author: PER CURIAM.

text:
    Donnie G. PULLIAM, Respondent, v. Janet K. PULLIAM, Appellant.
    No. 9902.
    Missouri Court of Appeals, Springfield District.
    Sept. 24, 1975.

      John C. Holstein, Moore & Brill, West Plains, for respondent.
    Dorman L. Steelman, Steelman & Wilkerson, Salem, for appellant.
   PER CURIAM.

The Circuit Court of Shannon County modified the custodial portion of a dissolution of marriage decree entered sixteen months earlier so as to enlarge the visitation privileges of plaintiff-father with his three-year-old son.

The original decree granted plaintiff-father visitation with his child two Saturday afternoons each month. The modification order extended the child’s visits with his father so that for nine months of the year the father could keep his son overnight one night each month and during the summer months the child could remain two nights.

We have reviewed the transcript and the briefs of the parties. The judgment of the trial court is based on findings of a change of conditions since the original decree which are not clearly erroneous. No error of law appears and an opinion would have no prec-edential value.

Affirmed pursuant to Rule 84.16.

All concur.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    Robert L. GLOVER, Appellant, v. STATE of Missouri, Respondent.
    No. 9811.
    Missouri Court of Appeals, Springfield District.
    Sept. 24, 1975.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 15, 1975.
    Application to Transfer Denied Dec. 8, 1975.

      Nolen W. Berry, Neosho, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Movant appeals from a denial of his motion for posteonviction relief filed pursuant to Rule 27.26 V.A.M.R. In the original action movant was convicted, by a jury, of burglary in the second degree and stealing and received concurrent sentences now being served. This court affirmed that conviction. State v. Glover, 500 S.W.2d 271 (Mo.App.1973).

The original motion, later thrice amended, was filed in the Circuit Court of Newton County on December 27, 1973, and attorney Nolen Berry was appointed as counsel for movant.

On February 27, 1974, movant filed a pro se “Motion for Setting of Bail.” The trial court denied this motion.

On July 10, 1974, the trial court held a hearing on the 27.26 motion. Attorney Berry attended that hearing and presented evidence on behalf of movant. The state also introduced evidence. Movant was not present at that hearing, nor was one Phillips.

On August 13, 1974, the trial court, after making certain findings of fact and conclusions of law, overruled the motion.

On this appeal movant makes two major complaints:

1. The trial court erred in overruling movant’s applications for writs of habeas corpus ad testificandum, the writs having been sought for the purpose of producing movant and Phillips, in order that they might testify at the July 10 hearing.

2. The trial court erred in overruling movant’s “Motion for Setting of Bail” pending final disposition of the Rule 27.26 motion.

Movant’s first major complaint has several aspects. The resolution of some of these aspects hinges upon whether Phillips, who did not testify at the jury trial, was the source of admissible testimony, the non-production of which was prejudicial to movant and tainted his conviction and sentences.

Rule 27.26(e) provides, in pertinent part: “. . . Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, a prompt hearing thereon shall be held. . This hearing shall be an evidentiary hearing if issues of fact are raised in the motion, and if the allegations thereof directly contradict the verity of records of the court, that issue shall be determined in the eviden-tiary hearing. . . . ” (Emphasis added.)

Rule 27.26(g) provides: “The prisoner shall be produced at any evidentiary hearing on a motion attacking a sentence where there are substantial issues of fact.” (Emphasis added.)

Movant asserts that the foregoing rules entitled him to attend the July 10 hearing, and to have Phillips present as a witness, because the testimony of Phillips, not presented at the original trial, was such that it raised “issues of fact” (Rule 27.26(e)) and “substantial issues of fact” (Rule 27.26(g)).

According to the motion, Phillips’ testimony would have been to the effect that he, Phillips, prior to the original trial, overheard defendant’s former wife make a statement, in the language of the motion, that “these people have been conspiring- to falsely implicate the movant in this case.” A charitable construction of the motion indicates that the words “these people” refer to Russell Buckmaster and Iva June Buck-master, both of whom testified as witnesses for the state at the original trial.

Movant’s ex-wife did not testify as a witness for the state at the original trial and thus Phillips’ testimony with respect to her alleged statement could not have been used to impeach her credibility.

But could the testimony of Phillips have been introduced, at least for the limited purpose of impeaching Russell Buckmaster and Iva June Buckmaster? The question must be answered in the negative.

There are situations when a statement of one conspirator may be introduced in evidence against his co-conspirator in spite of an objection grounded on hearsay, but there must be a showing, by evidence independent of the statement, of the existence of the conspiracy.

Although the motion sets forth the essence of Phillips’ testimony, it recites no independent facts, or purported facts, showing or tending to show the existence of a conspiracy among the two Buckmasters and the ex-wife. Thus the testimony of Phillips was inadmissible and its non-production at the original trial did not prejudice movant. It is unnecessary to determine whether Phillips’ testimony was otherwise objectionable.

It follows that sub-complaints, predicated on the invalid assumption that Phillips’ testimony was admissible, similarly fail.

Accordingly, the trial court did not err in refusing to require the attendance of Phillips at the July 10 hearing.

But movant asserts that his motion raised other issues of fact which entitled him, under Rule 27.26(g), to have attended the July 10 hearing. The pertinent prong of his motion recites that, at the original trial, “the state witnesses committed perjured testimony which was known by the prosecution to be false.”

The motion does not state what testimony was false or in what manner it was false. It does make reference to page 47 of the trial transcript. This court has examined page 47. It contains testimony of state’s witness Russell Buckmaster, but it was testimony elicited on cross-examination by movant’s trial counsel. It dealt with matters not mentioned in his direct testimony. The testimony on page 47 deals only with Buckmaster’s sentence and incarceration resulting from Buckmaster’s participation in the burglary. The testimony on that page does not mention movant nor any facts surrounding the offenses. The truthfulness or falsity of that testimony (and none of it has been singled out for specific attack) was not material to the issue of movant’s guilt or innocence. The conclu-sional allegation with respect to the alleged perjury did not warrant an evidentiary hearing. Smith v. State, 513 S.W.2d 407, 411[1] (Mo. banc 1974); Sherrill v. State, 515 S.W.2d 611, 613[6] (Mo.App.1974).

The final aspect of movant’s first major complaint is that his trial counsel rendered him incompetent and ineffective assistance by advising him not to testify on his own behalf at the original trial. At that trial movant did take the stand in his own behalf for the limited purpose of giving evidence relative to the plea of former jeopardy, but he gave no testimony with respect to the primary issue of his guilt or innocence of the offenses charged.

The motion fails to set forth facts which, if true, would save this aspect from the principle expressed in Hughes v. State, 507 S.W.2d 363 (Mo.1974). In Hughes the 27.26 movant claimed that he was denied effective assistance of counsel for the reason that trial counsel “deprived him of the right of testifying in his own behalf.” The Supreme Court, in affirming the judgment of the trial court denying relief, said: “Mov-ant has demonstrated nothing more than that his trial counsel gave him certain advice on a question of trial strategy. It is well settled that a hindsight disagreement as to the wisdom of such a strategic, professional decision may not be the basis for a successful charge of inadequate assistance of counsel.” Hughes, at p. 364.

It is true that in Hughes an evidentiary hearing was held. Nevertheless, such facts as are recited in the instant motion, even if proved, would not show more than the evidence adduced in Hughes.

Thus the motion failed to raise issues of fact so as to require an evidentiary hearing, under Rule 27.26(e). Moreover, the motion failed to raise “substantial issues of fact” so as to entitle movant to be present at an evidentiary hearing. Rule 27.26(g).

But an evidentiary hearing was held and movant was not present, though he was represented there by Attorney Berry and evidence was adduced on his behalf. If truth abides in the maxim “half of hog is better than none,” no just complaint can stem from being accorded half a hearing when movant was entitled to no hearing at all.

A similar situation arose in State v. Hurst, 347 S.W.2d 177 (Mo.1961). There the movant complained that he was deprived of his right to be present in person at the hearing on his motion to vacate. The court said at p. 178: “Appellant’s complaint that he was deprived of his right to be present in person at the hearing of his first motion to vacate (in 1954) must be rejected. He had no absolute right to be present. A proceeding under Rule 27.26 is not a step in appellant’s criminal proceedings, State v. Smith, Mo.Sup., 324 S.W.2d 707, 712, entitling him as an accused in a criminal prosecution to the ‘right to appear and defend, in person * * * ’ under Constitution of Missouri 1945, Art. 1, § 18(a), V.A.M.S. A proceeding under Rule 27.26 is civil in nature. Whether a court has abused its discretion in proceeding with a civil case in the absence of a party depends upon the circumstances. Brown v. Stroeter, Mo.App., 263 S.W.2d 458. No abuse of discretion in the 1954 proceeding has been shown. Appellant had an attorney. Evidence was presented. There is nothing to indicate that appellant had personal knowledge of any of the facts alleged therein or that his personal testimony was necessary to substantiate the motion. The circuit court properly ruled that petitioner-appellant is not entitled to relief.”

Nor is Hurst to be distinguished on the ground that movant here had knowledge of the facts, at least those pertaining to counsel’s advice not to testify. As stated, such facts as are contained in the motion, even if movant had personal knowledge of them, are insufficient to avoid the principle of Hughes, supra.

It is also true that Hurst was decided in 1961 and Rule 27.26(g) did not appear until 1967 when Rule 27.26 was extensively amended but, as has been shown, the instant motion failed to satisfy Rule 27.26(g).

This court concludes that movant’s first major complaint has no merit, and this conclusion is dispositive of movant’s second major complaint.

The trial court denied movant any relief on his 27.26 motion. That ruling, attacked only specially by movant’s first major complaint, is now secure. Movant received no relief on his motion and he was entitled to none. Any action on the part of this court in exploring movant’s right, if any, to bail “pending final disposition of the motion to vacate” would serve no purpose. The issue is moot. Jett v. Terminal RR Assoc. of St. L., 357 S.W.2d 135, 138[4] (Mo.1962); Mudgett v. Peterson, 482 S.W.2d 472, 473[2] (Mo.1972). In his argument here movant stated “Until the motion to vacate is ruled upon, lawful incarceration of mov-ant is still in doubt.” No such doubt now exists, if it ever did.

Accordingly, it is not necessary for this court to determine whether the trial court possessed the power to have granted bail during the pendency of the motion and, if so, whether the trial court properly declined to exercise it. Nor is it necessary to determine whether movant should have resorted to original rather than appellate jurisdiction in seeking relief from this court on the bail issue.

The judgment is affirmed.

All concur.

      . Both movant and Phillips were in prison at the time the applications were filed and remained there while the 27.26 proceedings pended in the trial court.

      . At the original trial Russell Buckmaster and Iva June Buckmaster testified that Russell Buckmaster, Joe Baker and movant committed the offenses with which movant was charged.

        .State v. Flanders, 118 Mo. 227, 23 S.W. 1086, 1087 (1893); State v. Ross, 29 Mo. 32, 50[5] (1859); State v. Daubert, 42 Mo. 239, 241[1] (1868); McCutchan v. Kansas City Life Ins. Co., 122 S.W.2d 59, 68[5] (Mo.App.1938); Byers Bros. Real Estate & Ins. Agency, Inc. v. Campbell, 329 S.W.2d 393, 398[10] (Mo.App.1959). See also 31(A) C.J.S. Evidence § 362, p. 875; 46 A.L.R.3d 1148.

      . The sub-complaints are that movant’s trial attorney was negligent in failing to interview Phillips and in failing to have him subpoenaed for the original trial, and that a sheriff gave false information to the trial attorney with regard to Phillips’ whereabouts.

      . The invalidity of that plea was discussed fully in State v. Glover, 500 S.W.2d 271 (Mo.App.1973), the appeal from the original trial.

      . The language of movant’s appellate brief.

      . Movant’s brief recognizes, at least inferentially, that his failure to prevail on his first major complaint undermines, if undermining is needed, his second. His argument states: “Should the appellate court reverse and remand this case for rehearing, appellant prays that the trial court be directed to set bail for appellant.”

      . Rule 28.13, dealing with appeals taken by the state, reads in part: “The provisions of this Rule shall not apply in the case of an appeal taken by the state from an order entered in a proceeding brought under the provisions of Rule 27.26, but, in such case, the defendant shall remain in custody during the pendency of the appeal.” Thus, aside from the dodged question of whether movant might have been entitled to bail during the pendency of his motion, he would not have been entitled to bail pending an appeal by the state had he prevailed in the trial court.


author: TITUS, Judge.

text:
    William H. LONG and Bessie Long, Plaintiffs-Appellants, v. Kenneth LINCOLN, Defendant-Respondent.
    No. 9846.
    Missouri Court of Appeals, Springfield District.
    Sept. 26, 1975.
    James A. Dunn, Carthage, for plaintiffs-appellants.
    Edison Kaderly, Lamar, for defendant-respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Plaintiffs orally listed their farm for sale with defendant, a real estate agent. Defendant obtained buyers therefor and the land was sold for $90,000. A dispute arose as to the amount of the sales commission due defendant. Plaintiffs instituted this declaratory judgment action (Rule 87) contending the listing was conditioned upon their receiving not less than $88,800, which would give defendant a commission of $1,200 for his services, but that defendant was claiming a 5% commission or $4,500. Defendant agreed with plaintiffs’ explanation of the dispute and counterclaimed for a $4,500 commission. The trial judge to whom the cause was tried entered judgment declaring defendant was entitled to a commission of $4,500. Plaintiffs appealed.

The lone point relied on by plaintiffs in their appeal is: “When a special contract exists and a realtor agrees to sell real estate for a net price to his principal, the realtor is bound by his contract and cannot in the absence of bad faith on the part of the seller or a waiver of the right to insist upon the strict terms of the agreement receive any commission based upon the total sales price.” Defendant says this point violates Rule 84.04(d) and saves nothing for appellate review. We agree.

Requirements of Rule 84.04(d) must be strictly applied [Associates Discount Corp. of Iowa v. Fitzwater, 518 S.W.2d 474, 477[2] (Mo.App.1974)], are mandatory [M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470[1] (Mo.App.1974)], and applicable to appellate review of court-tried cases. Freshour v. Schuerenberg, 495 S.W.2d 116, 118[8] (Mo.App.1973). A point, such as that penned in plaintiffs’ brief, which is nothing more than a mere abstract statement of law, is a clear violation of the rule and preserves nothing for review because it does not undertake to relate wherein and why the court allegedly erred in any respect. Hines v. Sweet, 518 S.W.2d 710, 711[1] (Mo.App.1975); Kerr v. Ehinger, Inc., 515 S.W.2d 763, 765[2] (Mo.App.1974); Safe-Buy Real Estate Agency, Inc. v. Hemphill, 498 S.W.2d 599, 601[4] (Mo.App.1973).

We would be well within our rights to dispatch the appeal for violation of Rule 84.04(d). Nevertheless, since the transcript on appeal and the briefs are lean, we have, ex gratia, conned them all. Suffice it to say that proper determination of the cause rests wholly upon whether the oral testimony adduced by plaintiffs or that produced by defendant is to be believed. Upon presentment of such a situation, we “heed the well fixed principle that in court tried cases where the evidence conflicts sharply, appellate courts resolve the conflict by according due deference to the trial court because of its superior opportunity ‘to observe the conduct and demeanor of the parties and their witnesses and to weigh, evaluate and assess their testimony’ ” [Pittman v. Great American Life Insurance Co., 512 S.W.2d 857, 861-862[7] (Mo.App.1974)], and because the trial judge has leave to disbelieve all the testimony of any witness [Southwestern Bell Tel. Co. v. Crown Insurance Co., 416 S.W.2d 705, 711[6] (Mo.App.1967)] or to believe part of a witness’ testimony and reject the rest. North Side Finance Co. v. Sparr, 78 S.W.2d 892, 894[4] (Mo.App.1935). With due honor to that tenet, we order the judgment nisi affirmed.

All concur.


author: RENDLEN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eddie FLEMING, Defendant-Appellant.
    No. 36448.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 30, 1975.

      Charles D. Kitchin, Public Defender, James C. Jones, Frank R. Fabbri, III, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Chief Counsel, Robert M. Lindholm, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   RENDLEN, Judge.

Defendant was convicted of Burglary Second Degree, § 560.070, RSMo.1969, V.A. M.S., and sentenced by the court under the Second Offender Act, § 556.280, RSMo.1969, V.A.M.S., to six years imprisonment. He appeals, contending first: the court erred in refusing proffered instructions on a lesser included offense; and second, the court improperly commented on defendant’s failure to testify. We affirm.

From the evidence the jury could find, that police were summoned to the Faith Temple Church of God at 2800 St. Vincent Street in the City of St. Louis in the early morning of September 23, 1973. Searching the church with the assistance of the canine corps, they found defendant hiding in an upstairs closet. Having been advised of his rights, defendant admitted he, with two companions, broke into the church and removed two stained glass windows. He also told where the windows were hidden, which later were found at the place described.

A police officer testified that a palm print found on one of the windows was identical to that of defendant. In addition, a paint chip found in defendant’s pant cuff was microscopically matched by color and layer to that from the frame of the stolen windows. The defendant offered no evidence.

Defendant first contends the court erred in refusing to submit defendant’s instructions “A” and “B” relating to the offense of breaking into a sehoolhouse or church. Section 560.090, RSMo.1969, V.A. M.S., makes such offense a misdemeanor. Defendant failed to set forth the questioned instructions “in full in the argument portion of the brief” as required by Rule 84.-04(e), V.A.M.R. Having failed to meet the mandate of the rule, the propriety of the proffered instruction is not preserved for review. See State v. Mesmer, 501 S.W.2d 192 (Mo.App.1973). Nevertheless, implicit in this point is the question of the court’s responsibility to give its own instruction on the issue. Dealing with that issue, we recognize it is the duty of the trial court to properly instruct on any lesser offense which might be included within the offense charged. MAI-CR Comments, Lesser Graded or Included Offenses, p. 13. Verdict directing instructions “shall be given where applicable even though no request therefor has been made,” (emphasis ours) Rule 20.-02(a), V.A.M.R. See also Rule 26.02(6), V.A.M.R. However, there is no duty to instruct on a lesser offense not necessarily included in the offense charged. State v. Amsden, 299 S.W.2d 498, 504[12] (Mo.1957); State v. Walker, 505 S.W.2d 119, 122[9] (Mo.App.1973), MAI-CR Comments, Lesser Graded or Included Offenses, p. 14.

An instruction on a lesser offense is not proper unless it is impossible to commit the greater without first committing the lesser, for otherwise the lesser is not properly a lesser offense to the greater. U. S. v. Eisenberg, 469 F.2d 156, 162[13] (8th Cir. 1972).

The test to determine if one offense is “necessarily” included in another has been described by our Supreme Court as follows: “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 generally included in the greater.” State v. Amsden, 299 S.W.2d 498, 504[11, 12] (Mo.1957); see also State v. Friedman, 398 S.W.2d 37, 40[4] (Mo.App.1965).

Defendant was charged and tried for Burglary Second Degree under § 560.-070. The “lesser” offense which defendant contends should have been instructed upon, is the wrongful breaking into or entering of a church in the manner prescribed by § 560.090, RSMo.1969. This statute is designed to protect school or church property against trespassers who, “without permission, make use of these buildings for camping or some other purpose not in itself criminal.” State v. Stewart, 329 Mo. 265, 44 S.W.2d 100, 102 (1931). This statute is not exclusive and does not take school and church buildings beyond the purview of the section on Second Degree Burglary, § 560.-070 which provides:

“[EJvery person who shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree [Footnote ] . with the intent to steal or commit any crime therein, shall, on conviction, be adjudged guilty of burglary in the second degree.” (emphasis added)

The offense denounced by § 560.090 must involve either a school or church or a building used for religious or educational purposes. Thus necessary elements of the lesser offense under § 560.090 are not included in the greater offense, of burglary second degree under § 560.070. One such element is that the building wrongfully entered must be a church, (a school or building used for religious or educational purposes) whereas in second degree burglary the building broken and entered may be “any building” other than a building involved in burglary first degree.

It is readily apparent that buildings other than churches or schools may be subject to acts constituting burglary second; however, any charge of the misdemeanor (the lesser offense) requires the inclusion of necessary elements (i. e., church or school) not necessarily included in the felony (the greater offense). The court did not err in failing to instruct on the lesser, as it was not an “included offense.”

Finally, defendant contends it was error for the court to begin to read the instructions before the parties had orally rested and such action constituted an impermissible comment on defendant’s failure to testify. The record reveals that out of the hearing of the jury, both sides had in fact rested. Thereafter the jury was recalled and it was then the court began reading the instructions. Defendant interrupted, noting that the parties had not formally rested in the jury’s presence. The court ordered the record show that “everybody rested,” both sides again rested, this time before the jury. Defendant made no objection to the court’s action nor was any further relief requested. The point is not preserved for review. State v. Green, 515 S.W.2d 197, 199[4] (Mo.App.1974); State v. Thomas, 452 S.W.2d 160, 164[10] (Mo.1970). Appellant urges the point as plain error under Rule 27.20(c), V.A.M.R. We find no prejudice to the defendant in the court’s actions.

The judgment is affirmed.

WEIER, P. J., and DOWD, J., concur.

      . All statutory references are to RSMo.1969. § 560.090 is in pertinent part as follows: “Every person who shall wrongfully break into or enter any schoolhouse or building used as a schoolhouse, or any church building, or other building used for church purposes or for other religious or educational purpose . . . shall be adjudged guilty of a misdemeanor, and shall be punished by imprisonment in the county jail not exceeding six months nor less than thirty days or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

      . § 560.040 prescribes as first degree burglary, a “breaking into and entering the dwelling house of another, in which there shall be at the time some human being . . . .”


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry MULLEN, Defendant-Appellant.
    No. 35665.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 30, 1975.

      Henry J. Rieke, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

This is an appeal by defendant Larry Mullen from a conviction of Robbery First Degree by means of a Dangerous and Deadly Weapon, a felony, §§ 560.120 and 560.135, RSMo 1969, and Murder First Degree, § 559.010, RSMo 1969. We affirm.

On June 30, 1972, Artie Hall, Benjamin Hall and Leonard Hall were conducting a dice game in the basement of the building located at 2105 Salisbury Street in the City of St. Louis, Missouri. Participants in the game were Gregory Smith (the deceased), Mattie Suttle, Silas Wilson, Daniel Jerrod, William Parker, Carl Hill and others. Play had begun at approximately 3:30 P.M., and continued into the night.

From time to time persons would come and go; one such incident occurred at approximately 11:00 P.M. At that time Roy Watkins arrived with two unknown persons. The lookout would not have allowed these persons to enter except that they were with Roy Watkins, who was known to the Halls. Roy Watkins was obviously intoxicated. The strangers, who were later identified as defendant and Carl Mullen, defendant’s brother, walked over to the game. One of them placed a bet which he lost. Then Roy Watkins and the two men left within fifteen (15) minutes of their arrival. After they left, Artie Hall went into the alley to see where the strangers had gone.

At approximately midnight, Artie saw a 1964 Pontiac pull into the alley. Four men emerged from the automobile. Artie recognized defendant and Carl Mullen as the strangers who had been there shortly before. The men questioned Artie as to whether a game was still in progress and he responded in the negative. Indicating that he did not believe Artie’s answer, Carl Mullen pulled a pistol and struck him. Artie was then forced at gun point to go into the basement with three of these men. As they reached the inner door of the room where the dice game was being conducted, Artie was struck again and someone took $90 from his person. The lookout, seeing Artie with a pistol to his head, opened the door.

Upon entering the basement, Carl Mullen proceeded to the dice game, announced “This is a stick-up, . . . ” and had everyone put their money on the dice table. The defendant remained at the doorway with a gun. A third man entered, put the money in a pillowcase and ran out the door. Meanwhile, Carl Mullen struck several of the men with his pistol, knocking many of them to the floor. Finally, without provocation of any kind, Carl Mullen approached Gregory Smith, shoved him to the wall, and shot him in the face. Following the shooting, Carl Mullen and the defendant ran out.

The dice players began to get up and leave the basement and Artie Hall and Leonard Hall carried Gregory Smith out to the sidewalk. The police, having been called in the interim, arrived quickly and took Gregory Smith to the City Hospital where he was pronounced dead on arrival.

Other police officers arrived at the scene of the crime. One of these officers was Richard Bequette who observed a 1964 Pontiac car, with the motor running, stopped in the alleyway against the fence. In the glove compartment he found the defendant’s wallet which contained his driver’s license, social security card and other identification. He also found the body of Michael Cooper, one of the four men who had arrived in the ear. Michael Cooper was apparently killed during the getaway, but there is no connection between his death and the instant case. Officer Emil Fiala, a member of the Evidence Technician Unit, photographed the car, “lifted” fingerprints from the rear view mirror, and removed the rear view mirror and turned it over to the Bureau of Identification. Officer John Sa-lamone of the Bureau of Identification established that the fingerprints taken from the mirror were those of Carl Mullen.

On July 1, 1972, Artie Hall went to Benjamin Hall’s home and picked out defendant from some photographs as being a participant in the robbery. On August 2, 1972, Daniel Jerrod viewed the photographs and picked out defendant. On August 4, 1972, Artie Hall and Daniel Jerrod viewed a lineup and identified appellant as a participant and Carl Mullen as the other one of the two and the one who had done the actual killing. Both Artie Hall and Daniel Jerrod also made in-court identifications of defendant. William Parker, Leonard Hall and Benjamin Hall were unable to positively identify defendant.

By way of defense, defendant testified that in late May of 1972 Joyce Payne, Oscar Mullen’s girlfriend, drove him to the St. Louis Workhouse to visit his brother Oscar. They went in the 1964 Pontiac car which was owned by his brother Oscar. He claimed that he left his wallet in the glove compartment on that occasion and had not been in the car since. Defendant also testified that on June 30, 1972, he and Charles Reed were at Rip’s Lounge from 9:30 P.M. until 1:14 A.M., and then spent the remainder of the night at Charles Reed’s house. Defendant produced no witnesses to bolster his testimony. The State called James Cooper as a rebuttal witness, and he testified that on June 29,1972, he saw the defendant drive up to Cooper’s house in a 1964 Pontiac car, which he identified as being the same one found at the scene of the crime.

The case was submitted to the jury on two counts. The jury returned a verdict of guilty on Count One, first degree murder and assessed punishment at imprisonment in the penitentiary for the remainder of defendant’s natural life. The jury returned a guilty verdict on Count Two, armed robbery, but was unable to assess the punishment, so the trial court set punishment at twenty-five (25) years. Said sentences were to run concurrently. Defendant was permitted to appeal as a poor person and the-St. Louis Public Defender was appointed to represent him on appeal.

At trial, during the presentation of the State’s case, there were four incidents that now serve as the basis for defendant’s appeal. First, after the jury had been impaneled, one of the jurors informed the sheriff that she recognized the mother of the deceased in the courtroom but that it would not influence her. The trial court on learning this held a meeting during the noon recess at which time the prosecution and counsel for the defense were informed of this. Following an in-depth questioning of the sheriff as to what had occurred, defendant’s counsel moved for a mistrial which the court denied. Second, defendant objected to the introduction of certain evidence at trial. He objected to the introduction of his brother’s fingerprints taken from the 1964 Pontiac car. The trial court overruled this objection. Third, defendant also objected to the introduction of the bullet which was removed by the Coroner from the brain of the deceased. This objection was overruled. And, finally, defendant objected to a reference by Police Officer De Vere to a certain paper silhouette which showed where the deceased had been found on the sidewalk after having been removed from the basement by Artie and Leonard Hall. He said, “It depicted one of the victims of a shooting.” The trial court sustained defendant’s objection to this reference by Officer De Vere but did not grant a mistrial. Defendant’s allegations of error concerning these incidents are discussed in detail below.

Defendant’s first contention is that, upon discovering that one of the jurors recognized the deceased’s mother in the courtroom the trial court erred in not declaring a mistrial. The alleged grounds for a mistrial are bias and prejudice of the juror. The rule is that, where unpermitted communication or juror misconduct are established in a felony trial, the verdict is set aside unless the State sustains the burden of showing lack of improper influence. Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892); State v. Raspberry, 452 S.W.2d 169 (Mo.1970); State v. Jones, 363 Mo. 998, 255 S.W.2d 801 (1953). Extrapolating from this rule, defendant asserts that the State’s burden can be met only by direct communication between the disputed juror and the trial court and, therefore, that the questioning of the sheriff was inadequate.

While defendant is correct in his statement of the law, his conclusion is unwarranted. First, most of defendant’s cases deal with the receipt of improper communications by the juror during the course of the trial. State v. Raspberry, supra; State v. Murray, 445 S.W.2d 296 (Mo.1969); State v. Jones, 363 Mo. 998, 255 S.W.2d 801 (1953) and State v. Schlie, 350 Mo. 924, 169 S.W.2d 348 (1943). Here we are dealing with a juror’s inaccurate answer during voir dire to the question of whether the juror recognized the victim by name, followed by his or her recognition of a relative of the victim in the courtroom. The receipt of potentially prejudicial communications is different in kind from a juror’s own realization that he or she made a mistake, especially where the juror voluntarily discloses that mistake to the court. Once a juror has actually heard prejudicial statements, it is reasonable to presume their effect until proven otherwise, whereas mere recognition of a person tangentially involved in the trial does not by itself indicate that the juror is biased either for or against the defendant. Second, none of the cases, whether concerning improper communication or inaccurate answers during voir dire, establishes or even implies that the State’s burden can be met only by direct communication between the juror and the trial court. In fact, the cases on inaccurate statements during voir dire establish that the determination of prejudice is within the sound discretion of the trial court. State v. Hudson, 508 S.W.2d 707 (Mo.App.1974). In State v. Coones, 357 Mo. 1124, 212 S.W.2d 429 (1948), acquaintance with the victim’s family was held on appeal not to indicate bias even though the juror was not questioned at all. These cases considered basically three factors in determining prejudice: how well the juror knew the person recognized; whether the inaccurate answer was intentional or concealed, which might suggest prejudice; and the juror’s own statement that he or she would not be influenced in deciding the facts of the case. State v. Armstrong, 445 S.W.2d 367 (Mo.1967); State v. Hudson, supra. In the case at hand, these factors indicate absence of prejudice. The juror recognized the victim’s mother in a way that indicated no more than a passing acquaintance; she didn’t know the mother by name and thought she might have worked with her but was not sure. The inaccurate answer was neither intentional nor concealed; the mother was not in the courtroom when the jury was impaneled, and the juror told the sheriff as soon as she recognized her. And the juror had stressed to the sheriff that it would not influence her one way or the other. The trial court could ascertain all of these factors by its in-depth questioning of the sheriff. In such a situation, the trial court sustained its burden without direct communication with the jur- or. Third, although it may have been prudent for the trial court to have held a hearing on potential bias and prejudice, we note that defendant’s counsel did not, at any time, request one. Surely, the court would have complied with such a request. Therefore, defendant’s claim of bias and prejudice remains a bare allegation which he did nothing to substantiate.

Defendant’s brief also advances a theory of juror misconduct in the juror’s communication with the sheriff. However, defendant’s counsel did not question the propriety of the contact between the juror and the sheriff at any time during the course of the trial, nor was any question dealing with this contact raised in the motion for a new trial. This point was not properly preserved for appeal.

Defendant’s second contention is that the trial court erred in admitting into evidence the fingerprints of Carl Mullen, defendant’s brother and co-indictee, which were taken from the 1964 Pontiac car. Defendant and Carl Mullen were tried separately for this crime, according to Missouri Criminal Procedure Rule 25.07, V.A.M.R. Thus, the State cannot show the disposition of charges against a co-indictee. State v. Aubuchon, 381 S.W.2d 807 (Mo.1964) and State v. Castino, 264 S.W.2d 372, 375 (Mo.1954). Similarly, damaging evidence which implicates only one of them should not be introduced against the other. See State v. Castino, supra. Defendant asserts that the fingerprints are irrelevant to his guilt and, further, that their admission would permit the jury to infer that Carl Mullen had already been found guilty. This latter inference, defendant says, would be prejudicial to him.

At the outset, we must determine whether, under the circumstances, Carl Mullen’s fingerprints were in fact relevant to Larry Mullen’s guilt. Defendant is charged with what is commonly called “felony murder.” Felony murder is a statutory classification which provides that any death caused in the perpetration of a felony is first degree murder. All participants in the felony are held liable for a murder committed by one participant. Therefore, defendant is not charged with having done the actual killing himself but rather is charged with having acted in concert with Carl Mullen. The State, in discharging its burden of proof, is entitled to show all of the circumstances immediately attending a homicide as a part of the res gestae. State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, 83 (1933) and State v. Brandt, 467 S.W.2d 948, 952 (Mo.1971). The circumstances immediately attending include “statements and exclamations or acts and conduct of third persons” that are closely connected to the crime. State v. Talbert, 454 S.W.2d 1, 3 (Mo.1970). Here, by the very nature of the case, the robbery is part of the res gestae, and the presence of Carl Mullen is crucial to the State’s case against the defendant. The fingerprints in the getaway car are relevant, as they tend to place Carl Mullen at the scene of the crime and in the company of defendant.

Granted that it is prejudicial error to bring in evidence of the disposition of charges against a co-indictee, defendant is asking for a substantial extension of that rule when he asserts that it is reversible error to admit any evidence which might conceivably allow the jury to draw an inference as to the disposition of a co-indictee’s case. In Aubuchon, upon which defendant relies, the prosecution intentionally brought out on redirect examination the fact that the witness’ brother, who was jointly indicted with the defendant, was “in the penitentiary.” The resulting implication was that the witness’ brother had already been sentenced for his part in the robbery with which the defendant and the brother were both charged. Then, the prosecutor magnified that effect by stating in his final argument that the brother was “in the penitentiary” and that the defendant was the only one “of the whole bunch still on the street.” Aubuchon is not controlling on the facts of this case. In those cases, including Aubu-chon, which have found references to separate offenses to be prejudicial error, the challenged references have had two factors in common: they either stated or raised a clear inference as to the disposition of the other charge — and they had no probative value on the charge at issue. State v. Johnson, 456 S.W.2d 1 (Mo.1970); State v. Aubuchon, supra; State v. Fenton, 499 S.W.2d 813 (Mo.App.1973). Cf. State v. Lee, 486 S.W.2d 412 (Mo.1972); State v. Robb, 439 S.W.2d 510 (Mo.1970) and State v. Holbert, 416 S.W.2d 129 (Mo.1967).

Those two factors are not present in this case. We note initially that the objections in the above cases were typically to statements rather than to physical exhibits. Even Holbert, which involved the admissibility of exhibits, primarily stressed the prejudicial effect of testimony and repeated prosecutorial references to those exhibits. Here, the objection is to the fingerprints per se rather than to verbal insinuations. While the admission of a physical exhibit might, under some circumstances raise a clear inference as to the disposition of unrelated charges, we are unable to say that this one does so. To conclude that the only inference the jury could have drawn from the use of the fingerprint evidence was that Carl Mullen had already been found guilty would require either clairvoyance or fearless speculation on our part. Furthermore, even if the use of the fingerprints might have raised that inference, they would have been admissible simply because, as discussed above, they are relevant. State v. Lee, supra, at p. 414. In an analogous situation, the Missouri Supreme Court said:

“ . . . When a defendant in the course of the perpetration of one crime commits another, the state is not required to nicely sift and separate the evidence and exclude the testimony, tending to prove the crime for which he is not on trial, when it forms a part of the res gestae of the crime charged.” (State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 880 (1931))

In short, there is no indication in the present case, that the admission of the fingerprints drew the jury’s attention away from the issues it was called upon to resolve.

Defendant’s third contention is that the trial court erred in admitting into evidence the bullet that killed the deceased. Defendant had offered to stipulate to the Gregory Smith death and the means of death. This, he says, removed those issues from the case, so that the sole reason for the State’s introduction of the bullet was its inflammatory and prejudicial effect on the jury. Defendant quotes State v. Mucie, 448 S.W.2d 879 (Mo.) cert. den. 398 U.S. 938, 90 S.Ct. 1842, 26 L.Ed.2d 271 (1970), for the proposition that “It is error to admit evidence of an inflammatory nature if it does not reasonably tend to prove or disprove a disputed fact issue . . ..” However, this proposition has its application where the fact proved is not in issue at all, not where the evidence tends to corroborate a fact in issue. See State v. Pearson, 270 S.W. 347, 351 (Mo.1925). In Mude itself, a manslaughter trial, the challenged evidence was admitted to corroborate the cause of death, although this was not disputed or denied. See also State v. Henderson, 510 S.W.2d 813 (Mo.App.1974). The applicable principle in the case at bar is that the accused cannot use stipulation or admission to “cut-off” the State’s right to offer evidence. State v. Brandt, 467 S.W.2d 948 (Mo.1971); State v. Spica, 389 S.W.2d 35 (Mo.1955); State v. Boyer, 342 Mo. 64, 112 S.W.2d 575 (1937); State v. Shawley, 334 Mo. 352, 67 S.W.2d 74 (1933) and State v. Townes, 522 S.W.2d 22 (Mo.App.1974). This is especially apposite where, as here, the defendant has pleaded innocent, which put all facts in issue. State v. Moore, 435 S.W.2d 8, 11 (Mo. Banc 1968). Evidence which is otherwise admissible will not be excluded merely because it is prejudicial. State v. Tillett, 233 S.W.2d 690 (Mo.1950). And, in any event, a bullet is hardly the type of exhibit which would be characterized as so highly prejudicial as to be excluded on that ground. This exhibit is not comparable to blood-spattered clothing or gruesome photographs of the deceased or menacing weapons. Therefore, even if the bullet had been lacking in probative value, it would not have been reversible error to admit it. Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646 (1946); State v. Walden, 490 S.W.2d 391 (Mo.App.1973). The bullet was neither irrelevant nor inflammatory and prejudicial; its admission did not constitute reversible error.

Defendant’s fourth contention is that the trial court erred in overruling defendant’s motion for a mistrial after the State’s witness had made reference to the paper silhouette of Gregory Smith as depicting “one of the victims.” The alleged grounds for a mistrial is that this statement constituted evidence of another crime and was highly prejudicial to the defendant. Granted, it is a general rule that evidence of other crimes is not admissible when not related to the cause, because it has a tendency to inflame and prejudice the jury. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (1954) and State v. Hudson, 521 S.W.2d 43 (Mo.App.1975). Therefore, Officer De Vere’s response was not admissible. But that is not the issue. The issue is whether his unelicited reference necessitated a mistrial.

The declaration of a mistrial is a drastic remedy that “should be granted only when the incident is so grievous that the prejudicial effect can be removed no other way. . . . ” State v. Camper, 391 S.W.2d 926, 928 (Mo.1965); State v. Raspberry, 452 S.W.2d 169 (Mo.1970); State v. Dennison, 428 S.W.2d 573 (Mo.1968). The prejudicial effect of an incident and the possibility of its removal by means other than declaring a mistrial are within the discretion of the trial court and the appellate court is limited to determining whether the trial court abused its discretion. State v. Camper, supra. In the instant case, counsel for the defendant objected immediately. The trial court sustained the objection and called a short recess to permit the prosecuting attorney to caution the witness about reference to the body found in the Pontiac automobile but refused to declare a mistrial. The trial proceeded to completion without any further mention of the other “victim.” In view of the indirect nature of the reference and the quick, effective action taken by the court, the trial court did not abuse its discretion when it determined that merely sustaining the objection to this language would be sufficient to remove the prejudice from this case.

For the foregoing reasons, the judgment of the trial court is hereby affirmed.

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


author: GUNN, Judge.

text:
    PRESTON PLUMBING INC., Plaintiff-Respondent, v. Sam MELMAN, d/b/a Aalco Supply Company, a Corporation, Defendant-Appellant.
    No. 36453.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 30, 1975.

      Charles J. Kolker, East St. Louis, for defendant-appellant.
    Friedman & Fredericks, Clayton, for plaintiff-respondent.
   GUNN, Judge.

This action had its inception in magistrate court with plaintiff-respondent Preston Plumbing, Inc. (Preston Plumbing) filing suit against defendant-appellant Sam Melman d/b/a Aalco Supply Company (Mel-man) for damages allegedly resulting from the sale by Melman to Preston Plumbing of defective plumbing supplies. Melman counterclaimed for the value of the supplies sold. On February 27,1974, the magistrate court rendered judgment for $800 in favor of Preston Plumbing on its petition and also found in favor of Preston Plumbing on Mel-man’s counterclaim. Melman thereupon filed timely notice of appeal to the circuit court. Preston Plumbing maintained that the notice of appeal was defective, and the circuit court sustained Preston Plumbing’s motion to dismiss the appeal. Melman has appealed the circuit court’s order dismissing its appeal. While the record on appeal supplied to us is rather skimpy — for instance, the record does not contain the magistrate court judgment — we find that there is enough for us to determine that the circuit court action should be affirmed.

Melman’s notice of appeal, which is the cynosure of this appeal, provides in pertinent part as follows:

“TAKE NOTICE, that an appeal has been taken from the judgment of Richard T. Enright, Judge of the Magistrate Court of St. Louis County Missouri, _District, rendered on the 27th day of February, 1974, for $800 and costs, in favor of said plaintiff [Preston Plumbing] against the said deft [Melman]
Said appeal was taken to the Circuit Court of St. Louis County, Missouri.”

On May 29, 1974, Preston Plumbing filed a motion to dismiss Melman’s appeal on the ground that Melman had appealed only a portion of the magistrate court judgment; that Melman had appealed only from the judgment for $800 in favor of Preston Plumbing and against Melman while no appeal was taken from the judgment adverse to Melman on its counterclaim. On July 26, 1974, Melman sought leave to amend its notice of appeal “so that the appeal will be from the entire judgment of the magistrate court.” The circuit court overruled Mel-man’s motion to amend the notice of appeal and sustained Preston Plumbing’s motion to dismiss the appeal. This appeal followed.

Section 512.270 provides that magistrate court appeals are to be tried de novo in the circuit court, and § 512.280 requires that the same cause of action heard in the magistrate court be tried on appeal. The law in Missouri is clear that under § 517.270 a magistrate is to render a single judgment when a setoff or counterclaim is involved and that an appeal from a magistrate decision to the circuit court must be based on the entire magistrate judgment. The appeal must be from the complete judgment based on the petition and counterclaim in order to confer jurisdiction on the circuit court. Rudy-Fick, Inc. v. Snider, 363 S.W.2d 16, 19 (Mo.App.1962); Gloria Lee Realty Co. v. Madigan, 243 S.W.2d 118, 122 (Mo.App.1951). It is manifest from Melman’s motion to amend its notice of appeal and from the various mem-oranda of law filed with the circuit court on behalf of Melman that initially Melman fully intended to appeal only a portion of the judgment. Thus, Rudy-Fick, Inc. v. Snider, supra, and Gloria Lee Realty Co. v. Madigan, supra, are particularly appropriate to this case. Both cases involved appeals from magistrate judgments in which the appealing parties attempted to exclude either counter or cross claims from the appeals. In each case the appeal was held to be defective as not having been taken from the entire magistrate court judgment. In each case it was held that § 517.270 was controlling in that the magistrate was required to render a single judgment when a setoff or counterclaim was considered; that failure to include a counterclaim in an appeal was tantamount to appealing only a portion of the magistrate judgment. As was said in Rudy-Fick, Inc. v. Snider, supra, 363 S.W.2d at 19:

“[A]n appeal from a magistrate court involving counterclaims where only one judgment is authorized must on appeal be tried de novo, must be the same lawsuit and no other, that was tried below and the appeal must be from this one final and complete judgment and not from only a part of it; otherwise, the appeal is unauthorized and does not confer jurisdiction upon the circuit court.”

Melman attempted to appeal only a portion of the total judgment. The appeal was thereby defective and conferred no jurisdiction on the circuit court. The circuit court’s order dismissing the appeal was therefore proper.

This case is distinguishable from the recent decision of Rickermann Auto Body, Inc. v. Laughlin, Mo.App., 526 S.W.2d 934 (St.L.D., 1975), where it was held that the unintentional omission of the name of one of the parties in a notice of appeal from a magistrate judgment did not adversely affect the appeal, inasmuch as there was an apparent notice to all parties of intent to appeal the entire judgment. There was no counterclaim or setoff involved in Ricker-mann. The fundamental difference between Rickermann and this case is that a counterclaim is here involved together with the intent to exclude the counterclaim from the notice of appeal.

Melman refers to § 512.300 and argues that by reason of the provisions of that statute, substantial justice permits, nay, requires, the acceptance of his amendment to include the counterclaim in the notice of appeal of the judgment. § 512.300 relates to amendments of statements of causes of action and bills of items of accounts sued on, counterclaims, setoffs or other grounds of defense originally filed in magistrate courts — not notices of appeal. § 512.300 is therefore inapposite to this case.

In his asservation that substantial justice requires amendment to his admittedly defective notice of appeal, Melman also relies on cases which permit amendment to cure defects or irregularities in magistrate appeal affidavits and appeal bonds based on statutes now repealed. Such cases are not appropriate here.

Finally, Melman suggests to us that Preston Plumbing’s cause of action and Melman’s counterclaim are separate, distinct and severable from each other and that under Anthony v. Morrow, 306 S.W.2d 581 (Mo.App.1957), Melman should be allowed to appeal — as he did — from only a portion of the judgment rather than the entire judgment. Anthony v. Morrow, supra, is not controlling, for that case involved an appeal which had its seeds initially planted in the circuit court, not the magistrate court. Anthony v. Morrow, is therefore distinguishable. And we have no evidence before us that Melman’s counterclaim could be considered severable from Preston Plumbing’s action even if that were properly a matter to be considered on a magistrate appeal.

The judgment of the circuit court granting Preston Plumbing’s motion to dismiss Melman’s appeal is affirmed.

SIMEONE, P. J., and MeMILLIAN, J., concur.

      . Statutory references are to RSMo. 1969 unless otherwise indicated.

      . See also Davenport Vinegar & Pickling Works v. Shelley, 280 Mo. 393, 217 S.W. 267 (1920), which held that failure to make reference to a counterclaim in a notice of magistrate appeal was not fatal to the notice where there was no express intention to exclude the counterclaim from the appeal.

      . § 512.300 provides:
      “In all cases of appeal, the bill of items of the account sued on or filed as a counterclaim or set-off, or the statement of the plaintiffs cause of action, or of defendant’s counterclaim or set-off, or other ground of defense filed before the magistrate, may be amended upon appeal in the appellate court to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted; but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment. Such amendment shall be allowed upon such terms as to costs as the court may deem just and proper.”

      . For example, § 2353 RSMo. 1929. See also Biederman Furniture Co. v. Isbell, 102 S.W.2d 746 (Mo.App.1937).


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Henry Glade SANDERSON, Defendant-Appellant.
    No. 36437.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 30, 1975.

      Charles D. Kitehin, Public Defender, Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Scott A. Raisher, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard G. Callahan, Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Henry Sanderson, hereinafter the defendant, appeals from his conviction of burglary in the second degree § 560.045 RSMo. 1969, in the Circuit Court of the City of St. Louis following a jury waived trial. The trial court after finding the defendant guilty as charged, sentenced him to two years in the custody of the Missouri Department of Corrections. We affirm.

On appeal the defendant presents three Points Relied On as basis for his contention that his conviction should be reversed and the defendant discharged. These Points are: that the trial court erred in,

1. overruling defendant’s motion for judgment of acquittal at the close of all the evidence because (a) the evidence was insufficient to support a conviction on the charge of burglary in the second degree because there was no showing that a breaking occurred and (b) the facts and circumstances offered to prove the offense of burglary were neither consistent with the guilt of the defendant nor inconsistent with any reasonable theory of his innocence, and
2. overruling defendant’s objection to the introduction into evidence of the pocket knife as evidence because it was not proven sufficiently to be connected with the alleged burglary, and
3. in denying defendant’s request to have Mr. Brooks in the courtroom during the defendant’s testimony.

In view of Rule 26.01(b) that in a jury-waived criminal case the findings of the court shall have the force and effect of the verdict of a jury, and after the defendant has waived a jury, was tried by the court, convicted and appeals, the appellate court reviews the evidence in the same manner as though a verdict of guilty had been returned by a jury, and hence if there was substantial evidence to support the finding of the trial court its judgment should be affirmed. State v. Daniels, 487 S.W.2d 465, 469[4] (Mo.1972).

On appeal, after conviction, the reviewing court must accept the State’s evidence as true, together with all reasonable inferences deducible therefrom, and all evidence and inferences to the contrary must be disregarded. State v. Cobb, 444 S.W.2d 408, 412[3] (Mo. banc 1969), State v. Stapleton, 518 S.W.2d 292, 296[1] (Mo. banc 1975).

Viewed in this light we conclude that the trier of fact could have found from the evidence that on January 15, 1974, Louis J. Brooks, Jr., resided at 6024 Cabanne Avenue in the City of St. Louis, in a three story residence. On that morning Mr. Brooks left for work sometime between 7:00 and 7:30 a. m. and at that time, to the best of his memory, both outside doors were locked. He testified that he normally kept the inside doors to his home closed but that when he was summoned to return to his home at about 10:00 a. m. that same morning he noticed that the inside doors were open, and after entering into his home he found that his third-floor desk had been “rifled,” all of his papers had been mixed-up, and some money was missing. The outside doors to his home were closed when he returned there with the police. He did not know this defendant and he never gave any permission to defendant or a Mr. Haines to enter his house.

Rose Singfield testified that on the morning in question she resided at 6034 West Cabanne Place, directly to the west of Mr. Brooks’ residence. At approximately 11:00 a. m. that morning she was alerted by her dog’s barking and she looked out of lnu-living room window and observed two men walking from Mr. Brooks’ back yard via his driveway, which is located between the Brooks and Singfield residences. She saw the men turn around at the front of the house and go towards the front porch of Mr. Brooks’ home; however, she could not see them on the steps or on the porch because her view was obstructed by the corner of the Brooks’ house. She did, “a second later,” notice movement on the first floor inside the Brooks’ home, and then called Mr. Brooks’ nephew’s wife to ascertain if anyone had permission to enter the house. After completing this telephone call she returned to her dining room window where she observed the two men walking inside Mr. Brooks’ home. She was unable to observe these two men at all times, but saw the police pull into Mr. Brooks' driveway while the two men were still in the house. She then moved to her kitchen window when she observed the two men she had seen earlier in the Brooks’ driveway, standing in Mr. Brooks’ backyard with the police officer. She identified this defendant as one of the two men she observed in custody of the police officer at the scene and testified that the man she saw walking down the driveway had on the same type of jacket as the men she saw saw walking around in the house.

Patrolman George Jackovich, the police officer dispatched to the scene, parked his patrol car at the front of the house upon his arrival there and proceeded on foot to the rear of the Brooks’ residence. As he turned the corner at the rear of the house he observed two men run down the steps of the rear porch and through the backyard, whereupon he ordered them to halt. The two men stopped and he placed them under arrest. One of the two men was the defendant. At that time the back door of the Brooks’ residence was open. The police officer identified a pocket knife, State’s Exhibit No. 4, as the pocket knife he took from the defendant at the time of the arrest and he also testified that he took some money from the possession of one of the two men he had arrested at the scene but was unable to recall whether the defendant had any money on him at that time.

Defendant took the stand and testified in his own behalf. The gist of his testimony was that on the morning in question he went to Mr. Brooks’ home seeking work. He testified that he had shovelled snow for Mr. Brooks on two prior occasions and was paid for these services. On this occasion, accompanied by Ronald Haines, he returned to the Brooks’ residence to inquire about additional work, approaching the Brooks’ home from the front. He went to the front porch and rang the doorbell. When no one answered, he then walked to the back of the house to see if Mr. Brooks was there. He did not ascend the backporch. When he noted that Mr. Brooks was not in the backyard, he made one step to return to the front of the home when he saw the police officer who ordered both Mr. Haines and himself to stop, handcuffed them, and took them to the front of the house. He denied that he had been inside the Brooks’ house on that fateful day, that he was on the backporch when he saw the police officer, and testified that at the time of his arrest he was wearing a brown and beige checkered jacket. He contradicted the police officer when he testified that the back door to Mr. Brooks’ house was closed.

At the conclusion of the evidence in the case a motion for judgment of acquittal was filed and overruled.

Defendant now contends that “trial court erred in overruling the motion for judgment of acquittal at the close of all the evidence because: A. The evidence was insufficient to support a conviction on the charge of burglary in that there was no showing that a breaking occurred,” and B. “The facts and circumstances offered to prove the offense of burglary were neither consistent with the guilt of the defendant nor inconsistent with any reasonable theory of his innocence.”

The elements of Burglary in the Second Degree involving a dwelling house are (1) the breaking and (2) the entering thereof with (3) the intent to commit a felony or to steal therein. State v. Sallee, 436 S.W.2d 246, 251[5] (Mo.1969). The' opening of a closed and unlocked door is sufficient to constitute a “breaking” within the terms of the statute, so long as it is done with a burglarious intent. State v. Degraffenreid, 477 S.W.2d 57, 61[9] (Mo. banc 1972). The evidence in this case, the trial court could find, in support of the State’s theory, is that before Mr. Brooks left for work on the morning of January 15, 1974, he closed both the inside and the outside doors to his home and, as far as he could remember, locked them. A prosecuting witness is not required to speak with absolute certainty if the trier of the facts is convinced beyond a reasonable doubt that for anyone to gain entry into the house they had to open either an inner or outer door. Upon his arrival, the police officer testified that he found the rear outside door to the Brooks’ residence open. There was further evidence that Mr. Brooks’ house was entered and that his desk was rifled. The circumstances, we conclude, when measured against the general rule whether the facts and circumstances are consistent with each other and with the hypothesis of defendant’s guilt, and whether they are inconsistent and irreconcilable with his innocence, and point so clearly and satisfactorily to his guilt that they exclude every reasonable hypothesis of innocence, are sufficient to support the verdict in this case. State v. Sallee, supra, l. c. 250; State v. Whaley, 512 S.W.2d 431, 433[1] (Mo.App.1974). We must not overlook the fact that Mrs. Sing-field saw two men inside the house at the time the police officer pulled up in the police car, and almost immediately, when the police officer approached the back corner of the prosecuting witness’ house, he observed two men run down the steps of the rear porch and through the backyard. There is no evidence that Mr. Brooks gave this defendant permission to enter his home, and the evidence is clear that he was one of the men inside the house. Whether the doors were locked is not the decisive issue. That they were closed is not contested. Even the defendant did not testify that the doors were open at any time while he and his compatriot were on the premises. In State v. G’Sell, 497 S.W.2d 882 (Mo.App.1973), this court, 1. c. 884[3], said: “a conviction is warranted if the State shows a chain of connected and interdependent circumstances which, taken as a whole, preclude any reasonable theory of defendant’s innocence . . . This means a conviction by circumstantial evidence may rest upon accumulated facts, no one of which creates more than a suspicion of guilt.” We believe this to be the case here, and find no merit to the defendant’s contention.

Defendant’s second Point relative to the admission into evidence of the pocket knife found in possession of the defendant at the time of his arrest in the backyard of the burglarized house is presented in this court on the grounds that it was not proven to be sufficiently connected with the alleged burglary. At trial, and in defendant’s Motion for New Trial, the objection to the pocket knife — State’s Exhibit No. 4 — was directed to its relevancy and it is in that light that we shall consider it here.

In State v. Tevis, 340 S.W.2d 415, 420[11] (Mo.App.1960) it was held that evidence is relevant if the fact it tends to prove or disprove is a fact in issue, or to corroborate evidence which is relevant and which bears on the principal issue. Before evidence can be excluded on the ground that it is irrelevant, it is essential that it appear so beyond doubt. If the question of relevancy is doubtful, the settled rule is that the evidence should go to the trier of the facts for the evaluation of it. As the prosecutor pointed out when the objection was made, “Pocket knives frequently are used to spring locks like credit cards.” This is particularly apropos in a case of this type where there was no evidence of any prying or physical damage to the means of entry or exit from the dwelling. Mr. Brooks had testified that when he left the house that morning this back door was closed and locked but when the police officer observed the back door after taking the defendant into custody, he observed that this same back door was opened. We conclude that the trial judge, from this evidence, could infer that the defendant used the pocket knife to spring the lock on the door. We likewise rule this Point against defendant. See State v. Alred, 524 S.W.2d 895, 896[1] (Mo.App.1975).

Defendant’s final contention is that the trial court erred in denying his request to have Mr. Brooks remain in the courtroom during the defendant’s testimony is likewise without merit. Prior to the commencement of the trial, and immediately after the trial court determined that the defendant had voluntarily and understanding^ waived his right to a trial by jury, defendant’s counsel requested that any witnesses in the courtroom be “sequestered from the witnesses who are testifying.” The trial court responded: “At the request of both the State and defendant, witnesses who will testify should not remain in the courtroom.” After Mr. Brooks testified the trial court inquired of defense counsel, following re-direct examination, if she cared to “further cross-examine” the witness. Defense counsel replied that she would like for the witness to stay in the courtroom during the defendant’s testimony and “possibly re-question him after that.” The trial court advised counsel that unless she was going to use the witness for further cross-examination and if she did not have any further need of the witness, he was going to excuse the witness. Defendant’s counsel then requested that Mr. Brooks stay for the purpose of further cross-examination after the defendant testified. The trial court denied that request on the grounds that that was not the proper procedure, but stated that he would permit further cross-examination then. Defense counsel stated that she had nothing further at that time. The witness was excused.

After the conclusion of the prosecution’s case, and after defendant’s motion for judgment of acquittal had been overruled, defense counsel requested that Mr. Brooks be “brought up” and stated that the only purpose for this request was Mr. Sanderson’s testimony might refresh the witness’ memory that the defendant had been to Mr. Brooks’ home and shovelled snow for him for pay. The trial court denied this request but, instead offered to have Mr. Brooks return to the stand for further cross-examination if defense counsel so desired. Defense counsel refused this offer and stated: “Your Honor, we have nothing further from Mr. Brooks.”

Although this contention of the defendant is presented to us as one of “refreshing a witness’ memory,” what was really sought by this suggested procedure was a chance that Mr. Brooks would change his testimony after hearing the defendant testify to facts contradictory to the denial of Mr. Brooks that he had known the defendant prior to January 15, 1974, or had any recollection of hiring the defendant to shovel snow from his sidewalk and porches almost two weeks prior to that date. A court may permit a party to put questions to his own witness on direct examination to refresh his recollection by directing his attention to a particular matter, by referring to a prior statement or prior testimony, or by reading to him his prior testimony or a portion thereof, especially when it appears that the witness is hostile or evasive. 2 Wharton’s Criminal Evidence § 415 (13th ed. 1972). Cross-examination is the better vehicle available to a party to test the recollection of a witness offered by an opponent. This method was tendered to the defense counsel by the trial court and defendant refused, stating that he had no further questions.

Defendant relies on State v. Bradley, 361 Mo. 267, 234 S.W.2d 556 (1950), but we do not find Bradley in point here. In Bradley the sheriff of Randolph County, a State’s witness, was permitted over defendant’s objection, to refer to some notes he had made from his own memory two days following the event, of a conversation he had with the defendant while en route from the place where the defendant was delivered into his custody by Kansas City police officers, to Moberly, Missouri. Defendant’s objection went to the trustworthiness of the memorandum because it was not made at the time “the conversation was had.” Bradley held that the question of permitting the “refreshment of memory” of a witness depends upon the circumstances of the particular case, and the answer is within the discretion of the trial court reviewable only upon abuse. It found no abuse of the trial court’s discretion and further held that it was not unreasonable to assume that the notes were made at a time when the sheriff accurately recalled the defendant’s language. That is not the issue here.

We believe that in the circumstances of this case the defendant was not prejudiced by the trial court’s denial of his request that the prosecuting witness be required to remain in the courtroom during the defendant’s testimony and that there was no abuse of discretion involved. Mr. Brooks was unequivocal and unshaken in his testimony that he did not know the defendant prior to January 15, 1975, and there is nothing to indicate that he would change his story in this respect had he listened to the defendant’s contradictory testimony. We rule this Point against the defendant.

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

The conviction of defendant is affirmed.

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

      . In his motion for new trial the defendant did not raise this point in the same phraseology, for there it was raised as follows: “The court erred in disallowing the movant to recall Mr. Brooks as a defense witness following the testimony of the defendant.” We are being asked here to review an action of the trial court on grounds different than that presented to it in defendant’s motion for new trial. A review of the trial transcript reveals that there was at no time any offer by the defendant to call this witness as “a defense witness.” The request was to cross-examine him further after he had heard the defendant’s testimony which would be in conflict with Mr. Brooks denial that he knew defendant and was not certain whether he had ever hired someone to shovel snow, although it seemed to him he had.


author: CLEMENS, Presiding Judge.

text:
    Kenneth W. KELLIN, Appellant, v. ACF INDUSTRIES, INC., Respondent.
    No. 36583.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 30, 1975.

      John J. Larsen, St. Louis, for appellant.
    Stephen M. Hereford, Gentry, Bryant & Hereford, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff-appellant Kenneth W. Kellin claimed Workmen’s Compensation benefits, contending he injured his back while working in an awkward position with a heavy grinding machine, and that the injuries required a surgical laminectomy. Both the Referee and the Industrial Commission denied the claim, as did the Circuit Court on appeal. Plaintiff has appealed to this court.

Plaintiff’s brief preserves nothing for appellate review. Rule 84.04(d) requires an appellant in his points relied on to 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. Plaintiff’s points relied on are mere abstractions:

“I. Appellant (employee) sustained an injury by reason of an accident arising out of and in the course of his employment.
“II. Applying for group insurance benefits does not preclude an employee’s claim for workmen’s compensation.
“HI. The letters of the employee and his then attorney did not dismiss employee’s Workmen’s Compensation claim.
“IV. Neither the question of whether or not an employee sustained an accident within the meaning of the Workmen’s Compensation Law nor the question of medical causal relationship is determined by an examination of hospital records.”

These points patently fail to comply with Rule 84.04(d). In Lane v. Katt, 421 S.W.2d 544 (Mo.App.1968), we said an appellant’s “points relied on should be used as a target pistol firing at a bull’s-eye, not as a shotgun firing at clay pigeons.” The defective brief warrants affirmance of the judgment denying plaintiff’s claim. Rule 84.08.

In so concluding we realize the Workmen’s Compensation Law is to be liberally construed in favor of the employee. Section 287.800, RSMo 1969; Marie v. Standard Steel Works, 319 S.W.2d 871[4] (Mo.1959). Accordingly, we have elected to review the record for plain error, Rule 84.-13(c), to determine whether it shows manifest injustice to the plain tiff-employee.

In denying compensation the Industrial Commission found: plaintiff’s hospital records showed no causal connection between his claimed accident and his physical condition; after plaintiff’s injury he applied for and received 26 weekly $56 private insurance disability payments, declaring his injuries were “not work connected”; by counsel plaintiff thereupon formally declared his intention to abandon his original workmen’s compensation claim. The transcript shows these findings were supported by substantial evidence. It follows that the Industrial Commission was justified in denying plaintiff’s claim. There was no manifest injustice.

Judgment affirmed.

KELLY and STEWART, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Newton TROUPE, Appellant.
    No. 36586.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 30, 1975.
    John C. Danforth, Atty. Gen., Preston Dean, Clarence Thomas, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for respondent.
    Charles D. Kitchin, Public Defender, James C. Whitney, Asst. Public Defender, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Defendant Newton Troupe was found guilty by a jury of carrying a concealed weapon (§ 564.610, RSMo 1969). The trial court sentenced defendant to three years’ imprisonment upon proof of two previous felonies. He appeals.

The narrow issue here is defendant’s contention by his sole Point Relied On: “The trial court erred in sustaining the prosecutor’s objection to testimony of Rose Tillman regarding the robbery which was committed earlier against the appellant. This evidence was material on the issue of appellant’s intent to commit the alleged offense.” A brief statement of the evidence will suffice.

February 23, 1974 two patrolling St. Louis police officers heard gun shots fired from an alley. They drove up and encountered, stopped and frisked the defendant. From the hip pocket of defendant’s trousers, underneath a jacket, the police took a partly loaded revolver. Defendant later testified he had been test firing the weapon and intended to buy it for his own protection.

Rose Tillman, a friend of defendant, testified for him. Defense counsel attempted to question her about a robbery and beating to which she and defendant had been subjected two weeks before the arrest. The trial court sustained the State’s objection to this testimony over defense counsel’s argument this testimony was material to the issue of defendant’s intent.

Defendant concedes in argument here his “motive” in carrying the weapon concealed is irrelevant, but argues that evidence about previous assault was admissible to show his intent; that “intent” means the “design, resolve, or determination with which a person acts.” This is merely a play on words. The argument intermingles two intents — the relevant intent to carry a deadly weapon concealed and the irrelevant intent to use the weapon for a lawful purpose.

Defendant’s argument ignores the relevant intent, to carry the weapon concealed, and substitutes an irrelevant intent, future lawful use of the weapon. This distinction is deeply rooted in Missouri law.

Defendant’s theory was negated in the early case of the State v. Julian, 25 Mo.App. 133 (1887), a concealed-weapon case where defendant contended he was with a posse looking for a fugitive desperado. In affirming conviction the court said “it is only when the act done is not intended to be the act which the law in fact forbids, that innocence of intént will furnish a sufficient defense . . . the defendant did, and at the same time intended to do, an act which is specifically forbidden by statute law.”

The distinction is clearly marked in State v. Hovis, 135 Mo.App. 544, 116 S.W. 6 (1909), a concealed-weapon case, where the trial court refused to admit defendant’s evidence he was carrying a pistol in his pocket with intent to shoot game in the woods. On appeal the trial court’s exclusion of the proffered evidence was upheld, the court saying: “The intent at which the Legislature aimed the statute was the intent to do the act prohibited by the statute, namely, to carry a deadly weapon concealed upon or about the person . . . and we are not disposed to fritter this away by searching after the intent with which the party carried the weapon.”

Later cases show it is still the law that in a concealed-weapon case the required element of intent concerns the intent to carry a deadly weapon concealed, not the intended use of the weapon. State v. Haynes, 489 S.W.2d 233 (Mo.App.1973); State v. Jordan, 495 S.W.2d 717[3, 4] (Mo.App.1973).

The trial court correctly excluded evidence of the previous assault on defendant.

Judgment affirmed.

KELLY and STEWART, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Dennis KIRKSEY, Appellant.
    No. 35852.
    Missouri Court of Appeals, St. Louis District, Division 2.
    Sept. 30, 1975.

      John C. Danforth, Atty. Gen., Preston Dean, Scott A. Raisher, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., for respondent.
    David V. Uthoff, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Defendant appeals from his conviction of first degree robbery by means of a dangerous and deadly weapon, a felony under § 560.135, RSMo 1969. The State’s evidence was that at gunpoint defendant and two accomplices robbed two telephone company employees of money collected from pay telephones. Both victims identified defendant Kirksey as the man who had produced the gun during the robbery.

Defendant first seeks to invoke the plain error rule, 27.20(c), YAMR, contending the trial court’s order to physically restrain him during trial constituted manifest injustice; secondly, defendant contends the trial court committed reversible error by denying his motion for mistrial made in response to the prosecution’s cross examination; and last, erred in allowing the prosecution in closing argument to improperly refer to defendant’s facial appearance. Finding no reversible error, we affirm.

During the trial part of a bullet was found in defendant’s shoe. Upon receiving this information in chambers, the trial court ordered defendant restrained by leg irons for the remainder of the trial. Neither an objection nor motion for a new trial raised this point.

A defendant has the right to appear before the jury free of shackles. State v. Kring, 64 Mo. 591 (1877). If, however, defendant’s conduct presents a “good reason” (State v. Rice, 347 Mo. 812, 149 S.W.2d 347[1, 2] (1941)), or an “exceptional circumstance” (State v. Boone, 355 Mo. 550, 196 S.W.2d 794[3] (1946), State v. McGinnis, 441 S.W.2d 715[1, 2] (Mo.1969)), the trial court may order defendant shackled to maintain the order of the courtroom. Although the record here shows no verbal or turbulent disruptions by the defendant, the lack of objection to defendant’s being restrained upon discovery of the bullet is crucial. To sustain defendant’s plain error contention, the restraining of defendant would have to constitute “manifest injustice.” Although the trial court’s action appears superficially to be excessive, we find no plain error. Defense counsel failed to make a record showing the trial court’s ruling was unreasonable or that defendant was prejudiced. His contention of prejudice does not prove itself and is only an “unsupported assumption.” State v. Kirk, 510 S.W.2d 196[11, 12] (Mo.App.1974), Russell v. State, 494 S.W.2d 30[9, 10] (Mo.1973). State v. Sallee, 436 S.W.2d 246[20, 21] (Mo.1969).

Defendant’s second contention of error is the denial of his motion for mistrial. On direct examination defendant had testified he had been in Chicago before and after the time of the robbery. The motion for mistrial was made when the prosecutor cross examined defendant about his alibi, asking: “Did you ever tell that to anybody before?” A person under arrest has no duty to speak, nor may the state gain advantage from the accused’s silence. State v. Stuart, 456 S.W.2d 19[3-6] (Mo.1970). However, defendant testifying in his own behalf “is liable to cross examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case.” § 546.260, VAMS. Alibi testimony is not immune from the probing search of cross examination. (See our opinion in State v. Davis, Mo., 527 S.W.2d 32, 1975); State v. Harvey, 449 S.W.2d 649[2] (Mo.1970). We find the prosecutor’s question, since not directed to defendant’s silence but rather to his ability to substantiate his alibi, was within the proper purview of the cross examination. State v. McKissic, 358 S.W.2d 1[8] (Mo.1962); State v. Huffer, 424 S.W.2d 776[13, 14] (Mo.App.1968). The state has a right to make an inquiry which casts doubt upon the credibility of defendant’s alibi. State v. Davis, supra.

Defendant’s third contention is that the trial court erred in allowing the prosecutor in closing argument to refer to scars on defendant’s face. During his closing argument defense counsel said defendant had visible facial scars but that the eye witnesses had not described defendant as being scarred. In response, the circuit attorney argued that defendant was not asked if he had those scars at the time of the robbery. Defense objection to this statement was denied. When the circuit attorney went on to state he could disprove that defendant had scars at the time of the robbery, defense objection was sustained and the jury was instructed to disregard. It is apparent defense counsel first brought up the question of defendant’s scars. The circuit attorney’s remarks were retaliatory. The defense may not provoke a reply to his own argument and then assert error. State v. Lorts, 269 S.W.2d 88[6—9] (Mo.1954), State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582[9, 10] (1950). The trial court exercises wide discretion in the control of oral arguments. State v. Smith, 431 S.W.2d 74[26, 27] (Mo.1968). If prejudice resulted from the prosecutor’s statements it was sufficiently removed by the trial court instructing the jury to disregard.

The judgment is affirmed.

KELLY and STEWART, JJ., concur.