author: HOLMAN, Judge. SEILER, Judge

text:
    KANSAS CITY, Missouri, Respondent, v. Marcia K. LaROSE, Appellant.
    No. 58599.
    Supreme Court of Missouri, En Banc.
    June 17, 1975.

      Aaron A. Wilson, City Atty., Louis W. Benecke, Asst. City Atty., by Walter J. O’Toole, Jr., Asst. City Atty., Kansas City, for respondent.
    Morgan & Wall, William B. Morgan, Roger Wall, Independence, for appellant.
   HOLMAN, Judge.

Appellant (hereinafter referred to as defendant) was convicted in police court upon charges of (1) disorderly conduct and (2) hindering and interfering with a police officer in the discharge of his official duties. She appealed and upon trial de novo the circuit judge sustained a motion to dismiss the disorderly conduct charge at the close of the city’s case and a jury found defendant guilty of the other charge and a fine of fifty dollars was assessed. Defendant appealed to the Court of Appeals, Kansas City District and that court adopted an opinion reversing the conviction because it concluded that the ordinance involved was in conflict with the state statute on the same subject and hence was void. The appeals court, however, transferred the case here for the reason that it considered its decision to be in conflict with certain cases decided by the St. Louis District of the Court of Appeals. We decide the case here the same as on original appeal. We affirm.

The following is a sufficient statement of the evidence. Patrolman Gerald Oliver, of the Kansas City Police Department, testified that at about 11 p. m. on January 20, 1972, he and Officer Moss were parked in separate cars in front of a mattress company at 3201 Gillham Plaza; that an individual reported to them that he had seen a prowler in the alley behind the building; that he drove through the alley behind the building to see if there was any appearance of a law violation; that when he saw no signs of the building having been entered he proceeded to check a party he had seen walking away from that area; that he found that person in front of the defendant’s residence at 3258 Gillham Road; that as he drove toward the subject in order to question him, the person (later identified as James Carrillo, a son of the defendant) turned and yelled to him as follows: “F-you cops, you Mother F-ing pig.”

Officer Oliver further testified that he informed James that he was under arrest for disorderly conduct and then radioed to Officer Moss to come and assist him. As he got out of the car he told James to stop, but instead the youth ran into the house; that Officer Casselman was the first to respond to his radio message and the two of them went onto the front porch and found the defendant standing on the inside of the locked front door of the residence; that they told her that they had arrested the young man and desired entry in order to take him into custody; that she refused to let them in, saying that they needed a warrant. The front door was constructed with approximately 6 inches of wood frame, with all of the remainder being glass; that they talked with the defendant for at least 5 minutes and were unable to gain entry and were reluctant to break the glass for fear of injuring defendant; that they could see three boys in the living room and saw that two of them had armed themselves with knives and one with a catsup bottle; that they could hear the boys saying “Come in, you pigs, we’ll get you.”

The officer further testified that by this time several other officers had arrived and he and Officer Liss went around to the back door to try to gain entry but found it locked; that they then heard a noise from the front of the house indicating that the door was being forced open and they then forced their way into the house; that one of the boys lunged at Officer Casey with a knife and another struck Officer Casselman in the mouth with his fist; that the boys were taken into custody and removed to the front sidewalk awaiting arrival of the paddy wagon to take them to the station; that during all of this time, the defendant was screaming and yelling and from time to time using obscene language. A crowd of twenty or twenty-five people gathered outside before the defendant and the boys were taken away.

Several other officers testified and corroborated the testimony of Officer Oliver. One officer testified that defendant called them “M-F-ing Pigs” and another officer stated that defendant said “You are a bunch of bastards.”

The three boys (ranging in age from 13 to 16), two neighbors and defendant testified on the defendant’s case. It was conceded that James had used the obscenities attributed to him but he and his mother stated that at the time he was on the front porch. Much of the other testimony adduced by the city was denied by defendant’s witnesses. They all denied that the boys had knives or a bottle or that any of them sought to attack the police with knives or struck any officer with their fists.

The first point briefed by defendant is that the court erred in failing to sustain her motions for judgment of acquittal because the complaint was insufficient in that it failed to allege the “essential facts and specific conduct of defendant claimed to be in violation of the ordinance.”

The information alleged “That on or about 1-20-72 at 3258 Gillham at about (time) 23:30 defendant did unlawfully within the aforesaid city, county and state commit the following offense: Hinder and interfere with a K.C.Mo. Police Officer who was in the discharge of his official duties by attempting to prevent a party from being arrested by that officer, in violation of Section 26.35 Revised Ordinances of Kansas City, Missouri.” The relevant portion of the ordinance is as follows: “Section 26.35. Obstructing and Resisting City Officer.

“(a) Any person who shall in any way or manner hinder, obstruct, molest, resist or otherwise interfere with any city officer or inspector or any member of the police force in the discharge of his official duties shall be guilty of a misdemeanor.”

We rule that the information was sufficient. Rule 37.18, V.A.M.R., provides that an information in municipal courts shall be a definite written statement of the essential facts constituting the offense charged. This court has held that in this type of case the same strictness is not required as in a criminal prosecution and that a complaint is ordinarily sufficient if it describes the act complained of in the language of the ordinance. City of Springfield v. Stevens, 358 Mo. 699, 216 S.W.2d 450 (1949); City of St. Joseph v. Blakley, 486 S.W.2d 511[5] (Mo.App.1972). In the instant case the charge substantially follows the words of the ordinance. It would have been more complete if it had named the officer involved and the person he sought to arrest. If defendant, however, had desired more detailed information she should have filed a motion seeking a bill of particulars or a more definite statement. We have said that “When a defendant does not request a bill of particulars or otherwise attack the sufficiency of an information prior to judgment, he waives any claim he may have had for a more definite and certain statement of the offense or cause of action alleged.” Kansas City v. Stricklin, 428 S.W.2d 721, 726 (Mo.1968).

The cases cited by defendant are all distinguishable. It is interesting to note, however, that in one of them the court held a complaint sufficient that alleged “careless and heedless driving — by failing to yield right-of-way.” See City of Independence v. Peterson, 437 S.W.2d 168 (Mo.App.1969). It appears to us that the instant charge is more complete than the quoted one. As indicated, we rule this point against defendant.

Defendant’s next point is that the court erred in failing to sustain her motions for judgment of acquittal because “The ordinance was void in that it contained no requirement of a mental element and was thereby in conflict with the state law on the offense of hindering and obstructing and a denial of defendant’s right to due process of law . . The basis of this claim is that Section 557.210, RSMo 1969, V.A.M.S. which proscribes resistance to officers in the service of process and in the discharge of certain other duties contains a requirement that such be “knowingly and willfully” done. The ordinance, supra, does not contain those words.

It is, of course, well settled that a municipal ordinance must be in harmony with a general law of the state upon the same subject and is void if in conflict therewith. See Section 71.010, V.A.M.S. There is, however, a great conflict of authority in the determination of the specific situations which come within that rule.

At the outset of our consideration of this contention there are certain well established rules or principles which should be stated. Where its language will permit an ordinance should be construed so as to uphold its validity as against a construction which would invalidate it. Zinn v. City of Steelville, 351 Mo. 413, 173 S.W.2d 398[10] (1943). In 62 C.J.S. Municipal Corporations § 143, p. 294 the rule is stated as follows: “Ut res magis valeat quam pereat [that the thing may rather have effect than be destroyed] is uniformly applied by the courts to sustain, as being consistent with the general laws and constitution, wholesome bylaws enacted to suppress disorderly conduct, provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of the municipality.”

It is, of course, elementary that cities in enacting ordinances need not follow the exact words of a statute upon the same subject in order to avoid invalidity by reason of conflict. The cases hereinafter discussed demonstrate that many variances are permissible.

For convenience of discussion the ordinance and statute are set out as follows:

THE STATUTE
Section 557.210 (emphasis ours)
If any person or persons shall knowingly and willfully obstruct, resist or oppose any sheriff or any other ministerial officer in the service or execution, or in the attempt to serve or execute any writ, warrant or process, original or judicial, or in the discharge of any other duty in any case, civil or criminal, other than felony, or in the service or attempt to serve any order or rule of court in any case, every person so offending shall, on conviction, be adjudged guilty of a misdemeanor.
THE ORDINANCE
Section 26.35
(a) Any person who shall in any way or manner hinder, obstruct, molest, resist or otherwise interfere with any city officer or inspector or any member of the police force in the discharge of his official duties shall be guilty of a misdemeanor.

It is apparent that the statute and ordinance were not designed to precisely cover the same area. Obviously, the statute was primarily enacted in order to proscribe obstruction in the service or execution of various types of process. We will assume, however, that the provision “in the discharge of any other duty in any ease” would include an arrest of the type here involved. The ordinance, on the other hand, is very general in its application. It applies to any interference with any city officer as well as members of the police force in the discharge of any official duty.

While, as stated, the statute requires that the act be knowingly and willfully done and the ordinance does not contain those words, we have concluded that no conflict exists which would invalidate the ordinance. It is clear that any violation of the statute would also be a violation of the ordinance. In that regard they are entirely consistent. The ordinance has simply gone further and prohibited interference in cases where will-fullness is not shown.

“ . . . [W]here both an ordinance and a statute are prohibitory, and the only difference between them is that the ordinance goes further in its prohibition but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective.” 56 Am. Jur.2d, Sec. 374, p. 409. Cases cited as supporting the stated rule include City of Baltimore v. Sitnick, 254 Md. 303, 255 A.2d 376 (1969) where an ordinance was held valid which established a higher minimum wage than the state law. Taggart v. Latah County, 78 Idaho 99, 298 P.2d 979 (1956) which held an ordinance valid that prohibited the sale of beer during hours in which the sale would have been permissible under a state statute, and Phelps, Inc. v. City of Hastings, 152 Neb. 651, 42 N.W.2d 300 (1950) which also held that an ordinance imposing stricter liquor regulations than the state statute was not inconsistent with the act. See, also, City of Charleston v. Jenkins, 243 S.C. 205, 133 S.E.2d 242 (1963).

In Vest v. Kansas City, 355 Mo. 1, 194 S.W.2d 38 (1946) this court held that an ordinance which made stricter requirements than the state law in regulating the barber trade was not invalid because of conflict. The court in City of St. Louis v. De Lassus, 205 Mo. 578, 104 S.W. 12 (1907) held an ordinance valid which forebade keeping meat markets open after 9 a. m. on Sunday whereas the state law made it unlawful to sell merchandise at any time on Sunday. To like effect is City of St. Louis v. Scheer, 235 Mo. 721, 139 S.W. 434 (1911) which held an ordinance that required milk to contain 8.5 per cent solids not to be invalid because of conflict by reason of the state law requiring 8.75 per cent solids.

Considering cases specifically in point we find three “disturbing the peace” cases which squarely support the conclusion we have reached. In Mayor, etc., of City of Glasgow v. Bazan, 96 Mo.App. 412, 70 S.W. 257 (1902) the ordinance prohibited disturbing the peace by loud noise, etc., while the state statute used the word willful in proscribing a peace disturbance. The court in ruling that the ordinance was not void by reason of conflict discussed the conflict statute (now section 71.010) and stated that: “The section was only intended to keep city ordinances in harmony with the state law on the same subject, and thus avoid confusion, and, perhaps, conflict, in the administration of that part of the law. In this case we consider the ordinance aforesaid to be in harmony with the statute. They each, in a general way, cover the same subject, and have the same object. There is no conflict between the two laws, and certainly the ordinance is not out of harmony with the statute.” 70 S.W. 258. Precisely the same question was ruled in the same manner in City of St. Louis v. Page, 259 S.W.2d 98[2] (Mo.App.1953) and City of St. Louis v. Goldman, 467 S.W.2d 99[4] (Mo.App.1971).

Our view is also supported by the case of City of Linneus v. Dusky, 19 Mo.App. 20, wherein an ordinance prohibiting carrying concealed weapons was held valid and not in conflict with a similar state statute although the statute provided that it would be a defense to show that it was necessary for the defendant to carry the weapon for self defense and the ordinance contained no such provision. We also think it is significant that a respected text writer, although acknowledging contrary authority, has concluded that “The fact that state law penalizes only willful violations and that local law does not require proof of willfulness does not make the local inconsistent with the state law.” Vol. 6 McQuillin, Municipal Corporations, 3rd Ed. Sec. 23.07, p. 423.

Defendant primarily relies upon the case of City of Cape Girardeau v. Pankey, 224 S.W.2d 588 (Mo.App.1949) in which the ordinance simply provided that “It shall be unlawful for any person to trespass upon private property, etc.” whereas the state statute provided that “ ‘Every person who shall willfully and maliciously, or wantonly and without right, enter the premises of another, and cut, take away, destroy, injure or mutilate any fruit tree, ornamental or shade tree, shrub or vine,’ etc.,” p. 589. In ruling the ordinance void the court stated that “It is the established policy of our State that in order to constitute actionable trespass the act must not only be willfully or maliciously done, but it must result in injury, or at least threatened injury, to the person or property of another. This ordinance is not in harmony with such policy.” p. 589. We think this case is distinguishable from the cases cited above and from the instant case. The decision was based upon an established state policy which not only required willfulness but malice and injury. There is no applicable state policy in the situation before us. This is indicated by statutes similar to Section 557.210 (contained in the same chapter) which do not require willfulness, i. e., Sections 557.230, 557.240, 557.250, 557.260, 557.270, 557.280, 557.300, 557.310, 557.320 and 557.330. The last cited section which prohibits the aiding of a prisoner in escaping from an officer comes close to being applicable to the facts in this case and, as stated, it requires no intent.

As indicated, we rule this point against the contention of defendant.

Defendant also claims that the court erred in failing to sustain her motions for judgment of acquittal because (1) the officer was not in the performance of a lawful duty since he could not have been attempting to make an arrest for a crime committed in his presence because no crime had been committed and (2) there was not sufficient evidence to show any affirmative act of interference by defendant who was entitled to refuse to assist officers wanting admission to her house without a warrant.

We doubt the necessity of making a technical determination that James had committed an offense since it appears that Officer Oliver could reasonably have concluded that he was guilty of disorderly conduct. Moreover, it was held in a recent case that a defendant did not have a right to interfere with an officer making an arrest even if the arrest was illegal. See City of St. Louis v. Treece, 502 S.W.2d 432[1] (Mo.App.1973). It appears, however, that under the decision in State v. Bennett, 468 S.W.2d 23, 25 (Mo.1971) James had committed an offense and was lawfully arrested. Therein it is said that “Appellant was not unlawfully arrested . . . What happened was that Officer Daniels initially questioned Appellant without incident. It was thereafter that appellant used offensive, abusive and insulting behavior in the presence of the officers. . . . Under § 39.120(1) [Ord. 24846, 9-30-60] of the Revised Ordinances of Kansas City it is disorderly conduct if one ‘Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior.’ Appellant was clearly violating this ordinance at the time of his actual arrest and detention.”

Defendant says that the officers had no right to enter her house without a warrant and therefore she was within her rights in refusing to admit them. We do not agree. “It is well settled that a police officer . . . may make a peaceable or forcible entry to search any premises without a search warrant, for the purpose of arresting one accused of felony, or guilty of a breach of the peace or misdemeanor committed in his presence. . . . Where a prisoner under civil or criminal arrest escapes from the custody of the officer or person making the arrest, such officer or person may, on fresh pursuit, make a search without a warrant, of any premises in which he has reasonable ground to believe the prisoner is hiding, and for that purpose may, after due demand for admission and refusal, force an entry to the building or premises to be searched.” Anno. 5 A.L.R. 263, 273. We rule that the officers had a right to enter defendant’s home under the circumstances presented.

It is also defendant’s contention that she was not guilty because she merely refused to assist the officers and did not affirmatively resist them. Again, we do not agree. According to defendant’s own testimony she was on the porch when James shouted the obscenity and that they then entered the house. It is reasonable to conclude that one of them locked the door very shortly before the officers sought to enter. Since we have ruled that the officers had a right to enter it is our view that defendant’s actions in standing in the doorway and refusing to unlock the door and permit them to enter upon their reasonable request constituted conduct which hindered and interfered with the discharge of the duty of the officers to take James into custody.

It is also suggested that defendant was not guilty because she had no actual knowledge that she had a duty to admit the officers. “It is a rule which is deep in our law, that ignorance of the law or mistake of law is no excuse, furnishes no exemption from criminal responsibility, and is ordinarily no defense to a criminal prosecution, since, as stated infra § 586, everyone is presumed to know the law of the land, both common and statutory.” 22 C.J.S. Criminal Law § 48, p. 183.

We rule this point contrary to defendant’s contentions.

The next point briefed is that the court erred in admitting in evidence the two knives taken from defendant’s sons. These knives were offered in connection with the testimony that the two boys had armed themselves with knives. An objection that the exhibits were irrelevant was made and overruled. We rule, that under the circumstances here shown, the knives were admissible because the acts, statements and conduct of the three boys were admissible as being so closely connected with the two offenses with which defendant was charged as to constitute a part of the res gestae. See, State v. Cruts, 288 Mo. 107, 231 S.W. 602[3] (1921), State v. Lorton, 274 S.W. 383 (Mo.1925) and State v. Terry, 472 S.W.2d 426[7] (Mo.1971). Moreover, even if we should assume that they were not admissible, their admission would not have been prejudicial because there was other testimony, admitted without objection, that the boys were armed with knives. Harris v. Goggins, 374 S.W.2d 6[11] (Mo.1963); Billings v. State, 503 S.W.2d 57[5] (Mo.App.1973).

During the examination of Officer Moss a question was asked concerning his response to the call for assistance from Officer Oliver. Thereafter the following occurred:

“A. He told me to come back to Gillham, I am having trouble.
“Q. Is that standard police procedure?
“A. Yes, when you are having trouble.
“Q. Why?
“A. That time when Mullick (phonetic) got shot at Armour and Virginia; that is what he put out.
“MR. MORGAN: Your Honor, I object, in—
“THE COURT: Sustained.
“MR. MORGAN: I object and ask that the jury be discharged on grounds of prejudicial—
“THE COURT: Overruled.”

Defendant contends that the statement referring to the shooting of a policeman was prejudicial to her and that the court erred in failing to sustain her motion for a mistrial. In that connection it should be noted that the court promptly sustained the objection and that defendant did not seek other relief short of a mistrial such as a motion to strike and an admonition to the jury to disregard the statement. This court has often said that “ ‘the declaration of a mistrial is, as stated, a drastic remedy and should be exercised only in extraordinary circumstances where the prejudicial effect can be removed in no other way. See State v. Smith, Mo., 431 S.W.2d 74; State v. James, Mo., 347 S.W.2d 211; State v. Camper, Mo., 391 S.W.2d 926. This determination rests largely within the discretion of the trial judge who observed the incident and can best gauge its prejudicial effect upon the jury.’ ” State v. Pruitt, 479 S.W.2d 785, 790 (Mo.1972). We see nothing to indicate an abuse of discretion in this instance and the point is accordingly overruled.

As heretofore stated the trial court sustained a motion to dismiss the disorderly conduct charge at the close of the city’s case. As her final point defendant contends that “The court erred in failing to grant defendant a new trial upon the ground that, after the charge of disorderly conduct was dismissed, so much inflammatory evidence had been received which was irrelevant to the specific charge remaining against defendant, that she could not have had a fair trial on such remaining charge.” In connection with our consideration of this contention it should be noted that much, if not all, of the evidence referred to would have been admissible on the hindering charge as a part of the res gestae. Moreover, we think that the defendant has not preserved this contention for appellate review. To have done so her counsel should have moved for a mistrial immediately after the court dismissed the disorderly conduct charge. He also could have moved the court to direct the jury to disregard any evidence he considered irrelevant to the hindering charge. It is our view that defendant could not go ahead and complete the trial in the hope of obtaining an acquittal and then, for the first time, make the contention in the motion for new trial that she could not have a fair trial on the hindering charge because of evidence admitted on the charge that had been dismissed. This point is disallowed.

Judgment affirmed.

DONNELLY, C. J., and MORGAN, HENLEY, and FINCH, JJ., concur.

SEILER, J., concurs in result in separate concurring opinion filed.

BARDGETT, J., concurs in result and concurs in separate concurring opinion of SEILER, J.

SEILER, Judge

(concurring in result).

I believe it is implicit in the Kansas City ordinance that the hindering, obstruction, etc. of the officer be done wilfully and knowingly. Thus there is no conflict between the statute and the ordinance. I do not believe that a person would be guilty of violating the Kansas City ordinance and subject to fine or imprisonment if the person were unwittingly or perhaps carelessly to hinder or obstruct an officer in the discharge of his official duty, by, for example, accidentally or negligently getting in his way. A person might be driving through an intersection on a green light and fail to yield the right of way to a police vehicle chasing a suspect, thereby resulting in a collision with the police vehicle and the escape of the suspect. I doubt if this would constitute a violation of the ordinance, although it would under its literal terms. The other statutes referred to in the majority opinion — Secs. 557.230-280 and Secs. 557.300-330, RSMo 1969 — dealing with rescuing or helping prisoners to escape, do not in terms require criminal intent, but I doubt if we would sustain convictions under them in the absence of criminal intent.

In State v. McLarty, 414 S.W.2d 315 (Mo.1967), we had for consideration the words of the statute against tampering with an automobile, Sec. 560.175(1), RSMo 1969, which provides: “No person shall drive, operate, use or tamper with a motor vehicle without the permission of the owner thereof.” The statute says nothing about criminal intent, knowledge, or wilfulness. Yet we held that criminal intent was an essential element of the offense proscribed, even though punishment therefor could be as little as a $1 fine or a day in jail. See also Davis v. State, 499 S.W.2d 445 (Mo.banc 1973) and State v. Tate, 436 S.W.2d 716 (Mo.1969). Similarly here I do not believe the Kansas City ordinance applies regardless of intent. Interfering with a police officer in the performance of his duty involves an aspect of moral turpitude or wrongdoing accompanied by guilty knowledge or intent. It is not the same as a parking or speed limit violation, where no criminal intent need be shown.

Under the evidence before us, there was evidence to support a finding of the required mental element and the trial court did not err in overruling the motion for judgment of acquittal. That is to say, there was evidence that defendant knew the officers were police officers and that she intentionally interfered with their activity. Thereafter, in instructing the jury, the court did so in the language of the ordinance, without any requirement that the jury find that the defendant acted wil-fully or intentionally. However, omitting the element of criminal intent in the main instruction in this misdemeanor case “was a matter of non-direction, and since the defendant failed to request an instruction on that subject the omission was not error.” State v. Burgess, 456 S.W.2d 641, 643 (Mo.App.1970); State v. Goodman, 490 S.W.2d 665 (Mo.App.1972); Rule 26.02(6). I therefore concur in the result reached in the principal opinion.


source: Caselaw Access Project

author: FINCH, Judge. BARDGETT, Judge HENLEY, Judge

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lawrence BAKER, Appellant.
    No. 58117.
    Supreme Court of Missouri, En Banc.
    June 9, 1975.
    Motion for Rehearing or to Modify Denied July 14, 1975.

      John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.
    Robert G. Duncan, Duncan & Russell, William E. Shull, Austin F. Shute, Kansas City, for appellant.
    Ralph L. Martin, Pros. Atty., Jackson County by Robert Frager, Asst. Pros. Atty., Kansas City, Amicus Curiae.
   FINCH, Judge.

Appellant, tried by a jury on an information containing three counts, two charging murder in the first degree and one robbery in the first degree, was found guilty on all three counts. He was sentenced to life imprisonment on each murder count and to imprisonment for 99 years on the robbery count. Citing § 546.480, the trial court ordered the sentences to run consecutively. An appeal was taken to this court. We retain jurisdiction thereof pursuant to the general order of this court dated April 9, 1973.

This appeal was heard originally in Division One where an opinion reversing and remanding for new trial was written but not adopted. The case then was transferred to the court en banc where it was reargued. Portions of the opinion written in Division One are utilized herein without the use of quotation marks. We reverse and remand for resentencing.

Appellant does not question the sufficiency of the evidence. The jury reasonably could find therefrom that: On November 20,1971, John D. Kemp was the manager of a Conoco service station at 75th and Prospect, Kansas City, Jackson County, Missouri; that William G. Simmons was an employee of Mr. Kemp; that around 10:00 p. m., Lawrence Baker and Amos Alonzo Wright entered the station armed with pistols; that they confronted the station personnel and demanded money from the cash register; that after they obtained the money, they shot and killed both station attendants; that $105, taken in the robbery, was divided between the robbers.

Appellant, in his motion for new trial and in his original brief in this court, asserts that the court erred (1) in overruling his motion to discharge the trial jury and declare a mistrial “in that the State, through the prosecutor, deliberately and wilfully used its peremptory challenges to strike all Negroes from the jury panel and has done so for many years in all similar jury cases, thus denying the defendant’s right to a fair trial” and (2) in failing to hold an evidentiary hearing on said motion.

These contentions arise in these circumstances:

Upon conclusion of the voir dire examination of prospective jurors, the State and defense made their peremptory challenges. The State exercised four of its fifteen challenges to remove the four Negroes from the panel, and defendant then filed a verified motion to declare a mistrial and discharge the jury. The motion included these allegations:

“3. The State, through its representative, John T. Peak, used its peremptory challe[n]ges to strike each and every Negro on the venire panel, thus excluding Negroes from the petit jury.
“4. That the State, through John T. Peak, by using the peremptory challenges to strike Negroes in case after case, whatever the circumstances may be, but particularly where the accused is a Negro, is responsible for the removal of Negroes who have been selected as qualified jurors by the Jury Commissioner and who have survived challenges for cause.
“5. That the practice by the State of systematically excluding Negroes from a petit jury denies Defendant equal protection of the law and is contrary to the Fourteenth Amendment of the Constitution of the United States.”

Appellant’s contentions do not dispute that the qualification of veniremen is a matter within the discretion of the trial court. State v. Wilson, 436 S.W.2d 633 (Mo.1969). Neither does he dispute that the State may use its peremptory challenges to remove Negroes from the jury in a particular case. See, e. g., Brown v. State, 470 S.W.2d 543 (Mo.1971); State v. Davison, 457 S.W.2d 674 (Mo.1970).

Appellant’s charges of abuse of discretion in this case are based upon a quotation from Swain v. Alabama, 380 U.S. 202, 223-24, 85 S.Ct. 824, 837, 13 L.Ed.2d 759 (1965), where the Court said:

“We have decided that it is permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance. .
In these circumstances, given even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purpose of the peremptory challenge are being perverted. If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify.”

Appellant asserts that the allegations of the verified motion, if taken as true, bring his case within the quoted pronouncement; and that if not accepted as true, the court erroneously denied him a hearing to make such proof. We disagree.

Although the appellant adopts some of the language of Swain v. Alabama, supra, to frame his motion, he does not allege facts necessary to prove the kind of discrimination condemned by that case. In Swain, the defendant alleged and proved that no blacks had sat on a petit jury in a particular county for a period of fourteen years. But even this was not enough; the United States Supreme Court held that he must also show the prosecutor’s responsibility for such a result, since defense counsel share at least an equal role in the peremptory process. In the case before us, the defendant did not allege that there have been no blacks on petit juries for any given period of time, which allegations might give rise to a fair inference of improper discrimination and abuse of the peremptory challenge. Furthermore, the defendant emphasized that blacks have been excluded “particularly where the accused is a Negro.” The clear inference from this allegation is that Negroes are not excluded from juries when the defendant is not a Negro. The assumption that this allegation shows a violation of Swain indicates a misreading of that case. To comport therewith the defendant must allege that the exclusion of blacks is made “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be . with the result that no Negroes ever serve on petit juries . . ..” 380 U.S. at 223, 85 S.Ct. at 837. (Emphasis added.) The motion was properly overruled without hearing.

Appellant next charges that the court erred in failing to instruct the jury “that the defendant had the right not to take the stand and testify and that such action should not be held against him in that the jury may have considered the defendant’s failure to testify in arriving at its verdict.” An instruction to that effect was tendered by defendant but it was refused by the trial court.

A long line of Missouri cases have held that it is not error to fail to instruct the jury on a defendant’s right not to take the stand and testify. Some of the more recent cases so holding include State v. Sawyer, 484 S.W.2d 242 (Mo.1972); State v. Hutchinson, 458 S.W.2d 553 (Mo. banc 1970); and State v. Deiter, 446 S.W.2d 609 (Mo.1969). Appellant recognizes that this has been so but contends that the rule should be changed, citing in support thereof the concurring opinion of Judge Donnelly in State v. Hutchinson, supra, wherein he expressed the view that such ah instruction is permissible under Missouri law and that in future cases such an instruction should be given if defendant does not object thereto.

Subsequent to the decision in Hutchinson, Rule 26.08 was amended effective September 1, 1973 (which was after the trial of this case) to provide that if a defendant does not testify and he so requests, but not otherwise, the court shall instruct the jury that “under the law, a defendant has the right not to testify. No presumption of guilt may be raised and no inferences of any kind may be drawn from the fact that the defendant did not testify.” See also MAI — CR 3.76 and Notes on Use, effective January 1, 1974. The fact that our court has concluded to amend our rules and to provide in our pattern criminal instruction volume that on and after September 1, 1973, such an instruction shall be given if requested by a defendant does not mean that refusal of the instruction at the time this case was tried was reversible error or that appellant is entitled to a new trial on that basis. As Judge Donnelly’s concurring opinion in Hutchinson recognized, such an instruction is not constitutionally required.

Finally, in a pro se brief filed by appellant in Division One, supplemented before the court en banc by an additional brief by counsel for appellant, we are requested, under Rule 27.20(c) (the plain error rule), to consider two additional propositions. First, it is contended that appellant was entitled to a separate jury trial on each charge and that he cannot constitutionally be tried on multiple charges in a single trial. Secondly, appellant claims that mandatory imposition of consecutive sentences under § 546.480 as a result of being charged in a multi-count information under Rule 24.04 resulted in a deprivation of his right to equal protection of the laws in violation of both the federal and state constitutions in that the trial judge was not permitted to exercise his discretion on whether sentences should be concurrent or consecutive.

It is clear that there is no merit in the first of these contentions. A defendant does not have either a federal or state constitutional right to be tried on only one offense at a time. The federal courts have recognized this fact in Rule 8(a) of the Federal Rules of Criminal Procedure. That rule provides that “[T]wo or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” This rule has been described as constituting essentially a restatement of statutory and familiar law and as not violating due process of law. L. Or-field, Criminal Procedure Under the Federal Rules § 8:47 (1966). When a defendant is so charged, the multiple counts are tried together unless the court, pursuant to Rule 14 of the Federal Rules of Criminal Procedure, orders separate trials or grants other relief. Orfield, supra, § 8:56.

Likewise, in Missouri, joinder of certain offenses is permitted by rule of court. In addition, statutory provisions, some of which date back as early as 1835, have permitted joinder of certain offenses in a single indictment or information. For examples, see §§ 545.120, 545.130 and 560.110. When so authorized, it is clear that trial of the separate offenses in a single trial is permissible. State v. Walker, 484 S.W.2d 284 (Mo.1972); State v. Terry, 325 S.W.2d 1 (Mo.1959). We overrule appellant’s first pro se assignment.

A much more difficult question is raised by appellant’s second pro se contention that mandatory consecutive sentences imposed on him under the provisions of § 546.480 deprived him of equal protection. The unadopted divisional opinion sustained this contention, concluding that Rule 24.04 is unconstitutional for that reason. This is the position taken in the supplemental brief filed before the court en banc by counsel for appellant. However, an amicus curiae brief filed by the prosecuting attorney of Jackson County takes the position that Rule 24.04 is not unconstitutional and that the problem of denial of equal protection is caused by and arises from the provisions of § 546.480. Such problem exists, says ami-cus curiae, even where there is no multi-count information or indictment. We conclude, for the reasons we subsequently detail, that a denial of equal protection does exist but that the problem arises from § 546.480 rather than Rule 24.04.

Rule 24.04 is a procedural rule. It, like Rule 8(a) of the Federal Rules of Criminal Procedure, merely permits joining in one information or indictment certain related multiple offenses which otherwise would have been charged separately. It does not mandate any difference in treatment between those charged jointly and those charged in separate informations or indictments. It makes no provision with respect to the amount of punishment to be imposed or whether sentences shall be concurrent or consecutive.

Sec. 546.480, on the other hand, does deal with punishment to be imposed on convicted offenders, and is not simply a procedural statute. It provides as follows:

“When any person shall be convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior conviction.”

Even in the absence of any legislative history, it is evident that the purpose of this statutory provision is to insure that some multiple criminal offenders are to be punished more severely than others. However, it is equally apparent that the section does not apply to all convicted multiple offenders. It applies if, but only if, a defendant is convicted of at least two offenses before he is sentenced for either offense. The question presented is whether such a classification is reasonable. Does it result in irrational inequality of treatment for multiple criminal offenders?

We consider this question in the light of decided cases construing the federal equal protection clause. In Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), an Oklahoma statute provided for sterilization of habitual criminals but contained exceptions with reference to convictions for offenses arising out of prohibition, revenue violations, embezzlement or political offenses. The Supreme Court found that the statute resulted in a violation of a defendant’s equal protection rights, saying, 316 U.S. at 541-42, 62 S.Ct. at 1113:

“ * * * Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma’s line between larceny by fraud and embezzlement is determined, as we have noted, ‘with reference to the time when the fraudulent intent to convert the property to the taker’s own use’ arises. Riley v. State, supra, 64 Okl.Cr. [183] page 189, 78 P.2d [712] page 715. We have not the slightest basis for inferring that that line has any significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn.”

Similar reasoning is found in State v. Berkley, 92 Mo. 41, 4 S.W. 24 (1887), wherein the court dealt with a statute providing that when in a criminal case the adverse party consents that the facts set out in an application for continuance due to an absent witness shall be taken as the testimony of such witness, the trial shall not be postponed. This court held that when due diligence to obtain such witness was shown, the statute violated a party’s constitutional right to have process to compel the attendance of defense witnesses. The court found that the statute produced a denial of equal protection, saying, 4 S.W. at 27-28:

“Moreover, I regard section 1886 as in plain violation of section 1 of the fourteenth amendment of the constitution of the United States, which forbids that any state ‘deny to any person the equal protection of the laws.’ I illustrate this view in this way: Here are two defendants in the same court, both on trial for their lives. Both make equally meritorious applications for a continuance. In one case the prosecuting attorney graciously waives the interposition of his veto, and the trial court is consequently allowed to exercise its ordinary judicial discretion, and, the grounds therefor being ample, the continuance goes, and that defendant secures, as a matter of favor, what belongs to him as a home-born constitutional right, — the attendance of his witnesses. In the other ease the prosecuting attorney does veto the application; does overrule the judicial discretion of the court; does override the constitutional right of the defendant; and so the latter is forced into trial, on whose result his life depends, with nothing better than a piece of paper, on which is written something which on its face does not bear even so much probative force as hearsay testimony. Thus these constitutional rights are stricken down by one and the same blow, —the constitutional right of the trial judge to the exercise of his judicial discretion in all cases coming before him; the constitutional right of the defendant to compulsory process for his witnesses; and his constitutional right to the ‘equal protection of the laws,’ (State v. Hayes, 81 Mo. 574;) thus affording an apt illustration of what Judge Cooley so strongly says: ‘The securities of individual rights * * * cannot be too frequently declared, nor in too many forms of words; nor is it possible to guard too vigilantly against the encroachments of power, nor to watch with too lively a suspicion the propensity of persons in authority to break through the cobweb chains of paper constitutions.’ 2 Story, Const. § 1938.”

Likewise pertinent is the case of Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). It considered a New York statute which provided that a person may be civilly committed as insane upon expiration of a penal sentence. The court held that petitioner therein was denied equal protection because pursuant to said statute he was kept at the criminal insane hospital after expiration of his sentence without a judicial determination that he was dangerously mentally ill. In so ruling, the court said, 383 U.S. at 111-15, 86 S.Ct. at 763:

“The director contends that the State has created a reasonable classification differentiating the civilly insane from the ‘criminally insane,’ which he defines as those with dangerous or criminal propensities. Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made. Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S.Ct. 505, 509, 98 L.Ed. 660. Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at a 11. For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.
* * * * He *
“The capriciousness of the classification employed by the State is thrown sharply into focus by the fact that the full benefit of a judicial hearing to determine dangerous tendencies is withheld only in the case of civil commitment of one awaiting expiration of penal sentence. A person with a past criminal record is presently entitled to a hearing on the question whether he is dangerously mentally ill so long as he is not in prison at the time civil commitment proceedings are instituted. Given this distinction, all semblance of rationality of the classification, purportedly based upon criminal propensities, disappears.”

See also Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), and Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972).

Applying the principle of these cases, we conclude that § 546.480 requires different and unequal treatment for different defendants not based on any legitimate state purpose or interest. It mandates different treatment of defendants without any reasonable or rational basis for that difference. The increased punishment by means of mandatory consecutive sentences is not made applicable simply on the basis that a defendant has committed multiple offenses. It is not based on how many offenses a defendant has committed or how severe they are. It is not based on whether the offenses in question were all committed at the same time or whether they were committed at different times. It is based solely and only on whether the defendant was convicted of at least two offenses before he is sentenced on either of them.

The inequality of treatment resulting from the classification provided in § 546.480 is evident from the following examples.

Example 1. Defendant A kills a person on the morning of January 1. Before he is apprehended, he kills another person that evening. In February the defendant is tried and convicted on the first murder charge. He files a motion for new trial in early March which is overruled by the court on April 1. Meanwhile, in March, defendant is tried on the second murder charge and is convicted. Since he has been convicted of two offenses before he is sentenced on either, § 546.480 applies and the sentences imposed must be consecutive. The trial judge has no discretion as to whether the sentences may be made concurrent.

Example 2. Defendant B also kills someone on the morning of January 1 and a second person that same evening. He, too, is tried in February and convicted. He files a motion for new trial in early March but the judge overrules it promptly and then sentences B to life imprisonment. Thereafter, in late March Defendant B, like A, is tried and convicted on the second murder charge. This time § 546.480 does not apply because this defendant was not “convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense.” Whether the second life sentence is made concurrent or consecutive is within the discretion of the trial judge. He can take into account such things as whether defendant has a prior record and the facts and circumstances surrounding the offenses, whereas in Example 1 the trial judge has no such discretion even though the defendant therein was tried and convicted on comparable dates of identical charges.

Similar hypothetical examples showing disparity of treatment by reason of § 546.-480 could be given ad infinitum. For instance, a first offender who gave two checks on banks in which he had no account would receive consecutive sentences if, for one reason or another, he was convicted on both before being sentenced on either, whereas defendant B in Example 2 would receive consecutive or concurrent sentences at the discretion o^ the trial judge, even though he might have numerous prior sentences. In this instance the first offender who commits much less serious offenses must be given consecutive sentences whereas the statute does not apply to the habitual offender who committed two murders, simply because of the relationship between the time of convictions and resulting sentences.

Equal protection does not require that all persons be dealt with identically. For example, one burglar may be sentenced to four years imprisonment and another may be sentenced to two years or five years. The factual situations can justify this difference in sentences imposed. However, equal protection does require that distinctions in classifications for the purpose of sentencing have some relevance to the purpose for which the classification is made. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); In re J. D. G., 498 S.W.2d 786 (Mo.1973); Ex parte French, 315 Mo. 75, 285 S.W. 513 (banc 1926). That relevance cannot be found when applicability of the mandatory consecutive sentencing requirement for multiple offenders has no relationship to such things as seriousness of the offenses committed, the factual circumstances surrohnding the offenses, whether the offenses were committed at the same time or at different times or the previous criminal record of defendant, and is dependent solely on the chronological happenstance of whether there were two convictions before sentencing on either offense. Paraphrasing what the court said in Bax-strom, supra, we conclude that the capriciousness of the classification established by § 546.480 is thrown sharply into focus by the fact that the benefit of the judicial discretion of the trial judge in the light of all facts and circumstances to determine whether multiple sentences should be concurrent or consecutive is withheld only in those cases wherein it so happens that a defendant is convicted on two charges (whether by plea or trial is immaterial) before he is sentenced on either. A person with a past criminal record is presently entitled to the exercise of the judge’s discretion so long as he is not convicted on two new offenses before he is sentenced on either. However, a first offender is not entitled to that discretion if his two convictions occur before sentencing on either. Given this distinction, all semblance of rationality of the classification, supposedly based on multiple crimes and criminal propensities, disappears.

As previously noted, this inequality of treatment flows from § 546.480, not Rule 24.04. Examples 1 and 2 previously given illustrate that the problem exists even where Rule 24.04 is not utilized. To declare Rule 24.04 unconstitutional would not cause the problem inherent in § 546.480 to go away. In some other case, if not this one, we would have to determine the constitutionality of the statute. On the other hand, if § 546.480 is declared to be unconstitutional, as we have concluded it is, there is no problem remaining of unequal treatment in sentencing resulting from Rule 24.04. That being true, we hold § 546.480 to be unconstitutional.

The conclusion we reach requires that we overrule that portion (but only that portion) of King v. Swenson, 423 S.W.2d 699 (Mo. banc 1968), wherein we ruled that § 546.480 was not violative of the federal and state constitutional provisions prohibiting laws which deny equal protection of the law.

Declaring § 546.480 unconstitutional does not entitle appellant to a new trial. The statutory provision in question affected only the sentencing of appellant, not his trial. See North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Accordingly, the judgment of the trial court is reversed and the case is remanded for re-sentencing wherein the trial judge shall exercise his judicial discretion with reference to whether sentences imposed on the various counts are to be concurrent or consecutive.

DONNELLY, C. J., and MORGAN and HOLMAN, JJ., concur.

BARDGETT, J., concurs in separate concurring opinion filed.

SEILER, J., concurs in separate concurring opinion of BARDGETT, J.

HENLEY, J., concurs in separate concurring opinion filed.

BARDGETT, Judge

(concurring).

I concur in the principal opinion except for what is said therein concerning the validity of amended Rule 24.04.

The principal opinion holds section 546.-480 to be unconstitutional for reasons wholly apart from the fact that amended Rule 24.04 exists and facially authorizes multiple-count trials for separate offenses. Thus, the result reached by the principal opinion — reversal and remand for resen-tencing with directions to the trial court to exercise its discretion as to concurrent or consecutive sentences — would obtain in this case even if amended Rule 24.04 did not authorize a multiple-count trial for separate offenses.

A divisional opinion in this case, which was not adopted, held there had been no knowing waiver entered by defendant because the defendant did not know that, by proceeding to trial on multiple counts, he would be subjected to mandatory consecutive sentences if he was convicted of more than one offense. The principal opinion holdá section 546.480 unconstitutional and remands the case for resentencing with directions to the trial judge to exercise his discretion with respect to concurrent or consecutive terms. The defendant did request that he be tried on all offenses in one trial. Therefore, any ignorance on the part of defendant with respect to mandatory consecutive sentences is rendered harmless because he will now be entitled to have the trial court exercise its discretion as to how the terms will be served.

Therefore, in my opinion, the issues necessary to a disposition of this case do not include the question of the validity of amended Rule 24.04 and, consequently, what is said concerning the validity of that rule is, in my opinion, dictum.

The validity vel non of amended Rule 24.04 ought to await a case in which that issue is necessary to the decision. Nevertheless, since it inferentially may appear that amended Rule 24.04 is held valid in this case, I believe the following observations are pertinent, alheit. also dicta

I agree that neither the Federal nor state constitutions prohibit a person from being tried and convicted for several offenses in* the same trial. By that I mean there is .unconstitutional prohibition against that branch of government which has the power to change substantive (not constitutional) rights from authorizing multiple-count trials and convictions. That branch of government is the legislative branch. Whether or not a person can be convicted in one trial of more than one offense is, in my opinion, a matter of substantive law and can be changed only by legislative action and not by court rule. A defendant can, however, waive that right as was done in the instant case and as was done by the defendant in State v. Terry, 325 S.W.2d 1 (Mo.1959). The Terry opinion makes clear that the right not to be convicted of more than one offense in the same trial is a substantive right. This court is prohibited by Art. V, § 5, Mo.Const.1945, V.A.M.S., from changing substantive rights by court rule.

The fact that Rule 24.04, as adopted in 1952, as set forth in footnote 3 of the principal opinion, authorizes the joinder of counts for larceny and embezzlement, or for larceny and obtaining money by false pretenses, or for burglary and larceny, does not, in my opinion, support amended Rule 24.04. The earlier court rule was merely a rescript of sections 545.120 and 560.110 RSMo 1969, V.A.M.S., which constituted statutory authority for such charges and trial.

The principal opinion makes reference to Rule 8(a) of the Federal Rules of Criminal Procedure which rule authorizes multiple-count trials and convictions. However, the Federal rule was adopted pursuant to Title 18 U.S.C. § 3771 which requires that rules with respect to proceedings prior to and including verdict be reported to Congress at or after the beginning of a regular session thereof but not later than the 1st of May, and that the rule shall not be effective until 90 days after it is so reported. Thus, Federal Rules of Criminal Procedure adopted pursuant to Title 18 U.S.C. § 3771 will have received congressional approval before they become effective.

I have set forth the foregoing in order that my concurrence in the principal opinion will not be understood to inferentially constitute agreement that amended Rule 24.04 is a valid exercise of rule-making power under Art. V, § 5, Mo.Const.1945. That question is, in my opinion, not foreclosed by the court’s decision in this ease.

HENLEY, Judge

(concurring).

I concur and add a word of caution to the trial bench regarding the record that should be made at the time of sentencing.

In a case where, as here, a defendant is convicted of two or more offences at the same time, the terms of imprisonment imposed will run concurrently unless there is a direction of record that they run consecutively. Anthony v. Kaiser, 350 Mo. 748, 169 S.W.2d 47, 49[7-9] (banc 1943). Since the trial judge has the authority from this day on to exercise his discretion in sentencing in cases such as this, he must do so; and, it is imperative that if he determines the sentences should run consecutively that the record show this determination.

      . All statutory references are to RSMo 1969, V.A.M.S. unless otherwise indicated.

      . All citations to rules are to V.A.M.R. unless otherwise indicated.

      . As adopted April 14, 1952, this rule read as follows:
      “Indictment or Information—Counts— When Permitted
      Counts for larceny and embezzlement, or for larceny and obtaining property by false pretenses or tokens, or for burglary and larceny in connection with such burglary, may be joined in the same indictment or information. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees.”
      Effective July 1, 1971, Rule 24.04 was amended to read as follows:
      “Indictment or Information—Joinder of Offenses
      All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees.

      . While our ruling on this issue is not based thereon, the fact is that appellant herein expressed to court and counsel his desire to have the three counts tried together. Out of the hearing of the jury but with appellant present, counsel for defendant stated to the court that he could ask for a severance but that his client wanted the three counts tried together. Appellant confirmed this to the court.

      . This section first appeared in RSMo 1835, p. 213, § 9. No legislative history explaining the purpose of this section exists and in the very limited number of cases which have referred to and construed this provision, we find no case which has undertaken to ascertain or state the purpose of this statutory provision.


author: SWOFFORD, Presiding Judge.

text:
    Jess V. CUMBY, Appellant, v. FARMLAND INDUSTRIES, INC., Respondent.
    No. KCD 26772.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.

      Robert A. Iannone, Independence, John C. Russell, Raytown, for appellant.
    Wm. Harrison Norton, Wilbur L. Pollard, Norton & Pollard, North Kansas City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

This is an action for damages brought by a discharged employee (appellant, hereinafter referred to as “plaintiff”) against his former employer (respondent, hereinafter referred to as “defendant”) for alleged violation of Section 290.140 RSMo 1969, V.A.M.S., the so-called “service letter statute”. After a long trial, the jury returned a verdict in favor of the plaintiff in the sum of $10,000.00 actual and $5,000.00 punitive damages. Thereafter, the trial court sustained the defendant’s motion for a new trial and plaintiff appealed. The issues here are limited and sharply defined.

The trial court’s order granting the new trial did so upon the sole ground as “stated in paragraph one of defendant’s motion for a new trial”, which paragraph alleged as error:

“1. Because the trial Court erred in giving, at the request of the plaintiff, M.A.I. Instruction 23.08 which was in words and figures as follows:
‘INSTRUCTION NO. 2
Your verdict must be for the plaintiff if you believe:
First, the plaintiff was employed by the defendant for at least 90 days, and
Second, after his employment was terminated the plaintiff made a written request to the superintendent of the defendant for a letter of dismissal, and
Third, the defendant’s letter did not correctly state the true cause of the plaintiff’s termination.’
and because the statute upon which this case is based, Section 290.140 RSMo 1969 [V.A.M.S.], requires that the defendant truly state for what cause the employee quit service, not as in the words of the instruction, to correctly state the true cause, and that under the evidence of this case and the argument of the plaintiff’s attorney, this defect was material and most prejudicial to the defendant.” (Em- • phasis the defendant’s)

In substance, the plaintiff’s position here is that in sustaining the new trial motion upon this ground, the court erred because M.A.I. 23.08 (Instruction No. 2) is a correct, lawful, approved instruction, and reflects the Supreme Court’s interpretation of the essential elements for recovery under the “service letter” statute, and that the propriety of the approved instruction is a question of law and not of fact, foreclosing the exercise of discretion.

On the other hand, the defendant asserts that the action of the trial court was proper because M.A.I. 23.08 “is contrary to the law of Missouri”; that it changes the substantive law, and thus violates Article V, Section 5, and Article I, Section 10, of the Constitution of Missouri, V.A.M.S.; and, that the giving of M.A.I. 23.08 resulted in gross prejudice to the defendant.

The service letter statute, Section 290.140 RSMo 1969, V.A.M.S., makes it the duty of the superintendent or manager of a corporation to furnish, upon written request, to any employee who has been in the service of such corporation for a period of 90 days and who has been discharged or has voluntarily quit such service, a signed letter setting forth (1) the nature and character of such employee’s service; (2) the duration thereof; and (3) “truly stating for what cause, if any, such employee has quit such service”. This third requirement is the one here in question.

It is apparent, and, indeed, the defendant does not claim otherwise, that the plaintiff used M.A.I. 23.08 verbatim and without change or modification. In so doing, he scrupulously followed the now clear, firm and mandatory directions of the appellate courts, that where M.A.I. is applicable, its use is required and that any deviations therefrom are deemed prejudicially erroneous unless it is made perfectly clear that no prejudice has thereby resulted. Rule 70.-01(b), (c), V.A.M.R.; Murphy v. Land, 420 S.W.2d 505, 507[4-7] (Mo.1967); Brown v. St. Louis Public Service Company, 421 S.W.2d 255, 257-259[2, 3] (Mo. banc 1967); Bueche v. Kansas City, 492 S.W.2d 835, 840-841[4] (Mo. banc 1973); Sharp v. Robberson, 495 S.W.2d 394, 399[2] (Mo. banc 1973); Offenbacker v. Sodowsky, 499 S.W.2d 421, 424[2, 3] (Mo.1973); Watterson v. Portas, 466 S.W.2d 129, 132[5, 6] (Mo.App.1971); Royal Indemnity Company v. Schneider, 485 S.W.2d 452, 458[3] (Mo.App.1972).

The position of the trial court and of defendant here, in the light of the record, distills into the ultimate contention that M.A.I. 23.08 improperly changes the substantive law of Missouri as contained in Section 290.140 RSMo 1969, V.A.M.S., with reference to the third requirement as to the necessary contents of a service letter. This difference between M.A.I. and the statute may be clearly pointed up thusly:

section 290.140 M.A.I. 23.08
"truly stating for what "correctly state the ⅞ ⅜ * cause'' true cause''

Even before the advent of M.A.I., it was a solid principle of law that where a cause is based upon a statutory violation, it is generally sufficient to “couch the verdict-directing instruction substantially in the language of the statute”. Miles v. Gaddy, 357 S.W.2d 897, 902[5] (Mo. banc 1962); May v. Bradford, 369 S.W.2d 225, 228-229[7, 8] (Mo.1963); Rooney v. Lloyd Metal Products Company, 458 S.W.2d 561, 570[10] (Mo.1970); Matta v. Welcher, 387 S.W.2d 265, 273-274[12, 13] (Mo.App.1965). This principle was thus stated in Arky v. Kessels, 262 S.W.2d 357, 358[3] (Mo.App.1953):

“ * * * Though frequently in an instruction directing a verdict for the violation of a statute or ordinance, its exact verbiage is used, it is not necessary to do so as long as its substance is incorporated. * * *

The substance of Section 290.140 in the particular here under consideration is incorporated in M.A.I. 23.08. It is a futile exercise in semantics to assert that there is any substantial difference in meaning between “correctly state the * * * true cause” and “truly stating for what cause” a person’s employment is terminated. The basic and fundamental thrust of each phrase is that the real, honest and factual reasons be stated in the service letter. Both phrases are completely consistent with the purpose of the service letter statute, which was described in Cheek v. Prudential Ins. Co. of America, 192 S.W. 387, 392-393[5, 9] (Mo.1917) as “a wise exercise of the police power of the state” that “affects a class composed of many thousands of people as to whom, if not protected from the evil mentioned, great hardships, injustice, and oppression could be perpetrated upon them”. In Walker v. St. Joseph Belt Ry. Co., 102 S.W.2d 718, 723-724[3] (Mo.App.1937), the court stated:

“The plaintiff was entitled to a letter stating the true cause of his discharge so that he might thereby prevent blacklisting by the defendant.” (Emphasis supplied)

See also: Howe v. St. Louis Union Trust Company, 392 S.W.2d 625, 630[8] (Mo.1965); Woods v. Kansas City Club, 386 S.W.2d 62, 66-67 (Mo. banc 1964); 31 Mo.Law Review 505 (Fall 1966).

In Cheek v. Prudential Insurance Co., supra, the Supreme Court held that the service letter statute did not violate the Fourteenth Amendment of the Federal Constitution or any other constitutional provision, state or federal (192 S.W. 387, 393[10]), which would include the due process provision as contained in Article I, Section 10, of the Constitution of Missouri. It is equally clear that by adopting M.A.I. 23.08, the Supreme Court did not trespass into the field of substantive law as prohibited by Article V, Section '5, of the Constitution of Missouri.

While somewhat obscure, it can be gleaned from defendant’s brief that its real objection to M.A.I. 23.08 is the use of the word “correctly”, a view apparently adopted by the trial judge. It seems that the defendant clothes that word with the meaning of “specificity” or “detail”, so that the phrase used in M.A.I. 23.08 improperly emerges with the meaning of requiring that the service letter “specifically or in exact detail state the true cause” of the termination. It claims that this invited plaintiff’s counsel to make highly prejudicial jury arguments regarding the generality of the reasons expressed in the service letter here involved.

Section 290.140 RSMo 1969, V.A. M.S., does require that valid, clear, and true reasons for the termination be set forth. Generalities do not fulfill the requirements nor meet the standards of the statute as interpreted by the courts. Williams v. Kansas City Transit, Inc., 339 S.W.2d 792, 799[11] (Mo.1960); Walker v. St. Joseph Belt Ry. Co., 102 S.W.2d 718, 723-724[3] (Mo.App.1937).

The service letter here involved states that plaintiff was terminated because he failed to:

“(1) effectively carry out their (his supervisors’) instructions, (2) give them proper cooperation in carrying out company programs, (3) adequately inform them on problems relating to your job, (4) exercise proper initiative and care in planning and performing the work assigned to you, and (5) maintain acceptable working relations with some of the personnel with whom you dealt.”

In his arguments to the jury, plaintiff’s counsel urged in a forceful and effective manner that these reasons were plural and general and that the letter did not state the true cause or causes of plaintiff’s termination. Two observations seem appropriate. First, the causes stated in the letter are general and non-specific in character and constitute a blanket indictment of his services, and the argument of counsel was proper in attacking them for that reason. Second, no objection was made to any portion of the argument nor other relief sought during the trial, and no allegation of error as to the argument was raised in defendant’s motion for a new trial, and, therefore, nothing was preserved for review on this point.

Whether or not the defendant complied with the provisions of Section 290.140 RSMo 1969, V.A.M.S., was a factual issue for the jury’s determination and was concluded by its verdict. The propriety of Instruction No. 2 (M.A.I. 23.08) was and is a question of law which allows no room for the exercise of the trial court’s discretion, to which proper deference must be given as to questions of fact. In this posture, the general rule giving wide latitude to a trial court in the matter of sustaining a motion for a new trial has no application. Loftus v. Metropolitan St. Ry. Co., 220 Mo. 470,119 S.W. 942, 944—945[2] (1909); Highfill v. Brown, 340 S.W.2d 656, 664[11] (Mo. banc 1960); Medical West Building Corporation v. E. L. Zoernig and Company, 440 S.W.2d 744, 750[12] (Mo.1969); Wims v. Bi-State Development Agency, 484 S.W.2d 323, 326[7] (Mo. banc 1972).

The authorities relied upon by defendant to support its theory and the trial court’s action in sustaining its motion for a new trial have been carefully examined and are not persuasive here. In Gridley v. Johnson, 476 S.W.2d 475 (Mo.1972), the court concluded that the phrase “in good standing” should be eliminated from M.A.I. 11.06 pertaining to medical negligence and the degree of care required of physicians. In Friederich v. Chamberlain, 458 S.W.2d 360 (Mo. banc 1970), the court overruled deci-sional law with reference to skidding automobiles on the wrong side of the road, which resulted in a modification of M.A.I. 17.13. In Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969) the court adopted the rule of strict liability in products liability cases and set forth in its opinion a form of instruction to be used in such cases.

In Ambrose v. State Department of Public Health and Welfare, 319 S.W.2d 271 (Mo.App.1958), the court defined and contrasted substantive and procedural law and held that a statutory amendment to the law concerning aid to dependent children was substantive and therefore could not be applied retroactively. In In re Interest of T- G-, 455 S.W.2d 3 (Mo.App.1970), the court held that the constitutional authority lodged in the Supreme Court to establish rules of practice did not authorize that court to change by rule the substantive law referring to appeals. Slagle v. Singer, 419 S.W.2d 9 (Mo.1967) involved an instruction in an action for wrongful death where the plaintiff was charged with contributory negligence in the bailment of a defective automobile. M.A.I. did not contain an instruction applicable to the situation. The court held that the instruction tendered by defendant, which modified M.A.I. 26.01, was proper.

M.A.I. 23.08 (Instruction No. 2) was properly given and the conclusion inevitably results that the trial court erred in granting defendant’s motion for a new trial, and the judgment is therefore reversed and the cause remanded with directions that the judgment in favor of the plaintiff and against the defendant be reinstated as of the date of its original entry.

All concur.


author: PRITCHARD, Chief Judge.

text:
    STATE OF Missouri, Respondent, v. Ronald L. WILLIAMS, Appellant.
    No. KCD 27661.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.

      Robert F. Pyatt, Chillicothe, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

By the verdict of a jury, appellant wss convicted of the crime of burglary in the second degree and stealing in connection therewith. The jury was unable to agree upon the punishment and the court imposed it at 10 years for the burglary and 5 years for the stealing, to run consecutively.

Three points are presented: (1) That appellant’s sole witness, his mother, was improperly impeached because a certified copy of the record, instead of the actual court record, of her conviction was used, and the sheriff of Livingston County was permitted to testify that he was present when the witness entered her plea of guilty to a forgery charge; (2) that the court erred in reading an instruction to the jury which was in error in informing the jury that the minimum penalty for the burglary in the second degree was 5 years, when in fact it was 2 years, and that the error was not cured by the court’s correcting the written instruction; and (3) that there was no evidence to support an instruction concerning appellant’s presence at or near the scene of the crime.

As to the first point, appellant called his mother, whose testimony tended to show an alibi. On cross-examination she was asked and denied that she had ever been convicted of a felony; that she did not appear in the Livingston County Circuit Court on January 20, 1958; she did not plead guilty to a felony on that date; and that she was not the same person who was placed on parole and released therefrom on January 18,1960. On rebuttal, the state offered certified copies of the court proceedings of the witness’ guilty plea, judgment, and sentence for forgery, which were received over appellant’s objection that they were not the best evidence. The court also received the testimony of Sheriff Reeter that the witness was indeed the same person who was in court and who was convicted in 1958, that there was no other person by her name that he had heard of in Livingston County. Appellant’s mother then again took the stand and again testified that she was not the person convicted in 1958 of forgery.

§ 491.050, RSMo 1969, V.A.M.S., provides that a conviction of a criminal offense may be proved to affect a witness’ credibility, either by the record or by his own cross-examination, “and the party cross-examining shall not be concluded by his answer.” The witness here denied ever having been convicted, or that she was the same person as shown by the records of having been convicted. The words of the statute are that the state was not concluded by her answer. The records were of course admissible to show the conviction under § 491.050, and under § 491.130 relating to the admissibility of certified copies of the record in lieu of the record itself. State v. Taylor, 274 S.W. 47, 49 (Mo.1925). That record name and the name of appellant’s mother were the same which raises a presumption of identity without a further showing, but the presumption may be rebutted. State v. Barnholtz, 287 S.W.2d 808, 812 (Mo.1956). Since there was an issue for the jury as to identity by reason of the witness’ denial that she was the person convicted of forgery in 1958, it was not improper that the testimony of the sheriff was received to rebut that testimony. Point I is overruled.

The court corrected the erroneous instruction as to the minimum punishment that might be imposed before the jury retired to consider its verdict, which was entirely proper under State v. Sawyer, 367 S.W.2d 585, 588[6—8] (Mo.1963), and State v. Taylor, 293 Mo. 210, 238 S.W. 489, 494[8] (1922). Furthermore, here the jury could not agree upon punishment and left the matter to the trial court. The first given, but later corrected, instruction could not have been prejudicial. See State v. Wheeler, 108 Mo. 658, 18 S.W. 924 (1892); and compare State v. Wade, 306 Mo. 457, 268 S.W. 52, 56 (1924). Point II is overruled.

Appellant’s last contention is that there was no evidence to support the submission of appellant’s presence at or near the scene of the offense as contained in the second sentence of Instruction No. 8 [MAI-CR 2.10]. The state says appellant did not object to the instruction at the time it was given. He did raise the issue in his motion for new trial which is all he was required to do under Rule 20.03 Y.A.M.R. On the merits of the issue the evidence is this: Shortly before midnight on July 20, 1973, appellant drove one Richter to within about Vi mile from the Municipal warehouse where Richter got out. They had been discussing how they would get some money. Richter testified that he, alone, walked to the building, broke into it, and took goods and cash. He then walked back to the place where appellant had dropped him off, and appellant was there in the car. Appellant got out, opened the trunk and the stolen goods were placed inside it. The two then drove about 7 miles out of town to a vacant house which Richter was renting and hid the goods in it. A few days later appellant tried to sell the goods to one James, who declined to buy it after appellant told him the goods were “kind of warm.” Appellant later sold the goods to one Johnson, and Richter and appellant shared the proceeds. The evidence of appellant’s presence within Vi mile of the building, both before and after it was broken into, does not stand alone. The instruction merely told the jury that those facts could be taken into consideration together with all the evidence in determining appellant’s guilt or innocence. This is in accordance with established law, State v. McCreary, 504 S.W.2d 132, 134[1-5] (Mo.App.1973) and cases cited; State v. Stockdale, 415 S.W.2d 769 (Mo.1967). The instruction is supported by the evidence, and Point III is overruled.

The judgment is affirmed.

All concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    James Irving DUNCAN, Appellant, v. STATE of Missouri, Respondent.
    No. 35900.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 25, 1975.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 19, 1975.
    Application to Transfer Denied July 14, 1975.

      Kenney, Leritz & Reinert, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Clarence Thomas, Asst. Attys. Gen., Jefferson City, for respondent.
   NORWIN D. HOUSER, Special Judge.

Appeal from order denying an amended motion under Rule 27.26, V.A.M.R., to vacate a judgment convicting James Irving Duncan on pleas of guilty of forcible rape, assault with intent to ravish with malice, and robbery of a person, for which he was sentenced to 15 years, 10 years and 10 years, respectively, all to run concurrently. This is appellant’s second motion filed under Rule 27.26. Appellant’s first motion filed under Rule 27.26 was denied and that ruling affirmed on appeal. Duncan v. State, 471 S.W.2d 181 (Mo.1971).

In this second motion under Rule 27.26, as finally submitted after several amendments, appellant alleged: (1) inadequate representation by Attorneys Perryman and Hubei at the original proceeding, in that appellant was not adequately advised of his rights prior to his original plea of guilty; told that he would receive 2 years’ probation if he pleaded guilty; coerced into pleading guilty and receiving a sentence of 15 years; that someone else, Russell Pruit, was positively identified by the victim, but his attorneys failed to pursue this; (2) inadequate representation by Attorney Miguel C. Siyand at the hearing of his first 27.26 motion in that the attorney failed to consult with movant more than about 5 minutes prior to the hearing; failed to adequately develop in the first 27.26 hearing the inadequate nature of the representation afforded movant prior to his pleas of guilty, failed in his first 27.26 motion to raise and state all of movant’s grounds for relief and failed to furnish such proof of them as was available; and indequate representation on the subsequent appeal; (3) imposition of a 15-year sentence for forcible rape, which was “extremely harsh and unfair and much larger than the sentence that is normally given in cases of this nature.”

Following the hearing of the second 27.26 motion, at which appellant appeared in person and by counsel, the motion was denied. The court held that appellant was not entitled to an evidentiary hearing on (1) and (2) above; that (3) above should have been advanced in appellant’s first motion for relief and appellant was not entitled to an evidentiary hearing on (3), but that out of an “over-abundance” of caution and considering the extensive efforts of counsel in this regard the court would consider (3) on its merits. From a consideration of the pleadings, records, decisions, evidence, records of the department of corrections, statistics, tabulations, conclusions drawn therefrom, a publication entitled “Criminal Sentences, Law Without Order,” by Marvin E. Frankel, and the sentences in the light of the ranges of punishment provided by statute therefor and the fact that the sentences were ordered to run concurrently rather than consecutively, the court found “that the sentences were fair and reasonable, that they were not extremely harsh and unfair, and that movant was discriminated against neither as an individual nor as a member of a class.” This appeal followed.

Respondent filed a motion to dismiss this appeal on the ground that the issues here raised are not issues within the scope of a 27.26appeal and are not cognizable under a 27.26proceeding. This motion was ordered taken with the case.

The motion to dismiss the appeal must be sustained with respect to the points raised touching alleged inadequacy of representation of appellant by counsel and excessiveness of punishment.

The first allegation of the current motion (questioning the adequacy of the representation of appellant at the original hearing by attorneys Perryman and Hubei) constituted the main contention of appellant on the appeal of the denial of his first 27.26motion. The same complaints were raised; the same reasons given; they were fully explored and finally decided by the Supreme Court in Duncan v. State, supra. “[T]he subject has been exhausted and is now res adjudicata. Roe v. State, 496 S.W.2d 278 (Mo.App.1973); Huffman v. State, 487 S.W.2d 549 (Mo.1972).” Williams v. State, 507 S.W.2d 664, 666[1] (Mo.App.1974).

Nor is that part of the second allegation of the current motion (questioning the adequacy of the representation of appellant on the appeal of the order overruling his first 27.26 motion) cognizable in this second proceeding under Rule 27.26. “Rule 27.26is intended to provide a procedure by which a prisoner may attack his sentence; it is not intended for use as a procedure to attack the result of a prior post conviction proceeding. Therefore, movant’s charge that he was denied effective assistance of counsel in connection with his appeal in the first 27.26 case is not cognizable under this rule.” McCormick v. State, 502 S.W.2d 324, 326 (Mo.1973). That ruling and quotation applies with equal force to the instant charges of ineffective representation of counsel at the hearing of the first 27.26 motion. In this connection see Crosswhite v. State, 438 S.W.2d 11, 12[2] (Mo.1969). As suggested in Williams v. State, supra, 507 S.W.2d l.c. 666[6], as a practical matter there must be an end to litigation at some point, and if “a prisoner [were] permitted to challenge the effectiveness of his legal counsel at the first 27.26 hearing by means of filing a second 27.26, then he could likewise challenge his representation at the second hearing by filing a third 27.26, and so on ad infinitum. That patent absurdity would intolerably clutter the courts and would reduce the whole legal process to ridicule. The rule in Missouri avoids that result by declaring that proceedings under Rule 27.26 must be directed to defects which led to the original sentencing. Huffman v. State, 487 S.W.2d 549 (Mo.1972); McCormick v. State, 502 S.W.2d 324 (Mo.1973). * * * ”

With respect to the third allegation of the current motion (that the 15-year sentence for forcible rape was harsh and unfair and greater than is normally imposed in such cases): To the extent that this charges that the 15-year sentence was excessive and more severe than that meted out to others convicted of the same offense the motion to dismiss is sustained under authorities which hold that such matters do not constitute grounds for relief and are not matters to be considered on a Rule 27.26 motion, because the sentence was within the statutory limits authorized for punishment for the crime in question. Perryman v. State, 506 S.W.2d 480, 482[4] (Mo.App.1974); Newman v. State, 481 S.W.2d 3, 7[3] (Mo.1972); State v. Waller, 382 S.W.2d 668, 671[2] (Mo.1964).

During the course of the hearing appellant sought to broaden the issue beyond that of mere excessiveness of sentence, to encompass the constitutional question whether appellant had been denied equal protection of the laws, on the ground that the 15-year sentence discriminated against appellant because of his race and indigency. Appellant’s counsel took the position that in the City of St. Louis in forcible rape cases Negroes with appointed counsel receive more severe sentences than any other group or class of defendants in such cases. Appellant’s right to raise this issue was challenged on the basis of paragraph (d) of Rule 27.26, which prohibits entertainment of a second motion for relief where the new ground presented could have been raised in the prior motion, and places upon the prisoner the burden of establishing that the new ground could not have been raised by him in the prior motion. Appellant took the stand and attempted to meet that burden. He testified that after the appeal of the first 27.26 proceeding was ruled against him he received information about another rape case in which a defendant took $200 from the victim (appellant took only $1) and in which that defendant received a sentence of only three years’ imprisonment. The trial court initially ruled that this testimony met the burden and granted appellant a hearing on the equal protection question. Appellant’s counsel offered in evidence a “batch” of documents from the warden of the state penitentiary, consisting of 124 diagnostic data sheets relating to prisoners confined in the penitentiary on charges of forcible and statutory rape, and documents in ten or twelve other cases of this nature, in which the prisoners and their data sheets had been sent to other institutions. The “other cases” were to be supplied to the trial judge at a later date. Counsel for the State objected to the offer. Appellant asked the trial court to take judicial notice of the records of the twenty-one divisions of the Circuit Court of the City of St. Louis in rape cases disposed of in that circuit, which appellant’s counsel promised to find and submit “with sufficient data which we consider pertinent to the point made in our brief.” Counsel for the State objected to this line of proof. The trial court agreed to consider this data, and granted the parties several months’ time within which to collect the information, prepare the statistics and prepare and file original, answer and reply briefs. Apparently appellant’s counsel thereafter caused data to be assembled and statistics compiled, computerized and presented to the trial judge, together with briefs interpreting and drawing conclusions therefrom favorable to appellant’s claim of discrimination. The record does not show that these documents, files, and data from which statistics were compiled, and the charts and statistics themselves, were identified, marked and introduced in evidence. Except for charts exhibited at the oral argument of this appeal and counsel’s statements in their briefs none of this data has been made available to this Court. All of this data, however, appears to have been taken into consideration by the trial court in rendering final judgment.

Appellant is not entitled to relief on the constitutional issue. While trial errors affecting constitutional rights may be raised in proceedings under Rule 27.26, see paragraph (b)(3), such errors must be timely raised, like any other errors, and cannot be raised for the first time in a second motion under the rule unless the prisoner establishes that the new ground could not have been raised in the prior motion. Rule 27.26(d). Appellant made no satisfactory showing that he could not have included this ground in his first motion. That another defendant in another rape case received a three-year sentence, and that appellant learned of this after his first 27.26 motion had been ruled against him, was not sufficient to carry the burden imposed upon him by (d) supra.

In any event, the trial court’s finding that there was no discrimination is not clearly erroneous. Although no case so holding has been cited or found we assume without deciding that this case falls within the well-established rule that in the trial of criminal cases systematic discrimination against Negro defendants on the basis of race is unconstitutional, for instance, in the systematic exclusion of persons of African descent from jury panels. This established rule, if otherwise applicable, and if timely and properly raised, is not applicable for relief of this appellant because he has not made the necessary strong showing, based upon competent evidence, that such systematic discrimination exists in the City of St. Louis. Appellant’s documents, data and statistics were not identified, marked and received in evidence in an orderly manner. The objections to their admission in evidence should have been sustained. The data base of the statistics was not authenticated and validated. There is no evidence that the statistics take into account all relevant factors. The cases included in the statistics were taken indiscriminately. Appellant’s case has not been compared with cases involving similar, comparable surrounding circumstances. Circumstances alter cases. The circumstances under which forcible rapes are committed, which are to be considered in assessing punishment, vary so widely that a mere compilation of the number of years of imprisonment assessed in a large number of rape eases of all kinds is without compelling significance. Appellant’s statistics do not differentiate between forcible and statutory rapes; do not reveal such relevant factors as how the parties were brought together; resistance offered; fear engendered; amount and nature of force and violence employed, including means and instrumentalities used in compelling submission; injuries sustained by victims, ages of participants; physical and mental attributes of participants; previous character of victims, etc. There was no showing of similarity in these respects between appellant’s case and those included in the statistics. A conclusion as a matter of law that in the City of St. Louis black indigents represented by appointed counsel fare worse in the assessment of sentences for forcible rape than whites with retained counsel cannot be reached upon the basis of appellant’s unidentified, unauthenticated and nonvalidated statistics. The inclination of the tabulations in favor of appellant’s contentions and conclusions was not demonstrated to have been anything other than coincidental. The statistics do not leave one with the definite conviction that in the City of St. Louis a 15-year sentence for a forcible rape perpetrated under the aggravated circumstances present in this case would not have been assessed against a white defendant protected by retained counsel.

The appeal is dismissed as to the three points raised by appellant in his motion and the order denying the motion to vacate on the ground that appellant was not unconstitutionally discriminated against is affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.