author: DONNELLY, Judge.

text:
    Allen THOMAS, Appellant, v. STATE of Missouri, Respondent.
    No. 59617.
    Supreme Court of Missouri, en banc.
    April 11, 1977.
    Fred Boeckmann, Clayton, for appellant.
    Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Appellant, Allen Thomas, was convicted of robbery in the first degree by means of a dangerous and deadly weapon by a jury in the Circuit Court of the City of St. Louis and his punishment was assessed at imprisonment for a term of fifteen years. Following rendition of judgment and imposition of sentence, an appeal was taken to the St. Louis District of the Court of Appeals where the judgment of conviction was affirmed. State v. Thomas, 530 S.W.2d 265 (Mo.App.1975).

On February 11, 1976, appellant filed a motion to vacate under Rule 27.26 in the Circuit Court of the City of St. Louis. Among the points raised in the motion to vacate was that appellant “was subjected to double jeopardy when he received an instruction from the Court on felony-murder and the court erroneously allowed the jury * * * to consider a verdict of robbery along with the felony-murder.”

On April 26, 1976, the motion to vacate was overruled and an appeal was taken to this Court.

This Court does not have jurisdiction of this case under Art. V, § 3, Const, of Missouri. We retain and decide the case under authority of Art. V, § 10, Const, of Missouri, for the reasons stated in Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 196 (Mo.banc 1972).

On appeal, appellant complains that the “trial court * * * gave separate instructions on felony murder and robbery. The jury was instructed to consider the alleged robbery in the murder instruction and again in the separate robbery instruction. Appellant was thereby subjected to double jeopardy in violation of the Fifth Amendment of the United States Constitution and of Art. I, Section 19 of the Missouri Constitution.”

The instructions referred to were as follows:

“INSTRUCTION NO. 4
“As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
“First, that on or about January 26,1974, in the City of St. Louis, State of Missouri, the defendant, Cleveland Owens and Myrtle Marie Poe caused the death of Edgar C. Clark by stabbing him, and “Second, that he did so in robbing Edgar C. Clark,
“Third, that the defendant knowingly and with common purpose acted together with Cleveland Owens and Myrtle Marie Poe who engaged in the conduct submitted in the above paragraphs,
then you will find the defendant guilty under Count I of murder in the first degree in connection with robbery.
“However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty under Count I of that offense. ‘Robbery’ is the unlawful taking of the property of another from his person or in his presence and against his will either by the use of violence to the person of the possessor of such property with intent to steal or by putting him in fear of immediate injury to his person with intent to steal.
“INSTRUCTION NO. 5 “As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
“First, that on or about January 26,1974, in the City of St. Louis, State of Missouri, Edgar C. Clark owned clothes and two radios, and
“Second, that at that time and place the defendant, Cleveland Owens and Myrtle Marie Poe, by means of a deadly and dangerous weapon, took the property from Edgar C. Clark against his will by causing him to fear immediate injury to his person, and
“Third, that the defendant, Cleveland Owens and Myrtle Marie Poe, took the property with the intent to permanently deprive Edgar C. Clark of the property and to convert it or any part of it to his own use,
“Fourth, that the defendant knowingly and with common purpose acted together with Cleveland Owens and Myrtle Marie Poe who engaged in the conduct submitted in the above paragraphs,
then you will find the defendant guilty under Count II of robbery in the first degree by means of a deadly and dangerous weapon.
“However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.”

Article I, § 19 of the Constitution of Missouri provides that no person shall “be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury * * The Fifth Amendment to the Constitution of the United States provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb * * *.”

The essential question, as to both Constitutions, is whether murder committed in the perpetration of robbery is the same offense as robbery.

In Blockburger v. United States, 284 U.S. 299, 303, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the indictment under the Harrison Narcotic Act contained, with others, a count which charged a sale of eight grains of the drug not in or from the original stamped package and a count which charged the same sale as having been made not in pursuance of a written order of the purchaser as required by statute. The Court held that two distinct statutory offenses were committed by the single sale and said:

“Two. Section 1 of the Narcotic Act creates the offense of selling any of the forbidden drugs except in or from the original stamped package; and § 2 creates the offense of selling any of such drugs not in pursuance of a written order of the person to whom the drug is sold. Thus, upon the face of the statute, two distinct offenses are created. Here there was but one sale, and the question is whether, both sections being violated by the same act, the accused committed two offenses or only one.
“The statute is not aimed at sales of the forbidden drugs qua sales, a matter entirely beyond the authority of Congress, but at sales of such drugs in violation of the requirements set forth in §§ 1 and 2, enacted as aids to the enforcement of the stamp tax imposed by the act. See Alston v. United States, 274 U.S. 289, 294, 47 S.Ct. 634, 71 L.Ed. 1052; Nigro v. United States, 276 U.S. 332, 341, 345, 351, 48 S.Ct. 388, 72 L.Ed. 600.
“Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation1 of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489, and authorities cited. In that ease this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: ‘A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ Compare Albrecht v. United States, 273 U.S. 1, 11-12, 47 S.Ct. 250, 71 L.Ed. 505, and cases there cited. Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed.”

The offense of murder requires proof of the fact of homicide. The offense of robbery requires proof of the fact of taking property from another against his will. Murder and robbery are not the same offense under the Fifth Amendment to the United States Constitution.

In State v. Moore, 326 Mo. 1199, 33 S.W.2d 905, 906, 907 (1930), defendant entered a plea of guilty to the charge of murder committed in the perpetration of the robbery of one Heller. He was then charged and convicted of robbing Heller. He contended “that the offense of robbery merged into the offense of murder, and that, having been sentenced for the murder of the said Heller, he has been put twice in jeopardy for the same offense by his prosecution for the robbery of Heller, which grew out of the same occurrence.” The Court said:

“Our Constitution * * * proscribes the putting again (or twice) in jeopardy of life or liberty any person for the same offense. Certainly, if defendant had been again tried for first-degree murder for the killing of Heller, he could have pleaded successfully former jeopardy, for he would have been tried for the same offense. We also think, although it is unnecessary so to decide, for the questions are not here involved, that the plea of former jeopardy probably would be sustained as to the lesser or lower grades or degrees of homicide or assault necessarily included in and apposite to first-degree murder, such as second-degree murder, manslaughter, etc., for such lesser degrees are included within the same offense. But murder and robbery are not the same offense, nor does one necessarily emanate from the other. While their common essential element is that of assault, yet they are distinct and separate statutory offenses.
“We reiterate that our Constitution and the common law proscribe a second jeopardy for the same offense. Murder and robbery are not and cannot be the same offense. It may be that during the same transaction both offenses are committed, yet they remain separate and distinct offenses and are not the same offense. It may be that on a trial for either offense evidence as to the other offense is admissible as a part of the res gestae, but this does not constitute them the same offense. Distinct and separate offenses are not to be held merged because they happen to grow out of the same transaction.
“Defendant cites State v. Mowser, 92 N.J.Law, 474,106 A. 416, 4 A.L.R. 695, to sustain his position. That case is seemingly predicated on the postulate that the occurrence out of which the offenses issued was one inseparable transaction. This may be called the ‘same transaction rule.’ Missouri, according to our decisions, prefers to follow the separate or several offense rule, and we have held that an offender is not to be exonerated from responsibility for his acts because his desires or passions persuade or impel him to commit two or more offenses during a transaction or occasion. State v. Martin, 76 Mo. 337; State v. Bobbitt, 228 Mo. 252, 128 S.W. 953; State v. Temple, 194 Mo. 228, 92 S.W. 494. The general rule on the subject is stated in 8 Ruling Case Law, page 148, § 133, reading: ‘When a single transaction constitutes two or more offenses, wherein the lesser offense is not necessarily involved in the greater and when the facts necessary to convict on the second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second.’ On the facts stated, the case of Warren v. State, 79 Neb. 526, 113 N.W. 143, is in point, and we think the conclusions therein are sound and in accordance with the general rule. 16 C.J. p. 272-3, § 453.
“It follows that defendant by his acts committed several and distinct offenses, and that his prosecution and trial on the charge of robbing Heller, following his plea of guilty on the charge of murdering Heller, did not put him again or twice in jeopardy for the same offense.”

We hold that appellant’s assertion is without merit. His contention is not supported by the cases decided in the United States Supreme Court and in this Court. It was not error to give separate instructions on felony murder and robbery.

Appellant asks that we reconsider the holding in State v. Chambers, 524 S.W.2d 826 (Mo.banc 1975). In Chambers, this Court cites with approval and relies upon the Blockburger and Moore cases, supra. We decline to overrule the Chambers holding.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Glen Evans ESCOE, Defendant-Appellant.
    No. 59751.
    Supreme Court of Missouri, En Banc.
    April 11, 1977.
    Robert Beaird, Kansas City, for defendant-appellant.

      Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM.

Glen Evans Escoe (appellant), convicted of assault with intent to kill with malice aforethought and sentenced to imprisonment for 50 years, appealed to the Court of Appeals, Kansas City district. That court affirmed the judgment of conviction. The court held that while it was error to admit evidence of a subsequent robbery allegedly participated in by appellant, considered under the plain error rule it did not result in manifest injustice or a miscarriage of justice, because evidence of his guilt of the assault was overwhelming. The case was transferred by our order, primarily to consider the application made by the court of appeals of the rule. We affirm, using parts of the opinion written by Chief Judge Pritchard of the court of appeals.

Appellant has briefed one point: “That the court erred [1] in not sustaining defendant’s motion for a mistrial when the prosecuting attorney indicated in his opening statement that defendant had been involved in a subsequent, separate and distinct crime * * ⅜ and * * * [2] by allowing the State to present testimony concerning said subsequent crime during its case in chief.”

That part of appellant’s point designated [1] was not assigned as error in the motion for new trial and, therefore, is not preserved for review. That part designated [2] is not preserved for review, because no objection was made to testimony that appellant was a participant in a subsequent crime.

During the state’s opening statement the following occurred:

“MR. HAGGERTY [assistant prosecuting attorney]:

Now, the evidence will further be that about four days later, this defendant, Mr. Escoe, and Mr. Perkins, were later to go out to the area of 35th and Woodland, Kansas City, Missouri, and while they were out there, there was some discussion about committing another robbery. And at that time, either Mr. Escoe or Mr. Perkins gave the witness for the State, Edwin Oliver, a gun to hold, and he * * * put it in his pocket. Later on the evidence will be, the witness will tell you the facts, this defendant, Mr. Perkins and Mr. Oliver, the State’s witness, then went into a plumbing shop known as Monark Plumbing, at 35th and Woodland, and there after some period of time, some shooting took place.

MR. FLUKER [trial counsel for appellant]:

Your Honor, I am going to object to any further statements with regard to that. It should be stricken from the record.”

At this point, and without a ruling on the objection, counsel went to the Bench where there was a brief discussion of the purpose and admissibility of evidence of the robbery and shooting at Monarch Plumbing Company. During this discussion counsel for the state said:

“The purpose of introducing the evidence about that robbery is solely to be able to identify how the state’s witness acquired the gun. * * * We are not concerned with Mr. Escoe being at the Monark place; only the gun being there.”

Counsel for appellant then pointed out that if this were the purpose it could easily have been handled by stating that appellant gave Mr. Oliver (the state’s witness) the gun and that he (Oliver) and two unnamed individuals then participated in the robbery of the Monarch Plumbing Company, and that the police subsequently recovered the gun at the scene. The trial judge made this response to the remarks by both counsel:

“O.K., but now if the one — if the robbers did any shooting, that’s not necessary to prove it or tie it up.”

Counsel for appellant then moved for a mistrial, which was denied.

On December 14,1974, at about 4:00 p.m., Donald Jones and his wife, Shirley, were driving up Independence Avenue in Kansas City on their way to North Kansas City. While stopped for a traffic light, the door on the passenger side was opened and appellant, with a gun in his hand, told Shirley to move over. She did. Appellant got in beside her. Another man whom she did not see got in the rear seat and told Donald to drive on as the traffic light changed. As Donald was driving, the man in the rear seat struck him on the side of the head. Appellant then took charge of the driving, telling Donald to get into the back seat. He did. The man in the back seat pulled him down, and after driving around for awhile, appellant drove into a wooded area on Cliff Drive and stopped. It was then still light. Appellant had grabbed Shirley’s purse and Donald was asked for his wallet. Appellant took Shirley’s glasses from her and threw them on the dash. In obedience to the order of the two men, Donald and Shirley got out of the car and as they walked they were pushed over the cliff and fell at least 15 feet. As they lay there Donald told Shirley not to move but to lie quietly until he told her to run. The two waited until they thought the two men had left, and then they began to run. After they took a few steps, appellant ordered them to stop, to turn around and lie down. Shirley could tell that it was appellant who gave the order by what he was wearing. As they were lying down appellant shot each of them twice. According to Donald the pistol was discharged four times and he heard a series of three clicks. After the shooting, the other man hollered for appellant to get out of there, and the two men left in the car.

Donald and Shirley then went up to the road where Donald passed out by a light pole. Shirley was able to walk along Cliff Drive were she summoned help from a passing car. They were both taken to a hospital for treatment, Donald’s condition being critical.

Before appellant took Shirley’s purse and her glasses (she could not see well without her glasses), she had a good look at him as being the person who was in the front seat with her. She made a positive in-court identification of him. At a lineup, with counsel for appellant present and participating in its constitution, Shirley picked out appellant who was viewed with three other persons, all dressed exactly the same and similarly posed with arm slings. Each of the persons was asked to say twice the words “Move over” and “Where’s your money?” which helped in Shirley’s identification at that time. Donald also made a positive in-court identification of appellant as one of the persons who jumped into the car, and who, at the foot of the cliff, with two pistols in his hands, ordered them to stop and to get back down on the ground. As he turned to follow this order, Donald looked directly into appellant’s face from a distance of about 10 feet and could see him clearly. While in the hospital Donald picked out a photo of appellant from a number of photographs viewed by him, with no doubt that appellant was the man who robbed and shot them.

Edwin Oliver was called as a witness by the state. He testified that he had known appellant about a year and saw him on December 14, 1974, the day of the shooting, at Alice Thompson’s house which was about four houses from where the Jones car was entered by appellant and his companion; that Daniel Perkins was also present at the Thompson house and had the gun, a .22 caliber weapon, which was shown by ballistics tests to have been used to shoot Donald Jones; that appellant and Perkins left and returned twice that afternoon, the last time being about 6:00 p.m., when the news was reported on television that two people had been pushed over a cliff. Oliver further testified: “I asked them [appellant and Perkins] was that them, and I asked Perkins, and he started laughing, and he said ‘Yes,’ that was them * * * I asked him [appellant], you know, what had happened, and he told me that Perkins pushed the people over the thing * * * [and that he did] nothing but drove the car * * that neither Perkins nor appellant told him who did the shooting.

Oliver further testified that four days later, on December 18, he, Perkins and appellant were together and discussed robbing the Monarch Plumbing Shop in the area of 35th and Woodland; that Perkins handed him a .22 caliber gun which appellant had handed Perkins; that they went to the Monarch Plumbing Shop that day and during the robbery some shooting occurred in which he (Oliver) was shot in the left thigh; that he ran from the plumbing shop through an alley, where he dropped the gun; that he escaped, but eight days later was apprehended. No objection was made to any of Oliver’s testimony.

As indicated, the .22 caliber gun Oliver dropped in the alley was recovered by the police and a ballistics test showed that it was the weapon which fired the bullets taken from the person of Donald Jones.

There is no merit in appellant’s contention that the court erred in not sustaining his motion for a mistrial made during the state’s opening statement and based on the ground that state’s counsel had informed the jury that appellant had been involved in a subsequent crime. Whether or not to declare a mistrial necessarily and properly rests largely in the discretion of the trial judge. State v. Camper, 391 S.W.2d 926, 927-928[2-4] (Mo.1965). We conclude from this record that the trial judge did not abuse his discretion in refusing to declare a mistrial. We have considered this contention in connection with our review of the second part of appellant’s point under the plain error rule, although it was obvious on its face that there was no error.

As stated in the first paragraph of this opinion, the court of appeals held that it was error to admit evidence of the details of appellant’s participation in a subsequent crime, the robbery of Monarch Plumbing Company in which shooting was involved. We, of course, agree with that holding. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307[2] (banel954). The court of appeals having so held, then proceeded to determine whether manifest injustice or miscarriage of justice had resulted from this error. Its determination was, as stated in its opinion, that such injustice or miscarriage of justice had not resulted, “because the evidence of * * * guilt was overwhelming.” The quoted reason for the determination made is beginning to appear with some frequency in appellate opinions, somewhat as a “stock” or “catchall” reason why the the reviewing court had concluded that manifest injustice or miscarriage of justice had not resulted from an error. We do not agree that this “reason” is the ultimate test or that it should be used in deciding a case although the evidence of guilt is overwhelming.

The fact that evidence of guilt is overwhelming is not an accurate test to be applied in determining whether from an error there has been a miscarriage of justice. Manifest injustice or miscarriage of justice may result even where fhe evidence of guilt is overwhelming. It is not incumbent on the reviewing court to state a reason why it has determined that an error, not preserved or presented for review but considered under the plain error rule, did or did not result in manifest injustice or a miscarriage of justice. Yet it may do so. It is sufficient to say merely that the error did or did not result in manifest injustice or miscarriage of justice.

What we have said on this subject is, in essence, what the court said in State v. Patterson, 443 S.W.2d 104, 106-108[2, 4] (Mo.banc1969).

We have reviewed the whole record in this case and hold that, under the facts and circumstances it presents, the error in admission of evidence of the subsequent crime did not result in manifest injustice or a miscarriage of justice.

The judgment is affirmed.

All concur.

      . Rule 27.20(c), Supreme Court Rules.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. James Carl BAKER, Appellant.
    No. KCD 27634.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Rehearing Denied Dec. 8, 1975.
    George R. Lilleston, Lilleston & Roberts, Clinton, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

James Carl Baker was convicted by a jury of robbery, first degree, by means of a dangerous and deadly weapon, of C. W. Kemper, II; and of assault with intent to maim Myrna B. Kemper with malice aforethought. The jury assessed his punishment at imprisonment for fifty years for the robbery and for forty years for the assault. Sentence and judgment were rendered accordingly and the court ordered the sentences to run consecutively. §§ 560.120, 560.135, 559.180, RSMo 1969, V.A.M.S.; Rule 24.04, V.A.M.R.

The defense was alibi; and other than to assert (Point II) that the court erred “in not granting defendant a new trial for the reason that the verdict of the jury was contrary to the weight and preponderance of all the evidence and not supported by substantial evidence,” appellant does not question the sufficiency of evidence to sustain his conviction. Such an assignment is not sufficient to preserve anything for review. Rule 27.20, V.A.M.R.; State v. Rohman, 261 S.W.2d 69 (Mo.1953); State v. Jackson, 477 S.W .2d 47, 53[11] (Mo. 1972); State v. Vineyard, 497 S.W.2d 821 (Mo.App.1973).

A submissible ease may be demonstrated from appellant’s statement of facts:

“ * * * Clarence W. Kemper II testified that he was the manager of Keil’s Jewelry Store in Clinton, Henry County, Missouri on April 13, 1974. He stated that his father owned the store and merchandise. He identified the Defendant as being present in the Keil’s Jewelry Store on April 13, 1974 at approximately 5:00 P.M. He further stated that the Defendant was accompanied by another man known now to him as Defendant’s brother (Russell Levi Baker). He testified that Defendant’s brother, Russell Baker, shot him. He testified that he and his wife, Myrna Kemper were led to the back of the store and told to lie on the floor. Further, that he heard showcase doors slide open; that a checkbook was removed from his pocket and that he was kicked.

“ * * * Myrna Kemper identified the Defendant as having been in Keil’s Jewelry Store in Clinton, Henry County, Missouri on April 13,1974. She testified the Defendant hit her over the back of the head with the handle of a gun.”

Appellant contends the court erred (I) in allowing the State during closing argument to read from a document not introduced in evidence. See State v. Edmondson, 218 S.W. 864 (Mo. banc 1920); State v. Campbell, 210 Mo. 202, 109 S.W. 706 (1908). The document in question was a transcript of proceedings upon the plea of guilty entered by defendant’s brother, Russell Levi Baker, to the robbery charge. Appellant argues that it was prejudicial and cause for reversal because the statement contained a reference to participation of defendant in the robbery and assault for which he was then on trial.

The difficulty in appellant’s contention is that although not offered and received as documentary evidence, the subject matter in question was read in evidence prior to the State’s argument and comment thereon was therefore appropriate.

Russell Levi Baker testified in his brother’s behalf that he pleaded guilty to commission of the robbery in question and that James was not with him in the robbery. During his cross-examination he was confronted with the document in question, a transcript of proceedings upon his plea of guilty July 3, 1974, and the testimony in question came into evidence without objection, viz:

“Q [by Mr. Sanders for the State]. Mr. Baker, isn’t it a fact that — Page 23, Line 20 — that at that hearing where you entered your plea you were asked the following question:
“ ‘Q. Mr. Baker, if I may just reiterate this, let me tell you what the prosecutor’s understanding of the situation is and you can tell me whether or not this is correct.
“ ‘It is my understanding that on the 13th day of April, 1973, excuse me, 1974, in Henry County, that you and James Baker went into the Keil Jewelry Store in Clinton, Missouri; that you shot Mr. Kemper, as we have stated, because you felt he was stalling you or delaying you, you then went to the back of the store, took watches and rings from the store and left with him still in the back, is that your understanding?
‘“A. Yes.’”

“At the request” of appellant, counsel asserts (III) that the information alleging violation of “the second offender’s act” removes the question of punishment from the jury and makes the sentence assessed by the jury unlawful; (IV) that the allegation in the original information “and to perpetuate [sic] several such crimes” prejudiced the jurors; (V) that the absence of certain “requested and/or subpoenaed alibi witnesses” resulted in denial of a fair trial; (VI) that State’s question seeking in-court identification were so suggestive as to deny defendant a fair trial; (VII) that the court erred in imposing consecutive sentences “for the reason that the imposition of sentence by the court was the proper function of the jury and invaded the province of the jury”; (VIII) that the court erred in not allowing defendant to be present when the jury panel was selected for jury duty; (IX) that the court erred in allowing the State to cross-examine Russell Levi Baker from the transcript of his guilty plea; (X) that the court erred in allowing the State in its closing argument to recommend to the jury a forty-year punishment on the assault charge.

The foregoing abstract statements and alleged errors (Points III—X) are not for review because they are not supported by timely objection or presentation in the motion for new trial as required by Rule 27.20, V.A.M.R.

Nor are they incidents of plain error under Rule 27.20(c), V.A.M.R.:

Assignment III was cured at the close of the State’s case when the trial information was amended by deleting the allegations of prior conviction.

Assignment IV was cured when the allegedly prejudicial language in the original information was omitted from the amended information upon which defendant was tried.

Assignment V is not supported by an application for continuance on account of absent witnesses in compliance with Section 510.100, RSMo 1969, and defendant is deemed to have elected to proceed to trial without such witnesses.

Assignments VI, VII, VIII, IX, and X are without support by argument or authority, State v. Orr, 493 S.W.2d 374 (Mo.App.1973); and, in particular, with respect to assignment X, the record shows that the State argued punishment on both charges in the opening argument, thereby according the defendant the opportunity to answer in his argument, State v. Peterson, 423 S.W.2d 825 (Mo.1968).

Judgment affirmed.

All concur.


author: WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Frederick THOMAS, Jr., Appellant.
    No. KCD 27680.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.
    Motion for Rehearing and/or Transfer Denied Jan. 12, 1976.

      Thomas M. Larson, Public Defender, Philip H. Schwarz, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   WELBORN, Special Judge.

Appeal from judgment of conviction and sentence to 50 years’ imprisonment, entered on jury verdict finding Frederick Thomas, Jr., guilty of forcible rape.

At around 5:00 P.M., January 26, 1974, as Valerie H., a cocktail waitress at the Alameda Plaza Hotel in Kansas City, was leaving her place of employment, she was accosted in the parking garage by a man who asked her to assist him with some difficulty he was having with his automobile. At his direction, she sat down on the front seat of his auto. He shoved her over into the car, pointed a knife at her and asked where her money was. She replied that she had left her money in her car. He threatened to “slit” her throat. She started to scream. He struck her in the face and head, scuffled with her until she was on the floor of the car and then drove away with Valerie lying on the floor of the vehicle.

They drove for approximately an hour, when the auto stopped añd Valerie was permitted to get into the front seat. There followed a conversation between the two of around an hour’s duration. Eventually, the assailant got into the back seat of the car and asked Valerie to join him there. When she refused, he pulled her into the back seat, partially disrobed her and had sexual intercourse with her against her will.

Valerie was then allowed to get out of the car and the man drove away. She then walked to a road where she obtained a ride and was taken to the sheriff’s office at Harrisonville. The officer who took her to the hospital described her hair as “messed up,” with blood in it. She had a black eye and several cuts on her face. She had blood on the front of her coat.

Detective Steen of the Kansas City Police Department had received a call from persons at the Alameda Plaza who had witnessed the occurrence in the parking garage and he had issued a “broadcast pickup” for Valerie. When he learned that she was in Harrisonville,-he went there and saw her at the hospital. After her wounds had been treated, she accompanied Steen and other officers in an auto to the site of the attack. At the scene, the officers found cigarette butts, paper towels and a piece of paper bearing seven numbers.

Law enforcement officials concluded that appellant Frederick Thomas, Jr., was the assailant and on January 28, Detective Steen was advised that a Cass County warrant had been issued for Thomas’s arrest on the charge. The police had ascertained that Thomas owned a 1970 Chevrolet Impala sedan. (The victim described the vehicle in which the attack occurred as a “late model Chevy.”) Police checked at Thomas’s residence, 3218 Linwood in Kansas City, but his car was not there. Later, at around 4:00 P.M., his auto was seen parked in front of the residence. Steen went to the door of Thomas’s apartment and noticed a light shining and heard the television operating. He received no response to a knock at the door.

A pass key was obtained from the apartment manager. Steen entered the apartment. Inside he found no one. He did see a small steak knife lying on a dividing counter between the kitchenette and dining area. He also saw a can of cleaning wax on the bureau in the bedroom. Steen took these items. He also saw a laundry bag. He examined its contents and removed a pair of trousers from it.

Steen then went to the street where Thomas’s car was parked. He looked inside the car. “On the right window crank on the right front door, there was a clump of reddish-blond hair that was very visible. The sun was shining in. It was glistening. From the headliner in, looking out from the car, there was a small spot of what appeared to be blood. Another spot of what appeared to be blood was on the seat.” The car was towed to police headquarters where it was “processed” by a police evidence technician, beginning at around 5:30 P.M., January 28. The technician discovered strands of hair in various parts of the auto. He removed parts of the carpet which had red spots, apparently blood.

At around 7:00 P.M., January 28, Kansas City police officers took up surveillance of Thomas’s apartment. At around 7:30, they saw Thomas come out of the apartment building and placed him under arrest.

At his trial on a charge of rape, Valerie identified appellant as her assailant.

On this appeal, the first assignment of error is based upon the trial court’s overruling of appellant’s motion to suppress evidence obtained by police in the processing of his automobile and in permitting the introduction of such evidence at his trial. Appellant’s pre-trial motion to suppress, which also was directed at the articles obtained from the apartment was sustained as to the clothing taken from the laundry bag but overruled as to the knife and can of wax and the articles found in the automobile. On this appeal, there is no claim of error regarding the overruling of the motion and introduction into evidence of the knife and wax.

At the trial a chemist employed at the Regional Criminalistics Laboratory testified that he examined the pieces of carpet with red stains and found that the stains were human blood, of the same type as that of the victim. He also testified that the hair taken from the auto “fell within the limits of variance for a match” of the victim’s hair.

On this appeal, appellant contends that the evidence was obtained by the police as the result of an unlawful search, in violation of appellant’s rights under the Fourth Amendment to the Constitution of the United States.

The point of departure with regard to this contention is the fact that officers who searched and seized appellant’s automobile did so without a warrant authorizing such action. Appellant suggests that the question should be determined on the basis that the officers had ample opportunity to obtain a warrant but failed to do so. This proposition brings to light the previously noted void in Missouri law which failed to authorize the issuance of a search warrant in these circumstances. See In Re J.R.M., 487 S.W.2d 502, 504 (Mo. banc 1972); State v. Wright, 336 Mo. 135, 77 S.W.2d 459, 462[6, 7] (1934). Whether or not the new search warrant statute (Laws of Missouri, 1973-1974, p. 922), which became effective August 13, 1974, will alter the situation need not be here considered.

The absence of a search warrant, even where available and when time would have permitted one to be obtained is not determinative of the validity of an automobile search. However, the state has the burden of showing that the search falls within a situation where the absence of a warrant will be excused.

In this case the state relies upon “probable cause” for the search (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)) coupled with “exigent circumstances” as recognized in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 449 (1970).

Basically, the probable cause is claimed to have arisen from the fact that Detective Steen knew that a Cass County warrant had issued for appellant’s arrest for rape and the fact that the officer’s plain view examination of the automobile led to the belief that the vehicle contained evidence of the crime. These circumstances were adequate to provide probable cause for the subsequent seizure and search. State v. Brown, 476 S.W.2d 519 (Mo.1972).

Appellant contends that the discovery of the hair and blood stains was not inadvertent, as required for a “plain view” justification for seizure of evidentiary items. See Coolidge v. New Hampshire, 403 U.S. 443, 469, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). However, the circumstances warranted the police action in looking at the interior of the automobile. The vehicle was parked on a public street and the police officer therefore had the right to be where he was when he looked into the interior of the vehicle. See Smith v. Slayton, 484 F.2d 1188 (4th Cir. 1973). The officer was not required to avert his eyes and ignore the matters which came to his attention and which had an apparent connection with the offense with which the owner of the vehicle was charged.

The existence of probable cause in these circumstances distinguishes this case from In Re J.R.M., 487 S.W.2d 502 (Mo. banc 1972). That case involved the removal of a vehicle from a public parking area and its subsequent examination at police headquarters, which produced evidence connecting the operator of the auto with a homicide. In that case, the vehicle was seized, not on probable cause arising from a prior view of the interior of the vehicle, but wholly on the basis of suspicion, arising from the knowledge that the homicide victim had been in the auto the day before her body was discovered. Contrary to the situation here, the preliminary discovery of evi-dentiary items was made after the vehicle had been removed to the police station, not when the vehicle was parked in the public place. 487 S.W.2d 504. The court in In Re J.R.M. declined to give significance to the fact that the vehicle was seized while in a public parking area. 487 S.W.2d 512. However, that determination was not related to the question of the existence of probable cause at the time of the seizure and does not preclude a finding of probable cause in these circumstances.

On the matter of exigent circumstance, the officer who entered the apartment found evidence of the recent presence of persons in the apartment. The police officer made his presence known to the apartment manager. The police could not be certain that appellant would not become aware of their seeking him and would not attempt to escape in the vehicle which was immediately available to him. These circumstances created an exigency which justified the police action in taking into custody the vehicle with its contents of eviden-tiary importance. State v. Brown, supra.

The circumstances in this regard differ from those presented in In Re J.R.M., supra. There, the court pointed out that, although the operator of the vehicle involved was aware of police suspicion directed toward him, he had taken no action to dispose of the car or destroy evidence it might contain. Here, there was no evidence that appellant was aware of the police activity directed at him prior to Detective Steen’s arrival at his apartment. Certainly the police were not required to await some action on the part of appellant to attempt to flee or destroy evidence before the police took steps to insure otherwise.

The trial court did not err in overruling appellant’s motion to suppress the evidence found in the automobile and there was no error in permitting its use at appellant’s trial.

When the police returned with Valerie to the scene of the offense, officers discovered various items, including a slip of paper bearing seven numbers, “921-8490.” This paper was introduced into evidence. Detective Steen testified that he made out a Field Interview Form upon which he recorded information concerning the name, address, telephone number, etc., given by appellant in response to the officer’s questions. When the officer was asked concerning the replies received and specifically concerning the telephone number, defense counsel objected on the grounds that the report itself would be the best evidence. The objection was overruled and the officer testified that appellant told him his telephone number was 921-8490.

On this appeal, the appellant contends that the admission of Steen’s testimony was error because it was hearsay, because it violated the best evidence rule and because the state failed to notify appellant, in response to his request for discovery, that appellant had made such statement to the police. Inasmuch as the only objection voiced at the trial was based upon the best evidence rule, that will be the ground of error considered here. State v. Sanders, 473 S.W.2d 700, 703[1] (Mo.1971); State v. Sheppard, 515 S.W.2d 785, 786-787[1] (Mo.App.1974).

The best evidence rule was not applicable to Steen’s testimony. He was testifying not to establish the contents of a written instrument, but to appellant’s reply to the question asked him. The fact that the information contained in the reply was reduced to writing does not cause such writing to become the best evidence of the fact stated, within the rule invoked by appellant. State v. Tyson, 363 Mo. 1242, 258 S.W.2d 651, 654[5] (1953); State v. Curry, 473 S.W.2d 747 (Mo.1971).

Appellant’s next claim of error is based upon the trial court’s refusal to order a mistrial because of allegedly prejudicial unfair closing argument on the part of the prosecutor. The objection is based upon the following:

“MR. WHITCRAFT (Prosecuting Attorney): He said when you went home this evening you would have such a wonderful feeling if you rendered a verdict of not guilty. If you go home this evening, after rendering a verdict of not guilty, I hope you lock your houses up, lock your wives up, and lock your daughters up, if you turn this man out on the street. At twenty-three years of age, he’s just starting this crime. We don’t know how many rapes has been prevented because Valerie cried rape, and he’s been in custody since that time. Keep—
“MR. SCHWARZ: I object to that!
“MR. WHITCRAFT: Keep him in custody-
“MR. SCHWARZ: Object to that and—
“THE COURT: Objection will be sustained.
“MR. SCHWARZ: —ask the Jury—
“THE COURT: The Jury will be instructed to disregard—
“MR. SCHWARZ: May we approach the Bench?
“(Following had at the Bench out of the hearing of the Jury.)
“MR. SCHWARZ: Let me ask for a mistrial for Counsel’s arguments that the Defendant is — has been in custody ever since this offense was committed, and that we don’t know how many other offenses have been prevented by that fact. We feel that is prejudicial to the extent that it cannot be cured by action in Court.
“THE COURT: Anything further?
“MR. SCHWARZ: No.
“THE COURT: The Court will overrule the motion for mistrial. I would convey a request to the Jury, if you would like me to.
“MR. SCHWARZ: I will — I ask you to do that, Judge.
“THE COURT: What would you like me to say?
“MR. SCHWARZ: Would you state to the Jury that, uh, there is no evidence in this case that Mr. Thomas has been in custody since this rape, and that, uh, uh, any statement by the Prosecuting Attorney that he — other offenses of like character have been prevented by his confinement is, uh, unfair to the Defendant and prejudicial, and they should disregard it.
“THE COURT: All right.
“(Following had in the hearing of the Jury.)
“THE COURT: Ladies and Gentlemen of the Jury, in regard to the last statement of the Prosecutor that the Defendant has been in confinement since the date of this alleged offense, there is no evidence to that effect. And the Prosecutor’s statement that no one knows how many rapes or other acts of similar character have been prevented, uh, is not in proper reference, and you should withdraw that from your consideration.”
Appellant asserts that the prosecutor’s “tirade in the case at bar was at least as intemperate as that given in the case of State v. Heinrich, 492 S.W.2d 109 (Mo.App. 1973), and the Court’s action in failing to grant a mistrial was an abuse of its discretion.”
As this court has stated:
“⅜ * * In Heinrich, the prosecutor persistently overstepped the bounds of legitimate argument by personalizing the jury, arousing hostility toward defendant, and implanting fear in the jury that defendant’s acquittal was a threat to them personally. We concluded that this unrelieved prejudice had found its way into the verdict which, for that reason, could not stand.” Cloud v. State of Missouri, 507 S.W.2d 667, 669[5] (Mo.App.1974). The prejudice in Heinrich arose not solely because of the persistently improper argument but was attributable also to the absence of any effort to restrain the prosecutor and keep his argument within proper limits. Here the argument was objected to, the objection was sustained and the trial court granted the relief requested by the appellant, except for a mistrial.

As appellant’s brief acknowledges, the question of whether the trial court should have granted a mistrial is for that court’s discretion. State v. Perryman, 520 S.W.2d 126, 131[11—14] (Mo.App.1975). The prosecutor’s remarks here were not continued and repetitious as was the case in State v. Heinrich, supra. In view of the trial court’s prompt action in sustaining appellant’s objection and instructing the jury to disregard the argument, the failure to take the drastic step of granting a mistrial was not an abuse of discretion and was not, therefore, error. State v. Raspberry, 452 S.W.2d 169, 172-173[2-6], [7-11] (Mo.1970).

In a pro se brief, appellant contends that his conviction in this ease violates the double jeopardy provision of the Constitution of the United States (Amendments Five and Fourteen) because he had previously been convicted of kidnapping in Jackson County, arising out of the events that occurred then and culminated in the Cass County offense. This contention was not presented in the trial court. There is nothing in the record to show the Jackson County Circuit Court proceedings. In these circumstances, there is nothing properly before the court for consideration on this issue. The allegation of the pro se brief cannot substitute for what must be contained in the transcript on appeal in order to present a question for appellate review. State v. Neal, 476 S.W.2d 547, 549[2, 3] (Mo. banc 1972).

Judgment affirmed.

All concur.


author: GUNN, Judge.

text:
    STATE ex rel. Theron MANTLE et al., Appellants, v. Joseph M. McCUSKEY et al., Respondents.
    No. 38234.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 12, 1977.

      Inglish & Calhoun, John W. Inglish, Jefferson City, for appellants.
    Robert L. Hyder, Hyder & McHenry, Jefferson City, Lowell R. McCuskey, Pros. Atty. Osage County, Linn, for respondents.
   GUNN, Judge.

Relators-taxpayers filed a mandamus action against Respondents, members of the Board of Education of Osage County Reorganized School District No. 2, to require Respondents to revise and lower the school district tax rate. The trial court initially executed an alternative writ of mandamus against Respondents but on motion quashed the writ on the basis that the Relators by payment of the school tax under protest had adequate remedy available to them. Relators have appealed the order quashing the alternative writ and on appeal raise as the sole issue whether payment of the school tax under protest is an adequate remedy for Relators. We find no error in the trial court’s quashing the alternative writ and affirm the judgment.

The basic thrust of Relators’ petition for writ of mandamus is that on July 15, 1975, according to § 164.011 RSMo Supp.1975, Respondents adopted an operating budget for the ensuing year prepared from estimates of tax revenues to be received based upon the assessed valuation of real and personal property in Osage County for the previous year. Relators alleged that after July 15, 1975, the State Tax Commission increased the assessed valuation of the real and personal property in Osage County by more than ten percent; that by reason of the increased assessment, Respondents were required under § 137.073 RSMo 1969 to revise and lower the rate of tax levy so as to produce the same amount of revenue as had been estimated on July 15,1975. Rela-tors contend that Respondents failed to revise the tax rate to take the increased tax assessment into consideration. Therefore, Relators brought a mandamus action to compel Respondents to revise and lower the tax rate by reason of the over ten percent increase in assessments.

The trial court initially issued an alternative writ of mandamus commanding Respondents to revise and lower the tax rate to comport with § 137.073. Subsequently, Respondents filed their return to the alternative writ specifically denying, inter alia, that the assessed valuation was increased by ten percent or more and that Relators had adequate remedy by way of paying the tax under protest.

Thereafter, upon motion of Relators, the trial court issued an order restraining Osage County and school district officials from distributing funds received based on the July 15, 1975 levy. The restraining order was subsequently dissolved, and Rela-tors do not challenge that action and, in fact, ask that it “be ignored.”

Finally, the trial court issued its order quashing the alternative writ and finding that the Relators “have a specific, adequate and efficient remedy at law to obtain substantially the relief sought in their Petition for Writ of Mandamus.” Relators have appealed from that order and raise the issue that payment of the taxes under protest is not an adequate remedy.

Limited to the specific facts of this case, we believe that the provisions of § 139.031 RSMo Supp.1975, allowing payment of the tax under protest, gives Rela-tors adequate remedy at law. As stated in John Calvin Manor, Inc. v. Aylward, 517 S.W.2d 59, 62 (Mo.1974): “Sec. 139.031 provides the taxpayer with a procedure whereby he can obtain an adjudication of the legality of a tax imposed upon him.” The court in John Calvin Manor v. Aylward, supra, specifically recited that § 139.031 provides an adequate remedy for adjudication of certain challenges to tax assessments, including the type of challenge before the court here. State ex rel. State Tax Commission v. Briscoe, 451 S.W.2d 1 (Mo. banc 1970), and State ex rel. Riney v. Anderson, 536 S.W.2d 161 (Mo. banc 1976), also note that if the individual taxpayer is overcharged by reason of a.tax rate based on a higher assessment, “he can have his day in court if he so desires by resort to the payment of taxes under protest procedure prescribed in” § 139.031. State ex rel. State Tax Commission v. Briscoe, supra at 5.

A writ of mandamus will be granted only upon the Relators showing a clear and specific right thereto. State ex rel. Dyke v. Spradling, 536 S.W.2d 839 (Mo.App.1976). It does not lie where there is another adequate remedy available at law. State ex rel. Crites v. West, 509 S.W.2d 482 (Mo.App.1974); State ex rel. Coffman v. Crain, 308 S.W.2d 451 (Mo.App.1958). And, of course, the issuance of an alternative writ of mandamus is always within the court’s discretion. Yefremnko v. Lauf, 450 S.W.2d 462 (Mo.App.1970). If adequate legal remedy exists for Relators through § 139.031, which it does, the trial court by finding adequate legal remedy available did not abuse its discretion in quashing the alternative writ of mandamus. State ex rel. Phillip v. Public School Retirement System, 364 Mo. 395, 262 S.W.2d 569 (banc 1953); State v. Terte, 351 Mo. 1089, 176 S.W.2d 25 (banc 1944).

Cases cited by Relators are not appropriate, for they either do not deal with mandamus, or an adequate remedy at law — such as offered by § 139.031 — was not available.

The judgment is affirmed.

KELLY and WEIER, JJ., concur.

      . Section 164.011 RSMo Supp.1975 requires school boards to prepare annually an estimate of the amount of money to be raised by taxation for the ensuing school year, together with the tax rate required to raise the estimated amount. The school board is required to send the estimate to the county clerk by July 15.

      . Section 137.073 provides in pertinent part:
      “Whenever the assessed valuation of real or personal property within the county has been increased by ten per cent or more over the prior year’s valuation, either by an order of the state tax commission or by other action, and such increase is made after the rate of levy has been determined and levied by the school board, ... or other bodies legally authorized to make levies, and certified to the county clerk, then such taxing authorities shall immediately revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy. Where the taxing authority is a school district it shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation. The lower rate of levy shall then be recertified to the county clerk and extended upon the tax books for the current year. ⅜ * ⅛ ’’

      . In their brief, Respondents assert that the increased assessment was only 9.86 percent, but the record is barren of such fact.

      . See Southwestern Bell Tel. Co. v. Feuerstein, 529 S.W.2d 371 (Mo.1975), on entitlement of a taxpayer to interest on taxes paid under protest.

      .It was also held in John Calvin Manor, Inc. v. Aylward, supra, that § 139.031 was not an exclusive remedy for challenge to a tax assessment, but that a suit for injunctive relief would also lie. Of course, Relators have asked us to ignore the issue of injunctive relief which was initially granted and then dissolved by the trial court.


author: DOWD, Judge.

text:
    In re the MARRIAGE OF Mary Carol HARKINS, Petitioner-Respondent, and Donald F. HARKINS, Respondent-Appellant.
    No. 37954.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 5, 1977.
    James A. Pudlowski, St. Louis, for respondent-appellant.
    Charles A. Lee, Jr., Clayton, Rudy D. Beck, St. Charles, for petitioner-respondent.
   DOWD, Judge.

Donald Harkins appeals from the decree dissolving his twelve year marriage to respondent, Mary Carol Harkins, arguing that the trial court erred in dividing the parties’ marital property and in awarding child support in the sum of $25.00 per week for each of the 3 minor children of the marriage.

In his first point on appeal, appellant challenges the trial court’s division of the marital property of the parties, arguing that the trial court failed to consider all of the factors enumerated in Section 452.330 RSMo Supp.1973 pertinent to the division of property. Appellant maintains that the court erred by awarding all of the marital property to respondent and by requiring appellant to assume a $2500 debt incurred during the marriage.

The major assets of the marriage are the family home, a 1974 Plymouth, and home furnishings worth approximately $1000. The trial court awarded all of this property to respondent. Evidently, the parties had kept separate bank accounts for some time, and the trial court made no award of sums held in bank accounts by either party. The parties owned no securities or insurance having an appreciable value.

We have reviewed the transcript and find no error in the division of martial property under the standard of review set forth in Blessing v. Blessing, 539 S.W.2d 699, 702[1-2] (Mo.App.1976). Section 452.-330 does not require an equal division of property but a just division. In re B.K.S. and D.D.S., 535 S.W.2d 534, 536[4] (Mo.App.1976); In re Vanet, 544 S.W.2d 236, 240[2] (Mo.App.1976); Davis v. Davis, 544 S.W.2d 259, 265[12] (Mo.App.1976).

Respondent was awarded the 1974 Plymouth, worth approximately $2000, owned in respondent’s name. Appellant had the use of an automobile through his employment.

Respondent was also awarded the family home and its furnishings worth approximately $1000. The house had been purchased in late 1974 at a price of $32,900, subject to a first deed of trust of $24,000. Respondent paid $7000 toward the down-payment and appellant paid $5000. The mortgage indebtedness had been reduced to approximately $20,000 at the time of the hearing. At that time, appellant had made 7 mortgage payments and respondent had made 6 mortgage payments. Respondent purchased most of the furnishings. Thus, appellant and respondent have both made substantial contributions toward the expenses of the family home. Respondent is to pay all mortgage payments in future.

Appellant was ordered to pay a $2500 loan obtained during the parties’ marriage. This loan was acquired in order to consolidate and refinance appellant’s debts incurred while appellant lived and worked for one year in Illinois.

After considering the respective contributions of both spouses to the acquisition of the marital property, the parties’ economic circumstances, the desirability of awarding the family home to the custodial parent, and the conduct of the parties during the marriage, we cannot say that the trial court abused its discretion in the division of marital property. § 452.330 RSMo Supp.1973; In re Vanet, supra at 240; In re B.K.S., supra at 536[6].

Appellant’s second point on appeal is that the trial court’s child support order “discriminated against [appellant] on the basis of sex, and violated [appellant’s] constitutional rights of due process under Amendments V and XIV to the Constitution of the United States and Article I, Section 10 of the Missouri Constitution, and also violated [appellant’s] right to equal protection under Amendment XIV of the Constitution of the United States” because the child support order indicated that the male parent is primarily obligated to support children born of a marriage. Appellant’s point relied on contends that the evidence before the trial court indicates that the trial court discriminated against appellant on the basis of sex, suggesting that Section 452.340 RSMo Supp.1973, the child support provision, was applied in an unconstitutional manner. The argument portion of appellant’s brief goes beyond the contention of the point relied on and challenges the constitutionality of Section 452.340 RSMo Supp.1973.

If appellant’s constitutional issue has been properly raised and requires consideration on its merits, the case must be transferred to the Supreme Court. Art. V, §§ 3, 5 Mo.Const.; Williams v. Williams, 498 S.W.2d 585, 587[3] (Mo.App.1973). However, to be preserved, a constitutional question must be raised at the first opportunity. Williams v. Williams, supra at 587[4], Appellant’s claim that Section 452.340 RSMo Supp.1973 is unconstitutional should have been raised in the pleadings prior to trial and is, therefore, not preserved for review. Williams v. Williams, supra at 588[5].

Appellant’s claim that Section 452.-340 RSMo Supp.1973 was applied in an unconstitutional t manner, resulting in an unconstitutional child support order, was raised at the first opportunity after the allegedly unconstitutional award was entered in appellant’s motion to amend the judgment or, in the alternative, for a new trial. Nevertheless, we believe that the Court of Appeals retains jurisdiction over this case because no real and substantial issue requires construction of either the United States or Missouri Constitutions. In re 516 S.W.2d 785, 787[1] (Mo.App.1974); Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760, 767[8] (Mo.App.1974). In order to deprive the Court of Appeals of its jurisdiction, the asserted constitutional question must be real and substantial and not merely colorable. Forbis, supra at 767[8].

Our examination of the transcript in the case at bar yielded no evidence indicating the trial court imposed the major child support obligation upon appellant. The trial court ordered appellant to pay $25.00 per week per child (a total of $75.00 per week) for the support of the 3 children of the marriage. Although appellant testified that it would take only $267.00 per month ($61.62 per week) to support the 3 children, respondent testified that $500 per month ($115.38 per week) was required to support these children. The trial court made no specific finding as to the amount required to support the children, but it is obvious that the court believed appellant’s estimate was too low. Our review of the transcript did not disclose any evidence indicating that such a decision by the trial court was an abuse of discretion. The amount of the child support order evinces a purpose to balance the needs of the children against the ability of the parent to pay support. L.J.S. v. V.H.S., 514 S.W.2d 1, 8[13] (Mo.App.1974). If the trial court agreed with respondent’s estimate of the amount necessary to support the children ($500 per month), the trial court’s order requiring appellant to pay $325.00 per month to support the children does require the appellant to pay more than half of the children’s expenses. However, if respondent’s activities and services as custodian of the children are considered, we do not believe that the award evinces a purpose to impose the major parental burden upon appellant.

We find no error in the dissolution decree and affirm the judgment of the trial court.

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

      . Appellant made the major contribution of funds to buy the parties’ prior residence. The proceeds from the sale of the prior residence were used to repay the $5000 loan obtained by the parties in order to make the downpayment on the parties’ present residence. The remainder of the proceeds from the sale of the prior residence (approximately $4000) was used to make improvements in the present residence.

      . Because respondent assumes the mortgage obligation, respondent will have paid approximately $30,000 toward the acquisition and furnishings of the family home when the mortgage indebtedness is paid. Appellant will have paid approximately $11,000.

      .Appellant earns a gross salary of approximately $14,000 a year as an automobile salesman. He has earned as much as $19,000 a year in prior years. Respondent’s gross income is approximately $12,000 a year. She works for Ira Berry.

      . One of six factors to be considered by the trial court in setting the amount of child support is “the father’s primary responsibility for support of his child”. § 452.340(1) RSMo Supp.1973.

      . Although Section 452.340 RSMo Supp.1973 does not list the custodial parent’s services as a factor to be considered in setting a support order, the factors enumerated in Section 452.-340 are not exclusive. In re Dodd, 532 S.W.2d 885, 888[4] (Mo.App.1976).


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Earl BURSLEY, Appellant.
    No. KCD 28183.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Application to Transfer Denied Oct. 12, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

On a jury-waived trial, Earl Bursley was found guilty on two counts of sodomy. He was sentenced to consecutive terms of 20 and 15 years. This appeal followed.

The state’s evidence was designed to show that events out of which the charges arose occurred August 3, 1973, at the Green Crest Motel in Jackson County, Missouri. Appellant Bursley was an itinerant trucker. He had employed two boys to assist him. One, Gary C-, then around 15 years of age, had been employed as a result of a chance meeting between Bursley and Gary’s mother in a Jackson County restaurant. According to Gary, Bursley told his mother that he was looking for some help. His mother suggested Gary and within an hour Gary was away on a trip with Bursley to St. Louis to get a load of used batteries. According to Gary, Bursley agreed to pay $5.00 per hour for his services.

The second boy, Robert M-, was employed as the result of arrangements a cousin made with Bursley. Robert was then around 13 or 14 years of age. According to Robert, Bursley agreed also to pay $5.00 per hour for his services.

(Some insight into the educational background of the boys is provided by Gary’s answer at trial to the question: “When does school start in the fall?” “I don’t know when it starts. I ain’t for sure when it started last year * * * because I don’t go to school that often.” and by Robert’s statement that he quit school “last year.” “Dad took me out because I wasn’t — I couldn’t learn nothing. I get all confused.” Robert also apparently had a speech impediment.)

Gary and Robert apparently made two trips between Kansas City and St. Louis, on one picking up used batteries in St. Louis and returning them to Kansas City. Gary accompanied Bursley on a trip to Oklahoma City. On their return from that trip they picked up Robert at his home in Peculiar, Missouri.

Between trips, Gary had been living with Bursley in a tent at Bursley’s parents’ residence. Upon the return from the Oklahoma City trip, Bursley and his parents got into a fight. Bursley and the boys left, and, along with Chuck Spiker, an associate of Bursley, they checked into Room 10 of the Green Crest Motel. According to Gary, they did so at around 4:00 P.M., August 3, 1973.

According to Gary, after they checked into the motel, Bursley suggested “more or less fun and games.” Gary disagreed. “Well, I tried to make a run for the door, and when I did, he grabbed me and he hit me with his fist and he beat me with a blackjack. And then he threw me on the bed and I just laid there. And then he masturbated me.” Asked whether or not Bursley committed an act of oral sodomy on him, Gary replied: “I don’t know. I was unconscious. When he hit me with his fists and then he hit me with the blackjack, I was unconscious, he threw me on the bed.” Gary stated that Bursley also beat Robert with the blackjack and his fists; threw him on the bed with Gary and made Robert perform an act of oral sodomy on Bursley.

Gary was then asked whether or not Bursley had oral sodomy with him. Gary replied: “This was later. He had sent Robert Marshall and Chuck Spiker out of the room. And then it occurred. * * * [Bursley] threatened to kill me if I wouldn’t let him. ⅝ * * I took off to run for the door, and he grabbed me and then he hit me up against the wall with his fists and then he grabbed the blackjack and that’s when he beat me with the blackjack.”

In response to questions by the court at the trial, Gary stated that, after they checked in at the motel, he, Robert and Chuck left the room and went swimming. When they returned to the room, they changed clothes. Bursley told Robert and Chuck to leave and then Bursley made the assault on Gary. The assault lasted 45 minutes to an hour. Robert and Chuck returned and Gary left the room. “That’s when it took place with Robert.” Gary didn’t see the assault on Robert.

Following an overnight adjournment, Gary resumed the stand and then stated that he had witnessed the attack on Robert and that Bursley made Robert commit oral sodomy on him and Bursley then committed anal sodomy on Robert. Asked why he had changed his story, Gary said: “Well, yesterday, I was pretty nervous, and mixed up, and I’m pretty — I’m-—I didn’t want to plain, blunt out say it. I was kind of shy. I was embarrassed.” He said also that he had talked to Robert that morning. “And he told me, when I come in here, he just said, ‘It ain’t going to do no good being shy and holding back.’ He said, ‘You got something to say, you say it.’ And that’s the only reason why you’ve changed your story, then, today? No, because I — I don’t want to see this happen again, him get out on the street.” Gary also stated in response to the court’s questioning that he was not unconscious following the beating: “I was nervous yesterday and I was speaking before I was thinking, but I was not unconscious.” He said that Spiker was not in the room during the assault but that he, Robert and Bursley were and that he saw Bursley beat Robert with the blackjack. He wasn’t sure whether Robert was in the room when Bursley beat Gary. Later Gary said Robert was not in the room when Bursley beat him.

According to Robert, when they got in the motel room, Bursley asked him to perform an act of sodomy and he refused. Bursley started hitting him and Gary with a blackjack. Bursley made a sexual assault on Gary. “[T]hen he made me get over there [on the bed], if I didn’t, he would hit me again, so I had to get over there and do what he said, because I didn’t want to get hit any more by him.” Bursley made Robert perform an act of oral sodomy on him and then he made an anal assault on Robert.

The sequence of subsequent events is somewhat difficult to reconstruct. However, after August 3, Gary made a trip to Denver with Bursley. Following that trip he returned home and for the first time told his mother of the August 3 events. Bursley was arrested on August 31 on the charges for which he was tried. At the time of Bursley’s arrest, a blackjack was found under the seat of his truck. Gary and Robert identified it as the blackjack used in the beatings.

Robert apparently made one further trip with Bursley. He went home following that, about two weeks after August 3, and told his father of the affair, but his father refused to believe him. Robert told his mother and she told him to stay home.

Bursley was charged in one count with sodomy upon Gary and in the other with sodomy upon Robert. At the trial held June 30,1975, Gary and Robert testified for the state. The only other evidence offered by the state showed that Bursley failed to appear for trial when the case was first set and had to be returned from Wyoming for trial.

As part of the state’s case, there was introduced in evidence the key to Room 10 of the Green Crest Motel, Bursley’s blackjack and the bill for the rental of the motel room.

The defendant offered no evidence. A motion for acquittal at the close of all the evidence was overruled. In ruling upon the motion the trial court stated:

“Mr. Katz, I would certainly agree with you about the fact that there appear to be many discrepancies in the testimony, particularly of [Gary], I can’t think of a time that I’ve heard a more bizarre tale of employment unfolded in the courtroom with regard to how these two boys were employed and the length of time that they worked and how they were treated during that period of time. It’s not a proper subject of this trial, but the cavalier attitude of the parents about what happened to these two boys, and the activities of their sons, is almost unbelievable. But inasmuch as the Court must pass on the credibility of the witnesses, as well as make its own individual findings, I can’t help but believe that, in my opinion, from observing [Robert] this morning, and his obvious impairments, I don’t think it would be possible for anybody to manipulate him to contrive a story that would stand up under cross-examination. I just don’t think he has the capacity to do it.”

On this appeal the sufficiency of the evidence is the sole point raised by appellant. Appellant relies upon the requirement in rape and sodomy prosecutions that corroborating evidence must be adduced when the complaining witness’s testimony is contradictory or unconvincing. 81 C.J.S. Sodomy § 5C(2), p. 378 (1953). See State v. Wilson, 361 Mo. 78, 233 S.W.2d 686, 688[4-6] (1950).

The trial court was fully aware of the problem to which the testimony of Gary and Robert gave rise. His statement recognized “discrepancies” in their testimony. Further evidence of the trial court’s concern is to be found in the extent of the court’s interrogation of the witnesses. In the transcript, 24 pages are devoted to the original examination, cross-examination, redirect examination and recross-examination of Gary. That is followed by 40 pages of interrogation of the witness by the court and the witness’s answers.

The defense produced depositions of the boys, taken in November, 1973. Discrepancies between Gary’s testimony at that time and his trial testimony as to the number and extent of the blackjack beatings were pointed out. There were also discrepancies about the length of time that Gary was home following the August 3 event before he left with Bursley on the trip to Denver. At the trial, he said about an hour, with Bursley always present. On his deposition he said he was' home for two days. In Robert’s deposition, he denied that Bursley performed the act of oral sodomy upon him, stating that Bursley wanted to but he (Robert) wouldn’t let him. In his deposition, Robert also had denied that Bursley struck him at the motel on August 3. When asked to explain the discrepancies, Robert stated: “I do not have no answer.”

Examination of the boys at the trial also brought out what appellant now states was a possible motive for their fabricating the charges — they were dissatisfied because Bursley had failed to pay them what he had agreed. On cross-examination of Gary, he was asked:

“Q Okay. Did he pay you at the end of every trip?
“A He never did pay me. I think out of — he might have give me five dollars at one time.
“Q And how much at another time?
“A That would — a dollar, or 50 cents, you know, to. get a coke or something like that.
“Q So he did pay you at different intervals throughout your employment, is that what you’re telling the Court?
“A Yes. But — you know, it wasn’t enough to — for the work that I was doing. Like I didn’t get enough money to go buy a steak dinner.
“Q Did that upset you, that he didn’t pay you?
“A Yes, it did, because I was looking forward to getting a car.
“Q I see. It’s still upsetting you then, now?
“A (Witness nods head affirmatively.)
“Q Pardon me?
“A Yes, it is.”
Robert testified:
“Q Okay. Did you ever receive any payment from Mr. Bursley?
“A Once in that time, but that’s about all.
“Q One time?
“A Yes.
“Q How much did you receive at that time?
“A Sometimes he gave me $25.00 or something like that, and that’s about all.
“Q Did he give you money from time to time to get something to drink and something to eat?
“A Yes. Sometimes.
“Q How many times?
“A About five or six times.”

Subsequently he said that Bursley paid him $25.00 “four or five times.”

Although the rule which appellant would apply in this case has been criticized as an “exception to the general rules governing appellate review” (State v. Platt, 496 S.W.2d 878, 880 (Mo.App.1978)) and although application of the rule has produced relatively infrequent instances in which it provides the basis for overturning a conviction for a sexually related offense (see, for example, State v. Tevis, 234 Mo. 276, 136 S.W. 339 (1911); State v. Donnington, 246 Mo. 843, 151 S.W. 975 (1912); State v. Guye, 299 Mo. 348, 252 S.W. 955 (1923); State v. Burton, 355 Mo. 467, 196 S.W.2d 621 (1946)), there has been no rejection of the rule by the Supreme Court of this state (see, for example, State v. Neal, 484 S.W.2d 270, 272[5] (Mo.1972); State v. Gray, 428 S.W.2d 776, 781[5] (Mo.1908)).

That there were contradictions in the testimony of the two prosecuting witnesses is clear. Gary first testified one way and then another as to whether or not the beating rendered him unconscious, whether or not he was present when Robert was assaulted and whether or not Robert was present when he was assaulted. Gary attempted to explain away his inconsistent testimony, but Robert made no explanation for his deposition answers in which he had stated that he successfully resisted appellant’s attempts to assault him.

As above noted, the trial court obviously recognized the problems involved in Gary’s first version, i. e., that he was rendered unconscious by the beating and did not know what happened thereafter. Questioning by the trial court produced further inconsistencies which the prosecutor then felt called upon to explain. Gary’s explanation of his different testimony in response to the prosecutor’s questioning following the court’s examination that Robert told him not to be shy or hold back also must be viewed in the light of Robert’s denial of such a conversation.

In the light of the discrepancies and inconsistencies in the witnesses’ testimony, the rule requiring corroboration must be applied. See State v. Guye, supra; Goltrane v. United States, 135 U.S.App.D.C. 295, 418 F.2d 1131 (1969). Corroboration is wholly lacking. Although the sufficiency of the evidence was not an issue in the recent cases of State v. Dayton, 535 S.W.2d 469 (Mo.App.1976), and State v. Dayton, 535 S.W.2d 479 (Mo.App.1976), the nature and extent of corroboration of the prosecuting witnesses in those cases are in marked contrast with the present case. The fact that physical evidence tended to show that the parties were at the Green Crest Motel would show at best only opportunity to commit the offenses and does not corroborate that the crimes did occur. The testimony of each of the boys as to the whereabouts of the other during the alleged assaults is so contradictory as to preclude corroboration of one by the other, if such means of corroboration is available. See 30 Am.Jur.2d Evidence, § 1156, p. 332 (1967).

Appellant’s flight does not produce the necessary corroboration in this case in view of the glaring contradictions and inconsistencies in the state’s evidence.

“The judgment is, therefore, reversed and the cause remanded for a new trial, and unless stronger evidence is adduced the court should direct an acquittal of * * * [the defendant].” State v. Burton, supra, 196 S.W.2d 623[2].

Reversed and remanded.

All concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    Solomon SLATER et al., Appellants, v. CITY OF ST. LOUIS, a Municipal Corporation, et al., Respondents.
    No. 37949.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 25, 1977.
    Motion for Rehearing or Transfer Denied March 15, 1977.
    Application to Transfer Denied May 10, 1977.

      Hearns, Padberg, McSweeney & Slater, Edward P. McSweeney, St. Louis, for appellants.
    Jack L. Koehr, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for respondents.
   ALDEN A. STOCKARD, Special Judge.

Plaintiffs have appealed from the judgment of the trial court dismissing their petition for a declaratory judgment.

Plaintiffs are employed by the City of St. Louis as members of what they call the “Airport Police.” Defendants are the City of St. Louis, the members of the Civil Service Commission of the City of St. Louis, and the members of the St. Louis City Airport Commission.

Plaintiffs allege that the “Airport Police” was originally created as a “Security Force” to perform watchman and general security duties at Lambert-St. Louis Airport, but that now their duties and training, the powers they exercise, and “the pressures, hazards and risks as police officers” correspond to or are greater than the duties of Municipal Police Officers of the City of St. Louis and St. Louis County, and that on a “corresponding basis” their “average salaries” are substantially less than the salaries of the police officers of Metropolitan St. Louis. They further allege that the Civil Service Commission of the City of St. Louis recommended, and the City approved the recommendation, that plaintiffs be classified differently from and paid less than police officers of Metropolitan St. Louis, and such classification is arbitrary, capricious and unreasonable. Plaintiffs then allege that by reason of their compensation being less than that of the officers of the Metrópoli-tan Police they have been deprived of equal protection of the law in the violation of the Fourteenth Amendment of the Constitution of the United States, and that the defendants have violated Art. XVIII, § 2(b) of the Charter of the City of St. Louis which, they allege, provides for “like pay for like work.”

The prayer is for a declaratory judgment that “the City of St. Louis be required to compensate plaintiffs commensurate with their duties and functions and at the same rates and pay scales afforded police officers of the Metropolitan Police Department of the City of St. Louis,” and for a judgment that Ordinance No. 56774 establishing a classification for plaintiffs is unconstitutional to the extent that it provides a compensation to plaintiffs at a rate less than that afforded to the St. Louis Metropolitan Police Officers.

Included in the petition are allegations, properly belonging in a separate count, that Art. VIII, § 2 of the Charter of the City of St. Louis requires all employees of the City to reside in the City; that the provision has been waived in the past by the Civil Service Commission but is presently applied to the plaintiffs and other city employees; and although the residency requirement “is neutral and nondiscriminatory on its face, because of its episodic and uneven application, it has served to deprive the Airport Police officers of equal protection of the law contrary to the 14th Amendment of the United States ■ Constitution.” There is a prayer that the residency requirements of the City Charter be judged to be “inapplicable to plaintiffs.”

We take judicial notice that St. Louis is a constitutional charter city operating pursuant to Art. VI, §§ 31, 32(a) and (b), of the Constitution of Missouri, 1945. Art. XVIII, § 4(a) of the Charter provides that the Board of Aldermen shall adopt a plan of compensation fixing the rates of all employees in the classified service (which includes the airport security force) on recommendation of the Civil Service Commission. The fixing of the compensation to be paid the security force at Lambert-St. Louis Airport is a legislative function in which the Board of Aldermen has a wide discretion. City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539 (banc 1947).

We also take judicial notice that the police force of the City of St. Louis is under the control and supervision of a police board consisting of four commissioners appointed by the Governor, and the mayor as an ex-officio member, and that the compensation to be paid to members of the police force is not determined by the City of St. Louis or any of its agencies, but by the General Assembly of the State of.Missouri. See §§ 84.010-84.240 RSMo 1969, and State ex rel. St. Louis Fire Fighters Association Local No. 73, AFL-CIO v. Stemmler, 479 S.W.2d 456 (Mo.banc 1972). We shall also take judicial notice that the Supreme Court of this State has judicially determined the purpose of the retention by the State of control over the St. Louis Police Force, and the legality of such action. In State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S.W. 524 (1899) the court stated that “Laws * * * providing a metropolitan police system for large cities, are based upon the elementary proposition that the protection of life, liberty, and property, and the preservation of the public peace and order, in every part, division, and subdivision of the state, is a governmental duty, which devolves upon the state, and not upon its municipalities, any further than the state, in its sovereignty, may see fit to impose upon or delegate it to the municipalities. The right to establish the peace and order of society is an inherent attribute of government, whatever its form, and is co-extensive with the geographical limits thereof, and touching every part of its territory. From this duty, existing in the very nature of the state government, flows the corresponding power to impose upon municipalities of its own creation a police force of its own creation, * * * .”

The General Assembly has created a separate classification, consisting of the police force of the City of St. Louis, because its functions and operations are of general State concern, and as to that classification it has retained control and supervision, including the determination of the compensation to be paid to the members of that force. The State of Missouri, by permitting the people of St. Louis to write their own charter for their city government subject to certain restrictions, State ex rel. St. Louis Fire Fighters Association Local No. 73, AFL-CIO v. Stemmler, supra, have delegated to it the governmental functions and duties of local concern and application. Thus we have the City exercising legislative control over matters of local concern, but the State retaining legislative control of police functions considered to be of general concern.

The equal protection clause of the Fourteenth Amendment “does not require an exactly equal treatment of all citizens, but * * * the legislature may create certain classes and may make laws applicable to some but not all of such classes provided that the principle of classification rests upon some real difference ‘which bears a reasonable and just relation to the act in respect to which the classification is proposed.’ ” State ex inf. McKittrick v. Kirby, 349 Mo. 988, 163 S.W.2d 990, 994 (banc 1942). See also the discussion in 16 Am.Jur.2d Constitutional Law § 494, and particularly the statement that “The guaranty [of equal protection of the laws] does not intend to take from the states the right and power to classify the subject of legislation. It does not prohibit or prevent classification, provided such classification of persons and things is reasonable for the purpose of legislation, is based on proper and justifiable distinctions, considering the purpose of the law, is not clearly arbitrary, and is not a subterfuge to shield one class or unduly burden another or to oppress unlawfully in its administration.”

When we take into consideration the allegations of the petition, the matters previously referred to of which we may and do take judicial notice, and recognize that in the exercise of its legislative discretion the State has retained control and supervision by the General Assembly of the St. Louis Police Force because of the compelling State interest and concern, but has delegated to the City of St. Louis the control and supervision of matters of local concern, we conclude that such classification is permissible and proper, and for that reason the equal protection clause of the Fourteenth Amendment does not destroy or take away from the City of St. Louis its legislative discretion in determining the compensation to be paid members of the security force at Lambert-St. Louis Airport.

We find no merit to plaintiffs’ contention that the difference between the compensation paid to them and to the St. Louis Police Force violates Art. XVIII, § 2(b) of the Charter of the City of St. Louis. That provision, which is one of the enumerated “principles and policies” to promote “a modern and comprehensive system of personnel administration for the city,” is that “fair and equitable rates of pay shall be provided with due consideration of both the employes and the taxpayers and with due observance of the principle of like pay for like work, and suitable differences in pay for differences in work.” This “principle” clearly implies that in fixing the compensation of employees there should exist an element of discretion. But, if the compensation for the St. Louis Police Force, as determined by the General Assembly, must be applied arbitrarily to the security force at Lambert-St. Louis Airport, no discretion exists. The “principle” can apply only when the Board of Aldermen has the authority to determine the compensation to be paid both groups which are alleged to be comparable. By its wording the provision does not purport to require identical compensation, and plaintiffs have not alleged facts which would invalidate the discretionary determination of compensation to be paid to plaintiffs.

We also find no merit to the contention that the residency requirements violate plaintiffs’ constitutionally protected right to equal protection of the laws. In McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976) the Supreme Court of the United States upheld against constitutional attacks the right of a city to require its employees to reside within the city. In addition, plaintiffs admit in their pleadings that the requirement is being enforced equally as to all employees of the city. Therefore, there is no discrimination against plaintiffs as a class, and the equal protection clause is not applicable.

The judgment is affirmed.

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


author: STEWART, Judge.

text:
    Joseph B. GAMACHE, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 37832.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 1, 1977.
    Motion for Rehearing or Transfer Denied March 15, 1977.
    Application to Transfer Denied May 10, 1977.
    Robert C. Babione, Public Defender, Mary Louise Moran, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., J. A. Roche Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Petitioner appeals from the denial of his motion under Rule 27.26 to vacate the judgment which convicted him of Robbery First Degree. The trial court denied the motion without an evidentiary hearing. We affirm.

The petitioner contends that “The trial court erred in overruling appellant’s 27.26 motion to vacate and denying him an evi-dentiary hearing because his conviction was unconstitutionally obtained by the use of prior counselless convictions to evidence his guilt and to impeach his credibility.”

In May of 1973 defendant was tried and convicted by a jury of Robbery in the First Degree and was sentenced to 15 years in the custody of the Department of Corrections under the Second Offender Act. This conviction was affirmed upon direct appeal. State v. Gamache, Mo.App., 519 S.W.2d 34 (1975).

In the trial of the case defendant testified on direct examination that he had been previously convicted of the felony of assault. He further testified that he had not been convicted of any other felony. On cross-examination he again denied that he had been convicted of any other felony. He subsequently admitted that he was convicted of something in California but he did not know if it was a felony. That conviction arose out of a burglary. Petitioner further testified that he “had been convicted for some peace disturbance.” After a number of evasive answers he testified that he had been in the workhouse in St. Louis but he didn’t remember when. He was there more than once. He was asked if he were there for “a felony or misdemeanor” he answered, “some tickets.” The Court explained to petitioner that counsel was not asking for traffic offenses. Petitioner explained that in California he was convicted of the burglary and in May of 1965 was sentenced to 40 days for assault and battery. Defendant did not contend that any of his convictions was invalid because he was not represented by counsel. The objections made during this line of questioning were primarily that defendant was not aware of the difference between a misdemeanor and a felony. Petitioner did not contest the validity of the impeaching convictions at trial or post-trial nor did he raise the issue as plain error on direct appeal.

A felony conviction obtained without the assistance of counsel is invalid unless there is a waiver of that right. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). A conviction which is invalid under Gideon may not be used to convict an accused pursuant to the Second Offender Act, Section 556.280, KSMo.1969. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). It is now clear that such an invalid conviction may not be used to impeach defendant’s credibility. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972).

The question presented to this court however is whether a defendant, in a criminal trial, may refrain from objecting to evidence of prior convictions, used for the purpose of impeachment, on the ground that they are constitutionally invalid, go through post-trial motions and appeal without raising the issue and then raise the question for the first time on a motion under Rule 27.26.

A defendant is usually in the better position to know whether he had been convicted without the assistance of counsel, or without an intelligent waiver of his 6th Amendment Right. Defendant here in his motion offered no explanation for his failure to raise the issue in the underlying case. At the trial defendant alone knew whether he was going to testify on his own behalf. He knew that if he testified he would be subject to cross-examination as any other witness, that in cross-examination he could expect to be impeached by prior convictions, if any. State v. Busby, 486 S.W.2d 501 (Mo. 1972); § 546.260 RSMo.1969. He was in a position to raise the question of the validity of any convictions which he may have had at the trial.

Defendant’s failure to raise this issue at some stage of the proceedings in the underlying case constitutes a bypass of orderly state procedure; thus this case is ruled by McCrary v. State, 529 S.W.2d 467 (Mo.App.1975). We can add nothing to the scholarly dissertation of McCrary.

The obligation of raising an issue such as thjs does not place an undue burden upon a defendant in a criminal case. To the contrary it serves to bring about a more expeditious disposition of criminal cases.

The trial court did not err in overruling petitioner’s motion without an evidentiary hearing.

The judgment is affirmed.

McMILLIAN, P. J., and RENDLEN, J., concur.

      . This previous conviction which formed the basis of his conviction under the Second Offender Act is not brought into question here.

      . “Q. Have you ever been convicted of anything else whether it was a felony or a misdemeanor, any other felonies or misdemeanors that_other than these two?
      A, Yes.

      A. I have been convicted for some peace disturbance.
      Mr. Bobinette: I would object, your Honor, at this time_may I approach the bench?
      The Court: Yes.
      (The following proceedings took place at the bench outside the hearing of the jury:)
      Mr. Bobinette: My objection is that Mr. Ga-mache is not aware of what the difference is between a misdemeanor and a felony, the peace disturbance which he has related • to could possibly_

      Q. (by Mr. Brown) Mr. Gamache, have you ever been convicted of any other felonies or misdemeanors?
      Mr. Bobinette: Your Honor, I would object unless they are defined to the defendant, what a misdemeanor and felony is.

      Q. (by Mr. Brown) All right. Well, have you ever been_that burglary and assault of a police officer or felony; is that correct?
      Mr. Bobinette: Objection, there is no showing of that
      The Court: Just ask him, Mr. Brown, and let’s get along with the case.
      Q. (by Mr. Brown) All right. Were you convicted in California as a result of this incident occurring on May 13th, 1965, of assault and battery and sentenced to 40 days?
      A. Yes, sir.”