author: KELLY, Judge.

text:
    Frank A. STRAKE, Plaintiff-Respondent, v. R. J. REYNOLDS TOBACCO CO., a corporation, et al., Defendants-Appellants.
    Nos. 36777, 36778.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 13, 1976.

      Evans & Dixon, Eugene K. Buckley, St. Louis, for defendants-appellants.
    Hearnes, Padberg, McSweeney & Slater, Godfrey P. Padberg, St. Louis, for plaintiff-respondent.
   KELLY, Judge.

These appeals from a judgment of the Circuit Court of the City of St. Louis awarding the plaintiff-respondent, Frank A. Strake, damages in an amount of $60,-000.00, have their genesis in automobile collisions occurring on February 15, 1973, on Washington Avenue, just west of its intersection with Pendleton Avenue, in the City of St. Louis. We reverse the judgment as to appellant James Bullock and affirm as to appellants R. J. Reynolds Tobacco Company and Gary L. Thornton.

Respondent and appellant Bullock were operating their respective automobiles east-wardly on Washington Avenue sometime between 9:00 and 9:15 a.m. on the morning of February 15, 1973, with respondent proceeding ahead of Bullock’s automobile. There had been a snowfall during the preceding night and at the time of the occurrence in evidence there were patches of ice and snow on Washington Avenue. Washington Avenue is a four-lane street; two lanes for eastbound and two lanes for westbound traffic. Respondent was driving in the inside lane because there was less ice and snow in that traffic lane for eastbound traffic by reason of its use by prior traffic. As he approached the intersection of Pen-dleton Avenue respondent slowed down and brought his car to a stop to allow a truck on Pendleton Avenue to cross the intersection. In doing so, he pulled slightly into the outside traffic lane on Washington Avenue so that there was sufficient room for other eastbound traffic to pass him without going into the westbound traffic lane on Washington Avenue. According to respondent, after he had his car stopped for a half minute to a minute, he was struck from behind by another motor vehicle driven by Mr. Bullock. Bullock testified that despite the fact he applied his brakes he could not stop his car from sliding and it slid a distance of about one or one and one-half car lengths into the rear of respondent’s car.

After the collision between the Bullock car and respondent’s car, both drivers exited from their respective motor cars and agreed to separate the two vehicles. Respondent moved his car forward and Bullock backed his car so that when it came to a stop it was approximately three feet from the center line of Washington Avenue, and both cars were straddling the two eastbound traffic lanes. Nevertheless, eastbound traffic continued to pass the two cars as they sat in the street by going partially into the westbound traffic lanes of Washington Avenue, while respondent and Bullock exchanged information about insurance and other matters. Respondent did not sustain any injury in this first collision.

With the two cars so situated and while the respective drivers were continuing their discussion with respondent standing to the side of his car nearest the center of Washington Avenue and leaning on the trunk of his car as he wrote down the information he was getting from Bullock — 5 or 10 minutes after the initial collision — a .second collision occurred wherein Mr. Thornton, the operator of the third car involved, ran into the Bullock car pushing it into the respondent’s car, knocking respondent away from his car and causing him to sustain the injuries for which damages were sought in this case.

On appeal Bullock contends that the trial court erred 1) in failing to sustain his motion for a directed verdict for the reason that his negligence in colliding with the rear of respondent’s automobile was not the proximate cause of the injuries sustained by respondent, or in the alternative, 2) that he is entitled to a new trial on the issues of damages or an order of remittitur (a) by reason of an alleged error in the giving and submitting to the jury MAI 4.01 instruction on damages, and (b) the damages awarded respondent were so excessive as to be the result of mistake or honest error by the jury. Because we hold that the trial court erred in failing to sustain appellant Bullock’s motion for a directed verdict at the close of the plaintiff’s evidence we reverse the judgment as to appellant Bullock, and we do not reach the merits of the other points he relies on in this appeal.

Paragraph 2 of respondent’s Amended Petition — on which the cause came on for trial — alleged that Mr. Bullock “negligently and carelessly drove and operated his automobile in an eastwardly direction on Washington Avenue and into collision with the rear end of plaintiff’s vehicle.” In Paragraph 5 of this Amended Petition he also pled that the “defendants were negligent and careless in the following respects,” which, in shortened form were: 1) excessive speed under the circumstances, 2) permitting the front end of their automobiles to collide with the rear end of the automobiles directly in front of them, and 3) failure to keep and maintain a lookout ahead and laterally.

Respondent submitted his case against Mr. Bullock to the jury on the ground that Mr. Bullock was negligent in permitting his automobile to come into collision with the rear of Dr. Strake’s automobile and that negligence either directly caused damage to Dr. Strake or combined with the acts of Mr. Thornton to directly cause damage to Dr. Strake. By this submission all other grounds of negligence against Mr. Bullock were abandoned, and on appeal our inquiry is whether respondent proved a submissible case on the charge submitted to the jury. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 95[4, 5] (banc 1941); Herr v. Ruprecht, 331 S.W.2d 642, 647[2] (Mo.1960); Bolhofner v. Jones, 482 S.W.2d 80, 82 (Mo.App.1972).

The issue becomes whether Mr. Bullock’s negligent conduct in permitting his automobile to come into collision with the rear of Dr. Strake’s automobile, either alone or combined with the negligence of Mr. Thornton in colliding with the rear of Mr. Bullock’s automobile some 5 to 10 minutes after the initial collision between Mr. Bullock’s automobile and Dr. Stake’s automobile was the proximate cause of Dr. Strake’s injuries.

The general rule is that a defendant need not be the sole cause of plaintiff’s injuries for liability for said injuries to be imposed; liability attaches if his negligence combines with another’s to produce the injuries for which damages are sought. Dulley v. Berkley, 304 S.W.2d 878, 882[5] (Mo.1957). Where two or more persons, acting independently are guilty of consecutive acts of negligence which are closely related in point of time, whether they are liable for the injuries sustained by the plaintiff jointly or severally becomes a question of proximate cause. “The proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause, produces the event and without which the event would not have occurred.” King v. Ellis, 359 S.W.2d 685, 688[2] (Mo.1962). Generally, an efficient, intervening cause is a new and independent force which so interrupts the chain of events that it becomes the responsible, direct, proximate and immediate cause of the injury but it may not consist merely of an act of concurring or contributing negligence. Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824[3] (Mo. banc 1956), Penberthy v. Penberthy, 505 S.W.2d 122, 127[6] (Mo.App.1974). The practical test of proximate cause is generally considered to be whether the negligence of the defendant is that cause or act of which the injury was the natural and probable consequence. Dickerson v. St. Louis Public Service Co., supra, l. c. 824[4]. In deciding whether a plaintiff’s injuries were caused by defendant’s negligence each case must be decided on its own independent facts and it is seldom that one decision controls another. Price v. Seidler, 408 S.W.2d 815, 820[3] (Mo.1966).

Both appellant Bullock and the respondent have cited a number of cases in support of their respective positions on appeal. It would serve no purpose to review each case, its factual situation, and holding here. For those interested in reading those authorities, we have included them in a footnote. The evidence here shows clearly that respondent sustained no personal inju-ríes as a direct result of the first collision, and he has made no claim for any property damages sustained by the collision of Mr. Bullock’s car with the rear end of his motor vehicle. All of the injuries which are the basis for damages respondent seeks to recover followed the second impact some 5 or 6 minutes after the initial collision and while the drivers of both of those cars were standing in the public street discussing the occurrence of the first collision. For respondent to recover against Mr. Bullock for the injuries he unquestionably sustained in the second collision, it is necessary that he establish that the negligence of Mr. Bullock “concurred” with the negligence of Mr. Thornton to cause his injuries.

We conclude from the evidence in this case that the negligence of Mr. Thornton in colliding with the car of Mr. Bullock and pushing it forward into the car of Dr. Strake causing Dr. Strake to be knocked to the pavement and sustain injury was, as a matter of law an independent intervening act of negligence for which Mr. Bullock was not liable. The distinction between a “concurring” negligent act and an “intervening” negligent act is not always clearly defined. However, the term “intervening” in a case of this type is used in the concept of time and refers to “later events.” Here, Mr. Bullock’s negligence, permitting his vehicle to come into collision with the rear of Dr. Strake’s motor car, had culminated 5 to 10 minutes before Mr. Thornton’s car collided with the rear of Mr. Bullock’s ear. In the intervening 5 to 10 minutes both Mr. Bullock and respondent had time to move their motor vehicles so as to separate them by a distance of approximately six feet, get out of their respective cars again and begin exchanging identification information as respondent stood in the street on the driver’s side of his car and leaned on the trunk of his own motor vehicle while writing down the information he was obtaining. Here, where Mr. Thornton should have become aware of the existence of a potential danger created by the negligence of Mr. Bullock and thereafter have avoided colliding with the rear end of the Bullock motor vehicle — an independent act of negligence —Mr. Bullock is relieved of liability since the condition created by him was merely a circumstance of the accident and not its proximate cause. Duke v. Missouri Pacific Railroad Company, 303 S.W.2d 613, 617[4] (Mo.1957). We hold, therefore, that respondent did not make a submissible case against Mr. Bullock and the judgment of the trial court awarding damages against Mr. Bullock is reversed.

Gary L. Thornton, the employee, and R. J. Reynolds Tobacco Company, the employer, present a single point of alleged error for review: that the trial court erred in not sustaining their separate Motions for a New Trial on the ground that the jury verdict was so excessive as to indicate bias, passion and prejudice on the part of the jury or was the result of mistake or honest error in judging the nature and extent of the injuries sustained by the respondent. We find no error and affirm.

In considering whether a verdict, after the trial court has sustained it, is excessive, an appellate court will consider the evidence which tends most strongly to support the verdict and will disregard evidence to the contrary. Sanders v. Illinois Central Railroad Co., 364 Mo. 1010, 270 S.W.2d 731, 738[9] (banc, 1954), Shaffer v. Kansas City Transit, Inc., 463 S.W.2d 606, 609[2] (Mo.App.1971). In determining whether such judgment is excessive, the appellate court must consider the nature and the extent of the injuries, pain and suffering attendant thereon, and the injured person’s disability as affecting his earning capacity, past and future, with due regard for prevailing economic conditions and the current inflationary trend. Sanders v. Illinois Central Railroad Co., supra, l. c. 740[12].

Neither of the appellants offered any evidence in the trial court. The evidence viewed most strongly in support of the jury verdict is that respondent at the time of the occurrence was 71 years of age with a life expectancy of 11.28 years. By profession he was a dentist who was still working full time as a specialist in the field of prostho-dontia and implantodontia — i. e. “implant dentistry.” To his knowledge he was the only dentist in the St. Louis area practicing implantodontia. Since 1951 the respondent has been under the care of Dr. Francis Paletta, a plastic surgeon, and has undergone a number of surgical operations for the removal of ulcers on the fingers of his hand which Dr. Paletta attributed to the use of x-rays in the practice of respondent’s dental specialties. The first operation occurred in 1951 and involved the thumb of Dr. Strake’s right hand. In October of 1965, an ulcer on this hand was removed and a skin graft performed. In 1966 surgery was performed on his maxillary gland, but this did not involve any cancerous tissue. In January, 1972, Dr. Paletta performed an axillary resection on the arm-pit of respondent because the cancer on his finger metastasized and produced a malignant node in the axilla of his right arm. Shortly thereafter some skin grafting was performed and scarring was still present at time of trial. In January of 1973 Dr. Palet-ta excised a small cancerous lesion from respondent’s right arm.

As a result of the occurrence of February 15, 1973, respondent sustained a comminut-ed fracture of the proximal end of the upper end of the humerus. Although the insertion of a prosthesis consisting of a stainless steel or vitalium ball into upper portion of his arm bone was considered, the history of the cancer was a counterindication and therefore this surgery was never performed: He received conservative treatment from one Doctor, Dr. Mirbaha, consisting of placing his arm in a sling, injection of xylocaine, and was advised to use certain minimal kinds of exercises to loosen up the shoulder. He saw Dr. Mirbaha three to five times.

Dr. Paletta, who was continuing to see respondent because of the cancer, testified that when he saw respondent in March, 1973, x-rays revealed that the ball of the humerus was almost jammed on top of the long portion of the bone which comprises the arm; it was a “bunch of pieces of bone.” The humerus was dislodged and comminuted. He described the injury as a “fracture of the arm and shoulder involving the bones that comprise the shoulder joint.” He too testified that the course of treatment for respondent was a “conservative-supportive type of treatment,” having him place his right arm in a sling and administering pain pills. On October 2, 1973, a nodule which was attached to the axillary vein of respondent’s right armpit was excised and on December 18, 1973, he had an “incision of cancer of right arm.”

At trial Dr. Paletta testified that respondent’s right hand, forearm, arm and shoulder — “all of it together” — has very limited function and respondent could not use it as he did prior to the occurrence of February 15, 1973. Respondent’s arm, forearm and hand were swollen and he has to wear an elastic stocking to keep the swelling down when he works. The size of his right arm and forearm is much greater than the size of his other arm because, of the swelling which has become “hardened.” This swelling, Dr. Paletta testified, produces pressure on both the blood vessels and the nerves so that circulation is not good and respondent experiences peculiar sensations in the nerves of the fingers. According to Dr. Paletta, respondent has the following residuals from the fracture of his right shoulder which he sustained on the 15th day of February, 1973: 1) a great interference with the motion of the right hand, 2) a swelling of the entire right arm, forearm, and arm, and 3) a great limitation and loss of strength because he has a “frozen shoulder” with limited motion of the right shoulder joint. He further testified that this injury is a painful one and is permanent. He opined that at time of trial respondent had a loss of efficiency of 75% to 80% as a result of these injuries. It is hard for the respondent to work because of his shoulder; he is limited in how far he can reach and is also slower in his work. None of the disabilities experienced by respondent were referable to the surgery occasioned by cancer in his right arm.

Respondent testified that he lost 4 to 6 weeks from his office as a result of this injury. He was required to pay a woman to answer his telephone calls and refer them to other dentists for a total of $600.00. According to his income tax returns his earnings from his professional practice were as follows:

1968 - $24,714.78
1969 - 27,077.92
1970 - 28,021.28
1971 - 23,747.23
1972 - 18,290.49
1973 - 14,308.03

Some of the reduced income from his practice in 1972 and 1973 was admittedly the result of time lost due to surgery performed on him for the cancerous condition of his right arm. He missed ten days to two weeks from his practice in 1973 due to the cancer and the surgical procedures it required. He further testified that since the automobile collision his injuries have affected his practice because he cannot see as many patients as he could prior thereto and he works longer hours to achieve the same amount of work. He now works at only 75% to 80% of his efficiency because of his injuries.

At the time of trial respondent’s evidence was that he has sustained a 65% to 70% permanent loss of the use of his right arm at the shoulder. He cannot lift anything with his right hand because he has no strength in it nor in his right arm. He cannot perform many of the daily personal functions requiring the use of his right hand, e. g. combing his hair, dressing and undressing, shaving, carrying packages, etc. He cannot play golf. If he wants to lift his right hand he must raise it with his left hand. At trial he was asked to raise his right arm and he did so. The jury was able to observe this. In addition to the injuries to his right shoulder discussed above, he sustained bruises and contusions to the right side of his body when the Thornton automobile collided with the Bullock car, but these have healed.

It is common knowledge that there is no precise formula for gauging whether a verdict is excessive and that each case must be decided upon its own particular facts. Goodman v. Missouri Pacific Railroad Company, 312 S.W.2d 42, 49[8] (Mo.1958); Zipp v. Gasen’s Drug Stores, Inc., 449 S.W.2d 612, 622 (Mo.1970). Appellants cite a number of cases in support of their contention that this verdict is excessive; all but three are from the 1950 era or prior thereto. The latest case cited, Shaffer v. Kansas City Transit, Inc., 463 S.W.2d 606 (Mo.App.1971), involved a judgment for a woman school teacher who sustained injuries to the del-toid muscle and ligaments leading into the humerus at the left shoulder with a resultant “green bone.” An award of $15,000.00 was approved. Respondent cites cases which have upheld verdicts of $50,000.00 and above; but like those cited by appellants none are “white horse cases.”

Appellants have failed to support their claims of “bias, passion and prejudice” with any evidence other than the size of the verdict. We therefore find no bias, passion and prejudice on the part of the jury.

Whether the jury’s verdict was a result of mistake or honest error in judging the nature and extent of respondent’s injuries has already been considered by the trial court and ruled adversely to appellants’ contentions. An award for personal injuries should not, on appeal, be held excessive unless it would work a manifest injustice to let it stand. Rickard v. Pratt, 459 S.W.2d 13, 17[12] (Mo.App.1970).

We conclude that there is sufficient evidence in this record so that this verdict and judgment should not be held to be excessive and that permitting it to stand will not work a manifest injustice.

Pursuant to Rule 84.14, we reverse the judgment as to appellant Bullock and enter judgment in his behalf in this court. We affirm the judgment with respect to appellants Gary L. Thornton and R. J. Reynolds Tobacco Co.

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

      . Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240 (1955), Greenwood v. Vanarsdall, 356 S.W.2d 109 (Mo.App.1962), Linneman v. Freese, 362 S.W.2d 585 (Mo.1962), Duke v. Missouri Pacific Railroad Company, 303 S.W.2d 613 (Mo.1957), Brassfield v. Sears, 421 S.W.2d 321 (Mo.1967), Knollman v. Kennedy, 429 S.W.2d 775 (Mo.App.1968), Cohagen v. Laclede Steel Company, 317 S.W.2d 452 (Mo.1958), Bauer v. Holtkamp, 389 S.W.2d 850 (Mo.App.1965), Cluck v. Snodgrass, 381 S.W.2d 544 (Mo.App.1964), Leek v. Dillard, 304 S.W.2d 60 (Mo.App.1957), Seeley v. Hutchison, 315 S.W.2d 821 (Mo.1958), Green v. Kahn, 391 S.W.2d 269 (Mo.1965), Terry v. Sweeney, 420 S.W.2d 368 (Mo.App.1967), and Goddard v. St. Joseph Light & Power Company, 379 S.W.2d 565 (Mo.1964).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles McNEAL, Defendant-Appellant.
    No. 36711.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 13, 1976.

      Charles D. Kitehin, Public Defender, James C. Jones, Henry Riecke, Asst. Public Defenders, St. Louis, for defendant-appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Charles McNeal, appellant, was convicted of feloniously selling a Schedule I Controlled Substance — Heroin—in violation of § 195.020 RSMo. 1969 and sentenced to imprisonment in the custody of the Missouri Department of Corrections. § 195.200(4) RSMo. 1969. He appeals contending that his conviction should be reversed and he should be discharged or, in the alternative, his conviction should be reversed and the cause remanded for a new trial. We affirm the judgment of the trial court.

On appeal Mr. McNeal alleges that the trial court was guilty of error in: 1) permitting the substitution of an information wherein the date of the offense charged was changed from December 1, 1973, as pleaded in the indictment originally filed in the Circuit Court of the City of St. Louis, to December 2, 1973, and thereby “prejudiced substantial rights of the defendant.” 2) in overruling his motion for judgment of acquittal at the close of all of the evidence because the evidence was insufficient to prove that he was involved in the sale of heroin on December 2, 1973, beyond a reasonable doubt; and 3) in denying his motion for mistrial when the prosecutor introduced testimony that the police officer, Richard C. Hemphill, attempted to purchase heroin from him in November of 1973, and in permitting, over his objections, evidence of unrelated crimes.

With respect to appellant’s first point, this proceeding was instituted by the filing of an indictment in the office of the Clerk of the Court for Criminal Causes of the City of St. Louis charging that the offense was committed on December 1, 1973. On November 18,1974, by leave of court, a Substitute Information in Lieu of Indictment was filed charging appellant with the Illegal Sale of a Schedule I Controlled Substance— Heroin — on December 2, 1973 and on November 20,1974, the cause came on for trial on this Substitute Information. Prior to the commencement of the trial a conference was held in the chambers of the trial court at which time the Assistant Circuit Attorney outlined what had occurred with reference to the endorsement of two additional witnesses after the filing of the original indictment and the filing of the Substitute Information in Lieu of Indictment aforesaid. He stated to the trial court that he noticed that day that the State had not endorsed those two witnesses on the “new information” and he was therefore filing “another memorandum with the Court, endorsing” those two witnesses — -Robert Roither and Thomas Marren, from the St. Louis County Police Department. The trial court inquired of appellant’s counsel if he had any objection to those actions outlined by the State’s attorney and he replied that he had no objection. The trial court thereupon announced that leave would be granted to add the endorsements, that leave had already been granted to file the substitute information, and inquired if there were any other matters that should be taken up. Appellant’s counsel replied that he would like for the record to show that prior to the filing of the substitute information his client maintained that he was normally baby-sitting for his sister’s children during the time this alleged crime occurred, but with the change of date as pled in the substitute information his client said he would not have been baby-sitting on that date because his sister would not have been working. However, although the record indicates that the question of alibi might have been discussed on November 18, 1974, when the trial court granted leave to file the substitute information, whatever that discussion constituted is not a part of this record and we would have to speculate as to its contents. Suffice it to be said, however, that other than this statement by defense counsel that the change of date ruled out the alibi appellant might have attempted to establish so long as the date of the offense was allegedly December 1, 1973, no objection to the filing of the substitute information nor to proceeding to trial on it was lodged. No request for a continuance so that he might prepare his defense, nor for any other reason, was voiced at that time.

We have searched the Motion for New Trial filed in this cause for any reference to this point as a grounds for new trial in the trial court but this point is nowhere to be found therein. It is fundamental that where an appellant fails to make known to the trial court his objection so that he might obtain relief and where he fails to call this alleged error to the attention of the trial court in his motion for new trial, he cannot, with a few exceptions, raise it for the first time on appeal. State v. Bowens, 476 S.W.2d 495, 498[5] (Mo.1972), State v. Henderson, 510 S.W.2d 813, 821[12] (Mo.App.1974), Rule 27.20(a) V.A.M.R. Where a defendant proceeds to trial on a substitute information without making known his objections prior to trial, he cannot complain of error, if any, in that respect on appeal. State v. Cook, 333 S.W.2d 337, 340[7] (Mo.App.1960), State v. Maxie, 513 S.W.2d 338, 340[1] (Mo.1974). Furthermore, the appellant utterly fails to show how he was prejudiced by this change in dates. He took the stand in his own defense and denied that he had ever seen Officer Hemphill prior to the day of trial and further testified that on December 2,1973, he was at home watching a football game because that was his custom to watch football games on Sunday afternoons. He had no independent recollection of this particular Sunday, but it was his habit to spend his Sunday afternoons watching football games. He denied that he had ever been involved in the sale of heroin. At no time has this appellant contended that he was denied any defense to this charge by the change in date. We rule this point against appellant.

With respect to appellant’s second point — that there was insufficient evidence to support his conviction — we view the evidence in a light most favorable to the jury verdict, taking all of the State’s evidence as true and considering the inferences most favorable in support thereof. Viewed in this light, the jury could have found from the State’s evidence that on Sunday, December 2, 1973, Richard C. Hemphill, was a Detective employed by the St. Louis County Police Department as an undercover narcotics agent who performed his duties wearing old clothes, long hair and a beard. That sometime in November, 1973, he had struck up an acquaintance with the appellant through an informant, and at approximately 11:45 or 11:50 a. m. on that Sunday morning he came into the City of St. Louis with $150.00 in his possession for the purpose of purchasing some drugs. He also had another party — an informant — with him at the time. He drove his car to the vicinity of Vandeventer and Aldine in the City of St. Louis and parked his automobile there, remaining behind the wheel of his car. Appellant, whom Hemphill identified as “McNeal,” came out of a residence near where he was parked and walked onto a vacant filling station parking lot, came over to the car in which Hemphill was seated, and got into the back seat. Hemphill was then introduced to appellant and asked him if he could get some heroin. Appellant replied that he could, and a discussion followed relative to the quality, the color, and “how many times it would be stepped on.” Appellant then directed Hemphill and the informant to a residence located near the intersection of Fall and Cottage Avenues, and upon arriving there Hemphill gave appellant the $150.00 to purchase the drugs. Appellant got out of the car, entered the residence, but returned shortly, stated that there was no one at home, and suggested that he might be able to get some heroin at another location. Appellant then directed Hemphill to the intersection of Jefferson and Sullivan Avenues in the City of St. Louis, where Hemphill parked the car on Sullivan Avenue and the appellant exited the car and went into a residence at either 2532 or 2534 Sullivan Avenue. Five or ten minutes later the appellant returned to the car and handed Hemphill a tinfoil packet which, upon examination, was determined to be satisfactory to Hemphill. As part of his compensation for getting the heroin for Hemphill, appellant took a pinch of the heroin in his fingers. Appellant, who up to this point had been attired in jeans and a jean jacket, re-entered the residence on Sullivan Avenue and returned to the car wearing a leather type jacket. When asked about the leather type jacket, appellant answered that he owed “the guy inside” some money and that he had paid the man and got the jacket back. Hemphill then asked the appellant if there was someplace he could drop him off; appellant told him to drop him off right up the street on Grand Avenue because he had some business to conduct there. Hemphill then drove appellant to Grand Avenue where he let him out of the car.

Hemphill labeled the tinfoil package and its contents and packaged it as evidence, put it in his evidence locker, sealed it, and on Monday morning, December 3,1973, took it to the St. Louis County police laboratory where he surrendered it to Robert Roither, a chemist, who took custody of the evidence envelope and its contents until later that same day when he delivered it to Thomas Marren, a criminalist employed at the police laboratory.

Thomas Marren testified that he was employed as a criminalist by the St. Louis County Police Department when, on December 3, 1973, he received an evidence envelope from Officer Roither which he placed in an evidence locker until December 20, 1973, when he opened the evidence envelope, examined its contents and found a tinfoil package containing a beige powder. He tested this beige powder with chemicals, instruments and thin-layer chromatography and concluded that it was heroin.

Appellant’s argument that the State’s evidence is insufficient to prove beyond a reasonable doubt that he was involved in the sale of heroin on December 2, 1973, is based upon what he argues are contradictions in the testimony of the only eyewitness to the alleged sale produced by the State which contradictions, he argues, destroy Hemphill’s testimony so that it cannot support a conviction.

Richard C. Hemphill was the only State’s witness to testify to the illegal sale of the heroin. On direct examination he testified that the sale took place on December 2, 1973, and identified the defendant as “McNeal.” He pointed him out as the man “Sitting next to the attorney at the table,” and as the “Negro male, with the brown short-sleeve shirt.”

On cross-examination, appellant’s counsel inquired if Hemphill knew appellant’s first name, and he replied: “Oscar.” It was later developed in evidence that there are two McNeal brothers, “Charles” — the appellant — and “Oscar.” Further cross-examination developed that the police report of the offense signed by Hemphill reported the date of the crime as December 1, 1973 and that both the evidence envelope and the evidence seal on the tinfoil packet containing the heroin bore the date “12-1-73.”

These inconsistencies in Hemphill’s testimony were, in some instances at least, explained, and go only to the weight of his evidence. He explained the date on the police report by testifying that he did not type the police report; that report was typed by a juvenile officer secretary who prepared it from a tape cassette made by him. He acknowledged his signature on the police report but insisted that the date of this offense was December 2, 1973, despite what the police report said. With respect to his use of the name “Oscar” in response to defense counsel’s inquiry, there was other evidence in the case that Hemphill had met Charles McNeal in November, 1973, and December 2,1973, was the second occasion on which he had seen the appellant. On each occasion the appellant was in his presence for approximately one hour. This sale, on December 2, 1973, was made in broad daylight.

Defense counsel in cross-examination made use of some testimony given by Hemphill to the Grand Jury on February 12, 1974, wherein Hemphill was asked if sometime subsequent to “both transactions” he met Charles McNeal. His response, as transcribed in his testimony before the Grand Jury, was: “Yes, we called Oscar and wanted to buy some more stuff and he said he was going to go to Illinois and to call his brother and he would call him and set it up so his brother would take us to get some stuff and this was on a Saturday morning.” The witness stated that he did not recall that this was his testimony before the Grand Jury, but he did not deny that it was. However, he persisted in his testimony that the sale took place on December 2, 1973. On re-direct examination, the prosecutor developed from Hemphill that he had bought heroin from both of the McNeal brothers, Charles and Oscar, and had contacts with them five or six times — two or three with Charles — and each one of these contacts lasted for about an hour. He also testified that when he gave testimony before the Grand Jury he was testifying about both Charles and Oscar McNeal and one Anna Jean Mize, a man by the name of Spiegel and a girl by the name of Julia McCabe; five different individuals and eleven drug sales.

Eyewitness testimony by a single witness, if believed by the jury beyond a reasonable doubt, is sufficient to support a conviction since the credibility of the witnesses and the weight of the evidence is for the jury. State v. Tucker, 451 S.W.2d 91, 95[5] (Mo.1970), State v. Graham, 527 S.W.2d 936, 947[15] (Mo.App.1975). Officer Hemphill testified on direct examination that the date of the sale was December 2, 1973, and that “McNeal,” whom he pointed out as the man seated next to counsel at the table, was the man who made the sale. The alleged contradictions in Hemphill’s testimony came out in cross-examination. Despite the answer that defendant’s first name was “Oscar,” we conclude that there is sufficient evidence from which the jury could conclude that this was a “slip-of-the-tongue” clarified by other testimony of the witness and his identification of the appellant as the person who made the sale. The difference in the date of the alleged offense as it appeared in the police report and on the seal was in effect an attempt at impeachment by what purports to be prior inconsistent statements of this witness. Impeaching they may have been, but under Missouri law they may not be taken as substantive evidence of the fact that the crime did occur on December 1,1973. State v. Granberry, 491 S.W.2d 528, 531[3] (Mo. banc 1973), State v. Rippee, 512 S.W.2d 235, 237[1] (Mo.App.1974). Nor is it clear that the excerpts from the Grand Jury testimony of Officer Hemphill used by defense counsel in his cross-examination, contradicted his testimony at trial. We conclude that the inferences to be drawn from said testimony should be left to the jury.

It is not the function of an appellate court to weigh and evaluate the evidence. It is the function of the trial jury to do that and to determine from the evidence the guilt of the defendant in a criminal case beyond a reasonable doubt. State v. Kramer, 534 S.W.2d 281, 282[2] (Mo.App.1976). We rule this point against appellant.

Appellant’s third, and final point, that the trial court erred in denying his motion for mistrial is likewise without merit. The incident appellant refers to was occasioned by an answer to a question propounded by the prosecutor on direct examination relative to what was the occasion on which Hemphill first saw the appellant in November, 1973. The witness answered: “I attempted to purchase some heroin from him.” Counsel for the appellant immediately voiced his objection on the ground that appellant was charged with the sale of heroin on December 2,1973 and the witness “is talking about something back in November.” This objection was sustained. A request was then made that the jury be instructed to disregard the question and answer, and this request was granted and the jury was so instructed. Counsel then requested a mistrial and the trial court denied this request.

The granting of a mistrial is a drastic remedy that should be exercised only in extraordinary circumstances where the incident is so grievous that the prejudicial effect of the evidence which came in can be removed in no other way. Not every error which might occur in trial requires the granting of a mistrial. State v. Nolan, 423 S.W.2d 815, 818[11,12] (Mo.1968), State v. Barnes, 517 S.W.2d 155, 166[16] (Mo.1974). In fact, this evidence did not tend to introduce evidence of another crime committed by the appellant, rather it redounded to his benefit because the witness’ testimony left the indelible mark that despite the police officer’s efforts to make a purchase, his attempt apparently fell on deaf ears of the appellant and was unsuccessful.

Although not specifically set out in this point, other than as alleged error “in permitting, over defendant’s objections, evidence of unrelated crime,” appellant also argues that the trial court erred in admitting into evidence testimony relative to pri- or dealings with the appellant, his brother and other associates concerning drug transactions and in permitting the prosecutor to argue to the jury that appellant, his brother, and three associates were involved in the sale of heroin to Hemphill.

Counsel for appellant attacked Detective Hemphill’s identification of his client as the man who sold the heroin to him and also attempted to impeach him relative to the date on which the sale took place. On re-direct examination the prosecutor developed from this witness that there were two McNeal brothers, Oscar and Charles, and that he had made contact with both of them and bought heroin from both of them. No objection was made to this line of inquiry. When the witness was asked if he had come in contact with any of their other associates, counsel objected on the ground that it was not appellant’s brother or associates who were on trial and that any testimony adduced about others tended to prejudice the jury against his client. This objection was overruled on the ground that “the question is now before the jury, and I think you opened it up a little bit as to the question if there has been a proper identification, . . . ” The witness then testified that he had met a brother-in-law of the appellant whose name he did not recall and a half-dozen associates whose names he did not know.

Further re-direct examination of the detective was directed to the witness’ appearance before the Grand Jury on February 12, 1974, and he testified, without objection, that on that occasion he gave testimony about five different defendants and among these were Oscar and Charles McNeal.

On re-cross examination defense counsel again interrogated Detective Hemphill about how many times he had seen appellant, the number of “dealings” he had with Oscar and with Charles, and the fact that he had made two drug purchases from Oscar and one from Charles.

On re-direct examination a witness may properly be examined on any matters which tend to refute, weaken or remove inferences, impressions, implications, or suggestions which might have resulted from his testimony on cross-examination although the facts brought out may be prejudicial to the defendant. State v. McKinney, 475 S.W.2d 51, 54[2] (Mo.1971). While the general rule is that proof of the commission of separate crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial, there are some well established exceptions to this rule which are as well established as the rule itself. One of these well established exceptions is where the identity of the person charged with the commission of the offense for which he is then on trial is in issue. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (1954). The details of the sales were not delved into and objections, when made, were not timely nor directed to the admissibility of evidence of other offenses, the grounds now espoused. We find no error.

Appellant also makes reference to portions of the prosecutor’s argument that the appellant, his brother and three associates were involved in making sales of heroin to Detective Hemphill under this point and contends that the prejudice in this line of argument was that it led the jury to conclude that the appellant was engaged in illegal activity. The argument referred to here was:

“The officer said he was not only purchasing heroin from this defendant, but from this defendant’s brother and three other associates of these two brothers. There was a whole little group of them working together - -

Appellant’s counsel objected on the grounds that the prosecutor was “indicating that there is some type of conspiracy, a drug ring going on here.” This objection was sustained. He requested no further relief, and obtained that relief he did ask for. We find no error here either.

We have examined those portions of the record as required by Rule 28.02 and find them to be sufficient.

The judgment of the trial court is affirmed.

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

      . This term, Detective Hemphill testified, means “cutting” the drug’s purity by adding flour or some other “mixer.”


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ernest Wesley McKNIGHT, Defendant-Appellant.
    No. 37272.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 13, 1976.
    Robert C. Babione, Public Defender, Joseph F. Beatty, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted of stealing property of the value of at least $50.00 and sentenced under the Second Offender Act to nine years in the Department of Corrections. Defendant contends that his opportunity for a fair trial was prejudiced by the improper admission of the hearsay testimony of Patrolman Kiefer to the effect that defendant had been retained in custody after the identifying witness, Mrs. Coleman, had looked at him. We affirm the decision of the trial court.

On October 30, 1974, at approximately 7:45 p. m., defendant entered Lindell Plaza Coffee Shop in the City of St. Louis. About fifteen minutes later he left with one of the customers. Within a few minutes they returned and defendant asked the cook-cashier, Mrs. Coleman, how much money was in the cash register. When she did not reply, he jumped up and said he was going to shoot her, ordering her to give him the money. He reached in and out of his partially unbuttoned shirt and threatened to blow her head off. Finally, defendant reached over the counter, opened the cash register, removed $105.81, and ran out. Mrs. Coleman ran to the door where she saw him drive away.

Patrolman Kiefer who had stopped defendant for a traffic violation at about 7:15 that same evening heard the description of the car and suspect come in over his radio. He patrolled the area and saw defendant’s car at about 4200 Lindell (two blocks from the scene of the crime). Mrs. Coleman was taken to the car and she identified it. Defendant was arrested when he returned to the car about thirty minutes later. He was taken to the Coffee Shop for identification. Mrs. Coleman positively identified him at the trial.

Defendant contends that the following testimony was improper hearsay which prejudiced his chances for a fair trial:

“Q (by the prosecutor) Was Mr. McKnight taken back to the coffee shop?
A (by Patrolman Kiefer) He was.
Q And by whom was that done, if you recall?
A He was taken back by myself and Officer Rogoz.
Q When he was taken back to the coffee shop, can you tell me whether or not Miss Coleman looked at him, just answer yes or no.
A Yes.
Q Okay. After she looked at him was he retained in custody, kept in custody?
A Yes.
MR. BEATTY: Your Honor, I’d like to object at this time. Can we approach the bench?”

Defendant’s objection and motion for a mistrial were overruled. No motion to admonish the jury to disregard was made.

Ordinarily the testimony of a third person who heard or observed the extra judicial identification of an accused by the identifying witness as to the fact of such identification is inadmissible hearsay. State v. Degraffenreid, 477 S.W.2d 57, 62[12] (Mo. banc 1972). The trial court properly noted this fact and warned the prosecutor that this could be considered an attempt to elicit such evidence. The court, however, in declining to grant a mistrial, indicated that no error prejudicial to defendant had occurred under the facts of the case.

To preserve error for review on appeal, it is necessary that an objection to a question put to a witness must be made before an answer is elicited. No objection to a responsive answer made to a question not objected to can be urged on appeal unless it is apparent that counsel had no opportunity to object. State v. Maxwell, 502 S.W.2d 382, 396[19] (Mo.App.1973); State v. Simmons, 500 S.W.2d 325, 328[2-6] (Mo.App.1973). Counsel for defendant did not object until the answer was given and gave no indication that the witness’s answer came before his objection could be voiced. This point is therefore not preserved for review.

It is also clear that inclusion of this testimony does not constitute plain error under Rule 27.20(c). The inclusion of this testimony is harmless since Patrolman Kiefer did not state that defendant had been identified by Mrs. Coleman. State v. Roberts, 535 S.W.2d 119, 120[1] (Mo.App.1976); State v. Few, 530 S.W.2d 411, 414[3] (Mo.App.1975). The evidence of defendant’s guilt was clear and convincing. No manifest injustice or miscarriage of justice has resulted.

The judgment of the trial court is affirmed.

McMILLIAN and RENDLEN, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Milton GATLIN, Jr., Defendant-Appellant.
    No. 37518 (36804).
    Missouri Court of Appeals, St. Louis District, Division One.
    July 13, 1976.

      James C. Jones, G. Jeffrey Lockett, Asst. Public Defenders, St. Louis, for defendant-appellant.
    Preston Dean, Robert H. House, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted of burglary in the first degree, robbery in the first degree, and two counts of assault with intent to maim with malice. He was sentenced to fifteen years in the custody of the Department of Corrections on each count, the sentences to run concurrently.

The charges against the defendant arose out of an episode which occurred just after midnight of April 16, 1974, in the very first few minutes of April 17, 1974. Mr. and Mrs. Joseph Lewandoski were awakened at their apartment by a loud voice. Suddenly the door of the apartment was broken open. Mr. and Mrs. Lewandoski were assaulted and some of their money and other possessions were taken from them.

Defendant’s first contention is that his opportunity for a fair trial was prejudiced because of surprise which occurred when evidence revealed that the crimes charged were committed at a different time than the defendant had been led to believe. Defendant presented evidence of an alibi for the night of April 17-18, 1974, whereas the crimes had actually occurred on April 17 just after midnight. A review of the evidence and other matters which set the time of the occurrence could leave the impression that the crimes were committed about midnight of April 17, 1974, rather than the early morning hours of that date during the previous night. For instance, in certain grand jury testimony of Joseph Lewandoski which had been furnished to defendant at his request, a leading question had been asked of the witness as to whether the crimes were committed in the early morning of the 18th and the witness responded in the affirmative. One of the investigating officers testified that he went to the Lewandoski apartment on April 17th about midnight. Both Mr. and Mrs. Lewandoski testified at the time of trial that the occurrence was approximately midnight on April 17. Such misinformation or misinterpretation as to the time of day, however, is clearly contradictory to many other sources of information which clearly indicated that the crimes occurred on April 17, 1974. The indictment charged defendant with committing the crimes on April 17, 1974. Defendant’s trial attorney was furnished with a copy of the police report which indicated that the crimes occurred on April 17, 1974 at 12:10 a.m. At the time of trial, the court informed the jury panel that the crime was one charged by the state to have occurred on April 17, 1974. The prosecutor in his opening statement informed the jury that the crime occurred shortly after midnight on April 17. Thereafter the first reference to the early morning of the 18th occurred on cross-examination of the investigating officer by defendant’s counsel when he was asked the leading question as to whether he arrived at the apartment on the morning of the 18th. On redirect, the officer was redirected to what had occurred on April 17. Another officer testified that he had investigated the crime on April 17, 1974 shortly after midnight. Mr. Lewandoski refers in his testimony to the occurrence as being on April 17, 1974 at approximately midnight. No reference was made to April 18, and he further testified that prior to midnight his door was kicked open. Mrs. Lewandoski, in response to a leading question on direct examination, indicated that she lived at the apartment on the 17th of April at approximately midnight, and further testified that she was attacked by the defendant on a Tuesday, which would have placed it on April 16, 1974. Furthermore, Mrs. Lewan-doski was admitted to the hospital following the assault upon her, as shown by the hospital records, at 1:02 a.m. on April 17, 1974.

Later, when defendant put on alibi witnesses, they were accounting for his presence at a place different from the scene of the crime on the night of April 17 — 18, and when this was brought out upon cross-examination of one of the witnesses, defendant’s counsel claimed surprise and asked the court for a mistrial.

As a general rule, surprise is not a ground for a new trial. State v. Henson, 290 Mo. 238, 234 S.W. 832, 834[6] (1921). The declaration of a mistrial has been described as a drastic remedy. The trial court should only exercise this power in extraordinary circumstances. State v. Brown, 528 S.W.2d 503, 506 (Mo.App.1975). The proper relief, once surprise occurs in the trial of the case, is to ask immediately for a postponement or continuance. State v. Biel, 169 S.W.2d 375, 376[1] (Mo.1943); State v. Hohensee, 333 Mo. 161, 62 S.W.2d 436, 438[3] (1933); State v. Henson, supra, 234 S.W. at 834[8]. Here, the defendant was granted a recess from about 3:00 p. m. until 9:30 the next morning. He made no claim that the time was insufficient nor that any new evidence had been found which would be helpful in his defense. His request for a new trial was based upon the assertion that the misleading effect of the irrelevant alibi which was presented was prejudicial, confused the jury, and denied him the right to a fair trial. But the only testimony which was adduced prior to this time by the defendant consisted of alibi witnesses who testified with respect to his presence away from the scene of the crime during the night of April 17-18. After the recess, he called upon a witness and took the stand himself to adduce evidence of his presence other than at the scene of the crime on the night of April 16-17. No complaint is made as to the sufficiency of the evidence to sustain the charges made against the defendant in the indictment, and we are more than satisfied of its sufficiency. Although irrelevant, the alibi testimony with respect to the night of April 17-18 could not have been prejudicial but merely strengthened defendant’s contention that he was not at or near the Lewandoski apartment either night.

Defendant’s second contention is that the trial court erred in permitting the prosecutor to impeach one of his witnesses. This occurred during the examination of a policeman who had been called to the victims’ apartment just after the robbery and assault, and had spoken to the victims at that time. In cross-examination, the defendant brought out the officer’s recollection of the conversation with the Lewandoskis immediately after his arrival. Some of this testimony ran counter to some of the testimony of the Lewandoskis, particularly with regard to whether one or two persons invaded their apartment and assaulted them. On redirect examination, the policeman testified that his recollection of the conversation came from notes that he had taken at the time. On recross-examination, he then testified that his testimony was not influenced by the report but it was his own independent memory. The state then questioned the officer as to how many reports he had written since that date and objection was made on the grounds that this was an impeachment of the state’s own witness. The objection was overruled and defendant contends error upon the statement of the general rule in State v. Castino, 264 S.W.2d 372, 375 (Mo.1954), where it was said: “ * * * it is the general rule that a party by calling a witness vouches for his credibility and will not be permitted to cross-examine or impeach him, except in case of entrapment, or where he is hostile.”

Defendant overlooks the fact, however, that this was not impeachment of the witness. Upon redirect examination, a witness may properly be interrogated as to any matter which tends to refute, weaken or remove inferences, impressions, implications or suggestions which might have resulted from testimony on cross-examination. State v. McKinney, 475 S.W.2d 51, 54[2] (Mo.1971). “Impeachment is directed to the credibility of the witness for the purpose of discrediting him. It ordinarily furnishes no factual evidence. Contradiction, on the other hand, is directed to the accuracy of testimony and supplies additional factual evidence to be considered along with such testimony.” Talley v. Richart, 353 Mo. 912, 185 S.W.2d 23, 26[6] (1945). The questions asked of the patrolman did not seek to arouse the hostility or suspicion of the jury. See State v. Sutton, 454 S.W.2d 481, 488[6, 7] (Mo. banc 1969). They sought to clarify the previous testimony and were not used for the purpose of discrediting the witness.

The judgment of the trial court is affirmed.

MeMILLIAN and RENDLEN, JJ., concur.


author: PER CURIAM.

text:
    Irene Carter THWEATT and her husband, Landon Lee Thweatt, Plaintiffs-Respondents, v. Elmer Fred HAEFNER, Defendant-Appellant.
    No. 9812.
    Missouri Court of Appeals, Springfield District.
    July 14, 1976.
    Motion for Rehearing or to Transfer Denied July 30, 1976.
    Application to Transfer Denied Sept. 13, 1976.
    Michael Avedisian, Andrew H. Avedisian, Paducah, Ky., for plaintiffs-respondents.
    Manuel Drumm, Sikeston, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   PER CURIAM.

The two-lane highway on which the accident in question occurred, U. S. Highway 60 in Mississippi County, Missouri, was “extremely wet” at the time of the collision. Appellant concedes that as he was rounding a curve at “sixty, sixty-five” miles per hour, his eastbound car skidded across the center line. Its left rear fin scraped the left side of respondents’ westbound truck. Respondent Irene Thweatt (hereinafter respondent) testified appellant’s car hooked the back bumper of the truck, forcing the truck down a thirty-five to forty foot embankment backwards. Appellant challenges the judgment entered on the $29,200 verdict awarded respondent. Our disposition of the appeal requires that we explore only one of the three points appellant raised.

Appellant contends that the trial court erred in giving respondent’s damage instruction in the unaltered form of MAI 4.01 because respondent suffered injuries in several separate occurrences between the time of the accident with appellant and the time of trial two and a half years later. The argument is that the word “occurrence” in the instruction should have been modified per the “Notes on Use” accompanying MAI 4.01 thereby limiting the jury's consideration to respondent’s injuries resulting from the September 3, 1971, collision caused by appellant.

Immediately after that collision, while still at the scene, respondent complained of neck and back pain. She was taken by ambulance to a hospital in Cairo, Illinois; later that same day she was transferred to Lourdes Hospital in Paducah, Kentucky. Her regular physician, Dr. David H. Leeper, diagnosed her condition as “acute neck sprain, low back sprain, muscle strain” and kept her hospitalized during the succeeding nine days.

Dr. Leeper testified that prior to September 3,1971, respondent was in good physical condition for a woman fifty-eight years old. He treated her continuously from September 3, 1971, until May 5, 1974, although she consulted three other physicians during that interim also. Dr. Leeper had written “no permanent disability anticipated” in a September 24, 1971, report. However, on July 7, 1972, he advised respondent to quit her job as a nurse’s aid “because of the difficulty [respondent] is having with her neck.” On the date of trial, May 22, 1974, Dr. Leeper still felt respondent was not capable of gainful employment.

The first in the series of “occurrences” unrelated to the mishap with appellant transpired within a month’s time of that September 3, 1971, event. On October 14, 1971, respondent visited Dr. Leeper complaining of pain in the left ankle following a fall at her home. Dr. Leeper applied a gelo cast, an elastic bandage and put respondent on crutches for eleven days. Respondent fell again on either September 1 or September 3, 1972. Dr. Leeper testified she “bruised her arm and knee and also [had] leg cramps at night.” A neurosurgeon, Dr. John D. Noonan, examined respondent on October 17, 1973. Approximately two weeks prior to that time she had fallen and hurt her left foot. In December, 1973, Dr. Leeper diagnosed respondent’s pain in the left front of the neck and left shoulder as acute bursitis.

When respondent was asked on direct examination to “briefly state to the jury and the court what type of ailments you have now, what you are complaining of so far as your physical condition is concerned,” she replied “I have a lot of pain in my low back and runs down my leg and in my neck and shoulders.” She had not worked, upon Dr. Leeper’s advice, since July, 1972. Her medical expenses totaled $1,953.14.

The preceding evidence, coupled with MAI 4.01 verbatim, certainly could have led the jury to believe that any one of the three falls or the bursitis was an “occurrence” which produced or contributed to injuries for which respondent should receive compensation when obviously she was only entitled to recover for injuries resulting, in whole or in part, from the collision. Thus, MAI 4.01 should have been modified in accordance with its “Notes on Use” to confine the jury to reflecting only on the results of the automobile accident. Failure to so modify was prejudicial error. Russell v. Terminal Railroad Ass’n. of St. Louis, 501 S.W.2d 843, 847[2] (Mo. banc 1973); Vest v. City National Bank and Trust Co., 470 S.W.2d 518, 521-22[2-3] (Mo.1971); Clark v. McCloskey, 531 S.W.2d 36, 38-40[4] (Mo.App.1975); Homm v. Oakes, 453 S.W.2d 679, 681-682 (Mo.App.1970); Jurgeson v. Romine, 442 S.W.2d 176, 177-78[4-5] (Mo.App.1969).

Due to the error in submitting respondent’s damage instruction, the case must be reversed. Retrial will be on all issues because of the impracticality of severing damages from liability. Vest v. City National Bank and Trust Co., supra, 470 S.W.2d at 522[3]; Jurgeson v. Romine, supra, 442 S.W.2d at 178[5].

Judgment reversed and cause remanded.

All concur.


text:
    Archie BUCKLEY, Movant, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 37212.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 20, 1976.
    Huck, Kasten & LaBeaume, Herbert A. Kasten, Jr., St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

On February 5, 1974, after employment of and consultations with retained counsel, movant pleaded guilty to four counts of robbery in the first degree and one count of shooting into a dwelling house. He was sentenced to ten years imprisonment on each count of robbery and three years imprisonment on the shooting offense. The sentences were ordered to run concurrently. On February 3, 1975 he filed a motion to vacate and set aside the conviction and sentence under Rule 27.26.

After a careful review of the transcript of the sentencing hearing, the circuit court of the City of St. Louis dismissed the motion without an evidentiary hearing. We affirm that decision.

Movant contends that his guilty plea was involuntary, without understanding of the nature of the charges, and that the plea was induced by reliance on his counsel’s representations that it was too late to change his plea and that he would be given a maximum sentence of five years.

The transcript of the sentencing hearing fully refutes these contentions. Before accepting movant’s guilty pleas the sentencing judge made specific and detailed inquiry and received clear answers which led to his findings. On each count the facts were read and the judge asked defendant if he was pleading guilty to those facts, if his pleas were voluntary, if any threats or promises had been made to him, if he understood his constitutional rights and the range of possible punishment, if he was under the influence of narcotics or alcohol, if he had discussed the pleas with his lawyer and family, and if he was satisfied with the representation of his counsel. The judge then asked defendant’s attorney if any threats or promises had been made, if he discussed the case and his client’s rights with him, and if in his opinion the guilty pleas were voluntarily and understandingly made. The answers elicited conclusively show movant is entitled to no relief. See Burns v. State, 527 S.W.2d 45 (Mo.App.1975); Brown v. State, 526 S.W.2d 55, 56 (Mo.App.1975); Fisk v. State, 515 S.W.2d 865, 867[2] (Mo.App.1974).

After careful consideration of the transcript, briefs, and authorities, we are convinced that the judgment is not clearly erroneous, that no error of law appears, and that an extended opinion herein would have no precedential value.

The judgment is affirmed. Rule 84.16(b).

McMILLIAN and KELLY, JJ., concur.


text:
    T. A. L. S. and D. R. S., a minor, by her next friend, T. A. L. S., Plaintiffs-Respondents, v. R. D. B., Defendant-Appellant.
    No. 36856.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 20, 1976.

      John D. French, Ralph Levy, III, St. Ann, for defendant-appellant.
    George E. Sullivan, Joel B. Eisenstein, O’Fallon, for plaintiffs-respondents.
   WEIER, Presiding Judge.

Defendant appeals from a judgment of the trial court determining that he is the father of plaintiff’s child and ordering him to pay child support in the amount of $25.00 per week. In seeking a reversal, he contends that the judgment is against the weight of the evidence, that there is no positive evidence of sexual intimacy during the period of conception, and that “the trial court did not require and the respondent did not produce any evidence corroborating appellant’s paternity and as a matter of law it must be corroborated where her testimony is contradictory and lacks credibility as it is in this case”. We affirm the decision of the trial court.

The scope of review to be applied in this court-tried civil case is outlined in Rule 73.01(3). In Murphy v. Carron, 536 S.W.2d 30, 32[2] (Mo. banc 1976), this rule was construed to mean that “the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Both of defendant’s points are based on the sufficiency and credibility of the evidence presented. We, therefore, have carefully reviewed the transcript and weighed the evidence with due consideration of the trial court’s ability to view the witnesses and determine the credibility of their testimony.

Three witnesses appeared at the trial but only the parties themselves testified concerning their relationship. The court could have found and inferred from the evidence that plaintiff met defendant in January of 1973; that she and defendant started going steady in April; that they had their first sexual intercourse at her apartment on May 14, 1973; that she had no sexual relations with any other person during the time of conception; and that their relationship and sexual relations continued until October, 1973, although in September, when she thought she was pregnant, he wanted to break off the relationship. She clearly stated that defendant was the father of her child and that she had no intercourse with any other man other than defendant until December 25,1973. Her daughter was born on May 23, 1974.

Plaintiff brought her diary to the witness stand so that she could refresh her memory. The entries had been made at or near the time of occurrence. She stated that she had always kept and still keeps the diary.

Defendant’s testimony was substantially the same as that of plaintiff concerning their initial courtship. He testified that they had their first intercourse on May 14, 1973; that he saw her almost every day prior to his vacation in late June, 1973; that they had sexual intercourse sometimes when they met; and that although they had had no intercourse subsequent to his return from vacation in July, they continued to date each other after his vacation at a reduced level until they broke up on October 24, 1973.

Defendant’s first point concerns the sufficiency of plaintiff’s evidence and the absence of positive evidence of sexual intimacy during the period of conception. We have carefully considered the record and find plaintiff has sustained her burden of proof on the issue of sexual intimacy. L.D. v. J.D., 481 S.W.2d 17[1, 2] (Mo.App.1972). The court will take judicial notice of a human gestation period of 10 lunar months or 280 days unless evidence to the contrary is presented. S.J.B. v. S.F.S., 504 S.W.2d 233, 235[6, 7] (Mo.App.1973). This would set the date of conception at the end of August, 1973, which is consistent with plaintiff’s belief that she was pregnant on September 22, 1973, and her indication on the hospital records that her last normal period prior to the pregnancy was on August 20, 1973. The negative result of her pregnancy test on September 29th alone does not disprove this.

The evidence of sexual intimacy rests solely on the conflicting oral testimony of the plaintiff and defendant. Plaintiff was never questioned concerning sexual intercourse specifically during the months of August and September. She, however, stated that defendant is the father of her child, that she had sexual intercourse with no other man until December 25, 1973, and that she and defendant dated from May until October of 1973, and had sexual intercourse “sometimes” on these occasions. She also stated that in September of 1973 he told her to get an abortion when she indicated to him that she thought she was pregnant. The child was present during the trial so that a comparison of her features to those of defendant could be made. These are all relevant facts in proving paternity. 55 A.L.R.3d 1096-7. The absence of a specific question and answer concerning sexual intercourse during late August or early September of 1973 does not make this testimony fatally deficient.

Defendant’s second point is that plaintiff’s testimony was contradictory and lacked credibility and therefore, as a matter of law, could not be sufficient to support the verdict without some corroboration. State v. Smith, 259 S.W. 506, 508-9 (Mo.App.1924). In support of this contention defendant first points to the claims made in a “settlement letter”. This letter was sent by plaintiff’s attorney to defendant prior to the filing of any legal action and states, in part:

“It is my information that you have denied to my client that this is your child but it is my further information that we can prove it by scientific blood tests and witnesses that this is indeed your child * * * yt

It is recognized that blood tests cannot indicate that a particular person is the father of a child but are only helpful in establishing non-parentage. State v. Summers, 489 S.W.2d 225, 229[5, 6] (Mo.App.1972). This apparent misunderstanding of the use of a blood test has little, if any, merit as a tool in destroying plaintiff’s credibility, particularly where the letter was composed and sent by plaintiff’s attorney rather than plaintiff herself.

To demonstrate plaintiff’s lack of credibility, defendant also points to the following answer:

“Q (by defendant’s attorney) When he came back from that vacation were you satisfied with the relationship you and he had after that time?
“A Between July 14th of ’73 and when he came back from vacation and October 28th he never came over or I didn’t see him in six days.”

Certainly this answer is confusing and unclear. But it does not destroy the rest of plaintiff’s testimony. It must be taken in light of her earlier and later testimony that sustained the court in finding she had sexual intercourse with defendant as late as October. After studying plaintiff’s testimony in its entirety we cannot say that this confused answer alone will rob her otherwise lucid and consistent testimony of all its credibility. No corroboration is here necessary.

The decision of the trial court was supported by substantial evidence, not contrary to the weight of the evidence, and does not erroneously apply the law. We affirm the judgment.

McMILLIAN and KELLY, JJ., concur.


text:
    BUDGET-EASY, INCORPORATED, a corporation, Plaintiff-Respondent, v. John H. BURD and Ann Burd, Defendants-Appellants.
    No. 10340.
    Missouri Court of Appeals, Springfield District.
    July 22, 1976.
    Motion to Set Aside Dismissal Denied Aug. 10, 1976.
    John Alpers, Jr., Cabool, for defendants-appellants.
    Clinton D. Summers, Poplar Bluff, for plaintiff-respondent.
   PER CURIAM.

On December 10, 1975, a Howell County jury returned a verdict favoring respondent corporation. Appellants filed an alternative motion to set aside the verdict or for a new trial on December 29, 1975, 19 days after the verdict. Appellants’ notice of appeal was filed April 2, 1976.

Rule 78.04, V.A.M.R., requires motions for new trial to be filed within 15 days of the jury verdict. The rule further provides that, “[i]f a timely motion for new trial . is filed, the judgment is not final until disposition of all such motions.” (Emphasis added). Here, appellants relied upon an untimely motion for new trial which did not delay the judgment from becoming final 30 days after the verdict was returned. Rule 81.05(a), V.A.M.R. Appellants’ notice of appeal was filed well beyond the 10-day limitation. Rule 81.04, V.A.M.R.

We are duty bound to determine the timeliness of the notice of appeal because this court does not acquire appellate jurisdiction in the absence of a timely notice of appeal. Kuhn v. Bunch, 529 S.W.2d 200(1) (Mo.App.1975).

The appeal is dismissed.


author: NORWIN D. HOUSER, Special Judge.

text:
    Irwin Raymond SUESSERMAN, Appellant, v. Petra Virginia SUESSERMAN, Respondent.
    No. 37043.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 27, 1976.

      Robert L. Brown, Arnold, for appellant.
   NORWIN D. HOUSER, Special Judge.

Irwin Raymond Suesserman sued for dissolution of his marriage to Petra Virginia Suesserman. Now he appeals from a default judgment ordering dissolution and awarding Petra child maintenance in the sum of $87 per week, contending that the award is excessive.

His first point is that the court erred in permitting the filing of a letter from Petra relating to the case and in considering the letter as an answer to his petition. Appellant’s first knowledge of the existence of the letter was when he discovered it incorporated in the transcript on appeal. The letter, addressed to “Mr. C. B. Long,” purports to have been written by Petra, although her signature is omitted. The letter, addressed to this unidentified person, is unsigned, unacknowledged, uncer-tified and was never served upon Irwin or his attorney. It does not purport to be a formal answer to the petition. It should have been lodged in the file in circuit court but not filed in the case. In the letter reference was made to plaintiff’s ability to make money as a musician. When Irwin was on the witness stand the court examined him with respect to his musicianship. We find no prejudice to Irwin arising out of his examination with reference to his musical experience and ability.

Appellant’s principal point is that the court erred in awarding child support of $87 per week; that the award is grossly excessive in view of appellant’s testimony that his take-home pay is only $182.50 per week and that after paying his personal living expenses only $55.85 per month remains available for child support, and his uncon-troverted testimony that Petra grosses $160 per week and lives in a rent-free apartment.

Section 452.340, RSMo 1969 authorizes the court in a proceeding for dissolution of marriage to order either or both parents owing a duty of support to pay an amount reasonable or necessary for support of children born of the marriage, after considering all relevant factors, including the father’s primary responsibility for child support; the financial resources of both parents and of the children; the financial needs of the noncustodial parent; their standard of living; the physical and emotional condition and educational needs of the children.

The mother of the children, Petra, a resident of California, was served by publication. She defaulted and was not represented by counsel in the trial court and is not represented in this Court. The only testimony was offered by Irwin, the father. He is a gunsmith. He works for Browning Arms Company. His gross wages are $490.40 every two weeks. After deductions his take-home pay is $365.01 every two weeks or $182.50 per week net. He initially testified that he had no other source of income, but upon examination by the trial court revealed his considerable past experience in the field of music, as a professional drummer. At trial Exhibit A was marked, identified and presumably admitted in evidence and considered by the court. We are informed that Exhibit A is a list of appellant’s estimated personal expenses and living costs and that it shows a net balance available for child support of $55.85 per month (the amount appellant is willing to pay). The difficulty is that Exhibit A has not been filed in this Court for our examination and consideration. This is the same situation encountered in Bryan v. Bryan, 452 S.W.2d 293 (Mo.App.1970). The burden of demonstrating error and the incorrectness of the judgment entered below is upon appellant. Parking Systems, Inc. v. Kansas City Downtown Redevelopment Corp., 518 S.W.2d 11 (Mo.1974); Massman Const. Co. v. Kansas City, 487 S.W.2d 470 (Mo.1972); Weston v. Great Central Ins. Co., 514 S.W.2d 17 (Mo.App.1974); State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473 (Mo.App.1972). Appellant having failed to file Exhibit A in this Court we are unable to make an independent determination of the reasonableness of the items of personal expenses appellant claims reduce the amount available for child support. In this situation we defer to the trial court’s determination as to what amount is available for child support after deducting reasonable and necessary living expenses of the wage earner, for the reason that in the absence of an apparently important exhibit “it must be presumed that its contents ‘were favorable to the judgment entered and unfavorable to the appellant,’ Bryan v. Bryan, Mo.App., 452 S.W.2d 293, 295[1]; the intendment and content will be taken ‘as favorable to the trial court’s ruling and as unfavorable to appellant,’ Lange v. Baker, Mo.App., 377 S.W.2d 5, 7[4]; Fuzzell v. Williams, Mo.App., 288 S.W.2d 372, 373[2].” Wykle v. Colombo, 457 S.W.2d 695, 700 (Mo.1970). The trial court “was entitled to reject his account of his living expenses to the extent it considered the estimate exaggerated,” Bryan v. Bryan, supra, 452 S.W.2d l.c. 295, and that apparently is what the trial court did in this case.

There is no evidence of the financial resources of Petra, the custodial parent, as of the date of the trial. Appellant’s testimony as to her financial resources is weak and untrustworthy. Appellant testified that “about a year before trial” Petra was working for a company in Ontario, California, making “close to $4 an hour,” interpreted by counsel as grossing $160 per week. (There was no evidence that she was putting in 40 hours a week). This testimony is of little weight because it is too remote; there is no evidence that Petra was earning wages at time of trial in February, 1975. The same consideration applies to appellant’s testimony that at the time of the separation, September 1, 1973, Petra was living rent-free in an apartment building furnished by Petra’s mother. Least worthy of consideration is appellant’s hearsay testimony that “the last time he talked” to his mother she told appellant that Petra was receiving “some kind of welfare.” If, as appellant seems to contend, Petra has financial resources which to some extent should relieve him from his primary responsibility for child support it was appellant’s burden to establish this fact by substantial evidence. Appellant has failed to meet this burden.

There is no evidence of the financial needs of the children. Appellant complains of this lack of evidence. Again, the burden of demonstrating that their needs are less than the amount fixed by the trial court is appellant’s, in this effort on his part to pare the award for child support. He has failed to meet this burden. We do know that at time of trial there were five children, aged 13, 11, 8, 8 and 2 years, respectively. In this inflated economy we cannot say that it is an abuse of discretion to award $87 per week for the provision of necessary food, clothing, shelter, medical and dental costs and incidental expenses for five children of the ages shown, even without detailed evidence of actual outlays for these various items.

Appellant says the award is so excessive as to strip him of his incentive to continue gainful employment. He argues that the award of $87 per week is beyond his ability to pay; that it takes approximately 48% of his take-home pay and leaves him only $413.80 per month or $95.49 per week to provide for his sustenance, and constitutes an abuse of discretion on the part of the trial court. Appellant bears the statutory primary responsibility for the support of his five children. Apparently able-bodied, educated as a gunsmith under the G.I. Bill of Rights, gainfully employed in his chosen vocation, with a four-year college education in the field of music and years of experience on the road as a professional musician, presumably appellant could, if he would, augment his earnings as a gunsmith with extra income from his musical profession. Compare appellant’s situation with that of the father of eleven children in L. J. S. v. V. H. S., 514 S.W.2d 1 (Mo.App.1974), where the approved award for child support took 79% of his net monthly income, leaving him approximately $200 to cover estimated personal living costs of $338 per month.

All things considered, we do not find the award grossly excessive or that it constitutes an abuse of discretion.

Judgment affirmed.

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


author: STEWART, Judge.

text:
    STATE of Missouri, Respondent, v. John Robert KING, Appellant.
    No. 37090.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 27, 1976.
    Kent W. Fanning, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   STEWART, Judge.

Defendant was found guilty by a jury of robbery in the first degree. He was sentenced to twelve years in the Department of Corrections by the court under the Second Offender Act.

Defendant contends that the trial court erred in not suppressing the identification evidence of the victim because of an impermissible on-the-scene confrontation. We affirm.

In the late evening of December 23,1974, Mr. Norman, the victim, was afoot in the vicinity of North Market and Elliot Streets in the City of St. Louis. He was accosted by a young man he knew who was seated on the steps of a church. Being fearful, he walked away. As he did so, he noticed defendant coming toward him. Defendant was about eight to ten feet in front of him when he noticed defendant. The witness was not personally acquainted with defendant but recognized him from having seen him around the area over a number of years. Defendant turned Mr. Norman around and with a gun at Mr. Norman’s head walked him up to the church building. Defendant and the other man then took Norman’s wallet and money and left.

Mr. Norman ran in an opposite direction, stopped a police vehicle, reported the robbery, and got into the car and drove around the area with the two policemen. As the police car was going down Elliot Street, Mr. Norman saw defendant and the other man running across a lot and called to the police: “There they go right there, going across the lot.” The policemen gave foot chase and one of the officers apprehended defendant and handcuffed him, and brought him back to the police car. As they came to the car, Mr. Norman said: “Yeah, that’s him, right there.”

This recitation of facts can only lead to the conclusion that the confrontation in this case was in no way suggestive, but entirely proper. The issues raised in this case have been thoroughly discussed in the cases of State v. Hamblin, 448 S.W.2d 603 (Mo.1970), State v. Maxwell, 502 S.W.2d 382 (Mo.App.1973), and State v. French, 528 S.W.2d 170 (Mo.App.1975). Any further discussion would be of no precedential value.

The judgment is affirmed.

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


text:
    STATE of Missouri, Respondent, v. Dallas RICHMOND, Appellant.
    No. 37118.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 27, 1976.
    Neal P. Murphy, Asst. Public Defender, Robert C. Babione, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for appellant.
    Preston Dean, Sheila K. Hyatt, Asst. At-tys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Michael G. Ravetta, Asst. Circuit Atty., St. Louis, for respondent.
   STEWART, Judge.

Defendant was convicted of Burglary Second Degree. Pursuant to the Second Offender Act he was sentenced by the trial court to eight years imprisonment. We affirm.

The facts can be briefly stated. About 9 a.m. on October 7, 1974, Stephen Gay left his apartment in the City of St. Louis. About 10 a.m. a policeman, responding to a burglary report, saw the defendant climbing out of the front window of Mr. Gay’s apartment and arrested him. Defendant was searched at the police station; in his trousers pocket was Mr. Gay’s high school class ring. Other police officers responding to the burglary call went to the rear of the apartment and found a rear window (sometimes referred to in the record as the “alcove window”) open.

Mr. Gay returned to his apartment about 11:30 a.m. He found the inside of his apartment in a shambles. He also noticed that a trash can, which usually was right outside the back door, was placed directly under the rear window, which was 8-10 feet above the ground. Mr. Gay testified positively that this window was closed when he left the house.

Defendant’s sole contention on appeal is that the court erred in denying his motion for acquittal at the close of all the evidence, because the state had failed to prove the essential element of a “breaking.”

In testing the sufficiency of the evidence on defendant’s motion for judgment of acquittal, the evidence and all reasonable inferences therefrom must be viewed in a light most favorable to the state, and evidence and inferences to the contrary must be rejected. State v. Davis, 515 S.W.2d 773[3] (Mo.App.1974).

In this case the testimony of Mr. Gay, viewed most favorably for the state, stated he closed all his windows when he left his residence “as far as I remember.” But he was sure that the rear window, under which the trash can was found, was closed. A jury could reasonably infer and believe that the apartment windows were closed, that defendant placed the trash can under the rear window, opened that window, entered the apartment and exited through the front window as observed by the arresting officer.

Defendant emphasizes that Mr. Gay testified he could not state with certainty that all the windows were closed when he left the apartment. But this does not affect the submissibility of the case. A witness is not required to speak with such confidence as to exclude all doubts in his mind; his qualification of his testimony affects only its probative force. State v. Degraffenreid, 477 S.W.2d 57, 60 (Mo. banc 1972). In that case the victim testified he could not be “absolutely positive” but he was “almost positive” that the residence door was closed. The court ruled his doubt did not preclude the defendant’s conviction for second degree burglary.

We find that there was sufficient evidence of a “breaking” to submit the case to the jury.

The judgment is affirmed.

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


author: DOWD, Judge.

text:
    Danny PARKER, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 36223.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 27, 1976.
    Whitfield, Montgomery & Walton, Harold L. Whitfield, St. Louis, for defendant-appellant.

      John C. Danforth, Atty. Gen., Robert M. Sommers, Preston Dean, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

A jury in the Circuit Court of the City of St. Louis convicted Danny Parker of two counts of Robbery First Degree with a dangerous and deadly weapon, Sections 560.120 and 560.135 RSMo 1969. The trial court sentenced him pursuant to the Second Offender Act, Section 556.280, to 20 years imprisonment for each count, the sentences to run concurrently. He appeals.

Defendant’s sole point of appeal is that there was insufficient evidence that he had been convicted of a prior felony. Thus he claims the Second Offender Act was inapplicable and the jury should have assessed punishment.

The state’s proof consisted of: 1) a certified authenticated copy of the court record from the Circuit Court of St. Clair County, Illinois, where Ronald D. Parker had pleaded guilty to robbery on September 9, 1970, and 2) an authenticated copy of confinement of Ronald D. Parker in an Illinois penitentiary; 3) prison records which included the date of birth, height and weight, a photograph of Ronald D. Parker, and a description of him which indicated he had a three-inch scar on his forehead.

Out of the hearing of the jury the court received the above prior conviction testimony. The court ordered defendant to stand, compared him with the photograph submitted, observed the scar across defendant’s forehead, and found defendant Danny Parker to be the same person that was committed to the Illinois penitentiary under the name Ronald D. Parker.

The standard of review consistently applied in this type of case is whether the evidence of a prior conviction was sufficient to support the invocation of the Second Offender Act. State v. Cook, 463 S.W.2d 863, 869 (Mo.1971); State v. Ransom, 500 S.W.2d 585, 589 (Mo.App.1973). Where there is partial and incomplete identity of names, there must be some additional evidence matching the accused with the person previously convicted. State v. Baugh, 323 S.W.2d 685, 691 (Mo. banc 1959); State v. Ransom, supra, 500 S.W.2d at 588[7]. Here we have the additional evidence of a photograph, a physical description of defendant which listed the unique feature of a three-inch scar across the forehead, and defendant’s presence in the courtroom for comparison by the judge. We hold this evidence to be sufficient. When the names are similar but not identical, comparison of the defendant with a physical description, State v. Cook, supra, 463 S.W.2d at 868-69; State v. Wraggs, 496 S.W.2d 38, 41[10] (Mo.App.1973); or with a photograph, State v. Humphrey, 462 S.W.2d 804, 808[4] (Mo.1971); State v. Trevino, 428 S.W.2d 552, 554[2] (Mo.1968), has been held proper and sufficient to prove defendant’s record of prior conviction.

The judgment is affirmed.

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