author: WEIER, Presiding Judge.

text:
    Edward PARTON, Movant, Appellant, v. STATE of Missouri, Respondent.
    Nos. 36967, 37424 and 37772.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 9, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976. Application to Transfer Denied Feb. 14,1977.

      Robert C. Babione, Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Sheila K. Hyatt, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., George A. Peach, III, Asst. Circuit Atty., St. Louis, for respondent.
   WEIER, Presiding Judge.

Upon consolidation, we consider three appeals from the denial of post-conviction relief. Movant, Edward Parton, filed a motion under Rule 27.26 to vacate and set aside a rape conviction, and two petitions for writs of error coram nobis to vacate three robbery convictions used to place his sentencing within the judge’s discretion as a second offender in the rape case.

Movant was convicted by a jury of statutory rape of a six year old child and sentenced to fifty years imprisonment under the Second Offender Act. This conviction was affirmed on appeal. State v. Parton, 487 S.W.2d 523 (Mo.1972). Prior to mov-ant’s 27.26 hearing, the circuit court entered a pre-trial order determining issues to be considered at the evidentiary hearing and excluding others. A motion seeking a,psychiatric examination of the rape victim to show a mental condition causing the victim to lie against the movant was denied. A motion to produce tangible evidence introduced at the trial by the state was also denied.

At the hearing, movant attempted to show that his conviction was based on false and perjured testimony, and that his appointed attorney rendered ineffective counsel at his rape trial. The circuit court determined that his conviction was not the result of any perjured testimony, and that movant was not denied effective counsel. The Rule 27.26 motion was denied.

Along with his 27.26 motion, movant had filed two petitions for writs of error coram nobis to vacate three convictions, rendered simultaneously, which, although fully served, were introduced in the evidence before the court to cause sentencing in the rape case to be a judicial determination under the Second Offender Act, § 556.280, RSMo 1969. Movant had pled guilty to three charges of robbery first degree with a deadly weapon in 1965. He contended that his public defender at the time did not give him effective counsel because counsel was just a “stand-in” lawyer and movant’s pleas were coerced; that he was misled by his counsel as to the sentences which he would receive for his guilty pleas. These petitions were dismissed without a hearing.

Movant’s first contention of error on appeal is that he was denied his constitutional right to represent himself at his rape trial. This issue was not raised in the Rule 27.26 motion in the lower court and the issue was never presented to the judge for determination. Where an issue is not presented to the trial court in the motion to set aside the conviction, and the hearing did not focus in on the question, it may not be considered on appeal. Harkins v. State, 494 S.W.2d 7, 14[7] (Mo.1973).

Movant’s second point on appeal is that the trial court erred in denying his application for a psychiatric examination of the victim prior to his 27.26 hearing. The question of a victim’s psychiatric condition at the time of trial is not a proper subject for inquiry in a 27.26 hearing. Movant attempts by such an examination to challenge either the credibility or the competency of the witness. The credibility of a witness is a question of fact for the trial court and not to be considered either on appeal or in a 27.26 hearing. Bledsoe v. State, 456 S.W.2d 4, 6[2] (Mo.1970). The competency of a witness, particularly a child, is within the trial court’s province. Here, the trial court determined the alleged victim was competent in this case, and that decision was affirmed on appeal. State v. Parton, supra, 487 S.W.2d 523. See also, State v. Cox, 352 S.W.2d 665, 672[18-20] (Mo.1961). Furthermore, matters which have been decided on direct appeal, as was the child’s competency, are not cognizable in a 27.26 hearing. Rule 27.26(b)(3); Weaver v. State, 520 S.W.2d 640, 643[2] (Mo.App. 1975).

Movant next urges that he was denied effective assistance of counsel because his counsel failed to present certain facts as part of a motion to suppress evidence alleged to be illegally seized, which was denied at trial and on appeal. A mov-ant seeking to vacate a judgment and sentence on the ground of ineffective counsel has a heavy burden to carry. Hall v. State, 496 S.W.2d 300, 303[2] (Mo.App.1973). He must show that there was some basis for asserting the defense of which his counsel was allegedly ignorant. State v. Brizen-dine, 433 S.W.2d 321, 333[11] (Mo. banc 1968). Movant failed to meet his burden in this case. He maintains that his counsel failed to show that he, and not the woman who was living with the movant and gave consent for the seizure, paid the rent. In Missouri, however, a co-tenant may give permission to search a shared premises. State v. Sutton, 454 S.W.2d 481, 484[2] (Mo.1970). Thus, movant has failed to show that his counsel omitted a meritorious defense because he could not have been successful in suppressing the evidence under the law.

Movant next asserts that the trial court erred in overruling his motion to produce certain tangible evidence used in the trial of the case at his 27.26 hearing. Movant desired to produce this evidence in order to show that his rape conviction was false. A movant, however, may not reliti-gate his guilt or innocence at a 27.26 hearing. State v. Schaffer, 454 S.W.2d 60, 66[5] (Mo.1970). Movant has not urged any other basis for producing this evidence, nor has he shown any right to examine tangible evidence used at his trial at a post-trial hearing.

Movant’s final point of appeal on his 27.26 motion is that the trial judge imposed a “harassment” sentence of fifty years for exercising his right to trial by jury. The circuit court judge refused to consider this ground at the 27.26 hearing, and movant claims this as error. But where movant fails to allege facts which, if true, would be sufficient to state a claim for relief, he is not entitled to an evidentia-ry hearing. Johnson v. State, 472 S.W.2d 433, 434[1] (Mo.1971). A fifty year sentence for rape is within the statutory limitation. Section 559.260, RSMo 1969. There can be no complaint of excessive punishment if it is within the limits imposed by law. State v. Cook, 440 S.W.2d 461, 463[1] (Mo.1969).

Finally, movant challenges the denial of his writ of error coram nobis petitions on the grounds that he was compelled to plead guilty by ineffective counsel, and that his guilty pleas in 1965 were induced by promises of probation which he did not receive. While these allegations may be cognizable in a motion for 27.26 hearing, they are not proper grounds for relief under a coram nobis proceeding. A coram nobis proceeding is available to hear facts unknown by the defendant at the time of his trial. Howard v. State, 493 S.W.2d 14, 19[3] (Mo.App.1973). Movant was as aware of his grievances at the time of his sentencing as he was when he filed his petitions for writ of error coram nobis. His petitions were untimely filed. He must set forth sound reasons for not seeking relief earlier than he did. Deckard v. State, 492 S.W.2d 400, 403[11] (Mo.App.1973).

After careful review of the transcript of the proceedings, briefs and authorities, we conclude that the judgment of the circuit court denying the movant’s 27.26 motion and petitions for writ of error coram nobis was not clearly erroneous.

The judgment of the court below is affirmed.

DOWD and CLEMENS, JJ., concur.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lonnell WILLIAMS, Defendant-Appellant.
    No. 37641.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 9, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      Scott Richardson, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., George A. Peach, III, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant was convicted of the second degree murder of Dan Rogan and sentenced to life imprisonment. On appeal, defendant charges that the trial court erred: 1) in overruling defendant’s motion for judgment of acquittal; 2) in refusing to give an excusable homicide instruction; 3) in restricting cross-examination of a State’s witness. We find no error and affirm the judgment.

A friendly kiss placed by defendant on the cheek of Jackie Rogan, Dan Rogan’s estranged wife, triggered Rogan’s death. Defendant and a couple of friends stopped by Jackie Rogan’s parents’ house in St. Louis where a family soiree was in progress. Dan Rogan was also present, visiting Jackie. As defendant walked on the front porch, he paused to kiss Jackie lightly on the cheek or forehead. Rogan took umbrage over defendant’s action and became bellicose. A brief struggle ensued between defendant and Rogan during which no blows were struck. Defendant departed but soon returned with two friends. The State’s and defendant’s evidence sharply diverge as to what next occurred. State’s witnesses testified that as defendant approached the house on his return, he was brandishing a pistol; that Dan Rogan came out of the house, unarmed, shouting at the defendant, “kill me, kill me”; that defendant then fired two shots at Dan Rogan, one striking him over the eye and inflicting a mortal wound.

Defendant’s version of the occurrence is that he returned to Jackie Rogan’s parents’ house ostensibly for the purpose of extending his apologies; that as he approached the house, Dan Rogan came running at him with his hands behind his back, threatening to kill defendant; that defendant hastily retreated, firing his pistol twice into the air as a self-defense measure intending only to frighten Rogan; that somehow one of the bullets struck Rogan in the eye.

At the State’s behest, the jury was instructed on first and second degree murder. Defendant’s self-defense instruction was also given, but his request for an excusable homicide instruction was denied.

Defendant first contends that the trial court erred in overruling his motion for judgment of acquittal. Our decision leading to this point is directed by the fundamental legal rubric that we view the evidence in the light most favorable to the State, accepting as true all evidence which tends to prove defendant’s guilt and disregarding all contrary evidence. State v. Harris, 539 S.W.2d 617 (Mo.App.1976). Our task is thus to ascertain whether there was circumstantial evidence of each element of the offense for which defendant was found guilty — in this case, second degree murder — so that the jury in weighing the evidence could legitimately reach the verdict rendered. A review of the evidence fails to reveal any error by the trial court in overruling defendant’s motion for acquittal.

Murder in the second degree is established by proving that the killing of a human being was willful, premeditated and with malice aforethought, with malice presumed from the intentional killing with a deadly weapon. State v. Booth, 515 S.W.2d 586 (Mo.App.1974). Although the evidence indicates that the victim may have initiated the dispute leading to his demise, the defendant’s conduct and later returning to the scene of the initial dispute, displaying a loaded pistol, is sufficient to establish the willfulness and premeditation. Defendant’s assertion of self-defense presented a jury question resolved against defendant. Defendant’s argument that the killing was in self-defense as a matter of law is refuted by the evidence that defendant returned to the scene of the argument, armed and accompanied by two companions while the victim was unarmed. We conclude that there was sufficient evidence to support the jury verdict of second degree murder.

Defendant also suggests that the trial court erred in failing to instruct on excusable homicide. At defendant’s request, the jury was instructed on justifiable homicide, but the evidence here does not permit the giving of the inconsistent instruction of excusable homicide. The defendant’s contention is that he lawfully fired his gun into the air in self-defense with one of the bullets accidentally striking Dan Rogan in the eye. Thus, defendant’s argument rests on the theory that he shot in self-defense. It was therefore unnecessary for the trial court to submit an excusable homicide instruction, for if the jury believed that the defendant shot in self-defense (which they did not so believe) they were required to reach a verdict of acquittal. And if the defendant did not shoot in self-defense, he was engaged in the unlawful conduct of flourishing and discharging a deadly weapon. § 564.610 RSMo. 1969. Defendant’s action would thereby not comport with the statutory definition of excusable homicide, as he was acting unlawfully. § 559.050 RSMo. 1969; State v. Browning, 442 S.W.2d 55 (Mo.banc 1969); State v. Merritt, 540 S.W.2d 183 (Mo.App.1976); State v. Smith, 539 S.W.2d 571 (Mo.App.1976); State v. Simon, 534 S.W.2d 839 (Mo.App.1976).

Furthermore, this State has not recognized the anomalous doctrine of accidental self-defense. State v. Peal, 463 S.W.2d 840 (Mo.1971). Such defense is a contradiction in terms. Justifiable homicide implies that the accused acted voluntarily and intentionally for his own protection. Excusable homicide, on the other hand, implies an involuntary, unintentional and non-negligent act. State v. Merritt, supra. Defendant admits that he voluntarily and intentionally fired his weapon. His only claim of entitlement to the defense of excusable homicide is that the result of his voluntary conduct was involuntary and unintentional. However, in deciding whether to instruct on excusable homicide the trial court does not look to defendant’s subjective intent as to the result of his conduct. Intent to cause the result is only relevant in determining the degree of the homicide. The court must look to the conduct itself, and as the accused voluntarily and intentionally initiated the deadly force which resulted in the killing of another he is not entitled to rely on an excusable homicide defense.

Finally, defendant contends that the trial court abused its discretion in unnecessarily restricting the scope of cross-examination of a State’s witness. Defendant’s argument in this regard is specious. While the trial court did sustain objections to the form of certain questions asked by defendant’s counsel which were argumentative in nature, there was no limitation placed on defendant’s counsel’s cross-examination. Counsel was permitted to rephrase each question objected to and sustained and allowed to continue his cross-examination. We find no prejudice to defendant or abuse of the trial court’s wide latitude of discretion in regulating the form and scope of cross-examination. State v. Willett, 539 S.W.2d 774 (Mo.App.1976); State v. Cage, 538 S.W.2d 343 (Mo.App.1976).

The judgment is affirmed.

KELLY, P. J., and SIMEONE, J., concur.

      . While the defenses of justifiable homicide and excusable homicide are inconsistent, under certain circumstances, not here present, they may be submitted concurrently. State v. Brown, 502 S.W.2d 295 (Mo.1973) cert. den., 416 U.S. 973, 94 S.Ct. 1999, 40 L.Ed.2d 562 (1974); State v. Walker, 525 S.W.2d 826 (Mo.App.1975). See also MAI-Cr. Comments: Excusable Homicide (1974), for a comprehensive treatment of excusable homicide instruction.


author: PER CURIAM.

text:
    William S. FRENCH, Plaintiff-Respondent, v. TRI-CONTINENTAL LEASING COMPANY, a corporation, Defendant-Appellant.
    No. 9865.
    Missouri Court of Appeals, Springfield District.
    Nov. 16, 1976.
    Motion for Rehearing or Transfer Denied Dec. 6, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      Theo C. Salveter, IV, Walker, Salveter & Stoner, Springfield, for defendant-appellant.
    William A. Wear, William A. Wear, Jr., Wear & Wear, Springfield, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   PER CURIAM.

This bench-tried action arose out of a contract to lease a dairy herd. Plaintiff has had judgment in the amount of $2,809.50 plus interest and the defendant appeals.

The record is very diffuse, but from an examination of all the evidence, including the exhibits, we glean the following: At some time in the fall of 1972 defendant’s Springfield, Missouri, branch manager “want[ed] to do business” with the plaintiff. Gleason, the branch manager, called on the plaintiff, and the two discussed the proposed deal “for better than a month”. According to Gleason, he and plaintiff agreed on the “basic terms” of the cattle lease in November 1972. Gleason “filled the blanks in” on a printed lease agreement, so plaintiff could read the agreement. Plaintiff’s testimony was that this agreement “wasn’t specific or anything because I hadn’t bought any cattle at that point.” In January 1973, apparently on January 17, a printed lease form was typed, plaintiff signed the agreement (lease), a financing statement (referred to as a “UCC-1”), and made a down payment of $2,809.50. At some time between November and January, Gleason had taken plaintiff to meet Lightner, a cattle dealer, and had told Lightner that plaintiff had “been approved by [defendant] and [plaintiff] would like to see some cattle.” Gleason further testified that “they [plaintiff and Lightner] came to agreements and terms on their own at that point. In other words, Mr. French had the right to bargain for the price and so on for the cattle, which he did.” Plaintiff’s testimony was, in substance, that he had dealt with Lightner before, that he had been considering buying “one of the exotic breeds that were being bred to a Holstein”, and that when he and defendant decided to deal Gleason took him to see Lightner because Gleason knew plaintiff and Lightner had had conversation about the exotic cattle. In any event, plaintiff located the cattle— 50 head — he intended to lease, and Light-ner, the seller, called plaintiff “about the end of the first week of January, ’73”, asking if plaintiff “would take” the cattle. It was Gleason’s recollection, and certain exhibits indicate, as we have just noted, that the initial transaction was completed January 17,1973. In drafting the proposed lease, however, Gleason had forgotten to note that F & S Construction Co., a nominal lessee, was a corporation. The lease of January 17 was returned to Springfield by defendant’s St. Louis office. Gleason’s omission was corrected, plaintiff signed the corrected lease, and it was sent forward to St. Louis. Although, again, the chronology of the case is difficult to follow, it is infera-ble that by February 1, 1973, the initial phase of the parties’ dealing was complete. As defendant’s exhibit “H” shows, Gleason wrote defendant’s vice president, advising the vice president (we paraphrase) that he enclosed a lease contract, “health papers”, invoices from the seller, a “UCC-1”, a milk assignment, and a “Schedule A”. Gleason advised the defendant that plaintiff would insure through “his own company making loss payable to Tri-Continental Leasing Company.” Gleason requested that “the funding check” in the amount of $26,750 be sent to him; he would deliver the check to Lightner and “have him sign his invoice paid.” The letter of February 1 bears a postscript informing defendant that, “The UCC’s may be filed immediately . I will sign and submit the milk assignment to Mid-Am and send a signed copy to your attention later this week.”

A hitch promptly developed. Gleason’s testimony was that in February, after the first lease was signed, it was discovered that the lease contained “a provision for purchase option . . . which needed to be removed, at Mr. French’s request, and the lease agreement was redrawn, taken to the printer’s and printed, and then sent back to me.” Gleason testified that “the same documents with a few small changes” were returned by defendant’s St. Louis office in “two to three weeks” and plaintiff again signed. The first lease was not offered in evidence, so we cannot know what the legal effect of the so-called “purchase option” was. However that may be, Gleason testified that after the second lease was executed, a “corporate leasing resolution” was sent to him “to have [plaintiff] sign.” During the interval between the execution of the second lease and Gleason’s receipt of the “corporate resolution”, whatever it was, Lightner had called Gleason several times asking for payment. Plaintiff’s testimony was that after he signed the second lease and before he was asked to execute the “corporate resolution”, Lightner called “three or four times” asking for payment. Plaintiff told Lightner he, plaintiff, was doing everything he could do to get the money.

Upon being asked to sign the “corporate resolution”, plaintiff refused, and told Gleason that he wanted, in Gleason’s words, “to cancel the lease at that point and get his check for the front money.” Gleason called defendant’s St. Louis office and advised that office that plaintiff refused to execute the “corporate resolution” and was going to “cancel” the lease. The defendant retained plaintiff’s deposit, and this action followed.

At the outset, we must deal with plaintiff’s contentions that the appeal should be dismissed 1) because the statement of facts in defendant’s brief contains assertions which are misleading, untrue and argumentative, in violation of Rule 84.04(c), V.A. M.R., and 2) because defendant’s “points relied on” are merely abstract statements of law which do not show how they are related to any action or ruling of the trial court, and in addition, no authority is cited to points I, IV, and V.

The defendant’s brief is seriously deficient. As for the argument that defendant has misrepresented the facts, we agree that its statement is conclusional and argumentative, but it does not appear that counsel has deliberately undertaken to distort or misrepresent the facts, and we decline to dismiss the appeal on that ground. However, plaintiff’s assertion that assignments of error to which no authority is cited must be considered abandoned is well-taken, and because no semblance of authority, foreign or domestic, is cited to defendant’s points I, IV, and V, we consider those points to be abandoned. State v. Schulten, 529 S.W.2d 432, 434[6] (Mo.App.1975); Cady v. Kansas City Southern Ry. Co., 512 S.W.2d 882, 885-886[7] (Mo.App.1974); Sierk v. Reynolds, 484 S.W.2d 675, 682[7] (Mo.App.1972). And, we again find ourselves in the position of not knowing, precisely, why the trial court decided the issues as it did. No findings of fact nor conclusions of law were requested or tendered by the parties, and therefore defendant is in no position to assert that any specific or implied finding constitutes error. Pallardy v. Link’s Landing, Inc., 536 S.W.2d 512, 515[1] (Mo.App.1976); Swetnam v. U. S. By-Products Corp., 510 S.W.2d 829, 830[1] (Mo.App. 1974). Further, as this court noted in Pal-lardy, supra, 536 S.W.2d at 515[2], the trial court’s judgment is presumptively correct, and the defendant has the burden to demonstrate that the judgment is erroneous. Massman Construction Co. v. Kansas City, 487 S.W.2d 470, 487[6] (Mo.1972); Weston v. Great Central Ins. Co., 514 S.W.2d 17, 21[3] (Mo.App.1974).

To meet this burden, we have before us two assignments of error: 1) that signing of the lease by the defendant was not a condition of the agreement between the parties; 2) that the court erred in finding that the cow lease was not signed by the defendant because under the Statute of Frauds, defendant’s signature was not required because defendant was not the party to be charged. These two points may be quite well-taken, but there is no record indication that the trial court based its decision on the requirements of the Statute of Frauds, § 432.010, RSMo 1969, Y.A.M.S., or that defendant’s signature, or the lack of it, was a factor in the trial court’s decision that plaintiff was entitled to recover.

The court would be justified in dismissing this appeal because of the inadequacies of the defendant’s brief. In a bench-tried action the appellate court reviews the whole record, determines the weight and value of the evidence and whether the evidence is sufficient under Rule 73.01(3), V.A.M.R., as construed in Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo.banc 1976). Nevertheless, as pointed out long ago in Schlanger v. Simon, 339 S.W.2d 825, 828 (Mo.1960), we perform our appellate function:

“only in respect to the specific matters urged by [the] appellant as constituting error. [The court] does not review the whole case on its own initiative to determine what result it would have reached if it were sitting as the trial judge. . An appellate court should not become an advocate for one of the parties, and therefore it is not the duty of an appellate court to search the evidence in an effort to find some theory, and facts in support thereof, to establish a general assertion that the trial court reached the wrong result.”

As we have noted, the trial court’s findings are voluntary, not subject to specific assignment of error as if they had been requested. Only two of five assignments of error are accompanied by citations of authority; neither is demonstrably relevant to the trial court’s decision. We will not become advocates for either party and develop a rationale for the trial court’s finding or a basis for reversal. The judgment is affirmed.

All concur.


author: DOWD, Judge.

text:
    Rina PIZZURRO, Plaintiff-Appellant, v. FIRST NORTH COUNTY BANK AND TRUST COMPANY, a corporation, Defendant-Respondent.
    No. 37317.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 16, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      W. W. Sleater, Clayton, for plaintiff-appellant.
    John J. Horgan, St. Louis, Clifford L. Goetz, Clayton, Martin Schiff, Jr., Webster Groves, for defendant-respondent.
   DOWD, Judge.

This is an appeal from a directed verdict adverse to the appellant for her failure to make a submissible case against the defendant. Plaintiff alleged that she sustained injuries in the defendant’s bank as a result of being struck by a third person (her husband) when the defendant negligently failed to protect her against the actions of the third party.

Plaintiff, officer of a corporation, went to the defendant bank to meet her husband, a fellow officer in the corporation. Plaintiff’s husband was to deposit corporate funds which he had previously failed to deposit. Her husband, anticipating possible problems, asked a bank official to let him out the back door. The bank official, in order to accommodate plaintiff’s husband, called the bank guard to escort the husband out the back door. When plaintiff became suspicious that her husband was going to leave the bank with the undeposited funds, the wife requested the bank’s telephone operator to call the local police.

The operator did not place the call until a second request was made by the plaintiff about ten minutes later. After the second request, the plaintiff saw her husband leaving the bank and attempted to stop him. When she placed her hand on his arm, the husband swiped her with his elbow, knocking her unconscious and causing injury. Plaintiff alleged that the operator was negligent in not calling the police after her first request, and such negligence was the proximate cause of her injuries.

In Missouri, the owner of a business property is not liable for misconduct or negligent acts of third persons unless they are acting under direction or control of the owner, or where their actions could have been reasonably anticipated and guarded against. Rush v. Townsend and Wall Company, 343 S.W.2d 44, 50[7] (Mo.1961). Examining the evidence in the light most favorable to the plaintiff, the evidence shows that neither the plaintiff nor the defendant bank had any knowledge or information which would indicate that any sort of violent disturbance might take place until a brief period before the incident. Cases cited by the appellant in her brief in support of her claim of liability indicate that where a third person caused injuries, the activities which caused the injury had commenced at least 30 minutes previous to the injury and the defendant was put on specific notice of possible impending danger. Greeley v. Miller’s Inc., Ill Conn. 584, 150 A. 500 (1930); McFadden v. Bancroft Hotel Corp., 313 Mass. 56, 46 N.E.2d 573 (1943); Rawson v. Massachusetts Operating Co., 328 Mass. 558, 105 N.E.2d 220 (1952); Pfeiffer v. Standard Gateway Theater, Inc., 259 Wis. 333, 48 N.W.2d 505 (1951). Under the circumstances here, where there was no loud talking, threatening language or unusual physical movements, it cannot be said that the bank was given reasonable opportunity to anticipate a violent assault on plaintiff.

Even if it is assumed that defendant had sufficient time to anticipate and guard against the danger, the appellant failed to meet her burden of proving that the alleged negligence was the proximate cause of the plaintiff’s injuries, an essential element of her case. Lindsay v. Wille, 348 S.W.2d 1, 4[4] (Mo.1961). This burden is not met if resort must be made to speculation. Gottman v. Norris Construction Co., 515 S.W.2d 861, 864[2] (Mo.App.1974). “Where evidence connecting the injury with the alleged negligence amounts to mere speculation and conjecture, the court must not allow the case to be submitted to the jury. And in such an instance, a contention that the evidence did not make a submissi-ble case should be sustained.’’ Gottman v. Norris Construction Co., supra at 864[4]. The evidence demonstrates here that the proximate cause of plaintiff’s injuries was not the operator’s failure to phone the police, but plaintiff’s attempt to stop her husband from leaving the bank by placing her hand on his arm. The appellant failed to present evidence at trial which would prove that even had the police been called at first request, they would either have arrived pri- or to the incident or would have been able to prevent the incident.

After careful review of the transcript of the proceeding, briefs and authorities, we conclude that the trial court acted properly in sustaining defendant’s motion to dismiss.

The judgment is affirmed.

WEIER, P. J., and CLEMENS, J., concur.


author: SIMEONE, Judge.

text:
    In the Interest of R. R. P., a child under 17 years of age, Appellant.
    No. 37812.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 23, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      Robert C. Babione, Public Defender, Robert G. O’Blennis, Asst. Public Defender, St. Louis, for appellant.
    Joan M. Burger, Patricia Karman, St. Louis, for respondent.
   SIMEONE, Judge.

This is an appeal from an order of the Juvenile Court entered on October 14, 1975, finding that appellant, R.R.P., came within the jurisdiction of the juvenile court under the provisions of § 211.031(l)(c) and (d), RSMo, in that he was found to be an accessory after the fact of the offense of attempted robbery. He urges two points on this appeal and prays that the cause be reversed and remanded for a new adjudicatory hearing. For reasons hereinafter stated, we affirm.

This proceeding began with the filing of a petition by the juvenile officer, alleging that R.R.P. came within the provisions of § 211.031(l)(c) and (d) for the reason that on September 25, 1975, he “feloniously, unlawfully, and willfully” attempted to “rob, steal, take and carry away the personal property of John Chapman.” Other allegations sufficient to charge attempted robbery were also made. The petition informed the juvenile that he acted “contrary to Section 560.120 [robbery in the first degree], and 556.150 [attempt] Missouri Revised Statutes.” The petition prayed that the court inquire into the matter and make such orders as required. An attorney was appointed for R.R.P. and eventually an adjudicatory hearing was held before a commissioner.

At the hearing, the victim, John Darryl Chapman, a young man of twenty, testified that at about 7:30 in the evening on September 25,1975, he was walking home having “cut through” Tower Grove Park and while on Arsenal Street “[t]hree people [males] jumped me and asked me for my money.” One was tall and two were short. One was also “kinda fat.” “They asked me for ten dollars and I told them I didn’t have it.” Chapman testified that R.R.P. asked him for money. All three of them then wanted to start a fight. Chapman walked away and went into a nearby alley. In the alley they started to chase him, caught him, and two of them knocked him down and “tried to go in my pocket.” When he was on the ground, “[t]his one kicked me,” referring to the appellant, R.R.P. Chapman also testified that on that evening R.R.P. was wearing a “[b]lue knited [sic] cap and orange tea [sic] shirt.” Chapman said R.R.P. kicked him “twice.” No property was taken and Chapman was not injured. Chapman ran, went home, rested for awhile, went “back out” and “flagged down” a police officer. Chapman gave a description of the three males and indicated that one was a “[t]all male, [wearing a] blue cap, orange shirt.” On cross-examination Chapman first stated that he got a “good look” at appellant’s face, but then indicated that he identified him by the clothes he was wearing. But on re-direct he again stated that R.R.P. kicked him twice and that R.R.P. was very close to him and he “got a look at his face.” He recognized him from “his face, as well as his clothes.”

After Chapman informed the police of the events, Officer Allen C. Morris of the Metropolitan Police received a “description placed on the air of three subjects wanted for an attempted robbery. . . . ” The officer was in his patrol ear and observed a person, later identified as R.R.P., standing in front of a supermarket near the place where the assault occurred. The youth was wearing a “blue knit type cap and a[n] orange tea [sic] shirt, and dark trousers.” The officer made a U-turn; R.R.P. entered the store and walked to the rear. The officer got out of the car and followed him. He apprehended the appellant, informed him that a “description was placed out on the air, and that he matched the description of the subject wanted for assault and attempted] robbery.” Appellant was placed in the rear of the patrol car together with another person who was also detained for the offense. Officer Morris requested that the victim, Chapman, be brought to the scene for “identification of the suspect.” When Chapman arrived, he identified R.R.P. who was then wearing a blue knit cap and an orange T-shirt. Chapman could not identify the other person who was detained; hence, he was released. Chapman, in his testimony, “[o]nly knew one of them” in the police car and that was R.R.P.

At the adjudicatory hearing R.R.P. testified in his own behalf. He admitted being with two other persons that evening on Grand Avenue. He stated he was with “Robert D_ and a kid named Steve.” When Chapman came out of the park, “Robert told Steve that he [Chapman] had ten dollars, and to go and get him . ..” The two ran across the street, and Steve “ran and kicked him. That’s when he [Chapman] went in the alley and Robert, and Steve went in the alley. I stayed on Grand.” After that, R.R.P. saw Robert run out of the alley and he and Robert “ran up Grand” and “walked back down.” It was at that point that “Robert D_ said he was cold becuase [sic] he had a short sleeve shirt on, and I [R.R.P.] changed clothes with him ..” When appellant saw Officer Morris make the U-turn, he stated that “I realized that’s why Robert wanted to change clothes with me, so I got scared, and went in the A & P when he got me.” It was R.R.P.’s testimony that he was not wearing a blue cap and orange T-shirt but rather was wearing a blue jean jacket and that he traded clothes with Robert because Robert was cold. The officer apprehended R.R.P. and Robert, placed them in the rear of the patrol car, and Chapman identified R.R.P. but could not identify Robert. Robert was released, but R.R.P. was held.

On cross-examination, R.R.P. admitted he had a “pretty good idea” what Robert and Steve were up to when they ran in the alley, and admitted that even though he knew that Robert “had possibly beat up or robbed John Chapman” he still traded clothes with him. He admitted that when identified by Chapman he did not inform the police that he was not wearing his own clothes, but did so at the district station. While at the district station the officer made a phone call to R.R.P.’s mother who informed him that he had been wearing a blue jean jacket.

At the end of the adjudicatory hearing, the court announced:

“Based on the testimony offered . it is the finding of the Commissioner that the juvenile comes within the provisions of subdivision C & D of paragraph 1 of section 211.031 . . . and finds this beyond a reasonable doubt by reason of being an accessory after the fact of — ”

At that point defense counsel interrupted and the following occurred:

[Defense Counsel]: “ — I don’t think you can find him guilty of anything— anything other than what was found. That would be for the Court of Appeals to decide.”
THE COURT: “That’s exactly the situation. I’m not so sure I don’t agree with you . . . Certainly the articles of adult law would definitely agree with you. I find it difficult, within the context of these facts, to acquit your client, and it seems the best way to deal with your client is to deal with your client on the basis of what he says he’s responsible for; which is accessory after the fact of assault with intent to rob. The Court of Appeals may not share my rather broad approach to this, but so long as the statues [sic] say this is a Court of Equity I will — ”
[Defense Counsel]: “ — but, I believe the Court says, due process is — that’s when there is — when a juvenile is being adjudicated for the same thing that an adult would, would normally be a crime for an adult or is on trial for the same offense, all of the — generally, all of the rights that are accorded to the adult, except for the right of a jury, would accrue to the benefit of the juvenile, and I believe one of the benefits is that you can’t be convicted of a crime or [you are?] not charged with — ”

The Commissioner thereupon recommended that R.R.P. be placed under the care of the Division of Youth Services, but suspended the order and placed R.R.P. under court supervision in his mother’s home on condition that he (1) comply with the official rules of court supervision, (2) meet with the deputy juvenile officer, (3) attend school daily, (4) maintain a curfew and (5) enroll in the “restitution” program of the court. This recommendation was adopted and approved by the judge of the juvenile court. It is from this order R.R.P. has appealed.

Appellant makes two points. He contends that the trial court erred (1) in finding "beyond a reasonable doubt that the juvenile was guilty of being an accessory after the fact of assault with intent to rob, [because] the juvenile was not given sufficient notice in advance tl\at he was being charged as an accessory after the fact of assault with intent to rob” and (2) in finding him guilty of being an accessory after the fact “in that the only evidence of the crime was circumstantial and that the circumstantial evidence failed to preclude all reasonable theories of defendant’s innocence.”

As to the first point he argues that Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) holds that due process requires that the juvenile be given notice of the alleged misconduct with particularity sufficiently in advance so that he may have a reasonable opportunity to prepare a defense. He argues that there was no indication that he would be tried “as other than a principal” and that the petition did not indicate that he was “acting in concert with anyone.” He also argues that in the criminal process an accessory after the fact commits a separate and distinct offense from the crime of the principal, State v. Key, 411 S.W.2d 100,103 (Mo.1967), and cannot be charged or punished as a principal offender, State v. Umble, 115 Mo. 452, 22 S.W. 378, 380 (1893). He vigorously contends that a juvenile “cannot be found guilty of the offense of accessory after the fact when he is charged with either being a principal or an accessory before the fact.” And he concludes that before a juvenile is placed under supervision and restraint the juvenile “be minimally notified of what charges he should be prepared to answer instead of twisting legal principles so as to satisfy the courts own personal suspicions.”

As to his second point, appellant argues that the only evidence which supported the finding of being an accessory after the fact of assault with intent to rob was that R.R.P. changed clothes with Robert for the reason that on September 25, 1975, at about 7:30 p.m. Robert was “cold.” He argues that this sole evidence of being an accessory after the fact was the fact of changing clothes and was circumstantial and this sole evidence did not exclude every reasonable hypothesis of innocence.

Appellant makes many broadside attacks upon the finding and order of the court. In essence and upon analysis he contends that the order should be reversed because (1) he was not given adequate notice in advance that he was charged with being an accessory after the fact of an assault with intent to rob, but rather was given notice of an attempted robbery of John Chapman, or to put it differently — he was not informed of the specific act of delinquency for which he was found “guilty” [accessory] although he was given notice of a robbery attempt; (2) he was not informed that he would be tried as other than a principal and was not informed that he was acting in concert with another; (3) the juvenile court cannot find the juvenile to come within the provisions of the Code when he is charged as a principal in an attempted robbery but is found to have been an accessory after the fact of an assault with intent to rob; and (4) the evidence of exchanging clothes is purely circumstantial which does not exclude “every reasonable hypothesis of innocence.”

The respondent, the juvenile officer, does not respond to the specific points and contentions raised by the appellant, but is content to respond that the court did not err because the court had “direct and substantial evidence that the behavior of the appellant was injurious to his welfare and the welfare of others and that such behavior amounted to being an accessory after the fact of assault with intent to rob.” The State argues, in effect, that the philosophy of the juvenile system is not identical to the purposes of the criminal system, that R.R.P. had sufficient notice of the acts of delinquency, that the evidence was sufficient to show that “[t]he behavior, environment or associations of the child [was] injurious to his welfare or to the welfare of others,” Section 211.031(l)(c), and that the evidence was sufficient to support all of the elements necessary to show that appellant was an accessory after the fact of an assault with intent to rob under § 556.180 RSMo.

Under the record in this cause, we conclude that the order of the juvenile court finding that the juvenile was an accessory after the fact of an assault with intent to rob should be affirmed. The purpose and philosophy underlying the juvenile court system is well known and need not be repeated here. See In re F_C_, 484 S.W.2d 21, 25 (Mo.App.1972); J.D.H. v. Juvenile Court of St. Louis County, 508 S.W.2d 497, 500 (Mo. banc 1974). While Application of Gault, supra, abrogated a double standard between certain procedural rights accorded adults and those accorded children, no court has yet equated all of the aspects of the criminal process with the juvenile process.

We adhere to the principles of Application of Gault, supra, where it is said:

“. . . Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct with particularity.’ [note] . . .Notice at that time [at the hearing] is not timely; and even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. Due process of law requires notice of the sort we have described — that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding, [note] It does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet. . . .” Application of Gault, supra, 87 S.Ct. at 1446-1447.

It is clear that due process will not permit general or vague charges, as in Gault, to be levelled at a juvenile. While numerous decisions have interpreted the notice requirements of Gault, supra, the basic test is that the petition should set forth facts constituting the alleged acts of delinquency and not mere conclusions as in Gault.

“Due process of law requires that a juvenile, in the same manner as an adult, be notified of the charges against him. The charges must ‘set forth with particularity the misconduct upon which the delinquency petition was based’, so that the juvenile will be able to prepare a proper defense and conduct ‘such investigation [of the charges] as may be necessary.’ . ” In Interest of Bryant, 18 Ill. App.3d 887, 310 N.E.2d 713, 716 (1974).

Under this test of notice we believe that R.R.P. and his parent had adequate notice of the alleged delinquent act. The notice informed them of the nature and substance of the proceeding, it alleged the facts which bring the child under the provisions of the juvenile code, and it notified him and his mother of the time and date of the alleged conduct. See § 211.091, RSMo. This was sufficient for the juvenile and his parent and counsel to be informed of the nature of the conduct and of the specific delinquent act of attempted robbery to permit them and counsel to prepare an adequate defense. The notice and petition therefore satisfied all the requirements of Application of Gault, supra.

The appellant, however, complains that there was no notification that he “acted in concert” with others, but that the petition treated him as acting as a principal only. Even in the criminal process this is not necessary. An information charging a defendant with robbery is sufficient to sustain a conviction of robbery when the evidence shows that he participated and acted in concert with others. State v. Butler, 310 S.W.2d 952, 957 (Mo.1958); Rowden v. State, 493 S.W.2d 699, 702 (Mo.App.1973).

As we view it, the crucial issue for our determination and which is raised by the appellant is whether the appellant, R.R.P., may be found to be delinquent as an accessory after the fact of assault with intent to rob when the petition informed him that he was delinquent because of an attempted robbery. The precise issue presented is whether the juvenile court may assume jurisdiction under § 211.031(l)(c) or (d) when the petition alleged that the juvenile was delinquent because of an attempted robbery, but the court found that under the evidence presented by the juvenile he was an accessory after the fact of assault with intent to rob. Under the circumstances of this case, we hold that the juvenile court did not err in finding the appellant to be an accessory after the fact of assault with intent to rob although the petition alleged attempted robbery.

Due process requires that the petition set forth with specificity the alleged violation of law either in the language of the statute or so plainly that the nature of the offense may be understood by the child and his parents. Due process also prohibits a juvenile court from finding that a child comes within its jurisdiction when the petition alleges a specific allegation of an act of delinquency but the allegation is not supported by legally sufficient evidence. In other words, due process of law precludes a juvenile court from taking jurisdiction of a child when the petition alleges a certain act of delinquency but the evidence offered by the State is legally insufficient in that it fails to prove the particular act of delinquency alleged, but does prove a separate and distinct offense, as distinguished from a lesser included one, which was not alleged in the petition. For the juvenile court to take jurisdiction of the child under such circumstances would prejudice the juvenile and his parents in the presentation of his defense and would allow the juvenile court to adjudicate a juvenile to be delinquent for any offense the evidence might reveal. This would deny him the notice of the grounds upon which the adjudication of delinquency is being pursued.

But these principles and decisions which we fully approve are not dispositive or controlling under the unique facts in this record.

This was not a situation in which the State charged one act of delinquency and proved another. The petitioner’s evidence conformed to the allegations of the petition and established the facts necessary for the juvenile court to take jurisdiction. This was not a situation where the State’s evidence failed to support the act of delinquency alleged in the petition. The petition charged attempted robbery and all of the State’s evidence proved that there was such an attempt. Taking the evidence in the light most favorable to the State, Chapman identified R.R.P. as one of his assailants; he testified that R.R.P. kicked him twice and attempted to take money from his pockets. He identified R.R.P. by both his clothing and his face. He got a “good look” at R.R.P. It was the appellant, not the State, who introduced the evidence that he changed clothes with Robert because Robert was on that September evening “cold.”

R.R.P. testified Robert D_ told Steve that Chapman had money on him and to “go and get him,” that he had a “pretty good idea what they were up to,” and that even though he knew that Robert had possibly beaten up and robbed John Chapman he still changed clothes with him. Under such circumstances where the juvenile himself introduced such evidence and the court apparently believed his testimony, we cannot conclude that the court erred in finding that the appellant came within the jurisdiction of the juvenile court.

Under all the circumstances of this record, there is no error. The court here had ample evidence to support its finding that the appellant came within the jurisdiction of the juvenile court under § 211.-031(l)(c). The appellant had ample notice that he was “charged” with attempted robbery, and the evidence of the juvenile officer amply supported the allegations in the petition. It was the appellant who injected the defense that he “changed clothes” and that he was an accessory after the fact of an assault with intent to rob, knowing full well that an attempted robbery had taken place. Notice of being an accessory would have served no useful purpose and would not have prepared him to meet the allegations of the petition; hence, he could not have been prejudiced by such lack of notice of being an accessory after the fact. An accessory after the fact of assault with intent to rob is such conduct for the court to find that the appellant came within its jurisdiction under § 211.031(l)(c). The appellant cannot introduce such evidence in his case and then simultaneously claim lack of notice of being an accessory after the fact. While appellant should not receive the “worst of both worlds” he is not entitled to the “best of both worlds.” Cf. Kent v. United States, 383 U.S. 541, 556, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84, 94 (1966).

All of the elements of being an accessory after the fact were shown under § 556.180, RSMo. The appellant was not related to Robert; a “felony” had been committed; appellant gave aid to Robert “knowing” a felony had been committed and gave aid to others, who, by his own testimony, assaulted Chapman with intent to rob.

Furthermore, there was ample evidence here for the court to find that appellant came within the jurisdiction of the juvenile court because of § 211.031(l)(e) [and not (d)] which deals with children who behave in ways injurious to themselves or others. In re M— K — , 493 S.W.2d 686, 688 (Mo.App.1973).

Lastly, there is no merit to the circumstantial evidence argument of the appellant. This was not a wholly circumstantial evidence case. There was direct evidence for the court to find that the appellant either participated in the attempted robbery or was an accessory after the fact under § 556.180, RSMo. The victim testified that an attempted robbery took place, that the appellant was involved and kicked him twice, and that although R.R.P. knew that Robert had beaten up or robbed Chapman he still traded clothes with him. This was sufficient to show that appellant was an accessory after the fact.

The appellant contends that the mere evidence of changing clothes with Robert was circumstantial evidence and did not exclude every reasonable hypothesis of innocence. But the fact of changing clothes must be viewed in the context of the other facts. When those facts are considered — he was at the scene, he changed clothes knowing that an attempted robbery had taken place — the evidence excluded every reasonable hypothesis of innocence. This contention is without merit. State v. Cain, 507 S.W.2d 437, 440 — 441 (Mo.App.1974).

Under all the circumstances, therefore, we hold that (1) the appellant and his parent received sufficient notice of the act of delinquency and that the standards of Application of Gault, supra, were not violated, (2) it was unnecessary to allege in the petition that the appellant acted in concert with others, (3) under the circumstances we will not set aside the order of the trial court under the principles of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) and In re M_ K_, supra, 493 S.W.2d at 688, (4) appellant cannot complain of lack of notice of being an accessory after the fact when he injected this issue in his defense, and (5) there was sufficient evidence that appellant was an accessory after the fact of assault with intent to rob to exclude every reasonable hypothesis of innocence.

Under all these circumstances we cannot say that the trial court’s finding was not based on substantial evidence, or the weight of the evidence, or was a misapplication of the law. Murphy v. Carron, supra, 536 S.W.2d at 32.

We have read the entire transcript, the briefs and all the authorities relied upon and find no prejudicial error.

The judgment of the trial court is affirmed.

KELLY, P. J., and GUNN, J., concur.

      . He also relies on the new Juvenile Court Rules effective August 1, 1976. Rule 128.10— “The petition should set out in detail and with particularity the facts constituting the basis for juvenile court jurisdiction under Section 211.-031 RSMo.” This hearing, however; was held prior to the effective date of our new rules, but embodies the concept of due process.

      . See Commonwealth v. Roskov, 224 Pa.Super. 393, 307 A.2d 63 (1973) — no advance notice of auto larceny.

      . In re Howard, 515 P.2d 1399 (Okl.Cr.1973)— allegation of attempted rape; allegation not supported by legally sufficient evidence but court found that child committed offense of indecent exposure; D. P. v. State, 129 Ga.App. 680, 200 S.E.2d 499 (1973) — where petition alleged juvenile had committed burglary but made no mention of offense of receiving stolen goods and receiving stolen goods was not a lesser included offense, it was held that notice was insufficient; In Interest of Bryant, supra, —petition failed to charge an essential element of aggravated battery on police officer; In re Meyer, 204 N.W.2d 625 (Iowa 1973) — petition alleged neglect under one subdivision of law but court found neglect under another; State In Interest of Simon, 295 So.2d 473 (La.App. 1974) — petition alleged that juvenile received stolen things but State failed to establish offense, court could not adjudge that juvenile is in need of supervision and care; D. M. M. v. State, 275 So.2d 308 (Fla.App.1973) — petition alleged possession of narcotic paraphernalia, allegation not proved and court based judgment of delinquency on use of narcotics; Allen v. Ladson, 119 Ga.App. 44, 165 S.E.2d 881 (1969) — finding of delinquency on basis of evidence relating to incident other than, and not related to, offense charged in petition was erroneous.

      . It is interesting to note that if Robert were cold, why did he give his knitted cap to R.R.P.?


author: TURNAGE, Presiding Judge.

text:
    Arthur C. McCARTY, Plaintiff-Respondent, v. Joseph M. DONAHUE, Defendant-Appellant.
    No. KCD 27557.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    Motion for Rehearing and/or Transfer Denied Dec. 23, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      Robert C. Jones, Jones & McDaniel, Kansas City, for defendant-appellant.
    Michael H. Maher, Niles S. Corson, Kansas City, for plaintiff-respondent; Swanson, Midgley, Gangwere, Thurlo & Clarke, Kansas City, of counsel.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Arthur McCarty submitted his case against Joseph Donahue to the jury on the theory McCarty had paid Donahue $8,000 for 245 shares of stock in an investigation service company, but Donahue failed to deliver such shares. The jury returned a verdict in favor of McCarty for $10,000, but in response to the court’s order, McCarty entered a remittitur for $2,000 and the court entered judgment for $8,000 in favor of McCarty.

On this appeal, Donahue attempts to raise three points, but such points are found not to be reviewable. Affirmed.

Donahue sets forth the following points in his brief: (1) The court erred in overruling defendant’s motion for a directed verdict made at the close of plaintiff’s evidence and at the close of all the evidence. Appellant made a legal delivery to respondent of the stock certificate; (2) The court erred in giving Instruction No. III. It failed to submit whether appellant refused to deliver to plaintiff a stock certificate for 245 shares of stock in Kansas City Bureau of Investigation, Inc.; and (3) The court erred in permitting plaintiff to amend his petition immediately before trial by adding Count III.

With reference to the first point, the record shows Donahue filed a motion for directed verdict at the close of McCarty’s evidence. Thereafter, Donahue offered evidence in his own behalf. In that situation, Donahue waived his motion for directed verdict made at the close of the plaintiff’s evidence, and the court’s ruling on that motion is not reviewable. Garvis v. K Mart Discount Store, 461 S.W.2d 317, 320[1] (Mo. App.1971).

The transcript does not show a motion for directed verdict made by Donahue at the close of all the evidence. Failing to make such motion, there is no ruling to be reviewed. The last sentence of this point is a mere abstract statement which does not present anything for review. Rule 84.04(d).

The second point attempts to obtain a review of the failure of Instruction No. Ill to submit Donahue’s refusal to deliver the 245 shares of stock. This question was not included in Donahue’s motion for a new trial. The only mention of Instruction No. Ill in the motion for a new trial alleged the Instruction was in error because it failed to require a finding that McCarty had paid the $8,000 consideration. By failing to include in his motion for a new trial the deficiency now alleged in this Instruction, this point cannot be reviewed. Rule 79.03; Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317, 322[5] (Mo.banc 1975).

The third point attempts to have this court revietv the ruling of the trial court which permitted McCarty to amend his petition immediately before trial. However, this point fails completely to inform this court exactly how the trial court erred in permitting this amendment, but only states in general terms that such amendment was error. The point is required to state “wherein and why” the actions of the trial court are erroneous. Rule 84.04(d). Because this point failed to state wherein and why the court erred in permitting the amendment, the ruling in that regard is not preserved for review. St. Charles Plastic Drain. Co., Inc., v. Veneers, Inc., 494 S.W.2d 696 (Mo.App.1973).

Since Donahue’s points do not present matters which may be reviewed, the judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Clint R. HUBBARD, by and through his mother and next friend, Marilyn J. Williams, and Marilyn J. Williams, Plaintiffs-Respondents, v. James O. LATHROP and Margaret E. Martin, Co-Executors of the Estate and Personal Representatives of Clyde Lathrop, Deceased, Defendants-Appellants.
    No. KCD 27873.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    Motion for Rehearing and/or Transfer Denied Dec. 23, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      Walter R. Simpson, Kansas City, for defendants-appellants; Sheridan, Sanders, Mason & Simpson, P. C., Kansas City, of counsel.
    James W. Benjamin, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for plaintiffs-respondents.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.

      . Mr. Lathrop died September 14, 1974, during pendency of this case.

   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from order granting new trial to plaintiffs on ground the verdict was against the weight of the evidence. The question is whether plaintiffs made a submissible case and, if so, whether plaintiff Clint Hubbard was eontributorily negligent as a matter of law. Affirmed.

Appellants contend there was no evidence to support submission of plaintiffs’ case and that, regardless of the theory of negligence advanced, the proximate cause of the casualty was the contributory negligence of plaintiff Clint Hubbard in that he made a sudden turn into the path of the automobile operated by Clyde Lathrop.

The grant of one new trial on the ground the verdict was against the evidence will not be disturbed when there is evidence to support a verdict for the party to whom the new trial is granted; and the inquiry accepts the evidence favorable to the trial court’s ruling and rejects the appellant’s evidence unless it supports the court’s ruling. Clark v. Quality Dairy Co., 400 S.W.2d 78, 82[1] (Mo.1966); Land Clear, for Redev. Auth. v. Joplin Union Depot Co., 429 S.W.2d 806, 809-810 (Mo.App.1968); Overbey v. Fodde, 420 S.W.2d 510, 511 (Mo.1967). See also Allman v. Yoder, 325 S.W.2d 472, 473[2] (Mo.1959), citing e. g., Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, 300[9] (Mo. 1951), and Chappell v. City of Springfield, 388 S.W.2d 886, 889[2] (Mo.1965), citing e. g., Andres v. Brown, 300 S.W.2d 800, 801[2] (Mo.1957).

The casualty occurred November 23,1972, on Missouri Highway 116 east of Platts-burg. The day was sunny and clear. The highway was a straight, two-lane, dry asphalt surface, 24 feet wide, running downgrade west to east. The casualty site was an open area with no obstructions to visibility and no restrictions on eastbound traffic against passing. The speed limit was 65 miles per hour.

Clint Hubbard was 15 years of age. He had ridden bicycles since he was three or four years old, and had studied literature on bicycle safety. He was athletic and a good student. He left his home in Lathrop to visit his aunt in Plattsburg around 3:00 p. m. His last recollection of events which occurred later that day was driving down the highway in the middle of the right-hand lane (eastbound toward Lathrop from Plattsburg).

Clyde Lathrop (by deposition) was 78 years of age. He had been to St. Joseph and was returning eastbound on highway 116 toward his home in Richmond. As he came over a hill to the west of the casualty scene, he saw Clint Hubbard riding his bicycle on the right-hand side of the highway. Mr. Lathrop was driving about 60 miles per hour; there were no other vehicles in sight. The investigating officer, Trooper Dean Jefferson, found skid marks near the casualty scene leading to Mr. Lathrop’s automobile and measured the distance from such marks westward to the top of the hill at approximately 729 feet. Mr. Lathrop continued down the highway. When he was two or three car lengths behind the bicyclist, having slowed to 50 to 60 miles per hour by his estimate or to 50 to 55 miles per hour by the trooper’s estimate, he started to pass, and then honked his horn “shortly after” he “pulled over” to pass. After Mr. Lathrop honked his horn, the boy “looked back, looked around this way [indicating] and looked back and saw me over there. * * * And he still pulled right over in front of me. I jerked the car off the highway in trying to miss him. * * * In fact, I think if I hadn’t honked the horn the boy would have been all right. I think that’s what startled him. I don’t think he heard that car at all, and when I honked the horn, I think he just — well, went all to pieces. It scared him to death. He thought the car was behind him, I guess. If I hadn’t honked the horn, I don’t think the boy would have pulled over there.”

Trooper Jefferson determined that the casualty occurred around 3:55 p. m. When he arrived at the scene, he observed Mr. Lathrop’s 1972 Buick sedan in the ditch on the north side of the highway with its front end headed southward up the highway embankment. The bicycle was lying on the shoulder near where the car went over the embankment; its rider had been taken from the scene by ambulance. The Buick displayed damage to its right front side, and the windshield had been shattered when the bicyclist was thrown “up over the hood and into the windshield,” as described by Mr. Lathrop. The bicycle displayed damage to both wheels and the left handlebar.

There is no question that Clint Hubbard sustained injuries as a result of the casualty; that his injuries required extensive medical care; and that he is limited in his physical capacity.

The jury rendered its verdict for defendants January 22, 1975. On January 31, 1975, Mrs. Williams wrote to Judge Con-nett, “as a mother,” and espoused her hypothesis of liability and injury as an “appeal * * * to help us by giving us another trial.” On February 3,1975, Judge Connett answered Mrs. Williams and advised her that he felt the case had been fairly tried and that she should consult her attorney, Mr. Benjamin, to determine whether “he can think of any grounds at all for you to obtain another trial * * Copies of Judge Connett’s and Mrs. Williams’ letters were furnished to counsel. A copy of Judge Connett’s letter was filed in the case February 5,1975. Plaintiffs’ motion for new trial having been forwarded to the clerk and the judge February 3, 1975, was also filed by the clerk February 5, 1975. The first ground in plaintiffs’ motion for new trial was that “the verdict is against the weight of the evidence.” On February 18, 1975, counsel for defendants acknowledged receipt of Judge Connett’s answer to Mrs. Williams, together with a copy of her letter to Judge Connett. Counsel also acceded to a ruling on the motion for new trial without oral argument or written suggestions.

On February 25, 1975, the court entered the following order:

“On Plaintiff’s Motion for a New Trial, having been submitted to the Court without argument, and having been fully considered, the Court finds that the verdict of the jury is against the weight of the evidence:

“WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED by the Court that Plaintiff’s Motion for New Trial be and is hereby sustained.”

The foregoing order was accompanied by a memorandum of the court’s observations with respect to the submissibility of both defendants’ negligence and plaintiff Clint Hubbard’s contributory negligence.

Section 304.016.1(1), RSMo 1969, provides: “An operator or driver [of a motor vehicle] overtaking and desiring to pass a vehicle shall sound horn before starting to pass except * * Such provision accords with the general rule as stated, 8 Am. Jur.2d, Automobiles and Highway Traffic, Section 780, page 339:

“Before a motorist attempts to pass another motorist proceeding in the same direction, he must make known to the motorist ahead his presence and desire to pass, where a statute so requires, or when circumstances require a warning in the exercise of reasonable care. When such a signal or warning is required, it must be timely * *

See also 60A C.J.S. Motor Vehicles § 326(3), Signaling to Overtaken Vehicle: “The required signal or warning must be timely,” p. 348.

“To be effective, * * * an audible signal of an intention to pass a forward vehicle must be given in such a manner and at such a time as to permit meaningful action by the forward driver in response to the signal. * * * an overtaking motorist may be regarded as negligent, or con-tributorily negligent, in connection with a collision with a forward car in passing, even though the overtaking driver gave an audible signal, if the signal was not given in time to permit effective evasive action by the forward driver.” 22 A.L.R.3rd 325, 366.

In application of the foregoing, it has been said that the statute does not declare the exact distance or time before overtaking at which the audible signal must be given. It “is intended for the benefit of the driver of the overtaken vehicle. * *

Its purpose is to warn him that another vehicle is approaching and is about to pass him, and it ought to be given in time to enable him to safeguard himself against the danger of collision. The proper time for such warning is ordinarily a question of fact for the jury.” Moore v. Miller, 51 Cal.App.2d 674, 125 P.2d 576, 579[6, 7] (1942). The warning signal must be given to the operator of the vehicle in front “in reasonable time to avoid injury which would probably result from a left turn or a crossing over the center of the highway to the left by the vehicle in front.” Boykin v. Bissette, 260 N.C. 295, 132 S.E.2d 616, 619 (1963). In Moak v. Black, 230 Miss. 337, 92 So.2d 845 (1957), a new trial was accorded to the survivors of a 9-year-old bicyclist killed when struck by a motorist who saw the boy for a distance of several hundred feet before overtaking him on a straight roadway with unobstructed view and neither sounded his horn nor applied his brakes until within 12 or 15 feet of the boy. The motorist “had ample time after he saw the boy on the, high way to sound his horn and reduce his speed and apply his brakes, if necessary, before attempting to pass the boy on the bicycle. * * * [he] had no right to assume that the boy knew that the automobile was approaching, merely because ‘he turned his head * * 92 So.2d 1. c. 850. See also McMinn v. Lilly, 215 Miss. 193, 60 So.2d 603 (1952); 172 A.L.R. 736, 737, 738.

Under the version of the facts favorable to plaintiffs, defendants’ decedent saw plaintiff Clint Hubbard on a bicycle some 700 feet ahead and continued to travel at 50 to 60 miles per hour until he was within but two to three car lengths of the boy, at which point he turned to the left for the purpose of passing, thereafter honked his horn, and thereby startled the boy into pulling left. As demonstrated, the statute required that Mr. Lathrop timely sound a warning before he started to pass the boy. In failing to do so, he could be found negligent; and the test whether such negligence was a proximate cause of the result is whether the facts show “that the injury would not have occurred in the absence of the negligent act.” Dixon v. Wabash R. Co., 198 S.W.2d 395, 398 (Mo.App.1946). As directed in a similar case of collision between overtaking and overtaken vehicles, “It is not for this court to say that had a proper and timely warning been given by [the overtaking driver] he would not have influenced the situation of danger in any way.” Dintelman v. McHalffey, 435 S.W.2d 633, 637 (Mo.1968).

A bicyclist also has the duty to obey the rules of the road and is required to exercise ordinary care for his own safety. Burt v. Becker, 497 S.W.2d 411 (Mo.1973); however, the facts in this case do not convict Clint Hubbard of contributory negligence as a matter of law.

In Hunt v. Los Angeles Ry. Corp., 110 Cal.App. 456, 294 P. 745 (1930), the bicyclist was warned of the overtaking bus by a girl standing nearby on the sidewalk. He thereupon turned his body and head to the left and looked in the direction of the bus and at the same time swerved his bicycle to the left sufficiently to be struck by the bus. Other witnesses observed that the bicyclist appeared frightened upon discovering the proximity of the bus. The driver sounded his horn before the collision but how long before he was unable to say. Contributory negligence was invoked as a defense. A directed verdict for defendant was reversed with the following observations:

“Bicycle riders have the same right as automobile drivers to the use of the streets, and the former are chargeable only with such ordinary care for their own safety as a prudent person of like age, intelligence, and experience would exercise under the same or similar circumstances. * * *
“Conduct which might otherwise constitute negligence on the part of a child may not be so considered where its acts or omissions were done or omitted in an emergency calculated to produce fright, bewilderment, or confusion * * *; and, while a driver in approaching a child upon a street or highway is not bound to guard against every possible contingency, nevertheless, where he sees a child in a place of danger, or might reasonably apprehend that if approached without warning the child would through fright or bewilderment place itself in a place of danger, it is his duty to keep his car under such control as would be reasonably necessary to avoid a collision * * *. As has been held with respect to the conduct of adults under similar circumstances, if the negligence of the defendant caused fear and loss of presence of mind on the part of the injured person so as to impel him to rush into danger, his mere error or mistake of judgment does not necessarily constitute contributory negligence as a matter of law.” 294 P. 1. c. 747.

A similar observation was made in Southwestern Freight Lines v. Floyd, 58 Ariz. 249, 119 P.2d 120, 124 (1941):

“That the operator of the bicycle, when she saw or heard the Northcutt truck 15 or 20 feet behind her, should be reasonably expected to continue on her course, unexcited, and take the chance she would not be run down, is hardly in accordance with human experience. One would rather expect her to become panicky and instantly seek some way of escape. That she failed to adopt a safe or the safest course, or to give statutory signals * * * does not relieve the defendant. It has long been settled that a party having given another reasonable cause for alarm cannot complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility for damages.”

Appellants contend also that although the court’s order showed plaintiffs were accorded a new trial on the ground the verdict was against the weight of the evidence, “a fair reading of the trial court’s memorandum * * * makes clear that the court, in essence, granted a new trial because the court concluded that Clyde La-throp was negligent as a matter of law and that Clint Hubbard was free of negligence as a matter of law.” Appellants assert that “ * * * evidence * * * that the trial court granted a new trial on some basis other than the verdict being against the weight of the evidence is the court’s letter to Marilyn Williams * * * written in response to Mrs. Williams’ impassioned letter * * *. It is obvious that Mrs. Williams’ letter had a significant effect on the court because the Court’s Memorandum * * * for the most part paraphrases the fourth paragraph of Mrs. Williams’ letter.”

This ground was advanced for reversal and denied in Sawyer v. Winterholder, 195 S.W.2d 659 (Mo.1946). That case also involved a plaintiff bicyclist struck by defendant’s automobile; and after a verdict for defendant, the trial court ordered a new trial on ground the verdict was against the weight of the evidence. The trial court also accompanied its order with a memorandum on its ruling, and the defendant-appellant argued that the record showed that the court granted the new trial to plaintiff upon an erroneous assumption or opinion contrary to the order itself. Apropos this case, the court observed:

“The appellant-defendant, being fully aware of the force and effect of the trial court’s order setting the jury’s verdict aside as against the weight of the evidence, * * seizes upon the trial court’s memorandum and ingeniously contends that the court did not sustain the motion upon the assignment that the verdict was against the weight of the evidence but in fact sustained the motion upon the erroneous assumption that the defendant’s evidence was contrary to the physical facts and, therefore, unbelievable. * * *
“But, the insuperable difficulty with the appellant’s basic argument * * * is that the trial court’s order, which is the sole and only official repository for the court’s thoughts or reasons * * * for sustaining a motion for a new trial, in unambiguous language states that the motion was sustained upon the ground that ‘the verdict is against the greater weight of the evidence.’ * * * The court, in sustaining a motion for a new trial, is required by the statute * * * to specify in the order the ‘ground or grounds’ upon which the motion is sustained * * * but the court is not required to further set forth in a separate memorandum or elsewhere the reasons for the grounds, the process by which the court arrived at the grounds or the facts upon which the court bases the grounds. * * * The court’s * * * statement of the background of its views, set forth at the time the order is made— while they may be helpful and useful — do not have the effect of making the statement a part of the order or of changing the meaning or effect of the order. * * * Even though the court may have orally given incorrect or erroneous reasons for the grounds of his order * * *, nevertheless his ultimate decision, embodied in the required order, controls and by it the motion was in fact sustained on the discretionary ground that the verdict was against the weight of the evidence.” 195 S.W.2d 1. c. 661. To the same effect, see Land Clear, for Redev. Auth. v. Joplin Union Depot Co., supra, 429 S.W.2d 1. c. 808 — 809[1—4]; and cf., Lifritz v. Sears, Roebuck and Company, 472 S.W.2d 28 (Mo.App.1971), where the trial court’s order incorporated findings going beyond the discretionary ground that the verdict was against the weight of the evidence, and therefore did not limit itself to the discretionary ground.

Judgment affirmed.

All concur.