author: McGEE, Justice.

text:
    Jean C. McELREATH, Relator, v. Wells STEWART, Judge, Court of Domestic Relations, Respondent.
    No. B-6345.
    Supreme Court of Texas.
    Jan. 26, 1977.

      William E. Wright, Houston, for relator.
    Wells Stewart, pro se.
   McGEE, Justice.

This is an original mandamus proceeding where Jean C. McElreath, relator, seeks a writ of mandamus compelling Wells Stewart, Judge of the Court of Domestic Relations Number One of Harris County, to vacate his order denying relator’s writ of habeas corpus and to issue the requested writ. The primary question presented in this case is whether the trial court judge was justified in his denial of habeas corpus relief based on the “serious immediate welfare” provision of section 14.10(c) of the Texas Family Code, despite' a valid judgment giving custody to the party seeking the writ of habeas corpus. We hold that in this case reliance on section 14.10(c) was unjustified and the writ of habeas corpus should have been issued.

Jean and Ross McElreath were divorced February 7, 1967 in the Court of Domestic Relations Number One of Harris County, Texas. Jean McElreath (Jean) was given custody of the three minor children and Ross McElreath (Ross) was required to make child support payments. Subsequent to the divorce decree, the two older children left Jean and began to live with their father, Ross. Jean and the youngest child moved to San Antonio where Jean attended law school. In 1974 Ross filed suit in San Antonio to modify the previous order of the domestic relations court in Harris County. On July 24, 1974 the district court in San Antonio, after determining that no other court had continuing jurisdiction, denied Ross’ motion to modify the Harris County court’s order. The court also denied Ross’ motion to be appointed managing conservator of Gregory McElreath (Gregory). Pursuant to the order of the district court in San Antonio, Jean was to continue as managing conservator and continue to receive child support payments from Ross. Jean and Gregory moved to Austin and in the summer of 1976 Gregory traveled to Houston to visit his father. Under the terms of the 1974 order, Ross was required to return Gregory to his mother in Austin “at least twenty days prior to the commencement of school.” Jean allowed Gregory to remain with his father longer than specified in the court order so Gregory could complete a vacation to Disneyworld in Florida. Jean expected Gregory to return to Austin on August 22,1976 and when Gregory failed to arrive on the bus, Jean telephoned Gregory’s father in Houston. Jean was informed by Gregory’s stepmother that Ross .was out of town but had instructed that Gregory was not to be returned to Austin.

Jean filed her application for writ of ha-beas corpus, writ of attachment and temporary restraining order in the Domestic Relations Court Number One of Harris County on August 25, 1976. Judge Stewart issued the writ of attachment but voided it the next day. A hearing was then commenced on the application for writ of habeas corpus. Jean submitted into evidence the 1974 district court order giving her custody of Gregory and denying Ross’ motion to be appointed managing conservator. The trial court advised Jean that evidence would be heard concerning the immediate welfare of the child pursuant to section 14.10(c) of the Texas Family Code. The scope of the hearing which followed greatly exceeded the narrow considerations necessary to determine the applicability of section 14.10(c). It is fair to say that the proceeding resembled a full-fledged hearing to modify the custody of a child. During the hearing the trial court was informed that Gregory, who had become 14 years of age, had signed an affidavit under section 14.07 of the Family Code, stating that he wished to live with his father. On August 30, 1976 Ross filed a motion to be appointed temporary managing conservator and to either abate the child support payments or have the payments made to himself as temporary managing conservator. The trial court granted Ross’ motion on September 13,1976 making Ross temporary managing conservator and withdrawing the writ of attachment. Jean filed a writ of mandamus with this court on November 17,1976, to which Judge Stewart made no. response.

It is our opinion that the trial court erred in expanding the scope of the habeas corpus hearing to include matters which did not concern the immediate welfare of the child as provided in section 14.10 of the Texas Family Code. The Family Code provides:

“§ 14.10. Habeas Corpus.
(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
(b) The court shall disregard any cross action or motion pending for modification of the decree determining managing con-servatorship, possession, or support of or access to the child unless it finds that the previous order was granted by a court of another state or nation and that:
(1) the court did not have jurisdiction of the parties; or
(2) the child has been within the state for at least 12 months immediately preceding the filing of the petition for the writ.
(c) The court may issue any appropriate temporary order if there is a serious immediate question concerning the welfare of the child.
(d) While in this state for the sole purpose of compelling the return of a child through a habeas corpus proceeding, the relator is not amenable to civil process and is not subject to the jurisdiction of any civil court except the court in which the writ is pending and in that court only for the purpose of prosecuting the writ.
(e) If the right to possession of a child is not governed by a court order, the court in a habeas corpus proceeding involving the right of possession of the child shall compel return of the child to the relator if, and only if, it finds that the relator has a superior right to possession of the child by virtue of the rights, privileges, duties, and powers of a parent as set forth in Section 12.04 of this code.
(f) The court shall disregard any motion for temporary or permanent adjudication relating to the possession of the child in a habeas corpus proceeding brought under Subsection (e) of this section unless at the time of the hearing an action is pending under this chapter, in which case the court may proceed to issue any temporary order as provided by Section 11.11 of this code.”

This court has recently held that where there is a valid existing judgment of child custody, the issues of-.best interest of the child and right of possession should not be re-litigated in a habeas corpus proceeding. Standley v. Stewart, 539 S.W.2d 882, 883 (Tex.1976). The order of the trial court in this case provides in pertinent part:

“Upon consideration of the evidence and the wishes of the minor child, the court was of the opinion that the best interests of the child would best be served if the application for writ was denied and the court thus rendered its decision denying the subject application for writ of habeas corpus in open court on August 30, 1976.
“In response to the cross motion of respondent Ross McElreath for ‘Appointment as Temporary Managing Conservator,’ the court finds, pursuant to the authority of § 14.10(c), TEXAS FAMILY CODE ANN. (1975), that there is a serious immediate question concerning the welfare of the child in question and that the best interests of the child shall be served by granting said cross motion. It is, accordingly, ORDERED that Ross McElreath be, and he is hereby, named Temporary Managing Conservator of the child, Gregory Cornelius McElreath, and shall possess all rights and privileges attendant thereto. It is further ORDERED thereto that any and all obligations of the said Ross McElreath to pay child support, as heretofore ordered with reference to the support of the said child, and which may accrue during the penden-cy of this Order, shall be paid to himself as Temporary Managing Conservator of the child.”

It is evident that the order contemplated more than the immediate welfare of the child and this was error. Standley v. Stewart, supra.

The only relevant distinction in the Standley case and the situation here is that in Standley the trial court specifically stated that it was not acting under the provisions of section 14.10(c). 539 S.W.2d at 883. The order of the trial court in our case expressly states that it was acting pursuant to section 14.10(c), but we hold that the trial court’s reliance on that section was not justified in this case. This court recognizes that a trial court can exercise great discretion in issuing orders for the immediate protection of a child and it is not the intention of this court to usurp the discretionary power of trial courts in such situations. There are no cases discussing the degree of seriousness or immediacy which would allow a court to issue a temporary order under section 14.10(c). There are cases, however, which discuss the situations necessary to issue temporary custody orders. This court has held that if the safety and well-being of a child are in jeopardy, a trial court may enter an order vesting temporary custody in a party other than the child’s legal custodian. Page v. Sherrill, 415 S.W.2d 642, 645 (Tex.1967). The court contemplated a situation where the child was in imminent danger of physical or emotional harm and immediate action was necessary to protect the child. 415 S.W.2d at 645; see Brown v. Brown, 500 S.W.2d 210, 214 (Tex.Civ.App. — Texarkana 1973, no writ); Rodriguez v. Vela, 488 S.W.2d 872, 876-877 (Tex.Civ.App. — San Antonio 1972, no writ) (concurring and dissenting opinions); Widner v. Pixley, 439 S.W.2d 403, 406-407 (Tex.Civ.App. — Beaumont 1969, no writ).

The record in this case discloses nothing which could make Gregory’s situation serious and immediate. Gregory’s father and stepmother both testified that Gregory would be hurt and upset if he returned to his mother. In chambers, Gregory testified that it would hurt him to return to his mother because he did not want to live with her. Gregory’s reasons for not wanting to return to his mother were because his mother gave him more responsibilities than his father, she nagged him, and sometimes made him mad. There is absolutely no contention that Gregory is not loved and well cared for by his mother. We hold that the situation in this case falls far short of the necessary statutory requisites of immediacy and seriousness.

This court is empowered to issue a writ of mandamus when a trial court acts beyond its power and in so doing vacates or changes a final adjudication. Standley v. Stewart, 539 S.W.2d 882, 883 (Tex.1976); McHone v. Gibbs, 469 S.W.2d 789 (Tex. 1971).

A writ .of mandamus will issue directing Judge Stewart to set aside his order of September 13, 1976 and to issue the writ of habeas corpus.


source: Caselaw Access Project

author: FINCH, Judge.

license: Public Domain

text:
    STATE of Missouri ex inf. Brendan RYAN, Circuit Attorney of the City of St. Louis, ex rel. Donald T. Cross and Harold M. Light, Relators-Appellants, v. Anita L. BOND et al., Respondents.
    No. 59328.
    Supreme Court of Missouri, en banc.
    Dec. 30, 1976.
    Rehearing Denied Feb. 14, 1977.

      Elbert A. Walton, Jr., St. Louis, for rela-tors-appellants.
    Frankie M. Freeman, St. Louis, Mo., for respondents.
   FINCH, Judge.

This is an appeal from the action of the trial court in dismissing an information in the nature of quo warranto on the basis that Donald T. Cross and Harold M. Light, at whose relation the information was filed by the circuit attorney for the City of St. Louis, did not have such special or peculiar interest in the matter to give them standing to maintain the action. We have exclusive appellate jurisdiction on the basis that title of respondents to an “office under this state” is involved. Mo.Const. art. V, § 3; State ex inf. Mitchell ex rel. Goodman v. Heath, 345 Mo. 226, 132 S.W.2d 1001 (1939); State ex rel. Donald v. Leonard, 480 S.W.2d 71 (Mo.App.1972). We reverse and remand.

On June 23, 1975, the information herein was filed by Brendan Ryan, Circuit Attorney of the City of St. Louis, at the relation of relators Cross and Light who, according to the information, had been qualified candidates for election to the Board of Education of the City of St. Louis at an election held April 1, 1975, and received votes in that election. The information additionally alleged:

(1) That for the name of a person to be placed on the ballot as a candidate for the school board at the election scheduled for April 1, 1975, such person was required to file with the Board of Education nominating petitions containing valid signatures of at least 2695 registered voters of the City of St. Louis;

(2) that relators timely presented to the Board of Education nominating petitions containing valid signatures of more than the required 2695 registered voters;

(3) that Anita L. Bond, Joyce Bowen, Lawrence Moser, and Erma J. Lawrence, respondents, all filed petitions purporting to contain valid signatures of more than 2695 registered voters of the City of St. Louis;

(4) that it was the responsibility of the Board of Education to determine the validity of nominating petitions filed and to certify whether prospective candidates had fulfilled the qualifications for candidacy by obtaining the requisite number of valid signatures;

(5) that the Board of Education, acting through Dr. Sam Lawson, its treasurer, employed an accounting firm to conduct a study to determine the number of valid signatures of registered voters on all of said nominating petitions;

(6) that the accounting firm, after conducting an investigation, reported to Dr. Lawson and to the Board of Education that Gordon Benson, Anna Forder, Geraldine Thurman and relators Cross and Light were the only potential candidates who had submitted nominating petitions containing the required 2695 valid signatures, and that the petitions of respondents were fraudulent, containing forged signatures and perjured attestations;

(7) that members of the Board of Education, in violation of § 610.015, RSMo Supp. 1973, held an unscheduled secret meeting to review the findings of the accounting firm and that the Board, in spite of their knowledge that respondents did not have sufficient valid signatures of registered voters on their nominating petitions, certified respondents as candidates for the school board;

(8) that no minutes of said meeting were made and Dr. Lawson and the members of the school board, keeping secret the findings by the accountants as to the respondents’ nominating petitions, misrepresented to the public and to relators that respondents were eligible when, in fact, they were ineligible;

(9) that relators relied to their detriment on the misrepresentations by the school board;

(10) that respondents, although ineligible, appeared on the ballot at the April 1, 1975, election and since April 18, 1975, each of respondents have usurped, held and exercised the office of member of the school board.

In response to the information filed, the respondents filed a motion to dismiss which asserted several grounds as a basis for dismissing the action. The trial court sustained the motion on the basis that relators Cross and Light lacked standing to maintain the action, remarking that said relators did not possess an interest peculiar and special to them as distinguished from that of the general public. The court cited State ex rel Pickett v. Cairns, 305 Mo. 333, 265 S.W. 527 (banc 1924) and State ex inf. Wallach ex rel. Missouri Optimetric Ass’n v. Schneider’s Credit Jewelers, 243 S.W.2d 125 (Mo.App.1951).

Subsequent to the dismissal of this case by the trial court, this court decided State ex inf. Graham ex rel. Bishop v. Hurley, 540 S.W.2d 20 (Mo. banc 1976), which reviewed earlier cases on standing and held that the taxpayer at whose relation that action was maintained had standing. We conclude that under the decision in Hurley relators Cross and Light did have standing. Consequently, the dismissal of the case for lack of standing of relators cannot be sustained.

Before concluding to reverse and remand for trial, we should consider the question, raised during oral argument, that an election contest rather than this quo warranto proceeding would have been the appropriate and exclusive remedy which relators should have pursued. The nature of these two remedies was discussed at length in State ex rel. Ponath v. Hamilton, 240 S.W. 445 (Mo. banc 1922). Particularly appropo to the question raised during oral argument is what the court said at 448 449:

“There is no question but that quo war-ranto is the proper common-law proceeding to determine the right to an office. The relief that may thereby be obtained is, however, inadequate, in that the proceeding terminates with the ouster of the incumbent but does not seat the contestant. This, from the very nature of the proceeding which deals mainly with the right of the incumbent to hold the office independently of who shall fill it. It being a matter of public interest that official positions be not usurped, an action of this character is usually brought in the name of or on behalf of the public.
“The inadequacy of the remedy as existing at common law, so far as it affects the rights of an individual who may claim the office, probably led to the enactment of statutes providing for the contest of elections. While these two remedies have one purpose in common, to determine if there has been a usurpation, it does not follow therefrom that the right of quo warranto within the limitations stated is impaired by the enactment of contest statutes. The two remedies are distinct. The first may be invoked by the people in their sovereign capacity under the common law; the second, by a voter in his individual capacity under the statute. The one simply determines a matter of public interest; the other, the private rights of two persons to the same office. In the absence of an express statute to the contrary, it need not be held that these remedies are otherwise than cumulative within their well-defined purposes. In other words, the people, through their proper representative, may, in the interest of good government and the orderly conduct of affairs, determine by quo warranto whether a public official is clothed with authority as such, and, if not, to oust him. But if an individual seeks to effect such ouster for his own private ends, namely, to succeed the incumbent in the office, he should, where the law has made provision therefor, institute a contest proceeding. This, that litigation may be limited in that all the issues involved may be determined in one action.”

This action is not one which seeks to have relators Cross and Light declared members of the school board. It raises only the question of whether respondents have unlawfully assumed and usurped positions on the school board. Quo warranto is appropriate for that purpose. As stated in Ponath, in the absence of a statute expressly providing otherwise, the remedies of quo warranto and election contest both exist and are cumulative.

Nor is it true, as respondents assert, that § 111.401 provided an exclusive remedy applicable to the issues presented of whether respondents had filed nominating petitions which entitled them to be on the ballot and subsequently to serve as members of the school board. Sec. 111.401 establishes a procedure to correct errors or omissions in the printing of ballots or in the publication of the names or descriptions of candidates nominated for office when such errors or omissions are established by affidavit. It does not cover or apply to the situation presented in this case.

Having decided that this case is to be reversed and remanded for trial, it is appropriate and desirable that we consider three other grounds asserted by respondents in their motion to dismiss (and briefed oh appeal) as a basis for dismissal of the information herein as they are likely to arise again on remand.

The first of these contentions is that §§ 120.180 through 120.220 are inapplicable to nominations for the office of member of the Board of Education of the City of St. Louis. Respondents do not develop this proposition in their brief and it is not clear which sections they say are applicable. In any event it is clear that §§ 120.180 through 120.220 are applicable. Sec. 120.150, as amended (Laws 1971), expressly provides “that candidates for the office of member of the board of education in school districts in cities having seven hundred thousand inhabitants or more shall be nominated in accordance with the provisions of sections 120.180 through 120.220 as amended, both inclusive, any provision hereof to the contrary notwithstanding.” Accordingly, we hold that §§ 120.180 through 120.220 were applicable to and governed the nomination of candidates for the school board election held in the City of St. Louis in 1975. While § 120.220 states only that “petitions of nomination for the nomination of candidates for offices in * * * other political subdivisions shall be filed with the clerk or other proper officer or board of the political subdivision,” it is obvious that someone was to process those petitions and in the absence of some provision to the contrary, it follows that the board of education was to process and verify the petitions as a condition to certifying the proposed nominee specified therein as a candidate for election to the school board. However, the school board’s determination thereof would not be insulated from judicial inquiry, particularly where, as here, allegations of concealment and fraud were made. We overrule respondents’ contention that the determination by the board to certify the respondents as candidates was final and conclusive.

Respondents’ next argument for dismissal of the information was that § 120.-190, if applicable, required a specified number of “qualified voters” and that this term was not the same as and could not be construed to mean “registered voters”. Respondents base this argument on Mo.Const. art. VIII, § 2. A similar contention was considered in State ex rel. Soc. Wkrs. Party of Mo. v. Kirkpatrick, 513 S.W.2d 346 (Mo. banc 1974), wherein it was held that a “qualified voter” as that term is used in the foregoing constitutional provision “is one that, in addition to other qualifications, must be registered where such is required as a condition for voting.” Id. at 348. Consequently, we hold that it was necessary that the nominating petitions in this case contain the requisite number of signatures of registered voters.

Finally, respondents asserted that the defense of laches is available in quo warranto proceedings and should be applied to deny recovery in this case for the reason that relators knew of allegations of deficiencies in the nominating petitions for some time before the election but took no action nor made any complaint until after they were defeated in the election. The doctrine of laches has been held to be available in a quo warranto proceeding. State ex inf. Otto ex rel. Harrington v. School District of Lathrop, 314 Mo. 315, 284 S.W. 135 (banc 1926). However, it was applied in that case only after the case was tried, the court concluding that the evidence established that laches constituted a defense. In this case there has been no trial. Respondents filed a motion to dismiss for failure to state a claim. They added as an additional basis for dismissal allegations asserting a defense of laches. Those allegations did not prove themselves and the motion to dismiss should not have been sustained thereon. Whether respondents are entitled to relief on the basis of laches depends on the evidence when this case is tried.

Reversed and remanded.

All concur.

      . All statutory references are to RSMo 1969 unless stated otherwise.

      . The same conclusion is indicated by other statutory provisions which relate to this subject. Sec. 162.581.1, which prescribes qualifications for members of boards of education in metropolitan school districts, states that such members “shall be elected from the city at large on a general ticket”. Sec. 162.601 then provides that “all elections for members of the board of education shall be subject to and governed by the same laws, rules and regulations which govern elections in the city for municipal officers.” Municipal elections for the City of St. Louis are governed by §§ 122.650 through 122.970 but § 122.680 specifically excepts therefrom members of boards of education. Sections 120.180 through 120.220 relate to nomination of independent candidates (those not candidates of any political party) for any office to be filled by the voters of the state, district or other political subdivision as appropriate. It follows by deductive reasoning that §§ 120.180 through 120.220 were applicable. We note that this conclusion was reached by the Attorney General in an opinion in 1968. Op.Atty.Gen. No. 213, Godfrey, 3-28-68.
      It should be noted that in 1976 the legislature enacted a statute changing the number of signatures required on a nominating petition and providing for the filing thereof with the board of election commissioners of the City of St. Louis and the processing of such petitions by the board of election commissioners. Hence, the procedure followed in 1975 is no longer applicable. Sec. 162.603 (1976 Mo.Leg.Serv. No. 2, Act 43).


author: DONNELLY, Justice.

text:
    XLNT CORPORATION, Respondent, v. The MUNICIPAL COURT OF KANSAS CITY, Missouri, et al., Appellants.
    No. 59491.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1976.
    Rehearing Denied Feb. 14,1977.
    Dan G. Jackson III, Asst. City Atty., Kansas City, for appellants.
    Donald Y. Pierce, Jr., Kansas City, for respondent.
   DONNELLY, Justice.

On August 21, 1975, and September 4, 1975, an agent of respondent was summoned to appear in the Municipal Court of Kansas City, Missouri, to answer a charge that respondent had exhibited obscene movies. The case was continued from time to time and on September 23,1975, counsel for respondent filed his Petition for Writ of Prohibition with the Circuit Court of Missouri, Sixteenth Judicial Circuit. On September 23, 1975, the Honorable J. Donald Murphy, Judge of the Circuit Court, issued a Preliminary Writ of Prohibition.

The parties then filed pleadings and stipulations as to facts and, on January 26, 1976, Judge Murphy decided the issues in respondent’s favor and entered the following conclusions of law:

“1. That by reason of the specific prohibition contained in Kansas City, Missouri, Code Section 22.1 (1968) * * *, the Municipal Court of Kansas City, Missouri, cannot provide a jury in the trial of alleged violations of said city’s obscenity ordinances.
“2. That under the decisions of United States Supreme Court and the Supreme Court of the State of Missouri in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and McNary v. Carlton, et al., 527 S.W.2d 343 (Mo. banc September 8, 1975), respectively, the courts of this state, including those of its municipal subdivisions, cannot proceed in the prosecution of an alleged violation of an obscenity law or ordinance without first impaneling a jury to determine the issues of obscenity pursuant to the guidelines set forth in Miller, supra. Accordingly, the exercise of jurisdiction in such cases by the Municipal Court of Kansas City, Missouri, without the ability to provide a jury as the trier of fact as to the issues of obscenity contained in the charges against the plaintiff herein, would be a clear violation of the mandates set forth in the decisions of the United States Supreme Court and the Missouri Supreme Court en Banc aforesaid, * *

A peremptory writ of prohibition was entered February 6, 1976.

Appellants appealed to this Court. Section 530.080, RSMo 1969; Rule 97.06.

The parties agree that the Municipal Court was barred by ordinance from providing respondent with a trial by jury.

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court reformulated the constitutional tests for determining obscenity under the First and Fourteenth Amendments to the Constitution of the United States. In Hamling v. United States, 418 U.S. 87,94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Court explained the Miller holding. In McNary v. Carlton, 527 S.W.2d 343 (Mo. banc 1975), this Court construed Miller, as explained in Hamling, to mean that, in determining obscenity under the First and Fourteenth Amendments, a jury determination of contemporary community standards is constitutionally required.

In City of Kansas City, Missouri v. Darby, 544 S.W.2d 529 (Mo. banc 1976), (decided December 13, 1976), this Court held that a constitutionally acceptable determination of obscenity cannot be made in the Municipal Court in Kansas City because no jury is available, and that this constitutional deficiency cannot be cured by the process of allowing an appeal to the circuit court and making a jury available there.

Accordingly, we must conclude that Judge Murphy did not err in prohibiting the Municipal Court of Kansas City from proceeding with respondent’s trial. Prohibition will lie where a right to a jury trial is improperly denied. Ex parte Peterson, 253 U.S. 300, 305, 306, 40 S.Ct. 543, 64 L.Ed. 919 (1920).

The judgment is affirmed.

All concur.


author: DONNELLY, Judge.

text:
    John C. MARTIN, Respondent, v. The MUNICIPAL COURT OF KANSAS CITY, Missouri, et al., Appellants.
    No. 59490.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1976.
    Rehearing Denied Feb. 14,1977.
    Dan G. Jackson, III, Asst. City Atty., Kansas City, for appellants.
    Errol Copilevitz, Kansas City, for respondent.
   DONNELLY, Judge.

On July 7, 1975, John C. Martin was summoned to appear in the Municipal Court of Kansas City, Missouri, to answer a charge that he had exhibited an obscene movie. The case was continued from time to time and on September 23, 1975, counsel for Martin filed a Motion to Dismiss and a Request for Jury Trial. The Municipal Court overruled the Motion and denied the Request and set the matter for hearing on October 28, 1975. Counsel for Martin then, on September 23,1975, filed his Petition for Writ of Prohibition with the Circuit Court of Missouri, Sixteenth Judicial Circuit. On September 23, 1975, the Honorable J. Donald Murphy, Judge of the Circuit Court, issued a Preliminary Writ of Prohibition.

The parties then filed pleadings and stipulations as to facts and, on February 3, 1976, Judge Murphy decided the issues in Martin’s favor and entered the following conclusions of law:

“1. That by reason of the specific prohibition contained in Kansas City, Missouri, Code Section 22.1 (1968) * * *, the Municipal Court of Kansas City, Missouri, cannot provide a jury in the trial of alleged violations of said city’s obscenity ordinances.
“2. That under the decisions of the United States Supreme Court and the Supreme Court of the State of Missouri in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and McNary v. Carlton, et al., [527 S.W.2d 343], Case No. 58,371 (Mo. banc September 8, 1975), respectively, the courts of this state, including those of its municipal subdivisions, cannot proceed in the prosecution of an alleged violation of an obscenity law or ordinance without first impaneling a jury to determine the issues of obscenity pursuant to the guidelines set forth in Miller, supra. Accordingly, the exercise of jurisdiction in such cases by the Municipal Court of Kansas City, Missouri, without the ability to provide a jury as the trier of fact as to the issues of obscenity contained in the charges against the plaintiff herein, would be a clear violation of the mandates set forth in the decisions of the United States Supreme Court and the Missouri Supreme Court en Banc aforesaid, * *

Appellants appealed to this Court. Section 530.080, RSMo 1969; Rule 97.06.

The parties agree that the Municipal Court was barred by ordinance from providing Martin with a trial by jury.

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court reformulated the constitutional tests for determining obscenity under the First and Fourteenth Amendments to the Constitution of the United States. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Court explained the Miller holding. In McNary v. Carlton, 527 S.W.2d 343 (Mo. banc 1975), this Court construed Miller, as explained in Hamling, to mean that, in determining obscenity under the First and Fourteenth Amendments, a jury determination of contemporary community standards is constitutionally required.

In City of Kansas City, Missouri v. Darby, 544 S.W.2d 529 (Mo. banc 1976), (decided December 13, 1976), this Court held that a constitutionally acceptable determination of obscenity cannot be made in the Municipal Court in Kansas City because no jury is available, and that this constitutional deficiency cannot be cured by the process of allowing an appeal to the circuit court and making a jury available there.

Accordingly, we must conclude that Judge Murphy did not err in prohibiting the Municipal Court of Kansas City from proceeding with Martin’s trial. Prohibition will lie where a right to a jury trial is improperly denied. Ex parte Peterson, 253 U.S. 300, 305, 306, 40 S.Ct. 543, 64 L.Ed. 919 (1920).

The judgment is affirmed.

All concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Clarence SAMPSON, Defendant-Appellant.
    No. 37262.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 27, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Robert C. Babione, Public Defender, James C. Jones, Asst. Public Defender, Cornelius T. Lane, Sp. Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Michael L. Sullivan, Asst. Circuit Atty., Jefferson City, Brendan Ryan, Circuit Atty., Julian Cosentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted of robbery, first degree, and under a determination of a prior conviction of a felony, he was sentenced to ten years in the custody of the Department of Corrections under the Second Offender Act.

Defendant first contends that the state’s evidence was insufficient to support the verdict because the testimony of the victim was so confusing and self-contradictory as to the robbery that the jury could not properly find the defendant’s guilt beyond a reasonable doubt. We have read the testimony and have concluded that while there is some conflict in the testimony, there is substantial evidence to convict the defendant of the charge. Where substantial evidence supports the verdict, that verdict will not be disturbed on appeal. State v. Gamache, 519 S.W.2d 34, 39[1] (Mo.App.1975). Where the evidence in support of the verdict is substantial, the effect of conflicts or inconsistencies in the testimony of a single witness, or between witnesses, is a question for the jury’s determination. State v. Washington, 383 S.W.2d 518, 522[3] (Mo.1964).

The second contention is that the trial court erred in not giving an instruction on the lesser included offense of stealing. The problem with this contention is that there was no evidence of stealing. The testimony of the prosecuting witness supported the state’s theory of robbery. Defendant’s evidence supports a theory of gift or an advance of the property for mutual benefit. There is no evidence to support an instruction on stealing. State v. Blewett, 507 S.W.2d 56, 57[1] (Mo.App.1974).

The judgment is affirmed. The opinion in this case has no precedential value and the affirmance is in compliance with Rule 84.16.

DOWD and CLEMENS, JJ., concur.


author: STEWART, Judge.

text:
    STATE of Missouri, Respondent, v. Steve MOORE, Appellant.
    No. 37071.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 23, 1976.
    Motion for Rehearing or Transfer Denied Jan. 14, 1977.

      Raymond Bruntrager, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for respondent.
   STEWART, Judge.

A jury convicted the defendant of second degree murder and fixed his punishment at ten years imprisonment. Defendant appeals from the judgment entered upon the jury’s verdict. We affirm.

The defendant does not attack the sufficiency of the evidence. The facts may be briefly stated. Shortly after 1:30 a.m. on November 7, 1972, Clarence Muse, the victim, and three companions left a nightclub in the City of St. Louis at closing time. The four were seated in an automobile and were ready to drive away when John Baker, who was referred to as Johnny Boy, came to the passenger side of the car. An argument ensued between Baker and the victim. Muse got out of the right side of the car and met Baker near the rear of the automobile. During the ensuing argument Baker knocked Muse to the curb. While Muse was down, Moore, the defendant, fired one shot into his chest. Muse died as a result of the gun shot wound.

Immediately after the shooting defendant fled in an automobile along with Baker and at least one other person. Defendant was arrested in Mississippi ten months later.

Defendant testified on his own behalf. He stated that he was at the nightclub the night of the shooting. As he left the club he saw Baker and the victim fighting in the street. As he approached the fighting men, Baker grabbed a gun from defendant’s waistband and shot the victim. Defendant then snatched the gun from Baker and Baker fled the scene. Defendant testified that he walked back to the club and waited for some friends who were in the club. Two witnesses for defendant testified they were in the club when a man named Carl entered the door and shouted “Johnny Boy had to shoot his pistol,” and that defendant returned to the club immediately afterward.

Defendant’s first contention is that the trial court erred “in failing to instruct the jury as follows:

The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible therefor. (Second Paragraph MAI-CR 2.10)”

for the reason that this instruction was required by the evidence and the applicable Supreme Court rules.

Defendant did not submit the above as an instruction at the trial. The instruction which he now contends the court was required to give, though not requested, is the second paragraph of MAI-CR 2.10. The defendant does not contend that the court was required to give MAI-CR 2.10 in its entirety.

Note 3 to MAI-CR 2.10 provides that the second paragraph may be omitted when there is no evidence that the defendant was present at or near the scene of the crime. The notes do not provide for the giving of the second paragraph as a separate instruction. The second paragraph of MAI-CR 2.10 as an independent instruction does not come within the category of instructions that must be given though not requested. See the discussion in State v. Flynn, 541 S.W.2d 344, Mo.App.St.L.Dist., 1976.

Under a factual situation similar in effect to that present here, an instruction having the same import as the instruction under discussion here was offered by defendant. In that case it was held that the trial court was not required to give a “theory of innocence instruction” even though requested. In State v. Broomfield, 510 S.W.2d 843, 846 (Mo.App.1974) this court quoting from State v. Banks, 491 S.W.2d 247 (Mo.1973) said:

“A defense bottomed on evidence an accused had nothing whatever to do with the crime charged does not come within the connotation of the ‘theory of innocence’ principle . .

The court was not required to give the instruction patterned after the second paragraph of MAI-CR 2.10.

Note 4 on the use of MAI-CR 2.10 provides that it is not error to fail to give that instruction, “even if there is substantial evidence that defendant was a joint, active participant or actor so long as there is no evidence that he was only an aider or encourager.” The State’s theory of the case supported by three witnesses was that defendant alone shot and killed the victim. The defense was that the defendant had nothing to do with the killing; that the shot was fired by Johnny Boy, without the aid or encouragement of defendant. There was no evidence that defendant was an aider or encourager. Neither MAI-CR 2.10 nor any part of it was required to be given.

The defendant next contends that “the court erred in refusing to grant counsel’s timely request for a mistrial after the prosecutor asked the defendant if he had asked two witnesses to commit perjury in depositions taken on defendant’s behalf, for the reason that there was no foundation or evidence to sustain said question and that it was improper and highly prejudicial.”

On direct examination defendant denied that he was involved in any altercation with Mr. Muse and that he did not shoot Muse. He testified that Muse was shot and killed by Johnny Boy who had taken defendant’s gun from him.

On cross-examination it was established that defendant knew Gloria Knight and Sharron Carroll. Defendant also testified that he did not see them outside the club in the vicinity of the shooting. The court sustained defendant’s objection when the State asked if the two women had testified on defendant’s behalf in a deposition. The State then asked the following question:

“Q. (By Mr. Callahan) Isn’t it a fact, Mr. Moore, that you asked Gloria Knight and Sharron Carroll to commit perjury for you in this trial by taking those depositions?”

The defendant objected and asked that the jury be instructed to disregard the statement. He also asked the court to declare a mistrial. In a discussion at the bench the State advised the court that it had “sworn testimony to back up the question.” The court sustained the objection and admonished the jury to disregard the question and not to take it into consideration in their deliberations. The court declined to declare a mistrial.

In this case it cannot be said that this question was asked by the prosecutor in bad faith. The prosecutor assured the court that he had sworn testimony to support his inquiry. On rebuttal he attempted to produce Sharron Carroll, a witness, who had given a deposition on behalf of defendant, in which she testified that she saw Johnny Boy shoot Muse. She would further testify that she had not, in fact, witnessed the shooting but had been told by defendant what she should say on the deposition. We cannot say that the court would have been in error if it had not sustained the objection. Defendant on direct examination denied that he shot Muse. The evidence offered was that defendant attempted to fabricate evidence that would support his defense. An attempt to suborn perjury has been said to be an admission of guilt. State v. Christian, 245 S.W.2d 895, 898[3] (Mo.1952). A defendant who testifies on his own behalf may be impeached upon cross-examination as any other witness. § 546.-260. State v. Byrth, 395 S.W.2d 133, 135[4] (Mo.1965). It follows that when defendant testified that he did not shoot Muse but that Johnny Boy did the shooting, evidence that defendant attempted to suborn perjury in support of his testimony constitutes direct contradiction of his examination in chief and is admissible to impeach him. There can be no error in not declaring a mistrial where the inquiry stricken would have been proper.

Defendant’s next point relied on is: “The Court erred in refusing to declare a mistrial after the prosecutor asked numerous questions of appellant outside the scope of his direct testimony because said questions — although objections thereto were sustained — had a cumulative prejudicial effect.”

This issue was not presented to and ruled upon in the trial or in the motion for new trial. Paragraph 11 of the motion for new trial does not raise the same issue. This issue is not before us for our review. State v. Davis, 482 S.W.2d 486, 489[6--8] (Mo.1972).

Detective Edward DeVere testified that he arrested defendant on September 15, 1973, about ten months after the shooting. Over the objection of defendant the State was permitted to ask where defendant was placed in custody to which the witness answered, “Greenville, Mississippi.” The defendant contends that this was error because there was no foundation for showing flight nor any evidence that defendant fled to avoid arrest.

It is conceded that evidence of flight is admissible as indicating consciousness of guilt, State v. Rutledge, 524 S.W.2d 449, 458[14] (Mo.App.1975).

There is substantial evidence that immediately after the shooting defendant fled the scene. The jury could infer from this that defendant’s purpose in fleeing after shooting Muse was to avoid arrest. The fact that defendant was subsequently taken into custody in Mississippi would under the circumstances, permit the inference that his presence in another jurisdiction was in furtherance of his purpose, fleeing the scene of the crime. Defendant, who took the stand, had the right to refute any incriminating inferences that might arise from that evidence. State v. Craft, 344 Mo. 269, 126 S.W.2d 177, 180[8-9] (Mo.1939). The flight commenced when defendant fled the scene of the crime and continued to his arrest. It is also permissible to show the circumstances of the arrest which would include the place of arrest. State v. Davis, 530 S.W.2d 709, 713 (Mo.App.1975).

Defendant’s final contention centers around the following question asked Detective DeVere and his answer:

“Q. And, after so doing [placing defendant in custody] did you advise him of his rights?
A. Yes, sir, I did.”

Defendant argues that the testimony constituted a comment upon appellant’s exercise of his right to remain silent. The very issue raised here, was ruled adversely to defendant’s contention by this court in State v. Langeneckert, 532 S.W.2d 477 (Mo.App.1975). See also the decision on the same issue in State v. Cheatum, 520 S.W.2d 695, 697 (Mo.App.1975).

Finding no error the judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.

      . MAI-CR 2.10 in its entirety reads:
      “All persons are guilty who knowingly act together with the common purpose of committing an offense, or who (, whether present or not,) knowingly and intentionally aid or encourage another in (committing) (attempting to commit) it, and whatever one does in furtherance of (an attempt to commit) the offense is the act of each of them.

        (The presence of a person at or near the scene of an offense at the time it was (committed) (attempted) is alone not sufficient to make him responsible therefor, although his presence may be considered together with all of the evidence in determining his guilt or innocence.)”

      . “ ‘The mere presence of a person at the time and place of the commission of an offense is not alone sufficient to render him liable for its commission. Unless you find and believe from the evidence beyond a reasonable doubt that an offense was committed as submitted in Instruction No. _ and that the defendant was present at or near the scene of the offense, and that he knew of the unlawful purpose of the persons who actually committed an offense, and that he then and there intentionally aided, abetted, assisted or encouraged such other persons, you must find the defendant not guilty.’ ”

      . “11. The Court erred in overruling defendant’s timely objections to the persistent questioning by the State of the defendant while a witness on his own behalf on matters outside the scope of the defendant’s direct testimony and by failing to admonish counsel for the State.”


author: DOWD, Judge.

text:
    Burton WOODS, Jr., Petitioner-Appellant, v. STATE of Missouri, Respondent.
    No. 37773.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 23, 1976.
    Motion for Rehearing or Transfer Denied Jan. 14, 1977.
    Application to Transfer Denied March 14,1977.
    Brassil, Rohlfing & McDonald, James L. Rohlfing, St. Louis, for petitioner-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Neil Mae Farlane, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., W. Earl Jacobs, Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

Appellant appeals the dismissal of his motion under Rule 27.26 to vacate and set aside his conviction and sentencing for two distinct offenses in a single trial in 1973. The conviction was affirmed on direct appeal. State v. Woods, 508 S.W.2d 297 (Mo.App.1974). The charges were joined under authority of Rule 24.04 whose constitutionality appellant raised for the first time in his 27.26 motion.

Appellant’s sole contention on this appeal is that Rule 24.04 is invalid arguing that the question of whether or not a person can be convicted of more than one offense in one trial is a matter of substantive law and can only be changed by legislative action and not by court rule.

This contention has been rejected by State v. Baker, 524 S.W.2d 122, 126(3) (Mo. banc 1975) which upheld the validity of Rule 24.04 and specifically stated that Rule 24.04 is a procedural rule.

The judgment is affirmed.

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


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri ex rel. Edward E. WEINRICH, Relator, v. The Honorable William M. TURPIN, Judge, Lincoln County Circuit Court, Troy, Missouri, Respondent.
    No. 38060.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 7, 1976.

      Kathie Blackman Guyton, Elsberry, for relator.
    Jess L. Mueller, Pros. Atty., Lincoln County, Troy, for respondent.
   NORWIN D. HOUSER, Special Judge.

Original proceeding to prohibit Honorable William M. Turpin, Judge of the Circuit Court of Lincoln County, from dismissing an appeal from a judgment of the Magistrate Court of Lincoln County.

Pursuant to § 564.444 2., RSMo 1969, Relator Weinrich filed a motion in the magistrate court (a court of record) for a hearing to obtain a judgment setting aside the revocation of Weinrich’s driver’s license, claiming that he did not refuse a breathalyzer test. The magistrate conducted a hearing and found that Weinrich refused the test. Weinrich appealed to the circuit court from the judgment rendered in the magistrate court. In circuit court the prosecuting attorney filed a motion to dismiss the appeal on the ground that there is no statutory authority for an appeal to the circuit court from a magistrate’s refusal to set aside a license revocation; that the circuit court lacks jurisdiction to hear such an appeal. Following a hearing on the motion to dismiss the circuit judge indicated the motion would be sustained and the case dismissed, but gave Weinrich time to apply for a writ of prohibition. In his application in this Court for a writ of prohibition relator Weinrich prayed that respondent circuit judge be prohibited from entering an order of dismissal and be required to hear the appeal.

Respondent asserts that the right of appeal is purely statutory and there is no statute permitting an appeal to the circuit court in this situation, either in § 564.444 or elsewhere in the statutes; that the proper course for relator to pursue was to appeal directly from the magistrate court to the court of appeals (without citing any authority for such a direct appeal); that to permit this procedure will allow a person whose license has been revoked three levels of courts in which to present his case, and this was not the intent of the General Assembly.

Section 512.180, RSMo 1969 provides in pertinent part as follows: “Any person aggrieved by any judgment rendered by a magistrate, except a judgment by consent, may, in person or by his agent, appeal therefrom, unless otherwise provided by law, to the circuit court of the same county where the judgment was rendered; * * * ff

Section 478.070(4), RSMo 1969, prescribing the jurisdiction of circuit courts, provides as follows: “Appellate jurisdiction from the judgment and orders of * * * magistrates, in all cases not expressly prohibited by law, and shall possess a superintending control over them, * * *.”

Chapter 564, Offenses Against Public Safety, contains no provision for appeal from an order or judgment entered under § 564.444 2.

Since it has not been “otherwise provided” in the statutes or “expressly prohibited” by law, and since this is a “judgment” under these sections, rendered in a “case” within the meaning of § 478.070(4), the general statutes relating to appeals from magistrate courts control. (§§ 512.180 and 478.070(4), supra.)

Therefore a .person desiring review of an order of revocation of his license has an election to request a hearing before a court of record in the county of residence or arrest (either in the circuit or magistrate court). If he elects the magistrate court and is aggrieved by the magistrate’s determination he may appeal to the circuit court, and if aggrieved by the action of the circuit court he may appeal to the appropriate higher court.

Section 564.444 2. having provided for review “before a court of record” (of which there are two in Lincoln County, one of which by law is given the right to review the decisions of the other), “the fact that an appeal might have been taken to the superi- or tribunal in the first instance does not estop appellant to subsequently appeal to that court from the judgment of the inferi- or appellate court to which the cause was first taken; * * *.” 4 C.J.S. Appeal and Error § 225, citing Northern Pac. R. Co. v. Amato, 144 U.S. 465, 12 S.Ct. 740, 36 L.Ed. 506 (1892).

As to the legislative intent argument: the general language used in §§ 478.070(4) and 512.180 (“all” cases; “any” judgment) clearly demonstrates that the General Assembly intended to grant an unrestricted right of appeal from the judgments of magistrates to the circuit court in civil cases. This matter, of course, is civil in nature. In re Green, 511 S.W.2d 129 (Mo.App.1974).

That this result affords an opportunity to attack an order of revocation on three levels of courts is not a valid reason to rule otherwise. The wisdom of the statutory framework is not a matter of concern to the courts.

Accordingly, our preliminary writ of prohibition is made permanent; respondent is prohibited from entering an order dismissing relator’s appeal and the court will proceed to entertain the appeal.

SMITH, C. J., and STOCKARD, Special Judge, concurs.

      . “2. If a person’s license has been revoked because of his refusal to submit to a chemical test, he may request a hearing before a court of record in the county in which he resides or in the county in which the arrest occurred. Upon his request the clerk of the court shall notify the prosecuting attorney of the county and the prosecutor shall appear at the hearing on behalf of the arresting officer. At the hearing the judge shall determine only:
      (1) Whether or not the person was arrested;
      (2) Whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and,
      (3) Whether or not the person refused to submit to the test.
      “3. If the judge determines any issue not to be in the affirmative, he shall order the director to reinstate the license or permit to drive.”


text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph PARHM, Defendant-Appellant.
    No. 37478.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 7, 1976.

      William J. Shaw, Public Defender, David M. Adams, Asst. Public Defender, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Courtney Goodman Jr., Pros. Atty., Gordon L. Ankney, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   DOWD, Judge.

Defendant was convicted by jury of burglary in the second degree and stealing, §§ 560.045, 560.095, 560.110, RSMo 1969. The court sentenced defendant to the Missouri Department of Corrections for 6 years on the burglary charge and for 2 years on the stealing charge, to be served consecutively.

The facts can be briefly stated: A loud noise was heard, and Mrs. Barbara Hudson looked out her window. She observed two men enter the house of a neighbor. They exited with a T.V. and other items. They placed the items in the auto in which two other individuals were sitting. The defendant was in the driver’s seat. The police were called. The defendant and his companions were apprehended. The merchandise was recovered from defendant’s auto. Mrs. Hudson identified the four individuals as the same ones she had seen earlier, and positively identified defendant’s auto. The owner of the house identified the items found in defendant’s auto as those belonging to her family. She had not given anyone permission to break open her front door or remove anything from her house. There was police testimony that the defendant confessed to his participation in the burglary and stealing.

The sole issue raised by defendant on appeal is that the trial court erred in sustaining the State’s objection to the defense counsel’s cross-examination of Officer Cas-tello because “it was proper to show [that] the witness’ partiality toward the State affected his credibility as a witness”.

The trial court sustained the prosecutor’s objection to a question asked Officer Cas-tello during the following cross-examination by defense counsel:

“Q After telling him this [his rights] and cautioning him about all of this, he came in and told you he was with these other guys?
A Yes, sir.
Q Officer, you have been a police officer with the University City Police Department about four years?
A I have been a police officer about two years—
Q (interrupting) You have been on the street then about two years?
A Yes, sir.
Q You had a number of occasions to arrest a number of people for offenses?
A Yes.
Q You had occasion to come down here to Clayton and make sworn application for various arrests in burglaries?
A Yes.
Q Did you make a sworn application in this case?
A No, sir.
Q Did one of your associates?
A Yes, sir.
Q Did you have occasion to come down and apply for warrants that the warrants were refused?
A No, sir.
Q You have always had warrants issued?
A Yes, sir.
Q Do you know what it takes to make a case, officer?
A What are you referring to?
Q Do you know what it takes, how much evidence, or how much testimony you have to put down on your application to get a warrant issued?
MR. ANKNEY: (Prosecutor) I object to this. This officer doesn’t have to testify to that.
THE COURT: Sustained.
MR. ADAMS: (Defense attorney) It goes to the officer—
THE COURT: The Court sustained it. Propound your next question.
MR. ADAMS: That’s all I have, Judge.”

It is always proper to show the bias or prejudice of a witness. State v. Nebbitts, 498 S.W.2d 762, 764 (Mo.1973). The defendant in a criminal prosecution must be permitted much latitude in the cross-examination of a witness for the purpose of showing bias or prejudice to test the credibility of the witness. State v. Woods, 508 S.W.2d 297, 301 (Mo.App.1974). However, the scope of the inquiry into interest or bias of the witness is left largely to the sound discretion of the trial court. State v. Pigques, 310 S.W.2d 942, 947 (Mo.1958). Absent a clear abuse of discretion, the appellate court will not interfere with the trial court’s ruling. State v. Neal, 526 S.W.2d 898, 901 (Mo.App.1975).

The record shows that defendant was given a reasonable latitude in exposing the possible interest or bias of witness Cas-tello. Defendant established on cross-examination that the witness had been a police officer since 1971; that the officer had arrested a number of persons for various offenses and made sworn applications in connection with the arrests; the officer had previously applied for warrants and always had the warrants issued. Further, evidence was before the jury that witness Castello was the officer who arrested the defendant in the present case. From this elicited testimony “it would be inferred that he would desire to see persons convicted whom he had detained for that offense.” See State v. Nebbitts, supra, at 764.

The trial court may properly limit the extent of the inquiry during cross-examination, State v. Platt, 525 S.W.2d 637, 641 (Mo.App.1975), and apparently did so here. The court told defendant to propound his next question, but defendant had none. We conclude that the trial court did not deny or unreasonably circumscribe the defendant in his right to show bias or an interest of witness Castello. Defense counsel was given a reasonable latitude in the inquiry of the possible prejudice of the witness, and the trial court did not commit prejudicial error in sustaining the State’s objection to the question involved.

The judgment is affirmed.

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


text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard Paul AHERN, Defendant-Appellant.
    No. 37705.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 14, 1976.
    Robert C. Babione, Public Defender, Mary Louise Moran, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Raymond Bruntrager, Jr., Asst. Circuit Atty., St. Louis, Charles B. Blackmar, Spec. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Defendant, Richard Ahern, waived a jury and was tried by the court and found guilty of stealing over $50.00, § 560.156 RSMo 1969, and sentenced' to three years in the Department of Corrections. Defendant claims on appeal that the evidence was insufficient to support the verdict, and that the information was defective. On appeal from a conviction this court will consider the evidence in a light most favorable to the state, together with all reasonable inferences therefrom. State v. Wiley, 522 S.W.2d 281, 292[19] (Mo. banc 1975).

A security guard of May Department Store testified that he observed defendant pick up two shopping bags and proceed on a tour of the first floor of Famous Barr randomly placing various items from throughout the store into the bags. The items included men’s socks, a lamp, two key chains, several boxes of bras, and a woman’s pants suit. As he pushed open the exit door, the appellant was stopped by the guard and escorted to the security office. The police were called and arrested the defendant.

The defense stipulated that the value of the property taken was $84.69, that it was taken without the owner’s consent, that the owner of the property was Famous Barr, and the taking was inconsistent with the rights of the owner. The defense did not put on any evidence. At the end of the state’s evidence the defense moved for acquittal, which was overruled.

The defendant first alleges that the motion for judgment of acquittal should have been sustained because the evidence failed to show that the defendant had the required intent to permanently deprive the owner of the use of the property and convert it to his own use. He claims that his intent was wrongly inferred from mere suspicion, and the state failed to meet its burden of showing the required intent.

Intent is rarely shown by direct evidence but may be shown by reasonable inferences arising from the circumstances surrounding the act and the act itself. State v. Beckemeyer, 423 S.W.2d 687, 688[1] (Mo.1968); State v. Deutschmann, 392 S.W.2d 279, 283[9] (Mo.1965). The court may find that a person intends the natural and probable consequences of his intentional acts. State v. Shuler, 486 S.W.2d 505, 509[3] (Mo.1972). Rarely will there be found a stronger case of criminal intent to steal the property of another than here. The defendant was seen depositing various merchandise in a shopping bag, attempted to leave the store without paying for the merchandise, but was stopped by the security officer as he was pushing open the door of the store to leave.

Clearly, an inference that the defendant intended to take and convert Famous Barr’s property to his own use is consistent with his actions. The defendant’s claim that his conviction is improperly based on mere suspicion is without merit. The unrefuted testimony and facts stipulated by the defendant provide a basis far beyond suspicion from which to draw an inference of intent.

Defendant next alleges that the information was defective because it did not sufficiently specify the items which are the subject of the charge, and it did not allege the ownership of the merchandise stolen with sufficient clarity. The information charged that the .appellant did, “take and carry away the goods, wares, chattels, and personal property of MAY DEPARTMENT STORES INCORPORATED, a corporation, doing business as FAMOUS-BARR COMPANY . . . The defendant alleges that the listing of the property by its general nature did not protect the defendant from future prosecution on the same charge, and the reference to “property of MAY DEPARTMENT STORES INCORPORATED” is simply a further description of the property and not a statement of ownership.

In State v. Rose, 428 S.W.2d 737 (Mo.1968) an information which charged breaking and entering of a building in which “goods, wares, merchandise and other valuable thing[s] (are) kept or deposited” was found sufficient. The court said that while it was preferable to state more specifically a description of the property claimed to be stolen, a defendant may request a bill of particulars to inform himself of the desired details. Supreme Court Rule 24.03 V.A. M.R. The court determined that the information charged the essential facts, and defendant’s remedy was to file a motion for a bill of particulars. State v. Rose, supra at 741[6, 7].

Defendant’s apprehension that future prosecution might occur could have been allayed by his seeking a bill of particulars. Further, the record, by listing the items and total value of the items allegedly stolen, is sufficiently detailed to provide the protection sought by the defendant.

The information stated the ownership of the stolen property with sufficient clarity. In Tucker v. State, 481 S.W.2d 10, 14[2] (Mo.1972), the court found that ownership, described in an information as “the property of Welsh Packing Company”, “could hardly have been alleged more definitely”. The information before us uses the identical language approved in Tucker v. State, supra, and presents a clear and definite statement of ownership.

The judgment is affirmed.

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


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. James COSTELLO, Appellant.
    No. 37667.
    Missouri Court of Appeals, St. Louis District.
    Dec. 28, 1976.
    Robert A. Hampe, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant, James Costello, waived his right to be tried by a jury and was found guilty by the court of operating the automobile of Cora Hayes without her permission in violation of § 560.175 RSMo 1969, and was sentenced to the custody of the Department of Corrections for a term of five years. We affirm.

On November 20, 1974, Cora Hayes parked her white over blue 1966 four door, six cylinder Oldsmobile in front of her residence at 4946 St. Vincent in the City of St. Louis. About an hour later she discovered that it had been taken. She had given no one permission to use it.

On December 10 Police Officer Liggett stopped the Hayes automobile while it was being driven by appellant. The bottom part which had been blue had been painted black, and the lock on the right front door had been punched out. Appellant told Officer Liggett that the automobile belonged to his brother who had owned it for about a year, and that he did not know why his brother did not have a city license for the automobile. The “vehicle I.D. number” plate on the door of the automobile appeared to have been “tampered” with, and subsequent investigation disclosed that the number on the door plate did not correspond with the manufacturer’s number located on the frame of the automobile. There was a key in the ignition but it would not open the lock on the left front door, and there was no key to the trunk.

Appellant offered in evidence what was identified as a Missouri Certificate of Title issued to Ollie Costello, appellant’s brother, dated July 15, 1974, for a 1966 Oldsmobile, four door, six cylinder automobile with a manufacturer’s number identical to that contained on the plate of the door of the Hayes automobile when it was recovered.

Appellant testified that on the morning of December 10, 1974, he was taking his brother to work when the police stopped him. The record does not disclose whether this brother was Ollie Costello. Appellant testified that his brother, presumably Ollie, was in California, and that his brother and mother had sent the certificate of title to him from California. He also stated that “his brother” was in St. Louis when he was arrested, and that although his brother knew appellant had been arrested, appellant had not told him the reason for the arrest.

Appellant’s only contention on this appeal is that the evidence was “insufficient to prove criminal intent” on his part.

In State v. McLarty, 414 S.W.2d 315 (Mo.1967), it was held that criminal intent is an essential element of the offense of tampering with an automobile, and in State v. Tate, 436 S.W.2d 716, 718 (Mo.1968), it was stated that “For the reasons set forth in the McLarty case that criminal intent is an essential element of the crime of tampering with a motor vehicle, criminal intent is also an essential element of the crime of driving, operating and using a motor vehicle without the owner’s permission.”

Appellant cites State v. Drane, 416 S.W.2d 105 (Mo.1967); State v. Edmonson, 309 S.W.2d 616 (Mo.1958); and State v. Tate, supra. Each of these cases pertains to whether the failure to submit the issue of criminal intent to the jury resulted in the failure of the court to instruct upon all questions of law. See Rule 26.02. However, this case was tried by the court without a jury, and other than establishing criminal intent as an essential element of the offense, they are not particularly helpful.

Intent is usually not susceptible of direct proof but may and generally must be established by circumstantial evidence. State v. Chevlin, 284 S.W.2d 563 (Mo.1955); State v. Beckemeyer, 423 S.W.2d 687 (Mo.1968); State v. McCreary, 504 S.W.2d 132 (Mo.App.1973). In determining the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the State, and we accept all substantial evidence and legitimate inferences fairly deducible therefrom which tend to support the judgment, and we reject contrary inferences. State v. McCreary, supra. Also, the trier of fact is not required to accept appellant’s explanation of his possession of the stolen automobile.

In this case appellant admitted that he knew the door lock had been, punched out and that the lower part of the automobile had been repainted. Although he contended that he in good faith thought he was operating his brother’s automobile, he admitted that he never told his brother that he had been arrested for being in possession of that automobile on the basis that it had been stolen, and it may be presumed he also did not tell his brother that the automobile had been confiscated by the police. He testified that he knew his brother had possessed the automobile for a year, which was an impossibility because it was in the possession of Cora Hayes until November 20, 1974. There is considerable mystery concerning the certificate of title dated July 15, 1974. Apparently that title referred to an automobile from which an identification plate had been taken and placed on the Hayes automobile. But, the date on the certificate of title is not consistent with when appellant stated his brother acquired the automobile, and on July 15, 1974, the automobile on which the plate was found was in the possession of Cora Hayes. The certificate of title could not in any event have referred to the Hayes automobile because the number on the plate, a detachable item, did not match the number on the frame.

Appellant’s exclusive and unexplained possession of the recently stolen automobile, as in stealing and burglary cases, State v. Durham, 367 S.W.2d 619 (Mo.1963), authorizes an inference of knowledge that the automobile was stolen. “If the trier of fact does not believe the explanation of the defendant [as the Court obviously did not in this case], the possession is unexplained, and the inference from unexplained recent, exclusive and conscious possession is permissible.” State v. Clark, 438 S.W.2d 277, 279 (Mo.1969). See also State v. Denison, 352 Mo. 572, 178 S.W.2d 449 (1944).

These circumstances are inconsistent with appellant’s contention of lack of criminal intent. The circumstances are not of themselves conclusive, but they need not demonstrate an absolute impossibility of innocence, State v. Aguilar, 429 S.W.2d 754 (Mo.1968). When considered together with the permissible inferences they point so clearly and satisfactorily to appellant’s guilt to exclude every reasonable hypothesis of innocence.

We find sufficient evidence to sustain the judgment, and it is therefore, affirmed.

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


text:
    Donald KATZ, Plaintiff-Respondent, v. PULASKI SAVINGS AND LOAN ASSOCIATION, a corporation, Defendant-Appellant.
    No. 37297.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 28, 1976.

      Kappel, Neill, Staed & Wolff, C. William Ported, Jr., St. Louis, for defendant-appellant.
    Newmark & Baris, Irl B. Baris, Kenneth H. Graeber, St. Louis, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Suit in equity by Donald Katz, owner of a piece of property on Harris Street in the City of St. Louis, to enjoin Pulaski Savings & Loan Association, holder of a note and deed of trust on the property, from foreclosing the deed of trust. The case was submitted on a stipulation as to the principal facts, supplemented by oral testimony of one witness. The trial court found for plaintiff and permanently enjoined foreclosure provided plaintiff continue to make monthly payments of $133 on the principal balance due Pulaski. Pulaski appealed.

These are the facts, from the stipulation and the oral testimony of witness Noble:

Harvey Noble and Steven Goldman, partners doing business as Eagle Realty Company, acted as managing agents for a number of property owners, including plaintiff. Eagle Realty collected rents, made required payments and remitted net proceeds to the property owners. Pulaski held notes and deeds of trust on six separate properties managed by Eagle Realty, including the Harris Street property. The principal outstanding balances on each of these six loans ran from $2,615 to $8,606. The total principal balance on all six loans was $32,836 as of January 18, 1973. The total monthly payments of principal due Pulaski on these six loans amounted to $510, and the payments were in default. On January 18, 1973 Noble and Goldman entered into a written agreement with Pulaski (drawn by Pulaski’s attorney) in which they agreed as “owners” (although their only interest was as managing agents) to pay monthly instal-ments of $510 on the aggregate principal balance of $32,836. The $510 payments were to be applied solely to principal indebtedness. Pulaski agreed to waive interest on these obligations “as long as Owners make principal monthly payments as set forth herein.” Pulaski was given “absolute discretion as to the allocation of the principal payment among the various loans.” None of the $510 was to be used for payment of taxes or insurance, which were to be otherwise provided for by owners. Paragraph 7 provided: “Monthly payments shall be made on or about the 15th day of each month and in event of default, Pulaski shall have the option to declare this Agreement in default and Pulaski shall be entitled to enforce each note and Deed of Trust as originally executed and the payments received prior to default shall be applied to said loans at the discretion of Pulaski without waiver of interest or penalties.” The agreement specifically provided that it in no way released the obligations of any parties on any of the loans, except that if the entire principal balance of $32,836 was paid under the agreement Pulaski at such time would satisfy the liens of its deeds of trust and assign or mark the notes paid.

The principal balance due on January 18, 1973 on the property involved in this action — the Harris Street property — was $8,606. At the time the written agreement was drawn up Pulaski explained to Noble and Goldman that to pay out the amount owed on the six properties in four years at $510 a month they were designating or specifying that a certain portion of the $510 would be applied to each particular parcel. The amount to be applied to the Harris Street property each month was $133. Noble and Goldman made no objection to this apportionment. After the written agreement was drawn up Pulaski showed Noble and Goldman “a copy of what they had drawn up (with respect to allocation of certain amounts to the various parcels) and (they) agreed to make those payments with those amounts going to each individual piece.” For each of these loans Pulaski had previously issued a loan payment book showing payments made and principal balance due. Following execution of the written agreement of January 18, 1973 Pulaski pasted a piece of white paper on the third page of each loan payment book showing the account number, the new payment date, the amount of the payment- due each month ($133 in the case-of the Harris Street property), and a notation that the payments were due on the first and delinquent on the 15th day of the month. Eagle Realty began making monthly payments of $510 under the agreement and continued to do so until September, 1973, at which time part but not all of the $510 was paid to Pulaski. As time went on some monthly payments were not made on the other five properties, but the full $133 was paid and credited in the loan payment book of the Harris Street property each and every month from January, 1973 through January, 1975. No payments were missed on that property. When the entire amount of $510 was not paid in a particular month Pulaski would credit the other accounts with such payments as were actually received on those accounts.

On February 7, 1975 Pulaski wrote Noble and Goldman, listing the loan accounts on the Harris, Bartmer and Evans Street properties, stating that default had been made in the payments due on these loans; that Pulaski was exercising its right to take over management of these three properties and collection of rents under Paragraph 7 of the deeds of trust securing these loans, and giving notice that foreclosure proceedings would be started immediately. Plaintiff, through his attorneys, tendered a check for $133 on the Harris Street property, for the month of February, 1975, which tender was refused. This action was filed shortly thereafter.. Plaintiff is able, ready and willing to continue making monthly payments of $133, providing they are credited to the principal balance due on his note. Plaintiff does not own and has no interest in any of the other five pieces of real property. None of plaintiff’s money has ever been applied to any of those five or credited to their accounts.

The only question presented for review is whether the written agreement of January 18, 1973 is singular and entire, or divisible and severable. This is primarily a question of the intention of the parties, to be gathered from the language used, if possible, and the subject matter of the contract. Rexite Casting Co. v. Midwest Mower Corp., 267 S.W.2d 327, 331 (Mo.App.1954).

The subject matter of this agreement is future payments due Pulaski on six defaulting real estate loans being serviced by “owners.” Evidently it was to the advantage of owners and Pulaski to combine the principal payments on these six loans into one monthly remittance of $510, representing the total of the monthly payments of principal due on the six loans. For the assurance that owners would make these principal payments over the approximately 4-year period it would take to liquidate the total principal balance due at that rate Pulaski was willing to forego the payment of interest. Pulaski specifically waived interest on the six obligations, as long as owners made the principal payments monthly under the agreement. Under Paragraph 7 of the agreement Pulaski clearly had the option to declare the agreement in default and thereupon to foreclose, without waiver of interest or penalties, in the event of default in the making of the $510 monthly payments, but this was elective — subject to Pulaski’s choice. There was no provision that the agreement would be terminated as a matter of course following default in the making of the $510 monthly payments. Rescission was not automatic. The agreement, while clear and unambiguous in most provisions, is obscure and ambiguous in the event of default followed by Pulaski’s failure to declare the agreement in default. One option was spelled out but the other side of the option coin was not disclosed. To clear up this ambiguity we may resort to the interpretation placed upon the agreement by the parties themselves, because “ * * * the practical construction which the parties themselves place upon an agreement is of considerable significance in ascertaining the meaning of the terms of an ambiguous contract.” Modine Mfg. Co. v. Carlock, 510 S.W.2d 462, 468 (Mo.1974). What happens in the contingency mentioned is answered by resort to the stipulated facts, from which it appears that when that happened Pulaski did not declare the agreement of January 18, 1973 in default, or elect to terminate it, or foreclose on the delinquent property, but routinely accepted the payments actually made. If a payment due in October was skipped, but a payment was made in November, the amount paid in November would be credited to the month of October, the delinquency carried forward, and the account book marked “delinquent” in October. The first of these delinquencies occurred in September, 1973, and Pulaski routinely accepted payments after default through the remainder of 1973, all of 1974 and until Pulaski wrote the letter of February 7, 1975 declaring a default (a period of approximately 17 months). Significantly, Pulaski even then did not declare the agreement in default. Instead, Pulaski declared a default in the payments due under the deeds of trust, and an intention to take over management, etc. thereunder. So far as this record shows Pulaski has never declared a default under Paragraph 7 of the agreement of January 18, 1973. Pulaski’s acts and conduct constituted a waiver of strict compliance with the requirement that owners make monthly payments in the sum of $510.

Turning to the five criteria commonly used for aid in determining the intention of the parties, Rexite Casting Co. v. Midwest Mower Corp., supra, 267 S.W.2d l. c. 332, wé conclude that the writing of January 18,1973 was divisible and severable, not singular and entire.

Clearly the subject matter of the agreement (payments on six loans) is inherently divisible and the consideration was expressly apportioned. Six separate and distinct properties, owned by six separate owners holding six separate accounts with Pulaski, are involved. Significant is the uncontradicted, unimpeached answer given by witness Noble in answer to the court’s question, “Did you feel you were making one agreement when you were making six separate agreements?” He answered, “We actually made one agreement, but it was probably six separate in our minds maybe because of the different ownerships of these properties.” Appropriate is the statement in Bianchi Bros. v. Gendron, 292 Mass. 438, 198 N.E. 767, 771 (1935); “A contract may be entire in the sense that there is but one agreement covering all the terms and yet it may be that the performance under the contract will be divided into different groups each set embracing performances which are the agreed exchange for each other, the result being that the contract is entire but divisible.” A contract is entire “ ‘when by its terms, nature, and purposes it contemplates and intends that each and all of its parts, material provisions, and the consideration are common each to the other and interdependent. A divisible contract is one in its nature and purposes susceptible of division and apportionment, having two or more parts in respect to matters and things contemplated and embraced by it, not necessarily dependent upon each other.’ 7 Am. & Eng. Encyc. of Law (2d Ed.) 95. ‘The test chiefly relied upon in such cases is whether the parties have apportioned the consideration on the one side to the different covenants on the other. * * * If the consideration is apportioned, so that for each covenant there is a corresponding consideration, the contract is severable.’ 3 Page on Contracts, § 1484.” Dick v. Riddle, 139 Mo.App. 584, 123 S.W. 486, 487 (1909).

The agreement gave Pulaski the absolute discretion to allocate the money to the several accounts as it chose. Pulaski exercised that choice, and memorialized the choice in a contemporaneous memorandum to which Noble and Goldman agreed. Thereby the parties themselves apportioned the consideration to the different covenants.

While under the terms of the agreement the $510 monthly payment was an “obligation due at the same time to the same person” (an indication of entirety and singularity), Pulaski waived strict compliance with this requirement, as we have seen. By its practical construction of the contract Pulaski treated the obligation as one payable monthly in whatever amount Eagle Realty collected and remitted on each separate account. From the practical construction of the parties it is manifest that the agreement was not “to take the whole or none”; that while at the outset and under the agreement as originally drawn the parties contemplated faithful performance of the promise to pay $510 each month, they did not contemplate that there would be no bargain at all if there was an occasional lapse or omission in owners’ performance of their promise to pay $510 each month. Another indication that the agreement was not one to take the whole or none is the fact that Pulaski did not undertake to foreclose on all six properties, en masse, but selectively gave notice of foreclosure on only three of them. Pulaski considered and treated them as individual properties; not as a class.

For the foregoing reasons we further conclude that the parties did not assent to all the promises “as a single whole, so that there would be no bargain whatever if any promise or set of promises were stricken out.”

The circuit court properly considered the Harris Street transaction as separate and distinct from the other five situations. Viewing it as such the court properly stopped the foreclosure, since there had not been a single failure to remit the $133 monthly payments agreed upon by the parties. There having been no delinquency in the Harris Street account there was no right under the agreement of January 18, 1973 to foreclose on that property. Instead, “owners” have the right, on behalf of the property owner, to make the agreed monthly payments of $133 until the principal balance due is fully paid, in which event and at which time Pulaski will be obligated to waive all interest payments and cancel the lien.

Judgment affirmed.

SMITH, C. J„ and ALDEN A. STOCK-ARD, Special Judge, Concur.