text:
    STATE of Missouri, Respondent, v. James David MALLETT, Appellant.
    No. KCD 28105.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Michael L. Midyett, Keytesville, for appellant.
    John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant was convicted by jury of striking a police officer while engaged in the performance of duties imposed upon him by law, a violation of § 557.215. (All statutory references are to RSMo 1969.) On this appeal, he assigns as error: (1) that the trial court erred in overruling defendant’s motion for judgment of acquittal at the close of State’s case because there was no evidence to show that Trooper Jerry W. Griffin was engaged in the performance of duties imposed upon him by law at the time of the alleged assault upon him by the defendant; and (2) that the trial court erred in refusing to give defendant’s instruction on common assault.

At approximately 2:00 a. m., February 7, 1974, State’s witness Wesley Rhodes, an ambulance driver, found the defendant slumped behind the steering wheel of an automobile on Missouri Highway 5 between Brookfield, Missouri, and Marceline, Missouri. Rhodes called the Brookfield, Missouri Police Department with the radio in his ambulance, asking that the Marceline Police and “the trooper” be sent to that location. In response to that call, Officer Griffin of the Missouri State Highway Patrol was dispatched to the location in question. He arrived at approximately 2:10 a. m., and arrested defendant for driving while intoxicated. He put handcuffs on defendant and placed him in his patrol car, but before proceeding to the Brookfield, Missouri police station Griffin removed the handcuffs from defendant because they cut off defendant’s circulation.

Griffin arrived at the Brookfield, Missouri police station with defendant at approximately 2:20 a. m. As Griffin processed the arrest he gave defendant a cup of coffee, at defendant’s request, which defendant drank. Griffin finished processing the arrest at approximately 4:00 a. m. Defendant was cooperative during this booking procedure.

The Brookfield police station is located in the Brookfield Municipal Building, approximately 75 feet south of the Brookfield City Jail. After Griffin completed booking defendant, he gave defendant another cup of coffee, again at defendant’s request. Griffin then proceeded to take defendant toward the city jail. When the two of them arrived at the jail and as Griffin was unlocking the jail door, defendant threw the cup of coffee into the left side of Griffin’s face. Defendant then ran down an alley. Griffin caught defendant about 30 feet from the jail. Griffin testified that after he had caught him, defendant struck him on the arm and the chin and threw Griffin to the ground, with defendant falling on top of Griffin. Defendant attempted to take Griffin’s service revolver from its holster. However, the trooper pushed defendant off, pulled out his service revolver and subdued defendant. Griffin testified that Wesley Rhodes and Dale Jacobs, the police dispatcher, then came out since Griffin had been yelling for aid. Rhodes and Jacobs then assisted Griffin in opening the jail door and placing defendant in jail.

The evidence just summarized plainly shows that at the moment when defendant struck Griffin with the coffee and shortly later when he hit Griffin with his fists, Griffin was actively engaged in duties imposed upon him by law. Attempting to argue to the contrary, defendant points to the following which was elicited from Griffin on cross-examination:

“Q So, after you go through your booking process that you have, you’re basically finished with the person, up to that point; isn’t that correct?
A Basically, yes, sir.”

At best, this testimony is equivocal. Although the officer may be “basically” finished with the arrest after booking, he did not indicate he was completely finished with the individual. This does not deny his earlier statements that placing defendant in jail was part of his duties:

“Q Was it part of your duties to put Mr. Mallett in jail?
A It was.
******
Q . . . You are charged with the incarceration of prisoners?
A That is my duty, yes, sir.”

Also, on cross-examination, Griffin indicated he was charged with the incarceration of prisoners in the jail but not required to guard them.

Clearly, on direct examination Griffin indicated it was part of his duties to put defendant in the jail. Reviewing the evidence under the classic standard of viewing the record and all permissible inferences favorably to the verdict rendered, the State in the direct examination of Griffin made a submissible case on the issue of whether he was engaged in duties imposed upon him by law when he was assaulted. The credibility of Griffin’s testimony on both direct and cross-examination, and all reasonable inferences to be drawn therefrom, was exclusively for the jury. State v. Webb, 423 S.W.2d 795 (Mo.1968); State v. Johnson, 447 S.W.2d 285 (Mo.1969).

Also it appears that on these facts when defendant assaulted Griffin, the officer was engaged in the performance of duties imposed upon him by law as a matter of law. Sections 43.180 and 43.190 grant to the Missouri State Highway Patrol the power to arrest without a warrant any person they detect violating any laws of Missouri. Section 544.180 defines an arrest as:

“An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of warrant or otherwise.”

In State v. Sampson, 408 S.W.2d 84 (Mo. 1966) the court said:

“A person may be said to be under arrest from the moment a police officer takes control of his movements.”

State v. Stokes, 387 S.W.2d 518 (Mo.1965) adopted the same definition of an arrest, saying:

“. . . defendant was under arrest from the time the officer took control of his movements.”

When Griffin first encountered defendant on Missouri Highway 5, he told defendant that he was under arrest for driving while intoxicated. Griffin placed defendant in his patrol car. Initially he put handcuffs on defendant. The Trooper then took defendant to the Brookfield police station. This evidence is unchallenged by defendant. It seems clear, then, in light of the above statute and cases, that when Griffin encountered defendant on Highway 5 he placed defendant under arrest for a violation of § 564.440, i. e., he took control of defendant’s movements and defendant submitted to the custody of the officer.

Although no Missouri case law has been found dealing squarely with the duration of an arrest once it has been effected, State v. Leak, 11 N.C.App. 344, 181 S.E.2d 224 (1961) is factually extremely close to the instant case. In Leak, the defendant was taken to the police station, under a warrant, where he was booked. He was taken before a magistrate who did not waive the $100 bond. As the arresting officer led the defendant to the jail, the defendant struck the arresting officer with his fists. A fight ensued after which the defendant was placed in jail. The defendant was convicted of assault on a public officer. The North Carolina Court of Appeals held:

“We hold that an ‘arrest’ does not necessarily terminate the instant a person is taken into custody; arrest also includes ‘bringing the person personally within the custody and control of the law.’ The arrest of defendant in the instant case did not terminate until he was delivered to the jailer and properly confined. The assignment of error is overruled.”

In Pope v. State, 528 S.W.2d 54 (Tenn.Cr. App.1975) the defendant was convicted of interfering with a police officer in the performance of his duties. The officer placed a friend of the defendant under arrest and inside his patrol car. A few minutes later the defendant began yelling at and grabbing the officer. In deciding whether the officer was still in performance of his duties after placing the arrestee in the patrol car, the court said:

“An arrest is a continuing process from the time one is apprehended until he is placed in jail.”

State v. Shirley, 233 Mo. 335, 135 S.W. 1 (1911) expresses a view conforming with the foregoing authorities:

“The law does not make the justice of the peace a jailer, and, if defendant was arrested by the constable upon a warrant regularly issued on a criminal charge, he remained in the custody of such constable until released under recognizance, discharged by order of the justice, or delivered to the jailer of the county.”

An arrest by a peace officer therefore continues so long as the arresting officer has the custody and control of the arrestee’s movements for the purpose of delivering the person arrested into incarceration to be held to answer the particular charge. In the instant case Griffin was still actively engaged in the custody and control of defendant as he escorted defendant toward the Brookfield jail. Indeed, he was taking defendant to the jail so that defendant could be available in order to answer particular charges for which the officer had taken him into custody. Therefore, when defendant assaulted Griffin, he struck an officer actively engaged in the performance of duties imposed upon him by law and thereby violated § 557.215.

Defendant’s argument that Griffin was not actively engaged in the performance of duties imposed upon him by law when he was struck by defendant because the trooper was acting as a jailer at that time is not tenable. He has cited no case law to support that contention. As indicated above, Griffin was actively engaged in the custody and control of defendant and he had not yet delivered defendant to the jail. The arrest continued until Griffin delivered defendant to jail. State v. Leak, supra; Pope v. State, supra; State v. Shirley, supra. Therefore, Griffin was within the ambit of § 557.215 when he was assaulted.

There is another reason why Griffin was in performance of his duties when the scuffle with defendant occurred. After throwing the coffee in Griffin’s face, defendant attempted to escape. This constituted a separate criminal offense under § 557.390, committed in Griffin’s presence, which gave rise to authority and a duty on Griffin’s part to pursue and arrest. On this additional ground, Griffin was within the scope of § 557.215 when defendant resisted with physical violence.

Defendant’s second contention, regarding the refused instruction on common assault, is answered by State v. Ross, 492 S.W.2d 792 (Mo.1973), where the defendant was convicted under § 557.215. The defendant had struck with his fists a police officer as the defendant was being led to jail after booking. The officer the defendant hit was not the arresting officer; he merely was passing the defendant in the hallway. At trial the defendant requested an instruction on common assault which was refused. Considering the defendant’s contention that the trial court erred in refusing the common assault instruction, the court said:

“In ruling this contention we will assume, but do not decide, that common assault is a lesser included offense of the crime charged. . . . The evidence clearly indicates that Officer New was engaged in the performance of his duties as a police officer at the time he was struck. . We accordingly rule that the evidence did not warrant an instruction on common assault and hence the court did not err in failing to give one.”

Likewise in State v. Jacks, 462 S.W.2d 744 (Mo.1971) the defendant was convicted for violation of § 557.215. On appeal the court found the evidence sufficient that the officer was engaged in the performance of duties imposed upon him by law at the time of the assault. The trial court refused the defendant’s instruction on common assault. The defendant assigned error to this refusal. The court said:

“As above held, and as the state contends, there was no evidence that would justify a finding that Ellis was not acting as a police officer, engaged in his duties, at the time he was assaulted. Hence the court was not required to give the instruction on common assault.”

Similarly, the court in State v. Taylor, 498 S.W.2d 614, 617 (Mo.App.1973) in considering exactly this contention held:

“Defendant further contends that it was error for the trial court to refuse to instruct the jury on the lesser included offense of common assault since the evidence as presented would have supported such a charge. Section 557.215 RSMo 1969, V.A.M.S., is directed to all willful assaults on police officers. There is no lesser included offense where a striking is shown and no controversy appears over whether the victim was a police officer or engaged in the performance of his duties. Under this state of facts the court is not required to give an instruction on common assault. State v. Jacks, 462 S.W.2d 744, 748[7] (Mo.1970).”

See also State v. Watson, 364 S.W.2d 519, 522 (Mo.1963); State v. Barton, 142 Mo. 450, 44 S.W. 239 (Mo.1898); State v. Schloss, 93 Mo. 361, 6 S.W. 244 (Mo.1887); State v. Webb, 518 S.W.2d 317 (Mo.App.1974).

Taking all the State’s evidence as true, the defendant could be convicted on this evidence for no offense other than striking a police officer while engaged in the performance of his duties. Because the evidence does not support an instruction on common assault under the authority cited above, defendant’s second point is denied.

Affirmed.

All concur.


source: Caselaw Access Project

author: PRITCHARD, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Melvin POWELL, Appellant.
    No. KCD 28182.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

By the verdict of a jury appellant was found guilty of robbery in the first degree and his punishment was fixed by it at 58 years imprisonment. Appellant filed a motion for reduction of punishment which was sustained by the trial court and he was sentenced to 40 years imprisonment in the Department of Corrections.

The indictment of the Grand Jury charged appellant with the robbery of Greg Melenson of $982.00 in his care and custody, which was the money of A & P Grocery Store, a corporation, which store, as the evidence shows, was located at 99th and Holmes Streets, in Kansas City, Missouri. The robbery of the A & P store occurred about 8:15 p.m., on March 13, 1975, and appellant’s sole contention here is that the trial court erred in overruling his pre-trial motion not to permit testimony of another robbery occurring about the same time of the Bisceglia Drugs store which was near to the A & P store. That evidence was received at trial, and appellant’s point is that it had no probative value, and was evidence of another crime and was unduly prejudicial, within the prohibition of cases such as State v. Ingram, 286 S.W.2d 733 (Mo.1956); State v. Holmes, 389 S.W.2d 30 (Mo.1965); and State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (1954), all cited by him. Under the facts as detailed below, this case comes within two exceptions to the exclusionary rule of the cases cited: (1) To identify appellant as a participant in the robbery with which he was charged; and (2) to show a common plan embracing the commission of the two robberies. (There were four men involved in the two robberies.)

The occurrences of March 13,1975, began when Thomas J. Howard, assistant manager of A & P, received information from the police that the store might be held up. About 2:00 p.m., he saw a man fitting the description of a possible robber get into a black over beige Cadillac with three other men. As the car drove away he wrote down the license number and called the police and gave them that information. About the same time, Mary Waldrop, an employee of A & P, saw two black men enter the store separately, make small purchases and leave. She identified the two in a lineup after the robbery.

Sharon Stevens was a checker in the A & P store at the time of the robbery. Two black men entered the store and one of them ordered Sharon to get the money out of the cash register, which she did, and dumped the money into an A & P grocery sack, which she testified was like State’s Exhibit 4. Sharon could not positively identify either man in a lineup, but did identify one man’s clothing, and she was able to identify one man from a photograph of the lineup.

Gregory Melenson was a clerk for A & P. He saw two men enter the store, one of whom was wearing a blue stocking cap and the green plaid suit, which Melenson identified as State’s Exhibit 3. Melenson was told to hit the floor which he did, remaining there throughout the robbery, during which he heard the man in the front of the store tell the one in back, “Come on, man. We have been here too long. Let’s go.” Me-lenson later identified Larry Washington in a lineup.

Peggy Poland was a customer in the A & P when the robbery took place. Someone came up behind her with a gun and told her to “hit the floor.” While on the floor she heard the person with the gun speak to someone else, calling him “Mel.” After the robbery, Peggy’s billfold was missing from her purse.

Roger L. Jacobs, a customer of A & P, walked into the store while the robbery was in progress and was told to lie on the floor by a black man. He heard the man calling to another man referring to him as “Mel.” Later at Police Headquarters, he identified the man as Larry Washington.

Gayland Rindt was in charge of A & P the night of the robbery, prior to which he walked outside and noticed a brown Cadillac with a dark top and motor running backed into a parking place. When Rindt went back into the store he saw two men and was instructed to hit the floor by one of them. He was then ordered to get in the office and get the money, which he did and gave it to the other man. Both men were black and armed with guns. One was wearing a green suit with white flecks, identified as like State’s Exhibit 3, and a ski mask. After the men were gone Rindt noticed the Cadillac which he had seen was gone. From a photograph shown at trial, he identified Larry Washington as one of the robbers.

Francis P. Bisceglia owned the pharmacy at 99th and Holmes next to the A & P store. About 8:15 p.m., on March 13, two armed black men entered his store. Both wore stocking caps and one wore sunglasses. A robbery took place with narcotics, money and postage stamps being taken and placed in a white pillow case. Bisceglia identified State’s Exhibit 6 (drugs) as coming from his store, and testified that State’s Exhibit 8 was like the pillow case used in the robbery.

Putting together all of the foregoing bits of evidence is the testimony of Richard Snyderhoud, an officer of the Kansas City Police Department. With Officer Paul Bass, he was in a patrol car at 47th and Prospect when, at about 8:20 p.m., he received a holdup call from 99th and Holmes. At about 77th and Paseo they saw a black over light colored Cadillac proceeding north. This fit the description of a car (and license number) described to them earlier that day. The car was stopped at 75th and Highland, at which time all the officer could see was the driver, but another person sat up in the passenger side of the car. The driver fit the description of- one of the suspects involved in the robbery. Referring to the lineup photograph, Snyderhoud identified the driver, Larry Washington, to be first from the left; the passenger, Carl Rule, was third from the left. These two men were arrested, taken to Police Headquarters, before which a search was made of the car except for the trunk for which the driver said he had no key. The car was then taken to the police tow lot at 1st and Lydia, and a search warrant was then obtained for a search of the trunk. At about 1:00 a.m., the trunk of the car was opened and appellant with one O’Neal, a black man, were found in it. There was also found a quantity of money, drugs, four handguns, a green plaid leisure suit, some stocking caps and ski masks. Appellant was reaching for the paper sack which contained the handguns as the trunk was opened. State’s exhibit 3 is the green plaid suit.

The following exhibits were received in evidence: State’s Exhibit 1, a billfold; State’s Exhibit 3, a leisure suit; State’s Exhibit 4, a sack; State’s Exhibit 6, a sack of drugs; State’s Exhibit 7, a folder of stamps; and State’s Exhibit 8, a pillow case. As noted above, State’s Exhibit 3 was identified as the plaid suit worn by one of the robbers; State’s Exhibit 4 was like the sack in which loot was placed; State’s Exhibit 6 was identified as drugs taken from the pharmacy; and State’s Exhibit 8 was like the pillow case in which the pharmacy loot was placed.

As noted in the recitation of facts, no witness was able to identify appellant as one of the robbers who actually held up the A & P store. The other robber was identified as Larry Washington, and he was the one found by Officer Snyderhoud in the driver’s seat of the Cadillac at the time it was stopped at 75th and Highland. Some four hours later appellant was found and arrested with O’Neal in the trunk of the Cadillac where much of the loot taken in the robberies was also found. The recent unexplained possession of the loot jointly with O’Neal connects appellant with the crime, and establishes his identity as one of the perpetrators thereof, as the jury could and did find. State v. Gerberding, 272 S.W.2d 230, 232[1] (Mo.1954), where articles used in the robbery were identified, as here. Four men were in the Cadillac when it was seen by witness Howard about 2⅝ hours prior to the robbery, and this Cadillac was by its license number proved to be the same one in which appellant and O’Neal were found in the trunk and in which Washington was the driver. During the robbery of the A & P store, Washington was heard to call to appellant by his first name, “Mel”. Obviously, the concealment of the two men in the trunk was a ploy to throw off pursuit and arrest, as the jury could find. State v. Cochran, 366 S.W.2d 360, 362[3, 4] (Mo. 1963), where evidence of defendant’s conduct in being found in a clothes closet when officers entered an apartment to find him, was held admissible.

The whole of the conduct of these four men certainly tends to show that they had a common design or scheme to commit the simultaneous robberies, and then escape with the loot and to avoid detection and arrest. The rule of admissibility of a separate crime under the facts present in this case is stated in State v. Ward, 457 S.W.2d 701, 708[11] (Mo.1970), “It is held in this state that where two or more persons engage in a commission of a crime or crimes, proof of all relevant facts is generally proper. State v. Adams (Mo.Sup.) 380 S.W.2d 362, 368. In State v. Parr, 296 Mo. 406, 246 S.W. 903, at 905, where two different persons had been charged, the court said: i * * * Where, as here, two crimes are committed under such circumstances as to constitute one continuous transaction in the accomplishment of a common design, and the facts are so interrelated that the crimes are concurrent, proof of one cannot be made without a showing of the facts tending to establish the other. In short, the entire otherwise relevant facts may be regarded as part of the res gestae. (Citing cases.) Without their admission, a connected and intelligible statement of the transaction could not well be made nor a clear understanding had of the same. * * Under the facts, and in accordance with the law as set forth in the foregoing cases, the trial court did not err in failing to exclude evidence of the concurrently executed robbery of Bisceglia Drugs store, as it comes within the recognized exceptions to inadmissibility of other crimes: Proof of identity of the accused, and being evidence of a common scheme or design.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. John Madison BRAME, Jr., Appellant.
    No. KCD 28195.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      R. Lin Alexander, Marshall, for appellant.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant was charged by information with stealing three blank checks and three watches, those items having an aggregate value in excess of $50. The jury found defendant guilty but was unable to agree on punishment. The trial court fixed punishment at 10 years and entered judgment thereon, from which defendant appeals.

The conviction was based entirely upon circumstantial evidence. The State’s primary witness, Arthur E. Ozias, is defendant’s uncle by marriage. Defendant’s 91 year old grandmother, who is also Ozias’ mother-in-law, lived with Ozias. Defendant occasionally visited his grandmother at the Ozias home. On the date in question, January 15, 1975, Ozias had left for work at approximately 8:00 a. m., leaving his mother-in-law at the house. Since Ozias’ wife was away on a trip, Ozias returned home several times during the day to check on his mother-in-law, one of such visits being about noon, and Ozias left again about 1:00. At that time, everything was as usual.

Ozias again returned to the house about 2:30 to 3:00. He observed defendant and a companion leave the house hastily as he arrived. This was the first time Ozias had seen the defendant for “quite some time.” When Ozias went to his bedroom, he found the dresser drawers open and various items disturbed. He discovered that three watches and two rings were missing from his bedroom. Items in two other rooms of the house had also been disturbed, and Ozi-as testified that he specifically remembered seeing one of the watches earlier that morning. The testimony revealed that defendant’s grandmother was down the street at a neighbor’s and was not in the house at the time that Ozias arrived and defendant left. The total value of the items stolen, according to Ozias, was approximately $475, and the watches specifically were worth $350. The theft was reported to the police.

Two days later, on January 17, defendant was arrested for a traffic violation while driving a car with two companions as passengers. A search of the car revealed three checks of Ozias’ company beneath a floor mat in the front seat. When the police notified Ozias, he ascertained the checks to have been taken from the Ozias Electric Company checkbook which had been in Ozi-as’ house on January 15. None of the other items stolen in the course of the burglary were ever located. The three checks taken from the Ozias Electric Company checkbook were not the top three, and Ozias could not affirmatively state that the checks were taken on January 15. There was also testimony that the checkbook was stored alternately at the home and the office of Ozias. There was no specific testimony as to the value of the checks, although the prosecutor commented that they were probably worth “thirty cents or so.” The checks when found by the police had been filled in to show as payees certain individuals who are related to defendant by marriage.

I.

Defendant’s Points Relied On numbers 1, 2 and 5 all object to Instruction No. 4. Construing those points liberally in favor of defendant, they present the following issues: a) The information charged a theft on January 15, 1975, but Instruction No. 4 submitted to the jury the question of whether defendant committed theft on June 15, 1975. Based on this discrepancy defendant argues that the verdict was beyond the information and the evidence; b) Defendant argues that the evidence was insufficient to prove any theft by defendant, regardless of date.

With respect to the discrepancy of dates, it must be observed that all the evidence related to events on January 15,1975, and during the two or three days immediately thereafter. There was no reference during the trial of any kind to June 15. The substitution of June 15 for January 15 in the Instruction was quite obviously a clerical mistake which could not possibly have misled the jury. The error in date here has no more significance than the error in dates in State v. Shipley, 232 S.W.2d 515 (Mo.1950), which was held to be nonprejudicial.

A similar error of dates was held nonprejudicial in Woods v. State, 139 Tex.Cr.R. 631, 141 S.W.2d 318 (1940), where the information charged a violation on June 5,1939, but the instruction referred to acts done on June 5, 1909. The court held:

“This mistaken date is so palpably a typographical error we feel sure it could have had no influence upon this jury, who certainly knew from the evidence that this man was being tried for an offense said to have been committed on June 5, 1939.”

So also in Howe v. Commonwealth, 462 S.W.2d 935, 938 (Ky.App.1971), a similar discrepancy in dates was held immaterial. The indictment stated January 22 as the date of events, while the instruction referred to February 22. The court held this discrepancy to be nonprejudicial:

“Dates were not in issue and the testimony referred to the correct date of the crime. We are of the opinion that the error in the date did not affect the substantial rights of the accused and that he was not prejudiced by this inadvertent mistake.”

Turning to the alleged insufficiency of the evidence, that question also must be ruled against defendant. His possession of the recently stolen checks, when stopped by the police on January 17, was a sufficient premise from which the jury could infer that he was the thief. State v. Sallee, 436 S.W.2d 246, 250 (Mo.1969); State v. Nichols, 130 S.W.2d 435, 486 (Mo.1939). Moreover, his possession of that portion of the loot permits the inference that he was the thief who stole it all. State v. Burrage, 418 S.W.2d 101, 106 (Mo.1967); State v. Weaver, 56 S.W.2d 25, 26 (Mo.1932); State v. Beatty, 90 Mo. 143, 2 S.W. 215, 216 (1886).

Defendant calls attention to the fact that two other individuals were in the automobile with him at the time defendant was stopped on the street by the police. He argues that defendant was simply in joint possession with those other occupants and that in the case of joint possession of stolen property, no inference can be drawn that any particular one of the possessors was the thief in the absence of additional facts and circumstances connecting the defendant with the theft. State v. Pruett, 522 S.W.2d 823 (Mo.App.1975). Such additional facts and circumstances do exist here by reason of the fact that defendant was the driver of the automobile (as contrasted to being merely a passenger), he was present at the scene of the theft during the very short interval during which the theft occurred from the Ozias home, and the stolen checks were filled in with the names of payees who were defendant’s relatives. The evidence in this case was sufficient to warrant submission to the jury.

II.

Defendant’s Point 3 alleges: “The Court erred in permitting the State to comment upon Defendant’s refusal to testify, in as much as the Prosecuting Attorney commented during his closing argument that Defendant had failed to offer any evidence to contradict the State’s evidence, when in fact, the Defendant had offered such evidence; the Prosecuting Attorney thereby clearly refering [sic] to. Defendant’s failure to testify.” This Point presents nothing for review for the reason that the argument by the prosecuting attorney, of which complaint is made, has not been included in the transcript on appeal. State v. Taylor, 486 S.W.2d 239 (Mo.1972); State v. Pryor, 525 S.W.2d 413 (Mo.App.1975).

Moreover, any comment by the prosecuting attorney, if it was as set forth in defendant’s Point, was not reversibly erroneous. State v. Armbruster, Missouri Court of Appeals, Springfield District, No. 10080, decided September 10, 1976, and authorities cited at page 9 of the slip opinion. State v. Hudson, 508 S.W.2d 707 (Mo.App.1974), cited by defendant in this regard, is not to the contrary.

III.

Defendant’s Point 4 complains that the trial court erred in permitting the testimony of witnesses not endorsed on the information. The record shows that is not quite what happened. The State did ask leave at the beginning of the trial to endorse four additional witnesses who had not theretofore been named as witnesses to be called. The trial court did grant the permission sought with respect to three of those witnesses, all of whom had testified at the preliminary hearing. This action was permissible and did not^ constitute error. State v. Minnix, 503 S.W.2d 70 (Mo. App.1973).

IV.

For his final Point, defendant contends that the trial court erred in failing to instruct the jury on the lesser offense of stealing property of a value less than $50. In support of that contention defendant argues that the time of the theft of the three checks could not be definitely pinpointed as having occurred at the same time as the theft of the watches and rings and that inasmuch as the checks were the only items found in defendant’s possession, the jury could have found that the checks were all that defendant actually stole. If so, by concession of the prosecuting attorney the value of the checks was less than $50 and the trial court would have been bound to instruct on theft of property less than $50 in value, which constitutes a lesser included offense. State v. McCarthy, 336 S.W.2d 411 (Mo.1960).

The flaw in defendant’s argument is that there was no evidence that the checks were stolen at any different time or place from when and where the watches and rings were stolen, and any finding that the checks were stolen at a different time or place would be so unreasonable as to defy common sense. Ozias testified that he had changed his checkbook on the first of the year; so, these checks in question had only been in existence for 17 days before they were found by the police hidden in defendant’s car. Those checks had been in Ozias’ home only two days previously when a theft had occurred, and until the date of that theft Ozias had not seen defendant for “quite some time.” There was no evidence that defendant ever had been in the Ozias Electric Company office or that he had ever had access to the company checkbook at any place or at any time except at the Ozias home during the early afternoon of January 15, 1975.

Still further, the theft occurred during the very short period of one and one-half to two hours between the time that Ozias visited his home between noon and 1:00 and the time that he came back and found his home in disarray at about 2:30 to 3:00 o’clock. There was no evidence that anyone else was in the house during that very brief period other than the grandmother, defendant, and his unidentified companion.

Under these circumstances the only reasonable conclusion is that all of the items were taken at the same time. That being true, the taking of all of the items constituted one theft. State v. Weaver, 56 S.W.2d 25, 26 (Mo.1932). The only evidence in the case was that the property stolen had a value in the aggregate of over $50. For that reason, an instruction on the lesser included offense was not required. As held in State v. Burrage, supra : “There was no evidence to justify a finding that the property taken was of a value of less than $50.00. Under those circumstances, the trial court was not required to instruct on stealing of property of value less than $50.00.” To the same effect: State v. Knicker, 366 S.W.2d 400, 403 (Mo.1963).

Affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    STATE ex rel. John F. OLIVER et al., Relators-Respondents, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent-Appellant, and Hardy’s, Inc., Intervenor-Appellant.
    No. KCD 28220.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Leland B. Curtis, Jefferson City, for Public Service Com’n, respondent-appellant.
    Thomas P. Rose, Jefferson City, for Hardy’s, Inc., intervenor-appellant.
    Herman W. Huber, Jefferson City, for Leeser Transp., Inc. and Walter Smarr.
    James C. Swearengen, Hawkins, Brydon & Swearengen, Jefferson City, for Twehous Excavating Co., Inc., and Anderson Transp., Inc.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

This is an appeal from a judgment of the court below entered August 7, 1975, reversing an order of the Missouri Public Service Commission (P.S.C.), under judicial review pursuant to Section 386.510 RSMo 1969.

The procedural background of this matter reveals that on February 22, 1974, Hardy, Inc. (Hardy), a company engaged in heavy construction (roads and bridges), with its principal office and place of business at Shelbyville, Shelby County, Missouri, and then the holder of a certificate of convenience and necessity from the P.S.C. for the transport of bulk commodities by dump truck within a 75-mile radius of Bethel, Shelby County, Missouri, applied to the P.S.C. for additional authority to haul heavy equipment, machinery and commodities for others over irregular routes between all points within 75 miles of Shelby-ville and between all points within that area, on the one hand, and all points in Missouri, on the other hand, irrespective of such points being on the route or routes of any authorized regular route motor common carrier.

Applications to intervene to protest the grant of such authority were filed by the respondents John F. Oliver (Oliver), Leeser Transportation, Inc. (Leeser), Walter Smarr d/b/a Smarr Coal and Excavating Company (Smarr), Twehous Excavating Company, Inc. (Twehous) and Hannibal Quincy Truck Lines, Inc. Such intervention was allowed and on April 18, 1974, an evidentiary hearing was held on Hardy’s application, and on October 21,1974, the P.S.C. issued a Report and Order granting Hardy a portion of the authority sought, as follows:

“To operate in intrastate commerce over irregular routes as a common carrier in the specialized service described herein: Between all points in the Missouri Counties of Clark, Lewis, Marion, Shelby, Monroe, Randolph, Chariton, Sullivan, Linn, Macon, Adair, Schuyler, Scotland, Knox, and between those counties on the one hand, and on the other, all points in Missouri, irrespective of the location of such points being on the route or routes of any authorized regular route motor carriers, in a specialized service of transporting contractors’ equipment, which because of its size or weight, or both, requires the use of specialized equipment and/or specialized handling, or both, to load, or unload. It being understood that the holder of this certificate is offering, a specialized service not generally provided by common carriers of freight.”

Applications for rehearing were filed by Oliver, Leeser, Smarr and Twehous, and on

November 19, 1975, the P.S.C. corrected its Report and Order to include an additional finding that Twehous holds an authority which is in direct conflict with the application of Hardy; that Twehous has never operated under such authority; had only begun to solicit business under it; and, maintains no terminal or maintenance facilities in the area sought to be served by Hardy.

The motions for rehearing were overruled and the protesting carriers obtained a writ of review in the Circuit Court of Cole County, Missouri on December 12, 1974. The cause was presented on May 5,1975, and on August 7, 1975, the court below reversed the Order of the P.S.C. upon the basis that it was not authorized by law and not supported by competent and substantial evidence upon the whole record. This appeal followed.

The appellants urge but one point on this appeal, which in summary charges the court below with error “in concluding that the order of the Public Service Commission was not unauthorized by law and not supported by competent and substantial evidence upon the whole record.” While this statement wholly fails to comply with the requirements of Rule 84.04(d) and would therefore justify the dismissal of this appeal, such punitive action will not be taken. This type of case is by its very nature impressed with a public interest; substantial business and private interests and investments are involved; and, this court is reluctant to forgo its judicial function to decide the matter on the merits, because of a failure of counsel to obey the mandate of the Rule.

Further, it should be noted that appellants’ brief cites only two cases and devotes a substantial portion of the Argument in the brief to an attempt to distinguish an earlier decision of this court in State ex rel. National Trailer Convoy, Inc. v. Public Service Commission, 488 S.W.2d 942 (Mo. App.1972), a decision upon which the court below apparently placed great reliance. The obvious should here be noted. No two cases involving the legal issues before this court are factually identical. There are striking points of similarity between this case and National Trailer Convoy, and the principles of law there defined are adhered to and reaffirmed, but basically, this case must be decided on the facts in this record.

In reaching a decision here, it is, however, salutary that the scope of review and the obligations placed upon an appellate court in an appeal of this nature be again noted.

Section 22, Article 5, of the Constitution of Missouri, provides in part:

“All final decisions, findings, rules and orders of any administrative * * * body * * * which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.”

Section 386.510 RSMo 1969 specifically provides for review of the orders of the P.S.C. by the Circuit Court, in the first instance, and by the appellate courts upon appeal. Such reviews and appeals are based upon the “evidence and exhibits introduced before the commission and certified to by it” and are treated and determined as suits in equity. While the court may not substitute its judgment for that of the commission, “it can determine whether the commission could have reasonably made its findings and reached its results upon consideration of all the evidence before it.” It is also recognized that a resolution of this usually becomes a finding of whether or not the order of the commission is supported by competent and substantial evidence. State ex rel. Byers Transp. Co., Inc. v. Public Service Commission, 246 S.W.2d 825, 826[1] (Mo.App.1952); State ex rel. Potashnick Truck Service, Inc. v. Public Service Commission, 129 S.W.2d 69, 72[l-5] (Mo.App. 1939); State ex rel. National Trailer Convoy, Inc. v. Public Service Commission, 488 S.W.2d 942, 944[1] (Mo.App.1972) and cases cited therein.

In making such determination, recognition must likewise be given to the powers conferred and restrictions imposed upon the P.S.C. with reference to the granting of certificates of convenience and necessity in matters such as the case at bar.

Section 390.051(4), RSMo 1969, requires that there be a finding

“that public convenience and necessity will be promoted, or that there is public need for the creation of the service proposed, or any part thereof, and that the applicant is qualified properly to perform the service proposed * * * ” (Emphasis supplied)

Section 390.051(5) RSMo 1969 requires that consideration be given to the effect which the proposed service may have upon other common carriers.

In State ex rel. Orscheln Bros. Truck Lines, Inc. v. Public Service Commission, 433 S.W.2d 596 (Mo.App.1968), both of these statutory requirements were recognized, l.c. 603, 604[4] and the court said, l.c. 605[5]:

“Until and unless these requirements are met, the commission is not authorized to grant a certificate for this new motor carrier service.”

See also: State ex rel. Missouri Pacific Freight Transport Company v. Public Service Commission, 295 S.W.2d 128, 131, 132[2] (Mo.1956).

The burden to establish these prerequisites for the authority sought by competent and substantial evidence rests firmly upon the applicant. This burden cannot be met by speculation, guesswork, hopes, or aspirations. In State ex rel. Eldon Miller, Inc. v. Public Service Commission, 471 S.W.2d 483 (Mo.App.1971), this court noted that the need required to be established was a present need, l.c. 487, and stated, l.c. 488[1]:

“ * * * the case law of Missouri requires that an applicant for a certificate of_ public convenience and necessity show by evidence that the public convenience will be enhanced and there is a reasonable necessity for the transportation service requested. (Cases cited)” (Emphasis the Eldon Miller court’s)

In order to determine if the P.S.C. could reasonably make its findings and order and grant the Hardy authority based upon substantial and competent evidence, it is first necessary to review the evidence offered purporting to show the public need and necessity for the service granted.

Donald Hardy, president of Hardy’s Inc., the applicant, testified that his company was engaged in the heavy construction business with its base of operations at Shelby-ville; that a great bulk of its business was the construction of roads and bridges for the State of Missouri within a 100-mile radius of Shelbyville; that such work required the moving of heavy construction equipment from one job site to another, which required the use of special road equipment; that his company owned seven pieces of such equipment, which he described; and, that such equipment was used exclusively in Hardy’s business except that upon occasion he would loan some of it to his contractor friends without charge; and, that he estimated this equipment was in use about 30% of the time and idle about 70% of the time.

Hardy further testified that he sought the certificate of public necessity and convenience so that his company could haul heavy machinery and equipment for hire as a common carrier over irregular routes within a 75-mile radius of Shelbyville and from and to any point therein to all points in Missouri. He stated that such authority would overlap the authority of protestants Oliver and Leeser only.

Hardy stated that “three or four companies” had asked him to file the application. He named Altorfer Machinery Company of Hannibal, Cook Sales and Service of Chilli-cothe, Central Stone of Huntington, and Peabody Coal Company.

John R. Fierke of Hannibal, vice president of the Missouri Gravel Company of LaGrange, and its wholly owned subsidiary, Central Stone Company of Huntington, testified that his company did its principal business in Knox, Lewis, Ralls, Pike and Monroe Counties; that his companies are not in the construction business but are material suppliers; and, that Hardy’s is one of his customers. He stated that in connection with this business they owned three portable rock crushers which were moved from time to time from one quarry site to another by means of a tractor and “lowboy” trailer owned and operated by his company. He stated that he supported Hardy’s application so that a “local” hauler would be more convenient and the service proposed would be available in the event that his company’s tractor and low-boy trailer were out of service for repairs or tied up on a “long haul”. The following appears as part of his direct examination:

“Q. All right, in the event this application were granted, could you give the examiner any estimate of how frequently you feel your Company might call on the Applicant for service, in the space of a year, say?
A. That would be very hard to say. It would be somewhat irregular. A lot would depend on what our unit was doing, what our business was, and what our problems were, but I would say, it would be irregular, but, possibly frequent.”

On cross-examination, he testified that his company had moved the portable crushers three times “in the last 90 days” with their own equipment. The following then appears:

“Q. So, you didn’t use any common carriage at all?
A. No, sir.
Q. When was the last time your company used common carriage?
A. We have not.”

He stated that he had been with the company for 12 years and then the following appears, upon further cross-examination:

“Q. All right, but in the twelve year period that you’ve been associated with these two companies, you haven’t used a motor common carrier authorized by this Commission to haul any heavy machinery equipment?
A. Not to my knowledge.”

Further, Fierke testified that he was not aware that Leeser had authority to transport heavy construction equipment in the area involved; that Twehous of Jefferson City probably would not be interested in his business; that he didn’t see how Smarr of Columbia could be beneficial to his company; that he was not aware that Oliver of Mexico had the type of equipment needed to transport heavy machinery. On cross-examination, the' following appears:

“Q. Now, if the record, in this case, would reflect the number of protes-tarás with the necessary equipment available by this Commission to operate in your area, would you have any objection to using these protestant carrier(s) who hold the necessary authority, at this time?
A. If they would have the proper authority, the proper equipment, I would have no objection whatsoever.”

He stated he had never contacted any of the companies or made any inquiry as to the service they could render, although recently Twehous has contacted his companies, by letter, offering service.

Harold Dunivent of Moberly, Missouri, a salesman for Cook Sales and Service Company of Chillicothe, Missouri (Cook) was called as a witness for Hardy. He testified that Cook sold and distributed tractors, graders and like type of machines to the construction industry and farmers, and had its main plant and offices in Chillicothe, with regional offices at Fulton, Sedalia and St. Joseph, Missouri. He stated that Cook operates its own hauling equipment to make initial delivery of machines sold and that sometimes machines that have been sold must be returned to one of Cook’s locations for service and repairs. The witness stated that he did not believe Cook could legally perform such service with its equipment, but that it was up to the owners to get the machine transported back to Cook. He further stated that another employee, Jerry Gilliam, stationed at Chilli-cothe, was in charge of transportation for Cook and the witness normally does not have anything to do with that part of the business, although he thinks he has referred some customers to Smarr. He stated that he could see no objection to using Smarr, Oliver, Leeser, or Twehous in this service, although he personally knows of no request for service from these haulers and he has no knowledge of Cook ever using common carriers.

Dunivent stated, “I would say, it would” be of benefit to Cook and fill a need if Hardy had the authority it sought. Sometimes his customers experienced difficulty getting their machines in for repair and service and they would become “disturbed” that Cook could not supply that service. He was concerned about the needs of customers. It should be here noted that none of Cook’s customers nor Jerry Gilliam, its manager of transportation, testified.

Dunivent stated he had made sales to Hardy and it was a good customer and he frankly stated that he was “speaking” as an accommodation to his customers.

Bill Warren testified as a witness for Hardy. He stated that he is a sales representative for the Altorfer Machinery Company of Hannibal, Missouri; that the company sells caterpillar construction machinery in 13 counties in northeast Missouri; that its customers are primarily construction companies; and, that the company operates a tractor and a three axle low-boy trailer which is used to make delivery of machines it has sold.

Warren stated that if Hardy’s application is granted, his company could use Hardy to haul “somewhere in the neighborhood” or “probably in the neighborhood of 4 to 6 units a month of new” machinery. Later, he stated that this was a “fast judgment” and that he was “just guessing”. The transportation for his company out of Hannibal was handled by another employee, Ray Beetle, who did not testify. Warren stated he did not know the dealings his company has had with common carriers except that in the last 12 months he has personally contacted Oliver on two occasions without satisfactory results; that he does not know whether his company ever requested service from Smarr or Twehous, although he has knowledge that Twehous has solicited his company for business recently; that Hardy is one of his customers; and, that he is interested in helping Hardy “in anyway possible” and that he, on his own, asked Hardy to file the application.

He stated that his company could use the Twehous service if it had proper authority, equipment and ability to furnish service at an acceptable rate. Warren was not familiar with Leeser.

The evidence presented before the P.S.C. by the protestants may be thus summarized:

L. F. Blackstun, traffic manager of Hannibal-Quincy Truck Lines, Inc., stated that his company had only a limited interest in the proceedings since it did not haul heavy contractors’ machinery requiring special equipment. It did not join in the position for review and is not a party to this appeal.

Frank Twehous is president of the Twe-hous Excavating Company, Incorporated, of Jefferson City, Missouri. His company is' engaged in the business of dirt moving and specialized heavy hauling, and has held P.S.C. certificates for such hauling in central and southeast Missouri for some time. His company has experience in such hauling since 1959, makes 30-45 such moves per month, and the witness’ recollection is that this business, under the old permits, generated about $100,000.00 in revenue in 1973. He identified a list of 16 pieces of equipment owned by his company used in such hauling, which he stated was in very good condition, and stated additional such equipment would be purchased if needed. At the present time, all this equipment is stationed in and operated out of Jefferson City. Twehous stated that none of the shippers appearing in support of the Hardy application had ever contacted his company for service under the old permits, but his company would have served them within such authority.

Twehous acquired by purchase in February, 1973, an additional authority in northeast Missouri covering all of Stoddard, Knox and Lewis counties; practically all of Marion and Shelby counties; and, parts of Macon, Adair and Schuyler counties. Hardy’s proposed authority would be in direct conflict with the Twehous authority. His company has recently solicited business in that area and the purchase of that authority was with the prospect of generating substantial revenues in that area but as of the date of hearing has received no revenue therefrom.

Twehous stated that his existing tariffs permitted “deadhead” charges per mile for empty operation in connection with hauls. He stated that if business warranted his company would station equipment at a terminal in northeast Missouri to minimize this charge, although he could not fix the time when this would be done.

Walter Smarr testified that his business was in Columbia, Missouri and that he had held P.S.C. heavy machinery hauling permits for twenty years. The area covered is the “trade territory contiguous” to Columbia, Missouri and to and from all points in Missouri and within a 25-mile radius of Belle, Missouri. He has nine pieces of equipment suitable for heavy hauling in good condition, representing an investment of about $50,000.00, with which he performs 4 to 10 hauls per week. While Smarr would not attempt to operate in the northeast counties under his Columbia, Missouri “contiguous trade territory” permit (except, it is assumed, if the shipment originated within the Columbia territory for delivery in the northeast counties) the Hardy application would directly conflict with his operation and damage his business. Hardy’s request extends south of Columbia and almost to the river (Cole County). He has done little or no hauling for the shippers supporting Hardy’s application and has received no requests from them for service.

Thomas Johnson is Safety Director for John P. Oliver, based at Mexico, Missouri, and is engaged in hauling heavy machinery. Oliver’s permit covers Audrain, Callaway, Montgomery, Warren, Lincoln, Pike, Ralls and Monroe counties and to and from all points in Missouri. He identified a list of equipment owned or leased by Oliver used in heavy hauling consisting of over 100 pieces. He stated that the base of Oliver’s operation, Mexico, was 60 miles from Shel-byville and 47 miles from Hannibal; that Hardy (Shelbyville) was about the same distance from Hannibal; and, that his company had performed hauling service for Al-torfer consisting of six hauls in the last six months, but, to his knowledge, had performed no service for any of the other shipper supporters of Hardy’s application, although his company’s service was available. Johnson stated that the authority sought by Hardy would be detrimental to Oliver.

Leeser, intervenor opposing the application, offered no evidence, although it joined in the petition for review and is a party here.

The evidence offered by Hardy in support of its application (as above summarized) falls short of meeting its burden to establish by substantial and competent proof, a present need or necessity for or existence of public inconvenience because of a lack of such service “so great as to amount to a necessity”. State ex rel. Missouri, Kansas and Oklahoma Coach Lines, Inc. v. Public Service Commission, 238 Mo. App. 317, 179 S.W.2d 132, 136[3-5] (1944). At best, such evidence is speculative, contingent, conclusionary, based, in part, on hearsay, and is without real substance. State ex rel. Eldon Miller, Inc. v. Public Service Commission, 471 S.W.2d 483, 488[2] (Mo.App.1971); State ex rel. National Trailer Convoy, Inc. v. Public Service Commission, 488 S.W.2d 942, 945, 948[3, 5] (Mo.App. 1972).

Having reached this conclusion, it is not necessary to again discuss the effect that the granting of this authority to Hardy would have upon the protestants. While the record is somewhat unclear as to the present operations of the protestants, it is clear that the Hardy authority overlaps all of the existing authority held by Leeser and Twehous and part of the authority of Smarr and Oliver, in the area involved; that the protestants (with the possible exception of Leeser) are equipped to furnish the service, with substantial investments in their business enterprises and are willing to afford service within the limits of their authorities.

In this area, Hardy also fails to meet the burden of proof placed upon it to show that the operations of the protestants would not be seriously affected by the grant of authority here given by the P.S.C.

For these reasons, the judgment is affirmed.

All concur.

      . This latter company was not a party to the review proceedings in the court below and is not a party in this appeal.

      . The authority granted Hardy in this order includes all of the authority held by Leeser in northeast Missouri; all of the authority held by Twehous in that area; Monroe County where authority is held by Oliver and Leeser; and, parts of Randolph and Monroe Counties where authority is held by Smarr and Leeser.

      . The 1973 report of his company showed $67,000 plus in such revenues.

      . The authority granted Hardy, in fact, overlaps Smarr’s in Randolph and Monroe counties.

      . The authority granted Hardy overlaps that of Oliver in all of Monroe County.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Felix BRIGGS, Appellant.
    No. KCD 28259.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

By a two-count information in the Jackson County Circuit Court, Felix Briggs was charged with rape and burglary, second degree. On a jury-waived trial, he was found guilty of rape and not guilty of burglary. He appeals from the judgment and 12-year sentence on the rape charge.

The sole contention of appellant here is that the judgment of conviction cannot stand because the trial court’s finding was “inherently contradictory and totally unsupported by substantial evidence in that all the evidence offered demonstrated that the appellant could not be acquitted of the charge of burglary yet be found guilty of rape.”

The charge against appellant was based upon his allegedly forcible entry of an apartment in Kansas City and rape of the occupant. The victim, H. 0., testified that she was awakened at around 4:30 A. M. and heard someone moving from the hallway into the dining room of her apartment. An arm holding a pistol appeared at the bedroom door. She screamed and was warned by the intruder not to scream again. He asked where her money was and she said she had none and showed him her purse, but he did not examine its contents. After some conversation, according to H. 0., the intruder asked her to have sex with him. She asked if she had any choice and was told no. She submitted without a struggle because she was frightened. When the intruder left, she went to a neighboring apartment and called the police. Officers arrived shortly and a description of the assailant was broadcast. A short time later, a police officer who heard the radio call saw a man who answered the description walking some four blocks from the scene of the event. He placed the man under arrest. The man first gave the name James Anderson but he was subsequently found to be appellant Briggs. The victim identified Briggs at a line-up and at the trial.

The victim testified that the doors and windows of her apartment had been locked before she went to bed. She discovered that a screen had been removed from a bathroom window. A police officer found the screen on the ground below the window.

Briggs testified at his trial. He testified that he was walking past the apartment and saw the alleged victim seated on the front porch. He struck up a friendly conversation with her which culminated in her willingly consenting to sexual intercourse which was performed in her bedroom.

At the conclusion of the ¿rial, the court stated, in part:

“With respect to the Count of burglary in the second degree, there is some evidence of an intent to steal but I am not quite certain whether or not an intent to commit rape is sufficient but in my mind, there was no intent to steal when he went into the apartment. I think he had an intent to commit the act of rape, but as I say, it doesn’t make a lot of difference because one way or the other, I find the defendant, on the basis of the evidence that I have heard on Count II, which I believe is the burglary second degree count, I find the defendant not guilty and on that charge, he is discharged.”

Appellant argues that inasmuch as the evidence of his guilt of both of the offenses with which he was charged comes essentially from the alleged victim, and her testimony was unequivocally that the same person committed both offenses, his acquittal of the burglary charge demonstrates conclusively a lack of substantial evidence to support the conviction for rape.

Basically this is a contention that the verdict is so logically inconsistent that it cannot be permitted to stand. In support of this position, appellant cites State v. Cline, 447 S.W.2d 538 (Mo.banc 1969), and State v. Akers, 278 Mo. 368, 213 S.W. 424 (1919). These cases were recently considered in State v. Jenkins, 510 S.W.2d 491, 493—494[5] (Mo.App.1974), a case in which it was contended that a verdict acquitting a defendant of robbery of one person but finding him guilty of robbery of a second person at the same time and place was defective because of inconsistency. The court rejected the contention, stating:

“Since the jury found defendant guilty on Count I (robbery of Margaret Saunders), and not guilty on Count II (robbery of Stanley Hackney), defendant claims that the verdicts are defective because they are inconsistent. In Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), the U.S. Supreme Court held that separate counts must be treated as separate indictments the results of which would not be res judicata as to each other, and that the not guilty verdict is indicative only that the jury usurped the executive’s power to grant clemency. The courts following this rule have declined to speculate as to the reasoning by which the jury arrived at its verdict but have affirmed the conviction notwithstanding its logical inconsistency with the acquittal. Neither of the cases cited by defendant is in point. In State v. Akers, 278 Mo. 368, 213 S.W. 424 (1919), the defendant was tried for the same crime on two different counts, and a verdict of guilty on one count and not guilty on the other was held defective. In State v. Cline, 447 S.W.2d 538 (Mo.banc 1969) it was held that a finding of guilty of burglarious stealing was incompatible with an acquittal for burglary where the two were based on the same incident, since burglary was a necessary element of the other offense. In our case, defendant was charged with the robbery of two separate individuals, the jury chose to find him guilty of the robbery of Margaret Saunders only, and not Stanley Hackney; therefore, inasmuch as the verdict was favorable to him, he cannot be heard to complain. State v. Robb, 439 S.W.2d 510, 513 (Mo.1969). Nor, are we inclined to speculate why the jury reached the result it did.”

The distinctions there made apply here. The acquittal of the burglary charge did not negative a finding of the existence of an essential element of the rape charge. Certainly the charges were not identical.

The holding in State v. Jenkins, supra, is an application of the general rule that logical consistency in a verdict in a criminal trial of a multiple count charge is not necessary. 76 Am.Jur.2d Trial, 66 1155-1159, pp. 123-127 (1975); Annotation: “Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information,” 18 A.L.R.3d 259 (1968); Dunn v. U. S., 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). In United States v. Maybury, 274 F.2d 899 (2d Cir. 1960), the court held that in a court-tried case, the judge as fact finder should be held to a different standard of consistency. In that case, a defendant charged with forging a check and uttering the forged check was acquitted in a non-jury trial on the first charge but convicted of the second. The conviction was reversed and a new trial of the charge ordered on the grounds that there was no logical basis for a finding of guilt on the one charge and innocence on the other when both charges were based upon essentially the same evidence and the proof as to both counts was dependent upon the credibility of such evidence. The court concluded that “acquittal of forging the endorsement was inconsistent with conviction for uttering, and we can have no such confidence in the correctness of the judgment for the latter as is needed to permit it to stand.” 274 F.2d 904.

The reasoning of that case is not here applicable. Here, the trial court explained his reason for failing to find appellant guilty of the burglary charge. That charge was based upon a breaking and entering with intent to steal and the court was not convinced that such intent had been proved beyond a reasonable doubt. This conclusion might have been based upon a faulty recollection of the evidence on the subject. Appellant acknowledges that the evidence would have supported a finding of guilt on the burglary charge. The summations of counsel are not contained in the transcript so there is no way to know here what evidence had been called to the court’s attention. Nor is it known what argument might have been advanced by defense counsel on this score and found convincing by the court. It is clear from the judge’s remarks in arriving at his conclusion that he was primarily concerned with the rape charge. He might have concluded that, although the intruder demanded money, his lack of concern about the victim’s purse, rather than the words he used, disclosed his true intent — to rape, which was not the basis of the charge.

In this case, the trial judge did explain the reason for his acquittal on the burglary charge. The acquittal on that charge did not negative a finding of any of the essential elements of the rape charge. There was substantial evidence to support the rape charge. Appellant cannot stand to gain by reason of his acquittal on the burglary charge.

Judgment affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Eddie Lee JOHNSON, Appellant.
    No. KCD 28341.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Terry Brummer, Asst. Public Defender, Columbia, for appellant.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Eddie Lee Johnson was convicted of robbery first degree, Section 560.120, RSMo 1969. The jury was unable to agree on the punishment and the court thereafter imposed a term of ten years. On direct appeal to this court the conviction was affirmed. State v. Johnson, 506 S.W.2d 32 (Mo.App. 1974).

Johnson thereafter filed a motion pursuant to Rule 27.26 and following a hearing thereon, the court vacated the judgment and sentence originally imposed. The court found Johnson was entitled to relief because of the failure of his original counsel to file a motion for a new trial. Following the vacation of the judgment and sentence, the court allowed Johnson’s present attorney time within which to file a motion for a new trial. That motion was filed and by the court overruled and this appeal follows.

The sole ground asserted is error in allowing the prosecuting attorney to comment on the range of punishment in the rebuttal portion of his closing argument without commenting on punishment in the first part of his closing argument. Affirmed.

In the rebuttal portion of his final argument, the prosecuting attorney stated: “Under our statute the minimum is five years, the maximum is life. You can assess a penalty anywhere in that range between five years and life.” No objection was made when this statement was made and no action was requested from the trial court. The matter was raised for the first time on the motion for a new trial.

It was held in State v. Stephens, 507 S.W.2d 18, 22[7] (Mo. banc 1974) in a contention similar to the one made in this ease, that no relief could be granted when no objection was made at the time the argument was given and when there was no request that the defendant be granted an opportunity for rebuttal to the argument which is contended to have been beyond the scope of the opening portion of the prosecutor’s argument. By failing to object or to request an opportunity to make a rebuttal argument, no relief can be granted at this time.

Furthermore, an argument very similar to the argument complained of here was held in State v. Maxie, 513 S.W.2d 338 (Mo.1974) not to amount to an argument for any particular punishment. The court in that case denied relief and distinguished the cases upon which Johnson relies on this appeal.

In addition to the above reasons, the court in State v. Eaton, 504 S.W.2d 12, 22[20] (Mo.1973) stated: “In any event appellant could not have been prejudiced because the jury could not agree on the punishment, which was fixed by the judge.” The court there was considering an argument identical to the one made by Johnson in this case.

For the foregoing reasons the judgment is affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Bruce A. CHARLES, Appellant.
    No. KCD 28348.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Sixteenth Judicial Cir., Kansas City, for appellant.
    Bruce Charles, pro se.
    John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Appellant was tried as a second offender for the crime of robbery in the first degree by means of a dangerous and deadly weapon. The jury returned a verdict finding appellant guilty and the court assessed his punishment at confinement in the Missouri Department of Corrections for twenty-five years. Sections 556.280, 560.120, and 560.-135, RSMo 1969.

There are two specifications of error on appeal: (1) the trial court erred in overruling appellant’s motion to suppress “identification evidence as said evidence was the result of constitutionally impermissible and unduly suggestive police procedures”; and (2) the trial court erred in refusing to grant a mistrial when one of the state’s witnesses “commented” on defendant’s “arrest for another robbery insofar as this statement presented evidence of another crime, was irrelevant, and prejudicial.” The specifications do not lend themselves to being quickly or easily disposed of because of the facts in which they are immersed.

The sufficiency of the evidence to support the verdict has not been challenged by appellant. A statement of the facts demonstrates why appellant chose not to do so. On February 9, 1975, at approximately three o’clock in the afternoon, two black males, each wielding a handgun, entered a Reveo Drug Store at 3501 Broadway, Kansas City, Missouri, and, at gunpoint, stole and took assorted drugs and narcotics, and $3,400.00 in checks, cash and loose change which was the property of said store and in the care and custody of one of its employees. Various customers in the store at the time, as well as the store’s employees, were also robbed of certain personal effects.

There was a marked difference between the sizes of the two black males. One was approximately five feet nine inches in height and weighed approximately one hundred and fifty pounds. The other was approximately six feet one or two inches in height and weighed approximately one hundred and ninety pounds.

The smaller of the two men proceeded to the pharmacy area of the store and at gunpoint relieved Bill Bond, the assistant manager and pharmacist, of the money and property heretofore mentioned. The larger of the two men, at gunpoint, herded Ron Lopez, an employee of the store, and customers who were in the store, into a storage room at the rear of the premises. In a short time Bill Bond joined the group in the storage room. The larger of the two men then told the group in the storage room, “ . . . you guys are going to have to give us ten minutes . . . and I’ll kill the first person that walks out of that door.”

Temporally speaking, the robbery took place over a span of approximately ten minutes. Bill Bond, who bore the brunt of the activities of the smaller of the two black males during the robbery, although able to identify the smaller of the two men, was unable to identify the larger of the two men. Ron Lopez, who bore the brunt of the activities of the larger of the two black males during the robbery, although unable to identify the smaller of the two men, identified appellant as the person described as the larger of the two men.

The identification of appellant, in the context of his specification of error, requires a look at certain facts brought out at the hearing on appellant’s motion to suppress. Immediately after the robbery Ron Lopez was shown an array of twenty or thirty photographs of unidentified persons by the police. He was unable to pick out either of the perpetrators of the robbery from them. A week later he was shown a different array consisting of approximately twenty photographs of unidentified persons. Again he was unable to identify any of them as depicting any person connected with the robbery. On February 21, 1975, eleven days after the robbery, Bill Bond told Ron Lopez that he saw a television news clip of three suspects who had been arrested in connection with the robbery of another Reveo Drug Store and recognized one of the suspects as being one of the two men who robbed their store on February 9, 1975. Bond passed this information onto the police department and, as a result, a detective visited Bond and Lopez and, out of the presence of each other, separately displayed to each an array of six photographs of unidentified persons. Bond identified one of the six photographs as being a picture of the smaller of the two men who robbed the Reveo Drug Store at 3501 Broadway on February 9, 1975. However, Bond was unable to identify the larger of the two men who committed the robbery in question from the „photographs. Lopez identified one of the six photographs as depicting the larger of the two men who committed the robbery, to-wit, the appellant, but was unable to identify the smaller of the two men. The detective who presented the photographs made no physical or oral suggestions of any kind to Lopez before or during the time he studied the six photographs and ultimately identified appellant. There is nothing in the record to suggest that the six photographs were per se suggestive. Lopez, after identifying appellant from one of the six photographs, learned for the first time that three of the six photographs were pictures of the three men shown in the television news clip as suspects in the other Reveo Drug Store robbery. Lopez had not seen the television news clip. There is not one scintilla of hard evidence that Lopez knew, prior to or during his examination of the six photographs and his selection of one as the picture of appellant, that three of the six photographs were pictures of the three suspects arrested in connection with the other robbery. Even though Lopez, based on what Bond had said, might have inferred that three of the six photographs were pictures of the three suspects in the other robbery, there was no way for Lopez to know which three of the six photographs were pictures of said suspects because he had not seen the television news clip. During the hearing on the motion to suppress, Lopez was asked on cross-examination why he had picked defendant’s picture out of the six photographs displayed to him on the last occasion. He replied: “It just looked like the same man is all, that’s all I can say. The face looked exactly like him, not the clothing or anything, just the face.”

During the trial, which commenced on September 24, 1975, the state relied upon Lopez’s positive in-court identification of appellant as being one of the two black males who robbed the Reveo Drug Store on February 9,1975. The following facts gave verity to and constituted an independent basis for Lopez’s positive in-court identification of appellant. The robbery spanned a period of ten minutes. It occurred during daylight hours and there is nothing in the record to indicate that light conditions in the store were inadequate. During the course of the robbery Lopez had three face-to-face confrontations with the appellant, one when they were six or seven feet apart, another when they were two or three feet apart, and still another when they were in close proximity in the storage room at the rear of the store.

Resolution of appellant’s first specification of error lies in a principle (or test) enunciated by the Supreme Court of the United States in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968): “ . . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Emphasis added.) As noted in State v. Parker, 458 S.W.2d 241 (Mo.1970), and, as well, in many subsequent cases in this state at the appellate level, this state has acceded to and followed the principle (or test) laid down in Simmons. As carefully pointed out in Simmons, each case “must be considered on its own facts” and “evaluated in light of the totality of surrounding circumstances.”

The ultimate issue is multi-faceted. Was the pretrial photographic identification procedure “impermissibly suggestive”? If so, was it “so impermissibly suggestive” that there is a “very substantial likelihood” that the in-court identification which followed in its wake was an “irreparable misidentification”?

Frankly, this court, notwithstanding appellant’s argument, entertains serious doubts as to whether the pretrial photographic identification procedure can be legally branded as “impermissibly suggestive”. A thin inference, resting solely on Bond’s statement to Lopez that he recognized one of the robbers on a television news clip showing three suspects who had been arrested in connection with a robbery that occurred at another Reveo Drug Store, is all there is that even remotely smacks of suggestiveness. Serving to offset this attenuated inference stands undisputed evidence that Lopez did not see the television clip and did not know, until after making the identification, that photographs of the three suspects shown therein were among the six photographs presented to him.

Assuming, arguendo, that the pretrial photographic identification procedure was “suggestive”, there is an abundance of evidence that it was not “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Weighed in light of the “totality, of surrounding circumstances”, Simmons, supra, this court concludes that the positive in-court identification of appellant by Lopez during the trial was based on a definite image of appellant in Lopez’s mind, the acquisition and existence of which preceded the pretrial photographic identification which appellant argues was maculated. This conclusion is argued by the following facts: (1) Lopez had three face-to-face confrontations with appellant during the ten minute course of the robbery; (2) the confrontations were at close range, occurred during the middle of the afternoon, and were more than fleeting in nature; (3) Lopez was seemingly unsusceptible to suggestion as evidenced by the fact that he rejected some forty or fifty photographs before picking appellant’s picture from the six photographs presented to him on the last occasion; and (4) as Lopez testified on cross-examination during the pretrial hearing to suppress, he picked the photograph he identified as being that of the appellant because it “looked like” the larger of the two men who committed the robbery, the “face looked exactly like him, not the clothing or anything, just the face.”

Appellant’s remaining specification of error involves certain testimony before the jury by state’s witness Bill Bond concerning the circumstances which led to appellant’s identification. The state in its opening statement advised the jury that “Bill Bond was watching television and he saw the people on television that he though had robbed him.” With this prelude in mind, the following questions were asked Bill Bond by the state, to which he gave the following answers:

“Q. Before they came out the last time and you tentatively identified one man and positively another, you had called the police?
A. (Witness nods) There again—
Q. Just answer the question so we can proceed in an orderly fashion.
A. I’m not sure whether I called them or they called me. Had they not called me, I would have called them. I don’t remember whether they called me or I called them.
Q. What was the occasion for your calling them?
A. Well, because I seen on the news of another holdup and . . . ”

The witness’ last answer was interrupted by an objection lodged by defense counsel. The trial court sustained the objection and defense counsel moved for a mistrial. The trial court refused to declare a mistrial, whereupon defense counsel asked the trial court to instruct the jury to “disregard” witness Bond’s last answer, and the trial court so instructed the jury. The state’s attorney, outside the presence of the jury, advised the trial court that Bill Bond had been cautioned before he went on the stand to avoid any mention of another robbery in connection with what he had seen on television. Appellant apparently accepted this explanation because he does not contend that Bond’s controversial answer was elicited by design on the part of the state. In all candor, this court is somewhat perplexed as to why the state ever opened up the subject matter which eventually culminated in the objected to answer volunteered by state’s witness Bill Bond.

Appellant contends that the objected to answer of Bill Bond, when viewed in conjunction with the remark made during the state’s opening statement, reasonably inferred that appellant had been involved in a crime unrelated to the one for which he was standing trial. It is axiomatic that under the law of this state the general rule is that evidence of a separate and distinct crime other than the one for which an accused is standing trial is inadmissible. State v. Griffin, 336 S.W.2d 364 (Mo.1960); and State v. Summers, 362 S.W.2d 537 (Mo. 1962). This general rule, like many others, did not evolve without the engraftment of certain exceptions. See: State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954), and State v. Smith, 431 S.W.2d 74 (Mo. 1968). The state does not attempt to validate Bond’s answer on the basis that it falls within the perimeter of a recognized exception.

Any nexus between Bond’s answer and appellant’s involvement in another robbery is tenuous at best, because, if for no other reason, Bond consistently testified that he was unable to identify appellant as one of the two men who perpetrated the robbery on February 9, 1975, at the store where he was employed. In view of Bond’s inability to identify appellant, it seems highly doubtful that the jury drew the adverse inference urged by appellant.

If the jury did not infer that appellant had been involved in the other robbery, then it is difficult to see how Bond’s unsolicited statement could be said to have prejudiced appellant in any real sense. If the jury drew the inference advanced by appellant, then the apical issue can be framed by the following question. Was the prejudicial effect of Bond’s statement cured by the trial court’s sustention of the objection and its instruction to the jury to disregard the statement, or was the statement so heavily weighted with prejudice that nothing short of declaring a mistrial could cure it?

The declaration of a mistrial is a drastic remedy and should not be resorted to except in those extraordinary situations where prejudice cannot be removed by other means. State v. James, 347 S.W.2d 211, 224 (Mo.1961); State v. Johnson, 496 S.W.2d 852, 857-58 (Mo.1973). By its very nature a decision to grant or deny a request for a mistrial rests uniquely within the discretion of the trial court because of its superior vantage point from which to assess the pervasive effect of a prejudicial statement and whether it can be dissipated by timely and appropriate action short of declaring a mistrial. Recognizing the superior vantage point possessed by trial courts to assess prejudice and the level of action required to eradicate it, appellate courts are properly hesitant to hold that a trial court committed error in refusing to grant a mistrial and do so only when convinced that the trial court “as a matter of law” abused its discretion in refusing to do so. State v. Parker, 476 S.W.2d 513, 516 (Mo.1972); State v. Ward, 457 S.W.2d 701, 709 (Mo.1970), and State v. Smith, supra, at 83.

State v. Parker, 476 S.W.2d 513 (Mo. 1972), supra, is particularly apropos to appellant’s final specification of error. In Parker, the defendant was tried and convicted of burglary and stealing. During trial a police officer testified that when defendant was arrested “a weapon was found in the vehicle”. Another witness testified that he went to the Jackson County Jail “where the subject was being held for other charges”. Both statements were objected to and the respective objections were sustained. No request was made by defense counsel to have the jury instructed to disregard the objectionable statements. Instead, he limited the relief sought to requests for declaration of a mistrial, which in both instances were denied. On appeal defendant’s contention that the trial court committed error in failing to declare a mistrial was rejected. The court held, l.c. 516: “ . . . The remarks objected to were volunteered by the witnesses. Errors of this nature cannot always be avoided, but when they do occur it is the duty of the trial court, who has observed the incident and is in a better position than an appellate court to evaluate the prejudicial effect, if any, to determine the possibility of its removal by action short of a mistrial. In this respect the trial court necessarily must be vested with broad discretion. In the exercise of that discretion, the trial court concluded that in this case a mistrial was not required. . . . The function of an appellate court is to determine whether as a matter of law the trial court abused its discretion in refusing a mistrial. We rule that it did not.” State v. Valentine, 490 S.W.2d 290, 292 (Mo.App.1973) is in the same vein and equally persuasive.

This court concludes that Bond’s unprompted statement, even if the jury spun the nebulous inference urged by appellant, was not so indelibly prejudicial that it could not be erased from the minds of the jurors by the trial court’s instruction to them to disregard the statement.

Judgment affirmed.

All concur.

      . 390 U.S., at 384, 88 S.Ct., at 971.

      . 390 U.S., at 383, 88 S.Ct., at 970.


text:
    STATE of Missouri, Respondent, v. Clyde THOMAS, Appellant.
    No. KCD 28351.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Clyde Thomas was convicted of burglary in the second degree, Section 560.045, RSMo 1969, and sentenced to five years confinement by a jury. On this appeal Thomas does not question the sufficiency of the evidence, but contends only the fingerprint expert who testified for the State was not shown to be sufficiently qualified to express an opinion.

Richard Schwieterman testified he was employed by the Kansas City, Missouri Police Department in the identification unit. He stated he was a “latent print examiner” and his job was to take prints which had been lifted from crime scenes by evidence technicians and evaluate them and then try to compare them with other prints of known persons. He had been engaged in this activity for thirteen years, had attended FBI seminars and had studied under other experts in the field. He stated he had compared over a million fingerprints. He is a member of The International Association for Identification and the Missouri Division of that organization. He reads the FBI Bulletin, The Identification News, and the magazine published by the Institute of Applied Science in Chicago.

Schwieterman stated a comparison is examination of a print, but an identification involved matching two prints to determine if there were characteristics in both sets of prints which would follow in the same relative position. He further stated he had identified about 3900 prints. He had testified as an expert in Magistrate, Juvenile, Circuit and Federal Courts, about 75 to 100 times in the latter two.

Schwieterman stated there is no formal training in fingerprint identification, but the Kansas City Police Department requires a minimum of five years experience before a person is allowed to testify in court.

In State v. Phillips, 511 S.W.2d 841, 844[5-8] (Mo.1974) the court stated that comparison of fingerprints is a proper matter for expert testimony and that “[t]he qualification of an expert is a matter within the sound discretion of the trial court.” Schwieterman testified to thirteen years experience in comparing and identifying fingerprints, to taking seminars and reading magazines in the field, and to experience in testifying in State and Federal Courts. In view of these qualifications it cannot be said the court abused its discretion in determining Schwieterman to be qualified as an expert witness in the identification of fingerprints.

As in Phillips, Thomas does not specify what qualifications he claims Schwieter-man to be lacking. His attack seems to be directed mainly at the weight to be given Schwieterman’s testimony which was a matter for the jury as the trier of fact.

It is pointed out in State v. Harvell, 527 S.W.2d 445, 448 n.3 (Mo.App.1975) that “ ‘[t]he overwhelming majority of fingerprint experts have acquired their knowledge and experience “on the job”. There are no courses of formal study in universities or colleges leading to a degree in fingerprint identification or [in] preparing one to become a fingerprint expert.’ ”

It was clearly shown that Schwieterman possessed ample qualifications to qualify him to express an opinion on the identification of Thomas’ fingerprints found in the home which had been burglarized.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Willie MINOR, Jr., Appellant.
    No. KCD 28404.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    William G. Mays, II, Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction and sentence to four years’ imprisonment on jury verdict finding Willie Minor, Jr., guilty of escape by failing to return to a facility of the Department of Corrections after having been permitted to go at large (§ 557.351, RSMo 1975 Supp.).

In 1973, appellant was convicted of robbery in the first degree in the St. Louis Circuit Court and sentenced to six years’ imprisonment. He was imprisoned in the Department of Corrections facility. On March 15, 1974, he was transferred to the Renz Farm facility of the Department. He requested leave from that institution in order to visit his mother who was ill in St. Louis. The request was eventually approved and Minor was granted a furlough to begin November 1, 1974 at 10:00 A.M. and to end at 2:00 P.M., November 4, 1974. Before he left the farm, Minor was told by the superintendent “to be sure and return willingly * * * don’t make us look bad, please return on time.”

Minor went to St. Louis and saw his mother who was hospitalized for a cancer operation. He visited her several times. When he visited her on the morning of November 4, he told her that he was planning to go back. Because his mother was “so sick she was about ready to give up hope on living anymore,” Minor telephoned the Department of Corrections and requested an extension of his leave. He was told by the person who answered his call that only the Renz Farm Superintendent could grant him an extension. He returned to the hospital and told his mother that he could not get an extension. She requested him to return, but he said he wasn’t going back.

He remained in St. Louis and saw his mother from time to time. She got in touch with the Renz Superintendent and he came to St. Louis during the week of November 4 expecting that Minor would surrender. He went to Mrs. Minor’s residence and was given an address where Minor could be located. He went there but was informed that Minor had left 20 minutes earlier.

On February 1, 1975, a St. Louis officer who knew Minor found him in a pool hall in St. Louis and placed him under arrest. At the time of his arrest, Minor gave the name Lee and denied his identity. Minor was returned to the Department of Corrections and the charge out of which this appeal arose was filed against him.

On this appeal, two points are raised by appellant. He complains that the evidence was insufficient to support his conviction and that his motion for acquittal at the close of the evidence should have been sustained. The essence of .both allegations is that the state failed to show beyond a reasonable doubt that he willfully failed to return from his furlough.

The evidence in this case was sufficient to permit the jury to find beyond a reasonable doubt that appellant’s failure to return was willful. He was advised of the time that he was to return and specifically requested to return promptly. He sought an extension of his furlough and, with knowledge that he had not been granted an extension, decided not to return.

Appellant argues that the evidence left unanswered questions as to his mistaken belief that an extension might be granted. However, appellant’s own testimony was that the extension was not granted and he nevertheless decided not to return. He states that the state failed to prove that no extension was granted. The state’s evidence did show the duration of the furlough and the state was not required to negative any possibility of its extension. In any event, insofar as the willfulness of appellant’s failure to return was concerned, he made no assertion of a grant of an extension and did not predicate his failure to return upon a reasonable belief that an extension had been granted. Nor was the state required to show appellant could have returned or that he was not prevented from doing so. The state was not required to negative all possible explanations for appellant’s failure to return (State v. Turley, 442 S.W.2d 75, 77[2] (Mo. banc 1969)), particularly when defendant’s own testimony provided the reason for his failure to return.

Viewing the evidence favorable to the state as a whole and giving the state the benefit of all favorable inference, (State v. Strong, 484 S.W.2d 657, 661[9] (Mo.1972); State v. Holmes, 434 S.W.2d 555, 558[1] (Mo.1968); State v. Decker, 326 Mo. 946, 33 S.W.2d 958, 961[1—3] (Mo.1930)), there is no basis to complain that the evidence was insufficient to support the verdict of guilty.

Judgment affirmed.

All concur.