author: TURNAGE, Judge.

text:
    In the Matter of the Contest by Jerry Kramer of the Election of John Dodson as the Nominee of the Democratic Party for the Office of County Sheriff of Schuyler County, Missouri, in the Primary Election Held on August 3, 1976, in Schuyler County, Missouri. Jerry KRAMER, Contestant, Appellant, v. John DODSON, Contestee, Respondent.
    No. KCD 29085.
    Missouri Court of Appeals, Kansas City District.
    Oct. 27, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.

      L. E. Atherton, Milan, R. M. Gifford, Green City, for appellant.
    William Y. Frick, Kirksville, for respondent.
    Before SHANGLER, P. J., and SWQF-FORD and TURNAGE, JJ.
   TURNAGE, Judge.

Jerry Kramer filed an election contest suit following the Democratic primary in August, 1976, in Schuyler County. Kramer and John Dodson were the candidates for the nomination for sheriff. When the votes were certified, Dodson was declared the winner by a tally of 587 to 529.

At the conclusion of Kramer’s case as contestant, the court held a prima facie case was not made under § 124.020, RSMo 1975 Supp.

On this appeal Kramer contends the court erred in failing to declare two absentee ballots void because the application for such ballots did not specify the party’s ballot the voter desired; in failing to find eighteen absentee ballots void because the voter had failed to properly identify the exact reason he desired to vote absentee; and in failing to declare twelve absentee ballots void because the persons voting the same were no longer living in Schuyler County. Affirmed.

In his first contention, Kramer claims two properly registered voters requested absentee ballots by letter but failed to specify the name of the party in whose primary they desired to vote, or the precinct in which they voted. Section 112.030, RSMo 1969 requires an application for an absentee ballot to be made either on a blank furnished by the election authority or “may be made in writing by first class mail addressed to the election authority signed by the applicant.” This Section does not impose any further requirements on the application for an absentee ballot. Kramer does not claim any deficiency in the application other than the failure to specify the party’s ballot which the voter was requesting and their precinct. Absent a requirement in the statute that an applicant specify the name of the party in whose primary he wishes to participate, or his precinct, there is no requirement that such be stated. In that instance, the court did not err in refusing to hold the two ballots in that category were void.

Kramer next argues eighteen absentee ballots should have been found insufficient because the affidavit required by § 112.040, RSMo 1975 Supp., was not properly completed because a specific statutory reason the voter was not going to be able to go to the polls was not stated. The statute specifies the reasons which will prevent a person from going to the polls, and permit absentee balloting, as: absence from the county, illness, religious beliefs, or physical disability. The affidavits challenged by Kramer on this basis were on a form furnished by the county clerk, which was the same as the form contained in Section 112.-040 prior to its amendment in 1973. In that form the affidavit stated “that on account of” and following these words was a blank line. Under that blank line, in parenthesis, was stated “absence from the county of my residence, illness or physical disability.” In the affidavits challenged by Kramer, the blank line was left vacant but one of the grounds printed under the line was underlined. Kramer further alleges the underlining was in many instances in a different color or type of marking than the balance of the affidavit. However, there is no effort made to show any fraud or wrongdoing in connection with the completion of any of the affidavits.

In 1973, § 112.040 was amended. At this time the blank line was omitted from the affidavit and the affidavit in the statute now reads in part, “that on account of the absence from the county of my residence, illness, religious beliefs or physical disability, I expect to be prevented from going to the polls to vote on such election day.” There is no requirement in this Section, or in any other Section, which requires the voter to designate which of the permissible grounds applies in his individual case. The affidavit simply contains all of the permissible grounds without requiring the voter to elect dr specify a particular ground. In that circumstance, there was no requirement for the persons desiring to vote by absentee ballot to specify the precise ground which would prevent them from going to the polls on election day. The grounds were contained in the affidavit and even though the eighteen in question did indicate a specific ground by underlining, such underlining was not required and may, therefore, be regarded as surplusage. The challenge as to these eighteen ballots was properly rejected.

Kramer next challenges twelve absentee ballots because he alleges those twelve persons no longer lived in Schuyler County. Kramer introduced evidence to indicate each of the twelve persons no longer lived in Schuyler County, but, in fact, lived elsewhere. His evidence further indicated all twelve were, in fact, registered to vote as required. Kramer’s proof was designed to show these twelve voters had, in fact, removed from the county since their registration to vote and had become disqualified to cast their ballots in Schuyler County.

Section 114.076, RSMo 1975 Supp., requires the county clerk of Schuyler County to conduct a canvass every four years to verify the eligibility of every person whose name appears on the county registration records. This canvass is conducted through the post office, but this Section further provides the clerk may apply to the county court for the appointment of canvassers to make further check of the registration list. The clerk is then required to publish in a newspaper the names of all persons found to be ineligible to remain on the registration rolls by either the post office canvass or by the canvassers. Those who are listed in the newspaper have fifteen days to prove their eligibility as registered voters. The clerk is required to strike the names from the registration records of all those found to be ineligible.

Section 114.081, RSMo 1975 Supp., requires the clerk to cancel the registration after it is learned a registered voter is dead, disenfranchised or removed from the county. Under that Section, the clerk is required to send a notice to the last known address of the voter, and the clerk is authorized to reinstate any person when it is found he has been improperly removed.

Section 114.091, RSMo 1975 Supp., provides no person shall be allowed to vote, except for presidential and vice-presidential electors, unless his name appears on the registration rolls.

Section 114.111, ¶ S, RSMo 1975 Supp., gives the right to any registered voter to challenge the qualifications of any other registered voter. The judges of election are required to try, in a summary manner before the polls close, the qualifications of any voter brought into question. No person’s vote may be rejected except upon the testimony of two credible witnesses and until the challenging person swears before the judges of election, at the time of challenging, that to the best of his knowledge and belief the person challenged is not a qualified voter and the reasons that disqualify him. Upon the judges of election being satisfied that the person challenged is disqualified, they may reject his vote and state his disqualification and the names of the witnesses upon whose testimony his vote was rejected on the registration record.

Section 112.080, RSMo 1975 Supp., provides the vote of an absentee voter may be challenged for good cause and the persons appointed to count the absentee ballots are given the same authority as set out above for election judges to determine the legality of such ballot.

The foregoing will demonstrate the fact the legislature has provided a very exact method by which the registration rolls may be purged prior to an election, and the method by which the qualifications of a voter may be challenged at the time he either votes in person or by absentee ballot. This method also demonstrates the protection which has been given to voters against having their names arbitrarily or mistakenly removed from the rolls. It further gives the voter the protection of requiring the testimony of at least two credible witnesses in order to allow the election judges to find a voter is disqualified.

The attempt by Kramer in this election contest to challenge the qualifications of twelve voters on the basis of their residence does not follow any of the steps outlined above by which the qualifications of voters may be challenged. In fact, Kramer does not point to any statutory basis for challenging the qualifications of a voter in an election contest. At most, Kramer is mounting a collateral attack upon the qualification of these voters whose names appeared on the registration rolls at the time of the primary election. It is stated in 25 Am.Jur.2d Elections, ¶ 110, p. 796: “It seems, however, that names of voters entered upon a registration book cannot be stricken therefrom in a collateral proceeding.”

The right of a court to find a voter disqualified when he was properly registered at the time of the election in a suit to contest the result of the election was considered in Perez v. Cognevich, 156 La. 331, 100 So. 444 (1924). There the court stated at 100 So. 447:

“If these persons had no right to vote because they were not entitled to a place upon the registration rolls, or because they were not entitled to registration as voters in the precinct in which they registered as such, or because their registration did not comply with the law in other respects, the proper proceeding should have been taken to purge their names from the rolls. Both the Constitution and the enactments of the Legislature contemplate direct proceedings against a voter to strike his name from the rolls, except, of course, when it appears that the voter has died, or it appears that since his registration he has been convicted of a felony, or has been declared insane. (citations omitted).
“Were we to give our sanction to the attack here made, we could do so only by ignoring the methods provided by law for purging the rolls, and by permitting what is equivalent to a collateral attack upon the registration of the voters in question, which, of course, we cannot do.”

This view by the Louisiana court has been adopted in State v. Board of Elections of Summit County, 157 Ohio St. 345, 105 N.E.2d 414 (1952). There the court stated at 105 N.E.2d 417[3]: “However, decisions of other courts of last resort almost without exception deny the right to collaterally attack the validity of a vote cast by one who at the time of voting was regularly registered as a qualified voter according to the laws of the state of registration.”

Other cases of like import are Board of Registration Com’rs v. Campbell, 251 Ky. 597, 65 S.W.2d 713 (1933); Moore v. Bay, 149 Md. 286, 131 A. 459 (1925).

The precise question presented has not been decided in this state. However, the qualification of a voter properly registered at the time of election does not appear as a ground upon which an election contest may be filed under § 124.010, RSMo 1975 Supp. Further the Sections discussed above which require the election authority to purge the registration rolls and which give the right to challenge voters provide a complete scheme for removing from the rolls those who are not qualified to vote and preventing any from actually voting who have lost their qualifications. Absent any attack upon the qualifications of these twelve voters in the prescribed method, an attack upon their qualification in this election contest suit constitutes a collateral attack upon their qualification as voters. Because the law does not allow such collateral attack, the court did not err in failing to find the ballots of these twelve absentee voters to be subject to challenge.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: DIXON, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry R. BROWN, Defendant-Appellant.
    No. KCD 28201.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Defendant appeals from concurrent sentences of five years on each of two counts of narcotics possession. The sentences were court imposed when the jury returned guilty verdicts on each count but were unable to agree on punishment.

Defendant raises the single issue that the trial court erred in failing to give MAI-CR 2.70. This has not been preserved for direct review.

The record shows that the jury returned its verdict on May 21, 1975, and the trial court granted the defendant ten additional days or a total of twenty days to file the motion for new trial. The motion was not filed until June 18, some eight days after the time had expired. A tardily-filed motion for new trial is a nullity and preserves nothing for consideration. State v. Morse, 526 S.W.2d 432 (Mo.App.1975); State v. Nelson, 526 S.W.2d 56 (Mo.App. 1975); State v. Richardson, 519 S.W.2d 15 (Mo.1975).

Thus, our review can only be under the plain error provision of Rule 27.20 despite the fact that both the State and the defendant briefed and argued the case as if the point was preserved.

We are clearly bound by State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976), which holds that the failure to give a mandatory instruction reviewed as plain error requires a finding of manifest injustice before reversal will be warranted. The St. Louis District has also held that a failure to give mandatory instructions is reviewable under the plain error rule but that manifest injustice must appear. State v. Johnson, 537 S.W.2d 816 (Mo.App.1976); State v. Nelson, 532 S.W.2d 855 (Mo.App.1975). Both these last cited cases involved the omission of MAI-CR 2.70.

On the basis of that standard of review, a short statement of the facts will suffice to show that no manifest injustice is present in this case. A police officer in response to a call to apprehend a person for disturbance of the peace observed the defendant, who fitted the general description given for the person to be apprehended, getting into an automobile. The officer asked the defendant to get out of the car, but as the defendant was doing so, he placed his right hand in his right front pocket. The officer grabbed the defendant’s hand and jerked it out of his pocket, apparently apprehensive that he might be seeking a weapon. During this episode, the defendant threw a film container on the ground. Within the container were two cellophane wrappers and two pills. Upon analysis, both of the cellophane wrappers and the pills were found to contain different narcotics and the evidence so shows.

The general tenor of the defendant’s testimony was that the police had planted the drugs upon him.

The court gave separate verdict directing instructions and on those separate verdict directing instructions, the jury found the defendant guilty of both offenses.

The thrust of the defendant’s argument of this point is that the failure to give the cautionary instruction permitted the jury to find the defendant guilty of both offenses even though they may have believed only one of the substances was in fact a narcotic or even if they believed only one of the substances was actually in the defendant’s possession. Defendant’s argument continues that since the jury was not cautioned with respect to the use of evidence pertaining to one offense as proof of that offense only they might have used a belief of guilt on one count as evidence of guilt on the other count.

Upon the record in this case, the evidence is abundant that the defendant was in possession of both of the substances. There is no inherent weakness in the State’s proof of either count. The jury could not have erroneously convicted the defendant on one of the counts. In those circumstances, no manifest injustice appears, and the judgment and conviction are affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    Joe Ray STOUT, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28267.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Joe Ray Stout filed a pro se motion pursuant to Rule 27.26. This was followed by an amended motion filed by his appointed counsel. The court disposed of the pro se motion' by finding it was conclusionary in nature and raised no factual issues that could not be determined and adjudicated from the records and files of the court. The court found an evidentiary hearing on such petition was not required and further found from a review of the motion, together with the court’s records and files, that such motion was without merit, and overruled the same.

On the amended motion claiming credit for jail time, the court filed findings of fact and conclusions of law in which Stout was granted credit for twenty-five days jail time.

This appeal attacks only the finding made on the original pro se motion. The single point raised is that the court erred in overruling the motion “as the findings filed were insufficient to permit appellant to properly perfect his appeal.” Affirmed.

Stout contends the court was required by Rule 27.26 to make findings of fact and conclusions of law and argues the order overruling the motion was insufficient under Baker v. State, 532 S.W.2d 897 (Mo.App.1976). Baker is not applicable because in that case an evidentiary hearing was held. In this case the court concluded an evidentiary hearing was not required and none was held.

This case is governed by the holding in Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. den. 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975), and Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974). The court stated in Hogshooter at 514 S.W.2d 113[2]: “To paraphrase Smith v. State, supra, the summary denial of appellant’s motion was equivalent to findings and conclusions in opposition to the grounds set out in his motion to vacate.”

The denial of Stout’s motion in this case was equivalent to findings and conclusions opposed to the grounds stated in Stout’s motion. If the court was correct in its conclusion, its order is sufficient. Stout could certainly raise on this appeal the correctness of the court’s ruling, however, he has not chosen to do so. Thus, the finding that his motion could be ruled on the records and files of the court did not deprive him of the right to appeal nor to perfect his appeal. It simply obviated the necessity of the court to make findings of fact and conclusions of law beyond a finding that the motion could be ruled upon the basis of the court’s records and files. Stout’s contention that the failure to make findings of fact deprives him of the opportunity to properly perfect his appeal is overruled on the basis of Smith and Hogshooter.

Stout urges additional reasons to demonstrate error in not making findings of fact which are not stated in his point in his brief. However, the requirement of the rule that the points relied on should show what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous “contemplates particularization in ‘points relied on’ (citations omitted), and the requirements of the rule are not satisfied by discussion and references in the ‘argument’ (citations omitted), for an appellate court has no duty to seine through the entire brief in an effort to ascertain the points on which an appellant depends.” State ex rel. State Highway Commission v. Warner, 361 S.W.2d 159, 162[3] (Mo.App.1962).

The reason given in the “points relied on” has been dealt with. Additional reasons contained only in the argument portion have not been preserved and will not be discussed.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. John W. BROWN, Appellant.
    No. KCD 28323.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.
    Thomas M. Larson, Public Defender, Mark D. Johnson, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

      Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

John W. Brown was convicted of rape and sodomy and on appeal to this court his conviction was affirmed. State v. Brown, 525 S.W.2d 565 (Mo.App.1975). However,, the sentence was vacated and the cause was remanded for the limited purpose of resen-tencing by the court in an exercise of discretion on whether to impose consecutive or concurrent sentences on the two counts on which Brown was convicted.

On remand the court entered sentences of fifteen years on each count, with the sentences to run consecutively. Brown has filed this appeal following the imposition of such sentences.

On this appeal Brown raises the single point that it was error to force him to be tried on two counts of the information in the same proceeding because Rule 24.04 is unconstitutional. Affirmed.

On his previous appeal to this court, Brown contended that Rule 24.04 “ ‘deprives him of his right to have each of the charges against him litigated at a separate trial.’ ” 525 S.W.2d 568[3].

Likewise, on this appeal Brown complains that it is unconstitutional to force him to be tried on two counts in the same proceeding. In the previous case this court ruled against Brown on the contention that he was tried on two counts in the same proceeding on the basis of State v. Baker, 524 S.W.2d 122 (Mo. banc 1975). This appeal involves the same case as the previous appeal; the opinion on that appeal constitutes the law of the case, and all of the elements of res judicata are present. Jackson v. Hartford Accident and Indemnity Company, 484 S.W.2d 315, 321[1, 2] (Mo.1972).

The doctrine of res judicata is applicable to criminal cases. State v. Humphrey, 357 Mo. 824, 210 S.W.2d 1002[1, 2] (1948).

Since Brown’s sole point on this appeal is barred by the doctrine of res judicata, it cannot be further noticed. In any event, his claim is fully answered and concluded against him by the holding in State v. Baker, supra.

The judgment is affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    James X. MOORE, Appellant, v. STATE of Missouri, Respondent.
    No. 28294.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

This is an appeal from an order denying appellant’s motion under Rule 27.26, Missouri Rules of Criminal Procedure, wherein he sought to set aside a judgment and sentence of 7 years, entered on his guilty plea to a charge of Robbery First Degree. The appellant and two others were separately charged by indictments with the armed robbery of the Sunshine Market at 39th and Woodland on October 12, 1974.

Oh January 14, 1975, the appellant appeared before the Honorable Alvin C. Randall in the Circuit Court of Jackson County, Missouri and entered his plea of guilty. An extensive hearing was conducted, at which appellant was represented by able counsel; his plea was accepted, and a pre-sentence investigation ordered; and, on March 3, 1975, the appellant was sentenced to a term of 7 years in the custody of the Missouri Department of Corrections.

On June 12, 1975, the appellant filed his pro se Motion to Vacate Sentence and Withdraw Guilty Plea, and the matter was reassigned to the Honorable Paul E. Varde-man of the Jackson County Circuit Court for disposition. That court, without further evidentiary hearing or appearance of appellant, did on September 12, 1975, overrule said motion, and this appeal followed. The court below filed a memorandum opinion, findings of fact and conclusions of law, in which it was found that no evidentiary hearing was required because the records, files and transcript of the hearing in the guilty plea proceedings were sufficient to dispose of the appellant’s motion to vacate under Rule 27.26. It was further found that the transcript demonstrated full compliance with the requirements of Rule 25.04, concerning necessary procedures upon pleas of guilty.

Some preliminary facts appearing in the record on this appeal deserve mention. On this appeal, the appellant is represented by the office of the Public Defender for the Sixteenth Judicial Circuit, through the able services of Mr. Lee M. Nation, Assistant Public Defender. The appellant filed his pro se brief herein on November 3, 1975, together with his request for a “summary judgment”. The brief was accepted for filing, but the motion for summary judgment was denied. On April 2, 1976, Mr. Nation filed an appellant’s brief and on April 9,1976, he asked leave to withdraw as counsel for appellant because of irreconcilable conflicts existing between him and the appellant, in great part due to the fact that appellant had instituted an action for both actual and punitive damages in the amount of $15,000.00 against Mr. Nation in the United States District Court, Western District of Missouri, based upon alleged violation of his civil rights.

On April 13, 1976, appellant filed his pro se notice of intention to abandon the two assignments of error or points relied on contained in the brief filed by his counsel. On April 16, 1976, this court denied the request of counsel to withdraw and overruled appellant’s motion to abandon points on appeal.

Thereafter, the appellant’s pro se motions to amend his pro se brief and to advance case upon this court’s docket were sustained. The case was orally argued and submitted on September 22,1976, the appellant’s argument being presented by Mr. Nation. It should be noted that Mr. Nation throughout these proceedings has conducted himself with commendable patience, great ability, and in the best traditions of the bar.

The grounds stated in appellant’s motion for relief under Rule 27.26 may be summarized as follows:

1) He was placed under the “impression” by his trial attorney, Mr. Bruce Simon, that in exchange for his plea of guilty, he “would be” promised that he would be placed on “pre-sentence investigation status”; permitted to make a personal recognizance bond; and, receive a five-year sentence with recommendation for probation (he was in fact given a pre-sentence investigation and permitted to make personal bond); 2) that he depended upon the advice of his trial counsel, and after consultation with his family, accepted the “deal”; 3) that during the pre-sentence investigation period, he was subpoenaed by the defense in the case of State v. Brown, Mo.App., 543 S.W.2d 799 (a companion case) and was told by his trial attorney to respond to the subpoena and testify, but later before he took the witness stand, his attorney told him “with the advice of the prosecuting attorney” that if he helped Brown, the “deal was off”. He did testify and told the truth; 4) that after he was sentenced to 7 years, his attorney told him Judge Randall would reduce the sentence to 5 years after another alleged codefendant was tried, convicted and sentenced; and, 5) that his guilty plea was the result of misleading and unkept promises of the prosecuting attorney and appellant’s trial counsel.

Under the above-related circumstances, this court has carefully considered all briefs filed pro se and by counsel on behalf of the appellant. The points therein raised may be summarized as charges of error on the part of the court below in denying the motion to withdraw the guilty plea and vacate judgment and sentence without an evidentiary hearing and in the absence of appellant, and failing to appoint counsel for him in connection with that procedure.

Rarely has a more detailed and careful transcript of a guilty plea proceeding been filed in this court. At that proceeding held on January 14, 1975, the appellant was represented by counsel and in response to interrogation by both court and counsel, he testified under oath as follows: He fully understood that he was entitled to a trial by jury as to his guilt or innocence and to be represented at such trial by counsel whether or not he could afford to pay him, and his counsel was present and ready and willing to try the case; that at such a trial the state had the burden of proving his guilt beyond a reasonable doubt; that he would have the right to confront and to examine and cross-examine all witnesses; that he would have the right to testify or not to testify in his own defense and to offer whatever additional evidence he might desire, and compel the attendance of witnesses by court process; that a jury would acquit him unless it found him guilty beyond a reasonable doubt; that if found guilty, he would have the right to appeal; and, that by entering a plea of guilty, he was waiving all of these rights, including the right against self-incrimination.

He was satisfied with the representation which had been given to him by counsel and had no complaints in that regard.

He understood that the penalty range for Robbery First Degree was five years to life imprisonment; that the assessment of the penalty, if his guilty plea was accepted, was solely within the discretion of the court to determine the sentence; and, that the court was not bound by recommendations by defense or state counsel as to the sentence or any which the State Board of Probation or Parole might make in its pre-sentence report.

He had been educated through the 9th grade; he could read, write and understand the English language, and had no communication difficulties; he was under no influence from drugs, narcotics or medication, was under no psychiatric treatment nor had he ever been; and, he was in good physical and mental health.

He had discussed the matter of his guilty plea with his counsel and his family.

He admitted that on October 12, 1974, he had committed an armed robbery against Max Levine (Sunshine Market), had taken some money, and was apprehended or caught about twenty minutes later.

He stated that no one had made any promises to him in connection with his plea, and that he understood there would be a pre-sentence investigation before sentencing. He was pleading guilty solely because he was in fact guilty of the offense.

On cross-examination by the assistant prosecutor, it was elicited that two other persons were involved with the appellant in the robbery of the Sunshine Market. The court brought out from the prosecutor that no “deal” had been made with the appellant that he would testify in the other cases. The court thereupon advised appellant that he was not required to disclose the identity of the other men involved and appellant declined to make such disclosure.

The court further extracted from the appellant the fact that he had a prior conviction and had served time. He further testified that he understood such prior conviction would show up in his pre-sentence investigation and would militate against consideration of probation for the present offense. Yet, nevertheless, appellant stated that he wanted the pre-sentence investigation conducted.

The record further discloses that under questioning of appellant by the court and colloquy between the court and counsel for the defense and the state, that no arrangement had been made for the appellant to testify for the state in the companion cases. Appellant testified that he never had any “intention of testifying either for the State or for the defendant”. Thereupon, the court stated:

“Well, I’m telling you now that since we are delaying sentence, I am telling you now whether you do or don’t testify or how you testify will have nothing to do with the sentence in this case.”

The court then made the finding that the evidence established beyond a reasonable doubt that defendant understood his rights and knowingly and intelligently waived them; that his plea was voluntary; that he was guilty of the crime charged; and his guilty plea was accepted.

It is to be noted that of the five points raised in the appellant’s Rule 27.26 motion, only the first two relate to events preceding the guilty plea and those distill to a single relevant point, which is that appellant alleges he was given the impression that in return for his guilty plea, he would receive a sentence of 5 years with recommendation for probation, and he agreed to this. The records of the court below, of this court, and the transcript of the hearing on his guilty plea, completely refute this allegation.

In the posture of this record, the court below was under no duty to hold an eviden-tiary hearing, nor was there any necessity for the appointment of counsel. Colbert v. State, 486 S.W.2d 219 (Mo.1972); Colbert v. State, 496 S.W.2d 12 (Mo.banc 1973); Loflin v. State, 492 S.W.2d 770 (Mo.banc 1973); Smith v. State, 513 S.W.2d 407 (Mo.banc 1974); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974); Weaver v. State, 520 S.W.2d 640 (Mo.App.1975); Winston v. State, 533 S.W.2d 709 (Mo.App.1976).

The authorities relied upon by appellant in his pro se and his counsel’s brief have been closely scrutinized and are not controlling under the facts in this case.

The judgment is affirmed.

All concur.

      . On January 15, 1975, the case of State v. Irvin M. Brown, charged as a participant in the Sunshine Market robbery, came to trial and the appellant was called as a defense witness. He testified that Brown did not participate in the robbery; that the driver of the car was one Green, since deceased, but refused to divulge the name of the third participant. His testimony was thereupon stricken. Brown was convicted and sentenced to ten years.
      In February, 1975, Bates, another participant in the Sunshine Market robbery, was brought to trial, convicted and sentenced to ten years. Appellant did not testify in the Bates trial.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Melvin Lee CONLEY, Defendant-Appellant.
    No. KCD 28368.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Defendant was charged by indictment with one count of sodomy and one count of assault with intent to rape. Upon a record that demonstrates the defendant’s knowledge of his right to a jury trial, he voluntarily submitted the issues to the trial judge who found the defendant guilty of sodomy and acquitted him on the assault with intent to commit rape. The sentence was nine years.

Defendant appeals claiming insufficiency of the evidence to support the conviction and, second, that Section 563.230 RSMo 1969 is an unconstitutional invasion of sexual privacy. We affirm.

On the first issue raised, it is sufficient to say without recital of the facts that the defendant, both by characterization and explicit recital of facts, admitted an act of anal intercourse.

On the second point, neither the motion for a directed verdict nor the motion for a new trial raised the constitutional issue. It is the rule in Missouri that to preserve a constitutional issue for appellate review it must be raised at the earliest time consistent with good pleadings and orderly procedure. State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975). Constitutionality of the statute under which a defendant is convicted will not be considered for the first time on appeal. State v. Byrne, 503 S.W.2d 693, 695-696 (Mo.Banc 1973). Failure to raise the constitutionality of the statute in the trial court concedes its validity. State v. Lofton, 1 S.W.2d 830, 832 (Mo.1927).

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Alton M. PERKINS, Appellant.
    No. KCD 28375.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The appellant (defendant) was charged in a two count indictment with the crimes of Robbery, First Degree (Count I) and Rape (Count II). He was found guilty by a jury on both counts on September 26, 1975, and his punishment was fixed at fifty (50) years on each count. He was thereafter on October 17, 1975 sentenced by the court, in accordance with such verdict, the sentences to run consecutively.

On October 27, 1975, the defendant filed his Notice of Appeal to this court from the judgment and sentence, in which he asserted that he had been “[CJonvicted of Rape, Section 559.260 and of Sodomy, Section 563.230.” Of course, he had not been charged with, tried upon, nor convicted of sodomy in the court below, and the content of the notice undoubtedly arose from a stenographic or transcription error. In all other respects, the notice fully complied with the requirements under the Rules. This mistake in the notice in this regard was not raised by the state either by motion, in its brief, or in argument. The whole appeal has proceeded from its inception upon the basis that the notice of appeal was in fact from the two convictions suffered by the defendant and upon which he was charged and tried in this case. The appeal will be treated here, as it was treated by the parties, as presenting for review the actual convictions and judgment below, without further reference to the obvious mistake in the content of the Notice of Appeal. In so doing, this court in no way binds itself in the future, under other circumstances, to overlook such an obvious failure to comply with the specific and clear requirements of Rule 81.08, Rules of Civil Procedure (made applicable to criminal eases by Rule 28.03, Rules of Criminal Procedure) as to the content of a Notice of Appeal.

Upon this appeal the defendant urges two assignments of error. His first point is that the court erred in admitting into evidence a .22 caliber revolver, State’s Exhibit No. 7, which he asserts was the product of an illegal search and seizure, in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States.

The defendant’s second point is that the court erred in refusing his motion for a severance and separate trials as to Count I (Robbery) and Count II (Rape), in that Rule 24.04 of the Missouri Rules of Criminal Procedure, permitting such joinder, is unconstitutional as violative of Article V, Section 3, of the Missouri Constitution.

No question is raised as to the sufficiency of the evidence, so a brief summary of the evidence adduced at both the pre-trial evi-dentiary hearing on defendant’s motion to suppress the .22 caliber revolver and at the trial will be sufficient.

On the afternoon of June 13, 1974, B- L-, the woman manager of an apartment house at 718 E. Armour Boulevard, Kansas City, Missouri, was summoned to the door of her apartment by two black males asking to be shown an apartment. The manager and the two men were joined by a third man at the elevator and she proceeded to show them an apartment on the second floor. Upon returning to her apartment, and after she had unlocked the door, the defendant put a handgun against her and pushed her into the apartment. She was forced to lie upon the floor and was bound and blindfolded; the men proceeded to ransack her apartment; and, she was thereafter taken to her bedroom and forcibly raped by at least two of the men. No further details of these sordid occurrences are necessary.

When the men left her apartment, B_ L_called the police and reported the assault and battery. Among the items reported stolen was a blue steel .22 caliber revolver, and the victim was able to give the police the serial number thereof from her purchase record of the gun. After the defendant’s arrest, B_ L_ identified him from photographs, and she made a positive in-court identification of him as one of her three assailants.

After the defendant’s arrest, he gave a complete question and answer statement to detectives of the Kansas City, Missouri police department, in which he admitted his participation in the robbery and admitted he raped B_ L_ during the course thereof. As a part of this statement, he said that when the manager returned to her apartment after showing him and his companions the vacant apartment on the second floor, he, armed with a pistol owned by one of his companions, forced their admittance; once inside, he pulled the gun, forced her to sit on the couch, then to lie on the living room floor; and, demanded her money. He stated that he “found” a .22 caliber revolver in the apartment and thereupon returned the gun he had been using to his friend and “kept” the revolver.

The defendant filed a motion to suppress this statement, upon the grounds it was obtained by threats and promises, and a pre-trial hearing was had thereon. The motion was overruled, and the statement was ádmitted into evidence at the trial, over the objection of defendant, and was read by the jury. This matter was preserved in defendant’s motion for a new trial, but is not briefed upon this appeal, and is therefore abandoned.

The defendant was not arrested until July 30,1974. On the morning of that day, Gilbert Hernandez, then a member of the Kansas City, Missouri police department, was off duty and was at an apartment complex on East 87th Street in Kansas City, where he also served as security guard. One of the tenants reported to him the presence of two suspicious black men in the complex and Hernandez, in plain clothes, commenced to look for them. In the complex parking lot he saw two black men emerging from one of the buildings and crossing the lot to a 1970 Pontiac convertible. He shouted at them to stop, that he was a police officer, but they hurried toward the car and the defendant entered the passenger side and his companion the driver’s side, and Hernandez observed both stoop down toward the bottom of the front seat. Hernandez drew his service gun, again identified himself as a policeman, and ordered them from the car. He searched their persons but found no weapons. He asked the defendant’s companion for his driver’s license or other identification. He had none, nor any registration or evidence of ownership of the car. Likewise, the defendant had no identification. Hernandez placed them under arrest “for investigation for rape and robbery”; called for assistance; they were taken to the police station; and, the automobile was taken to the police tow lot. Hernandez did not search the automobile but did make an official report of the case.

At the hearing on the motion to suppress the .22 caliber revolver as evidence, Hernandez testified that he had a police bulletin describing suspects in a number of robbery-rape cases, and of four automobiles thought to have been used in those cases. He stated that the personal descriptions of the defendant and his companion on July 30,1974 checked with the bulletin, and that the Pontiac involved on that day was “close” to one of the ears described in the bulletin, particularly the fact that the lock on the trunk lid was “punched out”. This testimony was not before the jury at trial, not being offered by the state.

Detective James Theisen of the Kansas City, Missouri police department testified that on July 30, 1974, he investigated the 1970 Pontiac at the police tow lot and found a .22 caliber revolver under the front seat, and the serial number on the gun checked with the number supplied the police by B_L_on June 13, 1974. On the hearing on the motion to suppress, he stated that at the police tow lot, he looked through the car window and saw a chrome-plated revolver protruding from under the front seat on the driver’s side. When he opened the door, he saw another gun under the seat on the passenger side. He retrieved both weapons and the one under the passenger side was the .22 caliber revolver in question.

Theisen had no search warrant. At the time of the search, the defendant had been taken to jail. The evidence failed to disclose the ownership of the 1970 Pontiac automobile. The defendant did not testify at the trial.

In ruling the defendant’s first assignment of error with reference to the alleged illegal search and seizure, this record is clear that, under the present state of controlling authorities, he lacked the necessary standing to challenge the constitutional validity of Detective Theisen’s search of the Pontiac automobile. Defendant asserts no ownership or possessory interest in the automobile. The record clearly shows that at the time of his arrest, he was sitting on the passenger side of the front seat and at the time of the search he was not physically present. His attempt to reach a position of “standing” to raise this point apparently consists of a claim of a possessory interest in the .22 caliber revolver found in the car by reason of the admitted fact that he had stolen the gun in the robbery and rape of June 13, 1974!! The “standing” envisioned as sufficient to challenge the constitutionality of a search and seizure cannot stem from the possession by a thief of stolen property seized by police under plain view, the circumstances of this case. State v. Crawford, 416 S.W.2d 178, 186[5] (Mo.1967); State v. Edmonds, 462 S.W.2d 782, 784[1] (Mo.1971); State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 691[3] (1951); State v. Camper, 353 S.W.2d 676, 679[5] (Mo.1962).

This court has recently reviewed the current state of decisional law, authoritative here, as to this question of “standing” in the case of State v. Bates, 540 S.W.2d 161 (Mo.App.1976), citing Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 1569[1, 2], 36 L.Ed.2d 208 (1973); State v. Thompson, 490 S.W.2d 50, 51-52[1] (Mo.1973); State v. Ross, 507 S.W.2d 348, 353[3] (Mo.1974); State v. Achter, 512 S.W.2d 894, 899-900[5, 6, 7] (Mo.App.1974); State v. Browner, 514 S.W.2d 355, 356[1] (Mo.App.1974); and, State v. Hornbeck, 492 S.W.2d 802, 808[10, 12] (Mo.1973).

The factual circumstances with reference to the alleged illegal search and seizure of an automobile in which the defendant was a passenger and to which he claimed no pos-sessory interest in, in State v. Bates, supra, are strikingly similar to the facts in the case at bar. In Bates, it was held that the defendant lacked standing to challenge the legality of the search and seizure, and the principles applied and authorities followed in Bates apply with equal vigor here and are adopted as controlling. No useful purpose would be served by repetition thereof.

The defendant here lacked the necessary standing to attack the legality of the search of the Pontiac automobile by Detective Theisen and the seizure of the stolen .22 caliber revolver. Defendant’s first assignment of error is ruled against him.

The defendant’s second assignment of error, the trial court’s failure to grant a severance of the robbery and rape charges, has likewise been recently ruled by this court in State v. Morgan, 539 S.W.2d 660 (Mo.App.1976), wherein the defendant was charged with rape and robbery and made the same claim of error. His conviction on both charges in one trial was affirmed by this court under the compulsion of Rule 24.04, Rules of Criminal Procedure, as interpreted in State v. Neal, 514 S.W.2d 544, 550 (Mo. banc 1974, concurring opinion of Donnelly, J.); State v. Walker, 484 S.W.2d 284, 286[3] (Mo.1972); State v. Johnson, 505 S.W.2d 11, 12[1] (Mo.App.1974); and, State v. Brooks, 513 S.W.2d 168, 171[5] (Mo.App.1973). All of these authorities are discussed in detail in this court’s opinion in Morgan, and no useful purpose would be here served by further discussion. The opinion in Morgan is controlling in this case and results in the conclusion that the court below did not err in overruling defendant’s motion for a severance, no constitutional rights of the defendant were thereby impinged, and he had no constitutional right to be tried on only one of the offenses charged, since both crimes were based upon acts which were part of the same transaction and part of a common scheme or plan (Rule 24.04), namely, the robbery and coincident rape of B-L_The defendant’s second point is ruled against him.

The judgment is therefore affirmed.

All concur.


text:
    Donald J. HILL, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28377.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.
    Thomas M. Larson, Pub. Defender, Lee M. Nation, Asst. Pub. Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Donald Hill filed a motion under Rule 27.26 in which he sought to correct or amend his sentence of nine years imprisonment following a plea of guilty to a charge of assault with intent to rob with malice.

The trial court overruled the motion without an evidentiary hearing. On this appeal, Hill asserts this court should reduce his sentence as a matter of fundamental fairness and because in this case the length of the sentence constituted cruel and unusual punishment. Affirmed.

Hill concedes in his brief there is no question concerning the voluntariness and legality of his guilty plea and that the sentence imposed was within the statutory range of punishment. Rather, he argues this court should undertake a review of his sentence and, in fact, should review all sentences as some states do.

In State v. McRae, 528 S.W.2d 794 (Mo.App.1975) this court answered the same arguments made by Hill when it stated:

“In the absence of a showing that the sentencing court was influenced by motives of prejudice or was induced by corruption (citations omitted), a claim that the sentence was excessive or constituted cruel and unusual punishment is not cognizable in our appellate courts.”

Hill makes no attempt to demonstrate, and none is found, of any prejudice or corruption in his sentencing.

The appellate review of sentences in Missouri is not permitted except in the circumstances stated in McRae. Absent such circumstances, this court cannot review the sentence in this case.

Judgment affirmed.

All concur.


text:
    Melvin Sylvester OWENS, Appellant, v. STATE of Missouri, Respondent.
    No. 28405.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Melvin Owens filed a motion pursuant to Rule 27.26 in which he sought to vacate his sentence of life imprisonment following his conviction by a jury of murder in the first degree.

In his motion Owens accused the attorney, who he had hired to represent him in his trial, with failure to effectively represent him. He alleged the attorney failed to request a change of venue, failed to object to certain evidence, and failed to request the rule excluding witnesses from the courtroom be invoked.

The court held an evidentiary hearing at which Owens was the only witness. The only evidence presented which bore on Owens’ allegation of ineffective assistance of counsel was Owens’ statement that he had been advised by the attorney who handled his direct appeal that his trial attorney had preserved nothing for review. Other than this, Owens’ evidence consisted of simply identifying his motion and his offer of the entire transcript of his trial.

The court overruled Owens’ motion and found that Owens’ attorney was effective in protecting his rights and this resulted in Owens receiving a fair trial.

On this appeal Owens does not point to any dereliction on the part of his trial attorney as constituting ineffective assistance except for a general statement that such attorney failed to object and was unable to preserve a record for appeal. No specific instance of a failure to object is mentioned; the only allegation of a specific inability to preserve a record is the assertion that counsel failed to preserve the issue of the constitutionality of Owens’ confession.

On the direct appeal, Owens’ conviction was affirmed in State v. Owens, 486 S.W.2d 462 (Mo.1972). In that opinion, the court considered the validity and admissibility of Owens’ confession, and held there had been probable cause for Owens to be arrested. This fully answered the contention made by Owens that his confession was not admissible because his arrest had been illegal because it had been made without probable cause. The only complaint on appeal concerning the confession, on which the court mentioned any lack of record, was the complaint that the trial court had failed to make a finding that Owens had been advised of his rights and his confession was freely and voluntarily made. However, the court pointed out a full pretrial hearing was held on the issue of the voluntary nature of Owens’ confession and its admissibility. The court observed all of the evidence at that hearing was that Owens had been fully advised of his rights. The trial court overruled the motion to suppress and in so doing obviously found that Owens had been advised of his rights. No effort is made on this appeal to show how Owens was deprived of a fair trial by reason of any failure on the part of his trial counsel to request any specific findings at the conclusion of the pretrial hearing on his motion to suppress.

In State v. Washington, 399 S.W.2d 109, 112[7] (Mo.1966) the court stated: “The mere fact of conviction and the bare assertion of ‘ineffective assistance’ of counsel is not sufficient to carry the burden or to state a claim for relief.” The burden is cast upon Owens by Rule 27.26(f) to establish his grounds of relief by a preponderance of the evidence. No evidence was presented to the trial court and none is relied on here by which it could be said Owens has sustained his burden.

In addition, when ineffective assistance of counsel is alleged, movant does not sustain his burden of proof unless he clearly demonstrates that the acts or omissions of his counsel were of such character as to result in a substantial deprivation of the right to a fair trial. Crow v. State, 514 S.W.2d 13 (Mo.App.1974). It is plain Owens had failed to demonstrate any act or omission on the part of his counsel which deprived him of a fair trial and has thereby failed to sustain his burden of proof.

The judgment is affirmed.

All concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri ex rel. Virgil E. FARRIS et al., Plaintiffs-Appellants, v. Raymond V. CLIFFORD, Circuit Clerk, St. Louis County Circuit Court, Defendant-Respondent.
    No. 37646.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 2, 1976.

      Carter & Becker, John J. Allan, Clayton, for plaintiffs-appellants.
    Robert H. Grant, Clayton, for defendant-respondent.
   WEIER, Presiding Judge.

When the defendant landowners in a condemnation case brought in St. Louis County by the City of St. Ann proffered their exceptions to the commissioners’ report, defendant Raymond V. Clifford, as clerk of the St. Louis County Circuit Court, refused to accept the exceptions for filing until the condemnees posted a $71.00 filing fee for each exception as a deposit for the cost of litigation. The condemnees thereupon instituted this suit in the circuit court seeking a writ of mandamus to compel the circuit clerk to file the exceptions without the payment of the $71.00 filing fee. It is from a quashing of the alternative writ that they bring this appeal.

Rule 86 sets out the procedure to be followed in all condemnation proceedings with the exception of charter cities where special provisions are to the contrary. The condemnation suit is instituted by the filing of a petition described in Rule 86.04. After service has been obtained under Rule 86.05, a hearing is held and upon a determination that the allegations in the petition are substantiated by the evidence, three commissioners are appointed to assess the damages. After the report of the commissioners has been filed a notice is given to the con-demnees and any party, either the con-demnor or the condemnees may file written exceptions to the commissioners’ report within ten days after the service or posting of this notice.

Rule 3.A of the Circuit Court of St. Louis County provides:

“At the time of the institution of any case or proceeding the person instituting the same shall pay to and deposit with the Circuit Clerk the following cash deposit for costs: * * * (3) The sum of $71.00 in all civil jury cases * *

It is the contention of the circuit clerk that the filing of the exceptions to the report of the commissioners is the “institution of any case or proceeding” under circuit court rule 3.A because these exceptions are tried separately, and in each instance the issue of damages is tried to a jury, or, if the jury be waived, to the court. Rule 86.08. He thus reasons that in each instance where a condemnee files exceptions, a separate advancement of costs of $71.00 should be posted before the exception is allowed to be filed in his office.

The condemnees, on the other hand, contend that the trial of the issue of damages is not a separate suit so as to cause the filing of the exceptions to the commissioners’ report to be within the definition of “institution of any case or proceeding” under the provisions of circuit court rule 3.A, supra.

We agree with the condemnees. The word “institute”, according to Black’s Law Dictionary, Fourth Edition, means: “To inaugurate or commence; * * * To set up, to originate, to introduce.” Here, the con-demnees do not commence a new action when they file exceptions. This is an ancillary proceeding to determine by trial to a jury or the court the issue of damages. Unlike the filing of a suit, it is not the filing of a written statement of facts upon which a case is rested. The adverse parties are not brought in by summons or by getting them to enter their voluntary appearance. Pleadings may not be amended to better present issues for legal determination. Cf. Miller v. Farmers’ Exchange Bank of Gallatin, 228 Mo.App. 367, 67 S.W.2d 528, 532[1] (1934). The trial on the exceptions is an inquiry as to damages only and in effect allows either condemnor or the condemnee the right to have a jury determination made as to the amount of money due the owner of the property taken by the condemnor.

Defendant circuit clerk contends that Rule 86.09 supports his position in requiring payment of a filing fee for each exception in a condemnation case. This rule provides that the costs of the condemnation proceeding shall be paid by the condemnor up to and including the filing and copying of the report of the commissioners. It further provides that the court, as to any costs made by subsequent litigation, may make such order as in its discretion may be deemed just. All that we can read into the rule is that it allows the trial court to assess costs in the trial of the exceptions in the exercise of a reasonable discretion. Under a similar section of the statutes, § 523.070, RSMo. 1969, it has been decided that even though the verdict of the jury awarded a lesser amount to the condemnee than the award of the commissioners, the court in the exercise of its discretion could tax costs against condemnor which had accrued subsequent to the report of the commissioners. Texas Empire Pipe Line Co. v. Stewart, 35 S.W.2d 627, 634[26] (Mo.App.1931), reversed on other grounds, Texas Empire Pipe Line Co. v. Stewart, 331 Mo. 525, 55 S.W.2d 283 (banc 1932); City of Cape Girardeau v. Hunze, 314 Mo. 438, 284 S.W. 471, 482[18] (1926); Chicago S. F. & C. Ry. Co. v. Elliott, 117 Mo. 549, 24 S.W. 53, 54 (1893).

Exceptions to the report of the commissioners in a condemnation proceeding cannot be considered the institution of a suit or proceeding so as to bring it within the terms of rule 3.A of the circuit court of St. Louis County. Rule 86.09 merely requires that the initial costs in a condemnation proceeding be paid by the condemnor and subsequent costs after the filing of exceptions may be assessed by the court in the exercise of its discretion. The judgment below is therefore reversed and remanded with instructions to make the alternative writ of mandamus peremptory.

DOWD and CLEMENS, JJ., concur.


text:
    Edward McLALLEN, Appellant, v. STATE of Missouri, Respondent.
    No. 28469.
    Missouri Court of Appeals, Kansas City District.
    Nov. 4, 1976.

      Richard K. Houtchens, Houtchens & Houtchens, Clinton, for appellant.
    John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The appellant (defendant) was found guilty by a jury on a multiple charge information of stealing, burglary and stealing, and attempted burglary. He was initially tried under the Second Offender Act and received multiple sentences assessed by the trial court. This judgment and the sentences assessed were affirmed by this court on direct appeal, State v. McLallen, 522 S.W.2d 1 (Mo.App.1975).

The defendant thereafter filed a motion under Rule 27.26, Rules of Criminal Procedure, to vacate the judgment and to set aside the sentences based upon five grounds for such relief. A lengthy evidentiary hearing was held on the motion, and the trial court in a written memorandum made specific findings of fact and conclusions of law, and overruled the motion. This appeal followed.

The defendant’s brief filed herein fails to comply with the mandatory requirements as contained in Rule 84.04, Rules of Civil Procedure, in many particulars.

Without burdening this opinion with a recitation of all of these deficiencies, one must be noted. The first four of his “Points and Authorities” are inadequate to preserve anything for review. They are as follows:

“ I.
The motion to vacate should be sustained because of ineffective assistance of counsel.
II.
The motion to vacate should be sustained because it was unconstitutional to be tried on a multiple count information.
III.
The motion to vacate should be sustained because the jury was not informed when the Sheriff was impeached.
IV.
The motion to vacate should be sustained because the prosecuting attorney had no right to be present and assist in the interrogation when movant made a confession.”

Rule 84.04(d) provides, in part:

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

There are no authorities cited by the defendant under any of these four points and none of them is dealt with in the argument portion of the brief. Accordingly, nothing is presented for review as to these points. McQueen v. State, 475 S.W.2d 111, 115[3] (Mo. banc 1971); State v. Warters, 457 S.W.2d 808, 811[2] (Mo.1970).

The only point raised in defendant’s brief which gives even token compliance to the mandate of Rule 84.04(d) is his last point, which states:

V.
The motion to vacate should be sustained because the appellant did not have counsel at his previous convictions relied on to make the Second Offender Act applicable.”

This point contains citations of authorities and is the only point attempted to be covered in the argument portion of the defendant’s brief. Accordingly, it will be considered.

The transcript of the testimony and record in the original trial was admitted as an exhibit in the evidentiary hearing on the Rule 27.26 motion to vacate the judgment and sentences, and is now before this court. It reveals that prior to impanelling the jury, the court held a preliminary hearing in camera as to the applicability of the Second Offender Act.

During the course of this hearing, the prosecuting attorney had various documents marked which were certified copies of defendant’s prior felony convictions (being eight in number) and these documents were marked State’s Exhibits 2 through 17. However, the prosecutor offered into evidence only those documents showing two prior felony convictions in Missouri, State’s Exhibits 2, 3, 4 and 5. These records were admitted by the court, without objection by defense counsel, and the court thereupon made a formal finding of those two prior convictions and ruled that the Second Offender Act was applicable to the proceedings. These records disclosed:

On June 7, 1948, this defendant pleaded guilty to the charge of Breaking Custody and Escape in case # 35782 in the circuit court of Livingston County, Missouri and was sentenced to two years in the penitentiary.

On November 28, 1951, this defendant pleaded guilty to the charge of Robbery, First Degree in case # 8422 in the circuit court of Jasper County, Missouri and was sentenced to five years in the penitentiary.

The basic question for decision by the trial court was whether the defendant was in fact represented by counsel in the two prior convictions, the fact of the convictions being conceded and the official records thereof having been received in evidence without objection. The determination of this basic fact must be approached in the light of certain procedural concepts.

The defendant’s allegations in his Rule 27.26 motion to vacate are not “self-proving”, Ward v. State, 451 S.W.2d 79, 81[1] (Mo.1970), and the burden of proving this ground for relief by a preponderance of the evidence rests upon the defendant, Rule 27.26(f); Collins v. State, 450 S.W.2d 186, 187[1] (Mo.1970); Anderson v. State, 493 S.W.2d 681, 684[4] (Mo.App.1973); Smith v. State, 513 S.W.2d 407, 411 (Mo.banc 1974); Lee v. State, 526 S.W.2d 329, 332[4] (Mo. App.1975). The weight of the evidence and credibility of the witnesses are matters for the trial court, and it may reject testimony offered on behalf of the movant (defendant) although such testimony is uncontra-dicted. Shoemake v. State, 462 S.W.2d 772, 775[2] (Mo.banc 1971).

During the evidentiary hearing on the Rule 27.26 motion, a certified copy of the judgment and sentence in the Livingston County conviction of June 7, 1948 was received in evidence, without objection. This document clearly shows that the circuit court appointed counsel to represent the defendant, one Wm. A. Miner, a member of the Livingston County bar. The record further shows that the defendant consulted with his counsel “and a friend” and that Miner appeared with him in open court when his guilty plea was entered.

Likewise, a certified copy of the judgment and sentence in the Jasper County conviction of November 28, 1951 was received in evidence, without objection. Also, a certified copy of the judge’s docket in the Jasper County case was received in evidence, which reveals that on November 15, 1951, the court appointed counsel to represent the defendant, one Charles M. Cook. The judgment entry discloses that the defendant had consulted with Cook, who was present with him in open court when sentence was imposed.

Mr. Cook testified at the hearing that he was representing a great number of defendants in criminal matters during the period which included November of 1951, but had no independent recollection of his representation of the defendant. He stated that he “very probably” was appointed to represent the defendant, but had been unable to verify this fact from his office files since those for 1960 and prior years, had been disposed of because of filing space problems in his office.

The defendant’s testimony was equivocal and indefinite as to being represented by counsel in the Livingston and Jasper County proceedings. Such vagueness is understandable since the Livingston County proceedings were 24 years and the Jasper County proceedings were 21 years before his testimony in this matter, and in the interim, he had been no stranger to criminal court proceedings. At the outset of his testimony on this facet of the 27.26 proceedings, on direct examination the following appears:

“Q. * * * And in your motion to vacate you have alleged that you did not have any counsel (in the Livingston County matter) * * *. Is that true and correct?
A. No, sir, to my knowledge, I didn’t. * ⅜ * * * *
Q. Mr. MeLallen, now you allege in your motion * * * that you did not have counsel at that time (Jasper County matter).
A. To my knowledge I didn’t.” (Emphasis supplied)

Throughout his testimony as to representation by counsel, he repeatedly employs the qualification to any statement as to the lack thereof by the phrase “Not to my knowledge” or “If I did, I don’t remember”.

In the light of the solemn judicial records of the Livingston and Jasper County circuit courts disclosing that the defendant was, in fact, represented by counsel in each proceeding, his testimony does not meet the burden placed upon him to support his motion to vacate his conviction under the Second Offender Act.

The constitutional requirement that the right to assistance and advice of counsel at every vital stage of a criminal proceeding is essential to a fair trial, and that a conviction, whether by trial or plea, without counsel violates the Fourteenth Amendment as delineated in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and held to have full retroactive impact in Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971) is applicable here. However, this record is convincing that the defendant did have the assistance and advice of counsel in each of the prior convictions in Livingston and Jasper counties and the constitutional safeguards declared, in Gideon and many later decisions were fully met.

Such was not true in the case of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), and State v. Alberts, 519 S.W.2d 562 (Mo.App.1975), relied upon by defendant, where the records affirmatively showed that the defendants were not represented by counsel in previous proceedings. The case of Irby v. Missouri, 502 F.2d 1096 (8th Cir. 1974), also relied upon by defendant, turned primarily upon whether or not the defendant in a criminal proceeding in the state court of Missouri had waived his right to counsel where such conviction was urged as the basis for proceedings under the Second Offender Act, and whether a federal court habeas corpus proceeding could be entertained under the exhaustion doctrine. The District Court held that the petitioner (defendant) had not exhausted his state court remedies. The Eighth Circuit ruled that he had done so, but that the record in the state court proceedings in the prior conviction did not disclose a knowing and intelligent waiver of right to counsel and remanded the case to the District Court for a factual determination of that issue. Irby is not authoritative here.

The trial court’s ruling on defendant’s Rule 27.26 motion to vacate the judgment and sentences, and in holding the Second Offender Act applicable in this proceeding, were not clearly erroneous, Rule 27.26(j), and the judgment is affirmed.

All concur.


author: KELLY, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Aaron Lee ROBERSON, Defendant-Appellant.
    No. 36890.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 9, 1976.

      James C. Jones, Thomas J. Nold, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., George A. Peach, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Presiding Judge.

Aaron Lee Roberson was convicted by a jury in the Circuit Court of the City of St. Louis of Perjury, § 557.010 RSMo. 1969, and was sentenced as a Second Offender, § 556.-280 RSMo. 1969, by the trial judge to ten years in the custody of the Missouri Department of Corrections. § 557.020(2) RSMo. 1969. After an unsuccessful Motion for New Trial was filed and overruled this appeal followed. We reverse and remand with directions.

This perjury charge had its genesis in a trial in the Circuit Court of the City of St. Louis wherein the defendant was charged with raping one Ray Gina Miller. During the course of the prior trial the defendant testified in his own behalf and was acquitted by the jury of that charge. Subsequently the Grand Jury of the City of St. Louis indicted him on this Perjury charge in that he committed perjury in the trial on the rape charge when “he testified that he escorted Ray Gina Miller to the Alton Dam Park on Labor Day, 1971, when on the contrary, in truth and in fact, the said Ray Gina Miller was not present at the Alton Dam Park on such date, and in fact was not ever seen by said Aaron Lee Roberson on Labor Day, 1971.” At the trial on this Perjury charge there was conflicting evidence concerning the whereabouts of Miss Miller on Labor Day, 1971, the State’s evidence being that she was in Willengboro, New Jersey, on that date and the defendant’s evidence that she was, as he had testified in the rape trial, at Alton Dam Park. The jury chose to believe the evidence proffered by the State and found the defendant guilty.

On appeal the defendant, as we shall hereinafter refer to Mr. Roberson, raises three Points for outright reversal and discharge, or, in the alternative, for reversal and remand for a new trial. He contends that the trial court erred in:

1) denying his motion for judgment of acquittal at the close of all of the evidence because the alleged false testimony was not material to the issues in the rape trial,
2) denying his motion for judgment of acquittal at the close of all of the evidence because the evidence produced at the trial of the perjury charge was insufficient to show the materiality of the alleged false testimony, and
3) permitting the defendant’s entire testimony in the rape case to be read to the jury in the perjury trial because the defendant’s testimony in the prior trial, except for that pertaining to the events of Labor Day, 1971, went beyond the scope of the perjury charge.

At the perjury trial the State produced as its witnesses Ray Gina Miller, the victim of the alleged rape, Eddie Watkins, Lillie Watkins, Joann Rainey, and Robert J. Lipa, the official court reporter who reported the testimony of the prior trial. Eddie and Lillie Watkins, husband and wife, testified in the perjury trial that on Labor Day, 1971, Ray Gina Miller was a guest at their home in Willengboro, New Jersey, and on that date attended a barbecue in the backyard of their home. Mr. Watkins is Miss Miller’s uncle, ánd Lillie Watkins is Eddie’s wife. Ray Gina Miller also testified that on Labor Day, 1971, she was in Willengboro, New Jersey, at the Watkins’ home and attended a barbecue. Joann Rainey testified that on Labor Day, 1971, she was visiting at the home of Ray Gina Miller’s parents in St. Louis and that although she went to Alton Dam Park with the defendant, David Taylor and Arlene Thomas, defendant’s girl friend, she did not see Miss Miller at any time over the Labor Day weekend and more particularly at Alton Dam Park.

Mr. Lipa, the official court reporter, identified a transcript of the testimony of several witnesses at the trial on the rape charge, and read into evidence the entire testimony of the defendant given at that prior trial. Without objection he read defendant’s testimony that he and Ray Gina Miller were neighbors and that on Labor Day, 1971, he and Miss Miller went to Alton Dam Park with David Taylor and Joann Rainey, and that while there he had intercourse with Miss Miller with her consent. Over objection that it was beyond the scope of the inquiry in the perjury charge, Mr. Lipa was permitted to read further from the transcript that defendant testified that between Labor Day, 1971, and December 23,1971, he went out with Miss Miller three or four times; that although he could not recall the specific dates, he had intercourse with her in his automobile in his backyard and also again in his automobile while parked in a friend’s driveway. These intercourse incidents post-dated that of Labor Day, 1971, the first time he had ever taken her out. According to Mr. Lipa the defendant further testified at the trial on the rape charge that on December 23, 1971, he and Miss Miller went to the back room of a record shop at 2300 Union Boulevard in the City of St. Louis, owned by a friend of his, where they again engaged in an act of intercourse. He testified that the prosecutrix voluntarily engaged in this sex act and denied that he had threatened her in any way.

In the defense case defendant took the stand in his own behalf and repeated the testimony he had given at the trial on the rape charge as read into the record by the court reporter at that proceeding. Other witnesses who corroborated the defendant’s testimony that Miss Miller was in St. Louis and went with him to Alton Dam Park on Labor Day, 1971, were his aunt, his sister-in-law, and his girl friend, Arlene Thomas. Arlene Thomas denied that she was with Miss Rainey and the others at Alton Dam Park but did testify that she saw Miss Miller at the defendant’s home on Labor Day, 1971, during the morning hours.

In reviewing this judgment we must recognize that the perjury alleged in both the Indictment and the Substitute Information in Lieu of Indictment is that the defendant perjured himself in the trial of the rape charge when he testified that he “escorted” Miss Miller to the Alton Dam Park on Labor Day, 1971. At no time was he charged with lying when he testified that he and she engaged in an act of intercourse at that place on Labor Day, 1971. The issue presented here is whether the defendant perjured himself when he so testified, and that is dependent upon whether his testimony to this fact is material to the rape charge for which he was on trial.

The absence of record evidence from the prior trial has complicated our task in resolving the materiality issue. Neither the indictment nor the information — which one was the charging document in the rape trial we do not know — was introduced into evidence, and it is only through a careful scrutiny of the record in the trial of the perjury charge that we can discern that the rape allegedly took place on December 23, 1971. This we ascertain from the transcript of defendant’s testimony from the prior trial and his testimony in the perjury trial. Miss Miller was not questioned about the events of December 23, 1971, in this trial nor was her testimony at the prior trial introduced into evidence in the trial of the perjury case. As a matter of fact there is no evidence in this record that she testified in the rape trial that the intercourse of December 23, 1971, was accomplished by means of force or threats or without her consent. And the record of this trial is devoid of any such evidence. For reasons we shall hereinafter demonstrate, this lack of evidence is fatal to the State’s case and requires that we set aside the conviction in this case.

The essence of the crime of perjury is the wilful false swearing to a substantial definite material fact, State v. Vidauri, 305 S.W.2d 437, 440[2] (Mo.1957), and it is incumbent upon the State to not only allege but also to prove beyond a reasonable doubt that the defendant has sworn falsely to a material fact for the reason that false testimony to an immaterial fact is not perjury. State v. Swisher, 364 Mo. 157, 260 S.W.2d 6, 11[6] (banc 1953). Where there is no dispute as to what the testimony of the party charged with perjury was upon a certain issue presented to a court of competent jurisdiction, then it is purely a question of law for the trial court to determine whether such testimony as given was material to the issue thus presented. State v. Dineen, 203 Mo. 628, 102 S.W. 480, 482[2] (Mo.1907). However, the materiality of the testimony on which perjury is assigned must be established by evidence and cannot be left to presumption or inference. State v. Dineen, supra. To prove materiality the State must introduce into evidence in a perjury trial enough of the records and testimony in the original trial to inform the trial court wherein and how the assigned testimony became material. State v. Chapman, 253 Or. 596, 456 P.2d 89 (1969), People v. Harris, 102 Ill.App.2d 335, 242 N.E.2d 782 (1968).

With these principles in mind we proceed to consider defendant’s first and second Points Relied On.

At first blush it would appear that where it is charged that a rape occurred in a record shop at 2300 Union Avenue in the City of St. Louis on December 23, 1971, evidence that the defendant “escorted” the alleged victim to a picnic at Alton Dam Park on Labor Day, 1971, would be immaterial. As we have heretofore stated, it is the burden of the State to prove the materiality of this evidence to support a perjury charge and we conclude that from this record the State has utterly failed to carry its burden.

We have searched the record in this perjury case for any evidence showing the materiality of the defendant’s testimony in this respect to the rape charge. Evidence of the defendant’s prior association with the prosecutrix or of prior intercourse with her would be material if there was a question of the identity of the alleged rapist or for the purpose of showing an inclination on the part of the prosecutrix to consent to the embraces of the defendant and thereby negate the question of the use of force or threats on his part to accomplish intercourse with her. State v. Northern, 472 S.W.2d 409, 410-411[1] (Mo.1971). However the defendant’s identity was never in issue, and in the absence of any evidence that the prosecutrix testified at the prior trial that the defendant forced her to have intercourse with him the materiality of the evidence upon which the charge of perjury rests is not apparent. But the State has failed to establish in the record of this trial any evidence that the prosecutrix in the rape trial testified that the intercourse was forced upon her and against her will. Evidence of the type offered here becomes material only after such a showing.

We have found no Missouri case directly in point and neither party to this appeal has cited us one. By our own research we have found, however, a case akin to this one. In State v. Chapman, supra, the defendant appealed a perjury conviction based upon his testimony in a trial for contributing to the delinquency of a minor that he 1) did not see the prosecutrix at a certain residence, 2) that he never went into the bedroom of that residence and, 3) that he did not ask the prosecutrix to go for a ride with him on the night of October 30, 1966. At the perjury trial the State introduced into evidence the indictment and that part of the transcript portraying the defendant’s testimony, but no other parts of the record in the controlling case. The prosecutrix testified in the perjury trial but her testimony in the original case was not introduced into evidence and she said nothing about whether she had testified in the same manner in the first trial nor did she testify concerning any resulting sexual play or activity. In holding that there was a failure to show the materiality of the testimony of the defendant at the first trial the court, 456 P.2d l.c. 90, 91, said:

“There is no way to tell what the evidence showed in the first case concerning when, how, or under what circumstances the crime of contributing was committed. Without knowing the context in which defendant’s untruthful statements were made it is impossible to tell whether they were offered to prove something which was sufficiently related to the issues in that case to have influenced the jury in its verdict. We are left to speculate as to the materiality of defendant’s testimony. We do not believe that it can be inferred that the prosecutrix’s testimony in the contributing case was the same as her testimony in the present one.
“The facts about which perjury was committed could have been such that they would have been material to a charge of contributing regardless of the context in which they occurred. The perjured testimony in this case was not about facts of that kind. There is nothing suggestive of sexual activity about being in a bedroom (not shown to have been with the prose-cutrix), seeing her on a certain day and asking her to go for a ride. The nature of this activity is sufficiently innocuous that it cannot be inferred that it was material to a crime of contributing without the context in which it happened being shown. Had it been shown that the prosecutrix had testified in the first case as she did in the present case, an argument could be made that the activity in question was in such context that an inference could be drawn that sexual activity probably resulted from the automobile ride, and that anything resulting in sexual activity between the two was material to a charge of contributing regardless of when it occurred. As we have observed, however, there is nothing that justifies a conclusion that her testimony was the same in the first case.”

See also, People v. Harris, supra, to like effect.

The fatal flaw in the State’s case is that the defendant’s testimony that he was with the prosecutrix at Alton Dam Park on Labor Day, 1971, can be neither material nor immaterial in itself, but its materiality must be determined in accordance with its relation to some extraneous matter. 70 C.J.S. Perjury § 11, p. 466. Materiality looks to the relationship between the propositions for which the evidence is offered and the issues in the ease. McCormick on Evidence, p. 315. Therefore it is necessary that the State prove the falsity of the statement in the prior proceeding and prove what the issue or point in question in the former proceeding was, so the trial court can ascertain the materiality of the alleged false statement to the issue or point in question. This the State has utterly failed to do.

For the reasons aforesaid it is clear that the conviction of the defendant cannot be sustained because it was not shown in the present case how or in what manner the alleged false testimony in the prior trial became then and there material to the issues on trial in that case.

Although we have concluded that the State’s evidence was insufficient to sustain the finding of the trial court that defendant’s testimony in the prior trial was material and the judgment and sentence must be reversed and set aside, we also conclude that the defendant is not entitled to a discharge as a matter of right for the reason that it does not appear that it would not be reasonably possible for the State to adduce sufficient evidence at another trial to sustain a perjury conviction. For that reason the cause is reversed and remanded for a new trial unless sufficient evidence cannot be adduced to prove the materiality of the alleged perjurious testimony, in which happenstance the cause should be dismissed and the defendant discharged. State v. Patton, 308 S.W.2d 641 (Mo. banc 1958), State v. Miller, 536 S.W.2d 524, 528[6] (Mo.App.1976).

We do not reach defendant’s third Point but would point out that although we have examined his Motion for New Trial we failed to find any specification therein which would have preserved this point for review. While specifications 5, 7 and 8 refer to errors with respect to the admission into evidence of the transcript of the defendant’s testimony in the prior trial, none incorporate any complaint of the nature raised here on appeal for the first time. By failing to raise Point Three in his Motion for New Trial the defendant preserved nothing therein for this Court to review. State v. Bowens, 476 S.W.2d 495, 498[5] (Mo.1972), State v. Henderson, 510 S.W.2d 813, 821[12] (Mo.App.1974).

Judgment of conviction reversed and cause remanded for a new trial, or if sufficient evidence cannot be adduced at a subsequent trial to prove the materiality of the alleged perjurious testimony, then for further proceedings not inconsistent with this opinion.

SIMEONE and GUNN, JJ., concur.

      . Near the conclusion of the State’s evidence a Substitute Information in Lieu of Indictment adding allegations that the defendant had been twice convicted of felonies to bring him under the Second Offender Act was filed without objection and the trial proceeded on that pleading.