author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Cornell T. JONES, Appellant.
    No. KCD 27492.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    Motion for Rehearing and/or Transfer Denied July 7, 1975.

      Willard B. Bunch, Public Defender, Mark D. Johnson, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth,. Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Defendant appeals his conviction under Section 561.011, RSMo 1969, V.A.M.S., of possessing with intent to utter as true a personal money order, knowing the same to have been altered with intent to defraud. The jury was unable to agree on punishment, and the court sentenced defendant to a term of three years imprisonment. On December 20, 1973, defendant entered the Hanna Standard Service Station in Kansas City, Missouri, and stated he had run out of gas. He wanted a can with some gas, and when he was told it would require a $5.00 deposit, he gave the attendant a personal money order in the amount of $125.00. The attendant stated he would have to show the money order to the manager and get his approval before he could accept the same. He also requested some identification from the defendant. In response to this request, the defendant gave the attendant his driver’s license and the money order.

The attendant gave both items to the manager of the station who called the bank upon which the money order was drawn and learned the money order was stolen. At about the time the manager obtained the information as to the stolen nature of the money order, the defendant pushed his way into the manager’s office and demanded to know the delay. The manager informed defendant he had learned the money order was stolen and the defendant thereupon attempted to grab the money order from the manager, but was unsuccessful. The defendant then left the station and started walking down 10th Street.

The manager called the police and in response thereto a Kansas City policeman arrived and one of the station employees caught up with the defendant in a truck and pointed him out to the policeman, who thereupon placed him under arrest.

At the trial the prosecuting attorney in his opening statement stated he would show the money order was taken in an armed robbery but that the defendant was not identified as being one of the robbers. Later, in examining the manager of the Edison Credit Union, the State elicited testimony that the money order presented by the defendant at the service station had been taken from such credit union in the course of an armed robbery in August of 1973. The manager was asked if he recognized the defendant and he stated he did not, and he was further asked if the defendant was one of the men who held him up. The manager stated he could not recognize the defendant as one of the men who held up the credit union.

Defendant’s sole point on this appeal is the reference to the robbery in the opening statement and the questions to the credit union manager concerning the armed robbery violated the rule stated in State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954) prohibiting proof of the commission of separate and distinct crimes. Defendant claims the above statement and questions show the commission of another crime by the defendant in this case.

There are two answers to the defendant’s argument. The first is the State did not, in either its opening statement or its proof, purport to contend or prove that the defendant committed any crime other than the one for which he was being tried. The State in its opening statement told the jury it would show the defendant did not commit the robbery and the credit union manager stated he could not identify the defendant as one of those who did rob the credit union.

The second answer is found in State v. Whitley, 512 S.W.2d 840 (Mo.App.1974) in which this court, in almost an identical situation, stated at page 842[2, 3]:

“In this case, evidence that the check was stolen was properly admitted because it tended to show that the check was not issued to defendant, was forged, and that the defendant knew it was forged and intended to pass it with intent to defraud.”

This has been the holding also in State v. Forbus, 332 S.W.2d 931 (Mo.1960) and State v. DePoortere, 303 S.W.2d 920 (Mo.1957). For these reasons, the statement of the prosecutor and the questions asked of the credit union manager were not error.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Charles Patrick DILL, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27411.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    Motion for Rehearing and/or Transfer Denied July 7, 1975.

      Willard B. Bunch, Public Defender, James W. Fletcher, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Charles Patrick Dill withdrew his plea of not guilty to burglary second degree and stealing, and entered a plea of guilty prior to the beginning of trial. He was thereafter sentenced to five years confinement for the burglary and three years for stealing, with such sentences to run consecutively.

Appellant now appeals from the refusal of the circuit court to allow him to withdraw his plea of guilty and to set aside the judgment and sentence as requested in his motion under Rule 27.26, V.A.M.R.

In addition to the transcript of the evi-dentiary hearing conducted by the court on appellant’s motion, the parties stipulated that the transcript of the hearing at which the guilty plea was entered would be considered in ruling on appellant’s motion. In his motion appellant alleged that his plea of guilty had not been entered knowingly, intelligently and voluntarily; that the court had failed to comply with the requirements of Rule 25.04 in accepting his guilty plea; and at the time he entered his guilty plea he was under the influence of drugs and he was, therefore, unable to voluntarily enter a plea of guilty.

On this appeal, appellant urges that his guilty plea was not made voluntarily and with understanding of the nature of the charges or the consequences of the plea. He further contends he was under the influence of narcotics at the time he entered his plea.

At the evidentiary hearing, the appellant testified that he had “shot” drugs on the night prior to his appearance in court and in fact “shot” again immediately prior to entering the courtroom. He denied being able to remember anything of the proceedings except for the fact he had appeared in court. Appellant also called as a witness Richard Beitling, one of the two attorneys who appeared with appellant on the morning he entered his plea of guilty. Mr. Bei-tling testified he knew appellant was a user of narcotics and testified that on the morning of the court appearance the appellant appeared the same to him as he had on each of the other occasions when he had seen him. He described his condition as being, in his opinion, similar to that of a person who had been using narcotics. However, Mr. Beitling would not give his opinion that appellant was under the influence of narcotics at the time the plea was entered. The State called Charles Gallipeau, the other attorney who appeared with appellant at the guilty plea. Mr. Gallipeau stated in his opinion appellant did understand what the proceedings were and did voluntarily enter a plea of guilty.

The transcript of the proceedings at the time the plea of guilty was given and accepted by the court shows a very extensive examination of both the appellant and his two attorneys by the court to make sure all parties fully understood the fact a guilty plea was being entered and the full consequences thereof. This transcript reveals the court inquired of appellant if he were under the influence of any medications or drugs, and the appellant replied he was not. At the same time, the court verified with Mr. Gallipeau and Mr. Beitling that each of them was ready to proceed to trial at that very time if the appellant desired a trial.

The transcript of the guilty plea shows the court fully complied with Rule 25.04 by an inquiry which coincided with the one described in Moore v. State, 488 S.W.2d 266, 269[1, 2] (Mo.App.1972):

“On the record, the judicial inquiry ranged methodically over the movant’s physical and mental conditions, his comprehension of the consequences of his proffered plea, the range of punishment to which the plea would subject him, his right to trial by jury, the availability, of his counsel for advice, and the factual basis for the charges and his acknowl-edgement of their criminal commission.”

The trial court, at the conclusion of the hearing on the 27.26 motion, made findings of fact and conclusions of law in which the court concluded there was no factual basis for the allegation the plaintiff’s plea was involuntarily entered in view of the record made at the time the plea was received and accepted. The court found the appellant had not met his burden of proof by proving by a preponderance of the evidence that manifest injustice had resulted from the acceptance of his guilty plea. The court further found that defendant’s ability to enter a voluntary plea of guilty was not impaired by any drug usage and found that such plea had been made freely, voluntarily and with full understanding of the consequences thereof.

The review on this appeal of the denial of appellant’s motion under Rule 27.-26 is limited to a determination of whether the findings, conclusions and judgment of the trial court were clearly erroneous. Rule 27.26(j); O’Neil v. State, 502 S.W.2d 342 (Mo.1973). Here the judgment of the court is not clearly erroneous and for that reason the judgment must be affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lawrence C. YOUNG, Defendant-Appellant.
    No. KCD26997.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Kenneth O. McCutcheon, Jr., Woolsey & Yarger, Versailles, for defendant-appellant.
    William H. Bolinger, Pros. Atty., Morgan County, Versailles, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SHANGLER, and DIXON, JJ.
   DIXON, Judge.

The defendant-appellant was convicted of driving a motor vehicle while intoxicated, first offense, a misdemeanor under Section 564.440 RSMo 1969, V.A.M.S. The case was tried to a jury and the dispositive issue raised by the appellant is the admissibility in evidence of a chemical analysis of the appellant’s breath by means of a breathalyzer machine. The State has not favored this court with a brief, nor have the exhibits introduced by the State at trial been filed in this court.

The thrust of appellant’s argument as. to inadmissibility of the breathalyzer test is that the State’s foundation evidence conclusively demonstrated that the machine was inaccurate.

In the course of attempting to lay a foundation for the admission of the breathalyzer test, the State called Dr. Elmer Spurrier, Director of the laboratory for the State Division of Health. He testified as an expert for the State that the air chamber of a breathalyzer machine is supposed to hold 52.5 milliliters of air; and he further testified that if the air chamber of the breathalyzer machine contained more air than it is calibrated to test, it would indicate a higher reading of alcohol in the blood than was actually there. The extent of such variation was not developed, but the state patrolman who checked the machine before and after its use to test the breath of this defendant testified that the air chamber contained 56.5 milliliters of air. Conclusively from the State’s evidence, it appears that the reading of the breathalyzer machine which was submitted to the jury was inaccurate. The extent of such inaccuracy is not apparent upon the record. Absent some evidence from the State that the extent of such variance would not have affected the reliability of the tests, the result of the test should not have been admitted in evidence. The burden is upon the State to prove the accuracy and reliability of the test, and failure to carry that burden makes inadmissible the result of the test. State v. Deimeke, 500 S.W.2d 257, 259 (Mo. App.1973).

The judgment of conviction is reversed, and the cause is remanded for a new trial.

All concur.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Phillip v. MASONER, Appellant.
    No. KCD 27406.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    Motion for Rehearing and/or Transfer Denied July 7, 1975.
    Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, Mark D. Johnson, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

By the verdict of a jury appellant was found guilty of burglary in the second degree and stealing in connection therewith. The jury assessed punishment at two years imprisonment for each offense, and the trial court entered the sentences to be served consecutively.

The sole point made by appellant that the court erred in failing to declare a mistrial after the state in closing argument, remarked: “In this case there has been no explanation at all by the defendant as to why the property was recovered around him; no explanation at all.” The objection of appellant was that the argument was a comment on his failure to testify, and on this appeal, it is contended that the comment violated his rights under the Fifth Amendment to the Constitution of the United States; § 546.270 RSMo 1969, V.A. M.S., and Rule 26.08, V.A.M.R.

What occurred here is that the trial court sustained appellant’s objection and directed the jury to “disregard that last argument of the prosecutor.” In this posture there are many cases which hold that the trial court’s prompt action in directing the jury to disregard the comment cures the error, if any, and renders it harmless. State v. Gregg, 399 S.W.2d 7, 11[9] (Mo.1966), and cases cited; State v. Haynes, 455 S.W.2d 504, 505 (Mo.1970) [where it was said also that “The trial court observed the incident and any possible prejudicial effect that it might have had on the jury. He considered the matter as a ground contained in the motion for new trial. Under the circumstances, the trial court’s broad discretion in such matters will not be disturbed by this court. (Citing cases.)”]; State v. Sechrest, 485 S.W.2d 96, 99[4] (Mo.1972); State v. Busby, 486 S.W.2d 501, 505 (Mo.1972); State v. Lindner, 282 S.W.2d 547 (Mo.1955), cited by appellant, is distinguishable because there was no curative action taken by the trial court. In both the also cited cases of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229,14 L.Ed.2d 106 (1965), and Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the facts are distinguishable because in those cases the references to the defendants’ failure to testify were direct and certain, situations far different than that here present. Compare State v. Hutchinson, 458 S.W.2d 553, 555[3] (Mo. banc 1970).

Note the testimony of appellant’s brother, Allan Lee Masoner, offered on appellant’s behalf, who, although asked on cross-examination to explain various rings which the arresting officer found around him (and appellant) was unable to do so. Note also that the court gave Instruction No. 5, that “Under the law, a defendant has the right not to testify. No presumption of guilt may be raised and no inference of any kind may be raised from the fact that the defendant did not testify.” [MAI-CR 3.76.]

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    Lavera MEINECKE, Plaintiff-Appellant, v. STATE FARMERS MUTUAL INSURANCE COMPANY OF MISSOURI and Farmers Mutual Fire Insurance, Defendants-Respondents.
    No. KCD 27055.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      R. Leroy Miller, R. Max Humphreys, Allan D. Seidel, Miller & Humphreys, Trenton, for plaintiff-appellant.
    William J. Esely, Bethany, for defendants-respondents.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and SWOFFORD, J.
   PER CURIAM.

Plaintiff brought suit against defendant insurance companies on a policy of insurance to recover the value of certain cattle which plaintiff alleged had been stolen. The insurance policy insured plaintiff against loss by theft but such policy specifically excluded “loss caused by or resulting from mysterious disappearance”.

The parties waived a jury and submitted the cause to the court as against Farmers Mutual Fire Insurance Company only. The court found for the defendant insurance company and plaintiff perfected this appeal.

There is no dispute concerning the facts. Plaintiff rented 160 acres on which he placed 25 cows, 25 calves and 1 bull. The pasture was described as being partially timber covered and divided by a fairly wide creek. Plaintiff normally checked on these cattle about once or twice a week, and about the middle of November, 1971, first discovered a shortage in the number of cattle. The creek was up and plaintiff did not make a thorough check at that time but within two or three days thereafter was able to check the entire pasture and found 10 cows and 11 calves were missing. Plaintiff checked in the general vicinity of the pasture to see if he could find the missing cattle, and also checked sale barns in the vicinity to no avail. He placed an ad in the newspaper reading: “Lost, strayed or stolen, 10 head cows, 11 calves” and gave plaintiff’s name and phone number for anyone having knowledge to contact. The plaintiff also notified the sheriff of the missing cattle and stated to him such cattle had been missing for anywhere from three to six weeks. Plaintiff testified a gate between the pasture on which his cattle were located and an adjoining pasture was fastened with a new piece of wire, but he was unable to determine if there were any cattle tracks around this gate because of the grass. Plaintiff was also unable to tell if there were any recent automobile or truck tire marks around the gate leading from the pasture to the road, this despite the fact there was a short distance of gravel between the gate and the blacktop road. A neighbor who lived on the blacktop road, which was a dead-end road leading only to the gate and to the pasture where plaintiff’s cattle were kept, testified he had seen no strange persons or vehicles using the road and further stated he had been gone from home very seldom and certainly would have seen any strangers using this road.

Plaintiff stated some of his cattle had left this pasture through a water gap fence about a month prior to the time he missed the cattle in question here. He further stated the water gaps would frequently be washed out when the creek rose.

The facts in this case are practically identical with the facts in Gifford v. M.F.A. Mutual Insurance Company, 437 S.W.2d 714 (Mo.App.1969) in which this court held under a policy with identical coverage and exclusions with the one in this case, that the burden was on the plaintiff to prove his cattle had been stolen. In Gifford this court held plaintiff’s evidence did not prove theft but showed only mysterious disappearance. On the identical facts in this case, the ruling in Gifford is controlling. No error of law appears and an extended opinion would have no precedential value. The judgment is, therefore, affirmed. Rule 84.16(b), V.A.M.R.


author: WASSERSTROM, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Willie Lee McDOWELL, Appellant.
    No. KCD 27537.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    Motion for Rehearing and/or Transfer Denied July 7, 1975.
    Gerald M. Handley, Acting Public Defender, Mark D. Johnson, Asst. Public Defender, Kansas City, for appellant.
    John C. Danfprth, Atty. Gen., Jefferson City, Charles B. Blackmar, Spec. Asst. Atty. Gen., St. Louis, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Defendant appeals his conviction and sentence of imprisonment for a period of nine years assessed by a jury for the offense of Robbery in the First Degree under Sections 560.120 and 560.135, RSMo 1969, V.A.M.S. The sole point relied on is alleged error by the trial court in refusing a continuance.

In the early morning of January 31,1974, Mr. Larry Scott and Mr. Leon Eskina were robbed at gunpoint in a taxicab driven by Mr. Eskina. Previously that evening Mr. Scott had been approached by two men at the Continental Bus Station, and a conversation of approximately twenty to thirty minutes ensued concerning the possibility of sharing a cab ride to the Kansas City International Airport. The three men then left the station together in Mr. Eskina’s cab. After proceeding a short distance, one of the men other than Mr. Scott insisted that Mr. Eskina turn off in a direction away from the airport. Mr. Eskina made the turn and continued driving until he was directed into the parking lot of a public housing project. One of the men produced a gun, and the two men took money from Mr. Eskina and Mr. Scott and a coat from Mr. Scott. The robbers then fled on foot.

At 1:00 or 1:30 that morning, an officer took the complaint at the scene of the robbery. Still later that morning a line-up was conducted at the Kansas City, Missouri, Police Department, and both victims picked out the defendant as one of the men who robbed them.

On May 21, 1974, at the trial for the robbery of Mr. Eskina, both Mr. Scott and Mr. Eskina testified that the defendant, Willie Lee McDowell, was one of the robbers. The State rested its case before noon. At that time, the attorney for the defendant approached the bench and informed the court for the first time that he had been unable to locate and serve a subpoena upon a defense witness. The attorney requested and the court granted a recess allowing the attorney approximately two hours to procure his witness. In that connection, defendant’s counsel stated that he thought he could get the witness to court within the time granted “[i]f I am going to be able to get him here at all.”

When court reconvened, the defendant took the stand and testified that on the night of the robbery he had visited a girl friend until about midnight and then played basketball with about twenty-five people until about 3:30 to 4:00 A.M. After the completion of that testimony, counsel again told the judge that the missing witness was not in court and asked for a fifteen minute recess to check on the witness. The judge inquired whether ten minutes would suffice, and upon an affirmative reply, did recess the trial.

In the judge’s chambers, defendant’s counsel presented testimony of two investigators. One stated that he had contacted the wife of the witness at their apartment the day before and read a subpoena for her husband to her. Her husband was not home and a business card with the investigators’ names was left with her.

The other investigator said that during the noon recess he had been in contact with the prospective witness by phone, and the witness had stated that he did not want to get involved and felt he would be of no assistance to the defendant.

Counsel for the defendant then stated that the witness was a security guard and he would expect him to testify that he observed two persons that his radio report led him to believe were suspects in the robbery, although he did not see them flee the scene of the crime; that he saw them from a distance of about two hundred feet; and that they fled after seeing him. Furthermore, counsel stated he believed the witness would say he knows the defendant and the defendant was not one of the two men he saw.

Defendant’s attorney told the judge he could not say when the witness would be available. He then made a formal request for a continuance which the judge overruled. That ruling presents the solitary point raised on this appeal.

Rule 25.08, governing continuances in criminal cases, requires that an applicant for a continuance because of the absence of evidence “must show the materiality of the evidence expected to be obtained * * * and that due diligence has been used to obtain it.” Furthermore, if the application be on account of an absent witness, then the applicant must show “what diligence, if any, has been used in the premises by the applicant.” Still further, “[i]f the application is on the part of the defendant, it shall be supported by the oath or affidavit of the defendant or some reputable person in his behalf.” The granting of an application under this rule is addressed to the sound discretion of the trial court, and the appellate courts will not interfere unless it clearly appears that such discretion has been abused. State v. Scott, 338 S.W.2d 873, 876 (Mo.1960).

The denial of the continuance here could properly be affirmed wholly on the ground that no application was made in writing, supported by oath, as specifically required by Rule 25.08(b), V.A.M.R. State v. Martin, 515 S.W.2d 802, 804 (Mo.App.1974); State v. Boykins, 399 S.W.2d 70, 73 (Mo.1966). In addition to that, however, defendant completely failed to show the exercise of due diligence in efforts to obtain the presence of the absent witness. A litigant ought not to wait until the trial to find out whether a witness he contends to be material to his defense is available. State v. Scott, supra; State v. Boykins, supra; State v. Reynolds, 345 Mo. 79, 131 S.W.2d 552, 555 (1939). Furthermore, it has been held that an application for a continuance on the grounds that prospective witnesses are unavailable made after the jury has been sworn is untimely and the denial of such an application is not an abuse of discretion. State v. French, 476 S.W.2d 509, 512 (Mo.1972). In the case at bar, the defendant’s attorney did not inform the court of his difficulty in locating and serving a subpoena on the prospective witness until after the State had rested its case.

Still further, the State’s case based on unequivocal testimony of two eye-witnesses was strong; the defendant’s unsupported testimony was almost incredible; the missing testimony had little if any materiality; and the trial court had already granted a two-hour luncheon adjournment, which defendant’s counsel had stated was all he would need if he was ever “going to be able to get him [the missing witness] here at all.” Under all the circumstances, the denial of the application for a continuance was not an abuse of discretion. '

Affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    Rufus CAVANESS and Irene Cavaness, Plaintiffs-Respondents, v. Edwin ARMSTRONG and Harold Armstrong, Sr., Defendants-Appellants.
    No. 9755.
    Missouri Court of Appeals, Springfield District.
    July 8, 1975.

      John F. Low, Lebanon, for plaintiffs-respondents.
    Orville C. Winchell, Lebanon, for defendants-appellants.
   BILLINGS, Chief Judge.

In this jury waived case the Circuit Court of Laclede County found and determined the defendants trespassed on plaintiffs’ lands and cut and carried away timber of the value of $300. The court trebled the damages under § 537.340, RSMo 1969, V.A.M.S., and entered judgment for plaintiffs for $900. We affirm.

Defendants’ first point reminds us of our scope of review in a court tried case [Rule 73.01(3)(a)]. Being an abstract statement of law with no showing of how it is related to any action or ruling of the trial court, it preserves nothing for appellate review. Rule 84.04(d); Safe-Buy Real Estate Agency, Inc. v. Hemphill, 498 S.W.2d 599 (Mo.App.1973).

Defendants’ remaining points are likewise deficient and do not meet the standards required by the rules for appellate review. Point two states “The Court erred in not requiring the Plaintiffs to produce the ‘best evidence’ with regard to the property description.” The last point states “The Court erred in assessing damages and failed to follow the case law in this State for the measure of damages.”

We are left in judicial darkness as to “wherein” and “why” the lower court erred. The purpose of Rule 84.04(d) is to focus a beam of light on claimed errors in order that litigants and appellate courts may visibly know, by a concise summary, the issues sought to be reviewed. Hughes v. Wilson, 485 S.W.2d 620 (Mo.App.1972). We are not obligated and have no duty to seine through the entire brief or transcript in an effort to ascertain the points relied on. Anderson v. State, 493 S.W.2d 681 (Mo.App.1973).

Rather than dismiss this appeal, we have concluded, with considerable reluctance, to rule the case on its merits and consequently have read the trial transcript in its entirety, as weq as the briefs of the parties and authorities cited therein.

Defendants’ abortive point as to plaintiffs’ ownership of the land where defendants cut and hauled away timber is fully answered by this court’s decision in Gee v. Sherman, 221 Mo.App. 121, 293 S.W. 789 (1927). The lower court properly assessed damages under Keener v. Black River Electric Co-operative, 469 S.W.2d 657 (Mo.App.1971), and defendant’s reliance on Helton v. City of St Joseph, 340 S.W.2d 198 (Mo.App.1960) (landlord’s action against tenant for waste) is misplaced in a trespass to realty suit based on Section 537.340, RSMo 1969.

The judgment is affirmed.

All concur.


author: KELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Willis Louis RODGERS, Appellant.
    No. 35841.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 24, 1975.

      Charles D. Kitchin, Public Defender, Frederick R. Buckles, Marilyn K. Wallach, Asst. Public Defenders, St. Louis, for appellant.
    . John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   KELLY, Judge.

Appellant, Willis Louis Rodgers, was convicted in the Circuit Court of the City of St. Louis, of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, §§ 560.120 and 560.135 RSMo 1969, V.A.M.S. The trial court further found that he was subject to the provisions of the Second Offender Act, § 556.280 RSMo 1969, V.A.M.S., and pursuant thereto imposed a sentence of thirty-five years in the custody of the Missouri Department of Corrections upon him. This appeal followed.

Appellant does not question' the sufficiency of the evidence to support the jury verdict and because of the disposition we make of his appeal it is unnecessary for us to burden this opinion with a recitation of the facts developed during the course of the trial. A study of the transcript of the testimony reveals overwhelming evidence, to support the finding of the jury.

A Motion for New Trial was filed in the trial court on August 10, 1973, forty-three days after the entry of the jury verdict on June 28, 1973. Rule 27.20(a), V.A.M.R. requires that a Motion for New Trial be filed within ten days after return of the verdict. Upon application, the trial judge may extend the time for filing the Motion for New Trial for an additional period of thirty days, but he has no power to make another or further extension of the time for the filing of the Motion. No application for extension of time to file the Motion appears of record, and the trial judge overruled appellant’s Motion for New Trial on the grounds it was not timely filed. Compliance with Rule 27.20(a) is mandatory and a Motion for New Trial filed out of time is a nullity and preserves nothing for review. State v. Clark, 432 S.W.2d 279, 281[1, 2] (Mo.1968).

Being cognizant of his plight, appel-' lant has briefed two Points in this court which he prays we will consider under Rule 27.20(c) as “plain error.” His first Point is ¡ that the trial judge, shortly after the commencement of the trial, remarked to the jury that he believed there was present in the courtroom a lady who was perhaps the mother of the defendant; that she had a right to be there, but that she had a little baby in her arms which he, the Judge, had on good authority was not the defendant’s child. Appellant argues that the defendant in a criminal case may not testify to his family status and whether he is married and the father of children since this tends to create sympathy in his behalf and therefore the Court should not be permitted to inject into the case and the jury’s mind information of this nature which has no bearing on the issues in the case and tends to direct the jury’s attention to matters which have no evidentiary value in the case. He argues that the reason the court made this remaark was that it did not want the jury to be prejudiced by the fact that the defendant might be the father of the child. Thus, this remark constituted irrelevant and immaterial “evidence” and his counsel’s objection to it should have been sustained.

We are of the opinion that this remark was most certainly injudicious in light of the record before us. Nevertheless, at no point in appellant’s brief is any point made that what the judge said was not true. No claim is made at any time that the child in the courtroom was appellant’s nor that the lady holding the child was other than the mother of appellant. Even though the remark might better have been left unsaid, we decline to consider it as “plain error” under the Rule as we are given the discretion to do.

Appellant’s second Point is directed to prosecutorial argument wherein the Assistant Circuit Attorney argued to the jury:

“Now, he must stand up here, Mr. Buckles is a lawyer, and he must stand up here and try to inject some doubt — ”

Objection was made to this argument:

“I object to that. I’m not injecting any doubt and I’m not intending to inject any doubt.”

Appellant contends that this constituted a shifting of the burden of proof since he argues that he was under no duty to inject doubt into the case, but rather it was the duty of the State to prove appellant’s guilt beyond a reasonable doubt. We do not construe this line of argument in the same light as appellant nor are we of the opinion that it constitutes a shift of the burden of proof to the appellant. Prosecutors are permitted wide latitude to reply to defense counsel’s argument which is directed to discredit the prosecution’s case in the eyes of the jurors. The jury was properly instructed on the burden of proof and appellant’s counsel had argued the burden of proof also and pointed out to the jury those portions of the evidence which he contended were inconsistent and in conflict within the State’s case. Defense counsel pointed out differences in the description of the length of a black coat worn by one of the robbers, the reticence of a witness, Mrs. Dickerson, to identify the appellant in the lineup until they put a hat and coat on him, and the fact that it was only the appellant who was so adorned in the lineup so that when others came to view the lineup the fact that he was so clothed suggested to them that he was one of the robbers. Defense counsel also attacked the conduct of the lineup because one of the three men was not in it because he had been taken to the hospital. He then followed with:

“Aren’t these things that create a doubt in your mind, a reasonable doubt, as to this defendant’s guilt or innocence?”

From our vantage point we conclude that the prosecutorial argument above was merely retaliatory to that made by defense counsel and could not under any circumstances constitute error much less “plain error.”

We have considered the sufficiency of the Amended Information, the verdict, judgment and sentence and find them to be in proper form. Rule 28.02.

The judgment of the trial court is affirmed.

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


author:
CULLEN, Commissioner. STERNBERG, Justice
      JONES, Justice

text:
    Helena DORR, Appellant, v. Don D. FITZER et al., Appellees.
    Court of Appeals of Kentucky.
    March 21, 1975.
    As Modified on Denial of Rehearing May 23, 1975.

      David O. Welch, Caldwell, Van Antwerp, Welch & Hughes, Ashland, for appellant.
    John M. Williams, Gray, Woods & Cooper, Ashland, for appellees.
   CULLEN, Commissioner.

Appellant Helena Dorr taught school in the Boyd County School system, under limited contracts, for the school years 1966-67, 1967-68, 1968-69, and 1969-70. In May 1970 the board of education voted not to employ her for the 1970-71 school year, and she was not employed for that year. In September 1970 she brought suit against the board and its individual members, claiming that she was entitled to a continuing contract and to employment by virtue of that contract. She prayed that she be restored to employment in a continuing-contract status, and she asked for damages. The case was submitted on the pleadings, depositions, motions and memo-randa. The circuit court thereupon entered judgment dismissing the action. Mrs. Dorr has appealed from that judgment.

The determination of the issue in this case involves construction and application of KRS 160.380 and 161.740.

KRS 160.380 provides:
“All appointments * * * of * * * teachers * * * shall be made only upon the recommendation of the superintendent of schools, subject to the approval of the board. If the board of education cannot agree with the superintendent as to any legally qualified person recommended by the superintendent, the board of education may appeal to the state board of education to review the case and the decision of the state board of education shall be final ⅜ * * ft

In a number of cases, not involving continuing contract questions, this court held that the board of education cannot reject the superintendent’s recommendation for appointment of a teacher except upon a determination that the person recommended is morally unfit or educationally unqualified for the appointment. See Smith v. Beverly, 314 Ky. 651, 236 S.W.2d 914. However, it was held also that if the board votes to reject a recommended appointment, without the determination above mentioned, the rejection is valid if the superintendent thereupon withdraws the application, which withdrawal may be presumed from his recommending another appointee instead of insisting upon his initial recommendation. See Hale v. Board of Education of Calloway County, 254 Ky. 96, 70 S.W.2d 975.

The continuing-contract statute, KRS 161.740, provides that when a currently employed nontenure teacher is recommended for reemployment after teaching four consecutive years, “the superintendent shall recommend said teacher for a continuing contract, and, if the teacher is employed by the board of education, a written continuing contract shall be issued.” This statute has never been construed in regard to its relation with KRS 160.380, on the specific question of whether the board cannot reject the superintendent’s recommendation for a continuing contract unless the board determines that the person recommended is morally unfit or educationally unqualified.

Our task is to apply the foregoing statutes to the facts of the instant case.

Prior to the meeting of the Boyd County Board of Education scheduled for May 11, 1970, the superintendent prepared four lists of teachers, in the following categories :

“1. Teachers Eligible for Limited Contracts.”

“2. Teachers Eligible for Continuing Contracts.”

“3. Teachers Holding Continuing Contracts.”

“4. New Teachers Recommended for Employment.”

Mrs. Dorr’s name was on List No. 2, along with the names of several other teachers. However, none of the lists had any language of recommendation connected with them, except that List No. 4, as noted above, purported to be a list of new teachers “recommended” for employment.

On the day scheduled for the meeting the superintendent fell ill and was hospitalized. The meeting was held, however, without him, and an administrative employe of the system appeared in his place. The board treated the lists of names as recommendations and proceeded to vote on the appointments. From the list entitled “Teachers Eligible for Continuing Contracts” the board voted to employ all those listed except Mrs. Dorr and one other teacher. After the meeting adjourned the board chairman and. the administrative employe went to see the superintendent in the hospital, and told him of the board’s decision concerning Mrs. Dorr and the other rejected teacher. The superintendent then stated his acquiescence in and agreement to that action. On the basis of that acquiescence and agreement, the administrative employe wrote a letter to Mrs. Dorr, the following day, notifying her that she was not to be employed for the 1970-71 school year. The superintendent continued thereafter to concur in that disposition of his initial recommendation of Mrs. Dorr.

We are not persuaded that KRS 161.740 is subject to the same interpretation as that given to KRS 160.380, of requiring the board of education to accept the superintendent’s recommendation absent a determination of moral unfitness or educational unqualification. The provision of KRS 161.740 that “if the teacher is employed by the board” a continuing contract shall be issued means that the board has an open choice whether or not to make the employment that will result in a continuing contract. This meaning was strongly indicated by the terms of KRS 161.740 prior to the 1964 amendment of that section; then, it provided that the teacher recommended for a continuing contract would receive a continuing contract unless the recommendation was rejected by a four-fifths vote of the board. Obviously this contemplated rejection without regard to cause, for if cause existed there would be no reason to require a four-fifths vote. And we find nothing in the words of the statute in its present form to require the construction that cause now is required to reject a recommendation for a continuing contract.

Mrs. Door’s contention that she was deprived of a vested right to a teaching position without notice and hearing is not sustainable because KRS 160.380 is not applicable.

Moore v. Babb, Ky., 343 S.W.2d 373, is not in point, because there the teacher had been employed for the fifth year before the board undertook to deny her a continuing contract, the employment for the fifth year ¿rising by implication from a statute which since has been repealed.

The judgment is affirmed.

All concur except JONES and STERN-BERG, JJ., who dissent.

STERNBERG, Justice

(dissenting).

I must differ with the majority opinion and join with Justice Jones in his vigorous dissent.

Appellant had taught for four consecutive years in the Boyd County School District. At the May 7, 1970, meeting of the School Board of Boyd County, the superintendent certified a list of the personnel to be employed. Appellant was included in a list of teachers certified as “teachers eligible for continuing contracts”. The superintendent, by reason of illness, was not able to attend this board meeting. The record of the board of this meeting discloses that:

“On motion of Mr. Tackett, seconded by Mr. Baker and carried, the Board employed the certified personnel listed below as recommended by the superintendent with the exception of Helena Dorr and Wilmer C. Browning. Voting yes: Mr. Tackett; Mr. Baker; Mr. Willman, with the exception of Rhonda Cooksey, niece; Mr. Fitzer, with the exception of Doretha May, Sister-in-law; abstaining: Mr. Cooksey . . .

The superintendent never withdrew, directly or indirectly, his recommendation of appellant.

K.R.S. 161.740 pertains to the eligibility of teachers for continuing service contracts. This statute was amended in 1964; however, the effect of the amendment was not to change the entitlement of a teacher to a recommendation for a continuing service contract, nor did the amendment change the responsibility of the superintendent in his obligation to recommend persons for continuing service contracts. The only change that the amendment brought about was the number of negative votes required of the school board members to defeat a recommendation of the superintendent. So much of KRS 161.-740 as pertains to the subject is as follows:

“(1) Teachers eligible for continuing service status in any school district shall be those teachers who meet qualifications listed in this section:
* ⅜ ⅜ ⅜ ‡ #
(b) When a currently employed teacher is recommended for re-employment after teaching four (4) consecutive years in the same district, or after teaching four (4) years which shall fall within a period not to exceed six (6) years in the same district, the year of present employment included, the superintendent shall recommend said teacher for a continuing contract, and, if the teacher is employed by the board of education, a written continuing contract shall be issued.”

in Ritchie v. Dunn et al., 297 Ky. 410, 180 S,W.2d 284 (1944), this court had before it the right of a teacher to a continuing service contract. In commenting, this court stated:

“The Teachers’ Tenure Act provides that upon the recommendation of the Superintendent of Schools a teacher eligible for continuing service status shall be re-employed. * *

In Moore v. Babb, Ky., 343 S.W.2d 373 (1960), we said:

“The core of the case is whether or not the plaintiff had a ‘continuing contract status’ on March 31, 1959, when she was notified she would not be re-employed. * *

Mrs. Moore had been employed for five consecutive years at the time she was so notifed that she was not to be reemployed. After discussing KRS 161.740 and its application, this court said :

“When the last limited contract was given Mrs. Moore in 1957, she had been teaching three consecutive years. Giving her a two-year limited contract at that time was tantamount to recognizing that at the end of the first year of that contract (when she would have been teaching four years) she would be entitled under the law to a continuing service contract. So, it must be said that the appellant had achieved a continuing service status when notified in March, 1959, that her services would be discontinued; hence, she was entitled to continue teaching * *

In Whitley County Board of Education v. Meadors, Ky., 444 S.W.2d 890 (1969), this court again considered the right of a teacher to a continuing service contract, as follows:

“In March 1963, near the end of her fifth year of service under limited contracts as a teacher in the Whitley County school system, Fayrene Meadors was notified that she would not be employed for the 1963-64 school year. Claiming that she had continuing service status and thus was entitled to employment for the 1963-64 year and thereafter, Mrs. Meadors brought suit in the fall of 1963 against the board of education, its individual members, and the superintendent, asking that she be awarded a continuing contract beginning with the 1964 — 65 school year and * *

The trial court found that Mrs. Meadors was entitled to a continuing contract, and this court affirmed.

In Estill County Board of Education v. Rose, Ky., 518 S.W.2d 341 (1974), the circuit court held that Rose was entitled to either a continuing service status, generally referred to as tenure status (KRS 161.740), or a limited contract for the school year 1972. The Estill County case, supra, differs from the subject action in that Rose had resigned and had not taught for one year. However, “Prior to his resignation, Rose had acquired tenure status by meeting the qualifications enumerated in KRS 161.-740.” In disposing of the issue, this court stated:

“When the limited contract for the school year 1970-71 was given Rose, he had been teaching for more than the four years required and was entitled under the law to a continuing-service contract. When Rose was given the letter of May 14, 1971, he had already achieved a continuing-service status. His employment could be terminated only by the board’s complying with the requirement of KRS 161.780. Cf. Moore v. Babb, Ky., 343 S.W.2d 373 (1961).”

The facts in the four above-cited cases may differ with the subject action, but it is a difference without a distinction. This court has consistently held that a teacher possessing the necessary requirements and having been recommended by the superintendent is entitled to a continuing service contract of employment.

When the appellant, who was a currently employed teacher, was recommended for reemployment after she had taught four consecutive years in the school district, she was entitled to a written continuing service contract.

The board of education had a discretion in that “If the teacher is employed by the board of education, a written continuing contract shall be issued.” (Emphasis added) This discretion must not be exercised in an arbitrary manner. Kentucky Constitution § 2.

The status to which appellant had attained represented a right protected to her by the due process clauses of the Kentucky and United States Constitutions. (Ky. Const. § 11, U.S.Const., 14th Amend.)

The appellant was not advised of any reason that she was not employed for the school year 1970-71, but was bluntly, by a letter, told that she would not be rehired. This arbitrary action of the board is the very thing that was sought to be overcome by the Teachers’ Tenure Act. Equity regards as done that which ought to have been done.

Appellant was recommended by the superintendent for a continuing service contract, and no just cause has been shown, or attempted to be shown, that she is not entitled to all of the rights and privileges the same as if she had actually had a written document evidencing a continuing service contract. The board could only defeat her right to teach by resorting to the provisions of KRS 161.790.

I would reverse the judgment of the trial court with directions to grant summary judgment for Helena Dorr.

Accordingly, I dissent.

JONES, Justice

(dissenting).

In my view, the majority opinion is based neither on the law, nor is it supported by the facts. The result is not only harsh, it is cruel. In a long line of cases this court has consistently adhered to the tenets of the teacher tenure act. The majority opinion evinces a radical departure from previous opinions of this court which strictly construed the tenure and retirement act.

Helena Dorr taught four consecutive years in the Boyd County School District. On May 7, 1970, the superintendent prepared an agenda for a board meeting to be held on May 11, 1970. One of the express purposes of that meeting was to employ personnel for the 1970-1971 school year. Attached to the agenda was a certified list of personnel to be employed. Included in the list was a category described as “teachers eligible for continuing contracts.” Under this designation, Helena Dorr and twelve other teachers were listed.

When the board met on May 11, 1970, each of the five board members had the certified list before them. They considered the list of teachers to be those recommended by the superintendent. Some of the members so testified. All the members testified that there was no deviation in the procedure from other years. The only difference was that the superintendent was ill and unable to attend the meeting.

The superintendent recommended Helena Dorr for a continuing contract. This is reflected not only by the evidence of the board members, but also by the records of the May 11, 1970 meeting. The superintendent complied with the statute which provides:

“(1) Teachers eligible for continuing status in any school district . . . (b) . .- . after teaching four years . . . the year of present employment included, the superintendent shall recommend said teacher for a continuing contract, and, if the teacher is employed by the board of education, a written continuing contract shall be issued. . . .” KRS 161.740(1) (b).

Thus, the superintendent complied with the statute; the board did not. The record of the board proceedings of May 11, 1970, Order No. 175, states :

“On motion of Mr. Tackett, seconded by Mr. Baker and carried, the Board employed the certified personnel listed below as recommended by the superintendent with the exception of Helena Dorr and Wilmer C. Browning. Voting yes: Mr. Tackett; Mr. Baker; Mr. Willman, with the exception of Rhonda Cooksey, niece; Mr. Fitzer, with the exception of Doretha May, Sister-in-law; abstaining: Mr. Cooksey. . . .”

The evidence is conclusive that the superintendent at no time directly or indirectly withdrew his recommendation of Helena Dorr. The contrary is indicated by his testimony:

“Q 102. Did you ever withdraw . . . Mrs. Dorr’s name from the list that you gave to the board?
A. Not in the sense that I made the statement that I withdrew their names.
Q 103. Did you ever furnish the board a list in May, 1970, which did not have Mrs. Dorr’s name on it and Mr. Browning’s name on it?
A. They were both included on the list of those eligible for continuing contracts.
Q 105. You didn’t take them off even in the hospital or wherever you were?
A. No, I never did strike out their names from those eligible for continuing contracts.”

The fact that Helena Dorr’s name was not withdrawn is buttressed by the official records of the board at a meeting on May 21, 1970. The purpose of that meeting was to reconsider the action of the board at its May 11, 1970 meeting. The superintendent was present. He was eloquent by his silence. According to the evidence, he “made no comment whatsoever.” If he had withdrawn his recommendation, it would have been appropriate for him to have said so.. Helena Dorr’s principal and other school personnel were present and,

“Each school personnel member present at the meeting (May 21, 1970), was asked to make voluntary statements concerning their feelings and observations regarding the teaching performance of Mrs. Dorr. Resulting statements from the school personnel involved were generally favorable.”

Thus, Helena Dorr was recommended by the superintendent. The recommendation was never withdrawn. The board should then have appealed to the state board of education for a review of the action. KRS 160.380. When Helena Dorr was legally recommended by the superintendent, and the recommendation was not withdrawn she acquired a vested right to teach. She was deprived of that right by the illegal action of the board. Once a teacher has been legally recommended and there has been no withdrawal of that recommendation, that teacher has acquired a vested right to teach. Cf. Wisdom’s Adm’r v. Sims, 284 Ky. 258, 144 S.W.2d 232 (1940).

The board made a feeble attempt to comply with KRS 161.750(2). That provision applies only to teachers who are not eligible for continuing contracts. However, if Helena Dorr had been employed under a limited contract, the notice was wholly insufficient. The statute provides that, “any teacher employed under a limited contract and ineligible for a continuing contract shall at the expiration of such limited contract be deemed re-employed . . . unless the employing board shall give such teacher written notice on or before the fifteenth of May of its intention not to reemploy him . . . .” The board did not comply with this requirement. Paul H. Adams, a Federal Coordinator, who called himself “assistant to the superintendent,” wrote a letter to Helena Dorr notifying her of the action of the board at its May 11, 1970 meeting; that she would not be reemployed for the 1970-1971 school year. There is nothing in the record to indicate that any member of the board ever notified Helena Dorr of the board’s action. On the contrary, the board members testified they gave no such notice to Helena Dorr.

I am of the opinion that the trial court was in error in holding that Mrs. Dorr was not entitled to a hearing to challenge the board’s failure to issue her a continuing contract. Since the action of the board deprived her of a vested property right, she was entitled to a hearing to satisfy the procedural requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Property interests are not created by the constitution. They are created and defined from an independent source such as a state law which was violated by the board in this case. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives; reliance that must not be arbitrarily undermined. It is the purpose of the constitutional right to a hearing to provide an opportunity to vindicate those claims. Board of Regents v. Roth, 408 U. S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

“ . . .a state-employed teacher who has a right to re-employment under a state law, arising from either an express or implied contract, has in turn, a right guaranteed by the Fourteenth Amendment to some form of prior administrative or academic hearing on the cause.” Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

Helena Dorr was not even shown the courtesy of a hearing under KRS 161.790; which provides the manner of the termination of a contract of a teacher who has continuing status. There was no evidence that Mrs. Dorr was insubordinate; immoral of character of conduct unbecoming a teacher; that she had physical or mental disability; or that she was inefficient, incompetent, or had neglected her duty. In fact, Mrs. Dorr was afforded no opportunity for any type of hearing. The evidence reveals that she had a Masters’ Degree, and her principal for the four years she taught at the Summit Elementary School gave her a very favorable report at the May 21, 1970 meeting of the board. His report was bolstered by statements of other school personnel.

This court has said:

“It is well established that a governmental body may not deal in a purely arbitrary manner with the compensation or work assignment of its employees.” Snapp v. Deskins, Ky., 450 S.W.2d 246 (1970).

No teacher in any school system should be buffeted by the whim and caprice of either the superintendent or the board. In my view, the majority opinion shakes the very foundation of teacher tenure. Its effect would permit any board of education to deny any teacher who had achieved continuing status the vested right that teacher had attained.

I would reverse the judgment of the trial court with directions to grant summary judgment for Helena Dorr.

Accordingly, I dissent.

      . The superintendent later recommended another teacher as a replacement for Mrs. Dorr, and the board hired that teacher.