text:
    Sue C. RUDD, Appellant, v. KENTUCKY MANUFACTURING COMPANY, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Dec. 1, 1978.
    J. Quentin Wesley, Wesley & Simpson, Morganfield, for appellant.

      Robert G. Hunt, King, Deep & Brana-man, Henderson, for appellees Kentucky Mfg. Co.
    John Riehl, Jr., Dept, of Labor, Louisville, for appellees Com’r of Labor and custodian of the Special Fund.
    Before COOPER, HAYES and PARK, JJ.
   PARK, Judge.

The central issue presented by this appeal is whether an employee is entitled to benefits for total disability under KRS 342.-730(l)(a) when a pre-existing heart condition prevents repair of a work-related hernia which otherwise would be only temporarily disabling. If the employee is entitled to more than temporary disability benefits for the work-related hernia, the issue of the Special Fund’s liability is also presented.

The employee, Sue C. Rudd, filed a compensation claim for total disability as a result of a hernia sustained in a fall in the course of her employment by Kentucky Manufacturing Company in Union County, Kentucky. Upon motion of the Company, the Special Fund was joined as a party to the proceedings. The board awarded Rudd only four months temporary total disability benefits for her hernia and dismissed the Special Fund from any liability. From a judgment of the Union Circuit Court affirming the award of the board, Rudd appeals to this court.

Rudd was injured April 30, 1976, when her feet became entangled in a length of twine or cord on the floor of the factory causing her to fall. She continued to work after the fall until May 24 when she first visited a doctor. The doctor placed Rudd in a hospital because of what he considered was a serious, life-threatening heart condition. A physical examination of Rudd in the hospital revealed an abdominal hernia. During surgery to correct the hernia, Rudd stopped breathing and apparently experienced heart failure. Although the surgeons were able to revive her, the hernia was not repaired. There are no plans for a second operation to repair the hernia until her heart condition improves and is corrected.

The board found that Rudd’s hernia was work-related. However, the board also found that the hernia was only temporarily disabling. According to the findings of the board, the condition which prevents Rudd from working is her heart condition which is not work-related. The board found that the hernia could be repaired without any permanent disability if her heart condition were corrected by surgery. Therefore, the board found the company liable only for four months temporary total disability benefits. The claim against the Special Fund was dismissed on the theory it had no liability for temporary disability benefits. See Proven Products Sales & Service v. Crutcher, Ky., 464 S.W.2d 800 (1971).

There are two Kentucky decisions involving work-related hernias which could not be repaired because the employee suffered from a disease which was not work-related. Unfortunately, neither case was cited to the board or the trial court. Both cases involve apportionment under statutes which were significantly different from the present apportionment statute, KRS 342.120.

In Black Mountain Corp. v. Stewart, 272 Ky. 140, 113 S.W.2d 1141 (1938), the employee sustained a hernia in the course of his employment. The employee suffered from high blood pressure and heart disease which rendered an operation to correct the hernia more than ordinarily unsafe. The board found that the employee was totally disabled. The board apportioned 75% of the disability to the pre-existing heart disease and 25% to the hernia. Under the Workmen’s Compensation Act then in existence, any disability attributable to a pre-existing disease was non-compensable. Kentucky Statutes § 4800.

In the Black Mountain case, the employer appealed arguing that it had no liability because all of the expert medical testimony indicated that the employee was totally disabled by the high blood pressure and heart disease independent of and in no way connected with his work-related hernia. The court rejected this argument. The court pointed out in its opinion that the employee had performed hard manual labor up to the time he suffered the injury and that he was immediately thereafter totally disabled. The court rejected the contention that an injúred employee who sustains a compensa-ble injury should be denied any compensation if a disease originating thereafter would, of itself, have totally disabled the employee. The court affirmed the board’s apportionment of disability between the compensable hernia and the non-compensa-ble pre-existing heart disease.

In Department of Highways v. McCoy, 301 Ky. 765, 193 S.W.2d 410 (1946), the employee also suffered a hernia in an accident arising out of and in the course of his employment. The board also found that the hernia was not operable because the employee was then suffering from pulmonary tuberculosis which rendered an operation to correct the hernia more than ordinarily unsafe. The board awarded the employee total disability benefits for the hernia. The board concluded that the tuberculosis developed after the injury and was not a contributing factor to the original disability. The court affirmed the award of the board, stating:

There was ample evidence from which the Workmen’s Compensation Board could reasonably infer that appellee contracted tuberculosis subsequent to the accident, and since it found that the disability complained of was not jointly caused by pre-existing disease and traumatic injury but was caused by traumatic injury alone, there was no room for an apportionment of the award. Highland Company, Inc., v. Goben, 295 Ky. 803, 175 S.W.2d 124. Where an employee has sustained a compensable injury, compensation will not be denied or the award reduced because of disease originating thereafter, even though such disease would totally incapacitate him. Black Mountain Goal Corporation v. Stewart, 272 Ky. 140, 113 S.W.2d 1141.

Id., 193 S.W.2d at 412. It should be noted that the court in the McCoy case relied upon the decision in Highland Co. v. Goben, 295 Ky. 803, 175 S.W.2d 124 (1943). That case established the rule that apportionment of liability was not required unless the pre-existing disease was active and disabling prior to the traumatic injury. The employer was responsible for the entire disability if the pre-existing disease was dormant and non-disabling prior to the injury. See Yocom v. Jackson, Ky.App., 554 S.W.2d 891, 893 (1977).

Under the present statute, KRS 342.120, apportionment, after joinder of the Special Fund, is required “if either or both” of two conditions exist. Under subsection (l)(a), apportionment is required if the employee was previously “disabled.” Under subsection (l)(b), apportionment is required if the employee had “a dormant nondis-abling disease or condition which was aroused or brought into disabling reality” by a subsequent work-related injury. A pre-existing disease or condition is considered to have been “dormant” only if it was non-disabling at the time of the subsequent injury. Yocom v. Loy, Ky., 573 S.W.2d 645, 25 Ky.L.Summ. 14 (October 31, 1978); Yocom v. Spalding, Ky., 547 S.W.2d 442 at 445 (1977).

In its opinion and award, the board made the following findings:

2. Plaintiff, a 53 year old woman, sustained a hernia while working for defendant.
3. The condition which prevents her from working is her heart ailment (T.E. p. 10) which is not work related. Once she has heart surgery, the hernia which is a recurrent condition, can be repaired without any permanent disability solely attributable to the hernia.
4. Without the serious heart condition, plaintiff would have a temporary total disability period of about four months from the hernia repair and we will allow compensation for that period of time.

Rudd asserts that there was no competent evidence upon which the board could make a finding that the work-related hernia was only temporarily disabling. We do not reach this issue. Having in mind the provisions of KRS 342.120 and the decisions under the prior law in the Black Mountain and McCoy cases, we conclude that the board’s findings are ambiguous. Until such ambiguity is removed by further findings, this court cannot determine whether the board was correct in limiting Rudd to temporary total disability benefits.

Rudd was working full time when she was injured on April 30, 1976. Consequently, she could not have been totally disabled from her heart condition at the time she sustained the work-related hernia. If Rudd’s heart condition was partially disabling prior to the injury of April 30, 1976, and she is now totally disabled because the heart condition prevents repair of the hernia, she may be entitled to disability benefits subject to apportionment under KRS 342.120(1)(a), (3) and (4). See Black Mountain Corp. v. Stewart, supra; see also Davis v. Conger Life Ins. Co., Fla., 201 So.2d 727 (1967). On the other hand, if her heart condition was not disabling prior to the accident of April 30, 1976, Rudd may be entitled to disability benefits for the hernia without any exclusion from compensation under KRS 342.120(4) on account of “prior disabling disease.” See Department of Highways v. McCoy, supra. The board’s findings suggest that the accident of April 30, 1976, and the resulting hernia had no effect on Rudd’s prior heart condition. If so, it may be difficult to impose any liability on the Special Fund under KRS 342.-120(1)(b) on the theory that the heart disease constituted a “dormant non-disabling disease or condition which was aroused or brought into disabling reality” by the work-related accident. Cf. Kentucky Convalescent Home v. Henry, Ky., 463 S.W.2d 328, 330 (1971); Yocom v. Jackson, supra, 554 S.W.2d at 896.

Assuming that the hernia is to some degree disabling, consideration must be given to the board’s finding that the hernia is a “recurrent condition.” This finding suggests that some apportionment may be required under KRS 342.120 for the hernia itself. Even more important, there is no finding as to the degree of disability attributable to the hernia so long as it remains unrepaired. In this respect, we note that Dr. Merle M. Mahr, appointed pursuant to KRS 342.121, reported that the hernia was “minimally disabling” — “certainly no more than 10% to the body as a whole.”

Under the peculiar circumstances of this case, this court cannot afford meaningful appellate review in the absence of further findings by the board. The case must be remanded to the board for specific findings respecting the degree and date of inception of any disability attributable to Rudd’s heart condition. The board must also make specific findings respecting the degree of disability attributable to the hernia so long as it remains unrepaired. Having made those additional findings, the board should reconsider its award in light of the provisions of KRS 342.120 and the earlier decisions in Black Mountain Corp. v. Stewart, supra, and Department of Highways v. McCoy, supra.

We intentionally make no ruling on the questions raised in this opinion respecting the application of the Black Mountain and McCoy cases to the present apportionment statute. The parties have not argued, and the board has not considered, the issues. However, we do not feel we are free to ignore the two cases merely because they have not been cited.

The judgment of the circuit court is reversed with directions to enter a new judgment remanding the case to the board for further proceedings consistent with this opinion.

All concur.


source: Caselaw Access Project

author: HAYES, Judge.

license: Public Domain

text:
    DEPARTMENT OF TRANSPORTATION, Bureau of Highways, Commonwealth of Kentucky, Appellant, v. Warren B. KEMPER, d/b/a Ashland Salvage Pool, etc., Appellee.
    Court of Appeals of Kentucky.
    Dec. 1, 1978.
    David A. Collins, Flemingsburg, for appellant.
    Robert Woolery, II, Ashland, for appellee.
   OPINION AND ORDER

Before HAYES, HOWERTON, and LESTER, JJ.

HAYES, Judge.

This case is before the Court on appellee’s motion to dismiss and appellant’s motion for an extension of time, presumably to perfect the appeal.

The motion to dismiss is based upon the grounds that appellant failed to have the entire record on appeal timely certified. We do not believe dismissal is proper under the circumstances of this case.

The notice of appeal was filed on August 15, 1978, and pursuant to CR 73.08, certification was due on or before October 14, 1978. Pursuant to CR 75.01 appellant filed a timely designation of the transcript of the hearing. The record was certified on October 6, 1978, and the circuit court clerk attempted to amend the certification on October 13, 1978, to show that the transcript of hearing had not yet been filed. In its motion, the appellant states that “[t]he clerk failed to have the transcript prepared . .” Clearly, under civil rules 75.02 and 75.07, the duty was on appellant to file the transcript with the clerk in order that the entire record could be timely certified. Appellant failed to file the transcript with the clerk prior to the time the record was certified. Additionally, the motion for extension was not timely made. Appellant was on notice that the time for certification was running out, and must also be charged with knowledge that the transcript had not been filed with the clerk.

The proper procedure would have been for appellant to move, prior to actual certification, for an extension of time to certify the record. CR 73.08. Once the record had been certified prior to such a motion being made, appellant’s other recourse would have been a timely motion to correct pursuant to CR 75.08 on the grounds that the certification had been premature in that the transcript of evidence was not yet filed. However, as neither of these motions was made and appellant’s motion for extension was filed on October 25, 1978, some 11 days late, appellant’s motion for an extension of time is DENIED.

Because the certification was timely as to at least a portion of the record, the motion to dismiss is DENIED. Appellant is entitled to prosecute its appeal based upon those portions of the record which were timely prepared and certified by the clerk as part of the record on appeal. The transcript, not having been timely prepared by appellant and delivered to the clerk for certification, may not now be made a part of the record on appeal.


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Emilio DISANDRO, Defendant-Appellant.
    No. 39953.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 24, 1978.
    Christelle Adelman-Adler, Asst. Public Defender, 22nd Judicial Cir., St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Judge.

Defendant Emilio Disandro appeals from a four-count conviction in the Circuit Court of the City of St. Louis for selling a Schedule I controlled substance — heroin. He claims that the trial court erred by overruling his objection to a prosecutorial comment that indirectly defined reasonable doubt in contravention to the Notes on Use for the burden of proof instruction, MAI-CR 2.20, and the well established rule in Missouri. He also cites as error the trial court’s refusal to submit his instructions on entrapment to the jury. We affirm.

Defendant was arrested after selling heroin to an undercover detective on four separate occasions. The initial sale commenced after the detective, John Corrona, was introduced to the defendant by an informant. Corrona asked the defendant if he had a heroin connection and was informed that he had access to some “dime buttons.” The defendant entered Corrona’s car, and the two drove a short distance to Sarah and Olive Streets. After receiving $55.00 from Corrona, the defendant left the car and returned shortly with five pink capsules containing white powder. Corrona returned the defendant to his apartment and delivered the capsules to the narcotics division for analysis. Each of the subsequent sales proceeded in a similar manner and on each occasion the white powder was found to contain heroin.

Defendant first charges the court with reversible error when it overruled an objection to the comments of the prosecutor during voir dire:

[Prosecutor]: Now, as you were told, the State has a burden of proving Mr. DiSandro guilty. As he sits there now, he is presumed to be innocent and there isn’t anybody here that quarrels with that premise of our law that a man is innocent until he’s proven guilty, is there? I’m sure there is not. And the State has the burden of proving him guilty beyond a reasonable doubt. Is there anybody here that would require proof beyond any doubt as opposed to—
[Defendant’s attorney]: I’ll object to that.
THE COURT: What is the legal basis for your objection?
[Defendant’s attorney]: He’s defining the meaning of reasonable doubt.
THE COURT: I’ll overrule the objection.

It is well established that “. . . it is not the prerogative of counsel to inform the jury as to the law.” State v. Henderson, 547 S.W.2d 141, 143 (Mo.App.1976). Accord, State v. Holzwarth, 520 S.W.2d 17 (Mo. banc 1975); State v. Smith, 422 S.W.2d 50 (Mo. banc 1967); State v. Van, 543 S.W.2d 827 (Mo.App.1976). In this regard, there are numerous opinions which criticize overzealous prosecutors for attempting to define “reasonable doubt.” See, e. g., State v. Harper, 553 S.W.2d 895 (Mo.App.1977); State v. Henderson, supra; State v. Van, supra; State v. Sanders, 539 S.W.2d 458 (Mo.App.1976); State v. Belleville, 530 S.W.2d 392 (Mo.App.1975). The decisions cited basically adopt the reasoning of Judge Dowd in State v. Belleville, supra, and conclude that Notes on Use under MAI-CR 2.20 prohibit the bar as well as the bench from elaborating upon the burden of proof with prejudice of error to be judicially determined. But only indulgence in pure speculation would allow us to state that the prosecutor’s unfinished question in this instance was intended to define reasonable doubt rather than discuss it. In either event, we find no ground for reversible error. Only prejudicial error is reversible error, State v. Gibson, 502 S.W.2d 310 (Mo.1973); State v. Belleville, supra. We cannot find that defendant was in anyway prejudiced as the result of the incomplete, unrepeated query. State v. Belleville, supra.

Defendant’s second contention of error is that the trial court improperly refused to submit an instruction on entrapment to the jury. Only when substantial evidence of entrapment has been established does the entrapment issue become an element of the offense upon which the Court must instruct as part of the law of the case. State v. Devine, 554 S.W.2d 442 (Mo.App.1977); State v. Weinzerl, 495 S.W.2d 137 (Mo.App.1973). The record reveals no evidence that the defendant was enticed to commit a crime; that he was prompted by an offer of reward; that he was threatened; or that he was in some other way induced to do that for which he had no predisposition. As declared first by the Supreme Court of Missouri in State v. Decker, 321 Mo. 1163, 14 S.W.2d 617 (1929):

Where the criminal intent originates in the mind of the defendant on trial, and the offense is accomplished, it constitutes no defense that an opportunity is furnished, or that an officer aids the accused in the commission of the crime, in order to obtain evidence upon which to prosecute him. Id., 14 S.W.2d at 619-20.

Disandro evinced no reluctance to provide Detective Corrona with heroin. At most, there has been a mere showing of solicitation by a governmental agent, which does not raise the issue of entrapment. State v. Long, 550 S.W.2d 854 (Mo.App.1977). He merely took advantage of an opportunity presented by the police. Hence, no issue of entrapment was presented and no instruction was required. State v. Long, supra; State v. Admire, 495 S.W.2d 132 (Mo.App. 1973).

Affirmed.

REINHARD, P. J., and CLEMENS, J., concur.

      . Note (c) of MAI-CR 2.20 states:
      No other instruction may be given elaborating further upon or attempting to define the presumption of innocence or reasonable doubt. In a more recent opinion, however, this court recognized that while the cases cited preclude a prosecutor from defining reasonable doubt, none forecloses a discussion of reasonable doubt during an argument. State v. Wilbon, 561 S.W.2d 133 (Mo.App.1978).
      The comment in this case is not an attempted definition. It is simply an argument by counsel that every doubt is not a reasonable doubt. The law does not foreclose the prosecution from arguing the facts as they pertain to the court’s instructions nor prevent pointing out to [the] jury that some slight doubt about some issue or fact is not necessarily a reasonable doubt. We find no error in the argument. Id. at 134.

      . State v. Devine, supra; State v. Weinzerl, supra; and State v. Long, 550 S.W.2d 854 (Mo.App.1977), each contains a substantial treatment of the law regarding entrapment.


author: DOWD, Presiding Judge.

text:
    Harold Count JOHNSON, Appellant, v. STATE of Missouri, Respondent.
    No. 39689.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 21, 1978.

      Doris Gregory Black, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Stanley H. Robinson, Weldon P. Perry, Jr., Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Robert S. Adler, Asst. Pros. Atty., Clayton, for respondent.
   DOWD, Presiding Judge.

Harold Count Johnson was found guilty by a jury of stealing property of a value over $50.00 and sentenced to imprisonment for a term of five years.

In this appeal Johnson contends that the trial court erred in nine respects. As appellant’s eighth and ninth points challenge the sufficiency of the evidence, we shall consider them first.

Specifically, the eighth and ninth points relied on by the appellant contain the allegation that the trial court erred in overruling his motion for a judgment of acquittal at the close of the State’s case, and at the close of all the evidence.

In reviewing such an issue we are required to interpret the evidence in a light most favorable to the State, drawing all reasonable inferences therefrom in favor of the State. The State’s evidence is to be accepted as true, and inferences inconsistent therewith are to be disregarded. State v. Oldham, 546 S.W.2d 766 (Mo.App.1977).

The testimony adduced at trial revealed that the appellant was observed by two witnesses removing a leather coat from the store rack, and later placing it and two other coats in a shopping bag. Appellant was apprehended when he and another attempted to leave the store without paying for the coats.

We affirm the trial court’s denial of appellant’s motions for acquittal. There was substantial evidence to support the jury’s verdict against the defendant.

In his first point, appellant contends that the trial court erred in overruling his objection to the jury panel, for the reason that the jury was not composed of his peers. At the heart of this allegation lies the assertion that the jury was unacceptable because it was composed of middle-aged white people.

At the outset, it must be noted that our State and Federal Constitutions provide that an accused is entitled to a jury which is impartial rather than one which is composed of the defendant’s peers. State v. Jackson, 506 S.W.2d 424 (Mo.1974).

There is no evidence in the record which demonstrates that black people were systematically excluded from the panel of jurors sworn at appellant’s trial. In fact, the record reveals that the trial court took judicial notice of the system by which the names of prospective jurors are obtained in St. Louis County. The names are furnished from a list of registered voters which is compiled by the St. Louis County Board of Election Commission, and a list of those who are registered to operate motor vehicles and who reside in St. Louis County, which is compiled by the State Director of Revenue.

As there is no substantiation in the record which supports appellant’s contention, we rule this point against appellant.

Appellant’s second point contains the allegation that the trial court erred in admitting into evidence, on cross examination, the transcript of a defense witness’ guilty plea. In an earlier proceeding, the defense witness, Marcus Buckner, pleaded guilty to the crime for which appellant was being tried. The transcript contained a statement by Buckner which implied that he had an accomplice in the theft of the coats.

Appellant contends that the State had a duty under Rule 25 to make the transcript available to the appellant, following receipt of appellant’s motion to produce written and recorded statements of a defendant or codefendant.

We are of the opinion that the State was not required by Rule 25.32 to disclose this impeachment evidence. Rule 25.32 mandates, inter alia, the disclosure of statements made by the defendant, a codefend-ant, and prosecution witnesses. Similar discovery statutes which provide for the disclosure of statements of codefendant have been narrowly construed to include statements which are to be introduced at joint trial or which negate the guilt of the accused. § 2.1, ABA Standards Relating to Discovery & Procedure Before Trial, Approved Draft, 1970.

The statement at issue here, however, was neither favorable to the accused nor uttered by a member of the statutory categories enumerated in Rule 25.32. Here the impeachment testimony complained of was that of an accomplice called by the defense, and not a co-defendant. Accordingly, we rule this point against the appellant.

As appellant’s third and sixth points share the same factual nexus, they have been consolidated for the sake of cohesive discussion. In his third point, appellant asserts that the trial court erred in admitting into evidence, a shopping bag similar to that used by the appellant in the perpetration of the felony. In his sixth point, appellant contends that the trial court erred in denying his motion for a mistrial following the State’s calling of an unendorsed witness to explain the use of the duplicate bag.

These allegations of error stem from the admission into evidence of a duplicate of the shopping bag which was used by the appellant to contain the coats which were stolen from J. C. Penney. Appellant objected to the introduction of said bag because the State’s witness identified the bag as the same as that used in the commission of the crime. In response to this objection, the State offered the testimony of an assistant prosecuting attorney to explain the absence of the original shopping bag. The witness testified that at the appellant’s second trial, the original shopping bag was discovered missing following a discussion in chambers. The State’s witness who had previously identified the bag had not been informed of the disappearance of the original bag.

If demonstrative evidence is not available at the trial, a replica of the absent object may be admitted into evidence in the discretion of the trial court. State v. Nelson, 484 S.W.2d 306 (Mo.1972).

It is apparent that the unavailability of the original and the corresponding misstatement of the witness were satisfactorily explained to the trial court. See, State v. Stephens, 556 S.W.2d 722 (Mo.App.1977).

We find no abuse of discretion in the admission of the duplicate bag.

Furthermore, we find no abuse of discretion in the court’s denial of the appellant’s motion for a mistrial. It is within the discretionary powers of the trial court to permit the endorsement of the names of additional witnesses.

In the exercise of this discretion, matters such as whether the State acted in bad faith, resulting surprise to the defendant, and the foreseeability of the testimony, are taken into consideration. State v. Strawther, 476 S.W.2d 576 (Mo. 1972). There is no indication in the record to support the assertion that the endorsement was calculated to deceive, surprise or prejudice the defendant.

If, however, the defendant is able to demonstrate that he was prejudiced by the testimony of the unendorsed witness, the conviction will be reversed. State v. Parks, 331 S.W.2d 547 (Mo.1960).

After searching the record and briefs, we find no substantiation of the allegation that the defendant sustained prejudice due to the testimony of the unen-dorsed witness.

Accordingly, we rule points three and six against the appellant.

Appellant alleges in his fourth point that the court erred in admitting into evidence a diagram which was represented as a scaled drawing of the floor plan of the J. C. Penney Store. It is clear from the transcript however, that the diagram was not portrayed as a scaled floor chart. In fact, the security manager testified that the floor plan was not drawn to scale, but presented a good visual representation of the store layout.

Exhibits which are not drawn to scale are admissible in evidence if they aid the jury in understanding the testimony of a witness. State v. Smith, 357 S.W.2d 120 (Mo.1962). State v. Anderson, 555 S.W.2d 362 (Mo.App.1977). We rule this point against the appellant, for the reason that the diagram was properly admitted as a perceptual aid for the jury.

In his fifth point, appellant alleges that the trial court erred in requiring the introduction into evidence of a certified copy of a death certificate to document the unavailability of a deceased witness. The record reveals that the appellant offered the exhibit, the introduction of which he now complains.

There is no objection to the admission of the exhibit in the record, nor is there support for appellant’s contention that partial admissibility was. requested. As the appellant failed to object to the admission of the exhibit at his earliest opportunity, the objection is deemed to have been waived. State v. Henderson, 510 S.W.2d 813 (Mo. App.1974).

Appellant’s seventh point contains the allegation that the trial court erred in denying his motion for a mistrial at the close of all the evidence. The motion was predicated on the allegation that a defense witness, Marcus Buckner, had been subjected to the threat of arrest by a security officer during a court recess. A mistrial was requested on the grounds that the apprehension created by the threat of arrest adversely affected Buckner’s ability to respond on cross examination.

Although the allegation regarding the threat of arrest is present in the record, there is no substantiation of it. The defendant called neither the guard nor the defense witness to confirm the authenticity of the contention. “A motion for mistrial does not prove itself; bare statements of counsel without [the] support of evidence offer no subject for review.” State v. Styles, 559 S.W.2d 591, 592 (Mo.App.1977).

Accordingly, we rule this point against the appellant.

The judgment is affirmed.

CRIST, J., and ALDEN A. STOCKARD, Special Judge, concur.

      . Appellant was charged with acting with another to accomplish the theft of 3 leather coats from the J. C. Penney Store in Northwest Plaza, St. Ann, Missouri. Two previous trials of this cause against the appellant resulted in mistrials.


text:
    STATE of Missouri, Respondent, v. Wiley DAVIS, Appellant.
    No. 40040.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 28, 1978.

      Christelle Adelman-Adler, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant was convicted of second degree burglary and sentenced under the Second Offender Act to five years imprisonment. On appeal defendant contends that the trial court erred in refusing to give a lesser and included offense instruction on malicious destruction of property. We affirm.

At about 5:30 A. M. Scott Rooks went to his place of business — a barber and beauty shop in St. Louis — to open for his day’s business activities. As he approached the premises, he noted that the glass door to the beauty shop was broken and the door open. Mr. Rooks entered, called the police, and to defendant’s discomfiture, discovered defendant inside the barber shop with a screwdriver in hand. When asked his uninvited purpose inside the building, defendant responded that he was merely investigating who had broken the window but fled when confronted by Mr. Rooks’ pistol. After a short chase defendant was captured by Mr. Rooks and a friend and held for police and his ultimate arrest.

On appeal, defendant contends only that the evidence supports the submission of an instruction for the lesser and included offense of malicious destruction of property. He argues that the only evidence adduced was the breaking of the front door glass. No items of personal property within the premises were taken or even moved. He maintains that if evidence exists supporting both burglary and malicious destruction of property an instruction on the latter is mandatory.

It is clear that the evidence supports defendant’s conviction of second degree burglary. His uninvited presence within the building which had been broken into where goods, merchandise or items of value were kept is sufficient inference of defendant’s intent to burglarize the premises regardless of the fact that nothing had been stolen. State v. Lawrence, 566 S.W.2d 243 (Mo.App.1978); State v. Arnold, 534 S.W.2d 836 (Mo.App.1976); State v. Smith, 521 S.W.2d 38 (Mo.App.1975); State v. Carson, 501 S.W.2d 503 (Mo.App.1973). Here, the proof sustains the charge of burglary in the second degree. Therefore, as stated in State v. Hernandez, 462 S.W.2d 790, 791 (Mo.1971), “. . . the malicious destruction of property is not a lesser and included offense when the proof sustains the charge of burglary in the second degree.” Hence, the trial court was not in error in refusing to instruct on malicious destruction of property.

Judgment affirmed.

REINHARD, P. J., and CLEMENS, J., concur.


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Van WOODS, Appellant.
    No. 40042.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 28, 1978.
    Robert C. Babione, Public Defender, Christelle Adelman-Adler, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas C. Muldoon, St. Louis, for respondent.
   CLEMENS, Judge.

A jury found defendant guilty of first degree robbery (§ 560.120, VAMS) and of armed criminal action (§ 559.225, L. 1976). As a second offender, defendant was sentenced by the court to consecutive terms of 20 years’ imprisonment on the former offense and three years on the latter.

We first deal with defendant’s attack upon the evidentiary admission of a document found on his companion in the charged robbery. We then consider defendant’s attack upon the form of the information and his double jeopardy contention.

Defendant presented no evidence and does not challenge the sufficiency of the state’s evidence: Defendant and Herbert Armstrong entered a store, ostensibly as customers. Defendant pulled a gun and announced a holdup. Armstrong took money from a safe, which triggered a burglar alarm. Both men fled and separated but were soon arrested and identified by the victim.

Over defendant’s relevancy objection the court admitted into evidence an address book carried by Armstrong and listing defendant’s name and address. Defendant contends the book was irrelevant because the state showed no connection between the book and the crime charged. True, but it did show a connection between defendant and Armstrong, whose identifications were in issue, and who after the crime were apprehended at different times and places. We cannot say the address book had no probative value, and therefore hold the trial court did not abuse its broad discretion in its evidentiary ruling. Compare State v. Johnson, 539 S.W.2d 493 [45, 46] (Mo.App.1976).

Defendant’s first challenge to the information charging armed criminal action is that it cites the wrong statute. It did, charging violation of § 556.140, but at the time of the charged offense that section had been repealed and replaced by § 559.-225. The information precisely followed the language of the correct statute, § 559.-225, so defendant was not misled. Rule 24.11, VAMR, based on the traditional “statute of Jeofaile,” provides a charge shall not be deemed invalid for any “repugnant allegation when there is sufficient matter alleged to indicate the crime and person charged,” nor “any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits . . . .”

We deny defendant’s challenge to the form of the information and now consider his double jeopardy contention.

Defendant contends the trial court erred in denying his motion to dismiss the armed criminal action count on the ground of double jeopardy. He reasons that “the same act of force” was involved in both the robbery charge and the armed criminal charge. This same contention was raised and denied in the factually similar case of State v. Treadway, 558 S.W.2d 646[8-13] (Mo. banc 1977), where the court ruled:

“The two offenses do not overlap. First degree robbery requires proof only of the taking of property by means of violence or fear. Armed criminal action requires .proof of the use of a dangerous or deadly weapon during the commission of a felony. The use of a weapon is not an element of first degree robbery, although it may factually be a part of the transaction . . . Since the two offenses are not the same in law, appellant’s double jeopardy protection has not been abrogated.”
So it is here.

Defendant next makes a parallel contention that the armed criminal action charge is based on a general statute and cannot be applied because the more specific first degree robbery statute defines the crime. This same contention was made and denied in Treadway, supra, where the court held:

“Prosecution under the armed criminal action statute is not precluded due to a more specific statute imposing punishment for use of a weapon during the commission of a robbery.”

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    STATE of Missouri, Respondent, v. Erwin J. ROESEL, Appellant.
    No. 40144.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 5, 1978.

      Roesel & Scher, Isadore Scher, Clayton, for appellant.
    Roy L. Richter, Montgomery City, for respondent.
   GUNN, Judge.

In this jury waived case defendant was convicted of careless and imprudent driving by failing to yield the right-of-way and assessed a fine of $100. His plaint on appeal is that the evidence does not support the judgment; that the trial court erroneously limited defendant’s cross-examination of certain witnesses. We affirm.

In our review of this court tried case we are guided by some rather fundamental legal rubric: we do not determine the credibility of the witnesses nor weigh the evidence. State v. Swearingin, 564 S.W.2d 351 (Mo.App.1978). Further, we review the evidence in the light most favorable to the State and disregard all contrary evidence. State v. Mares, 570 S.W.2d 332 (Mo.App.1978); State v. Comley, 564 S.W.2d 330 (Mo.App.1978). Applying the foregoing precepts, we find that defendant was on an access ramp preparatory to entering Missouri State Highway 19 — a through highway. He stopped at a stop sign and then turned right in a southbound direction on Highway 19 in front of an automobile driven by Dennis Haight, who was proceeding south on Highway 19 within the speed limit. As soon as he saw defendant move onto Highway 19, Mr. Haight applied his brakes and swerved to avoid striking defendant’s auto. However, Mr. Haight’s front bumper struck defendant’s rear bumper. No one was injured, but the State Highway Patrol was summoned. Mrs. Haight who was a passenger in the Haight automobile testified generally the same as her husband — that defendant had pulled out onto the highway in front of them, and Mr. Haight’s immediate efforts to avoid the accident were unavailing. The State trooper who had been called testified as to the road conditions at the scene of the accident; that he observed and measured skid marks which he had been told were made by Mr. Haight’s auto and noted the damage to the two cars’ bumpers. Defendant’s testimony was that he had looked after stopping. He had seen no cars coming and had driven about a car’s length southbound on Highway 19 when struck from the rear.

The trial court found defendant guilty of operating a motor vehicle in a careless and imprudent manner by failing to yield the right-of-way, a § 304.351.4(1)(a) RSMo 1969 violation. Defendant argues that there was insufficient evidence to sustain the conviction; we disagree. Mr. Haight testified that as soon as he observed defendant start from the stopped position, he braked his car and swerved but was still unable to avoid the collision. He was entitled to assume that once having stopped, defendant would yield the right-of-way to his vehicle, “approaching so close on the through highway ‘as to constitute an immediate hazard . . .’ § 304.351, subd. 4(1)(a) RSMo 1969.” Powell v. Watson, 526 S.W.2d 318, 324 (Mo.App.1975). There was evidence for the trial court to have found that defendant did in fact fail to yield the right-of-way, and Mr. Haight did all he could to avoid the accident.

Defendant refers to Mr. Haight’s estimates as to the distance at which he first observed defendant’s auto and the time it took him to reach his vehicle and argues that with such estimates, the accident could not have taken place. However, the estimates were only approximations and not binding on either the court or the State. They have only such probative value as the court chooses to give them. Gottlieb v. Szajnfeld, 550 S.W.2d 936 (Mo.App.1977); Skelton v. General Candy Co., 539 S.W.2d 605 (Mo.App.1976); Johnson v. Bush, 418 S.W.2d 601 (Mo.App.1967); Lafferty v. Wattle, 349 S.W.2d 519 (Mo.App.1961).

Defendant charges the trial court with error in sustaining objections to two questions asked during cross-examination. Mr. Haight, after he related that he had applied his brakes and swerved to avoid the accident was asked by defendant’s counsel: “Did you take any other evasive action or do anything else?” An objection based on relevancy was sustained. Defendant pursued no further but was allowed without objection to ask the same question of Mrs. Haight. Also, in attempting to establish the bias of the State trooper, defendant asked the trooper if he banked at the same bank with Mr. Haight. Objection was sustained, and no further pursuit of this issue was made although defendant’s counsel had already established that the trooper had known Mr. Haight “a long time.” While bias or prejudice of a witness is a legitimate concern, the trial court is vested with broad discretion in regulating cross-examination. Absent a showing of an abuse of discretion, we will not interfere with the trial court’s ruling. State v. Howard, 564 S.W.2d 71 (Mo.App.1978). We perceive no abuse of discretion in the trial court’s rulings here, nor do we see any prejudice by reason of the rulings.

Additionally, we observe that defendant’s counsel failed at trial to make any effort or offer before the trial court to establish the relevancy or materiality of his questioning or what the witness would state but chose, instead, to remain silent after the objections and rulings had been made. He is too late now in his complaint. Thayer v. Sommer, 356 S.W.2d 72 (Mo.1962); United States Fire Insurance Co. v. Madesco Investment Corp., 573 S.W.2d 442 (Mo.App.1978).

Judgment affirmed.

REINHARD, P. J., and CLEMENS, J., concur.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael Dennis VINEYARD, Defendant-Appellant.
    No. 38731.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 5, 1978.

      William J. Shaw, Public Defender, Daniel L. McCleave, Asst. Public Defender, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   REINHARD, Presiding Judge.

Defendant was convicted by a jury for the unlawful possession of a controlled substance, Schedule III, Phencyclidine. He was sentenced by the court to four years in the penitentiary under the Second Offender Act. On appeal, defendant’s sole point is that the trial court erred in refusing to grant a mistrial because of alleged improper remarks of the prosecuting attorney during the rebuttal portion of closing argument.

At trial, defendant testified as to his past criminal record which included: burglary, stealing and assault; stealing under $50.00; and distribution of heroin. On cross-examination the state questioned defendant extensively about the sentences he received; there was also a lengthy recitation about the defendant presently being on parole from the heroin charge. Earlier in the trial, defendant challenged the credibility of the arresting officers.

The transcript does not include the defendant’s closing argument. In the rebuttal portion of the state’s closing argument, the prosecuting attorney, in referring to defendant’s effort to impeach the officers, made the following statement:

Those officers, if they wanted to come in here and lie, they could have made up a good story. Why did they put Phency-clidine? Why not a more common drug? Why not break open the window and say he is a burglar? That would be consistent if they knew anything at all about it. Why not Heroin? That’s what he is on parole for.

Defendant’s attorney objected to the reference to defendant’s parole on the heroin charge. The court sustained the objection but denied defendant’s request for a mistrial. The court then admonished the jury to disregard the statement as to the heroin and reiterated that the prior convictions were admitted only for the purpose referred to in the instructions.

The granting of a mistrial is an “extraordinary” remedy that should be given only when the prejudicial effect of an error can be removed in no other way. State v. Phelps, 478 S.W.2d 304, 308 (Mo.1972); State v. Harris, 535 S.W.2d 145, 150 (Mo.App.1976). Whether an error in argument “was so serious as to result in prejudice not remediable by anything short of a mistrial rests basically in the sound discretion of the trial court, who was physically present and who could better evaluate the trial flavor.” State v. Jasper, 521 S.W.2d 182, 185 (Mo.App.1975).

The facts in this case simply do not warrant awarding such a drastic remedy. Here the prosecutor’s remark in closing did not inform the jury of unknown information, because the defendant’s own testimony had revealed his parole status. See State v. Pittman, 549 S.W.2d 591, 595 (Mo. App.1977). Nor is this a case of repeated improprieties which cumulate to create a prejudicial effect. State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, 528 (banc 1947). Furthermore, short of granting a mistrial, the trial court took all affirmative steps possible to purge the improper argument from the juror’s minds. Finally we note that the prosecutor’s remarks were directed to the credibility of the police officers, not the likelihood of defendant’s guilt.

Having reviewed the nature of the incident involved here, we find' no abuse of discretion in the trial court’s refusal to grant a mistrial.

Affirmed.

CLEMENS and GUNN, JJ., concur.

      . The court gave MAI-CR 3.58 which instructs the jury that it is not to consider the evidence of defendant’s prior convictions as evidence of defendant’s guilt but should consider it only as to his credibility.


text:
    John ROLFES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39842.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 5, 1978.

      Frank J. Kaveney, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Joseph Beatty and Mike W. Flynn, Asst. Pros. At-tys., Clayton, for respondent.
   CLEMENS, Judge.

John Rolfes (hereafter “defendant”) has appealed the trial court’s judgment denying his Rule 27.26 motion to vacate sentence following an evidentiary hearing. The pertinent ground raised in the motion is that defendant’s guilty plea was not voluntarily and intelligently made because he was not informed, and did not then know, of his trial right to avoid self-incrimination by remaining silent.

Defendant, a 22-year-old first-time offender, pled guilty to stealing over fifty dollars, sale of a controlled substance and tampering with a motor vehicle. Before accepting his pleas, the trial court determined they were voluntary, established their factual basis, informed defendant of his rights to a trial by jury and to bring in witnesses; that the trial court alone set sentences and was not bound by counsel’s recommendations. The court imposed a ten-year sentence for stealing over fifty dollars, to run concurrently with a ten-year sentence for sale of narcotics and with five years for tampering with a motor vehicle.

At his evidentiary hearing defendant testified that the trial court had accepted his guilty pleas without him being aware of his right to remain silent and avoid self-incrimination. There is nothing in the guilty-plea record to show that either the court or defendant’s attorney had so advised him. His counsel at the guilty-plea proceeding was examined at length at the evidentiary hearing about whether he had informed defendant of his rights. He had no recollection of ever telling defendant he did not have to testify at his own trial. In denying defendant’s Rule 27.26 motion the trial court entered the following order:

“Movant’s motion 27.26 under Supreme Court rule called. Parties present. Testimony heard and evidence produced and adduced. Cause having been submitted to this court, the court finds as a matter of fact, and as its conclusions of law that:
(1) Movant’s pleas of guilty were voluntarily, intelligently and understandably made;
(2) That movant was satisfactorily represented by counsel;
(3) That movant’s pleas of guilty were not the product of unkept promises. That, in fact, no promises, threats, coercion or evidence of duress were presented, and the court concludes that there were no such threats, promises, coercion, duress.
(4) That the sentence imposed was done in a proper procedural manner;
(5) That allocution was granted;
(6) That the trial court had jurisdiction, there being valid indictments and information in cause No. 379299;
(7) The office of probation and parole’s report was made available to the movant’s attorney prior to entry of the plea and sentencing, and opportunity was given to the movant to rebut, correct, amend or otherwise change the office of probation and parole’s report. It is the court’s understanding of his responsibility that the decision of whether or not an individual is granted probation is solely within the sound discretion of the court and that this court exercised such reasonable and sound discretion in denying probation.”

Other than conclusory paragraph (1) above the court did not find against defendant’s essential contention that he was ignorant of his right to remain silent and thereby avoid self-incrimination.

To insure that the appellate court has a sufficient record before it, Rule 27.-26(i) requires that the hearing court make findings of fact to support its conclusions of law. Mikel v. State, 528 S.W.2d 796 (Mo.App.1975). Here, the trial court’s recital that defendant’s pleas of guilty were “voluntarily, intelligently and understandably made” is not supported by factual findings which a trial court must make in order to reach a conclusion of law. While appellate courts have been lenient with the requirement in Rule 27.26(i) when the basis for the trial court’s holding is apparent from the record, (Smith v. State, 513 S.W.2d 407[7] (Mo. banc 1974), we are now confronted with a situation where nothing in either the evidentiary record or the court’s findings refutes defendant’s testimony that he pled guilty in ignorance of his right against self-incrimination.

A similar situation was presented in State v. Olds, 569 S.W.2d 745[1—3] (Mo. 1978), holding “the trial court’s findings on essential factual issues must ... be ‘ascertainable from the record.’ ” The court added: “. . .in the absence of the trial court’s finding that it disbelieved defendant’s testimony regarding requests for an attorney and to remain silent, we cannot find that the record supports the finding that the waiver and subsequent statements were voluntary. The only evidence on the subject was defendant’s unre-futed testimony which stands contrary to such a conclusion. The trial judge could disbelieve defendant and find his testimony incredible, but he made no finding to that effect and the state made no effort to refute by Koenig or any other witness defendant’s affirmative testimony in the suppression hearing.” Applying this principle here, we find that defendant, in making the critical choice between pleading guilty or standing trial did so in ignorance of his trial right to avoid self-incrimination.

Supreme Court Rule 25.04 states the trial court shall not accept “[a] plea [of guilty] without first determining that the plea is made voluntarily with understanding of the nature of the charge.” The test is not a particular ritual or whether each and every detail is explained to a defendant, but whether in fact the plea is voluntarily and intelligently made. Baker v. State, 524 S.W.2d 144[1-3] (Mo.App.1975). Rule 25.04 requires that a defendant be advised of the consequences of his plea of guilty. Jackson v. State, 548 S.W.2d 624[3] (Mo.App.1977), and State v. Connor, 500 S.W.2d 300[3] (Mo. App.1973), relying on State v. Blaylock, 394 S.W.2d 364, l.c. 367 (Mo.1965). Here there is no indication whatever that defendant, when pleading guilty, comprehended his constitutional right on trial to remain silent and avoid self-incrimination. The decision of an accused person to plead guilty or to stand trial is undeniably critical; when he is accused, he must make that choice. Among the fundamental factors in making such a choice intelligently is his knowledge that at trial he cannot be compelled to incriminate himself. Here, there is nothing in the record to refute defendant’s contention that in pleading guilty he was ignorant of this fundamental right, the knowledge of which was essential for him to make an intelligent choice to plead guilty or not guilty. We hold therefore that defendant, being unaware of his fundamental trial rights, did not knowingly and understandingly plead guilty.

The case is reversed and remanded to the trial court with instructions to set aside defendant’s guilty pleas.

REINHARD, P. J., and GUNN, J., concur.


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lawrence Gene TIMMONS, Defendant-Appellant.
    No. 10505.
    Missouri Court of Appeals, Springfield District, Division I.
    Dec. 14, 1978.

      John D. Ashcroft, Atty. Gen., Stanley Robinson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    William H. Wendt, Springfield, for defendant-appellant.
   TITUS, Judge.

A Greene County jury found defendant guilty of the felonies of kidnapping (§ 559.-240, V.A.M.S.) and assault with intent to do great bodily harm without malice aforethought (§ 559.190, V.A.M.S.), and fixed punishment for the kidnapping at three years’ imprisonment and for the assault at four years’ imprisonment. After due post-trial proceedings, defendant appealed.

As convictions have resulted on both counts of the information, our recasting of the evidence, infra, is done with deference to the appellate rule that the evidence, whether direct or circumstantial, must be reviewed and the reasonable inferences to be drawn therefrom must be considered in the light most favorable to the state, and all inferences and evidence to the contrary must be disregarded. State v. McIntosh, 559 S.W.2d 606, 607[1] (Mo.App.1977).

The crimes were committed near 6:30 p. m. at 917 E. Normal, Springfield, Missouri, on Wednesday, May 19, 1976, and within the period prescribed for observance of daylight saving time. 15 U.S.C.A. § 260a. As the time of sunset is judicially known [Phillips v. Stockman, 351 S.W.2d 464, 467[1] (Mo.App.1961)], we note that on the day in question the sun set at 8:18 p. m. (Sunrise and Sunset Table No. 1166, prepared by Nautical Almanac Office, U.S. Naval Observatory, Washington, D.C.) or about two hours after the commission of the crimes.

On the day of the offenses, the two-story house with partial basement, supra, was occupied by four young male cotenants, including defendant. Defendant’s belongings were kept on the first floor in what was referred to as John Gage’s old bedroom and in a closet off the living room. At various times during his short occupancy of the premises, defendant slept on the first floor either in Gage’s old room or on a living room couch, or in the basement on a mattress and box spring located on the concrete floor. Apparently all occupants of the house had equal access to the basement when necessary or desired.

The victim of the concerned crimes is a boy named Chris. He was 11 years old at the time of perpetration. His astuteness and qualifications as a competent witness were never challenged. On the involved evening and following an early repast at home, Chris went to a lawnmowing job at 901 E. Normal. He was shod in sneakers and carried a screwdriver in his blue jeans which was employed in starting the lawn mower. Shortly after arrival on the job, Chris was joined by his older brother, Bucky, who took over the mowing and told Chris to seek other lawns to mow. Chris departed on a bicycle which Bucky had ridden to the job-site.

Upon arriving in front of 917 E. Normal, Chris left the bicycle at the curb and went to the screened-in front porch of the house. He saw a man lying on a couch on the porch and inquired about mowing the lawn. Chris and the man conversed about a minute and a half through the screening before the man, after admitting Chris inside and onto the porch, went into the house for the avowed purpose of asking his “wife” about having the lawn mowed. Shortly thereafter the man returned to where Chris awaited. He was armed with a shotgun which he employed in forcing Chris into the basement of the house. After arriving in the basement, the man pushed Chris onto the above-mentioned bed, put a white cloth sack over his head and bound his hands. Thereafter, the man plucked Chris from the bed by a leg and an arm and submerged the boy’s head into water confined in a container.

[An aside: Chris later described his assailant as being a white male, about 20 to 22 years old, approximately 5 feet 10 inches to six feet tall, weighing 160-170 pounds, having brown hair and either a scar “or some type of pigment in his skin” under his left eye. At trial the 22-year-old white male defendant described himself as being six feet tall, weighing 165 pounds, and having brown hair and blue eyes. Defendant acknowledged he had a birthmark under his left eye which was about one-half inch long.]

While or near the time the man was submerging Chris’ head in the water, two women (one of whom was a sister of a tenant) arrived at 917 E. Normal and saw a bicycle lying over the curbing in front of the house. When there was no response to their door knockings, the women opened the unlocked front door and called but no one responded. Upon entering the living or front room, one of the women saw through a hole in the floor a light that was burning in the basement. About that time the light was extinguished and the woman heard a breaking noise of “[s]ome type of glass.” Following this, the woman went to the basement door in the kitchen and “I called down, and no one answered and I went back in the front room.” About three to five minutes later, defendant came from the kitchen into the living room where the two women were sitting. Defendant was wearing “double knit dress pants [and] a white T-shirt [which] was fairly damp.” It was observed that the palm of defendant’s right hand had been recently cut and defendant told the woman this had occurred while he was cleaning his room in the basement. At trial defendant admitted to having been in the basement when the women entered the house. However, he denied Chris was in the basement at any time he was there or that he had participated in any of the basement conduct recited by Chris.

Shortly after the arrival of the two women at the house and defendant’s emergence from the basement, the trio left on a shopping venture. Upon returning, they were soon joined or replaced in the house by other residents and guests. Near 7:30 p. m. Bucky was looking for Chris when he came upon the bicycle lying on the curbing in front of 917 E. Normal. Bucky rode the bicycle home. After freeing himself from his bonds and hiding in the basement while other occupants roamed the premises, Chris managed to escape the house via a basement window leaving behind his screwdriver and one sneaker. When Chris arrived home around 8:30 p. m. with his clothing wet, his arms and face muddy and looking very upset, he recounted the details of his experience. Shortly thereafter he repeated his recountings to the police.

About 9:45 p. m. Chris, together with his father, brother Bucky and two policemen, returned to 917 E. Normal. Leaving the others outside, the policemen approached the house and knocked on the front door. Someone inside yelled something and, via the glass in the door, the police saw the house occupants start to scatter. The two policemen entered the house believing a crime had been committed therein with the intent of arresting the criminal if he was present. One officer went upstairs. The other descended to the basement and upon arrival realized he was at the scene of the crimes. While in the basement, the officer saw in plain view and took possession of a shotgun (later identified as belonging to defendant) and the sneaker that Chris had lost.

Upon returning to the first floor, the officers encountered the two women previously mentioned and two men. One of the men was the former tenant, John Gage. After Chris, his father and brother were called into the house, Chris was asked if he could identify his abductor and assaulter. The testimony at trial varied as to whether Chris did or did not make a tentative identification of Gage. But whether Chris did, in fact, at first identify or suggest that Gage was the perpetrator, it was agreed among those who said Chris initially identified Gage, that Chris shortly recanted. Gage was not thereafter considered a suspect. Later that night the police were advised that defendant had returned to 917 E. Normal and wanted to consult with the authorities concerning the matter. Upon arrival at the address and after viewing defendant who matched Chris’ description of his kidnapper and assailant, defendant was arrested and incarcerated. At this time and on immediate subsequent dates with permission of the various cotenants of the premises, the police discovered and acquired in the house basement a watercooler partially filled with water, Chris’ screwdriver, binding twine and a wet, soiled cloth bag stamped with defendant’s name.

At trial, defendant acknowledged that following his arrest and incarceration, he voluntarily signed documents entitled “Waiver of Right to Remain Silent and of Right to Advice of Counsel” and “Line-up Waiver Face to Face Confrontation.”

On the day following the crimes, Chris went to the police station to view a man in a showup to determine if he could be identified as the kidnapper and assailant. Chris overheard a detective tell his father that the man to be viewed was a resident of 917 E. Normal but he was not told the man was a suspect and he did not know beforehand whether or not the man was the guilty person. Following the confrontation, Chris told the police that defendant was the man and at trial testified: “Q. Chris is there any doubt in your mind at all, that [defendant] is the man that attacked you that night? A. No.”

Defendant’s First Point Relied On : “The court erred in failing to sustain [defendant’s] motion to suppress the in-court identification by witness Chris for the reason that the one-on-one confrontation or show-up of [defendant] . was so unnecessarily suggestive and conducive to irreparable mistaken identity as to be violative of due process, especially in view of the fact that the witness was an eleven-year-old boy and more susceptible to the suggestive situation created by adults.”

The mere fact that defendant was in the custody of the police did not constitute the showup, agreed to by defendant, “ ‘unnecessarily suggestive and conducive to irreparable mistaken [identity].’ ” State v. Maxwell, 502 S.W.2d 382, 389[7] (Mo.App.1973). “In evaluating the suggestiveness of a particular confrontation and the likelihood of misidentification, we look to factors such as the opportunity of the witness to view the accused at the time of the alleged crime, the accuracy of the witness’s prior description of the accused, the certainty of the witness at confrontation, the length of time between the crime and the confrontation, and the need for police to determine at the earliest opportunity whether the person suspected is in fact the person sought.” State v. Hudson, 508 S.W.2d 707, 710[7] (Mo.App.1974), and cases there cited.

Chris’ observations of the defendant while talking with him on the porch and after being admitted inside, though of relatively short duration, were sufficient to enable him to give the investigating police officers a remarkable and accurate description of the defendant prior to confrontation. The confrontation at the police station occurred within a short time of the initial observations by Chris of defendant. Despite Chris’ alleged initial misidentification of Gage, if so, he quickly recalled the mistake, if any, and was certain of defendant’s identification at the time of confrontation at the police station. Additionally, Chris’ in-court identification of the defendant had sources independent of the confrontation at police headquarters. Such independent sources are sufficient to overcome claims of unnecessary suggestiveness. State v. Jackson, 477 S.W.2d 47, 51[4] (Mo.1972). Defendant’s urgings on appeal that Chris’ identification of him was questionable because he asserted defendant was wearing blue jeans at the time of the crimes, whereas the witnesses said he was clad in plaid dress slacks when seen the evening of the events, and had failed to notice defendant’s arm tattoos, were matters to be considered and resolved by the jury. We rule that the trial court properly overruled defendant’s motion to suppress the identification testimony and properly admitted Chris’ subsequent in-court-identification recountings. State v. Burnette, 549 S.W.2d 352, 353[2, 3] (Mo.App.1977).

Defendant’s Second Point Relied On: This prolixiously written point, in essence, claims that the trial court erred in failing to suppress the evidence taken from and the photographs taken of the house where the crimes were committed because no search warrants had been obtained and, as a result thereof, defendant’s various constitutional rights had been violated.

As regards the complained of searches and photographing after the first entry into and search of the house by the officers, it suffices to note that all such searches and photographing were consented to by defendant’s cotenants who possessed equal access to and control over the premises. A cotenant may give permission to search shared property [State v. Sutton, 454 S.W.2d 481, 484[2] (Mo.1970); Parton v. State, 545 S.W.2d 338, 341[10] (Mo.App. 1976)] and evidence disclosed by reason of such a search may be used against any such cotenant. United States v. Twiford, 315 F.Supp. 801, 803[2] (W.D.Mo.1970).

We agree with the state that neither the initial entry into the house without a warrant to search for the suspected felon, nor the search thereof without a warrant was invalid. Under the circumstances of this case “the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948).

A number of considerations have been used in qualifying “exigent circumstances” or “urgent need” to meet the ultimate test of avoiding as “unreasonable” warrantless searches. Among the factors of the test are: “First, that a grave offense is involved, particularly one that is a crime of violence. . . . Second, . . . that the suspect is reasonably believed to be armed. . . . Third, that there exists not merely the minimum of probable cause, . but beyond that a clear showing of probable cause, including ‘reasonably trustworthy information’, to believe that the suspect committed the crime involved. Fourth, strong reason to believe that the suspect is in the premises being entered. Fifth, a likelihood that the suspect will escape if not swiftly apprehended. Sixth, the circumstance that the entry, though not consented, is made peaceably.” Dorman v. United States, 140 U.S.App.D.C. 313, 321, 435 F.2d 385, 392-393[11] (1970), and cases there cited.

We see no basis for disturbing the obvious judgment of the trial court that the instant case presented the type of. exigent circumstances and urgent need that justified an entry at 917 E. Normal without the delay incident to a warrant. No doubt exists but that grave offenses involving violence to an 11-year-old boy were involved which entailed the use of a weapon with which the suspect could still have been armed. The officers, combining Chris’ recount-ings, his brother’s sightings of the bicycle and their own observance of the premises before entering, had reasonably trustworthy information that the suspect was an occupant of the property and was probably in the structure. There was at least a likelihood that a delay might permit escape, when and if the suspect came to realize that Chris had become free of his bonds and left the house. Albeit the police possessed no special knowledge that the suspect was home at the time of entry, the concepts of probable cause and reasonableness prima facie justified looking for a man at his home about 9:45 p. m.

In our view, the sneaker and shotgun found and seized by the officer in the basement on the first occasion were not the result of a search. Upon entering the house the police were not looking for things but for a person. The officers had a right, as above seen, to seek through the house in search of the suspect who could present a security risk, interfere with arrest or escape. Discovery of the shotgun and sneaker was simply incidental to a search of the house for the reported suspect. The items found in the basement fell within the plain view of the officer who had the right to seize them for their introduction into evidence. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); United States v. Briddle, 436 F.2d 4, 7 (8th Cir. 1970), cert. denied 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 824 (1971); State v. Reask, 409 S.W.2d 76, 83[6] (Mo.1966); State v. Vineyard, 497 S.W.2d 821, 826[8, 9] (Mo.App.1973).

Defendant’s Third Point Relied On: “The court erred in overruling appellant’s motion for judgment of acquittal at the close of the state’s case-in-chief and at the close of all the evidence for the reason that there was insufficient circumstantial evidence to sustain a judgment of conviction, especially in view of the uncertain testimony of Chris ., and the lack of any other evidence linking appellant to the crime.”

The first thing wrong with the point relied on, is that any error the trial court may have committed in failing to sustain defendant’s motion for judgment of acquittal (Rule 26.10, V.A.M.R.) at the close of the state’s case, was waived when defendant introduced evidence in his own behalf. State v. Lewis, 526 S.W.2d 49, 52[1] (Mo.App.1975). The second thing wrong with the point is that Criminal Rule 28.18, V.A.M.R., requires that Civil Rule 84.04(d), V.A.M.R., be complied with in appeals in criminal cases, and the bald assertion that there was insufficient circumstantial evidence to sustain a conviction, does not sate the requirements of the latter rule because it does not state wherein and why the evidence is claimed to be insufficient. State v. Robinson, 555 S.W.2d 667, 669[1] (Mo.App.1977); State v. Brown, 554 S.W.2d 574, 580[15] (Mo.App.1977).

Defendant’s Fourth Point Relied On: We deem it unnecessary to iterate the point which complains that the trial court erred in giving instruction number 7 because the point is not preserved for appellate review as, contrary to Rule 84.04(e), V.A.M.R., the instruction is not set forth in the argument portion of defendant’s brief. State v. Crowell, 560 S.W.2d 889, 890[2] (Mo.App.1978); State v. Stuebinger, 552 S.W.2d 338, 339[3] (Mo.App.1977); State v. Rantz, 546 S.W.2d 200, 201[1] (Mo.App.1977).

Judgment affirmed.

FLANIGAN, P. J., STONE,’ J., and CAMPBELL, PYLE, MOORE and KENNEDY, Special Judges, concur.

      . Although “showup” and “lineup” are sometimes used interchangeably, more properly the term “showup” alludes to a situation where one suspect is shown by himself to a witness or witnesses, whereas in a “lineup” an array of persons, including a suspect, is presented to a witness or witnesses. State v. Johnson, 538 S.W.2d 73, 75[1], note 2 (Mo.App.1976).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Floyd Rush EDWARDS, Defendant-Appellant.
    No. 39666.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 19, 1978.
    John M. Putzel, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, counsel on appeal only, for defendant-appellant.

      John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction by a jury of Robbery First Degree. Under the Second Offender Act the court assessed his punishment at 25 years imprisonment.

Defendant’s first point on appeal is that the “court erred in denying appellant’s Motion for Judgment of Acquittal at the close óf the State’s case because the testimony of the State’s witnesses was so conflicting and contradictory as to be insufficient to support a finding of guilt . . .” This contention was not assigned as error in his motion for a new trial and is not preserved for appellate review. State v. Guelker, 548 S.W.2d 521, 523 (Mo. banc 1976). A review under Rule 27.20(c) reveals that defendant’s point is without merit.

On the evening of November 6, 1976, William Towns was employed as a night clerk in the Edison Hotel in St. Louis. Around midnight, defendant approached him, produced what appeared to be a pistol, and demanded money. Towns gave the man two one-dollar bills and some change. He then successfully activated the silent alarm. As the defendant left the hotel, Towns observed him tossing the weapon behind an elevator shaft. This was also observed by the two officers answering the alarm. The officers immediately arrested defendant. Towns positively identified defendant at the trial.

There was substantial evidence to support the jury’s verdict in spite of conflicts in the testimony. Conflicts in the evidence, the determination of the credibility of witnesses, and the weight to be given their testimony are factors within the province of the jury. State v. Kellick, 521 S.W.2d 166, 167 (Mo.App.1975).

Defendant’s second point is also without merit. He claims that the court erred in admitting into evidence a .22 caliber tear gas gun, which was the gun found near the elevator shaft. Towns identified it as the gun used, but stated he thought it was .45 caliber.

The gun was admissible. Identification of an exhibit need not be wholly unqualified in order to make it admissible. State v. Russ, 537 S.W.2d 216 (Mo.App.1976). When shown the gun at the trial, the victim testified, “Yes, sir, that’s the one.” His statement that he thought it was a .45 caliber pistol would only affect the weight to be given such evidence by the jury.

Judgment of the trial court is affirmed.

CLEMENS and GUNN, JJ„ concur.


text:
    Theodore Roosevelt JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40356.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 19, 1978.

      James W. Sherby, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto and Michael Elbein, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for respondent.
   CLEMENS, Judge.

Movant Theodore Roosevelt Johnson (hereafter “defendant”) has appealed the summary denial of his Rule 27.26 motion wherein he challenged his conviction for murder and lesser offenses. On direct appeal this court affirmed. State v. Johnson, 539 S.W.2d 493 (1976).

On this appeal defendant raises two related points: That the trial court erred by failing to appoint counsel to represent him on his motion and failed to make findings of fact and conclusions of law. (Rule 27.-26(h), (i) and (j)). The determinative issue is whether defendant’s motion alleged facts which warranted an evidentiary hearing.

Preliminarily, we note the case of Fields v. State, 572 S.W.2d 477, (Mo. banc, 1978), dealing with a post-conviction movant’s rights to counsel and an evidentiary hearing. That opinion is expressly prospective and does not therefore control our disposition of this appeal.

Defendant’s Point Relied On II challenges the summary denial of his motion. In Stout v. State, 543 S.W.2d 797[1] (Mo. App.1976) the court held: “. . . 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.” This leads us to the crux of this appeal — whether defendant’s pleaded facts warranted an evidentiary hearing. If not, the trial court did not err in summarily denying the motion. We examine the seven grounds alleged in defendant’s motion.

By his first ground defendant challenges the qualifications of the grand jurors who indicted him. Defendant could have raised this issue on direct appeal but he did not. We hold this was a “deliberate bypass” and cannot be raised on a Rule 27.26 motion. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); and compare McCrary v. State, 529 S.W.2d 467[7, 8] (Mo.App.1975).

By his second, third and seventh grounds defendant claims ineffective assistance of counsel concerning security measures at trial, the voluntariness of his incriminating statement to police, and improper cross examination of an identification witness. Each of these three issues was raised on direct appeal and denied on its merits. Hence, nothing is preserved for review on defendant’s Rule 27.26 motion. Mayo v. State, 524 S.W.2d 181[2, 8] (Mo.App.1975).

Defendant’s fourth, fifth and sixth grounds charge ineffective assistance of counsel by inadequately drafting the Points Relied On section of his appellate brief. We find no error in denying these grounds because relief from claimed appellate defects are beyond the scope of a Rule 27.26 motion. Hemphill v. State, 566 S.W.2d 200[15-16] (Mo. banc 1978).

Since none of defendant’s pleaded grounds entitles him to relief under Rule 27.26, no evidentiary hearing was required. Smith v. State, 513 S.W.2d 407[1] (Mo. banc 1974).

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    STATE of Missouri, Respondent, v. Elvera RUSSELL, Appellant.
    No. 39772.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 28, 1978.
    Thomas E. Shipp, Jr., Sp. Asst. Public Defender, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

A jury found defendant Elvera Russell guilty of second-degree murder and the judgment imposed fifteen years’ imprisonment. She has appealed, challenging only the seating of two jurors.

First, the trial court denied defendant’s challenge for cause as to venireman Tommy Threlkeld. Mr. Threlkeld stated on voir dire that he had an opinion of defendant’s guilt from reading a newspaper account; he was asked if he could put that out of his mind and determine the facts only as they came from the witness stand. According to the original transcript, which the state challenged, Mr. Threlkeld answered, “I don’t think so.” This answer is the gist of defendant’s present point that the trial court erred in denying her challenge to the venireman.

Pursuant to Rule 81.12(c), the trial court held an evidentiary hearing on the state’s motion to correct the transcript by striking the word “don’t” from Mr. Threlkeld’s answer. Based on testimony, of juror Threl-keld, both trial counsel and the court reporter — and on the trial court’s own recollection — the transcript was ordered corrected to change Mr. Threlkeld’s answer from “I don’t think so” to “I think so.” Defendant does not challenge the trial court’s correction order.

Considering the transcript as thus corrected, we find the trial court did not err in denying defendant’s challenge to venireman Threlkeld and her first point is denied.

Defendant’s second point relied on is unique and does not charge a trial court error. After final judgment, for the first time on appeal, defendant declares that she had learned one of the jurors, Mary E. Fetch, might have failed to disclose her membership in “The Women’s Crusade Against Crime” and her relationship with members of the St. Louis Police Department and the Circuit Attorney’s office. Defendant contends she was thus precluded from having a fully qualified jury panel.

Because defendant contends this was “plain error,” we have examined the voir dire. The jurors were questioned in general by the court — and Mrs. Fetch in detail — by both counsel. No question called for an answer about Mrs. Fetch’s alleged relationships which defendant now challenges. The challenge is nebulous and the record affords no basis for us to conclude under Rule 79.04 that defendant suffered from manifest injustice or miscarriage of justice. The denial of defendant’s point on appeal is without prejudice to her right, if any, to seek relief under Rule 27.26.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    Richard HARTRUM, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39764.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 12, 1978.
    John J. Allan, St. Louis, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for respondent.
   CLEMENS, Judge.

Movant (hereafter “defendant”), having previously pled guilty to second degree murder and receiving a 15-year sentence, filed a motion under Rule 27.26. The trial court denied the motion without an eviden-tiary hearing and defendant has appealed. He now claims error on the ground there should have been an evidentiary hearing to determine whether he pled guilty “under a misapprehension of the nature of the charge.” Defendant also contends the trial court erred by not making specific findings of fact and conclusions of law. These contentions in turn.

The guilty-plea transcript refutes defendant’s contention of misapprehension. In meticulous detail the court had questioned him as to the details of the homicide and the consequences of pleading guilty, all of which defendant acknowledged. Without detailing the gruesome facts, defendant’s admissions showed he had quarreled with the victim and without provocation had stabbed him to death. His factual admissions refute his present contention that he pled guilty without understanding the charge that he killed the victim “willfully, maliciously and premeditatively.”

“The test is not a particular ritual or whether each and every detail is explained to a defendant but whether in fact the plea is voluntarily and intelligently made.” Giles v. State, 562 S.W.2d 106[1] (Mo.App. 1977). See also Weaver v. State, 520 S.W.2d 640[4] (Mo.App.1975) holding: “Where the record made at the time accused’s plea of guilty was entered and accepted was sufficient to show the plea was made voluntarily with understanding of the nature of the charge and that accused was not entitled to relief from sentence, an evi-dentiary hearing was not required on accused’s motion to vacate.”

Since the guilty-plea record squarely refutes defendant’s first contention, we hold the trial court properly denied his motion without an evidentiary hearing.

As said, defendant contends the trial court erred in denying his motion without making specific findings of fact and conclusions of law. Not so. In Morgan v. State, 569 S.W.2d 16[1] (Mo.App.1978) we ruled: “The summary denial of movant’s motion was equivalent to findings of fact and conclusions of law in opposition to the grounds set out in his motion. See also Stout v. State, 543 S.W.2d 797, 798 (Mo.App.1976), where the court held that the denial of movant’s motion was equivalent to findings and conclusions opposed to grounds stated in movant’s motion; and if the court was correct in its conclusion, its order was sufficient.” So it is here.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: BROCK, Justice.

text:
    CRABTREE MASONRY CO., INC., Petitioner, v. C & R CONSTRUCTION, INC., Respondent.
    Supreme Court of Tennessee.
    Dec. 15, 1978.
    William M. Barker, Chattanooga, for petitioner; Dietzen, Dietzen & Barker, Chattanooga, of counsel.
    Herbert A. Thornbury, Chattanooga, for respondent; Wolfe, Thornbury & Rotroff, Chattanooga, of counsel.
   OPINION

BROCK, Justice.

This is an action by a subcontractor against the general contractor to recover damages for breach of the subcontract. Crabtree Masonry Co., Inc., sued C & R Construction, Inc., and recovered a jury verdict, approved by the trial judge, in the sum of $3,665.00. The Court of Appeals reversed the judgment and dismissed the complaint. We granted certiorari.

On June 3, 1975, C & R was granted the contract to construct an addition to Baroness Erlanger Hospital in Chattanooga. C & R, in turn, entered into a subcontract with Crabtree on June 19,1975, for performance of all the masonry work on the project.

Under the contract, Crabtree was scheduled to commence work on July 31, 1975. However, work was not started at that time because a dispute arose between Crabtree and C & R Construction. At issue in the dispute was whether Crabtree should make a rebate of $1,200.00 to $1,400.00 to C & R. The rebate was demanded by C & R and arose out of a misunderstanding between the parties respecting the question whether certain foundation walls of the proposed structure were required by the building plans and specifications to be of masonry construction and, thus, constituted a part of the obligation of Crabtree under its subcontract, or were to be of concrete which would not constitute any part of the obligation of Crabtree under the subcontract. This misunderstanding was settled by the architect who clarified or modified the plans and specifications to eliminate the wall entirely. At this point C & R insisted that Crabtree give a rebate as above mentioned, but Crab-tree refused to do so, insisting that it had not made any provision in its bid or in the contract price of the subcontract for the walls in question to be of masonry construction and, therefore, that there was no occasion for a rebate.

The reversal by the Court of Appeals of the jury verdict and judgment of the trial court was based upon its conclusion “. . . that under the undisputed proof reasonable minds must agree that plaintiff’s refusal to begin construction because of the dispute over the rebate was not warranted and that defendant was justified in terminating the contract.”

It is the insistence of Crabtree in this Court that the Court of Appeals in reaching that conclusion has failed to give due and proper weight to the verdict of the jury, approved by the trial judge, and has taken upon itself the function of choosing between conflicting evidence and inferences to be drawn therefrom, thereby depriving Crabtree of its right to a jury trial. Crab-tree insists that there is material evidence in the record to support jury findings that (1) it did not refuse to begin work at the appointed time; that, instead, it was C & R who refused to permit Crabtree to begin work unless and until Crabtree should agree to make the claimed rebate; and (2) in any event, Crabtree was justified in refusing C & R’s demand for the rebate.

It is the time honored rule in this State that in reviewing a judgment based upon a jury verdict the appellate courts are not at liberty to weigh the evidence or to decide where the preponderance lies, but are limited to determining whether there is material evidence to support the verdict; and in determining whether there is material evidence to support the verdict, the appellate court is required to take the strongest legitimate view of all the evidence in favor of the verdict, to assume the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and to discard all to the contrary. Having thus examined the record, if there be any material evidence to support the verdict, it must be affirmed; if it were otherwise, the parties would be deprived of their constitutional right to trial by jury. City of Chattanooga v. Rogers, 201 Tenn. 403, 299 S.W.2d 660 (1956); D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897 (1947); City of Chattanooga v. Ballew, 49 Tenn.App. 310, 354 S.W.2d 806 (1961); Dynamic Motel Management, Inc. v. Erwin, Tenn.App., 528 S.W.2d 819 (1975). Of course, these principles apply as well in a breach of contract case tried by a jury as in a personal injury or other tort action.

After a review of the evidence in this case under the discipline imposed by the above cited principles and authorities, we have concluded that the verdict of the jury is supported by the evidence and that the Court of Appeals erred in directing the verdict and dismissing the complaint. Thus, we find evidence which, if believed by the jury, would support a finding that Crabtree did not refuse to begin construction but, rather, that C & R refused to agree for Crabtree to begin construction until it should agree to pay the rebate. For instance, Mr. Crabtree testified as follows:

“Q. That would have been on the 7th of August?
“A. Yes Sir.
“Q. All right. And tell us, who did you talk to in that conversation on Thursday?
“A. Mr. Morrison.
“Q. Mr. Morrison, and tell us what you said to him and what he said to you.
“A. Well, I called, asked if he was ready for me to start down there, and he said no, said that we are going to have to talk about this rebate, and I told him that I’d decided I couldn’t afford to give him money back because I didn’t figure it in there, and the architect had taken it out .
“Q. (Interposing) Didn’t figure what in there?
“A. The walls and the materials in it.
“Q. In other words, your bid originally didn’t include the walls .
“A. (Interposing) No, Sir, it did not.
“Q. So you were saying you couldn’t give a rebate
“A. (Interposing) I couldn’t give something I didn’t . . . cause that was the reason I was going to do it on Saturday.
“Q. All right. What did he say when you told him you would not give a rebate?
“A. Well, they decided they was going to take my contract back from me, and he read a letter to me over the phone.”

The mentioned letter, although dated August 7, 1975, was postmarked August 13, 1975. Following the telephone conversation above mentioned, Crabtree wrote a letter to C & R Construction Co. in which he stated:

“Dear Sir:
“In answer to our telephone conversation today, I feel that we have such a different interpretation of the plans, specs, and contract document that we both have signed we need to come to some agreement.
“As I understand the plans, specs and contract I stand ready to man the job with adequate means as necessary to complete the job as specified. The foundation walls that are in question have been omitted by the engineer because they evidently are not part of the structure. There is no indication on the plans that these walls were intended to be of masonry construction.
“You have requested that I make a cash rebate for these walls in question. I cannot agree to a rebate for materials and labor not figured in the cost of the job. “You said on the telephone today that you intended to terminate my contract. I have quite a lot of time and expense preparing to start this project; therefore, I feel before my contract can be terminated we should come to an arbitration to determine if I am at fault.
Sincerely,
Dickey Crabtree”

In our opinion, the above quoted testimony of Crabtree and the letter written by him on August 7, 1975, to C & R Construction constitute material evidence from which the jury could have found that Crab-tree did not refuse to begin work but, in fact, offered to perform his contract and submit the matter of a rebate to arbitration, as provided by Article 14 of the contract document.

Moreover, we also find evidence in the record from which the jury could find that Crabtree was justified in refusing to agree to a rebate to C & R Construction Co. as demanded by the latter. Thus, Mr. Crab-tree testified that his bid and the contract price for work to be done under the subcontract did not include any amount for construction of the walls in question and, therefore, since no such amount had been included there was nothing from which a rebate could be taken in this respect. There was also evidence from which the jury could have found that C & R Construction was granted the option by the architect of building the disputed west wall of masonry construction or of precast concrete and that Crabtree made known to C & R Construction its willingness to work on weekends, if necessary, and to furnish the labor and materials necessary for building said west wall of masonry construction if C & R should choose that option; but, that C & R, instead, chose the option of building the wall of precast concrete. In any event, the jury could have found from the evidence that Crabtree was willing to submit the rebate issue to arbitration as required by Article 14 of the contract and that C & R Construction was unwilling to do so and terminated the subcontract with Crabtree Masonry without affording the latter an opportunity to arbitrate the rebate issue. When C & R Construction finally agreed to arbitrate the issue on August 25, 1975, it had already cancelled its subcontract with Crabtree and engaged another subcontractor to do the work.

The judgment of the Court of Appeals is reversed and that of the trial court is affirmed, with interest. Costs incurred upon appeal are taxed against C & R Construction Co. and surety.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.