author: SIMEONE, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Buford R. NICHELSON, Defendant-Appellant.
    No. 37571.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 25, 1977.
    Motion for Rehearing or Transfer Denied Feb. 16, 1977.
    Application to Transfer Denied March 14, 1977.

      Hanks, Taylor & Suddarth, Jerry Sud-darth, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., James R. Harten-bach, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   SIMEONE, Chief Judge.

This is an appeal by defendant-appellant, Buford Richard Nichelson, from a judgment of conviction entered on October 31, 1975, for the offense of stealing a motor vehicle, §§ 560.156, 560.161, RSMo. The court, having found that the defendant came within the provisions of the Second Offender Act, § 556.280, sentenced the appellant to seven years in the department of corrections.

On September 14, 1976, we handed down a divisional opinion. Prior thereto, appellant had requested an oral argument. But, because of some clerical error, the cause was erroneously submitted on briefs. After our divisional opinion was handed down, appellant filed a motion for rehearing. Since the divisional opinion of September 14, 1976 did not deal with the merits of one of the points raised in the briefs, we sustained the motion for rehearing and reset the cause for argument and heard arguments on the issues raised by appellant. Our opinion of September 14,1976 is hereby withdrawn and we deal here with the merits of all of the points raised by the appellant seeking a reversal and remand of the proceedings.

The evidence shows that on May 7, 1974 Mr. Seth Werner Burgman, a retired gentleman, owned a 1970 Chevrolet Impala Coupe. On the morning of May 7, 1974, he and his wife went shopping at the South County Shopping Center where he parked his car, locked the doors and went into Famous-Barr to shop.

Meanwhile, some distance away, several detectives from the Criminal Intelligence Bureau and three officers from the St. Louis County Organized Crime Task Force were in the area of Beck’s Auto Sales located within the immediate vicinity. The officers had radio communication with each other. One of the officers was Detective Frank Horvath. He was in an unmarked car and at the rear of Beck’s Auto Sales. He observed that the defendant, Nichelson, was in the driver’s seat of a red 1973 Ford Ranchero. Another man was in the Ranchero — Joe Dean Cantrell. Detective Horvath saw the Ranchero leave the auto sales lot, proceed south on Lemay Ferry Road and pull onto the South County Center parking lot. The officer did not see the Ranchero again until it left the lot and “headed” towards 1-55. The Ranchero at that time was stopped at a light and was behind the 1970 Chevrolet now driven by Cantrell. Officer Horvath at this time arrested the defendant, Buford Nichelson, who was driving the Ranchero. It was approximately 10:30 a. m.

Another officer, James Holt, was in the vicinity of the auto sales store in an unmarked automobile. He saw the Ranchero, being driven by the defendant, Nichelson, come “out of a side street” and he followed the Ranchero. The vehicle went south on Lemay Ferry Road to a bowling alley, then to a Venture Store parking lot where it “drove slowly by the front of the building in between the aisles of cars,” and then pulled onto Lemay Ferry Road and went to the South County Shopping Center. He did not see the vehicle again until he stopped the Ranchero and the Chevrolet at Lindbergh and 1-55. At this time, Officer Holt placed the driver of the Chevrolet, Joseph Dean Cantrell, under arrest.

A third detective, Ronald C. Stauffer, of the Criminal Intelligence Bureau, was also in the “neighborhood” of Beck’s Auto Sales. He was in an unmarked vehicle and in communication with the other officers. He observed Cantrell and Nichelson in the Ranchero southbound on Lemay Ferry Road at Telegraph Road. He too saw the Ranchero pull “out of the Venture Store lot,” and then saw it pull “into the entrance of the South County Shopping Center.” The car went to the upper level where Mr. Burgman’s vehicle was parked. Detective Stauffer, watching through a pair of ten-power binoculars from sixty to seventy-five yards away, saw Nichelson driving the Ranchero and Cantrell sitting in the passenger’s seat of that vehicle. The Ranchero pulled up “next to a 1970 Chevrolet” so that the passenger’s door of the Ranchero was alongside the driver’s door of the Burgman Chevrolet. Cantrell “. . . got out of the Ford Ranchero along by the side of the 1970 Chevy, and ducked down between the cars.” Stauffer then lost sight of Cantrell for about fifteen seconds. Cantrell then raised up and re-entered the Ranchero. Ni-chelson backed the Ranchero into a parking place behind the Chevrolet. After doing so, the officer saw that Cantrell “. . . was leaning forward in the seat with his arms down toward the floorboard, and Mr. Ni-chelson was looking — moving his head back and forth, looking across the lot.” After about three minutes, Nichelson moved the Ranchero towards the Chevrolet and made a right turn in front of it; Cantrell got out of the Ranchero, walked over to the passenger’s door of the Chevrolet, slid across the seat and “started the car” [the Burgman Chevrolet]. The two cars then drove away and stopped for a traffic light at Lindbergh and 1-55 where Officers Horvath and Holt, and perhaps others, converged upon them. Both Cantrell and Nichelson were arrested. After the vehicles were stopped, Detective Stauffer had occasion to look “inside that Ford Ranchero.” He saw a “brown paper bag on the floor, with a hand-held keymaker on top of it, and a pair of vise grips and blank virgin keys.” Other items were also found inside the Ranchero by Detective Stauffer and other officers. These items consisted of a bolt cutter, a dent puller, wrenches, screwdrivers, hammers, old locks and metal shavings.

After Mr. Burgman and his wife had finished shopping, they returned to the parking lot but could not find their car. They then called the police. When the police arrived they took the Burgmans to Lindbergh and 1-55 where the Ranchero and Chevrolet were stopped and there Mr. Burgman identified his vehicle. When he observed his vehicle, the lock on the driver’s side was “just pushed in and had some tape wrapped around it and it was pushed in the hole where it was pushed out. It was just pushed back in.” He took the lock out and gave it to an employee of the prosecutor’s office.

After these events on May 7, 1974, the appellant was charged by an amended information with a prior conviction and acting with another in stealing a motor vehicle. Trial was held and the above evidence was adduced. At the close of the case, appellant moved for a judgment of acquittal. The court overruled the motion although it indicated that “I think it’s very close . . . extremely close.” After instructions, the cause was argued. Defense counsel’s argument consisted of attempting to show, as he had brought out on cross-examination of state’s witnesses, that appellant had committed no act which was illegal and that appellant had not participated in the stealing of Mr. Burgman’s vehicle. Appellant argued that the circumstances were consistent with innocence and the tools and instruments found in the Ranchero were not illegal possessions.

During the second half of the closing argument, the prosecuting attorney stated:

“. . .1 really think that was an obvious attempt to stay away from the evidence, to talk about other things.
He talked about tools, and that men all have tools in their cars. That’s true, I suppose, many men do. But ask yourselves, how many men have a hand-held keymaker in their car? How many have seven or eight blank keys in their car? How many have two or three spare lock mechanisms in their car? .
Don’t make any mistake about the acting in consort with one another. The evidence is clear on that. I think you can infer from how easy they did it, and it’s very logical, Buford Ni-chelson knew what he was doing and that he was a professional car thief." (Emphasis added).

Objection was made and overruled. The prosecutor continued:

“From the evidence you have seen in this case, no doubt can be left in your minds that there sits a professional car thief. ... In my opinion he is a professional car thief. The evidence is overwhelmingly obvious. . . . But does that mean he’s not guilty of the theft because he was clever enough to remain in the car? . . . ” (Emphasis added).

Later the prosecutor referred to the “professional methods” these two men used. At the conclusion of his argument, the prosecutor stated:

“. . . The evidence is overwhelming. It makes it clear Buford Nichelson is a professional car thief. There is no doubt about that. The evidence makes it absolutely clear. . . .” (Emphasis added).

After instructions and argument, the jury retired and found the defendant guilty. A motion for new trial was filed and overruled. The defendant was sentenced. On appeal defendant contends that the court erred (1) in failing to sustain his motion for judgment of acquittal and (2) in refusing to declare a mistrial because of the prosecutor’s argument referring to appellant as a “professional car thief.”

Appellant first contends that the court erred in failing to sustain his motion for judgment of acquittal at the close of the evidence and in submitting the cause to the jury for the reason that the evidence was insufficient to submit the cause to the jury. In determining this issue, the appellate court considers as true the evidence favorable to the state and the favorable inferences to be drawn therefrom and evidence to the contrary is to be rejected. Our function is not to substitute our judgment for that of the jury, but we determine only whether the evidence, considered in the light most favorable to the state and all inferences therefrom, disregarding evidence to the contrary, is sufficient to make a submissible case. If there is sufficient evidence to support the finding of the jury, it should not be disturbed on appeal. State v. Cain, 507 S.W.2d 437, 438 (Mo.App.1974); State v. Arnold, 534 S.W.2d 836, 837 (Mo.App.1976).

In the resolution of this issue, we must not only view the evidence in a light most favorable to the state but we are governed by other principles which may be briefly stated: (1) all persons who participate in an offense are equally guilty; (2) presence of an accused at the commission of an offense is evidence to be considered but to sustain a conviction something more than presence must be shown. In addition, it is necessary that the accused associate himself with the venture or affirmatively participate in the offense in some manner. Proof of any form of participation suffices. Any evidence showing any form of affirmative participation is sufficient to support a conviction. The evidence to show affirmative participation may be circumstantial. But, in order to warrant a conviction based on circumstantial evidence, the facts and circumstances must be consistent with each other, be consistent with the hypothesis of the guilt of the accused and be inconsistent with every reasonable hypothesis of innocence. State v. Burks, 521 S.W.2d 11, 14-15 (Mo.App.1975).

Tested within these principles, there was sufficient evidence to submit the cause to the jury. The appellant was in an automobile in which were found tools and equipment for duplicating keys; appellant was present when undoubtedly a duplicate key to the Chevrolet belonging to Mr. Burg-man was made; he moved the car back and forth; he “watched” during the period of time a key was undoubtedly being duplicated by Mr. Cantrell; he moved his head back and forth — looking across the lot. The reasonable inferences from the circumstances show that there was more to this transaction than merely helping a friend as argued by the defense. It was not necessary for the state to show defendant personally drove the stolen Burgman vehicle. One who acts on a lookout aids in the commission of the offense since it is affirmative participation. State v. Breese, 326 Mo. 885, 33 S.W.2d 919, 922 (1930). The jury could infer that under all of the facts and circumstances the defendant participated in the offense and acted as a lookout while Mr. Cantrell was making a duplicate key in the Ranchero. Presence, companionship and conduct before and after an offense are circumstances from which the defendant’s participation in the crime may be inferred. State v. Johnson, 510 S.W.2d 485, 489 (Mo.App.1974). Here, defendant drove with Cantrell before the theft, remained with him as lookout in the Ranchero and drove directly behind Cantrell who was driving the Chevrolet after the theft. From all of the actions of the defendant, the jury could well infer defendant’s participation in the offense of stealing a motor vehicle. Hence, the trial court did not err in denying the motion for judgment of acquittal.

Neither did the trial court err in overruling appellant’s motion for a mistrial in the context of this case on the ground that the prosecutor used the term “professional car thief.”

While the duty of the prosecutor is to see that an accused receives a fair trial, the prosecutor has wide latitude in oral argument. The trial court has wide discretion in determining the latitude permitted counsel in argument and we will not disturb that discretion unless there has been a clear abuse thereof. As long as the prosecutor stays within the confines of the evidence and its reasonable inferences therefrom, the argument is legitimate. State v. Bolden, 525 S.W.2d 625, 634 (Mo.App.1975). But argument cannot go beyond bounds so that it excites, inflames or appeals to prejudice. State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, 526 (banc 1947). In State v. Taylor, 508 S.W.2d 506, 514 (Mo.App.1974), we held that reference to the defendant as a “pusher” under the evidence was not reversible error.

We hold that the trial court did not err in these circumstances in denying the motion for mistrial because of the prosecutor’s references to “professional car thief.” The granting of a mistrial is a drastic remedy and much must be left to the discretion of the trial court. We find no abuse of discretion here. In the context of this case and under the facts as they were developed at trial, the references to “professional car thief” were within the confines of the evidence. The prosecutor’s references to “professional” were used in relation to the evidence in the case and were used to show that the offense was done in a professional and efficient manner. The tools and equipment found in the Ranchero — a keymaker, blank keys, dent puller and other tools were indicative of the efficiency employed. In this context, “professional" did not imply that the defendant had committed other similar offenses but that the conduct of the defendant and his companion was of a “professional” quality.

Appellant relies on State v. Mobley, 369 S.W.2d 576 (Mo.1963), and argues that the use of the term “professional burglar” therein controls this case. In State v. Mobley, supra, our Supreme Court reversed and remanded the cause because of the impropriety of the prosecutor’s argument. Examination of that decision shows that it is not controlling. The prosecutor clearly went beyond all propriety. He referred to himself as “ ‘a representative of the decent, law-abiding people of the community’ ” and defense counsel “ ‘just represents a client, a guilty client.’ ” State v. Mobley, supra, 369 S.W.2d at 579. He also referred to Mobley as a “ ‘notorious criminal, a professional burglar, a man who has shown, by his long record, that he has no regard or respect for the rights of other people.’ ” Id. Under those circumstances, the court held that the purpose of the argument was to inject unconnected offenses. That is not the situation here. State v. Mobley, supra, is not dispositive of the issue presented. We conclude that the references to “professional” were within the context of the evidence. We find no error.

We have read the entire transcript; we have read the briefs; and we have read the authorities relied upon by the appellant and find that they are not controlling. We are convinced that there is no prejudicial error and that the judgment of conviction should be affirmed.

The judgment is affirmed.

KELLY and GUNN, JJ., concur.

      . Throughout the transcript and briefs, the defendant is referred to as Buford Richard Nichel-son. However, an amendment was made to the information as to the spelling of the defendant’s name. The amendment amended the spelling of the name from “Nichelson” to “Nickelson.”

      . Two other references were made that the police had done an excellent job in “catching” two “professionals.” No objections were made to those references to “professionals.”

      . Appellant in the argument portion of his brief complains that the prosecutor injected his personal opinion that defendant was a professional car thief. This was not preserved in the motion for new trial and is not preserved for review. We do not find it to be plain error under Rule 27.20(c). A prosecutor, of course, is not to inject his personal opinion of guilt. State v. Cole, 252 S.W. 698, 701 (Mo.1923); State v. Groves, 295 S.W.2d 169, 173 (Mo.1956).


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Terry PROCTOR, Defendant-Appellant.
    No. 37714.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 25, 1977.

      Robert A. Hampe, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

A jury found appellant guilty of murder in the second degree, § 559.020 RSMo 1969, and assault with the intent to kill with malice aforethought, § 559.180 RSMo 1969, in connection with the shooting of appellant’s girlfriend and her estranged husband.

On appeal, appellant challenges the exclusion of defense evidence that appellant lawfully purchased his gun several years prior to the alleged murder and assault pursuant to appellant’s employment as a security guard. The trial court had excluded such evidence as immaterial and irrelevant. Appellant contends that evidence concerning the purchase of the gun is relevant to disprove “malice aforethought” , an element of the crime of assault with the intent to kill with malice aforethought. § 559.180, supra. Appellant argues that the excluded evidence was necessary to prove that appellant did not purchase his gun as a part of any plan to attack the victims of the shooting. We do not believe the trial court erred in excluding evidence of the circumstances surrounding appellant’s purchase of his gun.

The determination of the materiality and relevancy of evidence is a matter within the discretion of the trial judge. State v. Martin, 530 S.W.2d 447, 452[18] (Mo.App.1975). Evidence is relevant if it tends to prove or disprove a fact in issue or corroborates relevant evidence bearing on the principal issue. State v. Sanderson, 528 S.W.2d 527, 531[7] (Mo.App.1975). It is settled that doubts as to the relevancy of evidence should be resolved in favor of the admissibility of the evidence. State v. Sanderson, supra at 531[7, 8]. However, evidence which tends to draw the attention of the jury away from the issue that it was called upon to resolve should be excluded. State v. Walden, 490 S.W.2d 391, 393[3] (Mo.App.1973). Likewise, other matters, such as confusion of issues or inefficient consumption of time in trial, may outweigh the value of the proffered evidence and justify exclusion of the evidence. Gatzke v. Terminal R. R. Ass’n of St. Louis, 321 S.W.2d 462, 466[5] (Mo.1959).

In excluding evidence as to the time and circumstances surrounding the purchase of appellant’s gun, the trial court below did not abuse its discretion. The state did not attempt to prove that appellant purchased his gun as a part of a plan to attack the victims. Appellant’s testimony established that the gun had been purchased prior to the date of the shootings. Appellant testified that he believed himself threatened by his girlfriend’s estranged husband after an argument with the husband on the morning of the shootings and that he had retrieved his gun from a closet in his aunt’s apartment following the dispute. Since there was evidence that appellant purchased his gun prior to the day on which the alleged murder and assault occurred and since appellant’s state of mind on the day of the shootings is the matter at issue, we fail to understand how the circumstances surrounding the purchase of the gun would disprove any wrongful intent on the day of the charged murder and assault. The proffered evidence is irrelevant, and the court did not err in excluding it.

The judgment is affirmed.

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

      . “Malice aforethought” may be defined as the intentional doing of a wrongful act without just cause or excuse after thinking of it beforehand for any length of time, however short. State v. Smart, 485 S.W.2d 90, 93[2, 3] (Mo.1972).

      . Although “Malice aforethought” is also an element of murder in the second degree, State v. Anderson, 375 S.W.2d 116, 119[2] (Mo.1964), appellant has confined his argument to the assault charge.


author: WEIER, Presiding Judge.

text:
    Henry Earl HENDERSON, Movant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 38265.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 25, 1977.
    Herbert A. Kasten, Jr., Huck, Kasten & LaBeaume, St. Louis, for movant-appellant.
    John Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., George A. Peach, Circuit Atty., Thomas C. Mul-doon, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Movant appeals from the denial of his Rule 27.26 motion to vacate judgments and sentences for second degree murder and assault to kill without malice. The jury trial convictions for these offenses were affirmed on direct appeal. State v. Henderson, 510 S.W.2d 813 (Mo.App.1974).

Movant’s sole contention is that the trial court was clearly erroneous in denying his Rule 27.26 motion because the original trial court lacked subject matter jurisdiction due to a fatal variance between the indictment and proof with respect to the murder charge in Count I. Count I of the indictment charged that movant “feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought did make an assault upon one EARLY LASH-LEY with a loaded shotgun and then and there, feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought did discharge said shotgun at and upon the body of the said EARLY LASHLEY, thereby feloniously inflicting a mortal wound upon the said EARLY LASHLEY, from which said mortal wound EARLY LASHLEY did die on June 24th, 1972, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.” The evidence showed that the fatal shot was inflicted by a bullet from a .38 caliber pistol.

Jurisdictional questions may be raised at any time. Brown v. State, 452 S.W.2d 176, 179[9] (Mo.1970). Sufficiency of the indictment is a jurisdictional question, State v. Davis, 510 S.W.2d 790, 792[3] (Mo.App.1974), which can be raised for the first time in a Rule 27.26 proceeding. However, movant does not attack the sufficiency of the indictment. He only raises the question of the variance between the indictment and proof. This is not a jurisdictional question and cannot be raised for the first time in a Rule 27.26 proceeding. It must be brought to the attention of the original trial court and if ruled on adversely to defendant it may then be raised on direct appeal. State v. Mathews, 328 S.W.2d 642, 645[4] (Mo.1959); State v. Dobson, 303 S.W.2d 650, 651[2] (Mo.1957), cert. denied, 355 U.S. 964, 78 S.Ct. 554, 2 L.Ed.2d 539 (1958); State v. Yearwood, 510 S.W.2d 43, 44[1] (Mo.App.1974); State v. Boone, 490 S.W.2d 318, 322[5] (Mo.App.1973).

Because this was a matter which should have been submitted to the court at time of trial and upon failure to grant relief, preserved as a contention on direct appeal, we may not entertain it on appeal in a Rule 27.26 proceeding. Rule 27.26(b)(3).

The judgment denying the motion is affirmed.

DOWD and CLEMENS, JJ., concur.

      . If movant were raising this point it would be without merit because the indictment here included all necessary elements of murder under § 559.010, RSMo.1969, the applicable statute at the time of the offense and trial. It fully informed movant of the offense for which he was charged. See Rayford v. State, 504 S.W.2d 285, 290[5] (Mo.App.1973). Naming the type of weapon involved was surplusage. State v. McKinney, 528 S.W.2d 1, 3 (Mo.App.1975); State v. Kirk, 510 S.W.2d 196, 201 (Mo.App.1974); State v. Williams, 510 S.W.2d 63, 64[2] (Mo.App.1974). A variance with respect to this type of superfluous allegation is not material. Rule 26.04; State v. McKinney, supra at 3 [3]; State v. Johnson, 457 S.W.2d 795, 799[7] (Mo.1970).


text:
    Melvin Leroy TYLER, Petitioner-Appellant, v. STATE of Missouri, Respondent.
    No. 37321.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 25, 1977.

      Robert M. Kaiser, H. Carl Kuelker, Kuelker, Gates & Schaumann, St. Louis, for petitioner-appellant.
    John Ashcroft, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for respondent.
   WEIER, Presiding Judge.

Appellant was convicted on guilty pleas to four charges of armed robbery and sentenced on each charge to eight years imprisonment, the terms to run concurrently. He subsequently instituted post-conviction proceedings pursuant to Rule 27.26. The ruling of the reviewing court which, inter alia, set aside the judgment of conviction with respect to one of the four robbery charges, was affirmed by our Supreme Court. Tyler v. State, 485 S.W.2d 102 (Mo.1972). Appellant later filed the petition for writ of error coram nobis which is the subject of this appeal. The petition, which was denied by the court below, is basically an attack upon the reviewing court’s actions in the Rule 27.26 proceeding. Appellant is attempting to demonstrate that the reviewing court set aside the wrong robbery conviction and now asks that we explore this contention.

We conclude from the record that appellant has now served the sentences assessed for these convictions. Since appellant is not in custody under the sentences he seeks to have invalidated, coram nobis, rather than a motion under Rule 27.26, would be an appropriate remedy to attack the judgments of conviction. Cook v. State, 543 S.W.2d 309, 311[2] (Mo.App.1976). However, the allegation in the instant petition which is presented for our review, that the court in the Rule 27.26 proceeding had insufficient evidence before it to determine which of the robbery charges appellant may have had a defense to, is not an attack upon the judgments of conviction and cannot be considered in a coram nobis proceeding. Laster v. State, 461 S.W.2d 839, 840-841[5] (Mo.1971); Howard v. State, 493 S.W.2d 14, 19[8] (Mo.App.1973).

The judgment of the circuit court, dismissing the petition for writ of error coram nobis, is affirmed.

DOWD and CLEMENS, JJ., concur.

      . For those interested, see: Tyler v. Swenson, 483 F.2d 611 (8th Cir. 1973); Tyler v. Wyrick, 405 F.Supp. 779 (E.D.Mo.1975); Tyler v. Wyrick, 540 F.2d 921 (8th Cir. 1976).


author: McMILLIAN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Danny AX, Defendant-Appellant.
    No. 37827.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 25, 1977.
    William J. Shaw, Public Defender, Joseph W. Downey, Asst. Public Defender, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Preston Dean, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Ann Fran Carpini, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant appeals from a conviction of robbery in the first degree and a sentence of eight (8) years imprisonment pursuant to § 560.120, RSMo 1969.

Because defendant does not question the sufficiency of the evidence, no detailed narrative of the evidence is necessary.

On May 11,1975, as Mrs. Sandra Sweeney was walking on the parking lot at the West County Shopping Center, a passenger riding in a truck snatched her purse from her arm. Because the purse had two straps which went over her right arm, she was thrown to the ground. Fifteen minutes later because of the alertness of Harry Plaisted, an off-duty St. Louis police officer, defendant and his two companions were taken into custody. Found in the truck was Mrs. Sweeney’s purse, credit cards, cigarette case, and other articles. Defendant was identified as the driver of the truck.

The sole issue raised by defendant is the failure of the trial court to submit to the jury an instruction on the offense of stealing from the person. We affirm judgment.

At the outset, we agree with the general propositions of law set forth in State v. Adams, 406 S.W.2d 608 (Mo.1966), which is relied upon by defendant. Undeniably, to constitute the offense of robbery, the force used must precede or be contemporaneous with the taking of the property. So, too, it is indisputable that where one snatches a valuable article from another it is robbery when force is exercised in overcoming the resistance of the person robbed or in detaching the article taken where it is fastened to the clothing or person of the victim. But where the article is merely snatched from the hands of another, the offense is stealing, not robbery. Adams, supra, at 610.

The vice of defendant’s contention that an instruction on stealing from the person should have been given is that no such instruction is necessary where the state’s evidence only establishes facts to support robbery, and where the defendant offers no contradictory evidence. State v. Blewett, 507 S.W.2d 56, 57 (Mo.App.1974).

Even more to the point is State v. Houston, 451 S.W.2d 37 (Mo.1970). There the jury had found defendant guilty of robbery in the first degree and on appeal defendant argued that the court should have given to the jury an instruction on stealing from a person. The victim testified that two boys grabbed her and took her purse. The bystander testified that the victim told him somebody knocked her down and took her purse. This testimony was the only testimony pertaining to the occurrence and was not disputed by defendant. The court, in Houston, supra, concluded that because the only evidence in the case as to the actual taking of the victim’s property indicated that the property was taken by force and violence, and because defendant offered no evidence to the contrary, it was not error in failing to submit an instruction on stealing from the person.

In the present case, as in Houston, supra, the state’s evidence as to the forcible taking came from the victim. No contradictory evidence was introduced by defendant. Consequently, there is absolutely no evidentiary base to support the giving of a stealing from the person instruction. Nor is there anything in either the Adams case or State v. White, 326 Mo. 1000, 34 S.W.2d 79 (1930) that would compel a contrary conclusion.

Accordingly, judgment is affirmed.

STEWART and SMITH, JJ., concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Appellant, v. William Frank ADAMS, Respondent.
    No. 37228.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 25, 1977.

      John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for appellant.
    Brendan Ryan, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., Raymond Brun-trager, Sr., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

The trial court dismissed an information purporting to charge William Frank Adams with operating an automobile without the consent of the owner in violation of § 560.-175(1) RSMo 1969. The State has appealed. We reverse and remand.

Respondent filed with its brief a motion to dismiss the appeal. He cites § 547.210 RSMo 1969 wherein it is provided that “When any * * * information is adjudged insufficient * * * if the prosecuting attorney prays an appeal to an appellate court, the court may, in its discretion, grant an appeal.” He asserts that the circuit attorney made no application to the trial court to appeal, and for that reason this appeal should be dismissed.

The procedure for the State to appeal, as set forth in § 547.210 RSMo 1969, has been changed by Rule 28.04, and an application to the trial court to appeal is no longer required. As stated in Rule 36.01, the Rules adopted by the Supreme Court pursuant to Mo.Const. Art. V § 5, “govern the procedure in all criminal proceedings in all courts of the State of Missouri having jurisdiction of criminal proceedings.” The motion to dismiss the appeal is overruled.

In its parts material to this appeal the information in lieu of indictment is as follows:

“That William Frank Adams in the City of St. Louis, State of Missouri, on the 24th day of October, 1974, did unlawfully, willfully and feloniously drive, use and operate a certain motor vehicle, to-wit: a 1973 Oldsmobile, without the permission of the owner; Patrolman Ronald Allen, from whom said automobile was stolen on or about April 16th, 1974, who had assigned his interest in said automobile to Liberty Mutual Insurance Company on or about May 10th, 1974; and that said William Frank Adams did not have the permission of said Liberty Mutual Insurance Company, to use, drive or operate said automobile; contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the State.”

The trial court ruled that the language of the information (a) “appear[s] to charge more than one criminal offense in one count,” and (b) it is “not sufficiently explicit to define a single cause of action.”

It has long been the rule in this State that “the joinder of distinct felonies, other than those specifically authorized, does not result in the indictment or information being bad as a matter of law.” State v. Walker, 484 S.W.2d 284 (Mo.1972); State v. Gholson, 292 S.W. 27 (Mo.1927); State v. Terry, 325 S.W.2d 1 (Mo.1959). When two or more felonies are improperly charged in the same indictment or information, the remedy is to require the State to elect on which charge it will go to the jury. State v. Frankum, 425 S.W.2d 183 (Mo.1968); State v. Phelps, 478 S.W.2d 304 (Mo.1972). Therefore, assuming that the information does charge two criminal offenses, that did not make it subject to dismissal.

Next, is the information insufficiently explicit to charge one criminal offense? Of course, if it charges two separate criminal offenses, as we assumed in the previous discussion, it charges at least one criminal offense. Also, where an information “charges one offense and defectively charges another, the latter charge may be rejected as surplusage.” 41 Am.Jur.2d, Indictments and Informations, § 215.

The elements of an offense defined by § 560.175(1) are that the accused operated an automobile of another without permission of the owner thereof, and if in issue, that he did not do so in good faith in the honest belief that he had the permission of the owner. MAI-CR 7.80.

Certain rules have been set forth for testing the sufficiency of an information among which are: It must state the essential facts constituting the offense charged, State v. Cunningham, 380 S.W.2d 401 (Mo.1964) and it must adequately notify a defendant of the charge against him and constitute a bar to further prosecution for the same offense, State v. Tandy, 401 S.W.2d 409 (Mo.1966). If the information does these things by following the language of the statute or using words of similar import, poor draftsmanship will not render it fatally defective. Hodges v. State, 462 S.W.2d 786 (Mo.1971).

By applying the above rules it is readily apparent that the information is not defective, although its poor draftsmanship is at least equally apparent. By eliminating some of the surplusage, the information alleges that William Frank Adams did “drive and use” the described automobile which had been stolen from Ronald Allen, the owner, but who had “assigned his interest in said automobile to Liberty Mutual Insurance Company,” thereby making it the owner, and that the accused “did not have the permission” of said insurance company.

We are not at this stage concerned with the proof of the transfer of ownership by way of assignment or of the validity of the assignment, but the information was not subject to being dismissed.

The judgment is reversed and the cause remanded.

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


author: STEWART, Judge.

text:
    Charles E. ABBEY, Plaintiff-Respondent, v. Geneva (Steele) HEINS, Defendant-Appellant.
    No. 36931.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 25, 1977.
    Eugene K. Buckley, Evans & Dixon, St. Louis, for appellant.
    Gregg W. Keegan, P. Terence Crebs, For-dyce & Mayne, St. Louis, for respondent.
   STEWART, Judge.

Judgment in the sum of $15,000 was awarded plaintiff in his action for personal injuries against defendant, the operator of an automobile in which plaintiff was a passenger.

As an affirmative defense defendant alleged that plaintiff had executed an agreement releasing defendant from all claims arising out of the accident. Plaintiff, by reply, alleged that the release was procured by fraud. A jury returned a verdict in favor of plaintiff in the separate trial of the issue of the validity of the release.

It is generally held that the elements of actionable fraud are: “(1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker’s knowledge of its falsity or ignorance of its truth. (5) His intent that it should be acted on by the person and in the manner reasonably contemplated. (6) The hearer’s ignorance of its falsity. (7) His reliance on its truth. (8) His right to rely thereon. . . . ” Wood v. Robertson, 245 S.W.2d 80, 82 (Mo.1952).

In this case our discussion will be confined to three of the elements. The defendant charges the trial court with error in failing to sustain his motion for directed verdict because there was, (1) no evidence of a false representation, (2) there was no evidence to show that plaintiff relied upon any representation of defendant, and (3) because the evidence failed to show that plaintiff had a right to rely upon any representation of defendant. We affirm.

Plaintiff admits that he signed the “agreement and release.” He therefore assumed the burden of proving its invalidity by reason of fraud. Dawes v. Elliston, 369 S.W.2d 285[1] (Mo.App.1963).

We shall review the evidence and the inferences to be drawn from the evidence in the light most favorable to the verdict of the jury. We may consider defendant’s evidence which is favorable to plaintiff and disregard that which is not favorable to plaintiff. Frantz v. State Farm Mutual Auto Ins. Co., 526 S.W.2d 345[1] (Mo.App.1975).

The accident giving rise to this action occurred shortly after midnight on February 4, 1970. Defendant’s car left the road and struck a lamp post. Plaintiff lost consciousness. He suffered a compression fracture of the ninth dorsal vertebra, a chip fracture of the seventh dorsal vertebra, facial lacerations and loss of teeth.

Plaintiff was permitted to leave the hospital on the morning of February 4, upon condition that he would have someone to look after him. Plaintiff and defendant lived in the same apartment building and defendant agreed that plaintiff could stay in her apartment for his convalescence.

Plaintiff, who was 48 years of age at the time of the accident, was on a full government disability pension. He had been in the Marine Corps. In November of 1962 plaintiff was admitted to the Veterans Administration Hospital at Poplar Bluff, Missouri. He was moved to the hospital at Jefferson Barracks about three months later. The initial diagnosis was anxiety reaction chronic; duodenal ulcer active. Plaintiff remained as an inpatient at Jefferson Barracks Hospital until 1966 at which time he continued treatment as an outpatient until his discharge on January 13, 1967. The diagnosis upon discharge was “schizophrenic reaction, chronic; schizo-affected type in partial remission.” At the time of his discharge he was considered well oriented, but not well. He was considered to be sufficiently competent to receive his disability payment without the assistance of a guardian. Plaintiff continued to take the medication prescribed on discharge as needed.

On the day following the accident, Stephen Patterson, the claims representative of defendant’s insuror called upon plaintiff. Mr. Abbey was in bed and Mr. Patterson placed a microphone on his chest and recorded plaintiff’s statement with respect to the accident and the nature and extent of his injuries. After taking the statement Mr. Patterson told plaintiff to call him after he had accumulated some bills and that he, Patterson, would come out and take care of them.

In the latter part of February plaintiff had defendant call Mr. Patterson and ask him to come by because he had accumulated some bills. On February 23,1970, Mr. Patterson came to the apartment in response to the call. Plaintiff had paid bills in the sum of $215.96 and Mr. Patterson gave him a check. Mr. Patterson advised plaintiff that he had neglected to bring the proper form of release with him. He told plaintiff that he would trust him with the check and that he would send the proper release to plaintiff to be signed and mailed back to the insurance company.

A few days later plaintiff received a printed form, pink in color, which was titled “Release”. The word “Partial” had been typed before the word “Release”; the form had been completed by typing in the blank spaces. The document was a release under the “medical payments coverage” of defendant’s automobile insurance policy which is reproduced in the appendix to this opinion.

Plaintiff had Gerry F. Poe read and study the release for him because he had broken his glasses in the accident. He signed the release, had Mr. Poe sign as a witness, and mailed it to the insurance company. Mr. Poe is defendant’s brother-in-law and a friend of plaintiff.

In April, 1970, defendant made a- trip and was out of town for three weeks. Plaintiff, who was still convalescing, remained in defendant’s apartment. There was a telephone and kitchen in this apartment. Mr. Abbey’s apartment did not have these facilities. While defendant was away the porter in the apartment building helped plaintiff when he was caught up with his regular chores. For this service plaintiff paid the porter $200.00.

On May 4,1970, while defendant was still away, plaintiff called Mr. Patterson, told him that he had accumulated additional bills and asked Mr. Patterson to stop by. On the following morning Mr. Patterson called and told plaintiff that he would come by about noon with another man. Patterson told plaintiff that he was going to add $50.00 to plaintiff’s check which plaintiff should give to defendant. He also told plaintiff not to mention this in the presence of the other man.

Later that morning Mr. Patterson arrived with a Mr. Weaver, his claim supervisor. Plaintiff had been in bed; he was experiencing pain primarily in the back, and was taking two or three types of medication.

Mr. Patterson and Mr. Weaver were with him for about 45 minutes to an hour. While they were there defendant returned from her trip and remained in the apartment.

During the conversation Mr. Patterson brought up the question of settlement. Plaintiff told him he was not going to sign a final release on that day. At another point in their conversation, when Mr. Patterson asked about final settlement, plaintiff stated that he “would have to contact a lawyer concerning that.” At the time he had an estimated bill from the dentist for $1,350.00; $460.00 of the amount was related to the accident. $350.00 was due for nursing services, $200.00 for the porter which he had not paid. He was still under medical care.

The conversation continued and Mr. Patterson filled out a paper. Plaintiff at one point told Mr. Patterson that he did not want to hear any more and turned to go to his bed and lie down. Mr. Patterson, referring to the document, said, “Wait you have to sign this.” Mr. Patterson told him that it was the same thing he had signed before. Plaintiff saw the large print AGREEMENT & RELEASE and was told that it would be changed as before, i. e. to “Partial Agreement and Release”. Mr. Patterson then marked the signature line with an “X” and plaintiff signed next to the “X”. Plaintiff’s reading glasses had not been repaired so he did not read the paper. Plaintiff testified that in signing the paper he relied upon Patterson’s statement that it was the same as he had previously signed. This document is set out in full in the appendix.

Neither defendant nor her insurance representatives signed the release as witnesses and no attempt was made to obtain a neutral person to witness the execution of the release.

Patterson gave plaintiff a copy of the release and a check for $2,200.00. The check was in all respects the same as the check he had received when he signed the medical payments check except for the amount and some coded notations. Each check stated, “In payment of loss which occurred about 2-4, 1970.” Plaintiff returned to bed and Mr. Patterson and Mr. Weaver left immediately after the transaction.

In June and in August, plaintiff sent bills into the insurance company and was reimbursed. The checks, except for the amounts, were identical with those which he had received on prior occasions.

Only Mr. Weaver, the claim supervisor, for defendant’s insurance carrier testified for defendant. Neither defendant nor Mr. Patterson were called as witnesses. Other evidentiary facts relevant to the issues raised will be set out hereafter.

Defendant first contends that the representation by Patterson that the “Agreement and Release” of May 5, 1970, was “like or the same as” the “Partial Release” signed by plaintiff on February 27, 1970, was not a false representation because the two documents could be said to be the same. One of the essential elements in fraud is a false representation. Wood v. Robertson, supra. The only similarity between the documents is that they come under the genus, “release”. The document of February 27, was modified to make it a mere partial release and was confined to the medical payments portion of defendant’s automobile policy. The document of May 5 was a final release of all claims under the liability portion of the policy. There is an obvious difference in these documents. If it were not enough that the document of February 27 reflected payment only under the medical pay portion of defendant’s policy while the latter document had reference only to the liability portion of the policy, the greatest difference was that the first was a partial release, the latter a final release. The representation is given further significance when it is considered in the context of the discussion between the parties on May 5. Plaintiff had stated that he did not want to make a final settlement on that date; he wanted to confer with an attorney before making a final settlement.

The jury could reasonably find that Mr. Patterson represented to plaintiff that the document was a partial release under the medical payments portion of the policy. This was false.

Defendant contends that there was no evidence to support a finding that plaintiff relied upon this representation when he signed the release. As noted above plaintiff had announced his intention not to enter into a final settlement. From this alone the jury could have found that plaintiff had relied upon the representation of defendant’s insurance representative that the document presented for his signature was a partial release under the medical payment portion of the policy. The plaintiff also testified that he had relied upon this representation. The question of counsel was not masterfully framed but it was sufficient to permit such a finding.

A more difficult problem arises with respect to defendant’s contention that plaintiff had no right to rely upon the false representation of the defendant. There are numerous cases and many broad general statements of law set up as beacons for our guidance. For example in Kestner v. Jakobe, 446 S.W.2d 188, 195 (Mo.App.1969) the court states, “The general rule ... is that a party must exercise reasonable care in view of his situation to ascertain the truth before he can say he was misled, unless inquiry was prevented by the fraud-feasor, or unless the fraud-feasor has, or by artifice obtains, the confidence of his victim and anesthetizes his sense of caution.”

We believe the basic concept of an action or defense in fraud is best expressed by Judge Lamm in Judd v. Walker, 215 Mo. 312, 114 S.W. 979, 980 (Mo.1908):

“Fraud is a willful, malevolent, act directed to perpetrating a wrong to the rights of another. That such an act should not be actionable because of mere negligence or inadvertence ... in preventing the fraud ought to be neither good ethics nor good law. . . . But when an element of willful deception leads up to a transaction, the whole situation changes it ought not to be held that trust cannot be put in a positive assertion of a material fact, known to the speaker and unknown to the hearer, and intended to be relied on.”

Each case of this kind must be considered and decided on its own peculiar facts. Messina v. Greubel, 358 Mo. 439, 215 S.W.2d 456, 459 (1948).

Many factors may be considered in the court’s determination. We consider the nature of the transaction, the relation of the parties, the materiality of the representation, and the mental and physical condition of the parties. Hanson v. Acceptance Finance Co., 270 S.W.2d 143, 149 (Mo.App.1954).

We believe that in this case there was sufficient evidence to permit the jury to find that plaintiff was a schizophrenic at the time he signed the release. He had spent over three years as an inpatient in hospitals for treatment of the condition and continued treatment as an outpatient. Upon discharge plaintiff’s condition was described as “chronic” and in “partial remission.” He had been classified as permanently disabled. There was testimony that he was suffering from schizophrenia at the time of trial; that a schizophrenic is more or less sick all the time and has a much greater chance to make wrong decisions than normal people and that plaintiff was probably suffering from that condition at the time he signed the release. Plaintiff was also suffering from physical disabilities occasioned by the accident and was under medication. The jury could believe that defendant and the insurance carrier were not dealing with a normal person.

While plaintiff was capable of reading, his reading glasses had been broken and had not been replaced. This fact was known to defendant and her insurance representatives because the anticipated cost of replacing the glasses was discussed. He thus did not read the release. Even without his glasses he could make out the large printing at the top of the document, which read “Agreement and Release.” However, Mr. Patterson assured plaintiff that he would change that as he had done before. Plaintiff asked that the release be left with him so that he could have someone study it and then he would return it at a later time but Mr. Patterson said, “Well, come on. I’ll type this out later on, its getting late and you want to lay down.” It was after these further inducements that plaintiff signed the release. Although it was the policy of the insurance company to require an independent witness to the release where there was any question, no one was asked to witness the release.

The insurance company’s claims manual admonished its claim representatives to endeavor to establish a relationship of confidence and good will with claimants. On his first visit to plaintiff Mr. Patterson assured plaintiff that his bills would be paid as they were accumulated. In keeping with this promise Mr. Patterson appeared at plaintiff’s request on February 23. He took plaintiff’s word for the amount of the bills then accumulated and gave plaintiff a check. He advised plaintiff that he did not have the proper release form but that he would trust plaintiff to return the release. The release was mailed as promised. Plaintiff had a friend, defendant’s brother-in-law, study the release and read it to him. The release was in fact only a partial release of plaintiff’s claim under the medical portion of the defendant’s policy. We believe that it is a common experience of life that trust begets mutual trust. The jury would be warranted in finding that these transactions could cause plaintiff to place trust and confidence in defendant’s insurance representative.

It is the defendant who was being released by the document of May 5, therefore the jury could look to the relationship of plaintiff and defendant in order to place the questioned transaction in perspective. When plaintiff was injured he was advised that he could leave the hospital only if he had someone to look after him. Defendant took him into her apartment and looked after him from February 4 until she made the trip in April. She permitted him to remain in her apartment where he had the use of kitchen facilities and telephone while she was away. The confidential relationship referred to in the cases respecting fraud, need not be a fiduciary relationship in the technical sense but may be informal. They refer to any instance where one person relies upon and trusts another. Wilhoit v. Fite, 341 S.W.2d 806, 813 (Mo.1960). We believe that there was sufficient evidence here to permit a finding that a confidential relationship existed between plaintiff, defendant, and defendant’s insurance representative.

Defendant was present when the plaintiff was finally persuaded to sign the document on May 5. The jury could conclude that her presence was an assurance of the trustworthiness of her insurance claims man in the representations which he made to the plaintiff. See State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo.1976).

Defendant argues and there was evidence by way of testimony of the claim supervisor, that plaintiff consulted with defendant, explained to her that the release was a final release and asked her advice; that she told him she wanted nothing to do with the matter; that he could do as he pleased. Neither defendant nor Mr. Patterson who were present at the time were called to corroborate this testimony and the jury evidently did not believe the witness. It is not the prerogative of this court to weigh the evidence, we must disregard that testimony which is favorable to defendant. Frantz v. State Farm Mutual Auto Ins. Co., supra.

Defendant argues that the sum involved, $2,220.00 should have put plaintiff upon inquiry. The parties in their discussion covered not only present but anticipated medical expenses. The sum of $1,350.00 was mentioned with respect to dental repair. $460.00 of that amount was the result of the accident, $350.00 was to be paid for nursing care and $200.00 for the services of the porter and $100.00 per month toward defendant’s rent. They also discussed the fact that there would be further medical expenses. It is not unreasonable to believe that defendant would want to make an advancement on anticipated expenses and toward the liability settlement to retain the confidence and good will of the plaintiff to avoid possible litigation.

In view of the fact that each case must be considered on its own peculiar factual situation comparisons are not determinative. It is not always easy to reconcile the various cases. Cases with factual situations similar to the case at bar which have sustained the submission of fraud are, Dawes v. Elliston, 369 S.W.2d 285 (Mo.App.1963) and Schubert v. St. Louis Public Service Company, 214 S.W.2d 420 (Mo.1948).

Defendant relies primarily upon Kestner v. Jakobe, 446 S.W.2d 188 (Mo.App.1969). That case can be distinguished from the case at hand primarily because in Kestner “plaintiff’s evidence fail[ed] to establish that any false or fraudulent representation was made.” It is apparent that the discussion with respect to plaintiff’s “right to rely” is dicta. We have reviewed the other cases cited, but do not find them controlling here.

In this case defendant, through her representative, knew that plaintiff did not want to make a final settlement on that day. Mr. Patterson made the positive assertion that the document plaintiff was urged to sign was the same as the partial release under the medical coverage previously signed by plaintiff. Plaintiff was not a normal person; he did not have his glasses and none were available to him; no attempt was made to obtain an independent witness to the signing of the release. Defendant and the insurance adjustor had created an atmosphere of trust and confidence consistent with company policy. Under the peculiar facts of this case we can not say that the able trial court erred in submitting the issue of fraud to the jury.

Because of the conclusion we have reached, the other issues urged by the parties on this appeal need not be considered.

The judgment is affirmed.

CLEMENS, P. J. and DOWD, J., concur.

      . “Q. Did you rely upon the representations that Mr. Pátterson made to you when he came to you the first time that you had accumulated bills and he gave you the check for the $215., was there any difference between the representation made by Mr. Patterson the second occasion when he came and got your signature, where he designated that you should sign where the ‘X’ was, did you rely upon what he told you on that occasion?
      A. Yes, sir.”

      . Higgins v. American Car Co., 324 Mo. 189, 22 S.W.2d 1043 (1929).

        Heckenkamp v. Kennedy, 267 F.2d 887 (8th Cir. 1959).

        Allgood v. Tarkio Electric & Water Co., 222 Mo.App. 964, 6 S.W.2d 51 (1928).

        Alford v. Wabash Ry. Co., 229 Mo.App. 102, 73 S.W.2d 277 (1934).

        Poe v. Illinois Central R. Co., 339 Mo. 1025, 99 S.W.2d 82 (1936).


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Richard Bradford STRAYHORN, Appellant.
    No. 37103.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 25, 1977.
    Richard L. Rodemeyer, Asst. Public Defender, Clayton, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, John D. Ashcroft, Atty. Gen., Courtney Goodman, Jr., Pros. Atty., Clayton, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant has appealed his conviction of attempted first degree burglary. He does not question the sufficiency of the evidence and raises only one point: erroneous admission of police Officer Warren’s testimony as to what defendant had told him when apprehended without defendant having been given a Miranda warning.

The background: Carl Lister and his wife were awakened by the sound of a breaking window. They investigated and defendant fled as Mr. Lister faced him at the broken window. Minutes later police blocked defendant’s car as he drove away from the curb. When Officer Warren ordered defendant out of his car, he made the challenged statement:

“Q. What did he say to you at this time?
A. [Officer Warren] He said he was there to visit a girl friend; I believe he gave the name Joy.”

The state concedes defendant was then under arrest and defendant concedes that the point can now only be considered under plain error Rule 27.20(c).

The determinative issue is whether defendant’s answer was in response to Officer Warren’s questioning — in which case a Miranda warning would be required — or was volunteered and thereby required no such warning. Miranda v. Arizona, 384 U.S. 436, l.c. 478, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The wording of the challenged statement, considered alone, implies it was given in response to the police officer’s question rather than being a voluntary statement. On inquiry about the statement’s timing, Officer Warren specifically testified he had asked defendant no question when he “blurted out” the statement about having been in the apartment building. After an extended colloquy and further questions to Officer Warren, the court so found and let the challenged statement stand.

We consider the issue under the plain error rule which “is to be applied on a case-by-case basis where substantial rights are affected and there is a strong, clear showing that injustice will result if the rule is not invoked." State v. Embry, 530 S.W.2d 401[2] (Mo.App.1975). We conclude there is no “strong, clear showing” of error producing injustice to defendant and, so considered, defendant’s point is denied.

Judgment affirmed.

DOWD and WEIER, JJ., concur.


author: SMITH, Presiding Judge.

text:
    GEORGE F. DEUTSCHMANN, INC., Petitioner-Appellant, v. Constance LEISER et al., Respondents.
    No. 36869.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 25, 1977.

      Richard M. Stout, Kirkwood, for petitioner-appellant.
    Terry C. Allen, Rufus D. Shannon, William W. Clinkenbeard, Jefferson City, for respondent, Missouri Division of Employment Security.
    Charles B. Fain, Jefferson City, for respondent, Industrial Commission of Missouri.
   SMITH, Presiding Judge.

Petitioner appeals from the judgment of the Circuit Court affirming a decision of the Industrial Commission of Missouri that Constance Leiser is an insured worker under the Missouri Employment Security Law, Sec. 288.010 et seq. RSMo 1969. The dispute centers upon whether Ms. Leiser’s employment is exempted from the law by virtue of Sec. 288.034(12 (1)) dealing with agricultural labor.

George F. Deutschmann, Inc. is the operator of a number of greenhouses located in the City of Des Peres in St. Louis County. In the approximately 30 greenhouses and upon the growing fields adjacent thereto, Deutschmann grows, raises, and cultivates a variety of plants and flowers for sale both wholesale and retail. Most of the plants grown are sold from a plant showroom in one of Deutschmann’s greenhouses. In addition, Deutschmann operates, within the complex, a floral shop from which it sells cut flowers, potted plants, funeral wreaths, floral arrangements (artificial and real), and other items commonly sold from floral shops. More than half of the flowers sold through the floral shop are grown in Deutschmann’s growing operation. The remainder are purchased from floral wholesalers.

Ms. Leiser was an employee in the floral shop. While she might occasionally go into a greenhouse to pick up a plant for sale, she was in no way involved in the growing or cultivating part of the Deutschmann operation. She was a floral designer. As such it was her obligation to arrange flowers into floral arrangements such as wreaths. She also made sales, waited on customers and answered the telephone.

The Commission determined that since a “substantial portion of the sales in the floral shop are derived from the corporation’s wholesale purchases of flowers for resale in the shop” the services of employees in the floral shop did not constitute agricultural labor. It is conceded that this finding was based upon the application of the statute as it existed before an amendment having an effective date of January 20, 1972. Ms. Leiser’s wage periods were the second, third, and fourth quarters of 1972 and the first quarter of 1973. The 1972 amendment specifically provides that the agricultural labor exemption applies if the “operator produced more than one-half of the commodity with respect to which such service is performed." The evidence is clear that more than half of the flowers sold through the floral shop were produced by Deutsch-mann. The exemption therefore does not fail to apply for the reasons given by the Commission.

The trial court did not make a specific finding of its reason for upholding the Commission. Rather it concluded that “it can be argued . . . that Constance Leis-er’s employment did not fall into these [statutorily] described activities, rather her duties were limited to arranging flowers and making sales” or that those duties were performed in a “terminal market.” See Sec. 288.034(12 (1) (b) d iii). The conclusion that the floral shop might be a terminal market is contrary to the evidence and Agri-Foods Inc. v. Industrial Commission of Missouri, 511 S.W.2d 898 (Mo.App.1974) [7]. The Commission made no finding that Ms. Leiser’s activities were not those enumerated in the statute. That fact determination is for the Commission.

While we are bound by the determinations of fact made by the Commission, we must make our own determination of the law. Specifically we must decide whether persons employed as floral designers by a nursery or greenhouse operation which produces over half of the flowers used in its floral shop are in agricultural labor within the exemptions of Sec. 288.034(12 (1)).

The key statutory provision is Sec. 288.-034(12 (1) (b) d i) which exempts employees:

“In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed;” (Emphasis supplied).

Under Sec. 288.034(12 (1) (b) e) a nursery or greenhouse is a “farm.” It is to be observed that the statute bases the exemption not upon the nature of the employer’s operation but upon the work performed by the employee. The parties have joined issue upon the question of whether Ms. Leis-er’s activities fit one of the ten gerunds set forth in the above quoted statute. This leads to discussion of the applicability of Agri-Foods, Inc. v. Industrial Commission of Missouri, supra, which held that grading, certifying and processing eggs was agricultural labor within the statutory language. We do not find this to be the proper focus of attack.

Rather the key to Ms. Leiser’s status is the emphasized language — was her employment with a product delivered to market in an unmanufactured state. If her activities comprised merely the sorting, grading and sale of flowers, a majority of which were produced by Deutschmann, she would fall within the statutory exemption. See Kentucky Unemployment Insurance Com’n. v. Potts, 290 S.W.2d 38 (Ky.App.1956); St. Louis Rose Co. v. Unemployment Compensation Comm., 348 Mo. 1153, 159 S.W.2d 249 (1941); Agri-Foods, Inc. v. Industrial Commission of Missouri, supra. But the evidence in the record does not indicate that was the sole nature of her employment. She was a floral designer. Some (although the record is unclear as to how much) of her work consisted of taking flowers and through her efforts converting them into a different saleable product — wreaths, arrangements, sprays, etc.

“Unmanufactured” means “not manufactured.” Webster’s Third New International Dictionary (1961) p. 2503. “Manufacturing” means “to make from raw materials by hand or by machinery” or “to make into a product suitable for use.” Webster’s Third New International Dictionary (1961) p. 1378. In West Lake Quarry & Material Co. v. Schaffner, 451 S.W.2d 140 (Mo.1970), it was stated:

“ ‘[T]he best viewpoint which we might presently adopt on this subject of what constitutes manufacturing is this one, viz., that if a process takes something practically unsuitable for any common use and changes it so as to adopt it to such common use, then such a process may be legally considered as manufacturing within the meaning of the tax exemption statutes.’ ” [1. c. 143].

While the meaning of “manufacturing” under the tax exemption statutes and under the Employment Security Law may not be identical, they are similar. If anything the definition of that term should be more broadly construed under the latter which is remedial in nature and entitled to a broad construction to further the beneficial purposes of the act — to promote employment security and to provide payment of compensation to individuals in respect of their unemployment. See Sec. 288.020.

The flowers raised by Deutschmann are a raw material. While they have some marketability themselves, they are of more suitable common use when by the efforts of floral designers they are changed into a more common usage — wreaths, sprays, arrangements etc. This process of converting the raw material, flowers, into the marketable products in common use is “manufacturing.” These products are therefore not delivered to market in an “unmanufactured state” within the meaning of this statutory section.

We do not find this conclusion contrary to Agri-Foods, supra. There no change was made in the product by the activities of the employees. So also with Murphy v. Mid-West Mushroom Co., 350 Mo. 658, 168 S.W.2d 75 (1943) where the canning of mushrooms was the only way in which they could be preserved for market. Again the product canned was not altered, it was simply preserved. The activities of Ms. Leiser did more than this.

We must, however, remand this case to the Commission for further proceedings. As we have heretofore indicated, the record does not establish how much of Ms. Leiser’s work was devoted to manufactured products and how much to activities or products which are within the statutory exemption. Only if half or more of her time was devoted to non-exempt work is she “employed” under the law. See Sec. 288.034(13). There has been no determination of this fact by the Commission and we cannot make such a factual determination.

Cause remanded to the Circuit Court with directions to remand the cause to the Industrial Commission for further proceedings consistent with this opinion.

NORWIN D. HOUSER, and ALDEN A. STOCKARD, Special Judges, concur.


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerry Wells RISINGER, Defendant-Appellant.
    No. 10357.
    Missouri Court of Appeals, Springfield District.
    Jan. 31, 1977.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 15, 1977.
    Application to Transfer Denied March 14, 1977.

      John D. Ashcroft, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Paul Crider, Jr., Public Defender, John S. Beeler, Asst. Public Defender, Rolla, for defendant-appellant.
   TITUS, Judge.

A jury convicted defendant of receiving stolen property (4 quarter barrels of beer) with a value of at least $50 and fixed punishment at 2 years’ imprisonment. §§ 560.270 and 560.161-1(2), V.A.M.S. The question on appeal is whether, because of his lawyer’s representation of a client with interests antagonistic to defendant, there was a violation of defendant’s Sixth Amendment right to representation by counsel whose assistance is untrammeled and unimpaired.

Steve Matlock, Rocky Fore and Ricky Fore (so Matlock and Rocky testified) burglarized a distributor’s premises in mid-June 1975 and stole 14 cases and 10 quarter barrels of beer. They hid the loot in some woods near Rolla. Accompanied by friends, the burglars returned to their cache the next day and, inter alia, sold two of the quarter kegs to Brian Kridlebaugh. Over objection, the court permitted some of the state’s witnesses to relate the hearsay that Kridlebaugh told them he later returned to the woods and stole two more of the quarter kegs. Also over objection that the testimony was inadmissible because it constituted proof of defendant’s guilt of crimes separate and distinct from the one charged, state witnesses recounted how they had sold the defendant various items of stolen property (not the quarter barrels of beer in question). Kridlebaugh did not testify but some of the witnesses said that when they had been in defendant’s home they had seen one or two quarter barrels of beer which defendant acknowledged had been purchased from Kridlebaugh knowing it to be stolen property.

Matlock was charged with the crimes committed at the beer distributor’s premises. In connection therewith, he was represented by the public defender. A deal was made that if Matlock pleaded guilty and testified against defendant for receiving stolen property, execution would be stayed on the sentence imposed and Matlock would be placed on probation. In July 1975 Mat-lock entered a plea of guilty and was released on probation. When defendant was charged with the crime under consideration, the same public defender who represented Matlock was appointed to represent defendant. On the day of defendant’s trial, March 10, 1976, the public defender filed a motion to withdraw as defendant’s counsel due to a conflict of interest. At a bench conference between the court and lawyers for the state and defendant, the court denied the request principally, as it opined, because Matlock’s confidential communications to the public defender regarding Matlock’s juvenile record would not be admissible for the purpose of impeaching Matlock as a witness.

The federal constitution guarantees to persons accused of a crime in the state courts the right to representation by counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963). This guarantee entitles an accused to a lawyer who can render faithful service and give undivided loyalty. A lawyer who is forced or who attempts to serve clients with conflicting interests cannot give unto either the loyalty each deserves. State v. Crockett, 419 S.W.2d 22, 29[14] (Mo.1967). Denial of a defendant’s constitutional right surely results if his attorney represents conflicting interests without his assent and knowledge, and a showing of actual prejudice is not required if there is a showing of a conflict. United States ex rel. Miller v. Myers, 253 F.Supp. 55, 57[1, 2] (E.D.Pa.1966). “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680, 702 (1942). An accused’s “right to counsel under the Constitution is more than a formality, and to allow him to be represented by an attorney with . conflicting interests . . . without his knowledgeable consent is little better than allowing him no attorney at all. [Such a] situation is too fraught with the danger of prejudice, prejudice which the cold record might not indicate, that the mere existence of the conflict is sufficient to constitute a violation of [the accused’s] rights whether or not it in fact influences the attorney or the outcome of the case." United States ex rel. Miller v. Myers, supra, 253 F.Supp. at 57. “An attorney who represents both the defendant and a prosecution witness in the case against the defendant is representing conflicting interests. . . . There is, however, no deprivation of constitutional right if the defendant knowingly consents to being represented by an attorney who also represents a prosecution witness.” Ciarelli v. State, 441 S.W.2d 695, 697[2] (Mo.1969); Annot., 27 A.L.R.3d 1431-1441.

The state initially argues there was no deprivation of defendant’s constitutional right to representation by counsel whose assistance is untrammeled and unimpaired because defendant knowingly consented to representation by the same public defender who represented Matlock. We do not agree. As pointed out by the state, the record does disclose that defendant was in the courtroom when the public defender filed his motion to withdraw as counsel because of a conflict of interest. However, the record also shows that the filing of the motion and the subsequent discussion concerning it was done at a bench conference outside the hearing of the jury. Any lawyer with trial experience will attest that it would be an extremely novel and unprecedented act for a layman-client to participate in a bench conference between court and counsel. The mere presence of defendant in the courtroom is not proof of his awareness of the proceedings taking place at a bench conference. There was no evidence, as there was in Ciarelli v. State, supra, 441 S.W.2d at 697, that defendant had been told by his counsel that he represented a prosecution witness; neither had defendant been informed of the situation or of his constitutional rights by the trial judge. The consent necessary to obviate an apparent deprivation of a constitutional right must come from assent voluntarily given with a knowledge of the facts. The consent is not to be inferred from silence. State v. Cox, 539 S.W.2d 684, 687 (Mo.App.1976). “It is understandable that a criminal defendant, not necessarily familiar with all of his constitutional rights, and not informed of the same by the trial judge when the dual representation became apparent, might not interrupt his trial to request that his attorney be relieved even if he was made aware during the course of the trial that a prosecution witness was a client of his attorney.” United States ex rel. Williamson v. LaVallee, 282 F.Supp. 968, 971[5] (E.D.N.Y.1968).

The state additionally urges that no conflict of interest existed because when Mat-lock pleaded guilty to the crimes committed at the beer distributor's premises this ended the attorney-client relationship between the public defender and Matlock, leaving the public defender to conduct his trial defense of defendant free of any conflicting obligations. We cannot agree with this conclusion.

In the first place it appears to us the trial court erroneously opined that a conflict of interest did not exist because the public defender could not in any event employ his knowledge of Matlock’s juvenile activities gained through privileged or confidential communications to impeach Mat-lock as a witness. Rules of credibility are generally the same in criminal and civil cases [State v. Turner, 320 S.W.2d 579, 585[14] (Mo.1959)], and while a witness may not be impeached by showing he has been convicted of a criminal offense in a juvenile court [State v. Tolias, 326 S.W.2d 329, 333[2] (Mo.1959); State v. Ball, 527 S.W.2d 414, 416[2] (Mo.App.1975)], he may be impeached by questions to which the answers affect his credibility as a witness albeit the questions relate to activities when the witness was a juvenile. Thus, cross-examination of a juvenile witness as to his confinement in a home for boys and the reasons therefor did not violate the rule that a witness may not be impeached by showing a juvenile “conviction,” where the witness was not asked if he had been convicted, but merely stated that he was on probation at one time and had accepted stolen money. Ward v. Goodwin, 345 S.W.2d 215, 219[5] (Mo.1961). Also, where a juvenile witness was asked if he had participated in and confessed to a robbery, the question was ruled proper and it was held that the credibility of the witness could be impeached in that fashion. Barnard v. Wabash R. Co., 208 F.2d 489, 496-497[20, 21] (8th Cir. 1953).

While Matlock’s guilty plea was a matter of record available to the public defender for impeachment purposes, if Mat-lock chose to lie or improperly embellish his testimony concerning other matters or his assertion that he had sold a stolen CB radio to defendant, a vigorous and thorough cross-examination of Matlock would be imperative to impugn his credibility as a witness. It takes no great imagination to detect the dangers that faced defendant by being defended by the same public defender who represented Matlock. In this instance the obvious danger to defendant was that the scope of the examination of Matlock would be materially restricted by the fact that the public defender, as he so informed the court, had learned confidential information about the juvenile activities of his client-witness which he could not ethically reveal. United States ex rel. Williamson v. LaVallee, supra, 282 F.Supp. at 971. The confidentiality of attorney-client communications persists after sentencing of the client. People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15, 17[2] (1964). So we have a situation where a defendant is represented by counsel thrown into a position of ambivalence. The impossibility of representing a defendant with undivided allegiance becomes inherent in a situation where the attorney, because of confidential information obtained from a prosecution witness, has to reef his sails with a resulting lack of unfettered freedom to thoroughly and effectively cross-examine and impeach the witness. People v. Halluin, 36 Ill.App.3d 556, 344 N.E.2d 579, 582[3] (1976).

A second danger in being represented by an attorney who also represented a prosecution witness comes to light in the facts unique to this case. Matlock not only pleaded guilty to the crimes committed at the beer distributor’s in exchange for probation if he would testify against defendant, but he also testified he had sold stolen property to defendant. It is reasonable to assume that Matlock s continued freedom on probation or his apparent immunity from prosecution for stealing the CB radio he allegedly sold to defendant might depend on his performance at defendant’s instant trial or subsequent trials on additional charges. Consequently, on the one hand the public defender had a continuing duty not to degrade the value of Matlock’s cooperation with the state so as to assure the success of his probation or his freedom from prosecution for stealing, while on the other hand the attorney was required by his professional duty to the defendant to attack Matlock’s credibility in every proper or conceivable manner. People v. Augustus, 36 Ill.App.3d 75, 343 N.E.2d 272, 273 (1976). Also see People v. Johnson, 46 Ill.2d 266, 265 N.E.2d 869, 870 (1970); People v. Ware, 39 Ill.2d 66, 233 N.E.2d 421, 422 (1968). Under these and other circumstances enumerated, it cannot be said that defendant received the undivided allegiance of his counsel.

The judgment is reversed and the cause is remanded for a new trial.

All concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Earl Albert WEEKS, Defendant-Appellant.
    No. 10117.
    Missouri Court of Appeals, Springfield District.
    Feb. 1, 1977.
    Motion for Rehearing or to Transfer Denied Feb. 9, 1977.
    Application to Transfer Denied March 14, 1977.

      John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Gregory K. Johnson, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

A Greene County jury found defendant Earl Albert Weeks guilty of the first degree murder of an elderly lady store owner during the course of a robbery and fixed his punishment at life imprisonment. Defendant’s motion for a new trial was denied and following allocution, sentence was imposed and judgment entered. We affirm.

A nine-inch snow blanketed the Ozarks on the early evening of Saturday, November 30, 1974, as a 1966 Ford automobile bearing Iowa license plates drove north from Springfield on Highway 13. The car was occupied by defendant Weeks, Ralph Parcel, and Joseph Teitsworth, the state’s principal witness. The three men were en route to carry out their planned robbery of 81-year-old Lena Cukerbaum, proprietress of a country store located about ten miles from Springfield. A few days earlier the trio had agreed to travel to Missouri from Iowa and commit the robbery after having been informed that the store was owned by a “rich, old lady” who “didn’t believe in banks” and “kept all her money in boxes.”

The three men had left Muscatine, Iowa, on Friday, November 29, and after stopping in Moulton, Iowa, to purchase adhesive tape and at Fairfield, Iowa, to buy nylon stockings, both items for use in commission of the planned crime, they arrived in Springfield in the early hours of November 30. They checked into a motel and after sleeping late, eating breakfast, and shooting pool, drove to the store area to look things over. They agreed that Parcel and the defendant would enter the store and rob Mrs. Cukerbaum while Teitsworth parked nearby and served as a lookout. During this trip, Teitsworth pointed out to his companions the location of the Carl Kindred residence. The men then returned to Springfield where they had supper at a local steakhouse.

Because of the adverse weather conditions, Mrs. Cukerbaum let her employee, Charles Sparkman, leave the country store about mid-afternoon Saturday. At that time there were four hundred to five hundred dollars at the store and Mrs. Cuker-baum was wearing rings, a brooch, and a watch.

After arriving in the general area of the Cukerbaum store Saturday night, the three Iowa men stopped their car and prepared for the robbery. Portions of the nylons were cut off and the tape prepared. The unwanted part of the nylons and the tape container were thrown out of the car. Teitsworth then dropped Parcel and the defendant off at the store and took up his vigil as a lookout, parking the car at a nearby churchyard so that he could see traffic along Highway 13. He and his companions were equipped with two-way radios.

Clifford White passed the store about 7:45 p. m. and saw someone in the area between the store and an outside telephone booth. As White passed the church he saw the 1966 Ford parked there and noticed the Iowa license plates. He also observed the lone occupant of the car had long hair.

Thereafter, Teitsworth saw a police patrol car driving on Highway 13 and attempted to radio Parcel and the defendant to “get out.” The message was not received, but pursuant to plan Teitsworth started driving up and down the highway in the general area, waiting to pick up Parcel and the defendant.

About 10:00 p. m. Parcel and the defendant appeared at the Carl Kindred home. They told him they had run their car off the road and wanted him to take them to Springfield. When he advised the pair he could not do this because his wife was ill, they asked him to telephone for a taxicab. He did so. While they were awaiting the cab, Teitsworth drove up and Parcel and the defendant left with him. The defendant told Teitsworth all they had stolen was a handful of change. As the car left the area and headed for Iowa, Parcel and the defendant talked about the robbery. According to Teitsworth’s testimony, defendant said that the “old lady” kept ripping the adhesive tape and he finally got a coat hanger and wired her hands. Defendant related that he kept asking her where the money was and she told them she had given them all she had. He said he told her, “No, I mean a lot of money.” Defendant then said he threw Mrs. Cukerbaum down on the floor and “throwed a mattress over her.” When Parcel asked the defendant if he thought they should call the police and “let them know there’s an old lady tied up down there,” the defendant replied: “I don’t care if she does die. She wouldn’t cooperate, anyway.”

The bruised, battered, and broken body of Mrs. Cukerbaum was found in the living quarters area of the store Sunday morning by a concerned neighbor and an officer. Her hands were bound behind her back with adhesive tape and wire coat hangers. Tape was around her ankles and across her mouth. Coats and a sofa cushion were piled on the body. The rooms had been ransacked and “stuff was piled just like a tornado went through it.” The jewelry Mrs. Cukerbaum had been wearing Saturday afternoon was gone and the green tackle box in which she kept her money was empty, except for some checks. Near her body was a cut-off portion of nylon stocking.

Teitsworth, Parcel, and the defendant arrived back in the Muscatine, Iowa, area about eight o’clock Sunday morning and went their separate ways. Late Sunday afternoon Parcel and another man, Burton Dewitt, were arrested by an Iowa state trooper on a narcotics charge and at that time Parcel had in his possession a cut-off nylon stocking and $436 in currency. The money consisted of more than $100 in dollar bills and the remainder in larger denominations.

At a later date the three men were together and the robbery of Mrs. Cukerbaum was discussed. When Parcel mentioned that Carl Kindred was the only one who could identify “us” the defendant said “if we got picked up on it, he’d see that Carl Kindred was taken care of.”

Following Teitsworth’s arrest, he implicated Parcel and the defendant and they were arrested. Teitsworth showed officers the motel where the three Iowans had stayed in Springfield, the steakhouse where they ate supper, and the area where the unused portion of nylon stockings and tape cover were thrown out of the car. Both items were found.

All three men were jointly charged with murder during the course of robbery. As a result of “plea bargaining” Teitsworth agreed to testify against Parcel and the defendant. Following a severance, the trial of defendant Weeks was held.

We first consider the state’s motion to dismiss this appeal. The state contends that because the defendant’s motion for new trial was not timely filed we have no jurisdiction to entertain the appeal.

The verdict of the jury was returned on April 5, 1975. The trial court granted the defendant an additional thirty days to file his motion, which, together with the ten days allowed by Rule 27.20(a), V.A.M.R., totaled forty days. The defendant’s motion was filed May 16,1975, forty-one days after the verdict.

We agree that the defendant’s motion for new trial was out of time and is a nullity. State v. Richardson, 519 S.W.2d 15 (Mo.1975); State v. Stevens, 529 S.W.2d 670 (Mo.App.1975). The applicable rule, 27.20(a), is cast in mandatory terms, and neither the parties nor the court can waive the requirements of the rule. State v. Rapp, 412 S.W.2d 120 (Mo.1967); State v. Morse, 526 S.W.2d 432 (Mo.App.1975). Thus, the trial court’s attempt on May 15, 1975, to grant the defendant an additional five days for the filing of his motion was an exercise in futility and a nullity. State v. Powell, 433 S.W.2d 33 (Mo.1968); State v. Crow, 388 S.W.2d 817 (Mo.1965), cert. denied, 383 U.S. 914, 86 S.Ct. 901, 15 L.Ed.2d 668. Under the rule, the maximum length of time permissible for the filing of a motion for a new trial is 40 days after the return of the verdict. After stating the court may, on application of the defendant, extend the alloted time for an additional thirty days, the rule continues and provides the “court shall have no power to make another or further extension of the time for filing said motion.” (our emphasis)

In this case we conclude the defendant’s late motion for a new trial does not preserve the claimed errors for our review. State v. Clark, 432 S.W.2d 279 (Mo.1968). However, contrary to the state’s position, this does not mean defendant’s appeal is subject to dismissal. We are required by Rule 28.02, V.A.M.R., to examine the transcript on appeal to determine the sufficiency of the information, and examine the verdict, judgment and sentence for possible error. Further, for the purpose of ascertaining whether plain error may have occurred affecting substantial rights and resulting in manifest injustice or a miscarriage of justice, we are authorized to exercise discretion in our review. Rule 27.20(c); State v. Watson, 511 S.W.2d 890 (Mo.App.1974).

We have laboriously reviewed the six volumes of transcript, consisting of 1558 pages, the various exhibits filed herein, and considered the thirteen points contained in defendant’s 68-page (legal size) brief. We have found nothing that resulted, in our opinion, in manifest injustice or a miscarriage of justice. On the contrary, we conclude the defendant had a fair trial and that his guilt was established by overwhelming evidence. The plain error doctrine is therefore not applicable. State v. Caffey, 457 S.W.2d 657 (Mo.1970); State v. White, 529 S.W.2d 22 (Mo.App.1975).

The information was sufficient to charge the defendant under the felony murder provision of § 559.010, RSMo 1969. The verdict was responsive and in proper form. The punishment assessed was within the statutory limit. Defendant was afforded allocution. Sentence was imposed and judgment duly entered.

The judgment is affirmed.

All concur.

      . Teitsworth had previously visited the Kindred home which was located near the victim’s store.

      . The autopsy physician described the external injuries to be a cut over the right eye, lacerations of the wrists, bruises on the ankles, black eyes, and black and blue marks on the chest. Internal injuries were described as multiple compound rib fractures, tom liver, collapsed lungs, and hemorrhaging. Trauma by blunt force was opined to be the cause of the injuries. Death was due to asphyxia and time of death fixed between 2:30 and 4:30 Sunday morning.

      . The trial court conducted evidentiary hearings on points concerning charges of ineffective assistance of assisting counsel, intimidation and harassment of defense witnesses, illegal mail censorship, and denial of a change of venue.

      . § 559.010, RSMo 1969 was repealed by Laws 1975, p.-, House Bill No. 150, which became effective September 28, 1975. A new felony murder statute, what is now § 559.007 RSMo Supp.1975, was enacted. Defendant Weeks was charged and tried before the effective date of the new law.