author: KELLY, Judge.

text:
    LACLEDE INVESTMENT CORPORATION, Plaintiff-Appellant, v. Jerry KAISER and David Moulton, Defendants-Respondents.
    No. 36239.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 7, 1976.

      M. E. Stokes, Paul B. Hunker, Jr., St. Louis, for plaintiff-appellant.
    Hearnes, Padberg, McSweeney & Slater, Edward P. McSweeney, St. Louis, for defendants-respondents.
   KELLY, Judge.

This is an appeal from an order of the Circuit Court of St. Louis County sustaining the defendants’ Motion for New Trial following a verdict by a jury for the plaintiff for $425,000.00 in a breach of contract suit tried on the third party beneficiary theory for losses allegedly sustained by the plaintiff by reason of the failure of the defendants to complete or to furnish additional monies to complete the construction of an apartment project in north St. Louis County. We affirm the action of the trial court in granting defendants a new trial.

Plaintiff sued as a third party beneficiary of an agreement between the defendants and the Laclede Development Company, a related sister corporation of plaintiff, constituting the Articles of Limited Partnership. Plaintiff’s cause of action is based upon the provisions of Article 9.2 of said Articles of Limited Partnership wherein it is provided that the defendants, as the “General Partners” “agree to complete the development contemplated by these Articles under the terms of the Construction and Disbursing Escrow Agreement between K & M Investment Co., Guaranty Land Title Company, Kaiser-Moulton, Inc., and Roosevelt Federal Savings and Loan Association” and the further provision in this same paragraph of the Articles of Limited Partnership that “If any monies are required to complete the project over and above the principal amount stated in the loan agreement between Laclede Investment Corporation and K & M Investment Co., attached as Exhibit ‘2’, such monies will be furnished by the General Partners in the form of additional capital contributions.”

Defendants, on the other hand, rely on the provisions of Article 15.1 of the Articles of Limited Partnership providing “The General Partners shall not be liable to the Limited Partner for any mistake of law or fact, or of both law and fact, or for errors of judgment or for any loss of the Limited Partnership unless occasioned by actual fraud or gross neglect on the part of the General Partner or Partners.”

The decisive issue in this case as it was tried in the trial court is whether the defendants can be held to be personally liable to the plaintiff as the third party beneficiary of the Articles of Limited Partnership for their admitted failure to complete the County Fair apartment project or, in the alternative, to furnish the monies to complete the project over and above that loaned to the Limited Partnership by the plaintiff.

The order of the trial court granting the defendants a new trial was based upon grounds “2, 3 and 4” of defendants’ Motion for New Trial. These grounds, as they appear in defendants’ Motion for New Trial are as follows:

“2. That Instruction No. 3, given by the Court, was erroneous for the following reasons: That said Instruction constituted an unacceptable variation from M.A.I. 26.02; that the third element of said Instruction was misleading and confusing because the words ‘at the time defendants made either agreement’ led the jury to believe that there was more than one contract in issue when plaintiff during the trial of the cause had based its claim for relief upon only one contract.
“3. That the Court erred in giving Instruction No. 5 in the form offered by plaintiff, said Instruction constituting an unacceptable variation from M.A.I. 4.01. “4. That the Court erred in not sustaining defendants’ objections to certain remarks of plaintiff’s counsel and in not declaring a mistrial because of such remarks, which remarks were as follows: ‘If you give us our judgment, I don’t think we will ever collect it, but that is not important, but if you buy their position in this law suit you are going to make everybody in the community aware of the fact that people can do what these people did . . . ;’ that said remarks were prejudicial to defendants in that they led the jury to believe that defendants were not interested in the outcome of the case and that defendants would suffer no actual loss as a result of the verdict; that said remarks were not supported by the evidence.”

Plaintiff contends in this court that grounds “3” upon which the trial court based its order granting the defendants a new trial was so lacking in specificity that it presented nothing to the trial court for review and therefore the trial court erred in basing its order on that grounds. We agree. Rule 79.03 (presently Rule 78.07). We have searched the record and there is no evidence therein that at the time this Instruction was offered there were any specific objections made to the Instruction. However, even though defendants’ counsel was not required to make specific objections to the Instructions at that time by Rule 70.02, having chosen to follow that path he was required by Rules 70.02, 79.01 and 79.03 to set forth specific objections making known to the trial court wherein and why the Instruction alleged to be in error was so in his Motion for New Trial. Bremer v. Mohr, 478 S.W.2d 14, 19[8] (Mo.App.1972), Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 11[7] (Mo.App.1974). We therefore conclude that this particular trial court error alleged in violation of the Rules cited above did not properly present to the trial court in the defendants’ Motion for New Trial grounds for a new trial and should not have been the basis for the trial court’s granting of same.

Nevertheless, if the action of the trial court can be sustained on any of the other grounds specified in defendants’ Motion for New Trial we must affirm the ruling of the trial court. Kreis v. Missouri Pacific Ry. Co., 131 Mo. 533, 33 S.W. 64, 65 (1895), Davis v. Perkins, 512 S.W.2d 868, 870 (Mo.App.1974). The general rule is that on appeal from the trial court’s grant of a new trial the Court of Appeals must indulge every reasonable inference favorable to the trial court’s ruling and may not reverse unless there has been a clear abuse of discretion. Penn v. Hartman, 525 S.W.2d 773, 775[1] (Mo.App.1975).

Prior to disposing of the plaintiff’s other reasons why the action of the trial court should be held to be error, we next proceed to a point raised in defendants’ brief that plaintiff did not make a submissible case. Defendants in their brief filed in this court renew their complaint that the plaintiff failed to make a submissible case presented initially in the trial court at the conclusion of all of the evidence, and again in their post-trial Motion for Judgment in Accordance with their Motion for Directed Verdict or, in the alternative, for a New Trial.

Since Wilhelm v. Haemmerle, 262 S.W.2d 609, 610-611[2] (Mo.1953), it has been the law of this State that where the trial court has denied a defendant’s post-trial motion for judgment in accordance with its motion for a directed verdict but sustained its motion for new trial, and plaintiff appeals from the order granting defendant a new trial, the defendant may contend that the plaintiff failed to make a submissi-ble case where that point had been preserved by timely trial motions and post-trial motions to set aside the verdict and enter judgment for the defendant, or in the alternative, for a new trial. Kinder v. Pursiey, 488 S.W.2d 937, 939[2] (Mo.App.1972). Our examination of the record reveals that these prerequisites have been met in this case.

This law suit was instituted by a petition wherein there were two .plaintiffs, Laclede Development Company and Laclede Investment Company. By the time the case came on for trial the petition originally filed had been amended and the cause came on for trial on a First Amended Petition which alleged, in a single count, that the Laclede Development Company entered into an agreement with the defendants for the formation of a limited partnership to be known as K & M Investment Company; that this agreement is entitled “Articles of Limited Partnership;” that a Construction and Disbursing Escrow Agreement was referred to in this agreement; that under the terms of the agreement between Laclede Development Company and defendants the defendants agreed to furnish as additional capital contributions, all monies in excess of the amount of the loan from plaintiff necessary to complete “County Fair, a construction project, as rapidly as practical and to deposit with the Roosevelt Federal Savings and Loan Association all payments accruing under a Deed of Trust or Mortgage during construction of the project as they became due; that pursuant to the terms of an agreement between the K & M Investment Company and the Laclede Investment Corporation, and in reliance upon the agreement between the defendants and the Lac-lede Development Company, the plaintiff agreed to loan the limited partnership, K & M Investment Company, the sum of $500,-000.00; that in accordance therewith, plaintiff advanced the sum of $425,000.00 as a loan. Plaintiff further alleged that the defendants breached their agreement with Laclede Investment Corporation and Lac-lede Development Company by refusing to furnish funds necessary to complete the project, by failing and refusing to complete the project and by failing and refusing to deposit with the Roosevelt Savings and Loan Association all payments accruing under the Deed of Trust or Mortgage during construction-of the project as and when the same became due; that as a result of the breach of the agreements by the defendants, the Roosevelt Federal Savings and Loan Association foreclosed on and sold the property under the Deed of Trust on November 23,1971, causing the Laclede Development Company to sustain the loss of its investment of $2500.00, the loss of its equity interest in the completed project in the amount of $300,000.00 and the loss of its profits after completion of the project in the amount of $260,000.00. Further, as a result of the defendants’ breach of the agreements, the Laclede Investment Corporation sustained a loss of its security interest in the property in the amount of $425,-000.00, the sum advanced as a loan, together with interest in the amount of $24,606.64. The Laclede Development Company prayed for a judgment against the defendants for $562,500.00 and Laclede Investment Company prayed for a judgment against the defendants for $449,606.94 with interest at the rate of 8% from November 23, 1971. Defendants’ Answer was a general denial of the allegations contained in plaintiffs’ petition other than that allegation with respect to the residency of the defendants. By way of affirmative defense, defendants alleged that by Article 15.1 of the Limited Partnership Agreement they were not liable to Laclede Development Company and that under the terms of the Loan Agreement between Laclede Investment Corporation and K & M Investment Company they were not liable for any losses sustained thereunder. They further alleged that by the terms of the promissory notes executed by the defendants in favor of the Laclede Investment Corporation no personal liability was to be asserted against the makers of said notes, but rather that the sole remedy of the holder of said notes was to be by foreclosure of the Deed of Trust and Security Agreement.

Immediately prior to trial Laclede Development Company dismissed its claim against the defendants without prejudice. During the course of the pre-trial conference at which this dismissal was announced, counsel for defendants advised the trial court that during his opening statement to the jury he intended to tell the jury that he expected the evidence would show that the defendants entered into an agreement with the Laclede Development Company and that that agreement provided, in part, that the defendants were not to be liable for any mistake of law or fact or for errors of judgment, or for any loss of the limited partnership unless occasioned by actual fraud or gross neglect on their part. Counsel for the Laclede Investment Corporation, who had been attorney of record for Lac-lede Development Company also, objected on the ground that it was the position of Laclede Investment Corporation that elimination of personal liability on the part of the individual defendants in no wise limited or reduced their responsibility to fulfill “their contract” or gave them a license to breach “the contract” at will and not perform. A further discussion followed with respect to the provisions of the notes and an objection was made with respect to any statement about those provisions in the notes. Both objections were overruled. At several other stages during the course of the trial when reference was made to these provisions in the Articles of Limited Partnership or the promissory notes plaintiff’s counsel objected and was overruled.

The evidence adduced at trial was that Jerry Kaiser and David Moulton, the defendants, were, in 1969, engaged in business together as K & M Investment Co., a general partnership, and said general partnership was the owner of an 11 acre tract of land situated in north St. Louis County on Halls Ferry Road between Chambers and Jennings Station Roads. Defendants were also the officers and sole shareholders in Kaiser-Moulton, Inc. Mr. Kaiser was the president of Kaiser-Moulton, Inc. Kaiser and Moul-ton decided to develop the tract of land aforesaid into a townhouse and garden apartment -project to be known as County Fair, which, when completed, would consist of 16 buildings of 150 apartment units, a recreation center and a swimming pool. K & M Investment Company contracted with Kaiser-Moulton, Inc. to construct the project. To obtain financing for construction of the project, K & M Investment Co., the partnership, obtained a loan of $1,860,-000.00 from the Roosevelt Savings and Loan Association. This loan was secured by a first deed of trust on the tract of land. On January 9, 1969, K & M Investment Company, the owner of the tract of land, Kaiser-Moulton, Inc., the contractor, and Roosevelt Federal Savings and Loan Association, the mortgagee, entered into a Construction and Disbursing Escrow Agreement with Guaranty Land Title Company, as the escrowee. This escrow agreement provided that the contractor would construct the County Fair apartment project for the owner for the sum of $1,860,000.00, and the mortgagee agreed to supply the funds to the escrowee which would in turn distribute them to the contractor as the work on the project progressed.

Construction was commenced and sometime prior to June, 1970, it became apparent to Kaiser and Moulton that additional monies would be necessary if the project was to be completed. Through a Mr. Jim Ap-pell, an appraiser with the Real Estate Research Co., a real estate appraisal firm which had made an appraisal of the project prior to the obtaining of the loan from Roosevelt Federal Savings and Loan Association, Kaiser learned that Laclede Gas Company was investing in real estate. Mr. Appell called Mr. Gardner, the Vice-President and Secretary of Laclede Investment Corporation, who at that time had general supervision and responsibility for diversification for Laclede Gas Company and inquired if Mr. Kaiser could call on him. Mr. Gardner replied that Mr. Kaiser could call on him. At some unspecified date Mr. Kaiser did call on Mr. Gardner, met with him and Mr. Donald Novatny, a vice-president of Laclede Investment Corporation, and negotiations were undertaken which culminated in plaintiff advancing $425,000.00 to K & M Investment Company, a limited partnership which was formed from the original general partnership, with Laclede Development Company as the limited partner and Messrs. Kaiser and Moulton as the general partners.

Early in the negotiations stage, and while discussions relative to the mechanics of the loan were in progress, Mr. Novatny furnished to Mr. Kaiser a form of Articles of Limited Partnership which Laclede Development Company had entered into with another project developer, to be used as a model for the limited partnership to be entered into with Kaiser and Moulton. Kaiser took this form to an attorney who had also participated in the legal matters associated with the preparation of the other limited partnership mentioned. Whether this attorney was representing Kaiser and Moulton prior to this time is not clear, but he did participate in the preparation of the Articles of Limited Partnership ultimately entered into by defendants, the Laclede Development Company and Laclede Investment Corporation. A number of documents were prepared by this attorney, including the proposed Articles of Limited Partnership, and were forwarded to both Mr. No-vatny and the defendants. Someone at Laclede Investment Corporation insisted that included in the Articles of Limited Partnership there be a provision that the General Partners agree to complete the development contemplated by the Articles under the terms of the Construction and Disbursing Escrow Agreement and if any monies were to be required to complete the project over and above the principal amount stated in the loan agreement between Laclede Investment Corporation and K & M Investment Company, the general partners were to furnish such monies in the form of additional capital contributions. This was done, and on June 12, 1970, the Articles of Limited Partnership were executed by the defendants, as the general partners, and Laclede Development Company, as the limited partner, by Lee M. Liber-man. On the same day the Loan Agreement between the limited partnership, K & M Investment Company and Laclede Investment Corporation was executed, Mr. Kaiser signing for the Limited Partnership and Lee M. Liberman, President for the Laclede Investment Corporation.

According to the Articles of Limited Partnership the intent of the Articles was to convert and expand the general partnership into a limited partnership by the admission of Laclede Development Company as a Limited Partner. It recited that the tract of land owned by K & M Investment Co. should continue to be owned by the limited partnership and that the sole purpose for which the limited partnership was formed was “to own, develop and hold for investment” the land owned by it and “to construct, maintain, operate and hold for investment rental improvements thereon.” By Article 9.1 the loan agreement between the limited partnership and Laclede Investment Corporation was made a part of the Articles of Limited Partnership. As previously stated, Article 9.2 required that the general partners complete the apartment project or furnish the monies necessary to do so. Each of the general partners’ capital cash contributions amounted to $1,250.00 for which each was to receive a 25% share of the profits; the limited partner, Laclede Development Company, contributed $2,500.00 for which it was to receive a 50% share of the profits. Article 15.1 provided that the General Partners were not liable to the Limited Partner for any mistake of law or fact, or of both law and fact, or for errors of judgment or for any loss of the Limited Partnership unless occasioned by actual fraud or gross neglect on the part of the General Partner or Partners.

The loan agreement between the Limited Partnership and plaintiff provided that Laclede Investment Corporation would make loans to the Limited Partnership up to a principal amount of $500,000.00. Each loan was to be evidenced by a promissory note bearing interest at the rate of 8% per annum and was to be secured by a Second Deed of Trust and a Security Agreement upon the property of the Limited Partnership. Each note was to require repayment monthly of Vaioth of the principal amount plus all accrued interest. Interest on the notes was delayed however until the “cash flow” of the Limited Partnership was adequate to meet the principal and interest payments on the note or until 12 months from the date of the loan, whichever occurred earlier. Upon this happening, the note was to be “reformed” by incorporating all accrued interest into principal and repayment should commence with the first month following reformation of the note. All subsequent notes were to be handled likewise if so required by the cash flow.

Paragraph 3 of the loan agreement made reference to the Articles of Limited Partnership and provided “The cash flow of the K & M Investment Co., Limited Partnership, as defined in Article 10.2 of the Limited Partnership Agreement, shall be used as therein provided for prepayment of the final installments of the notes provided for herein, in inverse order of maturity of such installments.”

It was specifically provided in the loan agreement that the promissory notes referred to should be substantially in the forms attached to the loan agreement “and incorporated herein by this reference.” At trial it was stipulated by counsel for Lac-lede Investment Corporation that the note form referred to in the loan agreement was the form actually used in the several notes executed by the Limited Partnership as plaintiff advanced monies to it. On each of the promissory notes there appeared the following:

“No personal liability shall be asserted or be enforceable against the maker, it being intended that the sole remedy of the holder hereof be by the foreclosure of the deed of trust and security Agreement by virtue of which the holder of this note may foreclose, possess, receive or recapture any or all of the property described in said instruments as being security for this indebtedness.”

A total of eight notes, aggregating $425,-000.00 were executed by Messrs. Kaiser and Moulton each time Laclede Investment Corporation advanced funds to the Limited Partnership and on each such promissory note the personal liability waiver set out above appears.

Defendants failed to meet their payments on the loans from Roosevelt Federal Savings & Loan Association and on November 23, 1971, the property was sold at foreclosure for $1,850,000.00 to the highest bidder, Roosevelt Federal Savings & Loan Association, the holder of the first deed of trust. The County Fair project was completed by Guarantee Land Title Company, the escrow agent, after the foreclosure sale at a cost of $167,604.08 for labor and material to finish the project and $177,606.20 in settlement of lien claims filed against the land, a total of $245,210.28. These defendants furnished some funds in satisfaction of the lien claims by the Title Company.

Plaintiff has conceded that its cause of action is brought against the defendants as a third party beneficiary of the Articles of Limited Partnership and therefore its right to recover hinges on principles of law peculiar to a third party beneficiary contract cause of action. They have no greater rights under the contract than the promisee who was a party to the agreement, Noles v. Terminal R.R. Ass’n of St. Louis, 154 S.W.2d 606, 609[2] (Mo.App.1941), and must accept the contract as it was made by the parties thereto. Stephens v. Great Southern Savings & Loan Ass’n, 421 S.W.2d 332, 337[8] (Mo.App.1967), 17A C.J.S. Contracts § 529.

Defendants do not contest that they did not complete the project nor furnish the monies, in addition to those loaned by plaintiff, to complete the project as required by Article 9.2 of the Articles of Limited Partnership; rather, they contend that by Article 15.1 thereof, there is no personal liability on their part.

Article 15.1 of the Articles of Limited Partnership was never intended to limit the liability of the general partners except from good faith losses occasioned from management decisions which were the result of neither gross neglect nor fraud, the plaintiff argues. It was not, it contends, intended to shield the general partners’ personal liability for their failure to comply with the provisions of Article 9.2. The phraseology of Article 15.1 does not specifically state that it is limited to the management decisions, as plaintiff contends, nor that it contemplates the failure of the defendants to comply with the requirements of Article 9.2, as defendants contend. While it might be that one lending funds to a developer for the purposes of construction of a project of this nature could agree to look only to the right of foreclosure against the land secured by a deed of trust and forfeit whatever other legal remedies would be available to him upon the failure of the borrower to repay the loan, it would, to say the least, be most unusual. This completely ignores the plain intention of the parties, plaintiff argues, and the “plain terms of the documents do not permit an interpretation contended for by defendants.” We conclude that what the intention of the parties to the contract was in this respect is a jury issue and the plaintiff made a submissible case for the jury on its theory of the case. We therefore deny defendants’ prayer that we enter judgment for them in this court.

We now move to plaintiff’s contentions that the trial court erred in granting defendants a new trial on grounds 2 and 4 of defendants’ Motion for New Trial. We shall first consider the latter grounds, viz. the prejudicial reference to collectibility of any judgment the jury might return in behalf of the plaintiff. That portion of the plaintiff’s counsel’s argument the trial court deemed prejudicial and warranted the granting of a new trial was:

“And if you buy this — well, we probably will never see it, but if you give us our judgment — I don’t think we will ever collect it — but that is not important.”

Plaintiff argues in its brief that this trial argument was proper because the matters referred to were properly in evidence, were not prejudicial to the defendants and were retaliatory to defendants’ counsel’s argument. We do not agree. It was plaintiff’s counsel who inserted into the record during plaintiff’s case and his examination in chief of Mr. Kaiser that he and Mr. Moulton had at divers times, both prior and subsequent to the foreclosure of the property around which this litigation revolves, transferred title to other tracts of real estate in the name of other business entities other than the partnership involved in this case and in which the general partners were officers or shareholders, from said businesses into the names of these defendants and their wives. We conclude there could have been but one purpose for this line of inquiry and the argument of plaintiff’s counsel which the trial court held prejudicially erroneous was for the sole purpose of following up on the evidence he had adduced in the belief that it would demonstrate that the defendants were attempting to so maneuver the title to their properties that any judgment obtained would not be collected. Whether a judgment is collectible is not a consideration for the jury. It was not an issue framed by the pleadings and a jury should not be guided by the collectibility of a judgment in arriving at their verdict. While our research has led us to no case exactly on this point, the cases are legion where it has been held to be prejudicial error requiring reversal of a judgment where counsel told or inferred to the jury that the defendant was either not interested in the defense of the case or would not have to pay any judgment awarded because' an insurance company was actually the one who would have to pay or satisfy the judgment. U.S.F. & G. v. Safeco Ins. Co. of America, 522 S.W.2d 809, 819[8] (Mo.banc 1975), Murphy v. Graves, 294 S.W.2d 29, 35[9] (Mo.1956), Rytersky v. O’Brine, 335 Mo. 22, 70 S.W.2d 538, 539[2] (Mo.1934). As the court in Rytersky supra, l.c. 540, said: “Whether a defendant does or does not carry liability insurance, whether he has paid for and is entitled to have recourse against an insurer, or how he is to raise the money to pay the judgment, has nothing to do with the trial of the case and the determination of the question of the defendant having been negligent or the amount of damages he has caused to the plaintiff.” We are of the opinion that whether any judgment entered by a jury for breach of contract and damages sustained thereby is collectible is a matter not within the issues and should not be considered by the jury in rendering its verdict.

Plaintiff contends that defendants’ objection came too late. However, even if true, that does not deprive the trial court from granting a new trial on the ground that the argument was prejudicial and deprived the defendants of a fair trial. The court in Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643, 648[4-6] (1953) said: “The trial judge was in an excellent position to gauge the effect of the improper and objectionable argument, and, if he deemed the overall effect to have been so prejudicial as to deprive plaintiff of a fair and impartial trial as he undoubtedly did, he had the duty to cause the entry of the new trial order, although no objection had been made to such argument.” (Emphasis supplied).

We find no abuse of discretion in the trial court’s granting defendants a new trial on these grounds.

Having found one ground for the trial court’s granting of a new trial we could conclude our review of the other ground for the trial court’s order granting defendants a new trial. However, because the cause will be retried, we conclude that we should consider whether Instruction No. 3 as given by the trial court constitutes error, lest by our failure to dispose of that point it be concluded that we find no error therein.

Instruction No. 3, as given by the trial court, is as follows:

“Your verdict must be for plaintiff if you believe:
First, defendant did not complete the project known as County Fair and did not furnish monies required to complete the project over and above the amount loaned by plaintiff, and
Second, because of such failure, defendants’ contract obligations were not substantially performed, and
Third, at the time defendants made either agreement they knew or should have known that plaintiff would rely thereon, and
Fourth, plaintiff did so rely thereon, and
Fifth, plaintiff was thereby damaged.” MAI 26.02 (modified).

This instruction, MAI No. 26.02 is not intended for this kind of case. It is intended for use in situations where the existence and terms of the contract are undisputed and the sole question for the jury to decide is whether defendant has breached that contract, and if so, the damage resulting from said breach. Varn Co. v. Hamiltonian Federal Savings & Loan Ass’n., 488 S.W.2d 649, 651[2] (Mo.1973). As we have concluded hereinabove, there are more than those two issues in this case. Further, as we understand plaintiff’s theory of the case, its suit is a third party beneficiary suit based upon the Articles of Limited Partnership between K & M Investment Company and Laclede Development Corporation. While the Loan Agreement between it and the Limited Partnership was incorporated into the Articles of Limited Partnership and “made a part of this agreement” by Paragraph 9.1 and is germane to the intention of the parties and is thereby admissible, the instruction as given could be confusing and misleading by its reference to “either agreement” and those words would best be omitted, even though not prejudicially erroneous.

We affirm the order of the trial court awarding the defendants a new trial and remand this case for further proceedings not inconsistent with this opinion.

CLEMENS, P. J., and STEWART, J., concur.

      . Mr. Gardner was also vice-president of Lac-lede Gas Company and vice-president and see-retary of the Laclede Development Company. He was also a member of the Board of Directors of both the investment and development companies.

      . Mr. Novatny was also vice-president and comptroller of Laclede Gas Company and vice-president of the Development Company.

      . Mr. Liberman was also president of Laclede Gas Company and Laclede Development Company.

      . This reference to the definition of “cash flow” in the Limited Partnership Agreement was occasioned by the provision in the loan agreement that the initial loan would be made prior to receipt of any rental income from the project and that interest would not accrue on the note until the cash flow of the limited partnership was adequate to meet the interest payments or until 12 months from the date of the loan, whichever should come earlier, when the notes would be reformed. Loans subsequent to the initial loan were subject to this same cash flow provision.


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert CARPENTER, Appellant.
    No. 37261.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 7, 1976.

      James C. Jones, III, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Robert Carpenter, charged by indictment with operating an automobile without the consent of the owner and also with the commission of a prior felony, was found guilty by a jury and sentenced by the court to imprisonment for a term of five years. We affirm.

Appellant does not challenge the sufficiency of the evidence. We need only to relate that a jury reasonably could find that on April 3, 1975, Pat English parked her husband’s Lincoln automobile near the St. Louis Children’s Hospital, and that a short time later she discovered the automobile was gone. On April 9, 1975, the police stopped appellant on North Kingshighway while driving the English automobile. Neither Pat English nor her husband had given appellant permission to use the automobile.

The case was set for trial on June 30, 1975. The record does not indicate precisely what happened, but before the voir dire examination of the jury appellant in some manner misconducted himself in the courtroom.

The nature of misconduct is revealed somewhat by the following comment of the court: “As a practical matter, shackling him to a chair would not lessen the disturbance that he’s capable of creating and [has] indicated he would create. I don’t think gagging him and shackling him would be the answer either inasmuch as he has evidenced at least to my satisfaction and I think to those who have witnessed his performance so far that he’s fully capable of creating a disturbance with a gag in his mouth and with [him] being handcuffed to a chair, by jumping the chair up and down and jumping up and down and making various and sundry sounds even though there is a gag in his mouth.”

Appellant does not contend on this appeal that he did not create a disturbance in the courtroom, and he does not contend that the remedial action of the court, subsequently set out, was not justified under the circumstances.

After the disturbance was quieted, the court said: “Mr. Carpenter, we’re starting your trial. Now you have two choices, really, you can either sit there and be present, that you have a right to do, and I’m inviting you to do that, all through the trial and be a gentleman; or, if you’re going to act up, of course, I’ll have you removed from the courtroom and you will be tried regardless of where you are.” Appellant replied: “Well, that’s all right, all I want is two days to get my own lawyer, that’s all I’m asking for.” In the discussion that followed appellant’s counsel, a member of the staff of the office of Public Defender, stated that appellant had previously been represented by two other lawyers, that he had represented appellant “since April,” and that although he had seen him personally and had “talked to him on the phone constantly since [he] had been on the case” appellant had made “no mention *• * * at any time that he desired to have other counsel * * * or that he was going to hire private counsel, [and that] today was the first time that [appellant] ever mentioned this to me.” Appellant’s counsel did not request a continuance, and there is no contention on this appeal that a continuance should have been granted.

After advising appellant of his right to be present during his trial, but admonishing him that if present he would have to behave himself, the court asked: “Do you want to go to trial and sit there? Or do you want to go and be in the cell?” Appellant replied: “In the cell.” The court then stated: “Let the record show that the defendant has indicated that he’d rather be in the cell than sit in the courtroom, and his conduct in the last ninety seconds in this courtroom has been reprehensible, and at my direction then the Sheriff is taking the defendant and placing him in the cell, because of his conduct and because of his expressed wishes.”

Before the start of the voir dire examination the court stated that it proposed to tell the jury panel that appellant was “being tried in absentia because of his prior conduct in the courtroom.” Defense counsel objected “to anything being said about why he’s not being here.” The court then commented that the alternative would be “to bring him back in and have him act up in their presence.” Defense counsel agreed that this “probably” would be more prejudicial. No mention was made to the jury as to why appellant was absent.

At the conclusion of the voir dire examination of the jury, but before it was sworn, the court directed that appellant be brought into the court’s chambers and in the presence of counsel the court said: “I again want to advise you of your right to be present in the courtroom during all these proceedings; I am inviting you to be in the courtroom to fully participate in the proceedings provided you do so in an orderly manner and in such a manner that this case will be tried orderly. You have a right under the law to confront the witnesses and I so invite you to take advantage of that right and to participate in this trial provided that you do so in an orderly manner and not be disruptive in any way. So again I’m extending this invitation to you, before the jury is sworn, to participate in the trial in an orderly and gentlemanly manner. I’d like to know what your wishes are at this time.” Appellant replied: “Go in the back.” The court then asked: “You do not wish to participate in the trial?” Appellant replied, “I want to go back to the cell.”

After the State presented some of its evidence, the court recessed for the day. The next morning, appellant was brought to the court’s chambers where the court again advised appellant of his right to be present and to confront the witnesses against him, and the court again invited appellant to be present. This time appellant expressed the desire to be present and he agreed that he would not engage in any disorderly conduct. Appellant was present throughout the remainder of the trial.

We note here that this is not a situation where an accused was removed from the courtroom during his trial against his wishes because of a courtroom disturbance. We have here the situation where the court gave appellant the choice of remaining in the courtroom and not creating a disturbance or remaining out of the courtroom. Appellant said he wanted to remain out of the courtroom rather than comply with the condition, and the court honored his wish.

Appellant first asserts that the trial court erred in permitting the voir dire examination of the jury and a part of the trial to be held while he was absent from the courtroom because the “Defendant must be present at all material stages of the trial except when the court [receives] the verdict, and such right cannot be waived.”

Appellant cites State v. Smith, 90 Mo. 37, 1 S.W. 753 (reported in 1 S.W. 753 as State v. Crockett) (1886); State v. Murphy, 292 Mo. 275, 237 S.W. 529 (1922); and State v. McCrary, 365 Mo. 799, 287 S.W.2d 785 (1956). He does not cite State v. Drope, 462 S.W.2d 677 (Mo.1971), in which the three above cases were discussed at length and which expressly ruled this point adversely to appellant’s contention. We note here that the conviction in the Drope case was subsequently set aside in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), in a review of a post-conviction proceeding pertaining to an issue not presented in the original appeal. The ruling of the Drope case that an accused can waive his constitutional right to be present at his trial and confront the witnesses against him is the latest pronouncement by the Supreme Court of this State. We see no occasion to again relate the basis for that ruling.

Appellant next asserts that if an accused can waive his right to be present at his trial, “there was no waiver in this case as it was not knowingly, intelligently and voluntarily waived.”

Although, as held in State v. Drope, supra, an accused may waive his constitutional right to be present at his trial and confront the witnesses against him, such waiver must be knowingly, intelligently and voluntarily made, State v. Fields, 434 S.W.2d 507 (Mo.1968), and whether there was such a waiver depends upon what has been tritely referred to as the totality of the circumstances of each case. State v. Ambus, 522 S.W.2d 306 (Mo.App.1975). Appellant argues that “the trial court did not sufficiently advise [him] of the effect of his absence from the courtroom.” We note in this connection that at trial appellant was represented by a member of the staff of the Public Defender, which office represents appellant on this appeal. His counsel witnessed the disturbance in the courtroom, and after the court had announced that appellant was to be excluded from the courtroom unless he agreed to conduct himself properly, he commented: “I think because of the actions of my client, I can see where the Court had little choice.” He then objected to going to trial without appellant being present because his absence would “in some way affect these jurors.” Although he had frequently conferred with appellant and apparently had some basis to judge his capabilities, he at no time directly or by inference indicated to the court that appellant’s choice to be absent from the courtroom rather than be present and behave was not or could not be a decision knowingly, intelligently and voluntarily made by him. This is not the case of a person being called upon to make a decision whether to waive a fundamental right without the aid or benefit of counsel. Nor is this a case of a person inexperienced in court procedure. Appellant had been convicted on a prior occasion. It is true that the record does not reflect whether or not appellant did in fact advise with his counsel concerning his decision, but it does reflect that at all times his counsel was available and that at no time did counsel interpose any objection, or raise any question, as to the propriety of the remedial action taken by the trial court for the reasons now presented to this court. The fact that counsel was present and available, not only to advise appellant when requested but with the duty to protect appellant’s interests, is a strong and compelling circumstance to be considered.

It is evident from the record that appellant had decided that by creating a disturbance in the courtroom he intended to prevent his trial from taking place. We do not agree with the Public Defender’s charge in his brief that the court’s assurance to appellant that the trial would proceed constituted a “veiled threat.” We note that the charge is made that the court did not sufficiently advise appellant, but when the court correctly told appellant the consequences of his conduct, the Public Defender now charges the court with having made a veiled threat.

When we review the entire occurrence, we find a preconceived plan on the part of appellant, who was not a novice in courtroom procedure, to thwart the judicial process and prevent his trial by engaging in conduct which the court characterized as “reprehensible,” and that with counsel present who interposed no protest or objection whatever as to his ability to knowingly and intelligently determine his course of action in furtherance of his plan appellant voluntarily elected to absent himself from the courtroom during a portion of his trial rather than be present and not create a disturbance. We find absolutely nothing to indicate that appellant could not or did not appreciate fully the consequences of his decision, made with counsel present to advise him, to waive his constitutional right to be present in the courtroom during his trial.

Appellant’s final point is that the trial court erred in giving Instruction No. 5, the verdict-directing instruction, because it ignored his defense that he had operated the automobile with the belief that he had permission to do so from the person whom he believed to be the owner.

Appellant admits that this contention was not assigned as error in the motion for new trial, but requests that it be considered as a matter of plain error within the meaning of Rule 27.20(c). Instruction No. 5 followed the form of MAI-CR 7.80, including the use of the third paragraph, which, as stated in the Notes on Use, must be included when there is evidence that the accused acted in good faith that he had the permission of the owner. For this reason, plain error within the meaning of Rule 27.20(c) did not occur.

The judgment is affirmed.

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


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ronald Lee FLYNN, Defendant-Appellant.
    No. 37048.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 7, 1976.

      Brady, Brady & Devereaux, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   STEWART, Judge.

Defendant was convicted of second degree murder by a jury and his punishment was assessed at 23 years imprisonment. He appeals from the judgment entered in accordance with the verdict. We affirm.

Defendant lists some ten allegations of error on the part of the trial court.

We shall first consider defendant’s contentions numbered VII and VIII because they are interrelated. He urges that the court erred in (1) overruling defendant’s motion for judgment of acquittal because there was neither sufficient nor substantial evidence of a felonious intent on the part of defendant to shoot the victim and (2) in giving the verdict directing instruction on murder in the second degree because there was no evidence to support the requested finding that defendant “intended to take the life of the [victim].”

In determining whether there was sufficient substantial evidence to warrant submission of murder in the second degree we review the evidence and the reasonable inferences therefrom in the light most favorable to the State. State v. Hicks, 438 S.W.2d 215[1] (Mo.1969).

On the afternoon of February 20, 1973, Robert Cobbs was shot and killed by defendant in defendant’s apartment at 4471 Laclede, in the City of St. Louis. About a week before the shooting defendant turned over some marijuana to Cobbs upon assurance that Cobbs would sell it for him. He also loaned Cobbs a gun. Cobbs did not return the gun, nor the money for the marijuana. On the day before the shooting, defendant told Cobbs he wanted his money for the marijuana and the gun. Cobbs replied he did not have it, but would have it the following day.

On the day of the shooting, defendant, Cobbs and James Jamerson were in defendant’s apartment. Defendant took a revolver from his night stand, opened the chamber, held it up and looked into the cylinder. He then closed the chamber, spun the cylinder around, and pointed the gun at Cobbs’s head. Cobbs was about two feet from defendant at that time. Defendant said something about Russian roulette and pulled the trigger twice while Cobbs protested, “Don’t point that at me.” When he pulled the trigger the third time the pistol fired and the bullet struck Cobbs in the forehead causing his death.

Defendant threw the gun to Jamerson and told him to “get it out of here.” Jam-erson left with the gun. Defendant then called the police. Before the police arrived he tore a hole in a screen in a window and threw five live cartridges out the hole onto the ground below. When the police arrived he told them that he and Cobbs and another person, whom he would not identify, were standing in the room when he heard a shot that sounded as though it came from outside. He looked toward the window and caught a glimpse of someone going down the steps. When asked about the screen he said that he had cut the hole so his cat could get in and out. After the police spoke with other persons in the building defendant was arrested for murder. A warrant was applied for and refused. Defendant was released from custody on the morning of February 21, and left St. Louis for Chicago, and, then on to Canada. The police learned the identity of James Jamerson and questioned him on February 22. An arrest warrant was then issued for the defendant.

In November of 1973 defendant was arrested in Canada. At that time he admitted that he shot Cobbs.

At the trial defendant interposed the defense of excusable homicide by reason of accident. Defendant testified that he was playing with the gun; that he opened the chamber and emptied what he thought was the entire load of six bullets from the gun into his hand. He did not look at the bullets or count them. He placed the bullets that were in his hand into his pocket. He then pointed the gun in the direction of Cobbs and when he did so the gun discharged. The gun was cocked and his finger was on the trigger at the time. He did not think that he exerted sufficient pressure on the trigger to discharge the gun.

Intent is a state of mind and ordinarily is not susceptible of direct proof. It may, and in most instances must be, inferred from the circumstances. State v. Faber, 499 S.W.2d 790 (Mo.1973). The jury must make its determination by the act and by the surrounding circumstances. “Where one uses a weapon likely to produce death in making an assault upon another, and death ensues, the one who commits the act is presumed to intend death.” State v. Hammonds, 459 S.W.2d 365, 36S[1-4] (Mo.1970). There was, in fact, a bullet in the gun. Whether defendant knew that there was at least one bullet in the cylinder was a question of fact for the jury. According to defendant’s own testimony he had some bullets from the gun in his hand before he shot Cobbs; the jury was not required to believe that he did not count them. Jamer-son testified only to the fact that defendant opened the chamber and looked into the cylinder. He did not testify that any bullets were removed from the gun. Defendant leveled the gun at Cobbs’s head, cocked and pulled the trigger three times before it discharged. He disposed of the gun, told the police that he had not fired the shot and subsequently fled. From all of the circumstances surrounding this killing there was sufficient substantial evidence to warrant a jury in finding that defendant had the necessary intent to convict him of murder in the second degree. The questions of whether the shooting was accidental or intentional were factual questions which were submitted to the jury for its determination.

Defendant does not attack the form of the instruction submitting murder in the second degree. Having found that there was sufficient substantial evidence to warrant submission of the charge it necessarily follows that the court was warranted in submitting the instruction on murder in the second degree.

Defendant contends that the State failed to prove the essential requirement of venue. Venue need not be proved beyond a reasonable doubt but may be established from the facts and circumstances in evidence. State v. Minnix, 503 S.W.2d 70 (Mo.App.1978). In this case the crime occurred at 4471 Laclede Avenue. Three witnesses testified that they went to the scene of the crime at. 4471 Laclede Avenue “in the City of St. Louis.” This direct evidence sufficiently establishes that the crime was committed in the City of St. Louis.

The defendant complains that the trial court erred in admitting into evidence the fact that defendant gave marijuana to Cobbs to be sold because it constitutes proof of another crime having no relation to the crime with which he was charged. As a general rule the proposition espoused by defendant is correct. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954). However, as one of the five exceptions to the general rule, proof of the commission of other crimes is admissible if such proof goes to the question of the motive. State v. Knupp, 507 S.W.2d 360 (Mo.1974). Motive is an incentive to action. Here the evidence that defendant gave Cobbs the gun and some marijuana to be sold, coupled with the fact that Cobbs did not turn over the money for the marijuana, would tend to prove that defendant had a motive for the killing. Defendant, in a statement to the Canadian police officers, conceded that the police would feel he had a motive for the killing, because it was well known that “I was looking for this eat as he had ripped me off in a drug deal . . . ” The court did not err in admitting the evidence of the transaction respecting marijuana.

Defendant next attacks Instruction Number 8 (MAI-CR 2.28) which was given by the court on the issue of excusable homicide and contends that the court erred in refusing to give Instruction “A”. Instruction A differs from Instruction 8 only as to paragraph 2.

The specific point sought to be raised by defendant reads:

IX
“The trial court erred in refusing to give defendant’s instruction A, on excusable homicide, because the instruction given, instruction number eight, did not sufficiently define excusable homicide as required by the Missouri approved instruction number 2.28. MAI-CR 2.28; Notes on Use.”

In the argument portion of the brief defendant argues that the description of “the lawful act by lawful means” as filled in by the court in submitting MAI-CR 2.28 did not sufficiently describe that act. (See the emphasis in footnotes 1 and 2). He contends that Instruction A contained a proper description and should have been given.

A general objection was made to the instructions prior to the time that the court read the instructions to the jury. In the motion for new trial defendant charged that the court erred in refusing to give Instruction “A” because “It is incumbent upon the Court to adequately and fully define ‘accident’ as given in Instruction Number Eight (8).”

Considering these matters in inverse order it is at once apparent that the error alleged in point IX was not presented to the trial court for its consideration in the motion for a new trial. Matters not presented to the trial court in the motion for new trial may not be presented for the first time upon appeal. The point relied on presents nothing for our appellate review. State v. Martin, 451 S.W.2d 96, 99[3] (Mo.1970); Rule 27.20(a). State v. Rennert, 514 S.W.2d 579 (Mo.1974).

The issue contained in the argument portion of the brief which did not follow the point relied on likewise presented nothing for our review. Rules 84.04(d) and 84.04(e). State v. Tschirner, 504 S.W.2d 302[7] (Mo. App.1973).

Defendant next contends that the court erred in refusing to give instructions identified as “B” and “C”. “B” contains a definition of accident, “C” contains a definition of “accidental homicide.” We note first that “accidental homicide” is not a phrase contained in any instruction submitted and therefore has no relevancy to the issues raised. Defendant contends that the word “accident” used in Instruction 8 (MAI-CR 2.28) required further definition. This case was tried after MAI-CR became effective. The general purpose of MAI-CR was to standardize and simplify instructions to provide for uniformity in instructions in criminal cases throughout the State. In formulating the instructions, “words and phrases were selected for use which have a readily understandable meaning.” State v. Abram, 537 S.W.2d 408, 410 (Mo.banc 1976). Rule 20.02(a) sets out three categories of instructions. (1) Those that must be given though not requested. These include MAI-CR 2.03 and those instructions in the 2.00 series MAI-CR, where applicable under the law to the facts and where required by Rule 26.02(6), and the verdict directing instructions in the 6.00 to 14.00 series. (2) Those that must be given if requested. These are MAI-CR in the 3.00 series. (3) Those that are discretionary. These are MAI-CR in the 4.00 series. These may be given or refused by the court even though a request has been made.

It is apparent from Rule 20, MAI-CR and the Committee Comments that MAI-CR was intended to perform the same function as MAI. Counsel may not be permitted to improve upon the approved instructions “even within the confines of specific precedents.” MAI p. XXVII.

In view of the fact that the MAI-CR have been drawn so as to be readily understood by ordinary lay citizens the Supreme Court has admonished that instructions submitting definitions are “to be avoided.” State v. Abram, supra, at 411. The Supreme Court in approving MAI-CR did not provide for an instruction defining the word “accident” in the category of instructions required to be given or required to be given upon request. Such an instruction is not necessary whether requested or not and in fact should not be given. It follows that the court did not err in failing to give Instructions “A” and “B” requested by defendant.

Defendant charges that the court erred in denying his motion to suppress statements made by him to police officers of the City of St. Louis and to Canadian officers. This issue is not before us for our review.

Defendant initially raised the issue by presenting his motion to suppress statements outside the hearing of the jury prior to commencement of the trial. Sgt. An-toon, a St. Louis detective, and Officer Hughes, of Calgary, Alberta, Canada, testified with respect to statements made to each of them by defendant. Experienced trial counsel, in a tactical decision, did not object to the statements when they were introduced into evidence at the trial. Rather, on cross-examination of each of the police officers, he elicited testimony favorable to his client. The issue was raised again in the motion for new trial. To preserve an issue such as this for appellate review it is necessary that timely objection be made at the time the evidence is offered during the trial. State v. Johnson, 536 S.W.2d 851, 854[1, 2] (Mo.App.1976). We may not consider this issue.

Defendant’s points IV and VI do not comply with the mandate of Rule 84.04(d) and do not present anything for our consideration. Point IV does not tell us wherein and why it is contending that the court erred. Point VI does not “state briefly and concisely what actions or rulings of the court are sought to be reviewed.” 84.-04(d). State v. Davis, 516 S.W.2d 784 (Mo.App.1974).

Finding no error the judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.

      . “One of the issues in this case is whether the death of Robert Cobbs was an excusable homicide. By ‘excusable homicide’ is meant the killing of another by accident or misfortune under the circumstances submitted in this instruction. On that issue you are instructed as follows:
      1. The State has the burden of proving beyond a reasonable doubt that the death of Robert Cobbs was not an excusable homicide. The defendant is not required to prove that the death was excusable. If the death was an excusable homicide, or if the evidence in this case leaves in your mind a reasonable doubt as to whether the death was an excusable homicide, then you must find the defendant not guilty.
      2. You will acquit the defendant on the grounds of excusable homicide and return a verdict of not guilty if the death of Robert Cobbs was the result of an accident or misfortune in that the defendant handled a gun which discharged and caused the death of Robert Cobbs without unlawful intent and without reckless disregard for human life and safety.” (emphasis added)

      . “2. You will acquit the defendant on the ground of excusable homicide and return a verdict of not guilty if the death of Robert Cobbs was the result of an accident or misfortune in that the defendant was playing with a pistol which he believed to be unloaded and had no intention of pointing the pistol at Robert Cobbs in a threatening manner and further that the defendant acted without unlawful intent and without reckless disregard for human life and safety.” (emphasis added)

      . “You are further instructed that ‘accident’ as discussed in Instruction No. _is defined as anything that happens unexpectedly, without design, or by chance.”

      . “You are further instructed that an ‘accidental homicide’ as discussed in Instruction No. _is defined as an unintentional taking of human life.”

      . “(6) In all criminal cases the court, whether or not it shall have been requested so to do by either party, must instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict which shall include whenever necessary the subjects of good character and reasonable doubt. In all felony cases failure so to instruct shall be good cause for setting aside a verdict of guilty by the jury and granting a new trial.”

      . . . Therefore, the Committee recommended that trial judges follow these simple rules:
      1. Give instructions on ‘the law of the case’ whether requested or not, using the forms approved.
      2. Give instructions in the 3.00 Series if requested, using the patterns there even if an instruction is tendered in an improper form.
      3. Give or refuse cautionary and other discretionary instructions without fear of reversal.
      The beauty of this solution is that it takes a considerable amount of concern and responsibility from the shoulders of the trial judge. He will not be required to decide anything more than whether the requested charge has eviden-tiary support.”

        Committee Comments, “Forward,” at 11-12.

      . “The trial court erred in prohibiting defense counsel from ascertaining from witness, Philip Antoon, whether in defendant’s statement to him there was any indication that there had been an argument between defendant and the victim, Robert Cobbs, on the date of the shooting.”

      . “The trial court erred in allowing prejudicial hearsay statements in evidence in the testimony of witnesses for the state, Philip Antoon, Artis Dease and James Jamerson.”


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Johnny Lee CALMESE, Appellant.
    No. 37233.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 7, 1976.

      John C. Danforth, Atty. Gen., Jefferson City, Robert L. Presson, Preston Dean, Asst. Attys. Gen., Brendan Ryan, Circuit Atty., Terence J. O’Toole, Asst. Circuit Atty., St. Louis, for respondent.
    Robert C. Babione, Henry J. Rieke, Public Defenders, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Defendant Johnny Lee Cálmese was sentenced to seven years’ imprisonment following a verdict finding him guilty of second degree burglary and a finding by the court of a prior felony conviction. Sections 560.-045, 560.095 and 556.280, Laws, 1975.

The state’s evidence showed defendant’s fingerprints were found in the burglarized office. Defendant did not testify and his only witness was his father who testified defendant had occasions to go into the office on business.

Defendant makes two challenges on appeal: The state’s cross examination of the defendant’s father about an offer he had allegedly made to pay money to have the victim drop the charges, which the father denied, and the trial court’s ruling permitting the victim in rebuttal to testify defendant’s father did make the offer.

Defendant first contends no proper foundation was laid for questioning his father about the alleged offer and such evidence was inadmissible because it was irrelevant and prejudicial. State’s counsel informed the court in chambers the purpose of this inquiry was to show the father’s bias, prejudice and interest in the outcome of the trial. Evidence of an offer by a defendant’s witness to a third party to drop charges against the defendant is admissible to show bias and prejudice of the witness. State v. Preslar, 318 Mo. 679, 300 S.W. 687[1] (1927); State v. Allen, 267 Mo. 49, 183 S.W. 329[6] (1916). To show interest or bias, a witness may be cross examined on his state of mind or the nature of his conduct in regard to the party in whose favor or against whom he is testifying. State v. Smith, 250 Mo. 350, 157 S.W. 319[5] (1913).

To lay a foundation for impeachment of a witness based on the witness’ act, counsel need only ask the witness whether he ever committed the act. Barraclough v. Union Pac. R. Co., 331 Mo. 157, 52 S.W.2d 998[3-4] (1932). The trial court has to determine whether the examining counsel has identified with reasonable certainty and specificity the act in question. There is nothing in this record to indicate the trial court abused this discretion.

The interest or bias of a witness in relation to or feeling toward a party is relevant. State v. Pigques, 310 S.W.2d 942[7, 8] (Mo.1958). The fact evidence showing bias and prejudice may have a prejudicial effect does not foreclose its admission. Evidence which is competent for one purpose cannot be excluded merely because it is incompetent and prejudicial for another purpose. State v. McClure, 504 S.W.2d 664[7, 8] (Mo.App.1974).

Defendant also contends the trial court erred in admitting the victim’s rebuttal testimony to contradict the defendant’s father’s denial of having made the offer. He argues that the alleged offer not to prosecute was a collateral matter and the state therefore is bound by the answer of the witness questioned and also argues that the prejudicial effect of the father’s alleged offer outweighed its probative value. Bias and prejudice are not collateral matters if they tend to lessen the value of the witness’ testimony. The state was not bound by the father's denial and impeachment by an independent source was permissible. State v. Day, 339 Mo. 74, 95 S.W.2d 1183[2-5] (1936). The prejudicial effect of this rebuttal testimony should be considered in the same way as the original cross examination and is admissible as evidence tending to show bias and prejudice on the part of the defendant’s father. McClure, supra.

Judgment affirmed.

DOWD and STEWART, JJ., concur.


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. David McCLAIN, Defendant-Appellant.
    No. 10226.
    Missouri Court of Appeals, Springfield District.
    Sept. 8, 1976.

      John C. Danforth, Atty. Gen., Nanette Laughrey, Preston Dean, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Robert W. Evenson, Pineville, for defendant-appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

A jury found defendant guilty of molesting a minor with immoral intent and assessed his punishment at five years’ confinement. § 563.160. Defendant was represented at trial by counsel of his own choice. On this appeal, permitted by our special order under Rule 28.07, defendant is represented by different counsel of his selection.

Regarding matters for compulsory review under Rule 28.02, we find the information, verdict, judgment and sentence sufficient. Defendant did not file a motion for a new trial. This precludes us from considering matters required to be preserved in such a motion. Rules 27.20(a) and 28.02; State v. Morris, 518 S.W.2d 78 (Mo.App.1974). Nevertheless, defendant asseverates the alleged errors enumerated among the points relied on in his brief should be considered on appeal as “[p]lain errors affecting substantial rights.” Rule 27.20(c); State v. Gordon, 586 S.W.2d 811, 814[5] (Mo.App.1976). We shall see.

But before proceeding to the points relied on, what of our jurisdiction of this appeal? The notice of appeal [Rule 81.08(a) and (b)j recites, inter alia, “This appeal does not involve a construction of the Constitution of the United States or the Constitution of the state of Missouri. The Missouri Court of Appeals has jurisdiction in this case.” To the contrary, the jurisdictional statement in defendant’s brief declares: “This court has no jurisdiction herein because this appeal does involve a construction of the Constitution of the United States and the Constitution of the State of Missouri. . Therefore, jurisdiction of this appeal is vested in the Missouri Supreme Court.” This is the only allusion by defendant in his brief to jurisdiction.

The mandatory requirements of Rule 84.04 are made applicable to criminal cases by Rule 28.18 [State v. Yearwood, 510 S.W.2d 43, 44 (Mo.App.1974)], and Rule 84.-04(b) states: “Bare recitals [in briefs under Jurisdictional Statement] that jurisdiction [of the Supreme Court] is invoked ‘on the ground that the construction of the Constitution of the United States or of this state is involved’ or similar statements or conclu-’ sions are insufficient as jurisdictional statements.” Also see Rule 81.08(c). Because art. Y, § 3 of the Missouri Constitution vests the Supreme Court with appellate jurisdiction only in those cases involving construction of the constitutions of the United States and this state, as opposed to application, the bare assertion that a constitutional question or construction is involved, without demonstrating why it is so or is real or substantial, does not divest the Court of Appeals of appellate jurisdiction. State v. Russo, 463 S.W.2d 832, 834 (Mo.1971); Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760, 767[8] (Mo.App.1974). Moreover, the Supreme Court will entertain appeals on constitutional questions only if such questions were presented to the trial court. Collector of Revenue v. Parcels of Land, etc., 517 S.W.2d 49, 55[11] (Mo.1974). No such questions were presented to the trial court in this case. Furthermore, it is not the duty or function of the Supreme Court or of this court to contrive a constitutional defense for an appellant. State v. Cook, 463 S.W.2d 863, 865[3] (Mo.1971). We conclude we have jurisdiction.

Defendant’s brief presents three points. The last two are: “2. The trial court erred in that it failed to properly swear or affirm the child witness, S... P..., and take her testimony as any other witness. 3. The trial court abused its discretion in ruling that the child witness, S... P.. ., was a competent witness, after limited voir dire.”

As provided by Rule 84.04(d), “The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” (Our emphasis). As repeatedly held, this rule is not satisfied by simply stating what the alleged error is claimed to be; the rule mandates that the point must also state “wherein and why” the action or ruling of the trial court is claimed to be erroneous. Matter of Search Warrant of Property at 3552 Gravois, 528 S.W.2d 452, 453[1] (Mo.App.1975); State v. Purvis, 525 S.W.2d 590, 592-593[1] (Mo.App.1975). No duty reposes upon an appellate court to resort to the argument portion of a brief to ascertain “wherein and why” the action or ruling of the trial court is said to be erroneous [State v. Mitchell, 500 S.W.2d 320, 323[3] (Mo.App.1973)], and a defendant’s point which cannot be comprehended without reference to the argument results in nothing being preserved for review on appeal. State v. Drake, 514 S.W.2d 653, 655[2] (Mo.App.1974).

Apropos point 2, what the trial court did or did not do so as to make the swearing of the witness allegedly improper cannot be discerned from the point as written, and “wherein and why” whatever the court did or omitted to do to constitute claimed error is wholly unexplained. The phrase “and take her testimony as any other witness,” appears to have no logical or relevant connection with the point unless it be interpolated into a complaint that the court erred in taking the testimony as any other witness when the witness had not been properly sworn. Even so, such an interpolation still begs for a recounting of the court’s action or inaction and an explanation as to “wherein and why” it was wrong. Point 3 states “what” the error was supposed to be. However, “wherein and why” the trial court allegedly abused its discretion in ruling the child to be a competent witness is left for us to guess. Points 2 and 3 are written in violation of Rule 84.04(d) and present nothing for review by this court.

Another reason points 2 and 3 are not reviewable here, is that defendant did not voice a single objection to the procedure employed by the trial court in determining the competency vel non of the witness, to the court’s ruling that the child was a competent witness, to the procedure followed by the trial judge in swearing the witness, or to the testimony of the witness. When a defendant at trial does not object to the procedure followed, to the ruling of the court or to the testimony of a witness, and does not present those matters as claimed error to the trial court in a motion for a new trial, such alleged errors are not preserved for appellate review and are not resurrected for consideration when proffered for the first time via an appellant’s brief. State v. Gant, 490 S.W.2d 46, 49[8] (Mo.1973); State v. Gannaway, 313 S.W.2d 653, 656-657[10] (Mo.1958); State v. Obie, 501 S.W.2d 513, 514[3] (Mo.App.1973).

Although we have ruled that points 2 and 3 present nothing for review by this court and that the issues involved therein were not preserved for appellate adjudication, what of defendant’s claim of plain error? It suffices to say that we find no error, plain or otherwise. At a pretrial in-camera hearing attended by the judge, prosecutor, defendant’s counsel, the court reporter and the child, the 6 or 7-year-old witness was interrogated to determine if she was competent to testify. The child acknowledged that she did not “know what it means to take an oath,” but this did not per se make her an incompetent witness. State v. Ayers, 470 S.W.2d 534, 537[4] (Mo. banc 1971). “The test of competency of a child of tender years involves four fundamental elements, all of which should be present in order for such child to be competent to testify, viz.: (1) ‘Present understanding of or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observation.’ ” Burnam v. Chicago Great Western R. Co., 340 Mo. 25, 34-35, 100 S.W.2d 858, 862[2] (1936). In answer to questioning, the girl said she knew what it was to tell the truth and knew “what happens to little girls if you don’t tell the truth,” i. e., they go “Down . . . the Devil’s down there.” She corrected the trial judge for calling the Bible “a book,” identified the accused by name, accurately described (as later corroborated by adult witnesses) where the alleged crime had been committed and what had occurred, correctly said it had occurred after school in the home of her natural mother, and that she was presently living with foster parents. We acknowledge that the child’s natural mother testified at trial that her daughter was “retarded” and “you can’t believe what she tells you.” However, these assertions were considerably weakened by the mother’s admission that she was still “friendly” with the defendant and her expressed umbrage over the action of the juvenile authorities in taking the child from her after the incident in question. The court had ample opportunity to observe the child and to conclude that she possessed the four fundamental elements necessary to qualify her as a witness. We are unable to say that the trial court abused its discretion in holding the witness qualified to testify. State v. Young, 477 S.W.2d 114, 116-117[3-5] (Mo.1972); State v. Starks, 472 S.W.2d 407 (Mo.1971); State v. Sanders, 533 S.W.2d 632 (Mo.App.1976).

There is no special litany required in administering an oath. “Whenever the court ... by whom any person is about to be sworn shall be satisfied that such person has any peculiar mode of swearing connected with or in addition to the usual form of administering oaths, which is to him of more solemn and binding obligation, the court . . . shall adopt that mode which shall appear to be most binding on the conscience of the person to be sworn.”, § 492.040. Also, “In all cases in which an oqth or affirmation is required or authorized by law, every person swearing, affirming or declaring, in whatever form, shall be deemed to have been lawfully sworn . . . .” § 492.060. “The sanction of an oath, regarded as a feature of judicial procedure, is its quickening of the conscience of the affiant, and the liability it creates to the penalty of perjury, if the testimony is willfully false. This penalty attaches whatever be the form in which the oath is administered.” State v. Bennett, 102 Mo. 356, 373, 14 S.W. 865, 869 (1890).

Before the child-witness testified at trial, the following occurred: “THE COURT: Would you raise your right hand. MR. ELLISTON: The other hand. THE COURT: These gentlemen are going to ask you some questions. Are you going to tell them the truth? THE WITNESS: Yes. (Nod). THE COURT: Will you promise me you will tell them the truth? THE WITNESS: Yes. (Nod).” We harbor little doubt that intoning the usual oath to a child of tender years would more likely lead to incomprehensible bewilderment than to a quickening of the conscience. The words, “You do solemnly swear” etc., might suggest to a youngster swearing of a different sort than intended, whereas having the child promise to tell the truth would be understandable and a mode of swearing which would be more apt to bind him to speak the truth. We cannot hold that the manner employed in swearing the child-witness in this case was error, especially in view of the wide discretion so clearly vested in the trial court by § 492.040, supra, and the pronouncement of § 492.060, supra, that a person shall be deemed to have been lawfully sworn whatever the form the oath shall take. State v. Ponteras, 44 Haw. 71, §51 P.2d 1097, 1100[3, 4] (1960); State v. Collier, 23 Wash.2d 678, 162 P.2d 267, 275-276[10] (1945).

Defendant’s initial point relied on, which we consider last, is: “The trial court erred because it did not, on its own motion, grant a new trial on the ground that the defendant was denied the effective assistance of counsel, in that trial defense counsel’s representation resulted in defendant’s trial being a mockery of justice in the following particulars: . . . .” Thereafter follows 12 instances where defendant asseverates his trial counsel failed to perform effectively in his defense. In summary, the alleged instances complained of by defendant are counsel’s failure (1) to object to invoking the rule on witnesses after the state’s opening statement, (2) to object to the competency of the child-witness, (3) to object to the testimony of the child because she had not been properly sworn, (4) to object to a witness who characterized the child as “the victim” and “victim of rape,” (5) to object to the prosecutor’s similar characterizations, (6) to request an alibi instruction, (7) to request an instruction limiting the extent the jury could consider testimony concerning homosexual activity between defendant and an alibi witness, (8) to call a witness who allegedly said he had committed the crime, (9) to file a motion for a new trial, (10) to advise defendant of his right to make application for extension of time to file motion for a new trial, (11) to advise defendant of need for a new trial motion, and (12) to advise defendant of his right to appeal.

The issue of ineffective assistance of counsel may properly be raised on direct appeal from a judgment of conviction provided the record has sufficiently developed the facts essential to a meaningful review. State v. Phillips, 460 S.W.2d 567, 569[3] (Mo.1970). However, where the issue is entertained on appeal, it usually relates to isolated instances and the record on them was fully developed. E. g. State v. Bosler, 432 S.W.2d 237, 238-239[1, 2] (Mo.1968); State v. McQueen, 431 S.W.2d 445, 450[6, 7] (Mo.1968). In most cases the issue of ineffective assistance of counsel can best be raised in a postconviction motion under Rule 27.26 [State v. Day, 515 S.W.2d 584, 585-586[6] (Mo.App.1974)] because the issue usually arises after the trial has concluded and the facts pertinent thereto are not fully developed. “An evidentiary 27.26 hearing will give defendant an opportunity to testify as to any alleged ineffective assistance of counsel and will give [trial] counsel an opportunity to give his version of what occurred. In addition, both defendant and the State will have the opportunity to offer any other pertinent evidence. We then will have before us the record on this direct appeal plus the testimony taken at the 27.26 hearing. On the basis thereof, we can review the findings and conclusions of the trial court in accordance with Rule 27.-26(j).” State v. Blackwell, 459 S.W.2d 268, 269[1] (Mo.banc 1970); State v. Bibbs, 461 S.W.2d 755, 761[9] (Mo.1970).

In defendant’s brief it is acknowledged that summarized instances (1), (8), (10) and (12) of the alleged failures listed above “were not developed in the record” and after our review of the transcript on appeal, we do not find the others were sufficiently developed so that we could confidently rule the matter. The failure to file a motion for a new trial does not alone demonstrate ineffective assistance of counsel [White v. State, 430 S.W.2d 144, 147[4] (Mo.1968)], particularly where, as here, the transcript shows defendant advised his attorney not to file one. In view of our ruling as to points 2 and 3, defense counsel may have been justified in not objecting to the competency or testimony of the child-witness. His failure to object in other areas noted in the point relied on may well be explained as a matter of trial strategy or judgment, which does not equate to ineffective assistance of counsel even though the strategy or judgment employed proves, by hindsight, to have been wrong. Evidence on the motive of trial counsel in failing to make certain objections or to request certain instructions is most appropriately explained and explored on postconviction proceedings under Rule 27.26. State v. Greathouse, 519 S.W.2d 299, 300[3] (Mo.App.1975). Whether there was, in fact, a witness whom counsel could or should have subpoenaed as a witness for defendant, is not revealed by the record before us, and the fact we permitted an out-of-time appeal under Rule 28.07, would seem to obviate defendant’s complaint that trial counsel did not file a notice therefor. In short, with a record as unrevealing as the one before us concerning defendant’s assertion of ineffective assistance of trial counsel, we decline to review the issue on direct appeal and leave it to be raised in a Rule 27.26 proceeding. State v. Smothers, 518 S.W.2d 187, 188[1] (Mo.App.1974); State v. Hedrick, 499 S.W.2d 583, 585-586[5-8] (Mo.App.1973).

The judgment is affirmed.

All concur.

      . References to statutes and rules are to RSMo 1969, V.A.M.S., and to Missouri Supreme Court Rules of Criminal and Civil Procedure, V.A. M.R.