author: CADENA, Justice.

text:
    Richard CUSSON, Appellant, v. FIREMEN’S AND POLICEMEN’S CIVIL SERVICE COMMISSION OF SAN ANTONIO, Texas, et al., Appellees.
    No. 15361.
    Court of Civil Appeals of Texas, San Antonio.
    May 28, 1975.
    Hernden, Brown & Campion, A. L. Hernden, San Antonio, for appellant.

      Crawford B. Reeder, City Atty., Jackson C. Hubbard, Jake N. Talley, Asst. City Attys., San Antonio, for appellees.
   CADENA, Justice.

Appellant, Richard Cusson, complains of the refusal of the district court to set aside the order of the Firemen’s and Policemen’s Civil Service Commission of the City of San Antonio dismissing him from his position as patrolman in the San Antonio Police Department.

Appellant does not here contend that the procedural requirements prescribed by the Firemen’s and Policemen’s Civil Service Act (Article 1269m, Vernon’s Tex.Rev. Civ.Stat.Ann. [1963]) were not followed, nor is there any doubt that, following the entry of the dismissal order by the commission, appellant timely perfected his appeal to the district court as permitted by Section 18 of the statute.

The rules adopted by the commission in obedience to the mandate of Section 5 of the statute provide that a fireman or policeman may be removed or suspended for neglect of duty, failure or refusal to carry out instructions, acts of misconduct while on duty, or violation of any rules or regulations of the department. The written charges filed by the police chief accused appellant of failure to carry out the instructions given him by the police dispatcher; signing a false report; committing an unnecessary act of violence toward a prisoner; and failure to preserve the peace, prevent crime and enforce the ordinance of the city and the laws of the state.

The scope of judicial review of the commission’s order is, of course, limited by the substantial evidence rule. There are countless decisions to the effect that the order of an administrative agency must be upheld if it is reasonably supported by substantial evidence introduced in the trial court. It is also well settled that in reaching its decision the court must consider all of the evidence heard by it. The decisions also announce that the statement of the test in terms of a finding that the administrative order is reasonably supported by substantial evidence gives a broader scope to judicial review than that which would be permissible if the test merely required that the order be supported by some substantial evidence. Lewis v. Southmore Savings Association, 480 S.W.2d 180, 184 (Tex.1972); Hawkins v. Texas Company, 146 Tex. 511, 209 S.W.2d 338, 340 (1948). It would appear that the statement of the test in terms of reasonable support, rather than some is but another way of stating that the reviewing court must consider all of the evidence.

Appellant calls our attention to cases such as Texas Liquor Control Board v. O’Fallon, 189 S.W.2d 885, 888 (Tex.Civ.App.—Dallas 1945, no writ), where it was said: “ ‘Substantial evidence’ ... is such evidence as will convince reasonable men, and on which such men may not reasonably differ; that is, competent evidence as a reasonable mind might accept as adequate to support a conclusion.” Although this language was quoted with approval by the Amarillo Court of Civil Appeals in Lowe v. Texas Liquor Board, 255 S.W.2d 252, 257 (1952, no writ), it is not only erroneous but self-contradictory. To say that a finding is reasonably supported by substantial evidence only when the evidence is such that reasonable men may not reasonably differ is to say that a conclusion is reasonably supported by substantial evidence only when the existence of the fact is established beyond a reasonable doubt, since if doubt as to the existence of the fact can be classified as reasonable, it cannot be said that men may not reasonably differ as to the existence of such fact. This notion concerning the meaning of the test is clearly incompatible with the second part of the O’Fallon which speaks of substantial evidence as “evidence as a reasonable mind might accept as adequate to support a conclusion.” As we understand the test, the question is not whether the administrative conclusion is one as to which men “may not reasonably differ,” but, rather, whether reasonable men might, from the evidence, reach the conclusion which the agency reached. That is, in reviewing administrative action, a reviewing court is concerned with a reasonableness of the action, rather than with its “rightness.” That is, an administrative decision must be upheld if it is reasonable, under all of the evidence, even though in the opinion of the reviewing court the decision is not “right” in the sense that the reviewing court would have reached a different conclusion on the same evidence. This is what is meant when it is said that a court, in reviewing administrative action, may not substitute its judgment for that of the administrative agency.

The fact-finding process often, if not always, requires the drawing of inferences from the evidence. That is, “A fact finder may draw inferences from the words or gestures or inflections or demeanor of a particular witness, may infer a particular basic fact from the testimony of one or more witnesses on one side or on both sides, and may assume an ultimate fact from undisputed basic facts or from an entire record of conflicting evidence.” 4 Davis, Administrative Law Sec. 29.05, p. 137 (1958). If, from the evidence, although conflicting, reasonable minds might find the existence of the basic fact, A, and if, from the existence of fact A, reasonable minds might infer the existence of the ultimate fact, B, then the reviewing court must conclude that the finding of the existence of fact B is reasonably supported by the evidence, even though the court, given the same evidence, would conclude that the “right” inference is that of the nonexistence of B. A correct application of the substantial evidence rule makes it essential that this distinction between “reasonable” and “right” be kept in mind constantly. Even if we indulge the presumption that “right” conclusions are necessarily reasonable, this does not mean that “wrong” conclusions are necessarily unreasonable.

It is also well settled that the party seeking to set aside the order of an administrative agency has the burden of proving that the order is not reasonably supported by substantial evidence. Redd v. Texas Employment Commission, 431 S.W.2d 16 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.). This conclusion is compelled by the fact that where judicial review of administrative action is governed by the substantial evidence rule, the action of the administrative body is presumed to be valid. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex.1966). We make this observation because the record before us reflects that the trial court was of the opinion that the burden was on the administrative agency to establish that its action was reasonably supported by substantial evidence. That is, the trial court placed on the commission the burden of establishing the validity of its action. The burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action. However, since the trial court ruled in favor of the validity of the commission action, the error in requiring that the commission come forward with evidence establishing the validity of its action was harmless.

The question we must decide, then, is whether the evidence introduced in the trial court establishes that the action of the commission is not reasonably supported by substantial evidence. Stated differently, the question is whether, in view of all of the evidence heard by the trial court, appellant discharged his burden of establishing that the action of the administrative agency was, to use the stereotyped phrase, “arbitrary, capricious and unreasonable.”

1. Failure to Carry Out Dispatcher’s Instructions.

Rule 44 of the “Rules and Regulations of the San Antonio Police Department” states that all officers, regardless of rank, “shall carry out the instructions given them by the Dispatcher.” The charge that appellant violated this rule was supported by a specific allegation that on October 16, 1973, at 4:30 A. M., while he was on duty, appellant “failed to make a call at 7757 Highway 90 West, as directed by the police dispatcher.”

At the time in question, appellant was on patrol in a police car. At that time, a student in the San Antonio Police Academy, Cadet Felton Randall, as part of his training prior to his appointment to the position of patrolman in the police department, was riding with appellant. At about 4:30 A. M., the car was stopped and appellant was out of the car. Cadet Randall, who had remained in the car, received, over the car radio, instructions to investigate a “suspicious vehicle” at 7757 Highway 90 West, in San Antonio. When appellant returned to the car, the cadet informed him of the call. According to the cadet’s testimony, appellant stated that they were not going to “make the call,” and that Randall should wait “five, maybe ten minutes” and then call the dispatcher and ask for a case or assignment number and write a report. Randall, while he was waiting as instructed by appellant, wrote a report. He then called the dispatcher, received a case number, placed that number on the report, and handed the report to appellant. Appellant, after reading the report, said it was “fine” and signed it.

The report, which was turned in as an official report in accordance with official regulations by appellant, states: “Was sent to the above loc. for a suspicious RED VEGA, UNK YEAR AND UNK LICENSE PARKED behind the Texas Speed Shop at the above loc. could find no suspicious veh. or persons.” The evidence establishes that the report is in the handwriting of Cadet Randall and signed by appellant. In a square captioned “Time and Date Prepared,” there appears, in a different handwriting, “0615 10 — 16— 73.”

Cadet Randall testified that he remained with appellant until 6:00 A. M., at which time Randall’s tour of duty ended, and that appellant did not go to 7757 Highway 90 West to investigate the red Vega as ordered by the dispatcher.

Appellant testified that 7757 Highway 90 West was the address of a business establishment known as Texas Speed Shop, which had been burglarized prior to October 16. Because of the burglary, he had been paying particular attention to that location. For one or two days prior to October 16 he had noticed a red Vega parked there, and he testified that it was obvious to him that the car was being worked on. The Texas Speed Shop is an establishment which sells parts for automobile racers. He testified that he had told Cadet Randall that he was familiar with the red Vega, but denied telling Randall that they were not going to make the call. He stated that about an hour after the call was received he drove by the Speed Shop and saw the red Vega.

There is testimony by several police officers to the effect that it is customary for San Antonio policemen, when they are instructed by the dispatcher to investigate a “suspicious vehicle,” not to respond to the call if they are familiar with the vehicle and location in question and have previously determined that nothing is amiss. That is, if they have previously investigated the vehicle and address given by the dispatcher and have satisfied themselves that the vehicle is not, in fact, a suspicious vehicle, they do not, when instructed by the dispatcher to investigate the presence of that vehicle at that location, they do not return to the location and conduct a further investigation. However, the testimony concerning the procedure to be followed in such a case is not unequivocal. There is testimony which reasonably supports the conclusion that the practice is to inform the dispatcher that the presence of the vehicle has been previously noted and investigated, and that the officer is satisfied that nothing further need be done.

From the testimony as a whole, a reasonable mind could conclude that, in the absence of an explanation to the dispatcher explaining the circumstances which made a response to the call unnecessary, it was appellant’s duty to obey the dispatcher’s instructions.

2. Making a False Report.

Rule 29 provides that no police officer shall willfully misrepresent any matter or “sign any false official statement or report. . . .”

Much of the testimony outlined in connection with the charge of failing to carry out the instructions of the dispatcher is relevant to this charge. Appellant does not contend that the report signed by him was other than an official statement or report, but he insists that in view of the testimony concerning the practice with respect to instructions to investigate suspicious vehicles, his report was not “false.” His testimony to the effect that he went to the location about an hour after he received the call is contradicted by the testimony of Cadet Randall.

One of the officers called to testify by appellant, after referring to the common practice among San Antonio police officers concerning calls relating to suspicious vehicles, testified, when shown the report filed by appellant, that he would not have worded the report as appellant did. No witness testified that he would have filed a report worded as was the one filed by appellant. The report clearly indicates, or, at least, can reasonably be construed as stating, that, in response to the dispatcher’s instruction, appellant went to the Speed Shop and was unable to find a suspicious vehicle. This is clearly a reasonable interpretation of the statement to the effect that appellant “was sent” to the location in question. Even if the evidence is such as to compel the conclusion that San Antonio policemen habitually, with reference to instructions to investigate suspicious vehicles, file reports stating that they had responded to the call when in fact they had not, this does not establish that such reports are not, in fact, false. A “true” report under the circumstances would have stated that appellant had already investigated the vehicle in question and his investigation had revealed no reason for suspicion.

It should be pointed out that the only officer above the rank of patrolman who testified on behalf of appellant was a lieutenant who was not asked questions relating to what appellant describes as common practice among patrolmen. There is no evidence that the custom was approved, or even known, by any member of the department who occupied a supervisory position. Widespread deception is, despite its preva-lency, still deception.

3. Acts of Violence Toward a Prisoner.

After Cadet Randall had completed his tour of duty, appellant heard the dispatcher send Officer Trawick, who was on patrol in a district adjoining that of appellant, to investigate a robbery. Appellant notified the dispatcher that he was in the area and that he would go to the scene to “back up” Officer Trawick. Appellant arrived at the scene from which the robbery was reported, a filling station, before Officer Tra-wick. When he arrived he was approached by Ervin Carelock, who represented that he was the victim of the robbery and informed appellant that the robber was in a car parked behind the station. Appellant went behind the station and, after a few minutes, returned with the suspect, James Crowton. The suspect had been handcuffed, with his hands behind his back. Appellant placed the suspect in the back seat of the police car and Carelock sat with appellant in the front seat to answer questions concerning the robbery.

After a few minutes Officer Trawick arrived in a police car. With Trawick in the car was Police Cadet Felix Orosco. Trawick took the suspect, Crowton, who was sitting, handcuffed, in the back seat of appellant’s car, directly behind appellant, out of the police car. There is testimony, which will be summarized in connection with the final charge against appellant, that the prisoner was beaten and kicked by Trawick at that time and, later, at a different location. The only testimony of physical violence toward the prisoner by appellant was given by Carelock, the alleged victim of the robbery, who stated that appellant struck Crowton in the face with his flashlight while Crowton, handcuffed, was sitting quietly in the back seat of appellant’s car. Appellant denied striking Crowton, saying that the only time he touched Crowton was when he asked Care-lock if Crowton was one of the men who had robbed him, at which time appellant lightly touched Crowton on the shoulder with a flashlight.

Carelock admitted that during the hearing before the commission he had testified that appellant had “never touched” Crow-ton “in any way besides the time when he put him in the police car. . . .” In a sworn statement given to police authorities on the day after the incident in question, Carelock stated, “At no time did I see the robbers being abused by Officer Cusson, or did the robbers show any marks of being abused.” However, the testimony shows that Carelock had previously signed another statement reciting that appellant had hit Crowton with a flashlight.

Crowton did not testify. The record does not reflect his present whereabouts.

Proof of prior contradictory statements does not compel rejection of the present testimony of a witness. This should be particularly true when there is evidence to indicate that the prior statement was not correct. The statement made by Carelock on October 17 sets out not only that Carelock did not see the “robbers being abused,” but adds that the “robbers” did not “show any marks of being abused.” All of the evidence is to the effect that only one “robber” was involved in the incident in question. All of the evidence establishes that the “robber” did show signs of being “abused.” Appellant so testified and, in fact, in obedience to the instruction of a superior officer, appellant took Crowton to a hospital. Appellant testified that, even if he had not been so instructed, he would have taken Crow-ton to the hospital.

Under the circumstances, we cannot say that a reasonable mind would have rejected Carelock’s testimony at the trial. Care-lock’s testimony at the trial, if believed, reasonably supports the conclusion that appellant struck Crowton with a flashlight. Further, in view of circumstances which will be pointed out later, a reasonable mind might conclude, in view of all the testimony, that appellant was not giving a correct version of the incident.

4. Failure to Prevent Abuse of Prisoner.

The final specification alleges that while appellant had Crowton under arrest and handcuffed in appellant’s custody, appellant observed Officer Trawick kick, beat and pull the hair of Crowton, and appellant failed to stop or attempt to stop the abuse of his prisoner.

According to Carelock’s account of the alleged robbery, he had been robbed by two men. After appellant had apprehended Crowton, he questioned the prisoner concerning the identity of the other alleged robber. When Trawick and Orosco arrived on the scene, they went to appellant’s car. Appellant told Trawick that the prisoner’s answers were not satisfactory. It is undisputed that Trawick then took the prisoner out of appellant’s car. According to Orosco and Carelock, Trawick pulled the handcuffed prisoner out of the back seat, on appellant’s side of the car, by grabbing the prisoner by the hair. Orosco testified that Trawick took the prisoner about 8 or 10 feet away and began beating him, knocking the prisoner to the ground. While the prisoner was on the ground Tra-wick kicked him. According to both Oros-co and Carelock, the prisoner was screaming, asking Trawick to stop and insisting that he knew nothing of a shotgun which Carelock had reported had been used in the robbery and saying, “I don’t know.”

While this was going on, Carelock was in the front seat of appellant’s car. Appellant was also in the car, sitting in the driver’s seat. Orosco was outside appellant’s car, on the driver’s side. Orosco testified that while Trawick was using violence on the prisoner appellant told Orosco and Carelock that “this is the way it has to be done,” and told them that they hadn’t “seen” anything. Carelock testified that he could not see what was happening, but that he heard Crowton screaming. Appellant testified that he saw nothing and heard nothing. He admitted telling Orosco “This is the way it has to be done,” but he explained that he was merely referring to the fact that it is unwise to keep a robbery victim and the suspected robber in each other’s presence. He did not, at the trial offer any explanation for the fact that, prior to the arrival of Trawick, he had been questioning the victim and the suspect in each other’s presence.

When Trawick put the prisoner, still handcuffed, back in appellant’s car, appellant noticed that the prisoner had been beaten. Trawick and Orosco then returned to Trawick’s car, and both cars then proceeded to a location on Springdale Street, apparently to an address where Crowton had said the other alleged robber could be found. Trawick, on the police radio, told appellant that it appeared that Crowton was leading them on “a wild goose chase.” Both cars stopped. Trawick went to appellant’s car and pulled Crowton out of the back seat. According to Orosco, Trawick threw Crowton to the ground. All of the evidence establishes that appellant was also out of his car. Orosco testified that he noticed that a woman was standing across the street, watching what was going on, and that when he brought this to appellant’s attention appellant told Trawick, “Cool it.” According to Carelock, he heard Orosco mention that a lady was watching and heard appellant say, “Stop it, somebody’s watching.”

After making another stop to question a young man emerging from a house which, apparently, Crowton had designated as the home of the other alleged robber and determining that such person was in no way involved, the two police cars returned to the filling station.

According to appellant, when Trawick returned Crowton to appellant’s car at the filling station and appellant noted that the prisoner had been beaten, Trawick explained that the prisoner had attempted to escape.

In view of the testimony of Orosco and Carelock, it can reasonably be concluded that appellant could not avoid knowing that something was happening a few feet away. According to Orosco’s testimony, appellant saw Trawick throw the prisoner to the ground on Springdale Street. Appellant’s explanation that his remark to Orosco that “this is the way it has to be done,” meant merely that the victim and the suspect should not be kept in each other’s presence can reasonably be rejected in view of the fact that at all times thereafter appellant kept both the suspect and the victim in his car, rather than placing one or the other in Trawick’s car. Orosco, who was standing on one side of appellant, heard the prisoner screaming. Carelock, who was sitting on the other side of appellant, heard the prisoner screaming and, although he could not see what was happening, correctly interpreted the screams as evidence that the prisoner was being beaten. Under all the circumstances, a reasonable mind might properly conclude that appellant’s statement referred to resort to violence. This is particularly true in view of the fact that the remark about the manner in which things had to be done was’ accompanied by a suggestion that Orosco and Carelock “hadn’t seen nothing.”

We conclude that the evidence before us, considered in its entirety, does not warrant the conclusion that the action of the commission is without reasonable support in substantial evidence.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CHADICK, Chief Justice.

license: Public Domain

text:
    Ernest J. HAMITER and wife, Mary Frances Ellis Hamiter, Appellants, v. M. W. WESTMORELAND, Appellee.
    No. 8281.
    Court of Civil Appeals of Texas, Texarkana.
    May 20, 1975.
    Rehearing Denied June 17, 1975.
    Gaines Baldwin, Abney & Baldwin, Marshall, for appellants.
    Tony Hileman, Jefferson, for appellee.
   CHADICK, Chief Justice.

This action was cast as a suit on sworn account and expanded by trial amendment to state an action in quantum meruit for extras incident to a building contract. The judgment of the trial court is affirmed.

M. W. Westmoreland, a building contractor, and Ernest J. Hamiter and wife, Mary Frances Ellis Hamiter entered into a written agreement on or about April 5, 1971, in which Westmoreland agreed to furnish all labor to build an addition to a lake house owned by the Hamiters. The labor to be furnished included all carpentry, painting, plumbing, a septic system, electric wiring, and chimney, as well as labor necessary to run the concrete foundation and lay ten thousand king size bricks. The Hamiters agreed to furnish all material for the projected addition. At the time the agreement was made the parties discussed the probability that there would be changes or extras added as the structure developed. The project was undertaken with the understanding that Westmoreland would perform extra work if the need arose.

The agreed value of Westmoreland’s labor under the terms of the written contract was $4,690.00. This sum is not in question in this appeal. The simple issue in this appeal is whether or not Westmore-land offered evidence of probative force tending to show the reasonable value of the labor necessary to complete the extras.

The parties agree that the action plead confines Westmoreland’s recovery of damages to the amount of the expressed contract plus the reasonable value of additional services rendered with the knowledge or consent of the Hamiters. See 62 Tex.Jur.2d Work, Labor, and Materials, Sec. 25; also 10 Tex.Jur.2d Building Contracts, Sec. 51. The Hamiters’ position is as previously indicated, that Westmore-land failed to produce probative evidence of the reasonable value of the extras. Certain contradictions and inconsistencies in Westmoreland’s evidence and a claimed absurd result if his testimony is accepted as credible, are argued as reason for this court holding his testimony has little or no probative value. Also, evidence from qualified witnesses acquainted with the reasonable value of the extras disagreed substantially with that of West-moreland. To summarize in part, West-moreland claimed the reasonable value of the extras to be $6,213.00 while the Hami-ters’ expert witnesses place value at $1,398.05 and $1,528.60, respectively. Early in direct examination Westmoreland testified that his charge for the extras was at the rate charged by and in keeping with what other contractors in Northeast Texas were paid for similar services and was reasonable.

The reasonable value of extras does not depend upon any one factor but must be ascertained from the evidence and circumstances of the case. Determination of the question of reasonable value is for the trier of the facts, in this instance the trial judge. 62 Tex.Jur.2d Work, Labor, and Materials, Sec. 22 and 24. The trial judge exercises a prerogative in which he exclusively determines the credibility of witnesses and the weight to be given their testimony and thereby resolves the conflicts and inconsistencies in the evidence. The judgment rendered implies that the trial judge concluded that the reasonable value of the extras was $3,310.00.

The issue of reasonable value of the extras was initially addressed to the trial judge, as trier of the facts, and this court is not authorized to disturb such finding when the evidence and legitimate inferences therefrom, viewed in the light most favorable to the finding, has probative value. Seabrook Shipyard v. Lehrer, 297 S.W.2d 381 (Tex.Civ.App.Fort Worth, 1956, no writ); Googins v. Hable & Sons, 237 S.W.2d 705 (Tex.Civ.App.Waco 1951, writ ref’d n.r.e.). There is evidence in the record, which if given credence, supports the trial court’s judgment. Westmoreland was the only witness proffered in his behalf. Nothing in the record shows his testimony to be incompatible with established or unquestioned facts or otherwise to be of a nature that counter evidence greatly outweighs. There is no basis on which this court can rest a conclusion that the trial court’s finding is against the great weight and preponderance of the evidence.

No reversible error is shown. Appellants’ points of error are overruled. The judgment of the trial court is affirmed.


author: WELBORN, Commissioner. HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. James Ben JOHNSON, Appellant.
    No. 58221.
    Supreme Court of Missouri, En Banc.
    July 14, 1975.

      John C. Danforth, Atty. Gen., David Robards, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, for respondent.
    William M. Kunstler, New York City, Louis Gilden, St. Louis, Paul R. Hales, Clayton, for appellant.
   WELBORN, Commissioner.

Appeal from judgment and sentence of life imprisonment, entered on jury verdict finding James Ben Johnson guilty of murder in the first degree.

At around 2:30 P.M., January 23, 1970, Robert Lee Walker entered the University Jewelers Store, 6360 Delmar Boulevard, University City, Missouri, and spoke to the proprietor, Adam Bakos, about buying a wedding ring. A second man entered and conversed with Walker. The two left together.

A short time later the two men returned to the store. Walker told Bakos he wanted to buy one of the rings he had seen. When Bakos handed him the ring, Walker pulled a gun and told Bakos to go to the back room. Before doing so Bakos stepped on a silent holdup alarm.

Bakos went to the back room where Walker ordered him to lie down and tied his hands and feet. Bakos heard the cash register in the front of the store open and heard the second man say, “Come on, let’s go, I have got the stuff.” Walker said, “Wait a minute. I want to get some stuff too.” Bakos heard the front door close. As Walker was taking money from a safe in the rear, two University City detectives, responding to the alarm, entered the store. Gunfire was exchanged between them and Walker. One of the detectives, James Boevingloh, received fatal injuries. Walker was wounded and arrested at the scene. Walker received a life sentence on the charge of Boevingloh’s murder.

Officer Kannenberg of the University City Police Department arrived at the scene of the robbery as Walker came out of the store. Kannenberg went to the rear of the store. There in the alley he saw footprints in the recent snow and paper money and currency near the footprints, which led across the yard of a residence fronting on Washington Boulevard. He saw a Negro male, wearing a yellow sweater and dark pants, going east on Washington.

Officer Bernard had driven into the alley. Kannenberg told him of the man he had seen on Washington' and asked Bernard to put out a radio call describing the man and his movements. Bernard said that he and Kannenberg saw the man simultaneously. Bernard radioed the dispatcher that he thought he “possibly had one suspect” and drove east through the alley, parallel with Washington. He got glimpses of the man between buildings, sometimes running, sometimes walking fast. Bernard kept in radio touch with the dispatcher. When the man got to Washington and Skinker, Bernard pulled out of the alley onto Skinker. The man turned south and walked along Skinker to Kings-bury, where he crossed Skinker and entered a cab in a service station.

Bernard had followed the man along Skinker. Officer Dowling was in the vicinity to assist. When Bernard radioed that the man had gone to the service station and gotten into a cab, Dowling drove into the service station and placed the man under arrest. The man arrested was the appellant, James Ben Johnson. When the officer searched Johnson, he found no weapon. Johnson was carrying eight one-dollar and two five-dollar bills “in a wad” in his hand.

Dowling and another officer took Johnson to the police station. Officer Kannen-berg was at the station and observed that the pointed toed shoes Johnson was wearing “appeared to be the same as the footprints in the snow” that he had seen in the rear yard of the Washington Boulevard residence. Officer Dowling removed Johnson’s shoes. The officer testified that, when he removed the right shoe, two rings fell out. Bakos identified them as rings taken from his store.

When Walker was arrested, officers found a registration certificate for a 1968 Pontiac coupe in his billfold. A police dispatch advised officers to be on the lookout for the vehicle. Some 30 to 35 minutes after he had received the first call about the holdup, Officer Didden found the Pontiac on a municipal parking lot a few doors to the east of the University Jewelers Store. The car was eventually towed to the police garage. There officers examined the interior and found in the rear seat numerous items of jewelry which had been taken from Bakos’ store. A partial fingerprint on a ring tray found in the car was identified as Johnson’s.

Later that afternoon or in the early evening, Bakos viewed a lineup in which Johnson and four other men appeared. Bakos did not identify Johnson and picked out another person as “resembling” the man with Walker.

Johnson testified at his trial that he had been shooting dice at Delmar and Clara in St. Louis. The game broke up when the police came by at around 3:00 P.M. An acquaintance of Johnson, Steve Horne, who had been in the game gave Johnson a ride out Delmar to Skinker. Horne and other companions in the car were on their way to Washington University. After the car turned left on Skinker, Johnson said he did not want to go to Washington University and Horne let him out of the car in the vicinity of Skinker and Washington. Johnson said he crossed Skinker, got into the cab and told the driver to take him to Delmar and Clara. Just then the police arrived and placed him under arrest. Johnson denied that he had the rings in his shoes. Horne testified in corroboration of Johnson’s testimony. The cab driver testified that he saw Johnson cross Skinker and that he got in his cab. The driver noticed that Johnson had “crap money” in his hand and Johnson remarked, “Hustling was hard to-day.” Johnson said he had been gambling. Just then the police arrived.

On this appeal, the first contention of appellant is that the state’s evidence was insufficient as a matter of law to sustain the judgment of conviction.

Giving the state the benefit of the most favorable view of the evidence as this court must do on this appeal, the evidence made a submissible circumstantial case of appellant’s guilt. Two men participated in the holdup. After stating “I have got the stuff” one leaves before the police arrive. Loot is found in the automobile of the participant captured at the scene. The auto is near an alley in which footprints and a trail of money are found, leading to Washington Boulevard. A man in a yellow sweater and dark trousers is observed on Washington. A police officer drives through the alley parallel to Washington and sees the suspect from time to time, between the houses and outbuildings. He sees the suspect emerge on Skinker and watches him cross the street and enter the cab where he is arrested. At the police station, rings taken in the robbery are found in appellant’s shoes. His shoes are found to match the footprints in the snow, leading to the point where the officers first noticed him on Washington. Appellant’s fingerprint is found on one of the ring trays taken in the robbery.

This evidence, if believed by the jury, forged an adequate chain of circumstances to tie appellant with the robbery.

Appellant strenuously attacks the credibility of major items of evidence offered by the state, but credibility is for the jury, not the reviewing court. Inconsistencies in the testimony of the police officers are pointed out, but they do not rise to the level of destroying the state’s case.

If the evidence did make a submis-sible case that appellant was the second man in the robbery, it was adequate to support his conviction under the felony murder doctrine. The evidence would support the finding that he conspired with the actual killer to commit a robbery and that the killing occurred “in flight from the scene of the crime to prevent detection, or promote escape.” State v. Adams, 339 Mo. 926, 98 S.W.2d 632, 637 [5] (1936); State v. Paxton, 453 S.W.2d 923 (Mo.1970).

On February 27, 1971, the trial court entered an order sustaining defendant’s motion to require the state to furnish the defendant with copies of any and all “extrajudicial statements” made by defendant. The state produced nothing in response to the order.

The trial began on September 11, 1972, with the selection of a jury. The state’s opening statement was made the next day. In the course of the statement, the assistant prosecuting attorney said:

“Now, [Officer] Dowling, in questioning James Ben Johnson after he finds the rings in his shoes, asked him, ‘Where did you get them?’ And at this time, of course, he thought he was talking to Hall, and James Ben Johnson also known as Hall said, T bought them downtown.’ Well, when [Captain] Reich asked him, Where did you get the rings,’ he said, T was shooting dice.’ He told Reich also, T was never west of Skinker,’ he said, T was out there shooting dice with some other boys and one of them, or one or two of them left the game for a while and they came back and one of them dropped the rings on the ground and I picked them up and put them in my shoe.’ ”

This statement elicited no response from defense counsel.

In the course of the state’s case in chief, when direct examination of the state’s witnesses led up to the statements, defense counsel raised the objection that no such statement had been furnished him. Voir dire examination of Officer Dowling and Captain Reich disclosed that statements along the line of those referred to in the opening statement had been embodied in a police report and furnished to the prosecutor. Defense counsel moved to exclude the statements. The trial court eventually sustained the motion, based on the state’s failure to comply with the order to produce.

Defense counsel then moved for a mistrial, stating:

“Judge, at this time I am going to orally move that mistrial be granted and that the Jury be discharged on the grounds that the Defense and the Defendant has been irreparably prejudiced by that failure to comply with the order. Had I been furnished those copies in accordance with the order I would have drastically changed my position in the case; I am now faced with doing what I said I would do, such as testimony of the Defendant, and faced with the additional problem now of whether or not I can elude (sic) to what was said or whether I can ignore a question of rings, and faced with the problem of impeachment wherein the exact evidence that’s been excluded would then come in on impeachment, and my position is that I have been irreparably and irrevocably prejudiced. And I can’t correct it at this point, and I move that the Jury be discharged and a mistrial declared.”

The motion for a mistrial was denied. No further reference to the statements was made in the state’s case in chief.

The appellant testified in his own behalf. In response to questions from his counsel, appellant testified that Captain Reich participated in his questioning after his arrest. He testified that Captain Reich kept asking whether he was the man that did it and he denied that he was. He testified that Reich told him that if he would sign a confession and say that Walker was the man, they would probably let him go. According to appellant, he rejected such propositions. On cross-examination, the prosecutor asked appellant whether or not Captain Reich questioned him about where he got the two rings the police claimed to have found in his shoes. Defense counsel objected to the attempt to impeach appellant with a statement that had been stricken. The court overruled the objection and overruled a motion for mistrial, based upon the court’s approval of the question the prosecutor proposed to ask. The following question was then put to appellant:

“Mr. Johnson, you testified on direct while you were being questioned by Mr. Schwartz that Captain Reich of the University City Police Department questioned you about your part in the robbery. Isn’t it a fact that Captain Reich asked you what was your part in the robbery and shooting, and to that didn’t you reply: I was never west of Skinker; I came to University City in a car with Frog and two other colored men to shoot dice; Frog and one or two of the other colored men left the game for a while and Frog came back and dropped the rings and I put them in my shoe.”

Appellant responded: “No, I didn’t.”

In rebuttal, the state called Captain Reich, who, over objection, testified to the statement appellant made.

On this appeal, appellant contends that the trial court erred in failing to grant a mistrial when the nondisclosure by the state appeared and also in permitting Captain Reich to testify in rebuttal, making use of the previously excluded statement.

At the time this case was tried, Supreme Court Rule 25.195, V.A.M.R., was in effect. That rule, permitting discovery of a defendant’s statement, had no expressed sanctions. The presently effective rules of discovery in criminal cases include Rule 25.45, which provides:

“If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances. Wilful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.”

Although not so expressly stated at the time here involved, the trial court’s responses to the objections before it were, nevertheless, a matter for its exercise of discretion.

Although the discovery process in criminal proceedings is not compelled by either federal or state constitutional requirements (23 Am.Jur.2d § 312, Depositions and Discovery (1965)), the basic object of such process, insofar as a defendant is concerned, is to permit the defendant “a decent opportunity to prepare in advance of trial,” and thus extend to him the fundamental fairness which the adversary system aims to provide. State v. Scott, 479 S.W.2d 438 (Mo. banc 1972).

If the trial court feels that failure to produce on the part of the state will result in fundamental unfairness to the defendant, one of the sanctions it may employ is to exclude the unproduced statement. That was the original response of the trial court here. If such exclusion is enforced throughout the trial, it is difficult to perceive how the mere existence of the unpro-duced but excluded testimony is prejudicial to the defendant. Certainly the trial court is not required to apply the drastic remedy of a mistrial simply because the statement has not been produced.

The problem of fundamental fairness which the rule is designed to foster will ordinarily arise only when the content of the statement is made known to the jury. The jury in this case did receive the excluded statement in the guise of impeachment testimony. The court also, at the suggestion of defendant, gave an instruction to the effect that evidence of out-of-court statements of the defendant was offered only for the purpose of “whatever effect they might have as to his credibility * * * ft

The trial court evidently was impressed by the argument of the prosecutor that the situation was analogous to that in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), in which the Supreme Court held that a statement of a defendant, inadmissible in the state’s case in chief for failure on the part of the police to comply with the requirements of Miranda, might be used on cross-examination of the defendant, for purposes of impeachment.

In State v. Bea, 509 S.W.2d 474 (Mo.App.1974), the Missouri Court of Appeals, St. Louis District, found such analogy convincing in a case involving the use of a statement, excluded for nonproduction, for impeachment of a defendant who testified in his own behalf. In that case, the court reasoned as follows (509 S.W.2d 476-477):

“Thus we reach the threshold question, may a defendant be impeached by a prior inconsistent statement which the court had suppressed because the state had failed to permit discovery in obedience to the court’s order to permit an inspection. We deal here with neither a statement that was suppressed because it was the product of an in-custody interrogation where the interrogator failed to give the Miranda warning. Nor do we deal with a statement which claims to be coerced or involuntary. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), where the prosecutor was permitted to impeach the defendant’s credibility by the use of a confession that had been suppressed in the state’s case in chief for failure to observe the procedural safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although the Harris case, supra, is not altogether analogous, the same principle is applicable; i. e., any material prior inconsistent statements may be shown to impeach a defendant’s credibility, and the shroud of protection given defendant by sustaining his motion to suppress because of a breach of duty on the part of the state should not be perverted into a license for a defendant to use perjury by way of a defense, free from the risk of confrontation with prior material inconsistent utterances. Here, defendant testified that he did not carry a hammer for protection; and did not carry it with him as a weapon at the time he visited the Dillard home. Furthermore, he testified that he ran to his car to obtain the hammer to protect himself from a knife assault by Mr. Dillard, and that after Mr. Dillard fled, he was confronted by the victim who put into fear for his own life because she brandished a pistol. All of this testimony not only was material, but necessary to establish defendant’s right of self-defense. The court was placed in a dilemma. Was it to permit the positive assertions of defendant to go unchallenged by the state, and thereby pervert justice? We think not. We hold that it was proper for the state under the circumstances of this case to use defendant’s previously suppressed statements to attack his credibility in order that the jury could not only properly evaluate his testimony, but also aid them to reach a just verdict. To hold otherwise is to permit defendant to assume a virtue which according to the evidence he possesses not.”

There may well be instances in which the state’s interest in preventing the defendant’s allegedly perjurious testimony from going unchallenged should prevail over the policy considerations behind the disclosure rules. State v. Bea, supra, may well have been such a case. The opinion does not disclose whether or not the state’s case in chief had shown that the defendant came to the scene of the difficulty armed with the hammer. Had it not done so, to permit the defendant to testify as he did in support of his self-defense claim might well have left the jury with a false state of facts which the state would not controvert without the use of the suppressed statement.

Such was not the situation here. The state had direct evidence that the rings had been found in appellant’s shoes. The appellant had denied that the rings were in his shoes. If the appellant had committed perjury by his testimony, the evidence was already before the jury and the statement was not necessary to destroy his claim.

Insofar as the “fundamental fairness” which the rule is designed to promote, the differentiation between the use of the statement in the state’s case in chief and on rebuttal is practically a difficult matter. The court did instruct the jury that the evidence of the statement involved only the defendant’s credibility. However, when the impeaching statement goes directly to the guilt of the defendant and not to a collateral matter (see United States v. Skillman, 442 F.2d 542, 550 [7] (8th Cir., 1971)), to expect a jury to apply such a limiting instruction requires that general human reaction be ignored. Compare Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The fact that the evidence occurs late in the case may, in fact, well serve to leave a stronger impression upon the jury.

Essentially, what is called for, whether the use of an undisclosed statement is sought either in a case in chief or in rebuttal is a proper exercise of discretion by the trial court. In this case, when the question of use of the statement first arose, the trial court concluded that the defense had committed itself to a position at the trial which would have produced a fundamental unfairness had the state been permitted to employ the undisclosed statement in its case in chief. Having thus found the dereliction on the part of the state and prejudice to the defendant, the trial court should have required a showing by the state of a necessity for the use of the statement in rebuttal which overcame the fundamental unfairness previously adjudged.

The state’s reliance was upon the fact that on direct examination defendant had testified that Captain Reich had told him that if he would sign a confession they would let him go. The state contended that this gave them the right to impeach by showing the entire conversation between Reich and the defendant. The state was obviously using this argument in order to gain the benefit of the officer’s testimony about the rings. The defendant testified to no conversation with Reich about the rings. He possibly could have been impeached by Reich’s testimony that, he did not tell defendant that if he would sign a confession, he would be allowed to leave. However, the state was not content with that and convinced the trial court that as a matter of law it had the right to use the excluded statement.

The trial court’s response to the prosecutor’s argument and appellant’s objection was addressed to the prosecutor: “I will take a chance with you.” Such a ruling does not evidence a proper exercise of discretion so that the trial court’s action is not here subject to review only for abuse of discretion. See Laws v. City of Wellston, 435 S.W.2d 370, 375 (Mo.1968). Absent a ruling on such basis, this court concludes that the fundamental unfairness found on the original ruling was not overcome and the admission of the statement in rebuttal over the objection of the defendant was prejudicial error.

The state argues that the admission of the statement should not be held reversible error because of the failure of defense counsel to raise the question when the prosecutor’s opening statement revealed the existence of the appellant’s statement. Adequate answer to this contention is found in the fact that this consideration, along with the state’s excuse for nonproduction —the death of the assistant prosecutor handling the case at the time of the order to produce — was before the trial court at the time of its ruling on the original objection in the course of the state’s case in chief. The trial court did not consider the revelation of the statement in the opening statement adequate compliance with the order.

The state also argues that this court should follow the reasoning of Harris, saying “ * * * this court is hound to follow the decision of the Supreme Court of the United States * * This obligation extends only to matters of construction and application of federal constitutional and statutory provisions. As above pointed out, the case involves the construction and application of the rules of this court so that there is no requirement that this court adopt the reasoning of Harris.

Other points of error advanced by appellant should not recur on a new trial and require no consideration on this appeal.

Reversed and remanded.

PER CURIAM:

The Division One opinion by WEL-BORN, C., is adopted as the opinion of the Court en Banc.

SEILER, C. J., and MORGAN, BARD-GETT and DONNELLY, JJ., concur.

HOLMAN, J., dissents in separate dissenting opinion filed.

HENLEY and FINCH, JJ., dissent and concur in separate dissenting opinion of HOLMAN, J.

HOLMAN, Judge.

I respectfully dissent for the reason that I think the court ruled correctly in permitting the foundation for impeachment to be laid during the cross-examination of defendant and thereafter in admitting the impeaching testimony of Captain Reich. It is my view that this evidence was admissible as a matter of right and that its admission was not dependent on an exercise of the court’s discretion.

At the time the trial court made the order directing the state to furnish a copy of the statement and at the time of trial there were no sanctions provided in our rules for violation thereof. However, in State v. Scott, 479 S.W.2d 438 (Mo.1972), it was held that the failure to furnish such a statement rendered the trial fundamentally unfair where evidence thereof was admitted on the state’s case in chief. No doubt, in reliance upon Scott the trial court in this case ruled that the state could not prove the statements on its case in chief. In so doing, it complied with the requirements indicated by the Scott decision. However, the situation was entirely different when the evidence was sought to be offered in impeachment of the defendant. Section 546.260, RSMo 1969, V.A.M.S., provides that when a defendant testifies in a criminal case he “may be contradicted and impeached as any other witness in the case.” One of the most commonly used methods of impeaching a witness is to lay the foundation during cross-examination and then in rebuttal prove that he made the inconsistent statements he had denied making. State v. Elbert, 471 S.W.2d 170 (Mo.1971).

It has often been said that the right of cross-examination is accepted as a universal right, a right basic to our judicial system and one of the most valuable rights given by the law. The right to prove inconsistent statements that the witness has denied on cross-examination is a necessary extension to the right of cross-examination. These two rights, when combined, provide perhaps the most effective truth searching device known to the law. There is an abundance of authority supporting the action of the trial court in permitting that procedure to be followed in this case.

In Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1953), the use of heroin had been suppressed in a prosecution and thereafter the case had been dismissed by the government. In a later prosecution for another narcotics offense, the defendant testified that he had never had any narcotics in his possession. In that situation the court permitted a foundation to be laid and later proof to be made that the suppressed narcotics had previously been in the possession of the defendant. The Supreme Court, in ruling that such was proper, stated that, “It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.”

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1970), the defendant had made a statement to the police and upon the trial of the case the state offered the same in evidence but it was ruled inadmissible because the police had not complied with Miranda. Thereafter, the defendant testified to facts inconsistent with those contained in his statement to the police. In cross-examining the defendant the court permitted the state to question him concerning the statement, the prosecutor reading various questions and answers in that impeaching process. The trial judge instructed the jury that the statements attributed to defendant could be considered only in passing on his credibility and not as evidence of guilt. In ruling that the court did not commit error the Supreme Court stated that, “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had in-consistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.

“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” As indicated in the principal opinion the court of appeals in State v. Bea, 509 S.W.2d 474 (Mo.App.1974) adopted the Harris rule in a case almost exactly like the one before us.

In summary, it is my view that the court clearly ruled properly in permitting the evidence in question to be admitted and that such ruling is supported by the Walder, Harris and Bea cases heretofore discussed.

Assuming, for the purpose of discussion, that the principal opinion is correct in saying that this was a matter for the court’s discretion in determining whether the showing would be permitted, I am strongly of the opinion that the court exercised a sound discretion in this instance. The principal opinion quotes a statement of the trial court which indicated that the court was relying upon the research of the prosecuting attorney in permitting the evidence to be admitted. The principal opinion concludes therefrom that the court did not properly exercise its discretion in that regard and therefore the trial court’s action was not subject to review for abuse of discretion only. In that regard the principal opinion does not fully and fairly disclose the situation. When the state sought to lay the foundation by cross-examining the defendant, defendant’s counsel objected. Thereafter, there was a lengthy argument of counsel concerning the matter, which covers eight pages of the transcript. At the conclusion of that argument, the court made the statement in question and overruled the objection. Immediately thereafter and before the evidence was admitted, defendant’s counsel made a motion for a mistrial which caused the court to reconsider the matter, and, although it was apparently prior to the time of regular adjournment, the following occurred:

“THE COURT: I tell you what I am going to do, Gentlemen; I am going to recess this case until tomorrow morning at 9:30, and you and I and the court reporter are going into my office and discuss this problem.
“Mr. Schwartz: I will research it.
“THE COURT: And then we will come to a conclusion. All right; I think it is a fine point; I don’t want to rush too hastily.”

Upon convening the next morning the court, indicating a familiarity with Harris v. New York, permitted the ruling to stand. The above very clearly indicates that the court gave thorough consideration to this question and after an over-night recess decided it was proper to permit the jury to hear the evidence. In that situation the judge definitely exercised a discretion and we should review solely upon the question of an abuse thereof.

At the conclusion of the testimony of Captain Reich the court, at the request of defendant’s counsel, gave the jury the following verbal instruction:

“THE COURT: Ladies and Gentlemen of the Jury, the Court instructs you that the evidence of the statements should be considered only in passing on the accused’s credibility and not as evidence of guilt.” Also, Instruction No. 7 given by the court reads as follows:
“The Court instructs the jury that any evidence of statements by defendant out of this Court, if you so find, is offered merely for the purpose of whatever effect they might have as to his credibility and should not be considered by you as any evidence of his guilt.”

The action of the court in giving these instructions is precisely what was done in Harris, supra, in which case, as heretofore stated, the Supreme Court approved a ruling of the trial court similar to that made in the instant case.

I think these limiting instructions definitely would tend to confine the jury’s consideration of the statements to the appropriate subject of impeachment. I strongly disagree with the statement in the principal opinion indicating that the jury could not be expected to apply those limiting instructions. That statement is contrary to hundreds of decisions of the appellate courts of this state which have said that at varying stages of the trial an admonition to the jury to limit the effect of certain evidence or to disregard certain evidence, arguments or statements, would dispel any prejudice that might otherwise occur.

As indicated, I would rule that the court properly admitted the evidence in question. Assuming that there are no other points which would require a reversal, I would affirm the conviction.


author: SEILER, Justice. HOLMAN, Justice.

text:
    Dean E. NICHOLSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 58654.
    Supreme Court of Missouri, En Banc.
    April 14, 1975.
    Rehearing Denied July 14, 1975.

      William E. Stoner, Springfield, for appellant.
    John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
   SEILER, Justice.

This is an appeal from the denial of appellant’s motion to vacate sentence and set aside conviction under rule 27.26, V.A.M.R. The court of appeals, Springfield district, affirmed the action of the trial court, although on different grounds, and on appellant’s application, we transferred the cause to this court to resolve the question of whether a defendant on probation can proceed under rule 27.26. We will, however, dispose of the entire case the same as on original appeal, Art. V, Sec. 10, Mo.Const. 1945, V.A.M.S.

The facts are not in dispute. On March 9, 1972, in the circuit court of Phelps County, the defendant was found guilty by a jury of making and uttering an insufficient funds check. The jury fixed punishment at two years in the state penitentiary. On that day the defendant through his court-appointed counsel, Mr. Schafer, requested and was granted leave to file a motion for a new trial on or before April 17, 1972.

On March 23, Mr. Schafer filed a petition in the trial court to withdraw as defendant’s attorney of record, setting forth as his reason for such request that he was moving his residence from Phelps County. The court granted his request. At that time, no motion for new trial had been filed in defendant’s behalf.

On April 17, the time allowed by the court and by rule 27.20(a) for the filing of a motion for new trial expired, and no such motion had been filed in defendant’s case. On May 4, 1972, the court entered an order appointing Mr. B. B. Turley as defendant’s successor attorney. On May 8, Mr. Turley filed a petition for an order permitting the filing of a motion for new trial out of time in this court, which we ordered transferred to the Springfield district of the court of appeals. That court overruled the petition on August 22, 1972.

On November 29, 1972, appellant appeared with Mr. Turley in the trial court, which granted allocution, imposed a two years’ sentence, and further granted appellant’s application for probation, committing him to supervision of the State Board of Probation and Parole, with conditions as set forth later herein.

On July 2, 1973, while still under probation, appellant filed a motion to vacate sentence and set aside conviction pursuant to rule 27.26. As grounds for his motion, appellant contended that he was denied assistance of counsel during a critical state of the proceedings against him, and was thereby precluded from taking an appeal from his conviction. The trial court overruled the motion, stating only that the evidence presented by appellant was insufficient to sustain his burden of proof. For reasons discussed later herein, we hold that the decision of the trial court was clearly erroneous, rule 27.26(j), and reverse.

Before discussing the merits of appellant’s motion, however, the first question is whether appellant, who was never physically incarcerated, is entitled to invoke rule 27.26 to challenge the validity of his sentence. While the trial court denied appellant’s motion on the merits, the court of appeals affirmed solely on the ground that appellant was not “in custody” so as to allow him to bring an action under the rule.

Appellant’s probation was imposed pursuant to Sec. 549.071, which provides in part:

“When any person of previous good character is convicted of any crime and commitment to the state department of correction or other confinement or fine is assessed as the punishment therefor, the court before whom the conviction was had, if satisfied that the defendant, if permitted to go at large, would not again violate the law, may in its discretion, by order of record, suspend the imposition of sentence or may pronounce sentence and suspend the execution thereof and may also place the defendant on probation upon such conditions as the court sees fit to impose.”

Sec. 549.058(3) defines probation as “. . . a procedure under which a defendant found guilty of a crime upon verdict or plea is released by the court without imprisonment, subject to conditions imposed by the court and subject to the supervision of a probation service.”

In this case, the trial court pronounced sentence, suspended the execution thereof, and imposed the following conditions:

“1. Pay Court costs of this proceeding.
“2. Pay restitution through Prosecuting Attorney of $652.62 for check involved in this prosecution and $34.62 check dated August 25, 1971, made payable to St. James Standard Service.
“3. Co-operate fully with State parole officers.
“4. Obey all laws and city ordinances.” The record does not disclose whether or not any further conditions were imposed on appellant by the probation service.

In State v. Gray, 406 S.W.2d 580 (Mo.1966), this court held that a prisoner who had been released on parole during the pendency of the appeal from an order denying his motion to vacate was “in custody” for the purpose of invoking rule 27.26. While relying in part upon Sec. 549.261(3), which provides: “. . . Every prisoner while on parole shall remain in the legal custody of the institution from which he was released . . . ”, the Gray court also indicated that “custody” includes restraints other than actual imprisonment, stating (406 S.W.2d l.c. 581-82): ble detention of a prisoner, but also to measures whereby one person exercises any control over the person of another which confines such other person within certain limits.’ 199 S.W.2d l.c. 396[7]. And for purposes of habeas corpus, ‘any restraint which precludes freedom of action is sufficient, and actual confinement is not necessary.’ Hyde v. Nelson, 287 Mo. 130, 229 S.W. 200, 202[2, 3] [1921], 14 A. L.R. 339.”

“. . . In State v. Baker, 355 Mo. 1048, 199 S.W.2d 393 [1947], a prisoner who escaped while taking a walk on the prison farm with permission of the guard was in ‘custody’ within the statute defining escape from prison. ‘Custody’ was said to refer ‘not only to the actual corporeal and forci-

The Gray decision also cites Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), a habeas corpus proceeding where the petitioner was paroled during his appeal from the denial of his petition. In reversing the court of appeals decision, which had dismissed the case as moot, the Supreme Court stated: “While petitioner’s parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in ‘custody’ of the members of the Virginia Parole Board within the meaning of the habeas corpus statute . . ." 371 U.S. at 243, 83 S.Ct. at 377. See also Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), where the supreme court held that a petitioner who had been released on his own recognizance was “in custody” for purposes of habeas corpus.

Thus, in the context of both rule 27.26 and federal habeas corpus, “custody” is not limited to actual physical incarceration. The appellant in this case is hardly a free man. Persons on probation are subject to such conditions as are imposed by the court granting the probation and also by the board of probation and parole, Sec. 549.251. These conditions may include curfews, restrictions on travel, abstinence from alcohol, prohibitions against associating with certain persons, etc. Bond may be required, Sec. 549.091, and the probationer may be required to appear intermittently to submit proof that he has complied with all the conditions of his probation and conducted himself as a peaceful and law-abiding citizen, Sec. 549.081. “The liberty given to a person on conditional probation, parole, or pardon is subject to all conditions which are not illegal, immoral or impossible of performance.” State v. Brantley, 353 S.W.2d 793, 796 (Mo.1962). Probation may be revoked at any time for violation of any of these conditions, and sentence may be imposed or ordered executed without credit for the period of probation served, Sec. 549.101.

The court-imposed conditions in this case, for example, included restitution on two insufficient funds checks, one of which was not even involved in the prosecution. Thus the court imposed what amounted to civil liability upon the appellant through its broad discretionary powers to make conditions upon the granting of probation. We do not in the least intend to criticize this action of the trial court, we merely wish to point up the extraordinary duties, both affirmative and prohibitive, which may be visited upon a probationer. Because of these restraints and conditions, then, we hold that a person convicted of a crime and placed on probation is “in custody” for purposes of invoking rule 27.26.

Rule 27.26(b)(1) provides: “The provisions of this Rule may be invoked only by one in custody claiming the right to have a sentence vacated, set aside or corrected.” (emphasis supplied). We observe that slightly different language is employed in the opening paragraph of the rule: “A prisoner in custody under sentence . . . may file a motion at any time . . . to vacate, set aside or correct the same.” (emphasis supplied). The state argues that although appellant is undeniably in custody, he is not under sentence and so does not come within the terms of 27.26. In support of this contention, the state cites McCulley v. State, 486 S.W.2d 419 (Mo.1972), in which it was declared that probation is not a sentence.

In McCulley, the defendant alleged that he had been given a more severe sentence upon retrial (seven years with probation) than on his first conviction (two years in the penitentiary), thus violating North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which prohibits the imposition of a more severe sentence upon retrial (except when based on identifiable conduct occurring after the original sentencing) in order to avoid the possibility that a defendant might be deterred from exercising his right to appeal or collaterally attack his first conviction. We declined to apply Pearce retroactively to McCulley, and also declared that probation and parole could not be considered as part of the “sentence” imposed in making the determination of whether or not a second sentence is more severe than the original. To do so, it was stated, would necessitate a purely subjective evaluation as to the impact of sentencing on each defendant. Thus, for purposes of determining “severity” under Pearce, we stated that a “sentence” consists of the punishment that comes within the particular statute designating the permissible penalty for the particular offense. Probation and parole, however, are only conditional orders for the amelioration of the punishment.

The flaw in the state’s argument is thus apparent: it assumes that probation was the only action taken with respect to appellant’s conviction. Here the appellant’s punishment was assessed by the jury at two years in the penitentiary. Only the execution of that sentence was suspended by the court and appellant was placed on probation. For purposes of 27.26 appellant is nonetheless “under sentence”, and the custody of his probation flows from the sentence imposed but not executed.

With respect to the merits of appellant’s motion, we reverse the judgment of the trial court denying relief. Appellant contends that he was denied the assistance of counsel during a critical stage of the proceedings against him. In Ball v. State, 479 S.W.2d 486, 488 (Mo.1972), we held that inasmuch as a motion for new trial is a basic step in the process of perfecting an appeal, a defendant who is denied counsel at that stage is denied a federally protected right, Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969).

In Johnson v. State, 458 S.W.2d 713 (Mo.1970), the defendant was taken to the state penitentiary immediately after his conviction. The next day, he wrote letters to the trial judge and to his retained attorney in which he demanded that a motion for new trial be filed and if necessary, that an appeal be taken. No steps were taken in this direction by either counsel or the trial court. When defendant sought post-conviction relief, the state conceded that defendant had been unconstitutionally denied his right to appeal.

In State v. Jones, 446 S.W.2d 796 (Mo.1969), the defendant paid his attorney a fee to appeal his conviction but the attorney failed to do so. We affirmed the order and judgment of the trial court that the failure and negligence of counsel should not deprive the defendant of an appeal, and we granted defendant this opportunity.

In Holbert v. State, 439 S.W.2d 507 (Mo.1969), defendant alleged that his counsel had informed him that a motion for new trial had been filed and overruled, when in fact the motion had never been so filed. We held that defendant was entitled to an evidentiary hearing on his allegations, which if true, would entitle him to perfect an appeal.

In this case, appellant’s court-appointed counsel requested and was granted leave by the trial court to file a motion for new trial on or before April 17, such a request being necessary to receive the maximum time allotted for the filing of such a motion under rule 27.20(a). Counsel was allowed to withdraw from the case some 25 days before the time expired without having filed the motion, and new counsel was not appointed until after the time had expired. Appellant, of necessity and by right, relied on the court to provide him with counsel. He does not suggest that the court erred in allowing the first attorney to withdraw; rather, the error lies in that the court neither required him first to file the motion, nor appointed another attorney to do so within the time allotted.

The fact that appellant’s first attorney requested additional time to file the motion under rule 27.20 sufficiently demonstrates that appellant wished to appeal his conviction, and distinguishes this case from Green v. State, 451 S.W.2d 82 (Mo.1970), where there was no evidence that the defendant desired to appeal, and his decision to do so was held to be a mere afterthought.

Appellant argues that the only proper relief in this case is to set aside the judgment of conviction and allow him to be tried again, so that the time for filing a motion for new trial (which cannot be enlarged) may begin to run again. We have consistently held, however, that the appropriate remedy in cases where the right to an appeal has been unconstitutionally abridged, is to vacate the sentence and order the case remanded with directions to permit the appellant to file a motion for new trial. Johnson v. State, supra, on motion for rehearing, 458 S.W.2d at 716; Holbert v. State, supra; State v. Jones, supra.

The judgment of the trial court is reversed and the cause remanded with directions to vacate the sentence and judgment and to permit the defendant to file a motion for new trial and for further proceedings appropriate thereto consistent herewith.

MORGAN, BARDGETT, and FINCH, JJ., concur.

HENLEY, J., concurs in result.

HOLMAN, j., dissents in separate dis* senting opinion filed.

DONNELLY, C. J., dissents and concurs in separate dissenting opinion of HOLMAN, J.

HOLMAN, Justice.

I dissent. I see no reasonable basis for holding that a defendant who is not imprisoned but is free on probation is “in custody” within the meaning of Rule 27.26. If it is considered desirable to permit defendants who have been granted probation to seek relief under Rule 27.26 then this court should amend the rule and specifically so provide.

      . All statutory references are to RSMo 1969.

      . Appellant is not seeking to overturn the order granting probation, nor does he challenge any of the conditions imposed thereunder. We recognize that such an attack is not cognizable under rule 27.26, Smith v. State, 517 S.W.2d 148 (Mo.1974). In that ease, the defendant contended that due process was violated in that he was not granted probation.

        The court held that 27.26 will lie only to attack the sentence as such, and not the legality of orders relating to probation and parole. In this ease, appellant seeks to set aside the two-year sentence imposed upon him, irrespective of the fact that the execution thereof was suspended.

      . Furthermore, under this section, a probation revocation is an informal proceeding without benefit of many constitutional protections afforded to defendants in a normal trial. See Moore v. Stamps, 507 S.W.2d 939, (Mo.App.1974); Brandt v. Percich, 507 S.W.2d 951 (Mo.App.1974); Procedural Due Process in Probation and Parole, 39 Mo.L, Rev. 640 (1974).