author: SIMEONE, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph QUINN, Defendant-Appellant.
    No. 38799.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 14, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Application to Transfer Denied June 15, 1978.

      Robert C. Babione, Public Defender, Linda Murphy, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Frank Murphy, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael Ravetta, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   I.

SIMEONE, Chief Judge.

Defendant-appellant, Joseph Quinn a/k/a Joseph Nathan Quinn, was charged in two counts for the offenses of robbery in the first degree by means of a dangerous and deadly weapon and carrying a concealed weapon. The information also alleged a prior conviction. §§ 560.120, 560.135, 564.-610, RSMo. He was tried by a jury on both counts. The jury was unable to reach a verdict on the robbery count, but unanimously found him guilty of carrying a concealed weapon. Under the provisions of the second offender act, appellant was, on December 17, 1976, sentenced to four years in the Department of Corrections. § 556.280, RSMo. He appeals. We affirm.

Appellant does not question the sufficiency of the evidence. He raises two points on this appeal: (1) that it was “plain error” for the trial court to admit a gun into evidence because it was the product of an unlawful search and seizure and (2) that it was “plain error” for the trial court to allow him to represent himself since there was no valid, intelligent waiver of his right to counsel. Rule 27.20(c). We find neither point to be meritorious and affirm.

II.

The jury could reasonably find the following facts consistent with the verdict.

During the late hours on the evening of September 25, 1975, and at approximately 11:15 p. m., Mr. Louis Banks, a taxicab driver in the City of St. Louis, after delivering a passenger and after having some automobile trouble, stopped at a gasoline station at Glasgow and Cass Avenues to attempt to repair his vehicle. He was having trouble with a “[ljeaking bottom radiator hose” and “[t]he hot light kept showing — coming on and off.” While he was there, “the young man there [the defendant], he flagged me and I ignored him because I had car trouble.” There was a young woman with the defendant. The defendant came over to Banks and inquired, “ ‘You for hire?’ ” Banks indicated he was for hire and the defendant and the young lady got into the cab. The defendant indicated he wanted to go to an address on Washington Avenue — at first he gave one address and then another. When the cab arrived at “Pendleton and King Drive” and “[j]ust as I got to the church on Pendleton, that’s when he put the gun to my head.” He said, “ ‘This is a stick-up.’ ” Banks turned and “looked down the gun barrel.” Banks said, “ ‘Oh, man! You’ve got to be kidding!’ ” Defendant said, “ ‘Give me that money.’ ” Banks handed him eight dollars in “[o]ne dollar bills and singles.” Much was made of the way Banks “folded” his money, but the court sustained an objection by the “consulting attorney” to the introduction of the money. The defendant and the young lady, Shirley Sullivan, got out of the cab and the defendant “told [Banks] to go ahead before he would blow my brains out.”

Banks radioed his dispatcher that he had been robbed. The dispatcher notified the police. Officers Terran Williams and Kenneth Scoggins received a radio call “for a hold-up” and went to Banks. Banks described the individuals who robbed him and “an all-points over the police radio” was flashed. The officers told Banks to “leave my car where it was” and “I left the cab” and went with the officers. The officers and Banks responded to Sarah and Page to meet an officer a couple of blocks away, where they met Officer Timothy Diffley who had the defendant and Miss Sullivan in custody. Banks was asked to “ ‘[c]ome over and see if this is the man who robbed you.’ ” Banks identified the defendant. Later he saw the defendant again at the Eighth District Police Station. At trial Banks identified the defendant as the man who robbed him.

On that same evening, at about 11:58 p. m., Officer Timothy Diffley was cruising the area of the 1300 block of Sarah. “There had just been a description placed on the air of a subject wanted for armed robbery in the vicinity.” He observed a man and a woman fitting the description “seated on the steps in front of 1310 North Sarah.” When Officer Diffley first observed the defendant he was sitting “on the steps.” The woman was seated next to him. The man had a “brown paper bag in his hand.” The officer got out of the cruiser and asked the man to “step over to the cruiser.” “When [the defendant] got up, he gave the bag to her and then he started for the cruiser.” The officer asked the woman to come over to the cruiser and “when she got up, she placed the bag on the step.” When she came to the cruiser, the officer advised them that they fit the general description of the individuals wanted for the robbery and he placed them in the rear of the cruiser. The officer then “went over the the steps and retrieved the bag.” The bag was an 18 X 24 inch bag, folded in half. When the officer picked it up, he felt a gun in the fold of the bag — “[t]he gun was in a fold of the bag. The bag was folded over and it was in the fold of the bag.” There were two live rounds in the gun. He called for the car that put out the description of the robbery suspects; the car came to the scene and then went to the police station. At the station the defendant and Miss Sullivan were arrested. The defendant was advised of his rights and, after indicating he understood them, he made a statement that “it was his gun and he got it from a friend.” At the station the officer looked into the brown paper bag and found a half-pint bottle of gin and some personal papers. The officer also searched the defendant and recovered $5.35 from his person.

On November 10, 1975, an information was filed by the circuit attorney charging the defendant with a prior conviction and two counts of robbery first degree with a dangerous and deadly weapon and carrying a concealed weapon. Certain pre-trial motions were made including a motion to suppress the gun. On November 28, 1975, Mr. Neal P. Murphy of the Public Defender’s office entered his appearance as the trial attorney and filed motions for discovery and a psychiatric examination. On April 6, 1976, Mr. Joseph Beatty, assistant public defender, entered his appearance and moved for a psychiatric examination and filed a motion to suppress the gun and statements. A psychiatric examination was given and the defendant was found to have no mental disease or defect.

Trial began on November 22, 1976. Prior to trial the motions were taken up and there was a hearing, outside the presence of the jury, concerning the desires of the defendant to represent himself without a lawyer.

The assistant public defender informed the court that “[i]t is my understanding that Mr. Quinn wants to defend himself in this case.” The trial judge requested the defendant to come to the bench and asked the defendant, “Mr. Quinn, is it correct that you want to try this case yourself?” The defendant replied, “Well, this is what I request, sir” and “Yes, I request that.” The judge then (1) asked defendant how much education he had, (2) asked defendant what he knew about court procedures, (3) informed defendant that Mr. Beatty had tried many cases, (4) asked whether the defendant thought he could “come into this courtroom and defend yourself”, (5) informed defendant that he would be bound by the rules of evidence, (6) informed defendant that this is a “highly technical business,” and (7) asked defendant, “[h]ow do you think you can compete with [the prosecutor]?” The court also informed the defendant:

. . If you want to try the case yourself, all right. But one thing I want you to know . . . you are not going to ask a ridiculous question. If there are some questions you want him to ask, tell him you want him to ask those questions and he’ll do the best he can to present the point you wanted to present. . . .”

After a discussion concerning law books and Miss Sullivan, the court then addressed the defendant, “Now do you still want to try this case yourself?” The defendant replied, “Yes, Your Honor, I would like to.” The court then said, “All right then.” The jury was then told that Mr. Quinn would defend himself and that Mr. Beatty would assist him “wherever he needs help.”

Prior to trial the motions to suppress were heard and overruled. The trial proceeded. At trial the above evidence was introduced. The defendant cross-examined the state’s witnesses, and at various times the public defender participated in the trial and made certain objections and statements.

The defendant testified in his own behalf. But before he did so, he was warned by Mr. Beatty that he did not have to take the stand and had a right to remain silent. If he took the stand his prior convictions “could be brought in.” The defendant indicated he wanted to testify and would bring up his prior convictions himself.

The testimony of the defendant conflicted with the state’s witnesses. He was questioned by his court-appointed attorney, Mr. Beatty. He testified that on the morning of September 25, 1975, he was in Hayti, Missouri and left there by bus with Miss Sullivan. They arrived in St. Louis “about 10:40 or maybe something like that” or “about 11 — about 11:05 or 11:00. Something like that.” When they arrived they took a cab and asked the driver to take them to “1306 North Sarah.” He had property there — “my clothes [were] there with a friend of mine.” They arrived about 11:30 p. m. They walked to the house; he couldn’t find his key so he went to a friend’s home at “1310 North Sarah,” knocked on the door but she wasn’t home. They waited on the steps. Officer Diffley pulled up in front and called to him to come to the cruiser.

“I gets up. I had the gun in my waistband. I puts the gun on the steps out of my waistband because a police officer was pulling up and I didn’t want him to catch me with no gun on me. It’s a felony offense . . and so I walks up to the cruiser.”

The officer told him he had been identified. Officer Diffley called Miss Sullivan to the cruiser.

“She had my bag in her hand. She was holding it in her lap on the steps. She gets up and puts the bag on the side of the steps and the gun, it was — the gun was behind me. The gun was not in the bag. The officer said the gun was in the bag. It was behind me on the step. I put it from my waistband between me and the girl on the steps because I saw the cruiser pulling up.”

He testified that they were handcuffed and placed in the back seat. When he arrived in St. Louis he had about $345.00 on him— the proceeds that were left of a settlement for a workmen’s compensation claim. He contended that the officer took the billfold out of his pocket and took “my money.” When asked what happened to the rest of the money other than the $5.00, he replied, “I don’t know. That’s what I been trying to find out.”

Instructions were given and arguments were made. In Mr. Quinn’s closing argument he stated that the officer said the gun was concealed underneath the bag. “It’s not concealed. The gun was neither concealed on me. I had it showing on my person.”

He denied robbing Banks-—

“. I’m here to prove to you all I did not rob Mr. Louis Banks. The police, when they arrested me, I had filed suits — complaints against the police department, [the county supervisor] and the Circuit Attorney, Brendan Ryan and his assistant, his aid. They got those in evidence here and framed me on the robbery charges here. They deliberately paid Mr. Banks — this man to say what he said to frame me.”

As to the verdict directing instruction on the concealed weapon (count II), he argued, “As I stated, it was observed. I had it to my side.” He explained that Miss Sullivan was involved with others in a robbery in Arkansas and “I arrived in St. Louis with this weapon — with this weapon the individual used in the robbery and — robbed in Arkansas.”

The jury retired; ■ it was not able to reach a verdict on the robbery count, but found the defendant guilty of carrying a concealed weapon. After a motion for new trial, which did not include an assignment concerning his voluntary waiver of counsel, was overruled and allocution granted, the court sentenced the defendant to four years in the Department of Corrections.

III.

On this appeal appellant makes two points. He contends, first, that “[i]t was plain error for the Court to admit into evidence the pistol . . because it was seized after a police officer searched a bag while the Appellant was locked in a police cruiser” and that such seizure was “unreasonable” and not within any of the exceptions to the constitutional requirements for a warrant. He contends that the search and seizure of the bag (1) was not incident to an arrest, (2) was not within the exception of “exigent circumstances,” (3) was not within the scope of the plain view doctrine and (4) cannot be justified on the grounds that the bag was abandoned property. Secondly, he contends that the court erred in permitting the defendant to represent himself because the waiver of counsel was not valid “where the trial court asked only five questions of the Appellant at a hearing regarding his representation and where the information elicited from Appellant . . was not probative of whether or not Appellant was making an intelligent waiver.”

The respondent justifies the seizure of the gun on the basis that the bag was in effect discarded by appellant and argues that, when articles are “dropped or thrown away by the person arrested, and picked up by the officer, the articles are admissible The state argues that because appellant discarded the bag there was in effect no search and seizure and that innocent looking objects may be seized as incriminating evidence under suspicious circumstances. The state also justifies the seizure because the officer “ ‘presumed it was part of their property’” and that he retrieved the bag “for safekeeping” and safeguarding appellant’s possessions. An oblique reference in the brief with no citation of authorities also justifies the search of the bag for “inventory purposes.”

As to appellant’s second point, respondent contends that the court did not err in permitting appellant to defend himself because sufficient information was elicited to show an intelligent waiver and that counsel in effect appeared as co-counsel in the case.

IV.

Much has been written concerning the Fourth Amendment as applicable to the states.

“The Fourth Amendment as applicable to the States protects the right of the people to be secure in their [privacy] by providing that search warrants shall be obtained upon probable cause supported by oath or affirmation. Despite the clear preference of the law for searches authorized by search warrants and despite the general principle that in order to search and seize, a warrant is to be obtained from a neutral and detached magistrate, there have been carved out a few well-delineated exceptions.” State v. Wiley, 522 S.W.2d 281, 289 (Mo. banc 1975).

The general principle is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). The exceptions are said to be “jealously and carefully drawn.” Coolidge, 91 S.Ct. at 2032; Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). The burden is on those seeking the exemption to show the need for it. While the basic purpose of the Fourth Amendment, as applicable to the states, is intended to protect the privacy of the individual from unreasonable searches and seizures, Matter of Duncan, 541 S.W.2d 564, 570 (Mo. banc 1976), South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), Powell concurring, 96 S.Ct. at 3100, the amendment does not prohibit all governmental searches and seizures or invasions of privacy but prohibits only unreasonable searches and seizures. State v. Collett, 542 S.W.2d 783, 787 (Mo. banc 1976).

Of course, for the amendment to be applicable, there must be a “search” or “seizure.” A “search” involves, of necessity, a quest for, a looking for, a seeking out of that which offends against the law and it implies a prying into hidden places for that which is concealed and not that which is open to view. State v. Reagan, 328 S.W.2d 26, 28-29 (Mo.1959).

The normal and ordinary limitations to the warrant requirement have recently been discussed. See State v. Hall, 508

S.W.2d 200, 202-203 (Mo.App.1974); State v. Funk, 490 S.W.2d 354 (Mo.App.1973); and Kansas City v. Butters, 507 S.W.2d 49, 53 (Mo.App.1974). In Butters, 507 S.W.2d at 53, it is stated:

“A properly issued search warrant does not stand alone as the only means by which the Fourth Amendment requirement of reasonableness can be met. The Fourth Amendment’s absolute admonition against unreasonable searches is not violated, (1) by a search incident to a lawful arrest, Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), (2) by protective searches by officers for weapons upon less than probable cause to arrest, Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), (3) by seizure of items falling within the ‘plain view’ doctrine, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), nor (4) by the search of a motor vehicle where ‘probable cause’ exists to believe that it contains a substance which offends against the law, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 453 (1925) and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).”

Other exceptions, of course, are recognized — consent, State v. Rush, 497 S.W.2d 213, 215-216 (Mo.App.1973); exigent circumstances, Wiley, 522 S.W.2d at 293-295; inventory searches, Opperman, 96 S.Ct. at 3098, State v. Achter, 512 S.W.2d 894, 904 (Mo.App.1974); officer sees a person “drop evidence” and the officer seizes it, State v. Hall, 534 S.W.2d 508, 510 (Mo.App.1976), State v. Boykins, 434 S.W.2d 484, 486 (Mo. 1968), State v. Baines, 394 S.W.2d 312, 315-316 (Mo.1965), cert. den. 384 U.S. 992, 86 S.Ct. 1900, 16 L.Ed.2d 1008, State v. Jefferson, 391 S.W.2d 885, 888 (Mo.1965); property is abandoned, State v. Brewer, 540 S.W.2d 229, 231 (Mo.App.1976), State v. Tarantela, 461 S.W.2d 848, 851 (Mo.1971), State v. Stavricos, 506 S.W.2d 51, 58 (Mo. App.1974), and State v. Jackson, 476 S.W.2d 540, 542 (Mo.1972).

In ruling upon the Fourth Amendment considerations with reference to search and seizure, the courts view the “totality of the circumstances” and the “concrete factual context.” State v. McGee, 473 S.W.2d 686, 687 (Mo.1971); Butters, 507 S.W.2d at 52; Hall, 508 S.W.2d at 202.

The context of the situation here was that a robbery had recently taken place. Banks, the victim, described his assailants. A call was put out over the radio. Within a short time, Officer Diffley saw the appellant and Miss Sullivan. Both persons fit the description. The appellant had a brown paper bag in his hand. When the officer called to the appellant and before he came to the cruiser, he gave the bag to Miss Sullivan. She held the bag. When the officer asked her to “come over” to the cruiser she placed the bag on the step. That is when the officer “went over to the steps and retrieved the bag” because he “presumed it was part of their property.” Upon picking up the bag, although the officer could not see the gun, the officer “felt” the gun inside — “it was in a fold of the bag.” Under these circumstances we hold there was no constitutional violation.

In viewing the “totality of the circumstances” in this proceeding, we are convinced that the action of Officer Diffley in retrieving the 18" X 24" bag on the steps after it had been placed there by Miss Sullivan and finding a gun in the fold of the bag was not violative of the appellant’s Fourth Amendment rights.

First, we do not believe that there was, in this case, a “search” within the technical meaning of that term. A “search,” within the constitutional provision, involves a “ ‘quest for, a looking for, or a seeking out of, that which offends against the law. It implies a prying into hidden places for that which is concealed.’ . . ” Reagan, 328 S.W.2d at 28, quoting from State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 692 (1951). Here the officer did not seek out or specifically look for that which offends against the law. Upon placing the appellant into the police cruiser he “went over to the steps and retrieved the bag”— the property of the appellant. It was then that he “felt” the gun in the bag. He was not searching for any weapon or other material offensive to the law.

Second, there was not an unreasonable “seizure”—the ultimate test under the Fourth Amendment—in retrieving the bag and “seizing” the gun. The officer saw two people on the porch, not in a home, with a bag. The officer could reasonably anticipate that it belonged to one or the other or both. The appellant does not question that the officer had probable cause to stop and arrest the appellant. When he placed appellant in the cruiser, he was in effect arrested. A robbery had just occurred; the bag was left on the step; the officer was going to take the two into custody. If the officer did not retrieve the bag on the step, he may well have been subject to criticism or at worst legal action. To wait on the street and “stand over” the bag until a search warrant could be obtained would be impractical. The test is not whether it is reasonable to obtain a warrant but whether the seizure of the bag under these circumstances was reasonable. See Mulligan v. United States, 358 F.2d 604, 607 (8th Cir. 1966). The Fourth Amendment does not require that the police blindly ignore evidence which is left under such circumstances. See Brewer, 540 S.W.2d at 231. The practical and reasonable action was to retrieve the bag, and, upon taking possession of the bag, the officer was justified in taking the gun found in the fold. The gun contained two live rounds. Since the robbery had recently taken place in which a gun was used, it was reasonable for the officer to anticipate that the bag contained either a weapon or the fruits of the offense. See Collett. “Under suspicious circumstances . . . innocent looking objects may be legally seized as incriminating evidence.” Hall, 534 S.W.2d at 511.

Third, we believe that the retrieval of the bag in which the gun was found was a “caretaking” procedure akin to an inventory search. Opperman, 96 S.Ct. at 3096. Inventory procedures have been sustained as “reasonable police intrusions.”

“ ‘[Wjhen the police take custody of any sort of container [such as] an automobile . it is reasonable to search the container to itemize the property to be held by the police. [This reflects] the underlying principle that the fourth amendment proscribes only unreasonable searches.’ United States v. Gravitt, 484 F.2d 375, 378 (CA 5, 1973), cert, denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974) (emphasis in original).” Opper-man, 96 S.Ct. at 3097-3098.

While Opperman dealt with an automobile, the Supreme Court decision broadly dealt with the “caretaking” function. Mr. Justice Powell, in a concurring opinion, stated: “The protection of the owner’s property is a significant interest for both the policeman and the citizen.” 96 S.Ct. at 3101. See also State v. Masters, 530 S.W.2d 28 (Mo.App. 1975), where the defendant’s wallet was taken at a hospital which yielded incriminating evidence.

Fourth, the retrieval of the bag came within the “plain view” exception to the warrant requirement although the contents of the bag were not readily perceived. “Plain view” alone is not sufficient to justify a warrantless seizure. It is also necessary that (1) the evidence be observed in plain view while the officer is in a place where he has a right to be, (2) the discovery of the evidence is inadvertent and (3) it is apparent to the police that they have evidence before them. Collett, 542 S.W.2d at 786; Coolidge, 91 S.Ct. at 2037. These requirements are met here. When the bag was left on the steps by Miss Sullivan after the appellant gave it to her, and after the two were placed in the cruiser, it was reasonable for the officer to anticipate that the bag [as the purses in Collett] might contain “some incriminating evidence.” Collett, 542 S.W.2d at 787. The officer could reasonably be justified in believing that the bag [as the purses in Collett] contained evidence relating to the offense for which the appellant was arrested. It was thus reasonable for the officer to seize the gun when he felt it in the fold of the bag.

Fifth, the circumstances here are analogous to the so-called “dropsy cases.” In such cases the objects seized are sometimes innocuous.

In Jackson, 476 S.W.2d 540, a police officer sought to help a stalled truck. He saw the defendant drop a Bufferin bottle to the ground and retrieved the bottle which contained narcotics. The court held that where the officer simply retrieved the bottle from the pavement there was no search, and absent a search there could be no seizure.

In Brewer, 540 S.W.2d 229, the defendant, upon seeing officers, took an object from his pocket and wrapped it in a T-shirt and placed it in the gutter. The officer examined the object and discovered a pistol. Defendant was convicted of carrying a concealed weapon. This court held that there was no unconstitutional search and upheld the admission of the evidence under the “dropsy cases.”

While the bag was not “dropped,” “cast aside,” “abandoned” or “discarded” in the sense used in the above cases, the bag was given to Miss Sullivan and “left” by her on the steps so that the above decisions are sufficiently analogous to uphold the admission of the evidence found within the fold of the bag.

Sixth, whatever error there may have been in the introduction of the weapon into evidence, we believe that the error, if any, was cured by the judicial admissions made by the defendant in his testimony and in his closing argument. In his direct testimony, the appellant admitted:

. . I had the gun in my waistband. I puts the gun on the steps out of my waistband because a police officer was pulling up and I didn’t want him to catch me with no gun on me. It’s a felony offense—you know—and so I walks up to the cruiser.”

He argued that, while he had the gun, it was discernable by ordinary observation. “As I stated, it was observed. I had it to my side.” Appellant admitted he had a gun in his waistband but argued that it was discernable when he put it down. In State v. Hogan, 273 S.W. 1060 (Mo.1925), where the accused admitted he was carrying a gun when arrested, the admission of other revolvers was not prejudicial. See cases collected in 9C Mo. Digest, Criminal Law.

In such circumstances, any error in the admission of the weapon was cured by the appellant’s own testimony.

Seventh, although this point was raised as “plain error,” we find no manifest injustice or miscarriage of justice in the admission of the gun. Rule 27.20(c). While a motion to suppress the gun was filed prior to trial and the motion was heard and overruled, no objection to the admission of the gun was made at trial. It is elementary that, to preserve the issue for appellate review, a motion to suppress items of evidence must be made and an objection must also be made at trial. State v. McLemore, 541 S.W.2d 723, 724 (Mo.App.1976); State v. Murphy, 521 S.W.2d 22, 25 (Mo.App.1975); Hall, 534 S.W.2d at 510 and cases cited therein. Rule 27.20(c) permits us in our discretion to consider “[p]lain errors affecting substantial rights” when the court “deems that manifest injustice or miscarriage of justice has resulted therefrom.”

We are convinced that the invocation of the plain error rule is inapposite as to this point raised by the appellant even though defendant acted as his own attorney. The retrieval of the bag in which Officer Diff-ley found the gun in the fold was not such an unreasonable act under the circumstances or constituted such a manifest injustice or miscarriage of justice so as to reverse the conviction.

In this decision we do no violence to Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). There police officers armed with a warrant of arrest but no warrant to search went to the defendant’s home and searched the house of the defendant. The Supreme Court held the search invalid, stating:

“. . . In addition [to searching the person incident to an arrest], it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” 89 S.Ct. at 2040.

The Court held that the warrantless search incident to an arrest is limited to the “area ‘into which an arrestee might reach’.” See also Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 2004, 36 L.Ed.2d 900 (1973).

We do not believe that Chimel is disposi-tive of the issue here.

This is not a situation where there was a search and seizure of the bag “incident to an arrest.” Officer Diffley did not “search” the area beyond which the appellant might reach; he did not “seek out,” or make a “quest for,” the gun; he did not “look for” the weapon. He simply retrieved the bag and “felt” a gun and then took it into custody.

Chimel has not been applicable to all situations when the “search” took place beyond an area where the person might reach. The thrust of Chimel was that the arrest of a person could not justify a routine search beyond the area where he might reach. Cf. Wiley, 522 S.W.2d at 289-291.

We hold the appellant’s first point to be without merit.

V.

We turn to appellant’s second point — that the court erred in permitting defendant to represent himself because the appellant’s “waiver” of his right to counsel, guaranteed by the Sixth and Fourteenth Amendments and Article I, section 18(a) of the Missouri Constitution, was invalid since there was not an intelligent waiver of the right to counsel under the circumstances. This point, too, is raised as “plain error; ” the point was not raised in the motion for new trial. Appellant argues that the record does not reflect the “painstaking” or “solicitous” or “penetrating” or “comprehensive” inquiry that “the courts have mandated to determine if a waiver is made knowingly and intelligently.” Appellant argues that the record reflects that a total of “five” questions were asked and that none of the responses “give an indication of whether or not Appellant was making a knowing and intelligent waiver. . . . The record fails to demonstrate that Appellant’s waiver was a knowing and intelligent one and therefore the presumption that it was not, must stand.”

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court of the United States was faced with the issue of “whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” Faretta, 95 S.Ct. at 2527 (emphasis in original). While not an “easy question” the Court concluded that a state may not constitutionally force a lawyer upon the defendant. The trial court held that Faretta had no constitutional right to conduct his own defense and required that the defense be conducted only through the appointed attorney. The California court affirmed the conviction. The Supreme Court, however, reversed.

In the course of the opinion the Supreme Court stated:

“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits. . . Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ . ” Faretta, 95 S.Ct. at 2541 (emphasis added).

Since the record indicated that Faretta was literate, competent and understanding and that he was voluntarily exercising his right, the Court reversed the judgment forcing Faretta to have appointed counsel.

Appellant also relies upon State v. Tilley, 548 S.W.2d 199 (Mo.App.1977). In Tilley, the defendant was convicted of stealing over $50.00. In his motion for new trial, defendant contended he did not knowingly and intelligently waive his right to counsel and was prejudiced by being required to represent himself. This court held that the record did not indicate that the defendant “understood the dangers and disadvantages of self-representation,” as required by the authorities. This court noted that during the trial defendant’s lack of knowledge and training became “quite obvious.”

In the circumstances here, we conclude that there was no “plain error” in permitting the appellant to represent himself because (1) the appellant’s Sixth and Fourteenth Amendment rights were not violated, (2) the defendant knew what he was doing and his choice was made with “eyes wide open,” (3) the record shows that he was made aware of the dangers and disadvantages of self-representation as required by Faretta, and (4) the appellant was protected by the presence of counsel who participated in the defense of the case in numerous aspects.

At the beginning of the trial the appellant was asked whether he desired to represent himself; he replied, “. . . this is what I request, sir.” The trial court inquired about his education, warned him of the dangers of trying the case himself, informed him that this is a “highly technical business,” and inquired of him how he thought he could compete with the experienced prosecutor.

Furthermore, throughout the trial the appellant was given the assistance of appointed counsel. On numerous occasions counsel objected, made motions, interrogated witnesses and offered instructions. In fact, at one point, the prosecutor complained that the appointed counsel was “filling in” as to the points that the appellant may or may not have missed. Here there was more than standby counsel; there was participating counsel. Cf. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 506, 27 L.Ed.2d 532 (1971), Chief Justice Burger concurring.

We do not believe that Tilley is controlling. In Tilley, the trial court merely inquired whether the defendant wished to represent himself and did not make the defendant aware of the dangers and disadvantages of self-representation.

Under these circumstances, we cannot conclude that there was plain error. There was no manifest injustice or a miscarriage of justice. The appellant was interrogated at the beginning of the trial; he indicated a desire to represent himself; he was informed of the intricacies of trying the cause himself. He was made aware of the dangers and disadvantages of self-representation. The public defender in many respects aided him throughout the trial. There was no miscarriage of justice.

Normally, the plain error rule is rarely invoked by appellate courts. See State v. Shelton, 544 S.W.2d 599 (Mo.App.1976); Murphy, 521 S.W.2d at 25; V.A.M.R., Rule 27.20, Notes 166-177. Since its adoption, Rule 27.20(c) has been invoked on a case to case basis to prevent manifest injustice or miscarriage of justice. In order to invoke the plain error rule, there must be a sound, substantial manifestation, a strong, clear showing that injustice or miscarriage of justice will result if the rule is not invoked. The ordinary rules of judicial procedure cannot be abandoned. To do so would invite chaos. Only by adhering to the established rules will we have an orderly process. State v. Meiers, 412 S.W.2d 478, 480-481 (Mo.1967).

We conclude that appellant’s second point is also without merit.

VI.

We have read the entire transcript, the briefs of the parties and all the authorities relied upon therein. We have conducted our own independent research and we are convinced that there was no “plain error” causing manifest injustice or a miscarriage of justice, so the judgment of conviction should be affirmed.

The judgment is affirmed.

GUNN and KELLY, JJ., concur.

APPENDIX

When a defendant or his counsel in a criminal case informs the court that he desires to represent himself, the trial court should engage in a discussion with the defendant. The discussion between the trial court and the defendant should fall into three general categories:

(1) The defendant should be made aware of the dangers and disadvantages of self-representation. The defendant should be advised (a) that self-representation is almost always unwise and that he may conduct a defense ultimately to his own detriment, (b) that he will receive no special indulgence by the court and that he must follow the technical rules of substantive law and criminal procedure and evidence, and (c) that the prosecution will be represented by an experienced, professional counsel.

(2) The court should make inquiry into the defendant’s intellectual capacity to make an intelligent decision: (a) inquiry should be made of his education and familiarity with legal procedures, (b) if there is any question as to the defendant’s mental capacity, an inquiry into that subject should be made, (c) defendant should be made aware that he has a right to counsel at no cost if indigent, (d) the court should explore the nature of the proceedings and establish that defendant knows what he is doing and his choice is made with his eyes open, and (e) defendant should be informed that if there is misbehavior or trial disruption, his right of self-representation will be vacated.

(3) The defendant should be made aware that in spite of his efforts he cannot after-wards claim inadequacy of representation.

These suggestions are based upon People v. Lopez, 138 Cal.Rptr. 36, 71 Cal.App.3d 568 (1977).

      . On the motion to suppress heard prior to trial, Officer Diffley testified that “[a]fter putting him in the cruiser, 1 went over and retrieved the bag.” When asked what was his reason to get the bag, he “presumed it was part of their property.” Upon picking up the bag, he recovered a .32 caliber revolver in the “middle fold of the bag.”

      . The defendant replied, “Well, the questions that I would ask, he won’t ask, 1 know. 1 know.”

      . Mr. Beatty objected to Banks identifying the folded money and made a statement. He cross-examined Banks for several pages. At one point the prosecutor objected to both the defendant and Mr. Beatty asking questions and “this filling in of Mr. Beatty as to points that Mr. Quinn may or may not have missed.” Mr. Beatty presented the court with a motion for directed verdict at the close of the state’s case. At the conclusion of the case Mr. Beatty also requested an instruction.

      . See the classic statement of Mr. Justice Jackson concerning the policy underlying the Fourth Amendment in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436, quoted in Coolidge, 91 S.Ct. at 2029.

      . In Coolidge, 91 S.Ct. at 2059-2060, Mr. Justice Black said:
      “[T]he Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only ‘unreasonable searches and seizures.’ The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.” (emphasis added).

      . See also Hall, 508 S.W.2d at 202 -203; State v. Holman, 556 S.W.2d 499, 504-505 (Mo.App. 1977).

      . What would the officer have done if, while watching the bag a stranger came up, claimed the bag was his and wanted to take “his property?” Would the officer be justified in prohibiting the taking?

      . The officer’s testimony is somewhat conflicting—at one point he stated that he felt the gun inside and “opened it up” and at another point he stated that the gun was in the “fold of the bag.” The distinction is not crucial.

      . In Jefferson, 391 S.W.2d at 888, it is said: “Where the articles sought to be suppressed were in plain sight of the arresting officer, were dropped or thrown away by the person arrested, and were picked up by the officers, the articles are admissible in evidence over an objection that they were seized as the result of an unlawful search.” Stavricos, 506 S.W.2d 51— throwing sack over fence (abandonment); Tarantela, 461 S.W.2d 848—throwing items in fire (abandonment); Baines, 394 S.W.2d 312—defendant threw an envelope on floor and officer retrieved it—no seizure; State v. Owens, 391 S.W.2d 248 (Mo. 1965); Boykins, 434 S.W.2d 484—dropped package on street; State v. Hill, 562 S.W.2d 801 (Mo.App.1978).

      . Appellant relies upon several cases dealing with the general principles relating to the right to counsel and an intelligent waiver thereof. Among the cases relied upon are Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . Questioning by the judge revealed that Far-etta had once represented himself in a criminal prosecution, that he had a high school education and that he did not want the public defender. The judge responded that he believed Far-etta was making a mistake, and emphasized that he would receive no special favors, that he was going to follow the procedures, that he would have to ask the questions right and that he would have to play with the “same ground rules.” The judge prior to trial sua sponte held a hearing and questioned him about the hearsay rule and the challenge of potential jurors.

      . The Court emphasized that the trial court warned Faretta that it thought it was a mistake not to accept the assistance of counsel and that he would be required to follow the “ground rules” of trial procedure. The Court made no assessment of how well or poorly Faretta had mastered the hearsay rule of the challenges to jurors for his “technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.” 95 S.Ct. at 2541.

      .In State v. Gaye, 532 S.W.2d 783 (Mo.App. 1975), we held that, where the defendant had more than one lawyer and caused several delays in bringing the case to trial, he knowingly and wilfully waived his right to counsel when he was advised against self-representation and warned of the risks, pitfalls, possibilities and serious consequences of his conviction. A lawyer was present in the courtroom in case appellant desired to consult with him.

      . Compare the colloquy in this case with the colloquy in Faretta.

      . Since this is one of the first cases to be decided after Faretta in this state, we make certain suggestions to the trial courts concerning the procedures to be followed when a defendant in a criminal case informs the court that he desires to represent himself. These suggestions are embodied in the appendix following this opinion.


source: Caselaw Access Project

author: REINHARD, Judge.

license: Public Domain

text:
    Leonard SUMMERS et al., Plaintiffs-Appellants, v. UNION ELECTRIC COMPANY, Defendant-Respondent.
    No. 37984.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 21, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Application to Transfer Denied June 15, 1978.

      Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Jack C. Stewart, Hillsboro, for plaintiffs-appellants.
    Thurman, Nixon, Smith, Howald, Weber & Bowles, James E. Bowles, Hillsboro, for defendant-respondent.
   REINHARD, Judge.

Plaintiffs brought this action for damages for destruction of plaintiffs’ property by fire, due to the allegedly negligent conduct on the part of defendant in “energizing” plaintiffs’ property. A jury found in favor of defendant and plaintiffs appeal.

On February 26, 1973, pursuant to a request by one Donald Harris, defendant dispatched one of its employees to energize a building owned by plaintiffs, Leonard and Evelyn Summers. Donald Harris had called to request that Union Electric provide electrical service to a building that he intended to rent, and from the conversation between Mr. Harris and defendant’s agent, defendant understood that the property to be connected was that owned by plaintiffs, located on the east side of Highway CC, 1.2 of a mile west of Highway 110. As a result of this request, defendant dispatched Frank Steinman to “reconnect” or “turn on” the meter, thereby energizing the garage and attached apartment which comprised one of the two buildings on the Summers’ property. At the time of the reconnection of the meter on the garage-apartment complex and the subsequent fire, the Summers were in the process of moving into a brick home also on the property. The Summers were not present at the time the meter was connected by Steinman, had neither requested nor authorized the connection and did not know Donald Harris nor authorize him to request a service connection.

Steinman testified that upon connecting Union Electric’s electrical wires to the meter on the garage-apartment building, he heard a motor running inside the garage and went to the main house on the property to inform someone about the noise. Stein-man met Vernon Roth, who was helping install a water heater in the house on Summers’ property, and told Roth about the noise in the garage. The two men then went into the garage. Roth testified that he turned off a blower on an oil furnace in the garage. Roth also testified that he saw several bare wires hanging from switch boxes and light receptacles in the garage building at this time but that he was unsure whether Steinman had seen the wires. In his testimony, Steinman stated that he, Steinman, pulled the main fuse on the fuse box, cutting off the electricity in the garage, a fact Roth disputes. Steinman also stated that he never saw any exposed wiring in the garage at this time.

A day or two after the meter was reconnected, Mr. Summers noticed a light on in the apartment and switched off the light. Summers testified that the next day he called Union Electric to inform the Company that he had electricity in his building, which he was not supposed to have. He further testified that the Union Electric employee told him that he had no electricity in that building, but that Union Electric would send someone to “check about it”. The employee to whom Mr. Summers allegedly spoke denied receiving any such call from Leonard Summers. Summers knew that there were several bare wires hanging exposed in the garage during the week immediately preceding the fire, and between the time he discovered that there was electricity in the garage building and the time of the fire, he neither took out any fuses nor turned off the switch box to the garage. He admitted he knew that if the fuses were removed there would have been no electricity in the garage.

On March 3, 1973, the evening before the fire the Summers placed their 1972 Ford pick-up truck in the garage, which then contained various items of property, including a deep freeze, a washing machine and a dryer, an air conditioner, a fully equipped tractor and some tools. A fire occurred the next day, on Sunday, March 4, destroying the garage and apartment and the property contained therein. Plaintiffs offered expert testimony to the effect that the fire was of a high level burning of “electrical origin in the ceiling part of the garage-apartment complex”.

Plaintiffs claim that the court erred in submitting Instruction No. 8, defendant’s contributory negligence instruction; in failing to submit an instruction defining “negligence”; and in admitting in evidence a bank appraisal of plaintiffs’ property.

We first must consider defendant’s argument that plaintiffs failed to make a submissible case because alleged errors in the trial proceedings become immaterial if plaintiffs failed to make a submissible case. Wilkerson v. State Farm Mutual Automobile Ins. Co., 510 S.W.2d 50 (Mo.App.1974).

Plaintiffs alleged in their petition and submitted to the jury several theories of recovery based on negligence. One theory being that defendant was negligent in energizing their property under conditions known to it or discoverable upon reasonable inspection. The law in respect to liability of a power supplier for damages resulting from defects in wires owned and controlled by the customer was clearly stated in Kuhlman v. Water, Light & Transit Co., 307 Mo. 607, 271 S.W. 788, 796 (1925):

“. . • [T]he weight of authority seems to support the view that, if the appliances [lines] of the customer are not constructed or owned by the company generating the electricity, the company is not bound to inspect the same, and is not liable for an injury that is received by reason of defects in such appliances [lines], where it has no knowledge of the defects, though the electricity which causes the injury comes from its generating plant”. (Emphasis added).

Union Electric had no duty to inspect beyond its own lines. Liability could only be predicated upon defendant’s actual knowledge of the condition of the wiring in the garage-apartment complex. Roth testified that he and Steinman entered the garage in daytime and that several bare wires hung in various parts of the garage. Roth was unable to say, however, whether Stein-man had seen or even looked in the direction of the exposed wires. Roth’s testimony that he, Roth, saw the wires is plaintiffs’ only evidence of defendant’s knowledge of the hanging wires. The. record is devoid of any direct evidence that Steinman had actual knowledge of the defective condition of the wiring. In the absence of a duty on defendant’s part to inspect plaintiffs’ wires, we hold the jury could not be permitted to infer actual knowledge from the circumstances detailed in Roth’s testimony. Voorhees v. Chicago, R. I. & P. Ry. Co., 325 Mo. 835, 30 S.W.2d 22 (1930), 29 Am.Jur.2d, Evidence, § 221, p. 271.

Because there was no evidence that Steinman had actual knowledge of the defective wiring, plaintiffs’ argument that defendant was negligent because Steinman “'failed to immediately de-energize said electrical wiring”, must also fail.

Finally, plaintiffs submitted on their theory that the defendant was negligent in failing to warn of its intention to energize plaintiffs’ property or in failing to warn that the property had been energized. The purpose of a “warning” is to apprise a party of the existence of danger of which he is not aware to enable him to protect himself against it, and where the party is aware of the danger, the warning will serve no useful purpose. Plaintiffs had knowledge that the property was energized five (5) days before the fire and thus, defendant’s failure to warn could not have been the proximate cause of plaintiffs’ loss.

We conclude that plaintiffs failed to make a submissible case under any of the theories presented by them. However, we are compelled to disagree with defendant’s contention that there was no evidence of negligence by it “in taking the order from Donald Ray Harris, in issuing the order to Frank Steinman, or in Frank Steinman’s execution of that order”. Those generating, transmitting or distributing electricity are obliged by law to exercise the highest degree of care, Foote v. Scott-New Madrid-Mississippi Electric Coop., 359 S.W.2d 40, 43 (Mo.App.1962), and liability may be found on the basis of acts or omissions which result in reasonably foreseeable harm to person or property. Tellis v. Union Elec. Co., 536 S.W.2d 742 (Mo.App.1976). We believe the duty to use the highest degree of care includes a duty to energize property only with the consent and authority of the owner. As applied to this case, Union Electric had a duty not to energize plaintiffs’ property without proper authorization. This duty and the breach thereof was neither pleaded nor submitted as a theory of recovery.

Since plaintiffs failed to make a submissi-ble case on any of their theories, it becomes unnecessary for us to review their allegations of trial errors or defendant’s claim that plaintiffs were contributorily negligent as a matter of law.

Judgment affirmed.

STEWART, P. J., and SMITH, J., concur.

      . According to defendant’s records, the property about which Mr. Harris had actually been speaking was located on the west side of Highway CC, .7 of a mile north of Highway 67.

      . There is no claim that Roth was an agent of Plaintiffs.


author: WELDON W. MOORE, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Carl LOWERY, Defendant-Appellant.
    No. 10281.
    Missouri Court of Appeals, Springfield District.
    March 24, 1978.
    Motion for Rehearing or Transfer Denied April 21, 1978.
    Application to Transfer Denied June 15, 1978.

      Charles E. Buchanan, Asst. Public Defender, Joplin, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., and MOORE and NORTHERN, Special Judges.
   WELDON W. MOORE, Special Judge.

Defendant Carl Lowery was charged in the Circuit Court of Jasper County with first degree robbery under § 560.120, RSMo 1969, in that on or about September 2,1975, he “did wilfully, unlawfully and feloniously take a .357 Magnum Smith & Wesson pistol and Twenty-Eight Dollars, lawful money of the United States from the person of Paul M. James in his presence and against his will by putting him in fear of some immediate injury to the person of the said Paul M. James.” Defendant was convicted of the charge by a jury and sentenced to life imprisonment under the Second Offender Act, § 556.280, RSMo 1969.

On September 2, 1975, seven prisoners who had received treatment at a medical clinic in Webb City were being returned to the Jasper County Jail in a van driven by Deputy Sheriff Paul James. Deputy Sheriff Vernon Elder was unarmed and was riding in the van with the prisoners. Among the prisoners in the van were the defendant Lowery and one David Russell. Defendant and Russell were sitting on a bench-like seat directly behind Deputy James, with Russell seated closer to James who was carrying a .357 Magnum revolver in a waist holster. The van slowed to stop at the intersection of Highways HH and 71. At that moment defendant and Russell stood up simultaneously and turned toward Deputy James. Russell unsnapped the holster on James’ hip and removed the revolver. Deputy Elder jumped Lowery but in just a few seconds Russell shoved the revolver in his stomach and ordered Deputy Elder to leave Lowery alone. Deputy Elder described the incident as happening fast and as Russell pulled the revolver from the holster, Deputy James brought his right arm back to try to grab it but Russell had already taken the revolver out. Deputy James fell out of his seat “pawing for the gun.” Deputy James struggled or tried to wrestle with Russell for a short period and wound up face down on the van in the back. The keys were removed from the ignition and the handcuffs were removed from the prisoners. Deputy James was handcuffed with his arms behind his back. Defendant acquired the revolver from Russell and Russell became the driver of the van. Later defendant pointed the revolver at the head of Deputy James and said, “How do you like that, you son-of-a-bitch”?

Russell drove the van through Joplin to a vacant house in Jasper County near the Kansas line. Both deputies were taken into the house. Deputy James was placed in a hall closet. Deputy Elder was handcuffed to a bathroom sink and the door was closed. Defendant and Russell took Deputy James from the closet and forced him to face the wall. James’ wallet containing $28.00 was removed from his back pocket. Only defendant and Russell were near James when his wallet and money were taken. James stated that he could not see who had done the taking but that the defendant had the .357 Magnum at that time and was pointing it at him. James stated he was in fear of harm at the time his wallet was taken. James was ordered back into the closet and the door was shut; the defendant and Russell escaped in the van.

Defendant testified that he decided to join in the escape only after Russell grabbed the gun; that he took possession of the gun from Russell to keep someone from getting hurt; that neither he nor Russell took the wallet from James and that another prisoner did. Defendant denied making the threatening statement to James.

The issues on appeal involve Instruction No. 6 (based on MAI-CR Nos. 2.12 and 7.60). The instruction is as follows:

INSTRUCTION NO. 6
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about the 2nd day of September, 1975, in the County of Jasper, State of Missouri, Paul M. James had in his possession a .357 Magnum S & W pistol and $28.00; lawful money of the United States, and
Second, that at that time and place David Russell took the property from Paul M. James against his will by violence to his person and by causing him to fear immediate injury to his person, and
Third, that David Russell took the property with the intent to permanently deprive Paul M. James of the property and to convert it or any part of it to the use of David Russell, and
Fourth, that the defendant acted either alone or knowingly and with common purpose together with David Russell in the conduct referred to in the above paragraphs,
then you will find the defendant guilty of robbery in the first degree.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.
MAI-CR 2.12 and 7.60

Defendant raises two issues on appeal. First, he contends that the court erred in submitting Instruction No. 6 because it erroneously states the law by directing the jury with respect to robberies of two different items of property that occurred at two separate times.

Paragraph First of Instruction No. 6 required the jury to find, in order to convict, that a .357 Magnum revolver and $28.00 were in possession of Deputy James on September 2,1975. Paragraph Second required the jury to find that Russell had taken the property from James by violence and by putting him in fear. Paragraph Third required a finding that Russell took the property with intent to permanently deprive James of it. Paragraph Fourth required a finding that defendant acted alone or knowingly and with common purpose together with Russell in the conduct referred to in the above paragraphs (First, Second and Third). Defendant says that since the taking of the $28.00 occurred later in the day and at a different time and place than the taking of the .357 Magnum, the instruction erroneously stated the law and allowed the jury to match some of the required elements of the offense from the first taking of property with other and different required elements of the offense from the second taking of property, thus rendering the jury able to return a guilty verdict without unanimity with respect to each taking.

The State contends Instruction No. 6 placed a heavier burden of proof on the State than the law required. The Instruction did not allow the jury to convict defendant by finding that defendant had taken either the revolver or the $28.00 from Paul M. James, but required the jury to find, to render a guilty verdict, that defendant had taken the revolver and $28.00 from James. Therefore, defendant benefited from the instruction and may not complain of its submission.

Defendant cites and relies heavily on State v. Washington, 242 Mo. 401, 146 S.W. 1164 (1912). There the indictment charged that defendant did “set up and keep divers gaming tables and gambling devices, to-wit, one crap table, commonly so called, and one poker table, commonly so called .” Evidence at the trial tended to prove each act and defendant was convicted. The instruction in question directed the jury to find defendant guilty if it found that defendant did “set up and keep certain gaming tables and gambling devices, to-wit, a crap table . and a poker table or either of them . . .”

(Emphasis added). Washington, supra, at 1166. The Court held that submission of the instruction was reversible error because some of the jurors may have believed the testimony in support of the charge as to one of the gaming devices and disbelieved the testimony as to the other, while the remaining members of the jury may have found and believed conversely. The court declared that “[I]f the instruction had submitted the case upon the theory of guilt as to both gambling devices (no motions to quash or elect having been filed) . the conviction could have been sustained.” Washington, supra, at 1166. Instruction No. 6 in the present appeal required that guilt be predicated on both takings.

Defendant also cites a companion ease to Washington (State v. Jackson, 242 Mo. 410, 146 S.W. 1166 (1912)), which adds nothing to Washington. In addition, he cites State v. Frazier, 217 Mo.App. 524, 269 S.W. 410 (1925) and City of Mexico v. Gray, 203 Mo.App. 547, 219 S.W. 707 (1920). Neither of these cases seem to be in point. Gray involved a complaint in two counts. In Frazier, defendant had been charged and convicted of possession of “a certain doubler, worm, fermenting tub, mash tub and still,” in violation of the prohibition law. The instruction permitted conviction on a finding that defendant had possessed either of the named articles. Frazier was reversed based on an expressly disjunctive submission and is not applicable here.

In State v. Daegele, 302 S.W.2d 20 (Mo. 1957), defendant was convicted of molesting a female minor. The facts indicated that defendant committed two distinct acts of molestation at two separate times. The instruction submitted these acts in the conjunctive. Defendant alleged error on this basis. The court stated that the State merely assumed an added burden by the conjunctive submission and the instruction was not misleading and found no error.

State v. Anglin, 222 S.W. 776 (Mo.1920), also involved the use of a conjunctive submission. Defendant was convicted on a submission that required the jury to find that defendant “did wrongfully take and carry away $100.00 lawful money of the United States and one diamond ring . . ”

Anglin, supra, at 777. The evidence indicated that larceny had been committed with respect to the diamond ring only. The court held that the instruction merely placed an added burden on the State and its submission did not constitute reversible error.

The effect of Instruction No. 6 was to submit the offense of robbery in the form of a conjunctive submission, placing a burden on the State beyond that which is legally required. This requirement benefited the defendant and under Rule 26.06(1) a defendant may not complain of trial error committed in his favor. This rule applies to criminal jury instructions which operate to defendant’s advantage. State v. Tolias, 326 S.W.2d 329, 335[13] (Mo.1959). In State v. Gusumano, 372 S.W.2d 860 (Mo.1963) at page 865, the court stated that the use of conjunctive submission is harmless error unless it constitutes an improper statement of the law and a positive misdirection. The instruction in the instant case required the jury to find that both the gun and the $28.00 had been taken by Russell under circumstances constituting first degree robbery. The last clause of Instruction No. 6 directs the jury to find defendant not guilty if it did not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing. (Emphasis added).

The “property” mentioned in paragraph Second of Instruction No. 6 referred to both the .357 Magnum revolver and $28.00 mentioned in paragraph First of the instruction. The instruction was in the nature of a conjunctive submission.

We hold that Instruction No. 6 is neither an improper statement of the law nor a positive misdirection and its use was not prejudicial to defendant.

The second issue involving Instruction No. 6 is: Was there sufficient evidence that defendant or David Russell took the .357 Magnum by violence to the person or by causing fear of immediate injury to the person to authorize submission of Instruction No. 6?

First degree robbery is defined as the felonious “taking [of] the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person.” § 560.120, RSMo 1969.

It is not our function or prerogative to weigh the evidence to determine whether an offense has been proven beyond a reasonable doubt. That is a jury determination. State v. Sherrill, 496 S.W.2d 321 (Mo. App.1973).

The Missouri Supreme Court in State v. Reed, 453 S.W.2d 946 (Mo.1970), established our standard of review on the question of sufficiency of the evidence: “. . .In determining the sufficiency of the evidence in a criminal case after a verdict of guilty, the court accepts as true all evidence in the record tending to prove the defendant’s guilt, whether such evidence is circumstantial or direct in nature, together with all favorable inferences that can reasonably be drawn therefrom and disregards all contrary evidence and inferences.” We are required to view the whole evidence in a light most favorable to the State. State v. Bayless, 362 Mo. 109, 240 S.W.2d 114 (1951).

The evidence when reviewed in the light most favorable to the State makes a submissible case of robbery in the first degree. The evidence was that Deputy James was first aware of what was going on when his holster was touched; he reached back to grab the holster and fell out- of the seat; a struggle ensued for a few seconds and Deputy James wound up in the back of the van face down and Russell retained possession of the .357 Magnum. Defendant was asked: “Would you describe for the jury what happened to you when Mr. Russell jumped up to grab the gun”? Defendant answered: “When he jumped up and got the gun, I was still down on the floor and then Paul James was trying to wrestle with him, then I got back and tried to sit down, then Sonny Elders jumped on me and then Russell grabbed, put the gun in his stomach and told him to get back and leave me alone.” Defendant shortly thereafter acquired the pistol from Russell and at one point cocked the gun, pointed it at James and said, “How do you like that, you son-of-a-bitch”?

At what point was the taking of the .357 Magnum complete? The taking was not complete until James and Elder were subdued and the struggle ended.

In State v. Wilborn, 525 S.W.2d 87 (Mo. App.1975), defendant contended he did not use force or violence when he took property from a gasoline service station. Evidence showed that defendant’s accomplice was discovered ransacking some cabinets in a back room by the service station attendant. The accomplice already had in his pockets money taken from the station’s money drawer, and the attendant scuffled with the accomplice to prevent the accomplice from shooting him. The defendant entered the back room and helped subdue the attendant by placing garden shears at the back of the attendant’s neck, and defendant and his accomplice drove away with the money. On appeal defendant contended that since the possession of the money (and other property) was already in the possession of his accomplice when he placed the shears to the attendant’s neck, the money was taken by stealth and not by putting the victim in fear as is required for a robbery first degree conviction. The court equated this fact situation with cases involving “snatching with force” and held that defendant’s use of intimidation or force was sufficiently contemporaneous with the taking of the money to constitute robbery first degree.

In Wilborn, the court declared:

“. . . [t]he transaction constituting a robbery was completed only when appellant entered and threatened [the attendant] with serious bodily injury by use of the shears. In other words, under the factual situation of this case, the force or threat of serious bodily injury made by appellant was contemporaneous with the taking and a part of the single transaction.” Id. at 91.

The court further stated that the accomplice did not have full control of the money when discovered by the attendant, and that complete control of the money was accomplished only after the force and fear were inflicted on the attendant by defendant through use of the shears. The court quoted with approval from State v. Clemons, 356 Mo. 514, 202 S.W.2d 75, 78 (1947):

“[I]t is generally held that when the sudden taking or snatching is concurrent with intimidation or violence the crime is robbery.” (Emphasis supplied by the court). 525 S.W.2d at 91.

State v. Adams, 406 S.W.2d 608 (Mo.1966) is an example of a “snatch” case.

We hold that the taking of James’ gun was not complete and Russell did not have control of the gun until the struggle for the gun between James and Russell ended with Russell in possession of it. Russell’s taking of the gun and the resulting struggle were a part of a single transaction of acts which originated and occurred contemporaneously.

The evidence presented was sufficient to submit a case of robbery first degree based on the taking of the .357 Magnum from Deputy James and the giving of Instruction No. 6 was not prejudicial error.

No prejudicial error appearing, we affirm.

All of the Judges concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    William E. BALL, Appellant-Respondent, v. Blanche GROSS, Appellant-Respondent.
    Nos. 38095, 38114.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 28, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Application to Transfer Denied June 15, 1978.

      Donald U. Beimdiek, St. Louis, for William Ball.
    Blumenfeld, Kalishman, Marx, Tureen & Paster, P. C., Bruce M. Wurmser, Clayton, for Blanche Gross.
   ALDEN A. STOCKARD, Special Judge.

On October 30, 1959, the owners of an undeveloped tract of land in St. Louis County, consisting of approximately 25 acres, conveyed to Blanche Gross, defendant herein, “a perpetual easement,” 40 feet in width and described by metes and bounds, over and across said tract for “railroad purposes.” The eastern terminus of the easement strip was the boundary of the right-of-way of the Chicago, Rock Island and Pacific Railroad Company. The deed provided that the easement was “exclusive” except the grantor of the easement had certain rights to use the railroad facilities if constructed. On July 16,1971, by warranty deed, the corporation which had conveyed the easement to defendant conveyed title to the tract to plaintiff. No mention was made in the deed of the easement but it was of record.

Adjoining the 25 acre tract on the west is an undeveloped tract of approximately 5 acres. On December 28, 1959 title to that tract was acquired by Mary Virginia Loire, stipulated by the parties to have been a “straw party for defendant, Blanche Gross, and Edward Bakewell, Jr. being the real owners of the property described in said deed,” who on the same day “acting pursuant to express instructions of Blance [sic] Gross and Edward L. Bakewell, Jr., conveyed to defendant and Edward L. Bake-well, Jr. a perpetual easement for railroad purposes.” That easement strip, described by metes and bounds, joined the western terminus of the easement across the 25 acre tract. In 1962, acting pursuant to express instructions of defendant and Edward L. Bakewell, Jr., Loire conveyed title to the 5 acre tract to Eileen Weinstein, also stipulated by the parties to have been a “straw party” for “Blanche Gross and Edward L. Bakewell, Jr., who remained the real owners of the land described in said deed.” On April 10, 1964, “acting pursuant to the express instruction of Blance [sic] Gross and Edward L. Bakewell, Jr.” Weinstein conveyed title to the 5 acre tract to plaintiff by general warranty deed. No mention of the easement dated December 28, 1959 was made in the warranty deed. Subsequently, Edward L. Bakewell, Jr. assigned all his interest in the easement to defendant.

On October 3, 1973, plaintiff filed an action in two counts; the first of which was to quiet title to the 25 acre tract. Plaintiff prayed that the court adjudge and decree that “said easement rights [in the 25 acre tract] was extinguished by the merger of title to the dominant and servient estates relating to said easement.” Count II was for damages based on the wrongful refusal of defendant “to remove” the easement from the records. Defendant filed a counterclaim in which she alleged that by reason of the deed dated December 28, 1959, she acquired a “perpetual easement for railroad purposes” across the 5 acre tract but that plaintiff “constructed a building and improvements in and over a portion of the easement aforesaid,” which he refuses to remove. She prayed that plaintiff be required to remove the building and that he be enjoined from erecting further improvements on the area covered by the easement.

The judgment of the trial court was as follows: “Cause having been previously heard and submitted and the Court being advised in the premises finds in favor of the Defendant on Plaintiff’s petition and finds in favor of the Plaintiff on Defendant’s Counterclaim.” Plaintiff and defendant have each appealed. We shall consider first the appeal by defendant.

Plaintiff points out that defendant has never used the easement, that she has no present plans for its future use, that she owns no property with access to the easement strip, and that she testified that it was “possible” she would never build railroad facilities on the easement strip. He further points out that neither the terms of the purported easement nor the deed to him contains any restriction on the use of the land by the owner of the fee prior to the use of the easement strip for railroad purposes. These circumstances would justify the refusal of the trial court to issue the requested mandatory injunction. However, there is a more compelling reason why the judgment of the trial court was correct.

Although on December 28, 1959 record title of the 5 acre tract was in Mary Virginia Loire, by joint stipulation of the parties it is admitted she was a “straw party” only, and that the “real owners” were defendant and Edward L. Bakewell, Jr. It is further stipulated that “pursuant to express instructions” of defendant and Bakewell, Loire purported to convey to the “real owners” of the fee an easement over and across the land.

A “strawman” in real estate transactions has been described as a “mere conduit or medium for convenience in holding and passing title.” Van Raalte v. Epstein, 202 Mo. 173, 99 S.W. 1077, 1079 & 1080 (1906). It is recognized that for various reasons corporations and individuals at times transact business affairs in the names of strawmen or nominees, Merrill v. Davis, 359 Mo. 1191, 225 S.W.2d 763 (1950), but the use of a straw party in real estate transactions is not of itself unlawful or fraudulent. Benton v. Alcazar Hoetel Co., 352 Mo. 836, 180 S.W.2d 33 (1944). In this suit for an injunction, an action in equity, this court will disregard the function of a straw party and rule the issue on the basis that title to the fee was in defendant and Edward L. Bakewell, Jr., admitted by way of stipulation to be the “real owners.”

In order to create an easement by deed there must be a dominant and servient estate, and “they must not be lodged in the same person.” Marshall v. Callahan, 241 Mo.App. 336, 229 S.W.2d 730, 735 (1950); See also Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604 (1934); State ex rel. Appel v. Hughes, 351 Mo. 488, 173 S.W.2d 45, 48 (1943); Bales v. Butts, 309 Mo. 142, 274 S.W. 679 (1925); Vossen v. Dautel, 116 Mo. 379, 22 S.W. 734 (1893). The effect of the instrument dated December 28, 1959 from Loire to defendant and Edward L. Bake-well, Jr. was to attempt to create in the “real owners” of the 5 acre tract an easement of way over that tract, but “a man cannot have an easement over his own land.” Bales v. Butts, supra. This is the universal rule. Leasehold Estates, Inc. v. Fulbro Holding Co., 47 N.J.Super. 534, 136 A.2d 423 (1957); Whelan v. Johnston, 192 Miss. 673, 6 So.2d 300 (1942); People ex rel. Department of Public Works v. Younger, 5 Cal.App.3d 575, 86 Cal.Rptr. 237 (1970); Gardner v Fliegel, 92 Idaho 767, 450 P.2d 990 (1969); Hidalgo County Water Control & Imp. Dist. No. 16 v. Hippchen, 233 F'.2d 712 (5th Cir. 1956); Walker v. Witt, 4 I11.2d 16, 122 N.E.2d 175 (1954); Coast Storage Company v. Schwartz, 55 Wash.2d 848, 351 P.2d 520 (1960); Stuart v. Lake Washington Realty Corporation, 141 W.Va. 627, 92 S.E.2d 891 (1956); Rocks v. Brosius, 241 Md. 612, 217 A.2d 531 (1966); Hayes v. Moreau, 104 N.H. 124, 180 A.2d 438 (1962); Scott v. Powers, 140 Colo. 14, 342 P.2d 664 (1959). In equity an owner of land will not be permitted to accomplish by use of a straw party what he could not accomplish by direct action. No easement for railroad purpose was created in defendant and Edward L. Bakewell, Jr., and when at the direction of “real owners” Weinstein conveyed the fee to the 5 acre tract to plaintiff on April 10, 1964, without any reservation of interest, plaintiff received title to the tract unin-cumbered by any easement across it.

On May 13,1964, over a month after the conveyance of the fee to plaintiff, defendant and Bakewell entered into a “Trackage Agreement” with plaintiff in which it was recited that defendant and Bakewell were the owners of a “perpetual easement for rail purposes” over the 5 acre tract, and they then “set forth the terms and conditions under which [plaintiff] may utilize the Easement.” Defendant asserts that by reason of this instrument plaintiff is estopped to deny the existence of the easement. We do not agree. There was no easement in existence, and this agreement did not create one. The “Trackage Agreement” purported to set forth, the terms whereby plaintiff could make certain uses of a non-existing interest in land of which plaintiff owned the complete fee. Defendant has not taken any action to her detriment in reliance on the “Trackage Agreement,” and in order for it to operate as an estoppel “there must have been some definite act on the part of the party claiming the estoppel, in reliance on the representation of the estopped party, which has changed his condition for the worse. He must have suffered a legal detriment.” State on Inf. of McKittrick, Atty. Gen. ex rel. City of California v. Missouri Utilities Co., 339 Mo. 385, 96 S.W.2d 607, 615, 106 A.L.R. 1169 (1936); Commerce Trust Company v. Weed, 318 S.W.2d 289, 303 (Mo. 1958); Klaar v. Lemperis, 303 S.W.2d 55 (Mo.1957).

The trial court properly found for plaintiff on defendant’s counterclaim.

The judgment in a suit to quiet title pursuant to Rule 93.01 is essentially a declaratory judgment, and the court has the duty to make a declaration of rights regardless of which party is entitled to it. Evans v. Brussel, 300 S.W.2d 442 (Mo.1957). The judgment in this case does not comply with the Rule. See Stottle v. Brittian, 459 S.W.2d 310 (Mo.1970); Lazare v. Hoffman, 444 S.W.2d 446 (Mo.1969); Pitts v. Pitts, 388 S.W.2d 337 (Mo.1965). In his brief plaintiff recognizes the insufficiency of the judgment, but urges that we review the record, make our own findings of fact and reach conclusions of law, and then direct the entry of the judgment that should have been entered by the trial court.

The 25 acre tract was conveyed to Caron-delet Foundry by the then owner of the fee pursuant to an agreement between defendant and Carondelet whereby, in consideration of defendant assigning to Carondelet her contract to purchase said tract, Caron-delet was to convey a “perpetual easement for railroad purposes” across the land to defendant. At that time defendant did not own or have any interest in the 5 acre tract. However, she and Bakewell later acquired the fee of the 5 acre tract, albeit the record title was in a straw party. She then attempted to convey to herself and Bakewell an easement for railroad purposes across the northern 40 feet of the 5 acre tract, but for the reasons previously set out we have ruled that no such easement ever came into existence. Defendant and Bakewell then conveyed to plaintiff the fee to the 5 acre tract by warranty deed without reserving any interest therein in the form of an easement or otherwise.

We have this situation: Defendant has an easement for “railroad purposes” across the 25 acre tract which is owned by plaintiff, but defendant does not own or have any interest in any land permitting access to the easement strip. It is impossible to use the easement strip for the purpose it was granted except by the consent of plaintiff, and plaintiff seeks to have the easement abolished.

We have not found another case with a comparable factual situation but we believe by analogy the rule pertaining to willful abandonment should apply.

An easement created by grant, as this one was, is not extinguished by mere nonuser however extended the period of nonuser may be, Dalton v. Johnson, 320 S.W.2d 569 (Mo.1959), but such an easement may be extinguished by abandonment, and if “the nonuser [is] accompanied by conduct of the owner of the easement definitely evincing an intention to surrender the right, the easement is extinguished.” 25 A.L.R.2d at p. 1279. Also, an easement granted for a particular purpose terminates as soon as such purpose ceases to exist, is abandoned, or is rendered impossible of accomplishment. 28 C.J.S. Easements § 54a. In this case, defendant may not have intended the result of her actions, but she is bound by the legal effect of those actions whether actually intended or not. As a matter of law her attempt to create in herself and Bakewell an easement over land of which they were the “real owners” was of no effect, and her subsequent voluntary conveyance to plaintiff of the total fee to the 5 acre tract resulted in her having no access to the easement strip (except the eastern terminus) except over land owned by and under the complete control of plaintiff. Without the consent of plaintiff the use by defendant of the easement strip for “railroad purposes” is an impossibility, and this situation was brought about by the voluntary act of defendant. Under these circumstances the easement has, as a matter of law, been abandoned and should be declared to be extinguished.

The judgment as to defendant’s counterclaim is affirmed. The judgment as to Count I of the petition is reversed and the cause remanded for the entry of a judgment consistent with the views here expressed, and as to Count II of the petition the cause is remanded for appropriate disposition.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.