author: ROBERT R. WELBORN, Special Judge.

text:
    SCHMELIG CONSTRUCTION CO., INC., a corporation, Appellant, v. MISSOURI STATE HIGHWAY COMMISSION, Respondent.
    No. KCD 27146.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 12, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      Speer, Herzog & Ponfil, Theodore D. Pon-fil, St. Louis, for appellant.
    Bruce A. Ring, Alfred K. Morían, Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Schmelig Construction Co., Inc., brought suit against the Missouri State Highway Commission, seeking $124,191.10 damages for breach of warranty of plans and specifications on a highway project contract and for breach of contract. On a jury waived trial, the court found for defendant. This appeal followed.

In 1968, the Missouri State Highway Commission sought bids on a highway project on Route 16 in the town of Canton. The project involved roadway paving and included the installation of storm sewers. The plans and specifications estimated that 6357 cubic yards of “Class 3 Excavation for Structures” would be involved in the work.

Schmelig Construction Co., Inc., a general contracting company, had previously done subcontracting work on highway department contracts and had only recently qualified with the State Highway Commission to receive contracts as a prime contractor. Schmelig received a description of the project and requested the plans and specifications from the State Highway Department. On the basis of the plans and specifications and following personal inspection of the job site by its representatives, Schmelig submitted a bid for the project. One other bid was submitted. Schmelig was the low bidder with a total bid of $335,231.15. Its itemized proposal included removal of the 6357 yards of “Class 3 Excavation for Structures” at $4.50 per yard. (By Section 50.6.4, Missouri Standard Specifications (1961), “Payment for removal of rock * * * will be made at the contract unit price for excavation for structures.”) Schmelig’s bid was accepted and on October 11, 1968, it entered into a written contract with the respondent for performance of the work.

The contract called for the work to be performed in 110 working days. Work began in December, 1968, but shut down shortly because of adverse weather conditions. When the work resumed in the spring, the contractor, in making the excavation for the storm sewers, encountered a considerable amount of limestone. The highway department had performed drilling tests in the project area in 1966 which showed the presence of the limestone, but no reference to that condition was made in any of the plans or specifications. The on-site inspection by Schmelig’s representatives had given them no reason to expect that rock would be encountered and their bid was based upon not encountering rock. According to Schmelig’s president, if he had seen the report of the Highway Department District Geologist which showed the presence of rock, Schmelig would not have bid the job because the removal of rock would have been too hazardous, the project being located in an inhabited area, and could not have been completed in 110 days.

Schmelig suggested a change in plans which would have avoided the necessity for removal of the rock, but the Highway Department rejected the proposal and required excavation as called for in the plans and specifications. As a result, Schmelig removed approximately 772 yards of rock by blasting at a cost to it of $90 per yard and 200 yards of rock by hand at a cost of $125 per yard.

The delay caused by removal of the rock contributed to Schmelig’s failure to complete the work in the 110 working days fixed by the contract. Liquidated damages of $100 per day for the 72 days additional time for completion were assessed against Schmelig.

The job cost Schmelig in excess of $440,-000. On January 8, 1971, it filed a claim against respondent for $124,191.10 to cover the additional cost of removing the rock. The claim was denied and this litigation followed.

Schmelig’s petition was in three counts. Count I was based upon misrepresentation and concealment. This count was dismissed by the trial court on motion of defendant and no issue is here raised on that action. Count II was based upon breach of warranty as to the sufficiency of the plans and specifications furnished by defendant to plaintiff. Count III was based upon arbitrary action of defendant in refusing to extend the time for completion of the project.

The trial court found against plaintiff on Counts II and III, finding that there had been no express warranty as to the subsoil condition present within the limits of “Class 3 Excavation for Structures” and that the disclaimer provisions of the contract and the duty imposed upon the contractor precluded the existence of an implied warranty on the subject. The court further held that there was no abuse of discretion in failing to grant an extension of time for completion of the project.

On this appeal, appellant contends that the failure of respondent to disclose the existence of the rock, known to it, constitutes a breach of warranty of the plans and specifications and a breach of contract.

This is not a case involving an affirmative representation by respondent as to the subsoil conditions on the job. Appellant points to no provision of the plans or specifications as constituting such representation. In the case of Denton Construction Company v. Missouri State Highway Commission, 454 S.W.2d 44 (Mo.1970), the court concluded that the plans and specifications there involved in effect represented that the previously prepared roadbed upon which Denton contracted to lay a concrete pavement had been constructed in accordance with such plans and specifications and that the contractor was entitled to recover for breach of warranty as to such condition, the breach consisting of a deficiency in the condition of the roadbed which required the contractor to supply a considerable quantity of material in order to bring the roadbed into condition for paving. See also Rock Hill Asphalt & Construction Company v. State Highway Commission, 452 S.W.2d 810 (Mo. banc 1970), concurring opinion of Finch, J., at page 814: “In my view, if the Commission affirmatively represents or warrants matters on which the contractor is entitled to rely, and then breaches that representation, it is liable for such breach.” (Emphasis supplied)

Nor is this a case in which the contractor sought the information possessed by the commission and the information was not furnished. Appellant does state that a pre-construction conference was held, attended by representatives of the contractor and of the commission. Appellant asserts that the purpose of the meeting was to discuss possible problems which might be encountered on the job. However, no problem of rock arose in the course of the discussion. Respondent’s representatives testified that, if appellant’s representatives had asked about rock, they would have told them what they knew, but since the question was not asked, they did not consider it was their “duty to inform them of that.” The absence of a request for information distinguishes this case from the case of Walla Walla Port District v. Palmberg, 280 F.2d 237 (9th Cir., 1960), cited and relied upon by appellant.

If there was a warranty upon which appellant might have relied, it would have to have been, in effect, an implied warranty by respondent that the plans and specifications contained the necessary information as to subsoil conditions, known to the respondent, to permit appellant to gauge the nature and extent of the work and to bid accordingly. The admitted fact of knowledge on the part of the commission distinguishes this case from Webb-Boone Paving Co. v. State Highway Commission, 351 Mo. 922, 173 S.W.2d 580 (1943), where the subsoil condition requiring additional work was known to neither the contractor nor the commission.

Neither party has cited a case in the state in which the issue here presented was passed upon by an appellate court. Respondent points to language in Webb-Boone, supra, in which the court disagreed with a contention that the commission was under the duty to “disclose all known conditions or conditions that could have been known by making a reasonable preliminary investigation.” 173 S.W.2d at 584. The court dismissed the contention, stating: “This is not the law.” Since that case did not involve a condition known to the commission, what was said about that situation is dictum.

Support for the theory of recovery advanced by appellant is to be found principally in decisions of the Michigan Supreme Court. In the three cases of Hershey Gravel Co. v. State Highway Department, 305 Mich. 333, 9 N.W.2d 567 (1943), W. H. Knapp Co. v. State, 311 Mich. 186, 18 N.W.2d 421 (1945), and Valentini v. City of Adrian, 347 Mich. 530, 79 N.W.2d 885 (1956), the court found liability on the part of the contracting body, based largely upon the failure of such body to reveal facts known to it pertaining to subsoil conditions and unknown to the other contracting party, the conditions encountered having substantially increased the cost of the work. In each of those eases, the plans or specifications in one way or another purported to describe the soil situation but for one reason or another such description did not accurately reflect the conditions known to the contracting body as a result of its testing procedures at the site of the work. In each case, the bidding materials warned the bidder not to rely upon soil notations on the plans and instructed them to satisfy themselves in that regard by examination of the site.

In each case, the court permitted recovery on a theory of breach of warranty based upon failure to reveal to bidders the full knowledge of the contracting agency regarding the subsoil conditions. In Va lenti-ni, the court stated:

“The withholding by the city of its knowledge of the known conditions, resulting in excessive cost of construction, forms an actionable basis for plaintiff’s claim for damages. Nor does the requirement that the contractor examine the specifications and make a personal examination of the site bar the plaintiff from recovering damages caused by the undisclosed subsoil conditions.” 79 N.W.2d 887.

In the first two of the above cited cases, there were strong dissents, joined in by three members of the eight-member court. In the Va lentini case, there was a concurrence in result, under compulsion of the earlier decisions, the author of such opinion noting that in this area, “Michigan has already gone beyond the general rule in most jurisdictions * * 79 N.W.2d 893. The dissenters emphasized the obligation imposed upon bidders to make their own examination of the site and the arm’s length nature of the dealing between the parties.

In those cases there was at least a basis for arguing and concluding that the contracting agency had represented the subsoil conditions to have been as disclosed by the bidding materials. In this case, the most that appellant has been able to point to is a provision of the Standard Specifications: “The conditions indicated on the plans and in the proposal represent information available from surveys, and studies, but the Commission assumes no responsibility with respect to the sufficiency and accuracy of such data.” Section 2.4.1, Standard Specifications (1961). In its brief, appellant asserts that its president testified that the plans “showed numerous subsurface conditions * * Examination of the page references cited to support this assertion does not confirm such statement. The witness did testify that the plans did not show rock, but he pointed out no subsurface conditions which did affirmatively appear and appellant has not directed attention to any part of the bidding materials which specify subsurface conditions.

In other cases from other jurisdictions, relied upon by appellant, there was some affirmative representation concerning conditions which was erroneous and not consistent with information in the hands of the contracting agency. Among such cases are Christie v. United States, 231 U.S. 234, 35 S.Ct. 565, 59 L.Ed. 933 (1915); Potashnick v. United States, 123 Ct.Cl. 197, 105 F.Supp. 837 (1952), and Alpert v. Commonwealth, 357 Mass. 306, 258 N.E.2d 755 (Mass.1970). The case of Davis, et al. v. Commissioners of Sewerage of City of Louisville, 13 F.Supp. 672 (W.D., Ky., 1936), contains much language relied upon by appellant. However the judgment of the district court in all respects here significant was reversed on appeal. Commissioners of Sewerage v. Davis, 88 F.2d 797 (6th Cir., 1937). It might also be noted that that case was considered as based on fraud and deceit and the district court noted that sewer construction is a proprietary function. See Clark v. City of Humansville, 348 S.W.2d 369 (Mo.App.1961).

In this case, there was no affirmative representation of subsoil conditions. Appellant was required to make its own inspection of the site and it did so. It made no request for the report on test borings made by the state. In these circumstances, the trial court properly held that there was no warranty by the respondent that the plans disclosed all information known to respondent and no warranty that rock would not be encountered on the project. The trial court, therefore, concluded correctly that no cause of action based upon breach of warranty had been made.

By Count III of its petition appellant alleged that it suffered damages because respondent “arbitrarily * * * refus[ed] 4 * * several requests for an extension of time in which to complete the project.” The trial court found against appellant on this issue. On this appeal, appellant contends that respondent arbitrarily refused either to permit a change in the plans or grant an extension of time. Inasmuch as the issue tried below and upon which the court made its finding was the failure to grant an extension of time, that issue is the only one properly before this court for review.

Section 8.8.2 of the Standard Specifications provides for requests by the contractor for the extension of time to perform the contract. There is no evidence that such procedure was followed. Therefore, the trial court correctly found no arbitrary refusal of extension of time by respondent.

Appellant contends that the trial court erred in failing to strike respondent’s pleading because of the failure of respondent to produce documents pursuant to the rules of civil procedure. Appellant’s motion was made under Rule 58.01 as it stood prior to the effective date of the new rule, January 1, 1975. ’ Before the motion was presented to the court, respondent’s counsel agreed to produce the documents requested. At a conference between the attorneys numerous documents were presented, but during the trial, appellant’s counsel discovered that numerous items which should have been produced in response to his request had not been produced. Upon such discovery, appellant filed a motion pursuant to then Rule 61.01 to strike defendant’s pleadings. A hearing was had on the motion. The trial judge properly rejected the defendant’s position that the documents not produced were protected from discovery as “work products.” They included a strip map, showing the existence of limestone, prepared by respondent’s staff long before the project was let for bids, as well as the diaries of the daily progress of various phases of the work and other papers.

The trial court was of the opinion, however, that it could not apply the sanction sought by appellant because such remedy was available only when the failure to produce was under a court order and none had issued in this case. The trial court suggested that it would grant a mistrial in order to permit appellant to examine the materials, but appellant’s counsel rejected the suggestion. The court then offered to set aside plaintiff’s submission, sustain its motion for production, and continue the case to permit plaintiff to present further evidence. To this suggestion, appellant’s counsel responded:

“I would prefer myself, rather than to do that, for you just to overrule the motion and proceed. We have a limited budget and what not to work on in these things. * * * I would prefer that the record show that the Court is overruling our motion and that if it’s necessary we will take it up at a later time. I still think I’m going to win this lawsuit and it might not be necessary and we would just as soon proceed to a conclusion rather than have to come back.” The court overruled the motion.

In this court, appellant’s point is that the trial court erred in failing to strike respondent’s pleading and in admitting certain (unspecified) evidence.

The imposition of sanctions for failure to comply with discovery orders is a matter for the exercise of discretion by the trial court. State ex rel. N. W. Elec. Power Co-operative, Inc. v. Buckstead, 399 S.W.2d 622 (Mo.App.1966); Hilmer v. Hezel, 492 S.W.2d 395 (Mo.App.1973). As Rule 61.01 stood at the time of the trial, the court was empowered to “make such orders in regard to the failure as are just * * Striking of pleading was among the sanctions authorized, but the trial court was not limited to such action as is more clearly shown by the present Rule 61.01. Under the language of the rule, the trial court cannot be held to have erroneously concluded that the drastic remedies authorized there were available only in cases in which an order of the court was not obeyed. The trial court here, in any event, offered appellant reasonable alternatives but appellant rejected them. Furthermore, appellant has not on this appeal pointed to specific information of which it might have made use and followed a different trial strategy had the requested documents been produced.

In these circumstances, there has been no showing of abuse of discretion which calls for a reversal of the trial court’s judgment.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James TURNER, Jr., Appellant.
    No. 37550.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 31, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      Robert C. Babione, Public Defender, C. Adelman Adler, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Christopher R. Brewster, Asst. Attys. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

The state charged defendant in separate counts with illegal sales of LSD (Sections 195.200 and 195.240, Laws, 1975) and, sitting without a jury, the court found defendant guilty on all five counts. Defendant was sentenced to six-year concurrent terms on counts 1 and 2; eight-year concurrent terms on counts 3 and 4, to run consecutively to the six-year sentences imposed in counts 1 and 2; a ten-year term on count 5, to run consecutively to the six and eight year sentences.

Defendant appeals, contending the trial court erred in denying his pre-trial motion to identify a material witness, erred in admitting evidence identifying the drugs, and erred in imposing sentences constituting double jeopardy. These in turn.

On the day of the first sale, two undercover narcotics officers picked up an informant known to them only as Jim. One of the officers had met Jim two weeks earlier after hearing he had been selling narcotics, but Jim was otherwise unknown to the officers. Jim directed the officers to 2620 St. Vincent in St. Louis, where he introduced them to defendant whom they had not known before. Each officer purchased LSD from defendant while Jim watched. Without asking Jim any more questions, the officers returned him to the street corner where they had found him. The officers returned on each of the next two days and made other LSD purchases from defendant. After each sale they took the purchased items to a police chemist who determined each contained LSD. They testified the state’s exhibits were in sealed packets containing the substance defendant had sold them.

The defense was misidentification. Defendant testified he had not lived at 2620 St. Vincent at the time of the alleged sales but the rest of his family, including three grown brothers, did live there. He testified he was not at 2620 St. Vincent at the time of the sales and denied he had made the narcotic sales.

Defendant contends the trial court erred in denying his pre-trial motion to disclose the identity of Jim, a material witness, because he was the only witness to the sales other than the police officers and his testimony might have refuted the officers’ identification and shown defendant was not the seller. Defendant argues that Jim was the only witness other than himself who could contradietjthe narcotics officers’ identification.

Defendant cites Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), which holds that permitting the prosecution to withhold the identity of an undercover informer in the face of the accused’s demands for his disclosure was prejudicial error when only the informer could contradict the government’s witnesses. He also cites State v. Davis, 450 S.W.2d 168 (Mo.1970), which reversed a conviction where the defense was entrapment and the trial court refused to order the disclosure of an informant who was the only witness who could support defendant’s contention. Defendant also cites State v. Hubble, 494 S.W.2d 358 (Mo.App.1973), holding the trial court did not err by refusing to order disclosure of an informant’s name when defendant had made no record of why the disclosure was vital to his case. Hubble suggests that had the defendant made a record of why he needed the name of the informant, the court would have ordered disclosure. Here, defendant contends the law required the state to give him Jim’s name and address. The weakness of this argument is that in all three cited cases the informant’s identity was known to the police, whereas here the police testified they had only two brief encounters with Jim, have not seen him since the first sale and know neither his last name nor his address.

We know of no affirmative duty by the police to search for an informant. Their only duty was to give defendant all the relevant information they had. A contention comparable to defendant’s arose in State v. Scott, 508 S.W.2d 302[2] (Mo.App.1974). There, a police detective had questioned defendant upon arrest and made notes of the inquiry, but by trial time the officer had lost the notes. Defendant sought production of the notes to cross examine the detective and objected to him testifying because the state did not produce the notes. In denying defendant’s point we held: “The [trial] court could find a thorough search had been made for the missing notes and no ulterior motives were ascribed to the prosecution.” So it is here. Absent a showing the state ever had the desired information it cannot be faulted for failing to produce it.

The state’s obligation in such cases, based on numerous court decisions, is described in 76 A.L.R.2d 294, which we adopt: “In the absence of a showing that the prosecution connived to procure the absence of the informer, the duty to disclose his identify requires no more than that the prosecution make available to the defendant all its information as to the informer . . . The record shows the state fulfilled that obligation and we deny defendant’s first point relied on.

Defendant next contends the trial court erred by admitting into evidence two of the five envelopes containing the LSD allegedly sold by him. This, on the ground no complete chain of custody was established. Defendant contends that although the evidence envelopes were properly marked and included the police alias “James Doe,” there was insufficient information to link the substance with defendant. He suggests the possibility that other purchases may have been made that day and accidentally been assigned the name James Doe. He also argues that there was an unexplained possession during the chain of custody; that since there was no testimony as to who received the evidence at the police laboratory, the clerk, who did not testify, may have received it.

Whether a chain of custody is reasonably established and thus an exhibit is relevant is a matter for the trial court to decide. Its ruling will not be overturned unless there was an abuse of discretion. United States v. Brown, 482 F.2d 1226 (8th Cir. 1973). The record shows no such abuse. The witnesses identified each exhibit as having been bought from defendant and testified there had been no alteration. The state need not show who possessed the evidence at all times. State v. Day, 506 S.W.2d 497[11] (Mo.App.1974). “It is sufficient if the evidence shows reasonable assurance that it was the same and in the same condition.” State v. Baines, 394 S.W.2d 312[6, 7] (Mo.1965). The point relied on is denied.

Last, defendant contends his conviction on five counts violates his constitutional guarantee against double jeopardy. He argues that the indictment charges only one “offense of selling” LSD under § 195.200, Laws, 1975, because he allegedly sold to police in one continuous police-controlled transaction. Holding otherwise, defendant argues, would violate the policy against multiple punishment and would “interject an element of untrammeled discretion” because it would allow the police to repeat transactions and thus control the overall length of the sentence.

Defendant cites several federal cases holding that charging an accused with multiple offenses for what was essentially a single transaction is improper. One such case is Bell v. United States, 349 U.S. 81[2, 3], 75 S.Ct. 620, 99 L.Ed. 905 (1955) in which the court refused to permit the charging of separate violations of the Mann Act when the defendant had transported two women across state lines. The court did not, however, hold that charging separate violations would violate constitutional rights. The court said “Congress could no doubt make the simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman so transported. The question is: did it do so?” Thus, the issue was one of statutory construction, not constitutionally prohibited double jeopardy. No such statutory construction problem is at issue here.

Defendant also relies on State v. Toombs, 326 Mo. 981, 34 S.W.2d 61[2] (1930), a case reversing a conviction for stock fraud because defendant had been convicted of issuing similar certificates on the same day during the same issuance. The case is not in point because the facts in Toombs differ. There, the defendant had filled out and delivered three certificates in the course of a single transaction. Here, there were separate sales of LSD. In Toombs, the court acknowledged the distinction, holding “. there may be several distinct offenses committed in the course of the same general transaction, as, for example, separate and distinct sales of intoxicating liquor to the same or different persons in the same transaction, generally speaking, and in immediate succession; . . . .” Thus, Toombs holds that “distinct sales” in the “same transaction” even if in “immediate succession” may be prosecuted separately. See also State v. Salter, 256 S.W. 1070[3, 4] (Mo.App.1923).

Defendant suggests that in making a series of purchases, there was vindictiveness in the police action. No such evidence appears in the record. Multiple sales do tend to confirm identification. Defendant made — and was convicted for — separate sales of LSD. We hold his right to avoid double jeopardy was not violated.

Judgment affirmed.

STEWART and RENDLEN, JJ., concur.

      . We note the trial court imposed concurrent sentences for the two sales made January 8, 1975 and also imposed concurrent sentences for the two sales made January 9, 1975.


author: FLANIGAN, Judge. CAMPBELL, Special Judge.

text:
    STATE of Missouri, Respondent, v. Harrison GIBSON and Frank Wayne Maupin, Appellants.
    No. 9992.
    Missouri Court of Appeals, Springfield District.
    Sept. 8, 1976.
    Motion for Rehearing Denied Oct. 6, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      Scott B. Tinsley, Springfield, for appellants.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HOGAN, P. J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.
   FLANIGAN, Judge.

Appellants, Harrison Gibson and Frank Wayne Maupin, each tried under the Second Offender Act (556.280 V.A.M.S.), were convicted by a jury of the crime of attempting (556.150 V.A.M.S.) to commit the offense of burglary in the second degree (560.070 V.A.M.S.). Each received a sentence of five years imprisonment.

The sole contention of each appellant is that there was a fatal variance between the offense charged in the information and the offense shown by the evidence. The contention is sound and the cause must be reversed and remanded.

The amended information against appellant Maupin, on which the cause was tried, in addition to pleading formal matters and the prior conviction, alleged that he “on or about the 18th day of January, 1975, in the County of Greene and State of Missouri, did then and there willfully, unlawfully and feloniously attempt to break and enter into a building used and occupied by the Brown Derby Wine Center, 1909 S. Campbell, Springfield, Missouri, by removing a portion of the roof with intent to steal, the same being a building in which divers goods and other valuable things were then and there kept and deposited. . . . ” The amended information against appellant Gibson also contained the quoted language.

Appellants, in their brief, point out that, according to the amended informations, the target of the attempted burglary was “a building used and occupied by the Brown Derby Wine Center, 1909 S. Campbell, Springfield, Missouri.” Appellants then say: “The evidence adduced at the trial, however, clearly established that there was an attempt to break and enter an adjacent and separate business, the Medicare Pharmacy. Thus there was a fatal variance between the pleading and the evidence.”

Located in what one witness labeled “the shopping center building complex” were six separate stores. The Brown Derby Wine Center (the wine center) is at the east end of the “complex.” Immediately west of the wine center is the Medicare Pharmacy (the pharmacy). Appellants’ statement of the facts, adopted by the state, says: “A store room is located in back of the wine center and does not have a false ceiling. That part of the pharmacy adjacent to the wine center store room does have a false ceiling. The result is that one standing in the wine center store room can see up and over into a space above the pharmacy’s false ceiling.”

At 7:30 p. m. on January 18, 1975, the wine center was open for business and the pharmacy was closed. Two employees of the wine center, Weinberg and Burkart, heard scraping noises. Weinberg went to the front of the pharmacy “to see if it was open, to see if someone was working.” The pharmacy was closed, “its door was locked and its lights were out.” He returned to the wine center and he and Burkart again “listened to the hammering and scraping noises.” Weinberg called the police and several officers arrived within three or four minutes.

Weinberg said that when he heard the noises “I thought it was someone in the pharmacy. They were coming from the vicinity of the pharmacy.” Burkart said that the noises “came from the top of the pharmacy.”

One of the officers saw appellants jump off a loading dock at the rear of Milgram’s. Milgram’s is one of the six businesses in the complex and is the second store west of the pharmacy. Appellants attempted to flee but were caught by the officers and taken into custody at the scene. No weapons were found on either appellant or in the area.

On appellant Gibson was found a pair of brown gloves containing particles of tar. Another pair of gloves was found within three feet of the place where Maupin was arrested. These gloves also contained tar particles. No other persons were in the vicinity except the police officers, Burkart and Weinberg.

On that portion of the roof of the building which was over the pharmacy a police officer found several hand tools and an “x mark” in the roof itself. The x mark was in the “outer layer of the roof” and particles of tar and rock had been removed from the x mark. The police officer, referring to the x mark, said “This is where the entry was attempted.” He also said “If you followed the x straight through the roof you would end up being on the property of the pharmacy.”

At the close of the state’s evidence each appellant unsuccessfully moved for a judgment of acquittal. One of the grounds for the motion was that there was no evidence that defendants had attempted to break into the wine center — “The marks on top of the building were directly over the pharmacy, the wrong place was charged in the information.” Thus each appellant preserved the question of variance for appellate review. The state made no request to amend either information.

Neither appellant testified and no evidence was offered on their behalf.

The verdict-directing instruction against each appellant required the jury to find, among other things, that he “attempted but failed to break into a building located at 1909 S. Campbell, Greene County, Springfield, Missouri, occupied by the Brown Derby Wine Center by removing a portion of the roof thereof.”

A pertinent part of Rule 24.01 reads: “[T]he information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. Here the offense charged was attempting to commit the offense of burglary in the second degree. The four elements of an attempt to commit a crime are “intent to commit a crime, an overt act toward its commission, failure of consummation and apparent possibility of commission . . . .” State v. Miller, 368 S.W.2d 353, 359[9] (Mo.1963).

The crime attempted was burglary. Under Missouri law an information for burglary must “set out the ownership of the burglarized premises,” State v. Rist, 456 S.W.2d 13, 15[1] (Mo.1970), although this requirement is satisfied by an allegation of occupancy or possession. It is not necessary to allege the legal status of the owner or occupant, that is, whether it is a corporation, partnership or individual. State v. Ford, 403 S.W.2d 611, 612[1] (Mo.1966).

There are two reasons for the requirement that the identity of the owner or occupant of the place burglarized be contained in the information: “(1) [To show] that the house alleged to have been burglarized was not the dwelling of defendant; and, (2) [to identify] the offense [so] as to protect the [defendant] from a second prosecution [from] the same offense.” State v. Rist, supra, at p. 15.

State v. Ford, supra, contains an instructive list of burglary informations, some held to be sufficient and others insufficient.

Here the state, by its informations and by its verdict-directing instructions, pinpointed,the wine center as the target of the attempted burglary. Neither information and neither instruction mentioned the pharmacy.

“The defendant [is] entitled to know the nature and cause of the accusation against him and the State must prove the crime charged. It cannot charge him with one crime and sustain a conviction by proving another.” State v. Temple, 262 S.W.2d 304, 305[3] (Mo.App.1953), quoted with approval in State v. Billingsley, 465 S.W.2d 569, 570 (Mo.1971). “When the information specifically describes the premises on which the violation was alleged to have taken place, the State is bound by that description.” State v. Temple, supra, at p. 305.

Where the information described a certain location as the place of the offense and the proof showed the offense to have been committed in a different place, the variance was held fatal in State v. Malloch, 269 Mo. 235, 190 S.W. 266 (1916) and in State v. Temple, 262 S.W.2d 304 (Mo.App.1953). This is true where, as here, the place of the attempted burglary is one of the “essential facts constituting the offense charged.” Rule 24.01.

The state, conceding that the point of attempted entry was “in the portion of the roof over the pharmacy,” seeks to avoid the impact of the foregoing authorities by saying: “It was so close to the [wine center] that the jury could have inferred from its location that appellants were intending to burglarize the [wine center].” The state also says: “There was undisputed evidence of an attempt to burglarize and indefinite evidence concerning the object of the intent — the pharmacy, the wine center, or both.” In support of these statements the state emphasizes that had entry been gained at the x mark, the interior construction of the pharmacy was such that a person entering the top portion of the pharmacy could have entered the store room at the rear of the wine center. The state relies upon evidence showing that the part of the pharmacy adjacent to the wine center store room had a false ceiling and there was no wall or other obstruction between it and the upper portion of the wine center store room.

The fallacy in the state’s position is that there was no evidence that either appellant had any knowledge that the interior of the pharmacy was so constructed that from the portion of it above the false ceiling there was direct access to the wine center store room. Indeed it may be that the fact that appellants were not armed made it unlikely that they intended to enter the wine center, it then being open for business with at least two employees on duty. The pharmacy, being closed, was perhaps a more likely goal for unarmed burglars.

This court concludes that the variance between the two informations and the proof is fatal to the two convictions. But it does not follow that appellants are entitled to an absolute discharge. Appellants have conceded that the evidence shows an attempt to break and enter the pharmacy. The cause should be remanded to give the state an opportunity to seek leave to file amended informations or take such other action as the state deems advisable. State v. Cunningham, 380 S.W.2d 401, 403[10] (Mo.1964); State v. Lee, 488 S.W.2d 272, 274 (Mo.App.1972) and authorities there cited.

For the reasons stated the judgments of the trial court are reversed, and the cause is remanded.

All concur except CAMPBELL, Special Judge, who dissents in separate opinion filed.

CAMPBELL, Special Judge.

I respectfully dissent. The liquor store manager testified “we went back and listened to the hammering and scraping noises, which were in the proximity of our back room.” Police Officer Dove testified that the x mark was just in front of a vent on the roof. His reply to the question “do you know where this vent enters, what building?”, was, “Basically, it’s the Brown Derby building. You can see from the Brown Derby area the vent where it comes through the roof and it goes through to the back of the pharmacy.” He further testified that “if there was a hole cut there it would allow you entrance into the Brown Derby.”

Had defendants gained entry to the building at the x mark, they would have been in an area with direct access to the goods, wares and merchandise of the liquor store. Defendants could only have gained access to the pharmacy by another breaking and entering of the false ceiling of the pharmacy. There is no evidence indicating that defendants were attempting to obtain access to the pharmacy and we cannot so speculate. I find no variance between the information and the evidence presented at trial. The facts support the convictions for attempted burglary of the liquor store, and I would affirm.

      . State v. Yearwood, 510 S.W.2d 43, 44[1] (Mo.App.1974).

      . See State v. Eaton, 504 S.W.2d 12, 20[16] (Mo.1973), and compare State v. Wright, 339 Mo. 41, 95 S.W.2d 1159 (1936).

      . “[T]he identity of the place burglarized is an essential element of the crime, and where the place is designated in the indictment or information, not as a matter of venue, but as a matter of local description, a variance between the description in the pleading and the evidence on the trial is fatal.” 13 Am.Jur.2d Burglary § 43, p. 348.


author: TITUS, Judge.

text:
    STATE OF Missouri, Respondent, v. William R. HINDMAN, Appellant.
    No. 9816.
    Missouri Court of Appeals, Springfield District.
    Sept. 21, 1976.
    Motion for Transfer Denied Oct. 13, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    Devon F. Sherwood, Springfield, for appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

After a change of judge and a change of venue (Rule 30) a jury found defendant guilty of assault with intent to kill Robert Dugger with malice aforethought (§ 559.-180) but could not agree upon the punishment to be inflicted. The court assessed punishment at 25 years’ imprisonment and rendered sentence and judgment accordingly. Rule 27.03.

The incidents involved occurred around midnight October 26 to 1 a.m. October 27, 1973. Carroll Renfro, asleep in his home 3 or 4 miles north of Hartville, was awakened “with a pounding on my door.” Upon answering the door he was greeted by defendant (whom Renfro did not know) holding a rifle “similar to” the Springfield bolt-action rifle which was a state’s exhibit at trial. With the admonition “Don’t make me shoot you,” defendant obliged Renfro at gunpoint to drive him into Hartville in the latter’s pickup truck. Enroute defendant said to Renfro: “They [sic] is a lying, thieving, son-of-a-bitch down here that I have got to kill.” Defendant did not identify the object of his disaffection.

After the pickup truck arrived at the Hartville square, defendant directed Renfro to “ ‘Pull up behind the Courthouse’ ” and “ ‘Park there beside where the Sheriff is at.’ ” Renfro complied. At defendant’s invitation to “ ‘Get out and go down to the door and see if anybody is here,’ ” Renfro, accompanied by defendant, “knocked and rattled the door, and I told him that there wasn’t nobody here. And he said, ‘Well, wait just a minute, and there will be somebody here.’ ”

While Renfro and defendant waited at the rear of the courthouse, they were espied by two boys riding in an automobile. The passenger “knowed Renfro” but didn’t know the man with the rifle. They proceeded to find Hartville Police Officer Robert Dugger and tell him of their observation. Dugger drove the city police ear to the courthouse and stopped it near Renfro’s truck. He testified that when this occurred, defendant “whirled [the gun] right toward the windshield of the [police] car, right directly at me, aiming right in the chest.” This caused Officer Dugger to depart. He drove to near the post office and radioed the sheriff for help.

Following the police car’s departure, defendant told Renfro “to get out and go on home . . . ‘There’s going to be a shooting here in just a minute.’ ” Renfro did not hesitate. As the pickup was driven from the rear of the courthouse leaving defendant behind, Officer Dugger drove away from the post office intending to get behind the truck. When the police car neared the northeast corner of the courtyard “there was a shot, and the back glass popped out of the car. ... I fell over in the seat ... my arm up, and then the second shot went off, and that shot come [sic] through the steering wheel . and got me in the arm. . and another shot . . . that hit the car door, come [sic] through and hit me in the hip. . . . Hit [the] Mace can that I had on. . . .1 started on up the street . and then another shot rang out [that] hit the rear door of the [police] car. . After that fourth one, I thought I heard another shot — but I wouldn’t say, positive.” While several witnesses heard the firing of two or more shots, no one saw who actually fired them.

After the foregoing occurred, Curtis Whi-teaker was driving “through the downtown area” of Hartville when he encountered defendant “standing along the side of the street.” Defendant, afoot, “stepped out in the street ... in front of me, and brought his rifle down . . . and said, ‘You will stop,’ and I stopped.” Thereafter, defendant “shoved the rifle” within some 8 inches of Whiteaker’s face. We do not know what occurred after Whiteaker said he “shoved the rifle out of my face with my hand,” except that he eventually drove away unscathed to see Officer Dugger leaving the scene via an ambulance.

When Sheriff Kelly arrived at the square he was informed where defendant could be found and that defendant wanted to surrender his weapon. The sheriff and a deputy drove to a motor company’s lot where they saw defendant “hunkered down . between the building and a car” holding the rifle in his hand. In response to defendant’s statement to “ ‘Come over here and I will give you this gun,’ ” the sheriff approached and was handed the rifle which was loaded. Either just before or immediately after being given the rifle, defendant volunteered, “ T think I shot that there officer’s arm off, didn’t I?’ ” The deputy drove the car back to the courthouse while defendant and the sheriff followed on foot. Without being asked any questions, defendant told the sheriff “that he had a bad heart condition, and that he didn’t have long to live, and he said, T am going to get rid of some of these sons-of-bitches.’ ” Upon reaching the sheriff’s office in the courthouse, defendant was given the “Miranda Warning.” Again without being questioned, defendant asked “ ‘Who was that officer that I shot his arm off?’ ” and the sheriff replied, “ ‘That is the City Police, Bob Dugger.’ ” To this defendant responded, “ T don’t know Bob Dugger.’ ”

Within an hour or two after Dugger was wounded, several expended shell casings and live rounds of ammunition were found near the corner of the courthouse atop leaves lying in the courtyard. These, the rifle obtained from defendant, and other ammunition removed from the rifle and defendant’s person, were sent to the Missouri Highway Patrol laboratory for testing. Two laboratory technicians testified that the expended shell casings found in the courtyard had been fired in defendant’s rifle. Further facts will be related when necessary to discuss the points relied on by defendant in this appeal.

Second Disqualification of Judge

Although Rule 30.12 permits one change of judge as a matter of right and provides that a defendant may not apply for another change of judge in the same case, defendant contends that the trial judge erred in denying his second application for disqualification. In his brief defendant pens that “[t]he issue is whether a defendant who has previously disqualified a judge under Rule 30.12 V.A.M.R. must face trial before a substitute judge who is biased and prejudiced against him.”

The matter arose in this fashion. On June 17, 1974, the trial judge entered the following order: “It appearing to the Court that William R. Hindman is now charged with three charges of felonious assault in the Circuit Court of Webster County, Missouri, said offenses having occurred in Wright County, Missouri, and having been transferred to Webster County on a Change of Venue.

“It further appearing that the said William R. Hindman has not been able to make a bond and is now being held in custody awaiting trial, and that the said William R. Hindman has been involved in several acts of violence, and that he is presently suffering from a heart attack; that by reason of his physical condition it is necessary for him to be, and he is presently confined in a hospital, and because of his violent nature and the seriousness of the crimes with which he is charged it is necessary to maintain a guard over him 24 hours a day.

“It further appearing that Webster County, Missouri, does not have the facilities to care for said prisoner, and does not have the necessary staff to maintain a guard over said prisoner, and that said care could be provided by the Missouri Department of Corrections.

“IT IS THEREFORE, ORDERED that the said William R. Hindman be delivered to the Missouri Department of Corrections to be held for Webster County, Missouri pending trial on the charges, or until further order of this Court.”

Rule 23.10 (relating to magistrates) and Rule 24.23 (relating to circuit courts) state that if a defendant fails to make bond, he “shall be committed to the county jail of the county, or other safe place.” (Our emphasis). Defendant does not dispute the authority of the court to commit him to the Department of Corrections as being an “other safe place.” Rather, as stated in his motion for a second disqualification, and argued here, defendant asserts the findings made ex parte and without a hearing by the court in its order to the effect that he had “been involved in several acts of violence” and had a “violent nature” indicated such bias and prejudice on the part of the court that the judge should have disqualified himself even though defendant had already been allowed one change of judge.

After- a defendant has been afforded one change of judge under Rule 30.12, the successor judge is under a duty to remain as judge in the cause, and this duty is equally as strong as his duty to recuse himself under circumstances requiring it. Euge v. Trantina, 298 F.Supp. 876[2] (E.D.Mo.1969). Defendant does not here challenge the accuracy of the findings made in the order set out above and has never undertaken to prove the facts to be otherwise than stated therein. His conclusion the judge was biased and prejudiced against him is simply predicated upon the findings of fact enumerated in the order and the court’s determination it would be better that defendant be held for Webster County in the custody of the Missouri Department of Corrections.

No one doubts that if the trial judge was, in fact, for any reason biased and prejudiced against the defendant, he should have recused himself to insure defendant of a fair trial. However, motions and other pleadings do not prove themselves [Fulton v. Fulton, 528 S.W.2d 146, 157 (Mo.App.1975)]; neither do statements in briefs [State v. Hamblin, 448 S.W.2d 603, 606[2] (Mo.1970); State v. Reid, 391 S.W.2d 200, 205[8] (Mo.1965)], and proof of bias and prejudice cannot be bottomed on naked claims printed in a motion or a brief. State v. Freeman, 489 S.W.2d 749, 753[12] (Mo.App.1973).

The authorities cited to this point by defendant in his original brief are not contradictory of what we have said. In his reply brief defendant cites Bonner v. State, 82 Okl.Cr. 381,170 P.2d 1020, 1022[3] (1946). Unlike the present situation, in Bonner there was no Oklahoma statute or rule similar to Rules 23.10 and 24.23, the order made by the committing court did not give any reason for the court’s action, and the question of the trial judge’s bias and prejudice was not involved. While the author of Bonner opined that in the future hearings should be conducted upon the propriety of committing a defendant to the penitentiary before trial, the lack of such in Bonner did not serve to vitiate the conviction. This point is denied to defendant.

Instruction No. 11 (MAI-CR 4.50)

At the close of the evidence and before arguments, the court, in the words of MAI-CR 4.50, instructed the jury that if it found defendant guilty but could not agree on punishment the court, in such event, would fix the punishment. The giving of this instruction at the time involved has been approved repeatedly, and the complaints voiced against it by defendant have been so often aired and answered there is no reason for us to do so again. The point is denied. State v. Brown, 443 S.W.2d 805, 809-811[6, 7] (Mo. banc 1969); State v. Bol- den, 494 S.W.2d 61, 67 (Mo.1973); State v. Daugherty, 484 S.W.2d 236, 238[3] (Mo. 1972); State v. Lincoln, 482 S.W.2d 424, 426[6] (Mo.1972); State v. Scott, 535 S.W.2d 281, 285[4] (Mo.App.1976); State v. Kirk, 510 S.W.2d 196, 201-202[18] (Mo.App.1974); State v. Cain, 507 S.W.2d 437, 442[13] (Mo.App.1974); State v. Fisher, 504 S.W.2d 281, 284[4] (Mo.App.1973).

"I Think” or “I Believe” Statements

Defendant says the trial court erred in admitting statements attributed to him that “I think (or believe) I shot an officer’s arm off,” because they “were mere expressions of opinion or belief and as such did not constitute proper admission nor were they relevant.” What one thinks or believes ordinarily is not substantial evidence upon which one may rely to establish a fact. Dill v. Poindexter Tile Company, 451 S.W.2d 365, 372[11] (Mo.App.1970). Nevertheless, there is a difference between use of a declaration of belief to prove a fact and employment of the declaration as an admission against interest which tends to incriminate or connect the speaker with the crime charged. “Any statements made by a defendant, which tend to incriminate him or connect him with the crime charged, are admissible when voluntarily made.” State v. Sinovich, 329 Mo. 909, 917, 46 S.W.2d 877, 881[15] (1932); State v. Gregg, 399 S.W.2d 7, 10 (Mo.1966); State v. Thresher, 350 S.W.2d 1, 9[18] (Mo.1961). A statement which manifests a consciousness of guilt is an admission against interest [State v. Patterson, 516 S.W.2d 571, 573[3] (Mo.App.1974)], and the statements of which defendant now complains clearly fall in that category for they tend to associate him with the crime for which he was charged. As indicated, we rule this point against defendant.

Witnesses Nilgus and Buel

These witnesses were laboratory technicians employed by the Missouri State Highway Patrol. Their duties included examination and comparison of firearms; they also recounted their several years each of expertise to qualify them as ballisticians. The witnesses had fired defendant’s rifle, microscopically examined the rifle casings thus obtained with those recovered from the courtyard shortly after the shooting, and concluded the casings found near the courthouse had been fired in defendant’s rifle. Defendant now asserts it was error to admit their testimony because neither was qualified and the conditions under which they conducted their experiments were “not shown to be sufficiently like those existing at the time of the offense to be relevant.”

One trouble with this point is that Mr. Buel testified without objection. Ergo, defendant’s complaint as to his testimony is not preserved for review. State v. Wallace, 504 S.W.2d 67, 71[7] (Mo.1973); State v. Vineyard, 497 S.W.2d 821, 829[18] (Mo.App.1973). Another fault with the point is that at trial no objection was made to the experts’ testimony based on the conditions under which the test firings were conducted. Points raised on appeal as to the admissibility of evidence must be based on the same theory of the objection made at trial. State v. Lang, 515 S.W.2d 507, 511[8] (Mo.1974); State v. Jones, 515 S.W.2d 504, 506[3] (Mo.1974).

Whether a person qualifies as an expert and whether an expert opinion is permissible on a particular subject are questions to be decided by the trial court in the exercise of its sound discretion. Upon review we are confined to the issue of an abuse of discretion and may not reverse in the absence of abuse which is prejudicial to the defendant. State v. Jones, 518 S.W.2d 304, 311[8, 9] (Mo.App.1975). Ballistic comparisons are a proper subject for expert testimony, and we find sufficient special experience, training and knowledge on the part of Mr. Nilgus to qualify him as a ballistician. We find no abuse on the part of the trial court in admitting his expert testimony and the point is denied.

Numbness In Victim’s Arm

Defendant next says it was error to admit Officer Dugger’s testimony that he was experiencing numbness in his wounded arm because he was not qualified to testify to that fact and because such testimony was prejudicially irrelevant as its only purpose was to excite sympathy. A nonexpert witness is competent to state simple inferences drawn by him from his own conscious subjective sensations as to his physical condition, physical symptoms or sympathetic symptoms. 32 C.J.S. Evidence § 546(22), pp. 149-154. Officer Dugger was qualified to state that he had numbness in his arm where he was shot.

In Missouri and elsewhere, it is the rule that the physical condition of an assault victim is admissible to show the nature and character of the assault. State v. Williams, 532 S.W.2d 826, 828[l-3] (Mo.App.1975); State v. Jackson, 500 S.W.2d 306, 311[10] (Mo.App.1973); Annot., 87 A.L.R.2d 926-943 (1963).

This point has no merit.

Defendant’s Statements

In addition to defendant’s other complaints, he asserts the statement-testimony of Renfro, Sheriff Kelly and Deputy Mings should have been excluded because the statements laid to defendant were not voluntarily made and were not timely disclosed in response to his request under Rule 25.32.

Much of defendant’s argument to this point is patently inaccurate. His claim that counsel did not know of the utterances attributed to him until the day before trial is untrue. Defendant’s motion to suppress demonstrated advance knowledge by his counsel of the intended statement-testimony of Renfro and Sheriff Kelly. Likewise, interrogation of the sheriff by defendant’s counsel at the hearing held on the motion to suppress disclosed the sheriff had previously given the same statement-testimony at the preliminary hearing. Furthermore, when Renfro testified at trial as to defendant’s statements on the occasion in question, no objection was made to Renfro’s statement-testimony and we will not entertain an objection thereto when raised for the first time on appeal. State v. Stevens, 467 S.W.2d 10, 19—20[7] (Mo.1971), 50 A.L. R.3d 96, 108[7], cert. den. 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971).

The only statement-testimony not disclosed to defendant’s counsel until the eve of trial (recounted by the sheriff and his deputy), was defendant’s voluntary post-Miranda question of “ ‘Who was the officer that I shot his arm off?’ ” The prosecutor testified he did not know of this until the day before trial when he conveyed the information to defendant’s lawyers. In State v. Scott, 508 S.W.2d 302, 304[1] (Mo.App.1974), it was observed that the purpose of requiring the state to disclose the substance of oral statements made by the accused is to allow the defense to prepare properly for trial and particularly for cross-examination. In this instance, counsel makes no complaint of being unable to prepare for trial because of the short notice anent the post-Miranda statement. As the statement was almost identical to previous well-known statements attributed to defendant, and as the record does not disclose that counsel’s cross-examination was impaired in any way because of the short notice, we are unable to find prejudicial error. State v. Gay, 523 S.W.2d 138, 143[11, 12] (Mo.App.1975).

Another segment of this point with which we do not agree is defendant’s argument that because he had ingested prescription drugs and consumed whisky the day and evening prior to the events in question he was rendered in such a dazed and clouded state as to make his actions and statements involuntary due to lack of capacity. It is generally agreed among authorities that drug influence or intoxication at the time of making a statement or confession does not require exclusion because not voluntarily, knowingly and intelligently made unless the intoxication or drug influence amounts to mania. The fact of drug influence and intoxication, absent mania, only goes to the credibility and weight of the statement. Before exclusion is required, it should appear that defendant was so intoxicated or influenced that he was unable to appreciate the consequences and nature of his statements. State v. Heather, 498 S.W.2d 300, 304[5] (Mo.App.1973), and authorities there cited. The witnesses testified defendant appeared coherent and lucid at the times he made the reported statements — at least there was no testimony, save defendant’s, which would indicate mania. Neither the trial court nor the jury was bound to accept defendant’s testimony as to his condition and could properly find the statements were voluntarily, knowingly and intelligently made. For the reasons aforesaid, this point is ruled against defendant.

Physicians’ Desk Reference Book

Defendant produced Robert West, a licensed pharmacist, and a book labeled “Physicians’ Desk Reference to Pharmaceutical Specialties and Biologicals.” The purpose of the witness and the book was (1) to have West say that by use of the pictures in the book, he could state what a certain pill, tablet or capsule was or what it contained, (2) to ultimately have defendant testify (since he was not qualified to state what medication he had ingested) that he had taken four blue pills that looked like a picture in the book which would identify them as ten milligram Valium pills, and (3) thereby lay the foundation for introduction of a physician’s deposition wherein he opined as to the effect a specific dosage of Valium and a specified amount of liquor would have on a person’s physical and mental condition. When interrogated, however, West said that he could not accurately say what a certain pill was by comparing it with pictures contained in the book, there would be different kinds of pills having an appearance similar to Valium as pictured in the book, and there would be no way of knowing what any particular pill contained without a chemical analysis thereof. The trial court struck Mr. West’s testimony and instructed the jury to disregard it. Defendant now contends it was error to refuse to permit West to identify a portion of the book “as being a fair and accurate representation of a ten milligram Valium tablet for the reason that the same constituted relevant evidence on material issues in the case, i. e., the voluntariness of certain statements purportedly made by Appellant and his mental state at the time of the alleged offense.”

Although, as noted under the last considered point, intoxication or drug influence may be relevant to the voluntariness of incriminating statements, “the rule in Missouri is that voluntary intoxication [either by alcohol or drug consumption] is not a defense to a criminal charge and that the rule does not even allow a jury to consider such intoxication on the issue of specific intent.” State v. Richardson, 495 S.W.2d 435, 440[6] (Mo. banc 1973). Defendant admitted his consumption of drugs and liquor prior to crime was voluntary. Thus, even had Mr. West served as a proper link in a chain of evidence to establish that defendant had, in fact, voluntarily ingested Valium tablets, exclusion of his testimony would not have been prejudicial on the issue of specific intent or state of mind. Nevertheless, West’s testimony did not produce a proper link. To repeat in summary, his testimony caponized the book as a sure and fertile source for ascertaining with certainty the true and accurate identity of a pill. With the evidence in this state, attempted further use of the book would be an exercise in otiosity and the trial court did not err in its ruling.

Evidence of Other Crimes

’ In two points, which we consider in one, defendant asseverates the trial court erred in admitting the testimony of Carroll Ren-fro (who was forced to drive defendant into Hartville) and Curtis Whiteaker (who was halted at rifle point by defendant shortly after the shooting of Officer Dugger) because their recountings evidenced the commission of separate and distinct crimes.

There is a legal legend regarding the impropriety of proving an accused guilty of crimes separate and distinct from the one charged as it violates the accused’s right to be tried only for the offense for which he stands charged. But exceptions to this rule of exclusion are equally forceful as the rule itself. Evidence of other crimes is deemed proper when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime at trial. State v. Reese, 364 Mo. 1221, 1226, 274 S.W.2d 304, 307 (banc 1955). In other words, if evidence of other crimes has a reasonable tendency to prove a material fact in issue, it should not be obliterated because it incidentally proves defendant guilty of other offenses. State v. Kilgore, 447 S.W.2d 544, 547[3] (Mo.1969). Also, “where the circumstances are such as to constitute one continuous transaction in the accomplishment of a common design so that proof of one cannot be made without showing the facts, the entire facts are admissible, since they are regarded as part of the ‘res gestae.’ In such circumstances, the state is not required to nicely shift and separate the evidence.” State v. Jackson, 519 S.W.2d 551, 558[19] (Mo.App.1975).

To be remembered is that while several witnesses heard shots being fired, no witness actually saw defendant shooting at Officer Dugger or the police car he occupied. There is no question but that the testimony of Renfro served to show defendant’s intent and motive for wanting to get to Hartville. It also was proof of malice aforethought. The circumstances of the assault and abduction of Renfro served to connect defendant to the assault on Officer Dugger and were relevant as links in the chain of circumstances relied upon by the state to prove defendant’s guilt. Likewise, the testimony of Whiteaker was probative of defendant’s criminal agency in the case for it served to identify defendant as being in possession of a rifle and employing it in a threatening manner within minutes after the shooting. In fine, the testimony of these two witnesses demonstrated a chain of events tending to prove defendant’s intent and motive for going to Hartville and showed a common scheme or plan embracing the commission of crimes so related that their revelation tended to prove defendant’s criminal agency in the crime for which he was being tried. State v. Knupp, 507 S.W.2d 360, 361[1] (Mo.1974); State v. Bolden, 494 S.W.2d 61, 65[3-7] (Mo.1973); State v. Boyer, 476 S.W.2d 613, 616-617[2] (Mo.1972); State v. Bevineau, 460 S.W.2d 683, 686[3] (Mo.1970); State v. Diamond, 532 S.W.2d 873, 876-877[6-ll] (Mo.App. 1976); State v. Morris, 523 S.W.2d 329, 331[4—6] (Mo.App.1975). In addition to other reasons why Whiteaker’s testimony was proper is that evidence which shows that following the crime charged defendant possessed the weapon with which the crime was committed is relevant under one of the exceptions to the general rule that the state is not ordinarily allowed to show other crimes. State v. Smith, 358 Mo. 1, 212 S.W.2d 787, 789 (1948); State v. Armbruster, 541 S.W.2d 357 (Mo.App.Spfd.Dist. 1976). Admission of the testimony of Ren-fro and Whiteaker was not error.

Motion for Judgment of Acquittal

Finally, defendant contends the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence and argues that the only thing the state proved was that someone shot Officer Dugger, that defendant was in the area at the time of the shooting, and that defendant’s rifle had been fired. We disagree.

The evidence, in short, showed this: Defendant, at gunpoint, forced Renfro to drive him to Hartville accompanied by the statement “ ‘They [sic] is a lying, thieving, son-of-a-bitch down here that I have got to kill.’ ” Upon arriving at the courthouse in Hartville when Officer Dugger approached, defendant pointed his rifle at the police car. After the police car was driven away, defendant told Renfro to leave because “ ‘There’s going to be a shooting here in just a minute,’ ” and shortly thereafter shots were heard and four bullets struck the police car, one of which wounded Officer Dugger. A short time subsequent to the shooting, Whiteaker saw defendant with a rifle which he pointed at the witness in a threatening manner, and when Sheriff Kelly arrived he found defendant in possession of a rifle and was told by defendant “ T think I shot that there officer’s arm off.’ ” The shell casings found in the courtyard had been fired in defendant’s rifle. This evidence and the reasonable inferences deducible therefrom were sufficient to support the verdict of guilty.

The judgment is affirmed.

All concur.

      . References to rules and statutes are to Missouri Supreme Court Rules of Criminal Procedure, V.A.M.R., and to RSMo 1969, V.A.M.S.

      . The rifle was not admitted into evidence on this identification although it has been held that testimony a weapon “looks like,” or “looks familiar,” or is “similar” was sufficient to warrant its admission into evidence as an exhibit. State v. Johnson, 286 S.W.2d 787, 791[3, 4] (Mo.1956); State v. Alderman, 498 S.W.2d 69, 72 (Mo.App.1973).

      .As required, we recast the evidence in terms most favorable to the verdict and cede to the state the benefit of all reasonable inferences. State v. Wiley, 522 S.W.2d 281, 292[19] (Mo. banc 1975); State v. Patterson, 534 S.W.2d 847, 850[5] (Mo.App.1976).

      . Hopefully admissible as an exception to the hearsay rule. Baker v. Atkins, 258 S.W.2d 16, 20-21[8-10] (Mo.App.1953).


author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard E. HARLEY, alias Stephen Allen Young, Defendant-Appellant.
    No. 9681.
    Missouri Court of Appeals, Springfield District.
    Sept. 23, 1976.
    Motion for Rehearing or Transfer Denied Oct. 8, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      William J. Fleischaker, Public Defender, 29th Judicial Circuit, Joplin, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

Defendant Richard E. Harley, alias Stephen Allen Young, was found guilty of first-degree felony murder as defined and denounced by § 559.010, RSMo 1969, V.A. M.S. His punishment was assessed at imprisonment for life and he appeals.

The case involves the robbery of a supermarket and the killing of a hostage taken by the defendant. Fairly stated in accordance with the result reached, the evidence was: That Foodtown No. 5 is a supermarket located on Seventh Street between Jackson and Connor Streets in the City of Joplin, Missouri. Seventh Street runs east and west; Jackson and Connor Streets run north and south.

During the afternoon of July 9, 1973, defendant parked his car on Connor Street just west of Foodtown. He entered the store from the “back” (north) side, approached Mildred Stanley, an employee, and asked if she were in charge. Mrs. Stanley said she was not. Defendant asked to see the manager, and was directed to the stockroom at the rear of the store. The “head clerk”, a Mr. Jenness, was called on the intercom.

Defendant met Jenness at the front of the store, and asked about employment. Jenness said he was not in charge of employment, whereupon defendant “showed [Jenness] the flash of a gun”, told Jenness that “this was a holdup” and ordered Jenness to the stockroom. Defendant then ordered Jenness to have all the money brought to the stockroom. Upon Jenness’ instruction, Mrs. Stanley gathered the money from the “office”, most of the money from the cash registers and put it in a green bag marked “First National Bank”. She took the money bag to the stockroom. Defendant told her “[d]on’t look at me and throw the money on the floor.” Mrs. Stanley did as she was told.

The defendant then advised Jenness, Mrs. Stanley and two stockroom employees that he was going to take a hostage. For reasons not immediately apparent, defendant asked the name of the youngest checker. Told that Barbara Conrey was the youngest checker, defendant had her paged on the intercom. Mrs. Conrey came to the stockroom. Defendant then said, according to Mrs. Stanley, that he was not a “sex fiend” or “sex maniac” and would not harm Mrs. Conrey; that if the police were not called for 30 minutes (according to Jenness, for an hour), defendant would then release Mrs. Conrey, call the store and tell the employees where she had been released.

The Joplin City Police Department had been informed, by whatever means, that the robbery was in progress, and several police vehicles were dispatched to the scene. Upon trial, the defendant’s movements after he left the Foodtown Market were retraced in laborious detail, which need not be set out here. After the defendant had traveled six to nine blocks north and west to the intersection of Fifth Street and Maiden Lane, he found his escape route blocked and his car, driven by Mrs. Conrey, was stopped on the north side of Fifth Street, a short distance east of the roadblock.

Defendant was apprehended during a sort of television cops-and-robbers imbroglio. Detective Fuhr, who had followed the defendant directly from Foodtown in an unmarked vehicle, testified that when he saw defendant’s vehicle stopped on Fifth Street, he got out of his car, went to a nearby police vehicle equipped with a loudspeaker, and started moving toward the defendant’s automobile. Mrs. Conrey was behind the steering wheel and defendant was seated to her right, “close enough to have body contact.” As Fuhr drove forward, Mrs. Conrey “yelled” at him to stop or the defendant would kill her. Fuhr stopped his vehicle, stepped behind it, and addressed the defendant over the loudspeaker. He identified himself as a police officer; he began asking questions to determine precisely who was in the defendant’s car. Mrs. Conrey identified herself— “spelled her last name”. As he was asking, Fuhr saw the defendant holding what appeared to be a dark-colored revolver with white handles “just right up against” Mrs. Conrey’s head. Fuhr advised the defendant “there was no way out from where he was”, but Mrs. Conrey, apparently relaying defendant’s remarks, again stated that if the roadblock were not removed, defendant would kill her. Defendant emphasized his intention by firing three shots out the left window of his car.

The Joplin police officers discussed various alternatives, including a substitution of hostages. This alternative was vetoed by the Chief of Police, but the officers did tell the defendant that the roadblock would be removed if Mrs. Conrey were released. Defendant refused. Relaying his demands through Mrs. Conrey, the defendant told officers that if the roadblock were not removed in 90 seconds, he would kill Mrs. Conrey. Fuhr was not close enough to the defendant’s car to hear clearly, but got the impression that the defendant then began a “countdown”. Shortly thereafter, Fuhr heard a “small pop”, like a small caliber muffled shot, and at the same instant, two “larger” explosions. Mrs. Conrey’s head went forward and then back, and at the same time defendant fell to his right, throwing his hand up in the air. Fuhr and Detective Forney then went to the defendant’s car, found that Mrs. Conrey had been shot in the head, and that the defendant appeared to be injured. Fuhr located the defendant’s pistol, a .22 caliber revolver with white handles, lying in the street near the right side of the car.

The extraneous firing — the two “larger” explosions — which immediately preceded Mrs. Conrey’s demise was apparently the result of two attempts by police officers to snipe the defendant. Detective Forney, who was near defendant’s car when Mrs. Conrey was killed, testified that he saw Mrs. Conrey “slump to the left” and “at this time” a shot was fired “from [his] left” which started a “spinning motion” on the defendant’s part; “almost simultaneously” there was another shot from the north (defendant’s right) which shattered the glass on the “passenger’s side” and thereafter defendant’s pistol “flew out of [the defendant’s] hand and dropped down to the pavement.” The shot from Forney’s left appears to have been fired by Officer Gary Box, one of the several officers present; the shot from the north (Forney’s right), which shattered the windshield, apparently was fired by Detective McAfee. Officer Box’s shot went through the roof of the car and lodged in the side; Detective McAfee’s shot, as noted, shattered the right window of defendant’s car and inferably caused the defendant to drop his pistol. Neither of the two shots fired by the officers struck the defendant or Mrs. Conrey.

It was stipulated that after Mrs. Conrey was taken from the defendant’s automobile, she was first taken to a Joplin hospital, then to a Springfield hospital, where she was pronounced dead. The State had the evidence of Dr. Victor Carnes, a pathologist who performed an autopsy on Mrs. Conrey’s body on July 10,1978. Dr. Carnes testified that his only abnormal finding was a head wound, in the back of the head, slightly to the left of the midline and about the level of the ear. The wound was a bullet wound; examination of the cranial contents showed that the bullet had immediately penetrated Mrs. Conrey’s skull and had richocheted inside her skull so as to penetrate both the left and right hemispheres of the brain and had come to rest barely within the brain substance above Mrs. Conrey’s right eye about halfway down her forehead. Dr. Carnes stated that the bullet wound was the cause of Mrs. Conrey’s death and that in his opinion she was in normal health prior to being shot. It was shown beyond doubt that the bullet taken from Mrs. Conrey’s skull had come from the defendant’s pistol. Other facts, as relevant, will be noticed in the course of this opinion.

In this court the defendant has briefed and argued two assignments of error. Both assignments deal with alleged error in giving and refusing instructions. The State has answered these contentions as presented. Our inspection of the record discloses, however, that on the day the verdict was received, October 10, 1973, defendant was granted 30 days to file a motion for new trial. No extension of this time appears in the record. The motion for new trial was not filed until November 13, 1973, 34 days after reception of the verdict and entry of the order granting 30 days in which to file the motion. Neither the State nor this court can waive the mandatory requirements of Rule 27.20(a). We must hold that the motion for new trial is a nullity and preserves nothing for review. State v. Howard, 476 S.W.2d 587, 588 (Mo. 1972); State v. White, 439 S.W.2d 752, 753[1] (Mo.1969); State v. Nelson, 526 S.W.2d 56, 57[1] (Mo.App.1975). This court has, of course, the discretionary power to review the record for plain error affecting substantial rights pursuant to Rule 27.20(c). Because the defendant has received two life sentences for crimes committed in the same transaction, and because failure to instruct on all defenses supported by substantial evidence may constitute plain error, State v. Randolph, 496 S.W.2d 257, 261[4] (Mo. banc 1973), we shall, in this instance, review the record for plain error. Preliminarily we note 1) that in general, instructional error is not “plain error” unless the trial court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice, State v. Bridges, 491 S.W.2d 543, 547[4] (Mo.1973); State v. Auger, 434 S.W.2d 1, 4[1] (Mo.1968); State v. Murphy, 533 S.W .2d 716, 718[7] (Mo.App.1976), and 2) that when this case was tried in 1973 failure to instruct the jury on all the law of the case did not of itself constitute plain error. State v. Randolph, supra, 496 S.W.2d at 263 (concurring opinion); State v. Patterson, 443 S.W.2d 104, 106-107[2] (Mo. banc 1969). In the course of our review, we shall notice the points advanced by the defendant on appeal.

The defendant’s first point, as briefed, is: “The trial court erred in giving Instruction No. 4, the verdict-directing instruction, for the reason that the instruction failed to conform to the information charging defendant with this crime.” We are cited only to 23A C.J.S. Criminal Law § 1311 (1961), which states that in criminal cases the instructions should be confined to the issues raised by the pleadings, and should be neither broader nor narrower than the indictment or information. Defendant also asserts that the information charges first-degree murder “conjunctively” and that the trial court erred in failing to instruct the jury on first-degree murder in conventional form.

The information is not artfully drawn, but read as a whole, it charges that the defendant, in the County of Jasper, on a specified day, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, shot Barbara Conrey in the head with a .22 caliber pistol, thereby inflicting a mortal wound of which wound the said Barbara Conrey died. The information is sufficient to charge defendant with murder in the first degree. State v. Kenyon, 343 Mo. 1168, 1179, 126 S.W.2d 245, 251[6] (1938). The omission of the usual averment “on purpose” following the allegation of premeditation does not vitiate the information, State v. Foran, 255 Mo. 213, 222, 164 S.W. 215, 217[6] (1914), nor is it of any consequence that the place of Mrs. Conrey’s death was not averred. State v. Majors, 329 Mo. 148, 154-155, 44 S.W.2d 163, 166[3] (1931). True, the information contains the conclusional averment that the killing was committed “in the perpetration of a robbery of James Robert Jenness and Mildred Stanley, agents and employees of Store # 5, Foodtown Inc., a corporation”, but inasmuch as the information is otherwise sufficient, that conclusional averment may and should be disregarded as surplusage, State v. Sykes, 436 S.W.2d 32, 35[6, 7] (Mo.1969); State v. Meyers, 99 Mo. 107, 114, 12 S.W. 516, 517[2] (1889), and so, contrary to the defendant’s assertion, the information charges nothing more than first-degree murder in conventional form.

Instruction No. 4 need not be set out at length. Even though this case was tried in 1973, Instruction No. 4 is almost a literal copy of MAI-CR 6.19. The State’s proof amply showed that the killing took place during the perpetration of a robbery, and Instruction No. 4 correctly defined that offense, as suggested in State v. Goacher, 376 S.W.2d 97, 106-107[18] (Mo.1964). The State was, of course, entitled to plead murder in the first degree and prove and submit felony murder in the first degree. State v. Jenkins, 494 S.W.2d 14, 17[1] (Mo.1973); State v. Owens, 486 S.W.2d 462, 467[7] (Mo.1972); State v. Smith, 310 S.W.2d 845, 848[1] (Mo.1958), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958). There was no error, much less plain error in the respects alleged, and defendant’s point is without merit.

Defendant further contends that the trial court erred 1) in failing to instruct the jury on “conventional” first-degree murder, and 2) in failing to instruct the jury on lesser graded or necessarily included degrees of homicide, specifically second-degree murder and manslaughter, because, he says, such issues were raised by the pleadings and were supported by the evidence.

Defendant’s argument that an instruction on “conventional” first-degree murder should have been given is based on the premise that the underlying felony was no longer in existence when Mrs. Conrey was killed. Defendant acknowledges that when a homicide was committed during the perpetration of one of the felonies enumerated in § 559.010, proof of the underlying felony stood in lieu of and was equivalent to proof of the deliberation, premeditation and malice required for conviction of first-degree murder. State v. Ford, 495 S.W.2d 408, 417[11] (Mo. banc 1973); State v. Glenn, 429 S.W.2d 225, 236[23] (Mo. banc 1968); State v. Burnett, 365 Mo. 1060, 1073, 293 S.W.2d 335, 343[13] (banc 1956), cert. denied, 352 U.S. 976, 77 S.Ct. 367, 1 L.Ed.2d 326 (1957).

The record evidence in this case was that the defendant left the supermarket with Mrs. Conrey. He went directly to his automobile, holding his hostage at gunpoint, carrying the money he had stolen. Police officers followed the defendant in an unmarked car as he attempted to escape. By our calculation defendant traveled no more than six to nine blocks before he encountered the roadblock at the intersection of Fifth Street and Maiden Lane. The killing occurred not more than five minutes after the robbery, and, without detailing the proof, the State’s evidence showed beyond cavil that defendant was in possession of the very money he stole when he killed Mrs. Conrey.

It is true that flight is not an element of robbery and we suppose that before the killing the crime of robbery was complete in the sense that prosecution therefor could have been maintained, State v. Brletic, 283 S.W.2d 568, 572[3] (Mo.1955), but that fact does not mean the homicide was not committed in the perpetration of the robbery for the purposes of this felony murder prosecution. State v. Messino, 325 Mo. 743, 764-765, 30 S.W.2d 750, 759[13] (1930). Our courts have consistently held that a felony murder is within the res gestae of the underlying felony when the initial crime and the homicide are parts of one continuous transaction and are closely connected in point of time, place and causal connection, as when the killing is done in flight from the scene of the crime to prevent detection or promote escape. State v. Glenn, supra, 429 S.W.2d at 231[4]; State v. Adams, 339 Mo. 926, 933, 98 S.W.2d 632, 637[5], 108 A.L.R. 838, 844 (1936); State v. Messino, supra, 825 Mo. at 764-765, 30 S.W.2d at 759[13]. In light of these controlling precedents, defendant’s argument that the underlying felony was no longer in existence when he killed Mrs. Conrey is patently without merit. There was, therefore, no reason in the circumstances of this case to give the jury an instruction authorizing a finding of deliberation from circumstances other than the commission of the robbery.

The final point for consideration is that the trial court should have instructed the jury on lesser graded or necessarily included offenses, specifically, murder in the second degree and manslaughter. On this point we are cited to MAI-CR Comments, Lesser Graded or Included Offenses, without specification of any particular comment; to State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974); and State v. Mills, 352 Mo. 774, 179 S.W.2d 95 (1944). In State v. Anderson, the court was primarily concerned with the “partial” or “diminished” responsibility doctrine, but in the course of its opinion noted two premises which, apparently, defendant wishes to utilize. The court held, 515 S.W.2d at 537[1], that a) the elements of first-degree murder were deliberation, premeditation and malice; b) the elements of second-degree murder were premeditation and malice, and c) that manslaughter was any other killing (not justifiable or excusable) which necessarily was without malice. The court went on to construe § 546.070, para. (4), and Rule 26.02, para. (6), to mean that the trial court, in homicide cases, must instruct the jury on all degrees of homicide which the evidence supported unless the trial court could say, as a matter of law, that there was an entire absence of evidence to support a conviction of a particular offense. State v. Anderson, supra, 515 S.W.2d at 537[2, 3]. We are in no doubt that Anderson correctly stated the general law as it stood when this case was tried, State v. Mudgett, 531 S.W.2d 275, 280 — 281[5] (Mo. banc 1975), but the court’s ruling in Anderson does not, as we read it, aid the defendant in the circumstances here present.

Specifically, defendant’s argument that the jury should have been instructed on lesser graded degrees of homicide rests upon the premise that his denial of any intent to kill Mrs. Conrey warranted such instruction. In our opinion, the premise is faulty.

The defendant did not testify; the evidence to which our attention is called came before the jury as part of an in-custody statement made to the Joplin Police after the defendant was apprehended. The State offered part of the statement, or confession, and it was received without objection. The defendant’s answers to questions propounded by the officers are rambling and unresponsive almost to the point of incoherence. The following questions and answers are fairly illustrative:

Q. What was your reason for going into the grocery store?
A. To get the money, of course.
Q. You went in there to rob the grocery store?
A. Yes.
Q. Did you have any weapons with you?
A. Yes, I did.
Q. What type of weapon did you have?
A. A 22 pistol.
* ⅜ ⅜ sfs * ⅝:
Q. Did you have the gun out of your pocket during this time when you were in the back of the store?
A. Yes, I did. I had it on the manager [Jenness].
Q. You heard [the sniper’s] shot and you shot, is that correct?
A. I heard a loud bang, it could have been someone closing a window or someone driving a car, but I heard a loud bang, I felt something shattering on my face and my back. It all happened at the same time, and at the same time my finger wouldn’t go on it. I heard bang, that’s all. I heard a bang. I know I fired the weapon and I know I shot her in the head, I guess I shot her in the head.
* * ⅝: ⅜: ⅜ ⅜:
Q. How many times did you shoot your gun?
A. Once that I know of. That’s all I had time for. Like I said, it was a chain reaction thing as far as I’m concerned.
Q. I haven’t made any promises to you, have I?
A. I knew I couldn’t get away with it. There’s no way of getting away with something like that. I wish the gun hadn’t of gone off, whether I shot it or whether it was a chain reaction or whether it was reflex or whatever it was, I wish it wouldn’t have gone off, at least not in her head, that I’d just got her in the shoulder or a flesh wound or something. Even accidental, purposely I don’t think I could have shot her.

Defendant emphasizes some of these self-contradictory answers and cites us to State v. Mills, supra, 352 Mo. 774, 179 S.W.2d 95, wherein it was held that the defendant’s own testimony that he did not intend to fire into a dwelling, but shot at a fleeing burglar or prowler was sufficient to entitle him to an instruction on manslaughter. State v. Mills, supra, 352 Mo. at 778-779, 179 S.W.2d at 97—98[3][4—6], There are points of difference between the Mills case and this case which make the Mills case inapplicable here. Even if defendant’s subjective intent were material here, we should be inclined to hold his denial of an intent to kill, encumbered as it is with the physical facts and his own conduct, and unreasonable and contrary to common experience, as it is, did not constitute evidence requiring instruction on lesser graded offenses. State v. Bevineau, 460 S.W.2d 683, 688[9, 10][11] (Mo.1970); State v. Johnson, 326 Mo. 1030, 1033, 33 S.W.2d 912, 913[2] (1930).

The insuperable difficulty with defendant’s argument, however, is that the evidence shows the killing was committed during the perpetration of one of the felonies enumerated in § 559.010, and therefore defendant’s intent is wholly immaterial. State v. Sykes, supra, 436 S.W.2d at 36[10]; State v. Cole, 354 Mo. 181, 195, 189 S.W.2d 541, 542[2] (1945); State v. Meadows, 330 Mo. 1020, 1028, 51 S.W.2d 1033, 1037-1038[14, 15] (1932); State v. Glover, 330 Mo. 709, 718, 50 S.W.2d 1049, 1052, 87 A.L.R. 400, 406 (1932). In such cases, the intent to commit the underlying felony attaches to the homicide, and the law conclusively presumes the intent to kill. State v. Glover, supra, 330 Mo. at 718, 50 S.W.2d at 1052; State v. Wieners, 66 Mo. 13, 22 (1877). Nor was the defendant here entitled to an instruction upon accidental homicide, which we think was the real tenor and effect of his protestation that he fired reflexively or as part of “a chain reaction”. This case is in no wise factually comparable to State v. Randolph, supra, 496 S.W.2d 257. The defendant denied an intention to kill; he did not deny the robbery, nor was there any fact or circumstance adduced by the State from which a jury could have reasonably inferred that the homicide was accidental. Under the common law and under the statutes, the perpetrator of a crime must have acted without wrongful purpose while engaged in a lawful enterprise and without negligence on his part to be entitled to the defense of excusable homicide, State v. Browning, 442 S.W.2d 55, 57[4] (Mo. banc 1969); State v. Cook, 512 S.W.2d 907, 910[4] (Mo.App.1974), and in this first-degree felony murder case, there was no such fortuity in the killing as to require an accidental homicide instruction. State v. Burnett, supra, 365 Mo. at 1074, 293 S.W.2d at 343[17]; State v. Meadows, supra, 330 Mo. at 1028, 51 S.W.2d at 1037-1038[14, 15],

Further, extended discussion of the points raised or suggested seems unnecessary. There is simply no species of proof in this appalling record which would support the conclusion that this killing was committed otherwise than in the commission of a robbery in the first degree. In our opinion, State v. Ford, 495 S.W.2d 408, 417[12] (Mo. banc 1973), controls, and is authority for our holding that no error of the order contemplated by Rule 27.20(c) was committed, in refusing instructions upon second-degree murder and manslaughter. Accordingly, the judgment is affirmed.

All concur.

      . The statute read: “Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.” (Emphasis added.) This statute was repealed Laws of Mo. 1975, Act 2A, § A, but was in force when this case was tried in 1973. References to statutes and rules are to RSMo 1969, V.A.M.S. and V.A. M.R.

      . Which provides, as here material: “Such motion [for new trial] shall be filed before judgment and within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days”.

      . Both of which, in substance, require the trial court, whether requested or not, to instruct the jury upon all questions of law arising in the case which are necessary for their information in arriving at a verdict. These propositions of law are collectively referred to as “the law of the case”.