d 817 (1954). There the defendant’s initial assault during the course of a robbery consisted of threatening the victim with a gun. After the robbery the victim attempted to flee the scene, and the defendant slugged him with the pistol. The California Court, in holding the double jeopardy rule did not apply, found that the robbery was accomplished through putting the victim in fear of force (first assault), that the slugging of the victim thereafter (second assault) constituted the basis of the assault conviction and that both convictions could stand.

In this case the defendant .and his companion first assaulted Mr. Hardin by pistol-whipping him to the floor, and as a result of this initial act of force took his billfold and accomplished the crime of robbery. It was at a subsequent time, and after the completion of the robbery of Mr. Hardin, that a separate and distinct assault of Mr. Hardin took place — the shooting of him as he lay unconscious on the floor. The pistol-whipping assault resulted in the robbery of Mr. Hardin. The shooting of the elderly clerk thereafter constituted the basis for the defendant’s felonious assault conviction; and we hold the rule of double jeopardy is not applicable and there was no error in submitting both Count 1 and Count 2.

The defendant assigns error in the giving of MAI-CR 2.10 (Parties: General Responsibility for the Conduct of Others) because this instruction made no reference to the separate counts. However, following this instruction the court gave MAI-CR 2.70 (. . . Multiple Counts Requiring Separate Verdicts), and since all instructions must be read as a whole and construed together (State v. Cobb, 484 S.W.2d 196 (Mo. banc 1972)) we find no merit in this point.

The defendant assigns error in the admission in evidence of the results of a gun residue test arrived at by neutron activation analysis. He contends there was an insufficient foundation demonstrating the acceptability and reliability of the neutron activation analysis as to gun residue and, consequently, testimony as to findings and an opinion resulting therefrom were improperly received.

Following the defendant’s apprehension his hands were swabbed with cotton swabs to which a liquid solution [five percent nitric acid] had been applied. The swabs were sealed in containers and forwarded to the nuclear reactor at the University of Missouri — Columbia for neutron activation analysis.

At trial, over the defendant’s objection, the state was permitted to introduce the results of the neutron activation analysis of the swabs used on the defendant’s hands. Dr. Steve Morris, senior research chemist for the University of Missouri — Columbia, testified the chemical analysis of the defendant’s right hand, based upon the samples taken, showed appreciable amounts of barium and antimony. This, according to the scientist, was “indicative of [defendant] having recently handled and discharged a firearm.”

Neutron activation analysis has gained considerable recognition as applicable to a variety of testing procedures. It is a scientific technique developed in nuclear research and involves the detection of minute quantities of chemical elements, oft referred to as trace elements, in the sample material. A simplified version of the procedure involved is that the sample is placed in a nuclear reactor and subjected to atomic radiation in the form of neutron bombardment. This latter process causes the trace elements in the sample to become radioactive through induced radiation. The radioactive trace elements emit radiation in the form of gamma rays which can be electronically detected, analyzed and recorded.

In lodging his objection to the testimony of Dr. Morris, the defendant relied upon State v. Stout, 478 S.W.2d 368 (Mo. 1972), wherein our Supreme Court ruled that the particular technique utilized in the neutron activation analysis of blood samples had not yet gained general acceptance in the particular field in which it belongs. The defendant urges the rule in Stout should equally apply in firearm residue testing by neutron activation analysis and seeks to distinguish State v. Stevens, 467 S.W.2d 10 (Mo.1971), where neutron activation analysis of hair samples was approved.

We are of the view and hold that firearm residue testing by neutron activation analysis has crossed the line between the experimental and demonstrable stages and the evidential force of the principle must be recognized. The Minnesota Supreme Court, in so ruling in State v. Spencer, 216 N.W.2d 131 (Minn.1974), said at 134-35: “The reliability of neutron activation analysis in identifying the chemical composition of evidentiary materials was recognized by the United States Court of Appeals for the Sixth Circuit in United States v. Stifei, 433 F.2d 431 (6 Cir. 1970), certiorari denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971) ....

“Some 76 cases are listed in 15 Am.Jur., Proof of Facts (1973 Supp. p. 22) in which the results of neutron activation analysis were admitted in evidence ....

“While there seems to be little doubt that neutron activation analysis can accurately detect the presence and amount of certain chemical elements, it is doubtful that it can conclusively establish that those elements were present as the result of firing a weapon. . .

“However, the presence of these chemicals together in the amounts found on this defendant’s hands could reasonably provide some evidence that defendant had fired a gun. We hold the trial judge did not err in admitting the test results in evidence.

“We believe that neutron activation analysis is a useful law-enforcement technique and that the increasing use of technology in criminal investigations should not be inhibited but encouraged where consistent with the rights of the accused.

In reaching a similar result the court in People v. Pieropan, 72 Misc.2d 770, 340 N. Y.S.2d 31 (1973) said: “A new technique called ‘neutron activation analysis’ has been developed which has been defined as ‘a method of elemental analysis based upon the production of radioisotopes in the sample to be analyzed, by nuclear reactions induced by neutron bombardment, followed by the identification and quantitative measurement of the different radioisotopes formed.’ See, Vincent P. Guinn, Nonbiol-ogical Applications of Neutron Activation Analysis in Forensic Studies, in Methods of Forensic Science, Volume 3 (1964) In-terscience Publishers, England.

“This analysis is now being widely used to determine gunpowder residues, bullet residues, the composition of metals, alloys, drugs, soils, fibers, plastic tapes, concrete, rubber, ink, paper, paint and other materials.

“While we have been able to find no New York case which specifically has passed upon the admissibility of such evidence, there seems to be evidence that it has been accepted by the federal courts as meeting the tests of reliability and admissibility. United States v. Stifel, Dist.Ct., N. D.Ohio (April 1969) affirmed 433 F.2d 431 (6th Circuit). Certiorari denied. March 29, 1971, 401 U.S. 994, 91 S.Ct. 1232, 28 L. Ed.2d 531 (bomb debris) ; Missouri v. Stevens, November 1, 1969 (Cir.Ct., St. Lewis [sic] County, Missouri) affirmed (1971) 467 S.W.2d 10. Certiorari denied 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (hair and thread samples); State v. Coolidge, May 1965 (Super.Ct. New Hampshire). Affirmed (1969) 109 N.H. 403, 260 A.2d 547. Reversed on other grounds 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 2022[564], rehearing denied, 404' U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 1120 [120] (organic and inorganic particles)

. ”

The amended information is sufficient and the verdicts responsive to the issues tried and submitted. The punishments assessed are within the statutory range. Al-locution was granted and the judgment and sentences on each count lawfully imposed.

Judgment affirmed.

All concur.

      . See State v. Parsons, 513 S.W.2d 430 (Mo. 1974) (detonation of one bomb killed defendant’s wife, and state could not divide charges into murder and bombing) ; and State v. Cher-nick, 278 S.W.2d 741 (Mo.1955) (assault made during robbery against person not victim of robbery and not for purpose of compelling victim to part with money, two separate crimes committed).

      . Both barium and antimony are used in primer compositions for ammunition.

      . See United States v. Stifel, 433 F.2d 431 (6th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.24 631 (1971) ; State v. Coolidge, 109 N.H. 403, 260 A.2d 547 (1969), rev’d on other grounds, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ; 15 Am.Jur. Proof of Facts p. 115 (1964), p. 19 (1974 Supp.) ; F. Bailey & H. Rothblatt, Investigation and Preparation of Criminal Cases, (Supp.1975, 125-45) ; Comment, Identification of Evidence by Neutron Activation Analysis; 37 Mo.L.Rev. 295 (1972) ; Annot., 50 A.L.R.3d 117 (1973).

      . For a more definitive, detailed and scientific description of neutron activation analysis, the attention of the curious is directed to the articles found in 15 Am.Jur., Proof of Facts, p. 115; Comment, Identification of Evidence by Neutron Activation Analysis, supra; and, F. Bailey & H. Rothblatt, supra.

      . The text authorities shown in note 4 describe extensive studies of neutron activation analysis of gun residue and consider it a “highly reliable technique.”

      . Also see State v. Kassow, 28 Ohio St.2d 141, 277 N.E.2d 435 (1971), modified, 408 U.S. 939, 92 S.Ct. 2876, 33 L.Ed.2d 762 (1972) ; United States v. Kelly, 420 F.2d 26 (2d Cir. 1969). Cf. State v. Holt, 17 Ohio St.2d 81, 246 N.E.2d 365 (1969).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Charles WILLIAMS, Appellant.
    No. 9783.
    Missouri Court of Appeals, Springfield District.
    April 21, 1975.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Lawrence H. Rost, New Madrid, for appellant.

      Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   PER CURIAM.

The issue of double jeopardy raised by defendant in this appeal, following his conviction of felonious assault with malice aforethought and armed robbery, arises from the facts set forth in State v. Ross, 523 S.W.2d 841, decided this date. For the reasons and authorities contained in Ross the defendant’s point is denied, and the judgment of the trial court is affirmed.

All concur.


text:
    Billie G. LaFOUNTAIN, Appellant, v. Richard L. LaFOUNTAIN, Respondent.
    No. KCD 27188.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Motion for Rehearing and/or Transfer Denied May 6, 1975.
    Application to Transfer Denied July 14, 1975.
    Allan J. Fanning, Kansas City, for appellant.
    Robert M. Hickman, Philip F. Cardarel-la, Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Plaintiff, the divorced wife, appeals from a reduction in the monthly award made to her under a divorce decree entered in 1970. She sets forth five points of alleged error, of which Point IV makes the contention that the 1970 award was based upon a contract between the parties and therefore is not subject to judicial modification. Since we agree with that contention, the other points raised need not be considered.

Two days prior to the divorce hearing, the parties entered into a Property Settlement Agreement. That Agreement recited that the parties were “desirous of settling their property rights and interests for all time.” In paragraph 1 they agreed that the family home should become the sole property of the wife, with the husband executing a Warranty Deed, and the wife thereafter making all future mortgage payments. Paragraph 2 provided that the wife would receive all furniture and household contents, except that the husband should receive a two-wheel go-cart trailer, hand tools, power tools, drills, saws and tools stored on the premises. By paragraph 3 the husband relinquished all rights in a 1965 Oldsmobile to the wife, and by paragraph 4 the wife relinquished all her rights in a 1959 Oldsmobile to the husband; and each party agreed to make all future payments on the incumbrances on their respective automobiles.

Paragraph 5 of the Agreement specifies that the husband “shall pay” to the wife, subject to approval of the court, $150.00 as child support and $150.00 as alimony. Paragraph 6 deals with child custody and rights of visitation. Paragraph 7 required the husband to pay the wife’s attorney’s fees in the sum of $300.00, plus the court costs. Paragraph 8 gave to the wife two policies of insurance on the life of the husband and required the husband to pay the premiums on those policies and to retain the wife as primary beneficiary and the minor son of the marriage as contingent beneficiary.

Then paragraph 9 sets forth the following highly important provision: “The parties hereto mutually agreed that this agreement shall constitute a full and complete settlement of their property and marital rights.” In furtherance of that quoted provision, paragraph 10 sets forth full mutual releases by each party of the other “from all rights and claims arising by reason of the marriage or otherwise, including dower in and to any and all property now owned or hereafter acquired.”

At the 1970 divorce hearing, the Property Settlement Agreement just described was introduced in evidence. At the conclusion of the testimony the court stated into the record, “Let the record show a decree of divorce to the plaintiff. The plaintiff is awarded custody of the minor child, Mark Moyer LaFountain and is awarded $150.00 per month as child support and $150.00 per month as alimony.”

At the end of 1972, defendant retired from the police force and in the following July filed the present motion for modification of the allowances made in 1970. Plaintiff resisted modification, among other reasons on the ground here deemed decisive, that the award to her was contractual and, therefore, not subject to modification.

This issue is governed by the rule of law that spouses are free to contract with respect to provisions for future support to the wife, and if such an agreement is reached as part of an overall settlement of property rights, then the contract must be respected by the court, and if approved in connection with the granting of the divorce, those provisions may not thereafter be modified except upon mutual agreement of the parties. The law on this subject has recently been reviewed and comprehensively summarized by this court in Goulding v. Goulding, 497 S.W.2d 842 (Mo.App.1973), and even more recently by the St. Louis District in Nelson v. Nelson, 516 S.W.2d 574 (Mo.App.1974). As there stated, the question is whether the award to the wife should be construed as a contractual obligation or as having been made under the court’s statutory authority. The determination of this question depends upon the intention of the parties. In making this determination, the Goulding opinion rules that “each contract providing for an award of ‘alimony’ must be construed upon its own wording to ascertain the intention of the parties.”

In seeking to ascertain the intention here, a number of factors combine to show that the parties here did intend the provisions for child and wife support to be contractual obligations. In the first place, the title given to the instrument “Property Settlement Agreement” is of some importance. Alverson v. Alverson, 249 S.W.2d 472 (Mo.App.1952). More importantly, these obligations were cast in contractual language which stated that the defendant “shall pay” the specified amounts. Allcorn v. Allcorn, 241 S.W.2d 806 (Mo.App.1951); Wesson v. Wesson, 271 S.W.2d 214 (Mo. App.1954). Most importantly of all, the Agreement clearly provided “for the settlement of all their property rights.” Tysdal v. Tysdal, 235 S.W.2d 124, 128 (Mo.App. 1951); Allcorn v. Allcorn, supra; Wesson v. Wesson, supra; Alverson v. Alverson, supra; Goulding v. Goulding, supra; Nelson v. Nelson, supra.

Defendant argues in his brief that the award to the wife should be considered statutory rather than contractual because “the decree specifically provides that both the alimony and the support sum shall be payable until further order of the Court” and because “the Court provided for execution in default of payment.” There is nothing in the record on appeal showing that the divorce court made either of the provisions to which defendant now refers. The transcript contains only the ruling by the judge in the divorce proceeding which has been quoted above in this opinion, and that makes no reference whatsoever to the payments being until further order of the court nor with respect to execution in the event of default. Perhaps there was a formal decree entered in addition to the order quoted, but, if so, its provisions are left unproved.

Even if it be assumed that there was a formal decree and that it contained the provisions as maintained in defendant’s brief, such provisions would not dictate a different result. The contract in the Goulding case contained a provision for an award of execution for monthly payments due the wife, and the court nevertheless held the award contractual not subject to modification. Moreover, the Goulding opinion points out an apparent conflict in the cases as to the significance of the phrase “until further order of the court.” The latter phrase, in any event would be only one factor to be considered, and its appearance in the formal decree would not in this case overbalance the factors already mentioned which reflect a contractual intention.

The order modifying the divorce decree is reversed.

All concur.


author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eddie FLEMING, Defendant-Appellant.
    No. 36182.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 20, 1975.

      Charles D. Kitchin, Public Defender, G. Jeffrey Lockett, and James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., and K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., and Thomas J. Kavanaugh, Asst. Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

This is an appeal by the defendant-appellant, Eddie Fleming, who was charged, tried, found guilty by a jury and sentenced by the court to five years in the Department of Corrections for the offense of operating a motor vehicle without the consent of the owner. § 560.175, RSMo 1969, V.A. M.S. Sentence was imposed by the circuit court of the City of St. Louis on April 19, 1974. The defendant duly appealed. For reasons hereinafter stated, we affirm the judgment.

Since the appellant does not question the sufficiency of the evidence, we will review only the salient facts dispositive of the points raised on this appeal.

On July 29,1973, at approximately 6:30 p. m., James E. Grice, the owner of a 1965 Chevrolet, parked his automobile in front of 1417 Bissell Street in the City of St. Louis. About an hour later he noticed his automobile was missing and reported the incident to the police. He had not given the defendant permission to take or use the car.

The next evening, July 30, 1973, at about 9:45 p. m., Officer Charles Kiefer of the St. Louis Police Department was in his police vehicle traveling east on Lindell Boulevard when he observed a 1965 Chevrolet violate a traffic signal and make a right-hand turn at Vandeventer Avenue. The officer turned on his red lights and his siren and attempted to catch the vehicle. The Chevrolet turned into an alley and went west about two blocks and a half; the officer pursued the vehicle with his red lights on and siren sounding. At about the 4100 block, the Chevrolet stopped, one person got out of the vehicle, who was identified as the defendant, ran south across a parking lot towards West Pine Street, and around the front of a house next to the parking lot and down into a gangway. The officer pursued the person and caught him “right at the mouth of the steps in the basement area.” Officer Kiefer never “lost sight of this subject once. I was behind him at all times.” When the officer apprehended the person, he was placed under arrest for violating a traffic signal. When apprehended, the defendant had on a flowered print shirt and was breathing heavily. After apprehension, the officer and the person returned to the police vehicle and “called for a check to determine if the car was wanted for anything . . . .” The information was that the vehicle had been reported stolen the previous day. The appellant was taken to the district station. The officer telephoned Mr. Grice, who later picked up his vehicle at the towing garage.

On cross-examination, defense counsel brought out that there were other persons in the “gangway,” a man, woman and two children, and attempted to show on cross-examination that the person who alighted from the vehicle was not the same person apprehended by Officer Kiefer.

After the close of the state’s case, the following occurred:

“MR. LOCKETT [defense counsel]: Your Honor, . . . ladies and gentlemen of the jury, this is a part of this trial of wherein the defendant has an opportunity to set forth to you its [sic] theory of the case. [Emphasis added],
THE COURT: No, your evidence, what evidence you expect to produce, Mr. Lockett. Argument is for later on, after both sides have rested their cases. Proceed.
MR. LOCKETT: Your Honor, defendant would request the Court’s leave to pronounce his theory of the case, seeing as how the State has pronounced its theory-
THE COURT: This is that time where you will tell the jury what your evidence is expected to be. Proceed.
MR. LOCKETT: Your Honor, may I take that position that request is overruled?
THE COURT: Yes, they [sic] are. We understand the word theory to be argument, Mr. Lockett, in the sense that you are using it. It’s a word we understand as argument. This is the time when you set forth your evidence.
MR. LOCKETT: Your Honor, it is the defendant’s understanding that the State was allowed in its opening statement to go beyond precisely what the evidence was and to state a theory of the case.
THE COURT: Would you proceed with your statement, if you have one, Mr. Lockett, please.
MR. LOCKETT: Yes, your Honor.
Ladies and gentlemen, in light of this, I need to explain to you that the defendant has no evidence to present in this case; this is not to say the defendant does not have an interpretation of the facts that have been presented here.
MR. LOCKETT: I wish to address the jury and explain the situation and how it stands with the jury.
THE COURT: If you have any new matters to cover, Mr. Lockett, in — where the Court’s instructed you, you may proceed.
MR. LOCKETT: The defendant has no evidence to introduce at this time, your Honor.
THE COURT: Very well. Does that complete the opening statement of counsel?
Very well. Thank you very much.”

The defendant presented no evidence in his behalf. The court gave several instructions, including one on “flight.” The jury found the defendant guilty, and after motion for new trial was overruled and allocution was granted, defendant was sentenced to five years in the Department of Corrections.

On this appeal, appellant contends that the trial court erred (1) in denying defense counsel’s request to state the “defendant’s theory of the case in his opening statement” because such refusal contravened Rule 26.-02(4), V.A.M.R., gave the jury the impression that the defendant had to present evidence of his own in order to answer the charge and unfairly prejudiced the defendant’s cause, and (2) in giving the flight instruction over objection, because (a) evidence of flight is circumstantial evidence and is properly instructed upon by MÁI-CR 3.42, and (b) Rule 20.02 prohibits the use of an instruction not in MAI — CR when an MAI-CR instruction adequately covers the subject and (3) the instruction gave undue prominence to this aspect of the case and thus was highly prejudicial.

The appellant’s first point is novel. He argues that in his opening statement, which he reserved, he attempted to state his “theory” of the case, by which he means an “interpretation based solely upon the facts presented by the State.” But the trial court “limited his opening statement to an announcement that he had no evidence to introduce.” In so ruling, the court stated that it understood the word “theory” to mean “argument.” But appellant contends these are two separate concepts — “theory” simply connotes a “proposed explanation [of what?],” whereas “argument” suggests a “lengthy discussion or debate.” Appellant contends that, although he had no evidence to introduce, he did “have an interpretation of the facts which contradicted the State’s theory.” So, defendant concludes that he “merely attempted to outline his defense, not argue it [emphasis his],” and the trial court failed to recognize this distinction. He also argues that Rule 26.02(4) authorizes an opening statement broader than an announcement that “no evidence will be presented.”

Concerning his second point, appellant “frankly concedes” he is requesting this court to reverse the long-standing rule that a flight instruction may be given when warranted by the evidence. State v. Zerban, 412 S.W.2d 397, 402 (Mo.1967); State v. Bryant, 361 Mo. 318, 234 S.W.2d 584, 586 (1950). He requests this because (1) a circumstantial evidence instruction adequately covers the matter, (2) the flight instruction singles out evidence unfavorable to the defendant and thereby affords it undue prominence, (3) the recent adoption of MAI-CR indicates the desire of the Supreme Court to standardize criminal instructions and (4) the flight instruction is a comment on the evidence.

We rule both points against appellant and hold the trial court did not err on either point raised.

The principles relating to opening statements are well recognized and known. The “opening statement” of counsel is an outline of the anticipated proof, a forecast or preview of what counsel expects the testimony to show. Its primary purpose is to inform the court and the jury in a general way of the nature of the case, the outline of the anticipated proof and the significance of the evidence as it is presented; the purpose is not to test the sufficiency or the competency of the evidence. Hays v. Missouri Pacific Railroad Company, 304 S.W .2d 800, 804 (Mo.1957); State v. Fénix, 311 S.W.2d 61, 65 (Mo.App.1958); Zabol v. La-sky, 498 S.W.2d 550, 553 (Mo.1973).

And as a general rule, the opening statement “ ‘should be brief and general, rather than detailed, and should be confined to statements based on facts which can be proved and should not include facts which are plainly inadmissible.’ ” State v. Feger, 340 S.W.2d 716, 724 (Mo.1960).

The office of the opening statement and the principles relating thereto are applicable to both the prosecutor and counsel for the defense. Rule 26.02(4) provides that “[i]f the defendant’s counsel shall have reserved his opening statement until the close of the state’s case-in-chief, he may then state his defense . . . .” This Rule gives the defendant’s counsel the same right and latitude as the prosecuting attorney under the principles relating to an “opening statement.”

The trial court did not err in limiting defendant to the evidence defendant expected to produce. Appellant makes too fine a distinction between “theory” and “argument.” Counsel for defendant wanted to present his “theory,” that is, an “interpretation of the facts that have been presented here.” But counsel’s distinction between theory—simply a proposed explanation— and argument—a lengthy discussion or debate—is too fine a distinction to draw. The distinction is one without a difference.

The only purpose of the opening statement by either counsel is to “inform the jury what the case is about and to outline the proof that will be used—on the one hand to establish the commission of the crime and' on the other to outline the defense—so that the jurors may more intelligently follow the testimony as it is related by the witnesses.” Foster v. United States, 308 F.2d 751, 753 (8th Cir.1962).

The Standards Relating to the Prosecution and Defense Function of the American Bar Association Project on Standards for Criminal Justice provide as to the defense function that “[i]n his opening statement a lawyer should confine his remarks to a brief statement of the issues in the case and evidence he intends to offer . . . .” Standard 7.4. The Commentary to the Standard states that “[t]he purpose of the opening statement is narrow and limited to a brief outline of the issues and the matters which counsel believes he can support with 'competent and admissible evidence . .” Standards, supra, at 267.

Furthermore, in this ease the witnesses for the state were cross-examined by defense counsel which brought out his theory of defense—that the defendant who was apprehended was not the one operating the vehicle. Officer Kiefer was extensively cross-examined. State v. Foster, supra, 308 F.2d at 753.

Under all* the circumstances, therefore, we bold the trial court did not err in denying counsel to state his “theory” of the case.

Next, appellant urges us to reverse the long-standing rule that a flight instruction may be given whenever warranted by the evidence. This we cannot do. Our Supreme Court has long held that a “flight” instruction is proper and is not a comment on the evidence. State v. Jordan, 306 Mo. 3, 268 S.W. 64, 70 (banc 1924); State v. Mein-inger, 306 Mo. 675, 268 S.W. 71, 77 (1925); State v. Bryant, supra, 234 S.W.2d at 586 (1950); State v. Coleman, 441 S.W.2d 46, 52-53 (Mo.1969). See State v. Hudson, 491 S.W.2d 1 (Mo.App.1973).

No circumstantial evidence instruction was requested or given and none was required, since the evidence was not entirely circumstantial. State v. Little, 501 S.W.2d 562, 563 (Mo.App.1973); Notes on Use to MAI — CR 3.42 (circumstantial evidence).

Although the Supreme Court on January 13, 1975, directed that after March 1, 1975, no “so-called flight or counter-flight instruction may be given,” MAI-CR 5.40, this explanatory note on flight is not retroactive. In approving and adopting some instructions in MAI-CR, we do not believe the Supreme Court intended to abolish others until specifically so provided. Rule 20.01 provides: “Approval of pattern instructions to juries . . . will be made from time to time by order of this Court.” The MAI — CR is necessarily incomplete and, until new and approved instructions are adopted by our Supreme Court, other instructions not contained therein still obtain. The Comments to the MAI-CR reinforce our belief that flight instructions were not to be barred retroactively. The comments of the drafting committee state:

“. . . Some of these [instructions] will be gathered together in the 5.00 Series, there to be quarantined and barred from further use [emphasis added].” MAI-CR Comments, Foreword at 13.

At the time of trial, the instruction was a proper one. We decline to reverse the Supreme Court’s long-standing rule that a flight instruction may be given whenever warranted by the evidence as to those cases which were tried before March 1, 1975.

We have read the entire record, the briefs and authorities cited by the parties. We find no prejudicial error and hence affirm the judgment of conviction.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . Instruction No. 6: “ ‘The Court instructs the jury that if you find and believe from the evidence that the defendant immediately or shortly after the incident described in the evidence fled for the purpose of avoiding arrest by the officers of the law and trial of an offense, if you find an offense was committed at the time in question, then such flight, if you find he did so flee, is a circumstance which may be taken into consideration by you in connection with all the other facts and circumstances in the case, in determining his guilt or innocence of the charge brought against him.’ . .

      . Appellant impliedly concedes that the evidence warranted the giving of the flight instruction.


author: GUNN, Judge.

text:
    Donnie Ray McCORMICK, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 35869.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 8, 1975.
    Motion for Rehearing or Transfer to Supreme Court Denied May 19, 1975.
    Application to Transfer Denied July 14, 1975.

      John C. Danforth, Atty. Gen., K. Preston Dean, II, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, John C. Briscoe, Pros. Atty., Ralls County, New London, James Millan, Pros. Atty., Pike County, Bowling Green, for defendant-appellant.
    William B. Spaun, Hannibal, for plaintiff-respondent.
   GUNN, Judge.

Defendant appeals from a denial of his application for writ of error coram nobis which was filed to vacate a judgment entered March 16, 1962. The judgment of March 16, 1962 was based on defendant’s pleas of guilty to charges of breaking and entering and stealing. Defendant was sentenced to a term of two years for breaking and entering, and a penalty of two years was assessed for stealing, with the sentences to run concurrently. He was granted a “bench” parole which was revoked in November, 1963, and the sentences were served. On February 28,1967, after trial as a second offender, defendant was found guilty of first degree murder and sentenced to life imprisonment. In support of his application for writ of error coram nobis, defendant asserts that he was not represented by counsel at the time he pleaded guilty to the charges on March 16, 1962; that under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the convictions for breaking and entering and stealing stand as invalid as a basis for trying defendant as a second offender on the first degree murder charge in 1967. We disagree with defendant’s position and affirm the trial court’s action in denying defendant’s application.

Defendant’s use of coram nobis as the vehicle for attacking the validity of a sentence already served is correct. State v. Crow, 475 S.W.2d 71 (Mo.1972); Stoner v. State, 507 S.W.2d 80 (Mo.App.1974). But the defendant has the burden of proof for relief by the preponderance of the evidence to set aside his plea of guilty and vacate the conviction. Deckard v. State, 492 S.W.2d 400 (Mo.App.1973). In this case, defendant’s application for relief through coram nobis must fail for two separate reasons.

First, the defendant “must demonstrate that he is suffering from present adverse legal circumstances in order to invoke coram nobis relief from a sentence already served.” Deckard v. State, supra, 492 S.W.2d at 403. The defendant must also show that he will achieve some benefit from the relief sought. Powell v. State, 495 S.W.2d 633 (Mo. banc 1973). Here, the defendant can show neither present adverse legal circumstances nor that coram nobis would provide relief for him. In 1967, defendant was convicted of murder in the first degree and sentenced under § 559.030 RSMo, V.A.M.S., to life imprisonment, which is the minimum sentence for first degree murder. McClain v. State, 448 S.W.2d 599 (Mo.1970); State v. Floyd, 403 S.W.2d 613 (Mo.1966). Assuming arguendo, that the relief sought would be granted and the 1962 conviction vacated, defendant’s position is not improved. Life imprisonment would have been imposed for the 1967 first degree murder conviction — second offender or not. Since defendant cannot suffer from any present adverse legal circumstances resulting from the 1962 conviction, there was no error in the trial court’s denial of the application for writ of error coram nobis. Powell v. State, supra; Stoner v. State, supra.

Second, defendant’s assertion that his waiver of counsel at his 1962 guilty plea was not voluntary or intelligently made as “his intelligence and education gave him no guide in this unfamiliar milieu” facing a criminal charge is also untenable. While the State must demonstrate that there has been a knowing and intelligent waiver of counsel at the time a plea of guilty is entered, Morris v. State, 456 S.W.2d 289 (Mo. 1970), the record here firmly establishes that defendant did knowingly and intelligently waive his right to counsel at the time of his plea of guilty in 1962. The record shows that the defendant had previous experience, prior to 1962, with court proceedings and pleas of guilty on his part on other charges; that in response to questioning by the court, defendant acknowledged that he had the right to an attorney and wanted to waive that right and enter his plea of guilty. Defendant was not unfamiliar with the purpose and procedure for appointment of counsel. On the record before us we find that the waiver of counsel by defendant at the 1962 proceeding was knowingly, voluntarily and intelligently made. See Powell v. State, supra.

We find that the trial court was not erroneous in denying defendant’s application for a writ of coram nobis and affirm the judgment.

SIMEONE, P. J., and McMILLIAN, J., concur.