author: STEPHAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Charles Keith DECKER, Appellant.
    No. 40011.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 11, 1979.
    Motion for Rehearing or Transfer Denied Nov. 20, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Scott Richardson, Clayton, for appellant.
    John Ashcroft, Atty. Gen., Richard Thurman, Asst. Atty., Gen., Jefferson City, for respondent.
   STEPHAN, Presiding Judge.

Defendant-appellant Charles Decker was indicted for and tried jointly on the charges of first-degree robbery and stealing a motor vehicle. Defendant’s motion to sever the offenses was denied. He was convicted on the stealing count and acquitted of the robbery. Having been tried under the Second Offender Act, § 556.280, RSMo 1969, he was sentenced by the trial court to ten years in prison. We affirm.

On June 25, 1976, defendant took a test drive of some fifteen to twenty minutes in a new yellow Toyota Corolla lift-back with salesman Patrick Logue of Placke Toyota. After they returned to the lot, located on South Kingshighway in the City of St. Louis, defendant told Logue that he would have to confer with his wife before making a decision about the car. Defendant departed on foot. Approximately ten minutes later, Logue saw defendant drive off the lot in the same yellow Corolla, without the permission of Logue or any other Placke employee. Logue testified that the theft occurred at approximately 4:00 or 5:00 p. m. That evening, shortly after 9:00 p. m., a Schnuck’s grocery store at Gravois and Hampton in the City of St. Louis was robbed at gunpoint. The robber briefly exhibited a small pistol to the employee attending the store’s customer service counter and demanded money. The employee later identified defendant as the robber. Two other employees who did not witness the robbery testified that they observed defendant loitering around the service counter between 8:00 and 8:30 p. m.; one had noticed defendant standing around the counter on several prior occasions during the day, as early as 3:00 p. m., for as long as an hour or so. A fourth employee testified that he saw a man, clothed as the robber was described by the other witnesses, running across the Schnuck’s parking lot shortly after 9:00 p. m.; he subsequently saw a yellow foreign fast-back sub-compact automobile with dealer stickers in the window, hurriedly leave the lot. However, he could positively identify neither the man nor the vehicle as defendant and the stolen Toyota, respectively. Defendant presented an alibi defense to both charges. As noted, the jury convicted defendant of the theft of the automobile, and acquitted him of the robbery of the store.

In his first assignment of error, defendant contends that the trial court erred in failing to grant his motion to sever the offenses listed in the indictment. Joinder of offenses is governed by Rule 24.04, which, at the time of defendant’s trial, provided:

“All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees.”

Defendant disputes the trial court’s ruling that the two offenses charged could be found to constitute parts of a common scheme or plan. He argues that there was no evidence to link the stolen car with the robbery; and that, even if there were such evidence, there was no indication that the car was stolen for the purpose of facilitating the robbery, which, according to the evidence adduced at trial, was committed some four to five hours later.

We note initially that the question of whether a motion to sever offenses should be granted is a matter within the discretion of the trial court. State v. Crane, 559 S.W.2d 294, 296 (Mo.App.1977); State v. Duren, 556 S.W.2d 11, 20 (Mo.banc 1977), reversed on other grounds, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Broad joinder is encouraged in the interest of more efficient administration of criminal justice. State v. Johnson, 505 S.W.2d 11, 12 (Mo.App.1974); State v. Easton, 577 S.W.2d 953, 957 (Mo.App.1979). However, the benefits to be derived from joinder of offenses should be weighed against the potential prejudice to defendant resulting from that joinder. In assessing that prejudice, the court should consider the number of offenses charged, the complexity of the evidence to be offered and the consequent ability of the jury to distinguish the evidence and apply the law intelligently as to each offense. Duren, supra, 20. Although the acquittal of a defendant on one count should make an appellate court sensitive to the possibility of improper joinder, it does not in itself mandate such a finding. United States v. Ragghianti, 527 F.2d 586, 587 (9th Cir. 1976); United States v. Johnson, 462 F.2d 608, 609 (8th Cir. 1972). Reversal of the trial court is proper only upon a clear showing of prejudice and abuse of the trial court’s discretion. United States v. Lewis, 547 F.2d 1030, 1033 (8th Cir. 1976), cert. den. 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977).

In the instant case, we do not believe that that discretion was abused. The stolen automobile was sufficiently linked to the robbery through the testimony of the Schnuck’s employee who, shortly after the time of the robbery, saw a man in the described attire of the robber running across the parking lot from the store and subsequently saw a car matching the description of the Toyota hurriedly leaving the lot. Given that link, and given the testimony that defendant had been loitering around the service counter for some time prior to the theft of the car, we believe it not unreasonable for the trial court to have inferred, before the judgment of acquittal on the robbery count, that the car was stolen for the express purpose of providing a means of flight after the robbery and that the two incidents were therefore part of a common scheme. Upon review of the transcript, we find little chance of confusion of the evidence by the jury. The charges were distinct. Factually, both incidents were relatively simple; they were separated chronologically and spatially. There was no overlap in the testimony: one witness, Logue, testified exclusively in regard to the auto theft; four witnesses, Schnuck’s employees, testified exclusively in regard to the robbery. We find no prejudice to defendant and accordingly rule the point against him.

Defendant next contends that the court erred in failing to grant his motion for a mistrial after the court asked one of the state’s witnesses a question which, defendant argues, evinced the court’s lack of impartiality and constituted an improper comment on defendant’s guilt. In cross-examination of Schnuck’s employee Rita Le-ber, defense counsel attempted (as he did with all the store employees who testified) to establish that there were differences between the weight and hair color of the robber on June 25,1976, and that of defendant as he looked in a lineup picture taken several months thereafter. During that cross-examination the following exchange occurred:

“Q [Defendant’s attorney] You also said the man you saw on June 25th was heavier or lighter?
A [Witness Leber] He looked heavier. He looked a little heavier.
Q Which one? I’m sorry. This man looked heavier?
A The man on the far right.
THE COURT: Does he look heavier in the picture or heavier on June 25th? A He looked heavier in the lineup than he did on the day of the robbery.”

Counsel thereafter approached the bench and requested a mistrial on the grounds that the court’s question had equated defendant and the robber.

Error, if any, resulting from the court’s inquiry was harmless because the question was directed only to the issue of the identity of the robber and defendant was acquitted of the robbery charge. See State v. Turner, 272 S.W.2d 266, 271 [12] (Mo.1954). The jury chose not to believe the state’s identification testimony on the sole charge on which Ms. Leber testified. We can perceive no logical basis whatever for defendant’s argument that the error was cumulative, affecting the jury’s deliberation on the separate and distinct charge of stealing.

Defendant further contends that the trial court erred in failing to grant a mistrial when the prosecutor asked one of defendant’s witnesses, Mrs. Juanita Williams, whether she had previously testified on defendant’s behalf. Defendant argues that the state was thereby permitted to introduce, indirectly, inadmissible evidence of defendant’s commission of other crimes. See, e. g., State v. Lee, 486 S.W.2d 412, 414 (Mo.1972).

We rule the point against defendant for two reasons. Defendant’s objection, coming as it did after the witness had answered the question, was not timely. State v. Peterson, 546 S.W.2d 175, 179 (Mo.App.1976); State v. Tibbs, 523 S.W.2d 108, 110 (Mo.App.1974); State v. Phillips, 480 S.W.2d 836, 837 (Mo.1972). An exception to the above principle occurs when a party is not given the opportunity to voice an objection because of a quick response by the witness; however, that party must make an objection at the earliest opportunity and move to strike the answer in order to preserve the trial court’s ruling for appeal. State v. Peterson, supra, 179-180. Defendant did not contend at trial and does not now contend that that exception applies to this case; nor did he move at trial to strike Mrs. Williams’ reply. The point is therefore not preserved.

Furthermore, every error which occurs in the course of a trial does not require the grant of a mistrial. The declaration of a mistrial is a drastic remedy which is to be used only in extraordinary circumstances. State v. Phelps, 478 S.W.2d 304, 307-308 (Mo.1972); State v. Smith, 431 S.W.2d 74, 82-83 (Mo.1968). In this case, the prosecutor’s question of Mrs. Williams gave no indication that the previous testimony had come in the course of a criminal trial rather than a civil suit or in a preliminary hearing in the instant case. The disputed question was the last of a series designed to explore the possible bias or interest of the witness on behalf of defendant. This is a permissible field of inquiry for the state, as it bears on the weight to be accorded the testimony of defendant’s witnesses. State v. Calmese, 541 S.W.2d 349, 351 (Mo.App.1976); State v. Williams, 513 S.W.2d 718, 721 (Mo.App.1974). The extent of that inquiry is largely left to the discretion of the trial court and its ruling is to be overturned only in the case of a clear abuse of that discretion. State v. Neal, 526 S.W.2d 898, 901 (Mo.App.1975). Our reading of the transcript leads us to conclude that the jury could have perceived the question as nothing more than part of the investigation into Mrs. Williams’ bias as a witness. The trial court had the opportunity to assess the impact of the question. We find no clear abuse in its ruling.

Defendant next alleges error in the court's denial of his motion for a judgment of acquittal on the stealing charge based on the state’s failure to prove ownership of the automobile, an essential element of the crime. Sections 560.156, RSMo 1969, and 560.161, RSMo 1975. The argument is without merit.

“Lawful custody and control of property, even though actually owned in the formal or strict sense by another, is in the eyes of the law a sufficient attribute of ownership to support an averment and proof of ownership against one charged with stealing property belonging to another.” State v. Hill, 528 S.W.2d 798, 801 (Mo.App.1975).

The instruction given on this count, MAI— CR 7.70, predicated defendant’s guilt on the stealing of a 1976 Toyota which was “in the charge of Pat Logue.” Ownership, or lawful custody, like every other element of the offense of stealing, may be proved by circumstantial evidence. City of Kansas City v. Stoner, 424 S.W.2d 768, 771 (Mo.App.1968). See also State v. Cline, 452 S.W.2d 190, 193 (Mo.1970) and State v. Webb, 423 S.W.2d 795, 798 [4, 5] (Mo.1968). In this case, Logue testified that he was an employee of Placke Toyota, a new car dealership; that when defendant expressed an interest in the automobile he, Logue, took defendant on a test drive of some fifteen minutes; and that he engaged defendant in a brief sales discussion upon their return to the lot. In conjunction with the common understanding of the mode of operation of automobile dealerships, this testimony supports the inference that Logue, as agent of the owner of the vehicle, had the lawful authority to remove the vehicle from the premises of the owner and negotiate its sale on behalf of the owner. We believe this clearly sufficient to establish that the automobile was in the “charge” of Logue during such time as Logue was engaged in the business of that owner.

In his final assignment of error, defendant contends that the court committed plain error in failing to instruct on the charge of tampering with a motor vehicle, § 560.175, RSMo 1969, as a lesser offense included within the charge of stealing. Defendant argues that such instruction (MAI-CR 7.80) was compelled by Rule 26.02(6) because “it could be argued that the Defendant was merely taking another test drive, albeit unauthorized, with the intent of eventually returning the car to Placke Toyota.”

Defendant cites no authority in support of the proposition that tampering is a lesser included offense of stealing, and we need not decide the issue in this case, for instructions on lesser included offenses must be given only if they are supported by the evidence. State v. Pride, 567 S.W.2d 426, 431 (Mo.App.1978); State v. Sturgell, 530 S.W.2d 737, 739 (Mo.App.1975); State v. Craig, 433 S.W.2d 811, 815 (Mo.1968). As noted, defendant’s only defense at trial to the stealing charge was alibi. Defendant’s post-trial hypothesized theory explaining the asportation of the auto is but speculation totally devoid of support in the record. The record indicates that defendant did not return the vehicle to Placke after a second short test drive. There is no explanation as to why he may have been prevented from doing so by intervening circumstances despite his positive intention in that regard. Cf. State v. Sturgell, supra, in which the court held that it was not error to fail to instruct on tampering even though the stolen auto was abandoned and recovered within “a few hours.” Id., 738. See also State v. Ivery, 534 S.W.2d 107 (Mo.App.1976). The point is without merit.

Affirmed.

KELLY and STEWART, JJ., concur.

      . Defendant’s trial began on November 14,1977. The quoted version of Rule 24.04 was in effect from July 1, 1971, until January 1, 1979.

      . The record does not detail exactly how, when or where the stolen auto was recovered. The only pertinent information is Logue’s statement that “They brought [the car] back to the lot . [a] few days [after it was stolen].” It is clear from the context that “they” refers to persons other than defendant.


source: Caselaw Access Project

author: DOWD, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Clifton FRANKLIN, Appellant.
    No. 40717.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 11, 1979.
    Appellant’s Pro Se Motion for Suspension or Modification of Rules Denied Dec. 7, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      John Ashcroft, Atty. Gen., Paul R. Otto, Peter T. Sadowski, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
    Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for appellant.
   DOWD, Presiding Judge.

A jury found appellant guilty of murder first degree and robbery first degree by means of a dangerous and deadly weapon §§ 559.007, R.S.Mo.Supp.1975, 560.120 and 560.135, R.S.Mo.Supp.1975. He was sentenced to life imprisonment for the murder conviction and twenty-five years on the robbery conviction. This appeal follows.

At approximately 8:00 p. m. on May 28th 1976, David Green was returning to his home at 4821 Blair in St. Louis. After entering his house Green noticed three men, one of whom was appellant, in his backyard. Green asked the men what they wanted and one replied that he was looking for his brother, Paul Brown. Green stated that he had not seen Paul Brown since earlier that afternoon. Green then walked to Arthur Johnson’s house at 4823 Blair to ask him if he knew where Paul Brown was. While Green was talking with Mr. Johnson in his doorway the three men with whom Green had spoken earlier forced their way around Green and into Johnson’s house. The appellant asked Johnson and the guests he was entertaining, if they wished to purchase some jewelry. They said that they did not. The appellant, armed with a pistol, instructed everyone to get down on the floor and give him their money. All of the victims complied except one of the guests, a Mr. Williams. The appellant shot Williams as appellant and his two accomplices made their exit out of the back door.

Shortly thereafter police officers arrived. Their investigation resulted in the discovery of Williams’ body, his wallet and checkbook, and two spent shell casings from an automatic pistol. The officers also found a green Torino automobile parked near Arthur Johnson’s house. The automobile was later found to be registered in the name of defendant’s wife, Olivia Franklin.

The appellant was arrested and returned to this jurisdiction from Terre Haute, Indiana.

Appellant’s first point on appeal is that the trial court erred by refusing to submit to the jury appellant’s requested instructions on the defense of alibi. The appellant offered his own testimony and the testimony of one of Arthur Johnson’s guests, Ms. Schmidt, as evidence of his alibi.

Appellant testified that his wife picked him up from work at approximately 4:30 p. m. and took him home where he bathed and changed clothes. His wife then drove him downtown and left him at the corner of 20th and Franklin Streets at about 6:30 p. m. In further support of his alibi appellant stated that he did not drive his wife’s car the night of May 28th, 1976 and that he did not know Fred Williams, the deceased, nor had he seen any of the witnesses against him prior to the date of trial.

Appellant also offered Ms. Schmidt’s testimony that she did not recognize the appellant in the courtroom and that she had never seen him before the date of trial.

Appellant contends that this evidence is sufficient to support an instruction to the jury on alibi. This court does not agree. While it is the rule that one is entitled as a matter of right to an instruction on alibi if requested, no instruction will be given in the absence of supportive evidence that defendant was in a place other than the place where the crime occurred during the entire time of its commission. State v. McLane, 55 S.W.2d 956, 958 (Mo.1932); Missouri Bar Committee Comments on MAI-CR 3.20, Alibi III. The evidence of alibi must be sufficient to give rise to reasonable doubt in the mind of the average juror as to defendant’s presence at the scene of the crime. State v. Howe, 343 S.W.2d 73, 75 (Mo.1961); State v. Reynolds, 517 S.W.2d 182, 184 (Mo.App.1974).

The sufficiency of the evidence warranting submission to the jury of an instruction on alibi is a question of law for the courts. State v. Frisby, 204 S.W. 3, 4 (1918). While the sufficiency of the evidence depends on the particular facts of each case, it is generally held that appellant’s testimony alone is sufficient to support an instruction on alibi. State v. Slay, 406 S.W.2d 575, 579 (Mo.1966); State v. Cox, 508 S.W.2d 716, 719-720 (Mo.App.1974).

In the case at bar, however, appellant has offered no evidence of his whereabouts during the murder and robbery which took place at the Johnson residénce the evening of May 28th, 1976. The appellant has not even offered his own testimony as to his location at the time the crime was committed. The only evidence offered was the appellant’s statement that he was on the corner of 20th and Franklin at 6:30 on the evening of the incident. The time of the shooting and robbery has been established by other testimony at approximately 10:45 p. m. This time table would have given the appellant ample time to make his appearance at Arthur Johnson’s house. The appellant has presented no evidence that he was elsewhere during this entire time period.

In each of the cases upon which the appellant relies evidence of the defendant’s whereabouts during the commission of the crime was presented. State v. Slay, 406 S.W.2d 575, 579 (Mo.1966); State v. Simon, 375 S.W.2d 102, 105 (Mo. banc 1964); State v. Taylor, 118 Mo. 153, 158-159, 24 S.W. 449—450 (1893); State v. Howell, 100 Mo. 628, 649, 651, 14 S.W. 4, 10 (1890); State v. Tolliver, 562 S.W.2d 714, 720 (Mo.App.1978); State v. Reynolds, 517 S.W.2d 182, 183 (Mo.App.1974). On the basis that the appellant in the instant case has offered no such evidence this casé is distinguished from the cases relied on. The trial court did not err in refusing to submit the appellant’s requested instructions. State v. Pettis, 522 S.W.2d 12, 18 (Mo.App.1975); State v. Robinson, 507 S.W.2d 61, 65 (Mo.App.1974). Point one is ruled against the appellant.

Appellant also contends that the trial court erred by allowing Joseph Burns, a detective, to testify that he returned the appellant to Missouri from the county jail in Terre Haute, Indiana. Appellant argues that this testimony allowed the jury to infer that he was in custody in Indiana for offenses other than the one for which he is being tried and that such inference caused prejudice in the minds of the jury sufficient to deprive him of due process and equal protection as guaranteed by the United States and Missouri Constitutions.

Appellant has not referred this court to any case which has held it to be reversible error to admit the time and place of arrest into evidence. In his brief, defendant cites State v. Degraffenreid, 477 S.W.2d 57 (Mo.1972) for the maxim that “error in the admission of evidence should not be declared harmless unless it is so without question.” While this court agrees with the quoted portion of the Degraffen-reid opinion we find it inapplicable in the case at bar. The circumstances attending arrest are admissible and may be considered by the jury on the issue of the defendant’s guilt or innocence. State v. Hands, 260 S.W.2d 14, 20 (Mo.1953); State v. Harris, 325 S.W.2d 352, 358 (Mo.App.1959). The arresting officer’s testimony that he apprehended the defendant in Terre Haute, Indiana coupled with the appellant’s own statement that he knew the police were looking for him is relevant to the issue of flight. State v. Dupree, 477 S.W.2d 129, 132 (Mo.1972). The fact of flight, as a circumstance attending arrest, is held to be proper evidence for the consideration of the jury. State v. Wilkins, 100 S.W.2d 889, 895 (Mo.1936); State v. Campbell, 533 S.W.2d 671, 675 (Mo.App.1976).

We agree with appellant that the fact that he was arrested by Missouri authorities while in another jurisdiction’s county jail is not particularly relevant to the issue of his guilt or innocence of the present offense. We find no error, however, in the admission of such testimony. The arresting officer did not refer to any crimes collateral to the one with which appellant was charged. It appears as probable that the jury could have inferred that he was in county jail for the present offense. State v. Taylor, 408 S.W.2d 8, 10-11 (Mo.1966). If the jury did infer collateral crimes such inference could have been the result of the appellant’s own testimony. Appellant testified on direct examination that he had been convicted of stealing. He admitted on cross examination that he had served sentences for stealing on at least four different occasions.

In view of these facts and circumstances we are of the opinion that no error resulted from the admission of the arresting officer’s testimony into evidence.

Judgment affirmed.

REINHARD and CRIST, JJ., concur.


author: CRIST, Judge.

text:
    Clyde W. SAMS, d/b/a Sams Auto Sales, Appellant, v. Brenda Joyce GREEN and East Missouri Action Agency, Respondents.
    No. 41078.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 18, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 16, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Thomas A. Ludwig, Jackson, for appellant.
    J. Fred Waltz, Cape Girardeau, for respondents.
   CRIST, Judge.

This appeal, raising issues concerning the res ipsa loquitur doctrine and the measure of damages claimed, is complicated by the parties’ failure to agree upon the correctness of the recorded transcript under Rule 81.12(c).

The evidence at trial was that, as defendant-respondent drove her car down a hill, the car went off the roadway, crossed the sidewalk, and caused property damage to plaintiff. Defendant maintained her brakes suddenly failed and she went off of the roadway to avoid colliding with vehicles in front of her and injuring people. The jury’s verdict indicates it believed defendant’s story.

Plaintiff’s appeal contends the trial court erred in refusing a res ipsa loquitur instruction. Plaintiff had tendered two verdict directing instructions, one based upon res ipsa loquitur and the other predicated upon defendant’s failure to control her vehicle. The court gave the non-MAI lack of control instruction. Such instruction is as follows:

“INSTRUCTION NO. 2
Your verdict must be for plaintiff if you believe:
First, defendant failed to keep her motor vehicle under control, and Second, defendant was thereby negligent, and
Third, as a direct result of such negligence, plaintiff sustained damage.
Not in MAI — Tendered by Plaintiff.”

The court refused the res ipsa loquitur instruction which is as follows:

“INSTRUCTION NO. A.
Your verdict must be for plaintiff if you believe:
First, defendant, Brenda Joyce Green, was the driver of the automobile, and
Second, the automobile left the street and ran across the sidewalk, and
Third, from the facts in evidence and the reasonable inference therefrom, you find such occurrence was the direct result of defendant’s negligence, and
Fourth, as a direct result of such negligence the plaintiff sustained damage.
MAI 31.02(1), 1977 revision modified— Tendered by Plaintiff.”

The order in which these instructions were tendered would be dispositive of the case. Plaintiff contends the res ipsa loqui-tur instruction was offered and refused before the lack of control instruction was offered. Defendant contends plaintiff chose to offer the lack of control instruction rather than the res ipsa loquitur instruction and then had the latter instruction marked as refused. Upon appeal, defendant claims plaintiff cannot predicate error based upon an instruction given at plaintiff’s request.

Unfortunately, no proceeding in which the parties offered instructions was made a part of the record of the case. The original transcript shows only:

“THE COURT: . . . Now we’ve gone over instructions while we’ve been in recess, and I have refused what has been marked Plaintiff’s Instruction A [Instruction A was the res ipsa loquitur instruction] and B [Instruction B is a damage instruction not here material], is that correct, Mr. Ludwig?
MR. LUDWIG: Yes, Your Honor.
THE COURT: Now, all other instructions and verdict forms were submitted by the Plaintiff except Instruction No. 3; is that correct, Mr. Ludwig?
MR. LUDWIG: Yes, Your Honor.
THE COURT: Mr. Waltz?
MR. WALTZ: Correct.”

Without more, the transcript would indicate that the res ipsa loquitur instruction was first refused and the lack of control instruction was then given. In the ordinary sequence of events, a trial court would refuse one verdict directing instruction before accepting another. If the court had accepted the other in the first instance, there would be no reason to refuse any other instruction. A trial court rules as the instructions are submitted.

Finding the original transcript unsatisfactory, defendant refused to approve the transcript as correct and requested correction of the transcript in the trial court under Rule 81.12(c). Rule 81.12(c) provides, in part:

“If there is any dispute concerning the correctness of any transcript, or any part thereof, or if the parties fail to agree within a reasonable time as to its correctness, the transcript shall be settled and approved by the trial court.”

Pursuant to defendant’s request, the trial court conducted further proceedings. Counsel for plaintiff and defendant and the trial judge all recited their recollections of what transpired during the off-record instruction conference. The court tended to support defendant’s contention that the court first accepted the lack of control instruction and then refused the res ipsa lo-quitur instruction. However, the trial court made no findings of fact, order, or certificate which would settle the transcript. The trial court merely ordered that the statements of remembrance made at the hearing be transcribed as a supplemental transcript.

The appellate court will not consider post-trial recollections of what transpired at trial to complete, correct, or impeach the recorded transcript. Hendershot v. Minich, 297 S.W.2d 403, 408-10 (Mo.1956) (The appellate court refused to resolve the issue whether a party had consented to sentencing outside the county upon the conflicting affidavits of counsel. The appellate court had ordered the trial court to supply the omission in the transcript; but the trial court only filed a certificate which did not resolve the conflict although tending to show appellant had consented.); accord, Rahhal v. Mossie, 577 S.W.2d 143, 145 (Mo.App.1979).

At the time of the instruction conference, the defendant did not request that the statements and discussions during the instruction conference proceedings be included in the record. Such was defendant’s obligation. State v. Hoopes, 534 S.W.2d 26, 32 (Mo.banc 1976). Upon the record available to us, plaintiff’s res ipsa loquitur instruction was refused before the lack of control instruction was given.

In their briefs, both parties agree the evidence would sustain the use of plaintiff’s res ipsa loquitur instruction as the verdict directing instruction. Thus, the only remaining question is whether or not plaintiff was prejudiced by giving of the lack of control instruction rather than the res ipsa loquitur instruction.

Defendant contends because the given and refused instructions are almost identical plaintiff was not prejudiced. However, if an applicable MAI instruction exists, it must be used to the exclusion of all others. Sands v. R. G. McKelvey Bldg. Co., 571 S.W.2d 726, 730 (Mo.App.1978). Plaintiff was entitled to a res ipsa loquitur submission. Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001 (1934).

We deem it unnecessary to reach the other issues raised by plaintiff.

Reversed and remanded for a new trial.

REINHARD, P. J., and GUNN, J., concur.


text:
    STATE of Missouri, Respondent, v. McKinley ROBINSON, Appellant.
    No. 40121.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1979.
    Motion for Rehearing or Transfer Denied Nov. 20, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Stephen J. Murphy, Affton, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Marjorie Wholey Haines, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Defendant was charged with one count of first degree murder and one count of assault with intent to kill with malice. The counts were tried together after defendant’s motion to sever was denied.

The jury convicted defendant only of assault with intent to kill with malice. The jury was unable to reach a verdict as to the murder charge. The court sentenced defendant to seventy-five years on the assault conviction. Defendant appeals. We affirm.

Defendant complains of improper joinder of the two counts under Rule 24.04. We reiterate the fact that he was only convicted on one count — assault. We agree with the court below that the two crimes charged were so closely related in time and purpose that they were part of the same transaction.

Defendant was charged with murdering Harry Shelton, Jr., on December 31, 1976, in St. Louis, Missouri. Allegedly, in his flight from this crime, defendant took Shelton’s car and drove it to another part of the city. The defendant then shot Police Officer Richard Nagel from Shelton’s car when Nagel attempted to apprehend defendant for making an improper turn. After shooting at Officer Nagel, defendant continued on in the same car. The police gave chase and finally apprehended defendant in East St. Louis, Illinois.

The net effect is. that defendant was charged with murder and with assault while in flight from the crime of murder. The offenses were based on a series of acts which were part of the same transaction under Rule 24.04. Defendant began a criminal activity and continued in that activity until he was apprehended. Broad joinder is to be encouraged where prejudice to the defendant will not result. In our case, the jury distinguished between the offenses as shown by its inability to agree on the charge of murder and thus prejudice seems unlikely. The trial court properly exercised its discretion in denying severance. State v. Johnson, 505 S.W.2d 11, 12 (Mo.App.1974); State v. Callies, 588 S.W.2d 18 (Mo.App.1979); also, see State v. Pittman, 569 S.W.2d 277, 279 (Mo.App.1978).

Defendant next complains that the trial court erred in admitting the identification testimony of Officer Nagel because Nagel was first shown photographs with defendant’s name on them when such name had been publicly reported as a suspect. We cannot agree.

Police investigators took a group of black and white photographs to Nagel the day after he was shot by the defendant. The name, weight, and height of the individuals were on the front of some of the pictures, including the defendant’s.

When the pictures were shown to Nagel, he looked at them, pulled out defendant’s picture, and said: “This is an unusual person, this is him. I’d know him anywhere.” Nagel said he did not then know the name of the defendant. He had read an article in the newspaper about the incident. The article did not have a picture of defendant. He did not remember seeing the writing on defendant’s picture. We agree with the finding of the trial court that there is no evidence that anyone suggested which picture Nagel should choose. Even if we were to assume such suggestion had been made, there was an independent basis for in-court identification. State v. Carter, 572 S.W.2d 430, 435 (Mo.banc 1978); State v. Johnigan, 494 S.W.2d 23, 24 (Mo.1973).

Appellant argues that Instruction No. 41, MAI-CR 4.50, was given by the trial court to the jury at an improper timé, and that this had the effect of coercing the jury into reaching a guilty verdict. We disagree.

The jury retired to deliberate at 3:00 p. m. At 7:25 p. m., a conference occurred in chambers at which time the court told counsel that the jury had sent a message with the following question:

“If the decision is not unanimous at this point, what will happen with the jury and defendant? How long are we permitted to deliberate?”

The court then gave the following instruction:

“If the decision is not unanimous at this point, as to a particular Count, you should fix his punishment as to that Count. If, however, after due deliberation, you find the defendant guilty as to a particular Count but are unable to agree upon his punishment as to that Count, you will complete the verdict form so stating, and in that event the court will fix the punishment.
If you unanimously find the defendant guilty or not guilty as to one Count submitted against him, but, after due deliberation, are unable to agree upon whether he is guilty or not guilty as to the other Count submitted against him, you will complete the applicable form to which you unanimously agree and return it to this court, along with all unused forms and the written instructions of the court.
You must bear in mind that under the law it is the primary duty and responsibility of the jury to determine whether the defendant is guilty or not guilty as to each Count submitted against the defendant, and if he is guilty as to any Count submitted against him, to fix the punishment as to that Count.”

In addition to the instruction, the court also gave the following message to the jury:

“You now have three verdict forms on each Count. You should complete only one of the verdict forms as to any one Count. Food has been ordered for you and should arrive soon.”

We find no abuse of discretion on the part of the trial court. The question of the jury addressed to the court implied that a decision had not been reached. After the instruction was given, the jury deliberated again for.more than an hour and half before rendering a verdict. State v. Brown, 443 S.W.2d 805, 809-811 (Mo.banc 1969); State v. Jones, 545 S.W.2d 659, 666 (Mo.App.1976).

Defendant next complains about the imposition of his seventy-five year sentence. He contends a sentence of seventy-five years is in excess of a life sentence since it exceeds his life expectancy and denies his right to parole consideration. Defendant candidly admits the law is contrary to his position, citing State v. Kennedy, 513 S.W.2d 697, 700 (Mo.App.1974). We rule this point against defendant.

Finally, defendant challenges the sufficiency of the evidence in that defendant was not identified as the perpetrator by competent evidence. This point is based primarily upon the alleged inadequacy of identification by Officer Nagel. We have already ruled the suppression of identification testimony against defendant, and must do so again.

With reference to the assault, there is little question about the sufficiency of the evidence. Officer Nagel testified as to the events preceding the assault, and his observation of defendant as the person who shot him.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: SNYDER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lindell BLACK, Defendant-Appellant.
    No. 40815.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1979.
    Motion for Rehearing or Transfer Denied Nov. 20, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      C. Clifford Schwartz, Jr., Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.
    Thomas L. Ray, Jr., Asst. Pros. Atty., Gary E. Stevenson, Pros. Atty., Farming-ton, for plaintiff-respondent.
   SNYDER, Judge.

Lindell Black appeals his conviction of common assault, a misdemeanor, for which he was fined $100 and sentenced to six months of imprisonment under Section 559.-220, RSMo 1969. He alleges that the trial court erred in: (1) sentencing him to the maximum fine and term of imprisonment allowed under Section 559.220 on the basis of a presentence investigation report, the contents of which he was not given an opportunity to review; (2) overruling his objection and request for a mistrial when the prosecuting attorney asked the jury on voir dire if they understood their responsibility “to determine the Defendant’s guilt and to return to the courtroom with your verdict”; and, (3) sustaining the state’s objection to defense counsel’s statement on voir dire that defendant was presumptively innocent.

The record discloses no error. The judgment is affirmed.

Defendant first contends that the trial court erred in using a Board of Probation and Parole Report in determining the sentence to be given him, because he did not have an opportunity to see it and determine its accuracy. The matter is not preserved for review, however, because defendant did not specifically request an opportunity to examine the report.

Defendant’s second point relied on is the refusal of the court to sustain his objection to the state’s question to the jury asking, “Do all of you understand that if you are chosen to be a juror in this criminal case today, it will be your responsibility to determine the Defendant’s guilt and to return to this courtroom with your verdict?” and his request for a mistrial. He claims that this was an improper statement of the law, a one-sided statement, and that it required the jurors to commit themselves to an unconstitutional position.

Defense counsel did make a record on his objection, but did not move for a mistrial. The mistrial issue is not preserved for review. State v. Hale, 371 S.W.2d 249 (Mo.1963); State v. Brown, 528 S.W.2d 503 (Mo.App.1975).

The law in regard to statements of counsel on voir dire is that:

A Trial Judge is vested with broad discretion in controlling voir dire, and his conduct and rulings will not be disturbed unless a clear, manifest and prejudicial abuse of that discretion appears. . Further, a real probability of injury to the complaining party must appear [citing cases].

State v. Francis, 544 S.W.2d 306, 312 (Mo.App.1976). There was no abuse of discretion. The word “determine” means, among other things, “b: to settle a question or controversy about: to decide by judicial sentence . . . c: to come to a decision concerning as the result of investigation or reasoning . . . Webster’s Third New International Unabridged Dictionary. The jury was to make a decision or determination as to defendant’s guilt. Moreover, defendant was able to present the presumption of innocence on voir dire and the presumption was read at the outset and given to the jury in Instruction No. 4. State v. Coleman, 441 S.W.2d 46, 51 (Mo.1969). It is unlikely that the jurors were misled by the prosecutor’s question so as to infer that defendant was not presumed innocent. Defendant has not shown that the statement was prejudicial to him.

Finally, defendant argues that the court erred in sustaining an objection to defense counsel’s statements to the jury on voir dire that defendant was presumed to be innocent. This point has not been preserved for appellate review because it was not included in defendant’s motion for a new trial.

There was no error, however. The trial court sustained the state’s objection to defendant’s repeated affirmative statements to the jury concerning presumption of innocence. No objection was made to defendant’s questions. The instruction on presumption of innocence was read to the jury, and given to them to take to the jury room. No prejudice arose from the refusal to permit defendant to emphasize the presumption by his repeated statements to the jury which were improper and cumulative. The court properly sustained the prosecution’s objection.

The judgment is affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.


author: REINHARD, Presiding Judge.

text:
    Lester COFFMAN, Appellant, v. Paul FAULKNER, Respondent.
    No. 40574.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 9, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 16, 1979.
    Application to Transfer Denied Jan. 15,1980.

      James J. Knappenberger, Robert Meyers, Shaw, Howlett & Schwartz, Clayton, for appellant.
    Jack C. Stewart, Dennis H. Tesreau, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, for respondent.
   REINHARD, Presiding Judge.

Plaintiff brought a suit in replevin seeking recovery of a 955 H Caterpillar Dozer. In his petition plaintiff alleged that he was both the owner and entitled to immediate possession of a 955 H Caterpillar Dozer, Serial No. 60A10328, that defendant took said property from his possession by seizing it from his residence, and that at the time of the filing of the petition the defendant still detained the property.

Defendant filed an answer and counterclaim for conversion. His answer generally denied plaintiff’s allegations. In his counterclaim defendant alleged that he was the owner of a Caterpillar Model No. 955 H Crawler-Loader, Serial No. 60A10328, that the same was stolen from him, and that at the time plaintiff came into possession thereof he knew or upon reasonable inquiry should have known that it was stolen. Defendant alleged that he was damaged in the amount of fifteen thousand dollars.

Plaintiff testified that he purchased the Caterpillar Tractor Model 955 H, Serial No. 60A10328. Plaintiff initially saw the dozer parked alongside several other pieces of machinery on a lot near Martin Luther King Drive in St. Louis. He purchased it from Joseph Paul and William James. Plaintiff did not know the two men, received no bill of sale, and had been unable to find the two men since the purchase. He offered in evidence a cashier’s check in the amount of $5,000 payable to Joseph Paul and William James on which serial number 60A10328 appeared.

Defendant testified he purchased a tractor from Missouri-Illinois Tractor Equipment Company in January, 1972. The serial number was 60A10328. Defendant documented the sale to him of a used Caterpillar Model No. 955 H Crawler-Loader, serial number 60A10328, by introducing, among other exhibits, a retail installment contract and security agreement. Defendant testified that this tractor was stolen from him on November 5, 1973. He next saw it on October 11, 1976. At that time, in addition to the serial number, he was able to identify the tractor as his because of several distinguishing characteristics.

At the end of the evidence, the court sustained defendant’s motion for a directed verdict on plaintiff’s petition. The jury returned a verdict in favor of the defendant on his counterclaim as follows: $2,688 for property damage and $10,000 for loss of use. Plaintiff appeals.

Plaintiff first contends that the trial court erred in directing a verdict in his cause of action. A trial court should direct a verdict only where “reasonable men in an honest and impartial exercise of their duty could not differ on a correct disposition of the case.” Stogsdill v. General American Life Ins. Co., 541 S.W.2d 696, 698 (Mo.App.1976). In reviewing whether the trial court erred in sustaining defendant’s motion for directed verdict, we must look at the evidence in the light most favorable to the plaintiff’s theory of the case and disregard the defendant’s evidence except insofar as it aids the plaintiff’s case. Kreutz v. Wolff, 560 S.W.2d 271, 276 (Mo.App.1977).

We have carefully reviewed the testimony and exhibits. We find the court could have reached no other conclusion than that the defendant had the right to possess and was the owner of tractor number 60A10328. Furthermore, it is clear that the tractor plaintiff is attempting to replevin and the one owned by defendant are one and the same, number 60A10328.

On appeal, plaintiff points to three specific instances in the evidence which he says creates a question of fact as to whether the tractor in possession of the plaintiff was the same tractor which was stolen from the defendant. He cites the testimony of George Neff, his witness, regarding a receipt for tractor parts purchased by plaintiff which listed serial number 60A10728 on the receipt. At best, this indicates the tractor in possession of plaintiff was not the one with serial number 60A10328. However, this is contrary to plaintiff’s pleading and testimony and therefore creates no issue of fact. The same is true of the defendant’s testimony that the seized tractor’s serial number looked like it had been altered.

Finally, plaintiff looks to the testimony of Robert Arendes, Vice President of Missouri-Illinois Tractor Equipment Company. Plaintiff claims Arendes testified that “he could barely make out the serial number” of the caterpillar which his company sold to defendant. We find no such testimony in the record; in fact, Arendes testified that the bill of lading, the retail sales contract, and the security agreement involved in the sale all listed the serial number as 60A10328. Plaintiff’s argument that a jury question existed because of these three alleged inconsistencies is without merit.

As a second point or error, plaintiff contends the court committed prejudicial error when it allowed into evidence defendant’s testimony concerning an offer of settlement made by plaintiff. Defendant testified over objection by plaintiff that plaintiff telephoned him after he recovered the tractor. “He just asked me you know, if maybe we could come to some settlement or something like when could he get the tractor back. ... [I] told him no I didn’t want to sell the tractor, so he just told me he would see me in court.”

Plaintiff contends the testimony was an offer of compromise and not an admission against interest. Offers of compromise are to be encouraged in the furtherance of peaceful settlements of cases and therefore are generally inadmissible. Jacobs v. Danciger, 344 Mo. 1042, 130 S.W.2d 588, 592 (1939). We agree with plaintiff that this statement was an offer of compromise and should have been excluded. However, we are not required to reverse a judgment unless the error committed materially affected the merits of the action. Aiple v. South Side National Bank, 442 S.W.2d 145, 153 (Mo.App.1969); Rule 83.-13(b). In view of the direction of the verdict and the elimination of a determination by the jury as to ownership, we find no prejudice in the admission of the testimony.

As his last point, plaintiff contends the trial court erred in giving defendant’s conversion verdict directing instruction on defendant’s counterclaim for the following reasons: 1) that “it did not instruct the jury as to the issue of ownership of the tractor or as to the question of the right of possession” and 2) that it erroneously instructed that the plaintiff must inquire as to whether or not the tractor was stolen.

Reason, one above is without merit. By directing the verdict on plaintiff’s petition, the court determined that there was no issue of fact to be determined as to possession and ownership of the tractor. In defendant’s argument to the jury, counsel fully explained that this issue had been determined by the court. Plaintiff did not object. Because the question of ownership and possession of the tractor was no longer in dispute, the jury did not have to decide this issue before finding for the defendant.

Likewise, plaintiff’s second reason does not provide a basis for reversal. The' third element of defendant’s conversion verdict directing instruction required the jury to believe: “that at the time plaintiff accepted possession of said Caterpillar he knew or upon reasonable inquiry should have known that said property was stolen.” Generally, the question of good faith and the elements of motive, knowledge or ignorance, or care or negligence are not involved in actions of conversion. Commercial Credit Corp. v. Joplin Automobile Auction Co., 430 S.W.2d 440, 444 (Mo.App.1968). Therefore, while it was improper to instruct that plaintiff had the duty to inquire into the ownership of the property in question, such error was in plaintiff’s favor because the instruction required defendant to prove an element not required by law. Plaintiff cannot complain that such an error is prejudicial to him.

Any person who purchases the personal property of another from one other than the owner or someone authorized to sell the same is liable in trover for conversion of property in a suit by the true owner. Allen v. Bagley, 234 Mo.App. 891, 133 S.W.2d 1027, 1029 (1939). Even a bona fide purchaser of stolen property is liable to the true owner for conversion. Wirt v. Schuman, 67 Mo.App. 163, 170 (1896).

Judgment affirmed.

GUNN and CRIST, JJ., concur.

      . The parties referred to the chattel interchangeably as a tractor, dozer and crawler-loader. However, there was apparently no dispute that all of these various designations referred to the property which plaintiff sought to replevy.

      . Plaintiff concedes in his brief on appeal that defendant’s tractor was stolen.


text:
    Rozalia GARNER, Petitioner-Respondent, v. MISSOURI DIVISION OF FAMILY SERVICES, Defendant-Appellant.
    No. 40877.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 9, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 16, 1979.
    Application to Transfer Denied Jan. 15, 1980.
    Paul T. Keller, Jefferson City, for defendant-appellant.

      Brooke A. Berger, Legal Services of Eastern Mo., St. Louis, for petitioner-respondent.
   CRIST, Judge.

This case involves an appeal from an administrative proceeding wherein the Director of Missouri’s Division of Family Services found applicant/respondent ineligible for supplementary nursing care benefits. Specifically, the Director declared applicant ineligible because she held equity in realty (jointly with her husband) of an amount in excess of $10,500.00, the maximum allowable amount as established by .§ 208.010-2(4), RSMo.1975 Supp. The Circuit Court of St. Louis County reversed the Director and he appeals. We affirm the judgment of the circuit court.

The facts are not in dispute. Applicant is a nursing home resident, because of her poor physical condition, whose only substantial asset is her interest in the jointly owned family home. She is physically separated from her husband who lives in this family home. Their physical separation is exclusively due to applicant’s infirmities, and her husband has neither deserted nor abandoned his wife.

Director’s determination of applicant’s eligibility for supplementary nursing care benefits necessarily involved a construction of § 208.010-2(4), RSMo.1975 Supp., which provides:

“2. Benefits shall not be payable to any claimant who:
(4) Owns or possesses property of any kind or character, or has an interest in property, of which he is the record or beneficial owner, the value of such property, as determined by the division of family services, less encumbrances of record, exceeds ten thousand five hundred dollars, or if married and actually living- with husband or wife, if the value of his or her property, or the value of his or her interest in property, together with that of such husband and wife, exceeds said amount; provided, however, that in the case of an aid to dependent children claimant this limitation shall apply only to property owned by parent and child or children in the home and not to other relatives with whom the child may reside.” (Emphasis added.)

Director concluded § 208.010-2(4), RSMo. 1975 Supp., demanded that husband’s resources, as well as applicant’s, be considered. Applicant admits that the value of the jointly held home was $13,000.00. Assistance was thereby denied.

In construing the above quoted statute, Director adopted the following interpretation:

“When there has been estrangement, desertion or abandonment and the husband and wife are living apart for reasons other than health, each person may own property up to the maximum of $10,-500.00. [Division of Family Service Manual, Chapter XI, § VI, p. 1]”

In light of the foregoing, the issue hinges on Director’s interpretation of the phrase “actually living with.”

Under § 208.100-5, RSMo.1969, review is limited to whether or not a fair hearing has been granted and whether Director’s decision is supported by competent and substantial evidence on the whole record. See Hill v. State Dept. of Public Health & Welfare, 503 S.W.2d 6, 11 (Mo. banc 1973). Director’s decision is so supported if he could reasonably have reached the challenged decision. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo.App.1975). And, Director’s interpretation or construction of the statute in question is entitled to great weight. Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193 (Mo.banc 1972). Administrative rules and regulations should be sustained, if reasonable.

However, Director’s narrow construction of the statute at issue was such that applicant did not receive a fair hearing. Section 208.010-2(4), RSMo.1975 Supp., allows Director to consider the full value of jointly held property only if an applicant is married and “actually living with” her spouse. By using the term “actually” the statute clearly is concerned about the physical and not merely the legal separation of married couples.

To the extent that Director’s regulations require a discontinuance of the marital relationship before property will be separately evaluated, such regulations are overly restrictive and unauthorized by statute. For the reason that applicant is a full time resident in a nursing home and does not “actually live with” her husband, Director erred by using the full value of jointly held property when he made his determination of ineligibility.

Judgment of the circuit court affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: ROBERT LEE CAMPBELL, Special Judge.

text:
    In the Matter of Driver’s License of George Robert PURVIS, Petitioner-Appellant.
    No. 10869.
    Missouri Court of Appeals, Southern District.
    Oct. 9, 1979.
    Motion for Rehearing or to Transfer Denied Dec. 6, 1979.
    Application to Transfer Denied Jan. 15, 1980.
    Ivella McWhorter Elsey, Springfield, for petitioner-appellant.
    John Ashcroft, Atty. Gen., Richard Wieler, Paul R. Otto, Asst. Attys. Gen., Jefferson City, for respondent.
   ROBERT LEE CAMPBELL, Special Judge.

Appellant’s driver’s license was revoked by the Director of Revenue for a period of one year for refusal of appellant to submit to a breathalyzer test following his arrest for driving while intoxicated. The trial court affirmed the revocation, holding that the officer had reasonable grounds to believe that appellant operated a motor vehicle while in an intoxicated condition and that appellant refused to submit to the test. We likewise affirm.

On May 6, 1977, appellant’s automobile collided with the rear of another vehicle on South Campbell Street in Springfield, Missouri. Appellant’s walk was not steady; he was leaning on one of the vehicles involved in the accident; his eyes were red and watery; he had an odor of intoxicants; his speech was peculiar or unusual, and he would repeat himself.

From a mobile phone in his automobile, appellant telephoned his attorney. An attorney from the firm was sent to the scene of the accident, and while there, left the scene of the accident with appellant to go to a restroom at a service station. At the police station appellant was permitted to have further discussion with his attorney in a conference room. The attorney’s request to confer with appellant in the conference room with the door closed was refused. Appellant refused to take the breathalyzer test unless he could confer with his attorney in the conference room with the door closed.

Appellant contends that the evidence failed to establish that appellant refused to submit to the breathalyzer test since his failure to submit to the test was equivocal and the result of unreasonable conduct of the police officers, that no valid and proper request was made of him to submit to the test, and that the evidence failed to establish that the arresting officer had reasonable grounds to believe that appellant was driving a motor vehicle while in an intoxicated condition.

The smell of alcohol on appellant’s breath, his unsteady walk, his unusual or peculiar speech, the fact that his eyes were red and watery, and the fact that he had rear-ended another vehicle established reasonable grounds for the arresting officer to believe that appellant was driving a motor -vehicle while in an intoxicated condition. Gooch v. Spradling, 523 S.W.2d 861 (Mo.App.1975).

In Spradling v. Deimeke, 528 S.W.2d 759 (Mo.1975), the supreme court held that an arrested person does not have a right to have an attorney present prior to taking a breathalyzer test. The court did hold that the arrested person has the “right to consult with counsel or others in his behalf, and the arresting authorities do not have the right to prevent him from doing so." Appellant contends that he did not unequivocally refuse to submit to the breathalyzer test, that he only refused to submit to the test until after he had an opportunity for consultation with his attorney in the conference room with the door closed. He contends that the refusal of the officers to permit such conference was improper.

Appellant is correct in his assertion that there must be an unequivocal refusal to take the test. Dain v. Spradling, 534 S.W.2d 813 (Mo.App.1976). Appellant had ample opportunity to confer with his attorney by telephone, on the trip to the restroom, and at the police station. His refusal to take the test in these circumstances constituted an unequivocal refusal under the law. Section 564.444 RSMo 1969. We also note that the testing officer testified that appellant unequivocally refused to take the test.

Appellant also argues that we should re-examine In re Green, 511 S.W.2d 129 (Mo.App.1974) and hold that no proper request was made of appellant to take the test. A proper request was made. The trial judge was correct.

We find no error. The judgment is affirmed.

FLANIGAN, C. J., TITUS, J., and BARKER and HENRY, Special Judges, concur.


author: PREWITT, Judge.

text:
    Gayle Stauffer McALLISTER and Gretchen Stauffer Torres, Executrices of the Estate of Helen M. Stauffer, Deceased, Respondents, v. Loyat GARRETT and Julian Garrett, Defendants-Appellants.
    No. 10833.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 15, 1979.
    Motion for Rehearing or for Transfer Denied Nov. 21, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      William Fleischaker, Roberts & Fleisc-haker, Joplin, for respondents.
    Loyat Garrett and Julian Garrett, pro se.
   PREWITT, Judge.

Appellants appeal from an order of the Circuit Court of Jasper County overruling their motion to set aside a sheriff’s sale. Helen M. Stauffer, plaintiff below, brought suit for judicial foreclosure because of default on a note whose payment was secured by a deed of trust. The deed of trust was dated May 29,1961 and executed by Arnold B. Carrier and Frances Carrier, then owners of the property. The Carriers sold the property to others who sold it to appellant Loyat Garrett. Mrs. Garrett did not assume the note and deed of trust but made payments to Helen M. Stauffer. The Carriers and appellants were named as defendants. On March 17,1977, the court entered a judgment finding that plaintiff was entitled to receive $68,475 on the note, and providing for the foreclosure of the real estate described in the deed of trust. A personal judgment was entered against the Carriers but not against appellants.

On May 27, 1977, plaintiff requested an execution, with instructions to the sheriff to “execute by foreclosure”, against the real estate described in the judgment. That day a general execution was issued on the judgment against the Carriers and appellants. The execution was served on appellants on June 3, 1977. The sheriff thereafter levied on the property described in the judgment. On September 1,1977, an additional request for execution was filed with the circuit clerk with instructions to the sheriff to execute “by a levy and sale” of the real estate. A general execution issued on that day against Arnold B. Carrier and Frances Carrier. Notice of sale was served upon appellants on September 15, 1977, and the property was sold by the sheriff on October 7, 1977 for $175,000. On October 11, 1977, appellants filed their motion to set aside the sale. The motion was overruled on October 31, 1977; and the court ordered the sale approved, the deed executed, and the proceeds distributed. The transcript does not reflect testimony being offered or heard on appellants’ motion. Following Helen M. Stauffer’s death, respondents were substituted as parties in this appeal.

Appellants’ brief contains five points of alleged error. Three of these purport to be defenses to the original petition or claimed deficiencies in the judgment. Point III claims that the judgment is void, as the petition did not claim or the evidence show that the Carriers were liable on the note. Point IV claims that the statute of limitations ran on the note and barred the judgment. Point V states that the judgment is void “by the operation of the doctrines of waiver, election of remedies and quasi es-toppel”. Points I and II claim that the execution and the sheriff’s deed did not accurately describe the judgment, and an improper writ of execution was issued.

We first consider if appellants can now raise the contentions set forth in Points III, IV and V.

Following the judgment of March 17,1977, the appellants appealed, the appeal was not perfected, and was dismissed by this court. The judgment is now final. Appellants contend that the judgment was void for the grounds stated in those three points. Their motion to set aside the sale constitutes a collateral attack on the judgment. La Presto v. La Presto, 285 S.W.2d 568, 569 (Mo.1955). Generally, a collateral attack may not be made upon a judgment where the absence of jurisdiction does not appear upon the record. The validity of the judgment usually must be determined by the record, and no other or further evidence on the subject is admissible. Smith v. Benson, 542 S.W.2d 571, 576 (Mo.App.1976); 46 Am.Jur.2d, Judgments, § 663, p. 819. A void judgment is one which should not have been rendered because the court lacked jurisdiction over the parties, the subject matter, or the remedy ordered. State ex rel. Manchester Bank v. Enright, 584 S.W.2d 416, 419 (Mo.App.1979). The circuit court had jurisdiction over the parties here. Appellants, as well as the Carriers, appeared, filed pleadings, and contested the matter before and after judgment. Jurisdiction over the subject matter and the remedy of judicial foreclosure is provided to the circuit courts in § 443.190 through § 443.280, RSMo 1969. The court had jurisdiction of the parties, the subject matter, and the remedy. The judgment of March 17, 1977 was not void.

Appellants are asking us to rule on defenses that could have been, and apparently were, raised before the trial court, prior to their first appeal, and ruled against them. These defenses could have been raised on that appeal had it been perfected. As the judgment is now final, the trial court's determination is conclusive as to all issues which were or could have been litigated and these defenses cannot be used to attack the judgment collaterally. Civic Plaza National Bank of Kansas City v. University Nursing Home, Inc., 504 S.W.2d 193, 199-200 (Mo.App.1973); 49 C.J.S. Judgments § 435, p. 862. In Butler v. Manley, 416 S.W.2d 680 (Mo.App.1967), the court held that a finding of default iñ a deed of trust may not be relitigated after being finally determined in a prior action. Venegoni v. Giudicy, 238 S.W.2d 17, 19 (Mo.App.1951) held that the statute of limitations cannot be raised in a proceeding to set aside and vacate a judgment.

Appellants are attempting to use their motion as a substitute for the" appeal that they did not perfect. Such a motion cannot be substituted for an appeal. La Presto v. La Presto, supra, 285 S.W.2d at 571. Nor can the motion lie to collaterally attack alleged errors or defects prior to judgment. State ex rel. Jones v. Reagan, 382 S.W.2d 426, 430 (Mo.App.1964). Points III, IV and V are ruled against appellants.

Appellants’ Points I and II go to the form of the execution and errors in recitals on it. A general execution was issued. Appellants are correct that a special execution was called for by statute. § 443.270, RSMo 1969. A special execution directs a levy upon specific property, while a general execution demands a levy on the debtor’s property generally. W. H. Powell Lumber Company, Inc. v. Federal Land Bank Association of Mountain Grove-Rolla, 561 S.W.2d 700, 703 (Mo.App.1978). The issuance of a general execution was improper. However, that does not justify a reversal of the trial court’s ruling, unless we find that this error materially affected the merits. Rule 84.-13(b), V.A.M.R. We cannot make this determination on conjecture. Farrar v. Moore, 416 S.W.2d 711, 715 (Mo.App.1967).

Before we can reverse, it must be determined if the issuance of a general execution prejudiced appellants. There is nothing before us to show that the result would have been different had there been a special execution. The property would have been sold, which is what occurred. Respondents’ predecessor was entitled to have the property sold. The result would have been the same, whatever the form of execution. There was no showing that the form of execution injured appellants. Except for directing a levy on, and limiting it to, specific property, the special execution is the same as the general execution. It is to be “executed and returned as executions in ordinary civil suits”. § 443.270, RSMo 1969. In appellants’ motion, and in their points of alleged error, they do not contend that the price was inadequate or the sale otherwise conducted improperly. They could have raised their points that the execution was improper before the sale by a motion to quash the execution. Rule 76.60, V.A.M.R.; W. H. Powell Lumber Company, Inc. v. Federal Land Bank Association of Mountain Grove-Rolla, supra, 561 S.W.2d at 702.

A motion to set aside an execution sale is addressed to the sound discretion of the court issuing the process. City of St. Louis v. Peck, 319 S.W.2d 678, 682 (Mo.App.1959). We should not reverse the trial court and order the sale set aside unless prejudice is shown. None is shown because of the alleged defects in the execution. The result would have been the same. This execution sold the property, and the sale was provided for in the judgment. An execution is valid where it substantially pursues the judgment. State ex rel. Jones v. Reagan, supra, 382 S.W.2d at 430. As no prejudice is shown due to the defects in the execution, we do not believe the trial court can be said to have abused its discretion in overruling appellants’ motion. The sale was held approximately two years ago; and no purpose appears for now ordering a new sale, where the record before us does not show prejudice by the defects charged. Points I and II are ruled against appellants.

There are three motions which have been filed and taken with the case. Appellants’ motion for supplementing and amplifying the record is denied. It pertains only to matters that, if relevant, would only be relevant in the case prior to the judgment of foreclosure. As the judgment is final, that motion related to no issues before us. Respondents’ motion for damages for frivolous appeal is denied. There was an arguable question regarding the form of execution. The motion to set aside the order substituting respondents for Helen Stauf-fer, deceased, and to dismiss the action, is denied. The executrices were proper parties to the suit. § 443.250, RSMo 1969.

The order of the circuit court, overruling appellants’ motion to set aside the sheriff’s sale, is affirmed.

All concur.


author: KELLY, Judge.

text:
    William J. RAWLINGS and Janie Rawlings, Plaintiffs-Respondents-Appellants, v. Ben YOUNG and Hunt Concrete Company, Inc., Defendants-Appellants-Respondents.
    Nos. 39671, 39674.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 16, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 16, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Hendren & Andrae, Richard S. Brownlee, III, Jefferson City, for plaintiffs-respondents-appellants.
    Edwards, Seigfreid, Runge & Leonatti, P/C, Jerome W. Seigfreid, Mexico, for defendants-appellants-respondents.
   KELLY, Judge.

These two appeals from a judgment of the Circuit Court of Audrain County have their common origin in a suit for damages wherein .William J. Rawlings and Janie Rawlings, his wife, were the plaintiffs and Ben Young and Hunt Concrete Company, Inc., were the defendants.

In No. 39671 the appellants are Ben Young and Hunt Concrete Company, Inc., and they have appealed from the judgment of the trial court entered upon a jury verdict in favor of the Rawlings on both Counts of their petition. Mrs. Rawlings, alone, has appealed from the action of the trial court in granting a new trial as to her claim for loss of consortium because she did not agree to a remittitur ordered by the trial court of $9,500.00 of the $10,000 jury verdict rendered in her behalf.

For purposes of clarity we shall refer to the parties as plaintiffs and defendant or defendants, the status they occupied in the trial court.

Because the trial court sustained the plaintiffs’ motion for directed verdict at the close of the defendants’ opening statement on the issue of liability we glean the facts of that phase of the case from the opening statements of the parties. After plaintiffs’ motion was sustained the only evidence adduced at trial was with respect to the injuries and damages sustained by the plaintiffs.

On July 8, 1974, the Rawlings owned a 1971 Pontiac motor vehicle. Mr. Rawlings was driving the vehicle, which was stopped at the intersection of Monroe and Western Avenues in Mexico, Missouri, in a line of traffic waiting to cross the intersection in an eastbound direction. He was about the fourth car in line west of the intersection. At the same time Ben Young, who was employed by the Hunt Concrete Company, Inc. as a truck driver, was operating a 1966 International Harvester concrete mixer truck eastbound on Monroe Street down a slight grade; as he approached the Rawl-ings’ automobile he applied his brakes but they failed, and he ran into the back end of the Rawlings’ automobile, demolishing it. A chain reaction of collisions took place with respect to the automobiles in front of the Rawlings’ auto, after Mr. Rawlings’ car was pushed into the car ahead of his. Mr. Rawlings was injured and was removed from the scene to a hospital. Counsel for the Rawlings told the jury that the law requires a vehicle to have two sets of adequate brakes in good working order and that the truck had only one set of brakes, had no emergency brake, and also no horn as the law requires.

Counsel for the defendants, in his opening statement, advised the jury that their evidence would be that the truck had about 90,000 miles on it at the time of this occurrence. It had two big front wheels and eight large rear wheels. It was equipped with a vacuum assisted hydraulic brake system which activated all ten of those wheels and was worked by brake fluid pressure. All ten wheels were activated by this hydraulic system. The parking brake which came with the truck was a lever in the cab which goes through a linkage back to a band on the drive shaft and this band is about 4 inches wide and has a clasping effect. When one pulls this lever it clamps on the spinning drive shaft that goes from the motor to the rear wheels. When this truck was being operated on July 8, 1974, the “hand brake, the parking brake had burned out,” because the truck had been started up and driven off with the hand brake set.

According to. defendants’ counsel, their evidence would show that when Mr. Young came to work that morning he conducted a routine check of the truck, picked up a load of concrete and drove to Centralia, where he worked, and picked up a couple of loads there. During these times he used the brakes on the truck, and had no trouble all day long, other than calling a mechanic to work on the mixer motor. When he had finished his work in Centralia, he started back around 1:30 p. m. En route he had some problem with the mixer motor again, pulled off the road and coasted to a stop without really using his brakes. After he got the mixer motor operating again, he resumed his drive back to Mexico. As he approached the intersection where the accident occurred, he came down the hill at about 20 miles an hour. The truck was unloaded with just a little water in it to wash out the concrete mixer. As he got even with the shopping center he observed the three or four cars ahead of him stopped at the intersection. Mr. Rawlings’ car was the last in line, either moving a little bit or already stopped, about 75 feet back from the intersection. At this time Mr. Young was approximately 100 feet west of the Rawlings’ auto and coming down the hill, when he applied the foot brake which activates all ten tires, just as he had done a hundred times before. The pedal went all the way to the floor. He looked ahead and to the left, and saw cars coming towards him up the hill. To his left were homes and to his right a curb and embankment. He couldn’t swerve to his left because if he had done so he would run head-on into the approaching cars. If he turned to the right the truck would have tipped and the ball would have come off and rolled down the street. He immediately downshifted to a lower gear and then ran into the rear of Mr. Rawlings’ automobile.

Counsel further stated that an engineer would testify that he had viewed the truck, taken many measurements, ran many tests, and viewed the scene, and counsel would expect to prove from him that the parking brake wouldn’t have stopped the truck in time to keep it from hitting anybody even had Mr. Young applied it. That brake is only adequate for parking, and is not made to stop a moving vehicle.

The expert witness would testify that the hydraulic brake — the foot brake — was designed and used to stop a moving truck and that the hand brake in concrete trucks is used to hold the truck when discharging or unloading concrete and to keep the truck from moving; that it is a parking brake. Counsel would also prove by this witness that even had this parking brake been functioning properly and Mr. Young had pulled on it as he was coming down the hill, at most he would have smelled smoke even if the parking brake were new, because the parking brake is not designed to stop a moving truck.

At this point plaintiffs’ counsel, out of the hearing of the jury, moved for a directed verdict for the plaintiffs “based upon the judicial admission of counsel, that the truck did not have two sets of adequate brakes.” At the conclusion of some discussions in the chambers of the trial court concerning plaintiffs’ motion the trial was resumed and it was announced by the trial court that the plaintiffs’ motion for a directed verdict was sustained and the cause would continue on the issue of damages.

Upon the completion of the evidence on the damages issue the cause was submitted to the jury, which returned a verdict in the sum of $55,000.00 on Count I of plaintiffs’ petition for the damages sustained by Mr. Rawlings and for $10,000.00 on Count II of the petition for Mrs. Rawlings’ loss of consortium. After timely motions for new trial were filed by the defendants, their motion as to Count I was overruled but their motion as to Count II was sustained unless the plaintiffs agreed to remit the damages awarded in Count II in excess of $500.00. The defendants appealed from the judgment of the trial court and Mrs. Rawlings appealed from the order granting the defendants a new trial on Count II of the petition.

The defendants’ initial Point Relied On is that the trial court erred in directing a verdict on the issue of liability because there was no evidence or judicial admission that the failure of the defendants to provide two sets of adequate brakes, kept in good working order, was the proximate cause of the accident and resulting injuries.

We agree with this contention of the defendants, and for that reason reverse and remand the judgment in this case.

Initially, we would note that the primary purpose of an opening statement is not to test the sufficiency of the anticipated evidence but is to inform the judge and jury in a general way of the nature of the action so as to enable them to understand the case and to appreciate the significance of the evidence as it is presented. Zabol v. Lasky, 498 S.W.2d 550, 553[1] (Mo.App.1973). And it is seldom, if ever, that a court should direct a verdict for a plaintiff, the party having the burden of proof on the issues supporting his claim. Scott v. Thornton, 484 S.W.2d 312, 314[3] (Mo.1972); Fulton v. Bailey, 413 S.W.2d 514, 516[2] (Mo. 1967); Schmid v. Langenberg, 526 S.W.2d 940, 944[7] (Mo.App.1975).

Here, however, plaintiffs contend that defendants’ counsel, in his opening statement, judicially admitted that the failure to have two sets of adequate brakes caused the collision and the resulting personal injuries and damages sustained by the plaintiffs. The first question for decision is whether defendants’ counsel made a judicial admission that the concrete truck did not have two adequate sets of brakes.

The rule on judicial admissions in opening statements at trial has been enunciated by the Missouri Supreme Court in McCarthy v. Wulff, 452 S.W.2d 164, 167[1] (Mo.1970), and Bayer v. American Mutual Casualty Company, 359 S.W.2d 748, 753[5] (Mo.1962). Both of these cases have established that where an attorney, in his opening statement, makes a clear, unequivocal admission as to a fact, that admission is binding on his client. Where, however, an attorney merely outlines anticipated proof on one or more issues in the case no binding admission results. Determinative, then, of whether defendants’ counsel’s opening statement constituted a judicial admission is whether he was stating facts or merely outlining what he anticipated the defendants’ evidence would be.

The plaintiffs’ contention, as we perceive it, is that the Statute, § 307.170(3) RSMo. 1978, required that the truck involved in this collision be provided with “two sets of adequate brakes, kept in good working order . . . ” and to satisfy this requirement the truck had to be provided with two separate sets of brakes so that if one failed to function, the other would. They also contend that because defendants’ counsel, in his opening statement, stated that defendants’ evidence would be that the “parking brake” which came with the truck at the time it was purchased, had burned out and wasn’t fully functional, together with his statement that defendants’ evidence would show that this “parking brake” was not designed to stop a moving truck, but was adequate only for parking and even if it had been functional would not have stopped the truck as it moved down the grade towards the intersection of Monroe and Western Avenues, he judicially admitted that the truck was not provided with the two separate sets of brakes required by the statute and therefore was guilty of negligence as a matter of law. Rice v. Allen, 309 S.W.2d 629, 631 (Mo.1958).

We do not agree. Viewed in the light of McCarthy and Bayer, we conclude that even if we assumed there was a judicial admission that the “parking brake” would not stop the truck and was not an adequate set of brakes for that purpose, we find no admission that the truck was not equipped with a second set of brakes which were adequate.

However, even if defendants were negligent per se it was incumbent on plaintiffs to show the causal connection between the violation of the statute and the injury. O’Neill v. Claypool, 341 S.W.2d 129, 133[4] (Mo.1960); Beezley v. Spiva, 313 S.W.2d 691, 696[8] (Mo.1958); Lochmoeller v. Kiel, 137 S.W.2d 625, 629[5] (Mo.App.1940). The record on appeal demonstrates that the trial court misconstrued the defendants’ position on this issue. At the time plaintiffs’ motion for directed verdict was sustained there was no admission by the defendants’ counsel that if the parking brake were functioning it could have stopped the truck within 100 feet while the truck was travelling downgrade at a speed of 20 m. p. h., when the driver of the truck first ascertained that the service brakes were not functioning. Nor was there any evidence of this because at the time the plaintiffs’ motion was filed the trial had not yet reached the stage where evidence was being adduced. The court, in Lochmoeller v. Kiel, 137 S.W.2d at 629, said:

., the question of causal connection between the violation of the statute and plaintiff’s injury, if any, was in any event a matter for the jury to determine, as also was the question of whether he had in truth been injured in the accident, which the jury was not compelled to believe, .

We hold that the trial court erred in sustaining plaintiffs’ motion for directed verdict on the issue of liability at the conclusion of the defendants’ counsel’s opening statement for the reasons aforesaid and reverse and remand the cause for a new trial.

The remaining Points Relied On presented on appeal present issues which were occasioned by the erroneous conclusion of the trial Court that plaintiffs were entitled to a directed verdict on the issue of liability. On retrial they should not recur and therefore we do not reach them for decision.

With respect to Mrs. Rawlings’ appeal from the post-trial order of the trial court granting the defendants a new trial on Count II of the plaintiffs’ Third Amendment Petition on the grounds that the credible evidence does not support the damages awarded,- we find no abuse of discretion by the trial court and affirm. Union Electric Company of Missouri v. McNulty, 344 S.W.2d 37, 39[1] (Mo.1961). However, because the trial court erred in directing a verdict in her behalf on the question of liability, the new trial shall not be limited to the issue of damages alone, but shall go also to the issue of defendants’ liability.

STEPHAN, P. J., and STEWART, J., concur.

      . The Missouri Statute, § 307.170(3) RSMo. 1978, does not specify that one of the required “two sets of adequate brakes” must be an “emergency brake” or “parking brake.” By § 307.360.2 RSMo. 1978 the Superintendent of the Missouri State Highway Patrol is empowered to establish the standards and procedures for inspection of motor vehicles required by §§ 307.350 to 307.390; and pursuant to this authority a regulation for inspection has been promulgated relative to commercial vehicles’ emergency and parking brakes. See 4 C.S.R. 50.2-170(3).


author: SMITH, Judge.

text:
    Richard PALMER and Mariette Palmer, Appellants, v. ST. LOUIS COUNTY, Missouri, Automobile Club of Missouri, the Priory of St. Mary and St. Louis, and Lindberg-Warson Properties, Inc., Respondents.
    No. 39912.
    Missouri Court of Appeals, Eastern District.
    Oct. 16, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 16, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Husch, Eppenberg, Donohue, Elson & Cornfeld, Shulamith Simon, St. Louis, for appellants.
    Robert H. Grant, Thomas W. Wehrle, Clayton, Robert Schlafly, Frederick M. Switzer, Edgar Boedeker, St. Louis, for respondents.
   SMITH, Judge.

Plaintiffs appeal from a judgment in a court tried case denying them relief on their petition seeking a declaratory judgment and injunction. They sought a declaration that an ordinance of St. Louis County rezoning a tract of land was invalid, and an injunction to prevent St. Louis County from proceeding to consider a final development plan for the rezoned property. We affirm.

The property in question is located in St. Louis County on the north side of the north outer road paralleling Highway 40 and 450 feet east of Mason Road. The land is owned by The Priory which has contracted to sell It to the Automobile Club and Lind-berg-Warson Properties for development as a commercial office complex. The land contains approximately 30 acres and was, prior to the ordinance in question, zoned mostly non-urban and partially R-l (residential). The ordinance in question rezoned the land to C-8-Planned Commercial District.

Plaintiffs own and reside in a house located on Greenwich Green Lane, a short-dead-end residential street running north from Clayton Road and located west of Mason Road. Plaintiffs’ property is from 1.2 to 1.5 miles from the rezoned property in an area zoned non-urban. Because of the distance and topographical features, plaintiffs at their home have neither audio nor visual contact with the rezoned property. There are several other commercial developments closer to plaintiffs’ property than the rezoned property, at least one (the Kellwood complex) is within sight. There are several large commercial developments and several large institutional developments along the strip of Highway 40 between Balias Road and Olive Street Road and very few single family residential units.

The initial question presented on this appeal is whether plaintiffs have standing to challenge the rezoning. We conclude, as did the trial court, that they do not. Whether dealing with a legislative zoning decision as here, or an administrative one, the test of standing is essentially the same. Allen v. Coffel, 488 S.W.2d 671 (Mo.App.1972) [2-4]. In the case of an administrative decision the party must be aggrieved (Sec. 89.110 R.S.Mo.1978); in the case of a legislative determination there must be a justiciable controversy. Allen v. Coffel, supra. In either case the party seeking relief must demonstrate a specific and legally cognizable interest in the subject matter of the administrative or legislative decision and that he has been directly and substantially affected thereby Strickelber v. Board of Zoning Adjustment, 442 S.W.2d 134 (Mo.App.1969) [2]; Allen v. Cof-fel, supra. While the protectible interest required for standing may be less than a legal wrong, the decision must act directly on an interest of the person who claims standing distinctly from the effect on the general public. State ex rel. Schneider v. Stewart, 575 S.W.2d 904 (Mo.App.1978) [17]. It is the essence of zoning procedure that the general interests of the public are to be protected by the legislative body or agency. That obligation and authority has been granted to them by the state legislature, and the requirement of standing subserves the legislative purpose in insulating their actions from capricious attack. State ex rel. Schneider v. Stewart, supra, [21, 22]. To permit each member of the public who disagrees with such a decision to seek judicial review would effectively destroy the legislative and administrative zoning structure.

Plaintiffs contend that the rezoning will cause them financial damages because it will depreciate the value of their property. The trial court on conflicting evidence found specifically that no financial damage would be caused. The burden on that issue was upon the plaintiffs. Schweig v. City of St. Louis, 569 S.W.2d 215 (Mo.App.1978) [6, 7]. Under our limited scope of review we conclude that the trial court’s findings are supported by evidence. We find no error in the finding.

The trial court also failed to find any special aesthetic or environmental damage to plaintiffs. This is again supported by the' evidence. Plaintiffs cannot see the rezoned property, or hear noises emanating therefrom. The only complaint which can be said to be supported by the record is that the development may cause some increased traffic problems for people using Highway 40 and Mason Rd. This is an “injury” common to the general population not only of St. Louis County but in view of the interstate nature of Highway 40, of the country as a whole. Such matters are to be considered by the legislative body in making its decision tó rezone. Disagreement with its conclusion that such injury is not sufficient to prevent rezoning does not create standing to challenge that determination. Plaintiffs cite Coalition of the Environment v. Volpe, 504 F.2d 156 (8 Cir. 1974) to support standing on this issue alone. We are not bound by the grants of standing given to • litigants in federal courts. Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, l.c. 262 Ftnt. 8, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). We do not find Volpe, supra, compatible with the law of Missouri on the issue of standing.

Plaintiffs also argue that inasmuch as they are located in a non-urban zone as is the rezoned property (prior to rezoning) they have standing under Kellog v. Joint Council of Women’s Auxiliaries Welfare Association, 265 S.W.2d 374 (Mo.1954). It is true that certain language appears therein indicating standing may be based upon residence within the same zoned district. However, that case involved an attempt to enforce an existing zoning code to enjoin a prohibited use and was brought directly against the offending landowner. It did not involve a change in zoning by a legislative body as is involved here. More importantly the plaintiffs therein resided in properties in the same block, contiguous to or across the street from the defendant’s property. Such proximity has been recognized as bestowing standing. State ex rel. Housing Authority of St. Louis County v. Wind, 337 S.W.2d 554 (Mo.App.1960) [2, 3]; Allen v. Coffel, supra, [5]; Eyerman v. Mercantile Trust Co., 524 S.W.2d 210 (Mo.App.1975). Plaintiffs property is at least 1.2 miles from the rezoned site. We find no authority for upholding standing based solely upon proximity where the separation is this great and we decline to create such authority. We find Kellog, supra, distinguishable. While both properties are in a non-urban zone, that zoning category is an amorphous one designed predominately as a “holding” classification. It is also apparent that in the large geographical area near the land in question the majority of the land is in the non-urban classification which allows many uses not normally associated with a strictly residential area. The classification does not carry with it the type of restrictions or limited usage which would cause a purchaser to expect a solely residential environment.

The evidence fails to establish that plaintiffs have standing to seek the relief they seek and the trial court’s finding to that effect is fully supported by the evidence. In view of our finding on this issue it is unnecessary for us to reach the remaining points raised.

Judgment affirmed.

SNYDER, P. J., and PUDLOWSKI, J., concur.

      . For instance: Farms, dairy farms, plant nurseries, golf courses, sawmills, grain storage, blacksmiths, house trailer parks, airports, rifle ranges, sanitary landfills and incinerators, penal institutions, stadiums, kennels and riding stables, sewage treatment facilities, and hospitals.