author: WASSERSTROM, Judge.

text:
    CITY OF BUTLER, Respondent, v. Paul Edward KUECKER et al., Appellants.
    No. KCD 28752.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      Edward J. Murphy, Butler, for appellants.
    Ralph E. Smith, Butler, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

The City of Butler filed this declaratory judgment suit under the Sawyers Act, Sec. 71.015 RSMo 1969, in twelve counts to annex twelve separately described tracts. The trial court found against annexation as to Tracts Nos. 2, 5,11 and 12 (referred to in the counts bearing those respective numbers), but found the proposed annexation under the other eight counts reasonable and necessary to the proper development of the City and approved the annexations of the areas described in the latter counts. Defendants appeal and assign error as to the approval of all eight counts sustained by the trial court.

In support of their appeal, defendants rely upon the following grounds: 1) that the evidence failed to show that the annexation proposals were reasonable and necessary to the proper development of the City; 2) that the evidence failed to show the ability of the City to furnish normal municipal services to the areas sought to be annexed within a reasonable time; 3) that the petition should have been dismissed for failure to state a claim upon which relief could be granted; and 4) that the trial court erroneously admitted Exhibit 28. Because Points 3 and 4 go to the case as a whole and affect all eight counts, those points will be considered first. Thereafter consideration will be given to defendants’ Points 1 and 2.

I.

Failure to State a Claim

In connection with this argument, defendants rely upon the provision of Section 71.015 which requires that the City’s petition state facts showing the area to be annexed, that such annexation is reasonable and necessary to the proper development of the City, and that the City has the ability to furnish normal municipal services. They point out that each of the counts in the City’s petition here merely sets forth the fact that the City has adopted a resolution which is attached to the petition and adopted by reference; and each count then goes on to state that the necessity for and the expediency of annexing each area is set forth in the resolution, and that the provisions which the City desires to make for the annexed area are also set forth in the resolution. Each of the twelve resolutions so attached and incorporated into the petition states only the determination by the City Council that the annexation is reasonable and necessary and that the City has ability to furnish normal services, together with a legal description of the respective tract. Defendants argue that these bare allegations do not constitute a statement of “facts” required by Sec. 71.015.

The only objection made by defendants at the trial level relating to this point was a general objection by motion and then a repetition of that objection in answer that the petition “failed to state a claim for which relief can be granted.” At no time and in no way did defendants in the trial court make a specific objection to the lack of specificity in the petition. Much more importantly, they made no objection on this ground to the introduction of any evidence. Accordingly, the City’s petition by operation of law has been amended to conform to the proof. Rule 55.33(b).

II.

Admission of Exhibit 28

The Exhibit in question consists of a large aerial map on which is marked a new proposed sewer system for the City of Butler. The basic map was part of an application made by the City to the Missouri Department of Natural Resources in order to obtain matching funds for a multi-million dollar sewer project proposed and sought to be built by the City. Lamberton, the witness through whom this exhibit was offered, is a partner in a firm of consulting engineers who were retained by the City and who prepared the basic map as part of a larger report put together by them in 1973 and submitted to the Missouri Department of Natural Resources. The City passed a $410,000 bond issue in 1974 to fund its 10% share of the proposed sewer project, and the Department of Natural Resources has approved stages 1 and 2 of that project. Witness Woodard testified that a federal appropriation for this purpose was made.

Defendants’ objection to Exhibit 28 at trial was that a very similar plan had been offered in evidence in City of Butler v. Bock, 492 S.W.2d 160 (Mo.App.1973), in which case this court held that the proposals as they existed in 1971 showed no more than “hopes, aspirations and great expectations.” This court further held that “[tjhere is no evidence that the Federal or State governments have become committed, again even conditionally, to aid in whatever might be needed by the City to expand its normal municipal services into the area.” Defendants at the trial took the position that the present proposal and especially Exhibit 28 were equally speculative.

That objection is untenable. The City has now shown the “concrete factual bases” of a City bond issue, state approval of the first stages of the project, and inclusion of this project in a federal appropriation. It can no longer be said here, as was true in Bock, that there is no evidence of commitment by the federal or state governments. Exhibit 28 therefore pertains to a live proposal and tends to show what the City can reasonably expect to provide within a reasonable period.

Before this court, defendants shift ground and base the bulk of their complaint on the fact that witness Lamberton added onto Exhibit 28 just before the trial indications of lateral sewers which had not been drawn onto the map which had been presented to the Missouri Department of Natural Resources as part of the City application. No objection was made on this new ground in the trial court and therefore should not be available to defendants in this court.

Moreover, Exhibit 28 taken as a whole, was of only slight importance to the City’s case and that exhibit can be disregarded without affecting the result. On a court tried ease such as this, it is practically impossible to predicate reversible error on the erroneous admission of evidence. The party advancing the contention must demonstrate the absence of sufficient competent evidence to support the trial court’s decree. Broyles v. Broyles, 555 S.W.2d 696 (Mo.App.1977). That cannot be done in this case.

III.

Reasonableness and Necessity to Development of the City

In their argument at this point, defendants attempt to lump together all twelve tracts sought to be annexed by the petitioner. They say the propriety of annexation must be deemed ruled by City of Butler v. Bock, supra, unless the City can show a substantial change of condition since 1971 when the Bock ease was tried, and defendants claim there are no such substantial changes.

Defendants’ approach must be rejected. In Bock, the City was attempting to annex some 3,118 acres of land all as part of a single proposal. The result was that the City was either entitled to annex all of the 3,118 acres or nothing. City of Bourbon v. Miller, 420 S.W.2d 296 (Mo.banc 1967); City of Rock Port v. Atchison County Cooperative Ass’n., 432 S.W.2d 317 (Mo.1968). That is not the present situation. In the present case, the City has reduced the acreage sought to be annexed to some 650 acres, and much more to the point even that smaller acreage is divided into 12 separate tracts, each of which is sought to be annexed pursuant to a separate resolution and in a separate count of the petition. Even though the single large area originally sought to be annexed in Bock was not reasonable and necessary, portions of that area may still be reasonably annexed. City of Ash Grove v. Davis, 418 S.W.2d 194, l.c. 206 (Mo.App.1967).

Accordingly, each of the twelve tracts separately described in the twelve counts of the petition must be considered separately. In this consideration, we heed the rule that annexation is a legislative function and the scope of judicial review in such matters is to determine whether the reasonableness of the municipal legislation is fairly debatable; if so, it is conclusive on the courts. City of Jefferson v. Smith, 543 S.W.2d 547 (Mo.App.1976).

The trial court has already held the proposed annexation of tracts 2, 5, 11 and 12 to be unreasonable, and no appeal has been taken with respect to those counts by the City. Therefore, no further consideration need be given in this court as to those tracts. Of the remaining eight tracts, we have concluded that the evidence shows reasonableness and necessity as to tracts 3, 4, 6, 7, 8 and 10, but that reasonableness and necessity has not been shown as to tracts 1 and 9.

Tract No. 3. The notice of appeal states: “Notice is given that Defendants (Counts I, IV, VI, VII, VIII, IX and X) appeal from the Declaratory Judgment for Plaintiff (Counts I, IV, VI, VII, VIII, IX and X) entered in this action on the 7th day of April, 1976.” In neither listing is mention made of Count III which relates to tract No. 3. Therefore, it is quite doubtful whether that tract is here for review. Assuming that it is, the evidence adequately shows the reasonableness and necessity for annexation of this tract.

Tract No. 3 in its entirety was acquired by Butler Development Corporation in 1972. That owner has developed a land use plan, which has been implemented at least to the extent of the opening of a Pizza Hut three months before the trial of this case. The president of Butler Development Corporation testified on behalf of the City and in favor of the annexation of its tract. This landowner particularly desires the assurance of City fire and police service. In view of the desires of the sole owner of this tract, the plans for use which have been already partially implemented and the agreement of the City Council that this tract should be annexed, the annexation must be deemed reasonable and necessary to the proper development of Butler.

Tract No. 4. This tract has two shopping centers opened since 1971 and is served with electricity from the Butler municipal plant and also with city water. It has need of police protection and does in fact receive service from the Butler Police Department. These facts demonstrate that the area is adaptable to urban uses, that there has been a “spill over” of city functioning into the area, and that the area has a common interest with the City. These are factors justifying annexation. City of Jefferson v. Smith, supra; City of Bourbon v. Miller, supra; City of Mexico v. Salmons, 514 S.W.2d 102 (Mo.App.1974).

Moreover the annexation of this tract will serve to square off the city boundaries. Especially in view of the annexation of the adjacent land in tract No. 3, if tract No. 4 were not annexed, there would be created a deep salient of unincorporated land into the City territory. This making of the city boundaries more regular is a proper factor to be taken into account. City of Aurora v. Empire District Electric Co., 354 S.W.2d 45 (Mo.App.1962).

Tract No. 6. This area has considerable industrial, commercial, recreational and residential development. Located here are Deems Equipment Co., Missouri Farmers Association, the Keller aluminum screen factory, a saw mill and a bowling alley. Housing is represented by Wix Addition. The Butler owned municipal water and electric plants furnish those utilities to this area. A fire hydrant behind Keller’s is in place for use by the Butler Fire Department. Police protection is needed at Deems and at the bowling alley, and such protection is already being afforded by the Butler Police Department. These factors show adaptability to urban use, a spill over, and common interest. City of Jefferson v. Smith, supra; City of Bourbon v. Miller, supra; City of Mexico v. Salmons, supra.

Tract No. 7. This area has had considerable residential development. Located here are Sullivan’s subdivision, the Tingler trailer court (also known as “Hooterville”) and also other individual houses. This area receives electric power and water from the Butler municipally owned utilities. Also a city sewer extends into this area, which is something missing in many parts of the City proper. Police patrolling also extends into this area by the Butler Police Department. These factors adequately show adaptability, spill over, and common interest.

Tract No. 8. This tract is virtually entirely developed, much of that having occurred since the trial of the Bock case in 1971. Located here are the Linwood housing addition (part of which is in the City proper), the Buerge addition and the Hill-crest addition. The country club is located in this area as is also the Church Corporation nursing home which is partly inside and partly outside the present city limits. The City police provide patrolling, and the City furnishes electricity and water to the area. There is a fire hydrant in place which can be used by the Butler Fire Department, and there are also some city sewers. These facts adequately show adaptability, spill over and common interest.

Tract No. 10. This is a long narrow strip at the extreme northeast corner of Butler. There are some houses in this area, and they receive city water. A highway runs along the lengthy south border of this tract. The south portion of that highway (the eastbound portion) which has a speed limit of 35 miles per hour is controlled at present by the Butler Police Department, but the northern portion of the highway (westbound) which has a speed limit of 45 miles per hour is not so controlled. The reason for this anomaly is that the north side of the highway is not now within the city limits. With the annexation of tract No. 10, this unfortunate situation will come to an end. That alone argues strongly for the reasonableness and necessity of the annexation. Moreover, the annexation of this strip will serve to square off and make more regular the boundaries of the City.

Tracts Nos. 1 and 9. These two tracts, which should not be annexed, can be discussed together. Both of these tracts consist almost purely of undeveloped agricultural land. The only exception on tract No. 1 is the existence of six houses. Skelly Oil Company at one time considered the erection of a facility on this tract, but that has now been abandoned. While there has been little or no development in this tract, the immediately adjacent property already within the City is highly developable.

With respect to tract No. 9, the only things shown by the evidence to be there are two homes and a dirt race track on which is conducted “hill and dale racing.” The tract is described in the record as “vacant scrub land.”

The City has made no showing as to any reason or necessity for the annexation of these two tracts. Of the 1,438 acres now within the City before any annexation, 450 acres lie empty and undeveloped. As the mayor of Butler himself admitted: “There is plenty of undeveloped lots and all of that for construction of new homes and everything else in Butler as it exists in the present city limits, except for the sewer problem.” If the sewer problem cannot be met, annexation will not help Butler. If the sewer problem is met, the City has ample land without resort to the annexation of tracts 1 and 9. Moreover, by virtue of the current annexation, the City will gain extensive new acreage by the additions of tracts 3,4, 6, 7, 8 and 10. No need to the City has been shown for more, nor has any benefit from annexation been shown to tracts 1 or 9. The evidence as to these two tracts does not rise to a level sufficient to show even reasonable debatability support of annexation.

IV.

Ability to Furnish Normal Services

Defendants deny that the City has carried the burden of proving that it has the ability to furnish normal municipal services to the unincorporated area within a reasonable time. A review of the evidence shows to the contrary.

The City is not required to show some theoretically desirable level of city services to be furnished, but rather all that it must prove is that it will be in a position within a reasonable time to furnish to the annexed area the same level of municipal services which it is currently furnishing to its existing populace. City of Jefferson v. Smith, supra; City of St. Ann v. Buschard, 356 S.W.2d 567, 578 (Mo.App.1962).

The resolution adopted by the City Council of Butler to the effect that the City “has the ability to furnish normal municipal services to said unincorporated area within a reasonable time after the said annexation is to become effective” is important evidence to prove that it does have that ability. City of St. Ann v. Buschard, supra. That conclusion is further supported by the evidence in this record as to the reasonable prospect of availability of fire and police protection, the extension of water and electric service, and street maintenance. The most hotly contested issue as to the City’s ability related to the matter of sewers, and with respect to that the City made an adequate showing that it is in the course of getting itself into a position to furnish that service by means of the new projected sewer system, to be built with federal and state financial assistance.

There is no substantial evidence to support the judgment on Counts 1 and 9, and the judgment on those counts is therefore reversed. With respect to the other counts, no error of law appears; the judgment in those respects is supported by the evidence and is not against the weight of the evidence, and the judgment on those counts is therefore affirmed. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

All concur.


source: Caselaw Access Project

author: TURNAGE, Presiding Judge.

license: Public Domain

text:
    GOLDEN VALLEY MEMORIAL HOSPITAL DISTRICT, Appellant, v. MISSOURI STATE BOARD OF MEDIATION, and Golden Valley Registered Nurses Association, Respondents.
    Nos. KCD 28781 and 29128.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      Donald W. Jones, Prewitt, Jones & Kar-chmer, Springfield, for appellant.
    Dan K. Purdy, Osceola, for Golden Valley Registered Nurses Assn.
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for Mo. St. Bd. of Mediation.
    Harry L. Browne, Stanley E. Craven, Spencer, Fane, Britt & Browne, Kansas City, for Mo. Hosp. Ass’n amicus.
    Before TURNAGE, P. J., and PRITCH-ARD and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

Golden Valley Memorial Hospital District appeals from the order of the circuit court affirming the order of the State Board of Mediation which found all of the registered nurses employed by the Hospital, except for the Director of Nursing Services, constitutes an appropriate bargaining unit. A second appeal filed by the Hospital and consolidated with the first in this court, was filed after the Board had certified the vote taken by the bargaining unit established by it.

On this appeal the hospital challenges the adequacy of the finding of fact made by the Board. Reversed and remanded.

The first appeal taken after the certification by the Board of the bargaining unit is premature. This court held in Lincoln County Memorial Hospital v. Missouri State Board of Mediation, 549 S.W.2d 665 (Mo.App.1977) that an appeal must await the vote taken in the bargaining unit established by the Board. For that reason the appeal in No. 28,781 is dismissed.

The vote taken by the bargaining unit revealed 29 votes in favor of the Golden Valley Registered Nurses Association and none opposed. The Hospital challenged the vote of 17 persons on the ground such persons were supervisors and were improperly included within the bargaining unit. The Board rejected the challenge to these votes and reaffirmed its earlier decision in which all registered nurses, except for the Director of Nursing Services, were included in the bargaining unit. On appeal to the circuit court, the findings by the Board and the rejection of the challenge to the 17 votes was affirmed.

On this appeal the Hospital contends the findings of fact and conclusions of law made by the Board in establishing the bargaining unit were insufficient as measured by the requirements set forth in Century State Bank v. State Banking Board of Missouri, 523 S.W.2d 856 (Mo.App.1975) and cases therein cited. In Lincoln County this court severely criticized the findings of fact made by the Board in that case and partially quoted such findings. 549 S.W.2d 670. This court held to the extent it could the findings in that case were insufficient and suggested the Board would want to reopen the case for the purpose of making new and additional findings of fact.

The findings of fact and conclusions of law made in this case by the Board are identical to those made in the Lincoln County case. What was said in Lincoln County concerning such findings is fully applicable here.

The issue presented to the Board was whether or not supervisory personnel should be included in the bargaining unit. As this court noted in Lincoln County, the Board made the inconsistent finding that all registered nurses have a community of interest, yet the Board excluded the Director of Nursing Services who was a registered nurse. There is no need to add to the comments made in Lincoln County concerning the findings of fact and conclusions of law made by the Board in that case and in this case. Such findings of fact and conclusions of law are totally inadequate to afford a basis for judicial review.

The basic question presented to the Board was whether or not any registered nurses should be excluded from the bargaining unit on the basis of their duties being management rather than employee oriented. The Hospital presented considerable evidence concerning nurses designated as supervisors, head nurses and assistant head nurses and their duties. The Hospital sought to show these employees were actually a part of management and were not employees in the sense the term is used in §§ 105.500-105.525, RSMo 1969. Section 105.510 allows employees, except police and other designated persons, the right to form and join labor organizations and to present proposals to any public body. The statute does not define the word employee; however, the term employee cannot be literally read to include every person on the payroll of a public body. As stated in City of Milwaukee v. Wisconsin Employ. Rel. Com., 43 Wis.2d 596, 168 N.W.2d 809, 812 (1969): “someone has to sit on the city’s side of the bargaining table.”

The statute involved in Wisconsin is similar to the applicable statute in Missouri as is the statute in Connecticut. In considering the meaning to be ascribed to the term employee the court in Conn. St. Bd. of Lab. Rel. v. Greenwich Taxi Co., 151 Conn. 573, 200 A.2d 712 (1964), stated at 714:

. the General Assembly intended to differentiate between employees, as that term is commonly used, and employees in a narrower meaning which excludes those persons whose duties involve acting directly or indirectly in the interest of their employer in relation to another employee.

It is clear the General Assembly of this State did not intend to use the term employee in the sections under consideration to designate everyone on the public body’s payroll. In § 105.520 the Legislature provides proposals may be presented to the public body “or its designated representative or representatives.” The Legislature has clearly recognized that not every person on the public payroll is to be considered an employee within the meaning of § 105.510.

Section 105.525 provides that “[ijssues with respect to appropriateness of bargaining unit majority representative status shall be resolved by the state board of mediation.” Thus, it was mandatory on the part of the Board in this case to resolve the issue concerning the status of the supervisory nurses with respect to their inclusion in the bargaining unit.

It should further be noted there is nothing in Chapter 335 which provides for the licensing of registered professional nurses and licensed practical nurses which requires that all nurses regardless of their identity with management be included in the bargaining unit. In fact, the Nurses Association in its brief in this case concedes as much.

The Board by its findings of fact and conclusions of law has failed to make adequate findings and to settle the issue of supervisory nurses. It is, therefore, the duty of the Board, by appropriate findings of fact to identify those employees, if any, whose duties involve acting directly or indirectly in the interest of the employer in relation to other employees. Such employees shall be excluded from the bargaining unit.

The judgment in No. 29,128 is reversed and the cause is remanded to the circuit court with directions to remand this case to the Board of Mediation with directions to the Board to make findings of fact which will support conclusions to identify those employees, if any, to be excluded from the bargaining unit. Such findings of fact and conclusions of law shall comply with the standards set forth in Century State Bank, supra. The Board may reopen the hearing if it desires before entering its final order.

All concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. William C. LEWIS, Appellant.
    No. KCD 28783.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The defendant was convicted of felony murder and was sentenced to life imprisonment. This appeal contends that the evidence was not sufficient for conviction and that the unprompted comment and interruption by the court of defense cross-examination prejudiced a fair trial.

The evidence favorable to the verdict fairly shows that the defendant Lewis in concert with one Young conspired to rob an A & P Store. They discussed the plan in the presence of Grace Lawton who then lived with Young as paramour. They met in her home twice to plot the crime, once on the day before, and then on the morning of the robbery. Young made a sketch of the store and went over it with defendant Lewis. Grace Lawton saw them again at her apartment the evening of the robbery. As they entered the apartment they discussed the event and the defendant Lewis mentioned he had to fight the security guard, and the gun discharged. Later, when the television newscast reported that the same A & P Store had been robbed and the security guard killed, the defendant and Young were amused and commented, to the effect, that the guard had “no business fighting over white man’s money”. They had arrived at the apartment with a green trash bag filled with bills in denominations from one to twenty dollars which totalled about $300. They also had with them a gun which they said they took from the security guard and now had to be disposed of because the weapon would incriminate them. All this evidence was given for the State by witness Grace Lawton.

The defendant Lewis was positively identified as a principal in the felony murder by one Clarence Williams, a customer in the store. He and his wife had arrived at the A & P a few moments before the store opened and then noticed a car thereby with three black males. Two of them entered the store behind him and his wife. After two or three minutes he heard a shot and as he sought cover he saw the same two blacks retreat from the security guard. Williams identified one of them as the defendant. The other man entered the office and demanded the safe be opened. In the meanwhile the defendant urged his companion to hurry. At one point the witness raised his head and the defendant pointed a gun at him. The witness had earlier identified the defendant from a lineup.

The defense was alibi. The defendant took the stand to disclaim involvement in the crime. He acknowledged he had known Young since childhood, and then in prison together, and later in vocational school. Young was in the course of an affair with Grace Lawton and she had become extremely jealous because of his continued consort with other women. The defendant became her confidant on these personal matters. Later she became his mistress as well. She asked him for money to regain custody of a child, but he refused, and he refused also information about Young and another woman. The defendant testified that Grace Lawton became resentful and only animus prompted her testimony against him at the trial. The defendant also testified that on the date of the robbery and murder, he was unable to walk normally from a thigh bone fracture and used a cane. An instructor and a counselor at the technical school corroborated the testimony that on the day in question the defendant walked with difficulty.

The defendant also produced his mother and step-father for the proof of alibi. The parents both testified that the defendant was at home with them that morning. The day of the crime was a day they remembered because it was both Mothers Day and her birthday.

Contrary to the contention on appeal, the evidence of guilt was direct and substantial and certainly, when taken in the light most favorable to the verdict, suffices for conviction. The point defendant really means to elaborate, however, is not sufficiency of proof but credibility of the prosecution witnesses. He argues that witnesses Williams and Lawton were not worthy of belief because his attention was not drawn to the robbers until after the shots and her testimony that she saw the defendant and Young count ten and twenty dollar bills contradicted the A & P manager that none of those denominations were taken.

Our review does not undertake to assess the animadversions which prompt a witness to certain testimony, nor the contradictions which examination discloses: these are matters of weight and credibility of evidence for the jury. State v. Tucker, 451 S.W.2d 91, 95[5] (Mo.1970).

The other point blames the trial court for undue interference during this cross-examination colloquy of prosecution witness Grace Lawton:

Q. [Defense Counsel]: Do you recall that in January of this year, 1976, you were subpoenaed to give testimony at a deposition in connection with this case?
A. [Witness Lawson]: Yes.
Q. Do you recall that you were required to come in the Office of the Public Defender’s, and to answer questions put to you by Mr. Speck, who then represented the defendant?
A. Yes.
Q. Do you recall that Mr. Bertram was there representing the State at that time?
A. Yes, he was there.
Q. And you were sworn under oath at that time to tell the truth; is that right?
A. Yes.
Q. I will read to you the following. THE COURT: No, you won’t. COUNSEL: Pardon me, may I approach the bench, Your Honor.
THE COURT: Well—
COUNSEL: Pardon me?
THE COURT: Well, it is just simply, you may ask her about it, and if she denies it, then there is something else that may happen.
COUNSEL: That is what I intend to do.
THE COURT: Then do it. We are going to be until the middle of the afternoon just continuing the cross-examination, if we don’t move along. COUNSEL: Pardon me, Your Hon- or.

The defendant argues that the jury — within this context of cross-examination of a witness decisive for the prosecution and openly hostile to the defense — could only have understood “No, you wbn’t”, spoken by the court, as a partisan reproof neither solicited by the prosecution nor otherwise necessary.

The requirement of a fair trial imposes on the judge an absolute impartiality as to his words and conduct. He must not do or say anything that will put the accused at a disadvantage before the jury. Where the remarks of the court are responsive to a request for ruling, there can be no prejudice. The court has another duty: to manage the trial with order and decorum, and so must protect witnesses from abuse and intimidation. State v. Hudson, 358 Mo. 424, 215 S.W.2d 441, 442[1-5] (1948). Where the judge intermeddles or otherwise exhibits a manner prejudicial to the accused, error results. In such case, an objection must be made or the error will be considered waived, unless the effect is so prejudicial that it cannot be removed. State v. Brown, 524 S.W.2d 188, 189[1-8] (Mo.App.1975).

The comment of the court went without challenge by the defendant at the trial. He now claims plain error under Rule 27.20 and relies principally on State v. Embry, 530 S.W.2d 401 (Mo.App.1975) where the court took up sua sponte consideration of prejudice from judicial misconduct which went without objection.

In Embry the trial court interrupted defense counsel examination of an alibi witness on four successive questions to which no objection had been made by the State. The appellate court found [l.c. 403] that the manner of this unsolicited interference with the defense examination made it appear that the trial judge had abandoned its due position of neutrality for the role of prosecutor. The court found the prejudice so grievous as to have resulted in manifest denial of a fair trial to defendant, and so allowed relief under the plain error rule.

The incident before us does not fall within that proscription. What the defendant treats as an impatient, and even abrupt, response by the court was only a prompt redirection of counsel from an improper attempt at impeachment by a prior inconsistent statement to the accepted procedure. It was a corrective and not an act of partisanship. The response of counsel to the advice of the court: “Pardon me, Your Honor”, concedes his obvious procedural error.

It is apparent from the record that, absent objection by the State, the course of examination upon which counsel had commenced could result in an unintended abuse of the witness. The court acted quickly to avoid that threat in a manner consistent with his duty to control the trial and protect the witness. State v. Hudson, supra, l.c. 442[5]; State v. Pinkston, 333 S.W.2d 63, 66[1-3] (Mo.1960).

No error appears. The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald HELMS, Defendant-Appellant.
    No. KCD 28811.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before PRITCHARD, P. J., and SWOF-FORD, C. J., and DIXON, J.
   DIXON, Judge.

Defendant appeals a conviction of second degree murder. The jury fixed punishment as 40 years imprisonment.

Defendant raises issues of (1) error in admitting testimony of witnesses as to exhibits, reports and memoranda because the state had violated discovery procedures; (2) error in admitting evidence of defendant’s prior assaultive behavior toward the victim.

Defendant does not challenge sufficiency, and a short statement of fact will be sufficient. The victim was discovered dead in the defendant’s apartment January 24, 1976. In the early morning hours of January 24, 1976, defendant and the victim, his girlfriend, who was living with him, were having a loud argument. This argument was heard by the tenant of the adjoining apartment. The argument continued from 2:30 a.m. until 3:45 a.m. when the neighbor heard water running in the bathroom of defendant’s apartment. The defendant and his deceased girlfriend had engaged in tumultuous arguments before and defendant had beaten her on several occasions prior to January 24, 1976. The victim was lying next to defendant who had slit his wrists with a razor blade after telephoning his mother in Chicago. The cause of the victim’s death was numerous blunt force body blows with contribution from burns caused by scalding and drowning. The defendant had been in the apartment all that night, having arrived there at 12:30 p.m. He had entered his apartment about thirty minutes earlier and had found his girlfriend with another man. The defendant admitted striking the victim. On one occasion, he stated to police officers that he had killed his girlfriend. Wet cloths, some with blood stains on them, were found about the apartment. Also found were wet men’s boots and socks. Blood stains were found on a radiator, the carpet, wall, and baseboard. A wet mop was found in the bathtub. The apartment building is locked twenty-four hours a day. No signs of forced entry to the apartment could be detected. Some of the blood stains found in the apartment were Type B, the same type as the deceased’s blood.

The thrust of the defendant’s first point is that the trial court erred in permitting witnesses to testify whose names were not furnished to defendant upon discovery. The fact that these witnesses were not furnished to defendant on discovery is conceded. The real issue is the propriety of the trial court’s refusal to apply the sanction of exclusion under the circumstances.

Some more detailed statement of the circumstances and the evidence adduced is necessary to resolve the issue. Two months before trial, defendant filed a request for discovery which was detailed and all inclusive. On the morning of the trial, the State endorsed the coroner, a lab technician, and a policeman. Upon the offered endorsement, defendant objected, asserting, as was the fact, that these witnesses had not been disclosed. The trial court permitted the endorsement, but directed that the defendant be given access to the witnesses and reserved the question of the admissibility of the evidence.

The coroner testified after the noon recess on the second day of trial. During the direct examination, defense counsel interrupted and established that Dr. Peterson was referring to a handwritten memorandum she had prepared from her official report. She also had the official report with her on the stand. Defense counsel objected that he had not been provided a copy of the official report at any time in violation of the rules of discovery. The State countered, saying the defense had a preliminary report of the results of the autopsy. The court ruled that Dr. Peterson’s testimony was not that much of a surprise, but nevertheless took a recess so that defense counsel might have an opportunity to study the official report. Defense counsel read it during the recess, but upon resumption of the proceedings objected to Dr. Peterson’s testimony on the ground that the official report had not been furnished him. The court overruled the objection opining that the recess given for the purpose of allowing defense counsel to study the report appeared sufficient. The court noted that “if the defense is able to show prejudice to itself in any way, by either the failure to disclose the report of the autopsy, or the report of this more recent fingernail examination and comparison, that will be given further consideration; and the objection may be renewed or any other appropriate request may be renewed at that time, when it becomes clear.” The fingernail examination went out of the case because the state was unable to present expert testimony as to a comparison.

Later on, defense counsel objected to the pictures of the victim taken by a policeman on the grounds that they were not provided him pursuant to his request for discovery but were provided only at the proceedings of the previous day. The court overruled the objection and admitted the photographs into evidence noticing that the defendant had suffered no prejudice.

The court indicated that the delay in providing photographs of the scene and the reports of blood samples made at the time of the original investigation did not prejudice the defendant since even if he had them earlier he could not have taken any other pictures or obtained any other samples since these were factual matters available only at the time of the original investigation.

A forensic chemist testified for the State. During his direct examination, the defense counsel objected to his testifying on the grounds that the State had not complied with the rules of discovery by supplying defense counsel with reports of examinations made. These reports had been supplied on the morning of the second day of trial. The objection was overruled.

There is no question that these witnesses and the various reports and exhibits should have been made available to the defendant upon the original discovery motion. The State’s failure to so provide does not, as defendant asserts, require automatic exclusion. Rule 25.45 expressly provides otherwise; it is as follows:

“If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances. Wilful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.”

The principles governing the application of this rule are settled. The imposition of the sanctions authorized by Rule 25.45 for the failure to comply with a discovery request or order is a matter for the trial court’s discretion. State v. Moten, 542 S.W.2d 317 (Mo.App.1976); State v. Buckner, 526 S.W.2d 387 (Mo.App.1975); State v. Johnson, 524 S.W.2d 97 (Mo.banc 1975). The question to be decided is whether or not the failure to produce as required by the rules results in a fundamental unfairness to the defendant. State v. Moten, supra; State v. Buckner, supra; State v. Johnson, supra; State v. Mitchell, 500 S.W.2d 320 (Mo.App.1973). Whether prejudice results in any given case from the State’s failure to produce, upon request, evidence favorable to the defense depends upon the nature of the charge, the evidence presented by the State, and the role that nonproduced evidence would likely have played. State v. Dayton, 535 S.W.2d 469 (Mo.App.1976). The nonproduced evidence must be of a character to raise a reasonable likelihood that it would have affected the result, if known at the trial. State v. Dayton, supra.

Although the instant case is not one concerning nonproduction, but rather untimely production, the principles of review enunciated in Dayton are applicable. The inquiry here, as in Dayton, should be whether or not, considering all the factors surrounding the trial, the reports, if produced earlier, would likely have affected the result.

Here, the trial court, wisely exercising its discretion, required the State to divulge the information and deferred ruling on the admissibility until defense counsel had time to examine the exhibits and to determine if he cared to interview the witnesses.

In this situation, the issue is not the time necessary to investigate and rebut the State’s late disclosed evidence but the opportunity to examine it and make a record that additional time was needed or that the delay had prevented proper rebuttal because evidence available at the time the State should have produced the evidence was not available when it was finally produced. Defendant asserted neither ground to the trial court and does not in this court present any basis for a finding that earlier disclosure would have permitted defendant to have countered the evidence in some fashion. It is not even contended that cross examination was ineffective because of a lack of time to prepare. In fact, the only opinion evidence, as opposed to scientific factual information, offered by the State from these witnesses and exhibits was effectively questioned by the defense.

Defense counsel on cross examination of the coroner elicited an admission that she could not pinpoint any one single cause of death; further, from the chemist, that he could not identify the blood stains as being the blood of any one individual but could only identify them as to blood type.

The trial court did not abuse its discretion in the application of Rule 25.45.

Defendant’s second claim of error relates to the admission of testimony of prior assaults by the defendant upon the victim. A witness testified that defendant and the victim had a history of fighting between themselves. These fights resulted in the victim incurring bruises, puffy face and black eyes. This happened on more than one occasion. One time, an altercation resulted in the victim jumping from a window and running down the street naked and bleeding. Another witness testified that on several occasions she had heard defendant and deceased arguing. About two months prior to the victim’s death, the witness observed the victim crawling out the door trying to get away from defendant. The victim’s clothing and hair evidenced a struggle and defendant struggled with the victim in the presence of the witness. Only the first witness’s testimony was objected to as showing evidence of prior crimes.

One of the exceptions to the general rule respecting evidence which incidentally proves commission of another crime is evidence showing intent. The present case involves a charge of second degree murder and the intent of defendant to kill or inflict serious bodily injury is essential to the proof. That intent is not obvious, clear, or implied from applying physical force to another person by means of hands and fists as the instant information charges.

State v. Hudson, 521 S.W.2d 43 (Mo.App.1975), controls this issue in this case. In Hudson, evidence of prior violence to a child was admitted to show defendant’s intent in the assault which resulted in the child’s death. Evidence offered on the theory it proves intent must satisfy the acid test of logical relevancy on the issue. Here, as in Hudson, the evidence of prior assaults logically tends to prove intent. The evidence should not be rejected merely because it incidentally proves the commission of another crime when it is within an excepted purpose. State v. Holbert, 416 S.W.2d 129 (Mo.1967). The evidence was properly admitted.

The judgment and conviction are affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Lodiller STYLES, Appellant.
    No. KCD 28893.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Judicial Circuit, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Prank J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The defendant was convicted of carrying a concealed weapon and sentenced to imprisonment for a term of five years. There is no contention that the conviction was not on sufficient evidence, but only that certain pretrial incidents compromised the defendant before the jury and prejudiced the verdict against him.

The complaints were alleged from two episodes between the jail guards and the defendant, one during the process of jury selection and the other after the jury was empaneled, but both before actual commencement of trial. These complaints formed the grounds for an oral motion for mistrial by counsel for defendant which the court entertained, and then denied.

The hearing on the motion was unsupported except by the statements of counsel for defendant who merely related his observations of the incidents. As to the first instance of misconduct, he told that while he and the prosecutor were in the course of their peremptory strikes, an argument erupted between the guards and defendant during which the guards vituperated that they would strike defendant if he did not keep quiet. At that time — -his narration goes — two jurors happened to walk into the courtroom. The second instance was after the jury had been selected and released for lunch. The defendant complains that he was led in manacles through the entire jury panel to the elevator to replace him to jail custody for the recess, this despite the objections of counsel that defendant not be transported until the jury had cleared. The accumulation of these events, counsel contended to the court on motion, prejudiced the jury against the defendant and was basis for mistrial.

A motion for mistrial does not prove itself; bare statements of counsel without support of evidence offer no subject for review. State v. Fields, 487 S.W.2d 560, 561[1] (Mo.1972). The defendant called neither the guards, the jurors, nor offered himself to confirm the authenticity of his contentions. As a matter of principles, moreover, the comment of the trial court that from his own observation the guard personnel merely responded to the unruliness of the defendant by warnings, in the first instance, and manacles thereafter, reasonably explains the conduct of the jailers. The trial court has the primary charge to maintain orderly procedure in the courtroom. State v. Martin, 525 S.W.2d 804, 810[4, 5] (Mo.App.1975). The jury understands that part of this procedure is to handcuff a prisoner when taken from the courtroom to another place — to keep the prisoner from escape and the public from injury.

In any event, no evidence supports the motion allegation that the jurors saw the defendant taken in handcuffs from the courtroom to the jail, or that any of the episodes were other than fortuitous. The complaints do not warrant the drastic mistrial remedy.

The judgment is affirmed.

All concur.


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. Edward NIMROD, Defendant-Appellant.
    No. KCD 28946.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      Jeffery L. Alena, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before PRITCHARD, P. J., SWOPFORD, C. J., and DIXON, J.
   PER CURIAM:

Defendant appeals his conviction and sentence of 18 years for the crime of robbery first degree. Defendant was sentenced by the court upon the basis of its finding that the Second Offender Act applied.

The only claim of error is the defendant’s assertion that certain proof at trial constituted evidence of another crime. The defendant’s motion for new trial was not timely filed and did not preserve the error for review. Rule 27.20(a); State v. Clark, 432 S.W.2d 279 (Mo.1968); State v. Rodgers, 525 S.W.2d 447 (Mo.App.1975). The judgment and conviction are affirmed.

Defendant has not requested review under Rule 27.20(c) as plain error. Before undertaking, sua sponte, a review under that rule for a finding of manifest injustice, it is axiomatic that error must appear. A short factual statement will suffice for that purpose.

Three black men attacked the victim, beat him, and took his wallet and watch. A private security officer, fortuitously passing, intervened and pursued the attackers who fled. Officers in the immediate neighborhood stopped a car upon a report. Three black men and a female driver were occupants of the car. The officers observed the defendant place objects under the vehicle when alighting from the stopped vehicle. The objects were recovered and were the wallet of the victim and of one Wilder. The security officer who had given chase identified one of the three occupants as a participant. The victim identified the defendant.

The only proof offered by the State as to the Wilder wallet was that it was one of the two objects recovered at the scene. The proof, of course, also disclosed that none of the occupants of the car was named Wilder.

The record reflects that the defendant was under charges for the death of Wilder in a separate proceeding, and the State agreed that the death of Wilder would not be mentioned. This proof and agreement was not before the jury. That agreement was observed by the State. There was no attempt by the State to emphasize or argue the evidence of Wilder’s billfold being found.

The State went upon dangerous ground when it offered the proof of ownership of the Wilder wallet and the additional proof that no one in the vehicle was named Wilder. The evidence so offered leads to the inference that the defendant was attempting to hide the fruits of another illegal acquisition. The State offered no logical basis for this proof being relevant to the issues presented. It was error to receive such evidence.

Reviewing this as plain error, however, there must be the further finding that a manifest injustice appears. On this record, the finding cannot be made. The evidence is clear and convincing that defendant was guilty of the instant offense. The reference to the Wilder wallet was not prominent in the evidence, but only a passing reference; it was not unduly emphasized.

Defendant argues that the jury, by hearing Wilder’s name, may have connected defendant with the robbery and death of Wilder. This is, at most, speculation. The record does not show Wilder’s death and robbery to have been either recent or notorious, which would permit the inference that the jury might have been likely to make the connection. It is the defendant’s burden to show by substantial evidence that a miscarriage of justice will result if Rule 27.20(c) is not invoked. State v. Mabery, 437 S.W.2d 91 (Mo.1969); State v. Caffey, 457 S.W.2d 657 (Mo.1970); State v. Plant, 532 S.W.2d 900 (Mo.App.1976). When the review is sua sponte as here, the record must by substantial evidence demonstrate manifest injustice. This record does not do so.

The two cases cited by the defendant most factually analogous to the instant case, State v. Holbert, 416 S.W.2d 129 (Mo.1967), and State v. Walker, 490 S.W.2d 332 (Mo.App.1973), are not controlling in the instant case because extensive use and reference to the evidence indicating commission of other crimes by the defendant was made. throughout the trial in the cited cases. Here, that misuse of the erroneously admitted evidence was not present.

The judgment and conviction are affirmed.


author: PRITCHARD, Presiding Judge.

text:
    ZELLMER REAL ESTATE, INC., Respondent, v. C. Wilson BROOKS and Martha H. Brooks, Appellants.
    No. KCD 28964.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      Edward J. Murphy, Butler, for appellants.
    Warren S. Earhart, Grandview, for respondent; Gersh, Holt, Earhart, Jones & Dibler, Grandview, of counsel.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   PRITCHARD, Presiding Judge.

Respondent obtained judgment, $29,250, upon the verdict of a jury, against appellants for a real estate commission upon an oral listing for sale of 1170 acres of land based upon its pleaded claim that it found ready, willing and able purchasers (W. A. and Clissie May Warner) in cash or on whatever terms were desired by appellants.

The dispositive issue is whether the “terms of the sale” should have been hypothesized in respondent’s verdict directing instruction as an ultimate (and undisputed) fact to be found by the jury. Verdict directing Instruction No. 2 is:

“Your verdict must be for plaintiff if you believe:
First, plaintiff was a corporation and a licensed real estate broker, and
Second, plaintiff and defendants agreed that if plaintiff produced a purchaser who was ready, able and willing to purchase upon the terms specified by the defendants, plaintiff should receive as commission all that the purchaser agreed to pay for defendants’ 1170 acre farm over $325.00 per acre, and
Third, plaintiff did produce a purchaser who was ready, able and willing to purchase on such terms and so informed defendants.”

The evidence, including that of appellants’ terms of sale, according to respondent, is this: On August 11, 1972, Martha called respondent Art Zellmer and asked him to list their farm for sale. Art and Barney Zellmer went to appellants’ farm that day, and Wilson Brooks then agreed to take $300 net to him per acre. According to notes taken by Art at that time, the total price of the land was to be $380,250, “Terms according to tax man. Not over 29% down. 8% Int.” Later that month, respondent produced a proposed 4 year lease contract with the Buerge Cattle Co., with an option to purchase, but Wilson rejected it. At this later time, Wilson raised the price of the land to $325 net to him per acre. On August 14, 1973, Art showed the farm to Bill Warner, Wilson inviting them into the home, where Martha was also present, and “They showed us through the house.” Wilson then took Warner and Art in his truck and drove them over the farm, and on coming back to the house they had a discussion that the price to Warner was $350 per acre, payable $50,000 in escrow on closing (Wilson wanted 29% down, not to exceed $100,-000), and the balance would be carried on a 20 year note at 8%, secured by a first deed of trust on the place. Wilson and Warner “shook hands on the front porch” as having made a deal. Wilson declined Art’s offer to prepare a contract, saying that he would have his attorney draw one up within a week or ten days.

On August 22, 1973, Art called Wilson and Warner to come to respondent’s office again to discuss the sale and try to get a contract written. Art took notes (Plaintiff’s Exhibit 10) of the then agreement, giving each a copy: "29% down. Not to exceed 100,000.00. Approx — 50,000.00 note down in escrow, bal. of 29% down at closing date — 1-3-74. 20 yr. pay — amortized—hay at actual cost of baling, raking, mowing, etc., seller to leave feeders, troughs, etc. No land to be sold off for at least 5 yr. prepayment clause upon mutual agreement. Buyer to be allowed to pay up to 100,000 as down payment after 1 or 2 yr. if tax man wont let that much down at closing.”

Plaintiff’s Exhibit 12, brought by Wilson at the same time, August 22, 1973, is this: “$50,000.00 in escrow note guaranteed by bank. $100,000.00 total due as down payment on Jan. 3, 1974. 409500.00 Total price 100,000.00 down pay 309,500.00 balance divided over 14 yr period. Any default in payment all becomes due or reverts to me without expense principal payment will be $22,107.15 per year plus 8% interest on unpaid balance No prepayment privilege No land can be sold off for a 10 yr period financial statement to bank and then a letter from bank stating he can or cannot handle payments.” Art never showed Exhibit 12 to Warner “because some of the figures were different than he had agreed to on it.”

Wilson, not having had his lawyer prepare a contract by September 1, 1973, Art prepared one of his own, had the Warners sign it and took it to the Brooks to try to get their signatures on it. This proposed contract (Plaintiff’s Exhibit 14), a detailed printed form “(Approved by legal counsel for the Missouri Real Estate Association)” with blanks filled in, provides in essence: “The price for said property shall be Four Hundred nine thousand, five hundred and no/100 DOLLARS; to be paid by the Buyer as follows: $50,000.00 (note and cash) at the time of the execution and delivery of this contract, * * * and which is deposited with Butler State Bank as earnest money and as part of the purchase price * * * the Buyer shall pay the balance of the purchase price by delivering to the Seller $50,000.00 in cash or certified check, and if the Seller agrees to finance a part of the purchase price as hereinafter set forth, then by delivering the note and deed of trust as hereinafter provided, * * *.” The “Financing Agreement” provides that the balance of the purchase price, $309,500.00, be financed by seller in equal installments over 20 years with 8% per annum interest, secured by a first deed of trust on the property. Special agreements on the reverse of Exhibit 14 are: “Seller to leave all cattle feeders now on place for buyer. Buyer to get possession of crop land as crops are harvested this fall and South large fescue pasture this fall also. Buyer to get hay at price to be agreed to between parties, price to be actual cost of mowing, raking, baling and storing on parts thats stored.” Lined through with a pen and initialed “A.R.Z.” is the sentence: “Buyer to have privilege of paying additional $25,000.00 or up to $25,-000.00 per year if he desires.” Appellants refused to sign Exhibit 14.

Warner’s version of the formation of an agreement was that on August 14, 1973, Art Zellmer quoted him a price of $350 an acre to purchase appellants’ property, and he then went to the farm and had a discussion with appellants, that the “price, conditions, possession date, contract, what-have-you” were discussed, and the down payment was to be “$50,000.00 or satisfactory to $50,000.00 escrow until closing”, the balance to be paid over 20 years in equal installments, and secured by a first deed of trust on the property. He testified, “Q (By Mr. Earhart) What was said, if anything, by the Brooks indicating they agreed to the deal? A Well, we were paying each and every dollar he was asking. I agreed to the price; we made the deal and shook hands and I thought it was the best faith. I told him I would take the place at that figure.” Mr. Brooks declined to have Zellmer prepare a contract, and said he would insist on having his lawyer do it and he would get it done in a week or a few days. At the August 22, 1973, conference, Warner stated that it seemed unreasonable to him to put up $50,-000.00 in escrow until the first of the year, and he asked Mr. Brooks if he would accept $20,000.00 cash in escrow and “satisfy him with the balance of $30,000.00 until the contract was fulfilled at the end of the year.” According to Warner, Mr. Brooks replied that he thought it could be worked out and could be if the bank “would O.K. it or say [Warner’s] business was in such order they would do it or satisfy him in that manner.” Mr. Brooks’ version of this matter was that after about August 15, 1973, when he told Art Zellmer that the net price to him had risen to $350 per acre, Zellmer brought Warner back to the property at which time Warner “still wanted to give me a note and he wanted to be able to pay off the note any time and also some years he wanted to pay just interest, some years he wanted to pay more, and he wanted all my salt, feeders and my creep feeders and wanted my troughs and wanted me to leave all those free gratis.” Mr. Brooks’ response to these various propositions was “no”.

On or about October 3, 1973, appellants’ counsel prepared a contract which they signed and submitted to the Warners. The Warners rejected it because it set the selling price at $409,500.00, and required them to pay the real estate commission.

As shown by respondent’s evidence, there are no discrepancies as to the price of the land, $350 per acre with $325 per acre net to appellants. The price, properly hypothesized in Instruction No. 2, is not the only term of sale. Although many customary matters may be left to future embodiment into a written agreement besides price, such as closing date; abstracts of title and examination; type of title standards; type of deed; tax payment and proration; insurance and assignment, the basic terms of purchase if in issue, as here, should be set forth in the verdict directing instruction, and the evidence, of course, should support the submission of those basic terms as ultimate facts. [Here, no question of submissi-bility of respondent’s case may be considered because appellants did not preserve that issue for review by motion for directed verdict made at the close of the whole case. See Millar v. Berg, 316 S.W.2d 499, 502[1] (Mo.1958); Pasley v. Newton, 455 S.W.2d 43, 46[2] (Mo.App.1970).]

As noted, respondent’s own evidence contained different versions as to the terms of sale allegedly agreed upon by the parties: First, “Terms according to tax man. Not over 29% down. 8% Int.”; secondly, with Warner present, the price was $350 per acre, payable $50,000.00 in escrow [presumably cash ?] on closing; thirdly, “29% down. Not to exceed 100,000 approx. 50,000.00 note down in escrow, bal. of 29% down at closing date — -1-3-74. 20 yr. pay — amortized — hay at actual cost of baling, raking, mowing, etc., seller to leave feeders, troughs, etc. No land to be sold off for at least 5 yr. prepayment clause upon mutual agreement. Buyer to be allowed to pay up to 100,000 as down payment after 1 or 2 yr. if tax man wont let that much down at closing.” Wilson’s version (Exhibit 12) was, “$50,000.00 in escrow note guaranteed by bank.” [Wilson’s evidence was that the bank officials were not asked to guarantee Warner’s note, and that they would not have done so.] “* * * No prepayment privilege No land can be sold off for a 10 yr. period financial statement to bank and then a letter from bank stating he can or cannot handle”. (Italics and brackets added.)

Then further, respondent’s proffered written contract, signed by the Warners (Exhibit 14), contained further terms: “$50,000.00 note and cash * * * Buyer to get possession of crop land as crops are harvested this fall and South large fescue pasture this fall also”, with a line through and initialed “A.R.Z.” as to prepayment privileges. Warner’s testimony was that the down payment was to be $50,000.00 or satisfactory to $50,000.00 escrow until closing. Then, at the August 22,1973, meeting, there was discussion about as to only $20,-000.00 cash in escrow, and a satisfaction as to balance of $30,000.00 until the contract was fulfilled. According to Mr. Wilson, there was further discussion about giving a note and prepayment privileges, and waiver of principal payments.

MAI 29.01, paragraph second, provides “(here insert purchase price if in issue plus any other terms of purchase which are in issue).” (Further italics added.) Notes on Use, paragraph 3 provides, “Insert if purchase price or other terms are in issue.” The Committee’s Comment is “Caution. Real estate contracts vary in content and lawyers must be sure to submit to the jury any additional issues which their special cases may contain.” As to notes on use and committee comments, it was said in Royal Indemnity Co. v. Schneider, 485 S.W.2d 452, 458[4] (Mo.App.1972), “From the strict adherence to M.A.I. so often and forcefully reiterated by the Supreme Court, has developed the equally forcible admonition that ‘Notes on Use’ thereof be religiously followed.” See also Vest v. City Nat. Bank & Trust Co., 470 S.W.2d 518, 520[1] (Mo.1971); and Gormly v. Johnson, 451 S.W.2d 45, 47[2] (Mo.1970).

The matter of how the escrow deposit was to be made was an essential term of the contract — it would bear upon appellants’ right to liquidated damages in case of buyers’ default. The matter of prepayment of the balance after closing was also important — it would affect appellants’ tax liability. Other disputed terms of sale could be likewise essential to an agreement. Under the submission, and especially in view of the imprecise evidence of these essential terms, the jury would be left to speculate and conjecture as to just what the parties agreed. Instruction No. 2 should have hypothesized whatever ultimate facts, for the jury to find, as to what the terms of sale were, in accordance with respondent’s theory. In Kosher Zion Sausage Co. of Chicago v. Roodman’s, Inc., 442 S.W.2d 543, 548[7—9] (Mo.App.1969), it was said, “* * * Roodman’s verdict directors should have omitted the element of ‘implied contract’ and included instead a submission of the ultimate fact of the parties’ agreement, thus making a definition instruction unnecessary.” (Italics added.) This does not mean, however, that a submission of the ultimate facts of the terms of the sale should be a rambling, argumentative pre-MAI type of instruction. Cf. Barnes v. Marshall, 467 S.W.2d 70, 79 (Mo.1971). Additionally, to the prejudice to appellants because Instruction No. 2 left the terms of sale to the jury’s speculation and conjecture is that of depriving them of an opportunity to present a “true" converse instruction under MAI 33.01, or by using the third method of converse by hypothesizing ultimate facts relative to terms of sale which their evidence supported.

By their Point II, appellants contend that the court erred in failing to submit separate verdict directing instructions as to each appellant, thus requiring a finding of liability or non-liability as to both. This is expanded, for the first time, in the reply brief to a contention that Instruction No. 2 was erroneous by failing to require a finding of agency of Mr. Brooks for his wife. The point therefore will not be considered, but on retrial, if the evidence is similarly developed, the matter of submission of the issue of agency, and the appropriate forms of verdict should be considered. See 3 Am. Jur.2d Agency, § 359, pp. 718, 719; 3 C.J.S. Agency § 548, pp. 480, 483-484. Compare Bowdern v. Rowland, 21 S.W.2d 899 (Mo.App.1929), Galemore Motor Co., Inc. v. State Farm Mut. A. Ins. Co., 513 S.W.2d 161, 168[11] (Mo.App.1974). The parties being apprised by their briefing, other contended errors will not likely recur upon retrial, and need not be ruled.

Because of error in giving Instruction No. 2, the judgment is reversed and the case is remanded for new trial.

All concur.


author: WELBORN, Special Judge.

text:
    Carl C. McINTOSH, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29001.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      James O. Swaney, Jr., Kansas City, for appellant.
    Atty. Gen. John D. Ashcroft, Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special JJ.
   WELBORN, Special Judge.

Appeal from denial, without hearing, of motion under Rule 27.26 to set aside judgment and sentence.

Carl C. McIntosh was charged in the Jackson County Circuit Court with two offenses of burglary in the second degree (C-44672 and C-44839). On February 1, 1974, he entered pleas of guilty on both charges. The court sentenced him to five years’ imprisonment on each charge, but placed him on probation for five years. The defendant violated the terms of his probation and on January 21, 1975, he was remanded to the custody of the Department of Corrections to serve the consecutive five-year sentences previously imposed.

On July 1, 1976, the defendant filed his motion under Rule 27.26 to vacate his sentences, alleging that he was denied effective assistance of counsel because counsel failed to investigate the charges against him and that his plea was not voluntarily tendered with full knowledge and understanding of the charge and the consequences of his plea of guilty. The trial court found that the files and records conclusively showed that the prisoner was entitled to no relief, holding that he was not denied effective assistance of counsel and that his plea was voluntarily tendered with full and complete understanding of the charge and consequences of his plea of guilty.

On his appeal, the movant contends that the record on his sentencing does not support the trial court’s conclusion that his pleas were voluntarily entered and that his motion presented a factual issue as to whether or not he had knowingly and voluntarily waived his right to effective assistance of counsel and as to whether or not he understood that upon revocation of his probation, he would be required to serve the two five-year terms consecutively.

• Appellant’s contention that the trial court erroneously found that the files and records conclusively showed that he was entitled to no relief must be sustained as to the plea in Cause No. C-44672. The sentencing transcript shows the following with respect to the factual basis for the plea entered by appellant:

The court advised the appellant that that case involved an incident of November 15, 1973 at 5228 East 40th Street in Kansas City and asked the appellant to tell what he did. The appellant responded:

“Well, I went into the place. I was going with my brother. He asked me to go with him, really.

% * * * * *

“I was at home and my brother kept wanting me to go with him.

* * * * * *

“And he had spotted a fellow that he thought took his coat. He told me. I didn’t know. I went around, you know, to the house with him, you know, to get his coat back. I didn’t know that it was going to be a burglary, but I know one thing, when he kicked the door in the officers arrived there and arrested us for the burglary, which I told them I had no idea it was anything about a burglary.

******

“I went with him in order to get his coat — get his coat back, but otherwise I had no intention of burglarizing it.”

Interrogation by the court continued:

“Q. Now, you also understand, do you not, that even though you were going to get your brother’s coat you didn’t have any permission of the owner to break into that place, do you understand that?

“A. Yes, sir.

“Q. * * * [Y]ou understand that the act of burglary is the breaking in, do you understand that?

“A. Yes, sir.

“Q. And you understand that because of that set of facts you are guilty of the charge of Burglary, do you not?

“A. Yes.”

The transcript discloses no other factual basis for the appellant’s plea. The facts recited by appellant do not amount to an admission of facts constituting the offense with which he was charged. Burglary in the second degree requires a breaking “with intent to commit a felony or to steal * § 560.045, RSMo 1969. Apparently the trial court considered that appellant had admitted a breaking and entry with intent to steal, no other criminal intent having been suggested. However, the appellant said that he went with his brother to get his coat back from “a fellow that he thought took his coat.” If such were the case, there was no intent to steal because the owner of the property was asserting his right to re-, gain its possession. 50 Am.Jur.2d Larceny, § 41, p. 203 (1970). See State v. Williams, 95 Mo. 247, 8 S.W. 217 (1888).

This case presents the same problem as that considered in Davis v. State, 499 S.W.2d 445 (Mo.1973). In that case the defendant was charged with driving an automobile without the consent of the owner. On his plea of guilty, the defendant stated that he did not know that the vehicle was stolen but he pleaded guilty in the mistaken belief that such fact would not have been a defense to the charge. Upon a motion for post-conviction relief, the Supreme Court set aside the conviction and permitted withdrawal of the plea because the record showed “that movant did not understand the nature of the charge because although pleading guilty to the named charge he affirmatively asserted a denial of an essential element thereof at the plea proceedings.” 499 S.W.2d at 449.

That case is here controlling and requires that the judgment denying relief as to the conviction in Cause No. C-44672 be reversed and the matter remanded with directions to vacate the judgment and sentence in that case and to permit appellant to plead anew to the charge in that case.

In Cause No. C-44839, the situation is different. In that case the appellant was charged with burglary and stealing but the stealing charge was dismissed. In entering his plea of guilty to the burglary, the appellant stated that he broke into the place and took merchandise. Having admitted facts sufficient to constitute the offense to which he pleaded, the defendant may not thereafter withdraw his plea on the grounds that he did not understand the nature of the offense. Fisk v. State, 515 S.W.2d 865, 868 — 869[3—6] (Mo.App.1974). The acceptance of the plea in this case immediately followed the proceedings in Cause No. C-44672 but the record in this case does not, as did the record in that case, involve a statement affirmatively denying an essential element of the offense. The 27.26 motion does not allege any facts showing that the evident misapprehension in that case of the nature of the offense affected the defendant’s understanding of the nature of the offense in Cause No. C-44839. His plea was not required to be accompanied by a statement of the facts of the offense in precise legal terms identifying the element of the crime so long as the defendant is not under misapprehension as to the nature of the charge. Williams v. State, 498 S.W.2d 521, 522-523[3] (Mo.1973).

Appellant also contends that he was denied effective assistance of counsel in that his appointed counsel failed to interview potential witnesses who, according to appellant, would have provided alibi testimony favorable to him. In the course of the plea acceptance, counsel for appellant, an assistant public defender, interrogated appellant and ascertained that appellant was aware that he had examined the prosecutor’s file and knew the evidence which the state would present. He also stated that he had not had time to interview the persons whose names appellant had given him as potential alibi witnesses. Counsel then asked appellant whether, knowing that defense counsel had not had an opportunity to prepare the case for trial, appellant still wished to plead guilty and appellant replied affirmatively.

Appellant now asserts that the trial court erred in overruling his motion without a hearing because his motion presented an issue of fact as to whether he had been denied effective assistance of counsel and whether he had intelligently waived his right to effective assistance of counsel.

Appellant’s motion does not allege that his admission of his participation in the crime with which he was charged was not truthful. He alleges no facts from which it might be concluded that the failure to interview the persons suggested had caused him to plead guilty to an offense which he in fact did not commit. His motion merely states that if the witnesses had been interviewed, they would have said that appellant was home at the time of the offense and could not have committed the crime.

However, in view of the record made at the acceptance of the plea, which included a recitation by appellant of the facts of his participation in the crime charged and his acknowledgment of his knowledge that his “alibi” witnesses had not been interviewed, the trial court did not err in overruling the motion without a hearing. Haliburton v. State, 546 S.W.2d 771 (Mo.App.1977).

Appellant also contends that his motion presented an issue of fact as to whether or not the voluntary and understanding nature of his plea had been affected by his misunderstanding that the sentences to be imposed were to run consecutively. The motion makes no allegation on this score, but the question is of no significance in view of the fact that the sentence in Cause No. C-44839 is set aside.

Judgment reversed as to Cause No. C-44672 and cause remanded to circuit court with directions to set aside judgment and sentence on that charge and to permit appellant to plead anew as to that charge; judgment affirmed as to Cause No. C-44839.

Reversed in part; affirmed in part.

All concur.


text:
    STATE of Missouri, Respondent, v. Geraldine DAVIS, a/k/a Geraldine English, Appellant.
    No. KCD 29018.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      James L. McMullin, McMullin, Wilson & Schwarz, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Walter 0. Theiss, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The defendant was convicted of burglary and theft from a residence and was sentenced to concurrent terms of three and two years for the respective offenses. The evidence was the defendant acted with her husband and one Walker to commit the crimes. The defendant contends the evidence shows she was under the compulsion of her husband and so the court erred by failure to submit Instruction A which prof-erred that the defendant acted under duress and did not knowingly and intentionally aid or encourage another in the crime.

The evidence was that the latch at a residence had been forced open and two television sets and a golden robe stolen. Officers were notified by a neighbor who suspected criminal activity from the antics of a car parked in the driveway and operated by a woman and occupied by two men. The description and license plate number of the vehicle were transmitted to the police and the search began. The suspect automobile was detected by helicopter at a place where the occupants were seen to have removed articles from the trunk and then sped off again. [Four television knobs were recovered in the snow at this site and an imprint — of what the officer took to be a television set — was also apparent.] After a chase at high speed the car was captured with- — by then — two occupants. The defendant was identified as the driver. A tire tool, a five-inch screwdriver and the robe taken from the residence were all found in the front of the automobile. Investigation disclosed that the tool marks on the residence lock were made by the screwdriver. The owner confirmed that the knobs found in the snow were from two television sets taken from the illegal entry into his residence. The defendant gave her version to these events: Her husband had telephoned her to come fetch him at a general location without specific address and, in the course of her driving, she turned around in a driveway, and then saw her husband come towards the car through a yard. The husband opened the door, as well as the trunk of the car, and then he and Walker got into the vehicle. The husband told her he wanted to use the car and she did not resist because from the tone of his voice, “it would have been either an argument or a fight”. The husband drove towards their home, saw a policeman there, and her husband and Walker began to shout excitedly. The car turned the corner, her husband jumped out, and she took over the wheel. Walker directed her to a location where he could be let out, but by then the police were in pursuit and the chase began. The defendant attributed her flight to panic, and her complaisance to her husband as the means to avoid his hostility.

The defendant contends that at the most the evidence shows that she picked up the husband at his direction, and unwitting of any illicit purpose drove him from the scene of the crime, and then was caught in the pursuit. She says the evidence does not show, nor does the verdict director require the jury to find, that she intentionally aided and abetted another in the commission of the crime, and Instruction A was tendered for the very purpose to find that element of proof. The defendant cites State v. Poor, 533 S.W.2d 245 (Mo.App.1976) for authority that where the State seeks conviction of the accused as an aider and encourager the jury must find that conduct was done intentionally. Poor as well as State v. Grebe, 461 S.W.2d 265 (Mo. banc 1970) recognize the aider and abettor as an agent of criminal conduct and therefore subject to penalty, and for that reason require the proof to show [Grebe, 1. c. 266] that the defendant in some manner “associate[d] himself with the venture . as . something that he wishes[d] to bring about”.

In Poor the defendant was the lookout and operator of the escape vehicle. The theory of the prosecution and proof was that the defendant participated in the robbery as an aider and abettor but the verdict director did not submit that such association was intentional and knowing as required by MAI-CR 2.14, framed for that precise theory of conviction. Rather, a modified MAI-CR 7.62 without that essential proposition was given. The court found that failure to give MAI-CR 2.14 applicable to an aider and encourager submission violated Rule 20.02(c) that an applicable instruction form be used to the exclusion of any other. This lapse was found to be prejudicial, moreover, because the verdict director did not require the jury to find that the conduct was intentional — an essential element of such a criminal responsibility-

The theory of proof and submission against this defendant, on the other hand, was not as aider and abettor, but as actor in concert with another in the commission of a crime. The submission of the criminal conduct of an active participant — whether or not as principal actor — is by the approved form MAI-CR 2.12. That form, used by the State to modify the submissions on burglary [MAI-CR 7.22] and stealing [MAI-CR 7.34], required for conviction that the jury find “the defendant acted either alone or knowingly and with common purpose together with others”. In this context purpose means intent, for “[i]ntent is the purpose or the design with which an act is done”. State v. Logan, 344 Mo. 351, 126 S.W.2d 256, 260[13] (1939); State v. Harris, 313 S.W.2d 664, 670[5-6] (Mo.1958). To require the jury to find also that defendant acted “knowingly and intentionally” — as she now insists — would only submit a redundancy.

The evidence understood most favorably to the verdict sufficiently allows inference that the defendant actively participated in the commission of the burglary and theft. The circumstances of the proof sustain the conclusions that the defendant operated the motor vehicle to the scene of the crime, that she moved the car past the residence several times, drove into the driveway — out and then back again — that she then operated the vehicle to a site for the disposition of the television sets where they were detected by police helicopter, and that she then drove away at high speed to avoid pursuit and arrest. This point is denied.

The defendant next contends that her evidence proved that she acted through the constraint of her husband and under his compulsion and so was entitled to an instruction on duress.

Our criminal law punishes only acts which are voluntary and frees from guilt violations done under compulsion and duress. Wharton on Criminal Law, §§ 65 and 123. Coercion will excuse criminal conduct other than murder, treason or conduct equally mala in se. To constitute the excuse, the duress must be present, imminent and impend so as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. The doctrine will not excuse conduct prompted only by fear or threat by another and cannot be invoked by one who had reasonable opportunity to avoid the act without undue exposure to death or serious bodily harm. State v. St. Clair, 262 S.W.2d 25, 27[1, 2] (Mo.1953); Wharton on Criminal Law, § 123.

A cognate rule, developed at common law and adopted into our jurisprudence, holds that a crime [other than those beyond the operation of duress] committed by a wife in the presence of her husband is presumed, in the absence of evidence to the contrary, to have been done under the constraint of the husband and is therefore excused. State v. Ma Foo, 110 Mo. 7, 19 S.W. 222, 224 (1892). This presumption that the wife acted under the coercion of the husband is rebuttable by proof that she acted of her own will. State v. Miller, 162 Mo. 253, 62 S.W. 692 (1901). When the evidence gives rise to the presumption of coercion by the husband, it falls to the State to show that the wife was not drawn to the offense by him but committed the conduct voluntarily; otherwise the presumption of duress will prevail. State v. Ma Foo, supra, 1. c. 225; State v. Miller, supra, 1. c. 694; Wharton on Criminal Law, § 102.

Thus the law constitutes duress an excuse for conduct otherwise criminal upon which a defendant does not carry the burden of proof. It belongs to that category of justifiable and excusable acts which — for want of a better terminology — MAI-CR calls special negative defenses. These are “defenses” — such as entrapment, accident, self-defense — which when supported by sufficient evidence must be given to the jury by proper instruction whether requested or not. MAI-CR 2.04, Notes on Use, Fifth Paragraph. See, also, State v. Weinzerl, 495 S.W.2d 137 (Mo.App.1973), MAI-CR 3.28 [entrapment]; State v. Minnis, 486 S.W.2d 280 (Mo.1972), MAI-CR 2.40 [self-defense].

The defendant contends that her evidence shows that her acts were incited by the husband and so she was entitled to an instruction on duress. This conclusion rests on her testimony that her refusal of the use of the car to the husband for his purposes would have resulted in either “an argument or a fight” and that she acquiesced to avoid his “hostility”. This evidence falls short of a prima facie proof of duress. It shows merely a response to the bare wish or command of the husband without the constraint from apprehension of injury to herself. Also, her own evidence shows that before the police chase began, she had let the husband out of the vehicle and so was then free from whatever compulsion had kept her in his thrall. The evidence of the defendant allows the inference only that her incitement to the crimes was voluntary. It was noted in the early Ma Foo case, supra, [1. c. 225] that there was “little in the present organization of society upon which the prima facie presumption [that a crime committed by a wife in the presence of a husband results from his coercion] . can stand, and certainly nothing calling for any extension of the presumption.” That postulate has become even more tenuous in contemporary life.

The instruction tendered by the defendant was properly refused. The judgment is affirmed.

All concur.