author: FINCH, Judge.

text:
    In re Lucjan Houston NOVAK. Johan NOVAK and Janina Novak, Appellants, v. Jacquelyn B. NOVAK, Respondent.
    No. 59141.
    Supreme Court of Missouri, En Banc.
    May 5, 1976.

      David L. Campbell, St. Louis, for appellants.
    Allan F. Stewart, Legal Aid Society of City and County of St. Louis, Clayton, for respondent.
   FINCH, Judge.

This is an appeal from an order entered October 15,1973, by the Circuit Court of St. Louis County setting aside an earlier adoption decree whereby Lucjan Houston Novak was adopted by appellants, Johan and Janina Novak, his paternal grandparents. The appeal went to the Missouri Court of Appeals, St. Louis District, which reversed the action of the trial court in setting aside the decree of adoption. On application we ordered the case transferred here, and we now decide it as though on direct appeal. We affirm.

On January 25, 1971, Johan and Janina Novak filed their petition for “Transfer of Custody and Adoption” of Lucjan, the three year old son of Joseph and Jacquelyn No-vak, son and daughter-in-law of the petitioners. The petition alleged that the petitioners desired to adopt the child, that they had the ability to care for, maintain and educate him, and that it was in his best interests. It requested the court to transfer the custody of Lucjan to them for the purpose of adoption nine months later. On the same date, a consent of parents to adoption, executed by Joseph and Jacquelyn Novak, was filed.

A guardian ad litem was appointed, and on June 10, 1971, a hearing was held on the request for transfer of custody. The grandparents, the child, his guardian ad litem, and Jacquelyn Novak, the mother, were present. Evidence offered included testimony that the grandparents at that time had actual custody of the boy. At the conclusion of the hearing, custody of Lucjan was ordered transferred to the grandparents.

Subsequently, on March 17, 1972, a hearing on the petition to adopt was held. Present were the grandparents, the boy and his guardian ad litem. The grandparents both testified of their continuing desire to adopt and their ability to care for the boy and that they had been in touch with their son and daughter-in-law about the adoption. They stated that there had been no change in circumstances. A decree of adoption then was entered which made various findings of fact, including a finding that the boy “has been in the lawful and actual custody of the petitioners for a period of at least nine months prior to the entry of the decree”.

Some seven months later, on October 11, 1972, the natural mother, Jacquelyn Novak, filed in the circuit court her motion to set aside the decree of adoption entered in March. She alleged, among other things, that she and her husband had been involved in marital difficulties and it had been felt that it would be in the best interests of their marriage and of the child if he was placed temporarily in the custody of the grandparents. She alleged that “representation was made to her that in order for the Novaks to properly care for the child, it was necessary for her to sign a consent to adoption”, that she was informed that “this consent * * * was not to be actually used in the adoption matter but was to help reunite herself and her husband” and that she was “coerced” by the Novaks to such an extent that she did not fight the transfer of custody. She further alleged that she had had the actual custody of the child all of his life. This included the years 1971 and 1972, except for certain short periods of time when he was with the paternal grandparents.

A hearing on the motion to set aside the decree of adoption was held on April 10, 1973, before Judge Hoester, the same trial judge who had entered the decree of adoption. Mrs. Jacquelyn Novak testified in support of her motion that there had been trouble between her and her husband and that the adoption was proposed by the paternal grandparents as a way to reunite her and her husband. She also testified in support of her allegations that she had been misled and coerced by the grandparents in connection with the consent to adoption she signed and with respect to consummation of the adoption proceedings but we need not and do not consider the sufficiency thereof as we decide the case on other grounds.

The mother testified that the boy had been in her actual custody during most of the period of time between the order transferring custody and the decree of adoption and had not been in the actual custody of his paternal grandparents except for brief periods. She stated that the boy was with the grandparents for a four week period during the spring of 1971, for about five days in August 1971, when she and her husband, Joseph, went to Minneapolis to look for housing, and for a few days in March 1972, at the time her husband took him to St. Louis. This was at the time when the adoption hearing was held. In addition, the boy, along with his parents and a half sister (a daughter of Jacquelyn Novak by a previous marriage), spent about three weeks visiting the elder Novaks during the 1971 Christmas season. During all of the rest of the time, Lucjan either was with his mother and father, Jacquelyn and Joseph Novak, or with his mother during the various periods when Jacquelyn and Joseph were separated. Up until the end of August 1971, they were living in St. Louis County (they had their own place and lived in a different locality than the grandparents) and after the latter part of August 1971, they lived in Minnesota. As a matter of fact, although Joseph, the father, took Lucjan to St. Louis in March 1972, at the time the adoption hearing was held, he was returned to the actual custody of Jacquelyn after the adoption decree on March 17, 1972, and remained with her in Minneapolis until he was taken from her without her consent on October 7, 1972, by Joseph and two men who had accompanied him to the place where Jacquelyn and the boy were then living.

On October 15, 1973, Judge Hoester entered an order setting aside the decree of adoption on the basis that it was null and void. The order also directed that the boy be returned to the court for a further hearing on the question of custody.

This case has been reviewed pursuant to Rule 73.01 as construed in Murphy v. Carron, Mo., 536 S.W.2d 30, decided concurrently herewith.

Adoption was unknown at common law and exists only by virtue of statutory authorization. Lamb v. Feehan, Mo., 276 S.W. 71 (1925). Adoptions are now governed by Chapter 453 of our statutes which establishes procedures and requirements.

Sec. 453.080 is the section with which we are concerned in this case. It provides as follows:

“If the court, after due hearing, is satisfied that the allegations of the petition are true, that the person sought to be adopted if a minor, has been in the lawful and actual custody of the petitioner or petitioners for a period of at least nine months prior to the entry of the adoption decree, and that it is fit and proper that such adoption should be made, a decree shall be entered setting forth the facts and ordering that from the date of the decree the person sought to be adopted shall, to all legal intents and purposes, be the child of the petitioner or petitioners, and the court may decree that the name of the person sought to be adopted be changed, according to the prayer of the petition.” (Emphasis supplied.)

As noted, it provides that a decree of adoption may be entered only if the court is satisfied after hearing that the minor whose adoption is sought has been in the “lawful and actual custody” of the prospective adoptive parents “for a period of at least nine months prior to the entry of the adoption decree.” In this case we have uncontradicted, undisputed evidence that Lucjan Novak, the boy who was to be adopted, had not been in the actual custody of the adopting parents for at least nine months prior to the adoption decree. He had been in their custody only about one month during that period. During the rest of the time he was with both of his natural parents or with his mother, much of the time in another state. Consequently, it becomes important to determine the effect of non-compliance by the prospective adopting parents with the statutory prerequisite of nine months lawful and actual custody prior to entry of an adoption decree.

In the ease of In re Adams, 248 S.W.2d 63 (Mo.App.1952), the court discussed this requirement and its purpose, saying at 66:

“One of the salutary objects of the General Assembly in lately introducing this new requirement into the adoption laws was to provide a sufficiently long period prior to the adoption hearing to allow the foster parents and the child sought to be adopted to become thoroughly adjusted to each other in the prospective home and to provide time for investigation so that the court at the hearing may be fully informed as to the advisability of making the temporary placement permanent. The time period specified refers to the period immediately preceding the hearing.”

Subsequent cases hold that compliance with this statutory requirement of nine months custody which is both lawful and actual is jurisdictional. In State ex rel. Dorsey v. Kelly, 327 S.W.2d 160, 161 (Mo. banc 1959), this court so recognized when it said:

“ * * * contention that the child has not been in the lawful and actual custody of petitioners for a period of at least nine months which, under the provision of section 453.080, is a jurisdictional prerequisite to the entry of a decree of adoption.”

In State ex rel. M. L. H. v. Carroll, 343 S.W.2d 622, 626, 627 (Mo.App.1961), the court quoted §§ 453.070 and 453.080 and then stated:

“Under these two sections of the adoption statute it is readily seen that the matter of the lawful and actual custody of a child is an inherent part of any adoption proceeding. In re Mayernik, [Mo., 292 S.W.2d 562] supra; and In re Davis’ Adoption, Mo.App., 285 S.W.2d 35.
“Before the Juvenile Court can award a decree of adoption the petitioners must have had lawful and actual custody of the child for a period of at least nine months prior to the entry of the adoption decree. From this requirement of the statute it is obvious that petitioners seeking to adopt a child, if they have not had the requisite custody for the period required, must take steps to obtain the custody of the child. This is the first step necessary for the procurement of a decree of adoption. In re Adoption of McKinzie, [Mo.App., 275 S.W.2d 365] supra.
“The first duty of the court in any adoption proceeding before a decree may be entered is to be satisfied that the person sought to be adopted has been in the lawful and actual custody of petitioners for a period of at least nine months prior to the entry of the adoption decree. Section 453.080, supra.
“The Legislature having imposed this duty on the court before it could enter a decree of adoption, gave to the Juvenile Court the authority to make an order transferring the custody of a child. $ * * ft

In Hartwig v. Hartwig, 333 S.W.2d 101, 102 (Mo.App.1960), a child’s grandparents sought to adopt an infant whose father was her sole surviving parent. The court recognized that the grandparents did not meet the nine months actual custody requirement of § 453.080. It also recognized that the father had not consented to the adoption and had not willfully neglected the child so as to eliminate the necessity for his consent. The court, in recognizing that the statutory requirements had not been met, held that “[T]he Court had no power to adjudge adoption in this case.”

In re Adoption of P. J. K., 359 S.W.2d 360, 367 (Mo.App.1962), the appellate court recognized that there had been compliance with the statutory requirements so that the court had jurisdiction to decree adoption, saying:

“[Wjhere a petitioning stepfather had married the natural mother of a child and thereafter had shared custody of the child in the same home with the mother continuously for more than nine months, the stepfather’s custody was ‘lawful and actual’ during that period and the court had jurisdiction to entertain the stepfather’s petition for adoption and to proceed to a decree * ⅜ ⅞

Finally, In re Neusche, 398 S.W.2d 453, 457 (Mo.App.1965), the court said:

“The trial judge does not have a discretion to decree a transfer of custody of an adoption until the statutory requirements are met, but after the statutory requirements are met, he may exercise his discretion as to whether or not to allow the transfer of custody or the adoption, taking into consideration, the moral, intellectual, material, spiritual, cultural and social welfare of the child and upon that basis he may grant or refuse the decree of transfer of custody or of adoption.”

It is clear that the adopting parties, the grandparents, did not have actual custody of Luejan during' the nine months preceding’ the entry of the decree of adoption. It likewise is clear that the courts of this state have construed the provisions of § 453.080 as conditioning the right of a court to decree adoption upon compliance with the requirement of nine months legal and actual custody preceding adoption. The question we must resolve is whether on such showing the circuit court had the right to set aside the adoption decree which it had entered previously.

In the case of In re McDuffee, 352 S.W.2d 23 (Mo. banc 1961), this court considered an appeal in a proceeding by the adopting parents to annul a prior decree of adoption whereby they had adopted a minor child. In that case they sought such annulment on the basis that the child was suffering from mental disturbance and that it would be in the best interest of the child to annul the adoption and place her in the custody of an institution equipped to handle her mental instability with its attendant behavior pattern. The action of the trial court in denying annulment was affirmed but in the course of the opinion, the court discussed the power of the court to annul a prior adoption decree.

The respondent in McDuffee had argued that once the court decreed adoption and the judgment became final after the expiration of thirty days, the trial court was without jurisdiction to set it aside on any ground other than those specified in § 453.-130. This court held otherwise, saying at 26, 27:

« * * * But we entertain no doubt that the broad equitable powers vested in our courts of general jurisdiction (and which are also vested with jurisdiction of the laws of this 3tate relating to adoption) empower them to vacate a decree of adoption upon any of the classical grounds that entitle such courts to vacate any other decree, such as judgments procured by fraud or to prevent injustice where such final judgments were the result of unavoidable accident or excusable mistake. Johnson v. Stull, Mo., 303 S.W.2d 110, 115; Contrare v. Cirese, Mo., 336 S.W.2d 485, 489; and Nealon v. Farris, Mo.App., 131 S.W.2d 858, which considered the question of annulment of a prior valid decree of adoption.
* * * * * *
“The sole ground upon which adoption may be decreed in this state is that prescribed by § 453.030, which provides: ‘In all cases the approval of the court of the adoption shall be required and such approval shall be given or withheld as the welfare of the person sought to be adopted may, in the opinion of the court, demand.’ The question is, therefore, does the circuit court, inherently possessed of broad equitable powers and further vested by statute with jurisdiction to decree or withhold adoption solely upon the basis of the welfare of the person sought to be adopted, have jurisdiction, in the proper case, to annul thenceforward a priorly rendered valid decree of adoption upon finding that the welfare of the child now demands that the adoption thenceforth stand vacated?
“Research of the cases and comment found in the following authoritative references has convinced us that upon clear showing that the higher welfare of the child demands such action courts of equity may so annul a valid decree of adoption: Annotation, 2 A.L.R.2d pp. 888-912; 2 C.J.S. Adoption of Children § 45, pp. 433-437; 1 Am.Jur., Adoption of Children, § 72, p. 671.”

The foregoing is consistent with the rule stated in 2 C.J.S. Adoption of Persons § 117 (1972):

“An adoption decree may be revoked or set aside where it was procured by fraud or misrepresentation, which relates to jurisdictional matters, rather than fraud which is merely available as a defense. Accordingly, the court is justified in setting aside an adoption decree for the concealment of material facts, or the fraudulent gaining of the consent of the natural parent to the adoption.”

See also: Nealon v. Farris, 131 S.W.2d 858 (Mo.App.1939); In re Adoption of L., 56 N.J.Super. 46, 151 A.2d 435, 437 (N.J.Prob. 1959); In re Doe’s Adoption, 197 A.2d 469 (Del.Orph.1964), affm’d, 210 A.2d 863 (Del. 1964); 2 Am.Jur.2d Adoption, § 76 (1962).

In this case an affirmative showing that the grandparents then had actual custody of Lucjan was made at the June 10, 1971, hearing on transfer of custody and the order then entered transferring custody specifically stated that “[T]he minor person for whom transfer of custody is sought * * has been in the actual custody of the petitioners since March 11, 1971”. When the adoption hearing was held on March 17, 1972, both of the grandparents were witnesses. Neither testified specifically that Lucjan had been in their actual custody since the order transferring custody or had been in their actual custody for nine months preceding the date on which the adoption hearing was held. However, reference was made to the order made approximately nine months before whereby custody was transferred to them preparatory to adoption. They said they had been in touch with their son and daughter-in-law about the adoption being granted and there had been no change in circumstances or conditions. They did not say that the boy had been with his parents and that they had arranged for him to come down from Minneapolis for the hearing. The boy was there with the grandparents but the father and mother were not present. The testimony necessarily impliedly stated to the court that the boy was and had been in their custody since he had been awarded to them. That the judge so understood is shown by the finding of fact in the decree which stated as follows:

“3. The person sought to be adopted was born on 10/10/67, is a minor and has been in the lawful and actual custody of the petitioners for a period of at least 9 months prior to the entry of this decree.”

Not only did the petitioners not inform the court at the hearing that the boy had been with his father and mother and later with his mother, much of the time in Minneapolis, but they did not inform the court of that fact after the judge in his decree erroneously recited that they had had actual custody for at least nine months before the date the decree was entered. Furthermore, they permitted the boy to return to his mother in Minneapolis after the hearing and made no move to acquire actual custody until sometime later, more than thirty days after entry of the adoption decree, with the result that the absence of the requisite nine months actual custody was not called to the attention of the court until the mother filed her motion to set aside the adoption.

The proceeding instituted by Jacquelyn Novak asking that it be set aside was filed some seven months after the adoption decree and, hence, came within the limitations of § 453.140, which provides as follows:

“After the expiration of one year from the date of entry of the decree of adoption, the validity thereof shall not be subject to attack in any proceedings collateral or direct, by reason of any irregularity in proceedings had pursuant to this chapter.”

We conclude that by their testimony the grandparents misled the trial judge with reference to who had had actual custody of the boy during the period of time between the order of June 10, 1971, transferring custody to them and March 17,1972, when the adoption hearing was held. By what they did say, including their appearance with the boy but without his parents, they conveyed the impression that the boy had been in their possession. That had been true, they had testified, on June 10, 1971, and circumstances in the case had not changed. Obviously, the court concluded, after the hearing, that the boy had been in their actual custody during the intervening period, because in his order of adoption, he specifically so found. Nothing was done by or on behalf of the grandparents, after the order was entered, to correct the obvious misunderstanding by the judge with reference to this question. He had been misled by what occurred at the hearing and his misconception was not corrected.

It matters not what descriptive term is used to characterize what occurred. Some cases speak of fraud, some of misrepresentation, some of imposition. However labeled, what occurred provided ample basis for Judge Hoester to set aside the decree of adoption he had entered when he had been led to believe that the statutory prerequisite of nine months actual custody by the grandparents had been met. In re MeDuffee, supra; Nealon v. Farris, supra.

Judgment affirmed.

All concur.

      . Statutory references are to RSMo 1969 unless indicated otherwise.

      . See also Coor, Eppenberger, The New Adoption Act, 4 J. Mo. Bar 228 (1948).

      . The text of § 453.130 is as follows:
      “Whenever a person adopted under the provisions of this chapter shall develop venereal infection as a result of conditions existing prior to the time such person was adopted, or shall develop feeblemindedness or epilepsy, or shall prove to be a member of a race, the members of which are prohibited by the laws of this state from marriage with members of the race to which the parents by adoption belong, a petition setting forth such facts may be filed at any time within five years after such adoption with the court which decreed the adoption, and if on a hearing the facts in such petition are established, the said court may enter a decree annulling the adoption and setting aside any and all rights and obligations that may have accrued by reason of said adoption. (R.S.1939, § 9615, A.L. 1947 V. II p. 213)”


source: Caselaw Access Project

author: HENLEY, Judge.

license: Public Domain

text:
    Richard K. ROTH et al., Plaintiffs-Respondents, v. Joseph X. FLIEG and Theckla Flieg, his wife, Defendants-Appellants.
    No. 59327.
    Supreme Court of Missouri, En Banc.
    May 5, 1976.

      Kurt D. Breeze, Panned, Dodson & Robinson, Festus, for appellants.
    Nicholas G. Gasaway and Samuel Riche-son, Richeson, Roberts, Wegmann, Gasa-way, Stewart & Schneider, Hillsboro, for respondents.
   HENLEY, Judge.

This action to quiet title to two small adjoining tracts of land, tried to the court without a jury, resulted in judgments in favor of plaintiffs on their petition and on defendants’ counterclaim. The judgments were affirmed by the Court of Appeals, St. Louis district, and on application of defendants we ordered the case transferred to this court.

We have reviewed the case according to the requirements of Rule 73.01 as construed in Murphy v. Carron, Mo., 536 S.W.2d 30 (decided concurrently herewith).

Defendants brief one point:

“The Trial Court’s Order Entering Judgment in Plaintiffs’ Favor Is in Error, in That Defendants Established by a Preponderance of the Credible Evidence All the Necessary Elements of Adverse Possession, Being: Hostile, Under Claim of Right; Open and Notorious; Exclusive; Actual; and Continuous for the Requisite Period of Time; the Judgment of the Trial Court on Defendants’ Adverse Possession Claim Should Be Reversed; and Judgment Entered in Favor of Defendants Establishing Their Ownership of the Disputed Parcels by Adverse Possession in Accordance With the Facts and the Law of This Case.”

The petition is in two counts. In count 1, plaintiffs Leo and LaVerne Meyer, his wife, claim to be owners in fee simple of all of the Northwest Quarter of the Northeast Quarter of section 27, in township 38, range 8 east, in Ste. Genevieve county. This land adjoins on the north side land described in count III. In count III, plaintiffs Louis and Millie Pfaff, his wife, claim to be the owners in fee simple of a triangular-shaped .05 acre tract in the northeast corner of the Southwest Quarter of the Northeast Quarter of said section 27, which lies east of a private road running northwesterly from Highway 61. Defendants Joseph and Theckla Flieg, his wife, owners of adjoining land in the east half of the Northeast Quarter of section 27, claim by their answer and counter-claim to be the owners by adverse possession of (1) approximately 0.9 acre of the Meyers’ land lying between the north-south quarter-quarter section line and a fence and road west of that line running generally north from the south boundary of the Meyers’ land to a point where they (the fence and road) turn east and cross the quarter-quarter section line near a “cattle crossing”; (2) all of the Pfaffs’ .05 acre tract of land.

We find from our review that the evidence supports findings that a narrow road running generally north-south across land of both plaintiffs and defendants provides a means of ingress and egress for the farm lands in this area lying north of Highway 61; that the area is hilly and the road is on and follows the meanders of a ridge which crosses and recrosses several times the quarter-quarter section line, the common boundary between tracts of land to which plaintiffs and defendants, respectively, have the record title; that a wire fence, in place since the early 1930⅛ or before, runs along the east side of the ridge road; that the fence was put in by the predecessors in title of plaintiffs and defendants, not as a boundary line fence, but as a friendly fence of convenience and has been known and used as such from the beginning, some of the predecessors of the parties having used it for years as a common enclosure for their respective cows; that the use made of the disputed tracts by defendants and their predecessors in title was with both the express and tacit permission of plaintiffs and their predecessors in title; and, that the first open and hostile act of exclusive possession of the disputed tracts by defendants or their predecessors occurred about a month before this suit was filed. From this the trial court could conclude that defendants failed to prove they acquired title to the disputed tracts by adverse possession and that title is in the respective plaintiffs. Accordingly, the judgment of the trial court should be affirmed.

The judgment is affirmed.

All concur.

      . Other counts were dismissed and are not involved.

      . The Meyers purchased from plaintiffs, Richard and Dolores Roth, his wife, after this suit had been filed by the Roths and before trial.


author: TITUS, Judge.

text:
    In the Interest of R. L. P.
    Nos. 9963 and 9968.
    Missouri Court of Appeals, Springfield District.
    April 2, 1976.

      Wm. G. McCaffree, Nevada, for respondent.
    Robert L. Payne, Greenfield, for appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Through two separate petitions (§ 211.-091), the juvenile officer averred the subject juvenile was in need of care and treatment because he had violated certain state laws. § 211.031(l)(d). After evidentiary hearings wherein the juvenile was represented by counsel (§ 211.211), the court rendered final judgment and made findings, inter alia, that the juvenile had violated the two specified statutes. He was committed to the state training school for an indeterminate period to end no later than when he attained the age of 21 years. Two appeals were filed which we have consolidated for consideration.

To begin with, we have motions to dismiss the appeals upon assertions that the court lacks appellate jurisdiction. This court is always obliged, sua sponte, to test its jurisdiction on more facets than suggested by the motions and we proceed so to do. E. W. v. K. D. M., 479 S.W.2d 167, 169 (Mo.App.1972).

It is not amiss to note again that delinquency proceedings under Ch. 211 are civil suits, not criminal actions (State v. Wright, 515 S.W.2d 421, 437 (Mo. banc 1974); §§ 211.011 and 211.271), and that procedure customary in equity proceedings “shall govern all proceedings in the juvenile court.” § 211.171-6. Therefore, since Rule 41.01(a) specifies that the Rules of Civil Procedure “shall govern all civil actions in . the circuit courts” and as § 211.-021(3) defines “juvenile court” to mean “the circuit court,” it follows that the Rules of Civil Procedure control juvenile court proceedings unless provided otherwise by statute. State ex rel. R. L. W. v. Billings, 451 S.W.2d 125, 126-128[1, 2, 5] (Mo. banc 1970).

In testing our appellate jurisdiction, we initially inquire if the notices of appeal were filed,as they must be, “within thirty days after the final judgment has been entered.” § 211.261. If they were not, we have no jurisdiction of either case. In Interest of R_, 362 S.W.2d 642, 644[4] (Mo.App.1962).

The final judgment encompassing both proceedings was entered January 17, 1975. Seventeen days later, on February 3, motions for new trial (as so denominated by the juvenile court) were filed, argued and overruled. Although Rule 78.04 requires such motions to be filed not later than 15 days after judgment entry, Rule 44.01(a) provides that in computing any period of time neither a Saturday nor a Sunday should be counted if the last day of the period falls thereon, “in which event the period runs until the end of the next day which is neither a Saturday [nor a] Sunday.” The fifteenth day after judgment entry was Saturday, February 1, and, of course, the day following (February 2) was a Sunday. Consequently, filing the motions on Monday, February 3 was timely. The finality of a judgment in a juvenile case is postponed by the timely filing of a motion for new trial. In re In Interest of T_ G_, 455 S.W.2d 3, 9[8] (Mo.App.1970). It follows, therefore, that since the judgment of January 17,1975, did not become final until the rulings of the court on the motions for new trial on February 3, appellant then had thirty days after February 3 under § 211.-261 within which to file notices of appeal. He timely filed the notices seventeen days thereafter on February 20.

Each notice of appeal was signed by the juvenile’s attorney and read: “Notice is given that [the juvenile] appeals from the Judgment Overruling Motion . . . entered in this action on the 3rd day of February, 1975.” While § 211.261 states “An appeal shall be allowed to the child from any final judgment . . . and may be taken on the part of the child by its parent, guardian, legal custodian, spouse, relative or next friend,” similar language in predecessor statutes has been interpreted as meaning that appeals in juvenile cases on behalf of the child should be by one of those named in the last part of the quote. In re C_, 314 S.W.2d 756, 759[4] (Mo.App.1958); State ex rel. Killoran v. Calhoun, 201 Mo.App. 374, 379, 211 S.W. 109, 110 (1919). And, as suggested in the motions to dismiss, the appeals should have been taken from the January 17 judgment, not from the February 3 orders overruling the motions for new trial which are nonappealable. World Franchisers, Inc. v. Birk, 456 S.W.2d 606, 607[1, 2] (Mo.App.1970). Nevertheless, as was done under almost exactly the same circumstances in In re C_, supra, 314 S.W.2d at 759-760[7], and has since been done repeatedly, we consider and accept the notices of appeal herein as bona fide or good faith attempts to comply with the rules and statutes. Matter of Estate of Langford, 529 S.W.2d 31, 32 (Mo.App.1975); Dors v. Wulff, 522 S.W.2d 325, 326[1] (Mo.App.1975).

Having found that the notices of appeal were timely filed and acceptable, though imperfect, we conclude that we do have appellate jurisdiction in both cases and thus overrule the motions to dismiss.

It does not follow, however, that because this court has appellate jurisdiction, that such jurisdiction need be exercised to decide these appeals on their merits. “Courts are not organized and maintained for the purpose of vindicating the actions of parties . . . or to settle abstract propositions of law, where no relief can be granted. . . . If no relief can be granted, either because it appears that such relief has already been obtained, or because the situation has so changed that the relief sought cannot be granted, the court will not go through the empty formality of determining whether or not the relief asked for might have been granted, if it had not already been granted or could have been granted but for changed conditions. The case is then said to be ‘moot’.” State ex rel. Myers v. Shinnick, 19 S.W.2d 676, 678[1, 2] (Mo.1929). And in order to determine whether questions presented by appeal have become moot, appellate courts are at liberty to consider matters outside the record. Mudgett v. Peterson, 482 S.W.2d 472, 474[2] (Mo.1972); State ex rel. Thompson v. Simmons, 499 S.W.2d 819, 820[1] (Mo.App.1973).

In the two present appeals, the juvenile is seeking release from his prior commitment to the custody of the division of youth services via either obtaining new hearings or outright discharge. We are advised by the division of youth services that on March 19, 1976, the division had completely terminated its custody and supervision of the juvenile. § 219.026-6. This is all the relief to which the juvenile could be entitled either at the hands of this court or the juvenile court. This being so, these consolidated cases have become moot and the appeals therein are accordingly dismissed.

It is so ordered.

All concur.

      . References to statutes and rules are to RSMo, V.A.M.S., and to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R.

      . Chapter 219, RSMo 1969, was repealed effective September 28, 1975 (S.B. No. 170) and a new Ch. 219, consisting of 16 sections, was enacted in lieu thereof. Under present § 219.-021-1,“. . . All children committed to the custody of the division [of youth services] shall be committed for an indeterminate period of time except that the division shall not keep any child beyond his eighteenth birth date.”


author: PER CURIAM:

text:
    In re the MARRIAGE OF Jack W. SMITH, Petitioner-Appellant, and Lynda L. Smith, Respondent.
    No. 9842.
    Missouri Court of Appeals, Springfield District.
    April 6, 1976.
    John F. Low, Lebanon, for petitioner-appellant.
    Louis Gilden, Doreen D. Dodson, St. Louis, for respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   PER CURIAM:

An action for divorce was instituted by the husband May 1, 1972, in the Circuit Court of Camden County. The final decree, rendered June 12,1974, awarded the wife a divorce on her cross-bill, gave her full care and custody of the now five-year-old male child born of the marriage, and ordered the husband to pay $50 a month for child support. Upon this appeal by the husband, he urges that the court nisi erred in denying him custody of the child or the right to temporary custody at anytime and reasonable visitation rights.

We have perused the briefs of acutely perceptive counsel, relistened to the recording of their learned oral arguments, scrutinized the transcript on appeal, weighed the multitudinous authorities belaboring the problems of child custody and are persuaded: (a) that future generations will not gain by and present generations should not be subjected to a detailing of the evidence in this ease; (b) that the decree of the trial court is based on findings of fact which are not clearly erroneous; (c) that under the circumstances peculiar to this case no error of law appears; (d) that an opinion in usual form would have no prece-dential value; and (e) that due to the passage of time between the inception of the cause to the present, including the aging of the child, the need, if any, to litigate further the issue of child custody, may be accomplished with more expediency via a motion to modify than upon a retrial of the present cause.

The judgment and decree of the trial court is affirmed in compliance with Rule 84.16(b), V.A.M.R.

All concur.


author: RENDLEN, Judge.

text:
    STATE of Missouri, Respondent, v. Charles McCLAIN, Appellant.
    No. 37196.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 6, 1976.

      R. A. Hampe, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Charles L. Howard, Asst. Attys. Gen., Jefferson City, James J. Barta, Asst. Circuit Atty., Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   RENDLEN, Judge.

Charles McClain appeals his conviction of murder first degree and forcible rape upon the jury’s verdict, with sentences of life imprisonment to be served consecutively for each crime. We affirm.

Appellant asserts the trial court erred: (1) by the admission of inflammatory photographic evidence showing the deceased victim; and (2) by permitting medical testimony concerning a vaginal smear, taken from the deceased, without proper foundation as to the chain of custody. Since there is no challenge to the sufficiency of the evidence, we will relate only those facts required to resolve the issues raised.

In the early morning hours of October 26, 1970, J_M_was raped and later found in an alley where she had been brutally murdered. Two witnesses who were present at the time testified that appellant raped J_ M_ in a park then dragged her into an alley where he beat and stabbed her to death.

Appellant first contends that admission of several gruesome photographs of the deceased constitutes error because of their inflammatory character and because they “failed to prove any material fact or condition in issue at trial.” This contention is often raised and the law is clear that “admission of a photograph of the body of the deceased in a homicide case rests within the sound discretion of the trial court,” State v. Stevens, 467 S.W.2d 10, 24[16] (Mo.1971), cert. den. 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971); State v. Brown, 524 S.W.2d 188, 190[7] (Mo.App.1975); State v. Wintjen, 522 S.W.2d 628, 630[4] (Mo.App.1975).

“It has generally been held that even though a photograph may be inflammatory it is admissible if it tends to prove any material element of the State’s case; this includes the issues of identity, condition and location of the body, nature or location of wounds, and the cause of death; and, generally, if the photograph corroborates the oral testimony of the state or refutes defense testimony it is admissible, (citing cases) And a photo is not made inadmissible because the oral testimony may have described what is shown in the photo ... if the photo is relevant, it is not excluded because it may be inflammatory, unless the situation is so unusual that the extent of prejudice overrides the relevancy and probative value of the photo.”

State v. Jackson, 499 S.W.2d 467, 472[6-8] (Mo.1973). See also State v. Jones, 515 S.W.2d 504, 506[5-7] (Mo.1974); State v. Duisen, 428 S.W.2d 169, 173[1] (Mo. banc 1967), cert. den., 390 U.S. 962, 88 S.Ct. 1063, 19 L.Ed.2d 1159 (1968).

The pictures in question were black and white photographs of the corpse showing its position in the alley and the location and extent of the wounds. The photographs, taken at different angles and distances, show various views of the scene and the one morgue shot provided evidence of the wounding, condition of the body, corroboration of oral testimony and identity of the victim. All were described as fair and accurate representations of the objects and scenes shown in the photographs. As stated by the court in State v. Stevens, supra, 467 S.W.2d at 24: “If photographic views are shocking, when presenting an accurate picture, it is because the crime is one of that sort, whether described in words or pictures.” Similarly in State v. Jackson, supra, 499 S.W.2d at 472, the statement that the photograph of the murder victim “could not have inflamed the minds of the jury any more than they were ‘otherwise inflamed by the uncontroverted evidence of these utterly revolting acts of the defendant.’ ” We find the court did not abuse its discretion admitting the photographs.

The next contention of error concerns testimony of Dr. Parks that his examination of a vaginal smear taken from the body of the victim revealed the presence of spermatozoa. The examination by Dr. Parks on the State’s behalf was made within two days of the crime. Appellant charges the chain of custody necessary to insure the integrity and probative quality of the smear was not sufficiently shown. In order to establish a chain of custody “the evidence need not exclude every possibility that something in the interim of police possession disturbed or interfered with the exhibit.” State v. Baines, 394 S.W.2d 312, 316[7] (Mo.1965), cert. den. 384 U.S. 992, 86 S.Ct. 1900, 16 L.Ed.2d 1008 (1966); State v. McCrary, 478 S.W.2d 349, 351[2] (Mo.1972); State v. Rogers, 523 S.W.2d 344, 348[10] (Mo.App.1975). Here it is sufficient if the evidence shows with reasonable assurance the smear taken from the victim was that examined by the doctor. There is no real question that the condition of the smear itself was sufficient for the purpose of the examination.

The State is not required to account for hand-to-hand custody of the evidence between the time it is admitted into evidence nor need it be continually watched to establish a chain of possession. State v. Rogers, 523 S.W.2d 344, 348[9] (Mo.App.1975); State v. Watson, 386 S.W.2d 24, 31[11] (Mo.1964), app. dis. 381 U.S. 275, 85 S.Ct. 1458, 14 L.Ed.2d 431 (1965). “The purpose of such a requirement is to prevent tampering or alteration of exhibits or any substitution.” State v. Rose, 428 S.W.2d 737, 740[3] (Mo.1968); State v. Taylor, 486 S.W.2d 239, 243[6] (Mo.1972).

Dr. Criscione, pathologist employed by the City Coroner’s Office, performed an autopsy and took the questioned vaginal smear on October 26, following the murder and rape earlier that day. He testified the smear was taken from the victim and he personally handed it to Officer Sztakowski of the homicide section of the police department. This officer delivered it that day to the clinical laboratory at Euclid and Lac-lede for examination. It was there received by a technician, Ms. Breshannon, who signed and issued a receipt to Sztakow-ski. It was she who prepared the vaginal smear for analysis and brought it to Dr. Parks,-who examined the smear and testified to his findings. While the chain of custody was perhaps not fully shown at the time defense counsel first objected, we believe the foundation was adequately established and the sum of the testimony sufficient to prove the examined smear was that taken from the victim and in proper condition to examine for spermatozoa at the clinical laboratory. The judgment of the trial court is affirmed.

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

      . There is some confusion as to the date that Sztakowski brought the smear to the laboratory. He testified October 26. Dr. Parks first testified it was the 27th of October but corrected himself, stating the receipt shows Sztakow-ski delivered the smear on October 26 and that was in fact the date the specimen was brought to the laboratory.


text:
    STATE of Missouri, Respondent, v. Donna Jean FAVELL, Appellant.
    No. 36823.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 6, 1976.

      E. Rex Bradley, St. Charles, for appellant.
    Preston Dean, Neil McFarlane, Asst. At-tys. Gen., Jefferson City, James Millan, Pros. Atty., Bowling Green, for respondent.
   RENDLEN, Judge.

Donna Jean Favell, convicted of manslaughter and sentenced to seven years imprisonment, appeals her conviction.

Appellant contends the trial court erred: (1) by permitting hearsay testimony concerning the circumstances of the attack; (2) by instructing on murder second degree without sufficient evidence to support the charge; and (3) in refusing appellant leave to call a witness on the ground of appellant’s failure to disclose the witness’ name under V.A.M.R., 25.34.

Don Wolf, an employee of Southwestern Bell Telephone Company, went to the residence of William E. Spahn, a summer cabin near Elsberry, Missouri, on Friday, December 14, 1973, to investigate a telephone trouble report. Knocking several times and believing he heard someone say “come in,” Wolf entered the cabin. He found William Spahn lying nude on his back in the middle of the floor in the living room. Wolf asked if he was drunk and Spahn responded, “No, I was shot.” On examination Wolf found Spahn was shot in the upper right shoulder close to the base of the neck. Noting the telephone in the cabin had been ripped from its connection, Wolf went outside and phoned Mr. Tapley at the Elsberry office of the telephone company, who in turn called Officer Don Bizelli of the State Highway Patrol. Tapley and Bizelli drove to the Spahn residence in the officer’s automobile. An ambulance was summoned and Mr. Spahn removed to the Pike County Hospital in Louisiana, Missouri. He was later transferred to the Barnes Hospital in St. Louis and six days later, on December 20, died of pneumonia.

Officer Bizelli testified that on arrival at the scene he asked Spahn if he was comfortable. Mr. Spahn requested a drink of water but was told he could have nothing to eat or drink until he reached the hospital. Officer Bizelli then testified to Mr. Spahn’s detailed account of the events surrounding the attack. Exclusive of Bizelli’s recital of Spahn’s statements, there was abundant evidence placing appellant at Spahn’s summer home when the shooting occurred including fingerprints and appellant’s parent’s phone number on note paper at the scene. Some days later appellant was found in California and returned to Missouri by the Pike County Sheriff to whom she related her version of the crime. She admitted being present as a paid prostitute, claiming she was picked up by the decedent in a St. Louis bar, taken in his car to the summer cabin where they spent some time drinking. The decedent paid her $120, and after each was undressed, decedent without explanation struck her with a gun, which she grabbed, and in the ensuing struggle the gun discharged, the bullet striking Spahn. Spahn’s account of these events to Officer Bizelli were in complete variance with that of appellant. He told Bizelli the shooting involved an unprovoked assault in which a black female and two white males came uninvited to his house, threatened and attacked him. During the attack, he was shot but did not identify to Officer Bizelli who had fired the shot.

After the shooting appellant took Spahn’s car and attempting to leave, drove into a ditch. She was assisted by several witnesses who later identified appellant, the car was pulled from the ditch and she proceeded to St. Louis, abandoning the car at the Welfare Office parking lot on De Baliviere Avenue.

Appellant’s request for leave to call her mother as a witness was denied under authority of Rule 25.45, V.A.M.R., on the grounds that appellant’s mother’s name was not disclosed or listed in response to the State’s motion for discovery under Rule 25.-34, V.A.M.R.

Appellant first contends the court erred in permitting Officer Bizelli to testify to Mr. Spahn’s account of events preceding the shooting, as such evidence was hearsay. The disputed testimony is as follows:

“I asked him what had happened, how he received the injury and he stated that early in the morning or — [defendant’s objection, overruled] ... He said either early morning which would have been Thursday, the 13th, I believe it was, or late on the evening of the 12th, some people came to his door, a black female and two white male subjects and asking for gasoline. They stated to him that apparently — [defendant again objects, overruled] . . . Anyway the people stated that they had run out of gas and need gasoline. Mr. Spahn told me that he told these people to go and ahead and take as much gasoline as they need out of the tank which is near his residence on his property. He stated they left and were gone for a period of time, and then they returned. He stated to me that he thought they were going to pay him for the gasoline.
He said they came in and when he asked what they were doing or what they were going to do, he stated they didn’t have any money and one of them hit me. He stated, ‘we fought and I was shot.’ ”

Respondent asserts Bizelli’s testimony was not hearsay since it was not offered for the truth of the matters asserted or in the alternative that its admission was not prejudicial. We find this contention without merit.

Following defense counsel’s timely objections to Bizelli’s recital of Spahn’s statement, a conference was held out of the jury’s hearing, (the content of which does not appear in the record) and appellant’s objection to the hearsay was overruled. This evidence, though hearsay, was pertinent to the issues, constituting substantial proof of what happened on the night in question and there can be little doubt it was given some weight by the jury. We are unimpressed with respondent’s argument, unsupported by the record, that Spahn’s statement was not offered for the truth of the matters it contained. First we note no limiting or cautionary instructions were given and the claimed purpose for its offer, i. e. to let the officer relate the circumstances of his contact with the victim, does not alter its character as hearsay nor effect its admissibility. We do not know the grounds on which appellant’s objection was overruled but the testimony was in evidence for whatever value the jury chose to give it. On this state of the record we must decide the issue, since an “appellate court must take the trial record as it finds it.” State v. Matthews, 512 S.W.2d 248, 249[1] (Mo.App.1974).

The evidence was hearsay thus inadmissible, unless it is found to be a dying declaration or other exception to the rule and none is suggested by respondent. Decedent’s statement to the officer fails to qualify as a dying declaration, as that exception to the hearsay rule is described and delineated in State v. Woodard, 499 S.W.2d 553, 557[7, 8] (Mo.App.1973). There the court stated:

“To be admissible, a dying declaration must have been made by the declarant in extremis ‘in the belief on the part of the declarant of impending death, after hope of recovery has been abandoned.’ State v. Custer, 336 Mo. 514, 80 S.W.2d 176, 177 (Mo.1935). See also State v. Davis, 337 Mo. 411, 84 S.W.2d 930 (1935) and State v. Proctor, 269 S.W.2d 624 (Mo.1954). Belief of ‘impending death’ and abandonment of ‘hope of recovery’ both of which are conditions precedent to the admissibility of a dying declaration, are necessarily subjective, and, hence, fall into a category that is (1) difficult to prove, and (2) even more difficult to ascertain. There are, however, recognized methods of proving the declarant’s state of mind as to the required subjective elements, the strongest, undoubtedly, being express statements by the declarant, but, additionally, by showing the nature and extent of the inflicted wounds, statements of attending physicians made to and acquiesced in by declarant, the length of time elapsing between the making of the declaration and death itself, the administration of ‘last rites’, and last, but by no means least, the conduct of declarant and any and all other circumstances that reveal his apprehension of impending death and abandonment of hope for recovery. State v. Livingston, 204 S.W. 262 (Mo.1918) and State v. Proctor, supra. Summarized, unless declarant makes express statements disclosing his state of mind, both as to belief of impending death and abandonment of hope of recovery, objective facts must be shown from which declarant’s state of mind, both as to belief of impending death and abandonment of hope for recovery, may be reasonably inferred.” (Emphasis supplied.)

In the case at bar no evidence justified a finding that Mr. Spahn had abandoned hope of recovery or believed his demise was imminent. He was conscious and lucid when discovered. Although his wound was serious at the time he made the statement, he had survived thirty hours and knew an ambulance was ordered for his removal to the hospital. Dr. Jackson, the examining physician at the Pike County Hospital testified that Mr. Spahn’s pulse was strong, his blood pressure adequate, he showed no signs of extensive blood loss and there was no obvious injury to the lungs. It was more than six days before Mr. Spahn died; and pneumonia, a later complication not shown present when he made the statement to Officer Bizelli, was the immediate cause of death. Decedent was able to converse at length with the officer, and made no comment reflecting a foreboding sense of impending death or hopelessness. Under these circumstances, the statement was not a dying declaration and the denial of appellant’s objection to the hearsay, error.

The State urges and we agree that not all trial errors require reversal; but as stated in State v. Maxwell, 502 S.W.2d 382, 393[14] (Mo.App.1973), error in admission of evidence should not be declared harmless unless it is so without question. The authority in Missouri is clear that extrajudicial statements of witnesses constitute a form of hearsay, State v. Nimrod, 484 S.W.2d 475, 479[3] (Mo.1972), and their admission in evidence will constitute reversible error unless as a matter of law it can be concluded such error was not a factor that might have been decisive in the jury’s verdict. State v. Degraffenreid, 477 S.W.2d 57, 66 (Mo.banc 1972) (Finch, C. J., concurring). In some cases such statements may be used to impeach or contradict, State v. Stamper, 314 Mo. 635, 285 S.W. 437 (1926), or under proper circumstances are harmless error if mere corroboration of a fact not in issue, State v. Maxwell, supra at 394; but no such saving quality appears in the case before us. We deem admission of the statement, containing substantial evidence of facts not otherwise proved, and material to the homicide charged, has not been shown to be harmless. We regard as untenable the State’s argument that the offending statement “simply corroborated appellant’s own testimony” rendering its admission harmless. In fact the statement was neither corroborative nor cumulative but in gross conflict with appellant’s admissions to the Sheriff of Pike County and the appellant’s testimony in chief; measured by Degraffenreid, supra, it can hardly be deemed harmless error. “The record does not demonstrate that the defendant was not injured by the error as by showing that the jury disregarded or could not have been influenced by the evidence.” State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 300 (1944). State v. Degraffenreid, supra at 64[14]. For these reasons the judgment must be reversed and the cause remanded.

Appellant’s conviction of manslaughter constituted an acquittal of the more serious degrees of homicide charged; and if retried, the jury may be instructed only on manslaughter. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Spidle v. State, 446 S.W.2d 793[1] (Mo.1969). Thus the alleged grounds for appellant’s next contention of error, i. e. giving the second degree murder instruction without sufficient evidence to support the submission, no longer remains and requires no further discussion. Finally, we see little likelihood that the situation giving rise to her third contention will reoccur; accordingly, we do not rule the point. Reversed and remanded.

WEIER, P. J., and McMILLIAN, J., concur.

      . Rule 25.45, V.A.M.R. “Sanctions

      If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule . . . the court may . . . exclude such evidence.” (Emphasis supplied.)

        . Rule 25.34, V.A.M.R. “Disclosure by Defendant to State Upon Court Order Without Exercise of Discretion by Court

      (A) Except as otherwise provided in these Rules as to protective orders, and subject to constitutional limitations, on written request by the state, the defendant shall disclose to counsel for the state such part or all of the following material or information within his possession or control designed in said request:

      (2) The names and last known addresses of persons, other than defendant, who defendant intends to call as witnesses at any hearing or at the trial . . .” (Emphasis supplied.)


text:
    STATE of Missouri, Respondent, v. Armon Lee LANG, Appellant.
    No. 36867.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 6, 1976.

      Howard Paperner, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Brendan Ryan, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for respondent.
   RENDLEN, Judge.

Defendant Armón Lee Lang, convicted by a jury of robbery first degree and sentenced to fifteen years imprisonment, appeals from his conviction, raising two assignments of error: (1) insufficiency of the evidence to sustain the verdict; and (2) insufficiency of the chain of custody to permit admission of fingerprint evidence.

When examining the record to determine the sufficiency of the evidence, we “view the evidence most favorable to the State, accepting all substantial evidence and all inferences fairly deducible therefrom which tend to support the verdict.” State v. Reynolds, 521 S.W.2d 486, 487[1] (Mo.App.1975); State v. Lee, 492 S.W.2d 28, 30[1] (Mo.App.1973). At the outset we note the testimony of the robbery victim established all elements of the crime charged, except positive identification of appellant as her assailant. Since the main thrust of appellant’s argument relates to alleged insufficiency of his identification as the robber, we review the record with particular emphasis on that aspect of the testimony.

The jury could find from the evidence that on June 28, 1974, Evelyn Price, resident manager of the Pierre Chouteau Apartments Hotel on 4440 Lindell, lived in an apartment off the lobby, the door to which was usually locked. At about ten o’clock that morning, appellant rang the bell and entering alone, inquired about a job. Learning none was available, he requested a job application form which Ms. Price provided, went to the lobby where he remained for some time, then returned the partially completed form to her office. As Ms. Price accommodated him by completing the form, appellant grabbed her by the throat from behind, held a gun to her head and demanded money. He took her ring, diamond wristwatch and $40 from her purse, then searched the apartment. Finally, he went down to the darkened garage, forced her in a corner stating, “Now you stay here twenty minutes or I’ll kill you.” When she thought he had gone, the police were called and the responding officer broadcast information of the crime, the stolen articles and the robber’s description.

Later that morning appellant offered to sell the watch and ring to William Logan, an employee of the Royalty Motel on North Kingshighway. Shortly thereafter, Logan described appellant to Police Officer Wheeler who was there investigating another crime and from that description Wheeler found appellant a short distance from the motel. When questioned, appellant ran. In the ensuing chase the officer saw appellant drop a shiny object before he was caught and retracing the chase route, Officer Wheeler found the stolen watch.

Ms. Price described the robber as a Negro male, six feet, 140 pounds, black hair, wearing a blue denim jacket and pants but was unable to pick appellant from a lineup that afternoon. When appellant was arrested shortly after the robbery, he was wearing red checkered pants. Though she could not make positive identification, the robber seized Ms. Price by the throat from behind and held a gun on her the whole time, making positive identification somewhat difficult.

Numerous facts re-enforced the identification evidence, including appellant’s flight when questioned and his possession of the stolen watch following the robbery. It is well-settled that “[pjossession by a defendant of recently stolen property is admissible in evidence as a fact which the jury may consider in determining whether or not the defendant was the person who committed the robbery or burglary with which he is charged . . . and when this possession is established, it gives rise to a permissible inference of guilt of the robbery or burglary he is charged with committing.” State v. Lee, 491 S.W.2d 317, 320[3] (Mo.banc 1973); State v. Cobb, 444 S.W.2d 408, 414[9] (Mo.banc 1969); State v. Kennedy, 396 S.W.2d 595, 598[2] (Mo.1965).

Further, the employment application form Evelyn Price handed her assailant bore appellant’s fingerprints and this evidence alone was sufficient to satisfy the identification requirement. In a case such as this, fingerprints which could only have been made at or near the time of the crime by the person committing it are strong circumstantial evidence and may themselves be sufficient to support a verdict of guilty. See State v. Simmons, 528 S.W.2d 8, 9-10[2-5] (Mo.App.1975), and cases cited therein. As we shall presently discuss, the employment application form bearing appellant’s fingerprints was properly admitted, notwithstanding appellant’s protest to the contrary.

Though appellant, when arrested, wore trousers of different color and pattern than that described by Evelyn Price and though she was unable to positively identify him as the robber, she could recall numerous identifying features. The discrepancies in the State’s testimony, pointed up by appellant, go to the weight of the evidence which is for the jury to evaluate. State v. Hill, 438 S.W.2d 244, 248[8] (Mo.1969); State v. Spraggins, 368 S.W.2d 407, 410-411[3-6] (Mo.1963). Considering all the evidence in the light most favorable to the State, we find a submissible case was made and rule against appellant’s first contention of error.

Appellant next challenges the admissibility of the employment application form which bore appellant’s fingerprints, asserting the exhibit’s chain of custody was not sufficiently shown. Rejecting this contention, we point out that to establish a chain of custody “[t]he evidence need not exclude every possibility that something in the interim of police possession disturbed or interfered with the exhibit. It is sufficient if the evidence shows reasonable assurance that it was the same and in the same condition.” State v. Baines, 394 S.W.2d 312, 316[7] (Mo.1965), cert. den. 384 U.S. 992, 86 S.Ct. 1900, 16 L.Ed.2d 1008 (1966); State v. McCrary, 478 S.W.2d 349, 351[2] (Mo.1972); State v. Foster, 490 S.W.2d 659, 661 (Mo.App.1973). “The state is not required to account for hand to hand custody of the evidence between the time it is obtained and the time it is admitted into evidence, nor need it be continually watched to establish a chain of possession.” State v. Heather, 498 S.W.2d 300, 306[10] (Mo.App.1973); State v. Rogers, 523 S.W.2d 344, 348[9] (Mo.App.1975). “The purpose of such a requirement is to prevent tampering or alteration of exhibits or any substitution.” State v. Rose, 428 S.W.2d 737, 740[3] (Mo.1968); State v. Taylor, 486 S.W.2d 239, 243[6] (Mo.1972).

In the case at bar, a man fitting appellant’s description came alone to the apartment, inquired about a job and the manager gave him the job application form which he returned to her. Only the “applicant” and Ms. Price handled the application form until a Police Evidence Technician placed it in an envelope later that morning “so as not to contaminate it” and delivered it for processing to the Police Evidence Laboratory. There a “laboratory evidence receipt” showing the fact of receipt and the date of delivery was issued. Criminologist Marilyn Ruemmler sufficiently detailed the manner such records are kept to qualify the “laboratory evidence receipt” as a business record. The envelope containing the exhibit was placed in an evidence locker and later chemically processed to render latent fingerprints visible. These prints on the application form were expertly compared with those of appellant and found to be the same. The exhibit’s custody and journey were traced from appellant’s hands the day of the crime to the court’s custody the day of trial. See State v. McCrary, 478 S.W.2d 349, 351[2] (Mo.1972). The danger of substitution of evidence or the possibility of defendant’s touching the evidence at some other time were essentially eliminated.

Appellant’s principal challenge to the “chain of custody” is that the “laboratory evidence receipt” was read by the witness but not offered in evidence, violative of the best evidence rule. However, the point was not properly raised nor preserved for review. Pertinent portions of the testimony follow:

“Q. [Circuit Attorney] Is that receipt a part of the laboratory record?
A. [Criminologist Ruemmler] Yes, it is attached to the evidence and it remains with it until such time as it leaves the laboratory and then it is filed in a case jacket in the laboratory, with the number assigned to that ease.
Q. Are those records made at or near the time of events which they depict?
They are made at the time the evidence enters the lab, when it comes over the counter, that’s when the ledger sheet is made out. A.
Q. Do you have a record paper, a receipt of that employment application?
A. I do.
Q. What was the date it was received? MR. PAPERNER: I object. Improper foundation laid.
THE COURT: Overruled. You may answer.
THE WITNESS: The date received on the receipt is 6-28-74.”

The question “what was the date it [the employment application] was received” simply asked the witness to recall and recite a date. The objection “improper foundation laid” was properly overruled since the witness was qualified to discuss the records of her office and the question called for her present recollection of a fact. Though the answer was nonresponsive, in that she apparently read the date from the “laboratory evidence receipt,” no objection was made to the answer, no other relief was requested and nothing preserved for review. It is clear that “a trial court is not to be held to have committed error in admitting testimony for a reason not presented to it . reasons urged in a brief which were not advanced to the trial court are of no avail.” State v. Stevens, 467 S.W.2d 10, 18[4] (Mo.1971), cert. den. 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971). See also Rule 84.-13(a) V.A.M.R., and State v. Eaton, 394 S.W.2d 402, 404[1, 2] (Mo.1965).

Finally, the “receipt” could properly have served as a memorandum to refresh the witness’ memory. State v. Freeman, 489 S.W.2d 749, 753[7-11] (Mo.App.1973). If proper objection to the answer had been made, the answer stricken and the witness had demonstrated she had no present recollection of the date, the record discloses a proper foundation for admission of the “receipt” as a business record or for its admission as past recollection recorded. King v. Furry, 317 S.W.2d 690 (Mo.App.1958), 32 C.J.S. Evidence § 696, p. 946, et seq. In any event, the purported error (if such) was not reversible under Rule 84.13(b) V.A.M.R., since witness Ruemmler’s answer supplying the date was merely cumulative of prior witness Day’s testimony that he had delivered the exhibit on June 28, 1974, to the laboratory.

The judgment is affirmed.

WEIER, P. J., and McMILLIAN, J., concur.

      . Appellant does not contend and the evidence excludes the possibility that he could have handled the application at some other time. See State v. Watson, 386 S.W.2d 24, 31[11] (Mo.1964), app. dis. 381 U.S. 275, 85 S.Ct. 1458, 14 L.Ed.2d 431 (1965).


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jake FIELDS, Defendant-Appellant.
    No. 36729.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 6, 1976.
    James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant-appellant Jake Fields (hereinafter referred to as defendant) was convicted by a jury of burglary second degree, § 560.070, RSMo 1969, on November 26, 1974. The trial court found defendant guilty of a prior felony conviction and sentenced him to six (6) years imprisonment pursuant to § 556.280, RSMo 1969. Defendant appeals claiming that the trial court erred in overruling his motion to suppress his statements to the police. We affirm.

Defendant was arrested by officers of the St. Louis Police Department at approximately 11:30 P.M. on December 28, 1973, in the 300 block of Gratiot Street. The arrest was in connection with a burglary at Lois’ Bar and Cafeteria located at Third and Gratiot Street. Defendant was given the Miranda warnings at the time of his arrest. He was then detained overnight at the central hold-over facility of the police department. The following morning defendant was taken from the hold-over to the detective bureau for interrogation. The questioning of defendant concerned a burglary which had occurred on the previous evening at the Crunden Martin Manufacturing Company. The Crunden Martin Manufacturing Company is located across the street from Lois’ Bar and Cafeteria. The police had been unaware of this second burglary until informed of it by some Crunden Martin employees who made the discovery on the morning of December 29, 1973. Defendant was again given the Miranda warnings and during the subsequent questioning confessed to having committed the burglary at Crunden Martin. It was for the Crunden Martin burglary that defendant was tried and convicted.

Prior to trial defendant moved to suppress the statements on the grounds “that they were made involuntarily, that they are the fruit of an illegal arrest, that they were made without adequate advice concerning defendant’s right to counsel and his right to remain silent, or that they were made without an intelligent waiver of his rights.” After the hearing, during which defendant introduced evidence concerning the circumstances of the making of the statements, the motion was overruled. At trial the statements were introduced without objection during the testimony of two state witnesses, Detectives Clifton and Marcinkiew-icz. Defendant’s motion for a new trial stated that the trial court had erred in overruling the motion to suppress his statements since they “. . . were made without an intelligent waiver of his constitutional rights and were made involuntarily.”

On appeal, defendant claims that the admission of his statements to the police was a violation of his Fourth Amendment rights. Defendant had not been arrested for the Crunden Martin burglary, and there was no probable cause for his arrest or detention on that charge. Therefore, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), defendant claims that his confession was the result of an illegal seizure in violation of his Fourth Amendment rights and should have been excluded as “fruit of the poisonous tree.”

Defendant has not properly preserved this issue for review. The Missouri Supreme Court has stated the requirements for preservation thusly:

“Our rule is that constitutional questions must be raised in the trial court at the earliest opportunity consistent with orderly procedure; they may not be raised for the first time in the appellate court. The defendant in a criminal case, if he proposes to raise a question pertaining to the violation of such right, must object to the introduction of his confession or admission clearly and specifically stating his constitutional grounds for the objection; otherwise, the introduction of his confession or admission will not be sufficient basis for an assignment of error in his motion for new trial. His motion for new trial must present and direct the trial court’s attention to his trial objections by clearly stating with particularity his constitutional grounds. In other words, his constitutional grounds for objection must be kept alive and preserved throughout the case. . . .” State v. Meiers, 412 S.W.2d 478, 481 (Mo.1967) (see also State v. Rutledge, 524 S.W.2d 449, 455 (Mo.App.1975) and State v. Larkins, 518 S.W.2d 131 (Mo.App.1974).

In the present case, defendant’s motion to suppress was vague, stating legal conclusions rather than facts. It alleged that his statements were “the fruit of an illegal arrest,” but did not indicate what aspect of the arrest was claimed to be illegal. Nor did he present any evidence on this issue at the hearing. At trial, defendant failed to object in any manner to the introduction of the challenged testimony. Defendant’s motion for a new trial did not even mention the ground on which he now claims error; it alleged error in admitting the evidence on the ground that the confession was made without proper waiver and therefore involuntary. The contention that the statements were the product of an illegal arrest was never properly before the trial court. Therefore, defendant may not raise this issue for the first time on appellate review.

While defendant has not requested that we invoke review under the “plain error” rule, Rule 27.20(c), we consider some discussion of the merits of his rather unique claim to be necessary. As noted above, defendant is claiming a violation of his Fourth Amendment rights, particularly the right to be free from arrest in the absence of probable cause. It is not at all clear from defendant’s motion to suppress his statements that he is raising a Fourth Amendment claim rather than a Fifth Amendment Miranda-type violation. Defendant does not claim that his original arrest was in any way unlawful, but, rather, that there was no probable cause for his “arrest and detention” for the Crunden Martin burglary. Defendant relies on the recent United States Supreme Court decision of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), which held that the giving of the Miranda warnings, by themselves, are not enough to dissipate the taint of an unlawful arrest, with the result that a confession would be excluded from evidence under the Wong Sun doctrine.

Defendant’s argument fails because, unlike the Brown case, defendant’s arrest and detention were not illegal. Defendant’s original arrest and detention were proper and constituted no violation of his Fourth Amendment rights. Defendant makes no claim that the original arrest lacked probable cause. Defendant was given the Miranda warnings both at the time of his arrest and before questioning. He has shown no violation of his Fifth Amendment rights and has claimed none on appeal. Defendant’s entire claim revolves around his assertion that, prior to custodial questioning about any crime other than the one for which he was arrested, the police are required not only to establish probable cause but also to rearrest him for that other crime. Defendant’s proposed rule would not protect his Fourth Amendment rights, as he was already in custody subject to a valid arrest. Nor would it serve to protect his Fifth Amendment rights. Defendant’s position would seem to require that the police arrest persons before they question them. The police may question individuals whether or not they are under arrest, but once the individual is under a custodial type arrest he must be given his Miranda warnings. These warnings, which defendant received, do not claim that the use of any statement made by defendant will be confined to the charge for which he was arrested.

The recent Supreme Court case of Michigan v. Mosley, decided Dec. 9, 1975, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, involved similar circumstances. There the defendant was arrested without a warrant for robbery. He was given the Miranda warnings and stated a desire not to answer any questions. The police immediately ceased the interrogation. About two hours later he was given the warnings again and was questioned concerning a murder to which he confessed. The court held this confession to be admissible. While the specific claim before the court was an alleged violation of the defendant’s Fifth Amendment rights by the continued questioning, the court found nothing improper in the police questioning an individual, being held under a valid arrest, about crimes other than that for which he was arrested.

The Eighth Circuit case of Young v. United States, 344 F.2d 1006 (1965), upheld the admission of a confession given to F.B.I. agents on a federal charge after the defendant was in custody on a state charge.

Defendant’s claim, if it had been preserved for appeal, would fail as he has shown no violation of his Fourth Amendment rights which would be a basis for invoking the exclusionary rule. We conclude that the admission of defendant’s statements to the police did not constitute error, much less plain error. The judgment of the trial court is affirmed.

WEIER, P. J., and RENDLEN, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Ernest E. WATSON, Defendant-Appellant
    No. 37106.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 6, 1976.
    James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas Rost, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

The defendant was found guilty of child molestation by a jury and sentenced to two years imprisonment. Defendant appeals claiming that the court erred in finding the victim, age 5, to be a competent witness and permitting her to testify, § 491.060(2), RSMo 1969. We disagree and affirm the judgment.

Both Janice Evans and her father testified that defendant kneeled and placed his hand into Janice’s pants. Although defendant admits that he offered Janice a dime in exchange for a hug as testified to by Janice, he denies placing his hand into her pants. The dime that he gave Janice was turned over to the police.

Section 491.060(2) was enacted to protect an accused from testimony by a child of tender age who may have lacked the mental capacity to observe an event and later truthfully and accurately relate what, in fact, was observed. In State v. Jones, 360 Mo. 723, 230 S.W.2d 678 (1950), our Supreme Court quoted with approval the test set forth in Burnam v. Chicago Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858 (1936). The test given to determine the competency of a child of tender age was (1) present understanding of or intelligence to understand, on instructions, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question to truly observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observations.

Each case must be determined upon its own facts. And the determination of competency reposes in the discretion of the trial court and its discretion is not open to review unless there is a clear abuse. State v. Headley, 224 Mo. 177, 123 S.W. 577 (1909).

Before reaching the issue tendered by defendant, we consider the question raised by the state as to what issues have been properly preserved for appellate review. First, we note that at the hearing on competency prior to trial, defendant’s specific objection was based on Janice’s lack of “an independent recollection of the events that took place on January 18” and on her lack of understanding of the obligation to tell the truth. At trial, defendant’s specific objection was based upon the single ground that “she had no understanding of the significance” of the oath. It was not until the filing of the new trial motion that defendant objected to competency of the witness on the basis of the four pronged test set out in the Burnam case, as approved by the court in State v. Jones, supra. A party may not alter or broaden on appeal the scope of his trial objection, State v. Atkins, 494 S.W.2d 317, 319 (Mo.1973); therefore, since defendant’s sole objection at trial was limited to Janice’s understanding of the oath and the obligation to speak the truth, we hold that is the only question preserved for our consideration. See Hildreth v. Key, 341 S.W.2d 601, 608-613 (Mo.App.1960) where the appellate court held that a trial judge may not be convicted of error in overruling an objection on a theory or ground not brought to his attention at the time.

In reviewing the trial court’s determination of competency for abuse, we look to all the testimony given at the preliminary examination and the trial testimony. State v. Hastings, 477 S.W.2d 108, 112 (Mo.1972) and State v. Tillett, 233 S.W.2d 690, 693 (Mo.1950). Here, at the pretrial hearing, counsel and the court had an opportunity to question Janice, and the court had an opportunity to consider her demean- or on the stand. Janice knew her age and grade in school, the name of her school and her method of transportation, the names of her brothers and sisters and the age of her younger sister, and her address and telephone number. Janice stated that she knew the difference between right and wrong. She also stated that she knew what a lie was, that it was “bad” to lie, and that the consequence of telling a lie was punishment.

Granted, Janice testified that she did not know what it means to take an oath, but the cases do not hold this to be the sole determinative factor where there are other indications that the witness possesses an understanding of the obligation to tell the truth. State v. Robertson, 480 S.W.2d 845, 847 (Mo.1972) and State v. Young, 477 S.W.2d 114, 116 (Mo.1972).

We have examined State v. Jackson, 318 Mo. 1149, 2 S.W.2d 758 (Mo.1928); State v. Jones, supra, and State v. McCrackin, 162 S.W.2d 853 (Mo.1942) and find each to be inapposite. In Jackson, the court found the child to be “appallingly ignorant.” In Jones, the court found the testimony of the five year old child to be totally inconsistent with the physical facts. In McCrackin, the case was reversed not for abuse of discretion by the trial court, but because the testimony of the witness, a fifteen year old girl who was mentally subnormal, was so inconsistent and inconclusive as to be useless and possibly misleading. On the other hand, in the instant ease the trial judge saw and heard Janice, described her as intelligent, and stated that he was impressed with her demeanor and her basic honesty. But even more important, Janice’s father, who observed the occurrence, corroborated Janice’s testimony fully as to the transaction. And even defendant’s testimony differed from Janice’s only as to whether he had inserted his hand into her pants.

Consequently, since the court had the opportunity to see and hear the witness and to record for us its impressions of the witness and since the conclusions of the trial court are amply supported by the record, we find no abuse of discretion.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.