author: STEWART, Judge. CLEMENS, Judge

text:
    STATE of Missouri, Plaintiff-Respondent, v. Pat HARRIS, Defendant-Appellant.
    No. 36099.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 20, 1976.
    Motion for Rehearing or Transfer Denied Feb. 26, 1976.
    Application to Transfer Denied April 14, 1976.

      Denis C. Bums, James E. Godfrey, Inc., St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas J. Kavanaugh, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Defendant was charged with and convicted of first-degree robbery by means of a dangerous and deadly weapon. The court sentenced him to 35 years’ imprisonment.

Defendant’s allegations of error focus upon photographs used for purposes of identification. He contends that comments of the prosecution in opening statement, the answers to questions propounded to witnesses, and an offer by the prosecution to display one of the photographs to the jury, erroneously injected evidence of a prior crime into the case.

Defendant does not question the sufficiency of the evidence to warrant a conviction. At about noon, Donald Bledsoe, who was home on leave from the Marine Corps, was returning to his home from the store. He had turned into an alley when he was approached by defendant and two other men. One of them asked for a cigarette. When Bledsoe removed a cigarette from his pocket his wallet fell to the ground. As he reached for the wallet one of the men put a gun to his head and the defendant grabbed the wallet. The three men then ordered Bledsoe into the basement of a vacant house, struck him and forced him to strip to his underwear. They .discussed among themselves which one would kill him. They finally returned the wallet after removing the cash and told Bledsoe to leave. Bledsoe then ran up the alley to his home and called the police. Mr. Bledsoe identified a photograph of defendant as one of his assailants. He also identified defendant in a line-up. At the trial the victim made a positive in-court identification and also identified defendant from a photograph of the lineup. It was also developed on cross-examination of the victim that he had seen the defendant in the neighborhood some 3 or 4 months before the robbery.

Defendant did not testify but offered two alibi witnesses. The manager of the apartment where he lived testified that defendant was washing clothes on that day. Defendant’s wife said that she noticed freshly washed clothes when she returned home from work that evening.

The facts giving rise to the issues raised will be set out where indicated.

The defendant specifically contends that the court erred in not granting the defendant’s motions for mistrial when the court admitted “evidence of prior crimes of the defendant” in the following respects:

“A) . . . the Circuit Attorney’s statement in the course of his opening statement that two detectives took ‘so-called mug shots of people on file with that division’ to the victim, from which the victim identified the photograph of the defendant, after which the detectives returned to the office where ‘they found out where this man was.’ ”
“B) . . . the statement of the victim, Donald Bledsoe, on direct examination that ‘they came about twice, to show me mug shots.’ ”
“C) . . . the statement of Detective Donnell Whitfield on direct examination that he took ‘photographs of subjects on file in our department’ to the home of the victim.”
“D) . . . the request by the Circuit Attorney made at the close of his case in chief, within the hearing of the jury, whereby he requested permission to pass to the jury ‘State’s Exhibit No. 2, a photograph, a smaller photograph, which is (sic) likewise, been admitted into evidence.’ ”

We confine our discussion to those incidents specifically designated in defendant’s brief.

The prosecutor in his opening statement told the jury that the proof would be that detectives of the “Burglary and Robbery Division” would tell them that “they brought out several photographs of so called mug shots of people on file with that division, with the Burglary and Robbery Division,” to the victim. No objection was made to the remarks of the prosecutor when made. He continued his statement for another eleven lines in the transcript. At that time defense counsel approached the bench and informed the court that the State had “introduced evidence, information about defendant ... in the police files. It is an indication of another offense . . .” His only request was for a mistrial.

As in the case of improper argument, objections to statements of the prosecutor must “be made at the time the objectionable statement is made or nothing is preserved for review.” State v. Turley, 518 S.W.2d 207, 211[3] (Mo.App.1974). This incident is not properly before us.

The second occasion was a purely voluntary response by the victim on direct examination as follows:

“Q. Okay, now. How many days after you were robbed, did the detective come out to your house?
A. They came that next day. They came about twice, to show me mug shots. Then the next day, they picked me up.”

The defendant asked for a mistrial on the ground that the Circuit Attorney’s question was so framed as to call for “the answer mug shot”. The court refused to declare a mistrial. The court, however, interposed and sustained its own objection to the term “mug shot”. In the Motion for New Trial defendant alleged that the question was erroneous. He now complains of the answer, not the question. He contends that the court erred in not declaring a mistrial when the victim said, “They came about twice to show me mug shots.” An appellant may not, on appeal, change or broaden the scope of the assignment of error in his motion for new trial. The present contention was not preserved in the Motion for New Trial, and is not now reviewable. State v. Larkins, 518 S.W.2d 131, 135[6] (Mo.App.1974); State v. Kinder, 496 S.W.2d 335, 339 (Mo.App.1973).

If these incidents were properly before us we would find no prejudicial error. Much interest was evidenced in the substance of these issues, by our brethren who would dissent, and for that reason we shall discuss them along with others properly raised.

The defendant’s principal contentions center around the term “mug shot”. Defendant, as noted above, also complains of the incident when Detective Whitfield testified that he went to see the victim and brought “Photographs of subjects on file in our department.” (emphasis added)

Preliminary to discussion of the issues it is appropriate to restate an old principle. On appeal we should indulge the presumption that the trial court ruled properly. The burden of showing erroneous action on the part of the court is upon the appellant. “. . . error must be affirmatively shown, or appear by necessary implication. Conjectures and inferences will not subserve such a purpose.” State v. Taylor, 134 Mo. 109, 35 S.W. 92, 98 (1896).

That evidence of a defendant’s prior crimes is generally inadmissible, is axiomatic. The jury heard no direct evidence that defendant had previously committed a crime. The primary issue here is whether the use of the term “mug shots” on the two occasions mentioned and one reference to photographs on file with the police department, within the context of this case, necessarily referred to prior criminal activity on the part of the defendant and was prejudi-cially erroneous.

The burden was upon defendant to show that the use of the term “mug shots” and the phrase “pictures on file with our department” [the police department] constituted “evidence of prior crimes”. To reach this conclusion he would have two alternative avenues open to him.

First he would have the burden of proving that all mug shots or photographs on file with the police department are photographs of persons who had committed prior crimes. This he has not attempted to do and it was not incumbent upon the State to prove the contrary.

Alternatively the defendant would have to prove that the average juror erroneously believes that persons whose photographs are on file with the police department have committed other crimes. We cannot infer that the jury inferred that defendant had committed prior crimes because the police department has a photograph of defendant. The defendant has failed to carry the burden of showing that the court erred. See State v. Carson, 501 S.W.2d 503, 506 (Mo. App.1973).

This is not to say that in another case the defendant may not be able to prove that the term “mug shot” connotes prior criminal activity to the average juror.

It is noted that the term “mug shot” was first used by defendant. In the hearing on the Motion to Suppress, immediately before the trial, counsel for defendant, in referring to a picture of defendant, asked of a detective, “Was that a mug shot?” Subsequently Mr. Bledsoe was asked if he talked to the detective. In reply Mr. Bledsoe said, “They brought mug shots.” If defendant had not encouraged or condoned the use of the term, he at least could reasonably have anticipated its use in the trial before the jury. If he felt that the use of the term was objectionable, preventative action could have been taken.

After the defendant objected to the State’s reference to “mug shots” in the opening statement the term was not used again by the prosecutor. The question he asked of the victim was not a leading question and was not so framed as to elicit any reference to mug shots. When Detective Whitfield testified that he showed the victim pictures on “file with our department” he merely referred to photographs in the files of the St. Louis Police Department. He did not make reference to the files of the Burglary and Robbery Division. There was no inference of prior crimes in this reference.

On the three occasions of which defendant now complains he sought only a mistrial. The court offered to take corrective action by instructing the jury with respect to the term “mug shot”. This offer was refused by the defendant.

As has been well said recently by this court, “The declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who observed the incident giving rise to the request. The trial court weighs the prejudicial effect and determines, in the exercise of a sound discretion, whether to grant or deny the request. An appellate court will not reverse on such a ground unless it finds this discretion was abused.” State v. Franklin, 526 5.W.2d 86, 90[8, 9] (Mo.App.1975).

State v. Rutledge, 524 S.W.2d 449 (Mo. App.1975) presented practically the same issue. In the first half of the State’s closing argument the prosecutor referred to photographs shown to the witness as “mug shots”. No objection was made and the statement stood unretracted. In the closing half of the argument the prosecutor on two occasions made use of the term “mug shots”. Objections were sustained and the jury was ordered to disregard the statement. The court did not instruct the jury as to the term. The request for mistrial was denied. This court held' that it was “not convinced that a reference to ‘mug shots’ indicates the commission of separate crimes.” We can say here along with Rutledge that “the context in which the term was used was in the identification from photographs and not that the defendant had committed other offenses.”

Other jurisdictions have also faced the same problem. In U. S. v. Robinson, 406 F.2d 64 (7th Cir. 1969), the prosecutor in opening statement said that the witnesses went to the police station where they “looked at what the Police Department calls mug shots [and] picked out [defendant’s] picture . . . .” The court denied the motion for mistrial and took corrective action in the nature of that offered by the trial court in this case. Thereafter, during the trial, witnesses, on numerous occasions, referred to having looked at “a mug file”, “picture file”, “photographs of suspects” or “photographs” at the police station. The court pointed out that there was no direct mention of prior criminal activities and said 1. c. 66:

“The ‘mug shots’ in the case at bar were identified as being at the police station, not at a penal institution, . . ”
". . •. mere reference to ‘mug shots’ unaccompanied by anything suggesting past criminal activities, and where the trial judge gave a comprehensive instruction to the jury cautioning them not to draw any inference of criminality from the term ‘mug shots’ [was not erroneous].”

In Valley v. People, 165 Colo. 555, 441 P.2d 14 (banc 1968) it was held that the court did not abuse its discretion in not declaring a mistrial when an investigator volunteered on direct examination that he had “presented a number of ‘mug shots which are pictures taken in the . jail when a person is booked into jail.’ ”

State v. Clancy, 225 Mo. 654,125 S.W. 458 (1910) is cited as closely akin to this case. In that case the prosecutor not only referred to the defendant as a “police character” but he explained what he meant by the term. The Supreme Court reversed because the trial court did not take corrective action. In the present case no direct reference was made to defendant’s character or criminal activity and defendant refused to permit the court to take corrective action. In all the other cases cited by defendant direct references were made to other specific crimes or criminal activity.

The specific references to the term “mug shots” in this case were not preserved for our appellate review. If they had been preserved the trial court cannot be said to have abused its discretion in failing to declare a mistrial.

Another incident of which defendant complains concerns a photograph of defendant which was marked Exhibit 2 and accepted into evidence, but which the court would not permit the State to show to the jury. This exhibit has not been made available to us. From the transcript we learn that it is a likeness of defendant. Counsel for defendant advised the court that it contained a notation: “St. Louis Metropolitan Police Department No. 97950 dated 9/27/72.”

The State did not make use of this photograph during the direct examination of the victim. It was only after defendant, on two occasions in cross-examination, questioned the victim concerning the quality of the picture that the State had the picture marked and introduced into evidence. Upon admonishment of the court the prosecutor placed the exhibit under his file so as not to be in view of the jury. Later the State asked that the jury be permitted to see the picture but only after the notations had been covered up. The State offered to let defendant’s counsel cover any objectionable matter as he desired. The request to show the photograph to the jury was denied.

Thereafter defendant cross-examined Detective Bell with respect to the victim’s statement as to the quality of Exhibit 2. At the close of the State’s case permission to pass Exhibit 1, a photograph of the lineup, was requested and granted. The prosecutor stated, “Your Honor, for the record, State’s Exhibit No. 2, a photograph, a smaller photograph, which is (sic) likewise, been admitted into evidence, for the record; I would ask permission to pass this to the jury.” The court immediately denied the request. Defendant objected on the ground that counsel had been admonished not to show the picture to the jury and asked for a mistrial. The court in denying the request for a mistrial took note of the fact that Exhibit 2 was held in such a manner as not to be discernible to the jury, and thus had not been displayed to the jury. The order of the court had not been disobeyed; there was no basis for the objection.

In view of the fact that defendant questioned the victim’s characterization of Exhibit 2 as hazy, the court in its discretion could have permitted the State to show the picture to the jury. Such a photograph was properly shown to the jury in State v. Childers, 313 S.W.2d 728, 731[5] (Mo.1958). Failure to permit the jury to view the photograph permitted defendant the opportunity to adroitly argue to the jury that he had seen the questioned picture and that “it’s not a hazy picture.”

In oral argument reference was made to the abundance of State’s evidence with respect to the identity of defendant. However, this is a one issue case. As defense counsel phrased it in closing argument, “The only question in this case, or the issue . . .is, was Pat Harris the man who robbed Donald Bledsoe, on Labor Day?” The issue of identity of defendant was in the case from the Motion to Suppress Identification, which was heard on the day the trial began, through final argument.

Defendant’s skillful cross-examination of all of the State’s witnesses was directed exclusively to the question of identification. The memory of the victim was questioned as it affected his identification of the defendant. Defendant’s attack upon the identification was supported by alibi witnesses.

The State had the burden of proving, beyond a reasonable doubt, the principal element at issue in this ease, the identity of defendant as one of the persons who robbed Mr. Bledsoe. State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, 707 (1943). It was the duty of the State to present as strong a case on identification as it could fairly present.

Although, there was an abundance of State’s evidence to identify defendant, the State “should not be unduly limited as to the quantum of its proof.” State v. Moore, 303 S.W.2d 60, 66 (Mo.1957).

Finding no prejudicial error the judgment of the trial court is affirmed.

SMITH, C. J., and SIMEONE and GUNN, JJ., concur.

CLEMENS, J., dissents in separate opinion.

KELLY and McMILLIAN, JJ., concur in Judge CLEMENS’ dissent.

CLEMENS, Judge

(dissenting).

Am compelled to dissent — on the ground the trial court permitted the State to deliberately and persistently portray defendant Pat Harris as a “police character” whose “mug shot” was in police files. In the jury’s eyes, this could well have demolished defendant’s right to a fair trial under a presumption of innocence. As said by Judge Hollingsworth in State v. Barton, 361 Mo. 780, 236 S.W.2d 596[1, 2] (banc 1951), and repeated in State v. Reese, 481 S.W.2d 497, l. c. 499 (Mo. banc 1972): “This is no mere procedural presumption. It is substantive, basic; there is no exception.”

Defendant contends on appeal “the court erred in denying defendant’s repeated motions for mistrial following the repeated admission of evidence of prior crimes of the defendant.” This point relied on is followed by sub-paragraphs specifying prose-cutorial references to “mug shots” and “photographs of subjects on file in our [police] department. The sole issue on appeal is whether these references to police department photographs or mug shots throughout the trial prejudiced defendant’s right to a fair trial.

The first reference to photo identification at trial came in the State’s opening statement. The prosecutor stated: “Officers Whitfield and Bell, who are Detectives assigned to the Burglary and Robbery Division, of the St. Louis Metropolitan Police Department, will tell you that they brought out several photographs or so-called mug shots of people on file with that division, with the burglary and robbery division, and I suppose, set them on a table or whatever, and asked him, if any of these were one of the people that held him up in that vacant house or in that alley.” The prosecutor noted the victim chose defendant’s photograph from those shown him.

Defense counsel at that point stated at the bench, “Your Honor, Mr. Kavanaugh just introduced evidence, information about the defendant, Pat Harris, in the police files. It is an indication of another offense, which is totally inadmissible and highly prejudicial, and I will request a mistrial for that reason.” The court denied a mistrial.

A second incident arose during the State’s questioning of the robbery victim:

“Q: How many days after you were robbed did the detective come out to your house?

A: They came that next day. They came about twice, to show me mug shots.” Defense counsel immediately told the court at the bench, “The Circuit Attorney . specifically referred to mug shot again. He is referring to another crime.” The court denied counsel’s request for mistrial but belatedly sustained his objection to the words “mug shot” and cautioned, “Use ‘pictures.’ ” The prosecutor continued questioning the victim about the photographs the detective brought — how many there were, the race and sex of those depicted, and whether one was clear or blurry.

At that point the State had the mug shot photograph marked “State’s Exhibit No. 2.” The court called both attorneys to the bench, where defense counsel stated the pictures had the notation, “St. Louis Metropolitan Police Department # 97950, 9/27/72.” Counsel added he considered the marked picture an indication of prior crime “highly prejudicial” to defendant. The court stated it would not permit the picture to be shown, but would allow questioning about it and cautioned the State to refer to it “as just a picture.” Defense counsel refused the court’s offer of a curative instruction as “too late . . . they already have the inference of another crime.” The court again stated, “We will use the word, picture.”

During further questioning about the picture, the trial court admonished the prosecutor to put it “under your file, so that it won’t be lying on the desk . . . .” When defense counsel objected to admitting the picture into evidence, the court stated it should not be shown to the jury.

Immediately thereafter, the State began questioning a witness identified as a detective assigned to the Burglary and Robbery Division: “Q: Where did you talk with him [the victim]? A: I went to his home. Q: Did you bring any materials with you? A: Yes, I did. Q: What were they? A: Photographs of subjects on file in our department.” (Our emphasis). The court denied a request for a mistrial and again cautioned the State to refer to “photographs.”

Another episode occurred when the State’s attorney in the jury’s presence sought leave to pass to the jury the “smaller photograph” to which defendant’s objection had been sustained. The court denied defendant’s motion for a mistrial and stated, “at the time the prosecutor stood up, he held the photograph . . . against his body, and it was not discernible by the jury.”

Finally, in closing argument, the prosecutor again stressed defendant’s photograph, telling the jury, “Two days later, these police officers, these.detectives come out with their pictures they had, from downtown, showed him a series of pictures.” The prosecutor added, “You only saw the one photograph, the photograph of the lineup.” The comment called added attention to the fact the court had refused to let the jury see the mug shot which had previously been referred to. It seems naive to suggest, as does the majority opinion, that the jury might have believed “mug shots” bore no criminal connotation, particularly so when identified by a police officer from the Burglary and Robbery Division as “photographs of subjects on file in our department.” A more logical inference is that the photograph depicted a man who had been previously arrested for if not convicted of burglary or robbery. This basic rule of law prohibiting proof of a defendant’s other criminal acts is violated not only by evidence he did commit a specific crime but by statements of counsel or witnesses implying the defendant’s prior illegal conduct, thereby diluting his presumed innocence of the crime for which he is being tried. Thus, the majority opinion is out of harmony with a long line of Missouri cases.

Prosecutorial reference to a defendant’s other illegal acts has been uniformly condemned by reversals. In State v. Leonard, 182 S.W.2d 548[4—8] (Mo.1944), defendant was charged with unlawfully selling liquor at her home and in argument the prosecutor referred to defendant’s home as a bawdy house. Reversed. In State v. Ingram, 286 S.W.2d 733[4—6] (Mo.1956), defendant was charged with a robbery and a policeman testified he had arrested defendant for a homicide. Reversed. In State v. Tillman, 454 S.W.2d 923[5, 6] (Mo.1970), defendant was charged with carrying concealed weapons in his car. In opening statement the prosecutor said the weapons were found when highway patrolmen encountered defendant and arrested him for a murder and robbery. Reversed. In State v. Hancock, 451 S.W.2d 6[1—3] (Mo.1970), defendant was charged with burglary of a clothing store. The State showed the stolen articles were found in defendant’s car, but over objection also identified other objects found in the car as the fruits of other burglaries; despite the trial court’s oral and written instructions to the jury to disregard the extraneous evidence the Supreme Court reversed. In State v. Clancy, 225 Mo. 654, 125 S.W. 458[4] (1910), a case closely akin to ours, the court applied the rule excluding reference to other offenses. There, in closing argument, the prosecutor referred • to defendant as a “police character.” Although defendant’s objection was sustained the Supreme Court reversed the conviction and declared, “the court should have promptly rebuked counsel for the state for the unwarranted remarks, and directed the jury to disregard them.”

Even more akin to our case, in State v. Baldwin, 317 Mo. 759, 297 S.W. 10[10] (banc 1927), a police witness identified a photograph of defendant as one “kept in the Bertillon room, police headquarters.” Reversing, the court held: “This made this evidence highly prejudicial. The place where the picture was kept was utterly immaterial upon the question as to whether or not it was the picture of defendant. Nor did it tend to prove defendant committed the crime. It could be relevant to no issue in the case, and the court should have promptly sustained the objection that the evidence was irrelevant and immaterial. Its failure to do so was prejudicial and reversible error.” Here, the effect of repeated references to mug shots and photographs in police department files was no less prejudicial since they permitted an inference of past crime. Our courts rigidly scrutinize any such evidence, since it has a dangerous tendency to raise a spurious inference of guilt in the minds of jurors. State v. McElroy, 518 S.W.2d 459[6] (Mo. App.1975). See also State v. Holbert, 416 S.W.2d 129[6] (Mo.1967), and State v. Carter, 475 S.W.2d 85, 88 (Mo.1972), citing State y. Reese, supra.

The record in this case should convince us the repeated references to police photographs did inform the jury of defendant’s prior criminal involvement with police and rendered improbable a fair trial for the robbery charged. The jury’s awareness of defendant’s prior criminal involvement clouded the single issue of his guilt or innocence of the robbery charge for which he was being tried. We should not say the jury’s verdict was not influenced by its awareness that this defendant was a police character. In the words of Chief Justice Warren in Spencer v. Texas, 385 U.S. 554, l. c. 575, 87 S.Ct. 648, l. c. 659, 17 L.Ed.2d 606 (1967): “Of course it flouts human nature to suppose that a jury would not consider a defendant’s previous trouble with the law in deciding whether he has committed the crime currently charged against him.”

We need not decide whether any one of the four “police character” references, standing alone, warranted a mistrial. As the State layered each one atop another, it should have become apparent to the trial court that an indelible brand had been placed upon defendant that could be erased only by granting a mistrial.

Earlier Missouri “mug shot” cases have dealt with facts not quite akin to our case. In State v. Rima, 395 S.W.2d 102[3] (Mo. banc 1965), a witness testified he based in-court identification on his observations at the crime scene, and added that he had chosen defendant’s photograph from “ ‘mug books’ at the police station.” Defense counsel did not object, and his later requests for a curative instruction or a mistrial were denied. But Rima is factually distinguishable from this case. In that case, there was an uninvited mention of police photographs to which there was no timely objection. Here, there were repeated references to such photographs and timely objections. In Rima the only person who referred to police “mug” photos was one witness, the victim of the crime; in our case, the prosecutor made direct and indirect references to defendant’s police pictures and so framed questions to the victim and a police officer as to elicit a similar reference from them. Had there been in our case merely one such reference, made during a witness’ testimony relating the process by which he identified the defendant, any prejudice ensuing therefrom would have been minimal and would not have mandated reversal. State v. Rima, supra; State v. Donnell, 430 S.W.2d 297[16,17] (Mo.1968); State v. Daegele, 302 S.W.2d 20[6] (Mo.1957); State v. Childers, 313 S.W.2d 728[5] (Mo.1958).

We have also considered our decision in the recent case of State v. Rutledge, 524 S.W.2d 449 [l. c. 457—458] (Mo.App.1975). There, in closing argument the prosecuting attorney used the term “mug shot.” On defense objection, “the prosecutor quickly corrected himself” and the trial judge instructed the jury to disregard the prosecutor’s comments. We held that while we did not condone the mug shot reference it did not rise to the level of trial error requiring a mistrial. Here, the volume of the prosecuting attorney’s persistent mug shot references, direct and implied, was greater than in Rutledge, and here no corrective action was taken. Both Rima and Rutledge are distinguishable.

Where, as here, there are repeated references to the presence of defendant’s photograph in files of the robbery division of the police department, the cumulative effect of such references in view of their number and the context in which they occurred could hardly have failed to prejudice defendant.

We think the caution uttered by the court in State v. Tyler, 454 S.W.2d 564[7] (Mo. 1970) warrants repetition: “So long as the testimony or photograph does not identify the party thus pictured as a criminal there can be no valid objection to an identification based on such a picture.” The implication is that there is a valid objection to “such a picture” if the testimony concerning it implies defendant is a criminal. Because of the prosecutor’s opening remarks, his leading questions to two witnesses, and his effort to pass the picture to the jury despite the judge’s admonitions to hide the picture, the jury reasonably could infer defendant was a criminal even though not shown the mug shot with its police department identification numbers.

The majority opinion faults defense counsel for tardiness and inexactness in objections in the trial court and in the points briefed here.' These are arguable, but even so, defendant’s complaints concern “substantial rights resulting in manifest injustice,” and therefore cognizable by us under the plain error rule, Rule 27.20.

This conclusion is not based on any one of defendant’s complaints. The State’s trial conduct led the jury down the mental path of trying a criminal, not a presumptively innocent citizen. So tarnishing defendant cannot be said to be harmless in its cumulative effect. As said in Faught v. Washam, 329 S.W.2d 588[30] (Mo.1959): “Without undertaking to determine whether any single matter of which we have treated, standing alone, would constitute reversible error . we are firmly of the opinion that, in their totality, they do. . ” Appellate consideration of the cumulative effect of trial errors is particularly appropriate in criminal cases. See State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524[5] (banc 1947), and State v. Webb, 254 Mo. 414, 162 S.W. 622[7—8] (1914).

The State’s challenged conduct went beyond the defendant’s identification; it portrayed him as a “police character,” thereby demolishing the mantle of innocence to which he was constitutionally entitled.

We should grant defendant a new trial.

      . At argument on re-hearing mention was made of an indirect reference to the photograph and a comment made in final argument with respect to the “smaller picture”. The term “mug shot” was not used. No objection was made at trial, in the motion for new trial, or in the briefs of the parties with respect to these matters.

      . “The Court erred by its refusal to grant the defendant’s request for a mistrial following the question asked Donald Bledsoe by the Assistant Circuit Attorney on direct examination, pertaining to whether or not the police took a ‘mug shot’ of the defendant to Bledsoe’s house. This question was clearly inadmissible as evidence of a prior offense and past police history, was highly prejudicial, was clearly irrelevant, immaterial and incompetent, and was offered solely for the purpose of inflaming the passions and emotions of the jury.”

      . “Mr. Burns: Judge, the Circuit Attorney has asked questions calling for the answer, mug shot. He specifically referred to mug shot again. He is referring to another
      crime. As to prevent an unbiased trial, I request a mistrial.
      The Court: He is objecting to the word mug.
      Mr. Bums: I am objecting.
      The Court: I • will sustain it, as to the word, mug shot. Use pictures; and your request for a mistrial is denied.”

      .“Mug shot ... (6) Slang, to take a photograph of (a person) esp. in compliance with an official or legal requirement.” The American College Dictionary (C. L. Barn-hard, Ed. 1970).
      “Mug shot. A photograph of a person’s face — usu. used of official police photographs.” Webster’s Unabridged Dictionary, Third Edition.

      . If called upon the State could have shown that all cab drivers in St. Louis are required to file their photographs with the police department; that the department has on file photographs of all licensed watchmen, all reserve officers, all police officers, all civilian employees of the department, all police commissioners and all applicants for positions with the police department.

      . “Okay, now. How many days after you were robbed, did the detective come out to your house?”

      . “ ‘I mean a man who was under the surveillance and under the suspicion of the police; a man that was liable to be picked up by the police, or arrested by the police.’ ” (125 S.W. 458 at 459).

      . “Upon objection made by the defendant, the court should have promptly rebuked counsel for the state for his unwarranted remarks, and directed the jury to disregard them. Failure to do so was error.” (125 S.W. 458 at 460).

      . “Mug shot. A photograph of a person’s face, usually used of official police photographs.” Webster’s Unabridged Dictionary, Third Edition.

      . We cannot presume State’s counsel did not know what its principal witness would answer.

      . Overruled on other grounds; State v. Rima, 395 S.W.2d 102[3] (Mo. banc 1965).


source: Caselaw Access Project

author: ’ NORWIN D. HOUSER, Special Judge.

license: Public Domain

text:
    Victoria OLSON, Appellant-Respondent, v. Richard G. OLSON, Respondent-Appellant.
    Nos. 36485, 36486.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 20, 1976.
    Motion for Rehearing or Transfer Denied March 10, 1976.
    Application to Transfer Denied April 14,1976.

      Charles A. Werner, St. Louis, for appellant-respondent.
    Ernest L. Keathley, Jr., St. Louis, for respondent-appellant.
   ’ NORWIN D. HOUSER, Special Judge.

Victoria Olson, a resident of Alexandria, Virginia, filed a petition in the Juvenile and Domestic Relations Court of Fairfax County, Virginia under the provisions of the Uniform Reciprocal Enforcement of Support Act of Virginia (Title 20, Chapter 5.2, Code of Virginia 1950), praying for an order directed to Richard Olson, her former husband (a resident of Missouri), requiring him to provide fair and reasonable support for two minor children born of the marriage. Richard filed an answer in the nature of. a general denial, after admitting the marriage; that Victoria was his former wife; the birth of the two children; setting up as an affirmative defense that the parties were divorced in the State of California by a judgment, which became final May 9, 1970, requiring Richard to pay $50 a month as child support for each child; that he has paid and continues to pay $100 per month pursuant to the judgment; that Victoria is equally responsible for support of the children and has greater financial resources at her disposal for such purposes than does Richard, and praying for dismissal of the petition. Victoria’s reply admitted the divorce and support judgment but denied that it constituted an affirmative defense.

A judge of the Virginia court certified the filing of the petition and Richard’s address; reaffirmed the allegations of the petition and need for $456 per month support for the children, according to Victoria’s testimony; that the petition sets forth facts from which it may be determined that Richard owes a duty of support, and that the petition should be dealt with according to law. This certificate and proper exemplification of records were filed in the Circuit Court of the County of St. Louis on April 23,1973. Richard filed a motion to dismiss, attaching a certified copy of the California divorce and support decree. The motion to dismiss was heard and overruled and the cause was submitted to the circuit court on the pleadings, interrogatories, answers to interrogatories and memoranda. On May 29, 1974 judgment was entered for Victoria and against Richard in the sum of $27.50 per week for the support of each of the two children,- commencing June 1, 1974; denying Victoria attorney’s fees, and refusing to make the award retroactive to the date of filing the petition. Both Victoria and Richard appealed. Their separate appeals, consolidated, are now disposed of in one opinion.

Richard’s Appeal

Richard’s first point is that the Uniform Reciprocal Enforcement of Support Law, Chapter 454, RSMo 1969 (URESL), and the similar Virginia law, have no application under the facts of this case, which does not involve a runaway father or a father delinquent in payments; that this is a misplaced effort to modify the California support decree, but the California support decree cannot be modified under URESL, the purpose of which is the enforcement of duties of support; that if a duty of support has been imposed by another court the only function of the court in the responding state (Missouri) is to enforce that duty of support in cases where the respondent is not fulfilling that duty; that nothing in URESL gives the court, in either initiating state (Virginia) or responding state authority to increase the amount of support previously determined by another court, or to modify child support provisions of a foreign divorce decree; that to so rule would give the court in the responding state the power to supersede the support order of the divorce court, contrary to § 454.280, which provides: “No order of support issued by a court of this state when acting as a responding state shall supersede any other order of support

URESL must be liberally construed to meet cases clearly within the spirit or reason of the law, resolving all reasonable doubts in favor of the applicability of the law to the particular case. State ex rel. Whatley v. Mueller, 288 S.W.2d 405 (Mo. App.1956).

Richard misinterprets the object and purpose of Victoria’s petition and misconstrues the range and scope of these remedial enforcement statutes. This is not a proceeding to modify the child support provisions of the California divorce decree, as Richard contends. This is a new, separate and independent proceeding. Victoria’s petition makes no reference to that decree. That decree was not a part of her proof. The judgment from which this appeal is taken does not purport to modify or supersede the California decree, which was not mentioned in the court’s findings, conclusions and judgment. Indeed, no court of this state when acting as a responding state could issue an order superseding the foreign support order, in the sense of suspending or staying its operation, if for no other reason because of the express provision of § 454.-280, supra. That section further provides that “the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both.” The last quoted language plainly contemplates that more than one order of support may be outstanding at any given time. Furthermore, § 454.030 expressly provides that the remedies provided in URESL “are in addition to and not in substitution for any other remedies.” Victoria is pursuing an additional, auxiliary or supplemental remedy, and is not barred from maintaining this action because of the California decree. Elsner v. Elsner, 425 S.W.2d 254[2] (Mo. App.1967), holds that a California judgment awarding a divorced wife $15 per week for child support is not res adjudicata of the issue of child support and does not bar the maintenance of an action in the Missouri courts for child support for a larger amount than that awarded by the California court. In Swan v. Shelton, 469 S.W.2d 943 (Mo. App.1971), this Court construed the powers given to a responding court under § 454.240 “to include the power to require a defendant to pay a lesser amount than that required to be paid by the order or judgment of the initiating state.” If the court of the responding state can diminish the financial obligation it must have the corresponding power to increase it, for it is a poor rule that does not work both ways. Two courses of action were open to Victoria under UR-ESL. She could have enforced the duty of support imposed by the provisions of the California decree by filing a petition for its registration and confirmation under §§ 454.290-340, both inclusive. Instead, she elected to start this independent proceeding, invoking the “imposable by law” language of § 454.020(6), thereby putting the machinery of the law in motion to find and impose a duty of support independent of and without reliance upon the foreign support decree. A duty of support “imposable by law” is one arising out of a relationship — a duty of support to be adjudicated and reduced to decretal form in the responding state upon proper evidence at a hearing after due notice to defendant, through the instrumentality of this new, additional remedy afforded by URESL. Section 454.270, providing that no URESL proceeding shall be stayed because of the existence of a pending divorce proceeding, further indicates that URESL provides an additional remedy to enforce a duty of support and that the jurisdiction of a divorce court is not exclusive in the enforcement of the duty.

That Victoria properly proceeded under URESL in her effort to secure a larger award for support of the children, and is not relegated to the filing of a motion in the California court to modify the child support provisions, is strongly supported by the 1969 decision of the Supreme Court of Missouri en banc in Paul v. Paul, 439 S.W.2d 746. In that case plaintiff and defendant were divorced by decree of the Circuit Court of Jackson County, Missouri, which awarded plaintiff custody of two children and granted her $11.25 per week per child for child support. Plaintiff moved to Arizona, where she filed a complaint under the Arizona Uniform Reciprocal Enforcement of Support Act, alleging the divorce, the award for child support, defendant’s default in payments and the need for $30 per week for the children (instead of the $22.50 per week awarded in the divorce proceedings). The Arizona court made findings under its URES Act and certified the papers to the Circuit Court of Jackson County, Missouri, where they were filed. Defendant, served with process, moved successfully to dismiss the proceedings for lack of jurisdiction, the circuit court being of opinion that the divorce court had exclusive jurisdiction. The Supreme Court reversed, holding that the circuit court had jurisdiction of the URESL proceedings and directed the circuit court to proceed as the responding state court under URESL. The Court treated URESL as an exception to the rule that a court granting a divorce has continuing, exclusive jurisdiction of the maintenance of children until they reach majority, and held that the jurisdiction of the divorce court was not exclusive; that URESL provides an additional, expeditious, inexpensive way to enforce obligations of support; that URESL could be utilized as an additional means of enforcing a duty of support regardless of the divorce proceedings; that the divorce proceedings did not affect complainant’s right to enforce support obligations through URESL; that §§ 454.020, 454.030, 454.090, 454.270 and 454.280 support the conclusion that the court of the responding state had jurisdiction to proceed to hear this complaint, in which the former wife sought an amount for child support larger than that awarded by the divorce court. State v. Davis, 469 S.W.2d 1, 3, fn. 4 (Mo.1971) states that Paul v. Paul “recognizes that the statute provided an additional remedy to enforce the father’s obligation to support which was not affected by or limited to a prior Missouri divorce decree and the support provisions therein contained.” If not affected by or limited to a prior Missouri divorce decree, the duty of support a fortiori would not be affected by or limited to a prior foreign divorce decree.

Courts of other states which hold that the responding state court in a URESL proceeding has authority to make an independent finding on the duty of a father to support minor children, regardless of the amount of an award made previously by a divorce court, and is not precluded by the award in the divorce case from fixing an amount different from that called for by the divorce decree, include Davidson v. Davidson, 66 Wash.2d 780, 405 P.2d 261, 264 (1965); Allain v. Allain, 24 Ill.App.2d 400, 164 N.E.2d 611 (1960); Moore v. Moore, 252 Iowa 404, 107 N.W.2d 97 (1961); Elkind v. Byck, 68 Cal.2d 453, 67 Cal.Rptr. 404, 439 P.2d 316 (1968); Howard v. Howard, 191 So.2d 528 (Miss.1966); Despain v. Despain, 78 Idaho 185, 300 P.2d 500 (1956); Thompson v. Thompson, 93 So.2d 90 (Fla.1957). See also Comment: Uniform Reciprocal Enforcement of Support Act in Missouri, 27 Missouri Law Review 481, 492: “Another situation that often arises is one in which a divorce decree is granted in one state and an action is brought at a later time in another state for support of dependent children. If there was no mention of child support in the original decree, a court in the second state may properly grant a support order. If there was an award of support in the divorce decree, the defendant may be ordered to pay additional support.”

Consideration of URESL as a whole, and the judicial opinions construing it, lead to the conclusion that the court in the responding state may make its own determination of the needs of the party invoking URESL and has the power to make such support orders as justice requires; that if the evidence in a URESL case entitles petitioner to an award of child support greater than that granted in a prior divorce decree the required payments may be increased in the court of the responding state, and a prior foreign decree awarding a lesser sum does not bar such relief.

The fact that Richard was not delinquent in the payments required by the foreign decree did not prevent Victoria from resorting to URESL. It is the need for support from one who is under a duty to support that is the principal concern of the court of the responding state under UR-ESL. While a runaway or delinquent father is the typical situation, that is not the sine qua non for invocation of URESL. When the need becomes evident additional support may be sought and obtained under URESL notwithstanding defendant may have fully complied with previous orders of another court requiring him to make support payments.

Richard excepts to the amount of the award ($27.50 per week for each child, or a total of $55 per week or $2,860 per year) on two grounds: (1) that it shifts an unreasonable amount of support away from his second wife and his son, Richard, Jr., and provides a disproportionate amount of his income for the daughters, without a showing that the needs of the daughters are greater than those of Richard’s other dependents, and thereby the award constitutes an abuse of discretion, and (2) that Victoria’s testimony as to the daughters’ expenses and monetary needs is not credible.

(1) We have carefully reviewed the pleadings, testimony of Victoria, written statement of additional itemized needs of children, Victoria’s affidavit, the California decree, Richard’s and Victoria’s answers to interrogatories, Victoria’s answers to Richard’s additional interrogatories, and Richard’s answers to Victoria’s additional interrogatories, and have considered the appellate briefs carefully prepared by competent and industrious counsel and the oral arguments. We recognize that the determination of the amount of child support to be awarded is a matter of sound judicial discretion and that the trial court’s exercise of that discretion will not be set aside unless an abuse of discretion clearly appears. Brosam v. Brosam, 437 S.W.2d 694, 697 (Mo.App.1969). We understand the restrictions on the rule of deference referred to in Miller v. Higgins, 452 S.W.2d 121 (Mo.1970), and Meyers v. Smith, 375 S.W.2d 9, 13 (Mo. 1964), and the applicability of these restrictions in this case, in which the evidence is documentary. We have taken into consideration the age and health of the two children, their physical, social and cultural needs, Richard’s income ($15,200 in 1970; $15,667 in 1971; $16,367 in 1972 and $14,742 in 1973), the needs of Richard, Jr., who lives with his father (shown to be $600 a year), the income of Victoria (around $1,500 per year), and all other pertinent data. We need not recite the supportive evidence in detail for it has little if any precedential value. We are not pers.uaded that an award of $2,860 per year for the two children of Victoria is a disproportionate part of the income of a man with a wife and son to support on an income averaging $15,500, especially in the absence of evidence showing Richard’s total expenses and necessary outgo. On the whole case, reaching the same result arrived at by the trial court, we adopt and confirm the findings and judgment that Richard has a duty to support the two children of the marriage by the payment of $27.50 per week for each of them.

(2) Victoria’s credibility was brought into question by numerous inconsistencies between her affidavit and testimony on the one hand, and her answers to interrogatories on the other. Richard develops these inconsistencies, misstatements and exaggerations of the children’s needs in great detail. He concludes that because of them “there is no reason to believe that the children’s expenses and monetary needs are as great as Petitioner says they are.” Evidently the trial court took these facts into consideration in arriving at the amount of the award, for the court allowed Victoria only slightly more than 50% of the sum she claimed was required for the support of the children.. (Her claim was for $456 per month, or $5,472 on an annual basis; the award was for $55 per week, or $2,860 per year.) The same doubts which must have assailed the trial court have resulted in our discounting the claims of Victoria nearly 50%.

On Richard’s appeal we find no reason to reverse the judgment of the circuit court.

Victoria’s Appeal

Victoria appeals the circuit court’s refusal to make the support award retroactively effective as of the date Richard was served with process in Missouri. She contends that it is the universal practice in cases involving the custody or support of children to provide temporary child support, and that where temporary support is not sought or awarded it is appropriate for the trial court upon awarding permanent support to make the order retroactive to the filing of the petition; that the hearing was postponed because of Richard’s numerous dilatory motions and efforts to reopen discovery, and that Victoria and the children should not be penalized for the time delay caused by his litigious hyperactivity. The action of the court in denying this contention is affirmed. In the first place, an award of temporary support is based upon statute, and there is no provision in URESL for an award of temporary support. The 1958 Uniform Act, 9 U.L.A., Master Edition, after which Missouri’s original act was modeled, contained no such provision. Section 30 of the 1968 Model Act, 9 U.L.A., Master Edition, 874, provides that “ * * * The court shall hold a hearing and may issue a support order pendente lite,” but this provision of the Model Act of 1968 has not been adopted in Missouri. Lacking statutory authorization to make a temporary support order pendente lite, the circuit court has no power to accomplish the same result by making its final order retroactive. Furthermore, the making of temporary allowances of this kind, even when authorized by statute, is discretionary, and we find no abuse of discretion in disallowing retroactivity in this case, where the evidence shows that Richard was not in default in making payments of $100 per month to the date of the filing of this action. If after the commencement of these proceedings Richard defaulted in his payments Victoria has the remedy afforded by § 454.300 et seq., to have the California support judgment certified, confirmed and enforced to the extent of $100 per month for the period in question.

Victoria also appeals the circuit court’s refusal to allow her an attorney’s fee. She emphasizes Richard’s recourse to extraordinary, exhaustive and pointless procedural and discovery tactics and the barrage of procedural motions filed by him in a routine child support case, as a result of which the amount of legal effort necessary to prosecute the action was greatly swollen; that it was an abuse of discretion to require her to bear the substantial expense incurred in meeting Richard’s pretrial and posttrial maneuvers. Richard contends that the right to attorneys’ fees in a URESL proceeding is statutory and that URESL makes no provision for attorneys’ fees. Victoria contends that the obligation in proper cases to pay attorneys’ fees is incident to the duty of support, for which URESL provides a remedy-

Even if attorneys’ fees are allowable in URESL cases, an issue we do not reach, such allowances would be discretionary, and no abuse of discretion is present in this case. Section 454.180, 2. makes it the duty of the prosecuting attorney to prosecute the case. He assumed that duty in this case. Thus legal services without cost to Victoria were made available. Notwithstanding, Victoria, for no good reason shown, voluntarily elected to employ private counsel, evidently to check up on the prosecuting attorney. When the latter ascertained that private counsel had been employed he withdrew from the case. Under these circumstances there is no abuse of discretion in the circuit court’s ruling, the effect of which is that Victoria must pay for legal services rendered by the attorney of her own choice.

On Victoria’s appeal there is no reason to reverse or modify the judgment, which is affirmed in all respects.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . The broad language of § 454.020(6) recognizes the duty of support as including “any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or finai, whether incidental to a proceeding for divorce, legal separation, separate maintenance or otherwise.”


author: FLANIGAN, Judge.

text:
    Susan L. HEPPLER and Joseph C. Heppler, Appellants, v. W. S. ESTHER and Madra Esther, Respondents.
    No. 9837.
    Missouri Court of Appeals, Springfield District.
    Feb. 6, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 27, 1976.
    Application to Transfer Denied April 14,1976.

      Kenneth O. McCutcheon, Jr., Woolsey & Yarger, Versailles, for appellants.
    Morgan M. Moulder, Camdenton, for respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

On October 25, 1973, plaintiffs Susan L. Heppler and Joseph C. Heppler filed this non-jury action to cancel a collector’s deed to Lot 37 in a certain subdivision in Camden County, Missouri. On August 26, 1968, the collector sold the lot at a tax sale to the defendants for $200. On August 26, 1970, the collector executed and delivered the deed to the defendants. Plaintiffs held title prior to that delivery.

The petition alleged that the deed was void “because the consideration paid for same was so unconscionably inadequate . that it constituted a fraud.” The petition also alleged that the deed was recorded on August 27, 1970.

The answer, after denying certain portions of the petition, alleged that the action was barred by § 140.590 V.A.M.S. That statute, with exceptions not here involved, provides: “Any suit . . . against [a] tax purchaser ... for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes . shall be commenced within three years from the time of recording the tax deed, and not thereafter.”

The reply alleged that § 140.590 was no bar in that the deed was void on its face because the consideration was unconscionably inadequate.

Both sides offered evidence. The court found the issues in favor of the defendants and adjudged the deed to be a valid one. Plaintiffs appeal.

Plaintiffs’ first point is that the trial court should have set aside the deed because it was void on its face. Plaintiffs advance two independent grounds to support their claim of invalidity. The first ground is that the consideration was unconscionably inadequate. The second ground is that the deed failed to recite the years “of non-payment of taxes, costs and charges.” Review of the second ground discloses its merit and nullifies the deed. Thus the soundness of the first ground escapes appellate scrutiny.

Section 140.460 V.A.M.S. provides for the execution of a tax deed by the county collector. That statute, in addition to making other requirements including witnessing by the county clerk, provides in relevant part: “Such deed shall be in the following form, as nearly as the nature of the case will admit, namely . . . ” The statute then sets forth the form of the deed, which includes the following: “. and which lot was sold to_for the sum of _ dollars and _ cents, being the amount due on the following tracts or lots of land, returned delinquent in the name of G. H., for nonpayment of taxes, costs and charges for the year_ . . .”

The instant deed was void for the reason that the space following the word “year” was left blank.

“When the statute prescribes the particular form to be observed in the execution of the deed, that form becomes substance and must be strictly pursued or the deed will be void.” Williams v. McLanahan, 67 Mo. 499, 501 (1878).
“When the statute provides that the tax deed shall be substantially in the form prescribed, though such form need not be literally, it must be substantially, followed. While it is not necessary, in such cases, to make the recitals in the words employed in the prescribed form, it is necessary that the recitals, required in such form, be substantially made and, if not so made, such omission is fatal to the deed.” Hopkins v. Scott, 86 Mo. 140, 144 (1885).

Hopkins also holds that the failure of the deed to contain the statutory recital is not cured by the fact that other required recitals contained in the deed support an inference of the fact which the missing recital should have stated. So, here, the legislature has required that a certain fact be stated “as nearly as the nature of the case will admit,” § 140.460 V.A.M.S., and this court is not authorized to eliminate from the statute a recital which the legislature has declared to be a necessary ingredient of a tax deed. As Hopkins points but, it must be presumed that the legislature deemed all the recitals, which it required to be set out, material.

Although the Missouri statutes pertaining to the collection of delinquent real estate taxes have undergone revision, including the enactment of the Jones-Munger Law in 1933, the foregoing principles retain their vitality.

“Under the Jones-Munger Act, the proceedings preliminary to and the sale of property by the Collector for delinquent taxes is administrative in character; such preliminary proceedings and sale are non judicial and ex parte in their nature. No court guides the Collector or his proceedings, and he proceeds upon his own advice . [I]n his preparation and execution of . his deed the Collector must strictly follow and observe the admonition of the statutes in this summary process of taking away from the citizen the title to the latter’s land. In this case the Collector did not observe the statutes. And in such case equity will afford relief.” Costello v. City of St. Louis, 262 S.W.2d 591, 596[9] (Mo. 1953).

The collector’s deed did not meet the requirements of § 140.460 V.A.M.S. and it was therefore void on its face. Jamison v. Galloway, 254 S.W. 101, 102[1] (Mo.1923); Klorner v. Nunn, 318 S.W.2d 241, 245[1] (Mo.1958) and authorities there cited.

Defendants seek to counter plaintiffs’ attack upon the deed in two ways.

First, defendants say that the tax deed did conform with the statute “in every respect.” Defendants predicate this argument on the contents of their Exhibit A, which was the collector’s deed. In Exhibit A, the blank in question was filled in; that is, the years of non-payment were shown.

The flaw in defendants’ position is that Exhibit A was recorded twice. It was first recorded on August 27,1970, with the blank left blank (that form of the deed is plaintiffs’ Exhibit 3). It was rerecorded on September 1, 1970, with the blank filled in; that is, the years of non-payment were shown (that form of the deed is plaintiffs’ Exhibit 2).

The circumstances surrounding the filling in of the blank prior to the deed’s re-recor-dation are somewhat vague. The collector; Floy Hanks, who was a witness for defendants, testified that he signed the deed only once and acknowledged it only once. “I never changed the deed.” He also testified that on occasion he had given correction deeds but that he had never changed a deed. If the deed had been changed, he said, it was changed by someone else.

Defendant Esther testified that “there was something wrong with the first deed” and that he had it recorded twice because “there may have been an omission and so that was corrected. ... I took it back to the recorder.” This testimony was then elicited.

“Q. Well, did he correct it for you?
A. He referred to Mr. Hanks and they corrected it or did whatever they needed to do.
Q. Did you observe what it was that they did?
A. No, I was probably there but—
Q. Did you observe when Mr. Hanks gave you a new deed?
A. No.
Q. It was the same deed that you got back?
A. I presume so.
Q. It was after that that you recorded the deed again?
A. I presume so.”

It is clear from the examination of defendants’ Exhibit A that the blank was filled in and the instrument was re-recorded but it was not, in its amended form, re-executed by the collector or re-witnessed by the county clerk or re-acknowledged.

The filling in of the blank and the re-rec-ordation of the deed did not give it life.

In Duff v. Neilson, 90 Mo. 93, 2 S.W. 222 (1886), a tax deed, when first recorded, was held void on its face because of an omission. At p. 223 the court said: “And the complexion of this case is not altered for the better by reason of the fact that, when the omission of the date was discovered, the omission was supplied and the deed re-recorded, inasmuch as it does not appear who supplied the omission; nor does it appear that if the collector did make the correction, that he re-acknowledged the deed before it was again put to record. If, as already seen, the deed was void without the recital of the date, etc., so, also, was the acknowledgment of such a deed; and therefore the only way to correct the deed, so far as mere form was concerned, was for the collector either to make and acknowledge a new deed out and out, or else to insert the date, etc., in the old deed, and then re-acknowledge it. But this was not done. The defendant, testifying on this point, says: ‘After the deed was recorded, I noticed the blank space in the deed. I then presented it to the collector and clerk of the court, and asked to have the blank filled. The clerk looked at the record of the sale and the date of the execution, and we then put the date in the deed. Afterwards I again filed the deed for record.’ ”

Second, defendants say that this attack on the deed was not pleaded in plaintiffs’ petition and was not raised in their motion for new trial.

Although the petition made no mention of this defect, that issue was tried by the consent of the parties. Plaintiffs’ Exhibit 2, the deed in its original form, and plaintiffs’ Exhibit 3, the deed in its re-recorded form, were admitted into evidence without objection and there was testimony concerning them.

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings.” Rule 55.33(b) V.A.M.R. Since this was a non-jury case a motion for new trial was not necessary to preserve any matter for appellate review, Rule 73.-01(2)(b) V.A.M.R., and the point may be raised on appeal even if it was not mentioned in the motion for new trial. Monia v. Oberle, 530 S.W.2d 452, 454[2, 3] (Mo. App.1976) and authorities there cited.

Since the tax deed was void on its face, it did not start the running of the special statute of limitations of three years contained in § 140.590 V.A.M.S. Pettus v. City of St. Louis, 328 S.W.2d 636, 639[2] (Mo.1959). That statute, pleaded in the answer, does not aid defendants.

The petition, in compliance with § 140.600 V.A.M.S., contained an offer to refund to the defendants all taxes paid by them, together with interest thereon from the date of payment of such taxes to the date of the judgment. Paragraph 3 of that statute requires the court, in entering the judgment in favor of plaintiffs, to “find and adjudge by its decree or judgment the amount of money due to the (defendants) . on account of taxes or interest thereon paid as aforesaid by (defendants).”

The judgment is reversed and the cause remanded with directions to enter a judgment setting aside defendants’ tax deed and vesting title in plaintiffs, conditioned upon a refund to defendants of the taxes and interest and costs in connection therewith as provided in § 140.600 V.A.M.S. Rudd v. Scott, 351 Mo. 1206, 175 S.W.2d 774, 776 (1943). It is so ordered.

All concur.


author: DIXON, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Edwin L. SCOTT, Defendant-Appellant.
    No. KCD 27606.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.
    Motion for Rehearing and/or Transfer Denied March 3, 1976.
    Application to Transfer Denied April 14,1976.

      Henry H. Fox, Jr., James N. Cameron, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Defendant appeals a conviction of robbery in the first degree. He was sentenced by the court under the Second Offender Act to 35 years imprisonment. Defendant urges error in overruling a motion to suppress identification testimony, and error in the verdict-directing instruction. The judgment is affirmed.

Since no issue is made with respect to the submissibility of the case, a short statement of the facts will suffice. On January 18, 1974, defendant entered Harold’s Furniture Store. A clerk, Bertha Graves, waited on him, and as she displayed to him the end tables he had asked to see, they traversed the length of the well-lighted store. She watched him and saw his face at a distance of no more than three feet. At the rear of the store, she turned away for a moment, and she heard a click, defendant then saying, “this is a hold up.” When Graves asked the defendant, “is this for real?” defendant put a “gun to her head” and said, “What do you think, bitch, get on up there and get the money.” They then again traversed the length of the store to the front where defendant took $100 from a drawer. They then returned to the rear of the store where the defendant locked Graves in a bathroom and escaped. Ten days later, Mrs. Graves and her husband stopped at a service station. While in the station, Mrs. Graves saw the defendant standing next to a gasoline pump. She immediately recognized him as the man who had robbed the furniture store. As their eyes met, the •defendant stepped back behind a pump, and Mrs. Graves “scooted” down in the seat. When her husband returned to the car, Mrs. Graves told him of her recognition of the defendant. At about this time, the defendant entered his car and “backed out real fast.” Mr. Graves pursued the defendant and obtained a license number. They gave the license number to Mrs. Graves’s boss at the furniture store, who reported it to the police. Later that evening, Mrs. Graves was taken to police headquarters for the purpose of attending a lineup. While she was waiting outside an office, the defendant, in the custody of a police officer, walked into the area where she was. Mrs. Graves instantly recognized him as the man who had robbed her and threw her hands over her face “to try to keep him from seeing me.” After the confrontation, Mrs. Graves was sent home without viewing a lineup.

Defendant filed a pre-trial motion to suppress any evidence of identification made prior to trial, as well as in-court identification on the ground that the confrontation had been unduly suggestive. A hearing was held, and the motion was overruled. At trial, Mrs. Graves testified without objection that she was positive the defendant was the man who had robbed her, that he was the man she had seen in the gas station, and that he was the man she had seen in the hallway at the police station. Defendant’s first point is that the trial court erred in overruling his motion to suppress Mrs. Graves’s identification testimony because the accidental confrontation at the police station was so suggestive and conducive to mistaken identification that appellant was denied due process of law.

It is apparent that this point is not properly before this court for review because defendant failed to object to Bertha Graves’s identification testimony at the trial. For a defendant to preserve such a charge of error, he must object to the challenged testimony when proffered at trial. State v. Franklin, 448 S.W.2d 583 (Mo. 1970); State v. Brownridge, 459 S.W.2d 317 (Mo.1970); State v. Ward, 518 S.W.2d 333 (Mo.App.1975); State v. Brown, 527 S.W.2d 15 (Mo.App.1975); State v. Bishop, 529 S.W.2d 165 (Mo.App.1975); and State v. McFadden, 530 S.W.2d 440 (Mo.App.1975).

Although the point is not properly before the court for routine review, the defendant attempts to raise the spectre of manifest injustice by claiming that in overruling his motion to suppress, the court committed a plain error prejudicial to his rights. On its face, this claim is without merit because the facts simply fail to demonstrate that the trial court erred in any way by overruling the motion.

Considering first the admission in evidence of the testimony of Bertha Graves and the officer as to the confrontation and identification at the police station, a review of the evidence adduced on the motion to suppress demonstrates that there was nothing suggestive about the accidental confrontation between the witness and the defendant. ' The witness was apprehensive when requested to come to the police headquarters for the lineup. She was assured that she would not have to personally confront the suspect but “would be in the audience.” The “suggestion” was that she would not have anticipated the confrontation that occurred. There was nothing to suggest to her that the defendant would be brought past her in the hallway. Her identification was spontaneous and without any shadow of suggestion.

The facts here are markedly similar to those found in State v. Summers, 445 S.W.2d 369 (Mo.1969), where an accused was inadvertently brought into the presence of a witness who spontaneously identified him. The language of the Supreme Court is apropos, l.c. 371:

“First, on the record before us, there was nothing staged, contrived or guided about the confrontation or identification which occurred when the detectives brought defendant with them into the business premises of the Housing Authority. It was only by coincidence the police had the man with them and that Miss Gatewood happened to see and recognize him as the robber. Assume she had been walking down the street and happened to see the defendant in the police car with the detectives, waiting at a traffic signal, recognized him and then informed the police. There is no difference in principle. We do not have here a ‘ * * * confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence * * V ”

The other branch of the motion and defendant’s argument is that the confrontation at the police station tainted the in-court identification. Assuming arguendo that the confrontation between defendant and the victim was suggestive, it is simply not error for a trial court to permit in-court identification if independent grounds for the in-court identification exist. State v. Smith, 526 S.W.2d 957 (Mo.App.1975), held that although it was suggestive for the police to take a suspect to the victim’s apartment for confrontation and identification, the witness’s in-court identification was based upon substantial independent grounds and was not tainted by the pre-trial confrontation. In the case at bar, it is clear that Bertha Graves had an ample independent basis for her very positive in-court identification. She testified that she had a clear and continuous “look” at the defendant as, within three feet of one another, they traversed the length of the store before the robbery. Moreover, she watched the defendant closely during the robbery and was able to accurately describe his features, his clothing, and his actions. It is clear from the facts that after the robbery started, she and defendant traversed the store twice again, once to get to the front to get the cash, and once again for the robber to lock her in the restroom. Given this ample basis for in-court identification, it is clear that defendant’s first point is without merit.

Defendant’s second assignment of error is that Instruction 5 is erroneous as not supported by the evidence. The instruction required a finding that the money stolen belonged to one Harold Trammell and was taken with intent to deprive him of his property, but the evidence did not prove Trammell owned the money. The instruction is MAI-CR 7.60, but the directions of the pattern instructions were not followed in the third paragraph by inserting the name of the victim. Instead, the name of the purported owner was inserted. Generally, an instruction broader than the evidence or at variance with the charge is improper. But the error may be harmless when a defendant’s cause is not prejudiced.

In State v. Batchelor, 418 S.W.2d 929 (Mo.1967), the information charged ownership in Eisberg, d/b/a Medical Arts Pharmacy and robbery committed upon an employee Rogers. The instruction required a finding of robbery of Rogers and failed to require any finding as to Eisberg, d/b/a Medical Arts Pharmacy. Nevertheless, the instruction was held sufficient because it accomplished its purpose — to insure a finding that ownership was not in the accused, that the accused did not convert his own property, that he had notice of the offense and that subsequent prosecution would be barred (l.c. 930-931).

In State v. Tucker, 333 Mo. 171, 62 S.W.2d 453 (1933), there was no evidence that more than defendant and one other person were connected with a burglary and larceny. The instruction said “and another person or persons.” There was no prejudice in the words “or persons” “even though these words made the instructions broader than the evidence” because it was indisputable that defendant and one other person were connected. So also, where an information charged only the defendant with robbery, but an instruction called for a finding that defendant and a named individual acted jointly, it was not material that no evidence established the named individual as the accomplice. Lack of evidence of a specific person’s involvement as the joint participant was harmless error. State v. Ramsey, 477 S.W.2d 88 (Mo.1972).

In State v. Davis, 482 S.W.2d 486 (Mo. 1972),- the information charged a purse was taken from Debra, but the proof showed that at the time of the robbery Jessie was in possession of and surrendered the purse. The instructions required a finding that the purse was taken from Jessie. Since the instructions also called for a finding of taking from the presence of Debra, no prejudice resulted. “The jury was required to find the essential taking from the presence of Debra, along with the other elements of violence and putting in fear. The required additional finding of taking from the person of Jessie was surplusage, having no bearing on the proof of the offense charged and in no manner burdening the defense of the cause.” (l.c. 488).

In the instant case, there was no proof that Harold’s Furniture was the business of Harold Trammell. Instruction 5 was in this respect broader than the evidence. However, there was no prejudice to defendant’s cause. There was proof that the money was taken from Harold’s Furniture and that the money was taken from the person in charge, Bertha Graves, against her will.

The location of the money in the drawer of a desk upon the premises of Harold’s Furniture is sufficient to permit the inference that it belonged to Harold’s Furniture. State v. Harris, 452 S.W.2d 577 (Mo.1970). That inference in addition to the manner of taking provides proof that the defendant was not the owner. The instruction, therefore, insured a finding that ownership was not in the accused, that he did not convert his own property, that he had notice of the offense charged and that subsequent prosecution would be barred. That is the rationale for requiring proper instructions. State v. Batchelor, supra. Instruction 5 accomplished that purpose in spite of the surplus words “Harold Tram-mell, d/b/a.” This additional language in the instruction was broader than the evidence, but like the additional language in Tucker and Ramsey, the error was harmless. As in Davis, the essential elements of the offense were proved, and defendant’s defense was not burdened. The surplus words in instruction 5 are not prejudicial and do not require reversal.

The second branch of defendant’s attack on the instruction is, as it is understood, a contention that since there was no proof that the property belonged to Harold Trammell, there could be no intent on the part of the defendant to deprive Trammell of the property. The argument assumes, as the defendant boldly asserts, that proof of ownership is an essential element of robbery. As shown by the cases cited, the fact is otherwise. What is required is the intent to take from another property in which the “taker” has no right. As shown above, the inference is clear the defendant was not taking his own property, but that of another with intent to deprive the property right of another. Such is sufficient to submit the ultimate fact of defendant’s criminal intent. The submission of the fact of the property’s ownership was surplusage. The instruction read without the words, “Harold Trammell d/b/a,” would have been totally supported by the evidence and contained all the essential elements of the offense.

The judgment is affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Octaviano J. PEREZ, Appellant.
    No. KCD 27748.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.
    Motion for Rehearing and/or Transfer Denied March 3, 1976.
    Application to Transfer Denied April 14,1976.
    Robert G. Duncan and William E. Shull, Kansas City, for appellant; Duncan & Russell, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

Appellant was convicted by the verdict of a jury in a second trial of the commission of the offenses of the sale of the controlled substances, secobarbital and pentobarbital, as charged in separate counts, to James W. Eapman and Robert T. Lawton, respectively. The jury was unable to agree upon the punishment, and the court therefore sentenced appellant to seven years imprisonment in the Department of Corrections upon each count of the indictment, to run concurrently.

Two points are made on this appeal. First, that because there was a variance in the charges and proof in the first trial (the ■charge in Count I was a sale of secobarbital to Robert T. Lawton, and in Count II, a sale of pentobarbital to James W. Eapman, when the proof showed the Count I sale was made to Eapman and the Count II sale was made to Lawton), a new trial was granted upon the sustaining of appellant’s motion, therefore, the new trial, as claimed by appellant, subjected him to double jeopardy. Secondly, appellant claims that his two requested instructions on entrapment in the sales of the controlled substances as to each count should have been given because they were supported by the evidence.

Lawton was a Special Agent for the Federal Drug Enforcement Administration on May 21, 1973. His duties were to make undercover purchases of narcotics, make arrests and to do surveillance. In order to make an undercover purchase of drugs or narcotics he would be introduced to a dealer by a “cooperating individual” who knew the dealer. At about 5:30 p.m., on May 21, 1973, Lawton met appellant in Apartment No. 11, 16 West 37th Street, Kansas City, Missouri. Lawton and agent Eapman had made prior arrangements with the cooperating individual, Bob Smith, to be at the apartment at that time. When Lawton knocked at the apartment door, Smith opened it and Lawton walked in. There were three people in the room, Smith, appellant and one Kevin Herron. Eapman was conducting a surveillance of the apartment building at the time. Lawton recognized appellant from having seen him about a year before when appellant was working as a cooperating individual for another agent, Mike Henkel, of the Drug Enforcement Administration, and Lawton “conducted surveillance on one of the deals that Octaviano Perez attempted to do.” He may have seen appellant one time after that. Lawton took Smith back into the kitchen and told him he knew appellant, and to go outside and tell Agent Eapman that if he did not know appellant to come upstairs. Before Smith left, he told appellant and Herron that Lawton wanted 100 “yellows” or Nembutals, and on Lawton sitting down, Herron counted out 100 yellow capsules, put them in a Marlboro cigarette box and handed them to Lawton. The latter asked them how much money they wanted, and appellant told him $35, so Lawton handed that amount to appellant. In a minute or two Smith and Eapman came in and Lawton told Eapman he had made a “buy”. They left and went to a filling station where Eapman called the Police Department. It was then decided that they would attempt to make a second purchase of drugs. Accordingly, about 6:30 p.m. of the same day, the three went back to the apartment and met appellant and Herron coming out. Eapman engaged appellant in a conversation and the five went back into the apartment where appellant took a large plastic bottle out of his pants pocket, handed it to Herron and told him to count out 100 “reds”, or Seconals. Herron did so, handed them to Eapman who, in turn, handed him $35. Herron then handed the money to appellant.

Appellant, in addition to having been a cooperating individual for Mike Henkel, had an “SL” number with the federal agency, which number was given informers or confidential employees for their use so their names could be concealed. Persons who are cooperating individuals were not sent out on their own either to deal or purchase drugs for themselves — the agency policy prohibited that, and if it happened a case would be made on the individual. Appellant was arrested some seven months after the sale because the agents did not want to reveal the “cover” for the cooperating individual, Smith.

Agent Eapman was employed by the Narcotics Section of the Kansas City Police Department, but was on loan to the federal agency. He corroborated Lawton’s testimony of the sale by appellant of pentobarbital. After they left the apartment, Eapman gave appellant and Herron a ride to the Commodore Hotel, during which appellant told Eapman he could get any type of pills he wanted, barbituates and amphetamines, and that he sometimes had heroin. Eap-man was unaware, on May 21, 1973, that appellant had worked as an informer for the Kansas City Police Department, or other agencies, but he did learn that later.

Appellant testified that he talked to Mike Henkel of the Drug Enforcement Agency, and in working for him he tried twice to set up deals, sales, and was successful one time. In September, 1972, appellant started working as an informer for Frank Etzenhouser of the Tactical Unit, Kansas City, Missouri Police Department, having been approached by Etzenhouser after being placed on probation from a plea of guilty to uttering a bad check. As an informer, appellant was to get information and was instructed, according to his testimony: “A. I was to get information on any burglaries or robberies that might be taking place, so the police could be there and apprehend them at the time of the crime, and any other information, I could get. Q. In other words, you were to tell them in advance of crimes that were going to be committed? A. Yes. Q. How would you find out that information?

A. By running around and mixing with different people, associating with them. Q. All right. And did you pretend to be something? A. I pretended to be a drug dealer, myself. Q. A drug dealer? A. Yes. Q. How long did that continue, you acting as a — or pretending to be a drug agent? A. I quit in about, I think it was July of ’73.” Appellant participated in two particular burglaries, advising the police department in advance thereof. On July 10, 1973, appellant was charged with burglary, and on June 26, 1973 and May 29, 1973, he was charged with a narcotics violation. • Etzen-houser interceded for appellant and these charges were dismissed, as well as two other burglary charges. As to the instant charges, appellant testified that he met Bob Smith, whom he knew, in Volker Park and Smith asked him if he had anything for sale. “He needed some downers.” Smith told appellant that the people he needed pills for were from Chicago. “They was one of the criminals up there.” Appellant got pills from an associate of his, and told Etzenhouser about having some people from Chicago, but did not tell him about securing the pills from his associate. It was, according to appellant, his intent to set up the persons from Chicago so they could be arrested, but he had no further contact with them. One of the conditions of appellant’s probation was that he was not to associate with drugs, but he did continue to participate because, according to him, he was told by Etzenhouser that he would be under the protection of the Police Department. As a result of the present charges, appellant’s parole was revoked and he began serving five years imprisonment for the check uttering charge.

In rebuttal, Frank D. Etzenhouser testified that in May, 1973, he was attached to the Tactical Unit, Special Operations Division of the Kansas City Police Department. The unit was then “working the most commonly known criminals, burglary and robbery subjects in Kansas City.” Etzenhouser had known appellant since about 1966 or 1967, but the first occasion he had occasion to use appellant as an informant was in February, 1973, when he was informed by Etzenhouser that a burglary was about to occur. In January of that year appellant was asked by Etzenhouser if he would like to be an informant and make some money, to which he agreed. Etzenhouser told appellant that if he heard any information on burglars, robbers or narcotics to pass the information to him. Etzenhouser told appellant that just because he was informing did not give him the right to go commit crimes, and that if he was involved in a crime himself, Etzenhouser could not help him. “I instructed him not to go on a burglary, you know. If he was to inform— if someone came to him, and told him a burglary was going to occur, for him not to go on the burglary, himself to be involved.” However, in May, 1973, appellant was involved in a burglary, going inside the business, and Etzenhouser released him at the scene of the burglary. Later that night, appellant came by the police unit, received his informer’s fee and Etzenhouser “instructed him that he was no longer an informant of mine. I was to sever all relations with him for going on the burglary.” After that occurrence, appellant did not act as an informer for Etzenhouser, who denied that appellant had called him about the Chicago criminals.

Appellant’s first point is overruled because there was no final judgment in the case and because of the rule in this state that jeopardy does not attach where a new trial is had upon the sustaining of a motion therefor. State v. Patton, 308 S.W.2d 641, 644[9] (Mo. banc 1958), and cases and authority cited. See particularly the therein cited case of State v. Austin, 318 Mo. 859, 300 S.W. 1083, 1084[1—3] (Mo.1927), where the claimed error was identical to that here — a fatal variance between the charge and the proof, and the court said, loe. cit. 1085, “Moreover, notwithstanding the trial court sustained the motion for new trial on the ground that it should have directed a verdict of acquittal, the defendant, in moving and requesting a new trial, waived the right to plead former jeopardy. (Citing cases and authority.)” The rule still obtains. Kansas City v. Bott, 509 S.W.2d 42, 46[2, 3] (Mo. banc 1974); State v. Crane, 420 S.W.2d 309, 311 (Mo.1967). Appellant’s cited cases of Ashe v. Swenson, 397 U.S. 436 (1970); and Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971), do not aid him for in each there was a judgment of acquittal on determinative issues sought to be presented on trial as to other victims.

“Entrapment has been defined as the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him. It has also been defined as the conception and planning of an offense by an officer and the procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.” 21 Am. Jur.2d Criminal Law, § 143, p. 211. Here, there is no evidence, even from appellant’s testimony, that officer Etzenhouser lured or induced appellant to commit the offense of selling prohibited substances in order to prosecute him therefor. There is no evidence that at the time of the sales officers Lawton and Eapman had any knowledge that appellant either then, or had in the past, acted as an informer for Etzenhouser. All that appears is that appellant pretended to be a seller of drugs. There is no evidence that he was authorized by anyone to sell them in connection with his employment as an informer. Evidence is here lacking to show the classic pattern of entrapment — the implanting in the mind of appellant a criminal intent to do a prohibited act for the purpose of prosecuting him. No instructions with reference to the two charges was therefore required on the subject of entrapment. All that appellant’s testimony injected into the case was his own lack of criminal intent which was a question for the jury to determine under the state’s verdict directing instructions, and appellant’s two given instructions submitting that if the jury found beyond a reasonable doubt that he did not intend to sell the controlled substances, it must find him not guilty under each count. In the posture presented by the evidence, his lack of criminal intent was all that was required to be submitted as converses to the state’s verdict directing instructions. Obviously, the jury found against appellant on those issues. Compare the annotation, “Criminal Responsibility of One Who Acts as a Decoy to Detect Commission of Crime,” 120 ALR 1506.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Martsay L. BOLDER, Appellant.
    No. KCD27811.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.
    Motion for Rehearing and/or Transfer Denied March 3, 1976.
    Application to Transfer Denied April 14,1976.

      David Wm. Kierst, Jr., Donald L. Cain, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

The indictment in this ease charged defendant with first degree murder of Louis Donovan. The jury found him guilty and fixed his punishment at life imprisonment. Defendant’s sole point on appeal is his contention that the admission of certain evidence violated his constitutional rights of due process and confrontation of witnesses, in that the evidence in question consisted of hearsay. Only so much of the evidence will be mentioned as bears on this one limited issue.

At about 9:00 p: m. on Thanksgiving evening of 1973, Donovan was in his apartment having a Thanksgiving day dinner with his family and friends, when footsteps were heard in the hall. These footsteps were heard to go up the stairway and then come back down. There was a knock on the door, Donovan went to answer it and opened it about a foot. No one in the apartment could see who was at the door. Someone asked whether Rosie was there and Donovan answered “No.” Some more things were said, and then Donovan was heard to say, “Oh, no,” and was observed to try to close the door against some resistance. A shot was fired, Donovan turned and said, “They got me, right here,” and fell over the coffee table. He died from massive hemorrhage into both chest cavities caused by the gunshot wound he sustained.

On that same night, a group of young people met in defendant’s house. This group consisted of defendant, Clinton Handley, Willie Dilworth, Tanzaneeka Walker, Kathleen Hayes and Christine Hayes. While they were gathered together, defendant had a gun and he and Hand-ley acted out a pantomime. Defendant was over by the door and acted “like he was kicking a door and acting like he was pulling a gun from his side.” Handley had a cigarette in his hand and flipped it at one of the girls and “they all started laughing.” In connection' with this pantomime, some statements by the young men were also made. Christine Hayes testified that it was at this time .that defendant stated, “If the man hadn’t flipped a cigarette in my face, I wouldn’t have shot him.” Defendant does not raise any question on this appeal concerning that admission attributed to him. His only complaint refers to other statements attributed to Handley and as having been made on this occasion.

The comments by Handley were testified to by Walker and Kathleen Hayes. Walker testified that she heard Handley tell defendant that if it had been him that the old man had flipped a cigarette at, he would have done his best to blow his head off; to which defendant said “Yeah, man” and started laughing. Kathleen Hayes testified that as part of this episode Handley said, “Martsay just let the dude have it.” Defendant seeks to brand the admission of this testimony by Walker and Kathleen Hayes as an invasion of his constitutional rights.

The constitutional claim adds nothing nor does it in any way change the real nature of the legal issue. That issue is whether the testimony in question should have been excluded on the ground that Handley was not present in court and subject to cross-examination. If so, the exclusion would be required because of the hearsay rule, regardless of constitutional rights. On the other hand, if the testimony is admissible under any recognized exception to the hearsay rule, then “neither the objection that it is hearsay nor the objection that the accused is denied the right of confrontation and cross-examination is valid.” State v. Spica, 389 S.W.2d 35, 46 (Mo. 1965).

Addressing therefore the matter of hearsay, the issue is controlled here by the exception permitting hearsay evidence of extrajudicial admissions. The statements in question by Handley were made in defendant’s presence and in the context of joint play-acting which was incriminating to the extent of indicating that defendant had perpetrated a shooting of someone in a scuffle near a door. If Handley’s statements further implicating defendant were not true, defendant would normally have denied them, and his silence can be considered an implied admission. As stated in 80 A.L.R. 1235,1236: “. . . crystallization of the experience of men shows it to be contrary to their nature and habits to permit statements, tending to connect them with actions for which they may suffer punishment, to be made in their presence without objection or denial by them, unless they are repressed by the fact that the statement is true. Consequently, silence under accusation is some evidence from which the jury may infer that the accused acquiesced in the statement and admitted its truth . . .” Defendant’s mere silence would have made Handley’s statements admissible. State v. Thomas, 440 S.W.2d 467 (Mo.1969). See also: State v. Butler, 512 S.W.2d 466 (Mo.App.1974); State v. Hornbeck, 492 S.W.2d 802 (Mo. 1973). To his bare silence must here be added the further facts that the two were performing a joint pantomime, that defendant affirmatively answered “Yeah, man” to one of Handley’s statements, and that defendant himself made a direct, express admission that he had shot a man.

Affirmed.

All concur.