author: CLEMENS, Presiding Judge.

text:
    Willie Thomas ARMSTRONG, Appellant, v. STATE of Missouri, Respondent.
    No. 36878.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 10, 1976.
    Motion for Rehearing or Transfer • Denied' March 10, 1976.
    Application to Transfer Denied April 14,1976.

      Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Post-conviction proceeding under Rule 27.26.

In October, 1946 defendant-movant pled guilty to murder in the first degree and was sentenced to life imprisonment. In a motion to vacate, he now contends his plea was not voluntarily and intelligently made.

At a hearing on his 27.26 motion, testimony by movant and his trial counsel differed as to whether movant’s guilty plea in 1946 was voluntarily and intelligently entered. The trial court found it was, and also that although movant’s fear of a death sentence had affected his guilty plea it did not constitute coercion. The trial court could not review the court record of the plea proceedings; no transcript was required in 1946 and both the judge who had accepted the plea and his court reporter are deceased.

Movant has the burden of proving grounds for relief in a motion to set aside his plea and vacate the conviction. Crews v. State, 510 S.W.2d 425[2] (Mo.1974) and cases cited there.

To reverse, the findings must be clearly erroneous when the trial court finds against movant’s allegations. Crosswhite v. State, 426 S.W.2d 67 (Mo.1967) and 27.26(j), V.A.M.R. “ ‘Clearly erroneous’ as that term is used in Rule 27.26(j), V.A.M.R., means that although there was evidence to support the trial court’s finding, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed.” Thurman v. State, 523 S.W.2d 521 (Mo.App.1975). “We recognize the trial court had the right to reject testimony on behalf of the movant, even though there was no contrary evidence offered at the hearing. That is particularly true when the favorable testimony came from appellant himself, with an obvious interest in the outcome, and the proceedings for relief arose some time after the events in question and after the deaths had removed from the scene persons with direct knowledge of the events.” Shoemake v. State, 462 S.W.2d 772[4] (Mo.1971).

Movant cites Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). There the Supreme Court required a record to affirmatively demonstrate defendant understood his rights and willingly entered his plea of guilty. Missouri does not apply the Boykin rule retroactively. Goodwin v. State, 502 S.W.2d 269[4] (Mo. 1973).

Judgment affirmed.

STEWART and RENDLEN, JJ., concur.


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Dan McGREW, Defendant-Appellant.
    No. 36559.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 10, 1976.
    Motion for Rehearing or Transfer Denied March 10, 1976.
    Application to Transfer Denied April 14,1976.
    Joseph W. Warzycki, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

The defendant was found guilty by a jury of stealing from a person, § 560.161 RSMo 1969, and was sentenced by the court to five years imprisonment pursuant to the Second Offender Act, § 556.280 RSMo 1969. Defendant appeals.

The defendant raises only one issue on appeal. He claims the trial court erred in denying his challenge of venireman Clifford J. Shannon for cause, thereby forcing him to use one of his peremptory challenges to excuse the juror. The rule in Missouri is that a defendant is entitled to a full panel of qualified jurors before he is required to utilize his peremptory challenges, and denial of a defendant’s legitimate request for exclusion of a challenged juror is reversible error. State v. Lovell, 506 S.W.2d 441[1] (Mo. banc 1974); and State v. Land, 478 S.W.2d 290, 292 (Mo.1972).

On voir dire examination of the jury panel, the prosecutor obtained the following testimony from venireman Shannon:

“[Prosecutor] Now, in order to prove the charge which the State has brought, we are going to call some witnesses we are going to put those under oath in this matter and they are going to testify for you. Now, one of the witnesses the State will call, obviously will be the victim in the case, ALPHONSO DUNN. Does anyone know Mr. Alphonso Dunn? Mr. Shannon, in what connection?
“Venireman No. 18 (Clifford J. Shannon) As a personal acquaintance.
“Q. [Prosecutor] Have you known him for the period of time he has been the proprietor of the Wedge Liquor Store?
“A. Oh, yes.
“Q. Did you have occasion during that relationship with him to go to that establishment?
“A. No.
“Q. Mr. Shannon, would you consider Mr. Dunn a friend of yours?
“A. I would consider him that, yes, sir.
“Q. I am going to ask a rather difficult question, but it has to be asked. Since you know Mr. Dunn will testify in this ease, do you feel that you would give Mr. Dunn’s testimony more weight because he is a friend of yours and you know him?
“A. No. I don’t think I would.
“Q. All right. Would you be able to listen to Mr. Dunn’s testimony and all the testimony which is presented for consideration and reach a fair verdict based on the testimony?
“A. I am sure I could.”

Defendant’s challenge to venireman Shannon at this time for cause, based upon Shannon’s friendship with the victim, was overruled subject to renewal upon further questioning.

On further examination of venireman Shannon, this time by the defendant’s attorney the following testimony was given:

“[Defendant’s attorney] By the way, Mr. Shannon, you indicated that you knew Mr. Dunn?
“Venireman No. 18: That’s correct.
“Q. Approximately how long have you known him?
“A. About twenty-six years, about.
“Q. And this is a social thing?
“A. Yes.
“Q. Would you call yourself a close friend?
“A. Not a close friend, no.
“Q. Good friend?
“A. Yes.
“Q. Despite the fact that Mr. Dunn is the complaining witness in this case, you would still be able to give the defendant a fair trial?
“A. I am sure I would.”

Defendant’s renewed challenge to venireman Shannon for cause was overruled by the trial court.

The defendant claims venireman Shannon’s answer that he was a “good friend” of the victim and had known him for twenty-six years showed grounds from which bias could be presumed. The defendant furthermore claims this was sufficient to sustain his challenge for cause. This is not within the limited statutory grounds requiring exclusion. §§ 546.100-546.150, RSMo 1969. These statutory reasons for exclusion are not, however, all inclusive. State v. DeClue, 400 S.W.2d 50[11] (Mo. 1968). If for any reason, statutory or otherwise, a venireman is not in a position to enter the jury box with an open mind, free from bias, or prejudice, he is not a competent juror. Barb v. Farmers Insurance Exchange, 281 S.W.2d 297[1] (Mo.1955).

In the area of challenges for cause beyond the statutory exclusions, the trial judge is vested with broad discretion, and his decision should not be disturbed unless there is a clear abuse of discretion. State v. DeClue, supra, [12]. Furthermore, all doubt should be resolved in favor of the finding of the trial court. State v. Wilson, 436 S.W.2d 633, 637 (Mo.1969). The basis for this is that the trial judge is in a far better position to determine challenges for cause than we are for the reason he has the advantage of observing the demeanor of the venireman. State v. Harris, 425 S.W.2d 148, 155[8] (Mo.1968).

In the instant case not only did Mr. Shannon say he was a “good friend” of the victim but he also answered affirmatively the question as to whether he would be able to listen to all the testimony and reach a fair verdict based upon that testimony. Although it is up to the trial judge and not the venireman himself to judge his ability to act impartially, State v. Land, supra at 292, the testimony of the prospective juror as to his ability to act impartially is primary evidence of this fact. See State v. Jackson, 43 N.J. 148, 203 A.2d 1, 11 A.L.R.3d 841 (1964), cert. denied 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965).

In determining whether or not venireman Shannon could act as an impartial juror it is necessary to view all the facts presented and not selectively include or exclude certain facts. In the instant case, the challenge to venireman Shannon revolves around his affirmative answer to the question of whether he was a “good friend” of the victim. The only other evidence was that he had known the victim for twenty-six (26) years, and that this fact would not in his estimation preclude him from being a fair and unbiased juror. It is important to remember the question of qualifications should not be determined by a few catch words drawn from a series of questions but from the whole examination. State v. Wraggs, 512 S.W.2d 257, 259 (Mo.App.1974). Therefore we should not be guided solely by venireman Shannon’s answer that he was a “good friend” of the victim. The description by the venireman of his relationship with the victim ranged from “a personal acquaintance,” “a friend,” “not a close friend,” to “a good friend.” Thus, it is not clear whether the victim was “a good friend” or “not a close friend.” In any event, friendship alone is not sufficient to disqualify a venireman. State v. Holliman, 529 S.W.2d 932 (Mo.App.1975); Grimm v. Gargis, 303 S.W.2d 43, 50 (Mo.1957).

The defendant in his brief suggests that in State v. Faulkner, 185. Mo. 673, 84 S.W. 967, 976 (1904), the Supreme Court of Missouri held that bias arising from “friendship or association” with the brother of the defendant was sufficient to disqualify a potential juror. In our reading of this case the Supreme Court’s decision rested primarily on the fact the juror stated his friendship would influence him in making his decision, rather than the mere fact of the friendship.

Contrary to the defendant’s assertion is Grimm v. Gargis, 303 S.W.2d 43 (Mo.1957), where the Supreme Court held it was not error to refuse to exclude for cause a juror who had known the plaintiff for thirty years and had played ball with him as a child. In addition the juror had inadvertently visited and talked with the plaintiff in the hospital the day after the accident. Further similarity between Grimm and the instant case is evidenced by the fact the venireman in both cases stated they could serve as fair and impartial jurors. In the final analysis the Supreme Court in Grimm bases its affirmance of the trial court’s decision on the broad discretion allowed trial judges in determining the qualifications of veniremen.

The instant case is distinguished from State v. Holliman, supra, a recent case decided by this court. In Holliman a challenge for cause was denied where the venireman knew the deceased policeman, was acquainted with his father and had a son who was a policeman assigned to the same district as the deceased. In addition the venireman had discussed the matter with his son. In a concurring opinion Judge Simeone stated “. . . Each of these factors standing alone would not be sufficient to sustain a challenge for cause.” Holliman, supra. It was only when all the factors stated above were accumulated that this court found it was an abuse of discretion not to sustain the challenge for cause.

Likewise each case must be judged on the particular facts in that case. State v. Land, supra, at 292. In the instant case there was only the evidence that Mr. Shannon had known the victim for twenty-six (26) years and the ambiguous statement that he considered the victim to be a “good friend.” Against this is Mr. Shannon’s unequivocal statement he could be a fair and impartial juror, the lack of evidence as to what Mr. Shannon meant by the phrase “good friend”, and the better opportunity of the trial court to judge the demeanor and credibility of the venireman. For these reasons, and because of the broad discretion vested in the trial court on these matters we find the trial court did not abuse its discretion in refusing to exclude venireman Shannon for cause.

Judgment affirmed.

WEIER, P. J. and RENDLEN, J., concur.


author: McMILLIAN, Judge.

text:
    James Clarence HAYNES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36630.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 17, 1976.
    Motion for Rehearing or Transfer Denied March 10, 1976.
    Application to Transfer Denied April 14,1976.

      James C. Jones, Asst. Public Defender, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   McMILLIAN, Judge.

Movant-appellant James Clarence Haynes (hereinafter referred to as movant), appeals from an order of the Circuit Court of the City of St. Louis entered by the court after an evidentiary hearing overruling his motion to vacate sentence pursuant to Rule 27.26. We affirm the order of the Circuit Court.

Movant, who was confined until trial, was indicted on March 31, 1970, for the murder of Leroy Visor. At trial, the state produced two identification witnesses; one of whom stated she saw movant shoot Visor, while the other testified that she saw movant fleeing the scene with a weapon immediately after the shooting. Both of these witnesses had known movant prior to the incident and identified him to the police. Mov-ant’s defense was alibi and counsel called six (6) witnesses in addition to movant in an attempt to establish his activities around the time of the murder. Movant was convicted by a jury, and a sentence of life imprisonment was imposed on October 16, 1970. The conviction and sentence were affirmed on appeal. The same counsel represented movant on appeal. State v. Haynes, 482 S.W.2d 444 (Mo.1972).

In his amended motion to vacate, movant raised twelve (12) points, alleging ineffective assistance of counsel as well as issues of perjured testimony by police and new evidence revealed after the conviction. Movant was assisted by counsel in the preparation of his amended motion, at the evi-dentiary hearing, and in the preparation of this appeal. At the hearing, movant’s evidence consisted of the testimony of • his mother and himself. Respondent’s evidence was the testimony of trial counsel. On October 22,1974, the court entered an order overruling movant’s motion and filed an opinion stating findings of fact and conclusions of law.

On appeal, movant has asserted two points: ineffective assistance of counsel due to a failure to investigate, and ineffective assistance of counsel in failing to lay a proper foundation to impeach due to said failure to investigate.

Upon review we are limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous. V.A.M.R. 27.26(j); Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973). Such findings and conclusions are only clearly erroneous if, after review of the entire record, the court is left with the definite and firm impression that a mistake has been made. Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968).

Movant’s first issue on appeal is that he was deprived of effective assistance of counsel due to counsel’s failure to investigate. While there is no question that an accused is entitled to effective assistance of counsel, Jackson v. State, 465 S.W.2d 642, 645 (Mo.1971), a motion filed under Rule 27.26 is a civil action and movant has a heavy burden to carry. Hall v. State, supra, at 303. It is recognized that counsel is vested with broad latitude, McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir. 1974), is presumed to be competent, and is not to be adjudged incompetent by reason of what, in retrospect, appears to be errors of judgment. Hall v. State, supra, at 303.

The overall standard to be applied in measuring counsel’s efforts is whether they resulted in a substantial deprivation of movant’s right to a fair trial. Thomas v. State, 516 S.W.2d 761, 765 (Mo.App.1974); Hall v. State, supra, at 303 (Mo.App.1973). The determination of whether this burden had been met by movant is a two-step process. To prevail, movant must show first the failure of counsel to perform some duty, and secondly, that this failure actually prejudiced the defense. Thomas v. State, supra, at 767; Floyd v. State, 518 S.W.2d 700, 704 (Mo.App.1975).

In the present appeal, movant claims that counsel failed to perform his duty to investigate. Recent Missouri cases have held that, while there is not a “hard and fast rule” to conduct independent investigations in all cases, investigation must be adequate under the circumstances. Hall v. State, supra, at pp. 303-4 and Floyd v. State, supra, at 704. We note that the trend in this area is toward holding counsel to a higher standard, particularly that of a duty to make a reasonable investigation. McQueen v. Swenson, supra, and Bazelon, The Defective Assistance of Counsel, 42 U.Cin.L.Rev. 1 (1973).

Movant’s principal claim of failure to investigate is based on claims that counsel failed to meet and discuss the merits and defenses of the case with movant and mov-ant’s witness. Movant attempted to show this lack of investigation through testimony from his mother and himself. This testimony was contradicted by respondent’s witness, Robert Wendt, who claimed to have met with movant four or five times prior to trial and with movant’s witnesses a total of about fifteen times. In its findings of fact, the circuit court stated that movant had not met the burden of proof necessary to overcome the presumption in favor of counsel. “Thus we have a direct conflict in the testimony of the . . . witnesses who were offered on the subject; and the salutary rule in situations of this kind is that studied and responsible deference will be paid to the manifold advantages the trial judge enjoys in passing on the credibility of those who appear before him to testify. . . ” Fields v. State, 484 S.W.2d 208, 210 (Mo. 1972).

It does not appear from the record that movant made any effort to impeach counsel through the introduction of documents such as the visitation records of the city jail or of counsel’s own office records. During the course of the hearing, movant did not produce any evidence of relevant matters which should have been investigated but were not, other than the mentioning that one of the state’s witnesses wore glasses.

We cannot, therefore, say that the trial court was clearly erroneous when it found that movant had failed to overcome the presumption of competence or to establish that there had been a failure on the part of counsel to perform the investigatory duty. The trial court was not then required to consider the second question of actual prejudice due to failure to perform a duty.

Movant’s second issue on appeal is that he was deprived of effective assistance of counsel by counsel’s failing to lay a proper foundation to impeach an important witness of the state due to a failure to investigate. Respondent contends that this issue is not properly before the court, having been raised for the first time in this appeal. Maggard v. State, 471 S.W.2d 161, 162 (Mo. 1971) and Quinn v. State, 515 S.W.2d 603, 608 (Mo.App.1974). Movant’s amended motion claimed that counsel had,

“[F]ailed to ask Anthony Shinault on cross-examination at the beginning of the State’s evidence whether Mr. Shinault had told the police that James Haynes was not one of the men he had seen or whether Mr. Shinault had told Mary Néwberry, the movant’s mother, that James was not involved in the incident, when Mr. Wendt had been told shortly after the Court appointed him that Anthony Shinault had made those statements.”

Respondent argues that there is a considerable difference between these two claims and that, therefore, the matter is not properly before the court. We hold that the claims of failure to lay a proper foundation and that of failure to ask certain questions are virtually identical. Movant’s motion stated the facts essential to bring the failure relied upon for relief before the circuit court. State v. Turner, 353 S.W.2d 602, 603—4 (Mo.1962). The issue now raised was properly before the trial court and has been preserved on appeal.

We view movant’s second issue on appeal as having two aspects: that counsel failed to adequately perform the duty of investigation; and that this inaction resulted in failure to lay a proper foundation to impeach Anthony Shinault depriving mov-ant of effective assistance of counsel. Mov-ant’s brief contends that counsel’s failure to investigate resulted in his being unaware of Shinault’s contradictory stories until the middle of the trial. In support of this claim, movant relies on the transcript from the original trial, Criminal Case No. 881—S, at 223—4. Respondent, citing State v. Collett, 526 S.W.2d 920, 928 (Mo.App.1975), argues that the transcript of the original trial was never admitted into evidence at the hearing and is therefore not properly before the court on appeal. The general rule is that courts will not judicially notice records and facts in one action in deciding another and different one unless the proceeding to be noticed was put in evidence. Layton v. State, 500 S.W.2d 267, 269—70 (Mo.App. 1973). A motion filed under Rule 27.26 is a civil action independent of the movant’s criminal prosecution. Hall v. State, supra, at 303. The rule, however, may be relaxed in consideration of expediency and justice, even if the other record was of the Supreme Court. Layton v. State, supra, at 269-70. Since our consideration of the limited portion of the trial record referred to by mov-ant will not change our holding and will aid in arriving at a final determination of the adequacy of counsel’s performance, we will approach movant’s second issue assuming first, that the excerpt of the original record is not before us, and then, alternatively that it is.

At movant’s hearing, movant failed to clarify the time at which trial counsel became aware of Shinault’s statements to movant’s family. When asked on cross-examination whether the family had told him of the conversation, counsel replied, “Yes, sir, they did.” In its findings of fact, the court characterized counsel’s handling of the cross-examination of Shinault as “trial technique,” which failed to establish ineffective action of counsel. It is clear from the record of the hearing that there was not a failure to investigate this matter, as the uncontradicted statement of counsel is that he was aware of Shinault’s statements. The failure to lay a proper foundation to impeach. and the resultant failure to impeach are then properly characterized as trial technique due to movant’s failure to overcome the presumption of competency. Coles v. State, 495 S.W.2d 685, 687 (Mo.App. 1973). It must be remembered that the standard to which counsel’s performance will be held is that of a fair trial, not a perfect one. Here, counsel’s choice of technique was well within the broad latitude given in conducting a defense. Lewis v. State, 513 S.W.2d 772, 775 (Mo.App.1974).

We now consider the statement of counsel in the original trial that he was unaware of the statements by Shinault. It still cannot be said that this is a result of a failure to investigate. The circuit court found, and we have affirmed, that counsel spoke with movant and movant’s family on several occasions prior to trial. The only possible source for this evidence, of the statements by Shinault to movant’s family, was the family itself. Counsel’s efforts to lay a proper foundation after being told of these statements clearly do not constitute ineffective assistance of counsel.

Taking either position, the finding of the circuit court that movant was not denied effective assistance of counsel due to a failure to lay a foundation to impeach should be upheld. Having found no failure to perform a duty, the circuit court did not have to reach the issue of actual prejudice to movant.

The circuit court was not clearly erroneous when it found that there had been no failure to perform the duty to investigate and that movant was not denied effective assistance of counsel due to counsel’s failure to lay a proper foundation to impeach.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lewis JONES, Defendant-Appellant.
    No. 36557.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 24, 1976.
    Motion for Rehearing or Transfer Denied March 10, 1976.
    Application to Transfer Denied April 14,1976.

      Thomas J. Prebil, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted of murder in the first degree, § 559.010, RSMo 1969, for which he was sentenced to life imprisonment, and of robbery by means of a dangerous and deadly weapon, § 560.120, RSMo 1969, for which he was sentenced to five years imprisonment. The trial court ordered the sentences to run consecutively as was mandatory under § 546.480, RSMo 1969. Defendant has appealed this judgment and sentence. We reverse the judgment and remand the case for the limited purpose of re-sentencing the defendant.

On November 28, 1972 between 1:30 and 2:00 p. m. defendant and another man entered Johnson’s Market at 4300 North Market in the City of St. Louis. Defendant drew a gun, threatened Mrs. Robinson, the sales clerk, and fired a shot at the proprietor, Mr. Victor Johnson. Mr. Johnson fell to the floor wounded. Defendant removed $23.00 from the cash register and left the store with the other man. Mr. Johnson rose, removed a gun from a cabinet, and left in pursuit of the robbers. Mrs. Robinson sought help and upon returning to the street saw defendant holding a gun pointed at Mr. Johnson’s back. She heard a shot and Mr. Johnson fell. Defendant fled. Mr. Johnson was pronounced dead on arrival at Homer Phillips Hospital at 2:15 p. m.

Subsequent to identification by Mrs. Robinson, defendant was apprehended and taken to city jail on December 6, 1972. He escaped on February 3, 1973 and was re-arrested on April 18, 1974.

The state offered into evidence defendant’s detention records from the city jail which contained entries concerning his escape and return. Defendant contends these records were improperly admitted into evidence since they lacked required foundation. The Uniform Business Records as Evidence Law, § 490.680, RSMo 1969, outlines the minimum requirements for admitting business records into evidence. State v. Taylor, 486 S.W.2d 239, 242[1, 2] (Mo.1972). The statute requires a preliminary showing of the identity of the records, the mode and time of their preparation, and the making thereof in the regular course of business. State v. Triplett, 520 S.W.2d 166, 168[1, 2] (Mo.App.1975). This showing must be made by a custodian or some other person familiar with these facts. State v. Jones, 518 S.W.2d 322, 324[1, 2] (Mo.App. 1975). The records here were identified by a corrections officer from the city jail who stated he had proper custody of the records at times. He testified to his knowledge that they were kept in the ordinary course of the operation of the jail with entries made at the time events occurred. This evidence satisfies the requirements of § 490.680, supra. A trial court has wide discretion in accepting records into evidence once this statutory basis is laid. State v. Jones, supra. Considering the evidence given, we find no abuse of discretion.

Defendant next contends the flight instruction given was a comment on the evidence which unduly emphasized his escape and thereby prejudiced him in the eyes of the jury. This flight instruction informed the jury that if they found defendant had escaped to avoid prosecution, they might consider that fact in determining his guilt. It has been a longstanding rule in Missouri that this instruction is permissible where escape occurs prior to trial. State v. Blockton, 526 S.W.2d 915, 920[16] (Mo.App.1975); State v. Hudson, 491 S.W. 2d 1, 3[2, 3] (Mo.App.1973). Although MAI-CR 5.40 prohibits submission of flight instructions after March 1, 1975, this bar is not retroactive. State v. Fleming, 523 S.W.2d 849, 854[5] (Mo.App.1975). Defendant’s trial was in August, 1974. The flight instruction given was a standard instruction which was proper at that time and warranted by the evidence. The giving of this instruction at that time was not prejudicial error.

Defendant as his final point contends the court should have exercised its discretion in imposing consecutive or concurrent sentences. § 546.480, supra, under which mandatory consecutive sentences were imposed, is unconstitutional. State v. Baker, 524 S.W.2d 122 (Mo.1975). The trial court must exercise discretion in imposing sentences where verdicts of guilty on multiple count informations or indictments are involved. A remand for that purpose is proper. State v. McCollum, 527 S.W.2d 710, 714[5] (Mo.App.1975); State v. Brown, 525 S.W.2d 565, 568[5, 6] (Mo.App.1975). In this case the trial court clearly stated it was imposing consecutive sentences as required by the statute and State v. Neal, 514 S.W .2d 544 (Mo.1974).

The judgment is reversed and the case is remanded for the limited purpose of re-sentencing by the court, in an exercise of its discretion whether to impose the sentences consecutively or concurrently.

McMILLIAN and RENDLEN, JJ., concur.


text:
    Elmer G. NOWOTNY et al., Plaintiff s-Appellants, v. Jack H. RYAN, Mayor of the City of St. George, et al., Defendants-Respondents.
    No. 36513.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 24, 1976.
    Motion for Rehearing or Transfer Denied March 10, 1976.
    Application to Transfer Denied April 14,1976.

      Harry Gershenson, Gershenson & Ger-shenson, Clayton, for plaintiffs-appellants.
    John J. Stewart, Clayton, for defendants-respondents.
   DOWD, Judge.

The plaintiffs in this court-tried class action suit are a number of residents of a condominium development known as “Southridge Town and Terrace Apartment Homes” (hereinafter Southridge). The defendants are the officers of the City of St. George, a fourth-class municipality located in south St. Louis County.

The plaintiffs’ petition for declaratory judgment sought a decree that the defendants be required to maintain and repair the streets in Southridge. The petition also asked for $18,000 actual damages.

Plaintiffs’ theory of recovery was that the condominium streets had been set apart and statutorily dedicated to the City of St. George and the public at the time of South-ridge’s formation. Alternatively, plaintiffs alleged there had been “a de facto dedication and use thereof by said City and the public.” The trial court found for the defendants. We affirm.

Southridge, which has 380 units, is located in south St. Louis County, at the intersection of Interstate Highway 55 and Reav-is Barracks Road. The condominium project was formerly an undeveloped tract of land bordering the City of St. George. In March 1965 the St. Louis County Circuit Court entered an order authorizing the annexation of this land to the City of St. George. In April 1965 the St. Louis County Council passed an ordinance annexing Southridge to the City of St. George.

There are now three streets in South-ridge: Villaridge Court, Echoridge Lane and Bunker Hill Drive. On April 29, 1965, the Southridge developers filed a plat with the St. Louis County Recorder of Deeds. This official plat showed only Villaridge Court and noted: “Villaridge Lane, 50 feet wide, together with its roundings . is hereby dedicated to public use forever. The easements shown on the plat hereon are hereby dedicated to public use forever for public utility, sewer, drainage, or sidewalk purposes.” The easements shown on the plat are narrow 10 foot strips that are marked "10' W Easement.” Echoridge Lane and Bunker Hill Drive do not appear on the plat, but they do tend to follow some of the easement markings. A City of St. George ordinance in April 1965 expressly accepted the dedication of Villaridge Court but did not mention the other two streets.

Villaridge Court, which enters Southridge from Reavis Barracks Road and terminates within the development, is conceded to be a public street that the city has always maintained. The other two streets wind through Southridge, connecting at one place with Reavis Barracks Road and at other places with Villaridge Court. The two streets are 20 feet wide unmarked lanes bordered on both sides by parking places 20 feet deep at right angles to the central driving lane. The only two entrances to Southridge are Villaridge Court and Bunker Hill Drive which intersect with Reavis Barracks Road.

The record does not show just when Bunker Hill Drive and Echoridge Lane were built. Nor is it clear whether these two streets were built by the Southridge developers or the Southridge Board of Managers. But it is clear the City of St. George did not build the two streets and has never repaired or maintained them. Since about 1967, however, the Southridge Board of Managers has expended about $18,000 to maintain and repair Echoridge Lane and Bunker Hill Drive.

The Southridge residents pay taxes to the City of St. George. In return the municipality furnishes police protection and trash collection. The city, as noted above, fully maintains Villaridge Court. Since about 1967 Southridge has requested police traffic patrols on all three Southridge streets, but the record is unclear whether such patrols were ever actually furnished. The testimony differed as to whether the City of St. George or Southridge had erected the traffic signs on Echoridge Lane and Bunker Hill Drive.

The evidence demonstrated the two disputed streets supported a rather limited public use: the Southridge residents and their guests, deliveries, people who became lost while driving on Reavis Barracks Road, occasional sightseers and motorcyclists, and voters who travelled to and from a polling place in the Southridge community center. At one time a “Private: No Soliciting” sign stood at the Bunker Hill Drive entrance to Southridge, but this sign was removed prior to the trial.

Although Southridge managers had discussed with city officials the possibility of municipal maintenance for the two disputed streets, they did not formally demand public maintenance until the summer of 1973. The City of St. George denied their demand, and this suit ensued.

We review this court-tried case both upon the law and the evidence, giving due regard to the trial court’s opportunity to have judged the credibility of the witnesses. Rule 73.01(3).

On appeal plaintiffs do not seriously contend that Southridge statutorily dedicated Bunker Hill Drive and Echoridge Lane to the public when it filed its plat under Chapter 445 RSMo 1969. As noted above, this plat specifically dedicated only Villaridge Court and various easements. No mention was made of the dedication of the other two streets, nor does the plat even show these two streets. See Welch v. City of Blue Springs, 526 S.W.2d 379 (Mo.App.1975); State ex rel. State Highway Commission v. Johns, 507 S.W.2d 75 (Mo.App.1974).

The plaintiffs alternatively contend Southridge has made a de facto or common law dedication of Bunker Hill Drive and Echoridge Lane to the city. Chapter 445 does not in any way restrict the common law power of an owner to devote his land to the use of the public. City of St. Charles v. DeSherlia, 308 S.W.2d 456[6] (Mo.App.1957). In order to establish a common law dedication it must be shown that (A) the owner, by his clear and unequivocal action, intended to dedicate his land to the public use, and (B) the land so dedicated has been accepted and used by a government unit or by the general public. Hoechst v. Bangert, 440 S.W.2d 476, 478, 479 (Mo.1969).

We do not find a clear and unequivocal intent to dedicate Bunker Hill Drive and Echoridge Lane to the public use. The evidence established the streets have been maintained by Southridge since at least 1967. A “Private: No Soliciting” sign had once stood at the Bunker Hill Drive entrance to the development. Although Southridge residents had sometimes expressed to city officials their desire for municipal maintenance of the two streets, they did not make formal demand on the defendants until 1973. Finally, we cannot view Southridge’s willingness to have a polling place located in its community center as an unequivocal expression of intent to dedicate the streets to the public use.

Nor do we find that the public or the City of St. George ever accepted Southridge’s purported common law dedication offers. The very limited public use of Echoridge Lane and Bunker Hill Drive, as enumerated above, is clearly insufficient to signify the public’s acceptance of the dedication of the streets.

The City of St. George, at the time of the annexation, passed an ordinance accepting the developers’ dedication of Villaridge Court. However, the city never passed an ordinance accepting the other two streets, never repaired or maintained the two streets, and actually rejected all attempts to have it maintain the two streets.

Plaintiffs stress that the St. Louis County Circuit Court’s March 1965 decree authorizing the annexation indicated an agreement by the city to maintain Echoridge Lane and Bunker Hill Drive. The court’s Conclusions of Law did mention that the city was able to furnish “street maintenance, street cindering and snow plowing ... to the area to be annexed.” But since the court decree does not mention the two streets, and since the official plat filed one month later dedicated only Villaridge Court to the public use, we find plaintiffs’ contention unpersuasive.

Plaintiffs next maintain that since the city collected municipal taxes from the Southridge residents, and since the city counted the condominium residents in computing its share of state and county gas tax monies, then the city should have used at least part of those tax funds to maintain the two disputed streets. In this connection the plaintiffs allege their Fourteenth Amendment rights to due process and equal protection of the laws have been violated. However, there was no evidence that the city had applied for or received any public funds from any source upon the representation that the funds would be used to repair or maintain the two disputed streets. Nor was there any evidence the funds were allocated to the city in the belief that they would be so used. In the absence of such evidence we choose not to question the manner in which the city spent its tax monies.

Plaintiffs claim that other indications of the city’s acceptance of Southridge’s common law dedication of the two streets include (1) the traffic signs the city erected on the two streets and (2) the sign “City of St. George, Speed Limit 25 Miles per Hour” the city posted at the Bunker Hill Drive entrance to Southridge. The testimony was unclear whether the city or Southridge had posted the traffic signs along the two streets. The City of St. George speed limit sign at the Southridge entrance was notice to a motorist of the simple fact that he was crossing a municipal boundary; we do not interpret the sign as suggesting that all the streets in the city were public roads.

Finally, plaintiffs rely heavily on a July 1972 city ordinance entitled “An Ordinance Applying the Traffic Laws of the City of St. George to Undedicated Street and Ways.” The ordinance provided that all ordinances pertaining to the operation of motor vehicles upon the public streets and roads of the city were now applicable to Bunker Hill Drive and Echoridge Lane. The ordinance’s preamble reads:

“WHEREAS there are certain private and undedicated streets, roads, and ways in the City of St. George, and
WHEREAS said streets, roads, and ways are commonly known as North Bunker Hill Drive; South Bunker Hill Drive; Echo Ridge Lane; and Bunker Hill Lane, and
WHEREAS these streets, roads, and ways connect with public dedicated streets and serve as a conduit between dedicated streets, and
WHEREAS these streets, roads, and ways are utilized by the general public in traveling and driving throughout the City of St. George, and, in particular, in traveling and driving to, through, and between public dedicated streets, and
WHEREAS it is the finding of the Board of Aldermen that the aforesaid streets, roads, and ways are de facto public streets.”

We first note that the title of the ordinance and the ordinance itself carefully label the two disputed streets as “private” or “undedicated.” Secondly, the ordinance carefully distinguishes between these two private streets and the “public dedicated streets” (presumably Reavis Barracks Road and Villaridge Court) that they connect. Thirdly, the ordinance’s express purpose is the regulation of motor traffic on Echo-ridge Lane and Bunker Hill Drive and the maintenance of the streets is not mentioned. Lastly, the ordinance’s labelling of the two streets as “de facto public streets” is a correct assessment of the streets’ dual nature. The two roads are privately owned and maintained, but the owners of the streets have apparently given the public a license to travel on the two streets. The courts of this state have held in similar circumstances that a city, in the exercise of its police powers, may regulate the use of motor vehicles upon all streets which are rightfully used by the public within its municipal boundaries, regardless of their legal status. It is the public uses to which a street is put that gives rise to the city’s right and duty to regulate the flow of traffic upon it. City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935[11—13] (1942).

In summary, we uphold the trial court’s findings that the plaintiffs have failed to show that the two streets were dedicated, either by statute or the common law, to the public or the City of' St. George.

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Gene R. MEHAFFEY, Appellant.
    No. KCD 26,429.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    William D. Lay, Clevenger & Lay, Platte City, for appellant.
    Wm. Dick Fickle, Pros. Atty., Platte City, for respondent.
    Before TURNAGE, P. J., WELBORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction for nonsupport of minor children, in violation of Section 559.-353, RSMo 1969, which provides: “Any man who, without good cause, fails, neglects or refuses to provide [support] * * * for his child * * * is guilty of a misdemeanor * * Appellant contends the evidence is insufficient to sustain the conviction, asserting “it discloses the defendant lacked the ability to provide support because of illness and inability to secure employment and through no fault of his own.” The question is whether the State proved not only defendant’s failure to provide support, but also that such failure was “without good cause.” Affirmed.

“Generally, a parent or person in loco parentis is not criminally liable for child nonsupport where, without his fault, he lacks the ability or means to support, or adequately support the child. The law is reasonable and does not require a parent or person in loco parentis to support the child beyond his ability and means.” 23 Am. Jur.2d, Desertion and Nonsupport, § 73, p. 967. See also 67 C.J.S. Parent and Child § 92e, p. 827. This proposition is recognized in the cases under Section 559.353, supra, e. g., State v. Burgoldt, 299 S.W. 829 (Mo.App. 1927), that a conviction for nonsupport cannot stand where there is no evidence to show the defendant possessed the means with which to support his dependent. See also State v. Miller, 33 S.W .2d 1063 (Mo. App.1931); State v. Young, 273 S.W. 1106 (Mo.App.1925); State v. Vogel, 51 S.W.2d 123 (Mo.App.1932); State v. Florian, 91 S.W .2d 121 (Mo.App.1936); State v. Barcikowsky, 143 S.W.2d 341 (Mo.App.1940); State v. Akers, 287 S.W.2d 370 (Mo.App. 1956); State v. Nelson, 463 S.W.2d 614 (Mo. App.1971).

The last contributions toward support of his three children were made by defendant October 2, 1971. On November 3, 1971, he left his job as a building inspector for the City of Kansas City due to ill health, and had not since been offered or had any jobs he was physically capable of performing. All such conditions existed as of April 25, 1972, the date upon which willful failure to support was charged against defendant, and September 13, 1972, the date of trial to the court sitting without a jury.

Defendant and the prosecuting witness, Bonnie Mehaffey, had been married for over seventeen years prior to their separation in February, 1971, and their divorce July 27,1972. Prior to the separation, Mrs. Mehaffey withdrew $2,320 from a joint savings account, of which $1,600 had been earned and placed in the account by her prior to the marriage and most of which had been deposited in the account by her. The divorce decree provided for child support of $17 per month per child and for alimony of $1.00 per year. Defendant was the surviving owner of bonds worth $3,750. He had bank accounts of $3,000 and $330 in his name, a house at 418 West 87th Terrace, Kansas City, Missouri, valued at $12,500, furniture, a 1971 Chevelle Malibu automobile, a school bus-camper vehicle, a 1971 pickup truck, a diamond ring valued at $1,400, and an undivided one-half interest with Mrs. Mehaffey in a house at 8008 East 82nd Street, Kansas City, Missouri. None of this property was encumbered on April 25,1972, except for a purchase loan against the automobile, and an encumbrance on the East 82nd Street property made subsequent to April 25,1972, for bail on the nonsupport charge.

Appellant emphasizes the evidence of his lack of employment and his poor health which makes further employment difficult as good cause to excuse his failure to support. Overlooked, however, is the evidence which showed that he had real estate, personal property, bonds, and other money, of values and in amounts constituting independent assets and means with which to provide support for his children. Being possessed of such means, defendant’s failure to employ them toward the support of his children was willful and without good cause; and his failure in such circumstances justified his conviction for violation of Section 559.353, supra. “ * * * the absence of physical and vocational ability to work does not absolve a nonsupporting parent of the obligation to support if he has other assets that are readily available but which he willfully withholds. To require the state to prove physical and vocational ability to work, without more, is to assume that the ability to support depends for its base upon one’s current earnings * * State v. Godines, 9 Wash.App. 55, 510 P.2d 835, 837[8, 9] (1973). If the rule were otherwise, a financially successful father with substantial real and personal assets, but who is ill and unable to secure employment for a wage could be said to not have the ability to support his children, and thereby to have “good cause” not to support them.

Judgment affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Phillip (Philip) DEFFENBAUGH, Appellant.
    No. KCD 27128.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Lewis E. Pierce, William E. Shull, Duncan & Russell, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

A jury in the Jackson County Circuit Court found Phillip Deffenbaugh guilty of bombing. § 564.560, RSMo 1969. The jury did not agree on the punishment and the court sentenced the defendant to ten years’ imprisonment.

On this appeal, appellant’s first contention is that the trial court erred in overruling his motion to suppress evidence obtained as a result of his arrest, this allegation of error being based on the lack of probable cause for his arrest.

Sometime prior to October 15, 1970, the Kansas City Police Department had established a community relations center at 1815 East 12th Street. The location was known as the “Police Store Front” and also served as headquarters for police foot patrols in nearby housing projects. On the evening of October 15, Officers Robinson and Fleming were in the Store Front, writing reports of their foot patrol duty. At around 9:40 P.M. they noticed an odor similar to that of burning firecrackers and in about 15 or 20 seconds a violent explosion occurred at a rear doorway of the building, located on an alley. The officers were injured by the blast.

Numerous police officers arrived on the scene shortly. A short time after the explosion, the Kansas City Police Dispatcher, on the basis of an anonymous call, broadcast a “pick-up” for three Negro males with “bushy naturals” in a black over blue Che-velle which had been seen leaving the vicinity of the bombing and which had last been seen westbound on 11th Street from Euclid. Some three or four minutes later a second report was broadcast, “describing that they was carrying a black box or something along with them.”

This was the substance of the broadcast reports as testified to by Officer Baker who heard them at the scene of the bombing. Shortly after the second broadcast, Officer Baker saw a black over blue Chevelle stop at a stoplight at the corner of 12th and Woodland, turn east on 12th Street and park. Three Negro males got out of the car. Baker knew two of them, appellant Deffenbaugh and Philip Crayton. The three men stood at the car for a while, talking to people, and then they crossed the street to the front of the Store Front. They looked in the front briefly and then, along with others, were moved back by police.

Officer Baker informed Captain Campbell that Crayton and Deffenbaugh and another man had gotten out of a black over blue Chevelle which fit the pickup order description and Captain Campbell told Baker to arrest them. In the meantime the Chevelle had been moved to a parking lot at 12th and Michigan and Officer Baker and another officer approached the three men at 12th and Michigan and, according to Baker, “asked them how it happened they arrived there.” Philip Crayton stated they had walked. “I asked them again and Def-fenbaugh, I believe, stated that they had walked, but Jenkins (the third man) never said anything and I asked once more and Jenkins said they had arrived in a Chevelle and he gave the nomenclature, how many horses it had and how souped up it was, et cetera. * * * I told them I had seen them drive up in a black over blue car and asked them where the car was. At this time we told them they was under arrest ‡ * * tl

The three men were taken to police headquarters and booked on charges of aggravated assault of a police officer. Their clothes were removed from them, their hands swabbed and material removed from their fingernails. The automobile was searched on the parking lot. A black box on the front seat was carefully removed and opened and found to contain tape cartridges. Some political pamphlets were found in the rear seat of the auto. The vehicle was later taken to headquarters where it was searched fully and the interior of the Chevelle and its trunk were vacuumed.

The three men were released from custody the next morning with no charges filed against them. Subsequently they were indicted for bombing. Their joint motion to suppress the evidence obtained in connection with their arrest was overruled after a hearing. A severance was granted and on Deffenbaugh’s trial evidence was presented that analysis of the defendant’s clothing revealed traces of ammonium based dynamite, the type used in the explosion, had been found in the right pocket of the jacket. There was also testimony that examination of the particles recovered from the automobile revealed similar-traces.

At the hearing on the motion to suppress, Officer Baker testified that he had known appellant for some time and that both Def-fenbaugh and Crayton had previously on several occasions asked him to back “them up in their movement * * * take off our uniforms and bring our guns over and work with them.” Although he did not so testify on the motion to suppress, Baker testified at the trial that he had also heard appellant make remarks indicating hostility to police officers.

The question presented by the motion to suppress and brought forward on this appeal is whether or not the police had probable cause for the arrests.

The legality of appellant’s arrest must depend upon its having been based upon probable cause, which may be found where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient to warrant a reasonable man to believe that an offense has been committed by the person arrested. Ker v. California, 374 U.S. 23, 34—35, 83 S.Ct. 1623,10 L.Ed.2d 726 (1963); Beck v. Ohio, 379 U.S. 89, 96—97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

“ * * * Of course, all the information in the possession of the officers and all reasonable inferences therefrom are pertinent to determine probable cause. Whether there is justification for probable cause to arrest without warrant must be determined by practical considerations of everyday life on which reasonable men act and is not to be determined by hindsight by legal technicians. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The determination of probable cause depends upon the particular facts and circumstances of the individual case and no ready ‘litmus paper test’ can be applied. Probable cause may be based on hearsay. There is a broad gulf between what is required to prove guilt and the requirement of probable cause. * * * ” State v. Wiley, 522 S.W.2d 281, 287[4—9] (Mo. banc 1975).

Although the officers who testified on the motion to suppress did not agree precisely as to the description of the three men in the police broadcast, the evidence did show a sufficient similarity between the description given, coupled with the description of the automobile, to direct the attention of Officer Baker to appellant and his companions. Certainly, Officer Baker was not required to ignore their presence and was called upon to act. However, it is evident that from the outset the police had decided to arrest the three, on the basis of the “pick-up” broadcast. The officer did briefly interrogate the men about their means of arriving at the scene and, although Officer Baker stated that the “evasion” by appellant and Crayton had heightened his “suspicion,” the officer did obtain from the third man a reply which coincided with his observation and he made no effort to pursue the matter further. The only other factor which entered into Baker’s action was his acquaintance with appellant’s radical views and hostility toward police in general. Baker acknowledged that he had known of no violent action on the part of appellant in support of his expressed views.

Do these factors, considered as a whole, provide the basis for a judgment on the part of a reasonable man that the bombing was the work of appellant and his companions? None of the information which the police had directly connected the three men in the broadcast with the bombing. The first report was that they were seen leaving the “vicinity” or “area” of the bombing. The second report, presumably referring to the same three men, was that one of them was “carrying a black box or something along with them.” The Store Front was on a well-traveled public street in Kansas City so that the presence of persons in the “vicinity” would not have been unusual. The proximity to the bombing site of the three reported to have been seen was not shown. Whether they had been seen with a “black box” or “package” before or after the explosion does not appear, although presumably it would have been after the blast.

The information contained in these communications to the police could,, at best, have given rise to nothing more than a suspicion that the three persons described were involved in the bombing. This information, coupled with the similarity between appellant and his companions and the persons described would have undoubtedly authorized a temporary detention of the men for “field interrogation” (Beck v. Ohio, supra) when they appeared at the scene, but it did not rise to the level of providing probable cause for their arrest.

Officer Baker did not feel free to arrest the three without consulting his superior. His superior had no more information than Baker had. Baker’s true feeling was probably expressed by his testimony that their “evasion” of how they got there “kind of made me suspicious of them and I wanted to take them down and talk to them.” Of eourse, suspicion cannot provide the legal probable cause required for an arrest without a warrant, although, if the objective facts would support a conclusion of probable cause, Officer Baker’s personal belief would not be controlling. However, his view of the situation is not to be ignored.

Although an officer in Baker’s position would not be expected to erase from his mind his knowledge of appellant’s political views and hostility toward police in general, these factors are difficult to give weight to in an objective determination of probable .cause. Absent some demonstrated tendency to use violence in support of such ideas, an arrest which must be supported by the political views of the arrestee stands on a weak footing.

Viewing the circumstances as a whole as they appeared to the police at the time of the arrest, the requisite facts and information to give rise to probable cause to believe that appellant and his companions were the bombers cannot be said to have been possessed by the police and the arrests were, therefore, illegal and cannot support the search and seizure connected therewith. The motion to suppress should have been sustained.

Although it would appear that the evidence resulting from the search was vital to the state’s case, it cannot be determined by this court that the state could not produce other evidence which might warrant a new trial and conviction. Therefore, the judgment will be reversed and the cause remanded.

Reversed and remanded.

All concur.


text:
    STATE of Missouri, Respondent, v. Robert Dale SIMPSON, Appellant.
    No. 27213.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    James F. Crews, Kibbe, Crews & Gaw, Tipton, for appellant.
    John C. Danforth, Atty. Gen., Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for respondent.

      Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

A jury in the Moniteau County Circuit Court found Robert Simpson guilty of selling “cannabis sativa.” The jury did not agree on the punishment and the trial court fixed the punishment at seven years’ imprisonment, within the limits prescribed by § 195.200 1.(4), RSMo 1973 Cum.Supp., the sale of a Schedule I controlled substance. § 195.017 2., RSMo 1973 Cum.Supp. This appeal followed.

The details of the transaction are not here important. The state’s case was based upon the sale to an undercover agent in California, Missouri, on November 9, 1972, of eight bags of what was represented as marijuana. According to the state’s theory, appellant, Robert Simpson, and his brother, Jack Simpson, acted jointly in making the sale. Jack testified that he alone made the sale and that his brother, although present, had no part or interest in the transaction.

Appellant has made six assignments of error on this appeal, but, with one possible exception, all arise out of the same basic contention, i. e., that appellant was charged with the sale of “cannabis sativa” and that “cannabis sativa” is not included among the “controlled substances” enumerated in § 195.200. On this basis, he attacks the information, the verdict-directing instruction, the verdict-form instruction, the verdict, all of which referred to the sale of “cannabis sativa,” and finally urges that he had not been found guilty of any violation of the laws of the State of Missouri.

This problem is undoubtedly the result of a change of nomenclature in the 1971 drug act (Laws of Mo.1971, p. 237, H.B. 69) from the prior narcotic drug act. §§ 195.010—195.210, RSMo 1969. Under the prior act, § 195.010(17) defined “Narcotic drugs” to include “cannabis.” “Cannabis” was defined by § 195.010(5) as follows:

“ ‘Cannabis’ includes all part of the plant Cannabis Sativa L. whether growing or not; the seeds thereof; the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination; *

Section 195.017 2.(4)(j) of the 1971 enactment classifies “Marihuana” as a Schedule I controlled substance under the act. Section 195.010(20) of the new law defines “Marihuana,” as follows:

“ ‘Marihuana’ means all parts of the plant Cannabis Sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination; *

In State v. Allison, 466 S.W.2d 712 (Mo. 1971), the court had before it an attack under the 1969 law upon a search warrant which designated “marijuana” as the object of search. In that case the defendant contended that the statute designated “cannabis” as the unlawful drug and that it did not refer to “marijuana.” In rejecting the contention, the court stated (466 S.W.2d 714-715):

“ * * * Cannabis is by statute declared to be a narcotic drug. Section 195.-010(5-17). Which leaves one question — is marijuana synonymous with cannabis? In State v. Page, Mo., 395 S.W.2d 146, 148, we said: ‘The proof was that' the substance was marijuana which is known as cannabis * * *.’ In State v. Thompson, Mo., 425 S.W.2d 80, 84, the botanical classification of cannabis was detailed. However, it is true that we have not been called on to consider if use of the word ‘marijuana’ alone in a search warrant is sufficient; or, in other words, whether or not cannabis and marijuana mean the same drug (plant). Looking, again, to a botanical reference — Vol. 2, New Britton & Brown Illustrated Flora, p. 54 — we find that cannabis is a monotypie genus, i. e., a genus with only one species. Cannabis has the common name of marijuana. Gray’s Manual of Botany, 8th Edition, page 555. Not only are cannabis and marijuana botanically synonymous, but they have been so considered by courts of other states. Davis v. State, Miss., 219 So.2d 678; Martinez v. People, 160 Colo. 333, 417 P.2d 485; State v. Romero, 74 N.M. 642, 397 P.2d 26; State v. Economy, 61 Nev. 394,130 P.2d 264; People v. Savage, 64 Cal.App.2d 314, 148 P.2d 654. In Martinez, 417 P.2d l. c. 486, after saying ‘it is not required that courts be more ignorant than mankind in general,’ it was held: ‘Without prolonging this opinion by engaging in an extended battle in semantics, we conclude as a matter of law that marijuana is identical with cannabis, as it is merely a geographically oriented name for cannabis.’ On this point, we conclude that a search warrant may issue for unlawfully possessed narcotic drugs, cannabis by statutory definition is a narcotic drug, cannabis and marijuana are synonymous, and that the search warrant in this case was not legally deficient. * * ”

The question here is the converse of that decided in Allison. The statute uses the term “marijuana” and the charge employed “cannabis sativa.” However, § 195.010(20), supra, clearly retains the synonymity of the terms, as found in Allison. Therefore, appellant’s claims of error are without merit.

Appellant acknowledges that, had the term “Cannabis Sativa L.” been used, the charge might have been found sufficient. However, it has previously been held that “cannabis sativa” and “cannabis sativa L” are identical, the “L” referring only to the system of botanical nomenclature. State v. Thompson, 425 S.W.2d 80, 84[6] (Mo.1968).

The chemist who examined the substance here involved testified that marijuana is “commonly called cannabis sativa.” When asked the results of his testing of the substance, he replied: “The substance is marijuana, cannabis sativa.” There can be no question that, contrary to appellant’s contention, the jury was made fully aware of synonymity of the terms and understood that they were dealing with a transaction involving marijuana. The evidence, above referred to, distinguishes this case from State v. Bridges, 398 S.W.2d 1 (Mo.1966); State v. Ransom, 412 S.W.2d 125 (Mo.1967), and State v. Starks, 419 S.W.2d 82 (Mo. 1967), where the absence of evidence identifying the substance involved as being a proscribed drug precluded conviction.

Appellant’s final assignment of error is: “That the trial court erred in not granting a new trial or mistrial due to prejudice and confusion created among the jury so that the jury could not have been reasonably able to determine either the offense charged or the true facts of the case.” Again, this is related to appellant’s primary theory of error, above rejected, but, in any event, no such claim as found in this assignment was presented to the trial court, so it is not before this court for review. State v. Bowens, 476 S.W.2d 495, 498—499[4, 5] (Mo. 1972); State v. Bolden, 525 S.W.2d 625, 633[9] (Mo.App.1975).

Judgment affirmed.

All concur.


text:
    Thelma B. BRADLEY, Respondent, v. Eddie BUFFINGTON and Mozelle Buffington, Appellants.
    No. KCD 27234.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.

      Larry M. Burditt, Scott 0. Wright, Brown, Wright, Willbrand & Burditt, Columbia, for appellants.
    Carl P. Sapp, Sapp, Woods, Dannov & Orr, Columbia, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment entered on directed verdict for plaintiff in action on a promissory note. The questions are (1) whether the Dead Man’s Statute bars defendant Eddie Buffington from testifying on the defense of payment, in identification and qualification of his canceled checks, bank statements, and check stubs, and their admission in evidence; and (2) whether the state of the evidence entitled plaintiff to a directed verdict. Affirmed.

The note in amount $12,000, dated September 21, 1964, due March 21, 1965, payable to A. M. Bradley, Sr., executed by Eddie Buffington and Mozelle Buffington, his wife, was in evidence without objection. A. M. Bradley, Sr., died August 11, 1968, and Thelma B. Bradley, his widow, and his six children, assigned the note to Thelma B. Bradley. The note bore an endorsement on its reverse side, “Paid on Note $1006.30 — 1-20-66 Jan 20, 1966.” Both Mr. Bradley and Mr. Buffington had engaged in buying and selling timber and dealt frequently with each other. Mr. Buffington also operated a stave mill.

Evelyn Marie George, daughter of A. M. Bradley, Sr., her father, mother, husband, and Mr. Buffington were present in her parents’ kitchen when the $1006.30 credit on Exhibit 1 was accomplished. Mr. Bradley demanded payment of Mr. Buffington, and he did not deny owing the amount of the note and interest. She did not know how the $1006.30 was paid, but her husband credited the payment on the back of the note. Mrs. George knew the note was otherwise unpaid.

Basil T. George, husband of Evelyn and son-in-law of A. M. Bradley, Sr., engaged in the timber business with Mr. Bradley and was also present at the meeting in the Bradley kitchen. Mr. Bradley demanded payment of all obligations owed him by Mr. Buffington, including the note. Mr. Buff-ington did not then or at any other time deny owing the note. He said only that he could not pay it. The $1006.30 payment was endorsed on the note by Mr. George as a credit for some money that was owed to Mr. Buffington by Mr. Bradley for “stave haulers for cutting headings and bringing them into the mill.” Mr. George knew also that the note was otherwise unpaid, and he had the note in his possession until it was introduced in evidence.

Defendants called Mrs. Bradley and adduced that to her knowledge the note had not been paid, and that she had endorsed and deposited in a joint account held by her and her husband a number of checks drawn payable to A. M. Bradley, Sr., by Eddie Buffington. She was aware that some of the checks had an attachment which was removed by her or her husband prior to depositing the checks, but did not know what the checks were for or the nature of the attachments.

Eddie Buffington attempted, unsuccessfully, in avoidance of the Dead Man’s Statute, to testify on the defense of payment, and to identify and qualify the above-mentioned canceled checks and accompanying bank statements and check stubs, Exhibits A through CC, as business records.

Appellants contend the court erred in refusing, on ground of the Dead Man’s Statute, testimony of defendant Eddie- Buffing-ton in identification and qualification of the exhibits, asserting (I) and (III) that they were proper matters of book account and business records and an exception to the Dead Man’s Statute. They also contend (II) that the court erred in refusing testimony from defendant Eddie Buffington on the defense of payment asserting that the statute does not prevent a person from testifying where an adverse party to the transaction (Mrs. Bradley) is alive; and (IV) that the court erred in directing a verdict at the close of all the evidence asserting that plaintiff’s case rested on oral testimony and credibility of such testimony made a jury question.

In a suit on a promissory note, a defendant maker who pleads the affirmative defense of payment has the burden of establishing it. Jennings v. Roberts, 130 Mo.App. 493, 109 S.W. 84 (1908); Rule 55.-08, V.A.M.R. When such a suit is brought by the heirs of a deceased payee or by the assignee of his heirs and such persons were not parties to the note transaction, the defendant cannot testify in his own favor because of the prohibition of the Dead Man’s Statute. § 491.010, RSMo 1969; Jennings v. Roberts, supra; Bay v. Elmer, 241 Mo.App. 389, 237 S.W.2d 932 (1951); Angell v. Hester, 64 Mo. 142 (1876). Thus, the court did not err in barring defendant Eddie Buffington from testifying on the defense of payment.

As suggested by appellants (II), the statutory prohibition does not apply where a cocontractor with the decedent survives and can testify in opposition to the testimony of a witness said to be incompetent because of the death of one of the cocontractors. Wahl v. Cunningham, 320 Mo. 57, 6 S.W.2d 576 (banc 1928); Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13 (1947). Such exemption does not free Eddie Buffington to testify, however, because plaintiff Thelma Bradley was not a cocontraetor or copayee with the decedent, A. M. Bradley, Sr., on the note in issue made by defendants Eddie and Mozelle Buffington, and was not shown to be cognizant of all that may have passed between her deceased husband, A. M. Bradley, Sr., and Eddie Buffington.

Nor was it error to bar Mr. Buffing-ton’s testimony in identification of and qualification as book account and business records his canceled checks, bank statements, and cheek stubs. Appellants would support their contentions (I) and (III) by citing the proviso in the Dead Man’s Statute “that in actions for the recovery of any sum or balance due on account, and when the matter at issue and on trial is proper matter of book account, the party living may be a witness in his own favor so far as to prove in whose handwriting his charges are, and when made, and no farther.” See also Stephan v. Metzger, 95 Mo.App. 609, 69 S.W. 625 (1902); Sonnenfeld v. Rosenthal, 247 Mo. 238, 152 S.W. 321 (1912); Hancock v. Crouch, 267 S.W.2d 36 (Mo.App.1954); Bader v. Ferguson, 118 Mo.App. 34, 94 S.W. 836 (1906); Anchor Milling Co. v. Walsh, 108 Mo. 277, 18 S.W. 904 (1892); Hicks v. Peniston, 480 S.W.2d 522 (Mo.App.1972), all dealing with accounts, claims on accounts, and what constitutes a book of account or qualifies as a business record.

The difficulty in this attempt to avoid the bar of the Dead Man’s Statute lies in the nature of this action. This is a suit on a promissory note; the defense is payment, and “[p]ayments of this character are ordinarily evidenced by an indorsement of them on the back of the note, and * * both upon principle and authority, such entries are not the proper subject of book account, and . * * * they do not come within the purview of the statute or the reasoning of the rule.” Gregory v. Jones, 101 Mo.App. 270, 73 S.W. 899, 903 (1903). In Swyers v. Russell, 426 S.W.2d 743 (Mo. App.1968), as in this case, decedent’s successors sued on a promissory note for $2,000 given the decedent by defendant. Execution was not questioned; the defense was payment. Plaintiff had a directed verdict, and the question was whether a jury question was raised by defendant’s evidence that he paid the decedent-payee by a check for $3,000 bearing a notation “full settlement.” Appellant charged error in applying the Dead Man’s Statute to bar his attempt to testify about the identity of two checks he had given decedent-payee and copies of his bank statements that showed his checks were paid. The court did not accept defendant’s contention that his identification testimony was admissible under the exception to the Dead Man’s Statute which lets a survivor identify handwriting in bookkeeping entries. See also Eastin v. Bank of Harrisonville, 213 Mo.App. 130, 246 S.W. 991, 994 (1923), that a bank “blotter” and statements written there by the bank president that certificates of indebtedness were sold in exchange for plaintiff-depositor’s check was not evidence against the depositor in his action to recover the amount of the check because the “blotter” was not an account book or part of plaintiff’s account with the bank but was simply a private record of the bank and the president’s statement on the blotter was simply self-serving.

Finally, the court did not err. in directing a verdict for the plaintiff. Ordinarily, a verdict may not be directed in favor of a party upon whom the law casts the final burden of proof; but there is an exception where there is no question of fact left in the case and the questions of law are not for the jury. Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691, 693 (1942). It is not disputed that defendants executed and delivered the note in issue to A. M. Bradley, Sr. The note for $12,000, together with endorsement showing payment of $1006.30, was in evidence without objection. The defense was payment, and the only evidence of payment was that shown by the endorsement. The note was at all times in the hands of the owners. As in Latta v. Robinson Erection Co., 363 Mo. 47, 248 S.W.2d 569, 577—578 (banc 1952), “The execution, delivery and nonpayment of the notes was [sic] admitted and the notes were offered in evidence. The defendants failed to offer any substantial evidence in support of their affirmative defenses. The court, therefore, should have directed a verdict for plaintiffs for the full amount due on the notes.” See also Commerce Trust Co. v. Howard, 429 S.W.2d 702 (Mo.1968); Keeney v. Freeman, 236 Mo.App. 260, 151 S.W.2d 532, 535 (1941); Auffenberg v. Hafley, 457 S.W.2d 929 (Mo.App.1970); Swyers v. Russell, supra.

Judgment affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Harold R. LAMASTER, Appellant.
    No. KCD 27359.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.

      Joel Pelofsky, Miniace & Pelofsky, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

A jury conviction and imposed sentence of eight years imprisonment for robbery, first degree, prompted this appeal. Defendant presents three points in support of his claim for appellate relief. Astringently stated, they are: (1) error in denying his pre-trial motion to suppress evidence of his identification; (2) failure on the part of the trial court, of its own volition and absent a request by defendant, to give MAI — CR 3.52; and (3) the “jury verdict” was “against the weight of the credible evidence.”

From the evidence presented at trial, the jury could have reasonably found that on August 23, 1973, one Carol A. Jenkins was employed by U — Totem Corporation at its 63rd and Prospect, Kansas City, Jackson County, Missouri, retail outlet. At approximately 10:15 P.M., while she was the sole attendant on duty, two male subjects entered the store. The shorter of the two (later identified as Terry Dean Saunders) went to the rear of the store and the taller of the two (later identified as Harold R. Lamaster, the defendant) remained at the candy counter. Ms. Jenkins went to the rear of the store to wait on Saunders. When she did so, she observed that defendant had walked over to the cash register. Thereupon, she walked back to the cash register and Saunders followed her. After arriving back at the cash register she waited for defendant to pay for some items he had selected. Light conditions in the store, were “very good” — “lights all across the ceiling” — and while at the cash register she observed defendant, face to face at a distance of some two or three feet, for “a minute or two”. During the time period mentioned Ms. Jenkins was apprehensive that the store might be robbed and she concentrated on observing defendant’s facial features. Instead of paying for the items he had selected defendant pulled an automatic pistol from his trouser pocket and announced, “This is a robbery. . Stay down, don’t get up and I mean it.” Ms. Jenkins took his admonition at face value and dropped to the floor during which time the two men proceeded to relieve the cash register of its contents (some $23.40 in currency and coins, the property of U-Totem Corporation which was in the care and custody of Ms. Jenkins). The two men then fled. Shortly thereafter the police arrived and Ms. Jenkins gave them a description of the two men who had robbed her.

Shortly after being interrogated by the police Ms. Jenkins went down to police headquarters and identified the shorter (Terry Dean Saunders) of the two men who had robbed her from his picture in a high school yearbook. Two days later a detective came to her home and, without a suggestion or suggestions of any kind, displayed six photographs to her. Erom them, she identified a picture of defendant as the taller of the two men who had robbed her. The six photographs displayed to Ms. Jenkins were marked as exhibits and admitted into evidence. Several days later she viewed a lineup at police headquarters, consisting of defendant and two other male subjects, and again identified defendant as the taller of the two men who had robbed her. A photograph taken of the lineup was marked as an exhibit and admitted into evidence.

To the perplexity of this court, the photographs above mentioned were never made available for consideration on appeal.

During the hearing on defendant’s pretrial motion to suppress identification testimony, and, as well, during the course of the trial, Ms. Jenkins positively identified defendant as one of the two men who perpe-. trated the robbery in question.

In view of the posture of the record in this case, defendant’s attempt on appeal to attach error to the trial court’s denial of his pre-trial motion to suppress any testimony by Ms. Jenkins as to his identification is foreclosed. Defendant, during the course of the trial, at no time ever objected to Ms. Jenkins’ positive in-court identification of him, and, moreover, his own counsel extensively cross-examined all of the state’s witnesses (including Ms. Jenkins) about the circumstances pertaining to Ms. Jenkins’ identification of him as one of the perpetrators of the robbery. Therefore, it is manifest that defendant failed to preserve for appellate review any error claimed to be associated with the trial court’s denial of his pre-trial motion to suppress Ms. Jenkins’ identification of him. State v. Brownridge, 459 S.W.2d 317, 320[8] (Mo.1970); State v. Ward, 518 S.W.2d 333, 334[3] (Mo.App.1975); State v. Brown, 527 S.W.2d 15, 17[4] (Mo.App.1975); State v. Bishop, 529 S.W.2d 165, 166[1] (Mo.App. 1975); and State v. McFadden, 530 S.W.2d 440, 444[5-6] (Mo.App.1975). Moreover, the record demonstrates that Ms. Jenkins’ positive in-court identification of defendant rested upon a sound factual basis independent of any and all pre-trial instances of suggestiveness leveled by defendant. Such being the case, Ms. Jenkins’ positive in-court identification of defendant was insulated from any crippling taint. See: State v. Ross, 502 S.W.2d 241, 246[2] (Mo.1973); State v. Carey, 486 S.W.2d 443, 446[2, 4] (Mo.1972); State v. Jackson, 477 S.W.2d 47, 51[4] (Mo.1972); State v. McFadden, supra, [7]; and State v. Ealey, 515 S.W.2d 778, 780[3] (Mo.App.1974).

Defendant’s second point — that the trial court erred in not giving MAI-CR 3.52 (even though never requested by defendant) — is set in the following background. The instruction which the defendant faults the court for not giving of its own volition is captioned “Impeachment or Rehabilitation by Prior Statements of Witnesses Other Than Defendant” and is contained in the “3.00 Series” of MAI-CR which is denominated “Instructions Required If Requested”. Anent the subject matter of MAI-CR 3.52, Terry Dean Saunders was called as a witness by defendant. Saunders testified on direct examination that he and an unidentified accomplice robbed the U-Totem Corporation store on the occasion in question. Further, on direct examination, Saunders specifically exculpated defendant from any involvement in the robbery. During the state’s cross-examination of Saunders, he denied ever telling Detective Jordan (one of the police officers who investigated the robbery) that defendant was his cohort in the perpetration of the robbery and again reiterated his exculpation of defendant. The state called Detective Jordan as a rebuttal witness. Jordan testified that he interrogated Saunders shortly after the robbery at which time Saunders stated that he and defendant “had pulled the robbery.” Defendant made no request, contemporaneously or otherwise, that Detective Jordan’s testimony be considered solely for the limited purpose of impeaching or discrediting Saunders’ believability as a witness and that it could not be considered as substantive evidence to prove any facts to which it related. In this regard it is significant to note that defendant conceded in his motion for a new trial that the referenced testimony of Detective Jordan “was offered for the sole purpose of impeaching one of defendant’s witnesses [Saunders].” Additionally, defendant, in his brief, unequivocally stated “that the trial court clearly recognized” that the referenced testimony of Detective Jordan “was for impeachment purposes only.” Neither of the closing arguments in the case was included in the transcript. Therefore, it is reasonable to assume that the state at no time ever argued that Saunders’ prior inconsistent statement constituted substantive evidence to prove defendant’s guilt and defendant has not so much as even hinted otherwise.

Defendant candidly admits that he never requested the trial court to give MAI-CR 3.52. The Notes on Use supplemental to MAI-CR 3.52 provide, so far as is here germane, that “MAI — CR 3.52 must be given if requested in the manner provided for in Rule 20.02.” Rule 20.02(a) provides, inter alia, that “MAI-CR instructions in the 3.00 Series may be given by the court without a request therefor and shall be given where applicable if requested in the manner provided in this Rule.” From the wording of that portion of Rule 20.02(a) just iterated, it is clear that although the trial court could have given MAI-CR 3.52 without a request from defendant to do so, it was not mandatory for it to do so absent a request from defendant. The very language of Rule 20.-02(a) appears to clearly absolve the trial court of any error associated with submission of this case to the jury without the benefit of such an instruction. Defendant, in spite of his admitted dereliction in not requesting the trial court to give MAI-CR 3.52, presses this court to treat the trial court’s failure to do so as plain error under the auspices of Rule 27.20(c). Defendant argues that manifest injustice is rife in this case because of its submission to the jury without the benefit of MAI-CR 3.52. This argument has been made and rejected on prior occasions respecting comparable instructions antedating MAI-CR. See: State v. Taylor, 472 S.W.2d 395, 403, 404[9] (Mo. 1971); and State v. Martin, 411 S.W.2d 241, 242, 243[3] (Mo.1967). The crux of defendant’s argument therefore does not involve a nascent issue. A careful review of the record in this case fails to indicate anything that would prompt a deviation from the holdings of the cases just cited.

After careful analysis, defendant’s third and final point, although somewhat verbose and difficult to fathom, boils down to a contention on defendant’s part that the guilty verdict returned by the jury was against the weight of the evidence. So viewed, it is a mere abstract statement which presents nothing for appellate review. State v. Amerson, 518 S.W.2d 29, 31[1] (Mo.1975); and State v. Jackson, 477 S.W.2d 47, 53[11] (Mo.1972). Furthermore, an appellate court has no prerogative to weigh the evidence in a criminal appeal; its scope of review is constricted to a determination of whether there was sufficient substantial evidence to support the verdict. State v. Eaton, 504 S.W.2d 12, 16[6] (Mo. 1973); and State v. Crawley, 478 S.W.2d 344, 345[1] (Mo.1972). The record in this case reveals the presence of sufficient substantial evidence to support the verdict.

Judgment affirmed.

All concur.

      . Defendant claims that the lineup was im-permissibly suggestive because (I) he was the only person in the lineup whose picture had previously been observed by Ms. Jenkins and (2) he was the only person in the lineup wearing “high heel” shoes.