author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Michael Laverne BURTON, Appellant.
    No. KCD 28626.
    Missouri Court of Appeals, Kansas City District.
    Nov. 4, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 12, 1976.
    Application to Transfer Denied Jan. 10, 1977.

      Theodore M. Kranitz, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury of rape. Appellant charges errors in connection with the refusal of testimony from a nondis-closed defense witness, and of the result of a trial in a separate offense; the defense of not guilty by reason of mental disease excluding responsibility; failure of the State to disclose a psychologist’s test results; improper hypothetical questions to the State’s expert witnesses; refusal to disqualify the prosecuting and assistant prosecuting attorneys; testimony of a State’s psychiatrist; and newly-discovered evidence. Affirmed.

Appellant does not question the sufficiency of evidence to support his conviction. The record contains evidence to show that on July 25, 1974, defendant went to the apartment of his victim in St. Joseph, Buchanan County, Missouri, and, by deception, obtained entrance and at gun point forced her to have sexual intercourse with him. Such constituted the offense of rape. § 559.260, RSMo 1969. The jury so found and by its verdict rejected the tendered defense of not guilty by reason of mental disease or defect excluding responsibility.

Appellant contends (I) that the court erred in refusing, on ground of prior nondisclosure, to permit Donna Burton to testify when called by defendant.

On the second day of trial defendant attempted to call his mother, Donna Burton, to testify in his behalf. The State objected on ground the defendant had not disclosed Mrs. Burton. The court recognized its discretion to allow a nondisclosed witness to testify but declined to exercise such discretion after counsel conceded he had been aware before trial of Mrs. Burton as a possible witness.

Appellant argues that the court’s ruling was an abuse of discretion resulting in denial of due process. He asserts he had no obligation to make disclosure to the State because there was no written request for disclosure by the State.

Rule 25.34(A), V.A.M.R., provides:

“ * * * subject to constitutional limitations, on written request by the state, the defendant shall disclose *

Rule 25.35(A), V.A.M.R., provides:

“ Subject to constitutional limitations, the state may make a written motion in the court having jurisdiction to try the case requesting the defendant to disclose material and information not covered in Rule 25.34 * *

The foregoing rules do contemplate disclosure to the State by a defendant upon written request and by filing a motion. Simeone, The New Rules of Criminal Discovery in Missouri, 31 Mo.Bar J. 17, 21. There is nothing in the rules, however, to prohibit a waiver of the provision for written request or motion, and the circumstances in this case demonstrate that defendant waived the necessity of written request or motion.

Prior to trial, defendant moved to require the State to make disclosure pursuant to Rules 25.32 and 25.33, V.A.M.R. The court ordered the requested disclosure and, upon oral request of the State, suggested the defendant reciprocate. The State made the ordered disclosure and its sufficiency is not in question in this point. The defendant, in response to the court’s suggestion and in his words, “provided complete disclosure to plaintiff.” This was accomplished by defendant by a filing wherein defendant, “pursuant to VAMR 25.34 and 25.35, and in the absence of written motion or request for disclosure, discloses the following information [a list of witnesses ‘defendant intends to call’] like that moved by defendant that the State provide defendant and ordered by the Court: * * * Defendant reserves the right to call any disclosed witness, regardless of whether or not listed above.” Defendant’s disclosure was further accomplished by a second filing wherein defendant, “pursuant to VAMR 25.34 and 25.35, without written motion or request for disclosure as required by said rules, and supplemental to his previous disclosure, discloses [an additional witness] * * There is no question that the name of Mrs. Burton was not disclosed, and defendant’s representation of “complete disclosure” pursuant to the rules and absent written request or motion obviated the necessity of a written request or motion by the State. Defendant’s failure to disclose Mrs. Burton in the course of his “complete disclosure” was a failure to comply with Rule 25.-34(A)(2), V.A.M.R., requiring a defendant to disclose all persons whom defendant intends to call as witnesses. Rule 25.45, V.A.M.R., provides that if a party fails to disclose a witness in violation of the applicable discovery rule, the court may, among other things, “exclude such evidence * * * ” ; and in such circumstances the court will not be deemed guilty of an abuse of discretion in its refusal to permit the undisclosed witness to testify. State v. Wolfe, 542 P.2d 482, 485 (Or.1975); State v. Talley, 112 Ariz. 268, 540 P.2d 1249, 1251 (banc 1975); State v. Scott, 24 Ariz.App. 203, 537 P.2d 40, 42 (1975).

Appellant contends (II) that Section 552.-030.7, RSMo 1969, “provides an unconstitutional shift of burden of proof from plaintiff to defendant, in that the statute requires defendant to overcome a presumption against mental illness or defect by a preponderance of the evidence, although the requirements of due process are that once a defense of mental illness or defect is asserted, the burden is upon the plaintiff to prove its absence, as an element of the alleged offense, beyond reasonable doubt.” Similarly, he contends (III) that the second paragraph of Instruction 8 and Instruction 9 are unconstitutionally defective as a shift of the burden of proof, for the reasons asserted in contention (II).

Section 552.030.7, supra, provides:

“All persons are presumed to be free of mental disease or defect excluding responsibility for their conduct, * * *. The issue of whether any person had a mental disease or defect excluding responsibility for his conduct is one for the jury to decide upon the introduction of substantial evidence of lack of such responsibility. But in the absence of such evidence the presumption shall be conclusive. Upon the introduction of substantial evidence of lack of such responsibility, the presumption shall not disappear and shall alone be sufficient to take that issue to the jury. The jury shall be instructed as to the existence and nature of such presumption when requested by the state and, where the issue of such responsibility is one for the jury to decide, the jury shall be told that the burden rests upon the accused to show by a preponderance or greater weight of the credible evidence that the defendant was suffering from a mental disease or defect excluding responsibility at the time of the conduct charged against him * *

Instruction No. 8 followed the pattern of MAI-CR 3.70 and in its second paragraph told the jury:

“The defendant is presumed to have been free of such a mental disease or defect at the time of the conduct charged against him. This presumption places upon the defendant the burden of proving by the greater weight of the credible evidence that he is not guilty by reason of such a mental disease or defect.”

Instruction No. 9 followed the pattern of MAI-CR 2.33 and told the jury:

“If you find and believe from the evidence beyond a reasonable doubt that the defendant committed the conduct charged against him, you will then decide whether or not at that time he had a mental disease or defect excluding responsibility.
“If you find and believe by the greater weight of the credible evidence:
“First, that at the time of the conduct charged against the defendant he had a mental disease or defect, and
“Second, that as a result of it he did not know or appreciate the nature, quality or wrongfulness of his conduct, or that if he did, he was incapable of conforming his conduct to the requirements of law, then you must find the defendant not guilty by reason of mental disease or defect excluding responsibility.”

This appeal was filed originally in the Supreme Court on appellant’s assertion that contentions II and III involved construction of the Constitution of the United States or of this state under Missouri Constitution, Article V, Section 3. The Supreme Court ordered the appeal “transferred to court of appeals, Kansas City district, in which jurisdiction is vested” ; and appellant recognizes “there having been a specific judicial determination, the question has been adjudicated * * * il

If such were not the case and a true constitutional question was presented, this court would not have jurisdiction of this appeal. State ex rel. Martin v. XLNT Corporation, 525 S.W.2d 616, 620-621 (Mo.App.1975); State v. Holley, 488 S.W.2d 925, 927 (Mo.App.1972). Similarly, the Supreme Court has mandated the use of Instructions 8 and 9 in this case, and this court has no power to declare erroneous pattern criminal instructions contained in MAI-CR. Rule 20.02, V.A.M.R.; State v. Gilyard, 523 S.W.2d 564-568 (Mo.App.1975); State v. Yeokum, 516 S.W.2d 535, 536-537 (Mo.App.1974).

It should be noted also that the first assertion of constitutional shortcomings of Section 552.030.7 occurred in defendant’s motion for new trial; and in order to preserve for appellate review a constitutional issue, it must be raised at the earliest time consistent with good pleading and orderly procedure. State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975).

Finally, there is no constitutional requirement that the State bear the burden of proving the sanity of a defendant in a criminal prosecution. See Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), which upheld a statute which required the defendant who relied on a defense of mental disease or defect to prove beyond a reasonable doubt that he was so suffering at the time of the commission of the offense. Davis v. United States, 160 U.S. 469, 484, 16 S.Ct. 353, 40 L.Ed. 499 (1895), cited by appellant, does not require a contrary result because that decision “obviously establishes no constitutional doctrine, but only the rule to be followed in federal courts.” 343 U.S. l. c. 797, 1002; State v. Holmes, 439 S.W.2d 518, 521 (Mo.1969).

Appellant contends (IV) that the State failed to disclose or failed to use due diligence to obtain and furnish to defendant results of a Sentence Completion Test and the Minnesota Multiphasic Personality Inventory in violation of its duty under Rules 25.32 and 25.33, and he was thus denied due process with respect to cross-examination of Dr. Richard K. Jacks; (VIII) that Doctor Jacks incorrectly interpreted the MMPI administered to defendant at Fulton State Hospital, and that he thus “testified falsely” to a material fact so as to require a new trial; and (IX) that his after-trial acquisition of the MMPI results constitutes “newly discovered evidence” which “probably would have produced a different result on new trial.”

Defendant’s motion for disclosure requested the State to disclose, among other things, “[a]ny report or statements of experts, made in connection with this cause, including the results of physical or mental examinations and of scientific tests * * of the defendant * * * and * * * [a]ny material or information within the possession or control of the state, which tends to negate the guilt of the defendant * * * mitigate the degree of the offense * * * reduce the punishment * *

In compliance, the State furnished a handwritten response naming Dr. Jose Raphael of St. Joseph State Hospital and Dr. Richard K. Jacks of Fulton State Hospital as rebuttal witnesses, and a 6-page typewritten report of psychiatric examination at Fulton State Hospital of defendant pursuant to Chapter 552, RSMo 1969, signed by Richard K. Jacks, D.O., Clinical Director. The report described pertinent history; physical status; mental status, covering among other things “Psychological Testing” by a “battery of tests,” including “the MMPI”; course in hospital; condition at present; diagnosis of “No Mental Disorder within the meaning of Chapter 552” ; discussion; findings, among others, of no mental disease or defect within the meaning of Section 552.010; and recommendation that he be returned to court for trial. Despite this disclosure to defendant, particularly that MMPI tests had been administered, there was no further pretrial request for particular test results, no complaint before trial of any failure of the State to disclose, and no objection at trial of any failure to disclose. The record shows also that defendant cross-examined Doctor Jacks extensively and to the extent of showing that Doctor Jacks was aware that defendant was “out-of-norm” on the MMPI in but two categories when he was actually out-of-norm in several categories.

It is thus shown that the State disclosed, and defendant was apprised of, the existence of the MMPI test, and that defendant was prepared to meet Doctor Jacks on that issue. Accordingly, it may not be said that defendant was deprived of the opportunity on that account to prepare in advance of trial for cross-examination of State’s witness Jacks. Cf. State v. Buckner, 526 S.W.2d 387 (Mo.App.1975), where, in response to defendant’s motion for disclosure, State’s disclosure of an unsigned statement of its witness did not excuse its failure to disclose existence of a written statement of the witness.

Dr. Richard K. Jacks, in rebuttal of defendant’s plea of not guilty by reason of mental disease or defect, gave his opinion, as he did in his report, that defendant was not suffering from mental disease or defect at the time of the offense. Upon cross-examination, Doctor Jacks conceded reliance in part on psychological tests, including MMPI, given defendant by clinical psychologists, and stated that a summary of MMPI results given to him showed that defendant tested in abnormal ranges on two of the test’s twelve scales. Defendant showed by his psychologists, Dr. Kenneth West and David Dawson, that defendant scored in abnormal ranges on eight of eleven scales of the MMPI test.

These circumstances show that Doctor Jacks was inaccurate or mistaken in his understanding of the MMPI test results; they do not show that he testified falsely as to constitute perjury. Appellant concedes that he “do[es] not suggest that Dr. Jacks perjured himself * * * but merely that he testified falsely.” The inaccuracy was raised by defendant’s cross-examination of Dr. Jacks, was corrected beyond question by witnesses West and Dawson, and Doctor Jacks clarified that his opinion was not changed by the inaccuracy of his information on MMPI test results. In his words, such tests are “more or less like a laboratory test, giving you certain information, but * * * cannot make a diagnosis in itself.” Inaccurate testimony given by a witness against a defendant does not entitle him to a new trial; it must be shown that the state knowingly used perjured testimony or failed to correct testimony it knew to be deliberately false. Tyler v. State, 501 S.W.2d 189, 190-191 (Mo.App.1973).

Nor is there anything with respect to the MMPI and sentence completion test results to call for a new trial to defendant on his assertion of “newly-discovered evidence.” In order for an appellant to secure a new trial on the ground of newly-discovered evidence, the evidence must have come to his knowledge since the trial; he must not be guilty of a lack of diligence in discovering it; it must be material and probably produce a different result on a new trial; it must not be merely cumulative; and its object must not be to impeach the character or credit of a witness. State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., 381 S.W.2d 20, 25 (Mo.App.1964); State v. Hurd, 520 S.W.2d 158, 165 (Mo.App.1975). As previously demonstrated, defendant was advised before trial that psychological tests including the MMPI had been given him and were considered in his psychiatric evaluation; he became aware of the inaccuracy of Doctor Jacks’s evaluation of the tests at trial; his own witnesses, Doctor West and David Dawson, had administered such tests to defendant; he cross-examined Doctor Jacks with respect to inaccuracies; and the admission of. inaccuracy was obtained from Doctor Jacks and utilized for purposes of discrediting his expert opinion at trial.

Appellant contends (V) that the court erred in denying evidence from the Circuit Clerk of Holt County that defendant had previously tendered a plea of not guilty by reason of mental illness or defect to a charge of kidnapping arising out of occurrences June 17, 1974, “and after hearing, the plea was accepted and defendant found to be suffering from mental illness or defect.” He argues that this evidence “would have tended to show the jury that defendant has been adjudicated to be suffering from mental illness or defect at a point in time closely related to the incident for which he was being tried in this case and tended to prove his defense of acute schizophrenic episode, a mental illness excluding criminal responsibility.” He argues also that the error of the denial of the evidence was compounded by evidence adduced by cross-examination of defendant that he had been charged with a crime in Holt County prior to visiting Doctor Cox, a psychiatrist, and the denial to defendant upon redirect examination of evidence of the disposition of the kidnapping charge in Holt County. Section 552.030.2, RSMo 1969, provides:

“ * * * The state may accept a defense of mental disease or defect excluding responsibility * * * if the defendant has no other defense and files a written notice to that effect. Upon the state’s acceptance of the defense of mental disease or defect excluding responsibility, the court shall proceed to order the commitment of the defendant as provided in section 552.040 * *

The State’s acceptance in Holt County of defendant’s plea of not guilty by reason of mental disease or defect for the offense alleged to have been committed on June 17,1974, did not establish that defendant was suffering from mental disease or defect on that date. Under the statute, such acceptance simply mandated that the court order the defendant committed to the Director of the Division of Mental Diseases for further proceedings. It did not constitute an adjudication of defendant’s mental condition on June 17,1974, as characterized by appellant; and it had no bearing on his mental condition on July 25, 1974, when he committed rape in Buchanan County. State v. Walden, 490 S.W.2d 391, 393 (Mo.App.1973); State v. Clemmons, 460 S.W.2d 541, 545 (Mo.1970).

The difficulty in the second part of appellant’s argument is that defendant elicited evidence of the kidnapping, and the victim was called as a witness in his behalf. Accordingly, it may not be said that the cross-examination of defendant on that score was erroneously permitted, and it could not have compounded an alleged error now demonstrated to be nonexistent.

Appellant contends (VI) that the court erred in permitting the State “to inquire of rebuttal witnesses, Drs. Nicholas Bartulica and Jose Raphael, hypothetical propositions which were incomplete and without foundation as a matter of law and the evidence.”

The record shows that Doctor Bartulica is a psychiatrist and assistant superintendent of St. Joseph State Hospital, and that Doctor Raphael is a medical doctor and staff psychiatrist at St. Joseph State Hospital. Their qualifications were not questioned. The record also shows that the questions to them were not hypothetical, but called only for their expert opinions, based on their observations of defendant, whether he suffered from mental disease or defect excluding responsibility for the rape he committed July 25, 1974. Such opinions may be based on the expert’s own observation, Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860, 865 (1928); and when the expert has personal observation, hypothetical questions are unnecessary to obtaining his opinion, De Donato v. Wells, 328 Mo. 488, 41 S.W.2d 184, 187 (1931).

Appellant contends (VII) that the court erred in overruling defendant’s verified motion to disqualify the prosecuting and assistant prosecuting attorneys on grounds of bias and prejudice.

Defendant’s Application to Disqualify Prosecuting Attorney, “pursuant to VAMR 56.110,” verified by affidavit of counsel, asserted as grounds:

“That Richard A. Heider, duly elected and qualified prosecuting attorney of Buchanan County, Missouri, and Cynthia Clark, his duly appointed assistant prosecuting attorney, have such a personal interest in the prosecution of these causes as to indicate that they might be influenced thereby and not be fair to defendant in the trial of these cases. * * *
“That the interest * * * is a lack of quasi-judicial attitude toward these cases, but a personal interest in achieving a conviction, regardless of merits; and that said interest is evidenced by the statements of said assistant prosecuting attorney made to the press and appearing on page 7A of the St. Joseph News-Press of Thursday, 20 February, 1975, * * *
“That the statements * * * were designed to inform the public at large of the opinion of the prosecuting attorney in the cause, his and her disbelief in the merit of the defense expected to be raised by defendant, and resulted in an appearance of professional misconduct by counsel for defendant in the text of said news release which purported to quote statements made by counsel to the media, when counsel has made no statements whatsoever to the media.”

The news article in question under heading “Burton to Stand Trial for Rape,” indicated that Judge Connett had ordered defendant returned to Buchanan County from Fulton State Hospital to stand trial on a forcible rape charge. The article stated further:

“ * * * Assistant Prosecutor Cindy Clark, who requested today’s order, said she has information indicating Burton is mentally able to stand trial here. * *
“Burton also is charged with felonious assault. Assistant Prosecutor Clark said she would ask that he be tried on this charge in April * *

Section 56.110, RSMo 1969, provides:

“If the prosecuting attorney and assistant prosecuting attorney be interested or shall have been employed as counsel in any case where such employment is inconsistent with the duties of his office, or shall be related to the defendant in any criminal prosecution, either by blood or by marriage, the court having criminal jurisdiction may appoint some other attorney to prosecute or defend the cause.”

The statements attributed to Ms. Clark in the news article are not indicative of the type interest to have authorized the court to appoint some other attorney in her stead to prosecute the case. There is no suggestion in the article that she was acting over-zealously, with a personal interest, or in relationship which would bring her conduct within the ambit of the statute. Compare the need for disqualification in State v. Jones, 306 Mo. 437, 268 S.W. 83, 85 (Mo.1924), where the prosecuting attorney prosecuted a charge involving an automobile collision in which his car had been one of the vehicles and he was the principal State’s witness; State v. Nicholson, 7 S.W.2d 375, 378 (Mo.App.1928), where the prosecutor accompanied the sheriff in execution of a search warrant, testified against defendant, and otherwise conducted himself to the defendant’s prejudice; State v. Burns, 322 S.W.2d 736, 741 — 742 (Mo.1959), where one of the prosecutors previously had represented the defendant on the same charge for which he was ultimately convicted.

Appellant argues, “there having been no proffer of contradictory evidence, the application to disqualify * * * should stand proved.”

The unchallenged verified application to disqualify the prosecuting attorney did not, alone, require the court to sustain it. The absence of a counteraffidavit to defendant’s affidavit operated only as a waiver of objections the State may have had to the affidavit, and the uncontradicted affidavit made only a prima facie showing of its contents for consideration by the court. State v. Hurd, supra, 520 S.W.2d l. c. 164. It already has been demonstrated that the motion, its contents, and accompanying affidavit presented no case under the statute and authorities for replacement of the prosecuting attorney and his assistant.

Appellant contends (X) that his foregoing contentions IV, VII, VIII, and IX stand admitted by respondent “as to all factual matters set out therein, and they are not subject to attack in the absence of counter-affidavits in the trial court.” He asserts that he verified his motion for new trial, and “it stands admitted, therefore, (a) that plaintiff withheld or did not use due diligence to obtain and furnish material evidence; (b) that the prosecuting attorney and his trial assistant were disqualified from prosecuting the cause; (c) that Dr. Richard K. Jacks testified falsely to a major material fact; and (d) that the evidence of false testimony is newly discovered.”

This contention does not present anything for appellate review because it does not state what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous. Rules 28.18 and 84.04, V.A.M.R. The substance of appellant’s conclusions (a), (b), (c), and (d) has been considered on the merits under appellant’s contentions IV, VII, VIII, and IX, supra, and counsel’s verification does not alter the rulings. See Glasser v. United States, 315 U.S. 60, 87, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Blodgett v. United States, 161 F.2d 47, 56, n. 4 (8th Cir. 1947).

Judgment affirmed.

All concur.

      . Cf. 64 Georgetown Law Journal 871, 890 (1976), which suggests that Leland v. State of Oregon should be repudiated.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    Richard W. STRINGER and Mary Frances Stringer, Plaintiffs-Respondents, v. Wilford REED and Bernice Reed, Defendants-Appellants.
    No. 9976.
    Missouri Court of Appeals, Springfield District.
    Nov. 16, 1976.

      William E. Gladden, Houston, for defendants-appellants.
    John Alpers, Jr., Cabool, Tom Rosenberg, Willow Springs, for plaintiffs-respondents.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

This is an action for specific performance of a contract for the purchase of a 260-acre tract of land in Texas County, Missouri. Plaintiffs Richard W. Stringer and Mary Frances Stringer, husband and wife, are the buyers and defendants Wilford V. Reed and Bernice Reed are the sellers.

The petition sought, alternatively, that defendants be directed to convey the title to plaintiffs or that the court decree title to be in plaintiffs, upon payment of the purchase price.

On April 4, 1969, plaintiffs and defendants executed a written agreement entitled “Farm Lease” and referred to in the record as Exhibit A. In that document plaintiffs are referred to as lessees and defendants as lessors. Plaintiffs base the action upon their alleged exercise of and compliance with an option to purchase contained in paragraph 5 of Exhibit A. Paragraph 5 reads:

“It is mutually agreed that LESSORS hereby give to LESSEES, their heirs and assigns the exclusive right to purchase the above described property upon the terms and conditions hereinafter set out on March 15, 1974, upon giving LESSORS thirty days notice in writing prior to March 15, 1974, of their intent to exercise this option:

(a) The purchase price shall be the sum of $13,000.00 to be paid to LESSORS in cash upon delivery of a warranty deed conveying said property to the LESSEES conveying marketable title in said premises to LESSEES free and clear of all liens and encumbrances.

(b) General taxes on said property should be prorated as of the date of delivery of the deed and possession of said premises shall transfer from LESSORS to LESSEES on the date of the delivery of the deed.”

Defendants’ answer admitted execution of Exhibit A but set up several grounds allegedly constituting justification for their refusal to convey the title to plaintiffs. Each ground will be considered in connection with the treatment of that point on appeal to which it is applicable.

The trial court found in favor of plaintiffs and entered its decree vesting title in plaintiffs upon payment of the purchase price and proration of the taxes. Defendants appeal.

Appellate review of this non-jury action is governed by Rule 73.01, V.A.M.R., as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The decree of the trial court must be sustained “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy, at p. 32. Neither side invoked Rule 73.01 to request findings of fact and the trial court made none. That being the situation, “all fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Rule 73.01.

On April 1,1969, plaintiff Richard Stringer went to the home of the defendants and discussed with them the matter of leasing the land. The next day Stringer went to his attorney John Alpers and told him “what we had agreed to” and asked Alpers to “draw up the contract.” On April 4, 1969, the two plaintiffs and the two defendants met with Alpers in the latter’s office.

Defendant Wilford Reed stated he did not read Exhibit A. Defendant Bernice Reed did not recall whether or not she read it. Both of them admitted, however, that Alpers read it to them. All four of the parties signed Exhibit A and each couple received a copy.

The lease, Exhibit A, had a five-year term commencing on March 15, 1969, and ending on March 14, 1974, and required plaintiffs to pay an annual rental of $200. It contained no provision in regard to improvements. Defendant Wilford claimed that the verbal agreement was that the plaintiffs were to fertilize and improve the pasture and sow grass and, because of this, the defendants were to give the plaintiffs “the first chance to buy the land at the price of $50 per acre” if defendants decided to sell it during the five-year period..

Paragraph 3 of Exhibit A, as originally drafted, read as follows: “The Lessors covenant and agree: This lease essentially is an option to purchase with Lessee in possession during the option period. The rent for the entire period is paid in advance in a lump sum, against which is charged a fixed monthly rental, any balance being applied on the purchase price on exercise of the option.”

During the conference in Attorney Al-pers’ office on April 4, 1969, at the insistence of defendants, the last sentence of paragraph 3 was deleted. Plaintiff Stringer testified, with respect to the deletion, that it was the only item that was discussed with the defendants on April 4 “that was different” from what he had discussed with them at their home on April 1.

On January 4, 1974, the plaintiffs sent to defendants a letter admittedly received by them a few days later. That letter informed defendants that it constituted notice of plaintiffs’ intention to exercise the option to purchase the land described in Exhibit A and made specific reference to the option contained in paragraph 5. The letter contained a request that the defendants send plaintiffs the abstract “so that we might have it extended to date and approve title before the closing of this sale and purchase on March 15, 1974.” The letter concluded with: “Should you have any questions concerning this notice please feel free to contact us.”

After receiving the January 4, 1974 letter, defendants went to plaintiffs’ home and told plaintiffs that defendants did not understand the notice. According to defendant Bernice, plaintiff Stringer said “they were going to exercise the option and asked for a deed.” When Stringer made that statement Bernice, according to her, responded to him “that I thought we were through since the five years rental was up.”

On March 4, 1974, Attorney William E. Gladden sent a letter to plaintiff Stringer informing him that Gladden “has been retained by Mr. and Mrs. Reed concerning the farm lease dated April 4, 1969.” The letter concluded with: “Any further correspondence or communication which you might have concerning this transaction should be directed to my office.” Defendants admitted that Gladden represented them.

On March 11, 1974, Alpers, representing plaintiffs, wrote a letter to Gladden, representing defendants, acknowledging receipt of the March 4, 1974 letter and enclosing a deed for execution by the defendants. Al-pers’ letter continued: “Since [Exhibit A] calls for a closing on March 14, 1974, we will be happy to close this transaction in your office at 10 a. m. on March 14, 1974. At this time I will deliver to you the $13,000 provided in the agreement in exchange for delivery of the enclosed warranty deed signed by Mr. and Mrs. Reed. At that time we can also settle the prorated taxes for 1974. If this closing date and time are not satisfactory with you please let me know immediately.” Gladden admitted receiving that letter on March 12, 1974.

On March 14, 1974, at 10 a. m., plaintiff Stringer and Alpers went to Gladden’s office. According to Stringer “we asked Gladden for the deed and told him we were there to pay for the farm and to receive the deed. Gladden said he did not have anything for us and basically refused to discuss the thing any further.” Stringer tried to give Gladden a cashier’s check in the amount of $13,000 payable to the defendants but Gladden would not accept it. Stringer testified that since March 14, 1974, he has remained willing and able to pay the purchase price of $13,000 in exchange for defendants’ deed.

Although both defendants were present during the trial, neither testified nor was any evidence presented on their behalf. Most of the admissions and statements attributed to them in the foregoing summary of the evidence were contained in interrogatory answers which plaintiffs placed in evidence.

The first of defendants’ seven appellate contentions, each unavailing, is that plaintiffs were not entitled to equitable relief because defendants signed Exhibit A “on the mistaken belief that they were signing only a lease and a right of first refusal to plaintiffs if defendants decided to sell and the unilateral mistake of defendants is compelling grounds for the denial of specific performance.”

In developing their argument under this point defendants proceed upon the invalid factual assumption that the evidence “conclusively and without contradiction” showed that the defendants, when signing Exhibit A, entertained the described mistaken belief.

Thus the unilateral mistake on which defendants rely does not consist of their lack of knowledge of the contents of Exhibit A; rather it consists of their alleged lack of knowledge of the legal effect of its plainly worded provisions. Authority exists to the effect that such a unilateral mistake, if it existed, in itself is no bar to a claim for specific performance. It is not necessary to determine whether that view constitutes the law in Missouri for the reason that the trial court may properly have found that no such mistake existed in the minds of defendants.

Defendants’ answer had pleaded the mistake as an affirmative defense. Rule 55.08, dealing with affirmative defenses, does not include mistake among those specifically enumerated. That rule, however, does require the affirmative pleading of “any other matter constituting an avoidance or affirmative defense.” A mistake of the type under discussion, if a defense at all, was an affirmative defense because it rested “upon some fact not included in the allegations necessary to support” the plaintiffs’ case. Semo Grain Company v. Oliver Farms, Inc., 530 S.W.2d 256, 258[1, 2] (Mo.App.1975).

A defendant who asserts an affirmative defense has, initially and throughout the case, the burden of proof thereon. Gennari v. Prudential Insurance Co. of America, 335 S.W.2d 55, 60[2] (Mo.1960). See also Mochar Sales Company v. Meyer, 373 S.W.2d 911, 914[2] (Mo.1963).

In Meade v. Brown, 218 Mich. 556, 188 N.W. 514 (1922) there was a suit for specific performance of an option to purchase land contained in a lease. The defense was, in part, that the insertion of the option was due to a mistake on the part of the scrivener and the option was inserted without the knowledge of the defendants. The court acknowledged that such a unilateral mistake “may, if clearly established, be ground for rescission, though not for reformation of the agreement.” However, the court stated “the burden of proof is on defendants to overcome the presumption that when they signed the writing they understood its contents. This they have failed to meet.” Meade at p. 515.

Other authorities, in somewhat similar factual situations, support the proposition that this type of mistake, if a valid defense at all, is an affirmative one on which the defendants have the burden of proof. Cawley v. Jean, 189 Mass. 220, 75 N.E. 614 (1905); Church of Christ v. Beach, 7 Wash. 65, 33 P. 1053 (1893); 81 C.J.S. Specific Performance, § 140, p. 714.

It is true, as defendants emphasize, that plaintiffs placed in evidence the answers of each defendant to interrogatories directed to them. One of the answers of defendant Bernice was: “It was my understanding that Mr. Stringer was to clear off the pasture land, to fertilize and seed the pasture land to grass, and thereby to improve the pasture land and not cut the timber. It was further my understanding that because Mr. Stringer was going to make the improvements to the land, that if my husband and I decided to sell the land during the rental period then we would give Mr. Stringer the first chance to buy the land at a price of $50.00 per acre.” Defendant Wilford gave a similar answer.

“It is only where the adversary’s testimony, as offered by the opposite party, is uncontradieted or is the only evidence on the point that the latter is bound by such testimony.” Taylor v. Riddle, 384 S.W.2d 569, 574[3] (Mo.1964). See also Frazier v. Stone, 515 S.W.2d 766, 769[13] (Mo.App.1974).

It was the testimony of plaintiff Stringer that he discussed with the defendants the particulars of the agreement on April 1, 1969; that the next day Stringer told attorney Alpers “what we had agreed to” and asked the attorney to draw up the contract; that Alpers did draw up the agreement; and that, except for the deletion of the last sentence of paragraph 3, Exhibit A, as drafted by Alpers, was the same as that which was verbally agreed to on April 1.

It will be recalled that the defendants, again by their answers to interrogatories, agreed that Alpers had read Exhibit A to them. It was at the insistence of defendants that the last sentence of paragraph 3 was deleted. It is reasonable to infer from the latter action that the defendants were aware of the particulars of the agreement after it had been reduced to writing and that they understood the meaning of the portion deleted, even though the latter is couched in legal language. The option sought to be enforced was contained in paragraph 5 of Exhibit A. However, paragraph 3 called further attention to the option by stating that the lease “essentially is an option to purchase with lessees in possession during the option period.”

Paragraph 6 of Exhibit A contained, for defendants’ benefit, an option to sell. Paragraph 6 provided, in effect, that upon defendants’ giving 60 days written notice to plaintiffs of defendants’ intention to sell the land, plaintiffs were required to purchase the land for $13,000 on a prescribed payment schedule and with proration of taxes. The option to sell was exercisable at any time during the five-year term.

It is reasonable to infer that the deletion of the last sentence of paragraph 3, done at the insistence of defendants, and the insertion of paragraph 6, which redounds solely to their benefit, are inconsistent with a lack of awareness, on defendants’ part, of the nature of an option'and the fact that paragraph 5 contained one.

Further, after defendant Bernice received the January 4, 1974, letter from plaintiffs, defendants had a conference with plaintiff Stringer in which the latter mentioned his intention to exercise the option. Bernice’s response was not to the effect that she did not understand the agreement to contain an option; instead she made a comment which can be construed to mean that the option had lapsed because the last rental payment had been made.

The evidence discloses that a copy of Exhibit A had been in the possession of the defendants since the day of its execution. The defendants, though present at the trial, offered no testimony relating to the unilateral mistake or any other alleged defense. “It is well settled that the failure of a party having knowledge of the facts and circumstances vitally affecting the issues on trial to testify in his own behalf . . . raises a strong presumption that such testimony would have been unfavorable and damaging to the party who fails to proffer the same.” Bean v. Riddle, 423 S.W.2d 709, 720[9] (Mo.1968).

Although the failure of the defendants to testify “cannot be treated as independent evidence of a fact otherwise unproven ... it can be considered in measuring the credibility or probative force of the evidence presented.” Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W.2d 886, 889[5-6] (Mo.1928). See also 29 Am.Jur.2d Evidence § 188, p. 238 (Note 5). It seems that the quoted principle is not sapped of its vitality merely because the plaintiff introduced defendants’ answers to interrogatories. See Pasternak v. Mashak, 428 S.W.2d 565, 569[10] (Mo.1967) and Block v. Rackers, 256 S.W.2d 760, 764[7] (Mo.1953).

Thus the evidence was such that the trial court could reasonably conclude that defendants had failed to sustain their burden of proof and that there was no unilateral mistake in the minds of the defendants with regard to the meaning of the option contained in paragraph 5 of Exhibit A.

Defendants’ first contention, lacking in factual support, has no merit.

Defendants’ second contention is that plaintiffs were not entitled to specific performance because Exhibit A, and particularly paragraph 5 thereof, “was unfair, overreaching and the result of sharp practices on the part of plaintiffs and there was such an inadequacy of consideration.”

Much of the portion of this opinion dealing with defendants’ first contention is fatal to their second. The alleged “sharp practices” on the part of plaintiffs consisted, according to defendants’ brief, of the making of representations to the defendants “that the agreement was just a lease and a right of first refusal.” As the discussion under the first contention points out, the trial court properly resolved that factual issue in favor of the plaintiffs.

There is no factual support for defendants’ assertion that there was “an inadequacy of consideration.” It seems to be the position of defendants that the purchase price of $13,000 contained in Paragraph 5(a), or $50 per acre, was inadequate. However, the only testimony dealing with the value of the land at any specific time was the testimony of defendant Wilford Reed, in answer to an interrogatory, that “land was selling for $50 an acre as of April 4, 1969,” the date Exhibit A was entered into.

Defendants stress that in response to another interrogatory requesting the value of the land “on the date you answer these interrogatories” each defendant, denying any personal knowledge of its value, said that an offer had been made “by a person who has no knowledge of the pending lawsuit that they would pay $200 per acre for the land.”

“Generally the questions of the fairness of a contract or adequacy of price are to be considered as of the time the contract was entered into.” Roberts v. Clevenger, 225 S.W.2d 728, 733[10] (Mo.1950). See also 71 Am.Jur.2d 112, Spec.Perf. § 83. “[I]n determining whether or not a contract is so unfair or inequitable or is unconscionable so as to deny its specific performance, the transaction must be viewed prospectively, not retrospectively. The same rule applies with respect to sufficiency of consideration.” Tuckwiller v. Tuckwiller, 413 S.W.2d 274, 278[4] (Mo.1967). See 11 A.L.R.2d § 6, 390, 406. (Change of conditions after execution of contract or option for sale of real property as affecting right to specific performance.)

The price of $50 per acre contained in paragraph 5(a) represented the price “land was selling for” according to the admission of defendant Wilford Reed. It was also the price contained in paragraph 6 of Exhibit A which gave the defendants an option to sell.

The interrogatory answer dealing with the alleged $200 offer by an unidentified person of unknown means at an unknown time was not, at least when considered with the rest of the evidence, a bar to specific performance.

Defendants’ second contention, lacking in factual support, has no merit.

Defendants’ third contention is that plaintiffs were not entitled to specific performance because the petition failed to allege, and the evidence failed to show, that defendants had title to the land or the means to obtain it, either at the time of the filing of the action or at time of trial.

Paragraph 1 of the petition alleged that on April 4, 1969, the defendants “were in possession and claiming to be owners of” the land involved, and the legal description was set out. Defendants’ answer admitted paragraph 1. The answer also admitted that defendants signed Exhibit A. Although the answer set forth certain affirmative defenses discussed elsewhere in this opinion, it did not allege that defendants lacked the title or lacked the means to obtain it. There was, of course, no proof of defendants’ inability to perform.

In Tebeau v. Ridge, 261 Mo. 547, 170 S.W. 871 (banc 1915) the plaintiff-buyer brought a suit for specific performance of a contract to convey land. The petition did not aver that the defendant was, at the time of bringing the suit, the owner of the land. However, the petition set out the lease which contained the option to purchase.

The court, in rejecting defendant’s assertion that the petition failed to state a cause of action, pointed out that both parties “treated the case upon the trial as if the petition did state that defendant owned the property.” The court also said at p. 874:

“Besides this there are cases from other jurisdictions which seem to hold that the vendee does not need to offer proof of the vendor’s title; the fact that the Vendor assumed to sell raised the presumption of title, naught else appearing. Prince v. Bates, 19 Ala. 105; Gartrell v. Stafford, 12 Neb. 545, 11 N.W. 732, 41 Am.Rep. 767. In this view the setting out in the petition in haec verba of the paper containing the option to buy was a sufficient compliance with any requirement to plead ownership in the defendant. We disallow this contention.”

In Richards v. Johnson, 261 S.W. 53 (Mo.1924) there was a suit for specific performance of a contract to exchange land for land. The defendant asserted that the petition failed to state a cause of action because it did not allege that defendant was the owner of the land he was to give in exchange for plaintiff’s land. The court said at p. 54:

“We must rule this against [defendant], because the petition alleges that ‘defendant was in possession and claimed to be the owner’ thereof, and, ‘being desirous of disposing of said land he claimed possession and owner of,’ entered into the contract. The petition also alleges that defendant ‘executed a warranty deed conveying the property * * * to plaintiff,’ and placed it in escrow.

“We think the allegation of ownership in defendant sufficient to withstand a general demurrer.”

In Columbia River Co. v. Smith, 83 Or. 137, 162 P. 831 (1917) the court held that a buyer, seeking specific enforcement of a written agreement to convey real estate, need not anticipate or negative the seller’s defense by pleading that the seller has the present ability to comply with his contract. The court said at p. 833: “Whether or not the defendant is capable of performing is a matter peculiarly within his knowledge, and his rights are conserved by the privilege of answering and making the defense of inability.”

In Harrigan v. Dodge, 200 Mass. 357, 86 N.E. 780 (1909), an action for specific performance of a land contract brought against the seller, the court said:

“It is matter of defense to the prayer for specific performance, if he is unable to perform his contract on account of lack of ownership, and not a fatal defect apparent upon the statement of plaintiff’s claim.”

To the same effect see Tyrrell-Combest Realty Co. v. Mullen, 268 S.W. 1011, 1013[1-3] (Tex.Civ.App.1925).

The allegations of paragraph 1 of the petition, admitted by the answer, coupled with admission by defendants that they signed Exhibit A, which was attached to the petition and introduced into evidence, require the denial of defendants’ third contention.

Defendants’ fourth contention is that plaintiffs were not entitled to specific performance because the option to buy, contained in paragraph 5 of Exhibit A, was not supported by consideration.

At least one reason to deny the fourth contention is that the payment of the stipulated rent by plaintiffs was consideration for the option. Chapman v. Breeze, 355 Mo. 873, 198 S.W.2d 717, 719[4] (1947); Hathaway v. Nevitt, 358 Mo. 202, 213 S.W.2d 938, 941[1] (1948); Cummins v. Dixon, 265 S.W.2d 386, 392[1] (Mo.1954).

Defendants’ fifth contention is that plaintiffs were not entitled to specific performance because “the specified date for purchasing the land was March 15, 1974, and there was no attempt to obtain the deed and deliver the purchase price at any time other than on March 14, 1974.” Further defendants say that plaintiffs’ exercise of the option was not “unequivocal and unconditional because the acceptance called for an abstract to be furnished by the defendants and Exhibit A did not make such provision.” Finally, under this point, defendants state that the exercise of the option “was not unequivocal since it stated that it was plaintiffs’ intention to exercise the option.”

It will be noted that paragraph 5 of Exhibit A gives plaintiffs the exclusive right to purchase the land on March 15, 1974, upon giving notice. Exhibit A does not contain a provision that time was of the essence of the agreement. Attorney Al-pers’ letter of March 11, 1974, to attorney Gladden stated, erroneously, that Exhibit A “calls for a closing on March 14,1974.” The letter further stated that: “We will be happy to close this transaction at 10 a. m. in your office on March 14,1974, ... If this closing date and time are not satisfactory with you please let me know immediately.” Although Gladden received that letter on March 12, 1974, he did not inform Alpers that the proposed closing date of March 14 was not satisfactory. Plaintiff Stringer and Alpers went to Gladden’s office on March 14 and expressed their willingness to close the transaction. They tendered a cashier’s check in the amount of $13,000, which Gladden rejected. Gladden made no objection to the form of the tender nor did he make any statement to the effect that it was one day premature. Gladden’s conduct was such that it is reasonable to infer that had a tender been made the following day, March 15, it too would have been rejected. This action was instituted on March 20, 1974, and in the petition the plaintiffs renewed their tender.

The matters set forth in the preceding paragraph justified the trial court in rejecting defendants’ contention that the contract was not specifically enforceable because plaintiffs made no tender on March 15.

In Parkhurst v. Lebanon Pub. Co., 356 Mo. 934, 204 S.W.2d 241 (1947) specific performance was granted although there was a six-day delay in the payment of an installment of the purchase money, the contract having prescribed the date for payment. The court pointed out, at p. 247, that in ordinary contracts for the sale of real estate, equity does not regard time as of the essence of the agreement, but the parties may make time of the essence, even without express stipulation to that effect, where such intent is clearly manifested by the terms of the agreement. The court assumed, without deciding, that time was of the essence of the agreement. Nevertheless, in affirming the decree, the court held that even where time is by express stipulation made of the essence, the failure of one of the parties to perform a condition within the prescribed time will not always defeat his right to specific performance if the condition be subsequently performed without unreasonable delay and no circumstances have intervened which would render it inequitable to give such relief. The court also held that strict and literal performance of all the conditions of a contract is not “invariably an essential prerequisite to a decree * for specific performance.” See also Nigh v. Hickman, 538 S.W.2d 936 (Mo.App.1976).

“A formal tender by the purchaser is excused where the tender would be a useless and idle ceremony.” 81 C.J.S. Specific Performance § 103, p. 623.

Also invalid is defendants’ sub-contention that plaintiffs’ exercise of the option was ineffective because the letter of January 4, 1974, requested that defendants furnish the abstract. That letter, prior to stating the request, said: “Please consider this letter notice of our intent to exercise the option to purchase the real estate (giving description) described in (Exhibit A). This letter is intended to be a notice of our election to exercise the option to purchase described in paragraph 5 of (Exhibit A).”

“[W]here an acceptance is unconditional in the first instance, a mere request thereafter made in the letter or notice of acceptance that the offerer attend to incidental matters in closing the transaction, not required of him by the terms of the offer, will not render it ineffectual, when there is no intention to make the acceptance conditional in any way on the granting of the request.” 77 Am.Jur.2d Vendor and Purchaser § 17, p. 191.

The following authorities hold that a mere request for an abstract, although the contract does not call for one, does not render the exercise of an option a conditional one and thereby taint its effectiveness: Horgan v. Russell, 24 N.D. 490, 140 N.W. 99 (1913); Blaine County Canal Co. v. Mays, 65 Idaho 190, 142 P.2d 589 (1943). See also Cummins v. Dixon, 265 S.W.2d 386, 396[14, 15] (Mo.1954); Anno. 16 A.L.R.3d 1424.

The language of the letter of January 4, constitutes a clear and unconditional acceptance and the inclusion of the request for the abstract did not invalidate it.

The third sub-contention, as this court understands it, is that the January 4 letter was equivocal since it stated that it was plaintiffs’ intention to exercise the option. The argument seems to be that the letter should have stated “We hereby exercise the option” rather than what it did state. This position is untenable. Paragraph 5 of Exhibit A required the plaintiffs to give 30 days’ notice “of their intent to exercise this option.” The letter stated that it was notice “of our intention to exercise the option.” Then, with an abundance of caution and at the expense of possible redundancy, the letter stated that it was “a notice of our election to exercise the option” and contained a specific reference to paragraph 5.

Accordingly each of the three prongs of defendants’ fifth contention has no merit.

Defendants’ sixth contention is that the trial court erred in sustaining objections to certain questions which defendants’ counsel directed to plaintiff Stringer on cross examination. Rule 73.01, Par. 1(a) provides, in pertinent part, that in non-jury cases “the court shall rule upon all objections to evidence as in jury cases. Where the evidence is ruled inadmissible the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the evidence is privileged.” Here there was no such request by defendants’ counsel.

An objection to the exclusion of testimony cannot be considered on appeal in the absence of a showing of what the testimony would have been and that it was relevant and material. Reversible error cannot be predicated on the exclusion of a proper question where there is no offer of proof that the answer would have been in favor of the complaining party. Cobb v. R. W. Beasley Const. Co., 536 S.W.2d 535, 536[1] (Mo.App.1976).

Defendants’ sixth contention has no merit.

Defendants’ seventh contention is that plaintiffs were not entitled to specific performance because the evidence failed to show that plaintiffs did not have an adequate remedy at law. “This contention overlooks the fact that a tract of land is regarded as unique, entitling purchaser to specific performance of a contract for its purchase, irrespective of special facts showing an inadequacy of purchaser’s legal remedy.” Wilkinson v. Vaughn, 419 S.W.2d 1, 5[2] (Mo.1967).

The judgment is affirmed.

All concur.

      . Defendants also filed a counterclaim for damages. The trial court denied defendants relief on the counterclaim. Neither side attacks that result.

      . The final payment of rent apparently had been made in March 1973.

      . Osborne v. Fairley, 138 Ark. 433, 211 S.W. 917 (1919); “Moreover a unilateral mistake as to the legal effect of an agreement does not ordinarily affect its validity in the absence of fraud or other special circumstances.” 54 Am.Jur.2d Mistake, Accident or Surprise, § 17, p. 462. See Anno. 75 A.L.R. 896.

      . The interrogatories were answered on January 22, 1975.

      . The letter of January 4, 1974, requested the abstract “so that we might have it extended.” It is clear that the cost of the extension would be borne by plaintiffs. It is not uncommon, at least in rural Missouri, for the seller to deliver the abstract to the buyer so that the latter may bring it up to date, even in the absence of an express agreement to do so.


author: BILLINGS, Chief Judge.

text:
    Terry Joe HICKS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10213.
    Missouri Court of Appeals, Springfield District.
    Nov. 23, 1976.
    James R. Purcell, Hyde, Purcell, Wilhoit & Edmundson, Poplar Bluff, for movant-ap-pellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst..Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Appellant Terry Joe Hicks, serving a 15-year prison sentence for armed robbery, has appealed from the order of the Circuit Court of Butler County denying his Rule 27.26, V.A.M.R., motion to vacate the sentence. As grounds for his motion the appellant charged that his attorney failed to investigate the case and made him false promises; that his plea of guilty was induced by threats from law enforcement officers; and that he was under the influence of drugs when he entered his plea of guilty to the charged crime. We affirm.

The special judge designated to rule appellant’s motion conducted an evidentiary hearing and entered findings of fact and conclusions of law. In addition to testimony of witnesses, the record made by the sentencing judge before accepting appellant’s 1974 guilty plea was received in evidence.

We have reviewed the transcript and the briefs of the parties. The judgment of the trial court denying appellant relief is based on findings of fact which are not clearly erroneous. The record of appellant’s guilty plea refutes his present contentions. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974). The hearing judge’s determination of credibility of witnesses is entitled to deference [Kessler v. State, 524 S.W.2d 221 (Mo.App.1975)] and he has the right to reject testimony even though there is no contrary evidence offered. Lee v. State, 526 S.W.2d 329 (Mo.App.1975).

No error of law appears and a detailed opinion would have no precedential value.

The judgment is affirmed pursuant to Rule 84.16(b).

All concur.


text:
    Faye PEACOCK and Johnny Peacock, Plaintiffs-Appellants, v. The CITY OF DEXTER, a Municipal Corporation, Defendant-Respondent.
    No. 10206.
    Missouri Court of Appeals, Springfield District.
    Nov. 23, 1976.
    James E. Spain, Briney, Welborn & Spain, Bloomfield, for plaintiffs-appellants.
    Manuel Drumm, Drumm & Stamp, Sike-ston, for defendant-respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

A Stoddard County jury returned a verdict for the defendant in the plaintiffs’ suit for the wrongful death by drowning of their four-year-old son. In this appeal the plaintiffs claim the trial court erred in giving an instruction tendered by the defendant, while the defendant contends the instruction was free of error and also that plaintiffs failed to present a submissible case of negligence. Since we conclude defendant’s latter contention is sound, we affirm.

There is no dispute between the parties as to the facts and circumstances which led to the tragic death of plaintiffs’ son, Randy. He, his brothers, and his sister resided with their parents on North Locust Street in the city of Dexter. This north-south street intersects with State Route 114 (old Missouri Highway 60), an east-west thoroughfare. The family’s residence was located on the east side of the street and in the first block north of the intersection.

Between the sidewalk and street in front of the Peacock house is a ditch which drains surface waters. The ditch is some twenty-four to thirty inches from the edge of the sidewalk nearest the street and is lined with railroad ties to prevent it from washing beneath the sidewalk. The ditch is about four feet in width and has a depth of 28 inches. It runs south to the intersection and then west along State Route 114.

On May 21, 1974, there had been a heavy rain and the ditch was filled with swiftly flowing muddy water. Randy and two of his brothers, ages 10 and 8, were seen in the house by their mother following supper about 6:00 p. m. The oldest of the three boys, Jerry, said the trio went out into the front yard and were throwing sticks into the water and then running to get them before they passed through a culvert. As Jerry was walking back toward the house after chasing a stick, he heard a “splash” and saw Randy being washed through the culvert. The lad was carried by the water through another culvert and his body was recovered four blocks west of the intersection in the roadside ditch along Route 114 in water 3V2 to 4 feet in depth.

Plaintiff-mother said she was busy in the kitchen and did not see the three boys leave the house. She said she knew the ditch in front of the house filled with water following heavy rains and had warned her children about playing in it. She was aware the ditch would be dangerous for a child of Randy’s age.

A neighbor was sitting on her front porch and saw the three boys playing in their front yard. She said they ran down to the ditch, and “it was just like he [Randy] walked off the bank to go wading, and that’s the last I saw of him.”

It was plaintiffs’ theory that defendant was negligent in maintaining an open ditch so close to the street that children were exposed to the danger of falling into the ditch and that defendant should have known of this danger and guarded the ditch in some manner. In support of this theory, the plaintiffs argue that the defendant had a duty to maintain its streets and sidewalks in a safe condition. They contend that it is negligence “to maintain a ditch in a residential area of a city that fills with water that flows at a swift rate of speed during a rain” and “to maintain an open, fast flowing ditch within one foot of a public sidewalk.” We are cited to Benton v. City of St. Louis, 217 Mo. 687, 118 S.W. 418 (1909), and Dutton v. City of Independence, 227 Mo.App. 275, 50 S.W.2d 161 (1932), as authorities supporting plaintiffs’ view. Conversely, the defendant takes the position that it had no duty to guard or barricade the ditch in question and that there was no evidence Randy fell into the ditch as hypothesized in plaintiffs’ verdict director.

Benton v. City of St. Louis, supra, involved the drowning of a six-year-old child near a public street, but the facts were much different. There was an old, narrow wooden sidewalk along the street. At the point of the accident, it rested elevated on wooden posts several feet high. The boards were loose and the sidewalk tipped toward a large hole (12 feet wide and 5 feet deep) running under the sidewalk and into the street. During heavy rains, the hole filled up with water which would rise up even with the walk. On the day of the drowning, the water rose and caused the wooden sidewalk to float. The court held a jury could find that the long-standing “defects in the sidewalk hard by the treacherous pool” caused the child to slip or step off and drown. 217 Mo. at 694, 118 S.W. at 419.

The case of Dutton v. City of Independence, supra, involved the death of a four-year-old child. There, the city built a concrete culvert under an intersection overlaying a stream. The top of the culvert, a flat concrete slab 10-12 feet wide, formed the surface of the street and extended past the edge of the street over into the property of the child’s grandfather. The child fell from this part of the culvert to the concrete bottom of the creek below and was killed. The court held the city liable for failure to put up a barrier along the end of the culvert. There was evidence that children often played in the area near the culvert and that a complaint had been made to the city regarding the dangerous unprotected end of the culvert and asking that a railing or guard be placed there.

In Bagby v. Kansas City, 338 Mo. 771, 92 S.W.2d 142 (1936), a child (about 10½ years old) was injured while playing on the side of a rock cliff in a city park. A large rock became loosened and rolled down the cliff and struck the child. The court held the city was not negligent, either in failing to provide a warning sign or in failing to remove or secure the loose rock. The court in Bagby distinguished the earlier case of Capp v. City of St. Louis, 251 Mo. 345, 158 S.W. 616 (banc 1913). In Capp, a small stream of water, known as the River Des Peres, ran through a public park maintained by the city of St. Louis. Years before the accident, the city constructed a storm sewer which drained a large part of the city and entered into the River Des Peres. During heavy rains the waters from the sewer became a swift torrent and over the years washed out the bed of the river and caused a hole to be formed at the junction of the sewer and river. This hole had been filled with water for years and was 8 to 12 feet deep in the center. It was common for children to wade in the riverbed and two young children were found floating in the pool of water, apparently having waded into it not knowing its depth. The court held there was a submissible case of negligence against the city for not guarding or eliminating the pool. In Bagby, our supreme court said liability in Capp “was based on the theory that the city created an entrapment in a shallow stream by discharging a large amount of surface water from a sewer which created a deep hole in the shallow stream.” 338 Mo. at 780, 92 S.W.2d at 147.

The court in Bagby v. Kansas City, supra, also distinguished its earlier decision in Davoren v. Kansas City, 308 Mo. 513, 273 S.W. 401 (banc 1925). There, in constructing a street, the city built a high fill or dam across a large ravine which had previously served as a drain for surface waters in the residential area. No culvert or outlet was installed and a large pond of water was formed. The city had been warned that the pond constituted a danger to children who played in or on it. The court held the city liable for the deaths of two children who fell through ice on the pond and drowned. The court found that the pond was a dangerous nuisance which the city knew attracted children and thus the city was negligent in not abating it. The pond in Davo-ren served no essential purpose and could have been eliminated.

The case of Volz v. City of St. Louis, 326 Mo. 362, 32 S.W.2d 72 (1932), involved the drowning of a young child in a pond in a public park of the city. The child fell through ice on the pond. The city was held not negligent in failing to put a fence or rail around the water. The reasoning of the court was as follows:

“Public parks in cities are constructed and established for the pleasure and recreation of the citizenry at large, and the normal citizen is entitled to have the park maintained to that end. To keep a child of an age permitted by its parents to wander unattended or to wander accompanied by other immature children from going upon the ice or into the water would require a fence or barrier of such height and inaccessibility as to destroy the symmetry and beauty of the scenery to which the citizenry is entitled. The propensity of youth to dare where the danger is not seemingly impending is well known. Ordinary fences and barriers are scaled by boys notwithstanding. It would be impractical for the city to place fences or barriers around every object or place, possibly or imaginably dangerous to youth. . . . The negligible danger arising from youth drowning in ponds without barriers in public parks must be subordinated to the pleasure and recreation of the people as a whole. We do not think that a city is necessarily negligent because it fails to place a fence or barrier around a pond, either natural or artificial, in a public park, although situations may arise that develop negligence. The drowning did not result from an unusual or hidden danger, for conditions were known to the boys.” 326 Mo. at 366-367, 32 S.W.2d at 73-74 (emphasis added).

We are of the opinion that it would be even more impractical for cities and towns to fence all roadside ditches which become filled with water after heavy rains than it would be to fence ponds in public parks. Also, there was no hidden danger such as the concealed hole in Capp v. City of St. Louis, supra, and the condition of the ditch was known to plaintiff parents, who had warned their children about playing in the ditch.

The Volz and Bagby cases, supra, were relied on by the court in Taylor v. City of Kansas City, 361 S.W.2d 797 (Mo. banc 1962). A seven-year-old child was playing ball on the elementary school playground which was adjacent to an unfenced city park. A dry, unfenced concrete wading pool was located in the park near the school playground. While walking backward to get a ball thrown over his head and into the park area, the child stumbled into the pool and was injured. The court held there was no submissible issue of negligence, and said, 361 S.W.2d at 801:

“. . . But to hold the city liable under the facts shown in this case would, in effect, make it an insurer of the safety of all children in the park irrespective of how they get hurt, . . ., if an inventive pleader and a sympathetic jury could conceive of a means by which the casualty could have been prevented, however impractical it might be.”

In Williams v. Kansas City, Clay County & St. Joseph Ry. Co., 222 Mo.App. 865, 6 S.W.2d 48 (1928), a railroad corporation was held not liable for the drowning of a child in a water hole near a culvert on its right of way. The water hole was not fenced or guarded in any manner.

There are a few other cases in this state holding that under the particular facts the municipality was liable. Doran v. Kansas City, 241 Mo.App. 156, 237 S.W.2d 907 (1951) involved a drainage ditch called Brush Creek which ran through a residential area and city park. The bed of the creek was paved with concrete over most of its course and the creek was usually dry or contained only a shallow stream of water. The city knew that children often played or waded in the creek. At one point the concrete pavement of the bed ended and there was a deep hole which would often be filled with muddy water. The muddy water covered part of the concrete and concealed the depth of the hole. The city was aware of this condition but had done nothing about it. There were no warning signs in the area. Two young children fell into the hole while wading and drowned. The court held there was a submissible case of negligence against the city. The key facts were the hidden danger, the city’s knowledge of it, and the practicality of remedying the situation — facts which are missing in the present appeal.

In Nation v. City of St. Joseph, 5 S.W.2d 1106 (Mo.App.1928), a young boy drowned in a pool or pond formed by a stream of water in a public park. The city knew young children played near the pond. The court held the city liable for failing to either fence the pond or fill it with dirt. This case has been distinguished and the holding questioned by the supreme court. Nation can be explained on the ground that since the stream was shallow except where the pond was formed after heavy rains, there was a hidden danger which the city could easily have eliminated.

In Van Alst v. Kansas City, 239 Mo.App. 346, 186 S.W.2d 762 (1945), the city constructed a sewer which followed the bed of a creek and at one point the sewer, together with dirt deposited from its construction, created a dam across a bend in the old creek bed. This prevented surface water which accumulated in the creek from draining out, and a pond was formed. The pond was often used as a swimming hole by boys in the area. Plaintiff’s 14 year-old son drowned in the pond and a wrongful death action was brought against the city. The court held the attractive nuisance doctrine applicable. The attractive nuisance doctrine was not raised in the present case and, aside from this, there was no evidence that the drainage ditch in Dexter was a common attraction for children and that the city knew this. Jensen v. Kansas City, 181 Mo.App. 359, 168 S.W. 827 (1914), can be similarly distinguished. There, the court held there was a submissible case of negligence where a five-year-old child drowned in a fountain maintained by the city. The city had knowledge that small children often played on the wall of the fountain.

Here, there was no hidden danger or entrapment. The parents were aware that the ditch filled with water after heavy rains. There was no deep hole or drop-off in the ditch. There was no evidence that children often played near the ditch when it was filled with water or that the city was aware of such fact or had been warned of the possible dangers to children. Furthermore, the drainage ditch served a necessary and useful purpose and, as earlier mentioned, it would be impractical for cities to fence all the drainage ditches they maintain (as opposed to the cases where a pool or pond or hole was formed which could be guarded or eliminated easily).

We are of the opinion and hold that in view of the decisions before referred to and taking the evidence in the most favorable light to plaintiffs, they failed to make a submissible ease of negligence against the defendant and the alleged instructional error needs no determination.

The judgment is affirmed.

All concur.

      . Plaintiffs’ earlier appeal was dismissed as premature due to judgment not having been entered on the jury’s verdict. Peacock v. City of Dexter, 530 S.W.2d 272 (Mo.App.1975).

      . Taylor v. Kansas City, 361 S.W.2d 797, 800 (Mo. banc 1962).

      . Bagby v. Kansas City, 338 Mo. 771, 780, 92 S.W.2d 142, 147 (1936).

      . This is the explanation given in Taylor, supra, note 2, 361 S.W.2d at 800.

      . Recovery was denied on the ground the boy was contributorily negligent in voluntarily diving into the pond.


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Arthur Lee MARTIN, Appellant.
    No. 37279.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 23, 1976.
    Clinton Almond, Hillsboro, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Timothy J. Patterson, Pros. Atty., Hillsboro, for respondent.
   CLEMENS, Judge.

Defendant appeals his conviction for statutory rape, § 559.260, RSMo.1969. Sentence was two years’ imprisonment.

Defendant contends the trial court erred in denying his motion for acquittal at the close of the State’s evidence and in denying his motion for new trial, both on the ground of insufficient evidence of penetration.

The State’s evidence: The nine-year-old victim was visiting at a neighbor’s home; defendant, the neighbor’s nephew, walked with the girl into a nearby woods. He undressed her, they laid down and defendant “touched her privates with his privates.” She was hurt, bleeding and crying. Later, the girl’s mother saw blood on her underwear and privates. The next morning a physician examined the girl. He found a “median split at the midline of the perineum of one and one-half centimeters . the lower area of the hymen was torn,” and he opined that the degree of entry into the victim’s vagina was only in millimeters.

Defendant correctly contends that in rape prosecutions it is essential there be evidence of some penetration of the female organ by that of the male. But the penetration need be but slight and may be shown circumstantially. State v. Ivey, 303 S.W.2d 585[1, 2] (Mo.1957); Rhoades v. State, 504 S.W.2d 291[6, 7] (Mo.App.1973), citing State v. Coffman, 360 Mo. 782, 230 S.W.2d 761(3, 4] (1950). We find the direct and circumstantial evidence of penetration here is sufficient.

This conclusion refutes defendant’s further point that the State’s verdict-directing instruction lacked evidentiary support.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.


author: DOWD, Judge.

text:
    Birdie CHANDLER, Plaintiff-Appellant, v. Robert J. MATTOX, Defendant-Respondent.
    No. 38047.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 23, 1976.
    Elmer C. Oberhellman, Paul J. Simon, St. Louis, for plaintiff-appellant.
    Gerre S. Langton, St. Louis, for defendant-respondent.
   DOWD, Judge.

Plaintiff’s suit for negligence was dismissed with prejudice following her admission that her injuries were due in part to her contributory negligence. On appeal, plaintiff argues that dismissal by the trial court was error because the doctrine of contributory negligence should be replaced by the doctrine of comparative negligence which would not bar recovery.

The doctrine of comparative negligence is not the law in Missouri. Howard v. Scarritt Estate Co., 267 Mo. 398, 402, 184 S.W. 1144(2] (1916); Reed v. Shelly, 378 S.W.2d 291[20] (Mo.App.1969). The doctrine of contributory negligence continues to be the applicable law in Missouri, Vanasse v. Plautz, 538 S.W.2d 928[5] (Mo.App.1976); Lee v. Knight, 538 S.W.2d 345 (Mo.App.1976), and the trial court did not err in sustaining a motion for summary judgment based on the application of this doctrine.

Plaintiff raises two other points in her brief which read: “1. This court should adopt the pure form of comparative negligence”, and “2. The new rule should be applied to the instant case.” These points must be dismissed for failure to comply with Rule 84.04(d), V.A.M.R., in that plaintiff does not state any error on the part of the trial court.

After careful review of the record, briefs and authorities, we conclude that the judgment of the circuit court dismissing the plaintiff’s suit with prejudice is not erroneous. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The judgment of the court below is affirmed.

WEIER, P. J., and CLEMENS, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert King BARTZ, Defendant-Appellant.
    No. 37669.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 23, 1976.

      Robert C. Babione, Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   DOWD, Judge.

Appellant, Robert Bartz, appeals his conviction by a jury of robbery first degree with a dangerous and deadly weapon. Bartz was sentenced by the court under the Second Offenders Act to twenty years imprisonment.

On April 9, 1975, at 7:15 p.m. appellant and another man entered the “Stop and Fetch” store in the City of St. Louis, and remained in the store for about ten minutes. While at the counter, paying for some potato chips, both men pulled guns on the clerk, Eugene Naehtweih, the clerk of the victimized store and the only eye witness to the robbery. Bartz’s accomplice demanded the money in the drawer and instructed Naehtweih to lie on the floor until they were gone. The victim was robbed of $300.00.

Naehtweih was able to identify the appellant as one of the robbers both at a pretrial lineup and in court during trial. He testified the fluorescent lighting in the store was good, the men were both unmasked and although he had never seen either subject previously, he was able to identify the appellant immediately at the lineup and at trial.

At trial Jesse Jones, Bartz’s accomplice, testified that he and Danny Hampton, and not Robert Bartz, committed the robbery in question. On cross-examination, Jones stated that he and Bartz were friends and that they had done time together. Danny Hampton took the stand, but refused to testify, pleading the fifth amendment.

On the elevator on the way to trial, Hampton allegedly said to Bartz, “I told you not to bring me here”. The appellant requested that the sheriff, who overheard the remark, be allowed to give testimony about this remark, as a statement against penal interest. The court denied the request, finding the testimony to be hearsay.

The appellant’s first two points on appeal were not properly preserved, and are therefore not before this court. The appellant’s first point that the in court identification should have been suppressed because the pretrial lineup was unduly suggestive was not properly preserved because appellant did not raise objection to the identification until after he undertook extensive cross and recross-examination of the identifying witness. Missouri eases hold that by following this procedure the appellant waived his right to appeal the in court identification. State v. Brownridge, 459 S.W.2d 317, 320[9] (Mo.1970); State v. McFadden, 530 S.W.2d 440, 444[5, 6] (Mo.App.1975). To preserve an objection to in court identification objection must be made at trial prior to any extensive cross-examination of the identifying witness.

The appellant’s second point on appeal, that the trial court erred in failing to give certain non MAI instructions fto the jury, was not preserved because the text of the requested instructions were not shown on the record. The text of these instructions are presented to this court for the first time in the appellant’s brief. Matters contained in appellant’s brief or elsewhere, not incorporated in or made part of the officially approved transcript, may not be considered. State v. Burrington, 371 S.W.2d 319[3] (Mo.1963). Records must be before the court by incorporation in the transcript for its information and inspection. This court is limited to evidence on the record. Kansas City v. Mathis, 409 S.W.2d 280[14] (Mo.App.1966).

The appellant’s third point is that the court erred in applying the Second Offenders Act, § 556.280 RSMo 1969, because the state failed to present sufficient evidence to prove the applicability of the statute. To invoke the provisions of the Second Offenders Act the state must prove: (1) the defendant was convicted of a prior offense which was punishable by imprisonment in the penitentiary; (2) the defendant was sentenced therefor; (3) the defendant was placed on probation, paroled, fined or imprisonment therefor. State v. Abernathy, 515 S.W.2d 812, 814[1] (Mo.App.1974). The state need only prove one prior conviction punishable by imprisonment in the penitentiary. State v. Brown, 476 S.W.2d 519[5] (Mo.1972). Only convictions where counsel was present at least at sentencing may be used. State v. Brown, supra at 523[8].

While the appellant concedes that his conviction and sentencing for burglary in second degree in the St. Louis Circuit Court was proven, he argues that the serial record from the Missouri Department of Corrections, admitted in evidence to prove imprisonment for that offense, was to ambiguous to be conclusive. Appellant claims that the serial record shows two convictions (the conceded one from St. Louis City and another from St. Francois County) but does not show whether any of his time served arose from the St. Louis City conviction, and therefore the possibility exists that all of his time was served on the St. Francois conviction, which was never shown to be counsel conducted.

The serial record shows with sufficient clarity that the appellant was received for confinement on five counts arising from the St. Louis City and the St. Francois County convictions. It is apparent from the serial record that the sentences were to be served concurrently, and therefore, there is no merit to the appellant’s contention that all his time shown to be served was based on the St. Francois County conviction alone. The court could reasonably find, based on the serial record, that the time appellant served was at least in part based on the St. Louis City conviction. Since the state only needs to prove one conviction and punishment, the point must be ruled against the appellant.

The appellant’s final point is that the court erred in refusing evidence, as inadmissible hearsay, the testimony of the sheriff about the statement made by Danny Hampton that, “I told you not to bring me here to testify”. Appellant claims this statement constituted a declaration against the penal interest of Danny Hampton and was therefore admissible.

To be a declaration against interest, “the declaration must have related a fact against the apparent pecuniary or proprietary [or penal] interest of the declarant when his statement was made.” Straughan v. Asher, 372 S.W.2d 489, 494[5] (Mo.App.1963). The interest of the declarant must be so apparent as to have been presumably in the declarant’s mind when the declaration was made. Neely v. Kansas City Public Service Co., 241 Mo.App. 1244, 252 S.W.2d 88, 91[3] (1952). The statement which the appellant wishes to introduce does not meet these requirements. No fact related to the robbery is present. The appellant tries to infer a declaration against interest where the concern on the declar-ant’s mind is not at all apparent. This final point must also be held against the appellant.

Finding no error, the judgment is affirmed.

WEIER, P. J., and CLEMENS, J., concur.


text:
    Linda Fay HAHN, Respondent, v. Cletus Raymond HAHN, Movant-Appellant.
    No. 37329.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 23, 1976.
    Albert Lowes, Buerkle, Buerkle & Lowes, Jackson, for movant-appellant.
    Schnapp, Graham & Reid, John W. Reid, II, Fredericktown, for respondent.
   DOWD, Judge.

Appellant Cletus Hahn appeals from the denial of his motion to modify a decree of dissolution of marriage which had placed custody of the parties’ minor son with respondent, Linda Hahn. Subsequent to the dissolution, respondent had moved from Missouri to Texas, taking the child with her.

Appellant’s motion to modify the decree had requested a transfer of his son’s custody to appellant. Respondent’s cross-motion to modify the decree had requested permission to remove the son to Texas, an increase in child support from $20.00 to $40.00 per week, attorney’s fees, and expenses incurred in traveling from Texas to Missouri to litigate. After a hearing, the trial court entered its judgment on August 7, 1975. The judgment denied both appellant’s motion and respondent’s cross-motion “except [respondent] is to return to the State of Texas and to take the child with her.”

On August 11, 1975, appellant filed his notice of appeal from the judgment of August 7, 1975. Following appellant’s action, on August 12, 1975, respondent filed her motion for a new trial, requesting the court “enter a new Judgment increasing the child support payments to Forty Dollars ($40.00) per week, and granting Respondent a reasonable attorney’s fee pursuant to 1973 R.S.Mo. § 452.335, and granting Respondent the expense and loss of income she lost in traveling to Missouri to attend the hearing pursuant to 1973 R.S.Mo. § 452.395.” The trial court entered an order on November 6, 1975 which sustained respondent’s motion for new trial “as to request contained i[n] Respondent’s said Motion for New Trial.”

It is the duty of the appellate court to determine sua sponte whether the court has jurisdiction before considering the merits of an appeal. Huffman v. Department of Revenue, 523 S.W.2d 107, 108 (Mo.App.1975). We have examined the proceedings below to determine whether an appealable order is presented to this court for review.

As applicable to the case before us, § 512.020 RSMo 1969 provides that an aggrieved party can appeal from an order granting a new trial or from any final judgment. Appellant’s appeal does not come within the purview of either provision. Clearly, appellant did not appeal from the trial court’s new trial order on the issues of child support, attorney’s fees, and expenses but from the trial court’s August seventh judgment denying appellant’s motion to transfer custody to appellant.

In addition, the appeal from the August seventh judgment does not comply with § 512.020, supra, because that judgment is not a final judgment. The trial court has granted the parties a new trial in compliance with Rules 78.01 and 78.06. Rule 78.06 authorizes the trial court to grant a new trial on motion of a party within 90 days after entry of judgment. If the judgment is reopened under this provision by the granting of new trial the prior judgment is not appealable as there is no final judgment. See In re Marriage of Richardson, 540 S.W.2d 227, 229 (Mo.App.1976). The trial court has not yet exhausted its jurisdiction, therefore precluding this court from asserting jurisdiction. Pendleton v. Pendleton, 532 S.W.2d 905, 906 (Mo.App.1976).

We note that the trial court’s new trial order refers only to the issues of child support, attorney’s fees, and expenses and not to the issue of child custody. However, even if we assume that custody is a severa-ble issue under Rule 82.06, the trial court did not purport to sever the custody claim nor designate its judgment on that issue as final and appealable. The custody order will not become final until the trial court exhausts its jurisdiction by disposing of all issues raised below. Pendleton v. Pendleton, supra.

We have examined the trial court’s order of November 6, 1975 to determine whether the trial court incorrectly characterized an order reforming and reentering judgment as a new trial order. We have not found such to be the case. Respondent’s motion for new trial, granted in its entirety by the trial court, had requested attorney’s fees and expenses in addition to an increase in child support to $40.00 per week. In its order, the trial court neither specified dollar amounts granted as reasonable attorney’s fees or expenses nor denied such attorney’s fees and expenses. The trial court’s order appears to be what it purports to be, an order retaining jurisdiction over the action to rehear and redetermine the questions of child support, attorney’s fees, and expenses.

No appealable order is presented to this court, and the appeal is dismissed.

WEIER, P. J., and CLEMENS, J., concur.