text:
    STATE of Missouri, Respondent, v. Robert J. WALKER, Appellant.
    No. KCD 27399.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.

      Robert L. Rodarte, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Karen M. Iverson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

After a conviction for possession of heroin, defendant appealed to this court which awarded him a new trial. State v. Walker, 490 S.W.2d 832 (Mo.App.1973). Thereafter defendant was retried and was again convicted. He again appeals.

The facts shown by the evidence, briefly stated, are that defendant was stopped for a traffic offense while driving an automobile. A routine radio inquiry by the police officer revealed that the license plates on defendant’s car had been reported as stolen. Defendant and a female passenger in the car were ordered out for a search. In an army fatigue jacket, which defendant admitted to be his, the police officers found the heroin which is the subject of the present prosecution.

- For his first point on this appeal, defendant asserts that the trial court erred in not declaring a mistrial because of testimony relating to crimes other than the one for which he was on trial. The testimony complained of was given by Officer Harmon and Sgt. Russell. That by Harmon occurred when he was describing the search of the army fatigue jacket and was as follows:

“Q. What occurred — what did you observe after Officer Brennaman took the passenger out of the car?
“A. The — we had the passenger drop an Army fatigue jacket. Officer Bren-naman started shaking the jacket down. The defendant stated the jacket and the contents in the jacket belonged to him. About this time Officer Brennaman found a syringe and a small brown envelope containing some capsules.”

Upon defendant’s objection to the testimony about the syringe, the court sustained the objection, instructed the jury to disregard the question and answer, but overruled defendant’s motion for a mistrial.

The testimony in question on the part of Russell occurred in connection with the State’s proof of the chain of possession of the heroin capsules after they were taken from defendant. In order to prove this chain of possession, Sgt. Russell was a necessary witness. During the course of his testimony, the following occurred:

“Q. And did you see Officers Harmon and Brennaman on that day?
“A. Yes, sir.
“Q. And what were those circumstances?
‘A. I was in the Vice Unit office on that day when they brought in some capsules and some what appeared to be Marijuana to be placed in the property room.”

The court sustained an objection to the mention of marijuana, instructed the jury to disregard that portion of the witness’ answer, but overruled defendant’s motion for a mistrial.

Both these pieces of testimony crept into the trial through pure inadvertence. With respect to the Harmon testimony the court specifically found, “I’m satisfied that the reference to a syringe was inadvertant [sic] and accidental and certainly not intentional on the witness’ part.” Defendant’s counsel himself stated at the time he objected to this testimony that “there is no doubt it was unintentional”. Likewise, with respect to the Russell testimony, the court specifically found, “I’m satisfied that the witness’ answer was not intentional in this respect”.

Situations of this sort frequently happen when a witness unexpectedly volunteers some inadmissible statement. When that occurs, the nature of the action called for rests largely within the discretion of the trial court. Granting a mistrial is a drastic remedy, and the trial judge has a duty to evaluate the whole situation to ascertain whether some other remedy short of that will cure the error. The appellate court reviews that decision only to verify that there has been no abuse of discretion.

In the present case, the trial judge had abundant reason to decide against declaring a mistrial. The short items of testimony in question slipped in unintentionally without any connivance of any sort. The trial judge promptly and explicitly instructed the jury that these references were to be disregarded. After the initial brief and rather casual reference to the syringe and marijuana, those items were not further mentioned. That testimony was neither extensive nor inflammatory, and the prosecutor made no effort to magnify or argue those references. Many decisions sustain like trial rulings under similar circumstances. State v. Parker, 509 S.W.2d 67, 70 (Mo.1974); State v. Scarlett, 486 S.W.2d 409, 411 (Mo.1972); State v. Parker, 476 S.W.2d 513, 516 (Mo.1972); State v. Allen, 472 S.W.2d 358, 360 (Mo.1971); State v. McLarty, 467 S.W.2d 58, 60-61 (Mo.1971); State v. Edmondson, 461 S.W.2d 713, 716-717 (Mo.1971); State v. Mallory, 423 S.W.2d 721, 723-724 (Mo.1968); State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 880-881 (1931); McWilliams v. United States, 394 F.2d 41, 47 (8th Cir. 1968). This is especially true where, as here, proof of defendant’s guilt is clear and convincing. McWilliams v. United States, supra.

For his second point, defendant complains that the trial court abused its discretion by allowing the State to reopen its case for the purpose of putting on additional evidence. The amended information upon which defendant was tried alleged that he had been previously convicted for the possession of marijuana. The effect of this prior conviction would be to enhance the penalty under Section 195.200, RSMo 1969. However, the prosecutor announced that he was resting the State’s case, without having introduced any evidence to prove the prior conviction.

Immediately after the prosecutor announced that the State rested, the court called a short recess and the jury retired to the jury room. At that point the prosecutor asked leave to reopen the State’s case to call a record custodian in order to identify the record of defendant’s prior conviction. Defense counsel objected. The trial court thereupon made rather extensive inquiry of counsel, during the course of which defendant’s attorney admitted that he had been directly advised that the State intended to make this amendment to the information and intended to introduce proof of the prior conviction. Thus it was apparent that defense counsel was not taken by surprise. The court found that the defendant could not be prejudiced by the State reopening its case, and the court did give leave to the prosecution to reopen its case.

The grant of this permission lay within the broad discretion of the trial court. No abuse of discretion appearing, that action will not be disturbed. Malone v. State, 461 S.W.2d 727, 729 (Mo.1971); State v. Payne, 452 S.W.2d 805, 808-809 (Mo.1970); State v. Lafferty, 416 S.W.2d 157, 161 (Mo.1967); State v. Robinson, 325 S.W.2d 465, 470 (Mo.1959); State v. Haun, 324 S.W.2d 679, 682 (Mo.1959); State v. Dobbins, 351 Mo. 796, 174 S.W.2d 171, 172 (1943); State v. Ray, 225 S.W. 969, 973 (Mo.1920).

Affirmed.

All concur.

      . The State makes no contention that Harmon’s testimony with reference to the syringe was admissible, and we express no opinion in that respect.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    R. H. MACY & COMPANY, Plaintiff-Respondent, v. George BELL, Defendant-Appellant.
    No. KCD 27599.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.

      Elwyn L. Cady, Jr., Independence, for defendant-appellant.
    William H. Sanders, Thomas W. Wag-staff, William A. Lynch, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

This appeal is by the defendant, George Bell, from an adverse jury verdict on a counterclaim against R. H. Macy & Company. The genesis of the litigation was a magistrate court suit in conventional form initiated by Macy’s to collect from Bell an indebtedness of $1,676.23 for merchandise sold and delivered. Bell responded with a counterclaim bottomed on what has been termed “harassment.” The counterclaim seeking $20,000 compensatory and $40,000 in punitive damages exceeded the jurisdictional limit of the original forum and the cause was transferred to the circuit court for trial.

Bell asserts trial error in the argument of counsel, in the refusal of the trial court to permit an exhibit to be passed to the jury, and in the trial court’s refusal to read a federal statute to the jury. Macy’s counters by asserting no error occurred and by a supplemental brief asserting Bell failed to make a submissible issue for jury determination on either liability or damages.

Bell had incurred the obligation which was the basis of the Macy suit while employed by Macy’s. That employment was terminated in 1970; and, at the time of trial in 1974, Bell had paid less than $200 on the account in the four years preceding the trial. Macy’s claim was admitted by Bell when the case commenced in the circuit court, leaving only the issues presented by the counterclaim to be determined.

Bell claimed that his mental “tranquility” was disturbed because of phone calls made to him by agents of Macy’s in the efforts made to collect the account. The thrust of his petition and the ultimate submission of his claim of liability was that the phone calls were in violation of 47 U.S.C. § 223, which makes repeated telephone calls in interstate commerce “solely to harass” a criminal offense under the federal law.

The evidence which supports that theory of recovery considered in the light most favorable to the proponent demonstrates the following facts.

Bell testified at length concerning three specific calls, two of which occurred in the same day. The first call resulted from a note his sister left for him to return a call. Bell returned this call and asked to speak to a Miss Johnson whose name apparently was on the message. Miss Johnson was not in. Bell then mentioned that he was surprised because he thought the number he had called was for KUDL radio station and that a message had been left for him to call Miss Johnson so that she could ask him the question of the day; and if he could answer it correctly, he would win a prize and that it was very important for him to call her back. Macy’s responded by informing Bell that he was not speaking to KUDL but, rather, to Macy’s Collection Department. Macy’s asked Bell who he was, and he told them, whereupon they proceeded to look up his account and asked Bell when he was going to make payment. Bell explained that he was unemployed and could not make payment on any bills at that time. Macy’s replied that the situation had gone on so long that they had to have some kind of payment.

The afternoon of the same day Bell received a message to call “Stan.” He tried several times without being able to reach Stan and finally talked to someone there who would not give him Stan’s last name. The purport of that conversation is reflected in the following questions and answers by Bell:

“Q. And what did you say to him and what did he say to you on that occasion?
A. I asked him if Stan was there and evidently he said no. I can’t remember that I actually talked to Stan.
Q. I see.
A. And I asked and he said no and I said, ‘Well, what is his last name?’ He wouldn’t tell me. And I asked him, ‘Do you know what he wanted me for?’ And he said, ‘Well, it was probably regarding your account.’ And I said, ‘Well, with whom am I speaking?’ And he gave his name, I don’t know who it was, and he said it was Macy’s credit collection.”

Bell proceeded to discuss his account in the same terms as he had in the first call. He then made calls to another number that was listed on a second note, but found out the number, which had been a Macy’s collection number, was disconnected.

Bell characterized these calls as “fraudulent.”

Bell testified that in one of the last calls he received, “. . . they demanded that I talk to the man, that I find some means to pay them off in cash and he didn’t care how it was, even if I had to go out and sell everything I had, . . . Bell characterized the tone of voice and type of language as extremely hateful, demanding and threatening.

Some calls apparently involved a neighbor. Bell’s testimony here is extremely vague, but apparently on several occasions Bell called a number at the instance of a neighbor. The number turned out to be Macy’s collection department and “. we would go through the same thing, only they were becoming more severe in their threats and demands then, and a couple of the last calls I didn’t answer because I had written them letters explaining my situation and I saw no reason to be bothered on the telephone after I had communicated with them by mail.” In attempting to reach Bell by telephone, Macy’s spoke to Bell’s mother (over five times), Bell claims. Bell testified, “. . . as a result of that, I called Macy’s and it was the same thing all over again, and I explained to them about calling and bothering my mother, about her age and the difficulty she has getting around and that I did not want them harassing her too.”

Bell was called not only at his home but also at his place of employment, i. e., Shepherds in Kansas City, Kansas. He received “more than a few” calls there. “The only call that I can remember that was more severe than the others was the one where someone from the credit collection department called me at nine o’clock in the morning over there and demanded that I be at the Mission store before ten o’clock that same day and make payment in full or they were going to cause me more trouble than I knew what to do with.” Bell was also called several times while employed at GEM. Bell had, however, asked Macy’s not to call him at home.

Macy’s collection records which were in evidence showed that beginning in May, 1971, calls were made monthly through the rest of 1971. Two of those calls indicated Bell’s mother was reached and in one of them his sister responded stating Bell was ill. The suit in Magistrate court was filed in January, 1972.

In view of the ultimate disposition of this appeal on another ground, it will serve no purpose to detail all of the defendant’s testimony concerning his claimed mental impairment. Condensed to ultimate fact, he claims his “emotional tranquility” was “disturbed.” No medical evidence was offered except that Macy’s produced in evidence a report by Bell’s treating physician which did not attribute the mental difficulties to the actions of Macy’s. Bell, in fact, claimed that his mental state was caused only in part by Macy’s actions. Macy’s put in evidence that Bell had sued Standard Oil for $95,000, Duff and Repp for $130,000, GMAC for $200,000, and the Plaza Bank & Trust Company for $2,400,000, all such suits being an outgrowth of creditor-debtor relationships, and all but the last suit being counterclaims asserting telephonic “harassment” in the collection of debts. Bell unequivocally related his mental state to all these actions as well as some controversy with a veterinarian over the death of a dog.

Appellant’s brief does not comply with the fundamentals of brief writing as required by the rules. The statement of facts is both meager and misleading. On the basis of the appellant’s brief, it would be possible to deny relief for failure to comply with the rules. Appellant’s counsel, who served at the trial as well as here, has suffered that fate on a variety of appeals in this court and continues the same faults. In this instance, however, the claims of error in the points of the brief are sufficiently stated that the basis for the appellant’s claims appear. By resorting to the trial transcript, the general tenor of the trial appears, and some mention should be made of appellant’s claims of error in the conduct of the trial.

The claims of error by appellant so far as they relate to the conduct of counsel relate to argument and conduct of Macy’s trial counsel. Generally stated, they are a claim of personalizing the jury, a personal attack on Bell’s counsel and improper argument outside the issues in the case.

Trial counsel for the Macy Company on the argument here admits with commendable candor that the claim of appellant as to error in the argument to the jury has validity. Claiming that it was invited by the ineptness of counsel, as well as retaliatory, the Macy Company seeks to avoid the inevitable consequence of this overreaching. If that were the only issue to be resolved, the balance would have to be struck in favor of a new trial. It is apparent that Bell’s counsel was inept and opened areas of totally irrelevant inquiry which led to some of the complained-of argument. Proper response to such irrelevaneies could be properly classified as invited or retaliatory, but the experienced counsel for the Macy Company went beyond the bounds permitted in such a case, a fact conceded in the oral argument.

Characterization of this branch of the case would be futile, consisting, as it would, of a primer of ineptitude in the presentation of Bell’s counterclaim and a model of overreaching by Macy’s counsel.

The disposition of the appeal, however, turns upon an entirely different ground. Macy’s has, by supplemental brief, raised the fundamental issue of the submis-sibility of Bell’s counterclaim. Where a plaintiff appeals asserting trial error and a claim is made by a defendant that no sub-missible case is made, that issue is reviewable. Hughes v. St. Louis Nat. League Baseball Club, 359 Mo. 993, 224 S.W.2d 989, 16 A.L.R.2d 904 (banc 1949). Hart v. Midkiff, 321 S.W.2d 500 (Mo.1959). Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73 (1951). If, in fact, the counterclaim should not have been submitted, the issues of trial error are without effect in the ultimate disposition of the appeal. Osborn v. McBride, 400 S.W.2d 185 (Mo.1966).

The attack is made on two fronts, damages and liability.

Bell’s counsel disclaimed at the close of the trial any claim for out-of-pocket expense connected with the complained-of acts of the plaintiff. So also, there was an explicit disclaimer of any impairment in the defendant’s ability to work. Thus, the thrust of Macy’s argument on damages is that Bell’s failure to prove by expert testimony any causal connection between his claim that his “tranquility” was disturbed is fatal to proof of any damage. That issue might be a troublesome one in the state of this record, but before any issue of damages need be faced, some ground of liability and the necessary factual support should appear.

Thus, the critical and dispositive issue on this appeal is the determination of whether the defendant made a submissive issue for the jury on the question of liability. As previously noted, the defendant predicated his counterclaim upon the assertion that 47 U.S.C. § 223 had been violated by the plaintiff and, in particular, subsection D of Section 223(1). In relevant part, the federal statute is as follows:

“Whoever—
(1) . . . in interstate communication by means of telephone—
(D) makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number; ...”

Assuming without deciding that appropriate proof of a violation of this federal statute would constitute an actionable tort in Missouri, the plaintiff has still failed to make the necessary proof even to raise that issue. The Federal court has construed the statute in the field of criminal law. United States v. Darsey, 342 F.Supp. 311 (E.D. Penn.1972). In that case, the court called attention to the legislative history of the statute. The court said (1. c. 313-314):

“To prevent the flooding of the Federal courts with complaints from persons who feel annoyed by some dealing they have had with another which happened to be by way of an interstate telephone call, Congress wisely imposed two very important and very strict conditions which must be proved before an offense under this section is established regarding conversations between people known to each other. First, the phone calls must be ‘repeated’. The court takes this to mean repeated in close enough proximity to one another to rightly be called a single episode, and not separated by periods of months or years. This condition both requires the repeatedness as an element of the legally cognizable charge, and at the same time insures that the courts will not be flooded with complaints growing out of a single unpleasant call with some acquaintance. Second, the repeated calls must be made ‘solely to harass’ and not merely to ‘annoy, abuse, threaten, or harass’ as in the case of an anonymous phone call under § 223(1)(B).
Here Congress evidenced common sense in the affairs of men. In many situations, and most especially in romantic and family conflicts, a person may call another repeatedly and the ensuing conversations may be or become more or less unsatisfactory, unpleasant, heated, or vulgar. Up to a point these are the normal risks of human intercourse, and are and should be below the cognizance of the law. This Court does not read-this section of law to extend to these situations, no matter how much sympathy it might have for one side or the other in such a conflict, unless some completely unjustifiable motive, such as revenge or cruelty, motivates such repeated contacts by interstate telephone calls between those known to each other. Only then can such calls be properly called ‘solely to harass’.
If this section were drawn or interpreted any more broadly, countless people would be criminalized. The effect of such a law would be to encourage more vengeance than it prevented. And considering the potential burden on the available investigatory staff, the prosecution, and the courts, it is unlikely that more than a tiny and haphazardly random minority would ever be prosecuted. Congress has wisely limited the scope of § 223(1)(D) to the discouragement of certain clear and unjustifiable behavior, and in less clear cases left the world to struggle as before with the problems and aggravations of romantic and family disputes.”

It is extremely doubtful that the evidence in this case would support a finding that the phone calls here were “repeated” in the sense in which the Federal court construed that word in the case last cited. But, nonetheless, it is clear on the record of this case that the calls made to the defendant by the plaintiff company’s agents were not “solely” to harass the defendant. In fact, the evidence shows a continuing purpose in the calls for the collection of plaintiff’s debt. That legitimate purpose pervaded all of the conversations between Macy’s agents and Bell. Bell has wholly failed to prove an essential element of the case he submitted to the jury in that there is no evidence that any of the calls were made “solely” for the purpose of harassing him. Even Bell’s own testimony clearly shows that the calls of which he complains were for the purpose of attempting to collect the amount which he now admits was due and owing to Macy’s. The reading to the jury of the notice from the telephone company of the provisions of Section 223 would not have aided the sub-missibility of this cause nor would have the reading of the statute itself; those issues are likewise immaterial on this appeal.

The defendant did not seek to plead, prove or submit under the Missouri authority permitting recovery where a creditor has invaded the privacy of a debtor by aggravated and improper conduct in the collection of its debt by conduct so outrageous in character and extreme in degree as to bring it within Restatement (Second) of Torts, Sec. 46 (1964) and the Missouri case law adopting that theory of recovery as a part of the law of Missouri. Liberty Loan Corporation of Antioch v. Brown, 493 S.W.2d 664 (Mo.App.1973). Biederman’s of Springfield, Inc. v. Wright, 322 S.W.2d 892 (Mo.1959). Bell has not briefed the issue of submissibility and makes no claim of an ability to submit on any other theory nor any right to a remand for another trial on a different theory. Thus, in the posture of the present appeal and on the sole ground that Bell has failed to support the submission on the issue of liability, the judgment is affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Thomas J. THOMPSON, Appellant.
    No. KCD 27645.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.

      Jon M. Krebbs, Asst. Public Defender, Liberty, for appellant.
    John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

Appellant was charged by information with the crime of sodomy. He was tried before a jury, found guilty, and sentenced to 15 years imprisonment.

The only material witnesses in the trial below were the complaining witness, R-P_, a girl aged 14 years, and the defendant. R_ P_testified to the bizarre events which occurred on July 18, 1974, during the course of her baby-sitting with a neighbor’s children, which culminated in the act of sodomy charged against the defendant, another neighbor. This occurred in his apartment in the late hours of the night. It involved a number of sordid and unnatural sexual acts, including the insertion of the defendant’s penis into the complaining witness’ mouth. No purpose would be served by a further detail of these events. Suffice it to say, that while the defendant categorically denied his guilt, if the jury believed the victim’s testimony (as it obviously did), its verdict was supported by substantial evidence.

The appellant raises two points on appeal. First, he urges that the trial court erred in refusing to grant a mistrial when the prosecutor interrogated the complaining witness during direct examination in regard to the whereabouts of her mother (who was deceased). Second, he urges that the trial court erred in permitting the prosecuting attorney, over the objection of the defendant, to argue punishment to the jury in his closing argument, when this factor had not been argued by the state in its opening argument. Resolution of these points requires a close review of the trial incidents involved, as reflected in the transcript.

As to the appellant’s first point, it is appropriate to note that a trial court’s discretionary power to declare a mistrial is a drastic remedy and such action should be taken only when the complained of trial incident is so grievous in character that its prejudicial effect can be removed in no other way. State v. Cage, 452 S.W.2d 125, 129[4, 5] (Mo.1970); State v. Camper, 391 S.W.2d 926, 927-928[2-4] (Mo.1965).

During the direct examination of the complaining witness, the following occurred:

“Q. * * * R_, who do you live with?
A. My father.
Q. Pardon?
A. And my brother.
Q. Your father and your brother. Do you have any other brothers or sisters?
A. No, I don’t.
Q. Where is your mother?
A. She’s deceased.
MR. KREBBS: (Counsel for defendant) Well, I object to that, Your Honor, it biases and prejudices the jury.
THE COURT: Sustained.”

Thereupon, a conference between counsel and the court was had at the bench, out of the hearing of the jury, during which Mr. Krebbs, counsel for the defendant, requested the court to declare a mistrial. Mr. Allen, the assistant prosecuting attorney, told the court that the purpose of the interrogation was to explain the fact that R — -■ had first told the neighbor lady, with whose children R_had been baby-sitting, of her treatment by the defendant, rather than her mother, to whom she would naturally have confided and whose succor and help she would naturally seek. The court remarked that no prejudice had resulted and overruled the request for a mistrial. The following then occurred, still out of the hearing of the jury:

“MR. ALLEN: Do you want the jury to disregard it?
MR. KREBBS: I think so. On second thought, I think that the Court should admonish the jury to disregard any evidence of this type.”

Thereupon, in the hearing of the jury, the following occurred:

“THE COURT: The jury will disregard the last answer of the witness.”

Nothing appears from which any inference may be drawn that this line of interrogation by the prosecutor was improperly motivated nor pursued for any reason other than those stated to the court, and no further reference to the complaining witness’ family situation was made throughout the trial.

In addition to the above, Instruction 2 advised the jury:

“ * * * You will also disregard any answer or other matter which the Court directs you not to consider * * * ”

Without regard to the propriety or impropriety of the interrogation above noted, or the validity of the objection thereto in the light of the prosecutor’s explanation of the purpose thereof, the fact remains that the objection was sustained and the jury was instructed to disregard the answer, both orally and by written instruction. The trial court was better able to judge the effect of this trial incident than an appellate court, and the trial court obviously felt that any prejudice which may have been engendered thereby was promptly removed by the directions to the jury that it should disregard that incident. State v. Durham, 418 S.W.2d 23, 27[7] (Mo.1967); State v. Nolan, 423 S.W.2d 815, 819[15, 16] (Mo.1968); State v. Camper, supra. It does not appear that the trial court, as a matter of law, abused its discretion in refusing to declare a mistrial under the circumstances of this case. The civil cases cited by the appellant on this point have been carefully examined and are found clearly distinguishable. Appellant’s first point is ruled against him.

The appellant’s second point likewise is without merit. The record discloses that, contrary to appellant’s contention, the prosecutor did mention punishment in his opening argument to the jury. His last statement in that argument was:

“I will be coming back in a few moments in rebuttal and I will then ask you to assess punishment up to life imprisonment for Mr. Thompson and I will have to give you my reasons at that time.” (Emphasis supplied)

This reference to punishment in the opening argument would probably justify further exposition in the closing argument. State v. Brown, 480 S.W.2d 839 (Mo.1972). See also, State v. Hale, 371 S.W.2d 249 (Mo.1963). This matter need not be (and is not here) decided because of the following trial incidents.

Counsel for defendant in his closing argument made no mention of punishment and then in the prosecutor’s closing argument the following appears:

“Punishment. Beyond a reasonable doubt find him guilty. I suggest the evidence supports such a finding.”

Thereupon, out of the hearing of the jury, counsel for the defendant objected to this argument in the following manner:

“MR. KREBBS: Your Honor, I object at this time to any statement at all in regard to the amount of punishment. In his first half counsel commented that he was going to come back and comment.” (Emphasis supplied)

The court sustained this objection, and after additional colloquy the following appears:

“MR. ALLEN: A point of clarification. Are we talking about arguing as to any specific amount or arguing punishment at all?
THE COURT: No, just in a specific manner.
MR. ALLEN: Well, I don’t intend to.
THE COURT: That’s what your objection was, was it not, Mr. Krebbs?
MR. KREBBS: Yes, it was, Your Hon- or.
THE COURT: Yes, sir, all right.” (Emphasis added)

The prosecutor then resumed his final argument to the jury and, pursuant to the above admonition by the court and understanding with defense counsel, he did not mention or suggest any specific punishment to the jury. Appellant now complains of the following argument made by the prosecutor, without objection:

“MR. ALLEN: Pardon the interruption, ladies and gentlemen, I was just about to address you on punishment. And when you find the defendant guilty beyond a reasonable doubt, in other words, believe beyond a reasonable doubt that this little girl is telling the truth, then you will have to assess punishment, and I can’t tell you how much punishment you should assess. I can only suggest some guidelines. One of those guidelines was suggested by Mr. Krebbs’ closing argument when he said, well this is a crime without any outside evidence, this is a crime without any injury, without any bruising, without any scars. I suggest that that is not the case. I would submit to you that this is a crime that has very definitely left injury, left damage, and left scars on the mind and the psychic of a fourteen year-old child. So when you consider the amount of punishment, take into consideration how long R- will bear these scars, how long will she have to live with the nightmare events of July 17 or 18 here in Clay County, Missouri, and how that that (sic) will affect her life.” (Emphasis added)

It is, of course, fundamental (and needs no elaboration here) that in order to preserve a point of error for appellate review, including that claimed to have occurred during the prosecutor’s oral argument, timely objection must be made at trial. State v. Barron, 465 S.W.2d 523, 529[9] (Mo.1971); State v. McCreary, 504 S.W.2d 132, 136[11] (Mo.App.1973), and this is true unless such argument is “ ‘so glaringly offensive and prejudicial’ as to demand action by the court without objection.” State v. Clark, 412 S.W.2d 493, 497[5] (Mo.1967).

Even had the above argument been objectionable for the reasons stated, it was not within the rule stated in State v. Clark, supra, and, since it was made without objection, nothing is presented here for review. However, such argument was within the limits set by the trial court and agreed to by defense counsel, and appellant’s second point is ruled against him.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Michael Archie JONES, Appellant.
    No. KCD 27647.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.

      Thomas M. Larson, Public Defender, Ce-nobio Lozano, Jr., Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Richard E. Vodra, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

Defendant was convicted of Robbery First Degree on trial by jury and was sentenced to fifteen (15) years imprisonment. He raises four points upon this appeal. First, he asserts that the trial court erred in overruling his motion to suppress the testimony of the victim of the robbery of pretrial and in-court identification of the defendant because the pretrial photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification and thereby tainted the subsequent in-court identification. Second, he urges that he was denied a fair trial because the court, over his objection, admitted “mug shot” photographs of the defendant and one Reginald Woodruff into evidence and permitted these to be passed to the jury. Third, he claims that his conviction was obtained by false testimony given by Patrolman Wright, coupled with the knowing misrepresentation by the prosecutor to the jury as to the character of such testimony. Fourth, he asserts that the trial court denied him the effective exercise of his Sixth Amendment right to cross-examine adverse witnesses.

A resolution of these points requires a somewhat detailed summary of the evidence. From this evidence, the jury could reasonably have found the following facts:

On August 5,1974, Brenda Robinson, also known as Brenda Fleeks, and her husband, Tommy Robinson, and their small daughter occupied an eighth floor apartment in the Wayne Miner housing project, 912 Euclid, Kansas City, Missouri. At approximately 12:30 a. m. on that date, Tommy Robinson and one Charles Tony, who had been visiting in the apartment, left to go to a nearby store, leaving Brenda and the child alone in the apartment.

Approximately 15 minutes later, Mrs. Robinson heard a knock on the front door, looked through an observation hole therein and saw a young girl at the door. She also saw a man, Reginald Woodruff, known to her and whose grandmother occupied an apartment on the eighth floor of the building, standing at the elevator door, four feet from her entrance, holding the elevator door open. Upon Mrs. Robinson making inquiry of the girl as to her business there and being advised that the girl wished to see Mr. Robinson, she opened her apartment door to permit the girl to enter. As the door was opened, four or five men rushed into the Robinson apartment. These men were brandishing pistols and wore women’s stockings over their heads, mask-fashion. Woodruff, who was not wearing a mask, remained at the elevator.

One of the men held a gun to Mrs. Robinson’s head, forced her down a hallway to a bathroom, where she and her daughter were restrained (Mrs. Robinson with her hands taped behind her) during the course of the robbery, a period of about 30 minutes.

Mrs. Robinson was acquainted with the defendant; he had been in the Robinson apartment about an hour before the robbery for about 20 minutes; at that time he was dressed in red plaid pants and an orange jacket; and she knew him by the name of “Monk”. At the time the men rushed into her apartment, the ceiling light in the front room, with four light bulbs, was turned on and she recognized the defendant both facially (despite the stocking mask) and by reason of his dress during the approximate ten seconds before she was taken to the bathroom at gunpoint.

After the men left the apartment, she went to the bedroom window overlooking the project parking lot, illuminated by a “big old huge spotlight”, and saw the defendant and other males coming out of the apartment building carrying her television and stereo sets, which they placed in the trunk of a car in which they then departed. When she saw defendant in the parking lot, he was not wearing a stocking mask or anything over his face.

Upon the arrival of the police, Mrs. Robinson told Patrolman Wright that one of the persons who had burst into her apartment and robbed her she knew as “Monk”.

When Mr. Robinson and his friend Charles Tony were leaving the elevator of the building on their trip to the store at about 12:15 a. m., he ran into his “friends”, Michael Jones (Monk) and Reggie Wood-ruff, and seveal other men. He had known the defendant about two months, having met him through Reggie Woodruff, both of whom had visited the Robinson apartment about an hour before this incident.

At about 1:45 p. m. in the afternoon of April 5, 1974, Mrs. Robinson went to police headquarters to view some photographs. Either before or after looking at these photographs, she was told that Monk’s real name was Michael Jones. She was shown four “mug shots” and she identified one of these as “Monk” and another as Reggie Woodruff. She did not recognize the other two persons. There was no attempt on the part of the police to exert any influence or suggestions as to which of the four photographs (or that any one of them) was that of Michael Jones or “Monk”, or that the police engaged in any other impermissible activity with reference to this identification.

The jury could have reasonably found (and did find) the foregoing facts from the evidence offered by the state. However, these findings find further support from the testimony of the defendant, who took the witness stand in his own defense.

He testified in detail as to his activities on April 4, 1974, and the early morning of April 5, 1974. A substantial part of this time was spent in the company of Reggie Woodruff. He further stated that he had been acquainted with Mr. and Mrs. Robinson for several weeks prior to April 4-5, 1974, and that he had been in their apartment four or five times before that night. He stated that he and Reggie (and others) had visited the Robinson apartment at about 11:15 p. m. on the night'of the robbery; that he and Reggie later returned to 912 Euclid at about 12:00-12:15 a. m. in order to pick up a jacket that Reggie had left at his grandmother’s apartment on the same floor as the Robinsons; that at this time the defendant tried to visit his brother (who lived on the 9th floor) but found he was not at home; and, that he and Reggie then returned to the apartment of another friend at 3310 Woodland at about 12:45 a. m., where he slept for several hours. The defendant denied that he was dressed as described by Mrs. Robinson or that he was implicated in any way in the robbery. He thus sought to establish an alibi, as above noted, that he was at 3310 Woodland at the time of the robbery and that Mrs. Robinson’s identification of him was wrong.

During the course of defendant’s testimony, he admitted that he had previously been convicted for “stealing from a person” for which he had served time. Other evidentia-ry facts and trial incidents necessary to the resolution of the points raised by the defendant will be hereafter noted.

Relying upon Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) defendant’s first point on appeal deals with the photographic identification of him by Mrs. Robinson and his claim that such was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification and thereby tainted her in-court identification. Simmons holds that such a claim “must be evaluated in light of the totality of surrounding circumstances.” In Missouri, when so viewed, the determination of whether or not pretrial identification was “impermissibly suggestive” is governed by three cardinal principles. Consideration must be given to (1) the presence of an independent basis of identification; (2) the absence of any suggestive influence by others; and (3) positive courtroom identification. State v. Boothe, 485 S.W.2d 11, 13[2] (Mo. banc 1972); State v. Parker, 458 S.W.2d 241, 243-244[2] (Mo.1970); State v. Murphy, 508 S.W.2d 269, 274[1] (Mo.App.1974).

In applying these criteria to the facts in the case at bar, the record presents, at the outset, an unusual circumstance. Mrs. Robinson was not robbed by a stranger but by a “friend” — at least, a person with whom she and her husband had been acquainted for several weeks; a person who admittedly had visited the Robinsons apartment on four or five occasions; and, whose last visit had been made about an hour before the robbery. This is not the usual situation where a victim is seeking to identify a stranger, a person theretofore unknown to her, and whose physical characteristics and appearance were not familiar to the victim prior to the crime. Further, Mrs. Robinson testified that she saw the defendant with the other intruders in her home, in a well-lighted room, for about ten seconds; that she recognized him as “Monk” despite the stocking mask; and, that she later saw him unmasked in a well-lighted parking lot helping to load her stolen TV and stereo into an automobile. The first criteria was amply met. Mrs. Robinson had an independent basis for her identification of the defendant.

Neither is there any substantial evidence that Mrs. Robinson’s pretrial photographic identification of the defendant was induced by any improper influence or suggestions of the police or others. The defendant’s claim to the contrary is apparently based upon three contentions. First, the fact that Mrs. Robinson told the police that one of the men who robbed her was known to her as “Monk” and that the police told her that “Monk” was Michael Jones, the defendant. This was obviously merely conversation linking the nickname to the real name and there is no evidence that the police told her that a specific photograph, or that any of. the photographs shown to her, was a picture of “Monk” or Michael Jones. Second, the defendant claims that before the identification the police segregated or separated the photographs of the defendant and Reggie Woodruff and that Mrs. Robinson thereafter made her identification from two, rather than four, photographs. Mrs. Robinson plainly and clearly testified that she made her identification from four photographs. Defendant seeks support for his contention in this regard from the testimony of Mrs. Robinson at the hearing on the motion to suppress which followed her testimony that she was shown four photographs from which she identified the defendant and Reggie Woodruff, which thus appears, under questioning by defense counsel:

“Q. All right. When he (police officer) showed you the two photographs— he separated the two photographs, did he not, from the other two?
A. (Nodded head in affirmative.)
Q. He did, didn’t he?
A. Yes.”

However, a close scrutiny of the “totality” of Mrs. Robinson’s testimony at both the hearing on the motion to suppress and the trial compels the conclusion that such separation was made after and not before her identification of the defendant and Woodruff, and that her foregoing testimony referred to the general occasion or time when she was at the police station and not to a specific time prior to her photographic identification of defendant. This conclusion is inevitable because after her identification of the photographs a written statement was taken from her by Detective Grosko. This statement was introduced as an exhibit by the defense at the trial of the case. During the cross-examination of Mrs. Robinson, the following appears:

“Q. Now, in your statement also there is a question which reads, ‘Mrs. Fleeks, I am showing you two mug shots which you looked at earlier together with other pictures, and asking (sic) you if these are the two men you recognized during the robbery.’ You were shown two pictures at that time, weren’t you?
A. I was shown four.
Q. All right. But I mean at the time that he was asking you on this one you were shown two photographs?

A. Yes.” (Emphasis supplied)

It is clear from this record that any separation of the photographs of the defendant and Woodruff from the other two occurred after she had made her identification and while her written statement was being taken.

Third, the defendant claims in support of his first point that the police informed Mrs. Robinson upon this occasion that Woodruff was known to them and that he and the defendant were associates with bad records. Here, once again, nothing in the record shows that the passing of this gratuitous information to Mrs. Robinson was in any way connective with or had any influence upon her identification of the photographs of the defendant and Woodruff. As previously stated, she knew them both and was aware of their association with one another, and the information that they had “bad records” was not shown to have resulted in any misidentification. It is clear that no improper or impermissible suggestions or influence appear from this record.

Lastly, the third criteria of the Missouri rule is met by the clear, positive, unequivocal and untainted in-court identification of the defendant by Mrs. Robinson, based upon independent sources, “even though the (pretrial) procedure employed may have in some respects fallen short of the ideal.” Simmons v. United States, supra (88 S.Ct. at l. c. 972); State v. Crossman, 464 S.W.2d 36, 40[1] (Mo.1971).

The defendant’s first point is ruled against him.

The second point raised by defendant relates to the admission into evidence and the showing to the jury of the two police photographs or “mug shots” of the defendant and Reggie Woodruff. The photograph of the defendant had been cropped so that the police department’s identification number and other data did not appear, but the photograph of Woodruff had not been altered or masked in any way. These photographs were identified, offered, admitted into evidence over the objection of defendant, and passed to the jury as part of the state’s direct examination of the victim, Mrs. Robinson. Defendant claims that this was fatally prejudicial to him and that thus he was denied a fair trial. In so doing, he places his principal reliance upon the cases of United States v. Harrington, 490 F.2d 487 (2nd Cir., 1973) and Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966). Neither of these decisions is authoritative here and each is clearly distinguishable on the facts. Both of these decisions were based upon the rationale that to permit the introduction of “mug shots” of a defendant, who had not taken the witness stand in his own defense, was in ultimate effect permitting the prosecutor to show prior criminal convictions. Harrington clearly recognized a sharp division in the federal circuit opinions on this subject and held that each case must be determined upon the totality of the circumstances of that case. Strong dissents were filed in both Harrington and Barnes. But resort need not be had to the federal circuit court’s opinions for a resolution of the problem here presented. The Supreme Court of Missouri has clearly and positively laid down the guidelines controlling and disposi-tive of this point.

Preliminary to a brief discussion of these authorities (and at the risk of undue repetition) it should be recalled that the defendant, throughout the trial and here upon appeal, stoutly challenges the identification of him by Mrs. Robinson; he claimed an alibi; and, he took the witness stand in his own defense.

In the case of State v. Holmes, 389 S.W.2d 30 (Mo.1965), the defendant, convicted of a robbery of a donut shop, challenged the identification of him by two employees of the shop and presented evidence of an alibi. His photograph (apparently not a police photograph) was admitted into evidence and error was asserted upon that ground. The court ruled that such photograph was “relevant and material on the question of the accuracy of his identification by the witness.” (l. c. 34[5]). See also, Robertson v. State, 464 S.W.2d 15, 19—20[5, 6, 9] (Mo.1971), which apparently involved the use of a “mug shot”; State v. Crossman, 464 S.W.2d 36, 41[3] (Mo.1971), wherein “mug shots” of defendant, upon which the police data had been masked, were held to be admissible.

Each of the above authorities cites and relies upon the decision in State v. Childers, 313 S.W.2d 728 (Mo.1958) which is disposi-tive of this point. In Childers, the defendant was charged and convicted of robbery of a tavern. The bartender and several customers identified the defendant and one Allen as the participants in the robbery. These “mug shots” of both defendant and Allen with the police data on the front thereof were shown to the witnesses at trial, identified by them and introduced in evidence. This was asserted as error for the reasons that the photographs were “immaterial and irrelevant and did not tend to prove or disprove any issue in the case and no foundation [was] laid or later connected as to the origin of said pictures, and said pictures were prejudicial and numbers were across [each] picture.” Childers did not testify but did offer alibi evidence.

In ruling the above allegation of error against Childers, the court said (1. c. 731[5]):

“ * * * Throughout the trial defendant was seeking to establish that he was not the person who participated in the robbery. He sharply challenged the identification of him from the photographs shown to the witnesses at the police station and the personal identification of him after he was taken into custody by the police. The presence of the defendant in the courtroom and the viewing of his photograph by which the State’s witnesses identified him as a participant in the robbery made it possible for the jury to determine the accuracy or inaccuracy of their identification of him from the photograph shown them on July 29th. The identity of Allen, whom the evidence showed defendant admitted to have been present and wounded at the robbery, made their joint identities relevant and material. No error was committed in their admission.”

In the case at bar, the defendant sought to establish that he was not the person who participated in the robbery. The defendant’s presence in the courtroom and a viewing of his photograph from which Mrs. Robinson identified him as a participant made it possible for the jury to determine the accuracy or inaccuracy of her identification of him from the photographs shown her at police headquarters.

The identity of Woodruff, a person whom the evidence shows (1) to have been present at the time and place the robbery occurred; (2) to have been in the company of the defendant during the time of the robbery and during the day immediately preceding the robbery; and (3) to have been with the defendant in the robbery victim’s apartment for ten to fifteen minutes an hour before the offense was committed, made defendant’s and Woodruff’s joint identities relevant and material.

In ruling this point against defendant, we also note that he took the stand at his trial and admitted, on direct examination, that he had previously been convicted of a felony. The defendant cannot now complain that the introduction of his photograph into evidence disclosed to the jurors a fact which he himself chose to reveal to them.

Defendant’s second point is ruled against him.

The defendant’s third point (without citation of authority other than the Fourteenth Amendment to the United States Constitution) is rather obscure and tenuous. In essence, it would appear to be based upon the charge that Officer Wright gave “false” testimony; that the prosecutor thereafter knowingly misrepresented to the jury the character of scch testimony and that such facts did not become known to defense counsel until after the jury began deliberations.

While the actions and rulings forming the basis of this charge cannot be gleaned from the defendant’s stated point [which therefore fails to comply with the mandate of Rule 84.04(d)] it appears from a study of the argument portion of the defendant’s brief and the transcript that the charge of perjury against Officer Wright and the charge of knowing misrepresentation against the prosecutor are based upon the following trial incidents.

On direct examination of Officer Wright, he stated that he responded to the police call at the home of the victim. The following appears:

“Q. And did she give her name as Brenda Fleeks Robinson?
A. Yes, she did.”

On cross-examination, the following appears:

“Q. Now, you testified in answer to the question by the prosecuting attorney that Brenda Fleeks told you her name was Brenda Fleeks Robinson?
A. Yes, I did.
Q. But on your report you have ‘Brenda Fleeks’.
A. I must have made a mistake.”

After a noon recess and a conference with the prosecuting attorney, Officer Wright was recalled “for further direct examination” and this interrogation by the prosecutor appears in the transcript:

“Q. Will you tell this Court and jury what that conference was about?
A. Okay. One of the earliest questions that he asked me was did the victim state her name was Brenda Fleeks Robinson, and I responded yes. Automatically when I said this I knew that I had made a mistake. She at no time told me her name was Brenda Fleeks Robinson, just Brenda Fleeks * * *
Q. And would you tell this Court and jury whether or not during the recess I confirmed that a mistake had been made in your testimony?
A. Yes, we (sic) did.
Q. And at my direction did you volunteer to come back on the stand and clarify that mistake?
A. Yes, I did.”

In the second part of his closing argument to the jury, the prosecuting attorney stated:

“ * * * Now, I thought that officer [Wright] was overwhelmingly true. He even came back here and told you he had made a mistake.”

Defendant’s brief charges that by the statement in his argument the prosecutor “submits the lie as a mistake to the jury and tells them that the liar is an honest man who volunteered to come back to correct a mistake." (Emphasis supplied)

Despite these intemperate and unacceptable positions, it is clear that this whole matter hinges around a name variance of the victim. There is not the slightest evidence to show that Brenda Fleeks was some person other than Brenda Robinson. In fact, the contrary conclusively appears. Brenda Robinson’s maiden name, before her marriage to Robinson in 1971, was Fleeks; the apartment which was the scene of the robbery was leased in the name of Fleeks; and, there was some indication that Mrs. Robinson was drawing child welfare payments in the name of Fleeks. This record affords absolutely no basis for the violent charge of perjury against Officer Wright and of knowing misrepresentation to the jury against the prosecutor. From these fine representatives of the state, truthfulness, rather than falsity, honesty, rather than deceit, candor, rather than subterfuge, emerge convincingly from this record.

On this point, the defendant attached to his motion for a new trial the affidavit of a Certified Law Intern who assisted in the defense of this ease under Rule 13. By this document the defendant sought to establish that during the noon recess preceding the recall testimony of Officer Wright, the prosecutor stated to the trial court, in chambers, that he wished to recall Wright “to correct some false testimony” and that during the deliberations of the jury the prosecutor in informal courtroom conversation stated that he had “confronted” Wright with this “false testimony”; that Wright had at first refused to resume the stand to correct this testimony; and, only “relented” when the prosecutor told Wright that otherwise the state would have to dismiss the case. While under the facts in this record this unsupported affidavit taxes credulity, at best it might be dignified as newly discovered evidence. As such, even if true and admissible, it would fall far short of constituting evidence so material that it would probably produce a different trial result, within the clear Missouri rules as reaffirmed in State v. Harper, 473 S.W.2d 419, 421[1] (Mo. banc 1971). It all related to a name variance of the victim of the robbery, was immaterial, collateral and unimportant.

The defendant further complains that he was not granted an evidentiary hearing on this facet of his Motion for a New Trial and was thus denied due process. Without deciding whether he would have been entitled to such a hearing, a simple and conclusive answer to this complaint is that he did not request a hearing from the trial court but was apparently content to rest upon the affidavit above referred to, which was attached to his motion. See, United States v. Price, 464 F.2d 1217, 1219[5] (8th Cir. 1972), cert. den. 409 U.S. 1040, 93 S.Ct. 522, 34 L.Ed.2d 489; State v. Lay, 427 S.W.2d 394, 402[6] (Mo.1968).

The emphasis here devoted to this point is engendered not from either its actual or intrinsic importance to, or judicial impact upon, the merits of this appeal, but rather from a real concern that the sole basis for the specious reason upon which it rests is the affidavit of a law student acting as a Certified Law Intern associated with the defense under the provisions of Rule 13. One is compelled to wonder why the Public Defender, if he was determined to burden the trial and appellate courts with this type of matter, did not assume this burden himself. No such wonder or doubt, however, can exist as to the indelible fact that the fine and salutary purposes of Rule 13 were not served thereby.

The defendant’s third point is ruled against him:

The defendant’s fourth (and last) point (again, without citation of authorities) is that the trial court denied him the “effective right to cross-examination of adverse witnesses.” Here again, he has failed to comply with the mandatory provisions of Rule 84.04(d), but a gratuitous and close scrutiny of the argument portion of his brief and of the transcript of the trial reveals that this point is based upon two trial incidents, neither of which compels corrective action by this court.

First, during defense counsel’s cross-examination of the robbery victim, Mrs. Robinson, he produced a woman’s stocking and asked her if the stocking masks worn by the robbers were “like this”. Mrs. Robinson denied the similarity to the ones used by the men who robbed her. The trial court thereupon sustained objections to further use or reference to the stocking produced by defense counsel in court; it was not marked as an exhibit nor further identified; no offer of proof was made; and, this stocking is not part of the record in this court. The trial court’s ruling in this regard was not error.

The stocking produced by counsel was obviously intended as demonstrative evidence and, in the face of the victim’s denial that it was the same as the stockings worn by the robbers, it did not meet the tests of relevancy, materiality or probative force required of this type of evidence. It could not give the jury a more accurate impression of the facts, or throw any light upon any material matter, nor was it in any way identified as connected with the offense or with the defendant. State v. Miller, 364 Mo. 320, 261 S.W.2d 103, 106-107[4] (1953); State v. Aubuchon, 394 S.W.2d 327, 333[8] (Mo.1965).

Second, the state was permitted to recall Tommy Robinson, the victim’s husband, as a rebuttal witness. He had testified when called as a witness initially that the man who had been visiting in the Robinson apartment and with whom he left to go to the store about 15-20 minutes before the robbery was named Charles Tony. Mrs. Robinson in her testimony described this man as a friend of her husband, who lived on the ninth floor of the apartment project and whose first name was “Tony” and whose last name she did not know.

Here again, the record reveals a mix-up in names. Tommy Robinson was called by the state to clarify this and to reiterate the fact that his friend’s name was in fact “Charles Tony”. While this was not strictly rebuttal evidence, since it was on a basically immaterial point, and defense counsel had ample opportunity to cross-examine Tommy Robinson when he originally testified, it does not appear that the defendant was prejudiced by any restriction on his cross-examination during the so-called rebuttal testimony of Robinson. Moreover, counsel for the defense did not make any offer of proof, request that he be permitted to extend his original cross-examination of Robinson, or otherwise advise the court of his purpose, objectives or intentions.

Defendant’s fourth point is ruled against him.

The judgment is affirmed.

All concur.

      . She testified both ways during the course of this proceeding.

      . Defendant claims that the police segregated the two photographs prior to Mrs. Robinson’s identification and thus engaged in impermissible suggestions. This claim is not supported by the record to any persuasive degree, however, as will be hereafter demonstrated. While the testimony of Mrs. Robinson on the hearing on the motion to suppress, with respect to one answer, might be given such strained construction, it is clear from her written statement of April 5, 1974 (T. 16/17) and her positive testimony at the trial (T. 104/105) that the segregation occurred after she viewed the four photographs.


author: HOGAN, Judge.

text:
    Richard KERSEY and Delores Jean Kersey, Plaintiffs-Appellants, v. Samuel HARBIN et al., Defendants-Respondents.
    No. 9893.
    Missouri Court of Appeals, Springfield District.
    Dec. 8, 1975.

      Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for plaintiffs-appellants.
    David E. Blanton, Blanton, Blanton, Rice & Sickal, Sikeston, for defendants-respondents.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

Plaintiffs brought this action for the wrongful death of their minor son, Daniel Keith, a 13-year-old junior high school student. Defendant Samuel Harbin is Superintendent of Public Schools of Sikeston, Missouri; defendant W. L. Clayton is Principal of the Sikeston, Missouri Junior High School; defendants Holmes and Edwards are teachers and physical education instructors; defendant Mary Mather is the school nurse.

Taking the inductive allegations of the petition as true, plaintiffs’ son was thrown to the floor by a classmate while both were participating in a physical education class. Defendant Edwards, the regular instructor, did not appear for class, and defendant Holmes took over Edwards’ class as well as his own. The injury occurred during a period of time when decedent’s class was left without supervision.

Daniel received a head injury when he was thrown to the floor. He was seen by defendant Mather and was allowed to return to and participate further in the physical education class. Daniel thereafter became ill but was directed to remain at school until his father could be contacted. Having been notified of his son’s injury, plaintiff Richard Kersey came to the school and took Daniel to the office of a local physician. Several hours later Daniel died as a result of the injuries he sustained at school.

The defendants filed separate but identical motions to dismiss the action pursuant to Rule 55.27. As far as the record indicates, no affidavits or counteraffidavits were filed, nor was any evidence heard upon the motions. Without assigning any grounds, the trial court sustained each motion. Plaintiffs have appealed.

Specifically, the plaintiffs charged defendants jointly with negligence in 14 enumerated particulars: “A. In causing an eighth grade physical education class composed of 20 to 25 students and normally taught by a physical education instructor, to be taught by another physical education instructor who at the same time had the responsibility of teaching his own class of eight [sic] graders, composed of 20 to 25 pupils when said instructor was unable adequately to supervise both classes; B. In providing a teacher ratio in a physical education class of eighth graders to be one teacher per 45 pupils when the proper ratio is one teacher to 23 pupils; C. In requiring one teacher to teach at the same time two physical education classes of eighth grade male students, when two teachers were normally used for the instruction of said two classes; D. In leaving a physical education class of eighth grade male students to the responsibility of another teacher who already had a similar class, when one teacher was not equipped or able properly to supervise and teach both classes; E. In failing properly to supervise 45 male eighth grade students in two physical education classes, in that one class was left unattended and unsupervised in the gymnasium; F. In failing to supervise adequately two classes by causing one class to be placed in a locker room and another class placed in the gymnasium, unsupervised; G. In failing to supervise properly two classes of eighth grade male students, by keeping said two classes together and under direct supervision at all times; H. In failing to supervise two classes composed of eighth grade male students by leaving some of said students unattended when it was known that some of said students had a history of causing disturbances previously and by fighting, agitating and arousing their fellow students; I. In failing to maintain discipline among the students attending the Sikeston, Missouri Junior High School; J. In failing to supervise the students attending the Sike-ston, Missouri Junior High School; K. In failing to provide a teacher or teachers for the physical education classes of the Sike-ston, Missouri Junior High School; L. In failing to provide adequate medical treatment to Daniel Keith Kersey who had suffered severe head injuries; M. In allowing and directing Daniel Keith Kersey to resume his activities in an eighth grade physical education class after he had received severe head injuries; N. In failing to transport Daniel Keith Kersey to a physician or to a hospital when it was known that he had suffered severe head injuries and in requiring him to wait at said school until his father could be located and made to come to the school to pick up his said son and transport him to a hospital for medical aid.”

The allegations of each motion to dismiss were as follows: 1) “the petition fails to state a cause of action upon which the request of the prayer could be sustained”; 2) “as to this said defendant, the petition states conclusions and fails to state or allege facts”; 3) “at all times referred to in the plaintiffs’ petition, this defendant was in the performance of a governmental function and as such, was clothed with discretionary powers and would not be liable for any damages that the plaintiffs may have sustained”; 4) “as this said defendant was performing governmental functions, he would not be liable to the plaintiffs for any alleged acts of [sic] omissions constituting nonfeasance”; 5) “the relationship of loco parentis existed between him and the late Daniel Keith Kersey and he is, accordingly, not liable to the plaintiffs for an unintentional tort, as none was committed.”

On this appeal, the plaintiffs do not challenge the immunity of the school district, Rennie v. Belleview School District, 521 S.W.2d 423 (Mo. banc 1975); O’Dell v. School District of Independence, 521 S.W.2d 403 (Mo. banc 1975), cert. denied, - U.S. -, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975), although on oral argument they professed to believe the doctrine of sovereign immunity will shortly be abolished in this jurisdiction. We decline to speculate. Otherwise, both plaintiffs and defendants have briefed and argued a number of abstract propositions, citing many cases from this and other jurisdictions which, they maintain, support their respective positions. We shall limit ourselves to a consideration of those issues necessary to a proper disposition of the appeal. See Beets v. Tyler, 365 Mo. 895, 903-904, 290 S.W.2d 76, 82[16] (1956).

In our opinion, the direct and meritorious question presented is whether or not the plaintiffs’ petition states a claim upon which relief can be granted. The first two paragraphs of the several motions to dismiss directly challenge the sufficiency of the plaintiffs’ petition, and we address ourselves to that issue, forgoing for the moment any examination of the special defenses pleaded in paragraphs three, four and five of motions to dismiss.

A motion to dismiss for failure to state a claim upon which relief can be granted performs the same function as a general demurrer, Baysinger v. Hanser, 355 Mo. 1042, 1044, 199 S.W.2d 644, 645-646[1] (1947); Abbott v. Seamon, 229 S.W.2d 695, 698[1] (Mo.App.1950), and ordinarily a petition should be held good as against such a motion if the averments of the petition, accorded every reasonable and fair intendment, state a claim which can call for the invocation of principles of substantive law which may entitle the plaintiff to relief. Boyer v. Guidicy Marble, Terrazzo & Tile Co., 246 S.W.2d 742, 744[1] (Mo.1952); Ingalls v. Neufeld, 487 S.W.2d 52, 54[4] (Mo.App.1972). Generally, the pleader may not be cast merely because his cause of action is imperfectly or defectively stated, Downey v. United Weatherproofing, Inc., 363 Mo. 852, 855, 253 S.W.2d 976, 977-978[1, 2] (1953), and on several occasions our Supreme Court has held that a petition which specifies the act complained of with sufficient certainty to advise the defendant of the charge he is to meet and then avers that the act was negligently done by the defendant is a good pleading and is not fatally defective as stating a mere conclusion. Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 455, 222 S.W.2d 87, 92 (1949); Zichler v. St. Louis Public Service Co., 332 Mo. 902, 912, 59 S.W.2d 654, 657[6] (1933). It may therefore be said that our courts tend to construe pleadings most liberally as against the contention that no cause of action is stated or the argument that the averments constitute mere conclusions of the pleader.

One significant exception to the rule that pleadings must be liberally construed arises in connection with those actions sometimes described as “disfavored” causes of action. 5 C. Wright and A. Miller, Federal Practice and Procedure § 1357 at 610-611 (1969). In such cases, courts are inclined to construe the complaint by stricter standards. Cases based on fraud or mistake are familiar examples, Rule 55.15, but in the federal courts, at least, a more strict standard of construction has been applied in cases where the defendants are or may be immune or privileged. See, e. g., Owen v. Kronheim, 113 U.S.App.D.C. 81, 304 F.2d 957 (1962); Ginsburg v. Black, 192 F.2d 823, 825-826[10] (7th Cir. 1951), cert. denied, 343 U.S. 934, 72 S.Ct. 770, 96 L.Ed. 1342 (1952). In this connection, we have read and reread Smith v. Consolidated School Dist. No. 2, 408 S.W.2d 50 (Mo. banc 1966). In that case, an action for personal injury was brought by a minor against a school district, its superintendent and a physical education instructor, based on the negligence of all three. Defendants’ motions to dismiss were sustained. After argument and reargument, the Supreme Court affirmed the trial court’s order sustaining the motions. Although the court nowhere mentions “disfavored actions” our examination of the opinion convinces us that in this case plaintiffs’ petition must be strictly construed. We proceed on that premise.

With deference, the petition is very loosely drawn by any standard. Plaintiffs charge the defendants, collectively, with all fourteen assignments of negligence, although it seems fairly obvious that the defendants cannot have owed the same duty to Daniel. Summarized, the first four allegations of negligence amount to no more than a conclusional averment that defendant Holmes’ class was too large to manage. Conceivably there may be a rule regulating the size of a physical education class in junior high schools; § 161.102 gives the State Board of Education the authority to promulgate rules to be followed “to secure courses in physical education to all pupils and students in all public schools and in all educational institutions”, but that statute is merely directory, Smith v. Consolidated School Dist. No. 2, supra, 408 S.W.2d at 53, and in any ease we may not take judicial notice of the rules of administrative agencies. Allen v. State Department of Public Health & Welfare, 479 S.W.2d 183, 187[4] (Mo.App.1972); Nabors v. United Realty Co., 298 S.W.2d 474, 480[6] (Mo.App.1957). Moreover, assuming that assigning a large class to one instructor constituted a breach of duty owed to Daniel, and further that the size of the class in itself might in some manner have been a direct and proximate cause of his injury, plaintiffs’ pleading contains no allegation charging any particular defendant with a duty or the right to fix the size of a class, nor any allegation of any right or duty on the part of an instructor to take any particular action if assigned more students than he could reasonably supervise. We do notice that § 168.201 authorizes district boards of education to employ a superintendent and “other servants and agents”, but the district, not the statute, prescribes the duties of such employees, and, assuming that the instructors here involved are tenured teachers, § 168.108 does not purport to prescribe the duties which may be assigned to teachers by contract. The first four assignments of negligence are, in this factual situation, mere conclusions of the pleader.

Assignments E, F, G, I, J and K, again condensed, charge failure to supervise the class which Daniel was attending, failure to maintain discipline, and failure “to provide a teacher or teachers for the physical education classes of the Sikeston Missouri Junior High School.” Supplementing these allegations by consideration of the whole petition, we see that they amount to charging the defendants collectively with negligence because one instructor was absent. No facts are alleged indicating the instructor was absent without cause, nor indicating that the superintendent or principal knew of his absence. There is no averment of any failure to perform a specific duty on the part of any defendant, nor any allegation that any failure of any defendant in particular to perform his or her duty caused Daniel’s injury, nor is it alleged how the performance of those duties, whatever they may have been, would have prevented Daniel’s injuries. These allegations do not aid plaintiffs in stating a claim for relief.

A further allegation of negligence — assignment H — is that defendants were negligent “[i]n failing to supervise two classes composed of eighth grade male students by leaving some of said students unattended when it was known that some of said students had a history of causing disturbances previously and by fighting, agitating and arousing their fellow students”. (Emphasis added) This allegation is more specific than the other assignments of negligence, but we consider it insufficient. There is no allegation that Daniel’s assailant, if we may call him that, was one of the students who “had a history of causing disturbances”; no allegation that the conduct of the unruly group was such as was likely to cause actual harm to other students; no allegation that the “history of causing disturbances” was or should have been known to any particular defendant, and no allegation that the conduct of Daniel’s fellow students could have been controlled by the exercise of reasonable care on the part of any of the defendants so as to avoid injury to the decedent. Again, these allegations do not aid the plaintiffs in stating a claim for relief.

The remaining three allegations, again summarized, amount to an assertion that after Daniel was injured, the defendants collectively failed to diagnose and appreciate the seriousness of his injury and provide appropriate medical treatment. No facts are set out indicating that Daniel’s appearance, after he was injured, was such that any of the defendants should have appreciated the severity of the injuries; there is no averment that any of the defendants had the skill to provide “adequate” medical treatment, or that whatever therapeutic measures could have been taken, however radical, would have avoided Daniel’s death, which occurred shortly. For the reasons stated, we conclude that the petition, measured by the strict standards indicated in Smith, does not state a claim, and the court did not err in dismissing it pursuant to Rule 55.27(a)(6).

Remaining for consideration are the three special defenses pleaded by all the defendants severally. They are: 1. that the defendant was engaged in the performance of a governmental function, and as such, was clothed with discretionary powers and would not be liable for any damages plaintiff may have sustained; 2. that defendant was performing governmental functions and therefore would not be liable for any act or omission constituting nonfeasance; 3. that the defendants stood in loco parentis to the decedent and were not liable to plaintiffs for an unintentional tort, as none was committed.

Like the allegations of the petition, these special defenses are very abstractly stated. The first two are essentially claims of immunity based on the assertion that the particular defendant was performing a governmental function, but because we do not know what the specific duties and responsibilities of the individual defendants were, we cannot satisfactorily resolve the question of their possible immunity from the face of the petition. For example, one ground of liability relied on by the plaintiffs is that the teacher-pupil ratio was too high, but no pleaded fact or circumstance assigns responsibility for that condition. In addition, plaintiffs plead that defendant Edwards “did not appear”, but there is no allegation why he was absent or for how long; defendant Mather is a school nurse, and her duties and responsibilities, whatever they were, could scarcely have been identical to those of the other defendants. We can say with reasonable confidence that we know of no general principle of law which clothes grammar school teachers with immunity from liability for their negligent acts. Downs v. Conway School Dist., 328 F.Supp. 338, 348-349[5][6] (E.D.Ark.1971); Duncan v. Koustenis, 260 Md. 98,271 A.2d 547, 550-552[1][2] (1970); Eastman v. Williams, 124 Vt. 445, 207 A.2d 146, 148-149[4-7] (1965); Crabbe v. County School Bd. of Northumberland Co., 209 Va. 356, 164 S.E.2d 639, 641[3] (1968); Annot., 32 A.L.R.2d 1163, 1186-1189 (1953); Proehl, Tort Liability of Teachers, 12 Vand.L.Rev. 723, 739-742 (1959) [hereinafter cited as Proehl]. It is nevertheless our tentative opinion that the scope of an individual instructor’s duty to avoid injury to any particular student by controlling the conduct of the others is very narrow, particularly in view of the constitutional restrictions now laid upon teachers in disciplining their students. Baker v. Owen, 395 F.Supp. 294, 302—303[8—10] (M.D.N.C.1975), aff’d, - U.S. -, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). However the defendants’ first two collective special defenses might be properly characterized, whether as “affirmative” defenses or special traverses, we believe the merits of those defenses can only be properly resolved upon reception of some species of proof. Cf. Burke v. City of St. Louis, 349 S.W.2d 930, 932 (Mo.1961).

Defendants’ assertion that they stood in loco parentis to the decedent and are therefore immune from suit has only superficial ingenuity to commend it. The notion that a teacher stands in place of a parent is a legal fiction intended to describe and limit the teacher’s privilege to discipline the child. If the loco parentis doctrine still stands in the wake of Baker v. Owen, supra, it has never been thought to excuse the teacher for his negligence. See Chilton v. Cook County School Dist. No. 207, Maine Tp., 26 Ill.App.3d 459, 325 N.E.2d 666, 669-671 (1975); Gaincott v. Davis, 281 Mich. 515, 275 N.W. 229, 231[4, 5] (1937); Proehl, op. cit. at 726-729.

We fully realize we have accomplished little by this opinion other than to dispose of the appeal, but to reiterate, the parties have tendered us abstractions, rather than concrete propositions to be decided on specific facts, and we will state once more than an appellate court “is neither a law school nor a debating society, and [its] opinion is no place for a legal monograph or the airing of personal views on general matters.” Consequently, we have stated only tentative conclusions as to the applicable law. We believe the motion to dismiss was properly sustained, but because we believe plaintiffs may be able to amend their petition within permissible limits to state a claim, we think they should be permitted to do so, if they are so advised. It is so ordered.

All concur.

      . All references to statutes and rules are to RSMo 1969, V.A.M.S., and V.A.M.R., except where otherwise specifically noted.

      . Parker, Improving Appellate Procedure, 25 N.Y.U.L.Rev. 1, 12-13 (1950), in R. Leñar, Appellate Judicial Opinions 202 (1974).