author: FINCH, Judge. BARDGETT, Judge

text:
    Eunice FLANAGAN, Individually, and Eunice Flanagan, Administratrix of Joseph Francis Moore, Deceased, Respondents, v. G. L. DeLAPP, Jr., et al., Appellants.
    No. 59053.
    Supreme Court of Missouri, En Banc.
    March 8, 1976.

      William E. Shull, Duncan & Russell, Kansas City, for appellants.
    Arthur Kincaid, Hale, Kincaid, Waters & Allen, Liberty, for respondents.
   FINCH, Judge.

On March 31, 1971, seven days before his death, Joseph Francis Moore (decedent) executed a warranty deed conveying 275 acres of farmland (2 tracts), plus a 7/i2ths interest in a 11.52 acre tract, to G. L. DeLapp, Jr., an attorney, and his wife, Elizabeth J. De-Lapp, a niece of decedent. This suit was brought to set aside that deed on the basis of alleged undue influence by G. L. DeLapp, Jr. (hereinafter DeLapp). The trial court found that execution of the deed was the result of undue influence by DeLapp and ordered the conveyance set aside and the deed cancelled. Only DeLapp appealed from that judgment, the appeal being to the Missouri Court of Appeals, Kansas City District, which affirmed. Thereafter, on application of DeLapp, we ordered the case transferred pursuant to Art. V, § 10, Mo. Const. We now review the case as though here on direct appeal. We affirm.

Decedent (age 74) died intestate on April 7, 1971, leaving as his surviving heirs at law, a sister, Eunice Flanagan (age 71), and a brother, Thomas Corydon Moore (age 75), who had been declared incompetent in 1969. Mrs. Flanagan was appointed administra-trix of decedent’s estate. She then brought this suit individually and as administratrix (pursuant to probate court authorization), naming as defendants DeLapp and his wife, Elizabeth, grantees in the deed, the surviving incompetent heir at law, Thomas Cory-don Moore, and the surviving guardian of his estate, Elizabeth J. DeLapp.

The issues presented on this appeal concern (1) the sufficiency of the evidence to show undue influence by DeLapp in the execution of the deed by Joseph, and (2) whether the court erroneously excluded proffered testimony of DeLapp on the basis of § 491.010, the dead man’s statute.

The evidence discloses that on March 31, 1971, Joseph became ill. When he finished his breakfast that morning, he could not get up from the table. Mrs. Flanagan, who had been living with Joseph since 1969, had to help him back to bed. The same thing happened at lunch. Later that afternoon when she tried to get him off the bed, his head fell back and he could not get up. Mrs. Flanagan then called the doctor and at his direction called an ambulance and had Joseph taken to the Cameron Community Hospital. Records with reference to his admission to the hospital show that his condition was diagnosed as a stroke syndrome and that his entire left side, including his hand and arm, were weak and had no motor voluntary movement. He could not move his left arm or leg, could not get out of a chair, and could not walk. The impression as recorded at that time in the hospital records was that the patient had suffered cerebral thrombosis with left hemiparesis.

In addition to calling the doctor, Mrs. Flanagan called DeLapp and told him what she was doing. Later that same day, he came by and picked up Mrs. Flanagan and the two of them went to the hospital. En route, according to the testimony of Mrs. Flanagan, DeLapp told her that he was going to get Joseph to sign a deed conveying his farms to DeLapp and his wife, Betty. Mrs. Flanagan testified thus with ref-. erence to that conversation:

“I said first he couldn’t do it, and he said he had to because of the taxes; that the estate taxes would be so big that he had to have this so that we wouldn’t have to pay those taxes, and he said if Joe — if half of Joe’s estate went into Tom’s estate, then the taxes on Tom’s estate, when he died, would be especially high, and that he has to do it because of the taxes and that was the reason he was going to do it.”

Mrs. Flanagan further testified that so far as she knew, there had been no prior conversations with Joseph with reference to conveyance of his farms.

On arriving at the hospital, DeLapp asked Mrs. Hines, a receptionist at the hospital who was a notary public, to accompany them to Joseph’s room. As they passed a small chapel, DeLapp told Mrs. Flanagan to wait in there and he would take care of the matter. She went into the prayer room and in 5 or 10 minutes DeLapp came back and displayed a deed signed by Joseph conveying the property in question to G. L. DeLapp, Jr. and Elizabeth J. DeLapp, husband and wife, subject to a life estate in the grantor.

Mrs. Hines, who acknowledged the deed in question, testified as follows with reference to the signing of the deed:

“Mr. DeLapp came up and told me Mr. Moore was ready to sign the papers and I walked down the hall with Mr. DeLapp and we didn’t have any room. We had to put him in the hall that night — I called it the alcove — and when we got in the room, Mr. DeLapp said to Mr. Moore, ‘Joe, we are down here to have you sign the paper and this is Helen Hines and she is a notary.’ And he lifted Joe up and he signed the papers. Seemed like he signed two.”

Mrs. Hines testified that she then went back to her desk and completed the acknowledgment of the deed.

DeLapp was not permitted to testify as to what occurred when the deed was signed or with reference to his conversations with Mrs. Flanagan.

In ruling that the deed should be set aside on account of undue influence, the trial court determined (1) that as a result of an attorney-client relationship found to exist between Joseph and DeLapp there was a presumption of undue influence by DeLapp which was not overcome by evidence, and (2) that the evidence affirmatively demonstrated that undue influence by DeLapp existed in fact.

We consider first the issue of whether a presumption of undue influence exists in this case as a result of an attorney-client relationship.

It is an almost universal rule that any client’s transfer of his property to his attorney is subject to being set aside as resulting from undue influence unless the attorney is able to meet the burden of proving that the transaction was fair and equitable. In 7 Am.Jur.2d, Attorneys at Law, § 95 (1963), it is stated that “(I)t is presumed that undue influence of fraud attaches to any assignment or conveyance that an attorney takes from his client while the relation of attorney and client exists.” Similarly, 7 C.J.S. Attorney and Client § 128 (1937) states:

“ * * * The general rule that all transactions and dealings between attorney and client are subject to close scrutiny and presumptively fraudulent or the result of undue influence applies with full force, however, to any purchase or acquisition by an attorney of his client’s property. Hence, a transfer, conveyance, or assignment of property by a client to an attorney is subject to avoidance and being set aside as constructively fraudulent or the result of undue influence, except to the extent that it operates as a payment of reasonable and proper fees, if the attorney fails to discharge his burden by showing that the transaction was fair, equitable, and honest, for an adequate consideration, and that the client had the benefit of impartial advice or was fully informed of the nature and effect of his act so that he was in the same position as if he had dealt with a stranger. ⅜ * ”

See also 7 C.J.S. Attorney and Client § 129 (1937); 7 Am.Jur.2d, Attorneys at Law, § 96 (1963).

In Missouri the rule is in accord. It is stated in Laspy v. Anderson, 361 S.W.2d 680, 682 (Mo.1962), as follows:

“The law is well established in this state and elsewhere that public policy dictates the necessity to protect the confidential and fiduciary attorney-client relationship. Consequently, when a conveyance from a client to an attorney is attacked it is considered presumptively fraudulent and the burden is on the attorney to prove by convincing evidence that the transaction evidenced by the conveyance, as well as the conveyance itself, was fair and equitable in every respect. (Citing cases).”

Another Missouri case announcing such a rule is Bybee v. S’Renco, 316 Mo. 517, 291 S.W. 459 (1926). See also Cuthbert v. Heidsieck, 364 S.W.2d 583 (Mo.1963).

Appellant DeLapp does not really question the foregoing rule. Rather, he contends that it is inapplicable in this case on the theory that although it was stipulated that DeLapp had served continuously as attorney for Joseph and Elizabeth as co-guardians of the estate of Thomas C. Moore from the time the guardianship was created until the date of Joseph’s death, it was not shown that he had acted as attorney for Joseph individually in any instance. The issue squarely presented is whether the attorney-client relationship which existed with reference to the guardianship estate also resulted in such a relationship applicable to transactions involving DeLapp and Joseph individually.

While it is true that the evidence did not disclose that DeLapp had served as attorney for Joseph in any individual matters, it also was true that the evidence disclosed that Joseph had no other attorney handling such matters. Thus, the only attorney-client relationship which Joseph had with any lawyer, so far as the evidence discloses, was the one with DeLapp in connection with the guardianship of the estate of Joseph’s brother. That relationship had continued over a period of time and was one in which Joseph would look to and rely upon DeLapp for professional and confidential advice and information. It is unrealistic to conclude that said relationship and confidence existed only so long as DeLapp dealt with matters in the brother’s estate but disappeared completely when he dealt with Joseph about a conveyance of his own property. This is particularly true in this case since, according to DeLapp’s explanation to Mrs. Flanagan, the objective of the conveyance was to avoid having part of the property pass to the guardianship estate. The transaction in question affected both Joseph individually and the guardianship estate for which DeLapp was the attorney. Accordingly, we hold that a confidential attorney-client relationship existed which was applicable to the transaction in question.

The conclusion we reach is in accord with the rule stated in 7 C.J.S. Attorney and Client § 127b(3) (1937):

“The rule that dealings between attorney and client are presumptively fraudulent is not restricted to contracts or dealings with respect to the rights or property involved in the particular transaction or proceeding in which the attorney is acting for the client, but it may extend to other transactions and contracts, where the relationship may be presumed to give the attorney some advantage over the client.”

Similarly, in the ease of Swaim v. Martin, 158 Ark. 469, 251 S.W. 26, 27 (1923), the court stated:

“The rule that an attorney who contracts with his client has the burden of proving that no advantage has been taken of the situation of the latter is not restricted to contracts or dealings with respect to the rights or property in controversy in the particular proceeding in which the attorney is acting for the client, but it may extend to other transactions and contracts, where the relationship may be presumed to give the attorney some advantage over the client. * * * ft

There was no evidence presented by DeLapp to explain or justify the convey-anee to him and his wife or to show that the deed was not the result of undue influence resulting from his attorney-client relationship with Joseph. Nor was DeLapp aided by the testimony regarding the conveyance given by Mrs. Hines or Mrs. Flanagan. According to the account by Mrs. Hines, Joseph was told only that they were there to have him sign a paper and that Mrs. Hines was a notary. He was then lifted up by DeLapp to sign the deed. Nothing was said as to the contents of the paper or even that it was a deed or that it conveyed all his land to DeLapp and his wife. According to Mrs. Flanagan, the whole occurrence took only a short time, as DeLapp returned in 5 or 10 minutes with the deed. Joseph could not have read the deed because, according to Mrs. Flanagan’s testimony, he could not read-without his glasses and they were at his home, not at the hospital. This evidence all is supportive of the idea that Joseph relied on DeLapp and signed because De-Lapp asked him to sign. Accordingly, the trial court was justified in concluding that the deed was induced by undue influence arising from the attorney-client relationship between DeLapp and Joseph and that the deed should be set aside for that reason.

In view of this conclusion we need not reach or decide the question of whether the evidence was also sufficient to justify the finding of the trial court that the evidence disclosed that in fact the deed was induced by undue influence.

The second question presented by DeLapp concerns the propriety of the court’s action in excluding testimony by him on the basis of the provisions of § 491.-010. As pointed out in Comment, Waiver of the Dead Man’s Statute, 39 Mo.L.Rev. 218 (1974), that statute has three functional parts. First, it qualifies as witnesses those individuals disqualified at common law because of their interest in the outcome of the case. Next, in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, the so-called transactions proviso of the statute makes a surviving party incompetent as a witness in his own favor or in favor of one claiming under him. Under this proviso the witness is incompetent only as to those matters about which decedent could have testified if he had lived. Finally, where one of the parties to a contract is deceased, and an executor or administrator is a party to a suit involving such contract, the portion of the statute referred to as the administration proviso makes the surviving party to the contract totally incompetent as a witness except as to matters occurring after probate of the will or appointment of an administrator.

Respondent objected to testimony by DeLapp on the basis of both the transactions proviso and the administration proviso. The objection was sustained on both grounds. DeLapp then made an offer of proof wherein he stated that he would testify that he never acted as attorney for Joseph, that when the deed was executed, he had no reason to believe Joseph would not live as he had been hospitalized previously for the same condition, that he neither used nor attempted to use undue influence to secure the deed, that the subject of the disposition of Joseph’s farms had been discussed on previous occasions, of which Mrs. Flanagan and Betty DeLapp were aware, and that, based on his observations of and conversations with Joseph on the day the deed was executed, Joseph did understand at that time the nature of his property and the natural objects of his bounty. An objection to the offer of proof was sustained.

It is DeLapp’s position that the foregoing tendered testimony was not prohibited by § 491.010, and that, even if it was, Mrs. Flanagan waived her right to invoke the statute by personally taking the stand and testifying as to the things which occurred.

DeLapp’s brief states that § 491.010 is inapplicable to the testimony he proposed to give and that the trial court erred in excluding it. His position is somewhat confusing because his brief also states that “[T]he appellant would acknowledge that for most purposes, his testimony would have been incompetent under a strict interpretation of RSMo § 491.010, as to those matters which could be or might be refuted by the decedent if he were still alive.” The brief further states: “The rule would apparently be more strictly enforced where an administrator is a party to the cause of action, but still apparently would not apply where the testimony to be introduced does not involve the decedent and was not in his presence, or concerns statements not made by him.”

Cases construing § 491.010 clearly establish that a surviving party is incompetent to testify as to matters relative to the contract or cause of action in issue as to which decedent could have testified if he had lived and that where an executor or administrator is a party to the suit, the surviving party to a contract is totally incompetent except as to matters occurring after probate of the will or appointment of an administrator. The cases do not support appellant’s position that the proviso as to an administrator or executor as a party does not apply in such a way as to make competent the testimony which DeLapp proposed to give. One of the clearest statements of the meaning and effect of the statute is contained in Davis v. Robb, 10 S.W.2d 680, 681 (Mo.App.1928):

“The purpose of the statute in general is held to be to put all interested parties on an equality, and, if all are living, all can testify; but when an adverse party is dead, so that he could not contradict or explain the evidence of the living party, then the living party cannot testify. In a general way the statute has been held to mean that the living party is not rendered incompetent in all respects by the death of the other party, but his incompetency is limited to those things about which the other party, if living, could testify. Elsea v. Smith, 273 Mo. 396, 407, 202 S.W. 1071.
“The latter part of the section, however, which provides that, ‘where an executor or administrator is a party’ to the suit, ‘the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator,’ is an arbitrary provision of the statute, is not open to construction, and the construction given the other parts of the statute does not apply to that provision.
“When an administrator is a party, the mouth of the adverse living party to the contract or cause of action on trial is closed as to all matters that occurred prior to the probate of the will or the appointment of the administrator, regardless of whether or not the other party, if living, could testify relative to the same matter. Kersey v. O’Day, 173 Mo. 560, 569, 571, 73 S.W. 481; Weiermueller v. Scullin, 203 Mo. 466, 474, 101 S.W. 1088; Cook v. Higgins, 290 Mo. 402, 431, 235 S.W. 807.”

A later statement of the effect of the transactions and administration provisos is set out in Birdsong v. Estate of Ladwig, 314 S.W.2d 471, 475 (Mo.App.1958):

“The dead man’s statute (now sec. 491.-010) has been the source of considerable confusion, but it is now well settled that in respect to the first portion, where one of the original parties to the contract or cause of action is dead the other party shall not be admitted to testify in his own favor, the disability imposed is not absolute but applies to only such acts and transactions concerning which the deceased could, if living, have denied (for convenience we will refer to this portion of the statute as the ‘transactions’ disqualification); whereas the latter portion of the statute, which provides that where the executor or administrator is a party the opposite party shall not be admitted to testify in his own favor except as to acts and contracts made since the probate of the will or appointment of administrator, imposes an absolute disability to testify in a contract action concerning anything which occurred before commencement of probate (for convenience we will refer to. this as the ‘administration’ disqualification).”

See also cases cited in Witnesses, Key Numbers 139(1), 144(4), 149(2), 168; also Comment, Waiver of Dead Man’s Statute, 39 Mo.L.Rev. 218 (1974).

It is clear that under the terms of § 491.010, as repeatedly construed and applied by the courts of this state, the evidence detailed in the offer of proof was inadmissible. It is true that in this case, as in Birdsong v. Estate of Ladwig, supra, the objection by respondent which came immediately after DeLapp gave his name was premature. Some testimony conceivably could have related to matters subsequent to appointment of the administrator and, hence, could have been admissible. However, the offer of proof disclosed that all of the proposed testimony was inadmissible. Hence, we find no error in the action of the court.

Appellant’s real complaint is that it is grossly unfair and not necessary to the purpose of the statute to allow the administra-trix to testify to various matters concerning the controversy and at the same time prohibit the surviving party to the contract from testifying with reference to those same matters. Similar sentiments have been expressed on at least two occasions in cases construing this statute. In Kersey v. O’Day, 173 Mo. 560, 73 S.W. 481, 484 (1903), Judge Fox, in writing the court’s opinion, stated:

“ * * * Speaking for myself, it is difficult to see the reason of this strict rule. What difference does it make whether the conversation was before or after the grant of letters of administration? The dead man is no party to the conversations. All the persons engaged in the conversations are living. Some of them are permitted to testify to the conversations, but the living party to the suit is excluded because the opposing party to the suit is dead. If he had been living, and was not present at the conversation, he would not be able to say anything about it. It strikes me, as to these conversations, separate and independent from any transaction with the deceased, to permit the living witnesses to give their version of the conversation, and then exclude the living party from giving his, is directly in conflict with the spirit of the statute, of placing all parties on an equal footing. The party to the suit must remain silent, and living witnesses can testify that he made certain statements, and he is not permitted even to deny their statements. If the deceased was present at the time of these conversations, I could see the reason of the rule.”

Nevertheless, the court went on to affirm the action of the trial court in enforcing the administration proviso of the act, because that was what the statutory provisions called for.

Likewise, in Schwalbert v. Konert, 230 Mo.App. 811, 76 S.W.2d 445, 453 (1934), the. court criticized the required inflexibility of the act, saying:

“Here we have witnesses for plaintiff who have been permitted to testify to conversations showing admissions made by defendants to the effect that they had borrowed the money in question from the deceased. It was not claimed by any one that the deceased took part in such conversations. All the persons who took part therein were living at the time of the trial. Common fairness would, therefore, seem to require, as the trial court ruled, that defendants should be permitted to give their version thereof. Nevertheless, because of the arbitrary language of the statute, we must hold that the court erred in refusing to exclude defendants as witnesses merely because the conversations occurred before instead of after the appointment of the administrator. We are thus compelled by a statute which we are not at liberty to disregard, and which is open to but one construction, to render a decision which appears to be unreasonable and unjust.
“The Legislature most certainly would not have enacted such a provision could it have foreseen the possibility of creating this unjust inequality in the positions of parties before a trial court and a jury. Such inequality has been made clear in the opinions of our Supreme Court and of our Courts of Appeals and will without doubt be remedied when brought to the attention of the Legislature. In the meantime, we can only say that our Supreme Court having declared itself to be bound to follow the rule laid down in the statute, it is our plain duty under the Constitution to follow that court’s decision. We, therefore, hold that the trial court committed reversible error in refusing to exclude defendants as witnesses.”

Again, the court felt that the statute went too far, and expressed a hope for legislative relief, but nevertheless applied the express provisions of the statute.

We, too, recognize, as have these earlier decisions, that the dead man’s statute is inflexible and unnecessarily harsh. However, any change therein can come only by legislative action. It is our obligation to apply the clear language of the statute. Many cases have so recognized.

The remaining question for decision is whether, as DeLapp contended, Mrs. Flanagan waived the incompetency of De-Lapp by taking the witness stand and testifying. We hold that she did not. Sec. 491.010 makes surviving parties to the contract such as DeLapp incompetent but says nothing whatsoever, either expressly or by implication, to make the administrator of the deceased party also incompetent. Obviously, the general assembly did not so intend. It is possible to waive the incompetency of a surviving party. This can be done in various ways, as noted in Comment, Waiver of Dead Man’s Statute, 39 Mo.L. Rev. 218, 225 (1974). However, the act of Mrs. Flanagan in testifying is not comparable to any of the acts or events mentioned in said comment as being sufficient to result in a waiver of the statutory disqualification.

Judgment affirmed.

SEILER, C. J., and MORGAN, HOLMAN, HENLEY and DONNELLY; JJ., concur.

BARDGETT, J., concurs in separate concurring opinion filed.

BARDGETT, Judge

(concurring).

I concur in the principal opinion but do so for the reason that defendants’ offer of proof does not specifically deny statements attributed to him (DeLapp) by Mrs. Flanagan in her testimony concerning the conversation en route to the hospital.

      . Mrs. Flanagan had one daughter, Elizabeth J. DeLapp. Thomas Moore had no children.

      . Decedent and Elizabeth J. DeLapp had been appointed as co-guardians of the estate of Thomas Corydon Moore and they served jointly until decedent’s death. During all of that time, G. L. DeLapp, Jr. served as attorney for the co-guardians.

      . All statutory references are to RSMo 1969 unless indicated otherwise.

      . He had had several light strokes previously and had been admitted to the hospital therefor on several occasions.

      . The full text of § 491.010 is as follows:
      “No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility; provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or if living would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor, except as in this section is provided, and where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator; provided further, that in actions for the recovery of any sum or balance due on account, and when the matter at issue and on trial is proper matter of book account, the party living may be a witness in his own favor so far as to prove in whose handwriting his charges are, and when made, and no farther.”


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. John W. SHARP, Appellant.
    No. 59288.
    Supreme Court of Missouri, En Banc.
    March 8, 1976.
    Alan G. Kimbrell, Rpsecan, Popkin & Chervitz, St. Louis, Brent J. Williams, Clayton, for appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Appellant, John W. Sharp, was convicted of assault with intent to do great bodily harm by the Circuit Court of Carter County, Missouri, and was sentenced to imprisonment for a term of three years. Following rendition of judgment and imposition of sentence, an appeal was perfected to the Springfield District of the Court of Appeals, where the judgment was affirmed. Upon application of appellant, the cause was transferred here by order of this Court. We determine the cause “the same as on original appeal.” Mo.Const. Art. V, § 10.

On or before December 2,1974, the prosecuting attorney in and for Carter County and attorney for appellant entered into a “disposition agreement.” It was agreed that the charge would be reduced from “assault with intent to commit great bodily harm with malice aforethought” to “assault with intent to commit great bodily harm;” that the case would be submitted to the trial court, without a jury, on an agreed statement of facts; and that the prosecuting attorney “would recommend five years and parole.”

On December 2, 1974, the following transpired in open court:

“Q. (By the Court) Mr. Sharp, as the result of these charges, do you understand you are entitled to a jury trial in this county?
“A. Yes I do.
“Q. Do you understand that you could have that trial in some other county and that you could have some other Judge to reside? [sic]
“A. I understand, Judge.
* * * * * *
“Q. From time to time have you discussed the nature of these charges and the range of punishment with Mr. Williams?
“A. Yes, I have.
“Q. To your satisfaction? A. Yes sir. “Q. Have you discussed the possibility of a jury trial?
“A. Yes, we have.
* * sf: sfc ⅜ *
“Q. Have you discussed this matter with your family?
“A. Yes, we’ve talked about it.
“Q. Have you talked about it to your satisfaction with Mr. Williams?
“A. Yes sir.
“Q. Do you understand the State would be required to prove your guilt beyond a reasonable doubt?
“A. Yes, I understand that.
“Q. Do you understand that you could confront witnesses sought by the State to prove your guilt?
“A. Yes sir.
“Q. Do you understand that you could cross-examine these witnesses under oath and in open Court; do you understand that?
“A. I understand that.
“Q. Do you understand that the presumption of innocence would be with you throughout every proceeding in this trial and the jury would be instructed that you would be innocent until they would enter the jury room and thereafter deliberate in accordance with the instructions of the law and the evidence and that they would find you guilty beyond a reasonable doubt and until that time you would be presumed innocent. Do you understand that?
“A. I understand.
“Q. I’m informed by your lawyer that it’s his intention to submit this matter to the Court on an agreed stipulation set of facts; do you understand that?
“A. Yes.
“Q. And if the Court permits that procedure, you would in effect be giving up your right to a jury, you would be giving up your right to confront witnesses and you’d be giving up your right to any number of other safeguards guaranteed to you by the State and Federal Constitutions. Do you understand that?
“A. I understand that, sir.
“Q. At this time I’m going to enter a plea of not guilty, do you understand that?
“A. I understand.
“Q. Is it your desire to enter a plea of not guilty?
“A. Yes sir.”

On December 2, 1974, the trial court then “informed himself to the full extent” of the stipulation of facts; found appellant guilty; ordered appellant to appear for sentencing on January 24,1975; and ordered a pre-sen-tence investigation.

On January 20, 1975, a pre-sentence report was filed. This report concluded that “we would consider it in the best interest of society that this person be placed in the institution.”

On January 24, 1975, appellant again appeared and the trial court addressed him as follows:

“Q. (By the Court) You understand that your case was tried on a stipulated set of facts, Mr. Sharp?
“A. Yes, I understand that.
“Q. And that based upon that, this Court found you guilty, do you understand that?
“A. I understand that, Your Honor.
“Q. And then when you agreed to submit this cause on a stipulated set of facts, that you waived or gave up your right to a jury trial. Do you understand that?
“A. I understand that sir, yes.
“Q. Is that still your desire?
“A. That’s still my desire.
“Q. To give up your right to a jury trial?
“A. Yes sir.
“Q. You have no desire to withdraw the stipulated set of facts and request a jury trial?
“A. No, I’ll let it stand the way it is. “Q. And you understand that this Court is not bound by any recommendation which the Prosecuting Attorney may make or your attorney may make?
“A. I understand that.
“Q. Do you understand that the disposition of this case rests solely at this time with this Court and no other person?
“A. I understand. Yes sir.
“Q. Has any person led you to believe that you would be granted probation or parole?
“A. Well, that was my expectations, you know.
“Q. That’s your hope. I’m asking now if any person led you to believe that you are going to be granted probation?
“A. Well I didn’t know this to be a fact, no sir. The only reason why I presumed that, I was talking to the Probation Officer and they checked me out in Jefferson County and seen that I lived up there. That’s the only reason I would think this, you know.
“Q. Again for the record, there is a distinction about what I’m talking about. You want probation.
“A. Yes, I’d like to have that. Yes sir.
“Q. I’m asking has any person promised you probation? Or parole?
“A. No, no. No one’s done anything like that. No.
“Q. Has any person promised you anything in return in submitting this case on the stipulated facts?
“A. No one has done anything like that, no.
“Q. Any person made any threats?
“A. No, they haven’t.
“Q. Do you have any lawful reason why this Court should not impose sentence, Mr. Sharp?
“A. No, I haven’t.
“THE COURT: Your application for relief will be denied. It’s the order, sentence and judgment of this Court that you be confined in the Missouri Department of Corrections for a period of three years. The Clerk is ordered to prepare a Warrant of Committment and the Sheriff ordered to transport you without delay to the Missouri Department of Corrections.
“That’ll be all.
“MR. WILLIAMS: May I say a few things for a possible application for parole at this time?
“THE COURT: I believe, Mr. Williams, that the matters [sic] has been developed as far as it needs to be in so far as this Court is concerned.
“MR. WILLIAMS: If I may say something for the record, Judge.
“THE COURT: Whatever you want for the record, you do so but not as a plea to this Court. If you think you’ve been in error somewhere—
“MR. WILLIAMS: No I haven’t but I was under the distinct impression that Mr. Negaard was going to make recommendation to the Court at an earlier stage of a sentence of five years and a parole. Is that not ture [sic], Mr. Ne-gaard?
“MR. NEGAARD: Yes.
“MR. WILLIAMS: I think that was our understanding, Judge.
“MR. NEGAARD: The Court is not bound by my recommendation.
“MR. WILLIAMS: I understand.
“THE COURT: The cause was submitted, Mr. Williams, on a stipulated set of facts. The defendant was found guilty, I ordered a pre-sentence investigation and based upon the pre-sentence investigation, I have decided not to grant either probation or parole.”

On January 31, 1975, attorney for appellant filed a “Motion for New Trial” in which appellant asserted he had been deprived of due process of law, of effective assistance of counsel, and of his right to a trial by jury.

On February 6, 1975, attorney for appellant filed an “Amended Motion for a New Trial” in which he attacked the sufficiency of the pre-sentence report, asserted unethical conduct on the part of the prosecuting attorney, and asked “the Court to grant him all of the relief prayed for in the Motion for a New Trial” filed on January 31, 1975.

On February 11,1975, the trial court conducted a hearing. We have carefully read the transcript of that hearing and have concluded that the “disposition agreement” set forth above was made; that the trial court was advised of the agreement; that it was customary practice for the trial judge, in taking guilty pleas, to indicate to the accused what he was going to do regarding sentencing and to then allow the accused to withdraw his plea, if he desired, and have a jury trial; that the attorney for appellant told appellant that if the trial court did not grant parole, appellant “could withdraw his guilty plea or in this case the statement of facts which would be equivalent;” that the prosecuting attorney recommended “five years and parole;” but that the trial court, after studying the pre-sentence report, reached an independent judgment and refused to accept the recommendation.

The position of the trial court is as follows:

“THE COURT: Mr. Williams, the transcript prepared by my Reporter on guilty pleas as required by the Supreme Court Rule, I can’t cite the Rule but the Rule requires the Reporter to transcribe all guilty pleas.
“MR. WILLIAMS: Yes sir.
“THE COURT: And I cannot recall any guilty plea where I have not, at the conclusion of accepting the guilty plea, asked the defendant if he chose to withdraw a plea of guilty and after the sentencing, I cannot recall failing to ask the defendant if he desired to again set aside or withdraw his plea of guilty and you were correct and Mr. Negaard was correct in telling you that is my practice on guilty pleas.
“The Court did not treat this matter as a guilty plea. The Court considered this matter a contested matter as per the stipulation filed herein with the Court. The stipulated facts was [sic] much greater than any guilty plea that I can remember and contained much more information than I could have ever gotten out of a guilty plea. I did not consider this a guilty plea and I tried it as a contested ease.
“It is true that the facts contained in there pointed only to one direction and that’s guilt but keep in mind that this Court did not prepare the stipulation. It was prepared by counsel. In fact, I don’t know who prepared it, both parties signed it and here again, I did not choose the way you tried this case. I approved it and I’ll be frank for the record, that this is the first time a case was presented to the Court on an agreed stipulation of fact but I’ve permitted it and I think the case was tried fairly before this Court.
“Had the defendant entered a plea of guilty, at the end of the plea of guilt and before sentencing, he would have been afforded an opportunity to withdraw a plea of guilty before the three year sentence was imposed and again on a plea of guilty, he would have been permitted to withdraw his plea of guilt. Yes, that is my practice and my procedure and the Prosecutor — Prosecuting Attorney did not mislead anybody on that point.
“However, for the record, this Court did not treat this case as a plea of guilty, I treated it as a contested case. Any further inquiry, Mr. Williams? I want you and I want this defendant, if he does go to prison, I want him to know why and I want you to know why and I want some appellant court to know why. I want this defendant to have as broad a record as possible.”

In Missouri courts, a person accused of the commission of a felony has the right of trial by jury, and he may waive that right. Mo.Const. Art. I, § 22(a). The right is also guaranteed by the United States Constitution, and he may waive the right under the United States Constitution. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930).

In Dranow v. United States, 325 F.2d 481, 482 (8 Cir. 1963), the Court observed:

“Unquestionably a criminal defendant is guaranteed the right to a trial by jury by Article III, Section 2, Clause 3 of the Constitution of the United States and the Sixth Amendment to the Constitution. However, it is well-established law that a criminal defendant has a right to waive his constitutional right to a jury trial provided such waiver is voluntarily, knowingly and intelligently made. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854; Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268. With respect to jury waiver, the Court in Patton states:
“ ‘Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.’ 281 U.S. 276, 312-313, 50 S.Ct. 253, 74 L.Ed. 854.
“In Adams the defendant, who had some legal training, refused counsel and without the benefit of counsel waived a jury trial. The Court held: ‘And whether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case.’ The Court goes on to say:
“ ‘The Patton decision left no room for doubt that a determination of guilt by a court after waiver of jury trial could not be set aside and a new trial ordered except upon a plain showing that such waiver was not freely and intelligently made. If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality. Simply because a result that was insistently invited, namely, a verdict by a court without a jury, disappointed the hopes of the accused, ought not to be sufficient for rejecting it.’ 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268.”

We have concluded that manifest injustice has resulted in this case (Rule 27.20(c)). At the hearing before the trial court on February 11, 1975, the attorney for appellant said:

“MR. WILLIAMS: Sir, what I’m saying is that I figured that this Court would treat him no differently than anybody else who entered a plea of guilty here because of the nature of the stipulation. I mean it’s not really a contested stipulation. We could go through it but there really isn’t any contest in it, Judge. That’s all I’m trying to say.
“If there’s anybodys [sic] fault here, I’d say it’s mine. * * * I’m saying it’s my fault and it may not be the Court’s or Mr. Negaard’s but that’s what I felt was communicated to me and I communicated that to my client.”

The circumstances in this case are such that we believe appellant must be accorded relief. He, and his attorney, believed that if the trial court decided to refuse parole, he would be given the opportunity to withdraw his waiver of trial by jury. Accordingly, we are convinced that his waiver of trial by jury was not intelligently made, that “the burden of showing essential unfairness” has been sustained by him, and that it has been sustained “not as a matter of speculation but as a demonstrable reality.” Adams v. United States, supra, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268.

The judgment is reversed and the cause remanded.

All concur.


author: HENRY I. EAGER, Special Commissioner.

text:
    SMITH BEVERAGE COMPANY OF COLUMBIA, INC., et al., Respondents, v. James R. SPRADLING, Director of the Department of Revenue of the State of Missouri, Appellant.
    No. 59084.
    Supreme Court of Missouri, Division No. 2.
    March 8, 1976.
    Robert House, Asst. Atty. Gen., Jefferson City, for appellant.

      Cullen Coil and Carson, Monaco, Coil & Riley, Jefferson City, for respondents.
   HENRY I. EAGER, Special Commissioner.

This is a declaratory judgment suit filed as a class action by three members of the Missouri Soft Drink Association. The defendant is the Director of the Missouri Department of Revenue. The case, on the merits, involves a construction of certain revenue laws and we have jurisdiction. The purpose of the suit is to obtain a declaration and judgment that a portion of amended Rule 34 of the Department is invalid, and to enjoin its enforcement. Stated more specifically, the object is to enjoin the collection of a use tax upon the purchase of soft drink bottles by the bottlers, as purchased from outstate suppliers. Plaintiffs had paid certain of these taxes under protest. That portion of the Rule, which is attacked here, reads as follows: “A vendor who packages or bottles tangible personal property into a reusable container and will charge a refundable deposit on those containers is considered to be the consumer of those containers. Thus, this vendor (bottler) shall pay sales or use tax to his supplier at the time he purchases those containers.” It is the contention of plaintiffs that the quoted portion of the Rule is not authorized or permitted by the Sales-Use Tax Statutes, and that the imposition of the tax is specifically excluded thereby. Defendant, of course, denies that contention.

Section 144.610 (Use Tax) provides that “A tax is imposed for the privilege of storing, using or consuming within this state any article of tangible personal property * * *It is elementary that the Use Tax is complementary to the Sales Tax and is intended to tax transactions in which no Sales Tax can be imposed because the sale is not made in Missouri. Southwestern Bell Telephone Co. v. Morris, 345 S.W.2d 62 (Mo. banc 1961). Section 144.615, setting out “Exemptions” from the Use Tax, includes as paragraph (6): “Tangible personal property held by processors, retailers, importers, manufacturers, wholesalers, or jobbers solely for resale in the regular course of business; * * * ” (Italics ours.)

The application of that exemption to the situation in this case raises the first, and perhaps the principal, issue in the case. A secondary issue, if the case ever proceeds that far, is whether § 144.011, as amended in 1973 (Laws 1973, p. 223, Vol. 10, V.A. M.S., Supplement), has any effect on the controversy and, if so, what? It reads as follows: “For purposes of sections 144.010 to 144.510 and the tax imposed thereby, the definition of ‘sale at retail’ shall not be construed to include the transfer of reusable containers used in connection with the sale of tangible personal property contained therein for which a deposit is required and refunded on return.” It will be unnecessary for us to reach that question here. Other sections of the statutes are cited and discussed in the briefs, including definitions, but in our view of the present situation they are now immaterial.

It is obvious that the first issue to be resolved, if the matter is to be determined on the merits, is whether the transfer of bottles, by plaintiffs to “retailers and other institutions” is or is not a sale; or, to be more specific, whether the bottles when purchased by plaintiffs are held by them (and their class members) “solely for resale in the regular course of business.” Defendant admits that plaintiffs are jobbers of the soft drinks but not of the bottles, and he denies in his brief that there was or is any sale of the bottles. His theory apparently is that there is merely a loan or bailment.

The difficulty in this situation is that there is no evidence, there are no admissions, and there is no stipulation from which this issue can intelligently be resolved. The only evidence concerned the propriety of the class action. Plaintiffs had and have the burden of proof. The only thing admitted in the pleadings which could possibly affect the question is the allegation in the petition that “all of said plaintiffs are jobbers who bottle and sell carbonated beverages to retailers and other institutions who in turn sell the beverages in reusable bottles to others.” This allegation was admitted in the answer. At best, it can only be taken as an admission that reusable bottles were used by the retailers, with an inference that they were also used by the bottlers. Plaintiffs allege a conclusion that they are “jobbers” and that they “hold the bottles solely for resale * * *That allegation was denied; most assuredly it can add nothing by way of a showing of existing facts.

On the issue of sale or no sale, the parties cite, pro and con, the following cases from other states: District of Columbia v. Seven-Up Washington, Inc., 93 U.S.App.D.C. 272, 214 F.2d 197 (CCA 1954); Arkansas Beverage Co. v. Heath, 521 S.W.2d 835 (Ark.1975); Gay v. Canada Dry Bottling Co. of Florida, Inc., 59 So.2d 788 (Fla.1952); Goebel Brewing Co. v. Brown, 306 Mich. 222,10 N.W.2d 835 (1943); Belleville Dr. Pepper et al. v. Korshak, 36 Ill.2d 352, 221 N.E.2d 635 (1966); Owens-Illinois Glass Co. v. McKibbin, 385 Ill. 245, 52 N.E.2d 177 (1943); Coca-Cola Bottling Works Co. etc. v. Kentucky Dept. of Revenue et al., 517 S.W.2d 746 (Ky.App.1974); Nehi Bottling Co., Inc. v. Gallman et al., 39 A.D.2d 256, 333 N.Y.S.2d 824 (1972); Consolidated Paper Co. v. Nims, 306 Mich. 216, 10 N.W.2d 833 (1943). We have read these eases and also some cases cited in them. In dealing with the issue which we have here, the opinions indicate that there was rather extensive evidence in the respective records, which evidence the courts found it necessary to consider. The parties here should have recognized that fact in considering the cases and preparing their record. Only one of the cited cases was decided on the pleadings and, in a subsequent opinion (Belleville Dr. Pepper, supra), the same court said that the court there was “thoroughly apprised of the manner of doing business, * * * ”; moreover, the allegations of the petition or complaint in that case were not comparable to those here.

We summarize here collectively the fact questions considered, directly or indirectly, by those courts on the issue of sale or no sale (to the retailers by the bottlers). They are as follows: What was the agreement, if any, between the bottlers and the retailers concerning the bottles? What was the cost of the bottles? Were deposits made for bottles at the different levels, and specifically what were they? Were records of these deposits kept? What percentage of bottles was returned to the bottlers? How many times were bottles returned to the bottlers on the average? How were credits given? Do the bottlers pick up the empty bottles and, if so, how frequently? Were the deposits less than the cost of the bottles? Was there any requirement for a return of the bottles, or any right of reclamation, or, conversely, was a return purely optional with the retailer and the ultimate consumer? Did the bottlers agree to take back the bottles and refund the deposits and, if so, how was such agreement made? Was there any imprint or permanent labeling on the bottles of names, trademarks, etc.? Did the retailer lose anything by reason of bottle deposits? Do the bottlers keep records concerning their bottles, such as inventories, costs, disposition, etc.? Are the bottles of one bottler ever used for the product of any other bottler? How are the drinks invoiced to the retailers, and are the bottles included? Also are there any other circumstances in the actual method and practice used which would indicate the substance and purpose of the transaction? And we might add here: Do the respective bottlers accept the return of the bottles of others and give credit therefor? Do the bottlers advertise that the bottles are merely loaned?

While the parties have more or less assumed in their briefs the making of some sort of deposits on the bottles, we decline to assume this or any other undisclosed facts. It would not be possible here to write an intelligent statement of facts for an opinion. Since this ease is to be reversed and remanded for a total lack of evidence, we suggest that upon retrial, if there is one, such evidence as is available should be produced upon the foregoing elements. It is possible that some matters might be stipulated. The parties should have leave to amend their pleadings if they desire to do so. If the case is retried (as a class action), Rule 52.08 should be observed and followed, and perhaps some relief might be obtained under subsection (d) of that Rule to avoid repetitious testimony.

In spite of the total lack of evidence or admissions concerning the nature of the transactions between plaintiffs and the retailers, the trial court found that the plaintiffs and other members of the class were jobbers and that they held the reusable bottles “solely for resale in the regular course of their respective businesses,” within the meaning of § 144.615(6) aforesaid; it entered a conclusion of law to the same effect and therein concluded also that plaintiffs were not liable for the tax because of that exemption. The Court further concluded that, while it was not essential that the effect of § 144.011 be determined, nevertheless plaintiffs were also exempted by reason thereof. We are not concerned here with that conclusion. The Court entered its judgment declaring “Rule 34, as amended by paragraphs 2 and 3,” was void, illegal, and of no effect, and enjoined defendant and all others interested from enforcing it insofar as it might require plaintiffs or other members of their class to pay sales or use tax on the bottles. From this judgment an appeal was duly taken.

We appreciate the diligence with which this case was considered, and note the fact that appellant has not raised in his brief the point that there was no evidence; however, under Rule 73.01-3(a), effective January 1, 1975, we review the case “upon both the law and the evidence” and we are compelled to find and do find that there is no evidence whatever to support the judgment; hence, it simply cannot stand.

We reverse the judgment and remand the case for retrial, or for such other action as the parties may be advised to take.

PER CURIAM:

The foregoing opinion by HENRY I. EAGER, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.

       All citations of statutes are to RSMo 1969, unless otherwise stated.


author: STEWART, Judge.

text:
    Gerald TURNBOUGH, Jr., Movant, v. STATE of Missouri, Respondent.
    No. 36313.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 9, 1975.
    Motion for Rehearing or Transfer to Court En Banc or Transfer to Supreme Court Denied Jan. 23, 1976.
    Application to Transfer Denied March 8, 1976.

      Gael T. Inf ande, Crouppen, Walther & Zwibelman, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Gerald Turnbough, movant, and Leahman Triplett were jointly charged by Substitute Information in Lieu of Indictment with assault with intent to kill with malice. The information also charged movant as a second offender. It was alleged that on the 28th day of August, 1964, in the Circuit Court of Greene County, Missouri, movant had been convicted of the offense of burglary and sentenced to three years in the Department of Corrections; that he was paroled on September 21, 1965, and was discharged November 22, 1966. Movant and Triplett were tried separately.

Movant was found to be a second offender and upon a verdict of guilty by the jury the court assessed his punishment at 25 years in the Department of Corrections. He filed a motion under Rule 27.26 to have the court vacate the judgment and grant him a new trial. The trial court after an evidentiary hearing made findings of fact and conclusions of law and denied the motion.

Counsel appointed to represent movant on this appeal has filed a brief and movant has filed a brief pro se. Movant’s attorney’s brief contends that it was error for the trial court in 1972 to sentence appellant under the Second Offender Act. Movant’s pro se brief complains of constitutional infirmities in his being prosecuted for assault with intent to kill with malice under § 559.-180 which carries a greater penalty than the general attempt statute § 556.150. He also contends that he was denied his right to cross-examination and confrontation of the victim of his crime because the victim did not testify at the trial. We affirm the judgment of the trial court.

Pertinent to the point raised by movant’s counsel, movant at the evidentiary hearing introduced into evidence a certified copy of the proceedings held in the Circuit Court of Greene County, Missouri, on December 21, 1962. The record indicates that at that time the movant was found guilty of the charge of burglary upon this plea of guilty and upon being granted allocution the court placed him on probation for an indeterminate period of time.

Also introduced was the record of August 28,1964, at which time the Circuit Court of Greene County revoked probation and sentenced movant to the Department of Corrections for a period of 3 years from the 28th day of August, 1964. With respect to the question of whether he was represented by counsel the records of the court state: “Now on this day comes the Prosecuting Attorney of Greene County, who prosecutes on behalf of the State, and also comes the defendant in his own proper person and in the custody of the Sheriff of this County, in open Court.” The record is silent as to whether movant was represented by counsel at that time. Movant testified at the hearing on the 27.26 motion. The question of whether movant had an attorney at the sentencing was not covered on direct examination. When the movant was asked on cross examination whether or not he had pleaded guilty to the charge of burglary he answered in the affirmative. When asked whether he went back into court on December 21, 1962, when he was granted probation he answered that “It’s been a long time, I don’t remember.” The following then occurred:

“Q. Well, do you remember going back into court .and getting revoked?
A. Yes, I remember. Yeah.
Q. Okay. Had you contacted your lawyer before you went in there?
A. No. I didn’t have no lawyer.
Q. Mr. Cox had originally represented you hadn’t he?
A. At the beginning of the trial I think so, I was going to change my plea from guilty to not guilty though.
Q. Uh huh, okay. So, you don’t remember being taken back into court on December 21, 1962?
A. I don’t remember; its been a long time.
Q. And you don’t remember whether or not you were sentenced on December 21,1962? In other words when you came back in and told the judge—the judge was granting you probation, you don’t remember whether or not he sentenced you that day?
A. I don’t know.”

The only point in the brief of movant’s counsel reads as follows:

“It was. error for the trial court to sentence appellant under the Second Offender Act, Section 556.280 R.S.Mo.1969, because the prior conviction that allowed the court to do so was unconstitutional to the extent that the Circuit Court of Greene County denied appellant his Sixth Amendment right to counsel and his Fourteenth Amendment rights to due process and equal protection when it revoked his probation and imposed sentence without appellant receiving benefit of counsel. For the St. Louis Circuit Court to then use this unconstitutionally obtained prior conviction, compounded the constitutional wrong suffered by appellant.” Rule 27.26 limits our review “ .

to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.26(j). Dill v. State, 525 S.W.2d 437 (Mo.App.1975); Slankard v. State, 525 S.W.2d 101 (Mo.App.1975).

The point relied on attacks no finding, judgment or conclusion of the court which heard the 27.26 motion, but attacks the finding of the trial court that he was a second offender when he was tried in 1972 for the assault. It thus raises matters not included within the findings, conclusions and judgment of the court that heard the 27.26 motion. We have nothing before us for review.

We note, however, that the trial court made no specific finding as to whether movant was represented by counsel when his probation was revoked on August 28, 1964. The finding respecting the issue reads as follows:

“8. The defendant was represented by counsel at time of his plea in Cause 43184, Greene County Circuit Court, and present when allocution granted December 21, 1962; the record is silent as to presence of counsel August 21, 1964 at evidentiary hearing on parole revocation, and at additional allocution August 28, 1964 when probation was revoked and sentence imposed and ordered executed, the defendant testified he could not remember whether or not he was represented by counsel at probation revocation or sentencing on August 28, 1964.”

It is apparent that the trial court misunderstood the last questions quoted above respecting movant’s recollection of the events of December 21, 1962, coming as it did immediately after reference to the revocation hearing. The court undoubtedly thought movant was referring to the revocation hearing of August 28, 1964. The finding could possibly be read as a finding that movant had counsel at the sentencing. However it is not specific. Ordinarily this would require remand for specific finding. Hamilton v. State, 490 S.W.2d 363, 364[1] (Mo.App.1973). In this case, however, such finding would have no bearing upon the conclusion which we reach.

The movant relies primarily on the case of Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) which held that counsel must be afforded at a deferred sentencing which is a critical stage of the criminal process. When counsel is not present at sentencing and defendant is thereby prejudiced the cause will be remanded for a resentencing only.

At the time of defendant’s trial in June 1972, Mempa v. Rhay had been the law for almost five years. What was said in Montgomery v. State, 529 S.W.2d 8 (Mo.App. St.L., 1975) is apropos here: “Whether defendant was a second offender at the time of that conviction was a question of fact to be determined by the trial court in that proceeding. See State v. Thomas, 452 S.W.2d 160 (Mo.1970)[7]; State v. Garrett, 435 S.W.2d 662 (Mo.1968)[2, 3, 4]. If as a matter of fact or law the evidence failed to support that finding, the matter should have been preserved for and raised on appeal.” The constitutional principle sought to be invoked here was not one which was established subsequent to the trial and appeal in the second conviction.

As in McCrary v. State, 529 S.W.2d 467 (Mo.App.St.L., 1975) “. . . [movant] made no pretrial, trial or post trial objection”, to the introduction of the 1962 conviction. In fact, in the 1972 trial the movant took the stand in his own behalf and in a tactical move, on direct examination, testified that he had been convicted in 1962 and that his parole had been revoked in 1964. His attempt to testify that he had entered a plea with respect to the prior conviction was thwarted. We can find nothing in his 27.26 motion or on this appeal to explain his failure to object to the admission of that conviction or to refute the contention that he should have raised the claim in the 1972 trial and on the direct appeal which was taken in the case after that trial.

The circumstances herein also sustain a finding that a bypass of the orderly State procedure was made and thus movant is precluded from raising this issue at this time. McCrary v. State, supra.

As we read movant’s pro se brief he first contends that he should have been tried under § 556.150 the general statute on attempt rather than § 559.180 which is a statute specifically defining assault with intent to kill and providing for the punishment.

As with the first point discussed in this opinion this point does not attack any finding or conclusion of the trial court in the hearing on the 27.26 motion. Rule 27.-26(j); Dill v. State, supra; Slankard v. State, supra.

In any event movant’s contention is without merit. A similar contention was made and summarily disposed of by our Supreme Court in State v. Fielder, 210 Mo. 188, 109 S.W. 580 (1908). There, defendant was tried and convicted under Laws 1903, p. 159, for attempting to vote under a name not his own. He contended that he should have been tried under the general attempt statute § 2360 Rev. St.1899, which is now § 556.150. The court held that the act under which defendant was tried was complete in itself and in no way controlled by or in conflict with the statute which is now § 556.150. The same thing can be said in this case. § 559.180 defines the crime of assault with intent to kill; .it does not come within the purview of the attempt statute; it promulgates a distinct crime and is complete in itself. State v. Fielder, supra.

Movant next complains that he was denied the right of confrontation and cross-examination because the victim of the assault did not appear as a witness in the case. This very issue was before this court in the case of movant’s co-defendant and was decided adversely to his contention. See State v. Triplett, 520 S.W.2d 166, 171[14, 15] (Mo.App.1975).

For the reasons herein the judgment of the trial court is affirmed.

CLEMENS, P. J., and KELLY, J., concur.

      . All statutory references are to RSMo 1969, V.A.M.S. unless otherwise indicated.

      . On September 11, 1975, we were in receipt of a certified copy of an order of the Circuit Court of Greene County dated 14 July 1975 setting aside the sentence of December 21, 1962 and the revocation of probation on August 28, 1964 and ordering the State to “produce movant ... on the 25th of August 1975 . and then and there to be sentenced on the conviction of December 21, 1962”.

      . “Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or felony, or in resisting the execution of legal process, shall be punished by imprisonment in the penitentiary not less than two years.”