author: JONES, Justice.

text:
    Roger Dale CRAWLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. James T. WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 3, 1978.
    Rehearing Denied Aug. 22, 1978.

      Terrence R. Fitzgerald, Daniel T. Goy-ette, and Richard L. Receveur, Louisville, for appellant Roger Dale Crawley.
    Steven J. Kriegshaber, Louisville, for appellant James T. Williams.
    Robert F. Stephens, Atty. Gen., Rickie L. Pearson, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

In these consolidated cases Roger Dale Crawley and James T. Williams appeal from judgments of convictions imposing a prison term of 35 years each on a charge of first-degree robbery enhanced on persistent felony offender charges in conformity with a jury’s verdict. Crawley and Williams prosecute separate appeals which are consolidated for review. They assign as error the following points in which the issues and facts apply concurrently to each: (1) they were denied the right to a speedy trial; (2) the trial court failed to grant each a fair and full suppression hearing in regard to eyewitness identification; (3) the trial court erred in permitting the introduction of evidence not relevant to the robbery. Crawley assigns as additional errors the following points: (4) the trial court erred in refusing to admit affidavits as the testimony of missing witnesses; (5) the trial court erred in excluding evidence that the co-defendant, Williams, admitted commission of the robbery with a person other than Crawley; (6) the evidence failed to establish that Crawley was 18 years of age at the time of the commission of the first felony offense relied on to enhance his punishment; (7) the trial court erred in admitting in evidence an additional felony conviction that did not apply under the statute for the enhancement of punishment. Williams assigns as an additional error the following point: (8) the trial court erred by not excluding evidence obtained in an illegal search and seizure. This court has considered the facts and law applicable to issues 2, 3, 4, 7,. and 8, and find them to be without merit. As to issues 1, 5 and 6, this court deems it appropriate to discuss the relevant facts and law in some detail in order to provide guidelines for future trials.

On the evening of September 29, 1975, a Majik Food Mart on Manslick Road in the city of Louisville, was robbed by a white male who was later identified as Crawley, and a black male later identified as Williams. While Crawley paced back and forth in front of the store, Williams entered and asked Mrs. Maddox, the manager, for a package of cigarettes. When she turned around the black male pointed a pistol at her and said, “That’s right baby, this is a hold-up.” He ordered Mrs. Maddox and three other customers to lie on the floor. Mrs. Maddox testified she heard a man come into the store. He stood beside her. Although she could only see his pants, she could tell they were not the same as those worn by the black man. The two men ransacked the cash register. The black man stood on Mrs. Maddox’s back and ordered her to open the safe. She told him she had no key. At that point she heard the door open and looked up and saw the white man running toward a blue 1967 Thunderbird, which she had previously observed sitting alongside the Majik Mart. Upon hearing the car door open and the horn sound, she said, “That black son-of-a-bitch is gone.” To her chagrin, she saw him standing beside her and hastily fell to the floor again. When he finally left, Mrs. Maddox called the police and gave them a thorough description of the men and the automobile.

Based upon the information given by Mrs. Maddox the police officers, about an hour after the robbery, located the 1967 Thunderbird parked near a Convenient Food Market. A black male was sitting in the front seat of the automobile and a white male was standing beside it. They saw a shotgun on the back seat. One of the officers arrested the black male and “frisked” him. He then searched the automobile and found a .22 caliber chrome pistol under the seat where the black man sat. He also found in the glove compartment another box containing $80.63 which had been taken from the Majik Mart cash register. Another officer arrested the white male. They were both charged with carrying a concealed deadly weapon. The two suspects were taken to a police station for a line-up. Mrs. Maddox viewed two line-ups. One consisted of five white males; the other of four black males. She immediately identified Crawley and Williams as the robbers. After the line-up Williams was searched; a key identified as that to the Majik Mart, and four 10-dollar bills were found. The four 10-dollar bills were stolen from Mrs. Maddox’s billfold.

Crawley and Williams first argue they were denied the right to a speedy trial. The record reveals they were each arrested on September 29, 1975, and were indicted on January 15, 1976. The trial began on August 22, 1977. Crawley and Williams contend that the delay of 22 months from the date of their arrest until the date of trial deprived them of the right to a speedy trial in violation of the right guaranteed by the 6th and 14th Amendments of the United States Constitution, and Sec. 11 of the Kentucky Constitution. The United States Supreme Court has held that four factors must be balanced in determining whether the right to a speedy trial has been violated. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These factors are: the length of the delay, the reasons for the delay, the defendant’s assertion of the right to a speedy trial, and prejudice suffered by the defendant. This court has indicated in prior cases, most recently in McDonald v. Commonwealth, Ky., 569 S.W.2d 134 (1978), that this balancing test is not a precise determination, but turns upon the particular facts of each case. In this case the record is not clear as to reasons for the delay, although at trial the Commonwealth’s Attorney stated that part of the difficulty was in obtaining the presence of the chief prosecuting witness who had moved to Mississippi. On three occasions the case was continued on the motion of the Commonwealth. The trial court on its own motion advanced the trial date on three occasions. In their briefs it is argued that Williams was responsible for the delay engendered on April 5, 1977, when his attorney withdrew. The record does not reflect any motion for a continuance on the part of Crawley. Another reason argued by the Commonwealth on Crawley’s and Williams’ motion to dismiss was that they each had made offers of negotiations to plea bargain, thereby making it unnecessary to have Mrs. Maddox appear as a witness at trial. There is no charge by either Crawley or Williams that the Commonwealth improperly delayed the trial of the case.

The record reflects that Crawley filed a written motion to dismiss for denial of a speedy trial on February 7, 1977, some 16 months after the arrest. Williams first asserted his right to a speedy trial on June 7, 1977, some 19 months after his arrest.

Crawley and Williams both contend they were prejudiced by the delay in that the pending charges resulted in parole violations of other charges. While the record does not contain any evidence on this contention, it is clear that both Crawley and Williams were incarcerated in the penitentiary at Eddyville throughout the whole proceedings. Crawley alleges that his alibi defense was impaired by the delay because his witness, Earl Morgan, could not be located at the time of trial. Orders of attendance were issued for Morgan, who was also an inmate at Eddyville, each time the case was assigned for trial. However, there was no order issued prior to the trial date of August 22, 1977. An investigator from the Louisville Public Defender’s office testified that on August 5,1977, he had gone to Morgan’s home in Maysville, but could not locate him. It is apparent that at that time Morgan had been released from Eddyville. The record fails to show that any subpoenas were issued for Morgan’s attendance. The record is abundantly clear that Crawley failed to exercise due diligence to obtain the presence of Morgan for the August trial date. The pretrial incarceration of Crawley and Williams cannot be said to be prejudicial in light of their status as parole violators. It is also noted that Crawley and Williams both were slow to assert their right to a speedy trial. This court is of the opinion that under the particular facts of this case the delay of 22 months is not so prejudicial as to require the dismissal of the indictment. In McDonald, Supra, a three-year delay was held to be non-prejudicial.

A pretrial conference between Crawley, his lawyer David Lewis, and the Commonwealth’s Attorney was held sometime in 1976. The co-defendant Williams was brought into the conference room. He spontaneously stated that he and someone else had committed the robbery. Pointing to Crawley he said: “This was not the man with me; it was another man.” At trial, counsel for Crawley was not permitted to introduce this declaration in evidence. Crawley’s trial counsel was permitted to call David Lewis as a witness who by avowal testified concerning the proceedings at the pretrial conference. Crawley contends that the exclusion of the exculpatory evidence deprived him the constitutional right to present a defense and denied him a fair trial.

The evidence sought to be introduced was hearsay and admissible only under one of the exceptions to the hearsay rule. The applicable exception is declarations against interest. These are statements which at the time they are made are contrary to the declarant’s pecuniary or proprietary interest and are admissible if the declarant is deceased at the time of trial. Lawson, Kentucky Evidence Law Handbook, Sec. 8.40.

This jurisdiction along with others has excluded out-of-court statements against a declarant’s penal interest, that is, a statement which could subject the declarant to criminal liability. Eighty-five years ago this court held that the defendant in a homicide case was not allowed to introduce evidence that another man, dead at the time of trial, had confessed to the crime. Davis v. Commonwealth, 95 Ky. 19, 23 S.W. 585 (1893). Davis, Supra, has not been overruled.

The United States Supreme Court has held that the application of such a rule violates due process. Chambers v. Miss., 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In that case the court considered a hearsay exception in Mississippi similar to Kentucky’s hearsay exception. Mississippi allowed the introduction of declarations against pecuniary interest only. Thus, Chambers could not introduce testimony of three witnesses who were told by one McDonald that he and not Chambers had killed Officer Liberty. The Supreme Court assessed this testimony, determined it to be reliable, and reversed because Chambers had not been allowed to present evidence crucial to his defense.

Under the new Federal Rules of Evidence the exception to the hearsay rule was broadened. Rule 804(b)(3) provides:

“The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

It is noted that the final sentence of Federal Rule 804(b)(3) requires corroborating circumstances before a declaration against penal interest may be admitted. This requirement seeks to remedy fears that such testimony will be unreliable. The United States Supreme Court in Chambers, Supra, spoke of the reasons behind the exclusion of such statements:

“Exclusion, where the limitation prevails, is usually premised on the view that admissions would lead to the frequent presentation of perjured testimony to the jury. It is believed that confessions of criminal activity are often motivated by extraneous consideration and, therefore, are not as inherently reliable as statements against pecuniary or proprietary interests.”

Trustworthiness of a statement against penal interest is a prerequisite to its admissibility. In Chambers, Supra, the United States Supreme Court set out four considerations relevant to the trustworthiness of such statements: (1) the time of declaration and the party to whom made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant’s penal interest; (4) the availability of the declarant as a witness. When these considerations are applied to Williams’ statement it is clear that the necessary element of reliability is absent. The statement that Williams committed the robbery with someone other than Crawley was made sometime in 1976, several months after the commission of the robbery and several months before trial. There is nothing in the record to indicate that Williams made the statement to any other person or at any other time.

This court is of the opinion that the requirements of Federal Rule 804(b)(3) offer adequate safeguards for the exclusion of unreliable statements. This court now adopts the broader exception for declarations against interest outlined in Federal Rules of Evidence 804(b)(3), as well as the broader unavailability definition in Federal Rules of Evidence 804(a). Applying this rule to Williams’ purported exculpatory statement, it is this court’s view that Williams’ statement was properly excluded because there were no corroborating circumstances clearly indicating the trustworthiness of the statement. It is further noted that Williams was present in the court room, but due to his assertion of the privilege not to take the witness stand, he was not available for cross-examination. (The unavailability of the declarant is a prerequisite to the introduction of declarations against penal interest under Federal Rules of Evidence 804(b)(3)). All other cases in this jurisdiction expressing a view to the contrary are overruled.

Crawley’s final argument is related to his conviction as a persistent felony offender. He contends that the evidence failed to prove beyond a reasonable doubt that he was over 18 years of age at the time of one of the prior felony convictions. The persistent felony offender statute in effect at the time of the commission of the robbery of the Majik Mart in September 1975, provided:

“(2) A persistent felony offender is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having previously been convicted of two (2) or more felonies. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided:
(a) That a sentence to a term of imprisonment of one (1) year or more or a sentence to death was imposed therefor; and
(b) That the offender was over the age of eighteen (18) years at the time the offense was committed; and
(c) That the defendant was imprisoned under sentence for such conviction prior to commission of the present felony.” KRS 532.080(2).

Evidence was introduced that Crawley was convicted and sentenced on a charge of storehouse breaking on December 3, 1967. He was incarcerated on that conviction on October 15, 1968. A witness from the Bureau of Corrections testified that Crawley’s date of birth was June 10,1948. The Commonwealth contends that the chronology of dates when coupled in successive order of the testimony by the witness from the Bureau of Corrections proves to a reasonable juror, beyond a reasonable doubt, that Crawley was 18 years of age at the time the first crime was committed. This court rejects that premise. There simply was no evidence that Crawley was 18 years of age at the time he committed the offense of storehouse breaking.

Crawley, in support of his argument that the Commonwealth failed to prove he was 18 years of age when he committed the offense of storehouse breaking, cites Adams v. Commonwealth, Ky., 551 S.W.2d 561 (1977). In Adams, this court reversed a persistent felony conviction because the Commonwealth failed to prove Adams was 18 at the time the prior felony was committed. Adams stands for the proposition that every element of the persistent felony offender charge must be proved beyond a reasonable doubt.

Because Crawley was 19 years of age at the time he was convicted of storehouse breaking on December 3, 1967, it cannot be reasonably inferred that he was over 18 at the time he committed the offense. Therefore the Commonwealth failed to sustain the burden of proving every element of the offense beyond a reasonable doubt. Crawley’s age at the time the crime of storehouse breaking was committed is a distinct element which must be proven in order to satisfy the persistent felony statute. KRS 532.080(2)(a).

The judgment is reversed with respect to Crawley’s persistent felony conviction. The judgment is affirmed as to his conviction on the charge of first-degree robbery. This cause is remanded with directions that Crawley be granted a new trial on the persistent felony conviction. In the event the Commonwealth is unable to prove Crawley was 18 years of age at the time he committed the offense of storehouse breaking, this court directs that he be resen-tenced on the conviction of the principal offense of first-degree robbery.

The judgment as to Williams is affirmed.

All concur.

      . KRS 515.020 (first-degree robbery); KRS 532.080 (persistent felony offender).

      . Lewis was replaced by Attorney Richard Receveur in November, 1976.

      . Another prior felony conviction was introduced. Crawley was convicted of knowingly receiving stolen property on November 8, 1972, and was incarcerated on December 14, 1972. That crime was committed on March 10 or 11, 1972. There is no question but what Crawley was 18 at the time that offense was committed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Flora STUART and Kelly D. Thompson, Respondents.
    Supreme Court of Kentucky.
    July 3, 1978.
    Leslie G. Whitmer, Director, Kentucky Bar Ass’n, Frankfort, for complainant.
   PER CURIAM.

Stuart and Thompson are before us charged with engaging in unprofessional and unethical conduct by the Kentucky Bar Association because they mailed letters to two real estate agencies on their law office stationery which allegedly directly and personally solicited legal business. The two letters upon which this complaint is based were mailed on June 15, 1977 and June 30, 1977. The body of the letters reads as follows:

“This is to advise you that our office handles all aspects of legal work concerning real estate transactions. Our fees are as follows:
Opinion of title: 50.00-
Deed preparation: 15.00
Mortgage preparation: 15.00
We guarantee that every Opinion of Title from our office is researched by an approved attorney who is a member of the Kentucky Bar Association. We also guarantee that if there are no objections to title or encumbrances which must be resolved as to the title, that our opinion will be delivered to the lending institution within 48 hours of the date of your order.
We thank you for your time and consideration in this matter.
Sincerely yours,
Thompson & Stuart”

After a full hearing the Trial Committee of the Association determined that the letters violated Disciplinary Rule 2-103(A) of the Code of Professional Responsibility and recommended that Stuart and Thompson receive a private reprimand. The Board of Governors agreed finding that the letters constituted “in-person solicitation,” not advertisement, and recommended that Stuart and Thompson receive a public rather than a private reprimand.

This court is not persuaded that the letters in this case constitute “in-person solicitation” any more than any other form of advertising. See Ohralik v. Ohio State Bar Ass’n, - U.S.—, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). The letters contain no words generally associated with solicitation. See In re Primus, — U.S.—, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978); Kentucky State Bar Ass’n v. Donoghoe, Ky., 486 S.W.2d 703, 704-05 (1972).

None of the evils are present here which exist in the case of “in-person solicitation.” There is not even the danger of exertion of pressure or demands to encourage a person to make a speedy and possibly uninformed decision whether to seek an attorney’s assistance with a problem. Ohralik v. Ohio State Bar Ass’n, supra,—U.S. at—, 98 S.Ct. at 1919, 56 L.Ed.2d at 454. The letters merely state the prices charged for routine legal services involved in real estate transactions, the qualifications of those to perform the services and the time period in which the services would be rendered by the law firm. All three of these statements are susceptible of precise measurement and verification. See Bates v. State Bar of Arizona, 433 U.S. 350, 375-77, 383-84, 97 S.Ct. 2691, 2704-05, 2708-09, 53 L.Ed.2d 810, 830-31, 835-36 (1977).

It is now beyond dispute that advertising by attorneys is constitutionally protected, unless the Association can justify prohibition of such speech by an interest which will outweigh individual and societal interests in the commercial speech. Bates v. State Bar of Arizona, supra, 433 U.S. at 363-65, 97 S.Ct. at 2698-2700, 53 L.Ed.2d at 823-24. Because the letters are a form of advertisement and not “in-person solicitation,” they are protected, unless the Association can demonstrate sufficient justification for prohibition.

The only significant difference between the letters in this case and the form of advertisement in Bates v. State Bar of Arizona, supra, is that one was published in a newspaper and the other by mailing letters to real estate agencies. It is argued that by permitting private mailings two evils may result which do not exist in the case of newspaper advertisement and that this creates a sufficient interest to justify prohibition. First, there is greater potential for over-reaching and deceptive practices by unscrupulous attorneys. Second, enforcement of ethical standards of attorney advertising will become difficult, if not impossible for the Association.

In all advertising there is the potential for over-reaching and deceptive statements. The fact that an advertisement is in the form of a letter does not increase the likelihood of these evils occurring. Bates v. State Bar of Arizona, supra, 433 U.S. at 368-79, 97 S.Ct. at 2698-2700, 53 L.Ed.2d at 826-832; see generally Ohralik v. Ohio State Bar Ass’n, supra; In re Primus, supra. The letters in this case do not suffer from either of these evils and the written form provides a record of what was stated as protection against such abusive conduct. As to the second possible evil the prosecution of this very case demonstrates that enforcement of ethical standards of attorney advertising will not be impossible or overly difficult because it is allowed to take the form of a letter. Ample protection may be assured the public by promulgation of a rule which requires the attorney to mail a copy of such advertisements to the Association simultaneously with the mailing of one or more of them to members of the public.

In short the Association has failed to demonstrate a sufficient justification for prohibition of advertising by letter.

The complaint is dismissed at the cost of the Association.

All concur.

      . “A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer.”

      . Compare definition of advertise Black’s Law Dictionary 74 (4th ed. 1968) with solicit Id. at 1564.


author: DONNELLY, Judge.

text:
    STATE ex rel. Lawrence SPERANDIO, Relator, v. Honorable Lewis W. CLYMER, Judge, 16th Judicial Circuit, Respondent.
    No. 60411.
    Supreme Court of Missouri, En Banc.
    April 10, 1978.
    Rehearing Denied April 28, 1978.
    John C. Milholland, Harrisonville, E. J. Murphy, Butler, for relator.
    Jack G. Beamer, Jerry M. Drewry, Kansas City, for respondent.
   DONNELLY, Judge.

This is mandamus.

Relator Sperandio charges Harvey R. Michael (a Missouri doctor), Daniel L. Yancey (a Missouri doctor), Paul A. Pemberton (a Salt Lake City, Utah doctor), and others, with medical malpractice and other tortious conduct.

Sperandio consulted Doctor Michael regarding subluxation of the bones in his hip joints. Michael had heard Doctor Pember-ton speak on congenital subluxation of the hip bones, and consulted Doctor Pemberton by mail. He sent the results of his clinical examination of Sperandio together with x-ray films to Pemberton in Salt Lake City, Utah. Pemberton wrote a letter of instruction to Michael and illustrated by drawing directly upon an x-ray negative the nature, direction and extent of the osteotomy required to be made on Sperandio. On December 2,1967, Sperandio submitted to surgery performed by Michael and Yancey.

On January 3, 1975, Sperandio filed a Petition for Damages in the Circuit Court of Jackson County, Missouri. Pemberton was named a defendant. Service of process on Pemberton was requested through the Sheriff of Salt Lake City, Utah.

On February 13, 1975, Pemberton filed a Motion to Quash Process and Return of Process and to Discharge Pemberton. On March 7, 1975, the motion was sustained.

On August 3, 1977, Pemberton was again served with summons and petition in Salt Lake City, Utah.

On September 19, 1977, Respondent sustained a Motion to Dismiss Pemberton.

On October 17,1977, Sperandio petitioned this Court, in mandamus, seeking to have the order of September 19, 1977, set aside.

On November 14, 1977, our Alternative Writ of Mandamus was ordered to issue.

This case was argued and submitted on January 25, 1978.

Sperandio asserts that service of process on Pemberton in Utah was proper under the provisions of § 506.500, RSMo 1969, which reads in pertinent part as follows:

“Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any such acts:
******
“(3) The commission of a tortious act within this state;”
******

In State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889, 892 (Mo. banc 1970), this Court declared that the ultimate objective of § 506.500, supra, “was to extend the jurisdiction of the courts of this state over nonresident defendants to that extent permissible under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.”

The “extent permissible under the Due Process Clause” was articulated by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154,158, 90 L.Ed. 95 (1945), as follows:

“Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”

We believe the following “contacts” are sufficient in this case to satisfy due process under the teachings of International Shoe: (1) Missouri has an interest in securing redress for its citizen who has had no contact with Utah and who was injured in Missouri; and (2) Doctor Pemberton’s acts were performed for the purpose of causing an effect in Missouri. In our opinion, the maintenance of this suit in Missouri does not offend “ ‘traditional notions of fair play and substantial justice.’ ”

In Jones Enterprises, Inc. v. Atlas Service Corp., 442 F.2d 1136 (9th Cir. 1971), an action to recover damages for breach of contract for the collapse of an apartment building in Alaska, defendants appealed from an order denying their motions to quash service upon them. Defendants had contracted with plaintiff, a general contractor, to supply building materials and designs for the building which collapsed. When sued, defendants contended they were immune from the assertion of in per-sonam jurisdiction in Alaska because they did not have sufficient contacts with Alaska to render them amenable to service of process. One defendant, a sub-subcontractor, T. Y. Lin & Associates (“Lin”), contended it had insufficient minimum contacts with Alaska because it had no physical contacts with the state and the wrong which it allegedly committed, supplying faulty designs to the contractor, did not occur within the state. The court, however, found that minimum contacts were established despite the absence of direct contacts with the state, by the fact that Lin knew that the ultimate destination of its work product was Alaska and that any harm suffered due to defective designs would be suffered in Alaska.

In the present case, Dr. Pemberton knew that the information which he conveyed to a Missouri physician and the designs which he drew on plaintiff’s x-rays to illustrate the proposed operation would be utilized in Missouri to aid in performing an operation on a Missouri resident. Sufficient minimum contacts were thus established in this case to make Dr. Pemberton amenable to service of process.

We express no opinion as to whether Sperandio has pleaded, or can prove, a cause of action against Doctor Pemberton. However, we believe that service of process in Utah was proper under the circumstances in this case and that the order of dismissal should be set aside.

The alternative writ of mandamus is made peremptory.

MORGAN, C. J., BARDGETT, REND-LEN and SEILER, JJ., STOCKARD and HOUSER, Special Judges, concur.

HENLEY and FINCH, JJ., not sitting.


author: WASSERSTROM, Judge.

text:
    Debra LEONARD and Wanda Leonard, Appellants-Respondents, v. PIONEER FINANCE COMPANY, Respondent-Appellant.
    Nos. KCD 28957, KCD 28960 and KCD 28961.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.
    Motion for Rehearing and/or Transfer Denied July 20, 1978.

      Gene C. Morris, Pieter A. Brower, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for appellants-respondents.

      Joseph W. Amick, Kansas City, for respondent-appellant.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Plaintiff Wanda Leonard and plaintiff Debra Leonard each filed a separate lawsuit against defendant Pioneer Finance Company for damages because of Pioneer’s conduct in its efforts to collect notes signed by Debra. Those two cases were consolidated for trial. From a judgment on jury verdicts for both plaintiffs, Pioneer appeals. From a judgment for Pioneer on its counterclaim against Debra, she appeals.

The controversy arose out of the following basic facts. Debra and her husband signed a note to Pioneer in 1971 when she was 18 years old, and she and her husband signed a renewal note in 1972 when Debra was 19 years old. That indebtedness fell delinquent in August, 1973. Pioneer’s employees then began collection efforts which included unsuccessful efforts to reach Debra and her husband Darryl at their home.

Pioneer had in its records information that Darryl worked for Joseph A. Leonard. Joseph was Darryl’s uncle and was also the husband of plaintiff Wanda. Pioneer’s employees made calls to the Joseph Leonard phone number seeking to leave messages for Darryl to call the Pioneer office, because they could not reach him at his home phone. Joseph responded that Darryl did not live at that number, that he no longer worked for Joseph and Joseph asked that Pioneer’s employees leave him alone. Nevertheless, Pioneer’s employees made three further telephone calls thereafter.

On September 19, 1973, Pioneer’s trainee collection agent, James Cook, went out to make collection calls with his supervisor, John Brewer. In the course of their rounds they drove to the home of Darryl and Debra Leonard in Blue Springs, but found no one there. This constituted the last of a series of calls which had been made to the Leonard residence, and on a number of the previous occasions notes had been left for the Leonards to get in touch with Pioneer about their delinquent account. At the time of the call on September 19, the two Pioneer agents left a further note for the Leonards which read as follows: “This is the third time we have tried to reach you at home; we are not Yellow Cab Company, but feel like it. Please contact our office at 756-2020. If not, we will ruin your good credit standings.”

The Pioneer agents received information from a neighbor that Debra was working at a beauty shop and they proceeded to ascertain its name and location. After their leaving of the note at the Leonard residence, they proceeded to the beauty shop. Both entered and were greeted by Wanda Leonard, who was the proprietor and the one for whom Debra worked. Wanda was 44 years old. The two collectors asked for Mrs. Leonard, and Wanda responded that she was Mrs. Leonard. The men then told her that they were from Pioneer and wanted to know when she was going to pay her bill. Wanda denied owing any money. Thereupon the men asked about her address and said they had been to her house several times and “you must be trying to duck us, we never get any response.” They asked whether she lived at 517 Northeast Third, to which Wanda answered in the negative. They then asked whether her husband’s name was Darryl, and she responded “No, my husband’s name is Joe.” Upon receiving that information, according to Wanda’s testimony, “They sort of looked at each other” and started to leave. Wanda further testified that as they started out the door, Brewer said “We will just file suit.”

Wanda then called her son and after getting him on the phone, looked out and saw the two Pioneer collectors still there. She beckoned them to come in and directed Brewer to the telephone where he was engaged in conversation by Wanda’s son. At that same time, Cook asked Wanda whether Debra Leonard worked in the beauty shop, to which Wanda answered in the affirmative; but when Cook asked for permission to speak to Debra, Wanda refused. When Brewer finished the telephone conversation, both men left. They both got in their automobile which was in a parking lot close to the entrance of the beauty shop, where they waited to talk to Debra when she came out at the noon hour. When Wanda observed this, she called the police, who came to the parking lot and asked the Pioneer collectors to leave, which they did.

Wanda testified that this episode upset her and made her nervous. She took tranquilizers for two or three days and returned to normal within a week. Debra testified that as a result of the occurrence on September 19, she was very upset, cried a good deal and did not return to normal for approximately two or three months.

Wanda submitted her claim to the jury on the theory of outrageous conduct. Debra submitted to the jury a claim based on outrageous conduct and also a separate claim for invasion of privacy. The jury awarded Wanda actual damages of $2,000 and punitive damages of $8,000. It awarded Debra actual damages of $1,000 and punitive damages of $1,500 for outrageous conduct and $500 actual damages for invasion of privacy. The trial court, however, set aside the award to Debra for invasion of privacy. Pioneer’s counterclaim against Debra for the unpaid balance on the note indebtedness was tried to the court and resulted in a judgment in favor of Pioneer for $1,262.00.

On this appeal, Pioneer contests the judgment in favor of Wanda on the grounds that: (1) her claim for outrageous conduct was beyond her pleadings; and (2) that her evidence did not support a finding of outrageous conduct. It contests the judgment in favor of Debra on the ground of insufficiency of the evidence to show outrageous conduct. For their part, both Wanda and Debra challenge Pioneer’s right to maintain this appeal on the ground that Pioneer made a payment in partial satisfaction of the two judgments and is therefore es-topped to deny the judgments. Debra further contends on her separate appeal that she had no liability on the note indebtedness on the ground of infancy.

I.

Wanda’s Right to Recover

The first count of Wanda’s petition set forth classic allegations for slander, while her second count contained classic allegations of trespass to real estate. Pioneer argues that Wanda should not have been permitted to depart from those theories and submit to the jury on an unpleaded cause of action for outrageous conduct. That issue need not be resolved in view of our determination that Wanda’s evidence was insufficient to sustain a verdict on the theory ultimately chosen by her for submission, namely outrageous conduct.

Missouri does recognize a cause of action for outrageous conduct as defined by Section 46 of the Restatement (Second) of Torts. Pretsky v. Southwestern Bell Telephone Co., 396 S.W.2d 566 (Mo.1965); Warrem v. Parrish, 436 S.W.2d 670 (Mo.1969); Smith v. Standard Oil, Nos. 38802 and 38803, 567 S.W.2d 412, St. Louis District, Missouri Court of Appeals, decided May 2, 1978. The elements of this action are that the defendant must have by extreme and outrageous conduct intentionally or recklessly caused severe emotional distress to the plaintiff from which bodily harm results. This doctrine has found extensive expression in cases in which collection agencies have engaged in harsh and oppressive collection methods. The wide spread existence of abusive debt collection practices has been the subject of Congressional legislative findings in Fair Debt Collection Practices Act, 15 U.S.C.A., Section 1692. The right to recover damages in appropriate cases of this character is well recognized. Clark v. Associated Retail Credit Men, 70 App.D.C. 183,105 F.2d 62 (1939); Barnett v. Collection Service Co., 214 Iowa 1303, 242 N.W. 25 (1932); Moorhead v. J. C. Penney Co., Inc., 555 S.W.2d 713 (Tenn.1977); 38 Am.Jur.2d Fright, Shock, Etc., See. 44, p. 57; Annotation, Recovery For Emotional Distress Or Its Physical Consequences Caused By Attempts To Collect Debt Owed By Third Party, 46 A.L.R.2d 772. This right of recovery of damages for extreme cases of improper collection methods has also been recognized by the Missouri courts. Liberty Loan Corporation of Antioch v. Brown, 493 S.W.2d 664 (Mo.App.1973). See also Zimmerman v. Associates Discount Corp., 444 S.W.2d 396 (Mo. banc 1969) and Biederman’s of Springfield, Inc. v. Wright, 322 S.W.2d 892 (Mo.1959).

Nevertheless, some leeway must be accorded to creditors to exercise legitimate efforts to collect debts due to them. As stated in Dawson v. Associates Financial Serv. Co. of Kan., Inc., 215 Kan. 814, 529 P.2d 104, l.c. 110 (1974):

“When one accepts credit, the debtor impliedly consents for the creditor to take reasonable steps to pursue payment even though it may result in actual, though not actionable, invasion of privacy. * * In the debtor-creditor situation the right of a debtor to privacy is subject to the right of a creditor to take reasonable steps to collect the debt. * * *.
“In this area of the developing law, the business community must be given some latitude to pursue reasonable methods of collecting debts even though such methods often might result in some inconvenience or embarrassment to the debtor.
* * * Debtors cannot.object to some inconvenience in connection with their creditor’s efforts to collect a debt. It has been held that debtors’ tender sensibilities are protected only from oppressive, outrageous conduct. * *

See also Public Finance Corp. v. Davis, 66 Ill.2d 85, 4 Ill.Dec. 652, 360 N.E.2d 765 (1977). In short, there are interests on the creditor’s side as well as that of the debtor in this situation, both of which are entitled to recognition and protection. Greenfield, “Coercive Collection Tactics — An Analysis of the Interests and the Remedies,” 1972 Wash. L.Q. 1.

It is necessary therefore to examine the particular facts here to ascertain whether the actions of the Pioneer collection agents were so extreme as to give rise to a cause of action on the part of Wanda. First to be noticed is the matter of the telephone calls made to Wanda’s home and which were taken by her husband Joseph. The number of those calls as described by Joseph, particularly after he requested that they cease, are subject to criticism. However, on the other side of the equation are a number of factors. First of all, those calls were made for a legitimate purpose in order to get in touch with the debtors, Darryl and Debra Leonard, after efforts to reach them at their own home and at their own telephone number had proved unsuccessful. Further, the calls were made to the telephone given by Darryl as being that of his employer. Moreover, the calls by the Pioneer agents were not abusive nor slanderous, but merely sought to leave a message for the debtors to call the Pioneer office. It is to be particularly noted that none of these telephone calls were directed to Wanda and no Pioneer agent ever asked to speak to her or sought information about her. Still further, Wanda testified that she did not answer the telephone on any of these calls and that she was not even aware of them. Most telling of all, no complaint with respect to those telephone calls appears in her pleading nor does she complain of them in her testimony.

All of Wanda’s allegations and all of her testimony focuses on the events which occurred at her beauty shop on the morning of September 19, 1973. Looking directly at those events, it is perfectly apparent that the two Pioneer collectors never had any intention of charging Wanda herself with any debt delinquency or any other personal wrongdoing. The adverse comments made to her occurred solely by reason of misiden-tification which came about because Wanda and Debra share the same last name. After only a very brief conversation it became obvious to the participants and everyone in the beauty shop that a mistake of identification had occurred. Thus, Wanda herself admitted that she quickly realized that the two men were looking for Mrs. Darryl Leonard. Bonnie Saye, one of the beauty operators working in the shop at the time, likewise realized that it was a case of mistaken identification and she testified “It didn’t take much to figure it out,” and that “it was not Wanda who was delinquent in her bills.” Similarly, another of the operators, Sandra Guthrie determined in her own mind that it was not Wanda who owed money to Pioneer when she heard the Blue Springs address mentioned “because I know Mrs. Leonard [plaintiff Wanda Leonard] doesn’t live in Blue Springs.”

Cook and Brewer themselves realized their error very quickly and it could not have been more than a few minutes before they left the beauty shop. Wanda talks of them as speaking in a loud tone of voice and being rude, and Saye described their behavior as “very loud, very rude, very unmannerly, very businesslike,” and Guthrie characterized their attitude as arrogant, rude and not businesslike. Nevertheless, the language and conduct of Cook and Brewer during the short time they were in the shop hardly rose to the quality of being abusive.

The men returned to the shop only when beckoned to do so by Wanda herself. By that time they had figured out that there must be two Mrs. Leonards and in the second conversation with Wanda, Cook did ask for Mrs. Debra Leonard and whether he could speak with her. Upon a rejection of this request, the two men left the beauty shop without any further incident. The fact that they continued to wait outside in the hope of being able to finally speak with their elusive debtor hardly rises to the level of unreasonable or oppressive conduct.

Under all the facts of this case, it cannot be said that the conduct toward Wanda was so outrageous as to give rise to a cause of action for damages. As Section 46 of the Restatement (Second) at p. 73 states: “The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt.” Similarly, Professor Magruder states in his much quoted article “Mental and Emotional Disturbance In The Law of Torts,” 49 Harvard L.Rev. 1033, l.c. 1035: “Quite apart from the question how far peace of mind is a good thing in itself, it would be quixotic indeed for the law to attempt a general securing of it. Against a large part of the frictions and irritations and clashing of temperaments incident to participation in a community life, a certain toughening of the mental hide is a better protection than the law could ever be.”

Moreover, a cause of action arises only when the plaintiff has been caused severe emotional distress. Section 46 j. of the Restatement (Second) at p. 77 states:

“Complete emotional tranquillity is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.”

In this connection, it is to be noted that Wanda complained of no loss of working time, that she required only tranquilizers for merely two or three days and that she was back to normal in a week. This scarcely adds up to the type of severe emotional distress required to give a cause of action.

Missouri cases have emphasized that to have a cause of action on this theory, “the plaintiff must show that defendant’s conduct was extreme, outrageous, atrocious, utterly intolerable, and beyond all possible bounds of decency.” Watson v. Franklin Finance, 540 S.W.2d 186, 189 (Mo.App., 1976); Kuehner v. Denny Loan Corporation, 518 S.W.2d 94, 96 (Mo.App.1975). Although such conduct may have existed in Watson v. Franklin Finance, supra, and in Zimmerman v. Associates Discount Corp., supra, and was found to exist in Liberty Loan Corporation of Antioch v. Brown, supra, a like characterization cannot be given to Pioneer’s conduct in this case. Rather, Pioneer’s conduct here is more akin to the conduct found to be non-actionable in Smith v. Standard Oil, supra, and in Dotson v. McLaughlin, 216 Kan. 201, 531 P.2d 1 (1975) and Public Finance Corp. v. Davis, 36 Ill. App.3d 99, 343 N.E.2d 226 (1976).

II.

Debra’s Right to Recover

Most of what has already been said with respect to Wanda’s claim applies likewise to Debra’s claim. The only additional fact to be considered in connection with Debra’s claim is the factor of the note which was left at her home by the two Pioneer collectors.

That note was indeed abrupt and threatening. Cook, who is now a collection supervisor, admitted in his testimony that this note constituted an improper tactic with poorly chosen wording, and he further admitted that the note in question was intended to cause concern and to prod Darryl and Debra to responsive action. However the doctrine of outrageous conduct does not rule out a right on the part of the creditor to cause some worry and concern to his debtor in order to bring about payment of the debt. Clark v. Associated Retail Credit Men, supra 105 F.2d at l.c. 66. The note in question, although not free from objection, is not so extreme as to rise to the caliber of outrage.

III.

Payment on the Judgment as Foreclosing Appeal

The partial satisfaction of the judgment occurred by reason of the following unusual facts. Pioneer was insured by Foremost Insurance Company, who furnished a defense on behalf of Pioneer in the Circuit Court through Mr. Robert S. McKenzie. On July 22,1976, ten days after the court overruled defendant’s motion for new trial, an entry of appearance was made on behalf of Pioneer by new lawyers, Rogers, Field, Gentry, Benjamin & Robertson. On the same day, Mr. Gene Morris of the newly appearing law firm filed notice of appeal in both of the pending cases in which judgment had been entered against Pioneer. Both of those appeals are endorsed by the circuit clerk to show that formal notice of the appeal was being given not only to the attorneys for the plaintiffs, but also to Mr. McKenzie. Thereafter, on October 11, application was made for additional time to file transcript on appeal and that time was extended to December 20, 1976.

On October 21, 1976, while the transcript was in preparation, one of the attorneys for the plaintiffs and Mr. McKenzie appeared in the office of the court administrator. Mr. Amick, on behalf of Wanda, acknowledged satisfaction of the judgment for compensatory damages only in the amount of $2,000, plus interest and costs, and he acknowledged similar partial satisfaction on behalf of Debra for $1,000 compensatory damages, plus interest and costs. Both of these satisfactions were witnessed by “R. S. McKenzie, Attorney for Defendant.” However, on December 3,1976, the parties filed a stipulation in the circuit court that the consideration for those partial satisfactions was furnished by Foremost Insurance Company and was entered of record by Mr. McKenzie “counsel retained by Foremost Insurance Company to defend Pioneer Finance Company in accordance with the policy of insurance issued by Foremost Insurance Company to Pioneer Finance Company.”

Under Missouri law, a defendant who makes payment on a judgment against him is barred from appealing from that judgment only if the payment was made by him voluntarily. City of Versailles v. Ross, 208 S.W. 454 (Mo. bane 1919); Berry v. Equitable Fire & Marine Ins. Co., 317 Mo. 1119, 298 S.W. 63 (1927); Plogstart v. Rothenbucher, 37 Mo. 452 (1866); Ryan v. Engelke, 285 S.W.2d 6 (Mo.App.1955); Lumaghi v. Abt, 126 Mo.App. 221, 103 S.W. 104 (1907). Respondents here contend that the partial satisfactions entered on October 21, 1976, were voluntarily paid on the part of Pioneer. However, an evaluation of the facts of the matter show that this simply was not true.

Pioneer and its insurer Foremost proceeded along harmoniously in tandem until the conclusion of the proceedings in the trial court. At that point, their interests and desires sharply diverged. While the record does not spell out the reason for the divergence, that reason is not hard to guess. The Foremost policy probably contained provisions which could be read as not providing coverage for punitive damages. See Crull v. Gleb, 382 S.W.2d 17, 23 (Mo.App.1964); cf. Colson v. Lloyd’s of London, 435 S.W .2d 42, 46 (Mo.App.1968). It is to be noted that the punitive damages awarded in this case aggregated $9,500, constituting the largest part of the judgment. In any event, it is obvious that Pioneer desired to appeal, while Foremost did not desire to do so.

Accordingly, Pioneer proceeded to retain its own law firm who did file notice of appeal in each of the cases. Significantly, Pioneer’s new lawyers treated McKenzie, who had tried the case on behalf of Pioneer, as an adversary rather than as a colleague, for they served him with notice of appeal just as they did the lawyer representing the two judgment creditors.

Although McKenzie did not formally withdraw from the case on behalf of Pioneer when Pioneer’s new lawyers entered their appearance, from that point forward McKenzie was representing the separate interest of Foremost, not Pioneer. When he appeared in the clerk’s office to make partial satisfaction of the judgments on October 21, 1976, he made that payment with money furnished by Foremost and his act of payment was obviously on behalf of Foremost to satisfy the obligation of the latter under its insurance policy. There is no evidence that Pioneer or its new lawyers were even aware that the payments in question were being made, much less that Pioneer consented thereto. Under these circumstances it cannot be said that the partial satisfactions were voluntarily made by Pioneer. Union County Board of Review v. Hotel Investment Co., 250 Iowa 59, 92 N.W.2d 397 (1958); Anderson v. New Orleans Ry. & Light Co., 133 La. 896, 63 So. 395 (1913); Freeman v. Wintroath Pumps, 13 Ariz.App. 182, 475 P.2d 274 (1971); Diamond v. Grow, 243 Cal.App.2d 396, 52 Cal. Rptr. 265 (1966); Annotation, “Defeated party’s payment or satisfaction of, or other compliance with, civil judgment as barring his right to appeal,” 39 A.L.R.2d 153, Sec. 2, p. 156.

IV.

Debra’s Minority as a Defense to the Notes

At the time Debra signed the original note to Pioneer in 1971, she was 18 years old and when she signed the renewal note in 1972, she was still only 19 years old. Under the law as it existed at that time, no suit could have been maintained against her on either note because Section 431.060 RSMo. 1969 fixed the minimum age of liability at 21 years. Although that age was reduced to age 18 by the 1974 amendment to that statutory section, and the amendment was in effect at the time this case was tried, no issue has been raised by the parties herein with respect to the possible retroactive effect of the 1974 amendment. We proceed to discuss this issue on the assumption that the 1974 amendment is not applicable and that Debra is entitled to the protection of Section 431.060 as it existed at the time these notes were signed by her.

Debra became 21 years of age on May 10, 1973. She therefore was already 21 years of age at the time of the events heretofore described which occurred at the beauty shop on September 19,1973. Shortly after those events, on October 6,1973, Debra wrote and mailed to Pioneer a check to apply on the delinquency under the notes. Pioneer relies upon that payment as constituting a ratification of the indebtedness by Debra, effective to make her liable under Section 431.-060(2).

Debra argues that the payment in question does not constitute an affirmance of the contract, because: (1) she had had no earnings and had made no deposits to the checking account, all the deposits having been made by her husband Darryl, and therefore the account did not represent her funds; and (2) the check to Pioneer was written at the direction of Darryl and therefore did not constitute a voluntary recognition of the debt by Debra. This argument rests upon a mistaken concept of the nature of a joint account between husband and wife, in which all of the deposits have been made by the husband. Once the account is established in joint names, the account is presumed to be held in an estate by the entirety whether the husband or the wife or both furnished the monies that went into the account. Fulton v. Fulton, 528 S.W.2d 146, 157[28] (Mo.App.1975). Furthermore, the issues with respect to the counterclaim were tried to the court, who was privileged to disbelieve Debra’s testimony that she wrote the check in question solely at the direction of her husband. The trial court cannot be held in error for having held that Debra ratified the indebtedness after reaching the majority and therefore is liable for the delinquent balance due.

The judgment is reversed to the extent that it renders judgments in favor of Wanda and in favor of Debra against Pioneer. The judgment is affirmed insofar as it renders judgment in favor of Pioneer on its counterclaim against Debra.

All concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Richard C. MURRAY, Appellant.
    No. 39536.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 5, 1978.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Robert S. Adler, Asst. Pros. Atty., Clayton, for respondent.
    Todt, Hammer & Poscover, Susan M. Hammer, Charles P. Todt, Clayton, for appellant.
   CLEMENS, Presiding Judge.

Defendant Richard C. Murray was charged with careless and imprudent driving by improperly passing and by following too closely. The court found him guilty of following more closely than was reasonably safe and prudent. He has appealed.

Defendant first contends he was found guilty of an offense which had not been charged. He argues that the offense of following too closely is not a lesser included offense of careless and imprudent driving.

The state’s evidence was that Dale Ponce was driving on Clarkson Road in St. Louis County. He had passed an intersecting highway when he was approached from behind by defendant’s van which came to within six feet of his car. Defendant continued to follow Ponce at close distances for three miles.

Defendant testified he approached and followed Ponce’s automobile for nearly four

miles. Four times he attempted to pass the Ponce vehicle but was unable to complete a pass.

Defendant was charged by information which in pertinent part alleged “. the defendant did wilfully, unlawfully drive, operate and run upon a public highway . . . in a manner not careful and prudent, to-wit: by reason of improper passing and following too close . . .

The general statute, § 304.010(1), states that “[e]very person operating a motor vehicle on the highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.” The specific statute, § 304.017, is within a segment of laws referred to as “Rules of the Road.” It provides: “The driver of a vehicle . shall not follow another vehicle more closely than is reasonably safe and prudent

Defendant argues that he was convicted of an offense not charged. This argument was presented and rejected in State v. Richards, 429 S.W.2d 351[2-3] (Mo.App.1968). There, defendant was convicted of careless and imprudent driving by failing to yield the right-of-way. After finding the information properly charged defendant, the court noted that failure to yield the right-of-way was both a separate violation of the law and also descriptive of the manner in which defendant drove imprudently. The court cited § 556.230, RSMo., providing that a defendant may be acquitted of an offense as charged and yet convicted of a charge necessarily included in the one charged against him. The court thus held failure to yield the right-of-way was a lesser included offense of careless and imprudent driving. We hold here that following more closely than is reasonably safe and prudent is a lesser included offense of careless and imprudent driving.

The sole case relied on by defendant, State v. Todd, 477 S.W.2d 725 (Mo.App.1972), does not support his contention. There, defendant was convicted of careless and imprudent driving by making more than one circle at an intersection. He challenged the sufficiency of the information to inform him of the nature of the charge and the sufficiency of the evidence to support the conviction. In reversing, the court held the evidence failed to show defendant’s driving was careless and imprudent. Applied to the present case, Todd simply holds that defendant could not have been found guilty of careless and imprudent driving absent testimony of the circumstances surrounding his act of following too closely. Since defendant here was not convicted of careless and imprudent driving, Todd is inapplicable.

Defendant’s second point that the evidence was insufficient to support his conviction is without merit. The testimony set forth above supports defendant’s conviction for following more closely than was reasonably safe and prudent.

Though defendant does not specifically attack the sufficiency of the information to support a conviction for following more closely than was reasonably safe and prudent, it is pertinent to note that “[i]t is a general rule of criminal procedure that if one is indicted under one section of a statute, and the evidence shows that he is not guilty of a violation of that section, but is guilty of violation of another section, he may be convicted of a violation under the section of which the evidence shows him guilty, provided the indictment [or information] is broad enough to include the offense within its allegation.” State v. Hamill, 127 Mo.App. 661,106 S.W. 1103[2] (1908); Richards, supra. The information here was broad enough to include the offense of following too closely.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald Patrick SHIPMAN, Defendant-Appellant.
    No. 10799.
    Missouri Court of Appeals, Springfield District.
    July 13, 1978.

      John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Tried as a second offender and found guilty by a jury of attempted burglary (Count I) and possession of burglary tools (Count II), defendant was court-sentenced to concurrent prison terms of five years on Count I and ten years on Count II.

Near 2:30 a.m. on April 16, 1977, a Hor-nersville policeman found and arrested 23-year-old defendant as he was prying on the alley door of a grocery store. Defendant, a self-proclaimed “drug addict,” admitted the crime but testified he thought he was trying to get into the next-door drugstore “to steal drugs.”

Defendant’s mother, a registered nurse, testified, in substance: When defendant was in high school he was “a bright young man” with “a relatively high I.Q.” Defendant “related well to his peers, got along well with his brothers and sisters and was relatively obedient to his parents.” However, when defendant was in the army in 1972 his “demeanor” changed. He went AWOL, looked “rather dirty . . . was nervous [and] very unresponsive to his parents.” Subsequent to receiving an undesirable discharge from the army, defendant’s mother discovered he was using “drugs or narcotics.” He could not keep a job, was convicted of a drug-related check charge and spent about 18 months in the penitentiary. Before going to prison, defendant would at times be “elusive and articulate. Other times he would be withdrawn and to himself, and he would maybe sit down and nod off to sleep and when I would try to awaken him, he would shrug me off, When I tried to discuss this with [him] he would be very abusive with me.” Defendant’s condition was “worse” after he left the penitentiary and this continued up until three days before the crimes were committed which was the last time defendant’s mother saw him prior to April 16, 1977.

The core of the appeal concerns three questions asked of defendant’s mother after counsel had elicited from her on direct examination the foregoing background information. Sustention of the state’s objection to each question and the refusal of defendant’s offers thereto, constitute the principal claims of trial court errors by defendant. The questions were: (1) “ . . . based upon the association that you had with your own son and the observations that you have described over some five year period, do you have an opinion not only as a qualified nurse but as a mother as to whether on April 16th of ’77, when he committed these acts, that he was of sound mind?” (2) “Do you have an opinion, based upon your observations and the experience you had with [defendant] over these periods of years, both as his mother and as a nurse, whether on April 16, 1977, in your lay opinion, he could be responsible for his acts?” (3) “ . . .do you have any opinion, based upon the things we’ve gone through as to whether [defendant], on April 16th, knew right from wrong?”

. Albeit § 552.010 is entitled “Definition of mental disease or defect,” it does not, in fact, define the terms more than to state that “ ‘mental disease or defect’ include congenital and traumatic mental conditions as well as disease.” Also without specificity, MAI-CR 2.32 instructs that “The phrase ‘mental disease or defect’, . . . , means any mental abnormality, regardless of its medical label, origin or source.” Without much more than embraced in the direct definition of terms, § 552.010 and MAI-CR 2.32 additionally refine and charge that the terms “ ‘mental disease or defect’ do not include . . . drug abuse without psychosis.” Thus, while the statute seemingly adopts a liberalized view of mental illness (See, “An Analysis of the Law,” Richardson, Reardon and Simeone, Vol. 19 No. 12, Journal of the Missouri Bar, p. 677 etc.), it retains the pre-statute conservatism when dealing with drug abuse because it makes psychosis the determinative factor in deciding whether drug abuse is a defense vel non. Boyer v. State, 527 S.W.2d 432, 437[8] (Mo.App.1975).

An acute or temporary state of drug intoxication is not the equivalent of a drug addiction or abuse which is chronic. Cf. State v. Street, 498 S.W.2d 523, 524[2, 3] (Mo.1973). But although the condition suffered be chronic, it does not rise to a recognizable defense under the law unless it has resulted in psychosis. Consequently, the basic issue in this case concerns defendant’s legal responsibility for his undisputed criminal act, and, assuming submissibility of the issue, the matter which the jury would have had to determine was whether the defendant, at the time of the crime and as the result of drug-induced psychosis, did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law. § 552.030; MAI-CR 2.33; Franklin v. State, 455 S.W.2d 479, 484[5] (Mo.1970); Boyer v. State, supra, 527 S.W.2d at 436[3].

“Psychosis” and “insanity” are synonymous (Webster’s Third New International Dictionary of the English Language, Unabridged, pp. 1168 and 1833; Webster’s New World Dictionary of the American Language, Col. ed., pp. 755 and 1176; 73 C.J.S. Psychosis, p. 274), and “insanity” is to be equated to the incapacity of distinguishing right from wrong. State v. Crayton, 354 S.W.2d 834, 836 (Mo.1962); 44 C.J.S. Insane Persons § 2(2), p. II. The right-wrong insanity test attributed to M’Naghten Case, 1 C. & K. 130, 10 CL. & F. 200, 8 Eng.Rep. 718 (1843), has been applied to defenses of drug addiction in like manner as applied to insanity resulting from other causes. State v. Crayton, supra; 73 A.L. R.3d 16, Drug Addiction as Defense, § 13, p. 71 etc. While it must be recognized that drug addiction without psychosis is not a defense [§ 552.010; United States v. Freeman, 357 F.2d 606, 625[8-11] (2d Cir. 1966)], a mental disease or defect which results in insanity or the inability to distinguish right from wrong is still a defense although the disease or defect had its origin and was nurtured into legal irresponsibility through drug abuse or addiction. Stated differently: If a psychosis exists by reason of defendant’s inability to tell right from wrong or inability to know or appreciate the nature, quality or wrongfulness of his conduct or incapacity to conform his conduct to the requirements of law (§ 552.030), how or why the mental disease or defect arose should be of no moment. See, State v. Morris, 263 Mo. 339, 348, 172 S.W. 603, 605[2] (1915); State v. Porter, 213 Mo. 43, 57, 111 S.W. 529, 531-532,127 Am.St.R. 589 (1908); State v. Riley, 100 Mo. 493, 499, 13 S.W. 1063, 1064 (1890); 21 Am.Jur.2d, Criminal Law, § 43, p. 128.

While we eschew the unnecessary chore in this case of deciding the propriety of counsel’s first two questions to defendant’s mother seeking her opinion as to whether defendant “was of sound mind” or “could be responsible for his acts,” there is no disputing that a lay witness, employing the M’Naghten right-wrong test, may express an opinion as to the insanity of a human being provided he first testifies as to the unusual, abnormal or bizarre conduct observed so that it may be determined whether the abnormalities shown justify the opinion. State v. Edmonds, 468 S.W.2d 685, 688[8] (Mo.App.1971); United States v. Milne, 487 F.2d 1232,1235[9] (5th Cir. 1973); VII Wigmore on Evidence, 3rd ed., § 1938, p. 36; 31 Am.Jur.2d, Expert and Opinion Evidence, § 88, pp. 604-606. “It is generally conceded that no helpful rule can be formulated declaring what minimum knowledge will qualify a witness to express an opinion on the insanity of a person; and that the determination of that question in each case must be confided largely to the discretion of the trial court, with which appellate courts do not interfere unless the ruling was clearly erroneous. ‘The truth is that the test should be left in the hands of the trial judge. Neither its exact phrasing nor its application in a given instance, should be made to occupy the time of the highest Courts.’ ” State v. Jackson, 346 Mo. 474, 481, 142 S.W.2d 45, 49[5, 6] (1940); 3 Wigmore on Evidence, Chadbourn Revision, § 689(2), p. 12.

The testimony of defendant’s mother which preceded the questions seeking her opinions, evidenced, at most, a recasting of defendant’s unconventional conduct when he was under the influence of drugs. It is difficult to comprehend how such an accounting would warrant a lay conclusion that defendant’s drug abuse had resulted in psychosis or in the inability to distinguish right from wrong. Ergo, we conclude the trial court did not abuse its discretion in excluding the mother’s opinion testimony. Moreover, if counsel, because the mother was a nurse, was endeavoring to elicit her opinions as an expert, rather than as a nonexpert, we perceive no abuse of discretion on the part of the court. The mother’s training and experience in dealing with mental diseases were admittedly limited and she did not lay claim to any expertise in diagnosing or determining mental capacity for the purpose of criminal responsibility. State v. Williams, 515 S.W.2d 463, 466[3 and 4] (Mo.1974).

To augment the foregoing, there is another reason why we may not short the trial court for refusing to permit the defendant’s mother to express her at-time-of-trial opinions. A lay witness may give an opinion regarding the sanity or insanity of a defendant if it be an opinion formed at the time .the witness observed the facts which induced the opinion. “It is the impression made upon his mind at the time that is important. An opinion conceived at a later date is not the impression received at the time, from facts immediately observed then, but from later and riper knowledge. To say that a lay witness may afterwards, on mature reflection, possibly with expert advice as to the matter, and an analysis of the facts as he has considered them from later experience, express an opinion, puts him in the class of expert instead of nonexpert witnesses.” State v. Douglas, 312 Mo. 373, 399-400, 278 S.W. 1016, 1024[14] (1925). “The rule seems to be well established that a nonexpert witness may delineate his observation of an accused, his attitude, both mental and physical, as compared to his previous attitude, etc., and draw his general conclusion or opinion therefrom, but nowhere have we been able to find any opinion that would allow such nonexpert to say what such opinion would be at a future time such as at the commission of the offense, if such be at a different time from his observation. To allow such an opinion would invade the realm of experts who, from their knowledge, study, and long experience, could therefrom fix a prognosis of such diseased condition of the mind and prophesy its future probable outcome.” Ross v. State, 153 Tex.Cr.R. 312, 220 S.W.2d 137, 147[16] (1948), rehearing denied (1949); Fuller v. State, 423 S.W.2d 924, 929[14] (Tex.Cr.App. 1968).

Another point on appeal relied on by defendant is that the trial court erred in failing to give certain instructions on the defense of mental disease or defect excluding responsibility. However, § 552.030(7) provides that persons are presumed to be free of such mental disease or defect and that determination of that issue is one for the jury only upon the introduction of substantial evidence of lack of such responsibility. State v. Vansandts, 540 S.W.2d 192, 205[20] (Mo.App.1976). As we have held that the trial court did not err in excluding the proffered opinion testimony of defendant’s mother, there was no proof of the purported defense and, hence, no requirement that instructions be submitted on the subject. State v. Bacon, 501 S.W.2d 499, 501[2] (Mo.App.1973).

A third point relied on concerns the amended information. As initially filed, the pleading commenced with an averment of defendant’s prior felony conviction. This recitation, made in conformity with § 556.-280, terminated with a semicolon and was followed by allegations which charged defendant with attempted burglary. Following this charge, which ended without punctuation, appeared “Count II” and recitations amounting to a charge of unlawful possession of burglary tools. Upon permitting the filing of the amended information, the court also allowed the insertion of “Count I” following the semicolon which ended the allegations relative to defendant’s prior felony conviction. Defendant says the trial court erred in sentencing defendant as a second offender on each charge for two reasons: First, before the insertion of “Count I”, the information charged defendant under the second offender statute only as to the attempted burglary charge. Second, the insertion of “Count I” served to render the habitual criminal allegations inapplicable to either count of the amended information.

McCormick v. State is thrice reported in 256 Ind. 78, 267 N.E.2d 78 (1971); 262 Ind. 303, 315 N.E.2d 360 (1974); and 262 Ind. 303, 317 N.E.2d 428 (1974). A combined reading of these opinions discloses that defendant was found guilty of rape as charged under Count I, and of assault and battery with intent to gratify sexual desires, and as being an habitual criminal as charged under Count II. In 315 N.E.2d 360, involving defendant’s petition for postcon-viction relief, the state conceded and the court found it was error for defendant to have been convicted of assault and battery as charged in Count II because it was a lesser included offense in the charge of rape. Upon defendant’s petition for rehearing (317 N.E.2d 428), defendant contended that as the habitual criminal charge was coupled with the assault and battery charge under Count II, and as the assault and battery conviction had been vacated, it was improper to sentence him as an habitual criminal on the rape charge of which he had been convicted. The Supreme Court of Indiana rejected this contention as we likewise reject defendant’s similar contention on this appeal.

An amended information which simply invokes the second offender act without changing the originally charged offense or offenses, does not serve to charge offenses different from those charged in the original information. State v. Lock-hart, 501 S.W.2d 163, 165 (Mo.1973). The second offender act does not work in terms of a prior conviction being joined or coupled with new charges. Our statute, § 556.280, provides for an inquiry by the trial court out of the hearing of the jury as to whether or not the defendant has been previously convicted, sentenced, fined or imprisoned for a felony. If the trial judge makes an affirmative finding, the jury then only determines the innocence or guilt of the defendant on the charge or charges contained in the information. “Proof of the prior conviction is not a substantive part of an offense subsequently committed, and any conviction must be for the offense [or offenses] charged in the information.” State v. Pfeifer, 544 S.W.2d 317, 319 (Mo.App.1976). The prior conviction allegations need not be set out in any particular order or form [McCormick v. State, supra, 317 N.E.2d at 429] and the amended information in this case clearly apprised defendant that he was charged as an habitual criminal with the commission of two felonies.

Defendant’s penultimate and last points relied on will be considered together. They have this factual background. At the time the policeman found defendant prying on the back door of the grocery store with a crowbar, there was lying nearby a bolt cutter and a large screwdriver. The policeman arrested defendant and took him to jail leaving the tools in the alley. A deputy sheriff was summoned by radio. He arrived promptly. After being given the “Miranda Warning?’, defendant was returned to the alley behind the grocery by the deputy and policeman. About 20 to 30 minutes had elapsed between the time defendant was discovered prying on the rear door of the grocery and the time he was returned to the scene. The deputy took possession of the tools and they were offered and received as state’s exhibits at trial. The policeman testified, variously, that upon the return trip to the alley “the same tools [were] still there by the door,” that the bolt cutter exhibit “look[ed] like one of the tools . . . that was there,” that the crowbar exhibit was “the one [defendant] laid down” in the alley when arrested and that the screwdriver exhibit “looks like” the tool he observed in the alley. The deputy testified the three tool exhibits were the ones “I picked up behind Raul’s Grocery Store on the morning of the 16th” and had been in his possession constantly until trial time. Also, the deputy testified that a few days prior to trial, he returned to the alley with the three tools, placed them, the best he could recall, in the “approximate location” they were when first found and had a photograph made of the scene as reconstructed. Defendant’s present objections to the reception in evidence of the tools and photographs are that the tools were not properly identified and that the photograph was not shown to be a fair and accurate representation.

Identification of exhibits need not be wholly unqualified in order to make them admissible into evidence. Any qualification as to the identity of exhibits, if otherwise admissible, is for the jury to weigh. State v. Stancliff, 467 S.W.2d 26, 30[2] (Mo.1971). Testimony that an exhibit “looks like”, “looks familiar”, “looked like”, looked “‘very much’” like, looked ‘“very similar’ ”, and “ ‘was a gun like’ ” has been held sufficient to permit the exhibits’ introduction into evidence. State v. Kern, 447 S.W.2d 571, 574-575[3] (Mo.1969), reversed on other grounds, Kern v. State, 507 S.W.2d 8 (Mo. banc 1974); State v. Johnson, 286 S.W.2d 787, 791[3] (Mo.1956); State v. Gonzales, 533 S.W.2d 268, 274[13] (Mo.App.1976); State v. Alderman, 498 S.W.2d 69, 72[5] (Mo.App.1973).

“Photographs of the scene of an alleged crime are admissible in evidence at a criminal trial if they depict the conditions and circumstances surrounding the alleged crime and aid the jury in throwing light on a material issue in the case. The admissibility of photographs of a scene is a matter resting primarily within the discretion of the trial court. . . . The test is whether the photographic evidence shows relevant facts which will aid the jury. . . . The essential factor whether a photograph is admissible depends upon whether the photograph represents the observation of the witness. The accuracy of the photograph may be proved by anyone who knows the facts. Photographs are admissible when the witness shows that they are a reasonably accurate representation of the place or thing in question in order to aid the jury in understanding the testimony of the witness. The fact that a photograph may be incorrect in certain particulars or that there are changes in the scene does not affect the admissibility of the photograph but only affects the weight to be given to it by the jury.” State v. Rogers, 523 S.W.2d 344, 347[1 — 7] (Mo.App.1975).

Judgment affirmed.

All concur.

      . References to statutes are to RSMo 1969, V.A.M.S. “MAI-CR” references are to Missouri Approved Instructions-Criminal.

      . “From a medical standpoint, one may be insane by reason of mental disease or mania, yet, from a legal aspect, not unless or until his mental condition has reached the point where he is unable to distinguish right from wrong and to know the nature and consequences of his acts is he exonerated . . . McGee v. State, 155 Tex.Cr.R. 639, 238 S.W.2d 707, 710[1] (1951).

      . Our jurisdiction requires, from the lay witness, testimony of facts inconsistent with a sound mind prior to delivery of opinion on mental condition. Machens v. Machens, 263 S.W.2d 724, 730[5] [6] (Mo.1953).

      . Moreover, the trial court’s decision as to the admissibility of the exhibits is bolstered by defendant’s in-court recognition of the bolt cutter and crowbar as those he had previously obtained from “a man up at Holcomb” and had with him at the time of the attempted break-in.


author: FLANIGAN, Judge.

text:
    The GIOMONA CORPORATION, Plaintiff-Respondent, v. J. D. DAWSON, Dean Hicks, Dorothy Hicks, and Murrel Indermuehle, d/b/a Owensby & Son Real Estate, Defendants-Appellants.
    No. 10352.
    Missouri Court of Appeals, Springfield District.
    July 20, 1978.

      David L. Smith, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendants-appellants.
    J. A. Appelquist, Springfield, Kerry D. Douglas, Douglas & Douglas, Bolivar, for plaintiff-respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

With disarming simplicity Rule 87.03, a part of Rule 87 dealing with Declaratory Judgments, reads: “A contract may be construed either before or after there has been a breach thereof.” This action is an example of the operation of Rule 87.03. See Mercantile Trust Company v. Chase Hotel, Inc., 510 S.W.2d 807 (Mo.App.1974).

On September 9, 1973, a written agreement, identified in the record as Exhibit 1, was entered into between J. D. Dawson, as purchaser, and Dean Hicks and Dorothy Hicks, husband and wife, as sellers, for the sale of 1,820 acres in Dallas County. The real estate agent, acting for the sellers, was Murrel Indermuehle. Dawson made a payment of $2,000 when he executed Exhibit 1 on September 9, 1973. The purchase price was $200,000 and it was to be paid in three installments: the initial payment of $2,000, an $18,000 payment on September 17, 1973, and the balance of $180,000 on January 2, 1974.

Later in September 1973, Dawson, as purchaser, and Dean Hicks and Dorothy Hicks, as sellers, entered into a written agreement, identified as Exhibit 3. One of the recitals of Exhibit 3 is an acknowledgment by Mr. and Mrs. Hicks of the receipt of $20,000 from Dawson. The record is unclear as to when the $18,000 installment, a portion of the $20,000, was paid by Dawson but it seems clear that the payment of it was timely. Still later in September 1973, Dawson executed Exhibit 2, by which he assigned to plaintiff his interests in Exhibit 1 and Exhibit 3. Plaintiff The Giomona Corporation paid Dawson $20,000 for the assignment, the mechanics of that payment being that plaintiff’s $20,000 was paid to Indermuehle, as escrow agent, and Inder-muehle returned to Dawson the $20,000 which Dawson had previously paid.

Plaintiff brought this action against defendants Dawson, Mr. and Mrs. Hicks, and Indermuehle. Count I of the petition sought a declaratory judgment. Count II sought the return of $20,000 based on an allegation that “defendants” had “defaulted under the agreements of the parties.” The parties agreed to a separate trial of the issues on Count I. The trial court, sitting without a jury, found in favor of the plaintiff on Count I and in the judgment designated its findings with respect to Count I as a final judgment for the purposes of appeal. Rule 81.06. Count II remains pending in the trial court.

On this appeal by defendants the issue is whether the exhibits, properly construed, call for the forfeiture of $2,000 (as plaintiff contends and as the trial court found) or $20,000 (as defendants contend) in the event of a default by the purchaser (or, in this instance, by plaintiff as the purchaser’s as-signee). Defendants assert that a “fair construction” of the exhibits shows that the parties intended that “in the event of default on the part of plaintiff, defendants were to retain $20,000 earnest money and were not limited to $2,000 as adjudged by the trial court.”

There has been no determination of whether any party to the transaction has been guilty of any breach or default. The validity of the assignment to plaintiff has not been questioned and is tacitly conceded. The nature or amount of actual damages, if any, sustained by any party has not been adjudicated. The inquiry on this appeal is limited to whether the exhibits are reasonably subject to the construction placed upon them by the trial court. Stated otherwise, did the trial court err in rejecting defendants’ contention that the exhibits call for a forfeiture of $20,000 in the event of default on the part of plaintiff? This court holds that the trial court properly construed the exhibits and the defendants’ claim of error is without merit.

Defendants concede that the portions of Exhibit 1 which are germane to the issue on this appeal are as follows: (Italics added)

“Exhibit 1
September 9, 1973
Received of J. D. Dawson, hereinafter mentioned as the Purchaser, the sum of Two Thousand Dollars ($2,000.00) as earnest money and in part payment for the purchase of the following described real estate situated in County of Dallas, State of Mo., and more particularly described as follows, to-wit:
[description given]
which we have this day sold to the Purchaser for the sum of Two Hundred Thousand Dollars ($200,000.00) on the following terms, to-wit: The sum of Two Thousand Dollars ($2,000.00) as herein-above receipted for; balance of One Hundred Ninety-eight Thousand Dollars ($198,000) to be paid as follows: Eighteen Thousand Dollars more on the 17th day of Sept., 1973 and the balance of $180,-000.00 all due and payable on January 2, 1974.
An abstract from a reliable abstract company showing good and marketable title is to be furnished the Purchaser forthwith. It is agreed that if the Owner does not approve the above sale, or if the title to the said premises is not marketable, or cannot be made so within a reasonable time after notice containing written statement of defects is delivered to Owner, the earnest money herein receipted for shall be refunded to the Purchaser. But if the above sale is approved by the Owner and the title to the said premises is marketable, and the Purchaser neglects or refuses to comply with any of the conditions of this sale and to make payments promptly, as hereinabove set forth, then the earnest money herein receipted for shall be forfeited to the undersigned Agent to the extent of the agreed upon commission, and the residue to the Owner as liquidated damages, and this contract shall thereupon be of no further binding effect.
Time is of the essence of this contract.”

Exhibit 1 was signed by J. D. Dawson, as Purchaser, and Dean Hicks and Dorothy Hicks, as Owner. September 9, 1973, is shown as the date on which all parties signed the exhibit.

Defendants concede that the portions of Exhibit 3 which are germane to the issue on this appeal are as follows:

“Exhibit 3
MODIFICATION OF EARNEST MONEY RECEIPT Dated: September_, 1973
EÁBXIES:
J. D. DAWSON (“Purchaser”)
DEAN HICKS and DOROTHY HICKS, his wife, ("Sellers”)
RECITAL:
The parties hereto entered into an Earnest Money Receipt dated September 9th, 1973, wherein the Sellers agreed to sell to the Purchaser 1,820 acres of real property situate in Dallas County, Missouri, . . . The parties desire to modify said Earnest Money Receipt as more particularly herein set forth.
TERMS:
The parties hereto agree as follows:
1. . . .
2. . . .
3. . . .
4. . . .
5. The parties hereto acknowledge that the earnest money deposit in the aggregate sum of Twenty Thousand & 00/100 ($20,000.00) Dollars has been paid and is being held in escrow pending the closing by [Indermuehle].”

Exhibit 3 was signed by Dawson as purchaser and by Dean Hicks and Dorothy Hicks as sellers. It bears no date other than “September _, 1973.” However, defendants’ brief admits that Exhibit 3 “clearly reflects that it was entered into subsequent to Exhibit 1.” That defendants’ admission is a realistic one is demonstrated by the fact that Paragraph 5 of Exhibit 3 mentions that $20,000 “has been paid,” and such sum had not been paid until the $18,-000 payment was made by Dawson to In-dermuehle “later” in September, i. e., some date in September after September 9.

It should be observed that Count II of the petition, which remains pending in the trial court, alleged that “defendants” defaulted. However, the trial court’s judgment on Count I is under attack insofar as it determined what the agreements call for in the event of a default by plaintiff.

Defendants’ brief refers to the sentence in Exhibit 1 beginning with the words “but if” as “the forfeiture clause.” Defendants argue that at the time of the execution of Exhibit 2, the assignment from Dawson to plaintiff, “there had been $20,000 earnest money paid and $20,000 earnest money receipted for.” Defendants say that a fair construction of Exhibits 1 and 3 shows that “all monies paid and referred to as earnest money and which had been receipted for constituted forfeiture money.” These arguments are untenable.

The opening paragraph of Exhibit 1 includes the recital: “Received of J. D. Dawson, hereinafter mentioned as the purchaser, the sum of Two Thousand Dollars ($2,000) as earnest money. . . . ” The same paragraph also refers to the $2,000 as being “in part payment” of the purchase price. Later in the same paragraph the $2,000 is accorded the description, “as here-inabove receipted for.” The paragraph then mentions the balance of the purchase price as being $198,000 to be paid in two steps, one of $18,000 and the other of $180,-000. Defendants emphasize the word “more,” which immediately follows the words, “Eighteen Thousand Dollars.” Defendants say that the word signifies that “$18,000 more was to be added onto the $2,000 earnest money which had been receipted for.” Such a construction seems strained, and word “more” may refer to “more” of the purchase price itself, but Exhibit 3 itself demonstrates that the parties regarded the earnest money to consist of $20,000 and not $2,000. It does not follow, however, that the parties by their writings intended a forfeiture of all of the earnest money in the event of a default by the purchaser.

The second paragraph of Exhibit 1 uses the word “forfeited” only with respect to a default by the purchaser. There is no language of forfeiture with respect to a default by the owner (or sellers). Provision was made for the return of the earnest money “herein receipted for” to the purchaser in the event the owner did not approve the sale. Approval of the sale by owner, defendants Hicks, was signified by their act of signing Exhibit 1 which did not become a contract until that occurred. The earnest money “herein receipted for” was also to be refunded to the purchaser if the title was defective. In those events the purchaser would receive a refund of his own money, but it could not rightly be said that this imposed a “forfeiture” upon sellers.

The “forfeiture clause,” as defendants label it, confines its operation to a situation where “the purchaser neglects or refuses to comply with any of the conditions of this sale and to make payments promptly, as hereinabove set forth.” When such occurs, the clause continues, “the earnest money herein receipted for shall be forfeited to the undersigned agent to the extent of the agreed upon commission, and the residue to the owner as liquidated damages, and this contract shall thereupon be of no further binding effect.”

That which the purchaser “forfeits” in the event of the operation of the “forfeiture clause” is “the earnest money herein receipted for.” The only payment by Dawson which was “receipted for” by Exhibit 1 was that of $2,000. The opening sentence of Exhibit 1 so recites. The latter portion of the first paragraph of Exhibit 1 refers to the $2,000 as being “hereinabove receipted for.” It is true that the paragraph makes mention of $18,000 but it was not “herein receipted for.” That is so for the obvious reason that the $18,000 in fact had not yet been received. When it was received, some days later, it was included, by Exhibit 3, in the category “earnest money deposit” but Exhibit 3 made no change in the “forfeiture clause” of Exhibit 1. The latter was clearly limited to a forfeiture of “the earnest money herein receipted for.”

Indeed, if the parties contemplated a forfeiture of all of the earnest money, the forfeiture clause would have read, “the earnest money shall be forfeited,” rather than “the earnest money herein receipted for shall be forfeited.” Defendants’ contention accords no significance to the inclusion of the words “herein receipted for.” Moreover, if it be assumed that the forfeiture clause was to receive defendants’ construction of it and was to receive literal enforcement, anomalous results might ensue. If the purchaser defaulted before making the $18,000 payment, thereby violating the clause, $2,000 would be forfeited. If the purchaser made the first two payments but defaulted in making the third, thereby violating the clause, $20,000 would be forfeited. On this hypothesis the purchaser who had done more toward fulfilling his contractual obligations would suffer more than one who had done less, a result not reasonably within the intention of the parties and certainly not one countenanced by the law.

“Forfeitures are not favored, and all conditions or provisions in contracts providing for them must be strictly construed.” Robinson v. Cannon, 346 Mo. 1126, 145 S.W.2d 146, 149 (1940). “Forfeitures are enforced only where there is the clearest evidence that that was what was meant by the stipulation of the parties.” Schurtz v. Cushing, 347 Mo. 113, 146 S.W.2d 591, 594 (Mo.1941). “Since forfeitures are not favored either in equity or in law, provisions for forfeitures are to receive, where the intent is doubtful, a strict construction against those for whose benefit they are introduced.” 17 Am.Jur.2d Contracts § 500, p. 976. Even if the so-called “forfeiture clause” be treated as a provision for liqui-

dated damages such a provision must be strictly construed against the party seeking to invoke its benefits. United States v. Marietta Manufacturing Co., 53 F.R.D. 390, 400[4] (1971); Climatic Rainwear Co. v. United States, 115 Ct.Cl. 520, 88 F.Supp. 415, 421[5, 6] (1950); Tobin v. United States, 103 Ct.Cl. 480, 59 F.Supp. 410, 416 (1945); Close v. Blumenthal, 11 Utah 2d 51, 354 P.2d 856, 857[2] (1960); 25 C.J.S. Damages § 114, p. 1087.

The trial court did not err in rejecting defendants’ contention that the exhibits call for a forfeiture of $20,000 in the event of default on the part of the plaintiff. The trial court properly found that the exhibits call for a forfeiture of $2,000 in the event of a default by plaintiff.

The foregoing is dispositive of defendants’ second “point relied on” which is to the effect that the trial court erred in ruling inadmissible certain oral testimony offered by defendants with respect to their intentions concerning the meaning of the “forfeiture clause.” ‘“If the terms of a contract are clear and unambiguous the contract will be enforced or given effect in accordance with its terms, and without resort to construction to determine the intention of the parties. In such case the construction of the parties, if at variance with the written terms, will not be followed, but the contract will be construed as written. “When the language of a contract is plain, there can be no construction because there is nothing to construe”.’ ” (Internal citations omitted.) Willman v. Beheler, 499 S.W.2d 770, 774[2, 3] (Mo.1973). The rejected testimony contradicts rather than explains the terms of Exhibit 1 and therefore was, under the parol evidence rule, inadmissible. Duggins v. Simons, 517 S.W.2d 82, 94[5] (Mo.1974).

The trial court accurately determined the meaning of the “forfeiture clause.” What effect, if any, will be accorded to that clause remains an open inquiry.

The judgment is affirmed and the cause is remanded for further proceedings consistent with this opinion.

All concur.

      . All references to rules are to Missouri Rules of Court, V.A.M.R.

      . Defendants’ brief states: “When Exhibit 1 was executed on September 9, Indermuehle received a payment of $2,000 and later received an additional $18,000 from Dawson.”

      . “The word ‘forfeiture’ carries an implication of deprivation of something previously owned.” Williston on Contracts, Third Edition, Vol. 5, § 769, p. 640.

      . Neither side attaches significance to any of the following: (a) the presence, in the forfeiture clause, of the following words: “ . . to the undersigned agent to the extent of the agreed upon commission and the residue . . . (b) the line on Exhibit 1 which called for the signature of agent Indermuehle was left blank; (c) there was no evidence of the amount of “the agreed upon commission.”

      . For Missouri cases involving real estate contract clauses of the general type under consideration, discussing the distinction between provisions for forfeiture or penalty on the one hand and provisions for liquidated damages on the other, and reaching varying results on varying facts, see, among others: Plymouth Securities Company v. Johnson, 335 S.W.2d 142 (Mo. 1960); Robert Blond Meat Company v. Eisen-berg, 273 S.W.2d 297 (Mo.1954); Wilt v. Waterfield, 273 S.W.2d 290 (Mo.1954); Long v. Lackawanna Coal and Iron Co., 233 Mo. 713, 136 S.W. 673 (Mo.1911); Morse v. Rathburn, 42 Mo. 594 (1868); Black v. Emory, 275 S.W. 48 (Mo.App. 1925); Adams v. Luckaman, 256 S.W. 103 (Mo.App.1923); Bachman v. H. R. Ennis Real Estate & Inv. Co., 199 Mo.App. 674, 204 S.W. 1115 (Mo.App.1918), and Tinkham v. Satori, 44 Mo.App. 659 (1891).
      See also Restatement of Contracts, § 339, and 6 A.L.R.2d 1401 (provision in land contract for forfeiture of payments as one for liquidated damages or penalty).