author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri ex rel. JIMMY’S WESTERN BAR-B-Q, INC., Respondent, v. CITY OF INDEPENDENCE, Missouri, et al., Appellants.
    No. KCD 26934.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.
    Motion for Rehearing and/or Transfer Denied Sept. 2, 1975.
    Application to Transfer Denied Oct. 13, 1975.
    Richard G. Carlisle, Asst. City Counselor, Independence, for appellants.
    C. John Forge, Jr., Independence, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

The ultimate issue, as stipulated by the parties, is whether as a matter of law appellant, City of Independence, Missouri, has the police power, discretion or duty to refuse a license to Charles Vincent Scola, doing business as Jimmy’s Western Bar-BQ, Inc. (the respondent), based upon the personal fitness of Scola. The matter before the trial court was a petition for a writ of mandamus to compel appellant to issue applicant-respondent an occupation license to operate a restaurant in Independence, Missouri, which writ was issued by the judgment of the trial court.

The trial court made the following “Memorandum Opinion Findings of Facts and Conclusions of Law” which are adopted in part as the opinion of this court:

“In this action Plaintiff corporation seeks a writ of mandamus compelling Defendants to issue it a license to operate a restaurant.

“The parties have filed a written stipulation of facts. Briefly, Plaintiff corporation made application for an occupation license to operate a restaurant in Independence, Missouri. Charles Scola, managing officer of plaintiff, paid the required fee and received a receipt but no license. The Independence licensing authorities refused to issue a license to Plaintiff and the City Council of the City of Independence at one of its regular meetings voted to deny the issuance of the license to Plaintiff herein. The reason advanced by the City for refusal to issue the license was the arrest record of Charles Vincent Scola. Scola’s arrest record contains ninety entries for violations of various City ordinances including forty traffic violations and one felony conviction in 1969 for tampering with a motor vehicle.

“The parties have stipulated that the ultimate issue is ‘whether or not the City of Independence has the police power, discretion or duty to refuse a license to said Charles Vincent Scola, doing business as Jimmy’s Western Bar-B-Q, Inc., based upon the personal fitness of said applicant.’

“In addition to the written stipulation with the attached exhibits, the Court has been furnished a copy of Chapter 5 of the Independence City Ordinances providing for the issuance of licenses and a payment of a license tax.

“As indicated by the parties through their written stipulation the sole issue in this ease is whether or not the City by its licensing agency or City Council has any discretion to deny the applicant a license to operate a restaurant.

“The defendants seek to justify their refusal to grant plaintiff a license upon the exercise of the police power. There seems to be little question but that the City of Independence has the right under its Charter to ‘regulate license and inspect . restaurants’ and to prohibit acts which may be ‘detrimental to the health, morals, comfort, safety, convenience or welfare of the inhabitants of the City’ and to ‘promote and maintain the comfort, education, morals, safety, peace, government, health, welfare . of the City and its inhabitants.’ However, the license ordinances (Chapter 5, Ordinances, City of Independence) do not relate to the exercise by the municipality of its police power. When considered as a whole, the license tax ordinance is nothing more than a revenue producing measure. It provides in effect that upon application any firm, person or corporation engaged in the businesses enumerated therein shall be issued a license upon payment of a fee. The ordinance lists twelve pages of occupations which must be licensed including practically every conceivable occupation from Blacksmiths and Coal Dealers to agencies for the sale of Lightning Rods and Repairing of Umbrellas. Issuance of a license under the ordinance requires nothing more than a payment of a fee. No criteria for a denial of a license are established by the ordinance.

“For the Defendant City to be entitled to deny Plaintiff a license there must be some reasonable relationship between such denial and the exercise by the City of its police power. While it is true that the City under the exercise of its police power can regulate restaurants in connection with health standards and cleanliness and deny an applicant a license for violation of a health standard, it may not deny a license for an arbitrary reason unrelated to the reasonable exercise of the police power. The issuance of a license in this case and under this ordinance is nothing more than a ministerial act to be performed by the municipal authorities upon the payment by the licensee of a fee. The refusal to issue the license was in no way connected with any health or cleanliness standards.

“The record of Plaintiffs’ managing officer, Charles Scola, may give the City Council cause for concern in view of his frequent violation of municipal ordinances, but there is nothing in this record upon which the City acted to indicate that the Plaintiff herein is unfit as a purveyor of food nor is there any basis for a denial of plaintiff’s application for a license on the basis of the personal fitness of Charles Scola. As was stated in Hagerman vs. City of St. Louis [365 Mo. 403], 283 S.W.2d 623, 629, ‘. . businesses and occupations that are lawful and useful may not thus be oppressed or prohibited by harsh enactments . Unprincipled persons engage in many useful businesses and occupations. The justification for suppressing or prohibiting a business or occupation should be found in its inherent nature.’

“The most that can be said here is that Plaintiffs’ manager has a record of numerous arrests but that does not justify the City in denying Plaintiff’s application for a restaurant license. Insofar as the City may have some discretion to act under the police power, that discretion may not be exercised arbitrarily without adequate safeguards. Absent standards clearly spelled out either within the Charter or the ordinance, the denial of a license to Plaintiff here constitutes a denial of due process of law as prohibited by our State and Federal Constitutions. The action of the Defendant Council was improper because it lacked discretion to deny Plaintiff’s application.

“Because the Council lacked discretion, the issuance of a license to Plaintiff was nothing more than the exercise of a ministerial act upon the payment of the appropriate fee. Mandamus lies to correct the failure of a municipality to perform a ministerial act.

“It follows therefore that Plaintiff is entitled to the relief prayed for in its petition and that the City should be commanded to issue Plaintiff a license to operate a restaurant.”

Appellant first says that the above conclusion of the trial court that “absent standards clearly spelled out either within the Charter or the ordinance, the denial of a license to Plaintiff here constitutes a denial of due process of law as prohibited by our State and Federal Constitutions” is a conclusion on an issue not pleaded. Respondent did not plead any constitutional issue, but apparently, according to appellant’s brief, argument was made to the trial court thereon. The matter need not be further noticed because the basic issue may be decided without reference to any constitutional issue.

The Business and Occupations License Tax ordinance, Chapter 5, first provides that every person, firm, partnership, association or corporation shall be required to obtain a license every year for businesses, professions, occupations or callings (with certain exemptions) designated in the Chapter. Sec. 5.022 provides that no license shall be issued until all personal taxes, merchants and manufacturers taxes, special assessments, license fees, permit fees, inspection fees, utility charges and other financial obligations which are delinquent and owing to the city have been paid in full. Although it was stipulated that Scola paid $14.75 with his application for a license and received a receipt therefor; that the receipt was not a license and Scola was so informed; and that Scola operated the corporation since October 14, 1971 (this mandamus action was filed on October 22, 1971); and that Scola had not been authorized by appellant to conduct a business in the city, there is no evidence that respondent ever failed to pay any license fee or tax under Sec. 5.022. Appellant says that two stipulated disturbance of the peace charges against Scola, resulting in fines, occurred at Jimmy’s Western Bar-B-Q, but reference to the transcript does not reveal the situs of the offenses as claimed by appellant in its brief.

Section 5.024 relates to the issuance of all licenses “subject to licensee’s compliance with all building code, health, fire and zoning requirements and other applicable ordinances of the City of Independence.” There is no evidence that Scola did not so comply, and there is no evidence that the stipulated arrests for and convictions of offenses had any relation whatsoever to the operation of the business of a restaurant. The Supervisor of License Inspection shall issue the licenses subject to the quoted condition subsequent of compliance with building, health, fire, zoning and other applicable ordinances, and no doubt, a subsequent failure to so comply could result in and be the basis for license revocation proceeding under Sec. 5.046 of the ordinance.

There is no standard or “criteria” concerning any requirement of good character or fitness anywhere set forth in the ordinance. See Corro v. Moss, 184 Misc. 1050, 56 N.Y.S.2d 652 (N.Y.Sup.1945). No discretion is anywhere vested by the ordinance in the licensing authority to grant or withhold a license to operate a restaurant on the ground of good character or personal fitness of the applicant. Undoubtedly, standards of qualifications could be set by the ordinance, “where the restriction has a reasonable relationship to the protection of the public health, safety, welfare or morals in view of the nature of the occupation or activity that is licensed.” 9 McQuillin, Municipal Corporations, § 26.46, p. 106. And although both that authority, and 53 C.J.S. Licenses § 38, p. 635, make reference to a proposition that “a license may be refused on the ground that applicant is not of good moral character or is not a suitable person to exercise the privileges granted by the license, even though the statute or ordinance does not require that applicant be a fit and proper person, and applicant’s previous misconduct which shows he is not a suitable person may be considered,” [the italicized portion of the quote is relied upon by appellant in its contention that it could consider respondent’s fitness even though not required by the ordinance], the C.J.S. text goes on, “The licensing, authorities are not justified in refusing a license on a moral appraisal,, or for previous misconduct, which is not relevant to the conduct of the business for which a license is sought, * * * »

Of the stipulated 90 court and police encounters by Scola, 51 were either mere arrests, with no disposition or were dismissed, these matters beginning in 1959 and ending in December, 1971. Traffic offenses were 18 in number, resulting in fines. In 1960, apparently there was a conviction for tampering with a motor vehicle, with a one year sentence in the County Jail, and a “bench parole”. Other various offenses were of less serious nature, ranging from assault (1962), peace disturbance, disorderly conduct, no licenses on truck, no occupation license (1966), interference with officer, and failure to appear. There is no showing whatsoever that these offenses, although miscreant and not the normal activities of the peaceful, law-abiding citizen, would have any relation to the business of operating a restaurant, which is, of course, a legitimate business not having any inherent tendency to be hurtful or detrimental to the public, such as the liquor business, dance halls and pool halls, as noted in Flanagan v. Town of Petersburg, 108 W.Va. 111, 150 S.E. 382, 385 (1929).

The trial court based its decision upon the proposition that the ordinance is a revenue law, requiring only the exercise of a ministerial, non-discretionary, act of issuing an occupation license to anyone who applied and who paid the fee. As noted, there are no standards contained in the ordinance by which the fitness of an applicant could be determined, and even if it did, those standards would have to be referable to the type of occupation sought to be regulated. A licensing ordinance can, of course, be both for revenue purposes and regulation. Asotsky v. Beach, 319 Mo. 810, 5 S.W.2d 22, 26 (Mo. banc 1928). In the sense that the ordinance herein exacts a fee, it is a revenue measure. But no portion of that fee, so far as the ordinance provides and as appears by the record, is allocated for the purpose of paying for regulation from any separate fund. City of Odessa v. Borgic, 456 S.W.2d 611, 619 (Mo.App.1970). The regulatory portions of the ordinance come into play after the license fee is paid and the license is issued. None of these regulatory measures are imposed as a condition to the issuance of the license. These regulations relate to: a separate license for each place of business; display of licenses, restrictions on transfer of licenses; possession of a Missouri retail sales license; payment of financial obligations delinquent and owing to the city; compliance with building codes, health, fire and zoning requirements; the city’s power to examine the applicant’s books, prohibition in operating any business otherwise prohibited by ordinance; power to suspend or revoke licenses on final adjudication of violation of city ordinances; prohibition on doing business without a license or making false statements in an application; police reporting procedures for violations of ordinances and power to arrest therefor. There is no contention that respondent owed anything to the city other than the instant license fee which initially was tendered. Since respondent has complied with all of the requirements for the issuance of a license, the trial court is correct in concluding that the issuance of a license itself is but a ministerial act of appellant’s Supervisor of License Inspection.

To hold that appellant city could deny an occupation license upon a claimed lack of personal fitness based upon past conduct totally unrelated to the legitimate occupation sought to be pursued would be to grant it a power which could be arbitrarily imposed upon each and every applicant for the many listed businesses, professions, occupations and callings subject to the licensing ordinance.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SWOFFORD, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Irwin M. BROWN, Appellant.
    No. KCD 27010.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.
    Motion for Rehearing and/or Transfer Denied Sept. 2, 1975.

      Austin F. Shute, Ronald J. Stites, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

A jury found the appellant (defendant) guilty of Robbery First Degree, but was unable to agree as to a sentence. The trial court fixed his sentence at ten years imprisonment.

The defendant raises four points upon which he seeks reversal of his conviction. His fourth point is somewhat unique. He asks this court to consider all points raised in his motion for a new trial which he has not raised in his “Points Relied On” nor briefed. A comparison of his new trial motion and his brief discloses that the only allegation in the motion not raised in the brief is that the verdict is not supported by sufficient or substantial evidence. It is a firm principle of law in this state that allegations of error raised in a motion for a new trial, not briefed on appeal, are to be deemed waived or abandoned. Criminal Rule 28.02; State v. Heitman, 473 S.W.2d 722, 727-728[4] (Mo.1971); State v. Sykes, 436 S.W.2d 32, 33[1] (Mo.1969). Furthermore, the defendant’s fourth point wholly fails to meet the requirements of Rule 84.-04(d), made applicable to appeals in criminal cases by Rule 28.18. This point has not been properly preserved for appellate review; nevertheless, a careful reading of the whole record discloses that it is completely without merit.

The remaining three points raised by the defendant may be summarized as: 1) the pretrial identification procedures were unnecessarily suggestive and conducive to irreparable mistake and the trial court erred in denying defendant’s motion to suppress such evidence; 2) the trial court erred in giving Instruction No. 6, dealing with the presumption of innocence and burden of proof, in lieu of defendant’s proffered Instruction A, which was refused; and 3) the trial court erred in denying defendant’s motion for a mistrial or to discharge the jury panel because the prosecutor utilized his peremptory challenges to strike all black veniremen from the jury as a policy of systematic exclusion.

A resolution of these problems requires a summary of some of the evidence in this case.

On November 10,1972, one Thomas Stanley, a photographer, was assigned by his employer to Central High School, Kansas City, Missouri, to take photographs of the students. He set his operation up in the gymnasium where the students would pay the fee and have their photographs taken. The fees were being collected by helpers and deposited in a box on a table adjacent to the photographic area. On the morning of that day, Stanley’s work was disturbed, by the defendant and others and it was necessary for him to “chase” the defendant and others from the vicinity of the cash collections on three or four occasions. At those times, Stanley was within a few feet of the defendant in a clearly lighted area. In the early afternoon, his work that day completed at Central, Stanley with some $700.00 in photographic fee receipts and his other equipment went to his car in the parking lot. There, he was approached by a young man (whom he identified as the defendant) and they discussed yearbook pictures.

Afterwards, Stanley, while leaving the area, had to stop his car to permit the passage of some school children. At that time, a man opened the door on the passenger side, displayed a gun and told Stanley to “Scoot over, the other guy is going to drive.” Stanley complied by moving to the center of the front seat. The “other guy” was the defendant. Stanley was then driven around for about twenty minutes, was relieved of the money, his car keys thrown away, and the two persons then left him. Stanley had an extra key which he then used to start his car and was on his way to a telephone to report the robbery when he was involved in a collision which “totaled” out his car and put him in a condition of shock. Stanley was taken to a hospital.

Either at the scene of the automobile accident or at the hospital, Stanley told police that the driver in the robbery was a black male, five feet, nine inches tall, weighing about 150 pounds, and about 18 years old.

In January, 1973, two policemen, one of whom was Detective Floyd Smith, brought about 6 to 10 police photographs to Stanley for him to view. Among the photographs was one of the defendant, which Stanley immediately identified as one of the men who had robbed him. In June, 1973, a lineup was conducted by Detective Smith in which the defendant and three other men were presented. Stanley again identified the defendant as one of the robbers. At the trial, Stanley made a positive, unequivocal identification of the defendant.

The record is completely devoid of anything to indicate that the police made any improper or suggestive remarks or engaged in procedures which would in any way taint either the photographic or lineup identification of the defendant by Stanley. On the other hand, the record abounds with facts that form an independent basis for Stanley’s in-court identification. His difficulties with defendant at the high school in the morning, his conversation with him in the parking lot, his abduction by the defendant and his armed companion, and sitting beside the defendant in the car during the twenty-minute drive — all in broad daylight, during which the defendant made no attempt to mask himself or prevent Stanley from seeing him — are all facts which form an independent basis for the admission of the in-court identification. State v. Ramsey, 477 S.W.2d 88, 90[2,3] (Mo.1972); State v. Goshon, 506 S.W.2d 99 (Mo.App.1974); State v. Ross, 502 S.W.2d 241, 246[2] (Mo.1973). Further, defendant did not object to Stanley’s in-court identification and cross-examined him vigorously concerning the circumstances surrounding such identification. Thus, he cannot now assert error in the admission of such in-court identification. State v. Brownridge, 459 S.W.2d 317, 320[8] (Mo.1970). Appellant’s first point is ruled against him.

The defendant offered Instruction “A”, which was refused by the court. Rejected Instruction “A” read as follows:

“The fact that the defendant has been charged with an offense is not evidence, and it creates no inference that any offense was committed or that the defendant is guilty.
The defendant is presumed to be innocent unless and until, during your deliberations upon your verdict, you find him guilty beyond a reasonable doubt. This presumption places upon the state the burden of proving that the defendant is guilty beyond a reasonable doubt.
If all of the evidence or any lack of evidence in this case leaves in your mind a reasonable doubt as to the defendant’s guilt, you must return a verdict of ‘Not Guilty’.”

In its place, the court gave Instruction No. 6, which was submitted by the state. Instruction No. 6, as given, follows:

“The court instructs the jury that the law presumes the innocence and not the guilt of the defendant, and this presumption of innocence attends the defendant throughout the trial, and at the end entitles the defendant to an acquittal, unless the evidence in the case, when taken as a whole, satisfies you of defendant's guilt beyond a reasonable doubt, as defined in these instructions.
The court instructs the jury that if they have a reasonable doubt of defendant’s guilt, they should acquit, but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching defendant’s guilt and not a mere possibility of defendant’s innocence.”

It is the defendant’s contention that Instruction No. 6 is not acceptable because (a) it advises that the term “reasonable doubt” will be defined, and then fails to define that term; and (b) employment of the phrase “substantial doubt” shifts the burden of proof from the state to the defendant.

As the defendant recites in his brief, Instruction No. 6 is a “time sanctioned instruction” and one which has survived many challenges. In State v. Lafferty, 416 S.W.2d 157, 161[6, 7] (Mo.1967), it was held that “reasonable doubt” is a simple term and so it is not necessary to define it within the instructions even though the instruction promised the jury that it would be defined. In State v. Scott, 491 S.W.2d 514, 520[11] (Mo. banc 1973), the Supreme Court of Missouri held that the use of the term “substantial doubt” does not shift the burden of proof to the defendant. See also: State v. Key, 411 S.W.2d 100, 103-104[5] (Mo.1967).

This court also takes notice that the defendant’s point two does not state wherein or why the court below erred. Rule 84.04(d) has been again violated and consequently this point was not properly preserved for review. State v. Warren, 469 S.W.2d 662, 663[3] (Mo.App.1971); Supreme Court Rule 28.18. However, the contentions are without merit and defendant’s second point is ruled against him.

Defendant’s third point relied on is as follows:

“III THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR A MISTRIAL OR THAT THE JURY PANEL BE DISCHARGED
(a) The standards set down in State v. Kelly, supra [506 S.W.2d 61 (Mo.App.1974)], and State v. Davidson (sic), 457 S.W.2d 674 have been met.
(b) The systematic exclusion necessary in Swain v. Alabama has been shown to the Appellate Courts of Missouri.”

The background of this point, as shown by the record, is that apparently the prosecutor used seven of his ten peremptory challenges to strike all seven black persons from the jury panel. Thereupon, counsel for the defendant, before the jury was sworn, made an oral motion to discharge the jury and for a mistrial upon the basic ground that “down through the years the prosecuting attorney’s office of Jackson County has indulged themselves (sic) in the systematic exclusion of black jurors * * through the peremptory challenges used in the selection of juries in all criminal cases * * ⅜” In denying this request, the trial court commented that the defendant’s accomplice in the robbery here involved had been recently tried before the same court and that a black man had acted as foreman of the jury.

Counsel for defense was obviously (in both his oral motion at the trial and here on appeal) asserting the charge that the state, through the prosecutor, was engaged in the systematic exclusion of blacks as jurors in criminal cases in “case after case” so as to bring his challenge within the case of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). He asked for no hearing on this matter and offered no evidence to support the charge.

In order to complain on appeal that the prosecutor systematically excludes, by use of peremptory challenges, an identifiable class of persons from jury service, it is first necessary for the defendant to establish at the trial level a prima facie case of such systematic exclusion. Swain v. Alabama, supra; State v. Merridith, 433 S.W.2d 578, 579[2, 3] (Mo.1968); State v. Kelly, 506 S.W.2d 61, 63[6] (Mo.App.1974); State v. Baker, 524 S.W.2d 122 (Mo. banc— decided June 9, 1975). This record contains only the objections and statements of counsel concerning this charge of systematic exclusion. Objections and statements of counsel are not evidence of the facts, and assertions of counsel during trial do not prove themselves. State v. Kelly, supra. Counsel thus did not show a violation of Swain, even by his statements. Swain requires that such exclusions of blacks is made by means of peremptory challenge “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be * * * with the result that no Negroes ever serve on petit juries * * 380 U.S. at 223, 85 S.Ct. at 837, 13 L.Ed.2d at 774. See also: State v. Davison, 457 S.W.2d 674, 676-677[5] (Mo.1970); State v. Collor, 502 S.W.2d 258, 261[7] (Mo.1973). The defendant’s third point is ruled against him.

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Sandra T. RICHARDSON, Appellant, v. WATKINS BROTHERS MEMORIAL CHAPELS, INC., Respondent.
    No. KCD 27059.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.
    Motion for Rehearing and/or Transfer Denied Sept. 2, 1975.
    Application to Transfer Denied Oct. 13, 1975.

      Joseph W. Amick, Kansas City, for appellant.
    Ernest H. Fremont, Jr., Kansas City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action for damages for personal injury arising out of automobile collision which occurred in Kansas. The trial court sustained defendant’s motion to dismiss on the grounds that the action was barred by the Kansas two-year statute of limitations, made applicable by the Missouri borrowing statute, § 516.190, RSMo 1969, Y.A.M.S.

The petition alleged that plaintiff, Sandra T. Richardson, and defendant, Watkins Brothers Memorial Chapels, Inc., are residents of Jackson County. It alleged that, on April 29,1970, defendant was engaged in the funeral home business, including driving families and relatives of decedents to the cemetery for graveside services; that on that date plaintiff was a passenger in a family vehicle being utilized by defendant in a funeral procession when the vehicle in which she was riding was struck in the rear by another vehicle utilized by Watkins in the procession.

“3. That said accident occurred at approximately 3:30 p. m. on Interstate 70 in the State of Kansas near the Muncie turnoff but plaintiff and defendant are residents of the State of Missouri, the trip commenced in the State of Missouri and the most significant contacts concerning plaintiff’s cause of action arose and are in the State of Missouri; therefore, the law of the State of Missouri applies.”

The petition charged negligence on the part of a Watkins employee in driving his auto into collision with the rear end of the vehicle occupied by plaintiff; in failing to stop, swerve, slow or sound a warning after he knew that a collision with the vehicle occupied by plaintiff was imminent; and in failing to maintain a lookout for traffic ahead of him.

The petition alleged injuries to plaintiff, not here significant, and sought damages of $25,000.

The petition was filed in the Jackson County Circuit Court on September 4,1973, some three years and four months from the date of the occurrence. Defendant’s motion relied on the two-year Kansas limitation statute (KSA 60-513 (1964)), made applicable by the Missouri borrowing statute, § 516.190.

Appellant contends that the trial court erred in applying the Kansas statute of limitations “since plaintiff’s cause of action originated in the State of Missouri.” Appellant would make the five-year Missouri statute (§ 516.120, RSMo 1969) the applicable limitation.

Appellant’s argument is based primarily on Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969), in which the court abandoned the lex loci delicti rule of choice of law in foreign tort cases in favor of the “most significant relationship” test, as set out in § 145, 1 Restatement of Conflict of Laws 2d, (1971), p. 414. She argues that where a cause of action “originated” for the purpose of § 516.190 should be determined by the application of such test. She contends that, inasmuch as the parties involved are Missouri residents, the journey involved began and was to end in Missouri, the defendant is a Missouri company deriving profit from its relation with plaintiff, and the suit is in a Missouri court, the most significant relationship bearing upon the policy behind a statute of limitations is with Missouri and that its statute should apply, rather than that of Kansas, whose only relationship is that the accident occurred there.

Absent the Missouri borrowing statute, the result sought by appellant would obtain under general rules of conflict of laws by which the statute of limitations of the forum controls as a procedural matter. 51 Am.Jur.2d, Limitation of Actions, § 66, p. 645 (1970). The borrowing statute has altered this rule and appellant tacitly concedes that if the statute is to be construed and applied as it has been previously, she cannot now prevail. Girth v. Beaty Grocery Company, 407 S.W.2d 881 (Mo.1966); Bowling v. S. S. Kresge Company, 481 S.W.2d 191 (Mo.1968).

Those decisions did, of course, precede the Kennedy case, relied upon by appellant. In Girth, an argument akin to that here presented, without, of course, the benefit of Kennedy, was rejected. The parties to the litigation were residents of Missouri, who had been involved in a collision in Iowa. In holding that the action was barred by the Iowa statute, the court stated (407 S.W.2d 882):

“ * * * We are asked to by-pass the Iowa Statute of Limitations on the theory that that statute conflicts with our statute of limitations. However, Section 516.190 makes the Iowa limitation statute our own. So, there is no conflict. The Legislature has the authority and power to enact statutes of limitations and this Court may not ignore or by-pass such laws. This question has been before the courts of this state on a number of occasions. Christner v. Chicago, R.I. & P. Ry. Co., 228 Mo.App. 220, 64 S.W.2d 752, l.c. 754(1-4); Devine v. Rook, Mo.App., 314 S.W.2d 932, l.c. 935(3); Jenkins v. Thompson, Mo., 251 S.W.2d 325, l.c. 328(3). In each case, it was held that Section 516.190 controlled cases such as that now before us. The fact that all the parties were residents of this state does not alter the situation. The statute is plain, and unambiguous. Many states have adopted similar statutes. See 53 C.J.S. Limitation of Actions § 31, p. 976, and cases there cited.

“We rule that no conflict of law problem is presented but that under our Missouri statute of limitations, Section 516.190, plaintiff’s cause was barred at the time his petition was filed.”

In Bowling, the cause sued on originated in a wrongful stock transfer in New York. In applying the New York statute of limitations, the court stated (431 S.W.2d 193[1]):

“The effect of § 516.190, supra, is to adopt and make as Missouri’s own the statute of limitation of New York. Jenkins v. Thompson, Mo.Sup., 251 S.W.2d 325. No conflict of laws question is presented when § 516.190, supra, is involved. Girth v. Beaty Grocery Company, Mo.Sup., 407 S.W.2d 881 * * *

Kennedy did involve a case in which the court had the right to make a choice of law. There is no basis for this court’s concluding that Kennedy overruled Girth v. Beaty Grocery Company, supra. See McIndoo v. Burnett, 494 F.2d 1311, 1313 (8th Cir., 1974). Girth is, in fact, consistent with a Choice-of-Law principle set forth in § 6(1), 1 Restatement of Conflict of Laws 2d (1971) p. 10, to-wit: “A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.”

This court is aware of the recent decision of the St. Louis District of the Missouri Court of Appeals in Trzecki v. Greenewald, - S.W.2d -, decided May 27, 1975. In that case where plaintiff, a resident of Missouri, had sued the Missouri owner of an automobile in which plaintiff was a guest passenger in an accident which occurred in Illinois, the court refused to apply the Illinois statute of limitations to bar the action in Missouri. The court held that, inasmuch as plaintiff as a guest had no cause of action under Illinois law, the choice of law guidelines of Kennedy could be considered in arriving at the conclusion that the cause of action “originated” in Missouri. That case is distinguishable, in that there has been no suggestion in this case that appellant would have been in any manner barred from bringing a timely action in either Kansas or Missouri to recover for her injuries.

Appellant has cited the case of Dindo v. Whitney, 429 F.2d 25 (1st Cir., 1970), in which the court followed a version of the significant relationship test in concluding that New Hampshire would apply its statute of limitations in a case arising out of an accident in Quebec. Appellant states that, although the court did not mention a borrowing statute, necessarily one must have existed. New Hampshire is one of the few states that does not have a borrowing statute. See Vernon, “Statutes of Limitation in the Conflict of Laws: Borrowing Statutes,” 32 Rocky Mountain Law Rev. 287, 294, fn. 23 (1960).

This court is obliged to follow the latest decision of the Supreme Court. Under those decisions in Girth v. Beaty Grocery Company and Bowling v. S. S. Kresge Company, supra, plaintiff’s claim is barred by the Kansas statute of limitations and the trial court correctly sustained defendant’s motion to dismiss.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Thomas BURNSIDE, Appellant.
    No. KCD 27385.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.
    Motion for Rehearing and/or Transfer Denied Sept. 2, 1975.

      Gerald M. Handley, Acting Public Defender, Philip H. Schwarz, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
   PRITCHARD, Chief Judge.

This case began upon the filing of an information in two counts with the commission of the crimes of rape and of kidnapping. On the day of trial, March 25, 1974, an amended information was filed charging two additional offenses, robbery in the first degree and assault with intent to kill with malice aforethought, and the trial proceeded, after the trial court (over appellant’s objection) conducted a preliminary hearing and found probable cause on the two additional counts.

The jury found appellant’s guilt on all four counts of the amended information but was unable to agree upon the punishment to be assessed upon the rape charge, Count I. Upon the other charges, the jury assessed these punishments: Count II, kidnapping, 10 years; Count III, robbery in the first degree, 10 years; and Count IV, assault with intent to kill with malice aforethought, life imprisonment. The court imposed appellant’s punishment under Count I at 50 years imprisonment, and the remaining counts in accordance with the jury’s verdicts, in the Department of Corrections, all the sentences to run consecutively.

No objection was made at any time by appellant, nor is there a point presented here concerning the amendment on the day of trial adding two offenses to the original charges. These amendments of additional and different offenses from those originally charged are impermissible under Rule 24.02, V.A.M.R., which reads: “The court may permit an information to be amended or an information to be substituted for an indictment at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” [Italics added.] In the case of State v. Couch, 523 S.W.2d 612 (Mo.App., No. KCD 26,878, handed down May 5,1975), the matter of an amendment to charge a greater and different offense (from assault with intent to rape without malice to assault with intent to rape with malice) was considered. The issue was raised by the defendant for the first time in a pro se brief, the amendment by the state having been made without objection and with the consent of defendant and his counsel, defendant having in writing waived a preliminary hearing on the amended information. It was held that the pro se point was “an attack upon the sufficiency of the information upon which the defendant was tried and convicted (and indeed, therefore, an attack upon the jurisdiction of the trial court)”, and Rule 28.02 in its requirement that allegations of error respecting the sufficiency of the information, etc., shall be considered upon appeal although not raised in the trial court or preserved for review was applied. In accordance with the holding of Couch, supra, the additional and different charges under Counts III and IV of the amended information were likewise jurisdictional, and the verdicts and judgments rendered thereon were a nullity. Nowhere here is the matter mentioned, but since the impermissible amendments are of a jurisdictional nature, and under the Rule 24.02 could not be made, the impermissible amendment rises to the denial of appellant of due process of law under U.S.Const. Amend. V and XIV, § 1; and Mo.Gonst. Art. I, § 10, V.A.M.S. Thus, this court may and should not only consider the matter under Rule 28.02, but under the plain error Rule 27.20(c). What has happened to appellant is that he has been subjected to charges by improper amendments which have resulted, to his obvious prejudice, in additional sentences of 10 years plus life imprisonment, to run consecutively. The judgments of conviction under Counts III and IV of the amended information must be set aside.

This leaves for consideration the judgments of conviction under Counts I and II as contained in the original information upon which preliminary hearings were had by a magistrate. It is thus unnecessary to rule whether the trial court had jurisdiction to hold a preliminary hearing (under Rule 23.01) on the additional charges of Counts III and IV, as presented in appellant’s Point I.

Appellant does not attack the sufficiency of the evidence to sustain the convictions under Counts I and II. By his Point II, appellant contends that he was deprived of “due process” by the trial court’s action in permitting in-court identification which was the product of unduly suggestive pretrial police activity. With respect to the identification of appellant, the prosecutrix testified on direct examination at the trial that as she was walking on Baltimore and 36th Street, she was grabbed from behind. The man pointed a gun at her head and told her not to scream, then they crossed a hedge and fence, through a lot where they got in a car. It was a couple of minutes after 11:00 p. m., and prosecutrix was with the man thereafter until about 11:45. She got a good look at the man in the car: “He was real close to me and shone a flashlight on his face to make sure I seen his face.” She saw him again for about 10 minutes when the two of them went into a store. On these bases, prosecutrix pointed out appellant in court as the man who abducted and raped her. Appellant’s claim of improper police activity arises by reason of prosecutrix’s testimony on cross-examination: She was not able to give a description of the man who accosted her when she talked to the police on the day of the occurrence. She was first able to give a description of the man to the police until some 8 or 10 days went by [she was hospitalized during that time], at which time she told them the man was a Negro with a gun, and drove a light colored or white car. She never attended a lineup to pick anyone out. The police told her that a man had been arrested who was a suspect, and prosecutrix was shown a single picture (of appellant) and she told the police that he looked like the man who accosted her, but she did not tell them he was positively the man. Appellant’s motion made at the beginning of the trial, and based upon pre-trial testimony, to suppress prosecutrix’s in-court identification on the ground that it was “so tainted by the suggestions offered to her by police authorities as to leave it with no probative value.” The motion to suppress was overruled.

As noted, the police merely told prosecutrix that a suspect had been arrested. She was then shown a photograph which she said looked like the man, but she did not positively say that he was the man. No other suggestion appears, as would for instance implant in prosecutrix’ mind that the single photograph shown to her was the man who kidnapped and raped her. Although a caveat was expressed in Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), as to the danger of the use of a single photograph display to a witness, the court said the claim of tainted identification procedure must be evaluated in the light of the totality of the circumstances, citing Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Here the evidence is that prosecu-trix saw appellant’s face at the time of abduction when he shined a flashlight upon it, and again for ten minutes with him in a store. These facts show that prosecutrix’s in-court identification had a source independent of the showing to her of a single photograph. Point II is overruled. State v. Parker, 458 S.W.2d 241, 243[1, 2], 244[3, 4] (Mo.1970); State v. Donnell, 430 S.W.2d 297, 305[17] (Mo.1968); and State v. Garrett, 518 S.W.2d 97 (Mo.App.1974).

By Point III, appellant claims that there was no substantial evidence to support a finding by the jury that the rape occurred in Jackson County, Missouri, or in Missouri. Prosecutrix testified that she was abducted at gun point by appellant at 36th and Baltimore (in Kansas City, Missouri); and that after appellant forced her into the car, they drove in an easterly direction. The force, as an element of the crime of rape, clearly was applied to prosecutrix in her initial abduction in Jackson County. State v. Gallup and Baker, 520 S.W.2d 619, 622[3] (Mo.App.1975), controls, and Point III is overruled.

Witness Fiermon Prymus testified for the state that when appellant was at his store on the night in question, appellant told him that he had a prostitute out there “and wanted to know if I wanted to buy some.” Appellant objected to the testimony after the testimony was given “as being evidence of a crime that is not before the Court. He is not charged with sale of prostitution.” The court overruled the objection and there was no further relief requested by appellant. Standing alone, the testimony as to “sale of prostitution” would have been an improper reference to other crimes. State v. Mitchell, 491 S.W.2d 292 (Mo. banc 1973). However, prosecutrix herself had testified to the same fact: “Q Was there any other additional conversation? A Yes. He asked the store owner if he wanted to buy me”, to which testimony there was no objection. In this situation, the testimony of Prymus was cumulative to other evidence which came in without objection and was therefore harmless. State v. Jackson, 253 S.W. 734, 735 (Mo.1923); State v. Menard, 331 S.W.2d 521 (Mo.1960). Point IV, raising this issue, is overruled.

By Point V, appellant relied on Rule 24.04 because the multiple count information arbitrarily forced his sentences to run consecutively, and that he was deprived of equal protection of the laws because other persons might be charged separately in four cases and have their sentences run concurrently. In argument, appellant mentions § 546.480, RSMo 1969, but does not attack it. In State v. Baker, 524 S.W.2d 122 (Mo. banc 1975), § 546.480 was struck down as being an unconstitutional denial of equal protection of the laws because of its mandatory requirement of consecutive sentences upon its facts. Rule 24.04 was declared to be not unconstitutional. Baker was “reversed and the case is remanded for resen-tencing wherein the trial judge shall exercise his judicial discretion with reference to whether sentences imposed on the various counts are to be concurrent or consecutive.” Baker must apply to Counts I and II here.

The judgments of conviction on Counts III and IV are reversed outright. The judgments of conviction on Counts I and II are reversed and the case is remanded for resentencing in the light of State v. Baker, supra, and the “word of caution” of the concurring opinion of Henley, J., therein.

All concur.


author: GUNN, Judge.

text:
    Grace BURIAN, Plaintiff-Appellant, v. Jean M. DICKENS, Defendant-Respondent.
    No. 36083.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 5, 1975.

      Paul P. Niedner, St. Charles, Kenneth M. Weinstock and Richard A. Ong, St. Louis, for plaintiff-appellant.
    James E. Godfrey, Inc., Samuel T. Vand-over, St. Louis, for defendant-respondent.
   GUNN, Judge.

Plaintiff-appellant Grace Burian brought suit to recover damages for personal injuries allegedly sustained when the automobile operated by her husband and in which she was a passenger was struck from the rear by an automobile driven by the defendant-respondent Jean Dickens. The jury returned a verdict for defendant, and plaintiff’s motion for a new trial was overruled. On appeal, plaintiff contends that she was denied a fair and impartial trial due to misconduct on the part of defendant’s counsel and that the trial court erred and committed plain error in failing to sustain her motion for new trial.

The accident giving rise to this appeal occurred in 1971 at the intersection of Manchester Road and Balias Road in St. Louis County. The plaintiff’s automobile was stopped in a left turn lane waiting for the traffic signal to turn green. Defendant’s car was also stopped, two to three feet directly behind the plaintiff’s automobile. While waiting for the traffic signal to change, defendant reached for her purse which was on the floor of her automobile. In doing so she released her foot from the brake pedal causing her automobile to move forward and make contact with the plaintiff’s automobile. Defendant testified that her foot did not make contact with the accelerator. Plaintiff did not know how the accident occurred and there was conflicting testimony concerning the force of the impact. Mr. Burian testified that there was “quite a jolt.” Defendant testified that the impact was “a slight jar.” Although the rear bumper of his automobile was replaced and the rear deck repaired as a result of the accident, Mr. Burian admitted that damage to his car was minor. Plaintiff testified that upon impact she was thrown forward and backward and immediately began to suffer pains in her neck. She also testified that her eye glasses struck the dash board and were broken and that she received slight bruises under both eyes. Mr. Burian made no contention that he was injured.

Shortly after the accident plaintiff was treated by Dr. Cyril Costello, a physician she had known from a previous treatment for a mole on her leg. Dr. Costello’s treatments for the neck injury were unsuccessful, and she was referred to Dr. Richard Hollocher, an orthopedic surgeon, for further medical attention.

It was plaintiff’s testimony that since the accident she has had continual pains in her neck, shoulders and back and has had difficulty in moving her hand and arm; that her hand is numb and weak; and that she has been severely restricted in her physical and social activities. X-rays taken during her medical treatment established that plaintiff suffers from degenerative cervical arthritis, a condition which existed prior to the accident. Although x-rays and testimony disclosed that plaintiff had sustained a fracture of the C- 3 laminal arch in an automobile accident occurring thirty-four years previously, plaintiff denied any awareness of her arthritic condition until after the accident with defendant. The medical witnesses for plaintiff and defendant each agreed that a slight jolt could aggravate plaintiff’s existing condition and cause the discomfort she was experiencing. Dr. Hol-locher was plaintiff’s only medical expert at trial; Dr. Costello did not testify.

On appeal, plaintiff asserts that defense counsel’s misconduct severely prejudiced her case and that the trial court erred in denying her motion for a new trial. She argues that on three separate occasions during his closing argument, defendant’s counsel argued outside the evidence by suggesting that the jury consider whether plaintiff’s complaints might have existed prior to the accident with defendant. In his closing argument to the jury, defendant’s counsel stated:

“First of all I would like you to recall that the first doctor she went to was her family doctor, Dr. Costello, and I am sure we can assume from that, the doctor who best knew Mrs. Burian not only since the accident, perhaps, but certainly before it occurred as to what her condition was before this contact occurred in December of 1971. Dr. Costello treated her. She went to him because she had been to him before and he would know what her condition was.”

Plaintiff’s counsel objected on the grounds that there was no evidence that Dr. Costello was plaintiff’s family physician and that the statement improperly planted in the jurors’ minds that plaintiff knew of her neck condition prior to her 1971 accident. The objection was sustained and the jury instructed to disregard the comment. At a subsequent point in the argument, defendant’s counsel told the jury that “. before she [plaintiff] can recover any complaints she has must be caused by the accident — not by the arthritic condition.” Objection to the comment was sustained. Defendant’s counsel also asked the jury “to consider then whether she [plaintiff] had these complaints before this accident happened.” Again, objection was made and sustained, but plaintiff’s counsel did not at any time request a mistrial. Thus, plaintiff received all the relief asked for and cannot now complain. Baumle v. Smith, 420 S.W.2d 341 (Mo.1967); Young v. Missouri Public Service Co., 374 S.W.2d 59 (Mo.1964); Marler v. Pinkston, 293 S.W.2d 385 (Mo.1956); State v. Cissna, 510 S.W.2d 780 (Mo.App.1974).

Plaintiff seeks to invoke the provisions of Rule 79.04, urging that the argument of defendant’s counsel resulted in manifest injustice and that plain error was committed. The trial court is vested with broad discretion in controlling argument of trial counsel and we defer to the trial court’s judgment unless there is a clear abuse of discretion. Beesley v. Howe, 478 S.W.2d 649 (Mo.1972); Reorganized School Dist. No. 2 v. Missouri Pac. R. Co., 503 S.W.2d 153 (Mo.App.1973). Citizens Discount and Inv. Corp. v. Dixon, 499 S.W.2d 231 (Mo.App.1973). As stated in Fisher v. Williams, 327 S.W.2d 256 at 263 (Mo.1959):

“. . . [R]esort may be had to the plain error rule only in those exceptional instances ‘when the court deems that manifest injustice or miscarriage of justice has resulted therefrom’ The rule may not be invoked to excuse mere failure to timely and properly object or to evade the primary responsibility of orderly presentation to the trial court in the first instance.”

We cannot find that the misconduct complaint in this case resulted in manifest injustice to plaintiff. Plaintiff’s complaint concerning defendant’s argument does not rise to the level of plain error; there is no sufficient basis here for the imposition of the plain error rule. The trial court did not abuse its discretion in overruling plaintiff’s motion for a new trial.

Plaintiff also asserts that her case was prejudiced by other instances of misconduct by defendant’s counsel. During his cross-examination of plaintiff’s medical witness, defendant’s counsel attempted to place before the jury the contents of a letter written to the witness by Dr. Costello, the first physician to treat the plaintiff after the accident. All efforts by defendant’s counsel to place the letter in evidence were thwarted by plaintiff’s objections which were sustained on the ground that proper foundation had not been laid. Plaintiff’s counsel sought no other relief after the objections were sustained, and he thereby obtained all the relief asked for and may not now complain. Again, we find no abuse of the trial court’s discretion in overruling plaintiff’s motion for new trial in this regard.

Finally, plaintiff contends that it was plain error for defendant’s counsel to argue before the jury that unfavorable inferences could be drawn from plaintiff’s failure to call Dr. Costello as a witness. No objection was made to defendant’s argument on this point nor was the matter raised in plaintiff’s motion for new trial. The conduct of defendant’s counsel regarding comments on Dr. Costello’s failure to testify was not such as to require the trial court to take action without some stimulus from plaintiff. Without objection or assignment in the motion for new trial plaintiff’s final point has not been preserved for appeal. McCandless v. Manzella, 369 S.W.2d 188 (Mo.1963); Fisher v. Williams, supra; Stewart v. Boring, 312 S.W.2d 131 (Mo.1958).

The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . Rule 79.04 was repealed by order of the Supreme Court dated March 21, 1974. Rule 84.13(c) would now be applicable.


author: KELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Oliver Glenn PICKENS, Appellant.
    No. 35766.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 5, 1975.

      James C. Jones, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Charles B. Blackmar, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   KELLY, Judge.

This appeal is from a judgment of the Circuit Court of the City of St. Louis finding the defendant guilty of Assault with Intent to Ravish with Malice Aforethought (§ 559.180 RSMo 1969). The jury was unable to agree on punishment and the trial court sentenced the appellant to a term of fifteen years in the custody of the Department of Corrections. (Rule 27.03, § 546.440 RSMo 1969). After a motion for new trial was filed, submitted without oral argument and overruled, this appeal followed.

Appellant (hereinafter the defendant) does not attack the sufficiency of the evidence to support the conviction and it would serve no useful purpose to belabor this opinion with a recitation of the State’s evidence, which if believed, as it obviously was, established the offense charged.

Defendant presents two Points Relied On in this Court for reversal of his conviction. The first is directed at some questions directed to the jury panel on voir dire and the overruling of defendant’s motion that the jury panel be dismissed. The following are the questions and the colloquy which form the basis of defendant’s contention that the jury panel should have been dismissed.

“MR. ALLRED: While I was on vacation there’s been some nonsensical, in my judgment, articles, that were in our newspaper here. I’ve read them. They were about our community here and the attitude—
“MR. BAUER: Just a minute. Your Honor, I object to that line of voir dire examination. That’s not proper voir dire inquiry for the jury.
“MR. ALLRED: It will be very general.
“THE COURT: Objection sustained.
“MR. ALLRED: All right. Now what I’m saying is this: These articles tried to talk about what juries do in—
“MR. BAUER: Objection. Very improper voir dire, and that’s an attempt to inflame the jury about what’s been going on in—
“THE COURT: I’ll sustain the objection.
“MR. ALLRED: Well, the question is this: It declared that the attitude of some people is such that they don’t want to acquit people bacause (sic)—
“MR. BAUER: I object to that. It’s the exact thing which I just objected to before, and now, at this time, I ask this jury panel be dismissed and a new—
“THE COURT: Sustained.
Denied.
Let’s proceed.
“MR. ALLRED: Is there anybody here who has the attitude that you want to acquit somebody just because he’s charged with a crime in this community? That’s ridiculous, isn’t it?”

Defendant in the Argument portion of his brief states: “During voir dire examination the Assistant Circuit Attorney made repeated references to newspaper articles concerning the high rate of acquittals of defendants in St. Louis County.” A careful search of the transcript on appeal reveals that the above quoted section of the voir dire is the only portion thereof contained in the transcript filed in this Court. While we might concur with the Assistant Circuit Attorney’s remark that his question was ridiculous and might have been more artfully phrased, we conclude that the trial court sustained the defendant’s objections to the line of inquiry and did not abuse its discretion in denying defendant’s request that the jury panel be dismissed. The trial court has broad discretion in the conduct of voir dire examination of the jury and when that discretion is exercised it may only be interfered with where there is a clear and obvious abuse of its discretion. State v. Hawkins, 862 Mo. 152, 240 S.W.2d 688, 694[8] (1951). We find no evidence to support a conclusion that the trial court abused its discretion in denying defendant’s motion and rule this point against defendant.

Defendant’s second, and final Point, is that it was error for the trial court to overrule defendant’s motion for mistrial after the Assistant Circuit Attorney inquired of the defendant on cross-examination whether he had become ill due to narcotics.

Defendant took the stand in his own defense and on direct examination testified that he arrived at work at 145S Webster, the premises of the Holy Spiritual Church, on the morning of the 21st of May, 1973, at about 8:30 a. m. with another fellow, a friend of his whose name he did not know, other than he was called “Sankey”. He worked until about 9:30 or 9:45 a. m. when he left the job because he had become ill with an upset stomach from some donuts and chocolate milk given him by the man with whom he was working. On cross-examination by the Assistant Circuit Attorney, inquiring about the circumstances of defendant’s illness, the following occurred:

“Q. Okay. And then when you were sick, did you advise Sankey you were sick?
A. Yeah, he seen it.
Q. And he saw you vomit, I take it?
A. Uh-huh.
Q. That wasn’t from taking any narcotics, was it?”

Defendant’s counsel immediately interposed an objection which was sustained, and he then asked that the jury be instructed to disregard the statement and requested a mistrial. The trial court instructed the jury to disregard and denied the motion for mistrial.

Defendant argues that this question was wholly outside the scope of the evidence presented, that the Assistant Circuit Attorney had no reasonable basis for asking the question, and that the obvious effect of the question was to implant within the minds of the jury an element highly prejudicial to the defendant without any basis in fact.

From the record we cannot discern whether the Assistant Circuit Attorney in fact had any basis for this question because once the objection was sustained, although he pursued the cause of defendant’s stated illness, he did so by asking if the defendant knew what caused him to be sick. Assuming that he did not, we must view defendant’s contention in light of the recognized legal principle that the declaration of a mistrial is a drastic remedy which should be granted only when the prejudice induced into the trial is so great that it cannot be removed by other means, and is one which rests largely in the discretion of the trial court. It is only in those cases where the reviewing court determines that the failure to declare a mistrial constitutes an abuse of discretion that it may reverse the trial court and remand the cause for a new trial. State v. Duncan, 499 S.W.2d 476, 479[6-8] (Mo.1973). If, as defendant contends, the Assistant Circuit Attorney had no basis in fact for this type of inquiry but was just on a fishing expedition in an effort to infuse in the minds of the jurors that this defendant was a dope addict or a user of narcotics, we cannot condone such behavior by an officer of the court. Nevertheless, it was the defendant who brought into the case his illness as part of his defense that he could not have been the culprit who attempted to ravish the victim, and even within the limited scope of examination afforded the State under § 546.260 RSMo 1969, the State is not bound by his explanation as to the cause of his illness because it was a matter referred to in his examination in chief which became pertinent to the issues, State v. Graves, 352 Mo. 1102, 182 S.W.2d 46, 53[10] (1944), and was therefore subject to the rigors of cross-examination. We conclude that the trial court having sustained defendant’s objection to the question and instructed the jury to disregard, acted properly in not granting the ultimate relief requested, particularly in the light of the answer immediately thereafter made by the defendant to the Assistant Circuit Attorney’s question going to the cause of defendant’s illness.

We have reviewed the sufficiency of the indictment, verdict, judgment and sentence as we are required to do by Rule 28.02 and find them to be free of any irregularities.

The judgment is affirmed.

CLEMENS, P. J., and STEWART, J., concur.


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Field DAVIS, Defendant-Appellant.
    No. 36268.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 12, 1975.
    Charles D. Kitchin, Thomas J. Prebil, James C. Jones, Walter H. Sheata, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Charles B. Blackmar, Special Asst. Atty. Gen., Jefferson City, Brendan Ryan, St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Field Davis appeals from a conviction of robbery in the first degree by means of a dangerous and deadly weapon. He was sentenced to ten years imprisonment. We affirm.

Defendant does not challenge the sufficiency of the evidence. A brief statement will suffice. At approximately 1:00 p. m. Dr. Gustav Volmer, a dentist, was about to enter the door of his office at 6600 W. Florrisant Ave. in the City of St. Louis when he was accosted by defendant at gun point. Defendant robbed Dr. Volmer of $48.00. Defendant was apprehended by Police Officer Brown who had heard a radioed description of the robber, and saw defendant running southwardly in the 5600 block of Mimika Ave. Defendant had $48.00 in cash, in the same denominations as taken from Dr. Volmer.

Defendant who took the stand in his defense testified that he had been at the home of Harrell Yeager from 9:00 that morning and was arrested moments after he left Yeager’s home. He had “just stepped out the door”. He denied that he robbed Dr. Volmer.

Harrell Yeager was not called as a witness.

Defendant’s stepfather, a contractor, testified that defendant worked for Mm and he had paid defendant approximately $50.00 in wages on the night before the robbery.

Defendant’s sole contention of error is that the prosecutor was permitted to cross-examine defendant on matters beyond the scope of the direct examination.

§ 546.260, R.S.Mo.1969, provides that a defendant in a criminal case is competent to testify and may at his option testify on his behalf. In doing so he is “liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case”. The statute places a limitation upon the extent of cross-examination. However the state is not limited to an exact duplication of the direct examination”. State v. Huffer, 424 S.W.2d 776, 781 (Mo.App.1968). Nor is the state “confined to a mere categorical review or reiteration of the matters covered on direct examination but may cross-examine as to ‘all matters within the purview of the direct examination’ ”. State v. Harvey, 449 S.W.2d 649, 652 (Mo.1970).

Defendant, in addition to a sweeping denial of the robbery, testified that he was at the home of Harrell Yeager, with Yeager, at the time the crime was committed.

On cross-examination the prosecution elicited the information that defendant and Yeager were still friends; that Yeager still lived on Mimika, and that Yeager was aware of the accusation against defendant.

At the trial defendant objected to the following questions:

“Q. Does he [Yeager] know you are down here today?”
“Q. Have you talked to him since you were arrested?”
“Q. Did you ask Harrell [Yeager] to come down here and testify?”

There is no authority that renders alibi testimony on the part of defendant immune from the probing search of cross-examination. State v. Harvey, supra. See also State v. Wallace, 504 S.W.2d 67, 72-78 (Mo.1978). Defendant testified that he was with Harrell Yeager at the time of the commission of the crime. Yeager was the only person who could substantiate defendant’s testimony. Defendant introduced the subject of the cross-examination, the questions asked were well within the purview of direct examination and could reasonably have been anticipated by defendant. The sole witness to defendant’s alleged alibi could have been produced by voluntary appearance or forced to appear by process. The state had a right to make such inquiry as would cast doubt upon the credibility of defendant’s alibi. This it did.

The judgment is affirmed.

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


author: WEIER, Presiding Judge.

text:
    Edward HURSE, Movant, Appellant, v. STATE of Missouri, Respondent.
    No. 36233.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 12, 1975.

      Legal Aid Society, Roy A. Walther III, Gael T. Infande, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert H. House, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for respondent.
   WEIER, Presiding Judge.

This is an appeal from a denial of a motion for post-conviction relief. On April 3, 1961 movant pleaded guilty to two charges of selling heroin. He was sentenced to concurrent four year terms, which he served until released on December 7, 1963. On March 3, 1972 movant knowingly waived his right to a jury trial and pleaded guilty to an amended information charging movant with illegal possession of heroin, a Schedule I controlled substance (§§ 195.017, 195.200, RSMo 1969), and with convictions of two prior offenses (§ 556.280, RSMo 1969). Movant was sentenced to fifteen years imprisonment. On October 29, 1973 movant filed a motion to vacate this judgment pursuant to Rule 27.26. A hearing was held on February 20, 1974, and on March 5, 1974 findings of fact and conclusions of law were filed denying movant’s 27.26 motion. From this denial movant appeals.

Movant raises two points on appeal. First he urges that his guilty plea must be vacated because the two prior convictions were constitutionally tainted. Movant contends his two prior convictions could not be used to apply the Second Offender Act (§ 556.280, RSMo 1969) because under Rule 24.04 the two charges were separate and distinct, and at the time they were heard they should have been taken up separately. Instead he claims all of the evidence was heard by the trial judge on both charges before movant’s guilty pleas were accepted, constituting an erroneous joint conviction. The movant relied on the record to substantiate his allegations. From an examination of the record, however, the court found the movant was not tried at all, but that his guilty pleas to the two prior felonies were entered in separate proceedings. A plea of guilty was separately entered as to each charge. There was no joinder of the two charges into one information or indictment. Movant has not demonstrated that the record varies from the finding of the court, which he must do in order to sustain his burden of proof. Rule 27.26(f). It is well established that the findings of fact and conclusions of law by the court hearing a 27.26 motion are presumptively correct, and that the burden is on the movant to show that the judgment of the court is clearly erroneous. Rule 27.26(j). McCarthy v. State, 502 S.W.2d 397, 402[1, 2] (Mo.App.1973). The court was not in error in taking judicial notice of its own records pertaining to defendant’s prior convictions which resulted in a finding that movant’s contentions were without merit. State v. Wynn, 391 S.W.2d 245, 247[7, 8] (Mo.1965). The mere fact that the court receiving the plea may have interrogated defendant at one time on the facts to determine . the validity of the pleas could not constitute a joint conviction.

In his second point on appeal movant alleges the court erred in its finding regarding his sentencing and the Second Offender Act because there was no prior hearing with regard to his prior convictions. Mov-ant admitted his guilt to all three felonies and admitted that a prior hearing would have shown the two prior convictions. Thus no factual issues are raised. As the court below pointed out, this is only a question of law, whether a finding of the prior convictions could be properly made without a hearing, as described in § 556.280, supra.

The purpose of having a prior hearing by the court under § 556.280, the Second Offender Act, is to keep the matter of prior convictions away from the jury by having the judge assess the penalty rather than the jury if a prior conviction has been found. State v. Wilwording, 394 S.W.2d 383, 336[2] (Mo.1965). But no jury was required here. Movant entered a plea of guilty. When movant pleaded guilty to the information charging him with possession of heroin and two prior convictions, he not only admitted his guilt but also admitted all the facts charged. Robinson v. State, 491 S.W.2d 314, 315[4] (Mo.1973). Furthermore, in the hearing on his motion he admitted to informing the sentencing court that he had the prior convictions. Such an admission may be shown as evidence of prior conviction. State v. Baugh, 323 S.W.2d 685, 690[6] (Mo. banc 1959). Additionally, he admitted the prior felony convictions to the court hearing his motion. The records of the court of which the court may take judicial notice, and here did so, also sustained the original conviction and the later ruling against movant. State v. Wynn, supra. The record also discloses that movant was fully cognizant of the charge and the possible range of punishment to which he pleaded guilty.

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.


text:
    Winston G. HAYWOOD, Plaintiff-Appellant, v. Rosalie C. HAYWOOD, Defendant-Respondent.
    No. 36327.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 12, 1975.

      Leyhe, Jacobsmeyer & Meyer, Donald E. Heck, Clayton, for plaintiff-appellant.
    Lemay & Dunlop, Clayton, for defendant-respondent.
   WEIER, Presiding Judge.

Upon submission of plaintiff’s motion to modify a prior decree of divorce, the trial court terminated a child support award of $37.50 per week, but denied the other part of the motion seeking to reduce or eliminate alimony of $200.00 per month. Plaintiff filed a motion for new trial as to the issue of alimony. This was overruled by the court on June 19,1974. Plaintiff then filed a timely notice of appeal but directed it to be “from the Order overruling Motion for New Trial entered in this action on the 19th day of June, 1974”.

The denial of a motion for new trial or other after-trial motion is not an appealable order. Where an after-trial motion is denied, the appeal should be from the judgment to which the motion is directed. The notice is therefore ineffectual to bring anything before this court. A failure to file a proper notice of appeal alone is sufficient reason for this court to dismiss the appeal. Cady v. Kansas City Southern Railway Co., 512 S.W.2d 882, 884[2-4] (Mo.App.1974). But we would probably attribute a good faith effort to appeal from the judgment to plaintiff and consider the appeal if it were not for the deficiencies in the plaintiff’s brief.

Rule 84.04(d) requires that: “The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities * * *. Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this rule.”

Plaintiff has set out as points relied on three abstract statements of the law with a citation of authorities under each statement. We might agree that the law is stated correctly in the brief, but there is a complete failure to comply with Rule 84.-04(d). Although we review the entire cause upon both the law and the evidence in a court-tried case, this does not excuse compliance with this rule. We do not review the case on our own initiative to find some theory and facts in support thereof in order to establish that the trial court reached the wrong result. Troyer v. Click, 457 S.W.2d 221, 223[4] (Mo.App.1970).

Continued function of the appellate process in large part depends upon reasonable compliance with the rules of practice. Without the conscientious and effective help of counsel, the tremendous increase in case volume will overwhelm the system. Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223, 225 (Mo.App.1972).

The appeal is dismissed for failure to comply with the rules, it not appearing that the interest of justice otherwise requires. Rule 84.08.

DOWD and RENDLEN, JJ., concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Lucious BLANCHARD, Appellant.
    No. 36266.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 19, 1975.

      Hayes & Heisler, Daniel B. Hayes, Clayton, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Chief Counsel, Crim. Div., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   NORWIN D. HOUSER, Special Judge.

Lucious Blanchard, convicted of burglary, second degree, § 560.045, RSMo 1969, following a jury trial, and committed to the department of corrections for 10 years under the Second Offender Act, has appealed on the sole ground that the court erred in failing to conduct an evidentiary hearing on the issue of the voluntariness of his confession and in not instructing the jury on voluntariness.

The record shows that no objection was made to the admission of the confession in evidence and no request was made for an independent evidentiary hearing on the issue of voluntariness. In the absence of such an objection or request the trial court is not required to conduct an evidentiary hearing sua sponte. State v. Jackson, 448 S.W.2d 895 (Mo.1970); State v. Day, 515 S.W.2d 584 (Mo.App.1974); State v. Arrington, 529 S.W.2d 368 (Mo.1975); United States v. Taylor, 374 F.2d 753, 756 (7th Cir. 1967); Evans v. United States, 377 F.2d 535, 537 (5th Cir. 1967); Lundberg v. Buchkoe, 389 F.2d 154, 157 (6th Cir. 1968); Garrison v. Patterson, 405 F.2d 696, 697 (10th Cir. 1969), cert. den., 404 U.S. 880, 92 S.Ct. 212, 30 L.Ed.2d 160; United States v. Carter, 431 F.2d 1093, 1097 (8th Cir. 1970); Jacobson v. People of State of California, 431 F.2d 1017, 1019 (9th Cir. 1970); United States v. Monroe, 141 U.S.App.D.C. 251, 437 F.2d 684, 686 (1970); Gerberding v. United States, 471 F.2d 55, 61 (8th Cir. 1973). Furthermore, by failing to make proper objection to the admission of his confession, defendant has not preserved for review the court’s failure to conduct an evidentiary hearing. State v. Price, 422 S.W.2d 286 (Mo.1967).

Nor did the court err in not instructing on the voluntariness of the confession. This is a collateral issue, not required to be instructed upon as a part of the law of the ease. State v. Pughe, 403 S.W.2d 635, 641 (Mo.1966); State v. Truster, 334 S.W.2d 104, 111 (Mo.1960); State v. Francies, 295 S.W.2d 8,15 (Mo.1956); State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949, 957 (banc 1946). This instruction must be given if requested, par. 1., Notes on Use, MAI-CR 3.44, but in the absence of a request or submission by defendant the court is not required to give such an instruction sua sponte. State v. Pughe, supra; State v. Truster, supra. The record does not show that defendant requested such an instruction or that he submitted an instruction on the subject. Furthermore, the point was not raised in the motion for new trial. No manifest injustice resulted from failure to so instruct, and therefore this case does not fall within the “plain error1’ exception to the rule that the point is not properly preserved for appellate review.

■Judgment affirmed.

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


text:
    CENTRAL MOLONEY, INC., TRANSFORMER DIVISION, and Colt Industries, Inc., a Delaware Corporation a/k/a Moloney Electric Company, Respondent-Plaintiff, v. The CITY OF ST. LOUIS, a Municipal Corporation, et al., Appellants Defendants.
    No. 35923.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 19, 1975.
    Latney Barnes, Mexico, John C. Dan-forth, Atty. Gen., Carroll J. McBride, Asst. Atty. Gen., Jefferson City, for appellants-defendants.
    Fred M. Switzer, III, Clayton, for respondent-plaintiff.
   STEWART, Judge.

The respondent, hereafter called plaintiff, brought an action “For Declaratory Judgment, and for Injunctive Relief” against the appellants, who will be referred to as defendants. The defendants are the City of St. Louis, the executive officers of the St. Louis Council on Human Relations, the Chairman and the members of the Fair Employment Practices Division of the St. Louis Council on Human Relations and James L. Williams, a former employee of plaintiff. By its petition plaintiff sought to have the trial court declare Ordinance 51512 of the City of St. Louis invalid; that the complaint of the defendant James L. Williams, be declared barred by the period of limitation set forth in § 296.040(7), and for an injunction restraining defendants from enforcing or attempting to enforce the ordinance.

Both § 296.010 et seq. and Ordinance 51512 were enacted to eliminate and prevent discriminatory practices in matters of employment because of race, creed, color, religion, national origin or ancestry.

The statute and the ordinance cover the same general subject matter and for our purposes can be said to be identical with one glaring exception. Under the statute the time for filing a complaint is limited to 90 days. No mention is made in the ordinance of any limitation upon the time within which a complaint may be filed.

The court entered judgment in favor of plaintiff finding that the defendants, members of the Fair Employment Practices Division of the St. Louis Council on Human Relations, had no jurisdiction over the complaint of the defendant, Williams, because § 296.010 et seq. pre-empts the subject matter of Ordinance 51512 of the City of St. Louis and because the complaint was filed more than 90 days from the date that Williams was discharged and was therefore barred by the limitation provisions of the statute. The court decreed that the defendants be enjoined from proceeding to enforce the provisions of the ordinance against plaintiff “. . .on the basis of the complaint against the plaintiff filed January 16, 1970, by the defendant James L. Williams with the defendant Fair Employment Practices Division of the defendant St. Louis Council on Human Relations, or on the basis of any of the facts alleged in said complaint or on the basis of the plaintiff’s discharge of the defendant James L. Williams on October 6, 1969”.

The plaintiff employs more than 400 persons in the City of St. Louis. It would thus come within the purview of the subject ordinance and § 296.010 et seq. Defendant, James L. Williams, a black man, had been employed by the plaintiff since September 21, 1964. He was employed under the terms and conditions of the Collective Bargaining Agreement between plaintiff and the Electrical Workers Independent Union. On October 6,1969, plaintiff discharged defendant, Williams. Williams filed a grievance against the plaintiff under the terms and provisions of the Collective Bargaining Agreement which was processed up to the point of arbitration, at which time the Union elected not to submit the grievance to arbitration. The grievance was thus resolved in favor of plaintiff.

On January 16, 1970, more than 90 days after the date of his discharge plaintiff filed a written complaint with the defendant Division of Fair Employment Practices of the St. Louis Council on Human Relations. The complaint alleged that the discharge was racially motivated.

In accordance with the terms of the ordinance the plaintiff was notified that the Division had determined there was probable cause to credit the allegations made by defendant Williams and set forth a finding of probable cause and remedy requesting voluntary compliance. The voluntary compliance proposal required reinstatement, restoration of seniority, and compensation by way of three months salary or alternatively to compensate the complainant in a sum equal to 6 months salary at the rate he was earning upon termination. Plaintiff informed the Division that it did not agree with the finding and would not comply with the proposed remedy and that it would not negotiate an alternative conciliation. The matter was subsequently set down for a hearing. Prior to the date of hearing this action was filed.

On oral argument, in this court, the parties announced that the plaintiff and defendant, James L. Williams, had entered into a settlement disposing of the complaint filed by Mr. Williams. At the request of the court a copy of that settlement agreement was filed with the court.

The incident giving rise to this action was the discharge of the defendant, Williams. The action portion of the judgment which the defendants wish to overthrow enjoins them from proceeding with the complaint of the defendant, Williams, which was the justiciable controversy which gave rise to this action. Upon settlement of the controversy the question became moot. “A question is moot when the question presented for decision seeks a judgment upon some matter which if judgment were rendered could not have any practical effect upon any then existing controversy.” Preisler v. Doherty, 364 Mo. 596, 265 S.W.2d 404, 407 (banc 1954). When there is no existing controversy we should not retain jurisdiction.

The remaining parties urge us to rule because, they contend, the issue is not moot although the parties who are directly affected have settled their controversy.

Absent the pendency of the complaint of Mr. Williams plaintiff would have had no standing to bring this action. By removing the controversy which gave plaintiff the necessary standing its’ status reverts to that which it held before the complaint was accepted. It is not a question of the issue being justiciable but whether the person bringing the action is a proper party to seek adjudication of the issue at the time it is to be determined.

For the reasons herein stated the appeal is dismissed and the cause is remanded with directions to dismiss this action as moot.

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

      . All statutory references are to R.S.Mo.1969 unless otherwise indicated.


text:
    Ester Oline RODDEN, Plaintiff-Appellant, v. John M. RODDEN, Defendant-Respondent.
    No. 36025.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 19, 1975.

      Rothman & Roth, Fred Roth, Clayton, for plaintiff-appellant.
    James F. Koester, St. Louis, Shifrin, Tra-man, Bamburg & Dempsey, Clayton, for defendant-respondent.
   GUNN, Judge.

Pursuant to § 452.070 RSMo 1969, plaintiff-appellant Ester Rodden has sought to modify the child support provisions of her original divorce decree. The trial court granted a $10 per week increase in child support payments and ordered defendant-respondent John Rodden to “pay all extraordinary medical expenses” incurred by the Roddens’ son. Mrs. Rodden appealed the trial court’s award as being insufficient and has further contended that the order concerning medical expenses is too indefinite to be enforced. We find the record -of proceedings to be so indefinite, obfuscatory and ambiguous that we are unable to rule on the merits of the appeal. We therefore remand the cause to allow development of a more complete record.

Mrs. Rodden obtained a divorce from Mr. Rodden in 1965 and was awarded custody of their only child, a son. In the divorce decree, Mr. Rodden was ordered to pay $30 per week child support, and this appeal involves the effort by Mrs. Rodden to increase the child support provisions. In her modification pleadings Mrs. Rodden asserted that: 1) she was unemployed and unable to adequately support her son; 2) that Mr. Rodden had sufficient funds to pay more than $30 per week child support; 3) that the $30 per week child support was insufficient to support the son due to changed circumstances by reason of his increased age and growth. Modification of child support payments may be updated upon proof of a change of circumstances arising after the entry of the divorce decree and upon a showing that the other party is capable of paying an additional amount. Mrs. Rodden’s pleadings thus comport with the requisite allegations. McGinley v. McGinley, 513 S.W.2d 471 (Mo.App.1974).

However, the record before us on proof of changed circumstances is opaque and obscure, and we find particularly appropriate the following statement of the court in State ex rel. State Highway Commission v. Hill, 373 S.W.2d 666, l.c. 668 (Mo.App.1963):

“It is the duty of an appellate court to exercise.its jurisdiction freely so as to provide a review upon the merits in every instance where it may properly do so. This, however, presupposes a record and evidence upon which a court can function ‘with some degree of confidence in the reasonableness, fairness and accuracy of its final conclusion.’ ”

Similarly, the record on this appeal causes us to be diffident of our ability to rule upon the merits of this case with any accuracy of our conclusions. The greatest portion of the record consists of unsworn colloquies between the lawyers for the parties and the trial court with a gallimaufry of numbers and figures presented in a valiant attempt to reach a settlement of the case. Mrs. Rodden did testify as to some medical and other cost of living expenses incurred by her on her son’s behalf, but there was nothing so precisely presented that aids in or points to a denouement of this cause. An affidavit of expenses was attached to the transcript on appeal but was not introduced into evidence, and we do not consider it. State v. Morris, 523 S.W.2d 329 (Mo.App.1975).

Although the trial court awarded Mrs. Rodden a $10 per week child support increase and ordered Mr. Rodden to “pay all extraordinary medical expenses incurred by the son,” we cannot discern from the record how this award was reached. While modification of child support payments may be allowed due to increased cost of living expenses and growth of the child, McGinley v. McGinley, supra; Smolly v. Hoffman, 458 S.W.2d 579 (Mo.App.1970), Mrs. Rodden’s testimony was too vague, inconsistent and lacking in specificity to allow any reasonable, accurate determination of expenses.

However, in a proceeding to modify child support, the child’s needs are of central concern, and the child is the real party in interest. Markham v. Markham, 506 S.W.2d 84 (Mo.App.1974); Meyer v. Meyer, 493 S.W.2d 42 (Mo.App.1973). And there was some indication that Mrs. Rodden does possess records of specific medical and living expenses incurred by the son. We thus find ourselves in a predicament similar to that in In re M.P.S., 342 S.W.2d 277, l.c. 283 (Mo.App.1961), where it was stated:

“. . . [Wjhere it is impossible to render a final judgment because the principal issue was not adequately developed below, and the record indicates that the necessary evidence may be available, a wise exercise of our discretion requires that the judgment be reversed and that the case be remanded for a new trial.”

We therefore hold that a new trial is required to afford Mrs. Rodden opportunity to produce evidence to demonstrate to what extent, if any, the child support provisions should be modified.

We also note that a judgment relating to the payment of “all extraordinary medical expénses” would be unenforceable. A judgment for money must specify with definiteness and certainty the amount for which it is rendered, and a judgment incapable of enforcement because of indefiniteness is void. Loomstein v. Mercantile Trust National Ass’n, 507 S.W.2d 669 (Mo.App.1974). In Loomstein it was held that an order requiring the defendant to pay “all sums necessary for his daughter’s college and graduate school .tuition, books, room and board” was unenforceable, as there were no specific sums or methods to compute the costs. The judgment was held void because external proof would be required to ascertain the specific amounts to be collected. So, too, in this case, plaintiff would be required to bring in external proof of specific extraordinary medical expenses, thereby making the provision void.

Reversed and remanded.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . §§ 452.010 through 452.070, 452.090, 452.-100 and 452.120 RSMo 1969 were repealed by Laws 1973, p. 470, H.B.No.315, § A, and new §§ 1 to 24, designated as 452.300 to 452.415, RSMo 1973 Supp., relating to dissolution of marriage.

      . See also Oliver v. Oliver, 325 S.W.2d 33 (Mo.App.1959); Barnhart v. Ripka, 297 S.W.2d 787 (Mo.App.1956).

      . To the same effect see Taylor v. Taylor, 367 S.W.2d 58 (Mo.App.1963), holding unenforceable, as being too indefinite, an alimony provision requiring payment of 25% of the husband’s net income.


author: CLEMENS, Presiding Judge.

text:
    Randolph A. BENSON, Jr., Respondent, v. Elbert QUALLS and Joseph Murphy, Appellants.
    No. 36264.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 19, 1975.
    Walter W. Heiser, St. Louis, for respondent.
    Jack L. Koehr, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for appellants.
   CLEMENS, Presiding Judge.

Plaintiff sued the two defendant police officers for damages allegedly arising from using unreasonable force when they arrested him.

The jury returned a verdict for defendants. The trial court initially entered judgment for defendants, but pursuant to plaintiff’s after-trial motion, set aside the judgment and granted plaintiff a new trial. This, on several grounds, including “because the verdict is against the weight of the evidence.” Defendants appeal.

In their brief defendants do not challenge and on oral argument here conceded the submissibility of plaintiff’s case. The trial court therefore had the discretionary power, without appellate interference, to grant one new trial on the ground the verdict was against the weight of the evidence. Rule 78.02; Clark v. Ford, 498 S.W.2d 803[1] (Mo.1973); Dorrell v. Moore, 504 S.W.2d 174[3] (Mo.App.1973).

Defendants raise multiple points in their brief attacking the trial court’s findings of defects in defendant’s verdict-directing instruction. Since a retrial may produce different evidence and require a different defense instruction we will not enter this maze to render an advisory opinion.

We affirm the trial court’s order granting plaintiff a new trial.

KELLY, Jr. and RENDLEN, JJ., concur.


author: BILLINGS, Chief Judge.

text:
    Walter Dewitt BURNS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10023.
    Missouri Court of Appeals, Springfield District.
    Aug. 20, 1975.
    O. J. Gibson, Jr., Downs, Johnson & Gibson, Cape Girardeau, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Appellant Walter Dewitt Burns claims the Circuit Court of Mississippi County should have conducted an evidentiary hearing on his Rule 27.26 motion to vacate judgment and sentence imposed for manslaughter following his 1971 plea of guilty.

Appellant’s motion alleged he was not informed of the range of punishment by the sentencing judge and he had been promised a ten-year sentence and probation in exchange for his guilty plea.

The record of appellant’s guilty plea proceedings squarely refutes his alleged grounds. The sentencing judge explained the range of punishment, and the appellant stated he understood the possible sentences. In reply to the direct question whether anyone had made him any promises to induce his plea the appellant replied “No.” An evidentiary hearing on appellant’s motion was therefore not required, and the lower court did not err in ruling the motion without a hearing. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974).

The judgment is affirmed.

All concur.

      . In detailed findings of fact and conclusions of law the court also determined that the appellant received a ten-year sentence and, following an investigation by the State Board of Probation and Parole, the sentencing court placed the appellant on probation. Appellant’s probation was revoked a year later.