author: MORGAN, Judge. SEILER, Chief Justice,

text:
    STATE of Missouri, Appellant, v. Billy DUREN, Respondent.
    No. 59763.
    Supreme Court of Missouri, En Banc.
    March 15, 1977.

      Preston Dean, Asst. Atty. Gen., Jefferson City, for appellant.
    Edward H. Stratemeier, Kansas City, for respondent.
   MORGAN, Judge.

On April 30, 1976, a grand jury returned an indictment wherein respondent was charged with “capital” murder under the provisions of §§ 559.005 and 559.009, RSMo Supp. 1975. Thereafter, the trial court found that said statutes authorized imposition of the death penalty in a manner viola-tive of the Eighth and Fourteenth Amendments to the United States Constitution and thus declared the same to be unconstitutional. Upon respondent’s motion, the court dismissed the indictment. Pursuant to Rule 28.04, the state appealed to this court which has exclusive jurisdiction by virtue of § 3 of Article 5 of the Missouri Constitution.

Prior to enactment of the statutes above noted and now herein challenged, the definition of illegal homicides and the penalties prescribed therefor were, in this state, as follows:

559.010. Murder in the first degree
Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.
559.020. Murder in the second degree
All other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree.
559.030. Trials for murder, verdict and punishment
Upon the trial of an indictment for murder in the first degree, the jury must inquire, and by their verdict ascertain, under the instructions of the court, whether the defendant be guilty of murder in the first or second degree; and persons convicted of murder in the first degree shall suffer death, or be punished by imprisonment in the penitentiary during their natural lives; those convicted of murder in the second degree shall be punished by imprisonment in the penitentiary not less than ten years. (Emphasis added.)

As shown by the italicized portion of the last section quoted, alternative penalties of death or life imprisonment were authorized; and, subject to the discretion of the sentencing authority, either could be assessed against a person convicted of first degree murder. This court, historically, approved of such a procedure. For instance, as said in Duisen v. State, 441 S.W.2d 688 (Mo. banc 1969) at page 692: “Many years ago the legislative branch declared the policy of this state to be that for the offense of first degree murder the punishment shall be either life imprisonment or death. That policy entrusts absolute discretion in a jury to make the decision whether the punishment assessed shall be one or the other, without standards or rules to guide the jury in making that decision. This policy has been in effect well over a century.” More recently, this court in State v. Coleman, 460 S.W.2d 719 (Mo. banc 1970), reaffirmed its approval of such statutorily authorized discretion, as shown at page 730: “The decision to assess the death penalty is certain to be a most unpleasant duty for members of a jury and it is safe to assume that it is never done unless every juror is thoroughly convinced that nothing short of that would accomplish the ends of justice. We have the view that juries can be confidently trusted to exercise a wise discretion in determining when the death penalty should be imposed and that standards to guide the •jurors are not necessary and would probably not be helpful.”

However, the United States Supreme Court on June 29, 1972, handed down its decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, wherein it rejected imposition of the death penalty in each of three cases involving discretionary alternative punishments. The General Assembly of Missouri, as did many other legislative bodies, construed the holding in Fur-man as proscribing discretionary procedures and responded thereto by enacting a mandatory death penalty for offenses classified as “capital” murder — which, in fact, are those offenses formerly constituting first degree murder with felony murders removed. Consistent therewith, those sections heretofore quoted were repealed and the following were enacted:

559.005. Capital murder defined
A person is guilty of capital murder if he unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of a human being. 559.007. First degree murder defined The unlawful killing of a human being when committed without a premeditated intent to cause the death of a particular individual but when committed in the perpetration of or in the attempt to perpetrate arson, rapé, robbery, burglary, or kidnapping is murder in the first degree.
559.009. Degree of homicide, jury to determine — punishments for various degrees
1. Upon the trial of an indictment or information for capital murder, the jury must inquire, under such instructions as the court finds are justified by the evidence, and by their verdict ascertain, whether the defendant is guilty of capital murder, murder in the first degree, murder in the second degree, or manslaughter.
2. Upon the trial of an indictment or information for murder in the first degree, the jury must inquire under such instructions as the court finds are justified by the evidence, and by their verdict ascertain, whether the defendant is guilty of murder in the first degree, murder in the second degree, or manslaughter.
3. Persons convicted of capital murder shall be punished by death. Persons convicted of murder in the first degree shall be punished by imprisonment by the division of corrections during their natural lives. Persons convicted of murder in the second degree shall be punished by imprisonment by the division of corrections for a term of not less than ten years. (Emphasis added.)

On July 2, 1976, the United States Supreme Court handed down five opinions which seek to explain, among other things, that the court in Furman did not reject “discretion” but only that “unbridled discretion” which created a substantial risk that the death penalty would be inflicted in an arbitrary and capricious manner — or, in other words, “freakishly imposed.” Therein, the concerns expressed in Furman are articulated and the crucial thread running throughout each case is the mandate that a decision to take or spare a human life must be predicated on a “suitably directed” discretion. They are: Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974.

The court did not, in the five cases noted, establish specific standards for imposition of the death penalty but considered separately the distinctive statutory procedures found in each. As said in Gregg (428 U.S., pp. 193, 194 and 195, 96 S.Ct., p. 2934):

While some have suggested that standards to guide a capital jury’s sentencing deliberations are impossible to formulate, the fact is that such standards have been developed. When the drafters of the Model Penal Code faced this problem, they concluded ‘that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed, and weighed against each other, when they are presented in a concrete case.’ Model Penal Code § 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959) (emphasis original). [Text thereof is quoted in footnote No. 44]. While such standards are by necessity somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood that it will impose a sentence that fairly can be called capricious or arbitrary. Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.
In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.
We do not intend to suggest that only the above-described procedures would be permissible under Furman or that the sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital-sentencing systems capable of meeting Furman’s constitutional concerns.

Of more immediate interest is the court’s holding in Woodson wherein a post-Furman enacted mandatory death penalty statute was rejected. As said therein (428 U.S. pp. 303, 304, 96 S.Ct. p. 2991):

North Carolina’s mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die. And there is no way under the North Carolina law for the judiciary to check arbitrary and capricious exercise of that power through a review of death sentences. Instead of rationalizing the sentencing process, a mandatory scheme may well exacerbate the problem identified in Furman by resting the penalty determination on the particular jury’s willingness to act lawlessly. While a mandatory death penalty statute may reasonably be expected to increase the number of persons sentenced to death, it does not fulfill Furman’s basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death.
******
A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailities of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

That the statutes herein challenged fail to provide a constitutionally acceptable procedure in Missouri for imposition of the death penalty is readily apparent and we so hold. A very comprehensive analysis of the question and its related problems may be found in 45 UMKC Law Review 223, Turner—Missouri’s Unconstitutional Death Penalty: A Proposal for Reform.

One question remains. What, if any, viability does the instant indictment for “capital” murder now have absent the death penalty?

The answer to such an inquiry was developed more fully in two other cases involving the same statutes, i. e., State ex rel. Douglas v. Keet, Mo., 547 S.W.2d 481 and State ex rel. Locke v. Burkart, Mo., 548 S.W.2d 550 and we have considered the arguments therein since a decision in each of the three cases will be entered at the same time.

The General Assembly, obviously appreciative of the confusion surrounding death penalty statutes and recognizing the lack of any definitive law in that area, passed the following section at the same time as it did §§ 559.005 and 559.009 (All being part of H.B. No. 150, Laws 1975), to-wit:

559.011. Alternative punishment if death penalty declared unconstitutional
If the category of capital murder or the penalty prescribed herein is declared to be unconstitutional by the Missouri supreme court or the United States Supreme Court, all killings which would be capital murder under any of the circumstances specified in section 559.005 shall be deemed to be murder in the first degree and the offender shall be punished accordingly, except that he shall not be eligible for probation or parole until he has served a minimum of fifty years of his sentence.

First, it is argued that the “alternative” statute cannot be brought into play because the death penalty was not found to be unconstitutional per se in Gregg and its companion cases. We think the argument lacks merit. In the first place, the legislative intent obviously was to provide for the possibility the “penalty” could not be imposed for any reason; and secondly, this court, now having ruled that the “penalty” is unconstitutional under the existing statutes, has made the second contingency effective.

Second, we do not believe that § 559.011 is violative of § 28 of Article 3 of the Missouri Constitution and the holding in State ex rel. McNary v. Stussie, 518 S.W.2d 630 (Mo. banc 1974), pertaining to the amendment of statutes , for the simple reason § 559.011 is not an amendment to §§ 559.005 and 559.009 but was enacted at one time as part of one law in House Bill No. 150, Laws 1975.

Third, our holding that § 559.011 is a viable statute precludes any argument that “capital” murder cannot be a crime because no penalty therefor is provided. State v. Harper, 510 S.W.2d 749 (Mo.App.1974) is not controlling.

Fourth, an improper delegation of legislative power to the courts does not result. After the opinion in Furman, this court found it necessary to substitute life sentences for the death penalty in several cases. The only difference being that this time the General Assembly anticipated as much.

As a result, the use of the term “capital” murder in both the title and body of § 559.005 (and in the other sections) is a misnomer and perhaps grammatically now incorrect. However, there is no law of which we are aware preventing such a designation for the crime therein defined.

Lastly, there remains both a crime and a penalty which facially sustain the indictment in question.

The judgment of the trial court holding the death penalty unconstitutional under the statutes noted is affirmed, but the order of dismissal of the indictment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

BARDGETT, HENLEY, FINCH, DON-NELLY and RENDLEN, JJ., concur.

SEILER, C. J., concurs in part and dubi-tative in part in separate opinion filed.

SEILER, Chief Justice,

concurring in part and dubitative in part.

I concur in that portion of the principal opinion which holds the Missouri procedure governing imposition of the death penalty unconstitutional, but further, I am constrained to vote dubitante in relation to that portion of the principal opinion which upholds the validity of the alternative provision. I am unconvinced that legislation may legally spring forth into existence upon the event of a court fulfilling its mandated duty. Additionally, I am not convinced that the alternative provision which requires a minimum incarceration of fifty years as a condition precedent to parole or probation eligibility is neither cruel and unusual punishment nor violative of due process.

Many would regard incarceration for a minimum of fifty years with no glimmer of hope for probation or parole as a fate worse than death.

      . Procedures found in Gregg, Jurek and Proffitt were approved while those in Woodson and Roberts were rejected.

      . Recent representative efforts by other courts to apply the dictates of Gregg and its companion cases to particular statutory schemes may be found in Jackson v. State, 337 So.2d 1242 (Miss.1976); and in Volume 20 of the Criminal Law Reporter at the pages indicated: State v. Lee, 114 Ariz. 101, 559 P.2d 657; State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035; State v. McKenzie, Mont., 557 P.2d 1023; Rockwell v. Superior Court, 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101; Commonwealth v. Moody, Pa.Ct.Comm. Pleas p. 2259; People v. Velez, Supp., 388 N.Y.S.2d 519 and Blackwell v. State, 278 Md. 466, 365 A.2d 545.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Robert Eugene DOUGLAS, Relator, v. The Honorable James H. KEET, Jr., Judge, Circuit Court, Greene County, Respondent.
    No. 59752.
    Supreme Court of Missouri, En Banc.
    March 15, 1977.
    Devon F. Sherwood, Springfield, for relator.
    Ben K. Upp, Springfield, for respondent.
   MORGAN, Judge.

Relator, Robert Eugene Douglas, is charged in the Circuit Court of Greene County with the crime of capital murder under the provisions of §§ 559.005 and 559.-009, RSMo Supp. 1975. His motion to dismiss the information against him, based on the alleged unconstitutionality of said sections, was overruled by the trial court.

Thereafter, this court, upon the petition of relator, issued its provisional rule in prohibition; arguments were made; and, the cause was submitted.

The court now having concluded that prosecution may be had under § 559.005 with punishment as specified in § 559.011, for the reasons delineated in State of Missouri v.. Duren, Mo., 547 S.W.2d 476 (No. 59763) handed down this date, our provisional rule herein should be quashed.

It is so ordered.

BARDGETT, HENLEY, FINCH, DON-NELLY and RENDLEN, JJ,, concur.

SEILER, C. J., concurs in part and dubi-tative in part in separate opinion filed.

SEILER, Chief Justice,

concurring in part and dubitative in part.

This case being governed by State v. Duren, Mo., 547 S.W.2d 476, No. 59763, handed down this date, I take the same position in this case as I did there and adopt by reference the opinion I filed therein.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Christopher L. DAVIS, Appellant.
    No. 35594.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 29, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.

      Robert E. Heisler, Hayes & Heisler, Clayton, for appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant, Christopher L. Davis, was convicted by a jury of two counts of first degree murder, one count of assault with intent to kill with malice, and two counts of first degree robbery by means of a dangerous and deadly weapon. He was sentenced to two life terms, one term of two years, and two terms of twenty-five years each, all to be served consecutively.

Appellant does not attack the sufficiency of the evidence. We shall summarize the facts, but shall set them forth sufficiently to permit a discussion of the issues.

A little after 1:00 o’clock in the morning of March 18,1972, several young black persons, including appellant, armed with various weapons entered a tavern named Cousin Hugo’s in Maplewood, Missouri, and robbed the patrons. During the course of the robbery a patron was shot, a barmaid was stabbed, and two other patrons were killed, one by a stab wound and the other, an off-duty police officer, by a shotgun wound of the head.

Appellant first contends that the trial court erred in overruling his motion to suppress certain evidence which was seized by the police at the home of Beverly Telfair and Lucius Toney located at 1338 Banneker Street. By stipulation of counsel, appellant’s motion to suppress evidence was submitted to the court upon the testimony adduced at a hearing on a similar motion in the case of State v. Johnson, 539 S.W.2d 493 (Mo.App.1976). The evidence sought to be suppressed in each case was identical. We shall relate briefly the circumstances under which the evidence was seized by the police.

The police were informed that four or five young black males had committed the crimes at Cousin Hugo’s, and that four black males, one of whom was Lucius To-ney, had been seen in the neighborhood of Cousin Hugo’s prior to the commission of the crimes. Sergeant Boulch, and two other officers, went to 8109 Dumas Street. Toney’s mother was there, and when asked where her son was she became extremely agitated. She hurried down the street to a house around the corner on Banneker Street and shouted “Lucius, Lucius, the police.” Toney, who fitted the description of the perpetrators of the crimes at Cousin Hugo’s, came onto the porch, and the officers asked for and were granted permission by him to enter and look around the house. After the officers entered, Toney ran past them into the bedroom, and at the same time another person was seen running into the bathroom. Sergeant Boulch followed Toney and observed two more black males in the bedroom, and he also saw what appeared to him to be a shotgun lying on the floor. The officer checked the immediate area for weapons, and in doing so saw a pistol in a partially opened dresser drawer. He also noticed a holster strapped to the belt of one of the persons (appellant) which he removed. (This holster and a pistol found in a dresser drawer were subsequently identified as belonging to the off-duty policeman who was killed by a shotgun blast during the robbery.) Sergeant Boulch placed the four individuals under arrest. After they were handcuffed a quick search of the bedroom and bathroom was made to determine if there was anyone else in the house. During this search the officers found a pistol in the bedroom partially covered by a black beret. (This pistol was subsequently identified as the weapon from which the bullet was fired which wounded the patron.) In the bathroom there was a pile of dirty clothes, which was large enough to conceal a person, on which there was a large plastic bag. When the officer attempted to move the clothes to determine if anyone was concealed under them, the contents of the bag were revealed. It contained ladies’ purses, billfolds, credit cards and driver licenses. (These items were subsequently identified as property of the robbery victims, and appellant’s fingerprints were found on two of the items.)

About this time a large, unruly crowd gathered outside the house and created what gave indications of being a potential riot situation. The police officers were ordered by higher police authorities to leave the house and they did so, but in order to preserve and protect the evidence previously discovered they took with them the plastic bag containing the purses, billfolds and cards, a knife, the holster, the guns, and other items. On the following day two police officers returned to the house on Banneker Street to search for a suspect by the name of Hill. Beverly Telfair, the co-lessee of the house, told the officers that no one was in the house except her two children, and she consented in writing for the officers to search the house. During this search, the officers found three shotguns concealed in the bathroom.

Based on the above testimony, taken at the hearing on the motion to suppress evidence in State v. Johnson, supra, and made a part of the record in this case by stipulation, the trial court overruled appellant’s motion to suppress.

Appellant first asserts that the trial court erred in overruling his motion to suppress evidence because (a) the search was made without “voluntary consent;” (b) the search and seizure was not incident to a lawful arrest; (c) the subsequent search made after the arrests “was not confined to the suspects’ immediate area of control;” (d) the St. Louis County Identification Bureau “acted totally without the scope of authority;” and (e) the alleged consent to search given by Beverly Telfair, which led to the seizure of the three shotguns, “was not freely and voluntarily given.”

The State argues that appellant has no standing to challenge the validity of the search of the house at 1338 Banneker Street. “Standing to object to a search and seizure and use of the fruits in evidence is predicated upon a possessory interest in the items seized; a possessory interest in, or legitimate presence on, the premises searched; or is ‘automatic’ where the same possession needed to establish standing is an essential element of the crime charged.” State v. Ross, 507 S.W.2d 348, 353 (Mo.1974). See also In re J. R. M., 487 S.W.2d 502 (Mo. banc 1972). In this case appellant asserts no propriety interest in any of the items or property seized by the police. He even disclaims any interest in or knowledge of the holster which the police officer said he took from appellant’s belt. Also, he had no possessory interest in the premises. As he asserts in his brief, he “did not ever reside at Banneker.” However, he was present when the first search was conducted, and he was in the house when he was arrested. There is nothing in the testimony at the hearing to suppress to indicate why he was there. In Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697 (1960), it was held that “No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.” While we do not necessarily agree that legitimate presence alone should establish legal standing to challenge a search, we are bound by the interpretation by the United States Supreme Court of the Fourth Amendment. There is nothing to show that appellant was or was not legitimately on the premises but one of those there arrested was Lucius Toney, the co-lessee of the house, and if any inference is permissible it would be that he was present with Toney’s consent.

Appellant’s challenge to the search and seizure which we have labeled as (a), (b), and (c) were specifically ruled in the opinion in the case of State v. Johnson, supra, handed down by this Court on May 4, 1976. As previously noted, appellant’s motion to suppress in this case was submitted to the trial court on the evidence that was received in the Johnson case in support of a motion in that case to suppress the identical evidence. This Court ruled in the Johnson case that the search of the house on Banneker Street was made pursuant to the voluntarily given consent on the part of Lucius Toney, a co-tenant; that the arrests there made, which included the arrest of appellant, were made with .probable cause; and that the search made subsequent to the arrests was not overbroad in its scope but was authorized under the circumstances. We also note that the precise issues pertaining to the same search and seizure were ruled adversely to appellant’s contentions in State v. Toney, 537 S.W.2d 586 (Mo.App.1976), by the Missouri Court of Appeals, Kansas City District. We approve of those rulings, and we see no occasion to burden this opinion with additional recitation of the basis for them. Instead, reference is made to Part XII of the opinion in the Johnson case and to the opinion in the Toney case.

Appellant also asserts, item (d), that the motion to suppress should have been sustained because the St. Louis County Identification Bureau acted “totally without the scope of authority.” The argument portion of appellant’s brief adds little to the barren assertation in the point. The substance of the contention appears to be that the “processing” done by the members of the Identification Bureau was “not incidental to a lawful arrest; there was no emergency situation requiring immediate action to keep evidence from being destroyed; [and] no consent was given.” We find no merit to this contention. Appellant does not direct our attention to any particular item of evidence which he claims was improperly “processed,” or that was not obtained by the consent to search granted by Lucius Toney, or which was not discovered while in plain sight or while the officers were attempting to determine if other persons were present in the house. Also, we disagree completely with appellant’s assertion that “No emergency situation” existed. As previously noted, a large unruly group of black people had gathered around the house and had begun to pound on the walls. One police officer observed assaults by the crowd being made on other police officers. A potential riot situation clearly existed and in the opinion of one of those present “the entire scene would have been destroyed” in a very short time. As stated in Part XII of the opinion in State v. Johnson, supra, “the case falls within an exception recognized in State v. Wiley, 522 S.W.2d 281, 290 [16, 17] (Mo. banc 1975). Exigent circumstances as noted herein indicated to the officers that removal or destruction of the evidence was imminent or threatened. The validity of the search and seizure in the instant case may be sustained on the limited ground that an emergency situation developed which threatened the removal or destruction of evidence that officers had cause to believe was present and relevant to the crime being investigated.” We agree with this conclusion.

The remaining assertation of appellant, item (e) of Point I, is that “the alleged ‘consent’ to search given by Beverly Telfair, which led to the seizure of three shotguns, was not freely and voluntarily given.” This contention is without merit.

On March 19, 1972, two police officers went to the Banneker house looking for a fifth person suspected of participating in the crimes at Cousin Hugo’s. Because of the nature of the crimes and the other circumstances they had a substantial number of officers in the neighborhood. Upon the arrival of the two officers at the house, Beverly Telfair, who was a co-lessee of the house, first gave them her oral consent and then her written consent to search the house. No search was made prior to the consent, and no objection was later made to the search.

As a co-lessee she had equal authority over the premises and could authorize the search. State v. Stuart, 415 S.W.2d 766 (Mo.1967); United States v. Martinez, 450 F.2d 864 (8th Cir. 1971). Appellant argues that under the attending circumstances she would not have voluntarily consented to the search. That is pure speculation. The fact is that she did give her consent, not only orally but also in writing. The trial court found, after a review of all the attending circumstances, that the consent was voluntarily given, and based on our review of the evidence we are in complete agreement.

In addition to the above, it is immaterial that a motion to suppress evidence may have been improperly overruled if the evidence which is the subject of the motion is not subsequently received in evidence, or if received it is not objected to, or if received and objected to it is not challenged on appeal on the ground that it was improperly admitted in evidence. The three shotguns were received in evidence over appellant’s objection, but appellant does not assert on this appeal that the court erred in admitting them. Only Point II in appellant’s brief pertains to the admission of evidence. It is general and asserts error in the admission of “certain state exhibits.” In the argument under this point it is asserted that “Specifically, appellant objected to the introduction” of seven exhibits, identified by number, none of which were any of the sawed-off shotguns found in the bathroom of the Banneker Street house. It is clear that appellant has not preserved for appellate review the issue of whether the three shotguns were improperly admitted into evidence. For that reason, it is now immaterial whether the trial court should have sustained the motion to suppress as to them, although for the reasons previously set forth we are of the firm opinion that they were not obtained as the result of an unauthorized search and seizure.

We now consider Point II, and as noted because of its generality it does not comply with Rule 84.04(d). However, by referring to the argument portion of the brief, a procedure not within the contemplation of the procedural rules, we can determine the substance of appellant’s contentions.

The exhibits itemized in the argument are Exhibit 52 (a photograph of miscellaneous items from dresser drawers, including boxes of shotgun shells, loose shells, pistol ammunition, gun cleaning equipment, berets, etc.); Exhibit 57 (knife sheath); Exhibits 66 and 67 (gun stocks); Exhibit 73 (hacksaw); Exhibit 81 (a “belt” of bullets); and Exhibit 82 (a bandolier containing shotgun ammunition). Appellant contends that this evidence was “totally irrelevant, of no probative value on the issue of guilt,” and that the “only effect was to inflame and prejudice the jury.”

In Part X of the opinion in State v. Johnson, supra, and Part III of the opinion in State v. Hill, 539 S.W.2d 521 (Mo.App.1976), both companion cases to this one, the precise contentions here presented were ruled adversely to appellant’s contentions concerning the identical evidence. No factual distinction exists in this case which would compel or justify a contrary result. As stated in State v. Hill, supra, “The circumstances of [the] finding [of the items of evidence] justify an inference of the likelihood or possibility of many of these items having been used in the preparation or commission of the crime. They are therefore admissible ‘ “for the purpose of showing availability to accused of the means of committing the crime in the manner in which it is shown to have occurred.” ’ State v. Cuckovich [485 S.W.2d 16, 23, (Mo. banc 1972)]. This is especially true of the hacksaw, the gun barrels and the shotgun stocks not objected to in the Johnson case. Numerous persons testified that the robbers were armed with sawed-off shotguns. [This was true in this case.] It is well-settled that ‘[articles showing motive, or malice, or intent, or knowledge or preparation, may be received in evidence if shown to be connected with the crime or with the accused.’ State v. Evans, 237 S.W.2d 149, 151 [1, 2], (Mo.1951). Items found soon after the crime in the possession of a defendant’s criminal associates are sufficiently connected to the defendant to be admissible in evidence against him. A hacksaw, gun barrels and gun stocks clearly indicate the availability of items used in the preparation of sawed-off shotguns and the items were therefore properly admitted.” We adopt by reference the rulings in the two cited companion cases.

In Point III, appellant asserts the trial court erred in ordering or allowing “excessive and obviously visible security measures.”

In support of appellant’s motion for a mistrial, based on “excessive” security arrangements, the public defender testified that when the jury was boarding a bus in the parking lot he observed “approximately one dozen uniformed officers from Clayton and St. Louis County on the lot,” and four marked police vehicles. He also testified that there were uniformed police officers stationed “behind the courtroom at either end of the corridor which [were] visible to the jurors at all times when they’re going to and from their jury rooms, [and that] there [were] metal detectors outside the courtroom where anybody entering the courtroom [was] searched.” Another person from the public defender’s office testified that she observed police officers take two young black persons into custody at a time when the jury could see the occurrence. We note, however, that there was nothing to indicate that this action of the officers was not appropriate under the circumstances. During a discussion the trial judge commented that he was on the parking lot at the time the two persons were taken into custody, and that he recently had chastised the security office for laxity in protecting the parking lot. The trial judge also stated that he had heard of threats against appellant’s life and of threats to free him. After commenting that under the circumstances the court saw nothing unusual about the security arrangements the motion for a mistrial was overruled.

Appellant was not shackled during the trial or wearing prison garb. Therefore, United States v. Samuel, 431 F.2d 610 (4th Cir. 1970) and Dennis v. Dees, 278 F.Supp. 354 (E.D.La.1968), cited by appellant are not in point.

A trial court has the duty to make such orders as may be necessary to secure a quiet and safe trial. State v. Hill, supra. In taking security precautions care should be exercised to not create an atmosphere prejudicial to the accused, but it is a balancing of the circumstances, and though unnecessary measures should be avoided, such measures should be taken as appear to be reasonably necessary for the maintenance of order during the trial and the retention of the custody of the accused. Bibbs v. State, 504 S.W.2d 319 (Mo.App.1973). What could constitute excessive security measures in one situation could be reasonable in another.

Appellant was charged with four offenses that were committed in a most ruthless and brutal fashion. As appellant admits in his brief, “During the course of [the] robbery, two people were apparently senselessly murdered; a few others were seriously injured.” Appellant’s trial was widely publicized, and the trial court had reports of threats against appellant and that an attempt might be made to free him. The court was aware that appellant was reported to be a member of a black militant organization. This case was tried subsequent to State v. Johnson, supra, and we can assume that the trial court knew, as stated in the opinion in that case, that “At the time of the verdict a highly explosive situation developed inside and outside the courtroom which * * * could easily have developed into a riot but for the actions of persons on security duty.” When faced with a situation as presented by the circumstances of this case, a court is not required to close its eyes to realities and wait until something happens before taking appropriate security precautions. Neither are the security measures taken to be judged by the benefit of hindsight. Under the circumstances it cannot be said that the security measures were unreasonable; in fact, the circumstances clearly indicate that any less stringent precautions would have been unreasonable.

Appellant’s fourth and final point is that the trial court erred in overruling his motion to suppress “testimony concerning eyewitness confrontations and in-court identification” in that “said confrontations were ‘inherently suggestive,’ and fatally tainted by local media accounts of the crimes committed.” Only by referring to the argument portion of the brief are we able to determine the basis for these contentions.

There were three lineups but appellant was in only two of them. The first, containing eight persons, was held at the Ma-plewood Police Station a few hours after appellant was arrested. Appellant makes two challenges to this lineup; both being based on testimony of William Hagerty given at the trial, not at the hearing on the motion to suppress, and both of which are totally without merit.

Appellant asserts in his brief that Mr. Hagerty testified that “appellant was the only individual in the Maplewood lineup that had facial hair.” Assuming, but certainly not implying or holding, that if at trial some new evidence is introduced which might be construed to imply a “suggestive” lineup there is a duty on the court to take some action sua aponte (appellant asked for or suggested none), appellant’s contention is without factual support. Mr. Hagerty testified that he saw appellant at Cousin Hugo’s during the robbery and that he was carrying a pistol. He later testified on cross-examination that appellant “needed a shave” but did not have a beard, and that he had a “very light moustache.” He was then shown a photograph of the lineup and was asked if “anybody on this Maplewood lineup look like they need a shave?” He pointed to the picture of appellant and said, “This man does.” He was then asked if “anybody else” needed a shave and he pointed to the pictures of two other persons. Appellant apparently relies on the following question and answer which concluded that part of the cross-examination.

“Q. OK. Now the man that fit the description of the man you saw in Hugo’s as far as height approximately, that man was the only other man in that lineup that looked like he needed a shave to you, wasn’t he, or had hair on his face?
A. I would say yes, sir.”

We do not consider this isolated and somewhat inconsistent answer, made to a confusing and leading question, affords any basis for a determination that the lineup was “suggestive,” even if appellant had called the matter to the attention of the court. But, more important, the trial court had before it, and we have before us as an exhibit, an enlargement of a photograph of the Maplewood lineup. It clearly shows that at least four of the eight persons “needed a shave” or had “facial hair,” and that three had distinct moustaches and two had a “light moustache.” Appellant’s contention that he was the only one in the lineup that had “facial hair” is factually incorrect.

Appellant’s other challenge to the Maple-wood lineup is also based on testimony of Mr. Hagerty given at the trial. He asserts that Mr. Hagerty stated that none of the others in the lineup “was of the same approximate height.” The witness did not so testify. He stated that one of the persons in the lineup was “taller” than appellant and was “approximately five ten” in height, and that another person was “probably five eight, thereabout.” Appellant was, in fact, 5 feet 8V2 inches in height. Two others in the lineup were 5 feet 9 inches in height, and a third appears to be almost the exact height of appellant.

Of course, there were some differences in the appearances of the eight persons in the lineup, but there were no pronounced differences and there was nothing to single out appellant or to suggest him as one of the persons who committed the crimes at Cousin Hugo’s. The purpose of a lineup is to determine whether a person who was a witness to the crime can, without improper suggestive procedures, identify the perpetrator of the crime. It is not, as seems to be appellant’s contention, to so conceal the perpetrator and so confuse the viewer that no identification of the actual perpetrator is possible.

Our examination of the photograph of the lineup and of the testimony concerning the conduct of the lineup discloses that it was fair, not suggestive in anyway, and that it meets the most stringent requirements that have been pronounced by any court.

We find no challenge whatever in appellant’s brief to the conduct of the lineup held in St. Louis County three days after the Maplewood lineup. It contained ten persons, all dressed the same, and who were reasonably uniform in height and in coloring. We note here that in State v. Hill, supra, this Court reviewed the procedures under which the lineups were held and ruled as follows: “The record reveals no constitutional infirmity in the conduct of the lineups.” We find absolutely no merit in the challenge to the manner in which the lineups were conducted.

Appellant also contends that the four witnesses who made in-court identification did not have an adequate source of identification independent of what he unjustifiably asserts were improper lineups.

The issue of whether there existed an independent basis for the in-court identifications usually is presented when there is a defect in the pretrial lineup procedures, and then, as stated in United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967), the prosecution should have an “opportunity to establish by clear and convincing evidence that the in-eourt identifications were based upon observations of the suspect other than the lineup identification.” In this case there was no defect in the pretrial lineup procedures. However, one of the identifying witnesses, Thomas Canfield, had observed television news reports and newspaper pictures before he identified appellant at the St. Louis County lineup, and another witness, Gloria Tayloe, observed newspaper photographs after she attended the Maple-wood lineup at which she identified appellant but did not report to the police until later that she had recognized him. We shall, therefore, examine the independent source of identification of these two witnesses, and comment generally on the issue as to the other two witnesses.

Thomas Canfield observed appellant from two to four minutes while he was in the back room of Cousin Hugo’s during the robbery. He saw appellant, armed with a pistol, and another person, armed with a sawed-off shotgun, enter the room. Can-field and the persons in his party were directed to stand in front of the juke box where Canfield had “a fairly good view” of appellant. At one time appellant was approximately three feet from him while appellant was picking up billfolds and purses from the floor. For a “minute or two minutes” while appellant was directly in front of him, Canfield “did not take [his] eyes off of him.”

Gloria Tayloe was in the back room with her husband when the robbers entered. One had a shotgun and the other, whom she positively identified in the courtroom as appellant, had a pistol. She was within three feet of the person who had the shotgun, and she “walked right past” appellant and “practically had to move aside to miss the gun” he was holding. She described in detail what the two men did and stated that the robber with the shotgun was about 5 feet 2½ inches in height (he was actually 5 feet .2 inches) and that appellant was about 5 feet 8 inches in height (he was actually 5 feet 8½ inches in height).

These two witnesses, and Laura Miller and William Hagerty, the other two identifying witnesses, each were in close proximity to appellant during the robbery, and each had an adequate opportunity to observe him. Miller and Hagerty identified appellant in a lineup, which was properly conducted without any suggestive features, before they saw any photographs of appellant, observed any television broadcasts, or read any newspaper accounts of the robbery. We do not consider that any pre-trial identification was impermissibly suggestive as to the other two identifying witnesses, but assuming that the issue was arguable, there was more than sufficient evidence of an independent basis for the in-court identifications to overcome such taint as there was and to support and authorize their admission into evidence.

Appellant also makes several contentions which are really directed to the believability of the identification testimony. One assertion deserves comment. Appellant states that the “credibility” of Laura Miller, who identified appellant in both lineups, “is questionable” because at the St. Louis County lineup “she also mis-identified a police officer.” This is a totally unjustified accusation. At the lineup she identified appellant and a companion named Johnson. On cross-examination at trial she was asked if she also “picked out a police officer.” She replied that at the lineup she was asked if she “recognized anyone else” and she pointed to another person “because I had seen him earlier that day” in the courthouse, and she was later told that he was a policeman. This does not indicate that she “mis-identified” a police officer as one of the robbers; it indicates that she recognized the police officer as a person she had previously seen, and nothing more.

In argument, but not in his point, appellant attacks a procedure whereby, in preparation for trial, prospective witnesses were shown photographs of appellant and other defendants by the prosecuting attorney during a reenactment of the robbery. The procedure that was followed was examined in Part V of the opinion in State v. Hill, supra, and it was there held that “The reenactment * * * was for the purpose of establishing how the crime occurred and the parts played by the various defendants. It was not meant for purposes of identifica-. tion nor was it so used.” We adopt that ruling.

Appellant’s guilt was amply supported by the evidence, and we find no error prejudicial to him in any of the matters presented.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: WASSERSTROM, Judge.

text:
    Lyle E. ELBEN, Respondent, v. ALLEN AUTO RENTAL & TRUCK LEASING, INC., Appellant.
    No. KCD 27980.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Roy A. Larson, Kansas City, for appellant.
    Allan J. Fanning, Kansas City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

This is a companion case to Evans v. Allen Auto Rental & Truck Leasing, Inc., Mo.App., KCD 27421, decided Aug. 26, 1976. In Evans, personal injuries were suffered by Evans while a passenger on a motorcycle which was hit from the rear by a truck driven by Bruce Conrad and which had been leased to Conrad by Allen Auto Rental & Truck Leasing, Inc. This court affirmed recovery by Evans against both Conrad and Allen. The instant case arises out of the same accident and involves personal injuries suffered by Lyle E. Elben, the driver of the motorcycle on which Evans was the passenger.

On submission of this case, the jury returned a verdict of $75,000 against Conrad but found in favor of Allen. Pursuant to Elben’s motion for new trial, the trial court did grant a new trial on the claim against Allen on the ground that the verdict in regard to that defendant was against the weight of the evidence. Allen appeals.

The fact that this is an appeal from an order granting a new trial puts this case in a posture in which the order will not be disturbed if there is substantial evidence which would have supported a verdict for Elben. Overbey v. Fodde, 420 S.W.2d 510, 511 (Mo.1967); Leonard v. Bartimus, 463 S.W.2d 579, 580-81 (Mo.App.1971). The trial court is “vested with an inherent and broad discretion in granting one new trial upon the ground the verdict and judgment are against the weight of the evidence. . And its ruling upon that ground will not be disturbed, except in case of manifest abuse.” Dawson v. Scherff, 281 S.W.2d 825, 831 (Mo.1955); Overbey v. Fodde, supra at 511.

Plaintiff’s theory here, as was that presented in Evans, rests on allegations that Allen was negligent in entrusting its truck to Conrad. Inasmuch as the entrustment here is exactly the same one as that involved in Evans, it is not surprising that the evidence in the record here is very much like that presented in Evans. We held that the evidence in Evans established a submissive showing that Conrad was a habitually negligent driver and that Allen had possession of facts sufficient to put it upon inquiry which would have readily disclosed Conrad’s bad driving record.

Allen contends that the evidence in the present case falls short of the showing in Evans in that plaintiff’s evidence here fails to establish that Allen had sufficient facts in hand at the time of the leasing to put it on any further inquiry. A brief look at the record repels that conclusion.

The most telling evidence with regard to Allen’s knowledge came from the testimony of defendant Conrad, whom plaintiff called as a witness, and from the testimony of Coleman Norris, who was Conrad’s insurance agent during the period in question. Conrad testified that during his first trip to the Allen leasing agency, he talked to Mr. Robert Melody and, although Conrad could not remember the exact words, he informed Melody that the reason that he wanted to lease a car was because he had a bad driving record and that he wanted to drive a new car but could not afford the insurance. Conrad further testified that he told Melody that his license had once been revoked and that he had to carry an SR-22 insurance. On cross-examination, Conrad reiterated that he told Melody that he had had problems with his insurance; but he added that “I don’t know whether I just brought it right out about my driving record or not.” Allen did not call Melody as a witness.

The testimony of Norris, Conrad’s insurance agent, complements the foregoing. Preliminary to his testimony, Helen Mi-chaels, Allen’s office manager, was called to the stand for the limited purpose of establishing that she had, on three separate occasions, talked to Norris on the phone. She testified that she talked to Norris regarding Conrad’s insurance coverage twice before the accident in question, and once following. The first of these conversations was in April or May, 1971 (which coincides with the time of the first lease from Allen to Conrad), and the second occurred in June, 1972 (which coincides with the second lease from Allen to Conrad). After her testimony, Norris took the stand and testified that he recalled only one phone conversation with a lady from Allen, which he could not place as to time, and that Bruce Conrad’s driving record was discussed. In that conversation, Norris said that Conrad “had a pretty bad driving record, and it was brought up and we discussed it . It may be that Bruce was on a hardship at that time, but I don’t recall. He was either on a SR-22 or a hardship.” Norris further testified that the fact that Conrad’s license was, or had been, revoked was discussed.

The testimony just summarized makes a submissible case as to whether Allen had knowledge of sufficient facts to put it on further inquiry. Conrad had told Melody at the very least that he “had insurance problems.” The application forms which Allen requested Conrad to fill out preliminary to the 1971 and 1972 leases both called for information as to Conrad’s insurance agent, and Conrad both times did supply that information showing Norris as his agent. Michaels testified she spoke to Norris at times coinciding with each of those applications, and Norris said the conversation had to do with Conrad’s “bad driving record.” The jury could reasonably infer that this information was supplied to Allen’s office manager Michaels at the time the two applications were under consideration. This alone, aside from other more minor elements of proof, sufficiently warranted submission to the jury on the issue of scienter. The evidence must be viewed in the light most favorable to the plaintiff-respondent. Leonard v. Bartimus, supra; Overbey v. Fodde, supra. So interpreted, this record contains sufficient evidence to conclude that Allen either knew of Conrad’s habitual negligence, or knew of facts which put it on enquiry as to that habitual negligence. The difference in proof here from that in Evans is very marginal and lacks significance. The rules discussed in Evans control here. It cannot be said that the trial court abused its discretion in granting the plaintiff's motion for a new trial.

Affirmed.

All concur.


author: ROBERT LEE CAMPBELL, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Delores COLE, Defendant-Appellant.
    No. 9920.
    Missouri Court of Appeals, Springfield District.
    Jan. 28, 1977.
    Motion for Rehearing or Transfer Denied Feb. 22, 1977.
    Application to Transfer Denied April 11, 1977.

      Claude T. Wood, Dale H. Close, Wood & Close, Richland, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.
   ROBERT LEE CAMPBELL, Special Judge.

Defendant Delores Cole was convicted by a jury of second-degree murder for shooting and killing her husband, Granville Scott Cole. The jury being unable to agree upon punishment, defendant was sentenced by the court to a term of 15 years’ imprisonment. Defendant appeals. We affirm.

On November 16, 1973, defendant took a loaded gun from a closet, put it in her pocket, left home, and went to the B. J. Club on Highway 66 east of Lebanon, Missouri. She saw her husband inside the club near the bar hugging and kissing a woman. Approximately 90 people were in the club at the time. Witnesses for the State testified that defendant entered the club, threatened the woman and then shot her husband in the stomach after he put his hands on defendant’s shoulders. Another shot was fired as the gun was being taken from defendant by the club’s bouncer, Gene Wasmer. Defendant testified that she walked into the club with her right hand on the gun in her coat pocket, that she did not remember removing the gun and that she did not shoot her husband. Defendant’s version of the occurrence was that as her husband approached her, she was grabbed from every direction, two men had hold of her, and she did not know who fired the shots.

Defendant first contends the court erred in failing to give a manslaughter instruction. There was no evidence to support the giving of a manslaughter instruction. The State’s evidence, believed by the jury, would only support a conviction of first-degree murder or second-degree murder. Defendant’s evidence, if believed, would only justify an acquittal, not a conviction of manslaughter. Therefore, no instruction on manslaughter was required at the time this case was tried. State v. Mudgett, 531 S.W.2d 275, 280-281 (Mo. banc 1975), cert. denied, 426 U.S. 910, 96 S.Ct. 2234, 48 L.Ed.2d 835 (1976).

Defendant next challenges certain rebuttal evidence introduced by the State. After the shooting the victim was taken to the emergency room at Wallace Hospital in Lebanon. Dr. R. W. Froelich treated Scott in the emergency room and arranged for his transfer to Fort Leonard Wood General Hospital for an operation. Scott had been shot about one inch from his navel, the bullet had penetrated vital organs and lodged in his spinal vertebrae, there was massive hemorrhaging, he was in pain, and he was paralyzed from the waist down. Scott knew he could not move his legs and so indicated to Dr. Froelich, as well as saying, “My God, I am hurt bad, do something.” In addition, he repeatedly asked the doctor if he was going to make it and stated that he didn’t want to die because of what would happen to his wife and children. He did, in fact, die very shortly thereafter on November 17.

Dr. Froelich testified for defendant that after he advised Scott that he probably would not survive, Scott stated, “I didn’t mean to shoot myself.” On cross-examination the State developed that shortly before this statement, Scott kept making statements to the effect that he did not want to die, that Dee (defendant) would go to jail and there would be no one to take care of the kids. In rebuttal, the State called George Fisher, an emergency room attendant at Wallace Hospital, to testify to further statements made by the deceased. He testified that prior to being told by Dr. Froelich that he probably would not survive, Scott Cole said several times, “why did she shoot me there”. Defendant contends that these statements, and the statements made to Dr. Froelich prior to Scott’s being advised that he might not live, were inadmissible as hearsay and were not within the exception of dying declarations.

The statement, “I didn’t mean to shoot myself”, was clearly a dying declaration within the exception to the hearsay rule set forth in State v. Woodard, 499 S.W.2d 553, 557 (Mo.App.1973). We decline to rule that the statements of the deceased prior to being advised that he probably would not survive were also dying declarations. The trial court correctly permitted the prior inconsistent statements to be admitted into evidence for impeachment purposes, not because they were dying declarations.

The dying declaration of deceased, in light of the State’s evidence and deceased’s prior statements, casts doubt upon the reason for admissibility of a dying declaration, that a person faced with the prospect of shortly giving account to God will tell the truth. It would appear that deceased’s dying declaration was more altruistic than truthful, evidencing a concern for the welfare of his children.

We hold that a dying declaration can be impeached by prior inconsistent statements, even though such prior statements are not within the dying declaration exception to the hearsay rule. We can find no Missouri case to support this holding. State v. Rozell, 225 S.W. 931, 933, 16 A.L.R. 400, 403-404 (Mo.1920); State v. Reed, 250 Mo. 379, 385-386, 157 S.W. 316, 318 (1913); and State v. Dipley, 242 Mo. 461, 476, 147 S.W. 111, 116 (1912) [cited by State], merely hold that credibility of the declarant of a dying declaration may be impeached. The majority of the decisions in this country on this question hold as we do, as illustrated by Fleming v. State, 101 Tex.Cr.R. 19, 274 S.W. 616, 618 (1925). Since the declarant is unavailable for cross-examination to elicit the truth, necessity demands the introduction of inconsistent statements, just as necessity in the first instance led to the admission of dying declarations. Defendant’s contention that the court erred in receiving such inconsistent statements is without merit.

Defendant finally contends the court erred in failing to grant a new trial on the basis of newly discovered evidence based on facts contained in affidavits filed with her motion. State v. Harris, 413 S.W.2d 244, 247 (Mo.1967), requires that newly discovered evidence meet the following criteria: 1) the evidence has come to the knowledge of defendant since trial; 2) it was not owing to want of due diligence that it was not discovered sooner; 3) the evidence is so material it would probably produce a different result on new trial; and 4) it is not cumulative only or merely impeaching credibility of a witness.

The affidavit of Delbert E. Moore stated that he was dancing with Elaine Young about 20 feet from the bar when the first shot was fired. This testimony would only go to impeach the testimony of Elaine Young that she saw defendant shoot her husband, and it would not warrant a new trial.

The affidavit of Bill McCabe, who testified at trial on behalf of defendant, stated that since the trial, Jerry Cline told him that Gene Wasmer fired the gun that killed Scott Cole. This statement is only hearsay and does not include any competent evidence to be produced at a new trial.

The affidavit of Bennie Coleman stated that he saw Gene Wasmer and another man grab defendant, a scuffle started and a shot was fired. We cannot say that this testimony would probably produce a different result on new trial. The trial judge heard three witnesses testify that they saw defendant shoot her husband. In addition, without actually testifying to seeing defendant fire the shots, two other eyewitnesses testified to facts entirely consistent therewith. Defendant’s somewhat vague and evasive testimony is the only evidence inconsistent with the State’s evidence.

The affidavit of defendant’s attorney stated only that “It was not due to want of diligence of the defendant or her counsel that defendant or her counsel failed to discover this new evidence sooner”, and contains no facts to justify this conclusion. The granting of a new trial on the grounds of newly discovered evidence rests within the sound discretion of the trial court. State v. Taylor, 506 S.W.2d 101, 103 (Mo.App.1974); State v. Lee, 492 S.W.2d 28, 32 (Mo.App.1973). The court did not abuse its discretion in this instance. From all of the foregoing, it is apparent that the court did not err in denying defendant’s motion for a new trial on the basis of newly discovered evidence.

We have carefully examined the record and find no error. The judgment is affirmed.

All concur.

      . Those interested in the haphazard development of the dying declaration exception to the hearsay rule may consult 5 Wigmore, Evidence § 1431 et seq. (Chadboum rev. 1974), including a list of criticized Missouri cases in the footnote on p. 300.

      . 3A Wigmore, Evidence § 1033, n. 1 at 1038 (Chadbourn rev. 1970), has collected the authorities on this point.


author: PER CURIAM.

text:
    Carmel Lee GORE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10561.
    Missouri Court of Appeals, Springfield District.
    Feb. 14, 1977.
    David G. Neal, Eminence, for movant-ap-pellant.
    John Ashcroft, Atty. Gen., Nanette K. Laughrey, Preston Dean, Asst. Attys. Gen., Jefferson City, for respondent.
   PER CURIAM.

We do not have jurisdiction to entertain this appeal because the notice of appeal was not timely filed.

Appellant’s postconviction proceeding [Rule 27.26, V.A.M.R.] was dismissed by the Circuit Court of Howell County on September 27, 1976. Being a civil proceeding [State v. Gullett, 411 S.W.2d 227 (Mo.1967)] the judgment became final for purposes of appeal thirty days after its entry. Rule 81.05, V.A.M.R. Notice of appeal was due to be filed within ten days after the judgment became final. Rule 81.04, V.A.M.R.

Here, the order of dismissal became final on October 27,1976. The ten day period for filing a notice of appeal expired November 8, 1976.

Appellant’s notice of appeal, filed December 13, 1976, was out of time. No application for an appeal out of time has been made or granted pursuant to Rule 81.07(a), V.A.M.R.

The state’s motion to dismiss this appeal for lack of jurisdiction is sustained and the appeal is dismissed. State v. Lindner, 498 S.W.2d 754 (Mo. banc 1973); Johnson v. State, 521 S.W.2d 479 (Mo.App.1975).

All concur.


text:
    Charles James ULDRICH, Plaintiff-Respondent, v. Jesse M. THARP and Mary Ellen Tharp, his wife, Defendants-Appellants.
    No. 10037.
    Missouri Court of Appeals, Springfield District.
    Feb. 14, 1977.

      Clyde A. Butts, R. Jack Garrett, West Plains, for plaintiff-respondent.
    Ray Lee Caskey, Alton, for defendants-appellants.
   PER CURIAM.

Default judgment quieting title to certain Oregon County lands in plaintiff was entered by the trial court. Thereafter, defendants filed what was denominated as “Motion and Affidavit for New Trial” in which they sought to have the judgment set aside. The court denied the motion and this appeal followed. We affirm.

We were initially inclined to dismiss this appeal because of serious deficiencies in the transcript filed by defendants and the shortcomings of their appellate brief. However, since the parties approved the transcript and we are able to glean the determinative issue from it and the briefs we will rule the single issue of whether the trial court was guilty of an abuse of discretion in refusing to set aside and vacate the default judgment.

The action of a trial court in sustaining or overruling a motion to set aside a default judgment is generally within its sound judicial discretion. Whitledge v. Anderson Air Activities, 276 S.W.2d 114 (Mo.1955). The general rule is that the court should exercise its discretion in favor of a trial on the merits, where the application or motion to set aside discloses a meritorious defense, reasonable diligence or excuse for default is shown, and no substantial injury to plaintiff will result from delay. Whitledge v. Anderson Air Activities, supra, 276 S.W.2d at 116.

Defendants’ motion did not pass the first test in that it failed to allege any facts showing they had a meritorious defense to the action. Defendants’ allegation they had a meritorious defense is nothing more than a mere conclusion. The facts constituting the proposed defense must be set forth in detail so that the court may judge whether it is meritorious and sufficient. Gorzel v. Orlamander, 352 S.W.2d 675 (Mo.1961).

Defendants’ motion to set aside the default judgment was, as a matter of law, properly overruled.

The judgment is affirmed.

ALL CONCUR.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Billy Ray ROBERTS, Defendant-Appellant.
    No. 10171.
    Missouri Court of Appeals, Springfield District.
    Feb. 15, 1977.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Bruce K. Kirby, Kirby, Lewis & Cohick, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Defendant Billy Ray Roberts was convicted of uttering a forged instrument [§ 561.-011, RSMo 1969] by a Greene County jury and sentenced to four years in the custody of the Missouri Department of Corrections. We affirm.

The defendant was identified by three employees of a grocery store at Republic, Missouri, as the individual who cashed a forged stolen money order. Defendant did not testify but his brother did and stated he was the person who cashed the money order. The brother, a four-time felon, was at time of trial serving a sentence for uttering a forged money order in Lawrence County.

Defendant’s first point is that the court erred in overruling his motion for judgment of acquittal at the close of all the evidence because a reasonable doubt as to defendant’s guilt existed as a matter of law. This contention is premised on the fact that his brother “confessed” to passing the money order.

The.re is no merit to the point. The jury chose to believe the testimony of the three store employees and rejected the testimony of defendant’s felon brother. Furthermore, in determining the sufficiency of the evidence in ruling the motion for acquittal, the state’s evidence and all reasonable inferences arising therefrom are considered and evidence and inferences to the contrary are ignored. State v. Strong, 484 S.W.2d 657, 661 (Mo.1972); State v. Gilyard, 523 S.W.2d 564, 567 (Mo.App.1975).

Defendant next contends it was error for the court to refuse his request that his brother be subjected to a lie detector test to corroborate the latter’s “confession.” This point is without merit. In Missouri, in the absence of a stipulation between the parties, the results of a lie detector test are not admissible in evidence. State v. Fields, 434 S.W.2d 507 (Mo.1968); State v. Faught, 546 S.W.2d 515 (Mo.App.1977) and cases cited therein.

Defendant’s third point is that the court erred in refusing to allow the defendant to introduce a sample of his handwriting to be compared against a sample of his brother’s handwriting and the signature upon the money order. Since endorsement of the stolen money order was not an element of the offense charged against the defendant, samples of his and his brother’s handwriting were irrelevant to the charge and the court properly rejected defendant’s proffer. State v. DePoortere, 303 S.W.2d 920 (Mo.1957).

Defendant’s final point pertains to alleged prosecutorial comment on the defendant’s failure to testify. In his brief defendant admits no objection was made to the comment. This precludes our review since we are not to consider for the first time on appeal a claim that the prosecuting attorney commented on defendant’s failure to testify. State v. Thompson, 425 S.W.2d 80, 84 (Mo.1968). We have examined the argument to determine whether it necessitates invocation of the plain error rule. Rule 27.20(c), V.A.M.R. We conclude the prosecutor’s comment is not subject to the construction placed upon it by the defendant and the plain error doctrine is not applicable. The defendant’s guilt was established by overwhelming evidence and, consequently, no injustice or miscarriage of justice will result from our refusal to invoke the plain error rule. State v. White, 529 S.W.2d 22 (Mo.App.1975).

We have reviewed those matters required by Rule 28.02, V.A.M.R., and find no error.

Judgment affirmed.

All concur.


author: DOWD, Judge.

text:
    Georgene LoPICCOLO, Petitioner-Appellant, v. Vincent James LoPICCOLO, Respondent.
    Nos. 37028, 37139.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 15, 1977.

      Stephen M. Hereford, Gentry, Bryant & Hereford, St. Louis, for petitioner-appellant.
    Hal B. Coleman, Clayton, for respondent.
   DOWD, Judge.

Petitioner Georgene LoPiccolo appeals from those portions of the judgment of the Circuit Court entered in her cause for dissolution of marriage which pertain to an award of maintenance in gross and to the division of marital property. (No. 37028) Petitioner also appeals from the Circuit Court’s denial of her motion for attorney’s fees and costs incident to the appeal, and temporary maintenance pending appeal. (No. 37139)

In the interest of clarity, we set forth our standard of review. Rule 73.01 requires review of this court tried case upon both the law and the evidence, giving due regard to the trial court’s ability to judge the credibility of witnesses. If we believe the trial court erred in its decree, we are obligated to enter the judgment that the trial court should have entered. The trial court’s ruling will be sustained unless no substantial evidence supports it, the ruling is against the weight of the evidence, the decree erroneously declares the law, or the decree erroneously applies the law. Blessing v. Blessing, 539 S.W.2d 699, 702[1, 2] (Mo.App.1976); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Petitioner contends on appeal that the trial court erred in dividing the marital property because the court included a diamond bracelet as marital property. Petitioner argues that the bracelet was the property of her mother. The evidence regarding ownership of the diamond bracelet is in conflict. During her examination, petitioner testified that the bracelet belonged to her mother and that petitioner merely borrowed and wore the bracelet upon occasion. This statement was not refuted by respondent’s testimony, but petitioner read a note which she had written while seeking insurance coverage for the bracelet in which she stated, “This is my engagement ring and bracelet. Please put it on our insurance.” Petitioner explained that the parties had insured her mother’s bracelet because her mother did not have coverage. As the evidence concerning ownership of the bracelet is conflicting, we defer to the trial court and its opportunity to evaluate the credibility of the witnesses. Conrad v. Bowers, 533 S.W.2d 614, 619 (Mo.App.1975). Sufficient evidence was presented to sustain the trial court’s finding that the bracelet was marital property under Section 452.-330 RSMo Supp.1973.

Petitioner next contends that the trial court erred in awarding spousal maintenance in gross and in awarding an insufficient sum for maintenance. Under the trial court’s decree, petitioner is to receive maintenance payments totalling $10,000 over a four year period. Petitioner is to receive $4,000 for the year ending March 13, 1976, $3,000 for the year ending March 13, 1977, $2,000 for the year ending March 13, 1978, and $1,000 for the year ending March 13, 1979. The parties do not contest the trial court’s finding that the petitioner is entitled to some maintenance provision or the trial court’s underlying finding that petitioner currently lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. § 452.335.1 RSMo Supp. 1973.

The parties do contest, however, the amount and duration of the maintenance order as governed by Section 452.335.2 RSMo Supp.1973. We conclude that the trial court erred in awarding “stair-step”, terminable maintenance.

In determining whether the trial court’s maintenance order is erroneous, we consider only the evidence presented at the hearing on the dissolution petition on February 13, 1975 and the provisions of the dissolution decree entered March 13, 1975. Petitioner was 38 years old at the time of the hearing. She was granted custody of 4 of the parties’ minor children and was awarded $940 per month for the support of the children. Petitioner estimated that her expenses, excluding utility charges, totalled $600 per month, or $7200 per year. She owned no income producing property. Although petitioner had not worked during her 16 year marriage, petitioner had obtained employment after dissolution proceedings were begun. Petitioner testified concerning her employment as follows:

“Q: [by respondent’s counsel]: You have a job at the present time?
A: I have a prospect of a position, but it’s going to take me four or five years to build a following. Lep-pert-Ross, Frontenac Plaza.
Q: What is your position there? What will you be doing?
A: I will be selling clothes.
Q: When do you work there?
A: I’m not sure. I haven’t made those plans completely. I went in Monday and worked for 9 hours.
Q: What were you paid?
A: I was working on commission, and I sold a hundred some odd dollars of clothes, and I think, I made four dollars. That’s a little discouraging.
Q: Working on commission or salary?
A: No. It will be a commission draw, but if you don’t make it, you have to put it back in, and I can’t work full time.
Q: You haven’t made those arrangements?
A: No. That’s the first place I have looked.
******
Q: [by petitioner’s counsel]: Does this job show some promise?
A: It shows promise, but it will take anywhere from between five and six years from what I have been told by people. I will have to build up a following.
Q: What do you mean by a following?
A: When people will come in and ask for you. You build up a following and you get seven percent of what you sell.
* * * * * *
Q: Do you have any idea what you can make?
A: Yes.
MR. COLEMAN (Respondent’s attorney): Objection, speculative what she will make.
⅝5 * * * * *
THE COURT: Sustained.”

Petitioner also testified as to a possible restriction upon her ability to work:

“A: The only restriction I have, I have on the mental health, I cannoL — I have never left my children. I have always been there when they come home from school. I cannot in a clear conscience, and to be truthful, I cannot leave my children when they are home from school, so it will have to be a very sparse time I work now until I feel my children are old enough to be on their own, and I have teenage children that come in there, and I do not want other children in my house unless I’m there.”

The property awarded petitioner in the dissolution decree included $14,000 in home furnishings, a $6,000 diamond bracelet, and a 1973 Ford Torino station wagon. Petitioner was awarded a $5000 life insurance policy on respondent which had a cash surrender value of $1,300. The parties planned to sell the family residence. Petitioner was awarded payment of $13,167.23 out of the gross proceeds from the sale of the residence as her share of the parties’ liquid assets, which amounted to $37,734.46. In addition, petitioner was awarded a half interest in the net proceeds from the sale of the house.

Respondent was 40 years old at the time of the hearing on dissolution and claimed that a heart condition had forced him to reduce his work load as a pediatrician. At the time of the hearing in February, 1975, his gross salary from his medical corporation was $5,000 per month, and his net salary was $3450 per month. In 1974, respondent’s income was $75,000.00. In addition to $2,605 in home furnishings, a $6000 Moran painting, and a 1972 Ford Convertible, respondent was awarded all of the parties’ liquid assets which were valued at $37,-734.46. These assets included a $10,000 note from respondent’s mother, respondent’s vested interest in the pension plan from his medical corporation, respondent’s interest in the assets of his medical corporation, money in a savings account, insurance policies, and securities worth approximately $10,254.46. Respondent was awarded half interest in the net proceeds from the sale of the family residence. The expenses of the sale, petitioner’s $13,167.23 interest, and the first and second deeds of trust were to be deducted from the gross proceeds in order to reach the net proceeds from the sale. Respondent’s monthly expenses totalled $1650 per month, or $19,800 per year. The trial court ordered respondent to pay petitioner’s attorney’s fees of $4000.

As our summary of the facts pertinent to the spousal maintenance order indicates, the trial court’s order awarding petitioner $4000 as spousal maintenance for the year ending March 13, 1976 is supported by the evidence. The marital property has been roughly divided in half, petitioner awarded cash payments of $13,167.23 and her share of the net proceeds from the sale of the family residence. Petitioner earns very little from her part-time employment as a saleswoman, certainly far less than required to meet her yearly expenses of at least $7200. Respondent’s income of between $60,000 to $75,000 is adequate to allow respondent to meet his own needs while paying $4000 yearly maintenance. That portion of the trial court’s decree ordering respondent to páy $4000 as spousal maintenance in 1976 is affirmed.

However, insofar as the decree lessens the amount awarded as spousal maintenance for the 3 subsequent years and terminates spousal maintenance in 1979, the trial court’s decree is reversed. The trial court’s order in this regard is not supported by any substantial evidence. The only evidence before the trial court which indicates that the financial circumstances of the parties might be different in future is the testimony given by petitioner that her job as a saleswoman “shows promise” if she “build[s] up a following” in a few years. No evidence was presented as to petitioner’s income expectations should she actually acquire “a following”. We do not believe that petitioner’s statements constitute substantial evidence of petitioner’s future ability to provide for her reasonable needs. The facts presented by the case at bar are similar to the facts in In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975), and our decision is guided by the result in that case. If the evidence indicates that the dependent spouse’s financial prospects will not improve dramatically in the future and that the means of the spouse providing maintenance are not likely to decrease in the future, the trial court abuses its discretion when it speculates that the original maintenance award will no longer be required in the future. In re Marriage of Powers, su pra at 955. Maintenance should not be prospectively decreased or terminated if there is no evidence or reasonable expectation that the circumstances of the parties will be markedly different in future.

The “earning capacity” of a spouse is an illusory financial resource if the evidence does not justify a conclusion that the spouse can realize such “earning capacity”. In re Marriage of Vanet, 544 S.W.2d 236, 242-43[7] (Mo.App.1976). The court is not restricted to a consideration of present earnings and can consider prior earning capacity and probable future prospects, but the evidence must justify the inference that the spouse will realize such expectations. In re Marriage of Va net, supra at 242-43[4, 7]. A future income source should not be considered if the amount of the future income is speculative. See Butcher v. Butcher, 544 S.W.2d 249, 253[3] (Mo.App.1976).

Because the trial court’s order decreasing spousal maintenance during the period for which maintenance was provided and terminating such maintenance after 4 years was not based upon any substantial evidence, the order is erroneous and is reversed. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). After considering the law and the evidence pertinent to the question of spousal maintenance, we enter the order which should have been entered by the trial court. Murray v. Murray, 538 S.W.2d 587, 588 (Mo.App.1976). Spousal maintenance should be set at $4000 per year, payable on March thirteenth of each year, beginning for the year ending March 13, 1976. Maintenance shall not be decreased in subsequent years nor shall maintenance be terminated in 1979, absent a proceeding for modification pursuant to Section 452.370, RSMo Supp.1973.

Petitioner’s third contention is that the court erred in denying her motion for attorney’s fees, costs on appeal, and temporary maintenance pending appeal. As the argument portion of petitioner’s brief did not develop her contention concerning temporary maintenance pending appeal, we deem such contention abandoned. State v. Schulten, 529 S.W.2d 432[4] (Mo.App.1975); Bopp v. Spainhower, 519 S.W.2d 281, 286 (Mo. banc 1975). Petitioner is mistaken in her belief that all issues involving temporary maintenance were resolved in Point II of her brief. The alleged argument regarding periodic maintenance found in Point II is separate and distinct from an argument regarding maintenance on appeal.

However, we do reach the merits of petitioner’s contentions concerning attorney’s fees and costs of appeal. The trial court erred in denying the motion for attorney’s fees and costs of appeal because the appeal is not clearly without merit and the transcript indicates that, as between the two parties, the respondent can better afford to bear the extraordinary expenses of the appeal. In re Marriage of Leonard, 538 S.W.2d 736, 737 (Mo.App.1976). Though petitioner is not destitute, she should not be required to strip herself of all property to prosecute an appeal. In re Marriage of Leonard, supra, especially when respondent is financially able to pay the fees and costs and payment would put a financial burden on petitioner. Hill v. Hill, 456 S.W.2d 591, 593 (Mo.App.1970); Matthews v. Matthews, 337 S.W.2d 529, 536 (Mo.App.1960). Therefore, we reverse the order of the Circuit Court denying petitioner’s motion for attorney’s fees and costs on appeal, and we remand to that Court for an order awarding petitioner $300 for costs of appeal and $1,500 as attorney’s fees.

The trial court’s order decreasing spousal maintenance in years after 1976 and terminating spousal maintenance in 1979 is reversed and remanded. The trial court’s order denying petitioner’s motion for attorney’s fees and costs on appeal is also reversed and remanded. The trial court is ordered to enter its order and decree consistent with this opinion. Spousal maintenance should be set at $4000 per year, and petitioner should be granted $300 for costs of appeal and $1500 as attorney’s fees.

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

      . We note that, had the trial court found the bracelet to be the separate property of the wife, the trial court might still have included the value of the bracelet in its computations rela-five to the division of property. § 452.330.1 RSMo Supp.1973; In re Marriage of Cain, 536 S.W.2d 866, 872-75 (Mo.App.1976).

      . During the hearing on petitioner’s motion for attorney’s fees, costs of appeal, and temporary maintenance on May 6, 1975, petitioner testified that she was working 3 days per week at Leppert-Ross and was paid a salary of $92.50 every two weeks, plus commission from sales. She reiterated her reluctance to work full time or during the summer while her children were at home and unsupervised. She stated that her mother was too ill to babysit and that paid babysitters were too expensive. Petitioner’s testimony is relevant only as it applies to her motion, and we have not considered this evidence in our analysis of the reasonableness of the maintenance order of March 13, 1975. However, had such evidence been before the trial court when it entered its decree, we do not believe that our decision would be different.

      . The family residence was valued at approximately $100,000 and was subject to a $25,000 first deed of trust and a $15,000 second deed of trust.

      . At the time of the hearing, the petitioner had worked one day selling clothing on commission. She had sold about $100.00 of clothing and made $4.00.