author: SMITH, Chief Judge.

text:
    Irvin J. KOPF, Appellant, v. STATE of Missouri, Respondent.
    No. 35644.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 13, 1975.
    Donald L. Schmidt, Christopher T. Hex-ter, Legal Aid Society, St. Louis, Mo., for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Gary Brandt, Asst. Circuit Atty., Charles B. • Blackmar, St. Louis, for respondent.
   SMITH, Chief Judge.

Movant, Irvin Kopf, appeals from the denial of his Rule 27.26, V.A.M.R., motion to vacate a conviction and sentence for assault with intent to kill. His prior direct appeal is reported at 481 S.W.2d 7 (Mo. 1972).

On appeal here he attacks only the finding of the trial judge that he was not denied effective assistance of counsel at his trial. The claim of ineffective assistance is based upon the contention that his attorney failed to locate and talk to certain witnesses who purportedly would supply mov-ant with an alibi defense.

Deferring to the trial court’s opportunity to determine credibility we do not find the action of the trial court in denying the motion to be clearly erroneous and we affirm.

There was evidence to support the conclusion that movant first informed his attorney of the fact of such witnesses on the day of trial but did not give their names until the hearing on the 27.26 motion. Movant’s former hired attorney withdrew after six months of representation because of movant’s lack of cooperation. That attorney was supplied with no witnesses’ names by movant. Movant was free on bond for four or more months following his arrest. Movant’s trial attorney contacted or attempted to contact all witnesses for the State and stated that had he been informed of any alibi witnesses he would have attempted to contact them. He was aware of the name of movant’s girl friend (now dead), but was told by movant that she knew nothing of the incident charged and that movant was not with her at the time of the crime. Movant has failed to establish that his counsel was ineffective or that he failed to investigate information furnished to him by movant.

Judgment affirmed.

KELLY and STEWART, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    BRUNSWICK CORPORATION, Plaintiff-Appellant, v. James A. BRISCOE, Jr., et al., Defendants-Respondents.
    No. 36119.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 6, 1975.

      Thomas, Busse, Goodwin, Cullen, Cloo-ney & Ottsen, Donald H. Clooney, St. Louis, for plaintiff-appellant.
    George T. Mehan, Jr., Clayton, for defendants-respondents.
   PER CURIAM:

Plaintiff-appellant Brunswick Corp., appeals from a judgment in favor of defendants-respondents James Briscoe, Sr., James Briscoe, Jr. and Marie Briscoe in a suit by Brunswick for recovery on promissory notes, including a lost note for $25,000. The basic thrust of Brunswick’s appeal is that the trial court’s finding of facts and conclusions of law resulting in judgment for the Briscoes in a court tried case were erroneous. We disagree with Brunswick’s contentions and affirm the judgment.

The Briscoes were officers of Linden Lanes, Inc., a bowling lanes and related enterprise in St. Charles County, Missouri. In June, 1959 Linden Lanes contracted with Brunswick for the purchase of automatic pin setters, bowling lanes and related equipment. In payment of the bowling equipment, Linden Lanes executed two promissory notes, secured by chattel mortgages, in the total amount of $331,644.30. By agreements in 1962 and 1963 the payment schedules on the notes were extended, but due to financial distress of Linden Lanes there was a delinquency on the notes totaling $29,602 as of March IS, 1965. In August of 1965, it was apparent that Linden Lanes’ financial condition was rapidly deteriorating, and to prevent further enervation which would result in the company’s demise, Brunswick and the Briscoes conducted negotiations directed primarily at keeping the bowling lanes open and the business and its assets intact to take advantage of the heightened activity of the forthcoming winter bowling leagues. On August 19, 1965 James Briscoe, Sr. and James Briscoe, Jr. met with representatives of Brunswick at the St. Charles office of Paul Niedner, the attorney for Linden Lanes and the Briscoes. What transpired at the meeting is disputed by the parties, except that all parties agree that Brunswick was to take over the operation of the bowling alleys and was to lease the premises on which the bowling alleys were located together with certain bowling and related equipment and facilities therein for $1,833.33 per month.

The controversy centers on what transpired between the Briscoes and Brunswick for the settlement of Linden Lanes’ financial obligations with Brunswick. Brunswick contends that settlement of Linden Lanes’ financial obligations was resolved in the following manner: Linden Lanes would return all the mortgaged bowling equipment with Brunswick taking over the bowling operation and renting from Linden Lanes the premises and bowling, food and bar facilities and equipment therein, including the facilities and equipment owned by Linden Lanes, for $1,833.33 per month. The outstanding obligation of $29,602 would then be cancelled with the Briscoes, on behalf of Linden Lanes, executing a promissory note for $25,000 in favor of Brunswick. Thus, according to Brunswick, all of Linden Lanes’ obligations to Brunswick represented by the outstanding debt of $29,602 on the two notes originally executed were cancelled in exchange for a $25,000 promissory note from Linden Lanes and the lease by Brunswick from Linden Lanes of the bowling alley premises and all bowling, food and bar facilities and equipment therein for $1,833.33 per month. Brunswick would then operate the bowling enterprise. At trial, Brunswick introduced the lease having as a separate attachment a listing of bar, food and other equipment as a part of the lease. The $25,000 promissory note successfully eluded Brunswick’s search and was not produced at trial nor could Brunswick account for its loss.

The Briscoes, on the other hand, deny the execution of the $25,000 note. It is the Briscoes’ contention that Brunswick agreed to cancel all outstanding promissory notes and release Linden Lanes from any obligation on the $29,602 debt owing on the original notes signed. In return for the cancellation of the debt, the Briscoes allege that they agreed on behalf of Linden Lanes to deliver possession, occupancy and use of the entire bowling operations to Brunswick without any interruption in business and to the transfer of all food, bar and bowling equipment including facilities and equipment owned outright by Linden Lanes. The Briscoes assert that Linden Lanes owned bowling, food and bar equipment and facilities having a value of $40,000 which was not included in the lease of the premises; that due to the exigent circumstances requiring the continuance of business operations, Linden Lanes simply turned over everything to Brunswick— partly by lease of the premises and certain equipment and facilities and the balance by outright transfer to Brunswick of $40,000 worth of bowling, food and bar equipment owned by Linden Lanes but not included in the lease. In return, all obligations owed Brunswick were cancelled. By this arrangement, Brunswick would thereby be able to take possession of and operate an ongoing business without any interruption —-a most advantageous scheme for Brunswick, as there would he no loss of revenues. Brunswick would operate the bowling venture with the premises, facilities and equipment rented from Linden Lanes for $1,833.33 per month together with the $40,000 worth of bowling, food and bar equipment and facilities owned by Linden Lanes which was not included in the lease but which was transferred to Brunswick.

Both Niedner and the Briscoes testified that Brunswick was most anxious that the enterprise did not close down, and the plan entered into with the transfer of the title Linden Lanes Bowling operations permitted immediate possession and operation of the bowling business by Brunswick. Brunswick counters that the lease covered all equipment, including that owned by Linden Lanes; that there was no separate transfer of equipment and facilities having a value of $40,000.

On January 1, 1966, Linden Lanes forfeited its charter for failure to file an annual report and antitrust affidavit. Title to the land and building housing the bowling alleys and the bowling, food and bar facilities owned by Linden Lanes was subsequently transferred by the Briscoes, subject to the August 19, 1965 lease of the premises and facilities to Brunswick. Brunswick continued to lease the properties and operate the bowling alleys to time of trial.

The facts when boiled in the testimonial caldron leave two issues for determination: 1) did the Briscoes execute a $25,000 note in favor of Brunswick? 2) was Linden Lanes’ debt of $29,602 to Brunswick can-celled by the immediate transfer to Brunswick of Linden Lanes’ entire bowling alley enterprise? The trial court found in the negative on the first issue and in the affirmative on the second, thereby ruling in favor of the Briscoes.

In support of its contentions that the Briscoes signed a $25,000 note as part of an agreement to release Linden Lanes from liability on the two original notes, Brunswick presented the testimony of the two attorneys involved in the negotiations, Paul Niedner, who had represented Linden Lanes and the Briscoes, and Donald Dalton, who had represented Brunswick. Niedner testified that a meeting was held in his office on August 19, 1965 between representatives of Brunswick and Briscoe Sr. and Briscoe Jr.; that Brunswick gave Niedner for his inspection a settlement agreement, a $25,000 promissory note payable to Brunswick, a mutual release between the parties on all obligations on the prior notes, and a deed of trust on the land housing the bowling lanes to be used as security for the $25,000 note. All of the foregoing documents were unexecuted when given to Niedner. Niedner testified that the parties expressed an intention to enter into the agreement reflected by the documents, but at trial, Brunswick could only present the unexecuted copies of the documents. Dalton, who represented Brunswick, was not able to be present at the August 19, 1965 meeting, but Niedner talked to him by telephone on that date. Niedner further testified that he was to place the documents in escrow with a local bank for Dalton’s examination, and if Dalton found them satisfactory, he was to distribute the appropriate copies to the proper people. Niedner testified that he was uncertain as to whether any of the documents, and the $25,000 note in particular, had been executed. A memorandum to the escrow agent signed by Niedner set forth that the $25,000 promissory note was “to be signed,” indicating that it was unexecut-ed when placed in escrow by Niedner.. Dalton, using correspondence from his files to refresh his recollection of the transaction between Brunswick and Linden Lanes, testified that he recalled that the documents had been signed; that sometime after August 19, 1965 probably shortly after November 4, 1965, he remembered seeing an executed note for $25,000 with an executed deed of trust, but the deed of trust was never recorded. To stress that the Briscoes had in fact executed the note, Brunswick also presented evidence that in 1970, the Briscoes’ attorney had written to Brunswick asking for a copy of the purported $25,000 note relative to a tax matter Linden Lanes had with Internal Revenue Service.

Brisco Sr. testified that neither he nor any other officer of Linden Lanes signed a note for $25,000. He further testified that Brunswick had agreed to cancel all outstanding obligations if Linden Lanes would immediately transfer to Brunswick the entire bowling alley operation, including bowling, food and bar equipment and facilities owned outright by Linden Lanes; that the transfer would allow Brunswick to immediately take possession of the bowling business, thus preventing a temporary closing and disruption of bowling leagues. Briscoe further testified that the transfer of the business was accomplished through the lease of August 19, 1965 coupled with the transfer of bowling, food and bar equipment and facilities owned outright by Linden Lanes. While the Briscoes admitted that Linden Lanes’ financial statements provided for an amount due and owing Brunswick after August, 1965, there was never a concession by the Briscoes that they had executed a $25,000 note in favor of Brunswick.

Brunswick sued to recover on the $25,000 note and in the alternative made claim that if recovery should be denied on the $25,000 note that it was entitled to recover the unpaid balance of $29,602 due on the original notes. Brunswick also sought an accounting of the proceeds of the sale of the real property on which the bowling lanes property was located, charging that the sale was made after Linden Lanes’ corporate charter had been forfeited and was therefore unlawful.

The trial court rendered the decision in favor of the Briscoes, finding that Brunswick had agreed to cancel the outstanding notes in exchange for immediate possession of the entire bowling lanes enterprise including the transfer to Brunswick of bowling, food and bar equipment and facilities valued at $40,000 and owned by Linden Lanes. The court also found that while Brunswick had prepared a $25,000 note and offered it to be executed by Linden Lanes in exchange for cancelling the outstanding notes, there was insufficient evidence to prove that the $25,000 note had been executed on behalf of Linden Lanes. The court concluded that Brunswick had failed to sustain its burden of proof; that there was no basis for an accounting of the proceeds from Linden Lanes’ sale of real property, since at the time of the sale neither the Briscoes nor Linden Lanes was indebted to Brunswick.

In our review of a court tried case we are to give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Johnson County Post No. 2513, V.F.W., Inc. v. Jackson, 519 S.W.2d 335 (Mo.App.1975); Carroll v. Hahn, 498 S.W.2d 602 (Mo.App.1973); Rule 73.01(3), V.A.M.R.

Much of the evidence below is either documentary- — exhibits and deposition — or undisputed oral testimony and therefore does not raise a witness’ credibility issue. See In re Estate of Wintermann, 492 S.W.2d 763, 767 (Mo.1973); Mission Ins. Co. v. Ward, 487 S.W.2d 449, 451 (Mo. banc 1972); Delany v. St. Louis Union Trust Co., 518 S.W.2d 704, 709 (Mo.App.1974); Prior v. Hager, 440 S.W.2d 167, 172 (Mo.App.1969); Adams v. Manchester Ins. & Indem. Co., 385 S.W.2d 359, 363 (Mo.App.1964); Farm Bureau Mutual Ins. Co. v. Farmers Mutual Auto. Ins. Co., 360 S.W.2d 325, 333 (Mo.App.1962). However, as to the vital disputed facts — the nature of the transaction of August 19, 1965 — there is irreconcilable, directly conflicting verbal testimony. We therefore must give due deference to the trial judge’s findings as to the disputed transaction, since he had the opportunity to hear and observe the witnesses’ demeanor. R. L.S. v. J.E.S., No. 27305 (Mo.App.K.C.D., March 31, 1975); Fanners Mut. Fire & Lightning Ass’n. v. La Vallee, 501 S.W.2d 69, 74 (Mo.App.1973), and cases cited therein.

The conflicting testimony as to whether the Briscoes signed a $25,000 promissory note on behalf of Linden Lanes, Inc. was as follows:

1. Donald Dalton, then attorney for Brunswick, stated that it was his “best recollection” that he saw that the note had been signed when he reviewed the documents in late 1965. However, he did not recall how or in what form the note had been signed.
2. Paul Niedner, then attorney for Linden Lanes, Inc., testified that, “depending upon my recollection, the note was signed at the August 19th meeting.” However, he also said he was “not certain” that it was executed since the memorandum he wrpte to the escrow agent referred to the note “to be signed.”
3. The Briscoes’ trial attorney, testified that, upon advice of prior counsel and accountants, the Briscoes had taken the position with the Internal Revenue Service that a note had been executed. However, it was explained that the Bris-coes refused to make an affidavit to that effect, because they did not have the note and because Briscoe, Sr. could not recall that a note was signed.
4. James A. Briscoe, Sr., who attended the August 19th meeting on behalf of Linden Lanes, Inc., unqualifiedly declared that neither he nor any other officer of the corporation signed the note.

Militating strongly against the fact of execution of the note is its wholly unexplained absence. No representative from Brunswick who was present at the August 19, 1965 meeting appeared or testified as to having viewed the execution of the note or any document; no representative from Brunswick testified as having received or not having received the note from the escrow agent according to any direction after closing; there was no representative from the escrow agent to testify that the executed note had been received or disbursed in accord with a settlement agreement or by direction; and, of course, there was no recordation of the note or deed of trust allegedly securing the note.

We do not find that the trial court was in error in finding for defendants. The testimony in favor of the execution of the note contains some equivocation while testimony against the execution of the note does not. We therefore give deference to the conclusion reached by the trial court where there is a conflict in the testimony. Guerin v. Yocum, 506 S.W.2d 47 (Mo.App.1974). We cannot find that the court was in error in finding that the $25,000 note was never executed. R.L.S. v. J.E.S., supra.

Brunswick also beseeches us to find that the trial court erred in finding that Linden Lanes had transferred bowling, food and bar equipment and facilities valued at $40,000 to Brunswick thereby cancelling out the outstanding obligation of $29,602. Brunswick claims that the $40,000 worth of equipment referred to by the court was included in the lease of real property and facilities to Brunswick for $1,833.33 per month. We first observe that the record concerning the equipment accompanying the real property in the lease of premises and Briscoe’s testimony relating to the transfer of $40,000 worth of equipment owned by Linden Lanes is scarcely a paradigm for clarity. An exhibit purporting to be a lease of real estate from Linden Lanes to Brunswick had as a separate attachment a list of bar, kitchen and snack bar equipment forming a part of the lease, and the sales contract whereby the Briscoes disposed of their property rights in the bowling alley premises made reference to bar and snack bar fixtures included in the lease with Brunswick. On the other hand, Briscoe, Sr. testified that in consideration of the cancellation of all debts, the Briscoes had transferred to Brunswick bowling, food and bar equipment valued at $40,000 which was not a part of the lease. Admittedly the testimony regarding the particular bowling, food and bar equipment which was part of the lease and which was allegedly not part of the lease was rather jumbled and confused. But no effort was made by either party to clarify or identify the particular equipment about which Briscoe testified, and it is not the function of this court to serve as an advocate for one side or the other in our review of the record. Brunswick argues that all the equipment transferred was part of the lease, but Briscoe testified that $40,000 of equipment transferred was not part of the lease; his statement was essentially unchallenged. The trial court agreed with Briscoe, and we defer to the trial court’s finding in that regard. The testimony of Briscoe, Sr. adequately supports the trial court’s finding that there was a transfer of $40,000 of equipment not subject to the lease as cancellation for the outstanding debt of $29,602. The trial court had the right to accept the testimony of the Briscoes and reject the testimony presented by Brunswick. Freshour v. Schuerenber, 495 S.W.2d 116 (Mo.App.1973).

Brunswick claims that in reaching its decision that there was no $25,000 note executed, the trial court erroneously disregarded an admission by Briscoe, Sr. and his attorney that Linden Lanes was indebted to Brunswick for $25,000, referring specifically to the fact that the Briscoes’ attorney had sought a copy of the note from Brunswick to be used for Internal Revenue Service purposes, plus the fact that the corporation’s financial statement reflected an indebtedness to Brunswick. However, Brunswick overlooks the fact that Briscoe, Sr. refused to accede to an Internal Revenue Service request that he sign an affidavit conceding that a $25,000 note had been signed; that Briscoe consistently and steadfastly denied ever having signed such a note. With regard to the letter to Brunswick requesting a copy of the $25,000 note to present to the Internal Revenue Service, the explanation was that the request was based in large measure on Bris-coes’ attorney having seen unexecuted copies of the documents which Brunswick apparently drafted as their proposal for settling the financial affairs with Linden Lanes. Relying on these unexecuted documents, Briscoes’ attorney attempted to find the executed note but met with no success. We believe there were adequate explanations of Briscoes’ attorney’s statement that a note was involved in the settlement. The trial court, as the trier of fact, need not give binding effect to the alleged admission. We hold that the trial court was not erroneous in finding no execution of the note.

It is aphoristic that evidentiary admissions are entitled to considerable weight. Creager v. Chilson, 453 S.W.2d 941, 943 (Mo.1970). A party’s admission of a material fact relevant to an issue in the case is admissible as substantive evidence and may be of probative value even though it is not a direct admission of the ultimate fact in issue. Bridgeforth v. Proffitt, 490 S.W.2d 416, 421-422 (Mo.App.1973). And an admission by a party-opponent is binding and conclusive absent contradiction or a reasonable explanation by the admitting party. Scott v. Norman, 391 S.W.2d 890, 895 (Mo.1965); Partney v. Agers, 238 Mo.App. 764, 187 S.W.2d 743, 747 (1945); McCormick, Evidence § 262 at 630 (2d ed. 1972). However, if there has been an explanation of the party’s admission, it is for the trier of fact to determine the weight and value to be accorded it. Bolivar Farmers Exchange v. Eagon, 467 S.W.2d 95, 98 (Mo.App.1971). In determining its weight and value, the trier of fact must consider the circumstances under which it was made. See State ex rel. Taylor v. Anderson, 254 S. W.2d 609, 615 (Mo.1953). An admission should possess the same degree of certainty as would be required in the evidence it represents. Donnelly v. Goforth, 284 S. W.2d 462, 465 (Mo.1955). Keeping these principles in mind, we believe that the trial court did not err when it refused to give binding effect to the purported admissions relative to the Internal Revenue Service claim and accounting notation. When asked whether Linden Lanes’ balance sheet reflected an amount due and owing to Brunswick, the Briscoes’ attorney stated that he did not know that. He twice further referred to it as an “alleged liability” into which the Internal Revenue Service had inquired. We believe that the Briscoes’ attorney’s statement about Linden Lanes’ financial statements does not rise to the level of an admission. There is no degree of certainty in his statement. Donnelly v. Goforth, supra.

Brunswick argues that the trial court erred in finding a cancellation of the two original promissory notes. Brunswick contends that when the court ruled that the $25,000 note had not been executed it was compelled to find that the original notes were still in effect and that Linden Lanes owed Brunswick $29,602 on those notes. Brunswick’s premise for this argument is the general proposition that one may not be released from liability on a written instrument except by another written instrument. Brunswick correctly states the general rule. But as to negotiable instruments, a holder may “even without consideration” discharge any party by either “any manner apparent on the face of the instrument . . . ” or by “ . renouncing his rights by a writing signed and delivered or by surrender of the instrument to the party to be discharged.” § 400.3-605(1), RSMo 1969, V.A.M.S. However, by statute:

“Any party is also discharged from his liability on an instrument to another party by any other act or agreement with such party which would discharge his simple contract for the payment of money.” § 400.3-601 (2), RSMo 1969.

This court has resolved the apparent conflict between previous statutes containing like provisions by holding that a negotiable instrument may be discharged by an oral release or an oral agreement entered into for valuable consideration. It is only when there is a gratuitous discharge that the statute requiring a writing applies. English v. Evans, 157 S.W.2d 793, 795 (Mo.App.1942); Nelson v. Hudson, 221 Mo.App. 211, 299 S.W. 1111, 1112-1113 (1927). See also Barber v. Mallon, 168 S. W.2d 177, 179 (Mo.App.1943). Since there was valuable consideration involved in the oral agreement between Brunswick and Linden Lanes, Inc., such agreement was not required to be in writing in order to discharge the two prior promissory notes. Therefore, the trial court did not err in finding that the notes were discharged by oral agreement.

Central to Brunswick’s appeal is its contention that the trial court erred in concluding that Brunswick did not meet its burden of proving the existence of and the execution of the $25,000 note which allegedly was lost. Brunswick alleges in its pleading that the note had been lost “while it belonged” to Brunswick. Dalton, its local attorney handling the Linden Lanes matter, reviewed his files but did not find an executed — or even unexecuted — copy of the alleged note. Nor could the bank, which supposedly held the note and other documents in escrow produce an executed copy. In addition, there is no indication that the deed of trust, which also allegedly was signed to secure the note on August 19, 1965, ever was recorded. In an action to recover on lost instruments, evidence of its former existence, execution and loss must be clear and convincing. See State ex rel. Dryden v. Thym, 282 S.W.2d 178, 187 (Mo.App.1955); 51 C.J.S. Lost Instruments § 27e at 834-835 (1948). The greater the importance of the instrument to the cause of action, the more conclusive should be the evidence. 52 Am.Jur.2d, Lost and Destroyed Instruments § 60, at 154 (1970). Recognizing that the question of sufficiency of proof of loss of a note sued upon rests largely with the discretion of the trial court and that each case must rest upon its own facts, Newell v. La Font, 251 S.W. 472, 474 (Mo.App.1923), we hold that the trial court did not abuse its discretion in concluding that Brunswick failed to meet its burden of proving the existence and execution of an allegedly lost note. Execution of the lost note — the instrument vital to Brunswick’s cause of action — was not proven by clear and convincing evidence.

We have held that the trial court correctly found no debt due and owing to Brunswick after August 19, 1965. Therefore, we need not comment on Brunswick’s assertion that it is due an accounting of proceeds from the sale of Linden Lanes, Inc.’s assets, including real property, after its corporate charter was forfeited.

The trial court’s findings are not erroneous. The judgment is affirmed.

All Judges concur.

      . The contracts were actually with two of Brunswick’s predecessor corporations.

      . Niedner was no longer the attorney for the Briscoes or Linden Lanes at time of trial.

      . The prior provision was § 401.122, RSMo 1959.

      . The prior provision, § 401.119(4), RSMo 1959, allowed a negotiable instrument to be discharged:
      “(4) By any other act which will discharge a simple contract for the payment of money.”
      The present statute (§ 400.3-601(2)), in addition, specifically recognizes the possibility of a discharge by agreement. See Uniform Commercial Code Comment to § 3-601 (20B V.A.M.S. at 239-240).

      .This appears to be the majority resolution of the conflict between such “uniform” statutes. See Annot. 65 A.L.R.2d 593, 601-602 (1959) ; 86 A.L.R. 334 (1933) ; 69 A.B.R. 846, 850 (1930).


author: RENDLEN, Judge.

text:
    STATE of Missouri ex rel. John H. FREEZE and Patricia J. Freeze, his wife, Relators-Respondents, v. CITY OF CAPE GIRARDEAU et al., Respondents-Appellants.
    No. 35929.
    Missouri Court of Appeals, St. Louis District, Division 1.
    April 29, 1975.

      Thomas M. Utterback, City Atty., Cape Girardeau, for respondents-appellants.
    Limbaugh, Limbaugh & Russell, Richard D. Kinder, Cape Girardeau, for relators-respondents.
   RENDLEN, Judge.

The City of Cape Girardeau and individually named city employees appeal from writ of mandamus made absolute by the Cape Girardeau Court of Common Pleas on December 28, 1973, commanding appellants to issue a building permit to respondents (relators below) for construction of a service station and car wash on their property in the city. The cause was submitted on an agreed statement of facts. We affirm.

In 1968 respondents’ property had been zoned as a C-l district and under that classification respondents in 1971 filed a proper application for a building permit to erect a service station and car wash. The application was refused solely because the city had shortly before (on February 17, 1971) adopted City Manager Form Ordinance No. 555 (hereinafter referred to as Ordinance 555) requiring a special use permit as prerequisite to the building permit. Thereafter respondents sought mandamus requiring issuance of the building permit and alleging the statutory notice and title to the ordinance were defective, thus invalidating Ordinance 555 as to respondents.

The parties filed their stipulation of facts and the alternative writ was made absolute December 28, 1973.

By its judgment the court directed issuance of the building permit and held Ordinance 555 void as to:

“. . . all land within the city limits of Cape Girardeau, Missouri, except that portion set forth by legal description in a notice published on February 1, 8 and 15, 1971, as set forth in Exhibit ‘B’ to rela-tors [’] petition. Costs assessed against defendants.”

From this order the appeal is taken.

In support of the judgment, respondents contend Ordinance 555 was void as to their property for lack of proper notice as required by sections 89.050 and 89.060, whereas appellants contend the notice sufficient and that the court erred in making the writ absolute. The published notice did not include that part of the city in which respondents’ land is located. Under the provisions of § 89.050 the legislative body (City Council of Cape Girardeau) is authorized to provide the manner for adopting zoning regulations within the city, on condition however:

“. . .no such regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days’ notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality.” (Emphasis ours.)

Section 89.060 provides that while such zoning regulations and restrictions may be amended or changed, in case of signed, acknowledged protest against any such change by the owners of ten per cent or more, either of the areas of the land included in such proposed change,

. . such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the legislative body of such municipality. The provisions of section 89.050 relative to public hearing and official notice shall apply equally to all changes or amendments.” (Emphasis ours.)

Proper notice and public hearing are vital steps in the municipal legislative process for zoning changes. Moreover, the statute provides that owners of ten per cent of the areas of the land included in any proposed change may lodge sworn protest, in which event the change can be effectuated only by favorable vote of three-fourths of all the members of the legislative body of such municipality. This jurisdictional notice is not merely to advise affected parties of changes that will or might occur, but is an indispensable step in the process by which “parties in interest” may profoundly affect the legislative course of such ordinance. Further, it permits interested citizens an opportunity to furnish the municipality relevant information to prevent improvident changes.

Notice was published during February, 1971, in a local newspaper, properly in advance of the February 17th City Council meeting. Paragraphs one and two of the notice advised a meeting would be held on Wednesday, February 17, 1971, for the purpose of reenacting the present District Map and clarifying existing zoning, and that any action by the council was not to change but was for the purpose of “clarifying and reaffirming all of the zoning which presently exists.” From this respondents could be assured the proposed action would not affect their interests except that the act of “clarifying or reaffirming” might resolve clerical errors, grammatical problems or superficial ambiguities in the existing ordinance. In the third paragraph the notice directed attention to separate specific acts contemplated by the council, quite different from the act of reaffirming existing zoning. That separate third paragraph stated:

“The City Council will also consider amendments and changes in the existing zoning regulations of the City including the following: . . . ” (Emphasis ours.)

There followed a metes and bounds description of the land involved. It is admitted the description included only part of the city and excluded a substantial portion, especially that where respondents’ land is located. The property described is an area added to the city by annexation in 1968 and none other. Respondents were in effect advised that any modification or amendment to existing zoning regulations would not concern their property and could reasonably believe that only the recently annexed portion of the city was subject to change.

The requirements of notice and hearing are mandatory for validity of an amending ordinance, Wippler v. Hohn, et al., 341 Mo. 780, 110 S.W.2d 409, 411 (1937), and ordinances passed in contravention thereof are void. If the city intended to change existing zoning ordinances relating to the entire city, it should have so declared in the published notice.

The appéllate court of Illinois, second district, in Kirk v. Village of Hillcrest, 15 Ill.App.3d 45, 304 N.E.2d 452 (1973), declared invalid a zoning ordinance enacted by the board of trustees of the village changing classification of lots in Subdivision Five under a published notice referring to lots located in Subdivision Six. The applicable Illinois statutes require (as do the corresponding Missouri statutes) timely notice and hearing of proposed changes in zoning ordinances. Holding the error in the notice fatal, the court stated at 454:

“The notice is mandatory, jurisdictional and must correctly describe the subject property, otherwise any attempted amendment will be invalid.”

The notice has been described as a “warning” to those to be affected, and such notice should be unambiguous “to the end that adequate warning be given to all persons whose rights may be affected by [the] action of the local board.” Brachfeld v. Sforza, 114 N.Y.S.2d 722, 725 (Sup.1952). “Changes in zoning ordinances affect property rights, and the provisions as to a notice of hearing must be strictly complied with.” Brachfeld, supra at 725. Similarly, the New York court in Palmer v. Mann, 206 App.Div. 484, 201 N.Y.S. 525, 528 (1923), affirmed at 237 N.Y. 616, 143 N.E. 765 (1923), stated:

“[W]hen a statute requires a notice to be given to the public, such a notice should fairly be given the meaning it would reflect upon the mind of the ordinary layman, and not as it would be construed by one familiar with the technicalities solely applicable to the laws and rules of the zoning commission. Otherwise such a notice, instead of informing, would actually mislead, the public, including the persons immediately interested. . . It is, at least, not too much to ask that any ambiguity in the notice to the public of so important a change, which is the only notice that the public has, should be resolved against the notice.” (Emphasis ours.) 201 N.Y.S. at 528.

We are not impressed with appellants’ argument that few if any read the published notice and we find the notice here did not include respondents’ property nor affect their rights therein. The trial court correctly concluded Ordinance 555 was void as to respondents and no bar to issuance of the requested permit.

Appellants filed with their brief a printed appendix purporting to be Ordinance 873, entitled “An Ordinance reaffirming and reenacting City Manager Form Ordinance No. 555 in order to cure an alleged inadequate notice and amending Chapter 30 of the Code of Ordinances, of the City of Cape Girardeau, Missouri, by striking therefrom certain sections and reenacting new sections in lieu thereof . . .” Appellants also filed here a photocopy of an affidavit purporting to be that of the city clerk stating the attached exhibit is “a true and correct copy” of Ordinance 873 passed and approved March 6, 1974. No seal of the city is embossed or annexed but the word seal has been typed on the page. They urge that Ordinance 873, enacted in 1974 subsequent to the judgment commanding issuance of the permit, be given present application by this court, including its provision requiring a special use permit as prerequisite to the building permit for respondents, and that the infirmities of Ordinance 555 have been corrected, making the issues here moot. Koch v. Board of Regents of Northwest Missouri State College, 265 S.W.2d 421 (Mo.App.1954).

As a general rule municipal ordinances are not judicially noticed by appellate courts, McIntosh v. City of Joplin, 486 S.W.2d 287 (Mo.App.1972), rather, “their existence and contents must be proven like any other fact”, Murray v. Wells, 17 S.W.2d 613 (Mo.App.1929).

This court may not consider any matters not set forth in the approved transcript. State v. Galeener, 402 S.W.2d 336, 342 (Mo.1966); State ex rel. State Highway Commission v. Parker, 388 S.W.2d 830, 832 (Mo.1965). Appellants’ offer of proof on appeal (i. e., the printed affidavit and Ordinance 873 attached as an appendix to their brief and the photocopy of the affidavit accompanying the original typewritten brief filed herein) is challenged by respondents who contend as follows:

“Appellants have cited no authority by which they can prove alleged facts which are not contained within the transcript on record. Therefore, Appellants’ inclusion of the statements that Ordinance No. 555 was re-enacted as City Manager Form Ordinance No. 873 after the Court of Common Pleas’ decision in favor of Respondents, was improper. Further, the validity of Ordinance No. 873 itself may be subject to attack.”

Appellants made no effort to raise the issue of mootness by motion as suggested in Koch v. Board of Regents of Northwest Missouri State College, supra, 265 S.W.2d at 425. The affidavits and copy of the ordinance filed here following filing of the transcript were not stipulated by the parties and were not ordered or directed by the trial court nor by this court under the provisions of § 512.110 or Supreme Court Rule 81.12, V.A.M.R., relating to corrections or omissions and filings of supplemental transcripts. Under these circumstances we cannot consider such affidavits nor the purported Ordinance 873, Harms v. Simkin, 322 S.W.2d 930, 932 (Mo.App.1959), and appellants’ offer of proof on this appeal is denied.

The judgment of the trial court is affirmed.

WEIER, P. J. and DOWD, J., concur.

      . The city employees named in their official capacities were the building inspector, the city engineer and the city manager.

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

      . Notice is also required for owners in adjacent areas up to one hundred eighty-five feet from the boundaries of the affected land.

      . Paragraphs one and two of the published notice were as follows:
      “Notice is hereby given that the City of Cape Girardeau, Missouri, at a meeting to be held on Wednesday February 17, 1971, at 7:30 p. m., will repeal and re-enact the ‘District Map’ for purposes of clarifying the zoning which presently exists in the City of Cape Girardeau, Missouri.”
      “Said action with respect to the ‘District Map’ will not change the present zoning of land within the City of Cape Girardeau, Missouri, but is for purposes of clarifying and re-affirming all of the zoning which presently exists.”


author: STEWART, Judge.

text:
    William Bernard KELLER, Movant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 35485.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 29, 1975.

      William D. Mykins, Daniel V. O’Brien, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   STEWART, Judge.

William Bernard Keller, movant pleaded guilty to the crimes of burglary first degree, sodomy, and forcible rape. He was sentenced to a term of twenty years on each count, with the sentences to run concurrently. He subsequently filed a motion under Rule 27.26, V.A.M.R. seeking to have the court vacate the guilty pleas. The trial Court, after making extensive findings and conclusions denied the motion without an evidentiary hearing.

Movant appeals contending that the trial court erred in failing to hold an evidentia-ry hearing and in failing to appoint counsel to represent him on the motion.

In his motion he alleged that his mind was so disturbed at the time he pleaded guilty that he could not comprehend the nature of his plea. By the motion he also sought to have his plea set aside so that he could litigate the defense of insanity at the time of the commission of the acts with which he was charged.

An evidentiary hearing is required only when movant has “ . . . plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts dieted at the guilty plea hearing.” Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974).

Prior to trial, movant’s retained counsel filed a motion for appointment of a physician to determine whether movant possessed a mental disease or defect which would exclude his legal responsibility for the offenses charged. This motion was sustained. The trial court appointed Dr. Nathan Blackman, a psychiatrist, to examine Keller. He found no evidence of any thought disorder and further that, “movant was competent to stand trial in that he knows the nature of the charges against him and can cooperate with the counsel in his own defense.” Dr. Black-man described movant as an inferiority-ridden, deeply frustrated, dissatisfied person who felt unfulfilled and unappreciated in his marriage. He diagnosed movant as psycho-neurotic, mixed type. It was his opinion that movant’s commission of the crime charged was the result of “ . excessive drinking prior to the offense, as well as the neurotic preoccupation with jealousy . . .” The defendant made no objection to the report.

Movant’s trial began October 31, 1972. A jury was impaneled and following the prosecutor’s opening argument, defense counsel gave an opening statement which can best be described as a plea for mitigation. He advised the jury that the defense would call the examining psychiatrist who “is not going to tell you this man is not guilty by reason of mental disease or defect.” He then admitted that the charges brought against movant were true.

The court at that point excused the jury and conferred with counsel and movant, stating that he wished to determine whether movant fully understood what was transpiring before proceeding with the trial. They advised the Court that they realized that the statement was an admission of guilt on all three charges.

The movant told the Court that he, his wife and his parents, had known that his attorney was going to make the admissions contained in the opening statement and that he had authorized his attorney to make those statements; that he fully understood that there were three charges against him and the range of the charges; that he wanted to leave the punishment up to the jury.

During the course of this colloquy the following occurred:

“The Court: Mr. Keller, what I am principally concerned about is whether or not you have full knowledge of what is happening here now.
The Defendant: Yes, I believe I do.
The Court: And you have confidence in your lawyer’s ability'—
The Defendant: Yes, I do.
The Court: —to properly represent you. You are not under the influence of any drugs or alcohol ?
The Defendant: No sir. I don’t, I don’t believe in trying to get away with something that, you know, lie, because I am guilty and I want to pay for what I have done.”

The Court in compliance with movant’s request instructed the jury that they would return verdicts of guilty on all three charges and that the matter for consideration of the jury would be confined to the issue of punishment.

The Court then permitted movant’s parents to testify with respect to their son’s general background including the broken home and other circumstances which the defense felt would affect movant’s behavior and affect mitigation of the punishment.

On the following day as court convened counsel informed the Court that movant wished to waive the jury, plead guilty and have the Court assess the punishment. Defendant confirmed by voluntarily stating, “I waive my . . . the trial by jury. I want to rather leave it up to the judge.”

The Court then proceeded to take the plea. This proceeding covers twelve pages of the transcript. The Court determined that movant had a high school education and was taking college courses; that he was aware of the range of punishment.

The proceedings in part are as follows:

“The Court: You are not saying you didn’t know what you did ?
The Defendant: Well, I know I did it but I don’t know why I did it.
The Court: But you are not saying that you were insane ?
The Defendant: No, I don’t say I am insane. I say I have got nervous problems maybe but not insane.”

The Court further questioned the voluntary character of his plea of guilty:

“The Court: All right. Now Mr. Keller, You heard the prosecutor’s statement and you heard that he has evidence to support this. Do you — you say that that is right?
The Defendant: I plead guilty, Your Honor.
The Court: Plead guilty to what the Prosecutor says you’re guilty—
The Defendant: Yes.
The Court: And you heard him outline the range of punishment ?
The Defendant: Yes.
The Court: Now, have any threats or promises been made to induce you to plead guilty?
The Defendant: No. I just wanted to get it over with and not cause my family any more problems than I have.
The Court: All right. Here is another question I want to ask you: Do you believe there is any understanding or have any predictions been made to you concerning the sentence ?
The Defendant: No. I was told that I could possibly get life.
The Court: You feel you fully understand your rights and the consequences of your plea; is that right ?
The Defendant: Yes, Ido.
The Court: And you are saying you are in fact guilty ?
The Defendant: Yes.
The Court: Still wish to plead guilty?
The Defendant: Yes.
The Court: All right. Mr. Mykins, do you know of any reason why the defendant should not plead guilty to the three charges ?
Mr. Mykins: I do not, Your Honor.”

Prior to pronouncing sentence the Court found as a matter of fact that movant was acting voluntarily, fully understanding the nature of the charges, his rights and the consequences of his plea and that movant was in fact guilty.

The files and record in this case sustain the finding made by the trial court before he pronounced sentence and also upon consideration of the motion under Rule 27.26. Reading movant’s allegations as factual, the files and records clearly refute his contention that his mind was so disturbed that he could not comprehend the nature of his plea. The psychiatrist, whom he had intended to call as a witness found that movant knew the nature of the charges against him and that he was competent to stand trial and to cooperate with his counsel in his defense. The trial court thoroughly probed this issue immediately after the opening statement of the defense and again on the following day before formally accepting movant’s plea. No evi-dentiary hearing was required. Smith v. State, supra.

Having reached this conclusion the purpose for which movant sought to set aside his plea is no longer relevant. We may note, however, that defendant made a rational and deliberate choice not to interpose the defense of not guilty by reason of insanity. The defense was clearly abandoned in the opening statement which was ratified by defendant personally. Anderson v. State, 493 S.W.2d 681 (Mo.App.1973).

Having reached the conclusions that an evidentiary hearing was not required it follows that movant was not entitled to the appointment of counsel to assist him with the motion. Duisen v. State, 504 S.W.2d 3 (Mo.1974).

The judgment is affirmed.

CLEMENS, P. J., and KELLY, J., concur.


text:
    Irven GRAFF and Agnes Graff, his wife, Plaintiffs-Appellants, v. Michael MONTILEONE, Defendant-Respondent.
    No. 35963.
    Missouri Court of Appeals, St. Louis District, Division 2.
    April 29, 1975.
    Shaw & Howlett, Joseph Howlett, Terry Flanagan, Clayton, for plaintiffs-appellants.
    F. Douglas O’Leary, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for defendant-respondent.
   STEWART, Judge.

Ruth Graff died as the result of injuries suffered in an automobile accident which occurred somewhere in the 5900 block of Riverview Blvd. in the City of St. Louis. Plaintiffs, as Ruth’s parents, brought a wrongful death action. They have appealed from an adverse verdict and judgment.

We are once again met with major deficiencies in an appellant’s brief. Rule 84.-04(c) V.A.M.R., provides:

"The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument. Such statement of facts may be followed by a resume of the testimony of each witness relevant to the points presented.”

Under that portion of plaintiff’s brief titled “Statement of Facts” we are advised of the date upon which the petition was filed, a summary of the petition and a summary of portions of the testimony of the eight witnesses who testified in the case. It has long been held that this is not in compliance with the rule. Triplett v. Wyatt, 360 S.W.2d 386 (Mo.App.1962); Handshy v. Hasty, 444 S.W.2d 48 (Mo.App.1969); Bryan v. Bryan, 435 S.W.2d 745 (Mo.App.1968). Having read the transcript we also find that the summary of the testimony in this case cannot be said to meet the test of fairness.

The original brief filed in this case by appellant was stricken for failure to comply with Rule 84.04. The brief now before the court which was filed by leave still fails to satisfy the requirements of the rule. After years of warning “we must not only call on counsel to follow the rules on appeal we must demand it”. Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223 (Mo.App.1972).

The appeal is dismissed.

CLEMENS, P. J., concurs.

KELLY, J., not participating.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Nicholas Paul CONNELL, Defendant-Appellant.
    No. 36019.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 29, 1975.

      James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from a judgment of conviction entered by the Circuit Court of St. Louis City on a jury verdict, finding him guilty of attempted burglary, second degree, § 560.070, RSMo 1969, V.A.M.S. Pursuant to § 556.280(1), RSMo 1969, the court sentenced defendant to serve four years in the custody of the Department of Corrections.

For reversal of the judgment of conviction, defendant alleges that the court erred as follows: (1) in denying his request to limit the prosecution inquiries on cross-examination of him pertaining to his arrest record prior to his conviction; (2) in refusing to submit defendant’s request instruction (MAI-CR No. 2.10 Modified) and giving its own instruction (MAI-CR No. 2.10); (3) in giving a flight instruction; (4) in failing to declare a mistrial because of comments made by the prosecutor in final argument; and (5) in refusing at defendant’s request, to submit certain exhibits to the jury during their deliberation. For reasons contained herein, we affirm.

Since the defendant does not question the sufficiency of the evidence, we set forth only a brief narrative of the evidence.

Early on the evening of May 17, 1973, Mr. Lloyd G. Holst, owner of a radiator shop in south St. Louis, locked up his premises and left for the day. At or about 2:00 A.M., the following morning, Mr. Glenn Chapman, a neighbor who lived across the street, heard a door slam. Upon looking out his front window, he saw two men in front of Holst’s radiator shop, one attempting to pry open the door and the other standing in the driveway. Within five to ten minutes after Mrs. Chapman called the police, two police cars arrived. One went to the back and the other to the front. One man, later identified by Mr. Chapman as the defendant, ran toward the Chapman home, and the other ran on Morganford Road. According to Mr. Chapman the man who ran toward him was the person who was trying to pry open the door; that defendant wore a tan jacket and that as defendant ran through a gangway, he was pursued by Officer Guelker.

Officer Jerry Hill who responded to the telephone call, testified that as he was talking to Mr. Chapman, he heard the sound of a fence breaking and thereafter he ran down the gangway, where he saw defendant jump over a fence. According to Officer Hill’s testimony at the time defendant was arrested, defendant had a crowbar in his hands and was breathing very heavily; that at the time defendant was taken into custody he was wearing a colored shirt and tan pants; and that neither any other clothes nor any other suspect was found.

Defendant’s evidence tended to show that as he walked down Morganford Road, he saw a police car pull around the corner and a man yelling from a porch; that he ran into a gangway two or three houses up Morganford Road and across from the radiator shop; that he was never in Chapman’s yard; that he ran to avoid being arrested. Defendant admitted a prior conviction and that he had been arrested fifteen -times subsequent to his conviction, which he considered harassment.

On direct examination defendant testified freely to about fifteen arrests subsequent to his prior conviction; he claimed that the arrests showed a pattern of police harassment and his testimony on this issue was offered to explain why he ran when he saw the police officer approach. On cross-examination, the state, over defendant’s objections, showed that even prior to his conviction defendant had been arrested on numerous occasions.

To support his allegation of error, defendant cites State v. Sanders, 360 S.W. 2d 722 (Mo.1962); State v. Todd, 468 S.W.2d 632 (Mo.1971) and State v. Rumfelt, 258 S.W.2d 619 (Mo.1953). We do not quarrel with the rule of law decided in either Sanders or Rumfelt. The general rule is that evidence of prior arrest may not be used to attack a witness’s credibility, State v. Taylor, 498 S.W.2d 614 (Mo.App.1973). But, there are exceptions to this rule, one of which was applied in State v. Elbert, 471 S.W.2d 170 (Mo.1971). In Elbert, the defendant testified during his direct examination that he had been caught smoking marijuana. On cross-examination he testified that he had other prior arrests, including specifically, gambling and peace disturbance. Our Supreme Court held: “. . . pursuant to § 546.260, RSMo 1969, V.A.M.S., an accused during cross-examination may be questioned as to any matter referred to in his examination in chief, and this is particularly so when the purpose is to show his trustworthiness and credibility as a witness in his own behalf . . .” Id. at 172.

In State v. Todd, supra, the court carved out a qualification on the exception contained in the Elbert case. In Todd, defendant testified on direct examination that he had once been arrested for suspicion of burglary. On cross-examination, the prosecutor questioned him about fifteen previous arrests. The court held: “The fact that defendant made a brief voluntary reference to the subject of his arrests in his narrative testimony did not justify the flagrant violation of the rule above stated under the guise of explanatory cross-examination. We rule that the error under consideration was exceedingly prejudicial to defendant and for that reason the judgment of conviction must be reversed . . . for a new trial.” Here, defendant’s testimony about his previous arrests, on direct examination, was no mere, isolated, brief, passing reference to “harassment” in the midst of a long narrative comparable to the situation in the Todd case. In fact, as defendant’s counsel concedes, defendant injected his prior arrests into evidence in order to explain his fear of the police.

In State v. Scown, 312 S.W.2d 782 (Mo.1958), the court noted that, “In sundry cases our courts have said that the state is not confined to a ‘categorical review’ of the matters covered or stated in the direct examination of a defendant, but that the cross-examination may cover all matters within the fair purview of the direct examination . . .’’Nor should a defendant be permitted to take the stand and by confining his answers to “. . . ‘one or two well-prepared interrogatories sweep away the whole structure of the state’s case, and then remain immune from a cross-examination on the issue thus tendered’ . . ..” State v. Hartell, 293 S. W.2d 313, 317 (Mo.1956). In State v. Christian, 245 S.W.2d 895, 899 (Mo.1952), the court said, “. . . ‘The “matter referred to in his examination in chief” means the things he testifies about. . . . If the defendant in chief in a general way refers to a subject, he may be examined in detail as to that subject. Where he states a fact in relation to his actions, the prosecutor may inquire as to particular circumstances which would throw light on that fact,’ State v. Ayres, 314 Mo. 574, 285 S.W. 997, 998 . . ..”

In the present case, defendant tendered the issue about his prior arrests and opened up the issue of police harassment, but sought to confine the inquiry only to those arrests which occurred subsequent to his 1971 conviction for burglary. To refute the claim of police harassment the prosecutor cross-examined the defendant about his arrest record prior to his conviction. To allow defendant to tender the issue of his arrests to show police harassment and to deny the state to put the issue in its proper context, would have the effect of immunizing the defendant from cross-examination on an issue which he raised on his direct examination. This, we refuse to do and, therefore, defendant’s claim of error on this point is denied.

For defendant’s second claim of error, he contends that since the state’s evidence showed him to be the actual perpetrator of the attempted burglary, the court erred in giving an instruction based upon his being an aider and abettor. Stated another way, defendant asserts that the state proceeded against him as a principal and that all the evidence shows him to be a principal. Consequently, it was impermissible for the state to have the jury consider him as an aider or abettor. We note that the amended information charged defendant with “acting” with another party in committing the attempted burglary. We also note that the legal consequences of being an aider or abettor are the same as those for being a principal, § 556.170, RSMo 1969; State v. Garton, 371 S.W.2d 283, 289 (Mo.1963). In State v. Gilliam, 351 S.W.2d 723 (Mo.1961), the court, in dealing with a similar factual situation, where there were two gunmen and one lookout, and defendant was identified as the gunman, noted that a similar instruction as given herein was not reversibly erroneous. Thus we rule that it is not error to instruct the jury that persons are equally guilty who act together in the commission of a crime, where evidence of joint action is present; although the evidence tends to prove that the defendant was the chief actor in the crime. See State v. Lunsford, 331 S.W.2d 538 (Mo.1960); State v. Price, 362 S.W.2d 608 (Mo.1962), cert. denied 374 U.S. 811, 83 S.Ct. 1702, 10 L.Ed.2d 1034 (1963).

Next, we take up defendant’s claims that the court erred (1) in giving a “flight” instruction where the court had already given an instruction on circumstantial evidence; and (2) in giving a flight instruction that permitted the jury to consider that defendant fled to avoid arrest for a crime other than the one charged in the amended information.

As we understand defendant’s argument, he does not claim that it was impermissible for the court to give an instruction on flight, but he is requesting us to reverse the long-standing rule that a “flight” instruction may be given whenever warranted by the evidence. Supportive of his contentions, he sets forth three factors, which he claims support such a change in the law at this time: (1) the fact that a general “circumstantial evidence” instruction gives adequate guidance to the jury; (2) the sound principle that it is error for the court to submit instructions which single out evidence unfavorable to the defendant and thereby afford such evidence undue prominence; and (3) the recent adoption of MAI-CR indicating the Supreme Court’s desire to standardize and to simplify criminal instructions.

Our Supreme Court has long held that a “flight” instruction is proper and is not a comment on the evidence. State v. Jordan, 306 Mo. 3, 268 S.W. 64, 70 (Banc 1924); State v. Meininger, 306 Mo. 675, 268 S.W. 71, 76-77 (1925); State v. Bryant, 361 Mo. 318, 234 S.W.2d 584, 586 (1950); State v. Coleman, 441 S.W.2d 46, 53 (Mo.1969). See State v. Hudson, 491 S.W.2d 1, 3 (Mo.App.1973).

Although the Supreme Court on January 13, 1975, directed that after March 1, 1975, no “so-called flight or counter-flight instruction may be given,” this explanatory note on flight is not retroactive. In approving and adopting some instructions in MAI-CR, we do not believe the Supreme Court intended to abolish others until specifically so provided. Rule 20.01 provides, “Approval of pattern instructions to juries . . . will be made from time to time by order of this Court.” The MAI-CR is necessarily incomplete and, until new and approved instructions are adopted by our Supreme Court, other instructions not contained therein still obtain. MAI-CR comments on the MAI-CR Section labeled “Instructions Never Given” reinforces our belief that flight instructions were not banned retroactively, since

“Some of these (instructions) will be gathered together in the 5.00 Series, there to be quarantined and barred from further use.” (Emphasis added.) MAI-CR Comments at 13.

At the time of trial, the instruction was a proper one. We decline to reverse in this case the Supreme Court’s longstanding rule that a flight instruction may be given whenever warranted by the evidence.

Defendant’s second complaint pertaining to the instruction on flight is that the first reference to “an offense” was prejudicial because it may have led the jury to conclude that they could consider evidence that he fled to avoid arrest for any offense which he may have committed.

“ ‘The Court instructs the jury that if you find and believe from the evidence that the defendant immediately or shortly after the incident described in the evidence fled for the purpose of avoiding arrest by the officers of the law and trial for an offense, if you find an offense was committed at the time in question, then, such flight, if you find he did so flee, is a circumstance which may be taken into consideration by you in connection with all the other facts and circumstances in the case, in determining his guilt or innocence of the charge brought against him.’ ” (Emphasis added.)

As we understand the instruction, the second reference to “an offense” in the clause following the first reference precludes a finding of prejudice. Because the phrase, “ . . .an offense was committed at the time in question . . . ” qualifies the first reference to “an offense” by referring to the crime for which defendant was on trial. So, we find this claim to be without merit.

During the closing argument made by the prosecutor, two incidents arose which are somewhat troublesome for us. Neither Officer Guelker nor Morris was called upon to testify. But during the prosecutor’s final argument, over objection, he argued, “I know Officer Guelker and Officer Mason (sic) were involved. We can bring them from off the street, out from doing their jobs, but they’re going to come in and say what the other parties said. . . . Suppose ten officers see something. Do you have to bring all ten in? These two men are out fighting crime. . . . ”

Although defendant’s counsel made an objection to these lines of argument, he neither asked for a mistrial nor assigned the failure to declare a mistrial as error in his motion for a new trial. Rule 27.20, V.A.M.R. Thus, we review both points under our “plain error” rule, Rule 27.20 (c).

Granting of a mistrial is a drastic remedy which should be employed when no relief can remove the prejudice of an improper argument, State v. Goff, 490 S.W.2d 88 (Mo.1973). And, it is, of course, as argued herein, improper for the prosecutor to argue matters not in evidence, or testimony that the court has excluded, State v. White, 440 S.W.2d 457, 460 (Mo.1969). Whether the remarks of counsel are improper, and whether improper remarks are prejudicial under the facts and circumstances of a particular case so as to necessitate a reprimand of counsel or discharge of the jury are matters resting largely within the trial court’s discretion and an appellate court will not interfere unless the record shows an abuse of such discretion to defendant’s prejudice, State v. Chester, 445 S.W.2d 393, 399 (Mo.App.1969). We neither condone the arguments made by counsel nor approve the fact that defendant’s objections were overruled. Yet, as noted by the United States Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), “ . . . arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.”

In our case, the statement made by the prosecutor indicated that Guelker’s and Mason’s (Morris) testimony would substantiate evidence that was already before the jury. Yet, not unlike Donnelly, the trial court instructed the jury that the closing arguments would be “intended to help you in understanding the evidence and applying the law, but they were not evidence.” (Emphasis supplied.) Additionally, we rule that the state’s case against the defendant had a significant mitigating effect on any prejudicial error that occurred during the prosecutor’s final argument. That is, the strength of the state’s case is significant in determining if the alleged error was prejudicial. Gresham v. United States, 374 F.2d 389 (8th Cir.1967); State v. Forrester, 63 Mo.App. 530 (1895) ; State v. Pratt, 98 Mo. 482, 11 S.W. 977 (1889). Here, defendant left his girl friend’s car near the scene of the attempted burglary. At approximately the same time, two men were seen trying to break into Holst’s Radiator Shop with something wider than a screwdriver. One of the two men ran toward the witness Chapman (within six feet) with a crowbar in his hand when the police arrived. Within three or four minutes, Officer Hill arrested defendant with a crowbar in his hand. Because of the overwhelming evidence against the defendant and the cautionary instruction given by the court, we find that no manifest injustice or miscarriage of justice has resulted; therefore, we rule this allegation of error against defendant.

Finally, we consider defendant’s alleged claim of error pertaining to the court’s refusal to permit three of defendant’s exhibits to be taken to the jury room. Exhibits A and B were portions of the transcript of the preliminary hearing, and Exhibit C, defendant’s shirt worn at the time of his arrest. Under Missouri law, a jury may not, as a matter of right, take exhibits into the jury room; whether a jury may do so is within the sound discretion of the trial court, State v. Arrington, 375 S.W.2d 186 (Mo.1964). So, the issue here is whether the trial court abused its discretion in denying defendant’s request to allow the jury to take the said exhibits to the jury room. We find no such abuse because the trial court’s action was neither an untenable act nor clearly against reason that worked an injustice. See State v. Stubenrouch, 499 S.W.2d 824, 826 (Mo.App.1973).

Judgment affirmed.

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


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Anthony GAY, Defendant-Appellant.
    No. 35976.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 6, 1975.

      Christopher T. Hexter, Legal Aid Society of St. Louis, St. Louis, for defendant-appellant.

      John C. Danforth, Atty. Gen., K. Preston Dean II, William F. Arnet, Asst. At-tys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Gene Fahrenkrog, George R. Westfall, Asst. Pros. Attys., Clayton, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was found guilty by a jury of first degree robbery by means of a dangerous and deadly weapon (§§ 560.120, 560.-135, RSMo 1969, V.A.M.S.). The court sentenced him to twenty-five years to run concurrently with the twenty year sentence he was serving for a conviction of a like offense committed the same night [see State v. Gay, 497 S.W.2d 649 (Mo.App.1973)].

Viewing the evidence in the light most favorable to the state, defendant was one of three men who robbed a Texas Discount Service Station on May 15, 1970 at about 9:00 p. m. They held guns on the attendant and took his money changer and cash from his pocket. Inside the station’s office a locked desk drawer was forced open and an adding machine was removed. After the three men left, the attendant wrote down the license number of the 1963 or 1964 maroon Chevrolet they occupied and telephoned the police. In an ensuing police chase at approximately 11:45 p. m. the defendant’s auto crashed and the three men fled on foot, leaving the adding machine in the car. The defendant was arrested by police while still in the vicinity of the abandoned auto when he reached for his gun as the officers approached.

Defendant has raised ten points on appeal. We find each contention lacking in merit, and affirm the trial court’s judgment.

Initially we must note the defendant has failed to preserve his contentions of prejudicial error on appeal. The verdict was filed October 18, 1973 and defendant was granted an additional thirty days to file his motion for a new trial, which, together with the ten days allowed by Rule 27.20(a), V.A.M.R., totaled forty days. The motion was not filed, however, until November 28, 1973, some forty-one days after October 18, 1973. A motion for a new trial not filed in conformity with Rule 27.20(a) is a nullity and preserves nothing for review. State v. Clark, 432 S. W.2d 279, 281 [1] (Mo.1968). Thus each of defendant’s contentions can only be considered on appeal if he establishes plain error. Rule 27.20(c). We have considered the ten points relied on by defendant on appeal in his one hundred page brief in order to search for plain error. Nothing that occurred in the trial of this case resulted, in our opinion, in manifest injustice or a miscarriage of justice. We would normally leave it at this but for the fact that under our dual system of courts the record of this case may again and again be submitted to agonizing scrutiny over whether the defendant received a fair trial and whether his constitutional rights were protected. We therefore examine the merits of defendant’s contentions of error seri-atim.

Defendant was arrested on May 15, 1970 and charged with three different robberies. During the interim from defendant’s arrest to his trial in the instant case, on October 15, 1973, defendant was represented by eight different attorneys. Many motions were filed in his behalf and submitted. Furthermore, defendant agreed to have his case placed on the inactive docket until his appeal in another case was decided. Defendant’s first contention is that he was denied his right to a speedy trial. The United States Supreme Court has said a balancing test, weighing the conduct of both the prosecution and the defendant, should be used in assessing an alleged violation of one’s right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Since the three and one-half year delay was due largely to requests of the defendant, and the record shows no prejudice was incurred as a result, we find the defendant’s constitutional right to a speedy trial was not violated. Barker v. Wingo, supra; State v. Rowlett, 504 S.W.2d 48, 55 [4] (Mo.1973); State v. Yates, 442 S.W.2d 21, 24[3] (Mo.1969).

The defendant’s second contention is that the court erred in allowing an in-court identification because it was based on a prior improperly conducted identification at the police station, which was so unnecessarily suggestive as to give rise to an irreparable mistaken identification, in violation of the due process clause of the Fourteenth Amendment. In evaluating the suggestiveness of a particular confrontation and the likelihood of misidentification we look to such factors as the opportunity of the witness 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 the police to determine at the earliest opportunity whether the person suspected is in fact the person sought. State v. Hudson, 508 S.W.2d 707, 710[7] (Mo.App.1974).

The defendant was identified the night of the offense at the police station while in a room with three or four police officers. There is no evidence that improper suggestions were made to the witness. The identification was made immediately and unequivocally. The witness had had an opportunity to observe the defendant for ten to fifteen minutes at the filling station just a few hours before the identification. The witness had also given an accurate description of the defendant which helped lead to his arrest. This pretrial confrontation, therefore, was not suggestive or conducive to mistaken identification. Additionally, the witness had a sufficient independent basis on which he could rely for his in-court identification. See State v. Jackson, 477 S.W.2d 47, 51 [4] (Mo.1972).

Defendant’s third point alleged that his constitutional right against illegal search and seizure was violated by the introduction of evidence (a gun and photograph of the money taken from his pocket) seized during an illegal arrest. Defendant maintains he was stopped by police officers solely because he was a black man in a white neighborhood. The record, however, does not support such a conclusion. Rather defendant was stopped because he met the description on the police dispatch and was in the vicinity of the abandoned car which had been used in the robbery. When the police officers approached the defendant, the defendant reached for a gun in his waistband. Upon a search of defendant’s person, a “wad of money” was found in his pocket. The test for determining the legality of an arrest without a warrant for a felony is whether the arresting officer had reasonable grounds or probable cause to suspect that the person arrested has committed a felony. State v. Gant, 490 S.W.2d 46, 47[4] (Mo.1973); State v. Ward, 457 S.W.2d 701, 705-06[6] (Mo.1970); State v. Sampson, 408 S.W.2d 84, 86 [4] (Mo.1966); State v. Henderson, 510 S.W.2d 813, 818[2] (Mo.App.1974). Applying the facts of the case at bar, we see no illegal arrest upon which the defendant could rely.

Next, the defendant contends a photo display shown to the robbery victim before trial was unnecessarily suggestive and conducive to irreparable mistaken identification. Again the record does not support such an inference. Eight photographs were shown to the witness, all black males of normal appearance. The victim selected two, one of the defendant and the other of his co-defendant. Since there was no evidence that any of the photographs was in any way emphasized, or any improper suggestions made by the police, we see no error in the court’s overruling defendant’s motion to suppress the photo identification. State v. Johnigan, 494 S. W.2d 23, 24[1] (Mo.1973); State v. Balle, 442 S.W.2d 35, 39[3] (Mo.1969).

The fifth point on appeal alleges error in admitting the defendant’s confessions. Defendant contends the confessions were the product of an illegal arrest and taken under conditions rendering them involuntary. As we said in response to point three, defendant’s arrest was legal. Defendant’s claim of involuntariness is premised on his allegations of requests for sleep and of drug influence. But where the testimony as to the events surrounding the interrogation is conflicting, as in the present case, we need not go beyond the state’s version of the facts. Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967). The state met its burden of proof in showing a prima facie case of voluntariness with evidence that no physical coercion was applied to the defendant, no threats or promises were made to him, and that he was given and understood his Miranda rights numerous times before defendant made his confessions. State v. Hunter, 456 S.W.2d 314, 320 (Mo.1970); State v. Garrett, 510 S.W.2d 853, 854[3] (Mo.App.1974).

Defendant’s sixth contention is that the state should have been barred from introducing a statement of defendant’s made to the police which was not disclosed to defendant’s counsel until the day before trial. The record shows the prosecutor was not trying to conceal the statement from the defendant’s counsel, but that he did not learn of it, himself, until the day before trial. The primary purpose of requiring the prosecutor to provide defense counsel with all available material concerning oral statements made by the defendant is to allow the defense to prepare for trial and especially for cross-examination. State v. Scott, 508 S.W.2d 302, 304[1] (Mo.App.1974). Counsel made no complaint about being unable to prepare for trial. The statement was similar to an oral statement made in the presence of two other officer witnesses. Defendant’s attorney did, in fact, conduct a vigorous cross-examination of the circumstances surrounding the taking of this statement. We find no prejudicial error here.

Defendant’s seventh point is that the trial court committed plain error in allowing the prosecutor to make certain improper comments in his closing argument which deprived the defendant of his constitutional right to a fair trial. The first allegedly improper statement was:

“Somebody is not being completely candid and honest with you. As I told you before, I have no quarrel with Mrs. Gay. She seems to be a fine woman. I am sure she loves her son. And I am really not sure if most women were put in that position where they had to balance what they felt would be helping their son at a critical point or lying under oath on the witness stand. That choice would be supremely difficult. I think Mrs. Gay made a difficult choice. And I don’t think she was particularly candid with you. I don’t judge or condemn her for that but ladies and gentlemen you have to balance that.”

This statement does not in any way rise to the level of plain error but rather falls within the permissible bounds of commenting on the credibility of defense witnesses. State v. Barron, 465 S.W.2d 523, 529[10] (Mo.1971); State v. Griggs, 445 S.W.2d 633, 636[2] (Mo.1969).

The second comment defendant asserts was improper was:

“Now, you recall that when the husband said he came home that day, and this is early in the morning, he said he saw Anthony playing ball outside in the back-yard * * *.
“Recall I asked Mrs. Gay. And she got up at seven and went to work at ten a. m. that morning and was home that whole morning: seven to ten. And I asked what Anthony was doing at that time. She said he was downstairs * * *. Did he go outside ? I am sure he did not go outside.
“Ladies and gentlemen, you don’t reconcile the two inconsistencies. The father said he was out playing ball. And the mother said he never went outside during that period. Again, a conflict, an inconsistency. Unfortunately the stories do not align.”

Defendant maintains this was a deliberate misstatement of the evidence since the defendant’s father actually testified that he saw his son outside in the yard after 11:30 a. m., not between 8:00 a. m. and 10:00 a. m. Defense counsel, however, in his closing argument pointed out the misstatement to the jury. Therefore, it appears that no injustice or impairment to defendant’s rights occurred. Certainly such an incident does not rise to the level of plain error. State v. Agee, 474 S.W.2d 817, 820[10] (Mo.1971); State v. Gray, 423 S.W.2d 776, 787[21] (Mo.1968).

The last comment urged to have been improper was:

“Ladies and gentlemen, don’t think this is an isolated proceeding. The people know what goes on in these court rooms. They wait and listen. They know when people are found not guilty when they should be found guilty. They know when people are punished. When people break the law, they deserve that.”

Defendant asserts this was an inflammatory appeal designed to arouse the jurors’ personal hostility toward the defendant. We disagree. The prosecutor “may legitimately argue the necessity of law enforcement as a crime deterrent, and he may argue also that the responsibility for the suppression of crime and the protection of the public rests upon the trial juries.” State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 306[7] (Mo. banc 1956). See State v. Crawford, 478 S.W.2d 314, 320[14] (Mo.1972); State v. Charlton, 465 S.W.2d 502, 504-05[2] (Mo.1971).

The eighth point defendant raises is that the testimony of three state witnesses was erroneously admitted by the trial court because the testimony brought in evidence of separate and distinct crimes from the charged offense. Ollie Sherman testified that the defendant was at his Fina gas station between the time of the robbery of the Texas Discount Service Station and the police chase which led to defendant’s arrest. His description of the car in which the defendant was riding, including the license number, was identical to that given by the victim of the robbery. Although no mention was made of the robbery that also occurred at the Fina station, defendant attacks this testimony as evidence of defendant’s other criminal activities the night of the charged offense. Defendant’s claim is without merit; the testimony is entirely relevant to placing the defendant in the car used at the robbery. Even if this testimony was considered evidence of another crime, it would withstand attack since it is generally held evidence of another crime can be competent to prove the specific crime charged if it tends to establish: (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person on trial charged with the commission of the crime. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (Mo. banc 1954); State v. Hudson, 521 S.W.2d 41, (Mo.App.1975).

Next, the defendant contends the arresting police officer’s testimony was inadmissible because it contained evidence of the separate crime of carrying a concealed weapon. It has long been settled that evidence is admissible showing the defendant prior to or shortly after the particular crime possessed articles or weapons with which the charged crime may have been committed. State v. Stancliff, 467 S.W.2d 26, 30[1] (Mo.1971); State v. Taylor, 506 S.W.2d 94, 95 [2] (Mo.App.1974).

Defendant also asserts that the prosecutor’s directing a policeman to read only two paragraphs from the defendant’s five page confession indicated to the jury that the defendant committed other crimes that night. The entire confession was not seen or heard by the jury. Any reference to the commission of other crimes was not read to the jury. Defendant’s contention of prejudice is without merit.

Defendant’s final two points concern the jury instructions. Defendant first contends the instruction describing the burden of proof was in error. The pertinent portion of the instruction was as follows:

“If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of the defendant’s innocence.”

Defendant argues that by defining reasonable doubt as “substantial doubt” the state’s burden of proof was unconstitutionally lessened. This argument has been continuously rejected by our courts since 1857 and needs no further discussion here. State v. Scott, 491 S.W.2d 514, 520[11] (Mo. banc 1973). Although MAI-CR 2.20, the new instruction on burden of proof effective January 1, 1974, omits a definition of reasonable doubt, it does not follow that the instruction given in the case at the bar was erroneous. State v. Martin, 511 S.W.2d 777, 778[2] (Mo.1974).

Defendant’s final argument on appeal is that the falsus in uno, falsus in omnibus clause of an instruction was error because the record did not suggest any of the witnesses swore falsely. We do not agree with the defendant’s reading of the record. Testimony as to the defendant’s whereabouts at the time of the crime was conflicting. The robbery victim identified the defendant as one of the men who robbed him between 9:00 p. m. and 9:15 p. m. on May 15, 1970. Defendant’s parents testified he was at home at the time of the robbery. And police officers testified that defendant admitted participating in the robbery. The court, therefore, did not abuse its discretion in giving the instruction. State v. Crow, 486 S.W.2d 248, 254[8] (Mo.1972); State v. Summerville, 419 S.W.2d 38, 40[4] (Mo.1967).

Finding all ten points not only failing to rise to the level of plain error but also lacking in merit, we affirm the judgment.

DOWD, Acting P. J., and RENDLEN, J., concur.

      . The relevant portion of Instruction No. 9 was as follows: “In this connection you are further instructed that if you believe that any witness has knowingly sworn falsely to any fact or facts material to the issues in this case, then you must reject such portion of the testimony as you believe to be false, if any, and you are at liberty to reject all other portions of such witness’ testimony.”


text:
    STATE of Missouri, Plaintiff-Respondent, v. Ernest Wayne MULKEY, Defendant-Appellant.
    No. 36162.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 6, 1975.

      Arthur Kreisman, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Richard B. Scherrer, Asst. Pros. Atty., Clayton, Charles B. Blackmar, Spec. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant Ernest Wayne Mulkey was convicted of possession of a Schedule II controlled substance in violation of § 195.-020, RSMo 1969, V.A.M.S., and sentenced by the court to two years imprisonment. On appeal defendant raises two points, both of which allege that the state failed to make a submissible case. We affirm.

We review the facts and evidence in a light most favorable to the state, give the state the benefit of all favorable inferences to be drawn therefrom, and disregard all evidence and inferences to the contrary. State v. Strong, 484 S.W.2d 657, 661 [9] (Mo.1972); State v. Jordan, 495 S.W.2d 717, 719[1] (Mo.App.1973). The evidence favorable to the conviction ^revealed the following. On June 8, 1973 defendant and one Joseph Martin were arrested for public drunkenness and peace disturbance as a result of an altercation on a parking lot on Lemay Ferry Road in St. Louis County. The arresting police officers, members of the St. Louis County Police Department, handcuffed the two men, advised them of their constitutional rights, and frisked them for weapons. Defendant was then seated in the right rear of the police car and his seat belt was fastened. Martin was placed in the left rear seat and his seat belt also was fastened. Officers Byrnes and McDermott, who had custody of the two men, decided to take defendant to St. Louis County Hospital because he was bleeding from the fight.

While driving to the hospital, the police officers heard a crinkling noise in the back seat. This sounded like the crackling of a cellophane wrapper. Officer Byrnes noticed that defendant was slouching in the seat and squirming around. Officer Mc-Dermott also observed defendant wiggling around in the seat.

After a ten or fifteen minute drive, the party arrived at the hospital and the police officers removed the two men from the back seat. At this time McDermott saw that an empty cigarette package, which Byrnes had tossed into the back seat earlier, was shoved into the crack of the seat where defendant had been sitting. Mc-Dermott then found two pills on top of the cellophane wrapper which covered the cigarette package. The officers proceeded to inform defendant that he was going to be charged with possession of a controlled substance. Defendant told Byrnes that he had just gotten the pills and asked Byrnes to give him a break and forget about them. Defendant and Martin were transported to St. Louis County Police Headquarters after defendant refused treatment at the hospital. During the ride from the hospital to police headquarters defendant again was seated in the right rear seat of the police car.

After defendant and Martin were booked, Byrnes and McDermott returned to their police car and removed the rear seat. Before going on duty that night, Byrnes had checked the inside of the car for contraband. He had removed the rear seat, had searched the area with a flashlight, but had found nothing. Upon removing the rear seat after the arrest, the police officers found a third pill in the same area where defendant had been sitting.

All three pills were identical in appearance. A chemical test performed on one pill revealed it to be phenmetrazene, a Schedule II drug.

Defendant first contends that the court erred by overruling his motion for judgment of acquittal made at the close of the state’s evidence because the state failed to make a submissible case. After this motion had been overruled, defendant introduced evidence. In such a situation, when a defendant presents evidence in his own behalf after his motion for judgment of acquittal has been overruled, he waives any claim of error as to the ruling on his motion. State v. Turnbough, 497 S.W.2d 856, 858[1] (Mo.App.1973).

Defendant next asserts that the court erred by denying his motion for judgment of acquittal made at the close of all the evidence bacause the state failed to make a submissible case. A good deal of defendant’s argument on this point does not question the sufficiency of the evidence, but rather challenges the weight or probative value of the evidence. But on review an appellate court does not weigh the evidence as long as it is substantial enough to support the jury’s findings and the court’s judgment. State v. Strong, supra, 484 S.W.2d at 661 [ID].

With regard to the sufficiency of the evidence, defendant asserts no evidence was produced which proved that he knowingly and intentionally had possession of the pills. He claims that since there was no evidence whatsoever linking him to the discovered pills, the state failed to prove that he had committed the crime with which he had been charged. Defendant therefore concludes that his conviction cannot be sustained because the evidence aroused only a strong suspicion of guilt, which is insufficient to sustain his conviction.

We disagree. There was sufficient evidence on this record from which the jury could convict defendant of the offense charged. The fact of defendant’s possession, as with the elements of any criminal charge, could be proven by circumstantial evidence. In order to establish a violation of § 195.020, RSMo 1969, V.A. M.S., the evidence need not show actual physical possession by defendant; rather the illegal possession may be constructive. Proximity of the controlled substance to the person who acknowledges ownership will permit a finding of possession which in turn will support the charge. State v. Lockhart, 501 S.W.2d 163, 164[1] (Mo.1973); State v. Worley, 375 S.W.2d 44, 46[3], 47[4, 5] (Mo.1964).

Here, defendant had been sitting in the area of the police car where the pills had been discovered. The car had been inspected by Officer Byrnes earlier in the evening and no contraband had been found at that time. While riding in the police car defendant had an opportunity to place the pills where they were discovered. The police officers had observed defendant slouching and squirming in his seat. They had heard a noise which sounded like the crackling of cellophane paper. The pills were discovered on the cellophane wrapper of a cigarette package discarded earlier by Byrnes. Further, defendant admitted that the pills were his and asked Byrnes to give him a break and forget about the pills. Within the principles of the Lockhart and Worley cases, supra, there was sufficient evidence introduced by the state to make a submissible case against defendant. The trial court did not err by denying defendant’s motion for judgment of acquittal made at the close of all the evidence.

Judgment affirmed.

DOWD and RENDLEN, JJ., concur.