author: SWOFFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Parry L. MORGAN, Appellant.
    No. KCD 28230.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Joe Hamilton Scott, Public Defender, Richard J. Yocum, John F. Burns, Asst. Public Defenders, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., Douglas Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, and SOMERVILLE, JJ.
   SWOFFORD, Judge.

In a court-tried case, the appellant (defendant) was found guilty of rape, in violation of Section 559.260 RSMo 1969 (Laws 1975), and of robbery in the first degree, in violation of Section 560.120 and Section 560.135, RSMo 1969. He was sentenced to life imprisonment on the rape conviction and to ten years on the robbery conviction, such sentences to run consecutively.

Upon this appeal the defendant puts forward three assignments of error upon which he seeks reversal of his convictions. These points may be summarized as follows: First, the court erred in overruling his motion for severance of the rape from the robbery charge, and in requiring him to defend each charge in one trial since the two charges were for dissimilar crimes occurring at different times. As a result of that ruling, the defendant asserts, his right to a jury trial was “chilled” due to the application of Section 546.480 RSMo 1969, which statute has since been declared unconstitutional . Second, the court erred when it denied the defense counsel the right to argue in summation and thus denied him a fair trial, in violation of his Sixth Amendment right to assistance of counsel in his defense. Third, the court lacked jurisdiction of the rape charge because the information was defective in that it omitted a vital element of the charge, namely, that the rape was committed upon the victim without her consent.

The evidence necessary for a determination of these points may be briefly stated.

At about 10:20 o’clock p. m. on July 28, 1974, P_W_and her four-year-old son returned to their apartment after visiting her parents’ home. She noticed that the lights were not on, and upon entering the apartment she observed ashes on the living room floor, although she was a non-smoker and did not know anyone who smoked. Turning on the lights in the apartment, she noticed that the basement door was open. Proceeding to the kitchen, she observed that the back door was unlocked and the screen door leading to the back porch was not latched. When she opened the back door in order to latch the screen, she observed a man, she screamed, and the man jumped into the apartment with a knife in his hand. The man backed her into the lighted apartment and demanded her money. He obtained $20.00 from her purse and then asked her if she could get him any “dope”. She advised him of her inability to do so. He then told her he knew that she had no telephone and could not call the police, and that he would watch the apartment, and if she attempted to leave it, he would kill her. He then left the apartment through the kitchen door which she thereupon locked and went to her little boy, whom she attempted to comfort. She then went to the front room to obtain her keys and was contemplating an attempt to run for help when she heard a loud noise from the rear of the apartment. The man reentered the apartment, sat with P_W_ and her son in the living room, held a knife to the boy and stated he was “not finished yet”. He then ordered her to the bedroom, forced her to disrobe and performed oral sex on her and then raped her.

He then ordered her into the kitchen to get him a drink. She fixed him several soft drinks, which he drank, still holding the knife “at” her, and then he told her he was a “dope fiend” and wanted her to get him some more money. She agreed, and the man, the little boy and she drove to the home of her aunt. The man got out of the car and told her he would give her five minutes and if she did not return in that time, he would kill her and her son.

When P_W_and her son were safely inside her aunt’s home, she told her aunt and uncle what had happened and the police were called. She described her assailant as a Caucasian, wearing dirty green jeans, a white button-down shirt with a T-shirt underneath, with balding black hair which partially hung in his face. She stated he was dumpy, dirty, “dark”, had dark eyes and had a tic in his left eye.

The defendant was arrested one week later and P.__ W_identified him in two police lineups as her assailant. She also made positive and unequivocal in-court identification of the defendant.

Defendant’s jurisdictional point (III) first demands attention because if the information is fatally defective, his other points need not be considered. This point (III) is ruled against defendant.

The substantive portion of Section 559.-260 RSMo 1969 (Laws 1975), as applicable here, states:

“Every person who shall be convicted of rape * * * by forcibly ravishing any woman of the age of sixteen years or upward, shall be punished by imprisonment by the division of corrections for not less than two years.” (Emphasis supplied)

Decisional law is clear that the essential elements of the crime of rape are (1) carnal knowledge; (2) force; and (3) the commission of the act against the will or without the consent of the woman. State v. Deckard, 426 S.W.2d 88, 90[1] (Mo.1968); State v. Abron, 492 S.W.2d 387, 388-389[1] (Mo.App.1973).

The information here charged that the defendant

“* * * did wilfully, unlawfully, forcibly and feloniously ravish a woman of the age of sixteen years or upward, to-wit: P_ L_ W_ ⅜ * *” (Emphasis supplied)

Obviously, the information here was framed in the language of the above-quoted statute, which, as a general rule, is deemed to be sufficient. State v. Tandy, 401 S.W.2d 409, 413[3] (Mo.1966); State v. Gray, 423 S.W.2d 776, 781[4] (Mo.1968).

But the defendant asserts that since the information does not include the statement of “without the consent” or “against the will”, an element of the offense under deci-sional law, it is fatally defective, and the inclusion of the word “ravish” does not fill this void. He states that the word “ravish” can be defined in three ways, (1) to seize and carry away forcibly; (2) to rape (a woman); and (3) to transport with joy and delight; enrapture. His argument proceeds: “If a defendant is to make a choice between the three definitions, he will have a 33⅛% chance of being correct.” Only by choosing the second definition, he asserts, could he be advised of the charge of rape. This profoundly convoluted and tortuous argument is specious, and if adopted, would fly in the face of the above precedents and convert our courts into linguistic and semantic battlefields, and is, therefore, rejected.

It has been logically held that the term “ravish” means more than merely sexual intercourse and carries the implication and meaning of carnal knowledge by force and without consent. It is a synonymous term with “rape”. State v. Berezuk, 331 Mo. 626, 55 S.W.2d 949, 952[8] (1932); State v. Berry, 361 Mo. 904, 237 S.W.2d 91, 92-93 (1951); State v. Meinhart, 73 Mo. 562, 567 (Mo.1881). The statutory word “ravish” is specific and not generic. State v. Abron, supra, at 1. c. 389[6].

Thus, the information here is sufficient to advise the defendant of the charge against him, and he could not have been misled nor put to the risk of double jeopardy—the ultimate tests which are required to support jurisdiction. State v. Dayton, 535 S.W.2d 469, 478-479[18] (Mo.App.1976); State v. Moore, 501 S.W.2d 197, 199[3, 4] (Mo.App.1973); O’Neal v. State, 486 S.W.2d 206, 207[1] (Mo.1972). The information was sufficient to confer jurisdiction on the court below and to form the basis for conviction.

The information was filed in this case on October 7, 1974, the date of defendant’s arraignment. On December 23, 1974, the defendant filed his Motion for Severance of Trial of Counts of Information, which was overruled by the court. At the opening of the trial on February 12, 1975, defense counsel orally renewed the motion for severance, which was again overruled; a jury trial was waived after the defendant had been interrogated at some length as to his awareness of his right to a jury trial and the effect of such waiver.

As above noted, the defendant’s first assignment of error is based upon the court’s refusal to order a severance and separate trial of the rape and the robbery charges. His reasoning (once again somewhat obscure) seems to be that, since Section 546.480 RSMo 1969 (providing that where a person has been convicted of two or more offenses the sentences shall run consecutively) has been declared unconstitutional in State v. Baker, 524 S.W.2d 122 (Mo.banc 1975), his right to a jury trial was “chilled” or somehow he was forced into waiving a jury. The logic of such reasoning is, to say the least, elusive, and the facts apparent on the record belie the basic premise. It is clear from the record that the decision to waive a jury was a joint one by the defendant and his counsel, and that the defendant knowingly and voluntarily authorized such waiver.

It should be further noted that in State v. Baker, supra, the court remanded the case for resentencing and the exercise of the discretion of the trial judge to meet the constitutional faults of the mandatory sentencing requirements of Section 546.480 RSMo 1969. This practice has been followed since the Baker decision by other courts. State v. Blaine, 528 S.W.2d 801 (Mo.App.1975); State v. McCollum, 527 S.W.2d 710, 714[5] (Mo.App.1975). The record of the instant case affords no support that the trial judge acted under the compulsion of Section 546.480 RSMo 1969 in sentencing the defendant, but to the contrary, clearly reflects the fact that the trial judge exercised his discretion and he expressly stated that he had given consideration to the nature of the crimes, the facts and circumstances surrounding their commission, and the defendant’s past record.

Further, while the court in State v. Baker, supra, did declare Section 546.480 RSMo 1969 unconstitutional because it foreclosed the exercise of discretion by the trial court in imposing sentence on multiple offenders, provided more severe punishment for them, and thus denied equal protection, it did not condemn the joinder of separate offenses in a single indictment or information under the provisions of Rule 24.04. On the contrary, the court held that “A defendant does not have either a federal or state constitutional right to be tried on only one offense at a time.” (at 1. c. 126[3]); and that Rule 24.04 is a procedural rule which permits joinder of separate offenses under the conditions therein stated, has no provision relating to sentencing procedures, and, does not “mandate any difference in treatment between those charged jointly and those charged in separate informations or indictments.” Thus, the court held the Rule was not tainted with the unconstitutionality of denial of equal protection, as was Section 546.480. (1. c. 127[5]).

Rule 24.04, effective July 1, 1971, provides in pertinent part:

“All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute. * * * ”

An understanding of the present state of the law in Missouri on this point requires a review of the decisional law and the purpose of the 1971 amendment of Rule 24.04, above quoted.

In the case of State v. Terry, 325 S.W.2d 1, 4[3] (Mo.1959) (strongly relied upon by the defendant) the court held that “a defendant may not properly be convicted at the same trial of two distinct felonies except in those instances specifically provided for by statute.”, and cited a long line of earlier cases. The obvious reason for this rule was to relieve a defendant of the necessity of meeting the charges to two separate and distinct offenses at the same trial.

In 1970, the Supreme Court of the United States decided the case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, which involved a Missouri case where the defendant was alleged to have been a participant in an armed robbery of a poker game. Each of the six poker players was relieved of his funds. The defendant was charged with the robbery of one of the players and was acquitted. He was, however, facing separate charges and trials for the robbery of the other victims. The court clearly stated the issue to be whether the State of Missouri violated his guarantee against double jeopardy when it prosecuted him again for the armed robbery of a second victim. The issue was specifically limited to that area, the court stating, 397 U.S. 1. c. 446, 90 S.Ct. 1. c. 1195:

“The question is not whether Missouri can validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial involving the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.”

The question thus defined and limited was answered by the Ashe court in the negative upon the basis of the collateral estoppel rule which it declared to be a part of the Fifth Amendment guarantee against double jeopardy.

The adoption of amended Rule 24.04 in 1971, “represented an effort to reconcile the ‘Missouri rule’, supra, the Terry holding, and the ‘double jeopardy-collateral estoppel’ holding in Ashe v. Swenson * * *.” Concurring opinion, Donnelly, J., in State v. Neal, 514 S.W.2d 544, 550 (Mo.banc 1974).

In State v. Neal, the court approved the joinder under amended Rule 24.04, in an information of a count charging robbery first degree by means of a dangerous and deadly weapon with a count charging assault with intent to kill with malice aforethought, where both arose out of the robbery of a hardware store.

In State v. Walker, 484 S.W.2d 284,286[3] (Mo.1972), it was held that amended Rule 24.04 was a procedural rule and would permit the joinder in one information of a count charging rape and two counts charging separate acts of sodomy. The defendant had been so charged, tried and convicted before the effective date of amended Rule 24.04 when such joinder was not permissible and his objection to the information and his motion to require the state to elect had been overruled. The court affirmed the convictions upon the basis that upon remand the state would be authorized, under the procedures of amended Rule 24.-04, “to retry appellant in the precise manner in which the first trial was held.”

In State v. Johnson, 505 S.W.2d 11 (Mo.App.1974), the defendant was convicted of first degree robbery (Count I) and operating a motor vehicle without the owner’s consent (Count II). The only valid issue on appeal was whether or not the trial court properly permitted the State to try both counts at one trial. The court held that where an automobile was feloniously taken and was used immediately before and after the defendant robbed another person, and where only about an hour elapsed between the time the automobile was taken and the time it was used in the robbery, the offenses were so closely intertwined in time and purpose that they were part of the same transaction and were properly joined for trial. In so holding, the court noted the similarity of Rule 8(a) of the Federal Rules of Criminal Procedure and stated, 1. c. 12[1]:

“Under this federal rule broad joinder is encouraged in the interests of more efficient administration of criminal justice but the trial court has a continuing duty during trial to counter prejudice and order severance if necessary. United States v. Wilson, 140 U.S.App.D.C. 220, 434 F.2d 494 (1970). However, when the testimony and evidence of two offenses are separated by court and counsel (as was done here) and the jury can distinguish between two offenses, no prejudice results. Hill v. United States, 135 U.S. App.D.C. 233, 418 F.2d 449 (1968).”

In State v. Brooks, 513 S.W.2d 168 (Mo.App.1973), the defendant was convicted of assault with intent to maim with malice, and robbery in the first degree. On September 23, 1971, defendant, in the company of three other persons, went to visit the victim at her cousin’s apartment where she was baby-sitting. Following this initial meeting, all the men left. Three discussed returning and stealing a television and tape deck from the apartment. They did return and were admitted to the apartment by the victim. There was considerable discrepancy between the testimony of the victim and a eoparticipant-prosecution witness as to the number of times the three men were in the apartment and who left and reentered the apartment during the afternoon. Eventually, defendant grabbed the victim around the neck and choked her and she fainted. The coparticipant-prosecution witness testified that the three men then left the apartment but upon reaching the defendant’s ear, the defendant stated that he was going back up to the apartment and would meet them later on a nearby street. Shortly thereafter, he met them and blood was observed on his hand. Defendant proceeded to tell his coparticipants that he had stabbed the victim’s eyes out. In ruling on the joinder issue, the court stated, 1. c. 171[5]:

“Defendant also contends that, although Rule 24.04, V.A.M.R. authorizes joinder of two distinct felonies in one indictment, it does not authorize conviction on both offenses. State v. Johnson, 499 S.W.2d 371 (Mo.1973) approves conviction on both offenses charged jointly under Rule 24.04. The joinder was not improper here. The rule authorizes joinder of two or more offenses, even though separate and distinct ‘. . . which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan. . . .’ The blinding of Miss Chestnut was, under the State’s evidence, to prevent her identification of the robbers. Both crimes were part of a common scheme — the robbery.”

The crimes here charged were clearly properly joined under amended Rule 24.-04. All of the events occurred within the victim’s home; all were linked with the defendant’s attempt to obtain money both before and after the rape; the victim of the crimes was the same person; only ten or fifteen minutes elapsed between the robbery and the rape; both were acts which were inseparable parts of the same transaction or scheme; each was a separate criminal offense and by stating them in separate counts the state was not attempting to split a single crime and prosecute it in separate parts. The defendant’s first assignment of error is ruled against him.

The defendant’s second point is that the trial court denied him his right to a fair trial by an abridgement of his Sixth Amendment right to assistance of counsel, in that the court denied his counsel the opportunity to argue the case in summation at the close of the evidence and before the finding of guilt on each of the charges.

The factual background of this assignment of error, as disclosed by the record, is that the evidence was concluded in one day, February 12, 1975. At the end of the state’s case, defense counsel moved for a judgment of acquittal on both counts and was permitted to argue both the facts and the law in support of that motion.

After very brief evidence for the defense (the defendant did not testify), counsel renewed his motion for acquittal and was again permitted to argue the law and the facts in support thereof. The court overruled the motion and immediately entered a finding of guilt on both counts and ordered a pre-sentence investigation. Thereupon, the following colloquy appears:

“MR. SOKOL (Defense Counsel): Your Honor, might I at this time note of record that I object to the Court’s entering its finding of guilt before I have an opportunity to argue?
THE COURT: If you wish to request findings and conclusions, you may submit — both parties may submit suggested findings and conclusions for consideration by the Court.
MR. SOKOL: If I might complete my—
THE COURT: That should be done within 14 days.
MR. SOKOL: If I might complete my statement, I would at this time note my objection of record to the Court entering findings of guilt after the defendant merely made statements requesting a determination as a matter of law at the close of the evidence and before he is accorded an opportunity to give a closing statement.
THE COURT: If the defendant wishes, suggested findings and conclusions may be submitted, of course. It should be done within two weeks, after which time the State may also file suggestions as to findings and conclusions, if the State wishes.
MR. SOKOL: Thank you, Your Honor.
MISS CLARK: Thank you, Your Hon- or.”

In Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (decided June 30, 1975), the United States Supreme Court held that the Sixth Amendment’s guarantee of the assistance of counsel was violated by a New York statute which gave the trial judge discretion, in a non-jury criminal trial, to deny counsel an opportunity to make a closing summation. In so holding, applying the rules stated with equal force to both court and jury trial cases, the court stated, 1. c. 858, 95 S.Ct. 1. c. 2553, 45 L.Ed.2d 1. c. 598 [1. c. 5]:

“There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge. The issue has been considered less often in the context of a so-called bench trial. But the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense.”
* * ⅜ ⅜ * *

(L. c. 862, 95 S.Ct. 1. c. 2555, 45 L.Ed.2d 1. c. 600[7]):

“This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion. * * * ”
* * * * * *

(L. e. 863, 95 S.Ct. 1. c. 2555, 45 L.Ed.2d 1. c. 601[ld]):

“But there can be no justification for a statute that empowers a trial judge to deny absolutely the opportunity for any closing summation at all. The only conceivable interest served by such a statute is expediency. Yet the difference in any case between total denial of final argument and a concise but persuasive summation could spell the difference, for the defendant, between liberty and unjust imprisonment.”

This decision clearly declares that the right of counsel to argue (within reasonable limits) in summation is an integral part of the very constitutional right to counsel, even in court-tried cases. However, since Herring was not handed down until some four and one-half months after the trial of the case at bar, the dispositive issue here is whether or not the principles declared in Herring should be given retroactive application. Certain guidelines are furnished by decisions of the Supreme Court of the United States.

In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Supreme Court thoroughly considered the issue of retroactivity, and refused to apply such rule to the precepts of the Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) decisions. In so holding, the court stated: (86 S.Ct. 1. c. 1778[4]):

“We also stress that the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved. Accordingly * * * , we must determine retroactivity ‘in each case'by looking to the peculiar traits of the specific ‘rule in question.’ ” (Emphasis supplied)

The Johnson court noted two cases in which constitutional rules of criminal procedure were given retroactive application. One was Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which involved the right of an indigent to counsel at trial, and the other was Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), which involved the right of a defendant to the exclusion at his trial of an involuntary confession. In connection with these cases, the Johnson court commented:

(86 S.Ct., 1. c. 1778)
“ * * * In each instance we concluded that retroactive application was justified because the rule affected ‘the very integrity of the fact-finding process’ and averted ‘the clear danger of convicting the innocent.’ * * * ” (Emphasis supplied)

The court further stated in Johnson:

(86 S.Ct., 1. c. 1778[5])
“Finally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree. * * * ” (Emphasis supplied)

While a court, sitting as the trier of the facts, should permit counsel for the defense a reasonable opportunity to argue the case in summation (under the Herring rule of criminal procedure), the failure of the court here to do so does not conceivably rise to the level of error so corruptive of the “integrity of the fact-finding process” nor present such a “clear danger of convicting the innocent” as to require a retroactive application of that rule.

The state presented a strong case of direct evidence of guilt in the trial of this case; the defense counsel was permitted unlimited opportunity to argue both facts and law in support of his motions for judgment of acquittal; and, it defies legal imagination that additional argument, on the same day of trial, when the evidence was fresh in the court’s mind and commanded its keen perception, could have swayed the court toward a different conclusion. For these reasons, the defendant’s second point or assignment of error is ruled against him.

The judgment is therefore affirmed.

All concur.

      . State v. Baker, 524 S.W.2d 122 (Mo.banc 1975).

      . For cases in which retroactivity application was denied, see: Escobedo v. Illinois, and Miranda v. Arizona, above noted. See also: Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), involving the Fourth Amendment exclusionary rule; Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), involving comments by prosecutor on failure of defendant to testify.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Freddy B. JOHNSON, Appellant.
    Nos. KCD 28286, KCD 28339.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Douglas Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by the court of robbery, first degree. The question is the sufficiency of evidence. Affirmed.

On March 11, 1975, Edward 0. Bruner was a manager of 8th Street News, an adult bookstore at 108 East Eighth Street, Kansas City, Jackson County, Missouri. Around 11:00 a. m., a Negro male entered the store and went to the rear of the store. He returned to the front of the store holding a blue steel revolver which he pointed at Mr. Bruner and demanded “all the money.” In response, Mr. Bruner went to the cash register and gave his assailant the contents, “eighty dollars and some odd cents.” The robber then took Mr. Bruner and two customers to the rear of the store and directed them to sit on the floor. As they moved to the rear of the store, another customer came in and he, too, was relieved of his money and directed to the rear of the store. The robber was in the store “between eight and ten minutes.” Mr. Bruner viewed him for five or six minutes and made an in-court identification of defendant as the robber. He had previously identified defendant from an array of photographs and at a police line-up. As soon as the robber left the store, Mr. Bruner went to the front door and saw the robber “about 25 feet up the hill on 8th going toward Grand, that’s to the east * * * I followed him on up to the corner of 8th and Grand * * * He turned north on Grand and * * * went into the parking garage and a few seconds later, a Cadillac, it was dark green over light green, * * backed out at a high rate of speed and went north on Grand to 7th and made a right turn east on 7th and disappeared.” Mr. Bruner described the robber to the investigating police officer as “approximately five foot seven or eight, weighed 175 to 180 pounds, was a little difficult to tell his build because he had on a loose fitting leather coat, brown coat. He was round faced, light complected and he was rather ruddy because it was a cold day. * * * he had a small mustache. No scars that I recall.” The customers in the store left without giving names or addresses.

Homer L. Waymon was employed at Grand Avenue Garage, 718 Grand, Kansas City, Missouri. A little after 11:00 a. m., March 11, 1975, “an older model Cadillac pulled in my driveway. * * * it’s dark green or around some dark colored green. * * * there was a fellow driving it. * * * fellow run from the center of the street [Grand Avenue, coming from the south] jumped in it. * * * Backed out in the street and stopped traffic both ways and took off headed east.” The man who jumped in the car was wearing a dark colored full length coat, “dark brown or maybe something of that nature.”

Clarence C. Walton, Jr., of the Kansas City Police Department arrived at 108 East Eighth Street at 11:15 a. m. He found the till open and empty, and Mr. Bruner was the only person present. Mr. Bruner described the robber as a “Negro male, 20 to 25 years of age, five ten, 180, in a medium build, light complected and gentleman was wearing a brown hat of some type and a light brown [leather] coat.”

The foregoing statement demonstrates a case of robbery, first degree, against Freddy B. Johnson in that it shows property (money) taken by him against the will of the possessor (Edward O. Bruner) by putting the possessor in fear of immediate injury by use of a dangerous and deadly weapon (a revolver). State v. Payne, 452 S.W.2d 805 (Mo.1970); State v. Churchill, 299 S.W.2d 475 (Mo.1957); State v. Hawkins, 418 S.W.2d 921 (Mo. banc 1967); State v. Haislip, 411 S.W.2d 81 (Mo.1967); §§ 560.120, 560.135, RSMo 1969; MAI-CR 7.62.

Appellant notes that the weapon was never produced at trial and that the amount of money involved was not supported by cash register records. He asserts that Mr. Bruner failed to note the presence of scars on defendant’s face and was otherwise inconsistent as to be untrustworthy. He argues that the verdict is thus shown to be contrary to the weight of the credible evidence and that there was thus reasonable doubt as a matter of law.

The weight of the evidence (as opposed to the sufficiency of evidence) is not for review by an appellate court, State v. Bizzle, 500 S.W.2d 259 (Mo.App.1973); State v. Woodard, 499 S.W.2d 553 (Mo.App.1973); State v. Jones, 363 Mo. 998, 255 S.W.2d 801 (1953); State v. Harmon, 243 S.W.2d 326 (Mo.1951); and conflicts, if any, in the evidence are for resolution by the trier of fact, State v. Harmon, supra. Judgment affirmed.

All concur.


author: KELLY, Judge.

text:
    John M. McILROY, Executor of the Estate of Frances T. Tucker, Deceased, Appellant, v. John W. HAMILTON and Edith Ann Hamilton, husband and wife, Respondents.
    No. 36386.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 6, 1976.

      Mcllroy & Millan, John M. Mcllroy, Bowling Green, for appellant.
    John W. Briscoe, New London, for respondents.
   KELLY, Judge.

John M. Mcllroy, Executor of the Estate of Frances T. Tucker, deceased, appeals from a judgment of the Circuit Court of Pike County dismissing his petition for mandatory injunction and restraining order with prejudice wherein he sought a permanent injunction restraining the Hamiltons from blocking a roadway across their farm and from diverting the natural flow of water from a spring located on the Hamilton farm. We affirm.

Appellant’s petition alleged that Frances T. Tucker was the owner and possessor of a tract of land in Pike and Ralls County adjoining respondents’ land and which, prior to a transfer of December 26,1972, was the property of Cecile Thompson; that for more than 40 years Mrs. Tucker and her predecessors in title, her agents, employees and other persons, going to and from her farm, travelled through the property of the respondents on a roadway beginning at the southeast corner of the Hamilton farm and running along the east line of said tract in a northerly direction for a distance of approximately 1320 feet, thence in a westerly direction for a distance of approximately 300 feet, and thence in a northwesterly direction meandering through the property of respondents until it reached the west line of their property, which also comprised the east line of appellant’s property; that in addition to this roadway there was an alternate route, identified in the petition as the southernmost part of the roadway, which extended out into the property of the respondents about 100 yards in a general north and south direction paralleling the east fence line of respondents’ property and which was used alternately with that part of the roadway which was immediately adjacent to the east line of respondents’ property; that the user of the roadway was adverse to the respondents’ rights and was open, notorious, continuous and uninterrupted; that as a result of their usage an easement was obtained by prescription; that the respondents and their predecessors in title were aware of the use, its character and the claim of right on the part of decedent and persons using the roadway in order to reach her premises; that in the spring of 1973, respondents plowed up a portion of the southernmost part of the roadway and bulldozed in an additional part of the southernmost part thereof to such an extent that the roadway was no longer passable so that appellant and others desirous of reaching her property had to go out into cultivated farm land to do so; that sometime in August or September, 1973, respondents padlocked the gate providing entrance to their property at the southeast corner of respondents’ property and refused access thereto to an agent of appellant and blocked the road; that ingress and egress over the roadway to appellant’s farm has thereby been prohibited and this is the only access available to Mrs. Tucker, her agents, etc., over which large machinery and trucks can operate; that there are growing crops planted on the Tucker farm and she is unable to harvest them or remove them by reason of the continued blocking of the roadway; that demand has been made upon the respondents to remove the barriers and replace the road but the demand was refused by respondents. Appellant further alleged that the erection and maintenance of the barrier and the plowing and bulldozing of the road constitutes a nuisance depriving appellant of the use of the roadway and unless respondents are enjoined and restrained from maintaining the nuisance appellant will suffer great damage, injury and loss and will not be able to carry on farming operations. Appellant alleged further that there is a natural flowing spring on respondents’ premises, the overflow of which runs through Mrs. Tucker’s property; that a part of this water is piped to a water trough used for many years by her and her predecessors in title; that respondents, appellant believes, are intending to cut off access to the spring and its water by diverting the flow thereof by various means to her irreparable damage; that she is entitled to continued use of the spring water as a result of uninterrupted use of same for more than 10 years; that said use has been adverse, actual, open, continuous and with the knowledge of the respondents and their predecessors in title and under a claim of right. She asserts that she has no adequate remedy at law and prays for a Mandatory Injunction requiring the respondents to abate the nuisance and remove the locks from the gate, remove any obstruction from the roadway, except any gate which might be necessary to protect livestock and which might be reasonably placed thereon, to place the roadway in the same condition it was before they plowed and bulldozed it, that respondents be perpetually enjoined from maintaining any obstruction or nuisance upon the roadway, and that appellant be declared to have an easement by prescription over the said roadway. Appellant also sought an injunction perpetually restraining respondents from creating any diversion or terminating the flow of the spring water onto the appellant’s premises.

Respondents filed their Answer admitting ownership of the farm which they acquired by deed as alleged by appellant from Cecile Thompson but denied each and every other allegation of appellant’s petition. They also filed a Counterclaim for $1,000.00 damages for the destruction of crops and pasture land caused by appellant. Appellant’s Reply was a general denial of the allegations contained in respondents’ Counterclaim.

With the pleadings so framed, the cause came on for trial. Appellant produced the testimony of Dan T. Tucker, the son of decedent and her husband, E. A. Tucker, together with that of a large number of other witnesses, most of whom testified to the fact that they had, over the years, traversed the Hamilton farm in going to and from the Tucker farm — as Appellant’s farm shall hereinafter be identified — over and along the roadway on which appellant seeks to establish an easement by prescription. These witnesses may aptly be categorized into two groups: one consisting of people who had done business at the Tucker farm and a second group, those who were friends and neighbors of the Tucker family. The deposition of Miss Cecile Thompson as well as that of one Charles H. Benn were filed with the trial court for his perusal and consideration. Respondents’ evidence consisted in the testimony of Mr. Mcllroy relative to the preparation of an “Affidavit of Adverse Possession” by James H. Bernard (Defendants’ Exh. 1) and another such affidavit by J. E. Megown (Defendants’ Exh. 3) both executed on December 16, 1972, concerning Miss Thompson’s title to the Thompson farm, and the fact that these were prepared by James Millan of the law firm of Mcllroy and Millan incorporating therein descriptions of the subject property prepared and reviewed by respondents’ counsel, Mr. Mills, and obtained by him from the abstracts of the Ralls County Abstract Company and the Pike County Abstract Company. The inventory of the Estate of Mrs. Tucker was also identified and introduced into evidence as Defendants’ Exhibit 4. Defendants’ Exhibit 2 — a deed dated March 16, 1934 — to the Tuckers was also introduced into evidence by respondents.

The cause was taken under advisement and subsequently the trial court filed a memorandum and judgment in which it made reference to the testimony of Dan Tucker, the son of appellant’s deceased and one of the devisees of the Tucker tract, wherein, on cross-examination, Dan Tucker answered: “We had permission to go through there long before I ever rented that ground.” Reference was likewise made to the testimony of Cecile Thompson, given by deposition, that those crossing her land to get to the Tucker farm did so “With our permission.” It is clear that the trial court’s conclusion was also influenced by “defendants’ Exhibit 2,” the deed of March 16, 1934, which recited that “[t]he purpose of this deed is to give 2nd parties (E. A. Tucker and Frances Tucker, husband and wife) an outlet over 1st parties’ (James P. Thompson and Mattie Thompson) land to said road across above described premises;” from this deed the trial court concluded that had the use of the roadway been adverse and under a claim of ownership, rather than permissive, plaintiff-appellant’s predecessors in title would have already had an outlet, and the quoted portion of the deed gave rise to the inference that the use was recognized by both parties to the deed as permissive only. The trial court thereupon concluded that the original use was a permissive use, that the use had not changed in character, and therefore there could be no prescriptive easement.

With reference to the spring the trial court’s memorandum further found that plaintiff-appellant claimed no interest other than a right to the “overflow,” that it appears the overflow was still running on plaintiff-appellant’s land, that this too was a “permissive intrusion” because defendants’-respondents’ predecessor in title determined where the pipe could and could not be placed and permitted its placement in its present location.

Because defendants-respondents offered no evidence in support of their counterclaim, judgment was entered for the plaintiff-appellant thereon.

On appeal, the appellant presents four points for reversal of the trial court’s judgment and requests this court to remand the cause to the trial court with directions to enter judgment for the plaintiff-appellant establishing an easement both as to the roadway and the spring, and for the granting of the injunctive relief prayed. Point I is directed to the admission into evidence of the deed of March 16, 1934 (Defendants’ Exh. 2). Points II, III and IV are that the trial court erred in entering judgment for the defendants-respondents on the ground the judgment is against “the greater weight of the credible evidence.”

In reviewing a judgment in an equitable proceeding, the appellate courts of Missouri have been directed by the Supreme Court to examine the record and to sustain the decree of the trial court except where there is no substantial evidence to support the decree, the decree is against the greater weight of the evidence, the decree erroneously declares the law, or the decree erroneously applies the law. The exercise of this power to set aside a decree on the ground that it is “against the weight of the evidence” must be with caution and only when the reviewing court has a firm belief that the decree or judgment is wrong. Murphy v. Carron, 536 S.W.2d 30, 32[2] (Mo.banc 1976).

An easement by prescription to the use of a roadway across the lands of another may be established by a use which has been shown to have been continuous, uninterrupted, visible and adverse for a period of at least ten years. One who claims an easement by prescription has the burden of establishing all of the essential requirements by clear and positive evidence, and any doubt as to the character of the use is to be resolved in favor of the free and untrammeled use of the land. The adverse use of land with respect to the creation of an easement by prescription is one which does not recognize in those as against whom it is claimed to be adverse any authority either to prevent or permit continuance of the use. It is the nonrecognition of the authority at the time the use is made which determines whether the use is an adverse one. Proof of open, notorious, continuous, and uninterrupted use for the requisite ten year period, in the absence of evidence to explain how the use began, raises a presumption that the use was adverse and under a claim of right, thereby casting upon the owner of the servient estate the burden of showing that the use was permissive and by virtue of some license, indulgence or agreement inconsistent with the claim of right. McDougall v. Castelli, 501 S.W.2d 855, 858[3, 4] (Mo.App.1973). Long continued use alone will not create any prescriptive right, nor will mere permissive use of land ripen into an easement by prescription. George v. Dickinson, 504 S.W.2d 658 (Mo.App.1974).

The crux of this case is whether the use made of the roadway by the Tuckers and their agents, guests, etc. had its genesis in a permissive or an adverse usage. The trial court concluded that it had its origin in permission and could not therefore ripen into an easement by prescription. We conclude that on the basis of the evidence in this record the trial court cannot be said to have erred, and we do not find this judgment to be subject to any of the errors set out in Murphy v. Carron, supra, which would justify us in reversing it.

The uncontradicted evidence, we think, is that both of the tracts of land involved in this litigation were originally a single tract of land owned by the grandfather of both Mrs. Tucker, the decedent, and Miss Thompson, the respondents’ predecessor in title. Upon the death of the grandfather the single tract was divided approximately in half, the parent of Mrs. Tucker — Green Thompson, taking title to approximately 200 acres, being the western half of the tract, and James P. Thompson, the parent of Miss Thompson, taking title to approximately 204 acres comprising the eastern half of the tract. The family home was situated on that portion of the original tract to which James P. Thompson took title. Upon the death of the respective parents, title to these two farms descended to Mrs. Tucker on the one hand and to Miss Thompson on the other. We conclude, as did the trial court, that because of the origin of these two farms from the single tract and the fact that they were occupied by blood relatives, the roadway was treated as a “family” usage despite the fact each of the two families exercised dominion over their respective tracts.

Appellant’s evidence went to great effort to demonstrate that no one ever specifically sought permission of Miss Thompson or her predecessors in title to the use of the roadway across the Hamilton farm; the purpose of this line of inquiry was an attempt to show adverse usage. He argues that the testimony of Dan T. Tucker, seized upon by the trial court to support its finding that the user had its origin in permission, was the result of respondents’ trial counsel’s phraseology in propounding questions to Mr. Tucker, and when taken with the whole of Mr. Tucker’s testimony refutes that conclusion.

The testimony referred to by appellant’s counsel in this argument and incorporated into the trial court’s Memorandum occurred during cross-examination of Dan Tucker and is:

“Q. And was all this time was all this by permission from Mrs. Cecile Thompson under her rental agreement with you that you were using the land?
A. We had permission to go through that long before I ever rented the ground.” (Emphasis supplied).

While we note that there was some testimony by Mr. Dan Tucker that he felt he had a “right” to go through the Hamilton property at any time and that no one gave him this right, and that Miss Thompson testified that E. A. Tucker, Mr. Tucker’s father, never asked permission, “we never granted any consent,” and that she never told Dan Tucker not to use the road, it is pure conjecture to argue that the witnesses equated the term “permission” with the term “right” in the legal sense. We believe the trial court, taking into account the familial relationships existing between the owners of the adjacent tracts prior to the time Miss Thompson sold her farm to the Hamiltons, and the other evidence in the case, correctly decided that the user of the roadway had its origin in permission, albeit not specifically stated.

Other evidence supportive of the conclusion reached by the trial court was the testimony of Miss Thompson when she testified that the roadway in question was regarded as a “family road,” for the use of any of the family that wanted to use it. Visitors, she testified, were also free to use the roadway. Dan Tucker, when asked on redirect examination if he observed other vehicles and people going in and out of the Hamilton farm on this roadway while Miss Thompson owned it, replied: “Well, it was with her understanding that anybody that wanted to come in there, why, they had permission to come. She was most welcome to have them.” Between 1966 and 1972, and up to the time the farm was sold to the Hamiltons, Dan Tucker rented a portion of the farm and “farmed” it. He and Miss Thompson had an amicable relationship. When one of Miss Thompson’s calves was killed it was both he and Miss Thompson who padlocked the gate at the entrance to the Hamilton farm to keep out intruders and both he and Miss Thompson retained keys to the padlock on the gate. Any prescriptive right Dan Tucker had would necessarily have ripened prior to 1966 when he became Miss Thompson’s tenant, for the use of a roadway by a tenant is no basis for the establishment of an easement by prescription against the landlord. Guerin v. Yocum, 506 S.W.2d 46, 48[4] (Mo.App.1974).

Appellant’s argument that the 1934 deed conveying to the Tuckers a thirty foot easement for roadway purposes extending along the southern boundary line of the Hamilton tract from the southeast corner to the southwest corner of the Hamilton tract should have been excluded from evidence is based upon its contention that “the contents thereof were immaterial and irrelevant . ” “Objections that testimony is ‘incompetent,’ ‘immaterial,’ ‘irrelevant,’ ‘self-serving,’ ‘prejudicial,’ and the like, without specification of reason, are generally considered insufficient to preserve anything for review.” Teters v. Kansas City Public Service Company, 300 S.W.2d 511, 515[2] (Mo.1957), State ex rel. West v. Diemer, 255 Mo. 336, 350, 164 S.W. 517, 521[1-3] (1914).

Nor does the record in this case ease our burden in deciding this point even were it properly preserved. The deed dated March 16, 1934, was initially employed by respondents’ counsel in the cross-examination of Mr. Mcllroy who was, at the time, testifying as a witness for appellant — i. e., himself. Objection at that time was made that: “ . . . any evidence relative to any right of ways other than those described in the petition is totally irrelevant and immaterial. There are no pleadings naming any other property. This isn’t a request for a right of way of necessity and we object to any evidence having to do with any other rights of way.” Respondents’ counsel argued in response to this objection that the objection was without merit because the petition filed by the appellant described all public roads and right of ways of record; that this being a right of way of record mentioned in the pleadings was therefore admissible. A recess was taken, conference in chambers held, and when the court was reconvened, the trial court overruled appellant’s objection. Respondents’ counsel then proceeded by referring to an “abstract” of the deed identified as “entry number 63” and asked Mr. Mcllroy to state who was named as the grantor and grantee in the deed. Referring to the abstract Mr. Mcllroy replied that the grantors were James P. Thompson and Mattie Thompson and that the grantees were E. A. Tucker and Frances Tucker, husband and wife. After this answer was given, appellant’s counsel advised the trial court that he was not objecting to these questions because he understood that the trial court had overruled his objection to the showing of this separate conveyance and in the interest of time the “abstract” could be used rather than the deed of the Recorder; but he wanted it understood that he was objecting to “the showing of this for any purpose into the record.” The trial court replied: “Very well. That objection is preserved and overruled.”

Subsequently, after the appellant’s counsel announced to the trial court that he had rested his case, respondents’ counsel requested leave to recall Mr. Mcllroy for the purpose of clarifying some points which had been developed on cross-examination with reference “to the entry number 63, an abstract of title” so they could substitute for the abstract entry a copy of the original document and the trial court would have a more convenient reference. Appellant’s counsel announced that “they” were willing to stipulate to “that” whereupon respondents’ counsel had the deed marked for identification as “Defendants’ Exhibit Number 2.” Mr. Mcllroy thereupon stated: “We have no objection. I think I have another number two. Are you correct in your numbers? Well, all right. We have no objection.” Mr. Mcllroy was then asked by respondents’ counsel if he had previously had an opportunity to examine the exhibit and he replied that he had. At this point “Defendants’ Exhibit Number two” was offered into evidence and the trial court announced: “There being no objection, Defendants’ Exhibit two is received in evidence.”

One interposing an objection has the burden of making the basis for his objection “reasonably apparent” to the trial court. Crabtree v. Reed, 494 S.W.2d 42, 45[3] (Mo.1973). From the aforesaid colloquy the record is not clear whether the appellant has waived any objection to the reception into evidence of the deed of March 16,1934, or whether he was merely consenting to the substitution of the deed itself for the “abstract entry number 63” previously used in cross-examination of Mr. Mcllroy. Paragraph 4 of his Motion for New Trial reads: “The Court erred in admitting Defendants’ Exhibit No. 2, same being a Deed dated March 16, 1934, which said Deed conveyed property not in the right of way sought to be established in this Cause and was immaterial and improper evidence in the trial of the issues in this Cause.” (Emphasis supplied). If, as the grounds stated in the Motion for New Trial would indicate, it is the admission into evidence of the deed of March 16, 1934, appellant relies on, both he and his trial counsel voiced no objection to its admission into evidence, and cannot now be heard to complain.

Nevertheless, even were we to conclude that appellant and his counsel did not waive his objections in view of the equivocal status of the record on this point, his concession that he was not seeking a way of necessity in this cause of action does not render the deed “irrelevant and immaterial.” Relevancy is the relationship between the offered fact and the fact in issue to such a degree that the existence of the offered fact logically renders probable the existence of the fact in issue. Crowley v. Crowley, 360 S.W.2d 293, 295[2] (Mo.App.1962). The existence of this deed of March 16, 1934, granting to the deceased and her husband a separate and distinct easement for a roadway renders probable the conclusion that both parties to the deed recognized the use of the roadway over which appellant seeks to establish an easement by prescription in this cause of action was not adverse, but rather permissive. Not only was this deed relevant on the issue of permissive use, but it also constitutes substantial evidence sufficient to rebut the presumption of adverse use arising from the evidence of open, continuous and uninterrupted use of the roadway for many years.

We rule that the trial court did not err in admitting into evidence and considering this deed of March 16, 1934, in arriving at its decision that the use of the roadway in question was not adverse and by claim of right. We find no merit in appellant’s first three points and rule them against appellant.

The fourth, and final point, on appeal is whether there was sufficient evidence to support the trial court’s holding that appellant’s use of the spring located on the Hamilton farm was permissive. The evidence at trial was that there was a spring located on the Hamilton farm approximately 50 or 60 feet east of the Tucker farm boundary line, which had continuously furnished spring-water over a period of many years. Mr. James P. Thompson, at some time, many years ago, had inserted a pipe into the bluff from whence the spring flowed and piped the water to a trough situated on his farm. According to Miss Thompson, the Tuckers never acquired “any interest” in this spring, but her father allowed them to lay down pipes and take the overflow because “the overflow flowed into a branch that went through E. A. Tucker’s farm.” Howard Barnard, a witness for the appellant, who, between 1917 and 1922 lived with his parents on the Hamilton farm in the home in which the Thompsons had lived, testified that at one time he worked for E. A. Tucker. While he lived on the Hamilton farm he was familiar with the spring. Sometime in 1920 he helped Mr. Tucker put in a trough and run a pipe from the spring to the trough on the Hamilton farm. Because Mr. Thompson would not allow them to put the pipe into the Thompson trough, he and Mr. Tucker built a ditch where the water overflowed from the Thompson trough, installed a pipe in the ditch, and ran it through a fence into a trough on the Tucker farm. This pipe simply collected the overflow from the Thompson trough and carried it to the trough on the Tucker farm after which the water drained to a branch on the Tucker farm and then into two ponds on the Tucker property. He had never seen the spring when it wasn’t full of water. In July, 1973, Dan Tucker had a conversation with Mr. John Hamilton, one of the respondents, and asked him why he put rocks in the pipe or why it was stopped-up all of the time. Mr. Hamilton, he testified, “said he was going to impound the water.”

The trial court’s memorandum recites that it concluded from the evidence that the appellant claimed no interest other than a right to the “overflow,” and that the pipe extending onto respondents’ land was a permissive intrusion because respondents’ “predecessor in title determined where the pipe could and could not be placed and permitted its placement in its present location.” It further found from the evidence that “the overflow presently runs on the plaintiff’s land.” Although it did not specifically so state, it is clear that it concluded that appellant had failed to establish the elements necessary for a prescriptive user of the spring waters and that any rights he had were being interfered with.

It is clear from a reading of appellant’s brief that he has, in this court, attempted to mount a two-pronged attack on the trial court’s holding with respect to the rights he sought to protect in the spring on respondents’ farm. However, the theory he pled in the trial court was one based upon a prescriptive right to the overflow by reason of usage for a period of time in excess of ten years, which usage allegedly was “open, adverse, actual and continuous and within the full knowledge of the Defendants and their predecessors in title” and under a claim of right. The first portion of his argument here is what might be termed a “riparian rights attack” based upon a “reasonable use doctrine” applicable to natural watercourses and subterranean streams. The second attack is based on the theory upon which he pled and tried his case in the trial court; i. e. prescriptive right. It is also clear that appellant is cognizant of this shift in theories. After arguing the “riparian rights” approach, he then states: “Although we do not believe the Court must deal with the matter of whether the Plaintiff and his predecessors and successors in title have obtained a prescriptive easement to the use of water and the location of the pipe, if it chooses to consider this matter, we believe the evidence is sufficient to establish same in behalf of the owners of the Tucker farm.”

An appellant cannot change his theory of the case between trial and appeal; he must pursue review of the trial court’s judgment on the same theory on which he tried his case in the trial court. Hulahan v. Sheehan, 522 S.W.2d 134, 139[4] (Mo.App.1975). For this reason our review in this appeal shall be limited to whether the trial court correctly found that appellant had failed to establish a prescriptive easement to the use of the waters of the spring.

The uncontradicted evidence is that it was James P. Thompson who determined where the pipe to catch the overflow from his trough on his farm should be located, and that it could not be tapped into his trough. He did, however, permit appellant’s predecessor in title, E. A. Tucker, to dig a ditch and install the pipe to carry the overflow from his farm to the Tucker farm. Appellant contends, however, that this pipe was subsequently attached to the trough on the Thompson land. The basis for this contention is the testimony of Durward Sorrell. However, Mr. Sorrell’s testimony is in direct conflict with that given by Dan Tucker who testified that the pipe has always been in its present location and was never connected to the Thompson trough, and that of Mr. Barnard, who assisted in the installation of the pipe in the ditch. The trial court had the benefit of observing the witnesses and chose to believe Dan Tucker and Mr. Barnard. We defer to the trial court in this conflict of testimony. Guerin v. Yocum, supra, l.c. 47[1] Whatever rights appellant’s predecessors in title might have had as riparian owners would not have entitled them to enter upon the Thompson farm and tap into the trough located thereon, in the absence of any agreement or contract between the parties or unless they had obtained an easement by prescription. 93 C.J.S. Waters § 91. We conclude that the trial court did not err in holding that the evidence in this case did not establish an easement by prescription to the collection of the overflow of the spring-water on the Hamilton farm.

We do not reach the question of what rights, if any, the appellant might have to the use of the overflow of the spring-water under the “reasonable use doctrine” or whether they have been violated by the respondents because that was not the theory upon which this case was tried in the trial court.

The judgment of the trial court is affirmed.

STEWART and RENDLEN, JJ., concur.

      . The petition in this cause was originally filed by Lillie Lou Jones, Guardian of the person and estate of Frances T. Tucker, an Incompetent; on October 15, 1973, the death of Mrs. Tucker was suggested to the trial court and John M. Mcllroy, Executor, was then substituted as party plaintiff.


author: CLEMENS, Presiding Judge.

text:
    Perry PITCHFORD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36494.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 6, 1976.
    Kevin M. O’Keefe, St. Louis, for movant-appellant.

      John C. Danforth, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James F. Booth, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

After initially pleading not guilty to murder second degree, movant-appellant later withdrew that plea and entered a plea of guilty. The court sentenced him to ten years’ imprisonment. Movant-appellant then filed a Rule 27,26 motion and the trial court granted an evidentiary hearing. The trial court denied movant-appellant’s motion and filed a memorandum opinion.

On appeal movant raises two points, but both concern his contention that his perception of his attorney’s fatigue was responsible for his guilty plea. Movant contends the trial court misunderstood his point because it found movant’s attorney was not fatigued at the time of the guilty plea. Thus, movant argues, the court missed his point that it was not the attorney’s actual fatigue that caused him to plead guilty, but his perception of that fatigue which made him believe a trial was hopeless and thus coerced him into pleading guilty. The trial court found the attorney had not been fatigued at trial time and further found mov-ant’s guilty plea was voluntary.

The only testimony at the evidentiary hearing as to movant’s perception of his attorney’s fatigue was his own. The trial court did not have to believe that testimony and failure to believe it was not “clearly erroneous.” Rule 27.26(f), V.A.M.R. Mov-ant-appellant’s testimony about his perception of his attorney’s fatigue was strongly negated by his testimony at the original plea proceeding that he was satisfied his attorney had done everything possible for him and that he had actually committed the murder.

The denial of the Rule 27.26 motion is supported by the record.

Judgment affirmed.

DOWD and STEWART, JJ., concur.


author: SIMEONE, Presiding Judge. KELLY, Judge

text:
    Deborah Gay HART, Plaintiff-Garnishor-Appellant, v. James Edward HART, Defendant-Respondent, Southwestern Bell Telephone Co., Garnishee.
    No. 37031.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 6, 1976.

      Harold G. Johnson, St. Ann, for appellant.
    Irvin Dubinsky, St. Louis, for respondent.
   SIMEONE, Presiding Judge.

This is an appeal by plaintiff-appellant, Deborah Gay Hart, from an order of the Circuit Court of St. Louis County entered on March 5, 1975, which sustained a motion to quash execution and garnishment filed by defendant-respondent, James Edward Hart, and which released an execution theretofore issued in favor of appellant, Mrs. Hart.

On May 19, 1970, James and Deborah Hart were “divorced” by the Circuit Court of St. Louis County. The wife, Deborah, was awarded custody of their minor child, Stacey Wynne, and $20.00 per week child support. Under the decree, Mr. Hart was given visitation rights on Sundays. The original decree was silent as to any prohibition against removing the child from the jurisdiction of the state of Missouri. Mr. Hart made the support payments for about two years, but in 1972 he discontinued the payments. On January 14, 1975, Mrs. Hart filed her affidavit in support of her request for garnishment and sought garnishment in aid of execution for the accrued installments amounting to $2,440.00. On February 18, 1975, Mr. Hart moved to quash garnishment on several grounds.

A hearing was held on the motion, and both parties testified. The evidence showed that during the two years Mr. Hart made payments he saw the child “fairly regularly” but that he discontinued the support payments after Mrs. Hart and the child moved to California sometime in September, 1972, and after an alleged “agreement” between the parties to discontinue the support payments on condition that Mr. Hart would forego his rights of visitation. Any such agreement was denied by Mrs. Hart.

Mrs. Hart and the child moved to California in 1972 and returned to Missouri in October, 1974. During the time Mrs. Hart and the child were in California, Mr. Hart would visit with the child on Christmas and on holidays when the child came to Missouri. During the two years, 1972-1974, no demand was made for support money by Mrs. Hart, and, according to the testimony of Mr. Hart, Mrs. Hart refused to permit him to see the child while in California but not in St. Louis. During the sojourn in California, Mrs. Hart had no “communication or correspondence” with her ex-husband, except that she mailed cards on holidays to his mother’s address. Mrs. Hart stated that she “put the return address on cards and said, ‘Anytime you’d like to write to Stacey or call Stacey or you would like to make any kind of contact, you’re free to. You have my phone number.’ ” Mrs. Hart admitted that she had not “talked” to her ex-husband in “maybe, 3, 3V2 years.” But she denied she “ever [had] any conversation with him regarding child support or his not having made child support, or having to make child support payments.” She denied having any conversation with Mr. Hart wherein she made the comment, “ ‘You don’t have to make child support payments, then you don’t have to hassle me,’ ” as testified to by Mr. Hart. She admitted that she did not seek permission of the court to remove the child to California and admitted that during that time the husband “couldn’t see the child or couldn’t take the child to his parents’ home.” During the time they were in California, she admitted that she did not make “any attempt ... to obtain child support from [her] ex-husband . . ” and that the child’s needs were cared for. During this time Mr. Hart did not exercise his visitation rights but did see the child when in Missouri at the wife’s parents’ home.

After the hearing, the .trial court sustained Mr. Hart’s motion to quash and release the execution and garnishment. The court gave several reasons: (1) Mrs. Hart removed the child from the state without permission of the court, in violation of the court order, (2) Mrs. Hart deprived the husband of visitation rights, and (3) Mrs. Hart made no demand upon the husband during the period that the child was removed from the state, in violation of the order of court.

Mrs. Hart appealed. On this appeal, she contends that the trial court erred in sustaining the motion because (1) she was not required to obtain prior court approval to leave the state when the decree did not restrict her from moving from the state, (2) any agreement to waive child support payments in consideration of the husband waiving his rights of visitation is invalid without court approval, and (3) the court is without jurisdiction to terminate or cancel the accrued and unpaid child support payments. The respondent, of course, contends otherwise and sets forth in his brief a number of theories justifying the trial court’s conclusion.

Our duty on this appeal is governed by certain basic principles. Rule 73.01(3) requires us to review the case upon both the law and the evidence and to give due regard to the opportunity of the trial court to have judged the credibility of the witnesses. This Rule, effective January 1, 1975, was recently construed by our Supreme Court en banc in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). It was there held that Rule 73.01 is construed to mean that the decree or judgment of the trial court will be sustained unless (1) there is no substantial evidence to support it, (2) it is against the weight of the evidence, (3) it erroneously declares the law, or (4) it erroneously applies the law.

We reverse and remand the cause with directions to overrule the motion to quash garnishment.

In a proceeding such as this the paramount consideration is not the desires or difficulties of the parties, as parents, but the welfare of the child of this broken marriage.

First, as to the matter of removal of the child from Missouri to California, ordinarily, courts are reluctant, as against the policy of the law, to permit the removal of a minor child to another jurisdiction because upon entry of the decree the child becomes a ward of the court, and because upon the child’s removal, any subsequent order may be difficult, if not impossible, to enforce. But the obstacles caused by non-residence are not insuperable, and the removal may be judicially permitted where it is made clear that the best interests of the child will be thereby subserved. Northrup v. Sieve, 517 S.W.2d 470, 474 (Mo.App.1974), and cases cited therein; I_ v. B_, 305 S.W.2d 713, 719 (Mo.App.1957); Stuessi v. Stuessi, 307 S.W.2d 380, 381 (Mo.App.1957); Baer v. Baer, 51 S.W.2d 873, 878 (Mo.App.1932).

In this case, the primary issue presented is whether the husband is relieved from child support payments when the custodial parent removes the child from the state, thus in effect practically depriving the other parent from visiting the child, which rights he has pursuant to the original decree. We hold that Mr. Hart is not relieved from child support payments, even though the child is removed to another jurisdiction.

Under the new dissolution of marriage law, which applies to these “proceedings,” § 452.415, subsection (1), it is expressly stated that if a party fails to comply with a provision of a decree the obligation of the other party to make payments for support is not suspended, but he may move for an appropriate order of the court. § 452.365. Although the wife may have violated the decree by removing the child to another state, the-husband was not without remedy. For the best interests of the child, the obligation of the husband, under the present law, is not suspended, even though the wife failed to comply with a provision of the decree.

Second, the parties are not authorized to make an agreement to settle or compromise child support payments. The payments are for the benefit of the child. Cervantes v. Cervantes, 239 Mo.App. 932, 203 S.W.2d 143, 146 (1947); State v. Arnett, 370 S.W.2d 169, 174 (Mo.App.1963); Swift v. Leonard, 420 S.W.2d 53, 56 (Mo.App.1967). Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974), is factually distinguishable. At the time the agreement was made, the payments were for future, as distinguished from past, payments.

Third, the fact that Mrs. Hart made no demand during the California sojourn does not relieve the husband from making support payments for the child. Laches, as a defense in such proceedings, has often been rejected. See cases collected in Annot., 70 A.L.R.2d 1250, 1269 (1960).

Under all the circumstances, the original order requiring support payments cannot be ignored or modified by the parties themselves. One alleged violation does not excuse another.

Parties to a divorce proceeding may not inter se ignore or disregard proper orders of judicial tribunals. Adequate procedures are available to modify, as needed, judgments of courts to meet the changing conditions of divorced parties.

The judgment is reversed and the cause remanded with directions to overrule the motion to quash execution and garnishment.

KELLY, J., dissents in separate opinion.

GUNN, J., concurs.

KELLY, Judge

(dissenting).

I respectfully dissent. There were various theories upon which the trial court could have reached the result it did, both on legal grounds and on issues of credibility.

One of the important issues presented is whether Mr. Hart is relieved from child support payments when Mrs. Hart removed the child from the state, thus in effect depriving Mr. Hart of his visitation rights pursuant to the divorce decree.

The circumstances here show that (1) the original decree granted custody to Mrs. Hart with rights of visitation in the father, Mr. Hart, (2) the custodial parent, without permission, removed the child from this state to California, thus practically depriving Mr. Hart of his rights of visitation, or at least making it extremely difficult for him to exercise those rights granted under the decree, and (3) the child did not suffer any detriment, since, according to the testimony of Mrs. Hart, her needs were provided for. Here, there were concomitant rights between husband and wife — the right to child support payments and the rights of visitation. Here the child did not suffer,and here Mrs. Hart did not make any demand for child support payments during the time she and the child were in California. Under such circumstances, I believe that the trial court may in the exercise of its discretion refuse to enforce installments which accrued while Mrs. Hart was outside the jurisdiction of the court which made the award of both custody and support, and I cannot conclude that the trial court clearly abused its discretion in sustaining the motion.

Second, the finding of the trial court that the appellant, Mrs. Hart, made no demand upon the respondent during the period that the child was removed from the state was a reasonable one and a basis for sustaining the motion. Rodgers v. Rodgers, 505 S.W.2d 138, 145 (Mo.App.1974), distinguishing Cervantes v. Cervantes, 239 Mo.App. 932, 203 S.W.2d 143, 146 (1947). While the defense of laches on the part of a spouse attempting to enforce a decree for support has often been rejected, the failure to demand any support payments is a factor the trial court may consider in sustaining the motion.

Third, there were various other theories upon which the trial court could have reached the result it did. For example, while past due child support payments constitute, under our law, an enforceable debt, like any other debt, it is subject to settlement or compromise if supported by adequate consideration. Rodgers v. Rodgers, supra, 505 S.W.2d at 144. The trial court, based upon the credibility of the witnesses, could well have found such an agreement to which finding I would defer. See 24 Am. Jur.2d, Divorce and Separation, § 871 (1966).

Fourth, while it is true, as appellant contends, accrued unpaid installments for support cannot be modified retroactively, Schaffer v. Security Fire Door Company, 326 S.W.2d 376, 379 (Mo.App.1959); Jenkins v. Jenkins, 453 S.W.2d 619, 621 (Mo.App.1970), this does not mean that a court of competent jurisdiction does not have the discretion to refuse to enforce any accrued installments for adequate or equitable reasons. The cases relied upon by appellant are not dispositive of the issues presented in this proceeding.

For the above reasons, I dissent and would affirm.

      . The motion alleged the following grounds, inter alia: (1) That petitioner removed the child from the jurisdiction of the court without prior permission or approval, depriving the respondent of his rights of visitation; (2) that petitioner does not come into court with clean hands; (3) that petitioner failed to “keep respondent informed about the whereabouts of his child, and [he] did not know of its whereabouts other than in generalities that petitioner and her child had moved to California”; (4) that an agreement had been entered into that if he would not exercise his rights of visitation he would not have to pay child support; (5) he was “lulled into a false sense of security by petitioner’s action.”

      . While there is a conflict of authority, see cases collected in Annot., 95 A.L.R.2d 118 (1964).

      .Whether a trial court has discretion to relieve the spouse from making support payments if the custodial parent removes the child to another distant state which in effect deprives the parent of visitation rights granted under the divorce decree does not seem to have been definitively settled in this state. Compare Pelts v. Pelts, 425 S.W.2d 269 (Mo.App.1968), and Riesenmey v. Riesenmey, 236 Mo.App. 551, 155 S.W.2d 505 (1941). In neither case was the issue definitively settled. In Riesenmey, the court held that the welfare of the child required the “continuance of payments” for support. 155 S.W.2d at 508. In Pelts, it was held that where the custodial parent removes the child to another state, there may be a ground for a motion to modify.
      Under the new law, § 452.365 provides that if a party fails to comply with a provision of a decree the obligation of the other party to make payments for support is not “suspended,” but he may move for an appropriate order. The parties here were divorced prior to the effective date of the new dissolution law. The appellant moved to California in 1972. Her request for garnishment was made in 1975. The garnishment is an independent proceeding. As such, this case, I believe, does not come within the provisions of § 452.415; hence, § 452.365 is not applicable to this garnishment.

      . There is a seeming conflict of authority on the question. See cases collected in Annot., “Violation of visitation provision of . decree as affecting child support payment provision . . 95 A.L.R.2d 118, 126 (1964); 24 Am.Jur.2d, Divorce and Separation, § 870 (1966). Cf. Gannon v. Gannon, 258 Minn. 57, 102 N.W.2d 677, 680 (1960); Griffith v. Griffith, 152 Colo. 292, 381 P.2d 455 (banc 1963); Briggs v. Briggs, 319 Mass. 149, 65 N.E.2d 9 (1946); Clawson v. Clawson, 125 So.2d 104 (Fla.App.1960); Fish v. Fish, 280 Minn. 316, 159 N.W.2d 271, 276 (1968); Smith v. Smith, 282 Minn. 190, 163 N.W.2d 852, 856 (1968); Pronesti v. Pronesti, 368 Mich. 453, 118 N.W.2d 254, 256-257 (1962).

      . See cases collected in Annot., 70 A.L.R.2d 1250, 1269 (1960).

      . See cases collected in Annot., 6 A.L.R.2d 1277, 1284-1285 (1949).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Bruce Wayne COX, Defendant-Appellant.
    No. 37160.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 6, 1976.
    Mcllrath, Black & Williams, Flat River, for defendant-appellant.

      John C. Danforth, Atty. Gen., Preston Dean, Sheila K. Hyatt, Asst. Attys. Gen., Jefferson City, John B. Berkemeyer, Pros. Atty., Hermann, for plaintiff-respondent.
   KELLY, Judge.

Bruce Wayne Cox was convicted in the Circuit Court of Gasconade County of the offense of stealing property of the value of at least $50.00, § 560.156 RSMo 1969 and sentenced to two years in the custody of the Missouri Department of Corrections. § 560.161.1(2) RSMo 1969. A timely Motion for New Trial was filed and overruled, and he thereafter filed his Notice of Appeal within the time specified by Rules 28.03 and 81.04 V.A.M.R.

On appeal no challenge is made to the sufficiency of the evidence to support the verdict of the jury and a short statement of the evidence viewed most favorably in support of the verdict will suffice. On October 17, 1973, appellant and James Harold Cooper were living in rooms above the Town Tavern in Gerald, Missouri. Thomas Phe-lan and Richard Overturf spent the evening with them. Overturf who had lived in Bland, Missouri, was familiar with Mester’s Package Liquor Store which was located in Bland and conceived the idea that the four of them could steal some money from the liquor store. Pursuant to this plan the four young men travelled to Bland in appellant’s auto. Upon arriving in Bland, Phelan and the appellant went to the back door of the liquor store and engaged Mr. Ross Mester, the elderly proprietor of the liquor store, in conversation about an old truck parked in the vicinity of the liquor store while Over-turf entered the front door of the liquor store and stole sixty-seven dollars cash from the cash register. While the theft was being perpetrated Cooper remained in the appellant’s car. The stolen money was divided among the four young men after they left the scene. Shortly after the incident State troopers stopped the appellant’s car in Sullivan, Missouri, with the four young men therein and a search of their persons brought to light the stolen monies.

On appeal three points are presented in support of appellant’s prayer that his judgment of conviction be reversed and the cause remanded for a new trial. These are: the trial court erred First, in not granting his request for a continuance in order to retain other counsel; Second, in not granting a continuance after it learned of his dissatisfaction with his trial counsel before the jury was impanelled and after it learned that his trial counsel also represented one of the State’s witnesses, James Harold Cooper; and Third, in not granting his Motion for New Trial on the basis of newly discovered evidence tending to prove his innocence. We conclude that this judgment must be reversed and the cause remanded for a new trial for the reason appellant was denied his Sixth Amendment right to counsel under the peculiar circumstances of this case because his trial counsel was representing a prosecution witness who appeared and gave testimony implicating appellant in the commission of the crime charged.

Sometime after the theft from the liquor store in Bland, Missouri, appellant and James Cooper went to the law offices of Mr. Joseph Neaf and retained him to represent them in charges which were filed against them by reason of this theft. Both appellant and Cooper were subsequently charged in separate Informations with the theft from the liquor store, but Cooper went to trial first and was convicted of the offense in December 1974. Although Mr. Neaf did not appear at the time sentence was imposed on Cooper for this crime, he was, at the time of this trial, still working on Cooper’s case.

On February 26, 1975, the prosecuting attorney filed in the Circuit Court of Gasco-nade County, Division No. II a Motion to Endorse Additional Witness and mailed a copy of this Motion to Mr. Neaf, appellant’s counsel of record. The witness sought to be endorsed was James Harold Cooper. Mr. Neaf did not advise appellant of the pend-ency of this Motion.

Appellant, having become disenchanted with Mr. Neaf’s representation, on March 4, 1975, went to the offices of his present counsel on appeal, Mr. Black, and discussed with him the possibility of Mr. Black representing him in the trial of his case. Mr. Black advised him that until Mr. Neaf was no longer in the case he could not represent appellant. The following evening, March 5, 1975, appellant called Mr. Neaf and advised him of his desire that Mr. Neaf withdraw from his case. Mr. Neaf agreed and told appellant to meet him in the courthouse on Friday, March 7, 1975, the date the cause was set for trial, and they would get it settled and worked out.

On March 7, 1975, appellant met Mr. Neaf at the courthouse and following a short discussion Mr. Neaf went into the judge’s chambers. Shortly thereafter Mr. Neaf exited from the judge’s chambers and told appellant that both of them would have to talk to the judge about this change of counsel. Appellant and Mr. Neaf then went to the chambers of the trial judge and prior to the time the venire was sworn for voir dire examination the trial judge, in chambers, made a record which reflects that a few minutes previous to the making of the record, appellant informed the trial court that he had talked with two attorneys other than Mr. Neaf and had made arrangements to be represented by Mr. Black. The trial court said that “by implication, at least, the Defendant, pro se, requested a continuance of the trial until Mr. Black could be here.” At that point the trial court informed the appellant that inasmuch as he was at that time represented by Mr. Neaf and Mr. Neaf was present and apparently ready for trial, his request for continuance would be denied; that the case would go to trial and he could either proceed with the matter pro se or ask Mr. Neaf to continue representing him.

Appellant explains his reason for agreeing to go forward with Mr. Neaf by testifying at the evidentiary hearing on his Motion for New Trial that after consulting with Mr. Neaf when he was told that the case was going to trial despite his desire to hire other counsel as follows: “rather than go in on my own to go ahead and take him in because, like, I don’t know the legal terms and things. I thought he could do a better job of it than I could.”

At the conclusion of the voir dire examination of the venire, the trial court took up the Motion to Endorse Additional Witness in the presence of, but out of the hearing of, the jury. While the appellant was apparently present in the courtroom, the record does not reflect that he participated in the discussions relative to this Motion or if he even had any knowledge of its existence at that time. The trial court inquired of Mr. Neaf if he had received notice of the Motion and Mr. Neaf acknowledged he had. The trial court thereupon advised Mr. Neaf that he was going to sustain the Motion, whereupon the following colloquy took place:

“MR. NEAF: Your Honor, I do represent Mr. Cooper in another case. I would like to speak to him briefly before he’s called upon to testify, to advise him of his rights.
THE COURT: Well, certainly he can speak to you and you can speak to him, if you care to. I see no — that I have any control over that. When do you anticipate calling him?
MR. BERKEMEYER: Oh, about the third or fourth witness, I believe. I’m curious as to which case he’s referring to. If you are referring to the previous trial, I believe that’s over with.
MR. NEAF: Your Honor, I still would like to talk to him.
MR. BERKEMEYER: I’ve got no objection to your talking to him.”

Neither the defense counsel nor the prosecutor made the trial judge fully aware of the fact that this witness, James Harold Cooper, had been charged and convicted of Stealing arising out of this same set of circumstances in Division No. 1 of the Circuit Court of Gasconade County, and that Mr. Neaf had been the counsel of record who represented Cooper throughout that trial. There is nothing in the record to indicate that the trial court was aware of this circumstance until after the Motion for New Trial had been filed and evidentiary hearing thereon conducted.

The record is clear, however, that at no time prior to the filing of the Motion for New Trial, was there any indication that any request for a continuance had been made to the trial court on the grounds that the appellant’s trial counsel was faced with a conflict of interest if Cooper was to appear as a prosecution witness.

Appellant has not preserved this point for review. Nevertheless, we choose to exercise our discretion and review this point on the basis of “plain error,” Rule 27.20(c), State v. Crockett, 419 S.W.2d 22, 28 (Mo.1967), because it involves an alleged violation of appellant’s Sixth Amendment right to representation by counsel whose assistance is untrammeled and unimpaired by a lawyer’s simultaneous representation of a client with interest antagonistic to those of the accused. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), Whitlock v. United States, 478 F.2d 1087 (8th Cir. 1973); Anno. “Propriety and prejudicial effect of Counsel’s representing defendant in criminal case notwithstanding counsel’s representation of prosecution witness,” 27 A.L.R.3d 1431.

An attorney who represents both the defendant and a prosecution witness in the case against the defendant is representing conflicting interests. There is however, no deprivation of constitutional rights if the defendant knowingly consents to representation by an attorney who also represents a prosecution witness. Ciarelli v. State, 441 S.W.2d 695, 697[2] (Mo.1969). The consent essential to obviate the apparent deprivation of constitutional rights must of necessity be a consent with a knowledge of the facts and voluntarily given. United States v. LaVallee, 282 F.Supp. 968, 971 (D.C.E.D.N.Y.1968), is a case similar to the one we have under consideration. In LaVallee the defendant did not learn that his attorney represented a conflicting interest until after the trial had commenced, and it was there held that it could not be said that he assented to it by his silence. “It is understandable that a criminal defendant, not necessarily familiar with all of his constitutional rights, and not informed of the same by the trial judge when the dual representation became apparent, might not interrupt his trial to request that his attorney be relieved even if he was made aware during the course of the trial that a prosecution witness was a client of his attorney.” United States v. LaVallee, supra, l.c. 971.

Here, appellant and Cooper both retained Mr. Neaf at a time when there was no apparent conflict of interest in dual representation; however, once it became apparent that the State was seeking leave to endorse Cooper as a prosecution witness the conflict issue surfaced. Mr. Neaf, nevertheless, did not inform appellant nor the trial court of this potential and voiced no opposition to the Motion to Endorse Additional Witness. Appellant, according to his testimony, first learned that Cooper was to be a witness against him “When he testified that day in Court. On Friday when he came in and testified against me.”

Appellant here had been forcefully denied a request for continuance to have new counsel appear in his behalf and told in no uncertain terms that the case was going to trial on that date. He was further told by the trial court that he could either defend himself or accept the services of Mr. Neaf. His own counsel did not advise him that Cooper was going to be a witness against him despite the fact counsel knew since February 26, 1975, that the State intended to call Cooper to the stand. Faced with the alternative of trying the case himself, this nineteen year old defendant, untrained in the law, was hardly afforded any choice other than to proceed to trial with counsel he had sought to replace because, rightly or wrongly, he felt was not properly representing him. There is no evidence that when the witness Cooper appeared appellant was advised that there was a potential conflict of interest and that he could at that time object to the continued representation by his counsel on that grounds. Under these circumstances we hold that it cannot be said he consented to representation by counsel who had a conflict of interest.

We hold, that under the facts in this record, appellant was deprived of effective assistance of counsel by reason of the violation of his Sixth Amendment rights to a counsel free from any possible conflict of interest, and reverse the judgment and remand the cause to the Circuit Court for a new trial.

The other points raised by appellant are not likely to arise on retrial so we do not reach them in arriving at our decision.

Reversed and remanded for a new trial.

SIMEONE, P. J., and GUNN, J., concur.