author: STEPHAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory SYKES, Defendant-Appellant.
    No. 38965.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 25, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.

      Allan M. Goodloe, Jr., Paul E. Corning, Jr., Clayton, for defendant-appellant.
    John M. Morris, III, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   STEPHAN, Judge.

Defendant Gregory Sykes appeals from a conviction entered in accordance with a jury verdict finding him guilty of robbery in the first degree and sentencing him to imprisonment for a period of fifteen years. Defendant contends that the trial court erred in (1) failing to grant a mistrial when the prosecutor asked allegedly improper questions of him on cross-examination; (2) failing to grant a mistrial when the prosecutor incorrectly stated facts in the closing argument; and (3) admitting into evidence a photograph of a lineup without proper foundation. We find appellant’s contentions to be without sufficient merit to disturb the judgment and, accordingly, affirm.

Defendant does not attack the sufficiency of the evidence; we therefore set forth only such facts as are necessary to dispose of his points. Mr. Carrol Pashea, the owner-manager of a Quick Shop store located at 9138 West Florissant, Ferguson, Missouri, testified that at 10:15 a. m. on March 2, 1976, defendant entered his store, displayed a revolver, and demanded the money in the two cash registers and the safe. In “fear of being shot” Pashea surrendered the money, totaling $500 to $600, to the defendant. In accordance with a further order from the defendant “to lay down on the bathroom floor for ten minutes and don’t come out until then,” Pashea stayed in that room for a few minutes. When he emerged, the defendant was gone. A woman, Gloria Res-tivo, was using the telephone. He asked her to relinquish the use of the phone so that he could report the robbery. Mrs. Res-tivo identified defendant as a man she saw leaving the Quick Shop as she parked her automobile in front of it.

On March 10, 1976 defendant was taken into custody in the City of St. Louis by two Ferguson police officers, Detectives Nelson and Bortz, and was taken to the Ferguson police station where he was booked, photographed in a lineup, and advised of his Miranda rights. He gave both an oral and written statement admitting the commission of the robbery. At the time defendant was apprehended he had in his possession a pistol, which the police seized. A defense motion to suppress all physical evidence seized at the time of arrest was sustained prior to the swearing of the jury.

Testifying in his own behalf, defendant admitted that he was then serving thirty-five years in sentences imposed for robberies of other Quick Shops to which he had confessed after his arrest but steadfastly maintains his innocence of this particular crime. He conceded that he had signed the written statement which had been placed in evidence but denied its truthfulness, saying that he had given it in order to cooperate with the police. A portion of the statement reads, “I pulled the pistol . .’’On direct examination, defendant stated that his reference to the gun was “just something that I thought of.” On cross-examination, the following occurred which gives rise to defendant’s first assignment of error:

“Q (by Mr. Robyn): At the time you were arrested in the City of St. Louis what did you have on your person?
MR. GOODLOE: Objection; irrelevant and immaterial.
MR. ROBYN: May I finish the question?
THE COURT: Let him finish the question.
MR. GOODLOE: Okay.
MR. ROBYN: Don’t answer until the Judge has ruled, but let me ask my question.
Q What did you have on your person that Detective Nelson took away from you?
MR. GOODLOE: Objection; assumes facts not in evidence. It’s already been ruled on.
THE COURT: I will sustain the objection.
MR. GOODLOE: Improper question. At this time I would like to ask for a mistrial. I’d like to approach the Bench on it.”

There then followed a colloquy at the bench out of the hearing of the jury during which the court reiterated that it was sustaining the objection but denying the request for a mistrial. The cross-examination then resumed:

“Q (by Mr. Robyn): Now you indicated when you wrote in that statement T pulled a gun’, that was something you thought of. Right?
A Yes.
Q Something that you thought of, not that the officer told you to put in there. It was something that you thought of. Correct?
A Yes.”

Defendant argues that the prosecutor’s unanswered question concerning what the the arresting officer “took away” from him, in light of the prior ruling on the motion to suppress, required a mistrial. The superior opportunity of a trial judge to assess whether occurrences at trial prejudice a defendant’s rights has often been recognized, and an appellate court may not disturb the lower court’s denial of a motion for mistrial unless the ruling constitutes an abuse of discretion. State v. Brown, 554 S.W.2d 574, 579 (Mo.App.1977); State v. Harris, 535 S.W.2d 145, 150 (Mo.App.1976); State v. Few, 530 S.W.2d 411, 414 (Mo.App.1975). In view of the fact that the trial court had granted the motion to suppress evidence seized at the time of the arrest, the mere asking of the question may have bordered on prosecutorial impropriety. However, the objection was sustained; the question was not answered. It cannot be said as a matter of law that the prosecutor’s conduct deprived defendant of a fair trial. Therefore, we cannot hold that the trial court abused its discretion in denying the request for a mistrial. Cf. State v. Morgan, 546 S.W.2d 207, 209 (Mo.App.1977).

Defendant also contends, in connection with his first point, that the effect of the questions relating to what occurred at the time of his arrest was exacerbated by the fact of their juxtaposition to the questions concerning how he happened to refer to a gun in his written statement. In oral argument, his able counsel stated that the change of subject matter was a blatant effort to suggest to the jury that the defendant was carrying a gun at the time of his arrest. Such argument is tenuous at best. The jury had heard the court sustain the objection to questions concerning the arrest and had seen the colloquy at the bench. The jury could well have concluded that, having had one avenue of cross-examination foreclosed, the prosecutor was exploring a new unrelated area, albeit one that had been opened up during direct examination. However, we need not speculate, for defense counsel failed to object or renew his request for a mistrial; and the trial court did not see fit to invoke any curative measures sua sponte. As discussed above, we defer to the trial court’s assessment and hold the point to be without merit.

Appellant’s second point arises out of the following portion of the closing argument on behalf of the state:

“MR. ROBYN: ... And Gregory Sykes himself tells you: ‘I am the man that did it.’
MR. GOODLOE: I will object. He never stated that. That’s a complete falsehood, and I ask for a mistrial, if he is going to misstate testimony that blatantly.
THE COURT: I’ll overrule the request for a mistrial. The jury will recall what the evidence was.
MR. ROBYN: When you get back there you remember what Nelson told you. He said orally, and you read what he said in his written statement, ‘and then I pulled the pistol on the man and said “empty the cash register and open the safe and give me the money.” ’ You read it and see if I have distorted it.”

Defendant contends that the prosecutor’s statement “And Gregory Sykes himself tells am the man that did it,”’ constitutes a prejudicial misstatement of the evidence that the trial court erred in failing to grant a mistrial and in failing to take sufficient curative measures. Applying the standards discussed in connection with the first point, we find no abuse of discretion in the denial of the request for a mistrial and hold that the court’s admonition that “The jury will recall what the evidence was,” constituted an adequate “curative measure” to dispel any possibility of confusion caused by the prosecutor’s statement. See State v. Coleman, 441 S.W.2d 46, 53 (Mo.1969). In light of the fact that the defendant testified at length that he did not commit the crime, the jury could not have been misled by the prosecutor’s statement. Furthermore, the prosecutor’s words immediately following the court’s ruling demonstrate beyond question that he was not making reference to the defendant’s testimony, but rather to the oral and written statements given by the defendant to the police at the time of his arrest. We rule the point against the defendant. you: T

Defendant’s final assignment of error relates to the admission into evidence of a photograph of defendant in a lineup with five other persons. Both Mr. Pashea and Mrs. Restivo testified that when Detective Nelson visited them separately each pointed out the defendant, the second man from the right, as the man who committed the robbery (Pashea) or the man seen leaving the Quick Shop (Restivo). Defendant contends that no proper foundation was laid for admission of the photograph in that no one testified that it was a fair and accurate representation of the lineup or of the way the defendant looked at any given time, and no one described the circumstances under which it was taken. A review of the transcript refutes defendant’s contentions in this regard. Ferguson Police Officer Lee Hackworth identified the photograph on the basis that he “took” it at the Ferguson police station on March 10,1976, the date of defendant’s arrest. Detective Nelson testified as to how the participants were positioned in the lineup, that the photograph depicted “exactly” what a person would see looking through the window at the lineup room, and that the six persons in the lineup appeared “as the photograph shows”. Although it perhaps would have been more conventional practice to have elicited such evidence at one point in the trial so as to obviate the necessity for a line-by-line search of the transcript, all evidence which defendant claims necessary to qualify the photograph appears.

As identifying witnesses, Mr. Pashea and Mrs. Restivo could both properly testify to their extrajudicial identification of the defendant from the photograph. State v. Degraffenreid, 477 S.W.2d 57, 62[12] (Mo.banc 1972). The photograph itself then became relevant and material on the issue of the identification by the witnesses and was properly admitted into evidence. State v. Jenkins, 516 S.W.2d 522, 526[10, 11] (Mo.App.1975); State v. Holmes, 389 S.W.2d 30, 34[5] (Mo.1965).

The judgment is affirmed.

STEWART, P. J., and REINHARD, J., concur.


source: Caselaw Access Project

author: DOWD, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Cliff CROWLEY, Appellant.
    No. 38617.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 8, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.

      Kenneth R. Singer, Howard, Singer & Meehan, St. Louis, for appellant.

      John D. Ashcroft, Atty. Gen., Preston Dean, Paul Robert Otto, Jefferson City, Carson W. Elliff, Asst. Attys. Gen., George A. Peach, Circuit Atty., St. Louis, for respondent.
   DOWD, Presiding Judge.

Defendant Cliff Crowley was convicted by a jury of four counts of robbery in the first degree by means of a dangerous and deadly weapon § 560.135 RSMo 1969. He was sentenced to fifteen years imprisonment for each count, to run concurrently. Defendant appeals, and contends that the trial court erred in (1) not allowing defendant to raise the affirmative defense of mental disease or defect at the time of the alleged offense (2) allowing the introduction of a weapon into evidence where the State did not lay a proper foundation for its admission; and (3) overruling defendant’s motion for suppression of a confession which was not voluntarily and knowingly made. We affirm.

The first contention is that the trial court should have allowed defendant to raise the defense of mental disease or defect at the time of the alleged offense. Defendant was arraigned and pleaded not guilty on September 25, 1975. On October 6 defendant, then represented by a public defender, filed a motion for psychiatric examination. The motion was withdrawn on October 22. Defendant’s present counsel then entered his appearance on November 17 and subsequently, on April 27, 1976 the motion for psychiatric examination was reinstated. The motion was sustained, and defendant was examined by a state psychiatrist who reported to the court on July 29 that defendant was competent to proceed with trial.

Section 552.020(3) RSMo (1969) details the contents of a psychiatric examination report. Among other things, the report is to include an opinion as to whether at the time of the alleged criminal conduct the accused as a result of mental disease or defect did not know or appreciate the nature, quality, or wrongfulness of his conduct or as a result of mental disease or defect was incapable of conforming his conduct to the requirements of law. § 552.-020(3), (4) supra. If the accused disputes the finding of the psychiatrist within five days after the filing of the report, he is entitled to be examined by a private physician of his own choosing. § 552.020(4) As neither the accused nor his counsel contested the psychiatrist’s findings, the case was removed from the Mental Docket and set for trial. On September 22, 1976, six days before trial, defendant filed notice that he intended to raise at trial the defense of mental disease or defect at the time of the alleged crime.

Section 552.030(2) RSMo 1969 provides that the defense of mental disease or defect at the time of the crime should be raised at the time of defendant’s plea of not guilty, or by written notice ten days thereafter, or at such time as the court may for good cause permit. To establish good cause where the motion does not support itself, the accused should offer evidence either supporting the merits of the motion or establishing good cause for the late filing of the motion. State v. McIntosh, 492 S.W.2d 843, 844[1] (Mo.1973); State v. Lowe, 442 S.W.2d 525, 528[2] (Mo.1969). If the defense is not raised in accordance with the .statutory requirements, the trial court has considerable discretion in determining whether the defendant has shown good cause for the late request. State v. Holmes, 439 S.W.2d 518, 520[3] (Mo.1969).

We do not believe the record indicates the trial judge abused his discretion. At the pretrial hearing on the motion appellant advanced four reasons why the motion to use the defense should be sustained. The first was that until the time written notice was given, appellant could not afford a private psychiatrist. However, no evidence was presented to show that appellant was unable to obtain the necessary funds for the psychiatrist before trial. The second reason was that counsel did not learn until September 24, 1976 when appellant’s own psychiatrist conducted an examination that defendant could have a defense on the ground of mental defect. However, appellant’s assertions that he had given the State ample notice of his reliance on the defense indicates that appellant knew or should have known of the possibility of this defense. The third reason was that present counsel was not retained until almost two months after arraignment and thus was unable to comply with the statute. However, we note that present counsel had been counsel of record for over ten months before trial and had sufficient opportunity to file notice. State v. Vansandts, 540 S.W.2d 192, 205 (Mo.App.1976).

Defendant also asserts that putting the state “on notice” that his denial of guilt is based on mental disease or defect is sufficient to comply with the terms of the statute. The purpose of § 552.030(2) is “to prevent the surprise use of such defense precluding adequate rebuttal by the prosecution.” State v. Holmes, supra, at 520[3], In furtherance of this purpose, the statute sets forth specific requirements for raising the defense of mental disease or defect. Merely putting the State “on notice” that denial of guilt is based on this defense does not comply with these requirements. The statute also grants the trial court discretion to permit use of the defense where good cause is shown. For the reasons discussed above, we do not believe the record indicates the trial court abused its discretion in denying defendant’s motion to use the defense of mental disease or defect.

Defendant’s next point is that the State did not establish the requisite legal connection between appellant and a shotgun allegedly used in the commission of the crime and hence the shotgun should not have been admitted into evidence for lack of proper foundation. The relevant facts indicate that on August 17,1975 at approximately 1:00 a. m. defendant and a companion entered the Boulevard Lounge located on the 7100 block of Manchester Avenue in the City of St. Louis. Defendant was carrying a double-barreled sawed-off shotgun. One of the men announced “this is a holdup” and told everyone to get on the floor. The testimony of three customers in the tavern established the similarity between the holdup weapon and the gun presented as evidence at trial. Richard Brown, who was playing pool, testified at trial there there was an interval of 15-20 seconds from the time he looked up at defendant and the shotgun and then laid down on the floor. He testified that there was enough light so that he could recognize the weapon as a sawed-off double-barreled .12 gauge shotgun. He also testified that the shotgun exhibited at trial appeared to be the same type of weapon used in the robbery. Carrollynn Colbert was sitting at the piano bar when defendant entered the room. She also testified that before she was ordered to lie down on the floor she looked directly into the barrel of the gun. She described the weapon as a double-barreled shotgun and stated that the exhibit was very similar to the one used that night. Christopher Colbert testified that he viewed defendant for approximately 90 seconds before lying down on the floor. He identified the exhibit as “approximately like” the weapon used in the robbery. While these customers were on the floor defendant took their money and Carrollynn Colbert’s handbag. Thereafter he and his companion fled through the front door.

Two St. Louis Metropolitan Police Officers were called to the scene by a silent burglar alarm. They stopped their cruiser near the corner of Blendon and Manchester, east of the lounge, just as the robbers were leaving the scene of the crime. When defendant saw the cruiser, he ran north across an adjacent parking lot to the rear of the lounge. Officer Deschler testified that he saw defendant carrying a paper bag, but neither officer saw defendant with a shotgun. Later that morning the shotgun allegedly used in the offense was found at the rear of the lounge with Carrollynn Colbert’s handbag.

This evidence more than adequately substantiates the linkage between defendant and the shotgun necessary to sustain admissibility. It is firmly established that identification by witnesses of articles offered into evidence need not be wholly unqualified so as to make them admissible. State v. Kern, 447 S.W.2d 571, 575 (Mo.1969); State v. Johnson, 286 S.W.2d 787, 791 (Mo.1956); State v. Chambers, 550 S.W.2d 846, 849 (Mo.App.1977); State v. Hollins, 512 S.W.2d 835, 839 (Mo.App.1974). If testimony concerning physical objects found near the scene of a crime which tend to show the way in which the crime is committed but not otherwise connected with the defendant is admissible, the physical objects themselves are also admissible. State v. Henderson, 510 S.W.2d 813, 820 (Mo.App.1974). The shotgun along with a victim’s handbag was found in a place to which appellant retreated after being spotted by police. Because that fact corroborates the witnesses’ testimony on an issue of the case and has probative value, it may be considered by the jury. State v. Henderson, supra, at 821[8].

The final point that defendant raises is that his confession should not have been admitted into evidence because the State did not prove that the confession was voluntarily and knowingly made. After the appellant was apprehended by the police, he was returned to the lounge for identification purposes. He was positively identified by an employee and patron of the lounge and, consequently, was placed under arrest. Officer James Smith testified that at that time he read defendant the Miranda warnings. A scuffle thereupon ensued between defendant and police in which, according to hospital records, defendant suffered facial contusions. Thereafter, defendant was taken to a city hospital for treatment and then to the police station. Again the Miranda warning was read to him by Officer Smith. Defendant then indicated in the presence of Officers Smith and Gelhard that he understood his rights and confessed to the robbery. Officer Smith testified that he did not believe defendant was drunk at the time of the confession and that he had not been subject to physical force while at the police office. Defendant testified that the day of the offense he had consumed large quantities of liquor and had been under the influence of drugs. He could only vaguely recall the scuffle with police and he did not recall making a confession.

The State has the burden of showing that a confession has been voluntarily made by a subject in custody. State v. Williams, 369 S.W.2d 408, 418[4] (Mo. banc 1963). That burden is met when the State makes a prima facie showing of voluntariness. State v. Hunter, 456 S.W.2d 314, 316[5] (Mo.1970). The State need only show that at all stages of interrogation the defendant was informed of his constitutional rights, was capable of understanding these rights, and that no physical force, threats, promises or coercive tactics were used to obtain the confession. State v. Hunter, supra, at 316[7]. The State is not required however, to negative every possible circumstance which could raise a question as to whether the confession was voluntary. If defendant contends there were special circumstances that caused an involuntary confession, it is incumbent on him to present evidence supporting his contention. State v. Nolan, 423 S.W.2d 815, 818[8, 9] (Mo.1968). Failure to do so will result in the admission of the confession.

The testimony of the police officers who took defendant’s statement is sufficient to establish a prima facie case that the confession was voluntarily and knowingly made. State v. McConnell, 529 S.W.2d 185, 189[3] (Mo.App.1975); State v. Blankenship, 526 S.W.2d 78, 82[5] (Mo.App.1975). The fact the defendant may have been drinking heavily and under the influence of drugs the previous day does not automatically render the confession involuntary. State v. Heather, 498 S.W.2d 300, 305[5] (Mo.App.1973); State v. Thomas, 522 S.W.2d 74, 76[3] (Mo.App.1975).

The basic issue is whether the confession was the product of an intellect capable of understanding the consequences of his actions. State v. Heather, supra, at 304[6], The testimony is conflicting regarding the voluntariness of the confession here, since the police officers testified that defendant did not appear intoxicated at the time of the confession, while defendant did not recall making the confession at all. In such a situation, admission of the confession into evidence by the trial court is a matter of discretion, and we defer to the trial court’s ruling on the credibility of witnesses unless manifest error has been committed. State v. Blankenship, supra, at 82, [6, 7]; State v. Anderson, 384 S.W.2d 591, 604[23] (Mo. banc 1964). We believe there was sufficient evidence for the trial court to conclude the confession was voluntarily made.

Judgment is affirmed.

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


author:
SMITH, Judge. SMITH, Judge,
      McMILLIAN, Judge,

text:
    Ernest TURLEY, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 38788.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 8, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.
    John A. Eigel, Warrenton, for plaintiff-appellant.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
   SMITH, Judge.

Appellant, Ernest Turley, appeals from a judgment entered by the circuit court denying, without an evidentiary hearing, his Rule 27.26 motion for post conviction relief. On October 5, 1972, the circuit court of Warren County entered judgment of conviction upon a jury verdict finding appellant guilty of armed robbery and sentenced him as a second offender to twenty (20) years imprisonment. On appeal we affirmed this conviction. State v. Turley, 518 S.W.2d 207 (Mo.App.1975). In his 27.26 motion, appellant contends that his prior convictions were invalid because he was without assistance of counsel and therefore, he was improperly sentenced as a second offender. He requests to be sentenced without consideration of these allegedly invalid convictions. This would presumably, however, require a new trial on guilt.

The state argues that because the appellant did not raise this issue in the direct appeal of his conviction he is precluded from asserting it in his 27.26 motion.

This case is governed by Gamache v. State, 548 S.W.2d 594 (Mo.App.1977), decided by this court. The facts are almost identical to the present case. Gamache was convicted of robbery and sentenced pursuant to the Second Offender Act. In his 27.26 motion he alleged that the Act was inapplicable to him because his previous convictions were without counsel and without a voluntary waiver of counsel. The trial court denied the motion without an evidentiary hearing, because Gamache failed to raise this issue on the direct appeal of his conviction. We affirmed, relying on McCrary v. State, 529 S.W.2d 467 (Mo.App.1975). In McCrary this court stated: “. . .an issue which could have been raised on direct appeal, even though it is a constitutional claim, may not be raised in a post conviction motion, except ... in rare and exceptional circumstances. . Id. at 472.

There are no such rare and exceptional circumstances set forth in Turley’s motion. See also Montgomery v. State, 529 S.W.2d 8 (Mo.App.1975).

Judgment affirmed.

CLEMENS, P. J., concurs.

McMILLIAN, J., dissents in separate opinion.

SMITH, Judge,

concurring.

I concur in the majority opinion, which adequately covers the matters raised by movant in his brief. In view, however, of the attack leveled ex gratia by the dissent against McCrary v. State, 529 S.W.2d 467 (Mo.App.1975) and Gamache v. State, 548 S.W.2d 594 (Mo.App.1977), I believe some expression of my personal reasons for believing those opinions to be sound is warranted.

I start from the basic belief that any sound judicial system must function with rules of procedure and rules of evidence. If these rules are followed, the trial of litigated matters should result in presenting to a jury the evidence and law upon which it must make its factual decision. Our system is an adversary one and, with few exceptions, invocation of the rules of evidence is a responsibility of the litigant acting through his attorney. This is a part of our procedure. The trial judge functions as a neutral arbiter. Again, with few exceptions, it is not the court’s function to intervene in the handling or strategy of the trial or to make evidentiary rulings where none are requested. This is for good reason. The lawyer and his client are presumably far more knowledgeable about the strengths and weakness of the litigant’s case and are in a far better position to determine the strategy which will be utilized in the trial than is the trial judge.

Our rules of procedure, therefore, require that evidence which is objectionable be objected to. If it is not, it is presumed that the litigant does not desire to prevent its admission — in short, the objection is waived. If the rules of evidence and of procedure are followed, it may also be presumed that a fair trial has occurred and that the determination of the fact finder has been made upon a proper consideration of the evidence and law before it. Any sound judicial system must also provide for the termination of litigation. If matters are to be relitigated because a litigant has decided that he should have tried the case differently, then obviously litigation will never end for the possibilities of strategy and tactics are nearly endless. Our judicial system, therefore, has established a basic concept that if a suit has been fairly tried it is not to be tried again simply because a litigant has a new theory or strategy.

However, there must necessarily be exceptional situations where circumstances are such that absolute adherence to the above mentioned precepts will result in injustice. This is particularly true in the criminal law area, where the courts are dealing with the life and freedom of the individual. These are accorded such ultimate priority in our system of government that special rules have been created to insure that injustice does not occur. But, those rules are triggered by exceptional circumstances. Rule 27.26 is such a rule.

The dissent has lifted the language of Rule 27.26(b)(3) from the context of the entire rule and concluded that Rule 27.26 is available anytime a prisoner in custody alleges a trial error having constitutional basis. I have several difficulties with this approach.

First, I doubt that a trial error exists if no objection was made in the trial court. As previously pointed out, trial courts rule on objections and convicting a trial judge of error when no objection is made should be a most unusual occurrence.

Secondly, I question that a “trial error affect[s] constitutional rights” where a defendant has waived his constitutional objection by failing to raise the matter. It is clear that even constitutional claims may be waived. Waiver occurs when a defendant fails to raise the matter.

Thirdly, it is a rare trial error that does not have some constitutional basis. Hearsay evidence denies a litigant the right of confrontation; (State v. Sykes, 569 S.W.2d 258 (Mo.App.1978); confessions almost always have Fifth Amendment implications; physical evidence taken from a defendant normally raises Fourth Amendment considerations; identifications frequently involve due process questions or right to counsel considerations; relevance may raise due process questions; voir dire questioning or failure to excuse a juror can present trial by jury problems; impeachment, enhancement of punishment, or application of the second offender act by prior convictions raise trial by jury, right to counsel, and due process difficulties. The list could go on. I simply do not believe that the last sentence of Rule 27.26(b)(3) was intended to allow post-conviction relief for every non-objected to bit of evidence admitted which might be claimed to be constitutionally offensive. If that is what the sentence means, it is simply a euphemistic method of granting a second trial and/or second appeal contrary to the first sentence of the subparagraph.

Lastly, I believe that the scope of errors covered by Rule 27.26(b)(3) is to be determined by the nature of the relief authorized under that rule. That relief is limited to claims that the sentence imposed was in violation of the Constitution and laws of this State or the United States, or that the court lacked jurisdiction, or the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. See Rule 27.26 first paragraph. This is further clarified by paragraph (i) of the rule which limits relief on constitutional claims to those in which a denial or infringement occurred sufficient to render the judgment subject to collateral attack.

It was within this framework that this court decided McCrary and Gamache. There is reference in those cases to the failure to raise the alleged error on appeal. But, the scope of those opinions is broader than that. The established procedure in this state is that litigants, including defendants in criminal cases, are required to raise objections in the trial court, preserve them for review, and raise them on appeal. Relief under Rule 27.26 is not a substitute for these procedures. The teaching of McCrary and Gamache is that trial errors will not be considered in a 27.26 proceeding unless the motion alleges some factually and legally sufficient reason why the matter was not or could not be raised during the trial and appeal. Whether we couch our reasons in terms of bypass, trial strategy, or simply “sandbagging”, trial errors which could and should have been raised at trial and on appeal should not constitute proper grounds for Rule 27.26 relief.

The constitutional doctrines which Turley now seeks to invoke were well established at the time of his trial in 1972. As we pointed out in Montgomery v. State, 529 S.W.2d 8 (Mo.App.1975), the question of whether defendant was a second offender was a question of fact to be determined by the trial court and that factual determination was subject to review upon appeal. Turley alleges no reason in his motion why the matter could not have been raised at the trial and on appeal. And, as pointed out in Gamache, supra, he was in the best position of anyone to know whether he had counsel.

Rule 27.26 serves a highly useful function in our system of justice. It provides a reasonable and proper method of correcting injustice. That function is not well served by allowing its use to review matters which properly should have been raised at trial and on appeal.

McMILLIAN, Judge,

dissenting.

I dissent. Although I did originally agree with McCrary and Gamache, I am now of the opinion that they are erroneous because they were decided contrary to the language and intent of Rule 27.26(b)(3). For the same reasons that I believe these cases should no longer be followed, I would hold that appellant is entitled to raise his claim of error in a Rule 27.26 motion.

I have two basic problems with the McCrary decision. First, McCrary relies on federal case law which addressed federalism questions and is inapplicable to wholly internal state proceedings such as our Rule 27.26 post conviction procedure. Second, by attempting to follow the “trend” in other states, McCrary overlooks significant differences between the statutes or rules governing post conviction relief in those states and Missouri’s post conviction rule.

The McCrary decision begins its analysis with Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) which, in relevant part, states:

If a habeas applicant, after consultation with competent counsel or otherwise, understanding^ and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits .

Id. at 439, 83 S.Ct. at 849. Following Fay v. Noia, the court in McCrary reasoned that in Missouri, if an appellant could have raised an issue (including constitutional issues) on direct appeal and did not, he has deliberately bypassed state procedure and cannot raise the issue in a post conviction motion, 529 S.W.2d at 472.

There are several factors in Fay v. Noia which make this jump in reasoning somewhat misleading. First, the United States Supreme Court, in developing the deliberate bypass doctrine was concerned solely with the federalism problems presented when federal courts review state court rulings on habeas corpus petitions. The Supreme Court addressed three possible limitations on federal review of a state prisoner’s habe-as corpus petition, one of which was whether the prisoner waived his right to federal review by failing to pursue available state remedies. Federalism questions arise in this context in two ways: (1) should the federal court refuse to hear the claims because the state courts, which imposed the sentence, may not have heard or passed upon the defendant’s claim; and (2) should the federal interest in protecting constitutional rights prevail over the state’s interest in providing sanctions designed to promote use of relevant state procedures. In Fay v. Noia, the Supreme Court balanced the state and federal interests and concluded that a district court has the discretion to refuse a habeas corpus petition if it finds that the defendant deliberately bypassed available state procedures. The McCrary decision, which applies the general waiver doctrine of Fay v. Noia (i. e., if a defendant deliberately avoids state procedures, he waives his right to federal post conviction relief) to Missouri’s Rule 27.26 for post conviction relief, does not take into consideration that the federal-state relationship and the problems of federalism which dominated the analysis in Fay v. Noia are inapplicable to internal state procedures.

The second factor in Fay v. Noia which is overlooked in McCrary is the Supreme Court’s emphasis on the necessarily deliberate character of the bypass of state procedures. Court stated that the waiver must be “ ‘an intentional relinquishment or abandonment of a known right or privilege’ that “a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures”; and that “[a]t all events, we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner.” 372 U.S. at 439, 83 S.Ct. at 849 (emphasis added, citations and footnotes omitted).

In McCrary the court extended Fay v. Noia’s “waiver” rule to considerably less “deliberate” actions by holding that the failure to raise an issue on direct appeal was within Fay v. Noia’s directive of disallowing post conviction relief.

Another factor in Fay v. Noia which is overlooked in McCrary’s wholesale application of the case to Missouri law is the Supreme Court’s emphasis on the discretion of the federal court to refuse a habeas corpus petition upon finding a deliberate bypass of state procedures. The court stated: “ . . .we recognize a limited discretion in the federal judge to deny relief to an applicant under certain circumstances. . “We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant . . ..” 372 U.S. at 438, 83 S.Ct. at 848 (emphasis added). McCrary denies state courts this discretion by imposing a mandatory duty on all courts to refuse a 27.26 motion which is based upon issues which were not raised below.

The above discussion is intended to dispel the mistaken impression in McCrary that its holding is mandated by federal law. Even more serious than McCrary’s unwarranted application and extension of Fay v. Noia however, is its disregard of the specific language of the rule itself, which provides:

Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal.

Rule 27.26(b)(3), V.A.M.R. (emphasis added). Immediately after citing the above language, the McCrary opinion states, “ . . . The trend in many states is to hold that any matter which could have been raised on appeal cannot be raised on a post conviction motion, except in rare and exeep-tional circumstances.” 529 S.W.2d at 471 n. 4, 472. This leaves the impression that other states have interpreted the language cited in the limited fashion advocated by McCrary. In every case cited by McCrary as indicative of this trend, however, the state statutes or rule at issue are significantly different from Missouri’s: not one statute or rule in the cases cited includes the special allowance for review of constitutional errors which were not raised below which is expressly provided in the Missouri rule. In fact, many of the state statutes explicitly provide that the constitutional point at issue must be raised below or waived, which is clearly antithetical to the apparent intent of the Missouri rule. Thus, the McCrary opinion ignores the fact that the other states’ decisions rest on statutes and rules significantly different from Rule 27.26.

The Kansas City District of the Missouri Court of Appeals in its recent decision of McLallen v. State, 543 S.W.2d 813 (Mo.App.1976), was not persuaded by McCrary’s reasoning. In McLallen, the defendant, who was convicted under the Second Offender Act, challenged the applicability of the Act on the same grounds as appellant in the present case: he did not have counsel at his previous convictions. Like appellant, McLallen did not raise this issue on the appeal of his conviction but raised it for the first time in his Rule 27.26 motion. Although the court eventually denied the motion, it first held a lengthy evidentiary hearing. The question of whether the defendant waived his right to raise the issue in a 27.26 motion by failing to assert it below did not even arise.

Because McCrary excises that portion of Rule 27.26 which explicitly provides for review of constitutional errors in post conviction motions even though the error was not raised below, it directly frustrates the avowed purpose of Rule 27.26. When the United States Supreme Court extended the scope of federal habeas corpus review through several recent decisions, the Missouri Supreme Court responded with Rule 27.26. This rule was intended to insure that Missouri courts held adequate hearings and developed full records on issues which might be heard in federal courts on habeas corpus petitions. The Missouri Supreme Court thought Rule 27.26 was an appropriate way to protect Missouri judgments because it would present the state’s side of a case to the federal court and preserve evidence in case of reversal and retrial. See Anderson, Post Conviction Relief in Missouri — Five Years under Amended Rule 27.26, 38 Mo.L.Rev.L. 42 (1973). By restricting the availability of post conviction relief in the state courts, the McCrary opinion frustrates this purpose. It may be that this purpose is no longer practicable and the rule should be rewritten to limit the availability of post conviction relief but this is a decision which should be made directly by the body which created this relief and which should be spelled out in the Rule. If McCrary’s de facto amendment to Rule 27.-26 is allowed to stand, the Rule must be considered illusory and misleading because it holds out that certain relief is available when, in fact, it is not.

For this reason, I would refuse to follow McCrary and Gamache as well because Ga-mache is based upon and supported solely by McCrary. I would argue that allegations of constitutional error, as provided in Rule 27.26, may be raised in post conviction motions even though they were not raised below. Therefore, I would conclude that the trial court erred in denying appellant’s Rule 27.26 motion on the ground that his allegations of error were not raised below.

The state also argues that even if appellant’s motion is not precluded under McCrary, he is not entitled to an evidentia-ry hearing because “the record affirmatively and conclusively shows that the appellant was accorded counsel or voluntarily waived his right to counsel in his prior convictions.” The record on this point consists of a letter and exhibits. The exhibits are copies of the Informations for appellant’s prior convictions and certified copies of the sentences and judgments of the courts in the prior convictions, which recite that appellant was represented by counsel or waived counsel. Absolutely no testimony or evidence was received from the appellant to explain, dispute, or supplement the letter and exhibits.

To disallow any testimony by the appellant, after receiving the state’s letter and exhibits, is improper. Appellant has the burden of impeaching the evidence presented by the state, Garrett v. State, 459 S.W.2d 378 (Mo.1970), and must be given the opportunity to do so. In Garrett v. State, supra, the Missouri Supreme Court held that the trial court erred in relying solely on the records presented by the state to find that the appellant was represented by counsel at a prior conviction. It remanded to the trial court to ensure that the trial court considered the appellant’s testimony concerning the records presented. Similarly, in Burrage v. State, 477 S.W.2d 118 (Mo.1972), the Missouri Supreme Court reversed the trial court which relied solely on court records to find that the appellant voluntarily waived his right to a jury trial. The supreme court ordered that an evidentiary hearing should be given to allow appellant the opportunity to rebut the records introduced. As these cases demonstrate, it was improper for the trial court to deny appellant an evidentiary hearing in which he would have had the opportunity to meet his burden of impeaching the records presented by the state.

For the foregoing reasons I would reverse and remand for an evidentiary hearing on appellant’s 27.26 motion.

      . Noia was convicted of murder and given a life sentence. His co-defendants appealed their sentences which, after 14 years, were set aside when it was established on federal habeas corpus review that their convictions had been coerced by “satanic practices.” Noia, whose confession was similarly obtained, then sought post conviction relief in the state court but it was held that his failure to appeal his conviction directly barred this relief. He then brought an action for federal habeas corpus relief.

      . In our judicial system there are two independent court systems — the courts in each state and the federal courts. Numerous doctrines have developed to minimize direct conflicts between the two (see, e. g., 28 U.S.C. § 2254 which requires a habeas corpus petitioner to exhaust all state remedies before presenting his case before federal courts; Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and progeny which limits the ability of federal courts to enjoin state criminal and quasi-criminal proceedings). Fay v. Noia is another attempt to minimize direct conflicts by delineating when federal courts may review state court rulings on habeas corpus petitions without unduly encroaching upon state court prerogatives to supervise their criminal systems.

      .The state argued that federal review was barred for three reasons: Noia’s failure to appeal was an adequate state ground for the decision; Noia failed to exhaust his state remedies, and, Noia waived his right to assert his claim by failing to pursue available state remedies. The Supreme Court found none of these limitations applicable. 372 U.S. at 430-35, 83 S.Ct. 822.

      . The Supreme Court’s finding that Noia’s failure to appeal his conviction in state courts was not a deliberate bypass demonstrates how strictly the court is construing “deliberate.” Noia, after consultation with counsel, made what appears to be a “considered” decision not to appeal his conviction in state courts, for if he won on appeal, and was retried, there was a chance Noia could get a death sentence rather than life imprisonment. It would seem that Noia’s decision, if any, would be a deliberate bypass of available state procedures, however, the court found that his decision did not possess sufficient indicia of “deliberateness” to invoke the waiver doctrine.

      . In the following cases cited by McCrary, 529 S.W.2d at 473 n. 7, the relevant state statutes merely provide that post conviction relief is available, without mentioning any statutory policy as to issues raised for the first time in the post conviction proceeding: Morrison v. State, 283 So.2d 137 (Fla.Dist.Ct.App.1973) (Fla.Stat.Ann.RCrP 3.850 (West 1975) (Although the rule makes no mention of whether issues not raised on appeal of a conviction may be raised in a post conviction petition, the author’s comments to the rule make clear that such issues should not be considered, Author’s Comments, id. at 347-48.); Tyson v. State, 298 Minn. 559, 214 N.W.2d 461, 462 (1974) (Minn. Stat.Ann. § 590.01 (Supp.1978)); State v. Martinez, 85 N.M. 293, 511 P.2d 779 (Ct.App.1973) (N.M.Stat.Ann. § 21-1-1 (93) (1970); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973) (S.C.Code § 17-351)).
      In the following cases cited by McCrary, 529 S.W.2d at 473 n. 7, the relevant state statute provides that issues which were not raised below cannot be raised in post conviction proceedings, with no special provision for constitutional issues: Gross v. State, 320 N.E.2d 817 (Ind.Ct.App.1974) (Ind.Code Ann., § 35-10-2-1 [9-3302], Rule P. C. 1, §§ 1(b) 8 (Burns 1975); Duguay v. State, 309 A.2d 234 (Me. 1973) (Me. Rev.Stat. tit. 14, §§ 5502, 5507) (1965); Johnson v. Warden, Nevada State Prison, 89 Nev. 476, 515 P.2d 63 (1973) (Nev.Rev.Stat. § 177.-375); Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974) (Pa.Stat.Ann. tit. 19, § 1180-4 (Supp.1978)).
      in the following cases cited by McCrary the relevant state statute specifically provided that constitutional issues which were not raised below could be raised in post conviction petitions only in rare circumstances: People v. Robinson, 25 Ill.App.3d 52, 322 N.E.2d 505, 508 (1975) (Ill.Ann.Stat. ch. 38, § 122-3 (Smith-Hurd 1973)); Walker v. State, 216 Kan. 1, 530 P.2d 1235 (1975) (Rule 121(c)(3), 214 Kan. xxxix).
      In the following cases cited by McCrary the constitutional challenges were to grand jury or arrest procedures, which either by common law or statute are treated differently because of their pre-indictment character: State v. Hughes, 128 N.J.Super. 363, 320 A.2d 182 (1974) (N.J. Rule 3:10-2); Holiday v. State, 512 S.W.2d 953, 954-55 (Tenn.Cr.App.1973) (Tenn. Code Ann. § 40-3812 (1971)); State v. Kuecey, 60 Wis.2d 677, 211 N.W.2d 453 (1973) (Wis. Stat.Ann. § 971.31 (West 1973)).
      Lastly, in Neighbors v. People, 171 Colo. 349, 467 P.2d 804 (banc 1970), cited by McCrary, the court in fact held that the defendant was precluded from asserting an issue in his post conviction motion but in doing so carved out a narrow exception to Colorado’s well-established position that “an error consisting of a violation of constitutional rights of a prisoner may be raised in a [post conviction] proceeding so long as it was not previously raised and disposed of on writ of error.” People v. Bradley, 169 Colo. 262, 455 P.2d 199, 200 (1969).

      . See note 5, para. 3, supra.

      . Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).


text:
    COLLECTOR OF REVENUE OF the CITY OF ST. LOUIS, Missouri, Plaintiff-Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS (PARCELS 24-069 AND 24-070), Defendant-Appellant.
    No. 38370.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 8, 1978.
    Bruce Nangle, Clayton, for defendant-appellant.
    James E. Crowe, Jack L. Koehr, City Counselor, James J. Wilson, Associate City Counselor, St. Louis, for plaintiff-respondent.
   DOWD, Presiding Judge.

Defendant Parcels of Land appeals from a judgment of the Circuit Court of the City of St. Louis foreclosing tax liens vested in plaintiff Collector of Revenue. We granted the motion of the Land Reutilization Authority of St. Louis to intervene in this appeal. Since this court has no jurisdiction over the construction of a revenue statute, we transfer the case to the Supreme Court.

The Municipal Land Reutilization Law § 92.700 et al. RSMo 1975 (MLRL) establishes procedures for enforcement of tax liens by qualifying cities. On October 9, 1975 the Collector of Revenue filed suit under this statute to foreclose tax liens on a number of parcels of real estate, including those involved in this appeal. Notice of the filing of the suit as required by § 92.760 was mailed on October 3,1975 to defendant, who is the record owner of the land involved here.

On January 30, 1976 defendant filed his Amended Answer. The answer was limited to challenging the constitutionality of the statute and requesting attorney fees. Defendant filed interrogatories concerning the constitutionality of the statute and a hearing on March 25, 1976 was likewise limited to the constitutional issue. Defendant was represented by his attorney at the hearing. The court granted the judgment of foreclosure to plaintiff against defendant on July 19, 1976.

Defendant’s basic contention on appeal is that the MLRL violates due process guarantees because it does not require either service of process on the legal title owner of the land or an affidavit stating that the owner is unavailable. This contention was first raised in defendant’s answer. Defendant thus complied with the rule that constitutional issues be raised at the earliest opportunity and thereafter preserved. Christiansen v. Fulton State Hospital, 536 S.W.2d 159, 160[1] (Mo.banc 1976). In addition, defendant appeared specially for the limited purpose of challenging the constitutionality of the statute. State v. Weinstein, 411 S.W.2d 267, 273[9, 10] (Mo.App.1967). Since defendant entered a special appearance, the rule that a defendant does not have standing to question the constitutionality of notice provisions of a statute where he received the notice, entered an appearance, and filed an answer is not applicable here. Collector of Revenue for the City of St. Louis, Missouri v. Parcels of Land Encumbered with Delinquent Tax Liens (Serial Number 17-143), (Mo.banc, filed April 28, 1978) 566 S.W.2d 475.

The Supreme Court possesses exclusive appellate jurisdiction over matters involving “the construction of the revenue laws of this state.” Mo.Const. Art. V, § 3. For the Supreme Court to have such jurisdiction, construction of the revenue law must be directly and primarily involved, and not merely incidental to the challenge of the statute. Robb v. Estate of Brown, 518 S.W.2d 729, 731-732[1, 2] (Mo.App.1974); State v. Longstreet, 536 S.W.2d 185, 188[1] (Mo.App.1976). Challenges to the MLRL on due process grounds directly involves the construction of a revenue statute. See Collector of Revenue v. Parcels of Land, 517 S.W.2d 49 (Mo.1974).

The Supreme Court is vested with exclusive appellate jurisdiction in such cases. Mo.Const. Art. V, § 3. Therefore, the motion of the Land Reutilization Authority to transfer the case to the Supreme Court because it involves the construction of a revenue statute is granted.

The case is transferred to the Supreme Court.

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

      . Both respondent Collector of Revenue and Intervenor Land Reutilization Authority contend that jurisdiction of this appeal is with the Supreme Court because it involves the construction of a revenue statute.


author: CLEMENS, Presiding Judge.

text:
    Leroy G. DAY and Donna P. H. Day, Respondents, v. Marjorie Eileen Fox GRISHAM and Fred L. Grisham, Appellants.
    No. 39733.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 22, 1978.

      Hansen, Stierberger, Hartley & Brown, Charles E. Hansen, Union, for appellants.
    Orlando J. Mundwiller, Hermann, for respondents.
   CLEMENS, Presiding Judge.

Plaintiffs’ Count I sought a declaration of easement by prescription over a strip of defendants’ land; alternatively, Count II sought the same by implication and Count III sought title by adverse possession. Plaintiffs were granted a prescriptive easement on Count I and defendants have appealed.

The disputed area is a 20-foot strip 800-feet long, extending from plaintiffs’ landlocked tract across defendants’ farm to a county road. In 1895 a larger tract was divided by conveyance into two separate tracts, and each subsequent owner of plaintiffs’ present tract has used the strip as their only means of access. Defendants took title to their tract in 1969 and plaintiffs to theirs in 1975.

Defendants first contend the judgment on Count I is beyond the scope of the pleadings in that plaintiffs do not allege continuous, uninterrrupted, visible and adverse use. Count I alleges that for over 30 years plaintiffs and their predecessors in title have used the 20-foot roadway across defendants’ lands as their only means of access.

We find that facts stated in plaintiffs’ petition are sufficient to inform defendant with reasonable certainty of the cause of action they were called upon to meet and to bar another action for the same subject matter. Compare Barber v. Allright Kansas City, Inc., 472 S.W.2d 42[3] (Mo.App.1971). Plaintiffs have alleged use of the strip for a period exceeding the statutory requirement of ten years. Compare Guerin v. Yocum, 506 S.W.2d 46[3] (Mo.App.1974). For possession to be hostile it is only necessary the claimant intended to and did use the land as his own. Glenville v. Strahl, 516 S.W.2d 781[2] (Mo.App.1974).

Defendants’ second contention is that the judgment against plaintiffs on alternative Counts II and III precludes recovery on Count I. Not so. Count II alleged an easement by implication; its dismissal was not based on the absence of continuous, adverse use. An easement by implication depends on the parties’ intent. Pendleton v. Gundaker, 381 S.W.2d 849[3] (Mo.1964). Elements required to establish title by adverse possession (Count III) are distinguishable from those which prove a prescriptive easement (Count I). Adverse possession denotes title acquired by the manner of possession, while a claim for a prescriptive easement is a non-exclusive right acquired by the manner of use. Glenville, supra [5]. The judgments against plaintiffs on alternative Counts II and III were not inconsistent with the judgment for plaintiffs on Count I.

Defendants finally contend there was no substantial evidence of a prescriptive easement. The testimony of plaintiffs, two of their predecessors in title, and the daughter of defendants’ predecessor in title, show successive periods of open use of the strip as a roadway since 1895, without evidence to explain how it began. A presumption of adverse use under claim of right was shown and the burden shifted to defendants to show permissive use. Guerin, supra [4]. Defendant offered no evidence that use of the roadway was ever permissive. The evidence supports the judgment for plaintiffs in Count I.

Judgment affirmed.

SMITH, J., not participating.

McMILLIAN, J., concurs.


text:
    Dorothy D. RINCON, Respondent, v. Manuel A. RINCON, Appellant.
    No. 38353.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 22, 1978.

      John D. French, St. Ann, for appellant.
    Dudley C. Dunlop, Clayton, for respondent.
   CLEMENS, Presiding Judge.

Defendant-husband has appealed from a circuit court order which modified and increased plaintiff-wife’s support allowance, originally entered in 1960. Defendant first contends that since the ten-year statute of limitations has run on the original alimony judgment it has been extinguished and there was nothing left to modify. He contends alternatively that plaintiff failed to meet her burden of showing a substantial and continuing change of circumstances.

We find the statute of limitations defense is deficient, both in form and substance. In the trial court defendant responded to plaintiff’s motion merely by denying her allegations of changed circumstances; he did not plead the ten-year statute of limitations on which he now relies. A long line of cases, beginning in 1829, has held the statute of limitations bar is an affirmative defense and is waived if not pleaded. (See Limitation of Actions, 19A Mo.Dig., We hold defendant’s contention is deficient in form.

Looking to the substance of defendant’s contention, we deny his argument that the ten-year statute of limitations has extinguished plaintiff’s 1960 alimony judgment. Defendant argues that it cannot be used as a “foundation from which the court could modify the original decree.” Defendant overlooks the nature of a defense based on a statute of limitations. Such statutes are procedural rather than substantive; they merely suspend the remedy without extinguishing the right. (See cases annotated in 19A Mo.Dig., &wkey;165.) Here, plaintiff is not seeking to enforce payment of her 1960 judgment; instead, she is seeking to compel defendant to pay for future support, and that is what the trial court decreed. We deny defendant’s statute of limitations contention and consider his alternative point that plaintiff failed to show a substantial and continuing change of circumstances.

Defendant contends plaintiff failed to justify the awarded weekly support increase from five dollars (in 1960) to ten dollars. He relies on § 452.370(1), RSMo., requiring “a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.”

Plaintiff went to work after the divorce and although she had a substantial income for several years, her work has become irregular due to illness and lay-offs. She worked only half-time in 1975 and at trial time had only temporary employment. Her cost-of-living has increased due to illness and inflation.

Meanwhile, the defendant’s monthly gross income has increased from $400 to $1,000. He contends this does not warrant increasing plaintiff’s support allowance. Standing alone it would not, but see Markham v. Markham, 506 S.W.2d 84 [4-8] (Mo.App. 1974), holding a husband’s increased earnings is a factor to be considered when the change in the wife’s condition — as here — justifies an increase in maintenance. The trial court did not err by increasing the allowance.

SMITH, J., concurs.

McMILLIAN, J., concurs in results only.

      . § 516.350, RSMo. 1969 provides: “Every judgment . . shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof . . . .”


author: KELLY, Judge.

text:
    Jean Kirk MEYER, Plaintiff-Respondent, v. Allan William MEYER, Defendant, v. “MCI CORP.”, Garnishee.
    No. 38942.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 29, 1978.

      Armstrong, Teasdale, Kramer & Vaughan, William J. Travis, St. Louis, for garnishee.
    John T. Sluggett, III, Clayton, for plaintiff-respondent.
   KELLY, Judge.

This is an appeal by the MCI Telecommunications Corporation, a Delaware Corporation, from a default judgment entered against MCI Corporation in a garnishment proceeding instituted by Jean Kirk Meyer to collect delinquent maintenance and child support payments from her former spouse, Allan W. Meyer, in the sum of $6,200. Because we conclude the service requirements of § 525.050 RSMo. 1969 and Rule 90.04 V.A.M.R. were not observed by the service of the notice of garnishment on one Ronald Graham, the St. Louis Marketing Manager for MCI Telecommunications Corporation on August 16, 1976, the judgment of the trial court is reversed.

On August 6, 1976, Mrs. Meyer obtained an execution from the Circuit Clerk of St. Louis County and a garnishment directed to “MCI Corporation, 720 Olive St., St. Louis.” The Sheriff of the City of St. Louis filed a return on November 8, 1976, wherein he stated that he had obtained service on MCI Corporation on the 16th day of August, 1976, by delivering the written declaration to “Ronald Graham, St. Louis Sales Manager of said corporation, he being in the business office of said corporation and having charge thereof, . . .” The garnishment was returnable November 4,1976.

On November 10, 1976, Mrs. Meyer filed interrogatories directed to “M.C.I. Corporation” but there is no indication in the record whether a copy of the interrogatories was ever sent to the garnishee.

On November 23, 1976, on application of Mrs. Meyer, a default was entered against the garnishee, “M.C.I. Corp.” and on December 15, 1976, judgment was entered in favor of Mrs. Meyer and against the garnishee in the amount of $6,200 and costs. The evidence adduced at the inquiry on the default is not incorporated into this record on appeal.

On January 13, 1977, M.C.I. Telecommunications Corporation, entered its “special appearance” and on January 14, 1977, filed a Motion to Set Aside Default Judgment Taken Against “MCI Corp.” One ground, among others, was of defective service. On the same day appellant’s motion was filed it was heard. Evidence was adduced in support thereof, and the trial court sustained appellant’s motion and vacated the judgment of December 15, 1976.

On January 19,1977, respondent filed her motion to set aside the order of January 14, 1977, vacating the judgment previously granted, or, in the alternative, for a new trial. On January 26, 1977, the trial court set aside and held for naught the order of January 14, 1977, vacating the judgment of December 15,1976, and reinstated the judgment for $6,200 and court costs of December 15, 1976, on the grounds that (1) the garnishee was properly served, (2) the misnomer in the corporate name was immaterial, and the garnishee was not misled because it acknowledged the receipt of the writ of garnishment and subsequent interrogatories, and (3) the garnishee waived any imperfection by not taking affirmative action at an appropriate time.

A notice of appeal was filed by the appellant on February 4, 1977.

Both § 525.050 RSMo. 1969 and Rule 90.-04 Y.A.M.R. require that notice of garnishment be served on a corporation in writing “by delivering such notice or a copy thereof, to the president, secretary, treasurer, cashier or other chief or managing officer of such corporation.”

Garnishment is a purely statutory proceeding and strict compliance with the governing statute and Rule is essential. Smith v. Bennett, 472 S.W.2d 623, 628[3] (Mo.App.1971). The question for determination in this appeal is whether there is sufficient evidence from which the trial court could find that the garnishee was properly served, and this depends upon whether the evidence shows that Ronald Graham, at the time of service of the notice of garnishment, was a “chief or managing officer” of the garnishee within the meaning of those terms as used in § 525.050 RSMo. 1969 and Rule 90.04 V.A.M.R.

This appeal of a court tried case, is subject to the scope of review announced in Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976), and the judgment of the trial court should be upheld unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless the trial court erroneously declared the law, or erroneously applied the law; in exercising its power to set aside the judgment of the trial court on the ground that it is against the weight of the evidence, a reviewing court should do so with caution and with a firm belief that the judgment is wrong.

At the hearing on the motion the only witness was Ronald E. Graham. He was presented by the appellant. He testified that he was the “marketing manager” for MCI Telecommunications Corporation, a Delaware corporation, located at 720 Olive Street, St. Louis, from August through November, 1976, that he was still so employed as of January 14, 1976, the date of his testimony, and that he was not affiliated in any way with “MCI Corporation.” He further testified that the registered agent for his employer in the State of Missouri was the United States Corporation Company. He stated he was not the president, secretary, treasurer, cashier or other chief or managing officer of MCI Telecommunications Corporation, and, although he was the marketing manager of the St. Louis branch office, he was not “in charge of” the office; a Mr. Becker was in charge of operations in the St. Louis office. The regional vice-president, and his immediate superior, was John R. Zerno, who was located in Chicago, Illinois. Mr. Graham admitted that he was served with a garnishment summons for “MCI Corporation” and then sent it on to Chicago.

On cross-examination, Mr. Graham remembered that he had a conversation with Mrs. Meyer’s counsel on the telephone after he had been served with the writ of garnishment and that at that time Mr. Meyer was employed by MCI Telecommunications Corporation under his supervision. He also answered that he would call the corporation for which he worked “MCI.”

The respondent offered no evidence.

We hold that the service of the notice of garnishment in this case was defective and that the trial court erred in denying appellant’s motion to set aside the default judgment by reason of that fact.

The return of the Sheriff of the City of St. Louis, on its face, shows that service of the notice and the summons was had on the “St. Louis Sales Manager.” The term “Sales Manager” is not a person designated by either the statute or the Rule for service of notice of garnishment, nor do Mr. Graham’s duties, described in the evidence, constitute those of a “chief or managing officer” as the terms have been defined by the decisions of the appellate courts of this state, i. e. “a duly constituted executive officer whose authority and powers are such that he is regularly in control of the operations and business of the corporation.” Smith v. Bennett, supra, 472 S.W.2d l.c. 627[1]; State ex rel. Associated Transport Corp. v. Godfrey, 464 S.W.2d 776, 778[1] (Mo.App.1971); Blackburn Motor Company v. Benjamin Motor Co., 340 S.W.2d 155, 158[2] (Mo.App.1960); C. Rallo Contracting Company v. Blong, 313 S.W.2d 734, 738[3] (Mo.App.1958). This is fatal to respondent’s judgment, because, as we shall hereinafter point out, the trial court never acquired jurisdiction over the “res,” i. e. the property of the defendant in the hands of the garnishee.

The trial court held that the garnishee waived any imperfection in service. However, as this court pointed out in Blackburn Motor Company v. Benjamin Motor Co., supra, 340 S.W.2d l.c. 160:

“Attachment and garnishment proceedings are in derogation of the common law and wholly the creation of statute. * * All of the requirements imposed by the statutory law must be strictly complied with and that is true of the requirements governing service of the writ or notice of the garnishment. No voluntary act of the garnishee, not in strict compliance with the requirements of the statutes, can constitute a waiver of the statutory prerequisites. Every step of the law must be strictly followed insofar as the garnishee is concerned, before jurisdiction is acquired over the property of defendant in the hands of the garnishee. . every step of the proceeding must find a clear sanction in the statutory law and the court cannot obtain jurisdiction over the property of the defendant in the hands of the garnishee through any act or consent of the garnishee that does not conform to the statutory requirements.”

The court in C. Rallo Contracting Company v. Blong, supra, explained the distinction in garnishment proceedings between the office of the notice of garnishment and the summons at p. 737 of the opinion. The notice of garnishment is the means by which the jurisdiction of the court is established over the property or debt garnished and is an indispensible prerequisite to jurisdiction over said property or debt. The summons is to bring the garnishee personally into court, and he may, by appearing generally and answering interrogatories, waive any defect in the service of the summons as to him personally. But jurisdiction of the court over the res can neither be waived nor conferred by consent. Where the court has not acquired jurisdiction over the res because the method of service of the notice required by law has not been satisfied, it may proceed no further because mere jurisdiction over the person of the garnishee does not carry with it jurisdiction over the res.

For the reasons aforesaid, the judgment of the trial court is reversed.

GUNN, P. J., and WEIER, J., concur.

      . The proper vehicle whereby defects in service should be raised in garnishment proceedings is by a motion to quash. State ex rel. Auto Finance Company v. Collins, 482 S.W.2d 529, 531 [3] (Mo.App.1972); however, because the motion filed by the appellant here is essentially directed to the question whether it was served with process in accordance with law, we shall consider the motion to set aside the default judgment to include a motion to quash service of process.

      . To the same effect, see; State ex rel. Auto Finance Company v. Collins, 482 S.W.2d 529, 531 [2] (Mo.App.1972); same case, on transfer, 496 S.W.2d 827 (Mo. banc 1973).


author: GUNN, Presiding Judge.

text:
    Richard Wayne BLAIR, Appellant, v. Sharon Kathleen BLAIR, Respondent.
    No. 39913.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 29, 1978.

      Roger P. Krumm, Joe D. Holt, Holt, Krumm, Hamilton, Mays & Shyrock, Fulton, for appellant.
    James W. Gallaher, Barry, Neff, Gallaher & Venters, Jefferson City, for respondent.
   GUNN, Presiding Judge.

Appellant, Robert Blair, appeals from an order modifying a 1975 dissolution decree. The 1975 decree required him to pay respondent, Sharon Blair, $100 per month for the support of each of their two minor children. The modification award increased child support payments to $200 per month for each child. Appellant was also ordered to pay $200 of respondent’s legal fees. On appeal appellant claims that there was insufficient evidence of substantial and continuing change in the children’s financial needs to justify the modification award under § 452.370, RSMo Supp.1975. He also charges that the trial court abused its discretion in awarding respondent’s attorney fees. We affirm.

The evidence is essentially uncontradict-ed. The parties were living in Fulton at the time the ligatures of marriage were riven. Shortly thereafter the respondent moved to Kansas City. As a result of the move and with the children growing older, including one commencing school, the expenses of keeping the two increased by $226 a month according to respondent’s evidence. Many of these expenses had not occurred while respondent and her children were living in Fulton. The monthly increases as related by respondent were: rent, $55; babysitting, $60; transportation, $30; school clothes, $20; school lunches, $11; entertainment, $15; medical expenses, $35. While the respondent’s gross income was greater than that earned in Fulton, taxes made the gains minimal — approximately $5 per month. Appéllant testified that his salary, between $37,000 and $38,000 per year, had not changed since the marriage terminated.

Appellant correctly contends that § 452.370 RSMo Supp.1975 places the burden on respondent to prove a substantial and continuing change in circumstances before a modification increase is justified. Caray v. Caray, 569 S.W.2d 18 (Mo.App.1978); Johanson v. Johanson, 569 S.W.2d 337 (Mo.App.1978); Plattner v. Plattner, 567 S.W.2d 139 (Mo.App.1978). The trial court found that respondent had met her burden, and, under the standard of review recited in Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976), we believe that the record supports its findings. At the time of the marriage dissolution, the children had no health maladies, but physical and health ailments later developed in each. School, transportation, and entertainment expenses not existing while the parties lived in Fulton became substantial items after the move to Kansas City. Rent and babysitting costs increased substantially. Evidence of the increased needs and expenses of the growing children was clear and unequivocal and sufficient to carry the weight of respondent’s burden of proof. Kieffer v. Kieffer, No. 38,752 (Mo.App.St. L.Dist., July 18, 1978); In re Marriage of Engelhardt, 552 S.W.2d 356 (Mo.App.1977).

Appellant claims that evidence of increased expenses must be supported by documentation. This is not so. A party’s testimony as to expenses is sufficient evidence on which to base an allowance of child support and need not be proved with absolute particularity. The trial court may, at its option, accept or reject such evidence. McCann v. McCann, 448 S.W.2d 323 (Mo.App.1969); Houston v. Snyder, 440 S.W.2d 156 (Mo.App.1969). See In re Marriage of Engelhardt, supra; Suesserman v. Suesserman, 539 S.W.2d 741 (Mo.App.1976). Cf. Plattner v. Plattner, supra.

Appellant next argues that as his salary has not increased since the time of the divorce, the modification is improper. The salary of the spouse contributing child support is but one factor to consider in making a decision regarding modification. The relevancy of appellant’s salary goes to the question of his capacity to pay the award based on the showing of the needs of the party seeking the award. Plattner v. Plattner, supra; McGinley v. McGinley, 513 S.W.2d 471 (Mo.App.1974). We have already determined that there was no abuse of discretion in the modification. Neither is there any abuse of discretion in finding appellant able to pay the award.

Appellant’s final point is that it was improper for the trial court to order him to pay $200 of the respondent’s attorney’s fees. An award of attorney’s fees is within the discretion of the trial court. Hahn v. Hahn, 569 S.W.2d 775 (Mo.App.1978); Butler v. Butler, 562 S.W.2d 685 (Mo.App.1977); Beckman v. Beckman, 545 S.W.2d 300 (Mo.App.1976). Factors to be considered are the need of the party requesting the award and the disparity of means between the parties. In re the Marriage of Engelhardt, supra. Here, respondent had to borrow $200 from her father to pay her attorney’s retainer, and although she has gross annual income of slightly over $10,000, appellant’s yearly income is between $37,000 and $38,000. Further, attorney’s fees may be granted even if no need is shown. Zubiena v. Zubiena, 557 S.W.2d 58 (Mo.App.1977); Beckman v. Beckman, supra. We find no abuse of discretion in the award.

Judgment affirmed.

KELLY and REINHARD, JJ., concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Herbert J. BARTEAU, Appellant.
    No. 37844.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 5, 1978.
    Daniel V. O’Brien, St. Louis, for appellant.
    Ronald L. Boggs, Pros. Atty., G. Jeffrey Lockett, St. Charles, John D. Ashcroft, Atty. Gen., Paul R. Otto, and John M. Morris, III, Asst. Attys. Gen., Jefferson City, for respondent.
   SMITH, Judge.

Defendant appeals his conviction by a jury of rape and resultant sentence of two years imprisonment. We affirm.

Defendant’s first point is that the information is fatally defective and so the court lacked jurisdiction. Initially this argument is directed to the absence of an information in the trial court. The transcript does not include such an information. By motion granted by this court, the attorney-general has supplemented the record by filing the information. The record as supplemented establishes that an information was filed in Circuit Court.

Secondly, defendant contends that the information fails to allege that the carnal knowledge was forcible. The information states that defendant did “rape, ravish and carnally know the said [victim] against her will.” “Rape” and “ravish” both imply the use of force. See State v. Berezuk, 331 Mo. 626, 55 S.W.2d 949 (1932) [8]; State v. Abron, 492 S.W.2d 387 (Mo.App.1973) [5, 6], The information sufficiently charges all elements of the crime — carnal knowledge, force, and against the will or without the consent of the woman.

Defendant’s remaining point is that the evidence failed to establish the essential elements of the crime — most notably force and absence of consent.

The victim was 16 years old, married, and a mother. She was employed by Dial-A-Maid, in St. Charles, a light housekeeping business. She went to defendant’s home in response to a request for housecleaning made to her employer. Defendant was at home. The victim did some cleaning and then went into the bedroom to make the bed and clean the room. Defendant approached her from behind and grabbed her breasts. She pushed him away. He then went to the bedroom door and closed it. He again approached the victim and drew a gun and stated he did not want to hurt her. She stated she needed to use the bathroom to remove her tampon, hoping, she testified that she could lock the bathroom door and escape through a window or that knowing she was menstruating defendant would cease his advances. She went into the bathroom but defendant stood in the doorway. When she had pulled her pants down halfway, defendant ordered her to remove them completely. At this time and thereafter until she left the premises, she did not again see the gun. Defendant grabbed the victim, shoved her against a wall, pulled his pants down and rubbed against her for several minutes. At one point the victim was screaming and defendant stated he would have to hurt her. Defendant then pulled her to the bed, pushed her down on it, forced her legs apart and had sexual relations with her. When the act of intercourse was completed, the victim ran to the bathroom and dressed. As she was leaving, defendant offered her money which she refused although she did leave the invoice from Dial-A-Maid. The foregoing was the testimony of the victim. She reported the incident to her employer, had a physical examination, discussed the matter with her husband and her aunt, and then notified the police.

The police arrested defendant and obtained a consent to search his home. He denied that he had a gun. Search of the bedroom uncovered a gun and bullets, and the gun was subsequently identified by the victim as similar to the one defendant had pointed at her. Defendant is 5 feet eight and weighs between 250 and 300 pounds.

Defendant testified that after arriving at his home the victim did some cleaning and then sat on the couch with him. She asked if she could do some cleaning again for him, but he advised her his wife would be back from the hospital the next day following childbirth and no further cleaning service would be required. She then stated that Christmas was coming and asked if he knew of any way she could make money. She then asked if he would like to “play.” He accepted and they went into the bedroom and had sexual relations. The victim then did some additional cleaning and then asked defendant for fifty dollars. He refused to give her anything and she became angry and left. Subsequently he noticed his watch was missing. He testified he told the police he had a gun and told them where to find it.

Defendant admits that the evidence establishes carnal knowledge, but contends it does not establish force or that the act was against the victim’s will. He then invokes the “utmost resistance” doctrine as an essential proof to negate consent or to demonstrate force.

The “utmost resistance” doctrine does not apply in forcible rape cases where the woman is put in fear of personal violence. State v. Beck, 368 S.W.2d 490 (Mo.1963) [3]. If the victim’s testimony is believed, as the jury must have, the victim was in fear of personal violence. Defendant threatened her with a gun, stated he would have to hurt her, shoved her against a wall, threw her on the bed, and forced her legs apart. The location of the attack was in defendant’s home and while the victim did not see the gun after the initial threat with it, she could reasonably believe it was nearby and accessible to defendant. Her failure to continuously fight, kick, scream or otherwise actively resist does not establish consent. The case is quite similar to State v. Beck, supra. See also, State v. Gray, 423 S.W.2d 776 (Mo.1968); State v. Bohannon, 526 S.W.2d 861 (Mo.App.1975). The evidence was sufficient to support the verdict.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles EWING, Defendant-Appellant.
    No. 38537.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 5, 1978.
    Robert C. Babione, Public Defender, Joseph W. Warzycki, Asst. Public Defender, Beth Dockery, and Theodore Guberman, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Carson W. Elliff, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles D. Sindel, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals his conviction of statutory rape and sentence of two years by a jury. We affirm.

On appeal defendant raises only the contention that the testimony of the victim and her friend was insufficient to sustain the conviction in view of the contradictory alibi testimony of defendant and his father.

The victim was thirteen years old at the time of the offense; defendant was 18 or 19. The victim identified defendant as the man who had sexual intercourse with her. She testified that she was abducted by defendant who forcibly raped her. Medical and scientific evidence corroborated her claim that she had had sexual intercourse at the location she testified to. The victim’s friend, sixteen at the time of the occurrence, corroborated the victim’s testimony that defendant forcibly abducted the victim. Defendant presented alibi evidence that he was in Mississippi at the time of the offense.

The responsibility for weighing the evidence is upon the jury, not the appellate court. We do not substitute our judgment for that of the jury. State v. Bohannon, 526 S.W.2d 861 (Mo.App.1975) [1, 2], Nor do we find the testimony of the victim to be contradictory or unconvincing as to the essential elements of the crime and the identity of the defendant as the perpetrator. In addition, as to all essential elements including defendant’s participation, the victim’s testimony is corroborated. The only contradictions, if such they be, and the only area in which corroboration is missing is whether the intercourse itself was forcible. That is not an element of statutory rape.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


text:
    STATE of Missouri, Respondent, v. Kelvin STONE, Appellant.
    No. 38870.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 5, 1978.
    Robert C. Babione, Public Defender, Jeffrey J. Shank, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Michael Finkelstein, Asst. Attys. Gen., Jefferson City, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of burglary, second degree and resultant seven year sentence by the court pursuant to the Second Offender Act. We affirm.

Defendant’s sole point on appeal is that the trial court erred in failing to instruct the jury on trespass which he claims is a lesser included offense of burglary second. There was evidence, based upon statements made by defendant to the prosecuting witness, that defendant believed the burglarized building to be abandoned and that he had no intention to steal but simply to reduce abandoned property to possession. There was also evidence that the building had a no trespassing sign on it.

In State v. Price, 365 S.W.2d 534 (Mo.1963), cert. den., 374 U.S. 811, 83 S.Ct. 1702, 10 L.Ed.2d 1034 (1963) and State v. Meeks, 458 S.W.2d 245 (Mo.1970) it was held that trespass is not a lesser included offense of burglary, second degree, Sec. 560.070, RSMo 1969. Defendant contends, however, that an amendment in 1973 of the trespass statute, Sec. 560.447 RSMo Supp.1975, has changed that law sufficiently so that trespass is now a lesser included offense of burglary second.

It is the obligation of the trial court to instruct on all lesser included offenses supported by the evidence and it is error for the court to fail to do so. State v. Fleming, 528 S.W.2d 513 (Mo.App.1975) [1, 3]. There is no obligation, and in fact it could be erroneous for the court to instruct on an offense not specifically charged in the information or indictment unless it is a lesser included offense. This is because a defendant may not be convicted of an offense not charged in the information or indictment. State v. Billingsley, 465 S.W.2d 569 (Mo.1971) [1, 2], In contemplation of law, a charge of one crime covers all lesser crimes necessarily included within it. The test to be applied to determine whether an offense is a lesser included offense is stated in State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957) [11, 12]:

“ ‘If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater’.”

From this definition it can be seen that an offense does not become a lesser included offense because all of the elements of the lesser offense are supported by evidence at the trial. Rather, all elements of the lesser offense must be necessary to establish the greater offense when added to an additional element or elements. In short, the fact that the evidence establishes guilt of the defendant of a lesser crime does not necessarily mean that that crime is a lesser included offense and must be instructed upon.

It is at least arguable that our criminal procedure should be structured so that a defendant may upon specific request require that the jury be instructed on designated crimes of lesser magnitude which are supported by the evidence. Such a request could and should constitute a waiver of defendant’s right to be convicted only of those crimes charged or necessarily included in the crimes charged. Such a procedure would serve to allow a defendant whose defense is based upon the contention that he committed a crime of lesser consequence but not the one with which he is charged to have the jury consider such defense without the choice of finding guilt of the higher offense or acquitting defendant altogether. For a case in which such an instruction would obviate this choice see State v. Amsden, supra. However, our law does not require such an instruction.

Burglary second degree requires proof of (1) breaking and entering, (2) any building, etc., (3) where there are human beings or goods, wares, merchandise or other valuable things kept or deposited, (4) with intent to steal or commit a crime therein, (5) under circumstances not burglary in the first degree. Sec. 560.070 RSMo 1969.

Trespass requires proof that defendant has willfully entered or remained upon property where (1) he has been forbidden to enter or remain by personal communication or (2) which has been posted or (3) which is residential within a city, town or village. Sec. 560.447 RSMo Supp.1975.

It is apparent that the presence of no trespassing signs upon the property where defendant was discovered was not an element of the crime of burglary second degree. While the presence of the sign was evidentiary support for the element of intent to steal and served to refute defendant’s contention that he believed the property to be abandoned, it was legally unnecessary that the premises be posted to support a conviction for burglary. Since, however, the property was not residential and defendant had not been specifically forbidden to enter or specifically ordered to leave the property, the posting of the premises was a necessary element for the crime of trespass. Under the test of State v. Ams-den, supra, the requirement of notice of unwelcomeness (or that the property is residential which presumably carries the same message to a stranger) is an added element of trespass and renders that crime not a lesser included offense of burglary second. The trial court did not err in failing to instruct on trespass.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


text:
    John Robert CULBERSON, Appellant, v. STATE of Missouri, Respondent.
    No. 39229.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 5, 1978.
    Neal P. Murphy, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   SMITH, Judge.

Movant appeals from the order of the trial court dismissing his motion for relief pursuant to Rule 27.26. Culberson originally pleaded guilty to seven offenses ranging from second degree murder to carrying a concealed weapon. He received a total of five fifteen year sentences and two five year sentences, all to be served concurrently.

In September, 1975, movant filed a motion pursuant to Rule 27.26. Counsel was appointed and in January, 1976, the court, without evidentiary hearing, denied the motion. Extensive findings of facts and conclusions of law were entered. No appeal from this action was taken. Mov-ant’s current motion was filed in January, 1977. It again alleges ineffective assistance of counsel and that a competency hearing should have been held as movant was, at the time of the guilty plea, withdrawing from narcotic addiction and was receiving methadone. The trial court dismissed the motion because the grounds stated therein could have been raised on the prior 27.26 motion (Rule 27.26(d)) and for the further reason that the record of the guilty plea affirmatively refuted the allegations. We agree with both reasons.

Movant contends that he is entitled to an evidentiary hearing to establish the reasons why he did not or could not raise the present grounds in his prior 27.26 motion. The initial burden was on movant to allege such reasons. Nolan v. State, 484 S.W.2d 273 (Mo.1972); Jones v. State, 521 S.W.2d 504 (Mo.App.1975) [1]; Evans v. State, 545 S.W.2d 674 (Mo.App.1976) [1], Not only has movant failed to allege such reasons, but his sworn motion alleges that no prior post-conviction motion was even filed.

The order of the trial court is affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: PER CURIAM.

text:
    Ervin M. SPENCE and Edna Spence, his wife, Plaintiffs-Appellants, v. Raymond A. WROBLESKI and the Federal Land Bank of St. Louis, Defendants-Respondents.
    No. 10952.
    Missouri Court of Appeals, Springfield District.
    Sept. 15, 1978.
    Almon H. Maus, W. Dale Burke, Monett, for plaintiffs-appellants.

      Stephen R. Soutee, Marionville, for defendants-respondents.
   PER CURIAM.

Subsequent to dismissal of this cause for failure to timely file motion for new trial, appellants have by motion filed on September 11, 1978, suggested that the filing date and date of the entry on the docket sheet of appellants’ “Motion to amend findings and judgment or in the alternative, for new trial” may have been altered in the records of the court below.

An examination of appellants’ motion, together with the affidavits, records and other documents attached, persuades this court that appellants’ assertions are sufficient to call into question the accuracy of trial court’s records referred to therein.

However, we decline to grant relief according to the tenor of appellants’ prayer therefor. Instead, pursuant to Hendershot v. Minich, 297 S.W.2d 403, 409(11) (Mo.1956), the court below, following hearing or other procedure, should such be deemed necessary, is directed to advise this court, by finding, order or certificate, of the filing date of appellants’ motion referred to above, and to certify to this court such date over signature.

The submission, and opinion of August 28,1978, is set aside; the cause is remanded for further proceedings as directed herein.

All concur except BILLINGS, C. J., who did not participate.