author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Elbert CLIFTON, Defendant-Appellant.
    No. 37022.
    Missouri Court of Appeals, St. Louis District.
    Feb. 22, 1977.
    Motion for Rehearing or Transfer Denied April 15, 1977.
    Application to Transfer May 10, 1977.

      Robert C. Babione, Public Defender, Cornelius T. Lane, Jr., Asst. Public Defender, St. Louis, for defendant-appellant.
    Preston Dean, David L. Baylard, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

Appellant, Elbert Clifton, was found guilty by a jury in the Circuit Court of the City of St. Louis of Murder in the Second Degree, § 559.020 RSMo. 1969, but the jury could not agree on the sentence, and the trial court sentenced him to fifty years in the custody of the Missouri Department of Corrections. §§ 559.030 and 550.090(3) RSMo. 1969. He appeals.

No challenge is made to the sufficiency of the evidence to support the jury verdict. Because of the refusal of the trial court to read to the jury panel, prior to the commencement of the voir dire examination, MAI-CR 1.02 we are compelled to reverse the defendant’s conviction and remand the cause for a new trial.

Trial of this cause commenced in the Circuit Court of the City of St. Louis on March 24,1975. Prior to the voir dire examination of the jury panel the trial judge addressed the panel with his version of what he deemed appropriate in lieu of MAI-CR 1.02. The defendant in his Motion for New Trial raised the point that “The Court committed prejudicial error by failing to read to the jury panel instruction number MAI-CR 1.02,” and during the course of preparing the transcript on appeal, an insert was made which reads: “The proceedings typed starting on the bottom half of pg. 46, Re: Judge giving Ins. # 1.02, and ending on middle of page 46B were had at this time.” An excerpt of the assistant circuit attorney’s voir dire examination follows this and then, at page 42 of the transcript, the following appears:

“THE COURT: It is to be noted in the Defendant’s Motion for New Trial that as ground number one, ‘The Court committed prejudicial error in failing to read to the jury panel Instruction Number M.A.I. CR 1.02.’ Defense counsel is correct. This Court does not read 1.02, hut makes the following remarks to the jury in each and every case which contains these same substances as 1.02. The remarks that the Court gave in lieu of 1.02 is as follows:” (Emphasis supplied).

The remarks made in lieu of MAI-CR 1.02 are then reported in the transcript.

We need not extend the body of this opinion with the trial court’s remarks. We have discerned, however, that there were several material and prejudicial omissions in the remarks of the trial court. They may be compared line by line in the appendix. We have carefully compared the oral remarks given by the trial court and MAI-CR 1.02 and conclude that a reversal and remand is required.

The State concedes that MAI-CR 1.02 is an instruction required to be given by the trial court in all criminal cases and that the omission or failure to read the instruction to the jury panel prior to voir dire examination constitutes error. Nevertheless, the State argues: 1) that the appellant has not preserved this point for review because he has not set forth in detail and with particularity the specific grounds of error in his Motion for New Trial and 2) that although the failure to read MAI — CR 1.02 constitutes error, its prejudicial effect must be judicially determined, Rule 20.-02(e), and that the defendant was not prejudiced because the prefatory remarks of the trial court adequately contained the substance of the matters covered in MAI — CR 1.02.

We disagree. The Motion for New Trial pointed out that this action of the trial court constituted “prejudicial error.” In civil cases a deviation from an MAI pattern instruction which did not require modification constitutes error and the burden is on the proponent of the instruction so modified to establish the absence of prejudice. Brown v. St. Louis Public Service Company, 421 S.W.2d 255, 259[3] (Mo. banc 1967); Ogle v. Terminal R. R. Ass’n of St. Louis, 534 S.W.2d 809, 812 (Mo.App.1976). In Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317, 321[4] (Mo. banc 1975) the failure to read pattern instruction MAI No. 2.02 — “Facts Not Assumed” — immediately before the form of verdict instruction, was held to be error and presumptively prejudicial because it violated the Notes on Use to that instruction. In Chapman v. Bradley, 478 S.W.2d 873[1] (Mo.App.1972) the omission from MAI No. 2.01 of eleven words in paragraph 8 of the instruction referring to the right of the trial jury to consider the interest of the witness in the outcome of the suit, and the relation of the witness to the parties to the suit in considering the weight and value of the testimony of any witness was held to be “presumptively prejudicial unless it is made perfectly clear to us no prejudice could have resulted.” McCory v. Knowles, 478 S.W.2d 682, 685[5] (Mo.App.1972) also reached the same conclusion with respect to certain other omissions from MAI No. 2.01.

In civil cases a deviation from a pattern instruction constitutes error and the burden is on the proponent to establish the absence of prejudice. The failure of the trial court to read to the jury the mandatory instruction MAI-CR 1.02 is presumptively prejudicial.

In reaching this conclusion we are not unmindful of the decisions cited by the State in support of its argument that not every deviation from an approved pattern instruction constitutes prejudicial error and that the cases decided since the effective date of MAI — CR have announced the general proposition that instructions given by a trial court which deviate from the pattern instructions but which nonetheless adequately cover the substance of the matters contained in the approved instruction do not constitute prejudicial error. The State argues that the test to be applied is whether the erroneous instruction misled, confused or affected the jury to the defendant’s prejudice. In support of this argument the State cites State v. Billingsley, 534 S.W.2d 484 (Mo.App.1975), State v. Gaye, 532 S.W.2d 783 (Mo.App.1975), State v. Vernor, 522 S.W.2d 312 (Mo.App.1975), State v. Knox, 529 S.W.2d 455 (Mo.App.1975) and State v. Witnah, 493 S.W.2d 32 (Mo.App.1973).

Of the cases cited by the State only three involve an Instruction required by the provisions of Rule 20.02(a) to be read at any specific point in the instruction phase of the case. These are State v. Vernor, supra, State v. Gaye, supra, and State v. Billingsley, supra.

Both Vernor and Gaye held that the failure of the trial court to read to the jury MAI-CR 1.08 did not constitute prejudicial error where the jury was instructed in substantially the same terms as the approved pattern instruction. In Vernor the basis for this finding was that prior to the adoption of MAI-CR there was case law which held that where the trial court instructed the jury in all cases of felony, except in capital cases, at each recess or adjournment during the trial in substantial compliance with § 546.230 RSMo. 1969, V.A.M.S. the instruction was tolerated. The Court in Vernor recognized that the requirements of MAI-CR were more stringent than the former practice; nevertheless, toleration of the former practice was the basis for that opinion.

Gaye merely followed Vernor and cited it for authority in arriving at its decision that failure to follow the Notes on Use in MAI-CR was not prejudicial to the rights of the defendant.

State v. Billingsley, supra, involved whether the failure of the trial court to instruct in compliance with the Notes on Use applicable to MAI — CR 2.03 and 2.80 specifying the numerical order in which these instructions are to be given by the trial court in submitting the case to the jury. The Notes on Use specify that MAI-CR 2.03 — “General Instructions”- — is to be read to the jury as the first of the instructions given at the close of the case and immediately prior to the argument of counsel. The Notes on Use for MAI-CR 2.80— “Verdict Mechanics: Unanimity Required” —specify that this pattern instruction is to be read to the jury in every case immediately prior to the last instruction, MAI-CR 2.68 — Argument of Counsel. The trial court in Billingsley disregarded these directions and instead read MAI-CR 2.03 as the number seven instruction rather than as the number three instruction and MAI-CR 2.80 as the number eight instruction rather than the number nine instruction as they should have been. Although the court noted the provisions of Rule 20.02(e) that violation of any applicable Note on Use constituted error and that case law establishes that any such error must be deemed prejudicial unless the contrary appears that the burden of proof to show non-prejudice was on the State, it concluded that the change of order in the giving of the instructions created no likelihood of confusion or misleading of the jury under “the particular circumstances here” and therefore the error was nonprejudicial.

Billingsley distinguished the holding in Crystal Tire Co. v. Home Service Oil Co., supra, on the basis that in Crystal Tire Co. there were a number of involved claims and cross-claims involving different theories of recovery wherein twenty-three instructions were required to present all of the diverse issues to the jury whereas in Billingsley there was but one defendant involved and only a single offense; that the factual problem for the jury was relatively simple with the trial completed in one day; and that the jury was presented with but a single, narrow, sharply defined issue, i. e. to choose between two contradictory witnesses. By reason of these distinctions the court in Billingsley held Crystal Tire Co. was not controlling.

Both State v. Knox, supra, and State v. Witnah, supra, involved the question of error in the giving of converse instructions in contravention of MAI-CR 2.04 and, except for the general principle that our appellate courts have tolerated violations of MAI-CR and found nonprejudicial error, are no authority for the resolution of the issue in this case.

Neither party to this appeal has favored us with any authority on the point presented; however, our research has brought us to State v. Thomas, 526 S.W.2d 393 (Mo.App.1975) — a case decided on August 4, 1975, while this appeal was pending — where the question presented was whether the trial court erred prejudicially “in failing to give to the jury MAI-CR 1.02, as mandato-rily required by Rule 20.02 V.A.M.R.” Because the appellant failed to furnish the Kansas City District with a transcript containing anything other than an entry that “(A jury was duly examined, selected and sworn by the Deputy Circuit Clerk.)” the court held that the appellant failed to show that he suffered prejudicial error. The court said, 1. c. 394[1]:

“It was appellant’s duty to incorporate the portions of trial record relating to the examination and selection of the jury, so that this court would know whether there was a complete failure to give MAI-CR 1.02, or whether there was a material deviation in whatever was done in the examination and selection of the jury from the instruction. This is necessary for this court to determine the error, if any, and to judicially determine its prejudicial effect under Rule 20.02(e). There is no suggestion from appellant that whatever was done, or omitted to have been done, was prejudicial to his rights, or denied him a fair trial. Prejudice cannot exist in the vacuum of a mere alleged failure to give this instruction. Prejudice must arise from some act or misconduct in the trial which affected its outcome. A showing of any such matter is lacking and appellant’s first point is overruled.”

Thomas is distinguishable because there was a complete failure to present to the reviewing court any record upon which it could make a determination of the prejudice occasioned by the omission of MAI — CR 1.02.

We are aware of the duty of the appellant to bring to the appellate court a record on appeal to support his alleged trial errors which worked to prejudice him during the course of the trial, Davis v. Long, 521 S.W.2d 7, 8[3] (Mo.App.1975); however, if any error in the giving of instructions in a criminal case must be deemed to be prejudicial unless the contrary appears, as the court said in State v. Billingsley, supra, we conclude that an allegation that the trial court did not give a mandatory instruction in compliance with the Notes on Use in MAI-CR and the trial court admits in the record that in lieu of the mandated instruction it gave its own version of MAI-CR 1.02, the error is presumptively prejudicial.

The defendant has alleged in this court nine omissions from MAI — CR 1.02 in the instruction given by the trial court. Our search does not reveal that number, although we have found sufficient omissions to sustain the defendant’s complaints.

MAI-CR instructions are the product of the tireless efforts of a Special Committee of the Missouri Bar appointed for the purpose of formulating pattern instructions for use in criminal cases followed by an interchange of ideas and redraftmanship in cooperation with the Supreme Court towards the end that there be fewer reversals of convictions by reason of faulty instructions and so that statewide uniformity in the reading of instructions to juries in criminal cases would be achieved. The particular instruction here, MAI-CR 1.02, is the product of thorough study by representatives of the circuit bench, prosecutors, defense counsel and law professors knowledgeable in the administration of criminal justice, adopted only after submission to many members of the Bar and consideration by both the Board of Governors of the Missouri Bar and the members of the Supreme Court. The Supreme Court mandated its reading to the jury by all trial judges of this State prior to the voir dire examination of the jury panel. We can conceive of no reason why these directions of the Supreme Court should not be followed by the trial courts of Missouri.

Judge McMillian of this court pointed out the danger of continued excursions from the approved pattern instructions in criminal cases by the trial courts of Missouri in his concurring opinion in State v. Mills, 521 S.W.2d 495 (Mo.App.1975), when he said at 1. c. 497:

“Where there are approved MAI-CR instructions applicable in a particular case which the appropriate party requests or the court decides to submit, such instructions should be given, without either additions or deletions, to the exclusion of any other on the same subject matter. While it is true that Order 20.02(e), Use of Instructions and Verdict Forms, P. VIII, provides: ‘Giving or failing to give an instruction ... in violation of this Rule or any applicable Notes on Use shall constitute error, its prejudicial effect to be judicially determined,’ yet if this practice is encouraged by subjective judicial constructions the exceptions may well become better known than the rules themselves. In other words, if we, the judiciary, constantly give currency to this practice, the value and benefits to be derived from the adoption of pattern instructions and the time and efforts extended by our committee of the Missouri Bar on Criminal Pattern Instructions will both be lost.” (Emphasis supplied).

The appellate courts are deluged with appeals and could well do without the additional chore of examining those cases where error by reason of unnecessary deviations, modification or “subjective judicial constructions” of the approved pattern instructions is raised to ascertain whether prejudice resulted. We believe we are compelled by the Supreme Court Rules to insist on strict compliance with the Rule and the Notes on Use applicable to MAI-CR.

We have examined defendant’s other two points, i. e. (1) that the trial court erred in failing to give an instruction on justifiable homicide, MAI-CR 2.40 and (2) in failing to incorporate the term “agitation” in MAI-CR 6.06 — Murder Second Degree — -and hold that under the evidence viewed most favorably for the defendant the trial court did not err as defendant contends and we rule both of these points against him.

Reversed and remanded for a new trial.

All Judges concur.

Appendix I to follow.

APPENDIX I

MAI-CR 1.02

1. The trial of a case starts with the selection of a jury of qualified and impartial people. In order to obtain such a jury, all of you have been summoned as prospective jurors.

Trial Court’s Paraphrase

Ladies and gentlemen of the jury panel: you have been sent from the central jury room in the Civil Courts Building to Division 19 of the Circuit Court of the City of St. Louis which is one of the trial divisions of our court that handles criminal or felony matters.

Now, members of the jury panel, those of you who have served on juries previously know that at this stage of a lawsuit questions are asked of you testing your qualifications.

—Does not mention that the jury must be impartial, which is the basic purpose of voir dire — leaves jury panel confused as to what the questions during voir dire will be attempting to ascertain and thus members of the panel may omit relevant facts in their answers on voir dire through uncertainty or confusion. (This error is amplified by later failure of trial court to ask whether any of the jury panel is familiar with counsel on either side).

2. The law requires that counsel for the state and counsel for the defendant each cross off a certain number of names from the list, leaving a jury of twelve . Those of you who are excused during the voir dire examination or at the end of it should not feel offended. You all are qualified to serve as jurors but some of you necessarily will be excused from serving in this particular case.

You are all qualified or you wouldn’t be here. Nevertheless, these lawyers are entitled to know something about you to enable them to select twelve of your number who will try the issues in this case and sit as a jury. When these questions are asked of you, I ask that you speak out loud so that we can all hear you, particularly the court reporter here who must take down every word that is said.

—Not as clear as MAI in conveying that this is not a “pass or fail” situation and that answers should thus not be given defensively but as fully as possible.

3. In order to assist the attorneys to perform this function and duty, it is necessary that you be asked various questions. The court may ask you some questions and counsel may ask you some questions. Your answers will assist the court in determining whether it should excuse you from serving in this case and will assist the attorneys in making their selection of the twelve of you who will be the jury and hear this case.

Thus, you will understand that the questions which are asked of you are not meant to pry into your personal affairs, but, rather, are necessary in the process of selecting a jury of twelve.

Now, I am going to ask you some questions and the lawyers will ask you some questions. It is not our intention to pry into your personal affairs. These questions are merely sought to determine something about you to enable the lawyers to make their selections.

—Fails to mention that the court as well as counsel may make decisions on eliminations from the jury panel.

4. Since this is an important part of the trial, you are required to be sworn before questions are asked. You will, of course, listen carefully to all questions, and you must answer all of them under oath.

Take your time. Seach your memory before answering. Some of the questions may require you to recall experiences during your entire lifetime. If you do not understand the question, raise your hand and say so. If, later on, during your examination, you remember something which you failed to answer before or which would modify an answer you gave before, raise your hand and you will be asked about it. Your answers must not only be truthful but they must be full and complete.

Wholly omitted — very prejudicial in failing to impress upon the jury panel: 1) the importance of voir dire; 2) how carefully and fully each member of the panel should consider each question; and 3) that the panel is allowed and encouraged to ask questions when they are uncertain and to return to topics previously discussed in the voir dire proceeding if they suddenly remember relevant information.

5. The case which twelve of your number will try is one in which it is charged by the state that (on) (on or about) _ in the (City) (County) of_, State of Missouri, the defendant ( '), committed the offense of ( ). 6. The defendant denies the charge. Thus, an issue of fact has arisen which must be decided by a jury, subject to instructions concerning the law which the court will give to the jury. (One of the issues of fact is whether at the time of the offense charged, the defendant was suffering from a mental condition, which, if found by the jury to have existed, would have certain consequences in law about which the jury will be told at the close of all the evidence in the case. The defendant is entitled to raise this issue without admitting either that the offense charged against him was committed or that he is guilty of it.)

The particular case that has been assigned here for trial at this time is the case of State of Missouri versus Elbert Clifton. The defendant, Elbert Clifton, has been charged by Grand Jury Indictment with the crime of murder in the Second Degree. To this charge he pleads not guilty and thereby creating a question of fact for a jury to determine.

—Less clear than MAI — and omits the “mental condition” example of an issue of fact— and that jury decision is subject to instructions concerning the law.

7. The state is represented here by Mr. _. Do any of you know him personally or have you had any business dealings with him?

The defendant is represented here by Mr. _ of the law firm of_ and_. Do any of you know him personally or have you had any business dealings with him or his law firm?

Trial Court’s Paraphrase — Continued

In this case the State of Missouri will be represented by Mr. Henry J. Fredericks who sits now at counsel table. Mr. Fredericks is an Assistant Circuit Attorney on the staff of Brendan Ryan, the Circuit Attorney of the City of St. Louis. Seated across at the other table is Mr. Cornelius Lane. Mr. Lane is a special assistant on the staff of the Public Defender’s office in this city and next to Mr. Lane is the defendant, Elbert Clifton.

Failed to inquire whether any of the jury panel have any connections with counsel for either side. Also, along with the omission of the word “impartial” in paragraph #1 above, this oversight marks a failure at any point in this instruction to convey to the jury panel that voir dire is basically intended to reduce the jury panel to the twelve least partial members, and that any personal connection to any aspect of the trial procedure should be brought out by panel members during voir dire.

8. Those twelve of you selected as the jury will be instructed later that you are not to discuss this case with anyone or among yourselves until the case is concluded and you are sent to your jury room with written instructions upon the law of the ease to deliberate upon your verdict. However, you should be told now that the attorneys representing the state and the defendant are officers of this court and as such are under a duty not to do anything which may even seem improper. Therefore, at recesses and adjournments they will avoid saying anything to the jury besides “Good morning” or “Good afternoon.” In doing that they do not mean to be unfriendly but are simply doing their best to avoid even an appearance, which might be misunderstood, that they or you are doing anything improper.

The same applies to witnesses and to the defendant. They have been or will be instructed to avoid all contacts with the jury, even to talk about matters wholly unrelated to this case.

Wholly omitted.

APPENDIX II.

CASES DISCUSSING AND RULING ON MODIFICATIONS OR DEVIATIONS FROM MAT-OR.

SUPREME COURT:

State v. Abram, 537 S.W.2d 408 (June 14,1976)

COURT OF APPEALS:

State v. Grothe, 540 S.W.2d 221 (S.L. Aug. 10, 1976) (MAI-CR 10.18)

State v. Brewer, 540 S.W.2d 229 (S.L. Aug. 10, 1976) (MAI-CR 18.10)

State v. Carter, 541 S.W.2d 692 (S.L. July 20, 1976) (MAI-CR 7.22)

State v. Billingsley, 534 S.W.2d 484 (K.C. Dec. 31, 1975) (MAI-CR 2.03 & 2.08)

State v. Adams, 531 S.W.2d 763 (K.C. Dec. 8, 1975) (MAI-CR 2.12, 7.62)

State v. Gaye, 532 S.W.2d 783 (S.L. Nov. 25, 1975) (MAI-CR 1.08)

State v. Knox, 529 S.W.2d 455 (S.L. Sept. 16, 1975) (MAI-CR 7.62, 2.04)

State v. Thomas, 526 S.W.2d 893 (S.L. Aug. 5, 1975) (MAI-CR 7.04, 7.06)

State v. Thomas, 526 S.W.2d 393 (K.C. Aug. 4,1975) (MAI-CR 1.02)

State v. Vernor, 522 S.W.2d 312 (S.L. April 15, 1975) (MAI-CR 1.08)

State v. Brewster, 525 S.W.2d 427 (K.C. March 31, 1975) (MAI-CR 1.02)

State v. Mills, 521 S.W.2d 495 (S.L. March 25, 1975) (MAI-CR 7.02)

State v. Fox, 521 S.W.2d 507 (S.P. March 24, 1975) (MAI-CR 7.62)

State v. Alberts, 519 S.W.2d 562 (S.L. Feb. 11, 1975) (MAI-CR 7.70).


source: Caselaw Access Project

author: McMILLIAN, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. David R. PAGLIARA, Relator, v. The Honorable Harry J. STUSSIE, Judge of the Circuit Court of St. Louis County, Missouri, Div. No. 2 of the Twenty-First Judicial Circuit of the State of Missouri, Respondent.
    No. 38587.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 22, 1977.

      Daniel G. Tobben, St. Louis, for relator.
    Finch, Bradshaw, Strom & Steele, John P. Bradshaw, Cape Girardeau, for respondent.
   McMILLIAN, Presiding Judge.

This is an original proceeding whereby relator seeks a writ of mandamus to compel reinstatement of his suit which respondent judge had dismissed for lack of proper venue.

The pertinent facts may be simply stated. Defendant, Gideon-Anderson Lumber Company (hereinafter referred to as Gideon-Anderson) is a domestic manufacturing and marketing corporation with its central offices in New Madrid County in Gideon, Missouri. The company employs William O’Connor as its “special representative” in St. Louis for solicitation of orders for beverage cases from several large St. Louis buyers. O’Connor also solicits orders in four other midwestern states. The sale of beverage cases constitutes about one-third of Gideon-Anderson’s diversified business. Gideon-Anderson maintains no regular office or desk for O’Connor in its Gideon, Missouri, facilities. O’Connor maintains and pays for a St. Louis County business post office box. He testified that he receives business calls at his home and uses a company credit card for business calls made from his residence. ■

Relator commenced employment with Gideon-Anderson in October, 1974. Relator’s employment was terminated in July, 1975, ostensibly because he refused to move from St. Louis to Gideon, Missouri. Following termination, Gideon-Anderson issued a service letter to relator pursuant to § 290.-140.

Relator’s suit against Gideon-Anderson was in two counts. Service was properly made on Gideon-Anderson’s president at his home in St. Louis County. Count I of relator’s petition alleged wrongful termination of employment. Count II was based on the service letter issued to relator. Relator’s brief attempts to characterize Count II as an action for damages for libelous statements allegedly contained in the service letter. A reading of Count II of relator’s petition filed in the trial court, however, reveals that the basis of this count is simply the allegation that the service letter was untrue.

Relator contends that venue for both counts of his action was proper in St. Louis County under § 508.040 because the defendant corporation maintains “an office or agent for the transaction of their usual and customary business” in St. Louis County. Relator further contends that venue as to Count II, the “libel” count, can be found in St. Louis County under the first publication rule of § 508.010(6) on the basis that the first publication of the “libelous” letter occurred when relator received the letter in St. Louis County. Defendant asserts that tests for the sufficiency of agency to legitimize service of process under Rule 54.-13(a)(3) are equally applicable to determination of the propriety of venue and, therefore, denies that the presence of its St. Louis County employee, William O’Connor, represents a sufficient presence in St. Louis County to amount to the maintenance of “an office or agent for the transaction of their usual and customary business.” Finally, defendant contends that respondent judge has made a factual determination of the alleged bases for venue and that such a determination is not properly reviewable by a writ of mandamus.

Relator has previously filed an appeal in this court from the trial court’s dismissal order. By a per curiam opinion of August 31, 1976, this court’s dismissed relator’s appeal because the trial court’s order was not a final, appealable order under § 512.020. The court suggested that the relator might properly seek a writ of mandamus to obtain relief. Relator then instituted this mandamus action. A peremptory writ issued November 16, 1976. We find that, under a proper interpretation of the statutory requirements for venue, there is no defensible basis for the dismissal for lack of venue and, therefore, make the writ of mandamus absolute.

As we have noted, relator’s brief characterizes Count II of his action as an attempt to recover damages for allegedly libelous material contained in the service letter issued by Gideon-Anderson. Undeniably allegations in a service letter may give rise to a libel action, see e. g., Williams v. Kansas City Transit, Inc., 339 S.W.2d 792 (Mo.1960) and venue in libel actions is controlled by § 508.010(6) which provides that “in any action for defamation or for invasion of privacy the cause of action shall be deemed to have accrued in the county in which the defamation or invasion was first published.” Relator’s theory that first publication for venue purposes may occur when and where the libelous material is received by the plaintiff has been adopted by some Missouri courts, see, e. g., Wright v. Great Northern Ry. Co., 186 S.W. 1085, 1087 (Mo.App.1916); Bedell v. Richardson Lubricating Co., 226 S.W. 653, 656 (Mo.App.1920); Jacobs v. Transcontinental & Western Air, Inc., 205 S.W.2d 887, 894 (Mo.App.1947) quashed on other grounds 358 Mo. 674, 216 S.W.2d 523 (1948), but severely criticized by other Missouri courts, see, e. g., Howard v. Wilson, 195 Mo.App. 532, 192 S.W. 473, 475 (1917); Jacobs v. Transcontinental & Western Air, Inc., supra, at 895-6 (dissenting opinion by Cave, P. J.). Fortunately, we need not become embroiled in this controversy because venue in St. Louis County for both counts of relator’s action is justifiable under § 508.040, the general venue statute for suits against corporations.

Section 508.040 provides that:

“Suits against corporations, where commenced
“Suits against corporations shall be commenced either in the county where the cause of action accrued, or in case the corporation defendant is a railroad company owning, controlling or operating a railroad running into or through two or more counties in this state, then in either of such counties, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.”

We have discovered no Missouri cases elucidating the meaning of “office or agent for the transaction of their usual and customary business.” In support of its contention that “agent” as used in § 508.040 must be defined as that term is defined under Rule 54.13(a)(3), the rule controlling service of process in suits against corporations, respondent directs our attention to three cases. None of the cases is persuasive or even clearly relevant.

In the first case cited by respondent, State ex rel. M.F.A. Mut. Ins. Co. v. Rooney, 406 S.W.2d 1 (Mo. banc 1956), Judge Holman found that defendant’s agent upon whom service was made was not a “general agent” so as to make service of process adequate, id. at 4. The court expressly declined to decide any issue of venue, id. at 5. In another case cited by respondent, Litzinger v. Pulitzer Publishing Co., 356 S.W.2d 81 (Mo.1962), plaintiff brought a libel action and sought to predicate venue in St. Louis County on the bases that the libelous matter had been published in the county and, therefore, accrued in St. Louis County under § 508.040 and/or that the presence of defendant’s reporter in the county allowed the corporate defendant to be “found” in the county within the meaning of § 508.010(1). The sufficiency of agency for venue under § 508.040, as involved in the present case, was not at issue in Litzinger. In the final case cited by respondent, State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62 (1956), the issue was the sufficiency of agency to satisfy the due process requirements of service of process statutes, id. at 66. The court did note that venue was not established under § 508.040 because defendant corporation maintained no office or agent in the county where the suit was instituted, id. at 65. The broad statement of the Weinstein court that “service statutes and venue statutes are necessarily construed together,” id. at 66, does not convince us, as argued by respondent, that it would be “ridiculous” to define agent for venue purposes differently than defined for jurisdiction and service of process statutes.

We are of the opinion that “agent” as used in § 508.040 need not be defined in the same way as it has been defined in service of process cases. Initially, we note that in State ex rel. Whiteman v. James, 364 Mo. 589, 265 S.W.2d 298 (1954), the Missouri Supreme Court suggested in dicta that a foreign corporation, which is a sole defendant, could be sued in any county in which it maintains an office or place of business even though its registered agent and office may be in another county, id. at 299. Additionally, the Missouri Supreme Court has recognized the narrow definition and special significance of “general agent” as used in the service of process statutes. Section 508.040 is not drafted in terms of a “general agent” but simply requires that the agent be one for the “transaction of their (the corporations) usual and customary business.” The legislature’s failure to utilize the term of art “general agent” in § 508.040 arguably suggests a distinction between venue and service of process statutes. Finally, and perhaps most significantly, we observe that § 508.040 allows for venue in suits against corporations where the cause of action accrued irrespective of the presence of any office or agent of the defendant corporation in that locale. This broad provision for venue in suits against corporations clearly suggests that the criteria for venue are not identical to the tests for sufficiency of service of process. “ . The requirements of jurisdiction are grounded in the state’s inherent judicial power while requirements of venue are grounded in convenience to litigants . .” 77 Am.Jur.2d, Venue, § 1, p. 832.

In light of the policy of broadly subjecting corporations to suit, we conclude that there is no reason to narrowly define “agent” as used in § 508.040. The standard definition of “agent” as “a person authorized by another to act for him, one intrusted with another’s business,” Black’s Law Dictionary, p. 85 (4th Ed. 1968), seems sufficient to serve the convenience objectives to which venue statutes are directed. Under this broad definition of “agent,” the trial court’s dismissal of the relator’s cause of action for lack of venue was without justification in the evidence. All of the evidence indicated that O’Connor’s status at least rose to the level of a person authorized by Gideon-Anderson to act for it on a regular basis in its St. Louis County sales efforts. Venue was, therefore, proper in St. Louis County under § 508.040.

Accordingly, the writ of mandamus is made absolute.

SMITH and STEWART, JJ., concur.

      . All statutory references are to RSMo 1969.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri ex rel. Leo L. PISAREK and June L. Pisarek, Relators, v. The Honorable Donald E. DALTON, Judge, Circuit Court of the 11th Judicial Circuit, for the State of Missouri, St. Charles, Missouri, Respondent.
    No. 38093.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 5, 1977.
    Ernest L. Keathley, Jr., St. Louis, for relators.
    Reginal P. Bodeux, Paul F. Niedner, Ni-edner, Moerschel, Ahlheim & Bodeux, St. Charles, for respondent.
   ALDEN A. STOCKARD, Special Judge.

This is an original proceeding in mandamus brought by Leo L. and June L. Pisarek, husband and wife, to compel the respondent judge to vacate his order dismissing Counts IX, X and XI of their petition wherein they sought damages for breach of a contract. We issued our alternative writ, but we now conclude it was improvidently granted.

In Count I of their petition plaintiffs alleged that they entered into a contract with the Alfred Schroeder Development Co., Inc. (there were other defendants named but that is immaterial to this proceeding) whereby it agreed to construct for plaintiffs a dwelling house according to certain plans and specifications for the sum of $32,639.10, but that defendant breached the contract in that the house had nineteen defects, described in the petition, and that by reason of said breach plaintiffs sustained damages in the amount of $7,000.00. Count II, in the alternative to Count I, alleged a breach of implied warranty of fitness.

In Count IX plaintiffs alleged that in order to pay the expenses of making the needed repairs and to correct the defects in construction, they were required to borrow $5,000.00 at an annual rate of 7%, and as a result they were further damaged in the amount of $1,400.00, the amount of interest they were required to pay. Judgment was sought in that amount.

Count X, in the alternative to Count IX, alleged a claim for the same item of interest based on the theory of a breach of implied warranty of fitnesses, as alleged in Count II.

In Count XI plaintiffs sought punitive damages. They alleged that after they notified the contractor of the existence of the defects, promises and assurances were made that the defects would be corrected which at the time made were not intended to be kept, and that relying on said promises and assurances plaintiffs did not timely exercise their privilege under the Truth in Lending Act to cancel the deed of trust on said property securing a note in the amount of $13,000.00, but that they subsequently paid the note and were thereby damaged in the amount of $13,000.00. Plaintiffs prayed for punitive damages in the amount of $80,-000.00.

The traditional function or purpose of the writ of mandamus is to enforce, not establish, a claim of right, State ex rel. and to use of Crites v. Short, 351 Mo. 1013, 174 S.W.2d 821 (1943), or as frequently stated, to execute, not to adjudicate. State ex rel. Phillip v. Public School Retirement System of City of St. Louis, 364 Mo. 395, 262 S.W.2d 569 (banc 1953). The general rule is that “to warrant control by mandamus, there must be an existing, clear, unconditional, legal right in relator, and a corresponding present, imperative, unconditional duty upon the part of respondent, and a default by respondent therein.” State ex rel. Public Service Commission of Missouri v. Missouri Pacific R. Co., 280 Mo. 456, 218 S.W. 310, 311 (banc 1919). Without attempting to determine whether relators’ claim would otherwise be within the scope of mandamus as briefly outlined, the writ of mandamus will not be issued when there is an adequate ordinary remedy, and particularly so when that remedy is by way of appeal. State ex rel. Keystone Laundry and Dry Cleaners, Inc. v. McDonnell, 426 S.W.2d 11 (Mo.1968); State ex rel. M. B. v. Brown, 532 S.W.2d 893 (Mo.App.1976); State ex rel. Crites v. West, 509 S.W.2d 482 (Mo.App.1974).

Mandamus does not ordinarily lie to review the sufficiency of pleadings and the rulings relating thereto. 52 Am.Jur.2d Mandamus § 334; 55 C.J.S. Mandamus § 85. The only exception is where appellate review is not adequate. See for example, State ex rel. Broglin v. Nangle, 510 S.W.2d 699 (Mo. banc 1974); Holtz v. Superior Court of City & Co. of San Francisco, 3 Cal.3d 296, 90 Cal.Rptr. 345, 475 P.2d 441 (banc. 1970). Whether another remedy is adequate is a.matter for the court’s discretion. State ex rel. Roberts v. Wilson, 221 Mo.App. 9, 297 S.W. 419 (1927).

In the chapter on mandamus in MoBar CLE Missouri Appellate Practice and Extraordinary Remedies, 2d Ed., § 8.3, it is stated that the courts “are extremely reluctant to infringe upon the normal appellate process by extending the scope of any extraordinary legal remedy,” and that the courts “believe that generally the normal appellate process is adequate and best serves the purpose of the judicial process.” It is further stated that “if extraordinary legal remedies were allowed to override the normal appellate process where the usual appeal would function to obtain justice, confusion if not chaos would be generated.”

When the trial court dismissed Counts IX, X and XI it did not designate its order of dismissal a “final separate judgment for purposes of appeal” which it could have done pursuant to Rule 81.06. See Johnson v. Great Heritage Life Insurance Co., 490 S.W.2d 686 (Mo.App.1973); Title Insurance Corporation of St. Louis v. United States, 432 S.W.2d 787 (Mo.App.1968). But, the record before this court does not indicate that the trial court refused a request of plaintiffs to so designate its order of dismissal. Ordinarily, mandamus is not available until all ordinary remedies are exhausted, State ex rel. Scott v. Scearce, 303 S.W.2d 175 (Mo.App.1957), and if plaintiffs had requested, or should now request, the dismissal order to be so designated we see no positive barrier to its approval. We are not to assume that respondent would not exercise his discretion favorably to such a request. When the order of dismissal is so designated, a complete and adequate remedy is available by way of the ordinary and favored process of appeal.

Our alternative writ was improvidently granted. It is therefore discharged and the peremptory writ is denied.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: GUNN, Judge.

text:
    Guadalupe HERNANDEZ and Wilma Hernandez, his wife, Plaintiffs-Respondents, v. WESTOAK REALTY AND INVESTMENT, INC., and Custom Builders Corporation, Defendants-Appellants.
    No. 37497.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 5, 1977.

      Deeba, DeStefano, Sauter & Herd, James J. Sauter, St. Louis, for defendants-appellants.
    Roberts & Roberts, Clinton B. Roberts, Geoffrey L. Pratte, Farmington, for plaintiffs-respondents.
   GUNN, Judge.

A default judgment was rendered by the trial court against defendants-appellants Westoak Realty Co., Inc. (Westoak) and Custom Builders Corporation (Custom Builders). Westoak and Custom Builders filed motions with the trial court to set aside the judgments, and the trial court overruled the motions without hearing. Appeal has been taken from the trial court’s order overruling the motions, and we remand for hearing on the motions.

The sequence of events leading to this appeal commenced on June 24, 1972 with plaintiffs-respondents entering into a contract with Custom Builders for the construction of a shell house to be built in Ste. Genevieve County. In conjunction with the construction contract, plaintiffs executed a promissory note to Westoak, secured by a deed of trust on the real estate upon which the shell house was to be constructed. James Sauter was designated as trustee on the deed of trust. Mr. Sauter was also attorney for Westoak and Custom Builders and was an officer and director of each. In January, 1975 Westoak instituted foreclosure proceedings against the real estate with the foreclosure sale set for February 10, 1975. To prevent the foreclosure sale and for other relief, plaintiffs instituted a two count action in the Ste. Genevieve County Circuit Court. Count I of the petition sought to enjoin James Sauter and Westoak from proceeding with the sale; Count II sought monetary damages against Custom Builders for alleged construction defects in the house. On February 24, 1975 Westoak, Custom Builders and Sauter, as trustee, filed separate motions to dismiss plaintiffs’ petition. The motions to dismiss were overruled on April 1, 1975. Subsequently, on May 28, 1975 plaintiffs filed their first amended petition in four counts. In Count I plaintiffs alleged that the foreclosure sale had occurred; that due to his relationship with Westoak, James Sauter failed to possess the impartiality required of a trustee; that the price paid for the land by Westoak as sole bidder at the foreclosure sale was so inadequate as to be unconscionable. Plaintiffs under Count I of the amended petition prayed that the foreclosure sale be rescinded, set aside and the trustee’s deed be cancelled. Count II of plaintiffs’ amended petition sought $5,000 damages from Sauter and Westoak by reason of the unconscionable sale. Count III restated the allegations of Count II of the original petition for damages against Custom Builders for defective construction work. Count IV of the amended petition stated an alternative theory of recovery against Custom Builders seeking $30,000 damages for breach of implied warranty of fitness by reason of the faulty house construction. Thus, except for Count III of the amended petition — Count III having a restatement of Count II of the original petition — plaintiffs’ amended petition stated a different cause of action from that set forth in the original petition.

On June 10, 1975 the case was set for trial as a jury waived case to be heard on September 23, 1975. On June 25, 1975 defendant Sauter, for himself only, filed a separate motion to dismiss plaintiffs’ amended petition as to him. Neither West-oak nor Custom Builders filed motions or responsive pleadings of any kind to plaintiffs’ amended petition.

On September 19, 1975, Mr. Sauter received a telephone call from the clerk of the trial court reminding him that the case was set for trial on September 23. On the same day that he received the clerk’s call, Mr. Sauter sent a memo to the. trial court seeking to withdraw as counsel for defendants Westoak and Custom Builders. The cover letter with the memo indicated that Mr. Sauter intended to seek plaintiffs’ counsel’s consent to a continuance of the case from September 23. Mr. Sauter also sent a letter to plaintiffs’ attorney advising him that he had withdrawn as counsel for Westoak and Custom Builders and was seeking a continuance from the September 23 trial date, but the record does not indicate that plaintiffs’ counsel took any affirmative action regarding Mr. Sauter’s letter. On either September 19 or 20, Mr. Sauter received a copy of the trial court’s docket sheet indicating that the case had been placed on the call docket for October 7, 1975, the court’s law day. The docket sheet shows that plaintiffs and James Sauter, as a named defendant, were represented by counsel, but no counsel of record was listed for either Westoak or Custom Builders.

The trial court called the case for trial on September 23, 1975, as originally scheduled. No one appeared on behalf of Westoak or Custom Builders, nor did Mr. Sauter appear. After hearing evidence presented by plaintiffs, the trial court entered judgment against Westoak on Count I of the amended petition, thus setting aside the foreclosure sale. Judgment was also entered against Custom Builders on Count IV of the amended petition — $29,588.46 judgment for breach of implied warranty of fitness on the construction of plaintiffs’ house. The suit against defendant James Sauter and Counts II and III of the amended petition were dismissed by plaintiffs. During the September 23 hearing, the trial court specifically noted that there had been no responsive pleadings filed on behalf of the defendants to plaintiffs’ amended petition. But it is apparent that the default judgment rendered by the trial court was on the basis of Westoak’s and Custom Builders’ failure to appear on the scheduled trial date rather than a judgment for defendants’ failure to plead responsively.

On September 23, 1975, after the default judgment had been rendered, Mr. Sauter was informed by the circuit clerk that judgment had been entered against Westoak and Custom Builders. Mr. Sauter, acting as counsel for Westoak and Custom Builders, filed separate motions to set aside the judgments. On October 7 Mr. Sauter and counsel for plaintiffs appeared before the trial court, and Mr. Sauter sought a date for a hearing on the motions to set aside the judgment. The trial court summarily overruled the motions to set aside without permitting Mr. Sauter to make a record concerning the merits of his motions.

Under the circumstances of this case we believe that Westoak and Custom Builders should be afforded the opportunity for a presentation in support of their motions to set aside. In so ruling we do not consider the merits of the motions. We also forebear an incursion into the issue of whether the trial court may enter a judgment nihil dicit, for, indeed, no pleadings or motions have been filed by Westoak or Custom Builders to plaintiffs’ amended petition. We must observe, however, that Westoak and Custom Builders have a deep chasm to leap in that regard, but that matter is not before us — only the issue of whether the trial court erred in summarily overruling Westoak’s and Custom Builders’ motions to set aside the default judgment.

We now consider the legal rubric concerning the setting aside of default judgments. A party seeking to have a default judgment set aside must allege and prove that he exercised reasonable diligence or has good excuse for being in default; that he has a meritorious defense to the principal action; and that the opposing party will not be substantially harmed by the delay of a new trial. Gorzel v. Orlamander, 352 S.W.2d 675 (Mo.1961); Human Development Corp., etc. v. Wefel, 527 S.W.2d 652 (Mo.App.1975); Distefano v. Kansas City Southern Ry. Co., 501 S.W.2d 551 (Mo.App.1973); Rose v. Rose, 401 S.W.2d 946 (Mo.App.1966). The motion to set aside must allege facts demonstrating reasonable dili gence or good excuse for the default as well as showing the existence of meritorious defenses to the plaintiff’s action. Gorzel v. Orlamander, supra; State ex rel. Diners’ Financial Corp. v. Swink, 434 S.W.2d 593 (Mo.App.1968); Rose v. Rose, supra. Furthermore, a motion to set aside a judgment does not prove itself; thus, if the motion contains sufficient allegations of fact for its support, the motion thus must be verified, or supported by affidavits or sworn testimony produced at the hearing on the motion. Gorzel v. Orlamander, supra; Ward v. Cook United, Inc., 521 S.W.2d 461 (Mo.App.1975); Rose v. Rose, supra.

The motions filed by Westoak and Custom Builders to set aside the default judgments alleged facts in elaborate detail which were directed to the issue of excuse for failure to appear on September 23,1975. Defendant’s attorney (Mr. Sauter) particularly asseverated that by reason of the docket sheet indicating that the case had been placed on the trial court’s October 7, 1975 call docket, he had assumed the case, based on his request for continuance, had been continued to that date. The motions to set aside were not supported by affidavit, but we believe that Westoak and Custom Builders should be given opportunity to prove the facts alleged by producing sworn testimony at a hearing on the motions. Defendants’ motions to set aside assert defenses available to contest plaintiffs’ action. Although both motions contain defenses that cannot properly be raised in a motion to set aside a default judgment, each motion contains at least one defense which could properly be raised. Defendant Custom Builders alleges that there has been a settlement of the dispute between it and the plaintiffs. By having its motion summarily overruled, Custom Builders was not afforded an opportunity to present evidence to support this allegation. Defendant Westoak, in its motion, alleges that the plaintiffs’ pleadings were fatally defective. By being denied a hearing, Westoak was unable to argue the merits of its position. The motions of both defendants sufficiently raised grounds for setting aside the judgments of default rendered against them. Defendants should thereby be given an opportunity to prove the facts alleged and have the merits of their claims heard. We therefore reverse the trial court’s overruling of the two motions to set aside the default judgments and remand the matter for hearing.

KELLY, P. J., and JAMES R. REIN-HARD, Special Judge, concur.

      . The land, having an estimated value of .$6,000, was sold at foreclosure for $500.

      . On September 23, the trial court denied Mr. Sauter’s withdrawal request. A continuance was never granted.

      . The trial court: “Now I find that on May the 6th, 1975, that this case was especially set for September 23rd, 1975, and at which time both sides waived a jury. Now, that’s the docket entry.”
      The record fails to explain how the case would have been tried on September 23, 1975, for it was apparently not at issue. But in view of our decision, it is of no matter.

      .The only motions filed by Westoak and Custom Builders were motions to dismiss plaintiffs’ original petition; these motions were overruled prior to the filing of the amended petition. We have pointed out that the amended petition stated a different cause of action which under Rule 55.33(a) requires a response.

      . For example, a bare allegation that the defaulting party had a meritorious defense has consistently been held to be a mere conclusion and insufficient without an accompanying allegation of facts showing what the defense is as well as its meritorious and sufficient nature. Gorzel v. Orlamander, supra; State ex rel. Diners’ Financial Corp. v. Swink, supra; Rose v. Rose, supra.

      . Ward v. Cook United, Inc., supra, is illustrative. In Ward, the defense asserted to refute the plaintiff’s action was contained in an unverified motion to set aside the judgment and in counsel’s affidavits which merely stated that the defendant had a meritorious defense. The court held that as the record was devoid of any facts showing a meritorious defense, it could not be said that the trial court abused its discretion in overruling the defendant’s motion. The court stated that the unverified motion and affidavit were necessarily hearsay and that the defendant’s witness, who had known of the relevant facts, had not been proffered as a witness, nor was the witness’s affidavit offered at the evidentiary hearing on the motion.

      .Both motions contain attacks on the sufficiency and the nature of the plaintiffs’ evidence produced at the default hearing on September 23. These claims are not sufficient to have a default judgment set aside. Fulton v. I. T. & T. Corp., 528 S.W.2d 466 (Mo.App.1975).

      . While an attack on the sufficiency of the pleadings can be a meritorious defense, Lester v. Dyer, 518 S.W.2d 213 (Mo.App.1974), West-oak, in arguing this point may be confronted with a question concerning why no responsive pleadings or motions had been filed in response to the plaintiffs’ amended petition in which the sufficiency of the petition could have been attacked.


author: DOWD, Judge.

text:
    Oliver Glenn PICKENS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38024.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 5, 1977.

      Huck, Kasten & LaBeaume, James W. Huck, St. Louis, for movant-appellant.
    John Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Marian G. Eisen, Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

This is an appeal from the denial, following evidentiary hearing, of Oliver Glenn Pickens’ amended Rule 27.26 motion to vacate and set aside his conviction on the charge of Assault with Intent to Ravish with Malice Aforethought and his sentence of fifteen years imprisonment.

Movant’s conviction was by jury verdict and was affirmed on appeal. State v. Pickens, 527 S.W.2d 29 (Mo.App.1975). Among the seven grounds for relief alleged by movant are ineffective assistance of counsel and incompetency to stand trial. The trial court found that movant had not proven ineffective assistance of counsel and had not proven, if not abandoned, the other grounds alleged in his motion.

On appeal movant contends that denial of his motion was erroneous because: (1) his counsel’s failure to investigate and pursue an alibi defense constituted ineffective assistance of counsel and (2) he was incompetent to stand trial and the trial court’s failure to hold a competency hearing denied him due process of law.

Our review is limited to a determination of whether the findings, conclusions and judgments of the trial court are clearly erroneous; the trial court’s judgment will not be reversed unless, after review of the record, we are left with a definite and firm conviction that a mistake has been made. Rule 27.26(j); Crews v. State, 510 S.W.2d 425, 429 (Mo.1974); Haynes v. State, 534 S.W.2d 552, 554[1] (Mo.App.1976).

The movant has the burden of proving his grounds for relief by a preponderance of the evidence, Rule 27.26(f), Babcock v. State, 485 S.W.2d 85, 89 (Mo.1972); Bolden v. State, 530 S.W.2d 505, 507 (Mo.App.1975), and that burden is particularly heavy for a showing of ineffective assistance of counsel. Lahmann v. State, 509 S.W.2d 791, 794[7] (Mo.App.1974). Counsel is presumed competent and is not to be adjudged incompetent by reason of what, in retrospect, appear to be errors of professional judgment. Haynes, supra at 554[3]; Hall v. State, 496 S.W.2d 300, 303[2] (Mo.App.1973).

The standard to be applied in determining whether or not movant was denied the right to effective assistance of counsel is whether “. . . the action (or inaction) of counsel w[as] of such a character as to result in a substantial deprivation of defendant’s constitutional right to a fair trial . . . ” Thomas v. State, 516 S.W.2d 761, 765[2] (Mo.App.1974). It is well established that counsel has a duty to investigate the case against his client, which duty includes contacting potential witnesses named by the defendant who might aid in his defense. Thomas v. State, supra; Foster v. State, 502 S.W.2d 436, 438[4-5] (Mo.App.1973). However, there is no clear rule on what constitutes sufficient case investigation; all that is required is investigation that is adequate under the circumstances of each particular case. Haynes v. State, supra; Thomas v. State, supra.

In the instant case, movant testified that he gave his attorney the names of his mother, sister, and sister’s boyfriend and told him they could testify as to the time he came home and the time he left on the morning the crime was committed and thereby establish an alibi for him. He also stated that no witnesses were called on his behalf at his trial and that no member of his family was present.

Movant’s testimony and that of his trial attorney establish that movant testified at trial that he went to work the morning in question, that another man was at work with him, that he became ill and left work at 9:30 or 9:45 a.m., and that when he returned home his mother was there.

Movant’s mother testified that movant left home at 8:00 a.m. and returned at 9:30 a.m., saying he was ill. She said she told the police he was not home when they arrived because he had left to get gasoline for the lawn mower. Although she visited her son prior to his trial, he did not request her to call his attorney, and she never talked to his attorney. Movant’s sister testified that movant left home at 8:00 a.m. on the morning in question and returned at 9:30 a.m. She also said she never talked to her brother’s attorney.

Movant’s trial counsel testified that he did consider calling movant’s mother and sister, but decided, based on 4 or 5 pre-trial interviews with movant, that they would not be of assistance in the case. The police report indicated the crime took place between 9:00 a.m. and 10:30 or 11:00 a.m. Testifying from his notes, the attorney stated movant told him that he was at work with another man named Sanke until 10:30 a.m., when he became sick and went home. The attorney further stated that movant told him he was met at home by his mother, who told him the police were looking for him, and that he left and was later arrested in the alley. The attorney concluded that, since the police had already been to mov-ant’s home when he returned there from work, the mother and sister’s testimony would not aid in movant’s defense. The attorney stated he did, however, call mov-ant’s home in an attempt to locate Sanke, and that he asked the person with whom he spoke to have the family get in touch with him if they could help with the case. Mov-ant’s trial testimony that he left work at 9:30 or 9:45 a.m. surprised his attorney.

It is clear from the testimony that mov-ant did give his attorney the names of his mother and sister and that the attorney did not interview them. It is also evident that, had the mother and sister testified at trial as they did in the evidentiary hearing, they would have helped movant in an attempt to establish an alibi. The evidentiary conflict is between the version of the morning’s events the attorney says movant gave him during pre-trial interviews, and the version given by the mother and sister. There is also a question as to whether or not the attorney called movant’s home.

The trial court believed the attorney’s testimony regarding his pre-trial interview with movant and his reliance on the sequence of events movant gave him in deciding whether or not to interview mov-ant’s mother and sister. This is a straightforward question of credibility, which is for the trial judge to determine, and we defer to his findings in this regard. Campbell v. State, 515 S.W.2d 453, 456[2] (Mo.1974); Haynes v. State, supra at 554-55[4].

Accepting the attorney’s testimony as to the content of his pre-trial conversations with movant, the trial court judge’s conclusion that the attorney was justified in deciding not to interview the mother and sister was not clearly erroneous. The attorney’s decision was an exercise of his professional judgment. Movant’s own statements to his attorney indicated that his sister and mother could not provide an alibi and that the only helpful witness would be Sanke, whom the attorney did attempt to locate.

In Cochrell v. State, 537 S.W.2d 584 (Mo.App.1976), defense counsel relied on the defendant’s statement that he had not made a statement to the police and therefore did not interview a policeman who surprised him at trial with a damaging answer. There the court concluded, as we do here, that the defense counsel could not be faulted for relying on the defendant’s statement in deciding his trial strategy.

The cases relied upon by appellant, Thomas v. State, supra, and McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1972), are distinguishable on their facts. In McQueen, the defense attorney did not interview any of the state’s 41 witnesses, because as a matter of policy he never interviewed the state’s witnesses. In Thomas, the defense attorney did not investigate an alibi defense because he believed he would be successful in his pre-trial motions. In both cases the courts stated that the attorneys had not exercised their professional judgment but had abdicated their duty to exercise their professional judgment. Thomas v. State, supra at 767; McQueen, supra at 216. In the present ease the defense attorney did not decline to investigate the case; he exercised his professional judgment, based on the facts as given him by the defendant, as to what investigation would be helpful to movant’s defense. He did consider calling movant’s mother and sister, but decided that, since the movant did not return home until after the police had been there looking for him, they would not be of assistance in the case. Based on movant’s statements to him in several interviews, it was logical to conclude that the only person whose testimony might have a bearing on the case was Sanke, whom he sought to locate. This was a responsible decision and not an action which deprived movant of a fair trial.

Appellant’s second contention is that the trial court failed to hold a hearing to determine movant’s competency to stand trial. Movant’s only allegation concerning his competency is that presently, and apparently at the time of trial, he suffers from periodic spells of unconsciousness. No evidence was presented at the evidentiary hearing regarding these spells of unconsciousness or any other circumstances that would raise a doubt concerning movant’s competency. The burden of proof in a 27.26 motion lies upon the movant, Babcock v. State, supra; Bolden v. State, supra, and allegations alone are not self-proving. Agee v. State, 512 S.W.2d 401, 402[1] (Mo.App.1974). The trial court judgment that movant had not proven, if not abandoned, this ground for relief was not erroneous.

In his brief, movant argues that the nature of the offense with which he is charged, assault with intent to ravish a 73-year old woman, and his conduct at the contempt hearing before the trial court, should have raised a doubt with the trial court as to his competency. Since these issues were not raised in the motion or before the trial court, they will not be considered for the first time on appeal. Harkins v. State, 494 S.W.2d 7, 14[7] (Mo.1973); White v. State, 540 S.W.2d 148, 149[4] (Mo.App.1976).

The judgment is affirmed.

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


text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary WHITE, Defendant-Appellant.
    No. 36966.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 5, 1977.

      Robert J. Walsh, Crouppen, Walther, Zwi-belman & Walsh, P.C., St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, J. Michael Davis, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

This is an appeal by defendant-appellant, Gary White, from a judgment of conviction entered on March 14, 1975, whereby the court, after a finding of guilty by the jury, sentenced the defendant under the Second Offender Act to twenty-five years in the Department of Corrections for the offense of robbery in the first degree by means of a dangerous and deadly weapon. §§ 560.120, 560.135, 556.280, RSMo.

A jury could reasonably find the following. On September 7, 1974, Russell Wayne Lada was working at the 1-55 Service Center located at 4553 South Broadway where he was employed as a part-time service station attendant. He was working the 11:00 p.m. to 7:00 a.m. shift. At approximately 3:00 a.m. on September 7, 1974, a man, later identified as the defendant, Gary White, drove into the station and purchased three quarts of oil for his car, Mr. Lada serviced the defendant’s car. It was a ’65 Chevy, white over gold. A young woman was seated in the car next to the defendant. The defendant was wearing a “psychedelic multi-colored shirt.” At approximately 4:30 a.m., “I [Lada] was getting ready to deposit money in the safe and two black Negro males came up with guns pointed at me [from] outside the door.” The two men entered the station building and announced the robbery. The service station building and the parking lot were both well lighted. One of the two men was the defendant— “He had a psychedelic multi-colored shirt on.” Both of the men brandished guns. The defendant had a “silver-plated white-handled automatic pistol.” The other man, later identified as Amos Ingram, had a black revolver. As the two men entered the station, they “. . . told me to hand them over all the money. I then took the money out of my pockets and put it on top of the table right by the door.” Then the defendant and his accomplice began “picking it up and grabbing it.” One of the robbers then instructed Lada to open the safe. “I told him I. didn’t have a key for it and this other Negro male [Ingram] in the station had a gun pointed at my head and told me to open the safe or he was going to blow my head off, something of that nature. I cannot recall the exact words. He then pulled the trigger and I heard the revolver click around but it didn’t go off.” Lada again informed the two robbers that he did not have a key for the safe “. and then he [Ingram] struck me up aside the head with the gun and they more or less tried to open it [safe] — tried to dig money out with — I believe they had a pencil, tried to stick down in the crack to see if they could get some of the money up, and during this time one of the — it was Ingram said something about a police car going by and they kind of ducked down.” Then the men stood Lada up against the wall and asked him where his gun was. Lada told them that he did not have a gun. The two then left the station after the defendant told Lada “to keep my mouth shut, not to say anything.” As the defendant and Ingram left the station, they proceeded “south on Broadway on foot.” The entire episode took between four and five minutes.

After the defendant and Ingram had been gone a few minutes, Lada ran from the service station across Broadway. He intended to borrow money from some passers-by so that he could call the police. Mr. Lada encountered a young man and woman who were walking up the street and asked them for money to call the police “. and at this time the ’65 Chevy, goldish beige color with a white top, came by with its lights off.” The car was only about 10-15 feet away from him when it passed by going north on Broadway. The car passed at approximately 30 or 35 m.p.h. so that Lada had an opportunity to view it for approximately 10-15 seconds. “I [Lada] seen it approaching to me and then I saw it go by me.” Lada recognized the driver of the car as the defendant. Then the man from whom Lada was attempting to borrow money pointed to a police car that was about 200 yards away. In the police car were police Officers James Wurm and Charles Robertson. They were in the process of patrolling the area and were heading south on Broadway. Their attention was directed to a car that was being driven without its headlights. The car was a “ ’58 Chevrolet . . . Gold — white over gold I believe it was.” Officer Wurm who was driving made a U-turn intending to pursue the car for the traffic violation. “Before I [Wurm] could go any further a subject later found to be Russell Lade [sic] stopped me and advised me that the car just seen going on the entrance ramp [to 1-55] was the car that supposedly held him up.” The police officers then chased the defendant’s car north on 1-55 at speeds of up to 90 m.p.h. “He had his lights out at that time on the car. And as we were approaching and catching up to him the car — suddenly a lot of smoke came from the engine and everything else, at which time the car was — apparently the engine had blown up, and we pulled the car over just right at the Arsenal Avenue — the Arsenal exit.” All during the chase and from the time that Mr. Lada pointed out the defendant’s car, the police officers never lost sight of defendant’s car. It was “[o]nly a matter of two or three minutes till we had the car.” As the officers were pulling defendant’s car to the curb, “[t]here was a couple objects thrown out the window, rear window, and at which time upon stopping the car I slowed down to allow my partner to alight from the car to cover one side of the car while I pulled the car into the front so that the car couldn’t go any further.” The officers recovered the objects that were thrown from the defendant’s car. The objects were two guns — one was a “P-.38” and the other one was a “.41 Colt.” The guns were found in a grassy area 10-15 feet from the car. The defendant, White, was driving the car that the officers pulled over. He was wearing a “floral or a print-type material shirt.” In addition to the defendant, Amos Ingram and a woman [not the same one Lada had seen earlier] and a baby were also in the ear. The defendant and Ingram were placed under arrest at the scene and a search of the subjects uncovered a total of approximately $120 in their possession. The defendant had about $30 in his pockets and the larger amount of about $90 was found on Ingram.

While Officers Wurm and Robertson were in the process of apprehending the men who robbed Mr. Lada, other police officers arrived at the service station. They obtained a description of the defendant, White, and Amos Ingram from Russell Lada. Officer John Lange testified that Lada told him that “ . . . two Negro males [were] armed with hand guns, the taller of the two was wearing a pink turtleneck shirt and the shorter one was wearing a multi-colored shirt.”

The owner of the service station, Mr. Ralph Wahby, arrived at the station and determined that approximately $120 of the day’s receipts had been taken. A police radio dispatch indicated that two suspects had been apprehended and arrested at 1-55 just north of the Arsenal exit. Russell Lada was then taken by police to the arrest scene where he identified both the defendant and Ingram. When Mr. Lada arrived at the scene the defendant and Ingram were both seated in a police car and were handcuffed. Later, Mr. Lada confronted defendant at a police station for about fifteen to twenty minutes in the presence of officers.

In his first point on appeal appellant contends that the trial court erred in overruling his motion to suppress the in-court identification by Mr. Lada because he viewed the appellant under circumstances which suggested his participation and that the suggestion so tainted the identification so as to deny him his right to due process of law. In essence he contends that the suggestive nature of the pre-trial confrontation between the victim, Mr. Lada, and appellant impermissibly tainted the witness’ in-court identification so that it was error for the trial court to overrule appellant’s motion to suppress the identification testimony. Specifically, appellant contends that Mr. Russell Lada’s viewing of him at the arrest scene while he was handcuffed and seated in a police car constitutes an imper-missibly suggestive confrontation which suggests a substantial likelihood of misiden-tification and thus tainted Lada’s in-court identification as one of the perpetrators of the offense.

At trial, Mr. Lada identified the appellant as one of the two men who robbed him. Mr. Lada’s identification testimony was the subject of a motion to suppress filed by defendant prior to trial. A pre-trial hearing was held on the motion, but the trial court overruled it. At trial, Mr. Lada’s identification testimony was introduced into evidence without objection.

After examining the evidence and the authorities relied upon by appellant, we are convinced that appellant’s first point is without merit. It is a well-established rule of procedure in Missouri that when a pretrial motion to suppress identification testimony is made and overruled, timely objection to the identification testimony must be made during the trial and the ground must be included in the motion for new trial in order to preserve the issue for purposes of appellate review. State v. Greenlaw, 543 S.W.2d 523, 525 (Mo.App.1976); State v. Johnson, 536 S.W.2d 851, 854 (Mo.App.1976).

However, despite this omission, we conclude that the pre-trial identification of appellant was not so impermissibly suggestive so as to give rise to a very substantial likelihood of irreparable misidentification so as to taint the in-court identification. The cases relied upon by the appellant, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), involved traditional lineups in post-indictment or information situations.

In State v. Hudson, 508 S.W.2d 707, 710 (Mo.App.1974), it is stated:

“In evaluating the suggestiveness of a particular confrontation and the likelihood of misidentification, we look to factors such as the opportunity of the witness to view the accused at the time of the alleged crime, the accuracy of the witness’s prior description of the accused, the certainty of the witness at the confrontation, the length of time between the crime and the confrontation, and the need for police to determine at the earliest opportunity whether the person suspected is in fact the person sought.”

The situation presented in this ease is one wherein a short time after a crime was committed the police arrested a person whom they had reason to believe was an offender and had him viewed immediately by the victim. State v. Dodson, 491 S.W.2d 334, 337 (Mo. banc 1973). It has often been held that it is not improper, or a violation of due process, for the police immediately to return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the alleged offender earlier. State v. Barnes, 537 S.W.2d 576, 578 (Mo.App.1976); State v. French, 528 S.W.2d 170, 172 (Mo.App.1975). This same principle is equally applicable when the victim goes to the scene of the arrest rather than the scene of the offense. The pre-trial confrontation was not violative of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). State v. Dodson, supra, 491 S.W.2d at 338. A victim confronting a suspect who is handcuffed and in the custody of the police does not render the confrontation impermissibly suggestive. State v. French, supra, 528 S.W.2d at 173; State v. Dodson, supra, 491 S.W.2d at 338.

Furthermore, when an in-court identification is attacked on the ground that the pre-trial identification procedures violated due process, the inquiry extends not only to a determination of whether the procedures were unduly suggestive but also to whether there is an independent source of the identification. State v. Barnes, supra, 537 S.W.2d at 578.

Where there is an in-court identification made upon a factual basis independent from pre-trial identification procedures, the in-court identification is proper. State v. Rutledge, 524 S.W.2d 449, 456 (Mo.App.1975); State v. Hall, 541 S.W.2d 327, 328 (Mo.App.1976). Here there was ample evidence of an independent factual basis for Mr. Lada’s in-court identification.

We conclude therefore that appellant’s first point is without merit because (1) the point was not properly preserved, (2) the pre-trial confrontation was not so imper-missibly suggestive so as to give rise to a very substantial likelihood of irreparable misidentification, and (3) there was ample evidence of an independent factual basis for the in-court identification.

Appellant’s second point is that the court erred in denying his constitutional right to present a defense witness when the court failed to allow him to call Mr. Amos Ingram in his case. He argues that the refusal of the court to allow him to call Mr. Ingram as a defense witness in his behalf denied him his constitutional right to “have witnesses heard.” He relies upon State v. Scott, 407 S.W.2d 79 (Mo.App.1966) and State v. Blakeley, 438 S.W.2d 262 (Mo.1969).

The circumstances on this point arose thusly. During the in-chambers discussions concerning the instructions, the court asked the defense attorney if he advised appellant “with respect to his rights to testify or not testify in this ease.” The attorney replied, “Yes, Your Honor, I asked him prior if he had any evidence or if he wanted to testify or wanted anybody else to testify in his defense. He said no, Your Honor.” The court commented, “He never gave you the names of any witnesses or anything he wanted you to call?” Counsel replied, “None, Your Honor.”

When the proceedings were resumed before the jury and the State rested, the court inquired of defense counsel. Counsel stated, “We have no evidence to present at this time, Your Honor.” The instructions were then read to the jury. The court informed each counsel of the time for argument. Defense counsel then approached the bench and the following occurred:

“[Defense Counsel]: Your Honor, I was going to ask if we could approach the bench before final arguments.
“THE COURT: Yes, sir.
* * * [At the bench]
“[Defense Counsel]: Just informed me that he wants Amos Ingram as a witness.
“THE COURT: It’s too late. It’s too late.
“[Defense Counsel]: Okay. At least I made the request.”

Closing arguments were then made. The jury retired and found the defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon.

We find this point also to be without merit. The cases hold that the matter of reopening a case for the purpose of receiving additional evidence is a matter resting in the sound discretion of the trial court. State v. Hunt, 461 S.W.2d 879, 880-881 (Mo.1971). We find no abuse of discretion here. There was no indication as to what Mr. Ingram’s testimony might be, and the request came at the close of all the evidence and after the instructions were read to the jury. The court inquired of counsel whether any witnesses were to be presented and counsel indicated he had consulted with appellant and there were none. In such circumstances we cannot conclude that the trial court abused its discretion in failing to permit appellant to call Mr. Ingram as a witness at that stage of the proceeding.

The cases relied upon by appellant are clearly not dispositive of this issue. State v. Scott, supra, is a prohibition case in which the court declared that a litigant has a right to require attendance at trial of those witnesses which in his judgment are required to meet the issues. In State v. Blakeley, supra, the defense had requested a subpoena, did not rest his case and made an offer of proof.

We have read the entire transcript, the briefs of the parties and all the authorities relied upon by the appellant and conclude that there is no prejudicial error.

The judgment is affirmed.

All the Judges concur.

      . Officer James Wurm later testified at trial that when he seized the two guns shortly after the robbery both were loaded. An unspent cartridge was also introduced into evidence with a marking on it indicating that the bullet had in fact been struck by the firing mechanism but did not fire.

      . When shown a picture of the automobile, Officer Wurm identified it as a ’65 Chevrolet.

      . At another point in the record, Officer Wurm testified that appellant had the larger amount in his possession.

      . See also State v. Jackson, 477 S.W.2d 47, 51 (Mo.1972); State v. Hamblin, 448 S.W.2d 603, 607-608 (Mo.1970); State v. Townes, 461 S.W.2d 761, 763-764 (Mo.1970), cert. den., 407 U.S. 909, 92 S.Ct. 2445, 32 L.Ed.2d 683; State v. Dodson, supra, 491 S.W.2d at 338; State v. Maxwell, 502 S.W.2d 382, 389 (Mo.App.1973); Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969), cert. den., 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969).