author: JOHN E. PARRISH, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Roy Edwin DAVEE, Defendant-Appellant.
    No. 10440.
    Missouri Court of Appeals, Springfield District.
    Oct. 11, 1977.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 31, 1977.
    Application to Transfer Denied Dec. 19, 1977.

      David A. Geisler, Asst. Pros. Atty., Greene County, Springfield, for plaintiff-respondent.
    Michael Baker, Springfield, for defendant-appellant.
    Before TITUS, P. J., and PARRISH, CASTEEL and HENRY, Special Judges.
   JOHN E. PARRISH, Special Judge.

The superintendent of Pulton State Hospital initiated the proceedings which are now before this court by filing an application with the Circuit Court of Greene County for the unconditional release of defendant Roy Edwin Davee pursuant to § 552.-040(4).

In 1972 the trial court found defendant Roy Edwin Davee not guilty of murder in the first degree by reason of mental disease or defect excluding responsibility. The court committed Davee to the director of the division of mental diseases pursuant to § 552.040(1). Following the superintendent’s application for Davee’s release and after an evidentiary hearing, the trial court denied the request for Davee’s release.

Davee contends that the trial court erred in its finding that he failed to meet the burden of proof required to gain release pursuant to § 552.040(1). He further contends that denial of the application for his release is in violation of the fifth, eighth and fourteenth amendments of the Constitution of the United States in that his confinement deprives him of the equal protection of the law and of due process of law and, further, subjects him to cruel and unusual punishment.

The incident which resulted in criminal charges being brought against Davee and his commitment was the killing of a woman with whom Davee was acquainted and who had refused to date Davee because she had become engaged to another man. Davee confessed to the killing and stated that he killed the woman because she rejected him for another.

Davee’s prior history includes reported fantasies of raping and killing women, statements that he had no control over his movements, and a belief that people talked about him. Prior to the incident which resulted in his commitment, Davee had received psychiatric care at a United States Naval Hospital following three suicide attempts in one day. He was discharged from the Navy in 1970 due to unsuitability. Davee’s history includes juvenile delinquency, alcohol and drug abuse.

Following Davee’s commitment, he was first confined to the maximum security unit. His behavior initially included aggressive conduct which led to his confinement to his ward. Davee became aggressive toward a therapist who conducted group therapy in which he participated and was involved in other incidents of displayed explosive personality.

In late 1973, Davee’s behavior improved and, according to hospital reports, no further incidents of aggressive behavior have occurred. He was transferred to the rehabilitation unit in the hospital in 1975. Approximately one month later, the superintendent applied for Davee’s unconditional release by means of an affidavit stating, inter alia: “2. That said patient does not have, and in the reasonable future is not likely to have a mental disease or defect rendering him dangerous to himself or others or rendering him unable to conform his conduct to the requirements of the law.”

Following hearing on the application for Davee’s release, the trial court concluded that the evidence adduced failed to show that the defendant meets the criteria for release specified in § 552.040(1) and denied the application.

Before proceeding to the issues presented, it is appropriate to note that the appellant before this court is defendant Roy Edwin Davee, notwithstanding that the applicant for Davee’s release is the superintendent of Fulton State Hospital, the hospital where Davee is committed. Although Davee was not the moving party before the trial court, he is an “aggrieved party” for purposes of appeal from the denial of the application and is a proper party to appeal that judgment. See State v. Montague, 510 S.W.2d 776, 777[1] (Mo.App.1974).

Defendant’s first contention is that the trial court erred in ruling that the burden of proof required by § 552.040(1) for his release was not met.

The burden of establishing facts to support release is upon the applicant for release. Likewise, the trial court may properly require more evidence than psychiatric opinion before concluding that an application for release from a state mental hospital should be granted. Montague at 778[4] and 780[5].

Davee was acquitted of criminal conduct because of a mental illness which he suffered. He was charged with the criminal offense of murder in the first degree. He initiated an affirmative defense of mental disease or defect excluding responsibility, and he was acquitted of the criminal act by reason of mental disease or defect excluding responsibility. This resulted in a criminal commitment of Davee to the director of the division of mental diseases for custody, care and treatment in a state mental hospital pursuant to §§ 552.030 and 552.040. See State v. Kee, 510 S.W.2d 477, 480 (Mo. banc 1974).

Davee’s conduct which led to the murder charges against him was not condoned through the criminal commitment proceedings. Rather, because he suffered from a mental disease or defect excluding responsibility, Davee was acquitted but committed to the division of mental diseases.

The fact that Davee was not accountable for his conduct because he suffered from a mental condition does not prevent him from being a danger to society. He is placed in a special class of persons whose danger to society has been established by existing facts albeit that, due to his mental condition when the conduct leading to criminal charges occurred, he is not subjected to criminal punishment.

The purpose of a criminal commitment is to assure that conduct which has harmed one or more persons not again be permitted to constitute a threat of danger. One who has undergone a criminal commitment cannot be released from that commitment unless a court finds that he “does not have and in the reasonable future is not likely to have a mental disease or defect rendering him dangerous to the safety of himself or others or unable to conform his conduct to the requirements of law.” § 552.040.

The trial court did not so find. We agree for the reasons hereafter stated.

At the evidentiary hearing, Davee was represented by counsel. The only testimony was that of Dr. Tellez, a psychiatrist employed by the division of mental diseases, and that of Dr. Han Hulstra, a psychiatrist who, at the request of the State, had examined Davee.

Dr. Tellez testified that he is the director of the rehabilitation unit at Fulton State Hospital and that he had been Davee’s physician since Davee was transferred to the rehabilitation unit in 1975.

Dr. Tellez stated that he was aware of Davee’s history of behavioral problems both in Davee’s civilian life and while in the Navy. He was further familiar with Da-vee’s history as a patient at Fulton State Hospital, including Davee’s aggressiveness toward his group therapist prior to Davee’s placement in the rehabilitation unit.

Dr. Tellez gave, the opinion that what caused Davee to kill the young woman was conditions of schizophrenia, depression and a feeling of rejection. (Davee had confessed at the scene of the killing and stated he killed the victim because she refused to date him and had become engaged to another man). Dr. Tellez concluded that Davee was in need of no more psychiatric treatment.

It was the further opinion of Dr. Tellez that Davee no longer has psychotic symptoms, that Davee’s “explosive personality” was controlled, that Davee’s mental problems are now under control, and that Davee could now deal with problems of everyday life. However, Dr. Tellez also testified on cross-examination that some statistics show a fifteen percent chance of recurrence of mental problems in patients who have had psychotic symptoms such as Davee previously displayed. Dr. Tellez further testified that the probability of future aggressive behavior was greater for Davee than for a person who had no history of the type of mental problems Davee has experienced.

Dr. Tellez’s testimony consisted of his conclusions as a psychiatrist. His testimony was devoid of objective facts, test results, detailed observations or examinations from which his conclusions could be evaluated.

Dr. Tellez testified that Davee’s social contacts with females had been limited. No evidence was presented that Davee had developed open social contacts with females of that type which could be expected in an uncontrolled environment. Dr. Tellez knew of no instances during Davee’s commitment when Davee had been exposed to rejection by either a male or female.

Dr. Tellez’s conclusion was that Davee has reached maximum benefit of hospitalization and that Davee does not need any active treatment for mental illness. He concluded: “All of his personality difficulties have been corrected the best we could, and there is no evidence that he will act out under that influence in the reasonable future.”

Dr. Hulstra testified that he had examined Davee and that he found Davee to not presently be suffering from an overt psychosis. However, Dr. Hulstra stated that he could not give an opinion as to the possibility of a relapse in the future. Dr. Hulstra further testified that the characteristics such as schizophrenia and depression previously evidenced by Davee could not be removed from his personality, only controlled. Dr. Hulstra’s opinion was that Da-vee demonstrated no evidence of psychosis when examined but that whatever caused his aggressive acts in the past could recur.

We believe the decision reached by the trial court not to be in error. The evidence is not sufficient to justify a conclusion by us that the burden of proof was met.

Defendant’s second point asserts that his continued confinement in the state mental hospital violates his equal protection and due process rights under the fourteenth amendment of the Constitution of the United States, and also subjects him to cruel and unusual punishment prohibited by the eighth amendment because he can gain no further benefit from additional treatment.

We do not agree with this assertion.

Release under § 552.040 depends solely upon the patient’s mental condition and potential dangerousness. Assuming, arguen-do, that Davee can gain no further benefit from treatment, absent a determination that he is (1) free from mental disease, and (2) no longer dangerous to himself or others, his release is not authorized.

State v. Pertuisot, 547 S.W.2d 192 (Mo. App.1977), held the fact that a patient can gain no further benefit from treatment as insufficient grounds for release.

A primary purpose of a criminal commitment is to afford society protection from a threat of danger. A patient so committed is afforded the opportunity to petition a court for his release at prescribed intervals during his commitment. Under these circumstances, such a patient is not deprived of due process of law nor of its equal protection.

In State v. James, 534 S.W.2d 41 (Mo. 1976), our state supreme court reviewed criminal commitments pursuant to the Missouri Criminal Sexual Psychopath Act. There, an equal protection challenge to that act was rejected, the court stating at page 44 of its opinion, “ ‘[tjhere can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society from the dangers of significant antisocial acts * * ” This language is applicable to the instant case.

As authority for his second point, Davee relies on Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), in his argument that § 552.040 denies him equal protection. That case dealt with an Indiana statute which provided for an accused’s indefinite commitment upon a finding that the accused was incompetent to stand trial. The court found the Indiana law denied equal protection because it applied more lenient commitment standards and more stringent release standards to such an accused than those standards generally applied to persons not charged with crimes. In Jackson the court further ruled that due process requires that a person committed solely for incompetency to stand trial can be held only a reasonable time to determine whether a substantial probability exists that he will attain competency in the future. If no such probability exists, a civil commitment proceeding is required to be initiated or the person released.

Davee was not adjudged incompetent to stand trial. Rather, Davee was tried and acquitted on the specific ground of mental disease or defect excluding responsibility. Jackson does not apply to the special class of persons in which Davee is placed, that special class being those who have committed antisocial acts from which society is entitled to be protected.

The judgment is affirmed.

All of the Judges concur.

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

      . The applicable part of § 552.040(1) provides: “No person shall be released from such commitment until it is determined through the procedures provided in this section that he does not have and in the reasonable future is not likely to have a mental disease or defect rendering him dangerous to the safety of himself or others or unable to conform his conduct to the requirements of law.”

      . As was pointed out in State v. Montague, 510 S.W.2d 776, 779-780 (Mo.App.1974), the trial court, not the treating physicians, is vested with the ultimate decision as to whether evidence presented at a duly constituted hearing establishes that the conditions for release, as prescribed by § 552.040, have been met. Prior to enactment of that statute in 1963, authorities of the institution wherein a person acquitted of a crime on the ground of insanity was committed had power to discharge him without order of a court. See § 546.510 RSMo 1949, V.A. M.S., and Richey v. Baur, 298 S.W.2d 445 (Mo. banc 1957).

      . Sec. 552.040(1) commits a defendant in a criminal case who is acquitted on the ground of mental disease and defect to the division of mental diseases. A person committed in this manner may not be released until the procedures for his relief, as specified in § 552.040, are met. The decision as to the type of treatment to be afforded such a person must be made by the mental health personnel. If circumstances exist whereby traditional treatment methods are unnecessary for a particular patient, although that patient does not qualify for release, it may befall the division of mental health to establish treatment programs of a less traditional nature. A treatment program of containment and observation may be required for a particular patient even though traditional medication or therapy is no longer necessary for him. The duty of meeting the needs of one committed pursuant to § 552.040 lies with the division of mental diseases notwithstanding that its personnel may conclude that traditional treatment programs of medication and therapy are unnecessary for that patient.

      . Sec. 552.040(4) provides, in part: “The committed person or the superintendent of a hospital where the person is committed may file an application in the court where the person was tried, seeking an order releasing him conditionally or unconditionally. . . . Any order denying the application shall be without prejudice to the filing of another application after one hundred eighty days from the denial of the prior application.”

      . See §§ 202.730 and 202.740.

      . Aspects other than release procedures of § 552.040 have been considered and upheld as to due process and equal protection considerations in State v. Kee, 510 S.W.2d 477 (Mo. banc 1974) and State v. Kent, 515 S.W.2d 457 (Mo. banc 1974). The adequacy of the release provisions of § 552.040 was partially relied upon by the court in State v. Kee, supra, in reaching its decision. 510 S.W.2d at 483-84.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    Glennda CARVER, Petitioner-Respondent, v. John Scott CARVER, Respondent-Appellant.
    No. KCD 28779.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 31, 1977.
    Application to Transfer Denied Dec. 19, 1977.

      J. R. Fritz, Lamm, Barnett, Crawford & Fritz, Sedalia, for respondent-appellant.
    Adam B. Fischer, Durley, Keating & Fischer, Sedalia, for petitioner-respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

These appeals from motions to modify a divorce decree were consolidated. The mother’s appeal from the motion for child support was dismissed. Pending is the father’s appeal from his motion seeking a judicial determination of his right of reasonable visitation. The sole issue is the propriety of the trial court’s denial of the father’s request that he be permitted to exercise his right of visitation in the State of Pennsylvania where he resides.

The parties were divorced in 1974. The decree was entered on the mother’s petition, the father defaulting. Service was by substituted service, and no order respecting child support was entered. The parties owned a home and personal property in Pennsylvania; and, after the decree of divorce was entered, the parties entered into negotiations for the resolution of the property matters, visitation, and support. The mother was represented by a Pennsylvania lawyer, but the husband undertook to represent himself. These negotiations took place after the decree of divorce and were reduced to a formal written contract which is in evidence. The agreement was drafted by the Pennsylvania lawyer representing the mother. In substance, the agreement provided for the sale of the property and the equal division of the proceeds after satisfaction of indebtedness and payment of expenses. The contract bound the father to pay $125 per month child support to be increased to equal 15% of gross wages earned by the father if his salary increased. The agreement recited the mother’s right to custody subject to the father’s right of visitation for six weeks in the summer and one week during Christmas, the parties to alternate Christmas day. The father was to pay costs of the child’s transportation, and support payments were to continue during visitation periods. The parties agreed to each insure their own lives for $10,000 with the child as beneficiary.

The apparent resolution of the dispute did not long endure. In September, 1974, the father wrote a letter to the mother’s attorney in Pennsylvania soliciting him to represent the father in a challenge to the mother’s custody. The letter suggests that the dispute be transferred to Pennsylvania by the device of filing the custody action there while the child was in Pennsylvania. The father was in doubt about the legality and conceded that such action might be unscrupulous. He then requested the lawyer’s advice. The mother offered this letter in evidence in this proceeding, and the only possible inference is that the Pennsylvania lawyer sent it to the mother. The Decern-ber, 1974, and January and February, 1975, checks sent for support were never cashed, or were returned, as was the plane ticket for the December visitation. The mother filed an application under the reciprocal act to require the father to support the child, and the Pennsylvania court ordered a payment of $117 per month, which the father paid until the date of the hearing.

What has been thus far stated is all a part of the record in this case, but it does not appear in that chronological order. It has been so stated in this opinion to put in perspective the witnesses’ testimony and the proceedings in the hearing on the motions.

The testimonial evidence in this case was presented in a very fragmented and disjointed fashion. The record reflects considerable acrimony between counsel and understandable impatience by the court with both counsel. The testimony was begun in late morning and, by reason of other settings, interrupted at noon to be continued at 2:30 p. m. At the time of the noon recess, counsel for the father, referring to a recess earlier occurring, indicated the trial court had prejudged the case and attempted to make a record. The attempt resulted in the court making a statement in the record. The following portions indicate the tenor of the court’s remarks:

“THE COURT: My position was, I have heard all of the petitioner’s evidence. You now tell me, after that conference, you have additional redirect to put on. I indicated that in view of the problems that the Court has in interstate transportation, that my experience has been grossly unsatisfactory. And in those limited cases in the past, where I have granted permission that the child be taken out of the jurisdiction for visitation purposes, that strong protective measures should be required, such as posting bond, cash money, in the amount sufficient to cover the living expenses and attorney’s fees of the other party, the primary custody that would have to go to the other State to secure custody of the child. Off the top of my mind, I mentioned the figure of twenty-five hundred dollars.
There are thousands of cases where the non-custodial parent has taken a child out of the jurisdiction of the Court with exclusive jurisdiction, or kidnapped the child and refused to return them to the jurisdiction of the Court. . . . The man has written to this Court many times, making numerous compiaints about the lawyers in this State, in this County, about the Prosecuting Attorney, and I am not inclined at this point in the proceedings — no evidence is shown why this visitation should occur in Pennsylvania. So my statement stands at this point in time. I am not inclined to permit out-of-State visitation.”

The trial court had earlier, at the very outset of the hearing, referred to this correspondence as follows:

“THE COURT: Give me that address again. I notice I corresponded with this fellow at Fitzwater Road, Willow Grove, Pennsylvania.”

Further demonstrating the tenor and flavor of the hearing, another transcript reference is required. When the husband was testifying after the noon recess, the following occurred:

“Q Since that agreement, you have exercised visitation with Andrea one time, and that was the summer of ’74,1 believe your testimony was?
A Yes. Yes. That is correct. I think it is perhaps pertinent to add—
THE COURT: I don’t want any narratives from this witness. I was waiting for an objection. It is obviously a narrative of this witness and not responsive to any question.”

Further, in a colloquy between counsel as to the introduction of the letter to the Pennsylvania lawyer, the court interjected:

“It does constitute a very low opinion of the Courts of this State and the Judges thereof.”

The attitude of the court is further indicated by his remarks at the conclusion of the evidence at approximately 7 p. m.:

“Now, I have tried, I have listened for at least an hour and a half this morning. I was accused by counsel for foreclosing his right to listen to evidence. I have been listening to evidence from four until seven p. m. I don’t think, even in the City of Brotherly Love, that any family Court sits this late.
Now, there is a nation-wide problem, as I have commented before, about fathers kidnapping, or other parents, kidnapping children from the custodial parent. There is evidence in this record that they have tried to contract. This Court reserves exclusively the right to determine child custody. And every trial Court in the State of Missouri does it. No private agreement is binding on this Court regarding any welfare of the children.”

The obvious impatience of the trial court is understandable in the light of the record in this case. There are pages and pages of colloquy between counsel, and the testimony actually given is quite short and could have been presented in a relatively short time. The record also indicates the trial judge had been involved in a jury trial the preceding day which ran into the late evening hours.

As noted, the relevant testimonial evidence on the issue of visitation was very limited. The father testified that he had facilities to care for the child at his home in Pennsylvania, that they had gotten along well on the occasion when visitation occurred there. He pointed out that he had obeyed the agreement to the letter. He asserted he would respect the mother’s wishes as to asserting his views to the child. The mother testified that she was not concerned about his care and custody of the child for short periods, but was concerned about his “influence” on the child if he had extended rights of visitation. She expressed concern about the child traveling alone by plane.

The parties on this appeal do not question the right of the father to visitation. The sole question at issue is the-place and scope of the visitation. The parties argue the issue as one of abuse of discretion. Abuse of discretion has been defined: “An abuse of discretion is an erroneous finding and judgment which is clearly contrary to the facts . . . and circumstances before the court — a judicial act which is untenable and clearly against reason and which works an injustice.” State v. Stubenrouch, 499 S.W.2d 824, 826 (Mo.App.1973); State v. Letourneau, 515 S.W.2d 838, 844 (Mo.App. 1974).

The question of whether review is by the standards of Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), or as a review of judicial discretion is academic. This court either weighs the facts and circumstances before the court and finds that the judicial act is untenable, clearly against reason and works an injustice, or exercises a power to set aside a judgment on the ground that it is against the weight of the evidence, such power exercised with caution and a firm belief that the judgment is wrong.

So viewed, this court has come to the conclusion that the judgment in this case must be modified. In so concluding, the unquestioned finding that the father is entitled to an eight day unsupervised visitation on two separate occasions each summer must be taken to mean that the trial court did not find that the mother’s concern as to the possibility of emotional or physical harm was justified under the evidence. The improper imposition of the father’s beliefs as well as physical harm to the child could as well occur in Missouri as in Pennsylvania. If the concern of the court was that the father could not be trusted to return the child to the custody of the mother, the order as made would not have precluded that possibility. The father, during an eight-day period of visitation, could easily remove the child from the State. It seems apparent that the father’s predilection to unfortunate comments about the bench and bar and his ill-advised comments concerning the possibility of instituting a custodial litigation in Pennsylvania may have had an impact on the trial judge, resulting in the limitation of the visitation to the State of Missouri.

The trial judge’s comments concerning the difficulties of enforcing subsequent orders had support in the decisions. Northrup v. Sieve, 517S.W.2d 470 (Mo.App.1974). The court there stated the rule as follows:

“While it is ordinarily against the policy of the law to permit the removal of a minor child to another jurisdiction because of the difficulty of enforcing subsequent orders, such policy is never allowed to stand in the way of the best interests of the children and must give way to the higher policy of permitting visitation when it clearly appears that such removal is for the best interests of the children. Numerous decisions recognize that the natural parent may remove the children to another state or even a foreign country if it is made to appear that the welfare of the children will be subserved thereby. . . . The courts encourage the continued interests, love and affection of divorced parents for the children and strive to afford to the children ample opportunity to have close contact with both parents as the children mature.” (517 S.W.2d at 474).

Fago v. Fago, 250 S.W.2d 837 (Mo.App. 1952), a much older case, permitted out-of-state visitation upon the basic facts very similar to the present case, and Northrup indicates that the higher policy is to permit visitation where possible.

The decree should be modified to permit the father some visitation in Pennsylvania. As to the extent of the visitation, the agreement between the parties is relevant. The mother testified that she was coerced in the execution of the agreement. The circumstances and the agreement, however, do not support that assertion. Her Pennsylvania lawyer drafted it; the father was not represented and did not know until visitation was refused that, absent a court order embodying the provisions as to visitation, they were not enforceable. He proposed an escalating child support payment and insisted on insurance for the benefit of the child. The mother did not have to agree; she had the right to pursue her remedies, absent the agreement, to require the sale of the real estate. It seems appropriate to order that the visitation rights of the father be defined generally as stated in the agreement.

The cause is reversed and remanded with directions to enter an order as to visitation as follows:

John Scott Carver shall have the right of visitation with the minor child, Andrea Nicole Carver, for a period of thirty days during the summer vacation of the child’s school year, such visitation to permit him to remove the child from the State of Missouri. The parties shall agree upon the specific times for the exercise of such visitation, but in the event they do not agree, the visitation shall be for the thirty-day period ending two weeks before the beginning of the fall term of school. And John Scott Carver shall further have the right of visitation without the State of Missouri for a period of seven days during the Christmas school holidays, said week to either begin two days following Christmas or end two days prior to Christmas, depending upon the school vacation period and the day of the week upon which Christmas falls. John Scott Carver shall pay the costs of transporting the child from her residence to his residence and the cost of returning her. The support payments shall continue during any month or part of the month that visitation is exercised.

All concur.


author: KELLY, Judge.

text:
    INTERTHERM, INC., Plaintiff-Appellant, v. CORONET IMPERIAL CORPORATION, Defendant-Respondent.
    No. 37452.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 11, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.
    Application to Transfer Denied Dec. 19, 1977.

      Isaac E. Young, Maplewood, Sylvan H. Robinson, Clayton, for plaintiff-appellant.
    Rodney Weiss, Don R. Sherman, Rosenberg, Weiss, Goffstein, Kraus & Seigel, Clayton, for defendant-respondent.
   KELLY, Judge.

In this contract action the appellant sought damages in the sum of $43,797.96 and the respondent counterclaimed seeking $18,421.00 allegedly due and owing to it for merchandise delivered to the appellant under the terms of the contract but not paid for. The cause was tried to the trial court without a jury and judgment was entered against the appellant on its cause of action and for the respondent on its counterclaim in the sum prayed for, i. e. $18,421.00, together with interest thereon at the rate of 6% per annum from May 5, 1970 and its costs. Appellant appealed. We affirm.

Respondent (hereinafter Coronet) is a corporation which manufactures dishwasher units primarily for the residential home building, apartment and condominium market. Appellant (hereinafter Intertherm) is a corporation which is engaged in the business of supplying various items to the mobile home industry. On October 1, 1969, these parties entered into an agreement prepared by Coronet’s sales manager, Mr. Schultz, whereby Coronet granted to Inter-therm exclusive rights to sell in the United States and Canada to the Factory Built and Mobile Home Industry and Recreational Equipment Industries a built-in dishwasher it manufactured. In consideration for this exclusive right of sale, Intertherm agreed to purchase from Coronet, at an agreed upon price per unit, 1500 built-in dishwasher units within 60 days of the date on which the agreement was executed. Paragraph 7 of the agreement provided that either party could terminate the agreement, with or without cause, upon written notice mailed or delivered to the other party to the agreement within 120 days of the effective date of termination. Paragraph 8 also provided that upon termination of the agreement Intertherm had the right, after inspection by Coronet, to return Intertherm’s inventory of Coronet Dishwasher Units “which in Coronet’s sole judgment, (were) acceptable as salable and do not entail any additional cost whatsoever to Coronet.”

The parties entered upon the performance of the agreement but when sales did not proceed as Intertherm expected, a letter dated June 17, 1970, was sent to Coronet notifying it that Intertherm was exercising its right to terminate the agreement. On November 5, 1970 and again on December 4, 1970, Intertherm requested that Coronet inform it where to return the dishwasher units it had on hand. Coronet replied by letter of December 9, 1970, that the units were not returnable, but did not advise Intertherm why this was so. Fred Martin, Vice-President in charge of sales for Inter-therm, inquired why the dishwasher units were not returnable and was told because the Coronet label had been replaced by the Intertherm label and Coronet would incur some additional costs removing those labels.

On December 29, 1970, Intertherm instituted this litigation resulting in an unfavorable judgment.

On appeal, although Intertherm in its Points Relied On portion of its brief raises two Points and numerous sub-points, reduced to their simpler allegations of error they are, that the judgment of the trial court is erroneous and should therefore be reversed and a judgment entered in its favor on its cause of action and against Coronet on its counterclaim because it is based on erroneous (1) findings of fact and (2) conclusions of law.

Review of this court tried case is governed by the standards enunciated in Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976) and the judgment of the trial court must be sustained unless the reviewing court finds that the judgment is (1) unsupported by substantial evidence, (2) is against the weight of the evidence, (3) is an erroneous declaration of the law, or (4) is an erroneous application of the law. Appellate courts are further warned that they should exercise the power to set aside a decree or judgment of the trial court 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.

The bone of contention between the parties is their respective rights and duties under the terms of paragraph eight of the agreement. Intertherm contends that inherent in the phraseology of this paragraph is the term “damaged dishwasher units” and that Coronet, upon termination of the contract under paragraph 7 of the agreement, was duty bound to accept the return of all dishwasher units in Intertherm’s inventory except those which were damaged. According to Intertherm, the terms “after inspection” in this paragraph are of significance, because they would not be necessary to the contract unless they were put into the contract by the drafter of the contract, Mr. Schultz, of Coronet, so that Coronet could inspect the dishwashers prior to their return to ascertain whether they were damaged.

On appeal, Intertherm attacks the trial court’s Findings of Facts 5, 6, 7, 8 and 9. These are:

“5. That the agreement of October 1, 1969, provided for termination by either party upon the giving of 120 days written notice, and further provided that Intert-herm could return to Coronet those dishwashers purchased from Coronet which, in Coronet’s sole judgment, were acceptable as saleable and which would not entail any additional cost to Coronet.
“6. That on June 17, 1970, Intertherm terminated the agreement and attempted to return to Coronet 1305 dishwashers out of the original 1500 dishwashers purchased; that Coronet refused to accept the return of such dishwashers; and that Coronet acted reasonably and in good faith in refusing to accept the return of such dishwashers.
“7. That it was not necessary, nor was Coronet required, to inspect the 1305 dishwashers in order to make a determination that the dishwashers were not saleable and would have entailed additional cost to it.
“8. That the dishwashers were not readily marketable and were not saleable as such and the acceptance by Coronet of the 1305 dishwashers would have entailed additional cost to Coronet.
“9. That under the terms of the agreement of October 1, 1969, Coronet was neither obligated to, nor required to, accept the return of the 1305 dishwashers.”

The attacks against each of these findings of fact by the trial court are couched in essentially the same terms and would either insert into the terms of the agreement the words “undamaged,” or they comprise arguments that there was no evidence to support the finding that Coronet acted in good faith in refusing to accept return of the dishwashers. Objection is made to the use of the term “marketable” in Finding No. 8 because, Intertherm contends, there is no evidence to support this finding and the term is found nowhere within the contract itself, so that in making this finding the trial court “rewrote a new and different contract and misconstrued and destroyed the intent of the parties.”

In support of its interpretation of paragraph 8 that the word “damaged” must be read into the agreement, Intertherm at trial offered the testimony of its national sales manager in 1969, William Atteridge, who testified that in the Fall of 1969, he was approached by E. J. Schultz, Coronet’s sales manager at that time, relative to the feasibility of Intertherm merchandising Coronet’s dishwashers in the mobile home field. A number of meetings followed and culminated in the execution of the agreement of October 1, 1969. During these preliminary negotiations Mr. Atteridge discussed with Mr. Schultz Intertherm’s right to return the merchandise it would purchase from Coronet for resale to the mobile home industry. On the day the contract was executed, Mr. Schultz brought the contract to him at In-tertherm’s office and prior to signing it for Intertherm, Mr. Atteridge questioned Mr. Schultz about paragraph 8 of the agreement. Mr. Schultz “indicated that for some reason were we to bring back these units we would have to check them over for damage so that we would have to rework them, put new parts, in order to put them back out again, . . . ” Mr. Atteridge executed the contract for Intertherm, but not before he made a handwritten change on it with respect to the terms of sale, i. e. “1% Discount Ten/30 day net,” and both he and Mr. Schultz initialed this change.

Mr. Schultz did not testify at trial. Mr. Hilleman, Coronet’s president, testified that Mr. Schultz was no longer in the employ of Coronet and that he did not know Mr. Schultz’s whereabouts.

On the basis of this testimony In-tertherm argues that inasmuch as Mr. At-teridge’s credibility was unchallenged the trial court erred in completely disregarding it. In oral argument Intertherm’s counsel conceded that in a court-tried case the trial judge, as the trier of the facts, may disbelieve any witness. The trial court in a court-tried case is the arbiter of the facts; it may believe or disbelieve oral evidence and the fact that the testimony is uncontra-dicted is not in any way decisive. Miller v. Gayman, 482 S.W.2d 414, 420 (Mo.1972); Labor Discount Center, Inc. v. State Bank & Trust Company of Wellston, 526 S.W.2d 407, 421[4] (Mo.App.1975). This argument is without merit.

Intertherm, in its own case, adduced evidence that its labels had been placed on the dishwashers in its inventory and which it wanted to return to Coronet. Fred Martin, Intertherm’s Vice-President in charge of sales, testified that on December 21, 1970, he wrote a letter to Mr. Hilleman of Coronet to the effect that the units would be returned in the original cartons at no cost to Coronet, freight prepaid, and that Inter-therm would take care of the labels. In his testimony, Mr. Hilleman enumerated the reasons why Coronet would not accept return of the dishwashers. These were, the quantity and the “configuration;” the latter the major reason and was occasioned by changes in local building and residential plumbing codes in some areas of the United States which would require tooling, engineering and design changes if the dishwashers were to be made salable. Without these changes the dishwashers could not be sold to the home building industry, he testified.

The term “salable” is defined in Webster’s Third New International Dictionary (1971) as “1: Capable of being sold; fit to be sold; marketable, vendible.” It is a term used in everyday conversations. In contending that this paragraph of the contract was ambiguous and that the term “salable” as employed by Coronet was intended to include all of those dishwashers except those dishwashers which were not salable because they were damaged, Intert-herm, as the plaintiff in the trial court, assumed the burden of proof. The only evidence it adduced in support of this contention was the testimony of Mr. Atteridge and the trial court chose to disregard that evidence and there was no further evidence to support Intertherm’s argument in this respect. We have already held that the trial court had the right to disregard Mr. Atteridge’s testimony as to his understanding of the word and what Mr. Schultz had told him.

In interpreting paragraph 8 to ascertain the intent of the parties, the trial court, we believe, interpreted its terms in accord with the rule in Restatement of Contracts, Second § 229(a), Tentative Draft No. 9 (1973), that “an interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, “unlawful or of no effect”. In doing so, the trial court concluded that the right of Intertherm to return the dishwashers it was unable to sell to the mobile home market was subject to a condition which, according to the terms of the agreement, was within Coronet’s discretion so long as said discretion was exercised in good faith and not arbitrarily. There was, in our opinion, substantial evidence to support the trial court’s finding that Coronet acted reasonably and in good faith in refusing to accept the return of these dishwashers. We hold that there is no merit in Intertherm’s attacks on Findings of Fact 5 and 6.

Intertherm’s attack on Finding of Fact No. 7 of the trial court is essentially that the trial court has ignored the meaning of the express language of the contract and more specifically the meaning or significance of the words “after inspection by Coronet” by expanding the application of the language to the marketability of the dishwashers and to additional costs entailed in such marketing and by ignoring the un-contradicted testimony of Intertherm’s witnesses. Once again Intertherm argues that the significance of the terms “after inspection by Coronet” means that “the parties agreed that the goods were saleable if they were undamaged.” The fallacy of this argument is that the trial court did not ignore these words in the contract as is evident from a reading of the Finding. What the trial court did do was determine that “sale-able” did not mean “undamaged,” that Coronet could refuse to accept the return of any goods which were not salable, and under the circumstances of this case, no inspection was required to ascertain the sala-bility of the merchandise. This right of inspection was incorporated in the agreement solely as a benefit for Coronet, and as such, it was waivable by Coronet, except when a waiver would affect Intertherm’s rights. Campbell v. Richards, 352 Mo. 272, 176 S.W.2d 504, 505[1] (1944). The trial court concluded, correctly we think, that Coronet’s waiver of its right to inspect did not adversely affect Intertherm’s right of return where, as here, inspection was unnecessary for a determination of the “saleability” of the dishwashers.

Intertherm contends that the trial court in Finding of Fact No. 8, when it interpreted the word “saleable” to mean “marketable” although the contract itself did not contain the word “marketable,” and the undisputed evidence was that the word “saleable” meant only “undamaged merchandise,” rewrote a new and different contract for the parties.

We conclude that this argument is specious. The term “marketable” is defined in Webster’s Third New International Dictionary (1971) as follows:

“Marketable 1: fit to be offered for sale in a market; being such as may be justly and lawfully sold or bought . . .2: of or relating to buying or selling . b: enjoying a high degree of liquidity.”

The term “marketable” is, we believe, employed in the context of this Finding of the trial court as a synonym for the term “salable.”

We have already disposed of Intertherm’s argument with respect to evidence it contends was “undisputed” and need not repeat our comments on that subject further.

Intertherm’s attack on Finding of Fact No. 9 is that there is no substantial evidence to support said finding and that it' is against the weight of the evidence because it is based on erroneous findings and misconstructions embraced in Findings of Fact Nos. 5, 6, 7 and 8. Our disposition of In-tertherm’s attacks on those Findings of Fact likewise dispose of this contention and we hold it to be without merit.

Throughout its attack on Findings of Fact Nos. 5, 6 and 8 Intertherm relies on argument that the trial court erred in that it failed to construe the terms of the agreement against Coronet, whose agent prepared the document. Restatement of Contracts, Second § 232 states that a meaning which operates against the draftsman is preferred in choosing among the reasonable meanings. The application of this rule of construction and interpretation necessarily presupposes that there is more than one reasonable meaning for the term to be construed or interpreted. Comment 1 to this section in the Restatement further states that there is a sound rationale supporting the effect of the rule “(i)n cases of doubt . so long as other factors are not decisive.”

What Intertherm seeks to do here is incorporate into the word salable, the adjective “undamaged.” Had the trial court believed Intertherm’s evidence it might have done so. However, it exercised its right to disbelieve that evidence and we do not find that in doing so it was guilty of error. To hold as Intertherm would have us do, we would have to direct that the trial court should have entered a judgment based upon evidence it disbelieved only because the contract was drafted by an agent of Coronet. This we will not do.

Turning now to Intertherm’s contention that the judgment is based upon erroneous conclusions of law, the Conclusions under attack are Conclusions of Law Nos. 1, 2 and 4. These read:

“1. The Court finds that the agreement of October 1, 1969, and more specifically Paragraph 8 thereof, is clear and unambiguous, and that parol or extrinsic evidence may not be used to vary, alter, or contradict an unambiguous written contract.
“2. The Court finds that when the words found in a contract are plain and free from ambiguity, oral evidence of the intent of the parties should be excluded; nevertheless, the cause being tried without a jury, the Court allowed into evidence such oral or parol evidence. Having considered such evidence, the Court further finds that the intent of the parties was consistent with the express written terms of the contract.
“4. The Court finds that a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by the evidence of any prior agreement or of a contemporaneous oral agreement.”

The initial attack on Conclusion of Law No. 1 is that under the common law in order to show the real intent of the parties, parol or extrinsic evidence was properly admissible regarding the prior and contemporaneous negotiations, discussions and understandings of the parties leading up to and attending the signing of the agreement as prepared and drafted. This attack on the Conclusion is moot because the parol evidence was admitted and considered by the trial court but found to be without sufficient probative value to support the plaintiff’s case. The gist of Intertherm’s complaint, as we deduce from argument on this Point, is not that the trial court did not permit the evidence to come in, but, rather, that the trial court chose to disbelieve it.

Intertherm does not contend that there is here present a patent ambiguity; it concedes that its evidence on this issue was admissible only to resolve a latent ambiguity. “Latent ambiguity” has been defined in Missouri as one which “ . . . exists where a writing presents no ambiguity, on its face, but when it is sought to apply the words used to the subject matter, it is found that they do not correctly describe or clearly apply to it.” Meinhardt v. White, 341 Mo. 446, 107 S.W.2d 1061, 1064 (1937); Prestigiacamo v. American Equitable Assur. Co., 240 Mo.App. 839, 221 S.W.2d 217, 221[4] (1949). In Hardy v. Matthews, 38 Mo. 121, 124 (1886) our Supreme Court said that “(a) latent ambiguity is where you show that words apply equally to two different things or subject matters, and then evidence is admissible to show which of them was the thing or subject matter intended.” “It is undoubtedly true that ‘(t)he most common form of latent ambiguity arises where an instrument contains a reference to a particular person or thing, and is thus apparently clear, but it is shown by extrinsic evidence that there are two or more persons or things to whom or to which the description might properly apply.’ ” 32A C.J.S. Evidence § 961 b(3), p. 430; Hardin v. Ray, 404 S.W.2d 764, 770 (Mo.App. 1966). While there are other circumstances where the latent ambiguity exception to the parol evidence rule may have a proper place, this is not one of them. See Prestigiacamo v. American Equitable Assur. Co., supra; Kast v. Kast, 361 Mo. 623, 235 S.W.2d 375 (1951). The agreement under consideration plainly and unmistakably committed the return of the merchandise to those dishwashers which were salable. What Intertherm sought was to create an ambiguity where, in fact, none existed, and incorporate into the agreement the words “undamaged and saleable dishwashers.” The trial court was not guilty of error in finding that there was no latent ambiguity, nor in exercising its prerogative of disbelieving the testimony of Mr. Atteridge, which in fact, it did admit and consider.

With respect to Conclusion of Law No. 2, once again Intertherm relies on its charge that the trial court “deleted” from the contract the terms “after inspection” and ignored its parol evidence of intent of the parties. This is nothing more than a reiteration of its prior complaints and like them, is without merit.

Conclusion of Law No. 4 is in error, In-tertherm claims, because its parol evidence did not contradict the agreement but was required to explain the real intent of the parties with respect to the meaning of paragraph 8 within the purview of § 400.2-202(b) RSMo.1969 and because the transaction constituted a “sale or return” under § 400.2-326 RSMo.1969.

In the argument on this point Intertherm once again contends that Mr. Atteridge’s testimony regarding his discussions with Mr. Schultz explained the true intent of the parties and was evidence of consistent additional terms admissible under subparagraph (b) of § 400.2-202 RSMo.1969 and was, therefore, properly admissible. The trial court so ruled; but simply did not believe this testimony.

Intertherm relies on § 400.2-326 RSMo. 1969 for the proposition that this transaction is a “sale or return,” because Intert-herm’s reticence to buy the merchandise was overcome only by the seller’s agreement to take back the dishwashers in lieu of payment if Intertherm failed to resell them. Therefore, the argument proceeds, “without such a provision and without Schultz’s explanation of the true meaning and real intent of the language he drafted and prepared in paragraph 8, the contract would never have been executed by Intertherm.” For those reasons, Intertherm contends, Mr. At-teridge’s uncontradicted testimony regarding Mr. Schultz’s statements concerning the intent and meaning of the language should have been accepted by the trial court.

A “sale or return” is defined in § 400.2— 326(l)(b) as a sale wherein delivered goods may be returned to the buyer even though they conform to the contract, unless otherwise agreed, where the goods are delivered to the buyer primarily for resale.

Intertherm has not cited to us, nor have we found anywhere in the Uniform Commercial Code, any prohibition against the setting of conditions whereby the right to return of merchandise, in a “sale or return” contract, to the seller might be limited. Even under Intertherm’s construction of the contract Coronet would not be obligated to accept the return of any damaged dishwashers despite the fact that nowhere in the contract does the term “damaged” appear. Section 400.1-102(3) RSMo. 1969, specifically authorizes variation of the effect of the provisions of the Code with certain exceptions. We have here no circumstance which brings this agreement within one of the exceptions. Furthermore, § 400.1-102(4) and Comment 3 to said section clarify the phrase “unless otherwise agreed” as they appear in other sections of the Code, and are applicable here. “Unless otherwise agreed” was adopted as a drafting technique and emphasizes that not every set of facts will come within the four corners of any given rule. The phraseology of § 400.2-327, which describes special incidents of “sale or return” contracts, acknowledges that the option to return the whole or any commercial unit of the goods while in substantially their same condition might be varied by an agreement otherwise. We conclude that even in a “sale or return” contract the terms upon which a return of the goods must be accepted by the seller may be agreed upon by the parties so that the seller is not legally obligated to accept the return of all or a part of the commercial items which are the subject of the contract upon the termination of the contract unless they meet standards agreed upon between the parties to the contract. Intertherm’s argument that the term “saleable” as used in paragraph 8 of the contract referred only to undamaged dishwashers is untenable, because acceptance of that interpretation of the meaning of the term renders the entire contract clause superfluous in a “sale or return” contract. Section 400.2-327(2)(a) RSMo.1969 specifically provides that as a special incident to a “sale or return” contract “the option to return extends to . the goods while in substantially their original condition.” (Emphasis supplied). Damaged dishwashers hardly satisfy this condition for return of the merchandise. Therefore, Coronet’s right to refuse to accept the return of the damaged dishwashers was already embodied within the terms of the contract as written as a special incident thereto.

There is no merit to this Point.

We affirm.

GUNN, P. J., and JOHN L. ANDERSON, Special Judge, concur.


author: CLEMENS, Presiding Judge.

text:
    Ronnie BLADE, Movant-Appellant, v. STATE of Missouri, Respondent.
    Nos. 38419, 38866.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 11, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.
    Application to Transfer Denied Dec. 19, 1977.

      John M. Putzel, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

Appeal from denial of a Rule 27.26 motion. Seven indictments had charged mov-ant (hereafter defendant) with eleven crimes Defendant pleaded guilty in 1975 and 1976. The trial court accepted the pleas and sentenced defendant to concurrent 20-year terms.

Defendant moved to vacate the sentences and the court, relying on the guilty-plea records, denied the motion without a hearing. Defendant now files two consolidated appeals. He challenges the court’s failure to grant an evidentiary hearing and contends his guilty pleas were involuntary because his attorney failed to contact two named alibi witnesses. This, he argues, was ineffective assistance of counsel, entitling him to an evidentiary hearing on his Rule 27.26 motion.

Claims of ineffective assistance of counsel and involuntary pleas of guilty are “concomitant issues,” to be considered as one. Hulett v. State, 473 S.W.2d 410[2] (Mo.1971).

The scope of review of the denial of an evidentiary hearing on a Rule 27.26 motion is stated in Smith v. State, 513 S.W.2d 407[1] (Mo.1974): “A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” See also Voegtlin v. State, 546 S.W.2d 40[4, 5] (Mo.App.1977).

The first question is whether defendant states facts entitling him to relief. He claims he gave his attorney, Mr. Robert Hampe, the names of two alibi witnesses who would have testified defendant was with them at the time of the alleged crimes and that counsel neglected to contact these witnesses. Defendant fails, however, to specify to which of the crime or crimes the alibi would apply.

An accused has a constitutional right to effective assistance of counsel, including investigation and preparation of his case for trial. U.S.C.A.Const., Sixth Amendment; Thomas v. State, 516 S.W.2d 761[1] (Mo.App.1974). “The duty of counsel is to render such' assistance as is within the range of competence demanded of attorneys in criminal cases.” Coleman v. State, 542 S.W.2d 53[3, 4] (Mo.App.1976). The test of counsel’s effectiveness on a guilty plea is whether the representation was such that the plea was entered voluntarily and with understanding. Hall v. State, 496 S.W.2d 300[3] (Mo.App.1973).

Assuming the facts stated by defendant are true, he was deprived of effective assistance of counsel and thereby involuntarily entered a plea of guilty. In Hall v. State, supra, 496 S.W.2d 300 at [7], the court held defendant was deprived of effective assistance of counsel when his attorney engaged in plea bargaining without investigating the circumstances related by defendant indicating a defense to the charge of second degree murder. While refusing to lay down an absolute rule as to counsel’s duty to conduct an independent investigation before advising his client to plead guilty, the court concluded that, under the circumstances of the case, an investigation was warranted. In Thomas v. State, supra, 516 S.W.2d 761 at [3], the court held defense counsel’s failure to investigate claims of an alibi constituted a deprivation of defendant’s constitutional right to effective assistance of counsel. There, defendant had given his attorney the names of several alibi witnesses. The attorney never contacted them, gambling instead that certain pretrial motions would be sustained. In the instant case defendant alleges facts sufficient, if standing alone, to warrant an evi-dentiary hearing.

This leads to whether the guilty-plea hearing controverts defendant’s allegations. Seven indictments charged defendant with eleven crimes. Defendant appeared in court to plead guilty to six of the indictments. The trial court thoroughly questioned defendant as to the voluntariness of each plea. Defendant was healthy and free of the influence of drugs or alcohol; he had been previously convicted on a plea of guilty; he understood his constitutional right to trial, his Fifth and Sixth Amendment rights and the presumption of innocence; and he realized the court would pronounce sentence upon him. Thereupon, the court proceeded charge by charge and heard the prosecutor’s recited facts and defendant’s admission of guilt to each charge. Before accepting each plea the court reminded defendant of his preliminary questions. Further, the court repeated several of the preliminary questions before the sixth indictment was reviewed. With respect to each indictment, defendant admitted the facts of the crime charged and acknowledged he was satisfied with the advice and efforts of his attorney. Later, defendant pleaded guilty to the seventh indictment. The court repeated its exhaustive examination of defendant to insure his plea was voluntary. Defendant again admitted he was satisfied with his attorney’s services. The following exchange occurred:

THE COURT: I’m sure you have had many discussions with your counsel. Do you understand fully the advice that has been given you, both by Mr. Hampe and Mr. Beres in connection with some other charges?
MR. BLADE: Yes, sir.
THE COURT: Any questions in your mind about this advice?
MR. BLADE: No, sir.
THE COURT: Are you satisfied with that advice?
MR. BLADE: Yes, sir.
THE COURT: All right. Are you familiar with the efforts expended by your counsel?
MR. BLADE: Yes, sir.
THE COURT: Are you satisfied with those efforts?
MR. BLADE: Yes, sir.
THE COURT: I want you to search your mind at this point and I’ll ask you the question again because so many people file motions to vacate sentences in this court based upon a' lack of understanding or a complaint with the efforts of their attorneys or the advice given. Now is the time to complain to this court; not at some later date. Do you have any complaints at all?
MR. BLADE: No, sir.

The guilty-plea record indicates defendant entered his pleas voluntarily and with understanding. He had seven opportunities to complain but he expressed satisfaction with his attorney’s services on each occasion. In Haliburton v. State, 546 S.W.2d 771 (Mo.App.1977), defendant moved to vacate his sentence on the basis of ineffective assistance of counsel in connection with his plea of guilty. Among other things, defendant charged his attorney failed to interview available defense witnesses. The trial court denied the motion without a hearing and defendant appealed. The court affirmed because the guilty-plea record showed defendant was then satisfied with the advice and services of his attorney. Defendant Blade’s allegation of ineffective assistance of counsel is similarly contradicted by the record. Accordingly, the trial court’s denial of an evidentiary hearing on defendant’s motion was proper.

Defendant now denies the guilty-plea record refutes his allegations. First, he argues the record fails to reflect any inquiry by the court with respect to the specifics of the offenses charged. Defendant further faults the trial court for failure to question defendant about his knowledge of any possible defenses. Rule 25.04, YAMR, does not require explicit inquiries by the trial court but only a determination that the plea was entered voluntarily and with understanding. Jones v. State, 494 S.W.2d 659[4 — 6] (Mo.App.1973). The guilty-plea hearing record indicates defendant admitted guilt to each offense and voluntarily entered pleas thereon.

Defendant, however, contends the record is unreliable because his attorney instructed him to answer the court’s questions “in the negative,” stating, “this is the usual procedure in pleas of guilty.” In fact, most of defendant’s responses were in the affirmative. Even assuming defendant is alleging his attorney instructed him to lie, his argument fails. The record shows defendant had been convicted previously on a plea of guilty. He cannot claim complete ignorance as to “the usual procedure in pleas of guilty.” Furthermore, the court questioned defendant:

THE COURT: Are you guilty of this charge?
MR. BLADE: Yes, sir.
THE COURT: Are you telling me you are guilty for any reason other than you are in fact guilty?
MR. BLADE: No, sir.
THE COURT: Have you been threatened, intimidated or coerced in any manner, either directly or indirectly, to enter the plea of guilty?
MR. BLADE: No, sir.

Defendant had numerous opportunities to complain of interference or improper direction by counsel but voiced none.

Defendant cites Burgin v. State, 522 S.W.2d 159 (Mo.App.1975) in support of his claim his attorney’s instructions rendered his plea involuntary, but that case is distinguishable. In Burgin, defendant alleged his attorney promised him a two-year sentence and instructed him to lie to the court when asked whether such promises had been made. The trial court denied defendant’s Rule 27.26 motion without a hearing. The court remanded the case for an evidentiary hearing, finding the allegations, if true, would taint the voluntariness of the plea. Here, defendant fails to allege any such promise was made to him. We hold that the alleged instructions by defendant’s attorney, standing alone, do not taint the voluntary nature of his guilty plea.

The trial court’s denial of defendant’s Rule 27.26 motion without a hearing was not erroneous. Appointment of counsel is unnecessary where no hearing is required. Winston v. State, 533 S.W.2d 709[5] (Mo. App.1976).

Judgment affirmed.

DOWD and SMITH, JJ., concur.

      . # 75-681 — Carrying a Concealed Weapon, Illegal Possession of Schedule I Controlled Substance; # 75-682 — Carrying a Concealed Weapon; # 75-1972 — Carrying a Concealed-Weapon; Attempted Bribery of a Police Officer (2 counts), Illegal Possession of Schedule I Controlled Substance; # 74-2397 — Carrying a Concealed Weapon; # 74-2387 — Carrying a Concealed Weapon; # 74 — 2466—Robbery First Degree by Means of a Dangerous and Deadly Weapon; # 75-2460 — Assault with Intent to Kill with Malice.


author: TURNAGE, Presiding Judge.

text:
    In the Matter of the Contest of John Albert RODRIGUEZ of the Election of Mary Roberson to the Office of School Director of District One for a four-year term and John E. Kelley, Chairman, Robert W. Wallerstedt, Secretary, Samuel Epstein and William F. Dancy, members, Commissioners for the Board of Election Commissioners for the City of Kansas City.
    No. KCD 28920.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 31, 1977.
    Application to Transfer Denied Dec. 19, 1977.

      Douglas J. Patterson, Kansas City, for appellant.
    Ronald J. Stites, Koenigsdorf, Kaplan, Kraft, Fox and Kusnetzky, Kansas City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

This case involves a contest in the election of a director of the Kansas City School District. At the election held on January 20,1976, Mary Roberson was certified to be the winner by a vote of 1021 to 878 for John Albert Rodriguez. Rodriguez filed a notice of contest.

The circuit court found in favor of Rodriguez and ordered Roberson to vacate the office she had assumed and ordered Rodriguez installed therein. Roberson appeals.

On this appeal Roberson contends the evidence did not show any violation of the absentee voting laws. Reversed.

Subsequent to filing his notice of contest, Rodriguez took the depositions of Vivian Heide, Lydia Miller, Margaret Rasmussen and William C. Redpath. Rodriguez then filed a motion for summary judgment. Roberson also filed a motion for summary judgment.

Both parties agreed the depositions, together with the information supplied by the election commission pursuant to § 124.310, RSMo 1969, could be considered by the court. The election commission supplied information which gave the date the application for absentee ballot was received, the date the ballot was mailed, the date the voter received the ballot, the date the ballot was notarized, the name of the notary, the name of the person for whom the ballot was voted and the date the ballot was received by the election board.

Rodriguez contended in the trial court and renews such contention here, that he was entitled to summary judgment because violations of the absentee voting laws voided the ballots of 155 absentee voters. Rodriguez contends such violations consisted of the following:

I. The time and manner, mandatorily preserved by R.S.Mo. 112.020 of applying for absentee ballots has been flagrantly violated.
II. The making and subscribing to the affidavits provided and the transmission of the ballots, once sealed and marked, clearly violated R.S.Mo. 112.050.
III. The notarial oath, provided in R.S.Mo, 112.040 providing that the notary in the presence of whom the ballot was marked did not solicit or advise the voter, was grossly violated.

The three grounds urged upon the trial court, and repeated here, were not contained in the notice of election contest Rodriguez filed pursuant to § 124.250. However, it was held in Nash v. Craig, 134 Mo. 347, 35 S.W. 1001 (1896) that a notice of election contest can be amended in the same way as other pleadings. It was held in Scott v. Thornton, 484 S.W.2d 312, 314 (Mo. 1972) that on a motion for summary judgment the court could consider the broad scope of probable evidence which would authorize an amendment to the pleadings to conform to the evidence as revealed by the depositions and admissions on file. Since Rodriguez is entitled to amend his notice of election contest, in considering his motion for summary judgment the grounds which he urges here may be considered because they are based on evidence before the court through the depositions and information from the election board and would authorize an amendment to the pleadings to conform to the proof if the case were actually tried.

The court found the 155 ballots cast for Roberson and identified by Rodriguez were illegally cast and void. The court then found the vote to be 877 for Rodriguez, 866 votes for Roberson, and 871 votes for a third candidate. Roberson, of course, argues the 155 votes are legal and valid and should be counted as cast for her.

In 1969 the Legislature passed a new chapter on absentee voting. This chapter contains a comprehensive procedure for the application and the actual casting of absentee ballots.

Rodriguez fleshes out his first contention that the 155 ballots are void on the basis the application in each case for an absentee ballot was actually signed by the voter more than thirty days before the date of the election. The evidence showed Red-path and others took applications for absentee ballots to the Defender Townhouse and had them signed as early as October, prior to the election here in question which was held in January, 1976.

Section 112.020 provides any person qualified to vote an absentee ballot “may apply in person or by mail for an official ballot for the election district or precinct in which he resides. The application shall be made to the election authority within thirty days prior to election day. . . . The application made by mail shall be received not later than four p. m. on the fourth day before the election.”

Section 112.030 provides an application for an absentee ballot may be made on a blank furnished by the election authority and signed by the applicant or may be made in writing signed by the applicant, and sent by first class mail to the election authority. Upon receipt of each application within the time specified, the election authority is required to make a list of the names of the absentee voters whose applications have been received, and to post such list in a conspicuous place. The election authority is then required to mail an official ballot addressed to the absentee voter by certified mail with return receipt, or the election authority may cause the absentee ballot to be delivered in person.

From the above sections it is clear there is no provision which governs the date on which the application may or must be signed. The only requirement is that the application be made by mail or in person. The further requirement is that such application shall be made to the election authority within thirty days prior to the election, and, if made by mail, shall be received not later than 4:00 p. m. on the fourth day before the election. The application is not required to be dated nor is any affirmation required of the voter at the time the application is signed.

In Queenan v. Russell, 339 S.W.2d 475, 478[5] (Ky.1960) the court considered a statute which provided the applicant shall “make an application in writing and by mail * * * for an absent voter’s ballot.” The court stated, “The application must be considered as having been made when properly mailed . . . The court in that case concluded the date of receipt was immaterial. The important holding, as applied to the case under consideration, is the fact the application was considered to have been “made” at the time it was mailed. There is little difference between the Kentucky statute and the Missouri statutes so far as the wording concerning the making of the application and the provision that such may be done by mail.

Absent any provision in the statute governing the date on which the application may or must be signed by the applicant, this court holds the application is actually made when such application is mailed to the election authority or delivered in person.

Rodriguez does not contend the statute dictates a time at which the application must be signed, but argues the door is somehow open to an abuse of the absentee voting law by allowing persons to have applications in their possession, signed by others, and in their discretion mail such applications within the time allowed by law. It should be noted there was no evidence produced in this case which showed any application was mailed without the authority of the person signing the application, nor is there any allegation or proof that any signatures on any applications were not actually made by the person making the application. Nor is there any allegation or proof that the signers were unaware that the applications were for absentee ballots for the January election. On all these points, the only evidence offered by either party was the affidavit of 176 voters in which each swore he was aware the application he signed was for an absentee ballot for the School Board election of January 20, 1976, that when he signed he truthfully expected not to be able to go to the polls on January 20, 1976, that on said date he was disabled to go to the polls, and that he had authorized the worker to act for him in connection with the absentee ballot. Rodriguez did not challenge the contents of those affidavits and contented himself with the position that the mere fact of signing the application more than thirty days before the election is enough to invalidate the ballot so applied for. In short, there is no allegation or proof of any wrongdoing.

Rodriguez, in this point, as in other points, simply argues from speculation that harm could result from applications being procured by persons more than thirty days in advance of an election. It is difficult to imagine how any wrongdoing could occur under the proof before the court in this case. All the voters involved were residents of the Defender Townhouse, and the inference is clear such Townhouse is a residence for elderly persons. Section 112.010 provides any person who expects to be prevented from personally going to the polls on election day is entitled to vote an absentee ballot. However, the application for the absentee ballot need not even contain that statement. The application need only request an absentee ballot. It is not until the ballot is actually voted that the voter is required to make an affidavit by § 112.040 that he expects to be prevented from going to the polls because of absence from the county, illness, religious beliefs, or physical disability.

Further, if an application is signed more than thirty days before the election and the person signing the application has changed his mind about voting by absentee, he is not required to vote the absentee ballot when received by him. He is free at that time to ignore the ballot if he so desires. In short, the application performs only the function of causing an absentee ballot to be mailed to the voter. The application performs no function so far as the actual casting of a ballot is concerned. Thus, in this preliminary stage, the signing of an application more than thirty days in advance of the election, when such is not prohibited by law, did not and should not deprive that person of his right to vote by absentee ballot.

It is well to bear in mind the following statement quoted in State v. Holman, 349 S.W.2d 945, 947[2] (Mo. banc 1961):

Note what was said in Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629, loc. cit. 631(2): “Election laws must be liberally construed in aid of the right of suffrage.” This statement was quoted with approval by this court en banc in the case of Application of Lawrence, 353 Mo. 1028, 185 S.W.2d 818, loe. cit. 820. In the Nance case, supra, the court further stated that “The uppermost question in applying statutory regulation to determine the legality of votes cast and counted is whether or not the statute itself makes a specified irregularity fatal. If so, courts enforce it to the letter. If not, courts will not be astute to make it fatal by judicial construction.”

For these reasons it is concluded the signing of the application more than thirty days in advance of the election did not void the ballot subsequently cast by such applicant.

Under the second ground Rodriguez argues the affidavit described in § 112.040 was signed by the absentee voters but the blanks in the affidavit were actually filled in by Redpath or one of the other persons who notarized the ballots and that such ballots were then retained by the notary and mailed to the election authority from three to sixteen days later. Again, Rodriguez does not allege any actual wrongdoing in the marking or handling of the 155 absentee ballots. He only argues from speculation that wrongoing could have occurred. The court expressly found no fraud had been shown in the case.

Section 112.050 required the absentee voter to make and subscribe to the affidavit printed on the return envelope before any officer authorized by law to administer oaths. The affidavit contains blanks in which the name of the voter is to be inserted, his residence address and the precinct in which he lives and other similar formal information. At the end of this affidavit is a blank line under which the statute states “signature of voter.” Rodriguez states the blanks were filled in by the notary public but concedes the voter actually signed his name on the blank which required the signature of the voter. No reason is advanced and none is perceived as to why the filling in of the formal blanks to state the voter’s name, address and voting precinct should invalidate the ballot. The statute does not require these blanks to be actually filled in by the voter. The voter performed the only duty required of him by statute when he signed at the place required.

The further objection that the notary retained the ballot from the time it was signed and sealed by the voter for several days is likewise not controlled by law. Section 112.050 provides the envelope containing the absentee ballot shall be sent by mail or delivered in person by the voter to the election authority. To be counted the ballots here involved had to be received by the election authority not later than 4:00 p. m. on the day before the election. There is no contention any ballots contested in this case were received after the statutory deadline.

As in his first point, Rodriguez argues again that although no fraud or actual wrongdoing was proven, there was opportunity for such to occur. No authority is cited and none has been found which would authorize the invalidation of an absentee ballot on the basis of speculation. Apparently Rodriguez would invalidate these ballots on the premise the notary could have opened the envelope containing the absentee ballot and could have changed the marking on the ballot before he mailed it to the election authority. However, this is entirely speculation and no proof whatever was introduced to show that any ballot was tampered with in any fashion or that any actual wrongdoing whatever occurred. Not only is there an absence of any proof of wrongdoing, but it should be remembered the court expressly found no evidence of fraud or wrongdoing. In this circumstance, this court certainly may not void otherwise valid ballots simply for the reason that the procedure followed here would afford opportunity for the perpetration of fraud in the future. No violation of the statutory method of absentee voting has been shown to have occurred in this case on the ground here considered.

While Rodriguez does not directly contend the absentee voter is required to personally deposit his ballot in the mail, this court has nonetheless considered this argument. Section 112.050 does not require the voter to personally deposit his ballot in the mail. This question was considered in Sommerfeld v. Board of Canvassers, 269 Wis. 299, 69 N.W.2d 235, 238[3, 4] (1955) when the court stated:

If our statute is construed to mean that the voter shall himself mail the ballot or personally deliver it to the clerk, then the statute would defeat itself in the case of those who are sick or physically disabled. They would be unable to mail ballots except through an agent. Having made provision that these unfortunate people can vote, we cannot believe that the legislature meant to disenfranchise them by providing a condition that they could not possibly perform.

No statutory violation is demonstrated by the second argument advanced by Rodriguez to invalidate the 155 absentee ballots.

For his last argument, Rodriguez urges the persons who notarized the affidavit on the absentee ballot envelopes violated the certificate contained therein which was signed by the notary. The certificate required of the notary provides the affidavit was subscribed and sworn to before him and the affiant has exhibited the ballot to him unmarked and that such ballot was marked without the notary seeing or having knowledge of how it was marked, “and that the affiant was not solicited or advised by me to vote for or against any candidate or proposition. . . .” Rodriguez argues that Redpath was the notary involved in most of the 155 ballots and at some time prior to the time the absentee voters received their ballots from the election authority, Redpath had caused a letter to be distributed in the Defender Townhouse in which he made it known he was supporting Roberson in the School Board race. Rodriguez argues this constituted a violation by Redpath of the certificate he signed as a notary public. Rodriguez concedes the evidence does not show that any notary public solicited or advised any persons during the time the notary public was present with the person while they were marking their ballot and signing the affidavit. The only evidence Rodriguez relies upon is the letter which was sent at some time prior to the date the absentee ballots were received.

It is apparent the certificate signed by the notary applies only to the time during which the notary was with the absentee voter in his official capacity while the voter marked his absentee ballot. The prohibition against the solicitation of a voter applies to the notary public only while he is acting in his official capacity as an officer authorized to administer oaths. This is borne out by the designation under the line for his signature of “official capacity.” There is no prohibition as to the activities of the notary public while he is acting in a personal capacity at some time prior to the time he attends the absentee voters in his official capacity. This was not a situation in which the solicitation for the vote in a personal capacity and the attendance by the notary in an official capacity was so closely connected as to cause doubt as to the capacity of the notary at a given time. The letter stating Redpath’s views was received well in advance of the time the absentee ballots were marked and Rodriguez makes it clear he is not contending the proof shows any solicitation or advice to the voter at any time during the marking of the ballot or closely connected therewith. There is nothing shown under this point which would invalidate the 155 ballots.

Rodriguez tacitly concedes there may not be any violation sufficient to invalidate the 155 ballots under any one of his three grounds, but argues the cumulative effect of these grounds would cause their invalidation. It is difficult to perceive how the cumulative effect of these grounds could be any greater than each one standing alone. If none of the grounds standing alone would invalidate the ballots, then all standing together would not accomplish any greater result.

Rodriguez further argues isolated incidents with reference to other ballots and other violations allegedly committed by Redpath and other notaries. Obviously other incidents involving other ballots could have no effect on the ballots in question here.

The parties have argued at length whether the absentee ballot law is directory or mandatory. There is no necessity to consider such argument because the grounds alleged here to invalidate certain ballots do not involve the observance or violation of statutory provisions. Here the practices relied upon are not controlled by statute.

There is no indication Rodriguez has any additional evidence to present. The evidence presented does not show any grounds upon which the 155 ballots could be invalidated. For that reason the judgment is not supported by substantial evidence and cannot stand. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The judgment is reversed and the cause is remanded with directions to the court to enter judgment in favor of Roberson. The court is further directed to immediately order John Albert Rodriguez to give up the office of Director of the Kansas City School District and to deliver all books, papers, property and effects pertaining thereto to Mary Roberson. The court shall further direct the Kansas City School District to immediately install Mary Roberson as the duly elected member of that body from Sub-District One. Costs are assessed against Rodriguez.

All concur.

       All statutory references are to RSMo 1969, unless otherwise noted.


author: PER CURIAM.

text:
    Annabelle MARTIN, Plaintiff-Appellant, v. Vincent MOODY, Defendant-Respondent.
    No. 38431.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 18, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.
    Melba I. Párente, St. Louis, for plaintiff-appellant.
    Steven G. Schumaier, Carter, Brinker, Doyen & Kovacs, Clayton, for defendant-respondent.
   PER CURIAM.

This is an appeal from the judgment of the Circuit Court of St. Louis County dismissing Counts II and III of plaintiff-appellant’s petition and striking paragraphs 11 of Count I and 5 of Count II and III of plaintiff-appellant’s petition. By a separate Order, the order sustaining defendant-respondent’s Motion to Dismiss and Strike was made a final order for the purpose of appeal. This appeal followed.

A “Statement and Stipulation of the Record” was filed by the parties in lieu of the customary transcript of the record consisting of certified copies of the petition, the Summons and Return on Service of Summons, defendant-respondent’s Answer, Motion to Dismiss and to Strike, Notice of Hearing, Court memoranda of filing of same, that said Motions were argued and submitted, of the trial court’s ruling on said Motions, of designations of rulings on said Motions as a final order of appeal, Jurisdictional Statement, and Notice of Appeal to this court.

Plaintiff-appellant’s brief in this court is in violation of Rule 84.04 in the following respects:

1) plaintiff-appellant has failed o submit an indexed and paginated transcript as required by Rule 81.14(d), and
2) plaintiff-appellant has failed to furnish a statement of facts which complies with the requirements of Rule 84.04(c). The statement of facts contained in her brief is nothing more than a recitation of the procedural history of the case and a statement that the paragraphs ordered stricken from the petition contained plaintiff’s claim for damages for “emotional distress.”
3) Furthermore, plaintiff-appellant’s brief contains no page references to the transcript as required by Rule 84.04(h).

For these reasons, by authority of Rule 84.08, plaintiff-appellant’s appeal is dismissed for failure to comply with rules 81.-14(d) and 84.04(c) and 84.04(h).

All judges concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Raymond William SWINNEY, Defendant-Appellant.
    No. 37620.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 18, 1977.

      Stuart A. Cofman, Cofman, Townsley, Nissenholtz & Weinstein, St. Louis, for defendant-appellant.
    Preston Dean, Nanette K. Laughrey, Asst. Attys. Gen., John D. Ashcroft, Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Appellant, Raymond William Swinney, was convicted in the Circuit Court of the City of St. Louis of Assault with Intent to Kill with Malice in violation of § 559.180 RSMo.1969, and was sentenced to a term of confinement in the custody of the Missouri Department of Corrections for a period of fifteen years. He has appealed the judgment entered on the jury verdict. We affirm.

Appellant does not challenge the sufficiency of the evidence to support the jury verdict. Therefore, a short statement of facts will suffice for the disposition of his appeal. Appellant, whose alias was alleged to be Raymond Smallwood in the Indictment on which this case was brought to trial, and Lillian Smallwood, the prosecu-trix, were husband and wife; however, on March 9, 1974, the date on which this offense took place, they were not living together. On October 27, 1973, the appellant had assaulted the prosecutrix and had been charged in an Information filed in the Circuit Court for Criminal Causes of the City of St. Louis with the offense of assault with intent to maim with malice arising out of that occurrence. On the date of this offense the charge for the prior assault had not yet been brought to trial and was still pending, and Ms. Smallwood’s name was endorsed on the Information in the prior assault case as a witness for the State. On March 9, 1974, Ms. Smallwood returned to her home from an evening of entertainment during the early morning hours and when she opened the door to her home the appellant pulled her into the house, told her to be quiet and that he had come there to kill her. He asked if she would drop the charges arising out of the occurrence of October 27, 1973, and she told him she would, but once they arrived in the kitchen, appellant started stabbing her with a knife he had in his pocket. In all, he stabbed her thirty-five times on her face, arms, legs, back, chest and hands. The coat she was wearing at the time was identified, marked, received in evidence, but the State’s request that the jury be permitted to pass by counsel table to inspect the coat, was denied. There were numerous holes in this coat which Ms. Smallwood testified were not in the coat prior to the attack appellant made on her, and which were put in the coat while the appellant was assaulting her. Appellant stopped stabbing her when he said the police were coming and went to the front of the house. Another witness, a Mrs. Ophelia Williams, who lived next door to Ms. Small-wood, testified that she observed the appellant jump off the front steps of the house in which Ms. Smallwood resided, and that he was running.

Officer Jessie McClanahan, a police officer of the St. Louis Police Department, testified that he went to Fayetteville, North Carolina, on March 28,1975, took the appellant into custody and returned him to St. Louis.

Fred Studer, Deputy Clerk of Division No. 19 of the St. Louis Circuit Court for Criminal Causes, identified a court file in Cause No. 73-2809, wherein the appellant was charged by Information with assaulting Ms. Smallwood with fists and a broom handle with malice on October 27, 1973, read into evidence the contents of the Information and testified that the name of Ms. Smallwood was endorsed on said Information as a witness for the State.

After the jury had deliberated for approximately one hour, a note from the jury was brought to the trial judge by the Sheriff, requesting that the coat and pictures be brought to the jury, and the record shows that the trial court, over appellant’s objection, sent the coat and pictures to the jury.

On appeal, appellant contends that the trial court erred in the following respects:

1) admitting the testimony of James McClanahan over his objection because said evidence was evidence of another crime for which the defendant was not charged;
2) permitting the victim’s coat to be sent to the jury room over his objection;
3) in not submitting to the jury the instruction on common assault tendered by the appellant; and
4) in admitting into evidence over his objection “the testimony of State’s witness Fred Studer that defendant was on record as being charged by Information with an assault alleged to have occurred in October, 1973, which was evidence of a crime other than that charged.”

With respect to appellant’s first point, we conclude that said evidence was admissible to show flight, and was a question for the jury. State v. Barry, 501 S.W.2d 515, 518[1] (Mo.App.1973). Defendant, at trial, testified that immediately following the stabbing he “left out the back door” and “left town.” “Flight consists in leaving the scene or vicinity of the crime in order to avoid arrest and may be shown as a circumstance to indicate guilt.” State v. Dupree, 477 S.W.2d 129, 132[7] (Mo.1972); State v. Silvey, 296 S.W. 128, 131[10] (Mo. 1927). We rule this point against appellant.

Whether a jury may take exhibits into the jury room is a matter within the sound discretion of the trial court. State v. Connell, 523 S.W.2d 132, 138[15, 16] (Mo. App.1975). We find no abuse of discretion present under the circumstances in this case and rule this point against the appellant.

Appellant has failed to preserve his third point for review because he failed to comply with the requirements of Rule 27.-20(a) that a motion for new trial set forth in detail and with particularity the specific grounds or causes therefor. In his Motion for New Trial appellant contends “The Court erred in refusing to instruct the jury on common assault (MAI-CR 6.26) as requested by the defendant.” Appellant has failed to set out in his Motion for New Trial the facts in evidence he contends are sufficient to warrant an instruction on common assault. State v. Cheek, 413 S.W.2d 231, 238[17] (Mo.1967).

Appellant has also failed to preserve his fourth point for review because the point he now makes on appeal with respect to Fred Studer’s testimony is not the same objection made during the trial nor in his Motion for New Trial. The transcript of the record demonstrates that the objection made by appellant’s counsel at trial to the introduction of the Information in Cause No. 73-2809, the assault of October, 1973, during Mr. Studer’s testimony, was that “it does not relate to any relevant issue in this lawsuit.” In the Motion for New Trial he contends that this evidence “was irrelevant and improper in that he (Fred Studer) testified that the defendant was to appear in Court on the particular date on a prior alleged crime and that he failed to appear, and that this testimony was admitted over defendant’s continuous objection and oral motion for new trial, and that this testimony was part of a common design and scheme on the part of the State to enrage and inflame the emotions of the jurors with irrelevancy, and that said testimony had no bearing on any material issue in this lawsuit.” For the first time, on appeal, appellant contends that this evidence of Mr. Stu-der was improperly admitted because it was evidence of a crime other than that charged. Appellant has shifted the grounds for his objection on this evidentiary issue three times between trial and appeal; therefore, he has preserved nothing for this court to review. The point as stated in the Motion for New Trial is unsupported by any evidence in the record, a thorough examination of the record demonstrates; it is a different objection to the admission of the evidence than that made at trial. The grounds as stated in the “Issues Presented” portion of appellant’s brief are stated in terms unlike those contained in his Motion for New Trial. For the foregoing reasons we will not review these grounds. State v. Yowell, 513 S.W.2d 397, 406[17] (Mo. banc 1974); State v. Atkins, 494 S.W.2d 317, 319[2] (Mo.1973); State v. Davis, 482 S.W.2d 486, 489[6] (Mo.1972); Rule 28.02.

Judgment affirmed.

GUNN, P. J., and ARTHUR LITZ, Special Judge, concur.

      . Rule 84.04 requires that the points relied on for appellate review appear under a portion of the brief identified as “Points Relied On.” There is no provision for the categorization “Issues Presented.”