author: HOLMAN, Judge. BARDGETT, Judge FINCH, Judge SEILER, Chief Justice

text:
    STATE of Missouri, Respondent, v. Jerry L. WILLIAMS, Appellant.
    No. 59137.
    Supreme Court of Missouri, En Banc.
    Nov. 25, 1975.
    M. Shebourne Bryant, Willard B. Bunch, Public Defender, James F. Speck, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., for respondent.
   HOLMAN, Judge.

Defendant was charged with the offense of murder in the first degree. See Section 559.010. Under the provisions of Rule 26.-01, V.A.M.R., defendant waived a jury and was tried by the court. He was found guilty of murder in the second degree and his punishment was fixed at imprisonment for a term of 12 years. No findings of fact were requested or made by the court and hence, under Rule 26.01(c) “All fact issues . shall be deemed found in accordance with the result reached.” Defendant duly appealed to the Court of Appeals, Kansas City District.

The sole contention of defendant on appeal is that he could not be convicted of murder in the second degree because the evidence showed that he was guilty only of first degree felony murder. The appeals court filed an opinion in which it discussed the issue but made no disposition of the case. Instead, it pointed out that there was a conflict between the cases decided by this court and certified the cause here for examination of existing law in accordance with Art. V, Sec. 10, Mo.Const.

Section 10, supra, provides that “Cases pending in the court of appeals . may be transferred to the supreme court by order of the participating district of the court of appeals, after opinion, or by order of the supreme court before or after opinion . ” We deem it advisable to point out that the court of appeals in said section is given the power to transfer a case to the supreme court only “after opinion.” The word “opinion” has many meanings but when applied to a judicial proceeding it has been defined as “the direct, solemn, and deliberate decision of the court upon the issues raised by the record and presented in the argument.” 21 C.J.S. Courts § 217, p. 401, and as “The statement by a judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based.” Black’s Law Dictionary, Fourth Edition, p. 1243.

We have the view that “opinion” as used in Section 10 means a document which announces a decision which in some manner disposes of the case. The “opinion” filed in this case was actually a memorandum explaining the reason for transfer. We accordingly conclude that the court of appeals was not authorized to transfer this ease under the circumstances indicated. However, we have decided that the situation detailed by the court of appeals would have merited a transfer by this court prior to opinion if such had been requested. We will therefore consider the action taken by the court of appeals as a request for transfer and accordingly will retain the case as though transferred by order of this court and will finally determine the cause the same as on original appeal. We affirm.

Defendant’s brief contains the following statement: “Appellant concedes that there is sufficient evidence in the record to sustain a conviction of felony Murder First Degree.” In view of that concession and for other reasons we have concluded that a brief statement of facts will suffice.

The principal witness used by the State in making its case against defendant was Deborah Clark. She testified that she was with Nathanial Johns, Sammy Lewis, Willie Dove and defendant on the night of May 12-13, 1973; that they spent several hours in two night clubs located in Kansas; that as they were returning in a car defendant suggested that they rob his neighbor, James Main; that defendant further said that Lewis and Dove could go in first and put something over his face because Main knew Johns and him; that after they had parked the car in defendant’s back yard Dove and Lewis got out and went toward Main’s place; that after 10 or 15 minutes defendant and Johns went over there and 15 or 20 minutes later returned to the car; that Lewis and Dove then came back to the car with Dove carrying a radio.

This witness further testified that all of these parties then drove over to her house where defendant and Dove got into a fight over some money defendant said Dove should give him.

Defendant testified and stated that Lewis suggested the robbing of Main and that he and Johns refused to participate; that Lewis (who had a gun) and Dove went to Main’s house and that he and Johns went in later because they heard him calling for help; that Dove was tying Main and Lewis was kicking him in the area of his head; that they tried to stop Dove and Lewis from continuing such conduct saying “You are going to kill him” to which Lewis replied “So what?” Defendant further stated that after the attackers had protested their efforts to stop the attack and Lewis had threatened to kill him if he “snitched” he and Johns left the Main apartment.

After his arrest defendant gave a statement to the police in which the following appears:

“Q While you were riding back from Kansas, what was the conversation between the five of you?
“A Sammy Lewis was talking about making some money by robbing somebody. I told him I didn’t want to do that but I would burglarize somebody.
“Q When did it come up in the conversation about robbing James Main?
“A When we got in the driveway, Sammy Lewis asked me about the dude that lived next door. I told him I knew him and I wasn’t going in.
“Q What reason did you have for not wanting to go in?
“A Cause I figured I knew him and he knew me.
“Q Before Sammy and Willie went in, did you all have some sort of plan?
“A Yeah, I had it in mind going in and taking his TV.
“Q When were you supposed to go in?
“A I was supposed to go in when they came back to get me, but they never did come back and I heard Jim hollering, then me and Nate went in and tried to stop them.
“Q Why was the deceased tied up?
“A Because they was supposed to tie him up so he couldn’t see me and Nate. .
“Q How long would you say that you all were in the deceased apartment?
“A Sammy and Willie was probably in there about 15 minutes, myself about 3 minutes. . . .”

At about 3 p. m. on May 13, the police received a call requesting that they come to the address of the Main apartment. Upon arrival they found Mr. Main’s body with hands and legs tied, a cord around his neck and a blanket covering his head. The cause of death was determined to be “ligature strangulation of the neck.”

Section 559.010 (as it existed at the time of this offense) reads as follows: “Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.” And in Section 559.020 it is provided that “All other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree.”

As indicated, defendant concedes that the evidence supports a conviction of murder in the first degree under the felony murder doctrine specified in Section 559.010, supra. He states, however, that since he did not aid or abet or in any other way participate in the actual killing of deceased he is not guilty of conventional second degree murder. And since he did not commit any felony other than robbery he is not guilty of second degree felony murder. Defendant argues, therefore, that since he was, in effect, acquitted of murder first and is not shown to be guilty of murder second, either conventional or felony, the conviction should be reversed and he should be discharged.

The State takes the position that murder second is a lesser included offense of murder first and hence the court could properly find defendant guilty thereof. Further, the State says that by reason of Rule 26.06 and certain statutes hereinafter discussed defendant is precluded from complaining of the fact that he was shown to be guilty of a higher degree of murder than that of which he was convicted.

Rule 26.06 provides that: “A defendant in any criminal case shall have no just cause for complaint because: ... (2) the evidence showed or tended to show him to be guilty of a higher degree of the offense than that of which he was convicted.” A similar provision is contained in Section 545.030 which states that: “No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: . . . (17) Because the evidence shows or tends to show him to be guilty of a higher degree of the offense than that of which he is convicted; . .” (Emphasis ours). And more specifically applicable to the instant case is Section 556.-220 which provides that: “. . . any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide.”

A case squarely in point is the early and leading case of State v. Bobbitt, 215 Mo. 10, 114 S.W. 511 (1908) in which the proof showed defendant guilty of felony murder first by arson and his conviction of second degree murder was upheld even though he did not participate in the actual execution of the offense. In holding that murder second was an included lesser offense under those circumstances the court stated at 1. c. 517 that “It has been repeatedly decided by this court that the statute dividing murder into two degrees is a statute of classification and not of definition, and that no homicide can be murder either in the first or second degree which was not murder at the common law. State v. Shock, 68 Mo. 552; State v. Curtis, 70 Mo. [594] 598; State v. Robinson, 73 Mo. 306; State v. Wagner, 78 Mo. 644, 47 Am.Rep. 131. A homicide committed in the perpetration of arson is not a distinct offense. It is only one of the methods by which murder in the first degree may be committed.” In answer to the precise contention now before us the court quoted applicable portions of the statutes which are now 545.030 and 556.020 and held that thereunder defendant was precluded from complaining.

To like effect is the very early case of State v. Wagner, 78 Mo. 644 (1883) in which the court stated that murder by poison was murder first only and that it was error to instruct on murder second, the offense of which defendant was convicted. The court, however, held that by reason of the statute (now 556.220) the error would not warrant a reversal.

A contention similar to the one at bar was also made in the case of State v. Jewell, 473 S.W.2d 734 (Mo.1971). In that felony murder case defendant was convicted of murder second. In ruling that murder second was an included offense the court stated: “The distinction generally made between the degrees of murder is in the presence or absence of the element of deliberation. The elements of second-degree murder are the premeditated, wilful, intentional taking of human life with malice aforethought; first degree murder requires the additional element of deliberation. State v. Davis, Mo., 400 S.W.2d 141, 145[1, 2]; State v. Kauffman, 335 Mo. 611, 73 S.W.2d 217, 220[4, 5]. And if the killing is committed during the actual or attempted perpetration of one of the felonies enumerated in Section 559.010, proof of the underlying felony stands in lieu of and is the equivalent of the necessary malice, premeditation, and deliberation and is tantamount to proof of first-degree murder. Consequently, whether a killing amounting to murder, first degree, is committed in such manner that proof of its elements is constructively presumed, as in felony-murder, rather than directly, it is nonetheless murder, first degree, and necessarily embodies murder, second degree, as an included offense.” In answer to the further contention that such a holding amounted to a denial of due process the court held such to be without merit quoting both Rule 26.06 and Section 556.220 as support for the ruling that defendant could not complain of his second degree conviction.

For other cases in which the foregoing rule and statutes have been applied see State v. Wallach, 389 S.W.2d 7[2] (Mo.1965); State v. Sebastian, 215 Mo. 58, 114 S.W. 522[1] (Mo.1908); State v. West, 202 Mo. 128, 100 S.W. 478[3] (Mo.1907); State v. McQuerry, 406 S.W.2d 624[10] (Mo.1966); State v. Nibarger, 391 S.W.2d 846[1] (Mo.1965); State v. Tollas, 326 S.W.2d 329[13] (Mo.1959) and State v. Allison, 330 Mo. 773, 51 S.W.2d 51[8] (1932).

In support of his contention defendant relies primarily on the case of State v. Jasper, 486 S.W.2d 268 (Mo.1972) a case which the court of appeals concluded could be understood to hold that conventional murder second is not a lesser included offense of felony murder first. In Jasper defendant had participated in an armed robbery and was fleeing from the scene in a car being driven by a confederate. A police officer had called to them to halt and had fired a shot at the car. During a high-speed chase which followed, the car violated a traffic signal and collided with another car killing the three occupants thereof. Upon trial the court gave felony and conventional first degree instructions and a conventional second degree instruction. Defendant was found guilty of second degree murder. Defendant contended that there was no evidence to sustain a conviction of murder second. The court held that since there was evidence that defendant was guilty of the felony of resisting lawful arrest the evidence was sufficient to submit common law felony murder second. The case was remanded for a new trial upon that theory of submission.

We recognize that the result in Jasper would appear to be in conflict with our decision today. However, it should be noted that the court in Jasper did not in any manner consider the rule and statutes that form the basis of our decision and therefore there is no cpnflict whatever relating to the theory we have relied upon.

Defendant has also cited State v. Bradley, 234 S.W.2d 556 (Mo.1950); State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335 (1956) and State v. Conway, 351 Mo. 126, 171 S.W.2d 677 (1943). All these are cases in which the defendant was convicted of felony murder first. Defendant points to the fact that they contain statements to the effect that in felony murder cases the only submissible crime is murder first and in Burnett and Bradley it was held that for that reason it was not error for the court to fail to instruct on murder second and manslaughter. It should be noted, however, that these cases are not in conflict with our decision because the court did not hold that defendant could have complained if the court had given an instruction submitting murder second. Conway is not applicable because there the conviction was reversed because the evidence failed to show that defendant had committed the felony relied on as an element of the felony murder submission.

As heretofore stated we hold that the judgment should be affirmed. While some of the cases heretofore cited would support a holding that conventional murder second is necessarily a lesser included offense of felony murder first we need not and do not place our decision on that theory. We rule that in the situation before us the defendant has no just cause to complain of the second degree conviction. The rule and statutes heretofore quoted specifically provide that a defendant cannot complain because the evidence shows him guilty of a higher degree of the offense than that of which he was convicted. Certainly murder first is a higher degree of homicide than murder second regardless of whether it may be described as felony or conventional murder first.

We are mindful that the notes on use contained in our revisions of MAI-CR effective on 3-1-75 and 9-28-75 state that in a felony murder submission murder second should not be submitted unless justified by the evidence. Those notes, however, have no application to this 1973 court tried case.

Judgment affirmed.

MORGAN, HENLEY, and DONNELLY, JJ., concur.

BARDGETT, J., concurs in result in separate concurring opinion filed.

FINCH, J., concurs in result in separate concurring opinion filed.

SEILER, C. J., concurs in part and dissents in part in separate opinion filed.

BARDGETT, Judge

(concurring in result).

I concur in the affirmance of defendant’s conviction of murder in the second degree but do not agree that the conviction can be affirmed on the basis set forth in the principal opinion. I agree with the analyses of the law as set forth in the separate opinions of Seiler, C. J., and Finch, J.

This defendant was charged in common form with murder in the first degree. This charge is sufficient to support a conviction of murder in the second degree if there is evidence sufficient to support that conviction. The case was tried to the court without a jury and, therefore, there were no specific submissions of the various degrees of homicide or methods of committing murder because, obviously, there were no instructions given.

At the close of the case the court took the case under submission. The court was not requested to and, therefore, did not make specific findings of fact but rather entered what would be called a general verdict finding defendant guilty of murder in the second degree. The question therefore is: Was there evidence upon which the court could find the defendant guilty of murder in the second degree?

Felony murder in the second degree is committed when a person engages in a felony, other than those enumerated in section 559.010 (as it existed at the time of this offense) during which a homicide occurs. State v. Jasper, 486 S.W.2d 268 (Mo. banc 1972); State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975). In Chambers the underlying felony was stealing an automobile. Sections 560.156, 560.161, subd. 2(2).

In this case the evidence was sufficient to support a finding that defendant and others intended to steal certain items from the dwelling house of James Main; that defendant intended to steal a television set, and the participants decided that two of them who were not known to Mr. Main would enter the home and blindfold Main so he would not recognize his neighbor — the defendant. They entered the home and shortly thereafter defendant joined them. They stole a radio and a sweater from Main’s home. Main was killed in the course of this theft.

Section 560.156, subd. 1(2) defines stealing and section 560.161, subd. 2(1) defines as a felony the stealing of property from a dwelling house or a person regardless of its value.

State v. Chambers, supra, holds that a homicide occurring during the perpetration of a felony of stealing constitutes murder in the second degree.

In Jasper, supra, the court held there was sufficient evidence upon which the jury could find defendant guilty of murder second degree but the case had to be remanded for a new trial because the case was not submitted to the jury with an instruction under the common-law-felony-murder rule.

In a court-tried case, such as the instant one, instructions are not used. The case was submitted to the judge on the indictment which included within its scope murder in the second degree and the evidence in the case. In saying the indictment included within its scope murder in the second degree, I mean that under this indictment evidence of second degree murder was admissible. Had this been a jury ease, an instruction submitting common-law-felony murder in the second degree would have been proper because the evidence supported findings that defendant engaged in the felony of stealing from a dwelling house and that a homicide was perpetrated in the course of committing that felony.

But, as indicated supra, this was not a jury case and therefore instructions were not needed nor used. Of course, a court cannot convict a person of an offense if the evidence does not support a finding that the defendant was guilty of the offense no more than could a jury do so.

So the question in this case, as I see it, is whether there was evidence upon which the defendant could be found guilty of second-degree murder. As noted supra, I believe there was sufficient evidence to support a finding that defendant engaged in the felony of stealing from a dwelling house and that Mr. Main was killed in the perpetration of that felony.

On this basis I would affirm the judgment of the circuit court and, therefore, I concur in the affirmance of that judgment.

FINCH, Judge

(concurring in result).

I concur in the affirmance of defendant’s conviction of murder in the second degree but do not agree that the conviction can be affirmed on the basis set forth in the principal opinion.

In the separate opinions filed herein by Seiler, C. J. and Bardgett, J., the view is expressed that the conviction in this court tried case should be affirmed for the reason that the evidence supports a conviction of common law felony murder which is murder in the second degree. I agree and concur in what they say with reference thereto. The evidence is sufficient to find that defendant planned with others to steal items from the dwelling house of James Main and that such intention was consummated. The fact that what occurred could have been found to constitute robbery rather than simply larceny from a dwelling house does not prevent that conclusion because larceny from the person (in this case occurring in Main’s dwelling house) is an included offense of robbery, and conviction therefor may be had under a charge of robbery. State v. Gardner, 356 Mo. 1015, 204 S.W.2d 716 (1947); 67 Am.Jur.2d, Robbery, § 7, p. 34. In this case wherein defendant was charged in common form with murder in the first degree, proof of a robbery and a homicide in connection therewith was admissible. Such proof, clearly present, supports a conviction of murder in the second degree based on the evidence sufficient to show larceny from a dwelling. I would affirm the conviction on that basis.

I also concur in what Seiler, C. J., says in concluding that this conviction cannot be affirmed on the basis of Rule 26.06 V.A. M.R. or § 556.220 RSMo 1969. In addition to what he says on the subject, I would point out that this court has held on numerous occasions that when the evidence shows that a homicide was committed in the perpetration of one of the felonies enumerated in the first degree felony murder statute and the court submitted the case on a first degree felony murder instruction, the court did not commit error in refusing defendant’s request that a second degree murder instruction be given. State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, 343 (1956); State v. Bradley, 234 S.W.2d 556, 563 (Mo.1950). Yet, under the holding of the principal opinion, if the trial court in those cases had given a second degree murder instruction over defendant’s objection he would not be permitted to complain, and the giving of the instruction, held to be improper and not justified under the rulings in Burnett, Bradley and similar cases, would not be reversible error. Thus, under the principal opinion, in a situation wherein the court concludes that the evidence does not justify or permit a second degree murder instruction, it is not error to refuse the same if the defendant requests it, but at the same time, it is not error to give the instruction even if defendant objects to it. I cannot concur in such a “heads I win, tails you lose” result. I do not believe it can be justified either on the basis of Rule 26.06 or § 556.220 RSMo 1969. If the rule and statute do authorize that kind of inconsistent result, they would, at least to that extent, be unconstitutional.

In addition, I should point out that I consider the principal opinion to be in conflict with the opinion of this court in State v. Jasper, 486 S.W.2d 268 (Mo. banc 1972). The principal opinion recognizes that it would appear to be in conflict with the result in Jasper, but concludes that a conflict actually does not exist, that conclusion being based on its premise that the court in Jasper did not consider Rule 26.06 or § 556.-220. I cannot agree with that premise. Our court files disclose that applicability of the rule and statute in question were present in Jasper. The State urged affirmance of the conviction therein on the basis of Rule 26.06 and § 556.220. Defendant opposed such result, arguing that the rule and statute did not authorize submission of lesser offenses when there was no evidence to support such a submission. The divisional opinion discussed this issue and stated that the court would agree that a judgment of conviction without support in the evidence would be unlawful but that the principle was inapplicable because there was evidence to support a conviction of second degree felony murder.

If the court en banc had accepted the State’s contention that Rule 26.06 and § 556.220 authorized affirmance on the basis that the defendant could have been convicted of murder in the first degree and hence could not complain, even in the absence of evidence to support the conviction, it would have affirmed the conviction instead of reversing and remanding for new trial. The court’s opinion did not discuss Rule 26.06 or § 556.220, but necessarily the court rejected their applicability when it reversed and remanded for new trial.

SEILER, Chief Justice

(concurring in part and dissenting in part).

The opinion by Holman, J., and the opinion concurring in result by Bardgett, J. (soundly, I believe) do not attempt to place the decision on the ground that conventional murder is a lesser included offense of felony murder first. In my opinion it is not, and the thesis advanced in State v. Bobbitt, 215 Mo. 10, 114 S.W. 511 (1908) that first degree felony murder involves deliberation and premeditation is no more than fiction. There are many instances where neither one is present in a felony murder case. The present case is one. Defendant was trying to avoid decedent’s death, not cause it. We should recognize that first degree felony homicide is first degree murder because the legislature has so decreed. It has defined the crime and fixed the punishment. Defendant’s mental state as to taking a human life is immaterial. Numerous cases so hold. See State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033, 1037 (1932), for example. The fact that defendant participates in a named felony and that a death occurs in the course thereof is all that is required. As proof of this, one need look only at the MAI-CR instructions on the subject, MAI-CR 6.16-6.19. The jury is not required in any of them to find deliberation or premeditation, and if we were to require it in first degree felony murder instructions, the state would be the first to complain that we were requiring it to assume an unnecessary and unwarranted burden.

My dissent has to do with the ruling set forth in the opinion by Holman, J., that on the basis of certain statutes and a rule referred to in his opinion, defendant has no just cause to complain of his second degree murder conviction. It seems to me these statutes and the rule do not meet the objection defendant is raising. He is not complaining that the evidence shows him guilty of a higher degree of the offense than that of which he was convicted. He is complaining that he was convicted of second degree murder without any evidence to support the conviction. That is the question before us, not whether there was evidence in the case which, if believed, would support a conviction for some other offense.

I do not believe that any of the statutes or the rule referred to means that a defendant cannot complain if he is convicted of an offense which the evidence does not show he committed. To hold otherwise would be perverse, lawless, and unconstitutional doctrine. The fact that the outcome could have been much worse for a defendant than it was is not a rational basis on which to affirm convictions not supported by the evidence. It amounts to making the crime fit the punishment. These statutes and the rule overlook the fact there is no such thing as a directed verdict of guilty. How can the evidence show a defendant “to be guilty” of a higher crime when it turns out that he is not convicted of it? We do not ordinarily go on the principle that because there is evidence tending to establish a proposition it follows that the proposition is established even though the jury (or whoever is the trier of the fact) decides otherwise. What does follow in such case is that the factfinder did not accept the contrary evidence. The state elected to prosecute this defendant for felony murder, but failed to convict, even though it made a submissible case. This furnishes no basis for finding defendant guilty of something else which the evidence does not support. Indeed, no claim is made by the state that the evidence supports a second degree murder conviction other than the untenable claim that second degree murder is a lesser included offense of first degree felony murder.

The opinion by Judge Holman makes reference to State v. Bobbitt, supra, and to State v. Jewell, 473 S.W.2d 734 (Mo.1971), which relies on the Bobbitt case. It is difficult to determine on what theory the court in State v. Bobbitt rested its decision. The information, which is set out verbatim in the opinion, charged defendant with conventional first degree murder — an assault with others by shooting the victim with a pistol. The proof was that defendant owned a farm and desired to evict the tenant. To that end he induced certain parties to set fire to the tenant house about midnight. Shortly thereafter the fire was discovered by the tenant, who came outdoors with his pistol, whereupon one of the group shot and killed him. Defendant was elsewhere at the time. The court instructed the jury on first degree felony murder, but ended the instruction, astonishingly, with the direction that the jury should then find defendant guilty of second degree murder and assess his punishment at imprisonment for not less than ten years. In addition to the language at 114 S.W. 1. c. 517 quoted by Judge Holman, the court, in Bobbitt also said as follows at 114 S.W. 1. c. 520: “. It cannot be said of this instruction that it did not embrace the essential elements of murder in the second degree, because murder in the second degree is included in murder in the first degree . . . ” If the court meant what it said in the language just quoted, then the Bobbitt decision can equally be said to rest on the proposition that second degree murder is included in first degree felony murder and not on the statutes which are now Secs. 545.030 and 556.220.

Whatever the basis for the decision, if State v. Bobbitt stands for affirming a conviction which is without evidence to support it, it is a sixty-seven year old aberration which we should overrule here and now.

Judge Bardgett has pointed out in his opinion where he believes the evidence supports a conviction of second degree felony murder. As I read the record, under the evidence the trial court unquestionably could reasonably have found that defendant associated himself with the venture. One witness testified defendant made the suggestion that they “take off” the man next door and that Willie Dove and Sammy Lewis could go in first and put something over his face, because the victim would know defendant and the fourth man, Nathaniel Johns. There was also evidence that about 10 or 15 minutes after Dove and Lewis went into the victim’s apartment defendant and Johns did likewise. One witness said there was no noise coming from the victim’s apartment at the time defendant and Johns left the car to go to the apartment. Another (Nathaniel Johns) testified there was noise and that the purpose in his and defendant’s going to the victim’s apartment was that “if the people next door heard all that noise, they was going to come out in the back.” Either version is consistent with defendant’s going to the apartment to participate in stealing or robbing. In about 10 or 15 minutes thereafter, defendant and Johns returned, empty-handed, but “then” (it is not shown how soon this was), Dove and Lewis also came back to the car, Dove carrying a radio. Under these facts, it could reasonably be inferred there was more involvement by defendant than mere consent that something be stolen from the victim or his apartment. There was also a certain amount of active participation by defendant in the stealing of the victim’s radio, enough to make him guilty of aiding and abetting in the crime. For these reasons and the reasons stated in the opinion concurring in result of Bardgett, J., I concur in the affirmance of the judgment.

      . All statutory references are to RSMo 1969, V.A.M.S.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Francis GOMILLIA, Defendant-Appellant.
    No. 35343.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 30, 1975.

      Daniel V. O’Brien, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, Thomas E. Dittmeier, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   KELLY, Judge.

The appellant, hereinafter the defendant, was convicted in the Circuit Court of St. Louis County, Missouri, of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon (§ 560.120 RSMo 1969) on Count I of an Amended Information and on Count II of Assault with Intent to Kill with Malice Aforethought (§ 559.180 RSMo 1969). Having been found by the trial court after an evidentiary hearing to be a Second Offender within the terms of § 556.-280 RSMo 1969, the trial court, rather than the jury, sentenced the defendant to a term of life imprisonment in the custody of the Missouri Department of Corrections on the Robbery charge and to a term of twenty (20) years in the custody of the Department of Corrections on the Assault charge, concurrently. This appeal followed.

Defendant does not challenge the sufficiency of the evidence to sustain a conviction on either Count of the Amended Information, but rather contends that the trial court erred in (1) admitting the in-court identification of witnesses John Ellinger, Jr., and Myra Lloyd and (2) admitting into evidence “mug shots” of the defendant and others and permitting them to be passed to the jurors for their inspection.

The facts as found by the jury are that at about 8:15 a. m. on the morning of November 6,1972, John Ellinger, Jr., was seated in the office of a service station located at 8308 Airport Road in St. Louis County, Missouri, when two black men entered. One of the black men walked towards the service bay and the other, the taller of the two, who was identified at trial as the defendant, approached Mr. Ellinger who was, at the time, talking on the telephone. As he approached Mr. Ellinger the defendant put on a pair of gloves and when approximately three feet from Mr. Ellinger drew a gun and directed Mr. Ellinger to “keep it up.” The defendant then walked behind Mr. El-linger and removed at least $400.00 from the desk top. Mr. Ellinger was then directed to open the cash register and when he did the defendant removed the contents. Mr. Ellinger and David Boll, a fellow employee, were instructed to lie down on the storeroom floor and after they did as ordered, the storeroom doors were closed and Mr. Ellinger heard the front door open and close. Mr. Ellinger then started to pick up the phone from the floor when he heard a noise and looked up to see the defendant returning. The defendant pointed a gun to Mr. Ellinger’s head and threatened to kill him. Mr. Ellinger grabbed at the gun and during the following struggle the gun discharged striking Mr. Ellinger in the abdomen. The defendant then made his escape from the premises. At the scene Mr. El-linger described the defendant as being six (6) feet tall, stocky build and weighing 200 pounds. He said the defendant was wearing a hip length dark tan leather coat, dark trousers and a broad brimmed hat.

On Tuesday, November 7, 1972, two officers of the Berkeley Police Department showed Mr. Ellinger some “mug shots,” eight in number, and from these he selected the photo of the defendant as the man who robbed and shot him. All eight of the “mug shots” were offered and admitted into evidence during the course of the trial and then passed to the jurors for their examination. These eight “mug shots” plus three more were also shown to Myra Lloyd, a State’s witness, at approximately 3:30 p. m. on November 6, 1972, and out of the group she selected defendant’s photo as that of the robber she saw at the scene of the occurrence. The following morning Mrs. Lloyd went to the Berkeley police station at about 10:45 a. m. Mr. Boll was also there. She was shown a lineup of five black men in a well-lighted room in which there was a two-way glass. Two of the men had beards and two had Afro hair-dos. After viewing the lineup she was fairly certain that the center man was the person she had seen at the scene of the hold-up but she asked them to bring the men back in again, viewed the lineup a second time and then was certain that it was the center man she saw at the robbery scene. The “center man” in the lineup was this defendant. The “mug shot” of the defendant was shown to Mrs. Lloyd on February 14, 1973, just prior to her taking the stand and offering her testimony in the trial.

Defendant’s first Point Relied On in this court is: “The in-court identifications by witnesses John Ellinger, Jr., and Myra Lloyd violated appellant’s right to the due process of law, his right to counsel, and his right to a fair trial.” Reference to his motion for new trial causes us to conclude that these are not the same contentions presented to the trial court for there is no reference therein to Mrs. Lloyd’s identification testimony and the only reference to Mr. Ellinger’s identification testimony is contained in paragraph 8 of defendant’s motion, which reads as follows: “8. The Court erred in allowing John Ellinger, the alleged victim to testify as to the defendant’s identity, having the (sic) three (3) days before the start of trial viewed a videotaped line-up without the presence of the defendant or his attorney.” Any claim of error not assigned in a motion for new trial in a criminal case is not preserved for appellate review, 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), and any assignment of error set out in defendant’s motion for new trial not briefed in the appellate court is considered abandoned. Metier v. Janssen, 498 S.W.2d 581, 583[1] (Mo.App.1973). When preparing briefs on appeal counsel in a criminal case is required to comply with Rule 28.18 providing that, with certain exceptions, Rules of Civil Procedure apply to criminal cases and with the provisions of Rule 84.04(d) that: “The points relied on shall state briefly and concisely what actions or rulings are sought to be reviewed and wherein and why they are claimed to be erroneous." (Emphasis supplied). State v. Gantt, 504 S.W.2d 295, 297[1] (Mo.App.1973). Points relied on by an appellant seeking reversal of a conviction should definitely isolate and formulate precise issues to be reviewed, and if that function is observed at all, it should not be relegated to the argument portion of the brief. State v. Freeman, 489 S.W.2d 749, 751[1] (Mo.App.1973). It is apparent that defendant’s first point raised in his brief filed in this court constitutes no more than a series of legal conclusions and fails to state wherein and why the in-court identification of Mr. Ellinger violated his rights. To glean this information, it is necessary to go to the argument portion of defendant’s brief. This court, in Griffin v. State, 513 S.W.2d 706, 708 (Mo.App.1974) said: “The appellate courts of this State can no longer afford the luxury of searching the Argument section of appellant’s briefs for the purpose of discovering if sufficient particularity might be found therein to enable them to determine why the orders or judgments of the trial court are erroneous.”

Despite the aforesaid infirmities in the manner in which defendant has sought a review of his conviction and their utter failure to preserve anything for review in this court, we have studied his first point and discern that the grounds he argues in the argument section of his brief under this point are directed at what he contends were identification procedures which were suggestive and thereby conducive to mistaken identification amounting to a denial of due process.

With respect to the in-eourt identification of Mrs. Lloyd the defendant argues that it was tainted, and therefore should have been excluded because of a photographic “display consisting of eleven mug shot photographs exhibited to her at approximately 3:30 p. m. on the afternoon of the robbery” and on February 13,1973, the day immediately preceding her testimony at trial while in the Prosecuting Attorney’s office. From these eleven photographs Mrs. Lloyd selected one — a mug shot of the defendant — as a photo of the larger of the two men whom she observed the morning of the robbery near the entrance to the Town and Country Tire Center. The thrust of defendant’s argument is that the photo of the defendant was larger than any of the other ten mug shots and this was therefore suggestive to Mrs. Lloyd. The testimony at trial was that of the 11 photographs, two were a “little larger” — “about an inch bigger”— than the others, and both of these came from the City of St. Louis. One of these larger ones was a photograph of the defendant. In further support of his position, defendant argues that Mrs. Lloyd’s description of the larger of the two robbers does not tally with defendant’s actual physical characteristics. Mrs. Lloyd gave a description of one of the robbers as over 6 feet in height, weighing over 200 pounds, stockily built, with no distinguishable facial characteristics. During the defendant’s case an employee of the St. Louis County Department of Welfare produced under subpoena issued at the defendant’s request, certain records kept in the regular course of the business of the St. Louis County Jail, a photostatic copy identified as the front page of the booking sheet and a photograph of the defendant, both dated November 8, 1972, 9:50 p. m., containing information relative to the defendant. According to the copy of the booking sheet the defendant at that time was 31 years of age five feet ten inches tall, weighed 185 pounds, and was of medium build. There was also a notation that he had “scars on forehead.” On the photograph was information that defendant was 70 inches tall and weighed 185 pounds. Both exhibits were offered and received into evidence without objection and later in the trial passed to the jury for their inspection. On cross-examination the witness testified that the information on the booking sheet came from the person being booked, in a question and answer form, and then typed in.

We are of the opinion that the mere fact that one photo is larger in dimensions by “about an inch” is insignificant, particularly where, as here, more than one of the photos displayed to Mrs. Lloyd was likewise larger by the same amount. We also conclude from a reading of Mrs. Lloyd’s testimony, both direct and cross-examination, she had an independent basis for her in-court identification which supports the trial court’s admission of same into evidence. On the morning of the robbery Mrs. Lloyd’s attention was, in the first instance, called to the presence of the defendant and his accomplice because they were among a group of children at the cross-walk where she was performing her duties as a crossing-guard. As the two men approached among the children she observed that they stopped for just a second in front of the Town and Country Tire Center, a service station, and then proceeded to within two feet of her behind her crossing light and then walked on down to the next telephone pole about twenty feet beyond her. She then directed the children across Airport Road and when she returned to her station the two men were walking back toward the Tire Center and cut across the service station lot towards the entrance to the service station. The last time she saw the two men they were almost to the entrance of the service station. When she was shown the eleven photographs she selected defendant’s without any difficulty, but while she thought one of the other photographs looked like a photo of defendant’s accomplice, she declined to make an identification from that because of her uncertainty. Two days later, on November 8,1972, Mrs. Lloyd identified the defendant from a lineup of five men as the taller of the two men she saw the morning of the robbery approaching the entrance to the service station. She also identified the defendant at trial as one of the men and despite a rigorous cross-examination, testing her ability to identify him, persisted in her identification. From the foregoing we conclude that the trial court did not err in allowing the in-court identification of the defendant by Mrs. Lloyd, and we so hold. State v. Boothe, 485 S.W.2d 11, 13[2] (Mo. banc 1972), Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Defendant’s attack on Mr. Ellinger’s in-court identification is from two directions. Initially he contends that Mr. Ellinger was shown a group of eight photos while under medication in the hospital, and from this group he, like Mrs. Lloyd, selected defendant’s picture because it was larger than the others. He argues that “it was inevitable that Mr. Ellinger would select the suspect with the larger photograph.” Officer Moore testified that on November 7, 1972, he visited Mr. Ellinger at the Christian Northwest Hospital in the intensive care ward at which time he displayed to Mr. Ellinger eight photos. Of these eight, some of them were the same he had previously shown to Mrs. Lloyd, but he had subtracted four photos from the eleven shown to Mrs. Lloyd and added one more. At trial, however, only seven of the eight photos the police officer had shown Mr. Ellinger were on hand. Among this number of photos, three were larger than the others. One of the larger photos was the one he added after subtracting four shown to Mrs. Lloyd. Prior to showing Mr. Ellinger these photos he had to obtain permission from a doctor on the floor. At that time Mr. Ellinger appeared “okay,” but Mr. Ellinger told him that he wasn’t feeling real good though. When asked if Mr. Ellinger “was bright,” the officer replied that he didn’t know what defense counsel meant by “bright,” but “(h)e wouldn’t be bright.” Mr. Ellinger told him that “they had been giving him some needles” for pain. Out of the eight photos the police officer showed Mr. Ellinger he picked one, the defendant’s, as a picture of the man who shot him.

As we have said in ruling on the defendant’s attack on Mrs. Lloyd’s in-court identification, the fact that of the eight pictures displayed to Mr. Ellinger three were larger in size than the other five, in the absence of any other evidence of suggestiveness or impropriety in the conduct of the photographic display to Mr. Ellinger, is insignificant and would not require the exclusion of Mr. Ellinger’s in-court identification. Nor is the evidence in the record relative to the fact that Mr. Ellinger might have been under some medication, either alone or in conjunction with the size of the photographs, sufficient to cause this court to find that the trial judge erred in admitting into evidence his in-court identification of the defendant. There was sufficient evidence, as we shall hereinafter suggest, from which the trial court could conclude that Mr. Ellinger’s in-court identification was based on a source independent of the photographic display and was not weakened by the fact that he was under medication at the time.

Mr. Ellinger first observed the defendant and another man enter the door of the building while he was counting the weekend’s receipts. The first man to enter the building was pulling on a pair of gloves as he came in and pulled a gun when he was within three feet of Mr. Ellinger, who was then talking with his boss on the telephone. This man, identified by Mr. Ellinger as the defendant, told him to “just keep it up” and then walked behind Mr. Ellinger and patted him down. The defendant then started picking up the money on the desk which Mr. Ellinger had been counting, and then ordered him to open the cash register. When this was done the defendant took all of the money out of the cash register. Mr. Ellinger was then ordered into the back room of the service station where one of his employees, Mr. Boll, was already laying down with his face to the floor, while the second man who had entered the service station was standing holding a gun on him. Mr. Ellinger then laid down also facing upwards and then moved over and laid face down, and then the defendant left the room for a time while the other man remained with them. Mr. Ellinger and Mr. Boll were told to lie down and remain there until they left, and then the two robbers closed the door and were heard opening and closing the front door. Mr. Ellinger got up and opened the door to his office and as he was reaching to get the phone off the floor, he heard a noise, glanced up and saw the defendant coming at him, and declaring that he was going to blow his head off. The defendant then pointed the gun at his head, and Mr. Ellinger reached up and grabbed the gun. They grappled for the gun until it was in the vicinity of Mr. Ellinger’s navel when it went off. The defendant then turned around and ran out of the service station. Mr. Ellinger got up, went to his desk and obtained his revolver from the desk drawer and then pursued the defendant as he fled westwardly. Mr. Ellinger fired three shots at the defendant as he fled across the parking lot, before he fainted from the wound he had sustained. The entire time of the robbery took five to ten minutes. At the scene, while he was “passing out” Mr. El-linger described the defendant to a police officer by the name of Ransom. He told the police officer that the defendant was wearing a brown coat, that he was taller than himself (he is 5 feet 10 inches tall), about 200 pounds, stocky build, although he was having difficulty recalling just exactly what description he did give the police officer because of his physical condition at that time. Also, at trial, he testified that his in-court identification was based upon his observations at the time of the robbery rather than on the photograph. From the facts set out herein, it is clear that the witness had sufficient opportunity to view the defendant at the time of the commission of the crime, his attention at that time was directed to the defendant, his description of the defendant was within reason, and he displayed no uncertainty when the photographs were shown to him while confined to the hospital the day following the 'event. Neil v. Biggers, supra.

Defendant’s second assault on the State’s handling of the identification procedures is directed at a showing of a video-tape of the lineup of November 8, 1972, shown to Mr. Ellinger on February 12,1973, at the Berkeley Police station — just two days prior to the trial date. Between the time Mr. El-linger saw the photo of the defendant in the hospital on November 7, 1972, and February 12, 1973, there is evidence in the record that Mr. Ellinger never saw the defendant. On February 12, 1973, at the request of Officer Moore, a detective on the Berkeley police force, the Identification Officer for the Berkeley Police Department, Officer Terrance Carty, showed Mr. Ellinger a video-tape of the lineup conducted on November 8, 1972, attended by Mrs. Lloyd. Neither the defendant nor his counsel were notified of this procedure nor were they present. At this showing the victim, Mr. Ellinger, selected the middle man in the five man lineup as the man who robbed him and his identification was not, he testified, based upon the video-tape but on “the defendant himself.” He later testified that his identification in court was based on his vision of the “gentleman at the time he shot me.” and was not based on the photographs nor on the video-tape. Defendant argues that even if this court does not conclude that his due process rights were violated, then we must decide the question whether his Sixth Amendment rights to assistance of counsel were violated by this procedure.

In ruling this point it is pertinent to note that defendant’s oral motion to suppress any identification testimony did not come until the morning of trial and the trial court was of the opinion that it came too late. Nevertheless, the trial court advised counsel for the defendant that if it appeared to him during the trial that the lineup identification was improperly obtained he would rule on it at that time and adequately protect the defendant’s constitutional and other rights. After hearing the evidence, the trial court ruled, despite defendant’s contentions to the contrary, that he found that “beyond a reasonable doubt the in-court identification made by the witness Ellinger was not tainted or biased in any way by the out of court exhibition to him either of the photographs or of the video-tape.”

With respect to this issue, the State in its brief agrees that defendant’s counsel should have been present for the showing of the video-tape to Mr. Ellinger. It reasons that if a live lineup had been held at the time of the showing of the video-tape counsel for the defendant would have had to have been present since this viewing was after the defendant had been formally charged. Its position is, however, that the State did not attempt to introduce evidence of the lineup identification by Mr. Ellinger, but the evidence came out in cross-examination of the witness and the issue before us then is not one of admissibility of the out of court lineup identification by Mr. Ellinger, but rather, whether there is an independent basis for the in-court identification which will overcome any taint which might have resulted from the video-taped lineup identification.

Defendant relies on Cox v. State, 219 So.2d 762 (Fla.Ct.App.1969), but, as the State points out in its brief, in Cox the evidence of the video-taped lineup “surreptitiously arranged” in the absence of defendant or his counsel came in during the State’s direct examination of one of its police officer witnesses. There are other distinguishing features between the two cases also. In Cox, the video-tape was made of the defendant while he was being “booked” at the jail and after the defendant had been advised of his Miranda rights and had stated that he did not want to talk until he had first spoken to an attorney. The video-tape showed the defendant moving about, talking and answering questions concerning his height, color of hair, name and color of eyes. Cox, it must be noted, was decided on February 11,1969, prior to Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, which was decided on June 7, 1972. In Kirby the Supreme Court held that a show-up after arrest, but before the initiation of any adversary criminal proceeding, unlike the post-indictment confrontations of Gilbert and Wade, was not a criminal prosecution at which the accused, as a matter of absolute right, was entitled to counsel. Thus, the basis for the Cox decision— “What the police could not have done directly, they should not be allowed to do indirectly through the miracles of modern science” — was invalidated.

However, we are here confronted with a different situation than either Cox or Kirby. The video-tape in this case was made prior to the initiation of any adversary proceeding as those terms are used in Kirby, but presented to a witness after the initiation of adversary proceedings and within two days of the commencement of trial. The State concedes that under these circumstances defendant’s counsel should have been notified and afforded the opportunity to be at the video-taped showing of the lineup to perform the same functions assigned him had this been a live lineup. We do not then have to decide that question here.

Assuming arguendo, that counsel’s attendance at the video-taped lineup in this case was necessary under Wade and Gilbert, the per se exclusionary rule announced in those cases is applicable only to the evidence of the admissibility of the lineup evidence in the prosecution’s ease unless we find that there was a taint to Mr. Ellinger’s in-court identification which could not be overcome by an independent source to support his in-court identification.

The fact of the showing of the video-taped lineup to Mr. Ellinger came out during the cross-examination of the witness conducted by defense counsel. At that time defendant’s counsel claimed surprise and denied any knowledge of this event. Fortuitously, this occurred at a time the trial court had chosen to take a noon recess, and a discussion out of the presence of the jury ensued. Defense counsel moved to strike the identification testimony of this witness on the grounds that a lineup was held without either his client or defense counsel being informed of it or being present. The trial court advised the defendant’s counsel that he understood the motion and it was denied. Arrangements were then made for defense counsel to view the video-tape prior to continuing his cross-examination of the witness. Defense counsel viewed the videotape lineup and immediately after the trial was resumed defense counsel continued his cross-examination of Mr. Ellinger relative to the showing of the video-tape lineup to him on February 12, 1973, including whether he made any identification off of the video-tape. Under these circumstances, the exclusionary rule announced in Wade has been waived by reason of the defendant himself putting into evidence the very evidence he is complaining about on appeal. Up to the time he developed that the witness had identified defendant in the videotaped lineup, all the jury was aware of by the cross-examination was that the witness had viewed a video-taped lineup on the prior Saturday at the Berkeley Police Department. It was the defendant who developed that Mr. Ellinger picked the defendant from the five men in the lineup as the one who robbed him. He cannot now be heard to complain.

We also conclude that, as we have stated earlier in this opinion, Mr. Ellinger had an independent source of identification apart from his viewing of the video-taped lineup which supports the trial court’s ruling on this issue. We rule this' point against the defendant.

The second point raised by the defendant is that the trial court erred in admitting into evidence State’s Exhibits 3 and 8 through 17, for the reason that his character was thereby improperly put in issue and he was then deprived of due process and a fair trial. The State responds that these exhibits were relevant to the identification of the defendant, and were, therefore, properly admitted. As too frequently happens, we are not favored by either of the parties to this appeal filing separately the original exhibits in this court by stipulation or, where it is impracticable to incorporate the exhibits in the transcript, by depositing them with the clerk of this court pursuant to Rule 81.15. What notations, if any, were on these photographs when they were admitted into evidence and passed to the jury we do not know, but from the record we deduce that they were marked so that whatever the notations were, they were concealed from the eyes of the jurors. One thing we do know though, is that the question of the identity of the defendant as one of the two robbers was the crucial issue in the case.

Defendant bases his contentions in this court on the grounds that these exhibits were inadmissible as evidence in this case because they were selected from the Berkeley Police files, that they therefore conveyed to the jury information that the defendant had a prior criminal record, and thereby put the defendant’s character into issue when he had not.

We gather from the record, without the benefit of the photographs themselves, that Exhibit 3 was a photograph of the defendant obtained from the Metropolitan St. Louis Police Department on November 7, 1972, after he had been taken into custody by a member of the St. Louis Metropolitan Police Department following a license check. Exhibits 11 through 16 and 18 were mug shots of other persons obtained either from the records of the Berkeley Police Department or the St. Louis Metropolitan Police Department for the purpose of a photographic display in an effort to learn whether any of the witnesses could identify one or more of those portrayed in the photos as one of the robbers. These eight exhibits were shown to Mr. Ellinger. Mrs. Lloyd was shown Exhibits 3, and 8 through 17, and selected from this number Exhibit No. 3 as a photo of the defendant, one of the robbers she had observed at the scene the day of the robbery.

Defendant, in his brief, acknowledges that State v. Donnell, 430 S.W.2d 297 (Mo.1968), held that out-of-court identification by means of police photographs was a proper part of the case where the identity of the accused was in issue, but he would distinguish Donnell on the ground that there the photographs were not passed to the jury for their inspection.

Defendant’s counsel, in his summation to the jury, called to the attention of the jury the vital issue in this case when he said: “The identification is the basis of this lawsuit. And I say to you, you don’t have an identification because . . .’’By reason of this fact, the identification of the defendant as one of the robbers testified to by both Mr. Ellinger and Mrs. Lloyd made their testimony concerning the out-of-court photographic identification relevant and also made the photographs obtained from the two police departments relevant and material on the issue of the accuracy of their identifications. State v. Jenkins, 516 S.W.2d 522, 526[10, 11] (Mo.App.1974).

Finally, the record is devoid of any objection by the defendant when these exhibits were passed to the jury for their inspection at the close of the State’s case. The only request made by defendant’s counsel at that time was that all of the photographs be passed to the jury in a group.

We rule this point against the defendant.

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.

      . The defendant had entered pleas of guilty to two charges of robbery and one charge of carrying a concealed weapon in the Circuit Court of the City of St. Louis; on December 27, 1972, he was sentenced to a term of 20 years in the custody of the Missouri Department of Corrections on each charge, said sentences to be served concurrently.

      . It was developed out of the jury’s presence by voir dire of Officer Moore that he had obtained defendant’s photograph after he had run a record check on the license number on the motor vehicle observed in the area and found that it was listed in defendant’s name. The police officer determined that the City Police Department of St. Louis had a photograph of the defendant on file and he went there to get it.

      . Because of United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1972), the photographic presentation of defendant’s photo to Mrs. Lloyd on the day prior to her testifying at trial was not viewed with respect to defendant’s Sixth Amendment rights, but, rather, as one of the “totality of the circumstances” considered on the question of tainting.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas BALL, Defendant-Appellant.
    No. 35710.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 14, 1975.
    Motion for Rehearing or Transfer Denied Nov. 19, 1975.

      Karl F. Lang, Kevin M. O’Keefe, St. Louis, for defendant-appellant.

      John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for plaintiff-respondent. "
   DOWD, Judge.

A jury found appellant guilty of murder in the first degree in connection with the death of Percy Thomas. The jury assessed punishment at life imprisonment. He appeals.

While appellant does not deny shooting Percy Thomas on April 7, 1972, he disputes the circumstances surrounding the shooting as attested by the state’s witnesses. Essie Bates testified that appellant told her that he was going to kill his estranged wife and Percy Thomas the day before the shooting and that appellant had purchased a .38 pistol with money he obtained from his girlfriend. Testimony by James Dismute and Sabrina Ball, appellant’s nine-year-old daughter, established that Dismute’s apartment adjoined the apartment occupied by Mrs. Ball and the Ball children by means of a common bathroom. On the day of the shooting, Percy Thomas and the Ball children had gone to the grocery store and bought some wine for Dismute. Dismute testified that appellant had held Dismute at gunpoint until Percy Thomas and the Balls returned and shot Thomas as he approached Dismute’s apartment through the bathroom. Dismute stated that Sabrina Ball was in the bathroom at the time of the shooting. Sabrina testified that she and Thomas entered the vacant bathroom and that Thomas knocked on Dismute’s door. She said that her father shot Thomas while Thomas was still in the bathroom. Both Dismute and Sabrina stated that no words or blows were exchanged before the shooting, and both stated that Thomas was carrying only a grocery bag and some money at the time of the shooting. Appellant ran from the house after shooting Thomas.

Appellant denied these facts and testified that Thomas had approached him prior to the shooting and had threatened appellant’s life. Appellant’s version of the events surrounding the shooting was that he had gone to visit Dismute on the day of the shooting. Appellant testified that, while in the bathroom, Thomas had threatened appellant with a knife and appellant shot in self-defense. Appellant stated that he did not see Sabrina in the bathroom at the time of the shooting.

Appellant claims that four errors occurred at his trial. In his first point on appeal, appellant argues that the trial court erred in qualifying Sabrina Ball as a witness since she did not “possess the attributes required of a witness under the age of ten years.” Section 491.060(2) RSMo 1969 provides that children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, shall be incompetent to testify. The statute merely creates rebuttable presumptions that a child over ten years old is competent to testify and that a child less than ten years old is not competent to testify. State v. Young, 477 S.W.2d 114, 116 (Mo.1972). Ultimately, the child’s competency is determined by the trial court on the basis of his apparent capacity. State v. Starks, 472 S.W.2d 407, 408 (Mo.1971). The trial court’s determination that the child is qualified to give testimony will be reversed only for a clear abuse of discretion. State v. Parton, 487 S.W.2d 523, 526 (Mo.1972); State v. Starks, supra; State v. Jones, 360 Mo. 723, 230 S.W.2d 678, 680 (Mo.1950); Burnam v. Chicago Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858, 862 (Mo.1936). Qualification of a child witness is not an abuse of discretion when it appears that the child has: (1) present understanding of or intelligence to understand on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observation. State v. Young, supra; State v. Parton, supra; State v. Jones, supra, at 681; Burnam v. Chicago Great Western R. Co., supra; Hildreth v. Key, 341 S.W.2d 601, 609 (Mo.App.1960).

Appellant first charges that Sabrina Ball was incompetent to testify because she neither understood nor had the capacity to understand an obligation to testify truly. Appellant bases this contention on Sabrina’s testimony that she did not know what the term “oath” meant. While Sabrina could not define “oath,” she did understand her obligation to tell the truth in her testimony. She testified that she knew that a lie is an untrue story, that she had promised God to tell the truth when she raised her hand during administration of the oath, and that God would punish her if she broke her promise and did not tell the truth in court. A child need not understand the term “oath” in order to give testimony, provided the child exhibits some present understanding of the obligation to give true testimony. State v. Starks, supra, at 409. If the child evidences some belief in God and punishment for false testimony, this is sufficient. State v. Robertson, supra, at 846-847; State v. Greer, 313 S.W.2d 711, 713 (Mo.1958); Burnam v. Chicago Great Western R. Co., supra, at 861-62. Although dicta in State v. Jones, supra, mentions the child’s failure to understand the oath, the court’s decision to disqualify the witness was based on other grounds. The child was disqualified because her testimony was totally inconsistent with all other evidence before the court. State v. Jones, supra, at 681. Since Sabrina did indicate an understanding of her obligation to speak truly, and since Sabrina’s testimony was not impossible, but on the contrary was consistent in the main with the testimony of the other eye-witness, the trial court did not abuse its discretion by finding that Sabrina understood her obligation to give true testimony.

Appellant next charges that Sabrina Ball was incompetent to testify because she lacked capacity to observe, register, and remember the occurrence in question or lacked capacity to truly translate her memory into words at the time of the trial. Appellant bases this contention on the inconsistencies present in Sabrina’s testimony. Portions of Sabrina’s testimony lack clarity or contain inconsistencies. These unclear or inconsistent statements usually relate to collateral matters. While Sabrina evidenced confusion when questioned about times, dates, measurements, and places, this inability to comprehend abstractions does not negate Sabrina’s ability to observe and remember the shooting she witnessed. When the nature of the occurrence or the child’s relation to the occurrence is such as to create a stronger impression, the courts will consider that in passing on the child’s competence. State v. Parton, supra, at 525-526; Burnam v. Chicago Great Western R. Co., supra, at 862. Here, Sabrina witnessed a violent crime. Such an occurrence is likely to make a strong impact upon a child’s mind and is likely to create a more lasting memory than the recollection of time, place and names. Indeed, Sabrina’s testimony concerning the events of the day of the shooting is clear in large part.

Appellant relies heavily upon Hildreth v. Key, supra, and State v. Jones, supra, and argues that inconsistencies in Sabrina’s testimony disqualify her as a witness. Hil-dreth v. Key is inapplicable to this argument. That case did not involve a child’s capacity to observe, remember, and relate facts; the case dealt only with a child’s understanding of the obligation to speak truly. In dicta the court noted (at 609-12) that the trial court should be sure testimony given by the child arises from independent recollection, but the court also noted that children have been held competent when they have witnessed brutal crimes. State v. Jones can also be distinguished from the instant case. In that case, testimony given by the child relating to the crime charged was totally inconsistent with testimony given by others and the physical facts shown. The child’s testimony was impossible. Unlike the testimony in State v. Jones, Sabrina’s testimony concerning the events surrounding Percy Thomas’s death is corroborated on all major points by the testimony of the other eye-witness.

The inconsistencies present in Sabrina’s testimony are not such to require reversal of the trial court. As noted above, most of these inconsistencies relate only to collateral matters. Sabrina’s testimony is inconsistent in relation to non-collateral matters in only two respects. Sabrina was confused as to whether she could or could not see Dismute in his apartment and as to who opened doors in the bathroom. The confusion is quite possibly due to Sabrina’s misunderstanding of the questions asked by counsel. The record indicates several other instances in which Sabrina and defense counsel had difficulty in understanding each other. However, Sabrina’s testimony concerning the basic facts was relatively clear and confirmed by Dismute’s testimony. Sabrina and Thomas returned from the grocery store and entered the bathroom leading to Dismute’s apartment. Appellant shot Thomas before Thomas entered Dis-mute’s apartment while carrying only groceries and money and before any words or blows were exchanged. The trial court must disqualify a child witness when the child’s testimony is so inconsistent with the record that the testimony is impossible. State v. Jones, supra. However, if the inconsistencies do not vitiate the child’s testimony, such inconsistencies merely affect the credibility of the witness and do not incapacitate the child from giving testimony. State v. Obie, 501 S.W.2d 513, 514-515 (Mo.App.1973). We do not believe the trial court abused its discretion in finding Sabrina competent to testify. Inconsistencies present in her testimony pertain to her credibility rather than her competency.

In appellant’s second point on appeal, he argues that the court erred in permitting certain of the questions asked Sabrina Ball in the preliminary, qualifying examination to be repeated before the jury. The appellant maintains that such questioning improperly bolstered the testimony of Sabrina Ball. The trial court here followed the proper procedure and ruled Sabrina competent to testify following a preliminary examination outside of the hearing of the jury. State v. Tandy, 401 S.W. 409, 418 (Mo.1966); Pollard v. Decker, 354 S.W.2d 308, 314 (Mo.App.1962). We are not aware of any case which rules that certain of the qualifying questions cannot be repeated before the jury after the child has been qualified to testify. In this case, Sabrina repeated her name, her age, her school and grade, the name of her church and minister. She repeated that she knew the difference between truth and falsehood, that she had promised God to tell the truth in court by administration of the oath, and that God would punish her if she broke that promise. We do not believe that such testimony improperly bolstered Sabrina’s testimony. In effect Sabrina merely repeated the oath and its meaning in the presence of the jury, as she had done during her preliminary examination. Sabrina’s testimony bolstered her other testimony no more than the oath of any witness. Rather, the questioning called attention to the doubts entertained about Sabrina’s testimony. If anything, the questioning detracted from Sabrina’s credibility. Sabrina was extensively cross-examined both on the issue of competency and her testimony concerning the event she had witnessed. Under such circumstances, we can find no prejudice to the appellant by permitting Sabrina to repeat that she understood her obligation to speak the truth.

In his third point on appeal, appellant argues that the trial court erred in excluding testimony by Officer William Reynolds and medical records from City Hospital concerning injuries sustained by Sabrina Ball in January, 1972. Appellant asserts that such evidence was admissible to impeach Sabrina Ball. In her testimony, Sabrina claimed that she had never been cut by Percy Thomas. The testimony excluded by the trial court would have proved that Sabrina had been treated for cuts. Appellant does not dispute that Mrs. Ball’s statements made to Reynolds and in the medical records that Percy Thomas had caused the injuries is inadmissible hearsay evidence. See Stewart v. Sioux City & New Orleans Barge Lines, Inc., 431 S.W.2d 205, 210-211 (Mo.1968); Kraus v. Kansas City Public Service Co., 269 S.W.2d 743, 746 (Mo.1954). A party is entitled to impeach the testimony of an opponent’s witness, provided such impeachment does not concern immaterial or collateral matters. State v. Alexander, 499 S.W.2d 439 (Mo.1973); State v. Taylor, 486 S.W.2d 239, 244 (Mo.1972). If the impeachment relates to collateral matters, the party is bound by answers given upon cross-examination. State v. Johnson, 486 S.W.2d 491, 496 (Mo.1972); State v. Miles, 412 S.W.2d 473, 476 (Mo.1967); Switzer v. Switzer, 373 S.W.2d 930, 939 (Mo.1964). The trial court is accorded a reasonable latitude in admitting or excluding evidence of this type. State v. Alexander, supra, at 444.

We hold that the trial court did not abuse its discretion by excluding the evidence here in question. Whether or not Sabrina was injured in January of 1972 is a collateral matter, and appellant was bound by Sabrina’s response on cross-examination. A matter is non-collateral if it is a matter about which the witness could not be mistaken if the witness were present and had seen what he claims to have seen. State v. Alexander, supra, at 443. When the fact in dispute is of no material significance in the case or is not pertinent to the issues as developed, the matter is collateral. State v. Miles, supra, at 476. Since Sabrina’s denial of her injuries does not prove that she was not present at the scene of the shooting to observe the events disclosed in her testimony, the matter is collateral.

In his final point on appeal, appellant argues that the trial court erred in prohibiting appellant’s counsel from arguing that the defendant believed decedent had attacked his child. The appellant also argues that the trial court’s remark that no evidence supported the argument was an improper comment on the evidence which prejudiced the defendant. Appellant’s claims arise out of the following exchange:

“MR. LANG [appellant’s counsel]: Now, is he going to wait four years to suddenly shoot this man? Didn’t he have provocation years ago? . . . Didn’t he have provocation when this man, years before, had burned his child and cut his child? Didn’t he have provocation—
“MR. FREDERICKS: One moment. I object to this. There is no evidence in this case at all as to the burning and cutting.
“THE COURT: Members of the jury: The argument of counsel is objectionable. The objection will be sustained. You will not consider that in your deliberations.
“Proceed.
“MR. LANG: You will remember that Essie Bates said “I took him [defendant] over to where she was and they were both injured” and who did she say did it? Percy Thomas did.
“MR. FREDERICKS: I object to that. There was no evidence of that at all. I will object to it and ask that it be sustained.
“THE COURT: Mr. Lang, you will refrain from discussing this matter because there is no evidence before this jury regarding that.
“MR. LANG: May we approach the bench?
(Whereupon, the following proceedings took place at the bench, outside the hearing of the jury:)
“MR. LANG: Your Honor, there is evidence. There is evidence from Essie Bates that Percy Thomas injured the child. There is evidence from Thomas Ball himself who testified Sabrina Ball told him who injured her and how she was injured.
“THE COURT: The objection to the argument will be sustained.”
(Thereupon, the proceedings were then resumed within the hearing of the jury).

We note, initially, that questions of the propriety of oral argument are addressed to the discretion of the trial court, and an appellate court will not interfere absent abuse of that discretion and prejudice to appellant. State v. Jewell, 473 S.W.2d 734, 741 (Mo.1971); State v. Deutschmann, 392 S.W.2d 279, 284-85 (Mo.1965); State v. Cromwell, 509 S.W.2d 144, 148 (Mo.App.1974). Counsel’s argument may properly comment on matters in evidence and on any legitimate inferences to be drawn therefrom. State v. Fields, 314 S.W.2d 723, 725 (Mo.1958). Here, appellant’s counsel sought to argue that appellant lacked deliberation when he shot Percy Thomas because appellant believed Thomas had injured his daughter several months prior to the shooting and took no action prior to April, 1972. The trial court erred in prohibiting this argument since there was evidence to support it. Appellant testified that Thomas admitted injuring the Ball children during an encounter with the appellant prior to the shooting, and that Sabrina had told the appellant that Thomas had hurt her. The record is devoid of any other evidence indicating that Thomas hurt the Ball children, although some testimony was given that the Ball children had been injured.

While we agree that the trial court erred in prohibiting counsel from arguing that appellant believed his children had been injured by Thomas, we find that the error did not prejudice the appellant. If the appellant believed that Thomas had hurt his children several months before the shooting and took no action until April, 1972, this fact strengthens the inference that the appellant had acted with deliberation. State v. Mitchell, 408 S.W.2d 39, 42-43 (Mo.1966); State v. Lloyd, 337 Mo. 990, 87 S.W.2d 418, 422-23 (Mo.1935). In addition, defense counsel’s argument could not be used to support the appellant’s assertion that he had killed in self-defense. The reputation of character of the decedent for violence cannot be established by proof of specific acts of violence against persons other than the appellant. State v. Maggitt, 517 S.W.2d 105 (Mo. banc 1974); State v. Nelson, 484 S.W.2d 306, 308 (Mo.1972); State v. McDonald, 527 S.W.2d 380 (Mo.App.1975). We are simply unable to discern any proper usage of this argument which would have benefited the appellant, and we hold that the trial court’s restriction of this argument was non-prejudicial error.

We turn now to the question as to whether any of the court’s remarks may be construed as improper comment under the provisions of Section 546.380 RSMo.1969 or Rule 26.09, its counterpart. Statements by a trial judge summarizing what the judge believes to be in evidence must be considered in their contexts, and are not improper unless the statements indicate to the jury that it is not to reach its own determination of the facts. State v. Fields, supra, at 725. No improper comment has been found when the court’s remarks are addressed to counsel in ruling upon an objection. State v. Edmonds, 347 S.W.2d 158, 165 (Mo.1961); State v. Selman, 391 S.W.2d 193, 195 (Mo.1965). Appellant’s argument relies heavily upon State v. Fields, supra. However, two important differences distinguish State v. Fields from this case. First, the comment held improper in State v. Fields was not made in response to an objection as a part of the court’s ruling but was volunteered by the trial judge. Second, the trial judge in State v. Fields stated what the facts were “as a matter of law.” The appellate decision notes that the general rule permitting the trial court to summarize the evidence in explanation of its ruling is inapplicable under such facts. State v. Fields, supra, at 725. In the case before us, the trial judge’s statements were made in response to objections as a part of his ruling. The remarks do not constitute a statement of the facts as a matter of law. The statements are not improper when considered in connection with the circumstances under which they were made.

Unable to find any prejudicial error committed by the trial court, we affirm the judgment.

WEIER, P. J., and RENDLEN, J., concur.

      . The appellate court should consider the testimony given during the preliminary examination and during the trial to determine whether the trial court’s decision was an abuse of discretion. State v. Robertson, 480 S.W.2d 845, 846 (Mo.1972).