author: WASSERSTROM, Presiding Judge.

text:
    Chester D. CRAWFORD, Jr., and Betty M. Crawford, husband and wife, Appellants, v. PACIFIC WESTERN MOBILE ESTATES, INC., and Wilma Gilbert, Respondents.
    No. KCD 27991.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      Ralph 0. Wright, Gary W. Collins, Kansas City, for appellants.
    Paul H. Niewald, Kansas City, for respondents.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

Plaintiffs seek damages for wrongful death of their six year old son, Mark, who drowned in a settlement tank maintained by defendant Pacific Western Mobile Estates, Inc., as part of its sewage treatment plant at Liberty Village Trailer Park in Clay County, Missouri. The jury returned a verdict of $30,000 against both Pacific Western and its resident manager Wilma Gilbert. However, the trial court, pursuant to after trial motions, set aside the verdict and entered judgment for defendants. Plaintiffs appeal. Reversed.

The sole issue presented is whether the evidence established a submissible case of negligence. In making this determination the evidence must be viewed in the light most favorable to the plaintiffs, drawing all favorable inferences on their behalf. Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 700 (Mo.1969); Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811, 814-15 (Mo.App.1975); Michaud v. Burlingame, 490 S.W.2d 680, 682 (Mo.App.1973); Rawson v. Ellerbrake, 423 S.W.2d 14 (Mo.App.1967).

The tragic accident in question occurred on November 22, 1973. Plaintiffs, together with their son Mark, were residents of Pacific Western’s trailer park which accommodated 143 residential trailers. The southwest part of the park was reserved for non-family residents, while the southeast part was reserved for families with children. At the extreme northern part of the trailer park, and closer to the family portion than to the non-family section, Pacific Western maintained a sewage treatment plant of which the settlement tank was a part. The nearest trailer was approximately 200 yards from this sewage treatment facility.

The settlement tank itself resembled a swimming pool; it was approximately 25 feet long and 11 feet wide, with vertical concrete reinforced walls 7⅝ feet deep. The water level was maintained at a depth of 6 feet, which means that the surface of the effluent was 1 ½ feet below the top ledge of the tank (which is at ground level). There was no ladder or other device which would aid anyone who fell into the tank to climb out. The architect designed the tank with a cypress deck to completely cover the top of the tank. The deck was to rest upon a lip or indentation at either end of the tank and fit flush with the top. Although the tank does have the described lip or indentation, the tank has never been covered since the trailer park was acquired by Pacific Western in August, 1973, and manager Gilbert had never observed nor was she ever told about any covering of any kind.

The architect also designed a fence to be built around the tank, and a six foot tall solid wooden flat fence had been erected and was in place. Adjacent to this wooden fence and borrowing one side thereof, a rectangular area was fenced off with a chain link fence for use as a storage area. The chain link fence had a gate and there was also a gate between the storage area and the tank area. Gilbert testified that these gates were kept locked at all times.

After Pacific Western acquired the trailer park, the previous owner removed approximately 60 trailers from the trailer park, leaving behind on the ground concrete blocks which had been used to support those trailers. Pacific Western’s maintenance employees gathered up these blocks and piled them against the wooden fence which enclosed the sewage settlement tank. These blocks were stacked in such a way so that “they were sort of like stairs going up” and reached to within 6 inches of the top of the fence. Although a child could not have gotten over the 6 foot wooden fence otherwise, the “stairway” of concrete blocks could be easily ascended by a child and there remained only a short jump to the ground inside of the sewage tank area.

A number of children lived in the trailer park with their parents, and they customarily played throughout the trailer park. There were no warning signs posted anywhere on the grounds to alert parents of any dangerous condition inside the wooden fence, nor were the tenants notified of the existence of the treatment facility. Mark’s father testified that he did not know what was inside the fence until after the fatal accident. A neighbor who had lived in the court testified that she also was unaware of the sewage facility inside the fence until after the accident.

On the afternoon of the accident a number of children, aged six to ten, among whom Mark was one, were playing in the trailer park in the vicinity of the wooden fence described and they were seen playing on the concrete blocks piled next to the wooden fence. At about 3:30 an older boy walking by was hailed by the children and was told that someone was in the sewage tank. He climbed the blocks, but could see nothing but a ball floating on the surface of the murky effluent. Other children went to notify Mark’s father, who was working beside his trailer, that someone was in the sewer. Mr. Crawford, unaware of the existence of a sewage treatment facility on the grounds, headed toward a storm sewer next to the street, but was corrected by the children. Mr. Crawford and a neighbor who had been summoned probed the pool with a rake and a two by twelve board and succeeded in locating and removing Mark’s submerged body. Attempts at resuscitation were unsuccessful. In the course of these rescue attempts, Mr. Crawford saw a wooden ladder-like contraption lying across the width of the tank and which served as a bridge. Also lying across the width of the tank was a metal latticework which Mr. Crawford testified would probably not have borne the weight of a grown man but which might have borne the weight of a small child. Mr. Crawford also noticed small hand prints on one side of the concrete tank on the 1½ foot vertical concrete wall above the surface of the effluent.

Defendants argue vigorously that defendants owed the deceased boy no duty which can be the foundation of recovery, because he was a trespasser when he entered the fenced area. Plaintiffs do not deny the classification of their son as a trespasser, but contend that the landowner nevertheless owed their son a duty of reasonable care under the standards of Section 339, 2 Restatement of the Law, Torts. Defendants deny that the facts here meet those requirements. The issue in this case accordingly narrows to the question of whether plaintiffs have brought this situation within the scope of the § 339 doctrine.

Section 339 of the Restatement (1965 Revision) provides as follows:

“§ 339. Artificial Conditions Highly Dangerous to Trespassing Children
“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermed-dling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e)the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

(a) Reason to anticipate presence of children. Treating these five requirements in order, the first question is whether defendants knew or had reason to know that children were likely to enter the fenced area. Defendants lay great stress upon the fact that the record contains no evidence that any children had ever before been in the sewage-treatment facility. That, however, misses the point. Merely because children had not trespassed in the past does not relieve the landowner from liability if there is some reasonable expectation that they might trespass. Spur Feeding Company v. Fernandez, 11 Ariz.App. 263, 463 P.2d 847 (1970). Nor must the evidence include proof that children had previously ventured directly into the heart of the hazard itself. As stated in a case decided even before the formulation of § 339, Starling v. Selma Cotton Mills, 168 N.C. 229, 84 S.E. 388, 389 (1915): “But in this case these children were not trespassers. They were five or six years old, and were at their usual playground, where they went every day, which fact was necessarily known to the management of the mill. This playground was in the immediate proximity to the reservoir and to the mill, and the officials knew the danger to the children of the children falling in there either in their play or in attempting to get water to drink, as this little boy did.” See also Page, The Law of Premises Liability, § 2.12, p. 19.

The evidence here shows that many of the families in the trailer court had young children who played all over the trailer court. There was evidence that children played on a retaining wall which, in the words of one resident of the trailer court “is not too awful far” from the stockade picket fence surrounding the sewage plant, and that the fence with vertical stakes pointed at the top looks like “on old Indian fort.” There was evidence that there was a basketball and other toys in the storage area which were open to view through the chain link fence and which could also serve to attract the attention of children. There was further evidence that children played on the concrete blocks which themselves allowed easy access to the sewage tank area itself. Defendant Gilbert, the resident manager of the trailer court admitted that the kids “were like a bunch of damn monkeys and were down there all the time” and there was nothing she could do to keep them out.

Furthermore, the manager Gilbert had full knowledge of the piled up blocks which permitted of such easy access for children to get over the fence. Those blocks had been put against the fence by Pacific Western’s own maintenance employees and had been there for a period of months. During that time Mrs. Gilbert went by the area about three times a day. Still further, Mrs. Gilbert took one of the Pacific Western’s visiting West Coast officials on an inspection tour of the trailer park in September, 1973, during the course of which they made inspection of this very area, sewage plant and settlement tank, at which time practically all of the blocks piled against the fence at the time of Mark’s drowning were already so placed.

The evidence in this case abundantly shows that defendants had good reason to know that children played in the immediate area of the settlement tank and that the conditions were such that the block stairway would provide easy access — if not an open invitation — for children to enter the sewage tank area. Defendants had ample reason to know that sooner or later some child was likely to enter the picket enclosure.

(b) Reason to realize unreasonable risk. The second requirement of § 339 is that defendants knew or had reason to know and which they realized or should have realized would involve an unreasonable risk of death. This requirement causes little difficulty under the facts of this case. The prospect of danger was so apparent from the beginning that the architect designed the settlement tank to be protected by both a wooden deck cover and also a six foot high fence. Although the deck cover was apparently never utilized, still the original owner of the trailer park showed a realization of the necessity of some protection by erecting the six foot fence and providing a locked gate to prevent inadvertent entrance into the area. After acquisition of the trailer park by Pacific Western, the necessity of such protection continued to be acknowledged by the defendants as shown by their custom, to which Mrs. Gilbert testified, of keeping the gate carefully locked at all times. Thus the general presence of danger requiring some protection has been established by the actions of defendants themselves. As stated in Starling v. Selma Cotton Mills, supra : “The very fact that a fence had been put up, of itself, shows that these authorities were aware of the danger.”

Yet, despite this awareness of danger against which the fence constituted the only protection, defendants permitted the piling up of concrete blocks against the fence in such a way as to completely negate the protection which the fence was designed to afford. No question is here presented about whether defendants knew of the location of those blocks — Pacific Western’s own employees created that condition. Moreover, the resident manager was reminded by her own eyesight of the dangerous condition daily. The evidence amply shows that defendants had reason to know and to realize the unreasonable risk of death or injury.

(c) Lack of realization of risk by trespassing child. The third requirement for inquiry is whether Mark Crawford, because of his youth, failed to realize the risk involved. This element of plaintiffs’ case represents by far the most difficult point of decision and it is the one which bears the heavy weight of defendant’s attack. Defendants argue the Missouri courts have consistently denied recovery for the death of children who have drowned in ponds, pools or similar bodies of water and defendants contend that those cases decided under the attractive nuisance doctrine control here. As part of their reliance upon those cases, defendants insist in their brief that Restatement § 339 “is simply a rule setting forth the ‘attractive nuisance doctrine’.”

Defendants’ latter statement errs. The attractive nuisance doctrine originated as an effort by the courts to ameliorate the harsh rules relating to the extremely limited duty of a landowner to trespassers. The courts, however, confined that new doctrine to a very niggardly scope, and legal thought grew in favor of further relief. Out of this current of thought grew § 339 of the Restatement. Although the new § 339 doctrine gradually drew an ever increasing judicial following, the Missouri courts steadfastly resisted this move and time after time expressly rejected § 339. Baker v. Praver and Sons, Inc., 361 S.W.2d 667 (Mo.1962); Thieret v. Hoel, 412 S.W.2d 127 (Mo.1967). In the Baker case, the Supreme Court spelled out its refusal to expand the landowner’s liability as would be required under § 339, holding: “It was pointed out in Cox v. Gros, Mo., 360 S.W.2d 691, however, that on at least two occasions, this court has construed section 339, Restatement, Torts, as an expansion of the attractive nuisance doctrine and said that ‘this court has been unwilling to extend the doctrine as far as the rules adopted by the Restatement would extend it.’ Patterson v. Gibson, Mo., 287 S.W.2d 853, 854-856; Hull v. Gillioz, 344 Mo. 1227, 1234-1235, 130 S.W.2d 623, 627.” Not until the decision in Arbogast v. Terminal Railroad Assn. of St. Louis, supra, in 1970, more than 35 years after the first publication of § 339, did the Missouri courts yield to the new rules of child trespasser liability. That this adoption would significantly extend the liability of the landowner was the very reason that the Missouri Supreme Court had for so long resisted the change. Now that the change has been accomplished, the old Missouri decisions applying the former attractive nuisance doctrine must be read with discrimination and applied only with the greatest of caution.

The pond and pool cases decided under the attractive nuisance doctrine, and upon which the defendants so heavily relied, went in part on the ground that these bodies of water constituted open and obvious danger which should be within the comprehension of any child old enough to be permitted to roam at large. To this extent, the pool and pond cases still state the law, and a landowner is not now (just as he was not previously) required to “child-proof” his premises against an obvious danger. The underlying concept mentioned has been expressly stated in Comment j under § 339 as follows:

“There are many dangers, such a [sic] those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large. To such conditions the rule stated in this Section ordinarily has no application, in the absence of some other factor creating a special risk that the child will not avoid the danger, such as the fact that the condition is so hidden as not to be readily visible, or a distracting influence which makes it likely that the child will not discover or appreciate it.”

The Restatement then goes on in Illustrations No. 6 and 7 to show that the landowner will not be liable for the drowning of a trespassing child in a small artificial pond on his land, but that he does become liable for the death of a young child from an adjoining nursery if the artificial pond contains gold fish which can attract and distract the child. This distinction, based on whether the dangerous situation is or is not coupled with special distracting factors, has been expressly recognized in Arbogast v. Terminal Railroad Assn. of St. Louis, supra, and Salanski v. Enright, supra. Glastris v. Union Electric Co., supra, also emphasizes that in evaluating whether or not the distracting factors are sufficient to prevent the trespassing child from realizing the risk, attention must be paid to his lack of judgment due to immaturity.

Analysis of the present situation must. therefore take the next step of examining whether the facts here show distracting elements which kept Mark Crawford from realizing the danger inherent in the settlement tank. Such distracting factors did exist. First of all, the effluent in the tank was dark and murky so as to be opaque. No one could tell from looking whether the depth was a few inches or several yards. Next a ball was floating on top of the effluent. Whether Mark Crawford climbed over the wall to recover the ball which he may have been playing with outside the wall or whether he saw the ball floating in the tank only after he got inside the enclosure, in either event the ball represented a plaything which naturally became the focus of distracting attention to this six year old boy.

Added to that situation, there stretched across the tank a wooden bridge and a metal bridge which invited the child out over the pool to bring himself into a position better able to reach toward the ball. The combination of these factors readily support the inference that Mark Crawford was in fact distracted from and did not realize the danger. Under these circumstances, it is easy to understand why this young boy who knew how to swim would not notice that the concrete wall of the tank stood a sheer IV2 feet above the surface of the effluent and that there was no ladder or similar device by which he could get out of the pool in the event he fell in.

The situation in this case is analogous to that in Cargill, Incorporated v. Zimmer, 374 F.2d 924 (8th Cir. 1967), an opinion cited and quoted with approval by the Missouri Supreme Court in Salanski v. Enright, supra. In Cargill, the trespassing boy climbed a ladder on the defendant’s silo in order to ascertain whether there was a pigeon roost at the top. The court held that he was entitled to recover under the theory of § 339, despite the fact that danger from height (similar to the danger from bodies of water) is generally considered to be open and obvious. In finding that there was a distracting element preventing the boy’s realization of danger, the court said:

“ * * * The acknowledged fascination of children to a pigeon retreat at a height of 72 feet off the ground cannot be minimized * * * The steel ladder was an open invitation to a child’s aviary. Decedent and other children did not climb the ladder for the thrill and excitement of climbing; the climb was secondary. The jury could find the attraction could focus attention of the child’s interest from the true danger involved * * *.”

In the case at bar, the wooden and metal bridges across the top of the tank was an “open invitation” equivalent to the steel ladder involved in Cargill. The ball floating on the surface of the effluent was at least as attractive a distraction to Mark Crawford as was the pigeon roost involved in Cargill. Just as the Cargill situation met the requirement of § 339, so also does the situation in the case at bar.

(d) Comparison of the burden of eliminating the danger with the character of the risk. The fourth element to be proved under § 339 requires that the burden to the landowner of eliminating the danger be slight as compared to the risk to the trespassing children. Satisfaction of this requirement presents no problem here. All that was necessary to protect against the danger created by the open tank was to eliminate the stacked pile of concrete blocks immediately alongside the wooden fence enclosing the sewage treatment area. Nothing at all appears which would require those blocks to be stored in this particular location. They could have been piled up anywhere else, thereby eliminating the danger which led to Mark Crawford’s death. Even pulling down the height of the stack of blocks would probably have been enough. The cost of so doing would have been negligible.

(e) The final requirement of § 339 is a showing that the landowner failed to exercise reasonable care to protect the children. Comment o under this section says that the purpose of this requirement is to create liability “only if the possessor fails to take the steps which a reasonable man would take under such circumstances. If the possessor has exercised all reasonable care to make the condition safe, or otherwise to protect the children, and has still not succeeded, there is no liability.” The Comment goes on to say that in some circumstances a warning would be all that could be expected of a reasonable man, and if so the giving of a warning may satisfy the landowner’s duty.

No such problem complicates the instant case. Defendants had a safe condition if they themselves had not eliminated the safety feature of the fence by piling the concrete blocks against it. That danger was created by the affirmative acts of their own workmen, and defendants did nothing at all to offset the consequent danger. Even if a warning would have been sufficient, no warning, either written or oral, was ever given by defendants to anyone. No question can exist but what plaintiffs made a submissible case as to defendants’ negligence.

Defendants make an additional argument that “the evidence failed to prove any causal relationship between the conduct of defendants and the death of the decedent.” A very similar argument was rejected in Leeright v. Ahrens, supra, in which a child fell unseen into a cistern which was protected by a dilapidated fence and drowned:

“The record shows that the happening of the accident was not witnessed by anyone; hence there could be no direct or positive testimony as to the actual manner of its occurrence. It does not follow, however, that there is no rational basis for an inference as to the manner in which the child got into the cistern. There is positive evidence that the box around the cistern was of a character that a child like the deceased, by leaning against it or sitting on it, would fall into the cistern and that the child was playing near it at a late hour of the night. There is also evidence that the body of this child was taken from the cistern on the following morning, at which time the top plank of the box was found leaning into the cistern, as if it might have been detached or dragged by one falling. From this testimony and these physical facts the jury might have legitimately inferred that the accident happened as described in plaintiff’s petition. That they might also have drawn other and different inferences from the same testimony is immaterial. The rule'is that an objection that there is no evidence to support a finding is not well taken, if it appears there is evidence from which the facts necessary to be shown might have been inferred by the jury, even though such facts would afford the basis of other diverse inferences. In such cases it is conclusively presumed that the jury drew that inference which would support their finding.” (Emphasis in the original).

Defendants’ present argument is also answered by the following quotation from Anderson v. Cahill, 485 S.W.2d 76, 80 (Mo.1972):

“Respondent further contends that no evidence was produced to show how plaintiff entered the premises and that he cannot, therefore, he [sic] held to have been negligent in failing to properly fence or barricade the area causing plaintiff’s injury. The question, however, is not how plaintiff entered the premises, but whether reasonable precautions had been taken to prevent entry by trespassing children. A jury could find that such precautions were not taken and that the cost to defendant of providing fencing to prevent entry would have been slight compared to the risk to young children who might trespass therein.”

It follows from the foregoing that the trial court erred in setting aside the jury verdict. The judgment is therefore reversed with instructions to the trial court to reinstate the jury verdict.

All concur.

      . Defendants cite cases for the proposition that Mark Crawford was a trespasser or “at best a mere licensee.” The question as to the boy’s status as a trespasser, licensee or invitee need not be pursued. For reasons which follow in this opinion, we hold that defendants owed a duty to this child under Restatement, § 339. This section which was drafted to cover children who are trespassers, a fortiori covers children who are in the higher classification of licensees or invitees. Salanski v. Enright, 452 S.W.2d 143, l. c. 145, (Mo.1970).

      . In Arbogast v. Terminal Railroad Assn. of St. Louis, 452 S.W.2d 81 (1970), the Missouri Supreme Court adopted § 339 of the Restatement of Torts, in the version originally published in 1934, and plaintiffs in their brief quote and discuss the section in that form. In 1965, the American Law Institute published a revision of § 339 which made certain changes which are discussed in Restatement, Torts 2nd Appendix at page 129. See also for a discussion of these changes, Page, The Law of Premises Liability, § 2.11, p. 17 et seq. Glastris v. Union Electric Co., 542 S.W.2d 65, l. c. 68 (Mo.App.1976), comments on these changes and treats the portions of the revisions there under consideration as minor corrections which did not change the meaning intended by the original draft. All further discussion in this opinion will be based upon the 1965 revision. This cannot possibly prejudice defendants, inasmuch as the 1965 revision leans in their favor more than does the 1934 original, to the extent that there is any difference at all.

      . The cases cited by defendant are Winegardner v. City of St. Louis, 346 S.W.2d 219 (Mo.1961); Kowertz v. Dible, 27 S.W.2d 61 (Mo.App.1930); Kemp v. Doe Run Lead Co., 34 S.W.2d 1002 (Mo.App.1931); Holifield v. Wigdor, 235 S.W.2d 564 (Mo.1951); Thieret v. Hoel, 412 S.W.2d 127 (Mo.1967); Baker v. Praver and Sons, Inc., 361 S.W.2d 667 (Mo.1962). Another similar case not cited is Rallo v. Heman Construction Co., 291 Mo. 221, 236 S.W. 632 (1921). Compare, however, the recovery permitted in Davoren v. Kansas City, 308 Mo. 513, 273 S.W. 401 (banc 1925) and in Doran v. Kansas City, 241 Mo.App. 156, 237 S.W.2d 907 (1951). Note also that recovery was allowed for the death of a child drowned in a cistern in Leeright v. Ahrens, 60 Mo.App. 118 (1894) and from death by drowning in a well in Bichsel v. Blumhost, 429 S.W.2d 301 (Mo.App.1968).


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    Harold Wayne WILLIAMS, Respondent-Appellant, v. Nancy Lou WILLIAMS, Petitioner-Respondent.
    No. KCD28149.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      John J. Phillips, Independence, for respondent-appellant.
    W. R. Schelp, Bradley, Skelton & Schelp, Lexington, for petitioner-respondent.
    Before SHANGLER, P. J. and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The court granted dissolution on the petition of the husband — and against the denial of the wife — that the marriage was irretrievably broken. The decree also divided the marital property and entered awards for child support and maintenance. The custody of the two children of the marriage was given over to the wife without contest.

The wife appeals the judgment on the contentions that (1) the evidence was insufficient to prove the marriage was irretrievably broken; (2) the division of the marital property was disproportionately favorable to the husband and (3) the award of child support was insufficient.

The couple were married for some fifteen years before separation and dissolution. He was employed as a United Parcel Service delivery driver and earned gross wages of some $16,500 during the last year of marriage. She was employed at Remington Arms Company and earned the gross annual wage of $9,000. There was an expected income of about $4,000 per year from the operation of a farm owned by them both.

■ The couple purchased a home on Lake Tapawingo soon after their marriage for $12,500 on which $6,800 remains to be paid. They later acquired a one-hundred thirty-five acre farm in Lafayette County for $63,000. That purchase was financed by a loan from a savings and loan association of $52,000 and an $8,000 loan from the parents of the husband. There remains to be paid $50,000 to the savings and loan institution and the full $8,000 to the parents. They also accumulated farm equipment, vacation paraphernalia, and other personal property. The wife accumulated $720 in a thrift plan from money deducted monthly from her wages. Also, the couple owned an interest in an Investor Stock Fund valued at $1700.

The farm implements and livestock were sold at public auction [apparently in contemplation of marital dissolution] and the $6,000 proceeds were divided between them. The wife established a savings account with her share and $2,000 remained at the time of dissolution. The farm itself was not sold at the auction. The best offer for the land was $400 per acre, less than the $450 per acre they believed to be the acceptable value of the land. The farm land has been planted with forty-five acres of beans at a cost of $1757.50 from which the husband hoped to reap a net profit of $4,000.

The husband described the marital difficulties which began some six years before when the wife began a course of nocturnal conduct which kept her away from home and which returned her to the home in the early morning hours. The marriage continued to deteriorate; she constantly criticized him; they disagreed on the discipline of the children, and her extravagance kept him at constant toil. Her sexual ardor so diminished that she showed more affection to other men than to him.

The testimony of the wife and of her witness, Robert John Sander, tended to corroborate some of these contentions. Sander and his wife had been regular social companions of the Williams couple, the litigants here. Sander, himself, admitted that for the past years, he and Nancy Williams had been affectionate with each other, with open embraces and kisses, and even a shared bed. Mary Ellen Sander, on the other hand, had avowed her love for the husband here, Harold Williams, and at the time of the dissolution hearing, had initiated her own proceeding to terminate the Sander marriage. It is evident from the countervailing evidence that each of the Williams couple had alienated their affection to another.

On this evidence the court found the Williams marriage irretrievably broken. Without need for recapitulation, we find this evidence supports the determination of the trial court that the marriage was irretrievably broken and that the denial of this contention by the wife was overcome by the proof required by § 452.320.2(l)(b), RSMo Supp.1975, that

the [wife] has behaved in such a way that the petitioner cannot reasonably be expected to live with the [wife].

The wife next contends that the manner in which the marital property was divided constituted an abuse of discretion. The description of the property divided and the range of value attributed by the evidence are:

Lake Tapawingo property $7200-$8200
$14,000-$15,000 less $6800 encumbrance
Investor Stock Fund $1700
1971 Buick - $1800-$2100 $ 300-$450
less $1500-$1650 encumbrance
Household Furniture and Appliances $2500 Thrift Plan Account $ 720
Savings Account $2000
Boat and motor $ 325_
Total $14,745-$15,895
To the Husband
Lafayette County Farm
$60,750 less $2750
$58,000 encumbrances
1971 Chevrolet Pickup Truck Pickup Camper $1800-$2400 $ 350
1967 ski Barge Boat, etc. $1000
Hand Tools and Guns $ 800-$1000
John Deere Garden Tractor $ 200
Total $6900-$7700 °

The wife contends this division improperly includes her savings account and improperly excludes the anticipated profit from the harvest of beans on the farm property. Her first criticism is valid. The $2000 in savings derived from the auction of their farm goods and represents a division already made by their mutual agreement, and so not separately subject to the reassessment on the dissolution of marriage. Her second criticism is more uncertain, because the profits from the bean crop on the farm land allocated to the husband were merely an expectancy at the time of judgment. Moreover, only the husband made the necessary investment for seed and fertilizer and the harvest would be possible only by his toil. If these arguments are allowed, nevertheless, the apportionment which results would be equivalent to $12,-745—$13,895 for the wife and $10,900— $11,000 for the husband.

We do not find the conduct of the husband less worthy than that of the wife [as she suggests], so as to be an element of weight in the division of property according to § 452.330.4. The award of the trial court accorded with the guides of the statute, including consideration of the conduct of the parties during the marriage. The exercise of that discretion was sound and will not be disturbed. In re Marriage of Simpelo, 542 S.W.2d 558, 561[7, 8] (Mo.App.1976).

The wife contends, finally, that the award of $125 per month for the support of each child is unreasonable in view of the earnings of the husband and the duty of primary support which the law imposes upon him. She complains that her requirements for the children are more nearly $400 per month for the two children, but confesses to gaps in the evidence to prove this need. Her recitation of costs for the items of support, such as clothing and rent are obviously exaggerated, or at least subject to more careful management. The spendable earnings available to the wife from employment are $590 each month and the award allows additional support of $250. This total reasonably satisfies the needs of her family.

The husband earns a net of about $200 each week and may be expected to enjoy whatever profit may be gained from the farm enterprise. His farm land is subject to a mortgage obligation of about $400 each month, and the court must have assumed that he would need the balance of his income to purchase furniture—since the wife was awarded the household goods—and to meet the ordinary expenses of his own living. We believe that the award for child support is faithful to the considerations of § 452.340 and falls within the discretion of judgment allowed by that section.

The judgment is affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Curtis WILLIAMS, Appellant.
    No. KCD 28238.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      J. Arnot Hill, Kansas City, for appellant; Hill & Gamm, Kansas City, of counsel.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

By the verdict of a jury, appellant was convicted upon three counts of robbery in the first degree and upon Count IV, for assault with intent to do great bodily harm. The jury set the punishment on the first three counts, respectively, at 20, 5, and 5 years imprisonment. It was unable to agree upon the punishment for Count IV, and the court therefore set it at 30 years imprisonment, and sentences were pronounced in accordance with these punishments, all to run consecutively in the Department of Corrections of Missouri.

Appellant makes seven points for reversal, the first two of which challenge the submissibility of Counts I and II of the indictment because, as contended, there was an absence of evidence that appellant, “or anyone else, robbed or took two dollars ($2.00) in lawful money from Glada Devore [Count I] [and three dollars from Carol Bal-lieu, Count II] with an unknown caliber revolver loaded with gunpowder and leaden balls.”

On the morning of September 16, 1974, four men, armed with knives and guns, entered the Kansas City Baptist Temple, 55th and Blue Ridge Cut-off, forcing its pastor, The Reverend Truman Dollar, and other employees who were in various parts of the church, onto a central area floor. According to R- srend Dollar, some 7 or 8 minutes after he arrived at the Temple at 8:45 a. m., he was on the telephone facing the wall. Two black males entered his office, one very quickly, who reached over and put the telephone down. That person was identified by him as appellant, and the other had a sword 18 to 22 inches long, the actual blade. The man with the sword hit Reverend Dollar with the flat side of the sword on the head. At the time appellant took a smaller, curved knife to the small of Reverend Dollar’s head, saying, “Come on, dude, you’re going with us,” and appellant told him, “Take us to the money.” Reverend Dollar led the two to the reception area where he knew Glada and Elmer L. Calton were counting the previous day’s receipts. The men took that money, then forced Cal-ton, who knew the safe combination, to take them into the safe room. Near that area, Reverend Dollar was forced to lie on the floor and a man with a gun pointed it at him, saying, “ ‘Reverend, this is one time Jesus ain’t going to get you through.’ ” The man took Reverend Dollar’s billfold from him at that time. During the course of these events, the accounting secretary, Joyce Gaddie, was shot through the lobe of her left ear. The inventory of loot taken was $13,500.00, which matched that recovered, along with Reverend Dollar’s billfold, near an abandoned car the same day, that car being a blue Ford or Mercury seen leaving the Temple parking lot, and which car had been involved in an accident. Three other men in a yellow Volkswagen were apprehended in the Temple parking lot. Appellant was identified by several employees as a participant in the robbery.

As to appellant’s first two points, the evidence shows that both Glada and Carol were employees of the Temple and were present at the time of the robbery. Glada was then being held in another area near the safe, and one of the men holding her had a long knife. Carol was forced to lie on the floor; in fact, it appears that all of the employees were being held by the robbers, including a Mrs. Loper, who had been hiding in a closet but was subsequently found there by one of the robbers, and made to lie down. Glada testified that her purse was in another office room and that someone took approximately $2.00 in change from her purse, “They turned my whole purse over and took the change.” Carol had a coin purse, containing about $3.00, lying on a desk, and after the robbers left she saw her purse open and emptied. Neither of these women saw their money taken. It is in this posture of the evidence that appellant contends that the court erred in submitting Counts I and II to the jury. In this contention he is in error because, “In general, it is essential to the commission of the crime of robbery that the taking should be without the consent or against the will of the victim. However, it is not essential that the victim be conscious, or aware of the robbery if conscious, provided force is used to render him unconscious or unaware of the taking.” 77 C.J.S. Robbery § 21, p. 462. (Italics added.) See also State v. Hayes, 518 S.W.2d 40 (Mo.banc 1975), holding 518 S.W.2d at page 45, “The thing which distinguishes robbery from other offenses such as stealing is that the property is in the possession or under the control of the victim in such a manner or to such an extent that violence or putting in fear is used as the means of taking the property from the victim’s possession or control.” The Hayes opinion quotes from People v. Braverman, 340 Ill. 525, 530-531, 173 N.E. 55, 57 (1930), which in part is, “Nor was it necessary that the property should be in the actual or immediate presence of the owner or custodian.” Here, there is no question but that both Glada and Carol were put in fear and that violence was exercised upon them. Under the authorities, supra, it is of no consequence that the contents of their purses were taken outside their presence, or that no one saw appellant or his accomplices empty the purses. See also State v. Hampton, 509 S.W.2d 139 (Mo.App.1974).

Appellant argues further that the indictment alleged that he took $2.00 in lawful money from Glada, who testified that some change was taken from her purse, and that Instruction No. 6 required the jury to find that Glada owned miscellaneous U.S. Currency, and that the proof was therefore insufficient in that “The words ‘change’ and ‘coins’ are interchangeable and the word ‘currency’ refers to paper money.” Webster’s New International Dictionary, Second Edition, defines “currency” as “That which is in circulation, or passes from hand to hand, as a medium of exchange, including coin, government notes, and bank notes; as the silver currency; the note currency.” (Italics added.) See similar definitions: Leonard v. State, 115 Ala. 80, 82, 22 So. 564, 565 (1897); Webster v. Pierce, 35 Ill. 158, 163 (1864); Brittain v. State, 52 Tex.Cr. 169, 105 S.W. 817, 819 (1907).

Appellant’s first two points are ruled against him.

The next contention of appellant is that the questionnaires sent to prospective jurors contain no reference to the requirement of § 497.130, RSMo (Law 1974), for compiling a jury list that “The list in no case shall contain less than twenty-five thousand names to be selected as nearly as may be equally from the several voting precincts of the county. * * *.” The statute goes on to provide that in the selection of names of prospective jurors no examination shall be made into the qualifications of persons selected, except that a suitable questionnaire shall be sent to each. The form of questionnaire is specifically set out in the statute which further provides, “The questionnaire shall be in the following form and none other, without additions or subtractions * * *.” Appellant’s offer of proof, admitted by the state, does not attack the jury list selection as not being equal from wards and precincts, but only that the questionnaire omits that reference. Adding the reference to wards or precincts would be a statutory violation of the restriction of matters in the questionnaires, as last above quoted. From all that appears here, the provisions of the statute were complied with, and Point III, raising the contention is overruled.

Point IV is that the trial court erred in permitting the state to cross-examine appellant as to whether or not several witnesses lied when they testified against him, because it went beyond direct examination and also required appellant to give his opinion as to the motives of other witnesses in testifying. There was no objection on the ground that the cross-examination went beyond the scope of direct examination; it is not preserved for review; and will therefore not be further noticed. It has been held permissible in this state “to pit the testimony of the State’s witnesses against that of appellant by way of relative comparison, as to which one is telling the truth.” State v. Garner, 360 Mo. 50, 226 S.W.2d 604, 609[8] (Mo.1950). See also Iva Ikuko Toguri D’Aquino v. United States, 192 F.2d 338 (C.A.9th 1951). The cross-examination here merely pointed up the contradictions of the witnesses’ versions of the facts and that of appellant. Point IV is overruled.

The fifth point is that the trial court erred to appellant’s prejudice in failing to give MAI-CR No. 1.08(b) [admonishing the jury] at recesses subsequent to the first recess and at adjournment. It appears that during the four day trial there were four recesses during which the jury retired to the jury room without being given the MAI-CR 1.08(b) admonition, but there was never any objection made to the court’s failure to do so. Appellant requests that the matter be considered as plain error under Rule 27.20(c). In a similar situation, the matter was ruled adversely to appellant in State v. Crawford, 539 S.W.2d 633, 637[8] (Mo.App.1976), where it was said, “The failure to object at any stage of the trial precludes consideration of this claim under ordinary rules of appellate review. The absence of any showing that the trial court’s failure to give the required admonition was prejudicial to appellant precludes reliance upon the plain error rule. (Citing cases.)” Here appellant concedes in his brief that he can point to no prejudice occurring to him by reason of the trial court’s failure to admonish the jury at the four recesses. Accordingly, Point V is overruled.

Point VI attacks the submission of Count IV of the indictment [of assault with intent to do bodily harm with malice aforethought upon Joyce Gaddie, who was shot through the lobe of her left ear] for the reason that there was no evidence that appellant possessed, displayed, or fired a pistol at the time [she] was shot, nor was there any evidence that anyone acting in concert with appellant intentionally fired a pistol, with malice aforethought, at [her], with the intent to produce death or great bodily harm.

Appellant first says that there was no evidence that he had a gun or shot Joyce himself. There was, however, evidence that one of the robbers, an accomplice of appellant, did shoot her in the ear. State v. Chernick, 278 S.W.2d 741, 746[2] (Mo.1955), controls in its holding, “If two or more persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal, if the other (or others) commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose, or as a natural or probable consequence thereof. (Citing cases.)” See also State v. Paxton, 453 S.W.2d 923, 925[1, 2] (Mo.1970); and State v. Johnson, 524 S.W.2d 97, 99 (Mo.banc 1975).

Appellant next says there was no evidence that anyone shot Joyce intentionally and with malice aforethought. The element of malice is presumed from evidence of an assault with a deadly weapon (here a pistol) absent evidence to the contrary. State v. Jackson, 477 S.W.2d 47, 53[8] (Mo.1972); and see also State v. Jones, 518 S.W.2d 322, 325[3, 4] (Mo.App.1975), where the same presumption is stated, and where it was said, “Malice was properly defined by the trial court — ‘as intentionally and without just cause or excuse and after thinking about it beforehand and for any length of time, however short.’ ” The intention flows from the evidence of malice employed.

Without setting it forth in his Point VI, appellant says the indictment charged only an offense under § 559.190, RSMo 1969 (assault without malice aforethought) which carries a lesser penalty than § 559.180. The indictment charged appellant with an assault by shooting “likely to produce death or great bodily harm, with malice aforethought with the felonious intent the said Joyce J. Gaddie to do great bodily harm; * * *.” Appellant argues that this allegation does not charge him with intent to do any of the things enumerated in § 559.180, but only with intent to do great bodily harm to Joyce, hence the offense falls under § 559.190. Intent to do great bodily harm has been held equivalent to an intent to maim, which is provided for in § 559.180. State v. Hale, 472 S.W.2d 365[1] (Mo.1971), and cases cited. See also State v. Collins, 519 S.W.2d 362, 364[4, 5] (Mo.App.1975).

Relying upon State v. Baker, 276 S.W.2d 131, 134[4, 5] (Mo.1955), appellant argues that he cannot be charged with an assault to commit a crime (great bodily harm) because great bodily harm was actually committed. The Baker case construed § 556.-160, RSMo 1949 (now RSMo 1969), as that statute applied to a charge of assault with intent to commit rape where the evidence showed that the rape was actually accomplished or completed. The ease was reversed and remanded, ostensibly to charge the appellant with the rape, the court saying, “The meaning and policy of all these provisions, which may be construed together, is that ‘if substantial evidence shows the crime charged was consummated the defendant cannot be convicted of a mere attempt. He cannot go to the jury on a charge so light in the face of a prima facie case showing the graver offense was committed’, State v. Gadwood, 342 Mo. 466, 491, 116 S.W.2d 42, 55-56, but must take the hazard of the severer, greater punishment, as in the case of rape.” The Baker case may be distinguished, because an assault with intent to commit rape can only be an attempt of the greater offense of rape, while here, there can be no attempt to commit an assault with intent to do great bodily harm; the proscribed crime is committed when the assault is made. Besides, the cases construing the felonious assault statute, § 559.180, say that the fact of an injury being inflicted goes to the element of intent. See State v. Baird, 271 Mo. 9, 195 S.W. 1010, 1013 (1917), “It is settled law that upon a prosecution for assault with intent to kill, while the assault may exist, be perpetrated, and be proven, whether a wound be inflicted or not, yet as the intent with which the assault was made is a necessary element in the case, of which proof, direct or circumstantial, must be made, it has been held almost uniformly that the fact that a wound was inflicted is permissible to be proved as evidence of intent.” See also State v. Layton, 332 Mo. 216, 58 S.W.2d 454, 458[7] (1933); State v. Foster, 513 S.W.2d 657, 662[9] (Mo.App.1974), where defendant was charged with offering violence to a guard, and the evidence showed he struck the guard, which the court held “was material, relevant, and admissible to prove the crime charged”; and 6A C.J.S. Assault and Battery § 80, p. 463, “The real injury inflicted is not material except in so far as it may tend to show that the means were calculated to inflict serious bodily injury.” For the foregoing reasons, Point VI in its entirety is overruled.

Prior to the voir dire examination, appellant made a motion to prohibit the prosecutor from referring to the Black Muslims or to a mortgage dispute between the Black Muslims and the Kansas City Baptist Temple, which motion was overruled. During the voir dire, the prosecutor informed the panel that there had been quite a bit of news publicity about the crime and its alleged connection with the Black Muslim Church or the Nation of Islam. The panel was asked if any of its members had any recollection of the robbery, and when several responded affirmatively, they were asked if that knowledge would influence their verdict. Certainly, no prejudice to appellant appears — the prosecutor was merely ascertaining whether any members of the panel were biased or prejudiced by the publicity. Furthermore, appellant himself went into the question of whether members of the panel were prejudiced by reason of his being a Black Muslim. What questions may or may not be asked is left to the sound discretion of the trial court, which will not be interfered with unless it is clearly abused. 50 C.J.S. Juries § 275, p. 1039; State v. Long, 536 S.W.2d 498, 499[1] (Mo.App.1976); State v. Mudgett, 531 S.W.2d 275, 279 (Mo.banc 1975). Point VII is overruled.

The judgment is affirmed.

All concur.


text:
    In re Redemption of Property. Iris CARTER, Plaintiff-Respondent, v. Edward S. GUFFEY and Linda Ann Guffey, Defendants-Appellants.
    No. KCD 28242.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      James F. Crews, Kibbe, Crews & Gaw, Tipton, for defendants-appellants.
    Woolsey & Yarger, Kenneth 0. MeCut-cheon, Jr., Versailles, for plaintiff-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The real estate of the Guffeys, husband and wife, was given by deed of trust to Iris Carter to secure a note held by her. The indenture was foreclosed for non-payment of the obligation and at the sale the property was purchased by the holder of the note for $20,600. In°the time and manner prescribed by § 443.240, RSMo 1969, the Guf-feys delivered to the trustee a notice to redeem the property. After the sale, a petition to redeem the property was brought accompanied by a redemption bond executed by the Guffeys and Zeta Guffey, his mother, as surety in the penal sum of $2,500. The bond was approved by the circuit judge in that form.

Thereafter, Iris Carter moved the court under § 443.430, RSMo 1969, to require an additional bond because of waste committed by the Guffeys and the lapse of insurance on the premises from failure to pay the premiums. The court ordered the Guffeys and surety to post an additional redemption bond, or in the alternative, to furnish insurance coverage on the premises in favor of the security holder in the face amount of $25,000. This order went without compliance and the beneficiary, Iris Carter, in the same proceedings, moved for judgment on the redemption bond.

The court conducted a hearing on the motion, and in that course, the Guffeys cross-examined witnesses and submitted their persons to the proceedings and judgment of the court. The security holder gave evidence of waste and injury to the property by the Guffeys and the court adjudicated her $2,500 damages, the full amount of the redemption bond.

The brief on appeal by the Guffeys, spare in form and content, attempts three contentions:

1. The court was without jurisdiction to assess damages on the redemption bond except by a separate suit for that purpose.
2. A necessary party to the proceedings, Zeta Guffey, the surety on the bond, was not joined in the action.
3. The judgment for damages entered was not supported by substantial evidence.

These points are given only cursory support in the arguments of the brief, and then only by legal conclusions without reference to any authority. They are subject to dismissal for violation of Rule 84.04, but we choose to reach those of them which are treated sufficiently for review. Cady v. Kansas City Southern Ry. Co., 512 S.W.2d 882 (Mo.App.1974).

The first point contends that the court was without jurisdiction to enter assessment of damages on the redemption bond except in a separate civil action for that purpose initiated by petition and service of summons in the normal manner described in §§ 506.110-506.120 and Rules 53.01 and 54.-01. Accordingly [the argument proceeds], the motion for damages on the redemption bond brought by the beneficiary was an incident of the earlier proceeding to post a redemption bond under § 443.420, and without benefit to the Guffeys of notice by petition and summons was without legal effect to bind them to the judgment.

The statutes which relate to the redemption of real estate foreclosures [§§ 443.410-443.440] do not establish procedures for assessment of damages in the same proceeding in which the redemption bond is given. Orderly procedure requires a civil action duly instituted, perfected and adjudicated for that purpose. This much has been decided on virtual identical facts in Merchants Savings & Loan Ass'n v. Ancona Realty, 229 Mo.App. 714, 78 S.W.2d 470 (1935); and to this extent the point on appeal is valid. The power of a court to adjudicate a personal judgment, however, does not vest only by a petition and service of process upon the person of the adversary, but also by his voluntary appearance. § 506.110.1(1). This, also, was held in Ancona [l.c. 473].

There can be no doubt that the pleading to recover damages on the redemption bond, although brought as a motion, advised the court of the cause of action and the adversary of the subject to be defended, and so satisfied every attribute of a formal petition. Hensley v. Dorr, 202 S.W.2d 553, 556[2—6] (Mo.App.1947). The law will give effect to the subject matter of a pleading, however imperfect the rubric. J. R. Watkins Company v. Hubbard, 343 S.W.2d 189, 195[4] (Mo.App.1961). Nor can there be doubt that the Guffeys submitted themselves to the jurisdiction and judgment of the court by voluntary appearance and active opposition to the merits of the cause against them. Hays v. Laclede Christy Clay Products Co., 245 S.W. 196, 197[3] (Mo.App.1922). The circuit court certainly had jurisdiction to adjudicate the class of the action brought against the Guffeys, and the submission of their persons as well empowered the court to render the judgment that was rendered.

The second point contends that Zeta Guffey, as surety, was a necessary party to the action and failure to make that joinder resulted in an invalid judgment. This argument refers to Rule 43.01 for sanction, but does not elaborate how the apparent irrelevancy of that rule bears on the legal position the brief adopts. We will not speculate on the matter nor fashion plausible theories; that is the work of the advocate. The point is overruled.

The final contention of the Guffeys asserts that the judgment for the total amount of the redemption bond [$2,500] was not supported by the evidence. The beneficiary Carter responds that the plain language of § 443.420 requires that, irrespective of the actual damage shown to the premises under redemption, the full security shall be paid over to the purchaser at the foreclosure sale if redemption is not made:

Said security shall be by bond executed by the person or persons so entitled to redeem with at least one good surety in a sum amply sufficient to cover the aggregate of all said sums exclusive of the principal debt or obligation, but including damages and interest, to be absolutely paid in event redemption is not made and the aggregate of all such shall be the measure of damages to be paid in satisfaction of said bond if such redemption is not made. [Emphasis added.]

We do not accept the contentions on these grounds because there was substantial evidence that the Guffeys had damaged and wasted the premises to an extent in excess of the security. The property had clearly been abused and extensive reparation necessary. The carpet was worn threadbare and cost $887 to replace. The interior was filthy and had to be repainted throughout. Numerous broken windows were replaced for $90. The stool in the basement was replaced for $90. A hole had been cut in the dining room floor for a stairway which was never properly installed. That appurtenance was replaced and redone at a cost of $800. Taxes were paid in the amount of $137. Then there was the cost of extensive labor, and $60 for paint which the beneficiary applied herself. The court found that in all Ms. Carter had suffered damage during the redemption period in excess of the $2,500 amount of the penal bond. The judgment is supported by substantial evidence.

The judgment is affirmed.

All concur.


author: PER CURIAM:

text:
    City of KANSAS CITY, Missouri, Plaintiff-Respondent, v. Therese ROWELL, Defendant-Appellant.
    No. KCD 28336.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Byron Neal Fox, Kansas City, for defendant-appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, City Prosecutor, John B. Williams, Asst. City Prosecutor, Kansas City, for plaintiff-respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PER CURIAM:

Defendant was convicted in the Municipal Court of Kansas City, Missouri, for an ordinance violation of solicitation of an immoral act. Defendant appealed to the Circuit Court of Jackson County, and the matter was heard by the trial court sitting without a jury. At the conclusion of the evidence, the defendant who had appeared pro se had requested an opportunity to make a statement to which the trial court responded:

“The court finds the defendant guilty and sentences the defendant to sixty days.”

Immediately thereafter, the court made a finding of guilt and assessed the punishment at sixty days confinement.

This appeal must be dismissed. The dismissal is required under the authority of City of Riverside v. Johnson, 507 S.W.2d 48, 49 (Mo.App.1974). It was there pointed out that:

“The procedure in the circuit court for appeals from municipal courts . is governed by the rules of criminal procedure. § 98.020 RSMo 1969, City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935 (1942); City of St. Louis v. Meixner, 285 S.W.2d 50 (Mo.App.1955); Kansas City v. Stricklin, 428 S.W.2d 721 (Mo. banc 1968). Criminal Rule 27.20(a), . . . mandates that a motion for new trial be filed before judgment and within ten days of rendition of verdict. [See: State v. Ezell, 470 S.W.2d 162 (Mo.App.1972)] Judgment and sentence must be imposed ‘after the motion for new trial and other presentence procedures have been disposed of.’ State v. Absher, 439 S.W.2d 11, 12 (Mo.App.1969); State v. Jaeger, 394 S.W.2d 347, 354 (Mo.1965). A judgment rendered and a sentence imposed before the defendant has exercised his legal right to file a motion for new trial, or before the motion has been timely filed and ruled upon, is illegal and void. State v. Grant, 380 S.W.2d 799 (Mo.1964); State v. Summers, 477 S.W.2d 721 (Mo.App.1972); State v. Jaeger, supra.

The defendant’s sole point on this appeal is that the trial court’s refusal to hear the pro se argument of the defendant is a violation of the constitutional right of the defendant to make a closing argument, citing Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

No formal judgment and imposition of sentence having been made, the trial court retains jurisdiction to do so. State v. Grant, supra. Upon the remand for the entry of that final judgment, the trial court may reconsider in this court-tried case the defendant’s request for an opportunity to present argument.

Appeal dismissed.


author: TURNAGE, Judge.

text:
    D_ I_ M_, Defendant-Respondent, v. P_ D_ M_, Plaintiff-Appellant.
    No. KCD 28453.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Michael Paul Harris, St. Joseph, for plaintiff-appellant.

      James H. Counts, Stephen J. Briggs, Morton, Reed & Counts, St. Joseph, for defendant-respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

The father appeals the refusal of the trial court to modify a dissolution decree so as to award custody of his minor son to him.

On this appeal, the father contends the increase in the age of the child alone is sufficient to justify modification, and error in refusing to find the mother was morally unfit to retain custody. Affirmed.

The father introduced evidence by one D_C__ that D_C_had engaged in a continuous course of immoral conduct with the mother for three months, in the mother’s home, while the five-year old was present. According to D_ C_, these affairs took place after he left work at around midnight. The father also produced a neighbor of the mother who testified to seeing a car of th,e same color as that driven by D_ C_ parked near the mother’s home late at night on occasion, and on occasion early in the morning. The father also produced another man who stated he had visited the mother in her home, but denied any improper conduct with her.

The father testified he had remarried and was able to furnish a good home for the child. His new wife also testified as to her willingness to take the son into her home.

There was no evidence of neglect or maltreatment on the part of either the father or mother of the child.

The mother categorically denied any improper conduct, although she admitted she knew Mr. C_ and that he had, on occasion, been in her home late at night.

At the conclusion of the evidence, the able trial judge made the following statement:

“Well, these are unfortunate circumstances. I can appreciate Mr. M_⅛ concern. If I had been in his shoes, I can’t help but think the child would be better off in the M_home, because the wife is there, the two of them, and it’s a better situation.
“However, as I understand the law to be, I do not have the right to make a change unless there has been some change in circumstances since the marriage that would indicate such change was adverse to the child, on the part of the custodian; that would be on the part of Mrs. M_
“The only thing in here that I can see that would justify that would be the testimony of Mr. C_; and the whole case hinges on his testimony, in my opinion. And I don’t know for sure; I’m not a person that can see through the fog to say that the truth is all the time, but I must say during his testimony I had the feeling that maybe he was testifying more from wishful thinking than from fact. I could be wrong. But the burden is on the movant in this case to convince me by at least a preponderance of the evidence that what Mr. C_said was true, and I cannot with any confidence say that I believe Mr. C_, especially about the matters that she denied, so movant’s motion will be denied. Costs taxed against the movant.”

The scope of review in this case is set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Under that standard the judgment will be sustained unless there is no substantial evidence to support it or unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.

The first ground urged for reversal is the increase in age of the child between the time the dissolution was ordered and the custody vested in the mother and the date of the hearing on the motion to modify. It should first be noted only a period of about ten months elapsed between these two events. Further, there was no evidence the increase in the age of the child had brought about any circumstances which would make it in his best interest to change his custody. There was no substantial evidence to support a modification on this ground. Further, this ground was not presented to the trial court. The judgment may not be modified on that ground.

The main issue in the trial court, as is apparent from the statement of the court, was the question of the moral fitness of the mother to continue as the custodian. To find such unfitness it was necessary for the court to believe Mr. C_, and as shown by the court’s statement, the court did not believe this witness.

Rule 73.01 requires this court to give due regard to the opportunity of the trial court to judge the credibility of witnesses. As stated in Labor Discount Ct. v. State B. & T. Co., 526 S.W.2d 407, 421[4, 5] (Mo.App.1975):

“Secondly, when the determination of the issues presented at trial rests primarily upon the weight to be accorded oral testimony and rests upon the credibility of the witnesses whose testimony is in many instances conflicting it is peculiarly appropriate that deference be accorded the findings and judgment of the trial court.”

The appellate court will “defer to the findings of the trial court upon salient factual issues where the evidence thereon is in irreconcilable conflict and the determination thereof necessarily must rest upon the credibility of the witnesses and the weight to be accorded to their testimony.” Schreck v. Parker, 388 S.W.2d 538, 545[14-16] (Mo.App.1965).

Here the crucial evidence from which the court had to determine the moral fitness of the mother stood in irreconcilable conflict. The testimony of Mr. C_ and the mother stand in direct contradiction. ' In this circumstance, this court must accept the finding of the trial judge as to the credibility of Mr. C_It is impossible, from a cold record, for this court to judge the credibility and believability of Mr. C_

The trial court passed on the credibility of the witness and disbelieved the father’s evidence concerning the immoral conduct of the mother. There is substantial evidence to support the finding of the trial court and this court cannot say the judgment is against the weight of the evidence.

In the absence of any evidence which would show, any other reason to overturn the trial court’s findings, the judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    William L. POLLOCK and Winifred Pollock, Respondents, v. Clifford P. ADAMS and Maxine Adams, Appellants.
    No. 28468.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      Erwin L. Milne, Stockard, Andereck, Hauck, Sharp & Evans, Trenton, for appellants.
    E. Leroy Miller, R. Max Humphreys, Allan D. Seidel, Miller, Humphreys & Seidel, Trenton, for respondents.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action by lessees of restaurant premises against lessors for declaratory judgment to declare right of parties to real and personal property leased and to declare lessees’ right to continued possession and use of real and personal property. Lessors counterclaimed and asked for forfeiture of lease for breach of terms of lease by lessees. Trial court found for lessees and declared that they were entitled to continue in possession of premises under terms of lease. Judgment was rendered against lessors on counterclaim. They have appealed.

Clifford P. Adams and Maxine Adams are owners of the Lakeview Motor Lodge in the City of Trenton, Missouri. On July 1,1972, they entered into a lease agreement with William L. Pollock and Winifred Pollock covering the cafe building at the lodge, less the motel office in a corner of the building. The lease was for a term of three years, with a right to renew for an additional five years, a right of which the lessees took advantage.

In 1973 or 1974, the sale of liquor by the drink was authorized in Trenton and the lessors installed bar facilities in the restaurant. According to Mr. Adams, he intended only a service bar operation, with the service of liquor to the dining room customers. When the lessees closed sliding doors between the dining area and the bar and began operation of a cocktail lounge, disagreement arose between the parties.

On March 27, 1975, lessors caused notice to be served upon lessees, terminating the lease and calling for the delivery of possession to lessors on May 1, 1975. When lessees failed to do so, proceedings were begun in the Grundy County Magistrate Court, alleging violations of terms of the lease by the lessees which entitled the lessors to terminate the lease, and asking for judgment requiring the lessees to surrender possession of the premises. Upon a trial, the magistrate found in favor of the lessees.

On July 5, 1975, lessors again caused notice of termination to be served upon lessees, charging violation of terms of the lease agreement. The lessees responded with this action to obtain a declaration of their right to continued possession and the lessors counterclaimed for possession and damages.

After a trial at which Mr. Pollock and Mr. Adams testified and photographic and documentary evidence was presented, the trial court entered its judgment favorable to lessees, declaring that they were entitled to remain in possession for the term of the lease provided they fulfilled their obligation under the terms of the lease and did not violate any of its conditions. The court further found that the installation of the bar facilities was pursuant to an oral modification of the lease, effective for its term, and denied to lessors the right to remove facilities added pursuant to such oral modification.

In this court appellants assert that the trial court’s finding that respondents were entitled to remain in possession of the premises for the remainder of the term of the lease was not supported by the evidence. Appellants assert that the evidence showed three distinct breaches of the lease which entitled them to terminate it. The breaches relied upon were:

1. Failure to pay rent in accordance with lease.
2. Making of alterations by lessees without prior approval of lessors, in violation of terms of lease.
3. Refusal to permit lessors to inspect, in violation of terms of lease.

The rent called for by the lease was 10% of gross receipts under $15,000 per month and 7% of gross receipts over $15,000 per month, payable on the first day of each month.

According to Mr. Adams, payments were not made regularly on the first day of the month. The time of payment depended upon how soon the bookkeeper got the calculations made of the prior month’s business. Cancelled checks in payment of the rent from January, 1974 to September, 1975, showed some checks dated as late as the 16th of the month, with only three checks dated the first of the month — May 1, 1975, July 1, 1975 and August 1, 1975. The evidence was that the August check was not delivered until after the first.

Insofar as appears, no question was raised about failure to pay rent on the first of each month until June, 1975. At that time, when renewal of the lease was under discussion, the Adams’s attorney wrote the Pollocks’ attorney and stated that upon renewal lessors would insist upon strict compliance with the terms of the lease, including payment of the rent on the first day of the month. Pollock denied that he saw the letter.

According to Pollock, for the first two months after the magistrate court case, Adams was in his office the first day of the month to see whether Pollock had the rent check for him. Adams testified that, on August 1,1975, he asked Pollock if he had a check and Pollock told him that the bookkeeper hadn’t prepared it. He told Adams, “I’ll get it for you before long.” The check was not delivered until-the 3rd or 4th of the month. The check for rent for the month of August, 1975 was dated September 4, 1975.

The notice of termination dated July 2, 1975 made no reference to late payment of rent. In their counterclaim, appellants alleged a demand for payment on August 1, 1975 of rent and failure to pay on such date as a breach of the lease, entitling them to possession of the premises. The lease provided that default in the payment of rent entitled the lessor to take possession.

The trial court found that failure to pay the rent on August 1, 1975 was not a substantial violation of the lease and that any breach in that respect was waived by acceptance of late payments.

Appellants have not shown that the court’s finding of waiver was erroneous. There was no evidence of any notice of forfeiture based upon this alleged breach of covenant. The evidence did show payment and acceptance of the rent on August 3 or 4. Absent prior notice of forfeiture on such basis, acceptance of the rent at that time without objection waived any right to forfeiture for the late payment. Lucas Hunt Village Co. v. Klein, 358 Mo. 1054, 218 S.W.2d 595, 598[4, 5] (banc 1949). The only evidence of notice of forfeiture at the time the rent was paid was that of July 2, 1975, which did not include the late payment of rent. That notice would preclude the acceptance of the rent in August from constituting a waiver of those specified grounds of forfeiture, Lucas Hunt Village Co. v. Klein, supra, but such notice could not be extended to include the further ground of nonpayment of rent, which arose later.

Although the court’s finding is couched in terms of waiver, the court also noted that in ruling the case it had considered the case of Independence Flying Service, Inc. v. Abitz, 386 S.W.2d 399 (Mo.1965). That case holds that a common law forfeiture of a lease for nonpayment of rent requires a notice of forfeiture and a demand for payment of the rent on the precise day that it becomes due and for the precise amount due. 386 S.W.2d at 404[5-7]. In this case there is no evidence of notice of forfeiture. No unequivocal demand for rent was made on the date it was due. Adams testified that on August 1, 1975 he merely asked Pollock, “Do you have a check for me?” This is not a demand such as will support a right of forfeiture. The inadequacy of the demand obviates the necessity of considering the problem of failure to demand the exact amount of rent due. Appellants point out that they would not be in a position to know the exact amount because it was dependent upon respondents’ gross income for the preceding month. That fact would' not excuse a demand for payment in unequivocal terms.

The trial court did not err in refusing to order a forfeiture of the lease for failure to pay the rent on the exact date that it was due under the terms of the lease.

Appellants assert that the respondents violated the covenant against alteration of the premises and that the trial court erred in finding that the alteration involved was not a substantial violation, entitling appellants to forfeit the lease.

By the lease, the lessees agreed “To make no alteration in the premises without the consent of the lessor in writing, except ordinary repairs * *

According to Pollock, there was always access to the restaurant area through the motel office. The restaurant supplies were kept in an unenclosed area and some disappeared from time to time. Pollock said that he discussed the situation with Adams and Adams had no objection to “locking off” the supply area and suggested a door between the kitchen and the storage area.

Without obtaining approval of Adams, Pollock erected a 2" X 4" framing on the walls of the storage area and partitioned off the area by installing a door. Chicken wire was nailed to the facing in the area not covered by the door. Photographs introduced at the trial show that the partition extends across an area some 6' in width. The partition is high enough to accommodate the door but does not extend to the ceiling.

Adams also complains that Pollock installed a hasp on the office door of the restaurant. The hasp is attached to the door frame with screws and a padlock is used to lock the office door. This was done without Adams’s consent.

The trial court found that these alterations had been made but that they were not substantial enough to warrant a forfeiture.

The trial court’s conclusion was not erroneous. The partition was obviously a temporary structure, consisting of perhaps six 2" X 4" pieces, a door and chicken wire. The partition was fixed by nailing 2 X 4’s to the wall. Removal would be a minor matter. The same is true of the hasp used as a locking device for the office door. Neither constituted a change in the basic structure of the leased premises, as did the removal of a partition in the case of Levin v. Hamilton, 240 Mo.App. 764, 218 S.W.2d 131 (1949), cited and relied upon by appellants.

Finally, appellants contend that the trial court erred in failing to declare a forfeiture for violation by respondents of the covenant permitting inspection of the premises by appellants.

Under the lease, the lessees agreed to “permit the lessor or agent to enter at all reasonable times to view the premises and make such repairs and alterations as said lessor may deem necessary or proper; * * * if

Following the disputes about respondents’ use of the bar area, on July 1, 1975, Adams saw Pollock in the kitchen of the restaurant and the following occurred:

“I asked Mr. Pollock for the key to the bar and he said, ‘What do you want the key for?’ and I said, T want to take some of the equipment out of there. You haven’t been operating the bar the way we agreed upon.’ He said, T can’t let you do that, can’t let you have the key.’ And I said, ‘Well, I want to understand this correctly.’ I said, ‘You’re refusing me entrance into my building to make alterations I feel are necessary; is that correct?’ And he said, ‘Yes, it is.’

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“I just wanted to remove my sink and cocktail units and beer cooler and things like that I had put in so he could operate this liquor by the drink deal that we had agreed upon, and he hadn’t lived up to his agreement as to how he was going to operate it and so I had told him before then that if he didn’t I was going to take my equipment out.”

Pollock agreed that this had occurred. He said that Adams had never otherwise requested permission to inspect the premises. He said he told Adams that he would permit him to enter any time to inspect the premises or make repairs but not for the purpose of removing equipment.

The trial court’s finding that the purpose for which Adams sought entry on July 1 was not a purpose for which the lessee was required to permit entry under the terms of the lease was not erroneous. Adams obviously was not seeking to make repairs or alterations as contemplated by the lease. He was trying to impose his will as to how the bar portion of the business should be operated. A denial of entry for such purpose was not a violation of the lease.

Appellants next contend that the trial court erred in concluding that there had been an oral modification of the lease to include facilities added to the premises by appellants during the term of the lease and that appellants were not entitled to remove such facilities during the term of the lease. Appellants complain that there was no evidence from which such conclusion might be arrived at, particularly with respect to the new table and chairs provided by appellants when the restaurant was enlarged and the bar equipment.

The lease is silent with respect to its application to personal property. It is evident, however, that the parties treated the transaction as one for the leasing of an operable enterprise. Tables, chairs and kitchen equipment were provided from the outset. When the restaurant was enlarged, appellants provided additional tables and chairs. They point out that respondents did not contribute to the cost of these items. It also may be noted that appellants did not claim to have asked them to do so. Rather obviously, appellants received additional rent upon the enlargement of the premises as the additional business would increase the gross receipts on which the rent was based. The same is true of the bar facilities.

Although there is reason to agree with appellants’ argument that evidence of oral agreement with respect to the personal property is lacking, nevertheless the parties by their conduct and operation under the lease have provided an adequate basis for the trial court’s conclusion. The parties have understood that the transaction involved the use of the furnishings provided by the lessors. The lessors voluntarily enlarged the premises and provided additional furnishings without seeking any change in the terms of the lease. They should not now be permitted to back out of the arrangement because of a difference of opinion as to how the business should be operated.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Theodore Delroy AMRINE, Appellant.
    No. KCD 28507.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    William G. Mays, II, Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent. ■
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

Theodore Amrine was convicted by a jury of assault with intent to do great bodily harm with malice aforethought. Under the Second Offender Act, the court sentenced him to seven years confinement.

On this appeal, Amrine complains of the giving of an instruction. Affirmed.

Theodore Amrine and his brother, Fred Amrine, became involved in a fight with Annise Davis outside a nightclub in Columbia. The Amrine brothers left the scene and Theodore later appeared at a friend’s apartment and obtained a gun. Shortly thereafter, with Theodore driving, he and Fred returned to the nightclub and found Davis still standing in front.

Both men got out of the car and Fred fired several shots at Davis, none of which struck their mark. Both men returned to the car and, with Theodore driving, left the scene.

In its instructions to the jury, the court gave MAI-CR 6.22, as modified by MAI-CR 2.14. Amrine concedes this instruction was the proper combination of instructions applicable to this case. The instruction given by the court was:

“If you find and believe from the evidence beyond a reasonable doubt:
“First, That on or about May 8, 1975, in the county of Boone, State of Missouri, a certain person shot at Annise Davis, Jr., and
“Second, that this person did so with malice aforethought — that is, intentionally and without just cause or excuse and after thinking about it beforehand for any length of time, and
“Third, that this person did so with intent to maim Annise Davis, Jr., and
“Fourth, that the defendant, Theodore Delroy Amrine, knowingly and intentionally aided or encouraged the person who engaged in the conduct submitted in the above paragraphs,
“then you will find the defendant, Theodore Delroy Amrine, guilty of assault with intent to maim with malice aforethought.
“However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant, Theodore Delroy Amrine, not guilty of that offense.”

The sole contention on this appeal is error in the instruction in the use of the words “a certain person” rather than using the name of Fred Amrine. The contention is made that the use of the words “a certain person” causes the instruction to be at variance with the evidence in this case.

This is wholly untenable because all the evidence in the case revealed the shots were fired by Fred. There was no evidence that anyone else fired any shots and no evidence that Theodore fired any shots. In referring to the person who fired the shots, none of the witnesses referred to Fred by name. Rather, the witnesses referred to him as “his (Theodore’s) brother,” “the guy that had the gun,” “the person that got out of the passenger side (of the Volkswagen),” “this person with the gun,” “the other person,” and “the man with the gun.” Thus, the evidence referred to Fred in descriptive terms rather than to him by name. Clearly, the jury could not have been misled as to the identity of the person referred to in the instruction as “a certain person.”

Of paramount importance, however, is the fact the instruction followed the mandate of MAI-CR. In MAI-CR 2.14, the following direction appears:

“Where appropriate in ascribing certain conduct to defendant or another or others whom he aided or tried to aid, use the word or phrase applicable to describe the person or persons who engaged in that conduct, e.g., ‘defendant’, or the name or names of the other or others, or ‘a certain person’, or ‘certain persons’, or ‘defendant or another’, or ‘defendant or others’, or ‘defendant and another’ or ‘defendant and others’ . . .”

The instruction as given followed the direction in MAI-CR. The court was required to follow MAI-CR. Rule 20.02(c). There was no error in using the phrase “a certain person.”

Affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Wayne JOHNSON, Appellant.
    No. KCD 28515.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      John L. Port, Moberly, for appellant.
    Thomas J. Marshall, Pros. Atty., Randolph County, Moberly, for respondent.
    Before SWOFFORD, P. J., and DIXON and PRITCHARD, JJ.
   SWOFFORD, Presiding Judge.

On August 5, 1975, the appellant was interrogated at his place of employment by the Sheriff of Randolph County, Missouri and one of his deputies about a burglary which had occurred at a nearby farm. He was then arrested for investigation, without a warrant, and taken to the Randolph County Courthouse where he was again questioned by the Sheriff and by the Prosecuting Attorney.

At the time of his arrest, no formal charges had been filed against him, but within less than an hour after his arrival at the courthouse, he was taken before a magistrate, without counsel, on a charge of conspiracy to steal. He pleaded guilty to the charge and the court accepted the plea, granted allocution and imposed a 30-day sentence in the county jail, and placed him on parole for six months, on condition that he pay all costs, violate no laws and report monthly to the Sheriff.

The appellant then returned to his place of employment as a security guard at the Missouri Training Center for Men at Mob-erly and was given his choice of resigning his position or being fired. He refused to resign and was fired.

On August 7, 1975, the appellant filed in the Magistrate Court a motion to withdraw his plea of guilty pursuant to Rule 27.25, Rules of Criminal Procedure, wherein he set forth (here summarized) that he was not guilty of the crime charged but had entered such plea upon the misrepresentations of the Prosecuting Attorney and the Sheriff of Randolph County; that he was not afforded time to consult with counsel or his family; that his decision was not an informed one; that he had been discharged from his job because of the guilty plea; and, that justice required that he be permitted to withdraw the plea. The basis of appellant’s complaint as to the alleged misrepresentations made by the Sheriff and Prosecuting Attorney was that they led him to believe that if he pled guilty and was placed on parole, he would not lose his job.

On August 29, 1975, the Magistrate denied appellant’s motion to withdraw his guilty plea. The appellant, appealed to the Circuit Court of Randolph County where a full evidentiary hearing on his motion was held on November 21, 1975. On December 3, 1975, the Circuit Court denied the appellant’s Rule 27.25 motion and thereafter appellant perfected his appeal to this court.

Appellant raises three points, which may be summarized as follows: First, that the trial court’s finding that his plea of guilty before the Magistrate was voluntarily made was clearly erroneous; second, that the trial court’s conclusion that the appellant was arraigned by the Magistrate and advised of his rights was clearly erroneous; and, third, that the Magistrate lacked jurisdiction because the information under which he was charged did not state an offense against the State of Missouri.

Appellant’s third point is treated and ruled at the outset as its resolution is dispositive of the issues raised in this appeal. It is noted that this jurisdictional point was not raised nor was it preserved in the court below. Regardless of that fact, it will be considered and ruled here under Rule 28.02, Rules of Criminal Procedure, which provides, in part:

“ * * * Allegations of error respecting the sufficiency of the information or indictment * * * shall be considered upon an appeal although not raised in the trial court or preserved for review.” State v. Couch, 523 S.W.2d 612 (Mo.App.1975); State v. Vandergriff, 403 S.W.2d 579 (Mo.1966).

The information of concern in this appeal reads as follows:

“MISDEMEANOR INFORMATION
THOMAS J. MARSHALL, Prosecuting Attorney in and for the County of Randolph, on behalf of the State of Missouri, upon official oath informs the Court as follows:
That WAYNE JOHNSON, in the County of Randolph, State of Missouri, did then and there wilfully and unlawfully, on or about the 1st day of August, 1975, conspire with four other persons, to-wit: Raymond Lee Whelchel, James N. Baker, Dennis R. Baker, and David Baker, to commit a misdemeanor, to-wit: stealing from Howard Fleming, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Missouri.
/S/ Thomas J. Marshall
Prosecuting Attorney
Filed Aug. 5, 1975”
(Emphasis supplied)

The pertinent statutes, RSMo 1969 Pocket Part (amended in 1973), governing the problems here presented, read in part, as follows:

“Section 556.120. Illegal conspiracy, combination or confederacy prohibited, penalty.
1. If two or more persons agree, conspire, combine or confederate to commit a misdemeanor or felony * * * they are each guilty of a misdemeanor and, upon conviction, shall be punished as provided by law.
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Section 556.130. Overt act required to constitute conspiracy.
1. No agreement shall be deemed a conspiracy, unless some overt act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement.
* * *

Under Chapter 546, Trials (Criminal Cases), is the following:

“Section 546.320. Conspiracy.
In trials for conspiracy, in those cases where an overt act is required by law to consummate the offense, no conviction shall be had, unless one or more overt acts be expressly alleged in the indictment and proved on the trial; * * * ” (Emphasis supplied)

All of these statutes must be read and construed together in connection with any charge of conspiracy. State v. Montgomery, 116 S.W.2d 72, 73-74[2] (Mo.1938).

Judged against the requirements of these three statutes, the information above set forth must be considered fatally defective because no overt act is alleged to have been committed either by appellant or his co-conspirators in furtherance of the alleged conspiracy.

An “overt act” is something apart from the conspiracy and has been defined as an act which must accompany or follow the agreement and must be done in furtherance of and designed to carry out the purposes of the conspiracy. State v. Stupp Bros. Bridge & Iron Co., 380 S.W.2d 382, 394[4] (Mo. banc 1964). The information before this court contains no declaration or charge of any overt act and thus fails to charge a crime under the statutes above quoted and contains no wording which, even by inference, meets the definitional standard of State v. Stupp, supra.

An information or indictment is jurisdictional in the sense that if it fails to charge a crime the court acquires no jurisdiction to proceed, and whatever transpires after its filing is a nullity. State v. Hasler, 449 S.W.2d 881, 884[3] (Mo.App.1969). The sufficiency of an indictment may be attacked at any time during trial or on appeal, after a guilty plea or in a collateral attack under Rule 27.26, State v. Hasler, supra, at 884[4].

The judgment of the court below is reversed, the judgment and sentence of the Magistrate Court are set aside and for naught held, and the appellant is ordered discharged.

All concur.