author: KELLY, Judge.

text:
    CORNING TRUCK & RADIATOR SERVICE, Plaintiff-Respondent, v. J. W. M., INC., Defendant-Appellant.
    No. 36892.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 5, 1976.

      Francis A. Casserly, Biggs, Curtis, Cas-serly & Barnes, Clayton, for defendant-appellant.
    Jack F. Allen, Clayton, for plaintiff-respondent.
   KELLY, Judge.

This appeal is from an order and judgment of the Circuit Court of St. Louis County entered after the trial court sustained plaintiff-respondent’s motion for summary judgment. We affirm.

Plaintiff instituted this action in the Circuit Court of St. Louis County under the Uniform Enforcement of Foreign Judgments Law, § 511.760 RSMo. 1969 and Rule 74.79 V.A.M.R. Defendant filed its Motion to Dismiss, Answer and Counterclaim alleging in the motion to dismiss that the plaintiff’s petition failed to state a cause of action. In its Answer defendant neither admitted nor denied the allegations of plaintiff’s petition alleging that it had no knowledge or information concerning the allegations contained therein and called upon the plaintiff for strict proof. Defendant, in its counterclaim, alleged in Count I that the foreign judgment was obtained by perjury and false testimony and sought $1,778.88 actual damages. Count II of defendant’s counterclaim incorporated by reference the same allegations as pleaded in Count I and prayed for punitive damages of $5,000.00. Plaintiff filed a Motion to Dismiss the counterclaim and both parties’ motions to dismiss were overruled “by consent.” A Reply denying the allegations of defendant’s counterclaim was thereafter filed. Depositions were filed on behalf of both the plaintiff and the defendant and plaintiff filed its Motion for Summary Judgment on both its petition for registration of the foreign judgment and on both counts of defendant’s counterclaim together with suggestions. Defendant countered with a Memorandum in Opposition and an Affidavit of John M. Meyer, defendant’s president. Plaintiff’s Motion for Summary Judgment was heard, submitted, further suggestions filed, and subsequently the trial court made findings of fact and conclusions of law and entered judgment sustaining plaintiff’s motion for summary judgment, ordering the foreign judgment registered as a final judgment of the Circuit Court of St. Louis County and dismissing Count I and Count II of defendant’s counterclaim with prejudice. After defendant’s unsuccessful motions to set aside the summary judgment, for rehearing, and to amend judgment and opinion, this appeal followed.

This proceeding had its genesis in a lawsuit filed by the plaintiff, a partnership composed of William Boot arid Barbara Boot, husband and wife, in the Small Claims Court of Corning Judicial District, County of Tehama, State of California. J.W.M., Inc., a Missouri corporation with offices in St. Louis County, Missouri, is owned by John W. Meyer and his wife and is engaged in the business of buying and selling meat at wholesale. It purchases meat in certain parts of the country. All business transactions and contracts for the purchase and sale of meat are made in the St. Louis County offices of the corporation, either in person, by telephone or by correspondence.

In February, 1972, J.W.M., Inc., in the course of its business, leased trucks from individual drivers for the purposes of transporting its meat products. It required that these trucks have J.W.M., Inc. painted on the sides of the trucks. The corporation also purchased the fuel permits for these leased trucks. On January 3, 1972, J.W.M., Inc. leased a truck from Kenneth Lynn for one year, the truck to be used in the transportation of J.W.M., Inc.’s products in interstate commerce. The agreement provided that the vehicle should be solely and exclusively under the direction, supervision and control of the lessee — J.W.M., Inc., who assumed full responsibility for the operation of the vehicle, and agreed to furnish necessary insurance in compliance with all state laws. Mr. Lynn, as the lessor, agreed that he would fully maintain, service and keep the vehicle in good repair, buy all gas, oil, tires and other necessary equipment. The drivers, including Mr. Lynn, were paid a sum in addition to the amount agreed upon for the lease of the trucks, for transporting J.W.M., Inc.’s products. The trucks were authorized to operate in interstate commerce through numerous states, including California. On or about February 26, 1972, while Mr. Lynn was driving the leased vehicle from Seattle to San Francisco, he developed some transmission trouble and stopped at plaintiff’s repair shop in Corning, California. Mr. Boot’s testimony, in a deposition filed in support of the motion for summary judgment, was that Mr. Lynn asked him to repair the transmission but did not say who was to pay for it, other than that “they were to wire the money to pay for it;” that he would have the money wired to Mr. Boot to pay for it. This statement was made by Mr. Lynn both prior to and after completion of the repairs, but at no time did Mr. Lynn tell him “who” they were. Mr. Boot assumed that payment was coming from J.W.M., Inc., the name painted on the door of the truck. From past experience Mr. Boot knew that in almost all cases the lessor will pay the bill and later withhold it from lessee’s check; but there was no particular pattern. He had never done any business with J.W.M., Inc. before and did not contact it until after the work was completed and Mr. Lynn had left in the truck without paying the repair bill. While the truck was undergoing repairs Mr. Meyer authorized Ryder Truck Rentals to rent a substitute truck to Mr. Lynn and paid the rental.

Mr. Boot found out who J.W.M., Inc. was through Ryder Truck Rentals in Oakland, California, because before actually commencing to repair the truck transmission he had informed Mr. Lynn what parts would be necessary to make the repairs and Mr. Lynn went to a parts store in Oakland where J.W.M., Inc., did not have credit, and charged the parts to Ryder Truck Rentals with whom J.W.M., Inc. did have credit. After Mr. Boot learned where J.W.M., Inc., was located, he called its office in Missouri and had two conversations with Mr. Meyer about the bill. During one of these conversations, which took place about one week after Mr. Lynn took off with the truck, Mr. Meyer remonstrated with him for permitting Mr. Lynn to leave with the truck without paying the bill, and told him that he would attempt to collect the money from Mr. Lynn, whom he felt was responsible for the bill.

When the bill remained unpaid, Mr. Boot added $20.00 to the repair bill for “additional phone calls to trace party,” thereby increasing the amount of the bill from $202.03 to $222.03, and on January 12,1973, filed an action in the Small Claims Court against J.W.M., Inc., seeking $270.13 by reason of “an obligation . . . contracted to be performed in the above-named judicial district.” On June 5, 1973, the Small Claims Court entered a default judgment against J.W.M., Inc. for $270.13 plus $8.75 costs. The Small Claims Court found that “the plaintiff (Corning Truck and Radiator Service) was doing business within the State of California and that the court has jurisdiction over defendant (J.W.M., Inc.).”

On June 25, 1973, the plaintiff filed its petition for registration of the foreign judgment as aforesaid.

On appeal, appellant raises three points of claimed error. The alleged errors of the trial court presented for review are (1) that it erred in failing to sustain appellant’s motion to dismiss respondent’s petition for registration of foreign judgment because (a) the California Small Claims Court is not a court of general jurisdiction and (b) respondent neither alleged nor proved that the Small Claims Court had jurisdiction to enter the judgment against appellant; (2) that it erred in sustaining respondent’s motion for summary judgment because there were genuine and substantial issues of material fact regarding the California Small Claims Court’s jurisdiction over the subject matter of the action; and (3) that it erred in dismissing appellant’s counterclaims because the factual issues raised therein created substantial and material issues of fact.

A “foreign judgment” entitled to registration under the Uniform Enforcement of Foreign Judgments Law of this State, § 511.760 RSMo. 1969 and Rule 74.79 V.A.M.R. is a judgment, decree or order of a court of the United States or of any state or territory which is entitled to full faith and credit in this state. § 511.760.1(1) RSMo. 1969, Rule 74.79(a)(1) V.A.M.R. The Federal Constitution, U.S.C.A.Const. art. 4, sec. 1, requires courts of Missouri to give full faith and credit to judgments of the courts of sister states unless it can be shown that there was a lack of jurisdiction over the subject matter, failure to give due notice, or fraud in concoction of the judgment. O’Neill v. Winchester, 505 S.W.2d 135, 136[1] (Mo.App.1974). A judgment rendered by a court of general jurisdiction of a sister state is presumed, absent any showing to the contrary, to be a judgment wherein the court not only had jurisdiction over both of the parties and over the subject matter, but also that the court followed its laws and entered a valid judgment in accordance with the issues made in the case. McDougal v. McDougal, 279 S.W.2d 731, 739[28] (Mo.App.1955).

Appellant contends, however, that the California Small Claims Court- which rendered the judgment sought to be registered in Missouri, is not a court of general jurisdiction, but one which has replaced the justice and municipal courts of California, and therefore respondent’s Petition for Registration of Foreign Judgment was defective because respondent neither pleaded nor proved that the California Court of Small Claims had the requisite jurisdiction entitling its judgment to full faith and credit in Missouri. Respondent’s reply to this argument is that its Petition for Registration of Foreign Judgment was filed in accordance with Rule 74.79 V.A.M.R. and an authenticated copy of the judgment of the California Small Claims Court was attached to the petition and made a part thereof as an exhibit; that therefore the judgment is subject to attack only on one or more of the three grounds specified above.

So far as we have been able to discern this is a case of first impression under the Uniform Enforcement of Foreign Judgment Law since its adoption in this state in 1951. Under the former practice, when a judgment creditor brought suit on a judgment obtained in a foreign court which was not one of general jurisdiction, the burden was on the plaintiff to plead and prove that the court of inferior jurisdiction possessed jurisdiction over the subject matter of the law suit in which the judgment was entered before a Missouri court could be required to give full faith and credit to the foreign judgment and enter a Missouri judgment thereon. Groo v. Sanderson, 208 Mo.App. 623, 235 S.W. 177 (1921), Central State Bank v. Moody, 225 Mo.App. 446, 40 S.W.2d 760 (1931). The plaintiff, to meet this burden of proof in the trial, would introduce into evidence the statute of the foreign state conferring jurisdiction on the foreign forum of the subject matter of the law suit. The issue to be resolved is whether this is still required under the Uniform Enforcement of Foreign Judgments Law.

To decide this question we believe it is appropriate to consider the legislativei intent in enacting the new law as evidenced by the reason for its adoption as reflected within the provisions of the law itself. We believe that it is clear that in enacting the law the legislature intended to afford judgment creditors an alternative and summary method of enforcing judgments of foreign forums which were entitled to full faith and credit under the Federal Constitution in addition to that already available by a suit on the foreign judgment in the nature of a suit on a debt as had been the practice in Missouri.

The summary nature of the procedure, whereby the foreign judgment is immediately registered upon the filing of an application or petition in the form specified in § 511.760.3 RSMo. 1969 and the provision that even prior to the time the judgment debtor has been served a levy may be issued upon any property of the judgment debtor subject to execution or other judicial process for satisfaction of the foreign judgment. The judgment remains registered until the court in which it is registered, after hearing, orders the registration set aside. Even where personal service cannot be obtained on the judgment debtor within 30 days after the levy and where he has not acted within 35 days after the mailing of the notice required by § 511.760.5 RSMo. 1969, the registered judgment becomes a final judgment quasi in rem of the court in which it is registered, binding upon the judgment debtor’s interest in property levied upon.

Under prior Missouri decisions there was no question that the judgments of inferior courts of the other states of the Union were entitled to full faith and credit. In suits on judgments of said inferior courts it was, however, the burden of the party plaintiff to plead and prove that said judgment was one which was within the subject matter jurisdiction of the inferior court awarding the judgment. While the General Assembly in adopting the Uniform Enforcement of Foreign Judgment Law did not specifically shift this burden with respect to judgments of the inferior courts of sister states insofar as this element of proof is concerned, we are of the opinion that in adopting this alternative method of establishing a judgment of a court of a sister state by registration and specifying the form of the application or petition for registration in the form prescribed, it was the intention of the legislature to remove those distinctions previously adhered to with respect to judgments of courts of general jurisdiction and inferior courts and shift the burden of proof with respect to any infirmities in the judgment of the sister state’s courts depriving them of entitlement to full faith and credit from the petitioner to the judgment debtor. The summary nature of the proceedings is more consistent with this approach to the registration of the judgment and the respective burdens of proof than that which was formerly followed.

We hold therefore that the trial court did not err in denying appellant’s motion to dismiss respondent’s petition to register this foreign judgment where the petition complied with the requirements of § 511.760.3 RSMo. 1969 and Rule 74.79(c) V.A.M.R.

Appellant’s second point is that the trial court erred in sustaining respondent’s motion for summary judgment because there is a substantial and genuine dispute as to whether appellant contracted to perform an obligation in the Corning Judicial District of the Small Claims Court of California, County of Tehama. In its brief appellant couches this “substantial and genuine dispute” in terms of whether the California Small Claims Court had “jurisdiction over the subject matter of the California Action.” However, in the Argument portion of its brief, appellant’s complaint is based upon the question of whether in contracting with respondent for the repair to the transmission of the truck it had leased from Mr. Lynn, Mr. Lynn was acting as its agent so as to make it liable to the respondent for the repairs or was acting for himself and under the lease agreement between Mr. Lynn and appellant so that Mr. Lynn alone was liable for the repairs. This is not a jurisdictional issue.

The California Code of Civil Procedure, Chapter 5-A Small Claims Courts, § 117, confers jurisdiction on all judges of the justices and municipal courts while sitting as a small claims court to cases for the recovery of money only where the amount claimed does not exceed five hundred dollars. This claim for money did not exceed that amount, and was, therefore, within the jurisdiction of the Small Claims Court to adjudicate.

Appellant seizes upon the venue portion of the statute which provided that when a defendant has contracted to perform an obligation in a particular judicial district, an action founded on the obligation might be commenced and maintained either in the judicial district where the obligation was to be performed or in which the defendant or any such defendant resides at the commencement of the action. This venue provision was deleted by amendment in 1972 and venue thereafter was the same as for civil actions filed in the justice or municipal court. Regardless, it would not affect the jurisdiction of the Small Claims Court in this case because the agreement sued on was made in this judicial district whether by Mr. Lynn or by him as appellant’s agent.

The defense appellant seeks to raise to jurisdictional level does not rise to that stature. Appellant was served under the California Long Arm Statute and does not challenge the validity of that service. It chose not to defend. It cannot now, at this late date, attempt to interpose in this Registration proceeding a defense which would have been available to it had it chosen to appear and defend in the forum. This is not the type of defense contemplated by § 511.760.8 RSMo. 1969. This section of the Act was intended to do no more than recognize that a judgment debtor should have the right to raise any defense, set-off or counterclaim which, under the law of this state, he might have asserted in the pre-existing procedure by which a judgment creditor in a foreign state had to bring a suit on said judgment in Missouri in order to establish a Missouri judgment on which levy could be had. See: Leflar, The New Uniform Foreign Judgments Act, 3 Ark.L.Rev. 402, 410, 412. Were this a proceeding to establish this California judgment as a Missouri judgment under the practice existing prior to the enactment of the Uniform Enforcement of Foreign Judgment Law, appellant could not have relied on this defense because it was not one of the three grounds recognized as a defense in a suit for that purpose. He cannot do so in the proceeding for the registration of this California judgment either.

Furthermore, “subject matter jurisdiction” is the power to adjudge concerning the general question involved, and if a complaint states a case belonging to a general class over which the authority of the court extends, that court possesses “subject matter jurisdiction.” The question of subject matter jurisdiction is not, as appellant contends, a fact issue, it is one of law. LaVerne v. Jackman, 84 Ill.App.2d 445, 228 N.E.2d 249, 255[4, 5, 6] (1967).

We rule this point against appellant.

The final point raised by appellant is that the trial court erred in dismissing its counterclaims because they raised fact issues whether respondent committed perjury in falsely stating in the Small Claims Court that the amount owed it was $270.18 when, in fact, the amount of the repair bill was less than that amount.

There are two reasons why there is no merit to appellant’s point. Initially, appellant in its counterclaim based its claim on an allegation that the judgment of the Small Claims Court was obtained by reason of an allegation in respondent’s petition in that court that the obligation sued on was contracted to be performed in the “above named judicial district,” when, in fact, at no time did the appellant contract any obligation whatsoever with the respondent in the State of California. On appeal the appellant has changed the perjury alleged in its counterclaim to a charge that respondent’s perjury consisted in inflating the amount of the repair bill. This appellant may not do and still preserve anything for this court to review because an appellate court will not review a case upon a theory different from that which was presented to the trial court from whence the appeal comes. Jenkins v. Andrews, 526 S.W.2d 369, 376[4] (Mo.App.1975).

However, a further reason for our holding on this point, is that the perjury alleged here is not that fraud upon the trial court which, even if proved, affects the jurisdiction of the court with respect to the registration of the judgment, and allegations of fraud going to the merits of the litigation in California cannot sustain a collateral attack and preclude enforcement of a foreign judgment. Only fraud in the procurement of jurisdiction, not fraud which occurs in the proceedings of the court after jurisdiction has been obtained, such as perjury, concealment, and other chicanery, may be the basis for an attack on the registration of a foreign judgment. LaVerne v. Jackman, supra, 1. c. 255[8]. See also: Fulton v. I. T. & T. Corp., 528 S.W.2d 466, 470[6] (Mo.App.1975).

We likewise rule this point against appellant.

The judgment of the trial court is affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . This was the second action filed to collect the repair bill, the first having been filed on March 2, 1972, in the same Small Claims Court, against John Meyer, Inc. and Ken Lynn for $211.93. The record does not reflect what the disposition of this case was. The judgment sought to be registered in this case was entered in the second suit instituted after it was learned that defendant-appellant was incorporated as “J.W.M., Inc.”

      . Chapter 5A, California Code of Civil Procedure, Small Claims Courts, § 117 as amended Stats.1972, c. 1119, p. 2145, sec. 1.


source: Caselaw Access Project

author: BEN F. PYLE, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Dennis William BURR, Defendant-Appellant.
    No. 9712.
    Missouri Court of Appeals, Springfield District.
    Oct. 6, 1976.

      Kenneth W. Johnson, Johnson & Sweeney, Springfield, for defendant-appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.
   BEN F. PYLE, Special Judge.

Appellant, Dennis William Burr, hereinafter referred to as defendant, was charged with selling a controlled substance (marihuana) under the Habitual Criminal Act in an information substituted for an indictment. The jury found defendant guilty and the court sentenced him under the Habitual Criminal Act to five years’ imprisonment in the Missouri Department of Corrections.

D. W. Lipp, an undercover narcotics agent for the Missouri Highway Patrol, testified that while working undercover in Springfield, Missouri, on January 11, 1973, he first met and became acquainted with the defendant at the Quest Lounge in Springfield. They struck up a general conversation which ultimately got around to the subject of drugs. The defendant who had introduced himself as Dennis asked Lipp if he was interested in anything. Lipp indicated he was and inquired of defendant what he had access to. Defendant replied, “Anything you want.” When asked by Lipp if he could obtain any chemicals, the defendant stated he could, however it would take a couple of days. Defendant then advised Lipp that he knew where he could get some marihuana. Lipp and the defendant then went their separate ways. The first meeting lasted about fifteen to twenty minutes.

Later that same evening, Agent Lipp again saw the defendant at the Esquire Lounge in Springfield. Defendant approached Lipp and told him he could get some marihuana but it would take a few days. Defendant gave Lipp a phone number and told him to call him in a couple of days and to ask for Dennis Burr or “Peanuts”.

Agent Lipp was then allowed to testify, over the objection of the defendant, that he then inquired of the defendant if he had anything with him at that time. Defendant stated that he had some “speed” and quoted a price of thirty cents a tablet. They retired to the restroom of the Esquire Lounge where Lipp testified he purchased ten tablets from the defendant for three dollars. Lipp placed the tablets in his coat pocket and they again went their separate ways. Later that evening Lipp noticed his jacket, along with the pills, was missing. No claim was made that the defendant was involved in the loss of the jacket and its contents. This second meeting that night at the Esquire Lounge lasted about ten minutes.

Agent Lipp then testified that sometime between January 11 and January 26 he placed a phone call to the defendant at the number given him and asked for either Dennis or Peanuts. Lipp stated that he talked to someone whom he could not identify. They talked about fifteen to thirty seconds and Lipp told him he would contact him the next time he (Lipp) was in town.

On January 26 Lipp again saw the defendant in the Esquire Lounge. They spoke and Lipp asked him if he had any marihuana. Defendant indicated that he did and it was fifteen dollars a lid. He and Lipp went out to the parking lot where the defendant gave Lipp two plastic bags containing marihuana. Lipp in return gave him thirty dollars. This contact lasted about ten minutes. This sale was the basis for the present charge against the defendant.

Agent Lipp made positive identification of the defendant as the man whom he had met on January 11 and who had sold him the marihuana on the 26th. He further stated that, in all, he had seen the defendant for a total of about forty minutes. The defendant testified that he had never seen or talked to Agent Lipp before his arrest and did not sell him any marihuana on January 26, 1973. Defendant in addition introduced other evidence tending to discredit Lipp’s identification testimony.

The defendant lists nine separate allegations of error which, because of their similarity, he has grouped under three points in his brief.

Basically, the defendant’s main contention under the first point is that the trial court erred in allowing the State, over defendant’s objection, to introduce evidence of the alleged prior sale of “speed” by the defendant to Agent Lipp on January 11. This the defendant claims constituted evidence of another crime which is inadmissible and prejudicial. The State contends that because of the evidence introduced by the defendant tending to discredit Lipp’s identification testimony and because the identity of the defendant was the main issue, such evidence of the prior sale of pills was proper in order to substantiate Lipp’s identification of the defendant.

It is well-settled that proof of the commission of a separate and distinct crime by the defendant is not admissible, unless such proof has a legitimate tendency to establish defendant’s guilt of the charge for which he is on trial. State v. Selle, 367 S.W.2d 522, 529[18] (Mo.1963); State v. Shilkett, 356 Mo. 1081, 1086, 204 S.W.2d 920, 922-923[1, 2] (1947). Generally, evidence of other crimes is competent to prove the specific crime charged when it tends to establish: 1) motive; 2) intent; 3) the absence of mistake or accident; 4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; 5) the identity of the person charged with the commission of the crime on trial. State v. Reed, 447 S.W.2d 533, 534[1] (Mo.1969).

The test of whether evidence of other distinct crimes falls within any of these exceptions was aptly stated in State v. Reed, supra, 447 S.W.2d at 534[1]:

“ ‘The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime.’ State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307.”

The cases of State v. Reed, supra, and State v. Carter, 475 S.W.2d 85 (Mo.1972), neither of which was cited by the defendant, are markedly similar and appear to be controlling of the issue involved here. In the Reed case, the defendant was charged with the unlawful sale of marihuana to James Pollard, a police informer, on July 12, 1967. Pollard testified that an agent supplied him with money, he went to the defendant’s apartment and purchased a bag of marihuana from him. Pollard was further allowed to testify, over the objection of the defendant, that a month earlier, on June 14, 1967, he had gone to the defendant’s apartment and purchased two ten-dollar bags of marihuana from him. The State argued that the evidence of the prior sale was admissible on various grounds, and further it showed positive identification of the defendant. The Supreme Court of Missouri, in reversing the conviction, said, 447 S.W.2d at 534[2]:

“We can find no justifiable reason for the admission in evidence of the separate and distinct sale of marijuana by defendant to James Pollard on June 14, 1967. . Proof of the separate and distinct sale on June 14 did not tend to prove any material fact in issue concerning the sale on July 12th. It was not relevant to prove the identity of defendant.”

Likewise, the case of State v. Carter, supra, 475 S.W.2d 85, is on all fours with the issues in this case. There the defendant was charged and convicted of the offense of unlawfully selling a controlled substance on April 28,1967. Robert Cutright, a narcotics agent, testified that he purchased two hundred “pep pills” from the defendant at a tavern called “The Place” on April 28. The defendant testified that he had never seen or talked to Cutright prior to his arrest on May 16, and was not at “The Place” on that date but was, in fact, somewhere else. This alibi testimony was coupled with other evidence in an effort to cast doubt on the credibility of Outright’s identification. In rebuttal, the State recalled Cutright who was allowed to testify, over defendant’s objection, that he had previously seen the defendant on March 16 at “The Place” and had had a conversation with him, wherein defendant stated that he had previously dealt in drugs and had sold ten to fifteen thousand pills per week but had quit dealing some three weeks prior to March 16. The State sought, as here, to justify the admission of this conversation on the basis that it helped establish the identity of the defendant as the person who later sold the “pep pills” to Agent Outright. Our Supreme Court reversed the conviction, holding that the proof of the sale of pills prior to March 16 did not tend to prove that defendant sold the pills to Outright on April 28, and was not relevant to prove the identity of the defendant with respect to the charged sale of April 28. The court stated, 475 S.W.2d at 89:

“The issue with respect to whether the defendant was the person who committed the act charged is, except where admitted, an issue in every criminal case. The existence of this issue does not, in and of itself, authorize evidence of other crimes. The fact that here defendant testified and denied the April 28th sale and also denied he had met or known agent Cut-right prior to defendant’s arrest on May 16, 1967, did not open the floodgates to evidence that on prior occasions defendant illegally sold amphetamines, under the guise of bolstering the agent’s identification testimony of defendant.”

We can perceive no practical distinction between the fact situation in the Carter case and this case. The testimony of Agent Lipp that he had met the defendant on January 11 and conversed with him on two occasions that evening about a possible future sale of drugs was certainly admissible to show preliminary arrangement between them for the sale on January 26, and to further show the opportunity Lipp had to observe the defendant, thus strengthening his identification testimony. Does the further evidence of the alleged sale of “speed” on the 11th tend to prove the defendant sold the marihuana on the 26th? Does it bolster the identification testimony? The court thinks not.

When admitting evidence of other crimes, it is important that the trial court consider not only the rule of exclusion but also the matter of discretion. Some courts proceed on the assumption that the decision of admitting or not admitting such evidence turns solely upon the ascertainment and application of the rule, in other words, whether or not the evidence comes within a certain category which constitutes an exception to the rule of exclusion. This should not, however, be a matter of pigeonholing, but one of balancing, on the one hand the actual need for such evidence, and on the other the degree to which a jury may be prejudiced against the defendant by hearing such evidence. The matter should be one of careful discretion on the part of the trial court. This is especially true when the ultimate purpose of the State is to prove the identity of an accused.

Even assuming that such evidence in some small way strengthens Agent Lipp’s identification testimony, does its probative value in this respect outweigh the inference of guilt which it would obviously create in the minds of the jurors? The court in State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954), recognized that caution must be exercised with respect to this type of evidence and said, 364 Mo. at 1227, 274 S.W.2d at 307:

“But the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny. Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors. Hence, if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected.”

The court holds that the testimony of Agent Lipp concerning the sale of pills on January 11 does not clearly tend to prove any material fact in issue and is not relevant to the identity of the defendant as the one who sold Lipp the marihuana on the 26th. Its admission, over defendant’s objection, was prejudicial error, and this case is therefore reversed and remanded for new trial.

Even though this case is being remanded for a new trial, the court will briefly consider the remaining allegations of error.

Defendant contends under point one that the trial court erred in giving MAI-CR No. 3.60 (Instruction 10). This instruction was given by the court to advise the jury that if they found the defendant was involved in an offense other than the one for which he was on trial (in this case, the alleged sale of pills on January 11), that they were to consider that evidence only on the issue of identification of the defendant and for no other purpose. Because of the above ruling of this court, we need not rule on this allegation of error since on retrial the giving of this instruction will not be necessary.

Under the second point of error the defendant claims that the identification testimony of Agent Lipp was totally insufficient to support the verdict. In this case the essential fact issue was identification, and Lipp’s identification of the defendant as the person who sold him the marihuana was positive. Even though the defendant presented evidence which tended to discredit Lipp’s testimony and identification, it is for the jury to weigh the evidence and determine the credibility of the witnesses. The testimony of a single witness, if deemed credible by the jury, may be considered sufficient for conviction, although that testimony may be uncertain or inconsistent. State v. Platt, 496 S.W.2d 878, 881[2] (Mo.App.1973).

It is a well-established principle of judicial review that appellate courts must consider the evidence and inferences most favorable to the verdict and disregard any evidence and inferences to the contrary. State v. Knighton, 518 S.W.2d 674, 675[1] (Mo.App.1975). This court is of the opinion that the identification testimony of Agent Lipp together with all other evidence was sufficient to support the jury’s verdict of guilty.

The defendant’s third and last contention is that the trial court erred in permitting the State, over his objection, to cross-examine defendant’s character witness, Shepard, by asking him if his favorable testimony as to defendant’s reputation would be the same if he had heard that defendant had been arrested during investigation of certain criminal activities some six years previously.

The rule in this state is that a witness to defendant’s good reputation may be cross-examined as to the facts of prior arrests or rumors of misconduct of the defendant, not to establish the truth of those facts or rumors, but to test the credibility of the witness and to ascertain what weight should be given to his testimony. State v. Slade, 338 S.W.2d 802, 807[11] (Mo.1960); State v. Carroll, 188 S.W.2d 22, 23-24[1-4] (Mo.1945); State v. Carson, 239 S.W.2d 532, 535-536[3-6] (Mo.App.1951). Such cross-examination tends to show either that the witness is in fact unfamiliar with defendant’s reputation, or he is being untruthful, or his standard of what constitutes good reputation is unsound. It is true that the rule allowing an accused to introduce evidence of his good character is fraught with danger especially to those with tainted records. The danger is that a jury, upon hearing questions pertaining to prior arrests and rumors of misconduct will use them more directly to convict in the case on trial and reject or overlook their application to the reputation process. However, it would be an untenable situation to allow an accused to introduce evidence of his good character without according the State the opportunity to test its credibility. If such were the case, it would open the door to an accused to introduce such evidence by a friendly witness without fear that such testimony could be attacked. This rule provides a reasonable method of testing the credibility of a character witness as long as the State applies it in good faith. No claim of bad faith is made by the defendant and the record reveals none. Also, it should not be overlooked that it is the defendant and not the State who has the choice of opening or not opening the door to reputation.

The defendant contends that this rule is “bad law” and this court should overrule it. This we decline to do. The Supreme Court of Missouri has approved this rule of law as recently as 1972 in the case of State v. Hastings, 477 S.W.2d 108, 113[9, 10] (Mo.1972), and it is our constitutional duty to follow the last controlling decision of that court. Mo.Const. Art. V, § 2, as amended.

Defendant further complains that the arrest referred to by the State in its cross-examination of Shepard occurred six years prior to the present offense and was, therefore, irrelevant and immaterial to the issue of his character at the time of the trial. This contention is without merit. The trial court is afforded broad discretion in such a situation, State v. Hastings, supra, 477 S.W.2d at 113 — 114[11, 12], and under the facts before us we find no error in allowing the State to inquire into them.

Reversed and remanded.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. James Lee STEWART, Defendant-Appellant.
    No. 9953.
    Missouri Court of Appeals, Springfield District.
    Oct. 6, 1976.

      Jerry D. Mee, Springfield, for defendant-appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.
   BEN F. PYLE, Special Judge.

Appellant James Lee Stewart, hereinafter referred to as defendant, was charged with possession of more than 35 grams of marihuana (§ 195.017, subd. 2(4)(j), RSMo Supp.1973). The jury found the defendant guilty of possession of a controlled substance, and he was sentenced to a term of five years in the custody of the Missouri Department of Corrections. Defendant appeals from this conviction claiming three assignments of error.

On October 1, 1974, at about 5:00 a. m., Mary Bryant called the Springfield, Missouri Police Department concerning possible vandalism to her son’s car which was parked in front of her house at 2130 East Cairo. Officers Baugh and Youngblood arrived to investigate. Mrs. Bryant at that time mentioned certain activities to the officers concerning the house across the street at 2127 East Cairo; that there was considerable traffic coming and going, and people going to the house in the early morning hours and remaining only a short time. At that time a U — Haul van was observed parked in the driveway of the premises and a car parked on the street in front. Later that morning around 9:00 a. m., Mrs. Bryant observed a blond-haired person get out of a vehicle in front of 2127 East Cairo and go into the house. She at no time saw the defendant prior to his arrest that afternoon. Mrs. Bryant later saw the U — Haul van backed up to a door on the west side of the house, but she never saw anyone around the van. About 3:00 p. m. she again called the police. Officers Baugh and Youngblood responded. Upon arriving, they went to the premises at 2127 East Cairo and looked in the front window of the van and saw what they believed to be a marihuana stalk sticking between the sidewall of the van and a panel dividing the driver’s compartment and the back cargo area. The rear door of the van was closed. On the steps between the rear door of the van and the door leading into the house they observed what they believed to be marihuana. The officers knocked on the back door but received no response. They went to the front door and found the screen closed and the door standing open. Through the open door they could see the defendant lying on a divan ten feet from the front door. They knocked but received no response. The officers then entered, and one of them spoke to the defendant but got no response. Upon hearing a noise, one of the officers went through the kitchen to a back room. No one else was found in the house, but the floor of the back room contained a large quantity of freshly cut marihuana. This room was approximately ten feet square. The officer returned to the living room.

The officers woke the defendant and placed him under arrest for possession of marihuana, handcuffed him, advised him of his rights and searched him. No marihuana was found in the living room where the defendant was sleeping nor on his person. The room where the marihuana was found could not be seen from the living room. At the time defendant was searched, two keys were found in his pocket, one of which fit a padlock on the rear door of the van. This padlock was not locked and the rear door of the van was opened by the officers who discovered that it was about one-third full of marihuana of the same type as was found inside the premises. The ignition key to the van was found in the switch. The marihuana in the house and in the van had a combined weight of approximately 380 pounds. Defendant did not question the chain of custody or the chemical analysis of 'the marihuana. After his arrest he was transported to the Springfield Police Department where he signed a waiver of rights form and was placed in a cell. The next morning Detective John Smith went to the defendant’s cell and the following conversation was testified to by Smith at the instance of the Prosecuting Attorney, Mr. Upp:

Q. [W]ould you tell us what, if anything, the defendant said to you in your conversation with him on the 2nd of October, 1974?
A. After I asked him if he knew why he was in jail, he stated, ‘Yes, for possession of marihuana.’ I asked if he’d been advised of his rights under Miranda. He stated he had and signed the papers. He understood them. I asked if he wanted to go upstairs and talk to me in regard to the situation. He stated, ‘No, it was just some old, homegrown stuff.’ And he didn’t wish to talk to me.”

At the suppression hearing the defendant denied that part of the conversation about “homegrown stuff”. He did not testify at the trial.

The State proved that the defendant had rented the U-Haul van the afterno.on of September 30, 1974, using his own name and address at 1925 North Colgate, Springfield, Missouri.

The State further proved that the residence at 2127 East Cairo was owned by Roy Dulany an'd was rented to one Jerry Hamilton who lived at the residence with a young lady by the name of Angel Collins. Pickup orders for both Hamilton and Collins were issued but they were never located. A notebook and diary apparently belonging to Angel Collins were found under the cushions of the divan where the defendant was sleeping, which had some drug use and drug sales recorded in them. Defendant’s mother testified that her son lived at home and was not related to anyone residing at 2127 East Cairo.

Defendant’s first assignment of error is that the trial court erred by admitting in evidence his conversation with Detective Smith and for overruling his motion to suppress that conversation and for permitting defendant’s desire not to talk to be admitted in evidence against him. The conversation complained of occurred the morning following defendant’s arrest and after he had previously been advised of his rights and had signed a waiver of rights form. That conversation is set out in the above statement of facts.

This assignment of error is two-pronged. First, the defendant claims that this entire conversation was inadmissible because he was merely expressing his desire not to talk and to remain silent. Secondly, he claims that even if a portion of his response would be admissible as an admission against interest, the trial court erred in permitting Officer Smith to testify that defendant did not want to talk.

The silence of an accused while under arrest is inadmissible because he is under no duty to speak. State v. Stuart, 456 S.W.2d 19, 22[3, 4] (Mo.banc 1970); State v. Halk, 524 S.W.2d 44, 48[7] (Mo.App.1975); State v. Benfield, 522 S.W.2d 830, 834[9] (Mo.App.1975). Likewise, answers equivalent to silence are not admissible. State v. Dowling, 348 Mo. 589, 599, 154 S.W.2d 749, 755[6-8] (1941). Here the defendant did not remain silent, but made oral answers to Detective Smith’s questions, a part of which was incriminating, i. e., “it was just some old, homegrown stuff.” This was volunteered in conjunction with his indication that he didn’t desire to talk. Clearly the reference to “homegrown stuff” was incriminating and constituted an admission against interest. The defendant was fully advised of his rights prior to the questioning by Smith and admitted that he had been so advised and understood those rights. There is no showing or claim by the defendant that he was tricked or coerced into making the admission. A voluntary statement or admission by an accused while under arrest and after being fully advised of his rights is admissible, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Gregg v. State, 446 S.W.2d 630, 632[1, 2] (Mo.1969), and being a voluntary admission against interest, it was properly admitted in evidence. Further, the defendant’s response that he knew he was charged with possession of marihuana did not constitute an admission or inference of guilt, but was merely an acknowledgement that he knew why he was in jail. Its admission as part of the conversation did not constitute error. The point is ruled against the defendant.

Secondly, defendant alleges that even if that portion of his statement referring to “homegrown stuff” was admissible, to admit that part referring to his desire not to talk was error since to do so would in effect allow the State to use his constitutional right not to talk against him as evidence of his guilt.

The defendant had the right to remain silent or indicate his desire not to talk, in which event neither would have been admissible against him. Instead, he voluntarily injected into the response an incriminating remark. He now wants us to hold that the trial court erred by allowing the State to introduce the entire response; but how is the State to question Detective Smith so as to elicit from him only the words constituting the admission and omitting those referring to his refusal to talk, where both are a part of one continuous and complete response? Is the State required to introduce the admission out of context? This court thinks not.

This testimony was introduced for the purpose of laying a foundation for the admission of defendant’s incriminating remark. No claim has been made that it was introduced for the purpose of permitting the jury to draw an inference of guilt from his refusal to talk. We hold that this case falls within the rule that the State is entitled to prove the entire conversation where part of it is incriminating and part is not. State v. Hardin, 324 Mo. 28, 36, 21 S.W.2d 758, 761[4] (banc 1929); State v. Dowling, supra, 348 Mo. at 599-600, 154 S.W.2d at 755[9, 10].

The defendant had the right and opportunity to remain silent, but didn’t, and he has no just cause for complaint. The trial court properly admitted the entire conversation in evidence. This point is ruled against the defendant.

The defendant’s second point is that the trial court erred in overruling his motion for a verdict of acquittal for the reason that the evidence was insufficient to establish that the defendant was aware of the character of the drug and intentionally and knowingly had it in his possession.

In reviewing the sufficiency of the evidence to sustain a conviction, this court accepts as true all evidence whether direct or circumstantial which is favorable to the verdict, together with all favorable inferences which can reasonably be drawn therefrom, and rejects all evidence and inferences to the contrary. State v. Wiley, 522 S.W.2d 281, 292[19] (Mo.banc 1975); State v. Brunson, 516 S.W.2d 799, 801[2] (Mo.App.1974).

In order to sustain a conviction for possession of a controlled substance, the State must prove beyond a reasonable doubt that the accused had knowledge of the nature and presence of the substance and that he had some conscious control either actual or constructive. State v. Wiley, supra, 522 S.W.2d at 292[25]; State v. Davis, 515 S.W.2d 773, 777[4-6] (Mo.App.1974). Knowledge, being an essential element of the offense of possession, is rarely susceptible of direct proof but may be proved by evidence of control and declaration on the part of the accused from which an inference may fairly be drawn that he knew of the existence of the substance at the place found; likewise, the evidence need not show actual possession on the part of the accused. The illegal possession may be constructive. State v. Edwards, 317 S.W.2d 441, 447[7] (Mo.banc 1958); State v. Young, 427 S.W.2d 510, 513[5] (Mo.1968); State v. Caffey, 365 S.W.2d 607, 611[9] (Mo.1963). Further, the requisite possession need not be exclusive and may be shown circumstantially. State v. Young, supra, 427 S.W.2d at 513[4]; State v. Davis, supra, 515 S.W.2d at 777[8],

The issue here is whether or not there was sufficient evidence linking the defendant to the marihuana to support the reasonable inference that he was knowingly in possession thereof.

At the time of defendant’s arrest he was the only person on the premises. He was not, according to the evidence, the owner or the lessee. His status was either that of a guest or trespasser; but in any event, he was not in exclusive control of the premises. The mere fact that an accused is present on the premises where controlled substances are found does not, without a showing of exclusive use or possession of the premises, make a submissible case. State v. Wiley, supra, 522 S.W.2d at 292[22-25]. However, the Supreme Court of Missouri said in State v. Wiley, supra, 522 S.W.2d at 292[22—25]:

“Where the defendant is present on the premises and if there are additional independent factors showing his knowledge and control, then that is sufficient to withstand a motion for a directed verdict.”

What additional independent factors would in this case show defendant’s knowledge or awareness of the character of the marihuana and his actual or constructive possession thereof? First, the defendant’s statement, having been heretofore ruled to be admissible, that “it was just some old, homegrown stuff”, is clearly incriminating in that it may logically be inferred that he not only had knowledge of the existence of the marihuana on the premises, but also had knowledge of its source. Second, the fact that there was such a large quantity on the premises would not logically lead one to believe that the defendant was unaware of its presence. Even though guilty knowledge may not be inferred on the basis of quantity alone, under the totality of the circumstances, such fact does tend to substantiate an inference of knowledge. Third, the fact that the U-Haul van was parked adjacent to the door leading to the premises, that the van had been leased to the defendant, that the van was one-third full of freshly cut marihuana of the same type, appearance and condition as that found inside the premises, would further substantiate a finding of knowledge and possession on defendant’s part. Lastly, the fact that a key to a padlock on the back door of the van was found on defendant’s person at the time of his arrest is further evidence of his possession and control.

Pacts and circumstances relied on by the State to establish the guilt of an accused by circumstantial evidence must be consistent with each other and the hypothesis of his guilt must be consistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to his guilt that every reasonable hypothesis of innocence is excluded. State v. Taylor, 445 S.W.2d 282, 284[2] (Mo.1969); State v. Berry, 488 S.W.2d 667, 669[3] (Mo.App.1972). But that circumstantial evidence need not demonstrate the absolute impossibility of innocence. State v. Thomas, 452 S.W.2d 160, 162[2] (Mo.1970); State v. Taylor, supra, 445 S.W.2d at 284[5].

All of these factors taken together are such that a jury might logically and lawfully infer that the defendant not only had knowledge but actual or constructive possession of the marihuana. The evidence here is consistent with guilt and inconsistent with his innocence.

The trial court did not err in overruling defendant’s motion for verdict of acquittal.

The defendant’s final assertion is that the trial court erred by failing to give MAI — CR No. 2.10 which is an instruction required to be given whether requested or not. MAI-CR No. 2.10 is as follows:

All persons are guilty who knowingly act together with the common purpose of committing an offense, or who, (whether present or not) knowingly and intentionally aid or encourage another in committing it, and whatever one does in furtherance of the offense is the act of each of them.
The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible therefor, although his presence may be considered together with all of the evidence in determining his guilt or innocence.

Defendant’s contention seems to be that because the record reveals that he was merely present on the premises where the marihuana was found and since that is not sufficient to render him guilty, the court should have given Instruction 2.10 in order to make it clear to the jury that defendant’s mere presence was not enough, but that he must knowingly have acted with another or others with common intent by aiding or otherwise acting in the commission of the offense. The defendant’s assertion is without merit. If defendant’s mere presence was the extent of the proof presented by the State, the trial court would undoubtedly have directed a verdict of acquittal and this appeal would not now be before us. Here, the defendant’s conviction was based not only on his presence at the scene but on all of the other factors previously discussed above, which taken together show his knowledge and actual or constructive possession of the marihuana.

The State submitted its case to the jury on the basis that the defendant was personally guilty of possession, not on the theory of his guilt as an aider or encourager. No one else was on the premises, and there is no substantial evidence that anyone other than this defendant was aware of the presence of this marihuana. There is a complete absence of evidence indicating that the defendant was only an aider or encourager. Note No. 4 of notes on use of Instruction 2.10 states:

“The failure to use MAI-CR 2.10 and 2.12 will not be deemed error even if there is substantial evidence that defendant was a joint, active participant or actor so long as there is no evidence that he was only an aider or encourager.” (Emphasis added)

There being no such evidence, the point is ruled against the defendant.

Judgment affirmed.

All concur.


author: FLANIGAN, Judge.

text:
    Roy BIBEE, Appellant, v. STATE of Missouri, Respondent.
    No. 10033.
    Missouri Court of Appeals, Springfield District.
    Oct. 8, 1976.
    Charles Buchanan, Asst. Public Defender, Joplin, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

This appeal is from a denial, after eviden-tiary hearing, of a Rule 27.26 V.A.M.R. motion to set aside a judgment and sentence for robbery. This court affirmed that judgment in State v. Bibee, 496 S.W.2d 305 (Mo.App.1973).

The first of appellant's two contentions is that his motion should have been sustained because he was denied effective assistance of counsel at the original trial. Appellant asserts that his court-appointed attorney, Ralph E. Baird, was derelict in not producing evidence consisting of a “guest book” maintained at an establishment known as Jerry’s Club in Commerce, Oklahoma.

The robbery occurred on August 7, 1970, at the Crest Drive-In Theater in Joplin, Missouri. The victim was Ellen McCIary, who operated the ticket booth. In identifying appellant as the robber Ellen testified that she had seen him once previously, i. e., on July 5, 1970, shortly after 10 p. m.

At the original trial appellant and his witness Jean Bebee testified that between 8 p. m. on July 5, 1970, and 1 a. m. the next day, the two of them were together at Jerry’s Club and that they signed the guest book so reflecting. The guest book, argues appellant, “would have been an important piece of evidence to corroborate” their testimony.

Far from establishing dereliction on the part of Mr. Baird in his efforts to locate the guest book, the record shows that Baird, several days prior to the original trial, made two trips to Oklahoma and some telephone calls in a futile attempt to procure it as evidence. Baird found that Jerry’s Club “had been burned, completely destroyed.” Additional efforts on his part to obtain the name of the proprietors of Jerry’s Club met with some degree of success but, as Baird testified at the motion hearing, “I never got the book and I did not determine whether it was still in existence or not.”

At the motion hearing, held in April 1975, appellant produced no evidence to show that the book was in existence at the time of the original trial or at any time thereafter.

A movant who bases his claim of ineffective assistance of counsel upon the ground of inadequate investigation “has the burden of showing that a fuller investigation would have uncovered evidence which would have improved his trial position and that he was deprived of evidence of substance by such neglect to his prejudice.” Fritz v. State, 524 S.W.2d 197, 199[2] (Mo.App.1975); Williams v. State, 536 S.W.2d 190, 192 (Mo.App.1976).

Mr. Baird cannot be blamed for not obtaining the unobtainable. His zealous efforts to obtain the guest book were as timely as they were unproductive. His capable and gratuitous endeavors do not deserve the callous ingratitude and the baseless criticism which appellant accords them.

Appellant’s first contention has no merit.

Appellant’s second contention i§ that the trial court erred in denying that portion of the motion which sought post-conviction relief on the basis of alleged newly discovered evidence. The latter consisted of the affidavit of one Paul Glover to the effect that on August 7, 1970, appellant, Glover and a third man left Joplin, Missouri, by automobile at approximately 1 p. m. and arrived in Marion, Indiana, on August 8, 1970, at approximately 12:30 a. m. “where the local police stopped us and conducted an investigation which was routine in nature — after the Marion police were satisfied that we were conducting ourselves in a lawful manner we were permitted to continue on our journey.”

Appellant argues that the affidavit shows that he could not have been in Joplin at 10:15 p. m. on August 7, 1970, when the robbery occurred.

At the original trial appellant told the jury that he did not remember where he was on August 7, 1970. Although appellant testified on his own behalf at the motion hearing that he “remembered where he was at the time this robbery occurred,” he failed to state the contents of that new memory.

Appellant’s point concerning the alleged newly discovered evidence was asserted in his motion for new trial filed after the verdict was rendered in the original proceeding. That point, however, was not raised on the original appeal and was thus abandoned. The státe has failed to argue here that the foregoing treatment of the point precludes its re-assertion in a Rule 27.26 proceeding.

The state does take the position in this court that newly discovered evidence may not be invoked as a ground for relief under Rule 27.26.

The trial court, however, received Glover’s affidavit in evidence as well as appellant’s testimony, limited as it was, with respect to this ground. The trial court found “that [appellant’s] testimony and the hearsay affidavit of his witness as to the whereabouts of [appellant] on August 7, 1970, are not credible or of sufficient evi-dentiary value to sustain [appellant’s] burden of proof on the issue of newly discovered evidence.”

In a Rule 27.26 proceeding “the weight of the evidence and credibility of the witnesses are matters for the trial court,” Shoemake v. State, 462 S.W.2d 772, 775[2] (Mo. banc 1971), and the trial court may reject testimony offered on behalf of the movant even though there was no contrary evidence. Shoemake, supra, at p. 775[4].

In Lee v. State, 526 S.W.2d 329, 332[4] (Mo.App.1975) it is said:

“In a 27.26 proceeding the prisoner has the burden of establishing his grounds for relief by a preponderance of the evidence. Rule 27.26(f). When the ground for relief is newly discovered evidence, the issue for the court is not simply whether the prisoner has produced new evidence, but whether the prisoner has produced substantial evidence of probative value that tends to disprove his guilt. State v. Stegall, 485 S.W.2d 414 (Mo.1972); Beishir v. State, supra.”

It may not properly be said that the trial court was clearly erroneous in finding that appellant’s evidence was insufficient to sustain his burden of proof on the issue of newly discovered evidence. Lee, supra, 332[6]. Appellant’s second contention has no merit.

The judgment is affirmed.

All concur.

      . It is a clear inference from the instant record that the July 5, 1970 occasion also involved a robbery of Ellen McCIary by appellant.

      . At the motion hearing the state did not object to the introduction into evidence of the affidavit on the ground that it was hearsay.

      .The transcript of the original trial was received in evidence at the motion hearing.

      . Peculiarly, appellant remembered where he was on July 5, 1970, as mentioned earlier in this opinion.

      . As to the validity of such an argument see Covington v. State, 467 S.W.2d 929, 930[1, 2], 933[6] (Mo.1971) and Russell v. State, 494 S.W.2d 30, 38[11, 12] (Mo.1973).

      . See Beishir v. State, 480 S.W.2d 883, 885[1] (Mo.1972); Agee v. State, 512 S.W.2d 401, 403[6] (Mo.App.1974); Lee v. State, 526 S.W.2d 329, 331 (Mo.App.1975); Hatfield v. State, 529 S.W.2d 180 (Mo.App.1975).


author: TITUS, Judge.

text:
    James W. HAMPTON and Hazel Hampton, his wife, Plaintiffs-Appellants, v. James W. TROUT and Jean Trout, his wife, Defendants-Respondents.
    No. 10194.
    Missouri Court of Appeals, Springfield District.
    Oct. 8, 1976.

      Ted M. Henson, Jr., Scott & Henson, Poplar Bluff, for plaintiffs-appellants.
    Joe C. Welborn, Briney, Welborn & Spain, Bloomfield, for defendants-respondents.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

Plaintiffs have appealed from a judgment entered on jury verdicts finding the issues in favor of defendant on both counts of a replevin petition for possession of a set of John Deere combine tracks, and damages.

It is undisputed that the tracks were originally sold by a farm implement dealer in November 1972 and ever since that time had been in defendant’s possession. Plaintiffs’ theory was that the combine tracks (which they valued at $2000-$2500) were purchased from the dealer by Ora Trout, defendant’s 77-year-old father; that on February 7, 1974, Ora sold the tracks to plaintiffs for $800 cash; and that on November 18,1974, when plaintiffs first made demand for possession, defendant refused. To the contrary, Ora when asked if he had sold the tracks to plaintiffs, answered somewhat emphatically, “Kell, no.” Defendant, claiming to be the sole owner of and entitled to possession of the tracks, produced into evidence his $2450 paid check he gave to the dealer when he bought the tracks in November 1972 and the bill of sale for the tracks which the dealer had delivered to him at the same time.

Plaintiffs raise three points on appeal. To paraphrase: (1) The trial court erred in permitting defendant’s counsel to argue that Ora was “old and incompetent and did not know what he was doing when he had dealings with the plaintiffs” because “there was no evidence to support this argument”; (2) the trial court erred in refusing to permit plaintiffs to prove loss of profits in their combine business by reason of defendant’s wrongful detention of the tracks; and (3) the court erred in giving Instruction No. 3 because it constituted a deviation from MAI 33.13.

(1)

We deny plaintiffs’ first point for two reasons. First, because the assertion therein contained is not true. Defense counsel did not argue that Ora was “old, incompetent and did not know what he was doing.” Rather he said, when plaintiffs’ lone objection to the argument was overruled: “There’s bound to be some grave questions in your mind that you’ve got to resolve before you can bring in a verdict for the plaintiff [sic]. Number One, why, why would this old man sell a $2500.00 set of tracks for $800.00? Why would he do it? That’s bound to be a grave question in your mind. Was somebody trying to take advantage of the old man?” The second reason the point is denied is that the present contention was not made in plaintiffs’ motion for a new trial. When this occurs, nothing is preserved for appellate review. Rule 78.-07, V.A.M.R.; Webb v. City of Clayton, 494 S.W.2d 662, 664[5] (Mo.App.1973); Missouri State Park Board v. McDaniel, 473 S.W.2d 774, 781[4] (Mo.App.1971), 51 A.L.R.3d 1040, 1049[4],

(2)

Inasmuch as the jury resolved the issue of possession to the combine tracks in favor of the defendant, any consideration of the alleged damages suffered by the plaintiffs became moot and precludes any necessity on our part to determine whether the trial court erred vel non in refusing to permit plaintiffs to prove loss of profits. The second point is, therefore, denied. Haas Baking Company v. Luzio, 512 S.W.2d 428, 431[7] (Mo.App.1974); Jensen v. Walker, 496 S.W.2d 317, 320[2] (Mo.App.1973).

(3)

Defendant’s single converse charge (Instruction No. 3) was: “Your verdict must be for defendant James W. Trout on plaintiffs’ claim unless you believe each proposition submitted to you in Instruction No. 2.” The italicized words are a deviation by addition to MAI 33.13. Instruction No. 2, plaintiffs’ verdict director (Not in MAI), contained the words “on plaintiffs’ claim,” and we do not see how the jury could have been misled or the plaintiffs prejudiced by the inclusion of the phrase in Instruction No. 3. Plaintiffs do not now claim any prejudice, only deviation. While not endorsing this type of careless practice, the court in State Farm Mutual Automobile Ins. Co. v. Jessee, 523 S.W.2d 832, 836[7] (Mo.App.1975), held that inclusion of the phrase “on plaintiff’s claim for damages” in MAI 17.01 when there was no counterclaim as there was here, did not constitute reversible error. Point three is ruled against plaintiffs.

The judgment nisi is affirmed.

All concur.

      . A directed verdict eliminated defendant’s wife as a party litigant and plaintiffs do not here complain of the trial court’s action in that regard.


author: McMILLIAN, Presiding Judge.

text:
    Joseph STEWART, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37946.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 12, 1976.

      Crouppen, Walther, Zwibelman & Walsh, P.C., Roy A. Walther, III, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty. and Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   McMILLIAN, Presiding Judge.

Movant appeals from the trial court’s denial, after an evidentiary hearing, of his Rule 27.26 motion to set aside judgment and sentence entered upon his pleas of guilty to two counts of forcible rape, two counts of first degree robbery and one count of assault with intent to ravish with malice. Movant was sentenced to eleven (11) years imprisonment on each count, all sentences to run concurrently. We affirm.

Movant first contends that his pleas were involuntarily made because his appointed counsel “threatened” him with a fifty (50) year sentence if he did not plead guilty. While statements of defense counsel, as well as statements by the prosecutor, can form the basis for a finding of involuntariness, State v. Rose, 440 S.W.2d 441, 446 (Mo.1969), this is no more of a threat than the statement made to the movant in Vaughn v. State, 443 S.W.2d 632 (Mo.1969), cert. den. 397 U.S. 1079, 90 S.Ct. 1533, 25 L.Ed.2d 815 (1970). It was the duty of movant’s lawyer to inform movant of the possible range of punishment and, if considered advisable, to give his “judgment as to the extent of punishment the jury might fix in the event of conviction. . . .” Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974).

Movant’s second contention is that he was denied effective assistance of counsel in that his lawyer failed to adequately discuss his case with him, including possible defenses, and that this rendered his guilty pleas involuntary. At the evidentiary hearing, movant’s lawyer testified that he ordered a psychiatric evaluation, investigated and requested information on the case, explained to movant his constitutional rights and discussed the case completely with movant. The assistance of counsel here does not appear ineffective, cf. Hall v. State, 496 S.W.2d 300 (Mo.App.1973). Even if the assistance of counsel were ineffective, movant carries a heavy burden of proof to show that he was prejudiced or that further investigation would have turned up anything useful for his defense, Smith v. State, at 411; Curry v. State, 504 S.W.2d 97, 99 (Mo.1974); McKnight v. State, 497 S.W.2d 201, 204 (Mo.App.1973). Movant has not shown that the trial court’s finding that he failed to carry this burden of proof was clearly erroneous, Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968) and Rule 27.26(j), V.A.M.R.

The judgment is affirmed.

STEWART and RENDLEN, JJ., concur.


text:
    Albert J. LOWRY, Plaintiff-Appellant, v. NORTHWESTERN SAVINGS & LOAN ASSOCIATION and Ralph M. Keeney, Jr., Defendants-Respondents.
    No. 37470.
    Missouri Court of Appeals, St. Louis District, Division Two,
    Oct. 12, 1976.

      Lashly, Caruthers, Thies, Rava & Hamel, P. C., Thomas Cummings, Clayton, for plaintiff-appellant.
    Schurr & Inman, Robert Inman, Joel F. Graziani, Clayton, for defendants-respondents.
   McMILLIAN, Presiding Judge.

This is an appeal which challenges the propriety of the trial court’s dissolution of its temporary restraining order and refusal to grant further injunctive relief with reference to a foreclosure sale of the Park Glen Echo apartment complex. We affirm with directions.

In 1962, respondent Northwestern Savings and Loan Association (hereinafter called Northwestern) issued loans on a series of twenty (20) separate notes secured by deeds of trust on twenty (20) parcels of land which comprise the Park Glen Echo apartment complex. Respondent Ralph Keeney is the trustee on the deeds of trust and is also the president of Northwestern. In 1969, the apartment complex was acquired by Donald Straub. Dr. George Newton subsequently purchased the complex and leased it back to Mr. Straub. Thomas Wilhite, vice-president of Ira E. Berry, Inc., was under contract to Straub to manage the properties. Plaintiff Albert Lowry is a California real estate educator and entrepreneur whose first contact with the property was in late 1974 when Straub approached him about taking a second mortgage on the property. The assignment of the mortgage was not consummated because of the default proceedings detailed below. Plaintiff presently claims title to the apartment complex pursuant to an unrecorded quit-claim deed conveyed to him by Newton subsequent to the filing of this lawsuit.

Mr. Wilhite sent a letter to Northwestern on January 15, 1975, informing Northwestern of the fact that he would be unable to make the January payment but assured it that he anticipated receipt of monies from Straub soon. Upon receipt of this letter, Northwestern conducted an investigation of the apartment complex and found it to be in a state of disrepair. Having received no money or further communication from Wil-hite, on February 10, 1975, Northwestern sent a letter to Newton, the record owner of the complex, in care of Ira E. Berry, Inc. This letter informed Newton that if the January and February payments plus late charges were not made prior to February 25, 1975, foreclosure proceedings would be commenced that day.

On February 24, 1975, Wilhite tendered to Keeney payment by check of the January installment plus late charges. Keeney refused to accept the check on the grounds that it was entirely too late. Wilhite and Keeney then discussed the possibility of whether Wilhite could get enough money together to also make the February payment at that time. Wilhite said that he did not know whether he could get the money, and Keeney said he did not know if Northwestern would accept it even if Wilhite could get it. Keeney then told Wilhite that Northwestern was going to foreclose. Two days later, Wilhite wrote a letter to Straub advising him that Northwestern intended to foreclose. Funds for the February payment were not forthcoming.

On March 19, 1975, Northwestern exercised its option to accelerate the maturity date of the loans and notice of foreclosure letters were sent to Adolph Investment Corporation, the original owner of the property and to George Newton in care of his attorney. Attached to the letters were lists of the publications for foreclosure and listings of the property in question along with affidavits of publication from the St. Louis Countian, a local legal newspaper. Donald Straub and Ira E. Berry, Inc., also received copies of these notice letters.

This lawsuit was commenced on April 22, 1975, when plaintiff Lowry filed his petition for a temporary restraining order to prohibit Northwestern and Keeney from furthering the foreclosure sale scheduled for that date. A temporary restraining order was granted. Plaintiff posted a $5,000 injunction bond. After a hearing on the merits on August 14,1975, the temporary restraining order was dissolved, the request for permanent injunction was denied, and the court reserved jurisdiction to determine damages on the bond posted pursuant to the temporary restraining order. Plaintiff then perfected this appeal.

We are confronted initially by respondent’s motion to dismiss the appeal on the ground of mootness. After dissolution of the temporary restraining order, the property was sold at auction. Respondents contend that we may not grant any effective relief to plaintiff even if we found in his favor. Respondents, however, overlook the fact that plaintiff’s liability on the $5,000 injunction bond is dependent on the propriety of the issuance of the injunction, Goad v. Mister Softee of the Mississippi Valley, Inc., 380 S.W.2d 493, 495 (Mo.App.1964); Waterman v. Waterman, 210 S.W.2d 723, 726 (Mo.App.1948). Therefore, we must examine the merits of the case in order to ascertain whether the injunction was properly issued. Adamick v. Ferguson-Florissant School District, 483 S.W.2d 629, 631 (Mo.App.1972).

Plaintiff argues that Northwestern’s attempt to exercise its option to accelerate the amounts due under the various notes and deeds of trust after tender of the amounts due, plus late charges, under the notes for the month of January and after a “rejection” by Keeney of an offer to tender “future” amounts due, was improper. Plaintiff’s position is that Wilhite made a proper tender of the January payment and did not need to make a tender of the February payment since Keeney had taken the position that such a tender would be refused. The argument is unconvincing. As of February 24, 1975, both the January and February payments were overdue. Wil-hite’s tender of a check in the amount of the January installment was a wholly insufficient tender because a tender to be effective for any purpose must be for the full amount due including interest and costs, City of St. Louis v. Senter Commission Co., 343 Mo. 1075, 124 S.W.2d 1180, 1184 (1938). Tender comprehends not only the readiness and willingness to pay, but also the ability to do so, Ewing v. Miller, 335 S.W.2d 154, 158 (Mo.1960). Wilhite admitted that his offer to make the February payment was entirely hypothetical, conditioned upon his ability to secure money from Straub to make the payment. In addition, the trial judge properly concluded that Keeney’s equivocal response to Wilhite’s hypothetical offer did not create a situation in which tender of the February installment would have been a vain and idle gesture, cf. Citizens State Bank of Nevada v. Wales, 469 S.W.2d 750, 757-8 (Mo.App.1971); Smith v. Means, 170 Mo.App. 158, 155 S.W. 454, 457 (1913).

In his reply brief, plaintiff argues that Keeney’s conduct at the February 24, 1975, meeting amounted to a waiver of Northwestern’s objection to the sufficiency of the amount of the tender. While it is true that “ . . . [a]n objection to a tender, to be available to a creditor, must be timely made, and the grounds of the objection specified, otherwise it is waived. . ” Capital City Motors, Inc. v. Thomas W. Garland, Inc., 363 S.W.2d 575, 579 (Mo.1962), Keeney’s rejection of the tender of the check because it was entirely too late apparently referred only to the tender for the January payment. The check was not intended to be a tender of both the January and February payments. In fact, there never was a tender of the February payment.

Invocation of the acceleration provisions seems to have been proper in this case. In order to effectuate acceleration and render the entire debt due, the mortgagee must perform some affirmative, overt act evidencing his intention to take advantage of the acceleration provisions, Spires v. Lawless, 498 S.W.2d 65, 73 (Mo.App.1973). Respondents evidenced this intent by the letter of February 10 threatening foreclosure if the January and February payments were not made by February 25, by Keeney's express statement at the February 24 meeting of Northwestern’s intent to foreclose and by Northwestern’s assumption of management control of the apartment complex on February 25, 1975.

Plaintiff finally contends that Keeney’s furtherance of the foreclosure proceedings was a breach of his fiduciary duty as trustee on the deed of trust. A trustee on a deed of trust must act with complete fairness toward both debtor and creditor, Spires v. Edgar, 513 S.W.2d 372, 378 (Mo. banc 1974). In the present case, plaintiff’s argument that Keeney acted impartially in favor of respondents is not supported by the evidence. Keeney acted to protect the creditor since the January investigation disclosed the deteriorating condition of the apartment complex. In addition, at the time of foreclosure the debtor was clearly in default and the foreclosure proceedings were properly conducted.

The trial court properly dissolved the temporary restraining order and refused to grant permanent injunctive relief. The cause is remanded for a hearing on the assessment of damages on the injunction bond.

Judgment affirmed with directions.

STEWART and RENDLEN, JJ., concur.


author: DOWD, Judge.

text:
    John Albert BIBBS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38080.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 12, 1976.

      Huck, Kasten & LaBeaume, Graham W. LaBeaume, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

Movant appeals, denial of his second Rule 27.26 Motion for Post-conviction Relief. His first motion to vacate under Rule 27.26 alleged that Movant was denied effective assistance of counsel. After granting an evidentiary hearing, the court ruled against Movant on that ground and its decision was affirmed on appeal in Bibbs v. State, 504 S.W.2d 319 (Mo.App.1973). On March 15, 1976, Movant filed the second Rule 27.26 Motion, alleging that he was denied his constitutional right to represent himself.

Missouri Supreme Court Rule 27.26(d) provides that:

The sentencing court shall not entertain a second or successive motion for relief on behalf of the prisoner . . . where the ground presented is new but could have been raised in a prior motion pursuant to the provisions of subsection (c) of this Rule. The burden shall be on the prisoner to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.

Movant contends that he did not raise the denial of self-representation as a ground in his prior 27.26 Motion arguing that the law giving him this right had not been established at the time of his prior motion. Mov-ant’s brief argues that state law did not recognize an accused’s right of self-representation prior to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Faretta decision holds the Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees the right to defend criminal charges without counsel. We do not agree with Movant’s argument.

Missouri law has long recognized a criminal defendant’s right to a pro se defense. This right has not been based upon the Sixth Amendment as held in Faretta, supra. Rather, the accused’s right to represent himself is based upon the Missouri Constitution. Article 1, Section 18(a) of the Missouri Constitution and Rule 29.01 provide that an accused shall have the right to appear and defend, in person and by counsel, in criminal prosecutions. The constitutional provision and rule have been interpreted to secure the right of self-representation in criminal trials. State v. Warren, 321 S.W.2d 705, 709 (Mo.1959); see also State v. Rickard, 364 S.W.2d 561, 562 (Mo.1963); State v. Hurley, 251 S.W.2d 617, 619-20 (Mo.1952); State v. Weston, 202 S.W.2d 50, 52 (Mo.1947).

Therefore, since the right to represent himself was available to the Movant when he filed his first 27.26 Motion, this court cannot entertain Movant’s second 27.26 Motion. Accordingly, the judgment is affirmed.

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


author: SMITH, Chief Judge.

text:
    Robert J. WINKELMAN and Carolyn Winkelman, Appellants, v. Matt Louis NEUNER, Respondent.
    No. 37018.
    Missouri Court of Appeals, St. Louis District.
    Oct. 12, 1976.
    John 0. Bond, Jefferson City, for appellants.
    Tweedie Fisher, Jefferson City, Lowell McCuskey, Linn, for respondent.
   SMITH, Chief Judge.

Plaintiffs appeal from a judgment in a jury tried case in favor of defendant on plaintiffs’ claims for personal injuries suffered in an automobile accident.

The jury verdict and judgment were rendered February 13,1975. Plaintiffs’ motion for new trial was filed March 14,1975. The motion was denied on April 4, 1975 and notice of appeal was filed April 14, 1975. The motion for new trial was untimely filed. Rule 78.04. The judgment therefore became final on March 15, 1975. Rule 81.-05(a). The last day for filing the notice of appeal was March 25, 1975. Rule 81.04. The notice of appeal was not timely filed and we have no jurisdiction over the appeal.

Appeal dismissed.

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


author: DIXON, Presiding Judge.

text:
    Grant A. BUSBY, Plaintiff-Appellant, v. Ruth STIMPSON and Burl Shelton, Defendants-Respondents.
    No. KCD27387.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Brown & Holcomb, Trenton, for plaintiff-appellant.
    R. Leroy Miller, R. Max Humphreys, Allan D. Seidel, Trenton, for defendants-respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

In a court-tried case, the trial judge found the issues against the plaintiff in an action for wrongful eviction.

Plaintiff has appealed, contending that the trial court erred in failing to find that plaintiff was a farm tenant entitled to 60 days notice to vacate.

The factual context is as follows.

The farm land which is in dispute is a portion of a 160 acre farm which Ruth Stimpson inherited from her father. In 1969, she and her then husband deeded the farm to her children by a former marriage. Three of these children lived away from the area, but one son, Burl Shelton, lived in the area. He was a witness and testified that he knew of the deed, but he “thought” his mother had reserved a life estate. The deed was, in fact, an absolute conveyance. Ruth Stimpson, after the recording of the deed in December, 1969, continued to deal with the land as if her own, retaining the proceeds of rentals and paying the taxes. She consulted or advised with Burl Shelton as to the management of the land.

Plaintiff made an arrangement with Ruth Stimpson, one of the defendants in the early, part of 1972 to put crops on certain land. There is a sharp dispute in the evidence concerning the terms and nature of the parties’ relationships. The plaintiff’s contention is that the land was rented to him on a three-year lease with the rent payment to be one-half of the crop in the field unharvested with the owner paying for one-half the seed, fertilizer and herbicide. The owner was to arrange for harvest of the owner’s one-half. In other words, the crops were to be divided in the field. Ruth Stimpson, on the other hand, claimed that the land was “rented” for “one” year, and that year terminated in 1973. Plaintiff did plant and cultivate a crop in the 1972 growing season, mostly corn, but a few beans. The crop was harvested by the plaintiff in its entirety, the plaintiff having arranged with Burl Shelton to do so with an agreed price per bushel for the harvesting, drying and transport of the crops. In the early spring of 1973, Burl Shelton and plaintiff settled these accounts after some difficulty and dispute. It appears Ruth Stimpson had become ill in early 1972 and the dealings with respect to the land had been left to Burl Shelton; he both supervised the farm operation and settled for the crops. Not all of the farm was involved in the arrangements with the plaintiff, the house and improvements being rented to another person who also put up hay on a portion of the farm. Prior to the 1972 crop year, Ruth Stimpson had caused the land to be bulldozed and limed at her expense. The only improvement claimed to have been made by the plaintiff was the creation of a field entrance for which he obtained the permission of the highway department. Some of the land had not been farmed for fifty years, and plaintiff claimed that the planting and cultivation was made more difficult with the recent clearing of brush and trees and consequent roots and branches upon the ground. Plaintiff conceded the crop raised on the long-idle ground was a good one.

When plaintiff attempted to enter the land in early 1973 with the intention of plowing, he discovered others working the ground. Shortly thereafter, plaintiff was orally informed by Burl Shelton to remove his equipment within ten days.

Plaintiff of necessity makes a two-stage attack upon the trial court’s judgment. First, plaintiff argues that the deed from the defendant Ruth Stimpson to her four children is invalid because of a failure of delivery and, second, that since she was the owner, his oral arrangement with her for a three-year lease, which the parties concede would be invalid under the statute of frauds, make him a tenant at will of agricultural lands entitled to the notice benefits of Section 441.050 RSMo 1969. The plaintiff must sustain both of these positions in order to reverse the action of the trial court, for obviously the trial court judgment can be sustained if the deed was valid or if the plaintiff was not entitled to the statutory notice upon any other basis.

If plaintiff was a sharecropper and not a tenant, he was not entitled to the statutory notice to quit under § 441.050 RSMo 1969. Smith v. McNew, 381 S.W.2d 369 (Mo.App.1964). The general rule is that in a contract to farm land, a possessory interest tends to show a tenancy. Hogue v. Wurdack, 298 S.W.2d 492 (Mo.App.1957). A lease exists where it is the intention of the parties that the landowner part with exclusive possession and the other party take it for cultivation. Jackson v. Knippel, 246 S.W. 1007 (Mo.App.1923). In Knippel, the court found a landlord-tenant relationship existed under a written contract which provided for a “lease” of one year for one-half of the wheat as “rent.” To determine whether a party is a cropper or a tenant, the court must look at the intention of the parties and the circumstances. McNew, supra, and “[w]here an agreement or contract to farm on shares is oral and informal . and the evidence is conflicting, the question whether a tenancy, or some other legal relationship], was created is essentially a question of fact.” McNew, supra, at p. 373. In Smith v. McNew, the court found that the trial court was not in error in finding a sharecropping agreement. In that case, plaintiff landowner entered into an oral agreement with defendant for the cultivation of plaintiff’s land. Plaintiff claimed that the only term discussed was the percentage of share. Defendant claimed that he told plaintiff he would not rent for only a single year because of required improvements and that plaintiff told him to use the farm as his own. Defendant did cultivate and improve the ground from 1959 until June of 1962. Defendant decided on what crops to plant, furnished his own seed and used his own equipment. Plaintiff occupied a building on the property and shared a barn with defendant for storage.

The similarity between the facts in the instant case and McNew is striking. The court in the instant case could have found under the evidence that plaintiff was a sharecropper and not a tenant, a finding which clearly would have made his eviction without notice proper.

This is particularly true when the additional facts not present in McNew but clearly in this case are considered. Here the crops were divided in the field. One-half of the crop was not "delivered” as “rent” and the house was rented to another tenant who put up hay on a part of the farm. Both these facts tend to show that there was no intent to deliver possession, an essential element under a lease or tenancy as opposed to a sharecrop arrangement.

The evidence in this case would support a finding that plaintiff was under a sharecrop arrangement and not a tenancy, and the trial court’s implied finding to that effect is binding upon this record. Murphy v. Carron, 536 S.W.2d 30 (Mo.1976).

Still another theory would support the judgment of the trial court. Even if the trial judge found that plaintiff was a tenant under an oral contract with the owner, the sixty days notice is not necessary if the term of the tenancy was fixed. The general rule is that where a tenant enters into possession of agricultural land under an oral lease and pays rent, it creates a tenancy-at-will. If the tenant remains in possession or holds over “by operation of law, it becomes a tenancy from year to year and can be terminated on the part of the landlord, only, by giving the tenant written notice to vacate at least 60 days beforé the end of the year [citing predecessor to § 441.050 RSMo 1969].” Coleman v. Fletcher, 238 Mo.App. 813, 188 S.W.2d 959, 963 (1945). In that case, plaintiff claimed he leased the land from defendant under an oral lease for the years 1940 and 1941. Plaintiff farmed the land in 1940, dividing the crops with defendant and in February of 1941 defendant prevented plaintiff from cultivating. The court held that plaintiff was entitled to 60 days notice.

Coleman has been limited by Vanderhoff v. Lawrence, 201 S.W.2d 509 (Mo.App.1947), aff’d 206 S.W.2d 569 (Mo.1947). In Vanderhoff, plaintiff landowners brought an action of unlawful detainer. Defendants were in possession under an oral lease and contended that they were entitled to 60 days written notice to vacate. The rental was based on a crop sharing arrangement and the term of the lease was disputed; however, defendants did not dispute the trial court’s finding that the lease was for one year, March 1, 1945 — March 1, 1946. The court held that the predecessor to § 441.070 RSMo 1969 governs oral leases which are unenforceable because of the statute of frauds. That section provides, “No notice to quit shall be necessary from or to a tenant whose term is to end at a certain time, or when, by special agreement, notice is dispensed with.” In applying that section, the court held that plaintiffs were not required to give defendants 60 days notice prior to March 1, 1946 because the “time for quitting became fixed and was a valid provision, of which [defendant] had knowledge, and no notice to vacate was necessary.” Vanderhoff, supra, 513-514. Thus, the rule in Coleman appears only to apply to oral leases for an indefinite term, or where no notice was given and the period fixed by the oral agreement is unexpired. Vanderhoff v. Lawrence, 206 S.W.2d 569, 570 (Mo.1947).

It is clear that plaintiff did not receive written notice of any kind. However, such notice was unnecessary if the lease was for a period of a year. The evidence was conflicting on the term of the arrangement and a finding by the lower court of one year tenancy based upon the testimony of Ruth Stimpson would be a permissible finding upon this record. Rule 73.01; Murphy v. Carrón, supra.

The judgment is affirmed.

All concur.