author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Raymond L. SMITH, Appellant.
    No. 30231.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 4, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      Clifford A. Cohen, Public Defender, Gary L. Gardner, Kevin R. Locke, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown, III, Special Asst. Atty. Gen., Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction entered on jury verdict finding Raymond L. Smith guilty of burglary in the second degree and stealing in connection therewith. Sentence, under the second offender act, was to ten and five years on the respective charges, to run concurrently.

The charges arose out of entry into a residence in Kansas City on January 25, 1978. The resident had been away and upon returning noted a suspicious looking vehicle parked across the street from her house. She noted the license number as the car left and then entered her house to find that it had been broken into and several items of property were missing. The victim reported the license number of the suspicious vehicle and later that evening the vehicle was located by police. Appellant, one of four occupants, was placed under arrest. Subsequently a search warrant was obtained to search the residence of appellant’s girl friend, near the scene of the arrest. Several items of property stolen in the burglary were uncovered. Appellant’s fingerprints were found on a stolen television set. At appellant’s trial, one of the co-participants in the burglary testified for the state and detailed appellant’s participation. Defense witnesses attributed the crime to the cooperative witness.

On this appeal, the assignments of error relate to two occurrences in the preliminary stages of the trial.

Prior to voir dire, Mr. Charles Brown, an Assistant Public Defender who represented appellant, informed the judge that appellant wanted a continuance in order to replace him with retained counsel. Brown explained that he had just learned that a bracelet recovered from a paddy wagon in which appellant rode after his arrest had been identified as a part of the burglary loot. When he related this fact to his client, appellant was upset because this matter had not previously been discussed with him. He told Brown that he did not feel that he could get a fair trial with Brown’s representation and asked him to request a continuance so that he could hire a private attorney. Brown said that he had been aware of the existence of the bracelet but that he had learned of its identification only that morning. The prosecutor explained that the police had obtained the identification only a few days earlier. Appellant also spoke to the court and repeated the request on the same basis.

The court denied the request for a continuance. Trial' proceeded and Brown represented appellant. By his motion for new trial appellant charged that the trial court erred in refusing the continuance and that he was prejudiced by being forced to proceed to trial with an attorney whom he no longer desired to have represent him in the case. On this appeal, appellant enlarges upon this assignment to add that the trial court’s refusal to permit a continuance to retain new counsel deprived him of effective assistance of counsel.

The granting of a continuance is within the discretion of the trial court and every intendment in favor of the trial court’s action is indulged on appeal. State v. Cheesebrew, 575 S.W.2d 218, 225[18] (Mo.App.1978). A criminal defendant has no absolute right to counsel of his own choice; the right to counsel “ * * * is limited to the extent that it impinges on the public’s right to effective and efficient administration of justice, * * State v. Jefferies, 504 S.W.2d 6, 7[1, 2] (Mo.1974). Only where the accused can demonstrate an irreconcilable conflict with appointed counsel is he entitled to a continuance to obtain new counsel on the eve of trial. U. S. v. Hart, 557 F.2d 162 (8th Cir. 1977).

When viewed in the light most favorable to the trial court’s decision, the record reveals that appellant was concerned about recently discovered State’s evidence and felt that only a continuance and the retention of private counsel could help him refute it. Appellant did not charge his counsel with any dereliction or lack of preparation and expressly denied that he sought new counsel because Mr. Brown was not competent. Mr. Brown informed the court that he was prepared for trial and his conduct of the proceeding substantiates this. On this state of the record it cannot be said that the trial judge abused his discretion when he denied appellant’s motion for a continuance immediately prior to the commencement of trial. It is true that “ * * * an accused who is forced to stand trial with the assistance of appointed counsel with whom he has become embroiled in an irreconcilable conflict is denied [the] effective assistance of counsel.” U. S. v. Hart, supra. However, the situation appellant seeks to label an “irreconcilable conflict” was hardly that. An irreconcilable conflict exists where there is a total breakdown of communication between attorney and client and no such breakdown occurred here. U. S. v. Young, 482 F.2d 993 (5th Cir.1973). Except for appellant’s remarks before the trial began, the record demonstrates no lack of communication between appellant and his counsel. Mr. Brown conducted the defense in a professional manner and appellant in no way faults his conduct during the trial.

Appellant complains of the trial court’s refusal to discharge the jury panel in the light of the following circumstances.

Just as voir dire examination of the panel began, appellant delivered the following remarks (omitting interruptions for objections, etc.):

“THE DEFENDANT: May I speak to everybody in the courtroom — * * * The Judge won’t let me get paid counsel because — * * * they came up with some last moment evidence. And I don’t want no jury trial. I don’t — these are not my lawyers. These are — this is a different man than I had in the first place. They just come up — this is going to be a flimflam. I do not want a jury trial. I do not want a jury trial. I do not want a jury trial. * * This was supposed to be settled before we came here.”

A motion to quash the panel by defense counsel was overruled. Subsequently when defense counsel questioned the veniremen about any problem with the presumption of innocence, Venireman Hobbs stated:

“Well, I do because he has got up and admitted that he is guilty almost, a while ago, so I couldn’t—
******
“[The following proceedings were had IN THE PRESENCE, BUT OUT OF THE HEARING OF THE JURY]:
“MR. BROWN: Judge, again—
“THE COURT: What was his comment?
“MR. BROWN: He said that he admitted his guilt.
“MR. LOCKE: That he admitted his guilt.
“THE COURT: But he didn’t.
“MR. TURNER: I didn’t hear him.
“MR. BROWN: I think at this time—
“THE COURT: The Court will admonish him that wasn’t the statement he made.
“MR. BROWN: At this time I would like to renew our previous motion that we be allowed to select from a new panel. This defendant has already got up and prejudiced himself with this panel.

“THE COURT: Mr. Hobbs?

“MR. BROWN: Yes, Mr. Hobbs, but in this panel’s mind, and perhaps it would be prejudiced even greater at this point.
“MR. TURNER: Well, I assume that Mr. Hobbs, who is under oath, spoke the truth that he told him that he would have to—
“THE COURT: I am going to excuse him anyway.
“MR. TURNER: But I think his comment was provoked by the defendant’s outburst and I think the defendant is stuck by any prejudice he has brought on himself.
“THE COURT: I will overrule your motion. I will admonish the panel that remark was not made by Mr. Smith.”

In this court, appellant contends that the trial court should have sustained the motion to discharge the panel, because the remarks of Hobbs, taken with appellant’s own remarks, caused the panel to be prejudiced against appellant.

Appellant acknowledges the general rule that disqualification of one juror for bias or expression of an opinion does not require that the entire panel be discharged but asserts that Venireman Hobbs’ statement was so inflammatory and prejudicial as to come within the exception to the general rule set forth in dicta in State v. Weidlich, 269 S.W.2d 69, 71[3-5] (Mo.1954). This contention must fail because Venireman Hobbs’ statement “ * * * was not so evidently inflammatory and prejudicial that it may be said that the appellant’s right to a fair trial has been infringed or that the trial court abused its discretion in refusing to quash the entire panel * State v. Weidlich, supra. “The question whether the panel was affected by the improper statement of an opinion or remark made upon voir dire [is] a question largely directed to the discretion of the trial court, * * * Cluck v. Snodgrass, 381 S.W.2d 544, 552[11, 12] (Mo.App.1964). See also State v. Taylor, 324 S.W.2d 643, 648[9, 11] (Mo.1959).

Appellant argues that the trial court’s remarks exacerbated the problem. He points out that in Weidlich and Taylor, the trial court’s admonition was to disregard the remarks of the veniremen. Appellant complains that the trial court’s remarks in this case, particularly in stating that he heard no admission of guilt, precluded trial counsel from eliciting from other veniremen the response that they placed the same interpretation on appellant’s remarks as Hobbs gave them.

The remarks of the trial court did not go beyond the proper limits of its authority in controlling the voir dire. The court correctly pointed out that appellant had not admitted his guilt. The court’s statement was designed to reinforce the presumption of innocence surrounding the appellant. To say that it prevented veniremen from answering affirmatively the next question asked them by defense counsel is unwarranted. No abuse of discretion has been demonstrated.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: MANFORD, Judge.

license: Public Domain

text:
    Larry M. MUZA et al., Appellants, v. CASH BARGAIN LUMBER COMPANY et al., Respondents.
    No. 29851.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 4, 1979.
    As Modified on the Court’s Own Motion Sept. 4, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      Richard E. Duggan, Kansas City, for appellants.
    Max W. Foust and G. Spencer Miller, Kansas City, for respondents.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Suit for damages for malicious prosecution. At the close of plaintiff’s evidence, trial court sustained defendants’ motion for directed verdict. This appeal followed.

By virtue of the trial court’s disposition of this cause, review of the evidence must be undertaken, and the court is required to review such evidence in a light most favorable to appellants’ theory of the case, including any and all inferences to be drawn therefrom. Russell v. Russell, 540 S.W.2d 626 (Mo.App.1976).

Appellant Larry Muza was a subcontractor. Appellant Howard Thiele was a career soldier. The two met in Vietnam and a continued friendship between them and their families developed. Thiele was in town between military assignments, visited Muza and his family and accompanied Muza to respondents’ store on September 15,1975.

The evidence revealed Muza was a subcontractor for Atlas Construction Company. He was a regular customer in respondents’ store and for about a year and one-half, would purchase materials and tools from respondent. As a common practice, Muza would charge these goods to Atlas. Atlas would pay respondent, and then later, adjust this cost between Atlas and Muza. The evidence further revealed such purchases amounted to something between $75,000.00 and $100,000.00 over this period. Cash Bargain Lumber Company had two co-managers in its store. One was Jim Cupp, the other, Rodney Farrington. Muza knew Cupp better than Farrington, and Cupp and Muza had a friendly relationship when Muza would enter the store.

On September 15, 1975, Muza and Thiele entered the respondent store. They needed lumber and hardware for use on a job site that particular day. Upon entry, Muza commented to Cupp, “What can I steal today?” Cupp responded by saying, “about anything you want to!” or words to that effect.

The evidence establishes that the various purchases to be made by Muza were in two different parts of the respondent store, by virtue of the nature of the goods. Hardware purchased was in one section and lumber materials in another.

During the course of purchasing hardware items, appellant stated he was shown (by Cupp) a tile-cutter tool and he decided to purchase it. Muza testified he told Cupp he would have the tile-cutter charged in the other section of the store. Muza and Thiele then proceeded to the other section of the store. The evidence is controverted at this point as to who carried the tile-cutter and whether it was placed on the counter in the other section of the store.

During all of this, the other co-manager, Rodney Farrington, was observing Muza and Thiele. The evidence is controverted as to whether Farrington observed the two continuously, but it appears somewhat clear that his observation of them was for the greater portion of the time.

The counter man for respondent wrote up a sales ticket, which Muza placed in his pocket. Thiele went outside with the tile-cutter and other items. He placed them in Muza’s pickup truck. The evidence is controverted on the exact location within the truck as to whether the items could be seen. Thiele testified he placed the items in plain view and Farrington testified that when he went to the truck, the items could not be seen from the passenger’s side.

Immediately following Farrington’s going to the truck and returning with the tile-cutter, he confronted Muza and Thiele. He inquired if the tile-cutter was on the sales ticket and Muza said it was on it. A review of the ticket proved it was not listed. Muza then requested the item be included, but Farrington refused, advising Muza he was going to call the police.

Muza testified that before leaving the “yard” of the respondent company, he always had the sales ticket checked. Far-rington testified he was not aware of this practice.

The police arrived and Muza and Thiele were arrested for “shoplifting”. Disposition of the charges occurred some six weeks later, when after trial, Muza and Thiele were found not guilty in municipal court. This action followed.

Upon trial, appellants dismissed their claim against Farrington, proceeded against respondent corporation and called Farring-ton as a witness for the plaintiff. After the appellants rested their case, respondents moved for a directed verdict, which was granted. The trial court concluded the following in sustaining respondent’s motion:

(a) Appellants failed to carry their burden of proof as to the absence of probable cause or reasonable grounds for instigating prosecution against appellants.

(b) Appellants failed to carry their burden of proof as to malice.

The trial court reached the above conclusion upon the premise there were no substantial or material facts in dispute to warrant submission of the issues to the jury.

A third, and somewhat unique feature of this case, surrounds the claim by respondent of a complete legal defense of reliance upon advice of counsel. The trial court agreed this was a complete defense under the facts of this case.

Evidence on this third point came from the testimony of Farrington. He stated after observing Muza and Thiele, he called his brother, a recently admitted attorney, and was advised by his brother to proceed to have Muza and Thiele arrested. Since this is a point raised on appeal, a more detailed consideration of the facts surrounding this point will be undertaken.

Appellants raise four points on appeal. Error is contended in sustaining the motion for directed verdict on the question of no probable cause for arrest and prosecution because the facts in evidence established a submissible ease; that it was error to sustain a directed verdict on the issue of advice of counsel because of failure to disclose material facts to counsel; that it was error to have admitted hearsay evidence and that it was error for the trial court to refuse to permit appellants to submit evidence of respondents’ conduct prior to and subsequent to the arrest of appellants.

The necessary elements embodied within a valid claim for malicious prosecution are:

(a) Commencement of prosecution of proceedings against present plaintiff,

(b) Its legal causation by present defendant,

(c) Its termination in favor of present plaintiff,

(d) Absence of probable cause for such proceedings,

(e) Presence of malice therein and

(f) Damage to plaintiff by reason thereof.

For a restatement of this criteria, see Palermo v. Cottom, 525 S.W.2d 758, 763 (Mo.App.1975).

On these six requisites, as interrelated with appellants’ first alleged point of error, only two are of importance herein. The evidence is uncontroverted as to (a), (b), (c) and (f) referred to above. In addressing the remaining two elements, resolution of appellants’ first point of error can be achieved.

The question of absence of probable cause and the presence of malice are at best difficult questions to determine. A brief reference to the facts is necessary to a proper review of the court’s decision of no submis-sible issue.

On the question of probable cause, Far-rington, of course, is the central figure. The issue to be resolved herein is whether the evidence, even though provided solely by the appellant, raised an issue to be submitted to the jury.

Farrington admitted in his testimony to overhearing Muza and Cupp discuss the charging of the tile-cutter to the Atlas account in another section of the store. In addition, evidence was controverted as to whether Thiele ever placed the tile-cutter on the sales counter for purposes of being included on the sales ticket. Thiele testified he had done so. Farrington testified he never observed the cutter on the counter. Appellant Thiele testified the tile-cutter could be easily viewed from outside the truck. Farrington testified to the contrary.

Further consideration of the reasonableness of Farrington must include the noncontroverted testimony of appellant Muza relative to the customary procedure of checking his list of items before leaving the premises. The evidence further establishes that Farrington was aware of a previous delinquent account due respondent by Muza. The evidence further established that Farrington neglected to inquire of fellow employee, Cupp, as to whether Cupp failed to include the tile-cutter on the ticket. No investigation was made by Farring-ton and this failure lends itself to the basic question of whether Farrington’s conduct was reasonable under the circumstances. This is a fact in dispute of a material nature. Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479 (Mo.1972).

The record reveals that when Farrington confronted Muza, Muza claimed the tile-cutter was on the sales ticket, presented the ticket and upon it being shown the cutter was not on the ticket, Muza immediately directed Farrington to include it. This directing was met with refusal and the response that he, Farrington, was going to have Muza prosecuted for shoplifting.

By virtue of the conflict in testimony and the salient factors surrounding the ultimate decision by Farrington to prosecute, it was error for the trial court to conclude there was no issue to submit to a jury on the question of whether Farrington’s actions, in light of all attending circumstances, were reasonable.

While it is true that actions for malicious prosecution do not find favor in the law upon the public policy that citizens should “be not deterred by fear of unpredictable consequences from a bona fide resort to the duly constituted authorities and tribunals for the vindication of the interests of society in matters of public justice”, Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127, 125 S.W.2d 75, 79 (Mo.1939), the same is not the equivalent to nullifying this form of action in tort, see Palermo v. Cottom, supra at 761.

Upon the question of the reasonableness of Farrington’s actions, agreement with the trial court that as a matter of law, appellants failed to sustain their burden of proof, on this question, cannot be reached. It was error for the trial court to have ruled as a matter of law no material fact was in issue upon this question.

As to the question of malice, it must be clarified that the term malice does not mean ill will or intention. This, in fact, was pointed out by the trial court. As it has been defined, malice is “the intentional doing of a wrongful act without legal justification and may be inferred from the absence of probable cause”, see Palermo v. Cottom, supra at 765. Thus, this question, by virtue of the submissibility of the issue or reasonableness of the actions of Farring-ton, should have been left to the jury. It was error for the trial court to conclude as a matter of law this question was not sub-missible.

Having concluded that the question of reasonableness and malice, as presented, did, in fact, raise an issue submissible for a jury, it does not follow this matter is totally resolved.

There remains the determination of the issue of complete defense upon advice of counsel.

It is clear that reliance, upon advice of counsel, is a bona fide, complete defense. Hernon v. Revere Cooper & Brass, Inc., 494 F.2d 705 (8th Cir. 1974), cert. den. 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1974); Restatement of Torts, § 666, p. 433 (2d ed. 1977); Webb v. Byrd, 203 Mo.App. 589, 219 S.W. 683 (1920) and March v. Vandiver, 181 Mo.App. 281, 168 S.W. 824 (1914). The rationale of this rule, of course, is where a party (defendants in the original action) can show he acted upon advice of counsel, this establishes he acted with probable cause. The two factors are inextricably interrelated.

To be sure, the evidence herein established Farrington had a brother who was a recent practitioner of the Missouri Bar. The evidence further established Farring-ton contacted his brother about the matter herein. The question rests upon whether Farrington failed to relate to his brother material facts of the incident. If the evidence supports a showing of such failure, then respondent cannot avail itself of this complete defense, but rather the question becomes one of fact for the jury to decide in its overall consideration of the reasonableness of the actions of the party initiating the prosecution, in this case, Farrington.

First, it should be revealed that the evidence centered upon this point contained a barrage of hearsay testimony. Such hearsay evidence was erroneously admitted over repeated and continual objection of the appellant.

The record reveals in summary that Far-rington told his attorney brother that appellant Muza, when entering the respondents’ place of business, hollered at the co-employee, Jim Cupp, “What can I steal today?” or words to that effect; that appellant Muza picked up the tile-cutter, that Thiele took the cutter to the truck, that the cutter was not charged on the sales slip and was he, Farrington, within his right to retrieve the tile-cutter from appellant Muza’s truck?

Appellants, of course, contend a lack of inclusion of other material facts which should have been propounded to the attorney.

Those include appellant Muza’s statement to co-employee Jim Cupp about charging the tile-cutter in another section of the store; that appellant Muza had a continued practice of charging materials and tools at respondents’ place of business and that he, Farrington, knew Muza had a long standing personal delinquent account with respondents.

The rule is that in order to avail oneself of the complete defense of advice of counsel, it must be shown that material facts must not be omitted when conveyed to counsel. This defense is an affirmative defense upon which the defendant, in the original proceedings, has the burden of proof. Hughes v. Aetna Insurance Co., 261 S.W.2d 942 (Mo.1953).

Farrington was familiar with appellant Muza’s method of transacting credit business with respondent. He did not disclose the reference to charging the item in another section of respondent’s place of business with counsel and he failed to disclose his knowledge and awareness of the delinquency of appellant Muza’s personal account with counsel. These are material facts bearing upon this point.

The evidence adduced upon this record indicates sufficient question being raised which warranted the jury passing upon the claimed defense of advice of counsel. The trial court erred in concluding there was no issue of fact to submit to the jury.

Other points are raised herein, but by virtue of the disposition of this case on the issues discussed, further consideration is rendered unnecessary.

For the reasons set forth herein, this cause is reversed and remanded for further trial upon the issues.

All concur.


author: FLANIGAN, Chief Judge.

text:
    Delmar E. CHRISCO, Appellant, v. STATE of Missouri, Respondent.
    No. 11046.
    Missouri Court of Appeals, Southern District, Division Three.
    Aug. 1, 1979.
    Motion for Rehearing or to Transfer Denied Aug. 27, 1979.

      Armand Brodeur, Salem, for appellant.
    John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.
   FLANIGAN, Chief Judge.

On March 3, 1977, petitioner Delmar E. Chrisco filed his verified “Petition for Writ of Error Coram Nobis” in the Circuit Court of Dent County, Missouri. The petition attacked the validity of a plea of guilty which petitioner entered on May 9, 1960, to a charge of burglary. As a result of the burglary conviction petitioner was sentenced to two years’ imprisonment and he served the sentence. The alleged defect in the guilty plea proceedings is ineffective assistance of counsel.

The trial court appointed counsel for petitioner. Three months later, after a hearing attended by the prosecutor and petitioner’s counsel, the court denied the petition. Petitioner appeals.

Application for writ of error coram nobis, as distinguished from resort to the postconviction remedy prescribed by Rule 27.26, is the appropriate procedure where the petitioner has served the sentence. Stoner v. State, 507 S.W.2d 80[1] (Mo.App.1974).

In Arnold v. State, 552 S.W.2d 286, 291[3-6] (Mo.App.1977), the eastern district of this court set forth general principles relating to the writ of error coram nobis. Among those principles are the following which are applicable to the case at bar: The action is civil in nature and not criminal; the writ is a common law remedy addressed to the trial court to correct errors of fact affecting the validity of the proceedings which at the time of the original proceedings were unknown to the party seeking relief and to the court; the right to relief by means of coram nobis is not absolute — it is not allowed as a matter of right or routine; the action will not lie where the party complaining knew of the fact complained of at the time of or before trial or by the exercise of reasonable diligence might have known it; the burden of proof is on the petitioner to support his well pleaded allegations by a preponderance of the evidence; the application must state with particularity sufficient facts to constitute grounds for relief; the petitioner must demonstrate that he is suffering from present adverse legal circumstances in order to invoke coram nobis relief from a sentence already served; reasonable diligence should be exercised by the petitioner to attack the allegedly invalid conviction.

Petitioner’s brief in this court fails to comply with Rule 84.04. The “statement of facts” portion and the argument do not have “specific page references to the transcript on appeal.” Two of the three “points relied on” fail to state “briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” This court, however, has reviewed the transcript in light of the issues attempted to be briefed.

The petition does not plead any facts showing that petitioner is “suffering from present adverse legal circumstances,” Arnold, supra, as a result of the sentence which he has already served.

Authority exists to the effect that ineffective assistance of counsel on a guilty plea is not a proper ground for relief in a coram nobis proceeding. Parton v. State, 545 S.W.2d 388, 342[17] (Mo.App.1977); 18 Am. Jur.2d Coram Nobis, et seq. § 18, p. 477. As Parton, at 342, points out, “Movant was as aware of his grievances at the time of his sentencing as he was when he filed his [petition].”

The transcript does not contain any evidence which may have been introduced at the hearing. Even if the petition had contained a ground cognizable in a coram nobis proceeding the burden of proof was on petitioner to support his claim for relief.

Petitioner complains that the trial court failed “to make findings of fact and conclusions of law on all issues presented.” Petitioner did not request such findings and conclusions. As authority for his complaint appellant cites Baker v. State, 532 S.W.2d 897 (Mo.App.1976). Baker is inapposite because it was a proceeding under Rule 27.26. Appellant cites no authority for the proposition that, in a coram nobis proceeding, findings of fact and conclusions of law, where none has been requested, are prerequisites to a valid judgment.

Where no evidence is presented at the hearing, as seems to be the situation, here, it is understandable that the trial court made no findings of fact. Even if the allegations of the verified petition be accorded some evidentiary weight the trial court had the right to reject that evidence and this is true even though there was no evidence to the contrary. State v. Cannon, 532 S.W.2d 804, 806[4] (Mo.App.1975).

The. attack upon the validity of the plea was made almost 17 years after its entry. In Skaggs v. State, 476 S.W.2d 524, 528 (Mo.1972) the supreme court considered a delay of 9½ years between entry of plea and the filing of a motion attacking it to be “a relevant factor” to be considered in determining the merits of the motion. Similar inordinate delays have been considered “relevant factors” in Donaldson v. State, 477 S.W.2d 84 (Mo.1972) (22 years); Deckard v. State, 492 S.W.2d 400 (Mo.App.1973) (16 years); Cook v. State, 543 S.W.2d 309 (Mo.App.1976) (17 years); Arnold v. State, 552 S.W.2d 286 (Mo.App.1977) (23 years); see, generally, 62 A.L.R.2d 432 (delay as affecting right to coram nobis attacking criminal conviction.)

This court’s review of the record fails to disclose that the judgment of the trial court denying the petition was clearly erroneous. Paxton v. State, 565 S.W.2d 750, 752 (Mo.App.1978). Stoner v. State, 507 S.W.2d 80[2] (Mo.App.1974).

The judgment is affirmed.

BILLINGS, MAUS and GREENE, JJ., concur.

      . All references to rules are to Missouri Rules of Court, V.A.M.R.

      . Such findings of fact and conclusions of law are required in a Rule 27.26 proceeding. Rule 27.26(i).
      “The trial court’s order of dismissal was not accompanied by findings of fact or conclusions of law. Though such procedure was acceptable under Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), it is no longer permitted. Fields v. State, 572 S.W.2d 477 (Mo. banc 1978).” Turn

        bough v. State, 574 S.W.2d 400, 404 (Mo. banc 1978).

        Smith and Fields were Rule 27.26 proceedings. At the time of the instant coram nobis proceeding the Smith procedure was still acceptable.

      . The transcript does contain the docket entries pertinent to the entry of the plea in 1960. They show that an attorney was appointed to represent petitioner and time was given for him to confer with petitioner. Thereafter the plea was entered.

      . Compare Ward v. State, 451 S.W.2d 79 (Mo. 1970) where the court held, in a Rule 27.26 proceeding, that allegations of a motion to vacate and set aside a judgment of conviction are not self-proving. There is authority to the effect that the same principle applies in a coram nobis proceeding. 24 C.J.S. Criminal Law § 1606(31), p. 827.


author: MAUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael Herbert SINGH, Defendant-Appellant.
    No. 10788.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 2, 1979.
    Motion for Rehearing or for Transfer Denied Aug. 23, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Scott B. Tinsley, Springfield, for defendant-appellant.
   MAUS, Judge.

The defendant was charged with the second degree murder of his wife Mary Ann Singh. After a four-day trial the jury returned a verdict of manslaughter, fixing his punishment at ten years’ imprisonment. Defendant’s motions for a new trial were overruled and he was sentenced accordingly. On appeal by his court-appointed attorney defendant asserts six points of error and by his pro se brief one additional point.

The decedent was first married at an early age and by this marriage had a son and a daughter. This marriage ended in divorce and was followed by a brief second marriage and several live-in male companions.

The defendant, 33 at the time of trial, was born in Trinidad, West Indies. He was of East Indian extraction. He had roughly the equivalent of a junior college education. In his native land he taught school. In 1970 he went to New York and for a time worked as a warehouseman. He then served in the army for three years and four months. After a brief period, he re-enlisted, but after one month went A.W.O.L. He came to Springfield. In the summer of 1976 he met the decedent and moved in with her and her two children. August 8 they were married. August 14 he was apprehended for being A.W.O.L. After being in custody a short period of time he was discharged and returned to the decedent’s home.

That is when the marital difficulties began. Defendant ascribed these difficulties to financial problems and decedent’s alleged sexual proclivities. They resulted in numerous, vociferous quarrels during which the decedent cursed and made derogatory remarks toward the defendant. She would hit and kick and throw things at the defendant. He said he usually tried to restrain her but admitted hitting her on occasions, the number of which he could not remember. In this connection decedent was five feet eight inches in height and weighed approximately 140 pounds. The defendant was five feet seven inches in height and weighed approximately 140 pounds. He had been an airborne ranger and received instructions in hand-to-hand combat.

September 15 the defendant left the state to see about collecting some money due him. After being unsuccessful and hitchhiking back he arrived at the decedent’s home at about 5:00 a. m. on September 23. An altercation developed which led to the death of his wife.

The defendant’s version was that when he told the decedent he couldn’t stay unless she changed, she became violent and he tried to restrain her. She went to a closet and got a small .22 caliber revolver which he immediately took from her. He put the gun and a bag of bullets from the closet in his coat pocket. At this point he heard the daughter coming downstairs; the decedent backed away and said “don’t kill me”. She then told him she had filed for divorce (she had consulted an attorney) and that she had had an abortion (records indicated she had done so two days prior). At his reply, “God have mercy on your soul” she flared up, threatened him and started searching around the kitchen. She then went to the back porch and picked up a stick of wood. He followed. She rushed at him and tried to hit him. A struggle ensued moving off the porch to the yard. She taunted him about the abortion and his race. She succeeded in hitting him twice. She still had the stick when they reached a place by the side of the house.

Defendant then says decedent kept the struggle going and “then she pushed her hand in my pocket;” he thought she was going for the gun so he put his hand in the pocket;

“[tjhen she grabbed ahold — I can’t remember, let’s see — can I think for a minute? — Her hand was holding — I couldn’t tell whether it was in the pocket or outside the pocket, but her hand was on the gun, she was trying to push her hand inside the pocket, that’s right, and both of her hands were in there and she was trying to get it away and trying to strike me with this thing there and she hit me real hard and this really, you know, with all the pain and suffering and then hitchhiking [sic] and tiredness, sleepless, and all these things, it really shook me up, and in the struggle and everything the gun did go off.”

He did not know the number of times the gun fired. Decedent was lying on the ground and the daughter was standing there. He did not know the decedent was shot and wondered why she was lying there. His throat burned and he went into the house, got a drink of water, got the keys and left in decedent’s car.

The state presented the daughter whose testimony is summarized. She was awakened by the quarrel. She went downstairs and her mother was trying to hit the defendant who was holding her. Her mother said “[p]lease don’t kill me” and Michael said “shut up”. She first said she saw the gun in defendant’s hand inside the house, but later said it was outside. She and her mother went out the back door and got to the corner of the house when she “looked over and he already had shot her, and I looked over and she was lying down.” She first stated the decedent tried to hit the defendant with a stick of wood that night, but later said it was before that night.

Police officers arrived at approximately 5:45 a. m. The decedent was removed to the hospital where she died. A thorough search of the area was made and no stick of wood was found, although there were sticks of wood stacked on the back porch. The decedent had four gunshot wounds: one to the left temple; one to the right cheek; one to the back approximately thirty centimeters below her shoulder joint and one to the left forearm approximately 17 centimeters above the wrist. There were powder burns around the wounds to the cheek and wrist. An autopsy was performed. The pathologist described the trajectory of the bullets that made the wounds.

In the pathologist’s opinion the trajectory of the bullet that entered the back was consistent with someone being hit while falling down and of the bullet that entered the chin was consistent with the person being on the ground or the gun pointed up. The gun that made the powder burns was fired within two to three feet of the body. The immediate cause of death was the bullet that entered the back.

A forensic chemist testified the stains on the right pocket of the coat defendant was wearing were caused by the firing of a gun, probably twice, inside of the pocket. The defendant didn’t know if the gun was poked through the pocket and fired.

The defendant was arrested driving near Houston, Missouri. At the time of his arrest he told the officer he was the man they wanted; he was driving his girl friend’s car; and that he had no weapon. The .22 revolver that fired the fatal shots was found in a plastic bag, with some ammunition, under the car seat on the driver’s side. Defendant had reloaded it with four shells because he was sleeping in the woods and it was very bushy and there “could have been snakes or anything”.

The defendant denied bringing the gun from Colorado. He said somewhat cryptically “that’s only the second time I used that pistol.” He denied telling the decedent’s aunt it was his gun. The aunt had testified he so stated and, without objection, that the decedent was scared to death of guns and wouldn’t have one in the house. In rebuttal, for the purpose of showing decedent’s state of mind, a neighbor testified that on Monday before she was killed on Thursday the decedent said she was afraid of defendant, she was afraid of guns and would not have any in the house, and she had heard the defendant had a gun.

The defendant first asserts the trial court erred in determining the daughter was a competent witness. She was approximately five years nine and one-half months of age at the time of the occurrence and approximately six years and eight months of age at the time of trial. By statute, § 491.060 RSMo, V.A.M.S., a child under 10 years is by a rebuttable presumption incompetent. The burden was upon the state to establish her competency. Hildreth v. Key, 341 S.W.2d 601 (Mo.App.1960).

There is no fixed age at which a child may be a competent witness. Competency is to be measured by the standard hereafter set forth under the singular facts and circumstances of each ease. State v. Watson, 536 S.W.2d 59 (Mo.App.1976). Children of an age comparable to that of the daughter have been determined to be competent in a variety of situations.

The competency of a child offered as a witness is to be determined by the court. The established procedure is for this determination to be made upon a voir dire examination held outside the presence of the jury. J.L.W. v. D.C.W., 519 S.W.2d 724 (Mo.App.1975). Such was done in this case.

It is in connection with the voir dire examination the defendant in his pro se brief asserts that the trial court erred by conducting “extensive cross-examination” of the daughter aiding in establishing her competency. We do not agree. It is fundamental that a trial court must maintain complete fairness and impartiality. This does not mean, however, the trial judge was cast into “the position of the umpire of a game, whose duty it was to interfere only so far as needed to decide whether the rules of the game had been violated.” Ill Wig-more, Evidence, § 784, p. 188 (Chadbourn rev. 1970). “One of the well-recognized powers of the judicial function is the right and duty of the trial judge to propound additional questions to witnesses in order to develop the truth more fully and to clarify the testimony given.” State v. Grant, 394 S.W.2d 285, 287 (Mo.1965).

The conduct of the voir dire examination is within the control of the trial court. State v. Statler, 331 S.W.2d 526 (Mo.1960). J.L.W. v. D.C.W., supra. The trial court may conduct the examination, permitting subsequent questions by counsel or the trial court may permit the examination to be conducted by counsel, with such questions by the court as it determines proper. State v. Young, 477 S.W.2d 114 (Mo.1972). “The ultimate responsibility for determining the competency of a child to testify rests with the trial court who occupies the best position to judge the qualifications of the witnesses.” State v. Sanders, 533 S.W.2d 632, 633 (Mo.App.1976). It is eminently proper that the trial court, within the bounds of fairness and impartiality, participate in such a voir dire examination.

In this case, the trial court permitted counsel to initially examine the daughter concerning her competency. When their extensive examinations were completed the court asked a total of thirteen questions. We have carefully examined those questions and find they were fair and impartial, designed to aid in arriving at the truth concerning the competency of the witness. No error was committed.

Turning to the merits of the daughter’s competency, the standards for competency are well established.

“They are: (1) present understanding of or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observation.” State v. Young, 477 S.W.2d 114, 116 (Mo.1972); State v. Watson, supra, at 60.

In the voir dire examination it was established that the prosecutor and her father had talked with the daughter about the occurrence and her testimony. At their suggestion she practiced counting and the ABC’s. During her examination she did state that she would not be able to remember all that she testified to without the help of the prosecutor and that in testifying she relied on her father. On the other hand, she also stated she hadn’t forgotten the events and she would have been able to remember had she not talked with them. Her answers first referred to may indicate she had permissible help in refreshing her memory. There is no basis for any intimation that she was told what to say. Nor is there any indication that she testified other than on the basis of her recollection as demonstrated by the following cross-examination:

“Q. If you said what somebody else told you to say, would that be telling the truth, because they told you that’s what to say? A. You don’t always have to say what they say. Q. You don’t have to say what they say? A. Huh-uh. Q. Okay. A. It might not be the truth, what they say.”

She clearly stated that she had an independent memory of the occurrence as demonstrated by the following:

“THE COURT: Okay. You told us earlier this morning that you remember that Michael and your mommy were fighting. THE WITNESS: Yeah. THE COURT: Do you actually remember that happening or do you just recall your daddy telling you that it did happen? THE WITNESS: I remember it happening. . THE COURT: You told us earlier this morning that your mother went outside. Do you remember telling us that? THE WITNESS: Yes. THE COURT: Did you tell us that because you heard your daddy say that’s what happened or because you now remember that it did happen? THE WITNESS: I remember that it did happen.”

Other factors favoring the competency of the daughter were before the trial court. In addition to her testimony upon the voir dire hearing and at the trial, her testimony at her deposition and upon an aborted trial given within six months of the occurrence' was before the court. Her testimony on four separate interrogations was both forthright and unswerving. Her testimony was consistent with facts otherwise established by the evidence. State v. Young, supra; State v. Sigh, 579 S.W.2d 657 (Mo.App.1979). The death of her mother was a shocking occurrence that will undoubtedly scar her memory forever. State v. Parton, 487 S.W.2d 523 (Mo.1972); State v. Ball, 529 S.W.2d 901 (Mo.App.1975). The time between the event and her testimony was relatively short. From the record, this child appears to have been candid, alert- and intelligent. However, this factor could better be determined and weighed with what is now her printed testimony by the trial court who had the benefit of personal observation. It is the opportunity of personal observation that is the basis for the time-honored maxim that “[t]he trial court’s determination that the child is qualified to give testimony will be reversed only for a clear abuse of discretion.” State v. Ball, supra, at 904. Also State v. Young, supra, at 116. The trial court properly found the daughter a competent witness.

Defendant next asserts the trial court erred in admitting four photographs of the deceased showing her wounds. One was a small color picture and the others black and white. In each the decedent was appropriately draped. We have examined these exhibits and doubt they are inflammatory. Certainly their probative value outweighed any possibility of prejudice. They were admissible to refute the defendant’s version of the incident. State v. Jackson, 499 S.W.2d 467 (Mo.1973); State v. Ward, 569 S.W.2d 341 (Mo.App.1978). They are not barred because they are cumulative to the testimonial descriptions of the wounds. State v. Ray, 554 S.W.2d 596 (Mo.App.1977). They better enable the jury to perceive the location of those wounds. State v. Frazier, 550 S.W.2d 590 (Mo.App.1977). “The trial courts have a wide discretion in determining the admissibility of photographs.” State v. Jackson, supra, at 472. In this instance the trial court did not abuse that discretion.

Defendant’s third point of error is the admission in evidence, over an objection of hearsay, of declarations of the decedent. In rebuttal a neighbor was permitted to testify that on Monday before the tragedy on Thursday the decedent told him she was afraid of defendant, she was afraid of guns, she would not have any in the house, and she heard the defendant had a gun. This testimony was offered for the purpose of proving her state of mind and, before the testimony was given, a limiting instruction was given to the jury.

This point has received but little attention in Missouri. From a review of the cases in other jurisdictions, the preponderance of authority is that, subject to limitations, the declarations of the decedent in a homicide case will be admitted to prove the decedent’s state of mind where that is relevant. The subject has been thoroughly reviewed in United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758 (1973).

Whether such declarations are admitted because their use for that purpose does not fall within the proscription of the hearsay rule or as an exception to that rule is not clearly defined. A distinction is often drawn between direct assertions of a state of mind (I am afraid of x) and statements which inferentially establish a state of mind (I won’t go near x). The former is said to be hearsay and is admitted as an exception to the rule. The latter is said not to be hearsay and is thereby admissible. This distinction seem? to be based more on suspicion of reliability of a possibly self-serving declaration than upon any inherent difference between the two. But, whether the declarations in this case are admissible as an exception to the hearsay rule or outside the purview of that rule is a technical question we need not burden this opinion with answering.

Defendant relies upon State v. Benson, 346 Mo. 497, 142 S.W.2d 52 (1940). We do not view that case as contrary to the majority rule admitting such declarations. The essence of that decision was to recognize the rule of admissibility of an intent to do an act in the immediate future. But, the court found the declaration in question was a self-serving declaration of past events not providing a substantial inference of the de-clarant’s intent. In State v. Ilgenfritz, 263 Mo. 615, 173 S.W. 1041 (1915), the court held the decedent’s threats of suicide to be competent evidence. Evidence offered to show a relevant state of mind in other circumstances has been consistently admitted. We believe the prevailing view referred to. above to be sound.

Such declarations revealing a state of mind often contain recitals of circumstantial facts. They are not admissible to prove the truth of such recitals. But, under the rule of multiple admissibility such declarations may be properly admitted in evidence solely to establish that state of mind. Certainly upon request, an instruction must be given limiting the probative value of such testimony to establishing the relevant state of mind. Whether such an instruction must be given without request or may be given at a time other than when the testimony is admitted are questions we need not and do not answer. In this case, before admission the trial court gave a proper limiting instruction.

Some decisions admit such declarations containing a recital of circumstances without regard to a possible limitation based upon prejudice to the accused. Others admit such testimony only after a determination that the need for and value of such testimony outweighs possible prejudice to the accused. Under the latter approach, while many factors are involved, it has been said the “most important consideration may be whether the statement, if used by the jury for its improper purpose, is virtually dispositive of the case and extremely damaging to the position taken by . (the defendant).” United States v. Brown, supra, 160 U.S.App.D.C. at 196, 490 F.2d at 764. Another factor of importance is the nature of the defense. If the defense be self-defense, suicide or accidental death “the need for such statements overcomes almost any possible prejudice”. United States v. Brown, supra, 160 U.S.App.D.C. at 199, 490 F.2d at 767 (emphasis added). Even if the necessity for such balancing is the rule in Missouri, and we need not and do not determine that it is, we hold that the relevancy of the declarations in question outweighed any possible prejudice to the defendant.

Of course, as a prerequisite to admission the state of mind to be established by such declarations must be relevant to the issues in the case. The factors which make the state of mind of an alleged victim of a homicide relevant are myriad. However, the courts have developed three rather well-defined categories in which the relevancy of such statements of fear is established. These include cases involving defenses of self-defense, suicide of the decedent, and accidental death. United States v. Brown, supra.

In this case the defendant by cross-examination and by his own testimony injected the issues of self-defense and accidental death. “In such cases the deceased’s statements of fear as to guns or of defendant himself (showing he would never go near defendant under any circumstances) are relevant in that they tend to rebut this defense.” United States v. Brown, supra, 160 U.S.App.D.C. at 199, 490 F.2d at 767. The declarations in this ease were clearly relevant.

Defendant next claims the trial court erred in instructing the jury upon murder in the second degree for the reason the evidence was insufficient to support that submission. Since the defendant was not convicted of murder in the second degree it is established that he cannot complain of that instruction. State v. Strong, 339 S.W.2d 759 (Mo.1960); State v. Foster, 355 Mo. 577, 197 S.W.2d 313 (1946); State v. Stoer, 553 S.W.2d 484 (Mo.App.1977). Further, there was evidence from which the jury could have found the defendant followed his wife from the house; he intended to cause her serious bodily harm or death by shooting her four times, once in the back; and he did not do so in anger, fear or agitation provoked by his wife or in self-defense. The instruction on murder in the second degree was supported by the evidence. State v. Boyd, 498 S.W.2d 532 (Mo.1973); State v. Adams, 497 S.W.2d 147 (Mo.1973); State v. Strong, supra.

Defendant complains the trial court erred in denying his motion for a change of venue from Greene County. A change of venue is authorized if “the minds of the inhabitants of the county . . . are so prejudiced against the defendant that a fair trial cannot be had therein.” V.A.M.R.Crim.Rule 30.01. In his motion defendant alleged such prejudice existed because of extensive news coverage, emphasizing newspaper articles.

In a county such as Greene County when this issue is properly raised it is an issue of fact to be “proved to the satisfaction of the court” upon a hearing, unless the existence of grounds be within the knowledge of the court when removal may be ordered without a hearing. V.A.M.R. Crim.Rule 30.04. When a hearing is held, “the granting of a change of venue is a matter within the discretion of the trial court and its ruling is not to be disturbed on. appeal unless an abuse of discretion is demonstrated.” State v. Zinn, 562 S.W.2d 784, 788 (Mo.App.1978).

In this case the defendant offered copies of eight newspaper articles, established the extensive circulation of the newspaper and showed there had been radio and television news coverage. Two witnesses called by the defendant stated their opinion that because of this coverage he could not have a fair trial in Greene County. Defendant also so testified. Emphasis was placed upon the sensational aspects of the case resulting from the race and background of the defendant, the involvement of the child and defendant’s previous courtroom behavior. The state countered with four witnesses, three of whom had no knowledge of the matter and one who had read the first articles but did not really remember any details and could not be prejudiced. The trial court concluded that an impartial jury could be selected and denied the motion. The determination of the trial court was confirmed by the fact that the voir dire examination of the jury panel revealed only six who recalled any coverage. Three stated they had formed an opinion and were promptly excused. The defendant has not demonstrated the trial court’s determination was erroneous and this point is denied. State v. Londe, 345 Mo. 185, 132 S.W.2d 501 (1939); State v. Parcel, 546 S.W.2d 571 (Mo.App.1977).

The defendant complains the trial court erred in not sustaining his second request for a change of judge. His complaint is based on two contentions. He first suggests that V.A.M.R.Crim.Rule 30.16, by stating “in the event the judge . to which said case has been transferred is also disqualified under the provisions of Rule 30.12, another judge of said court shall be assigned to the trial of said case . . ”, implies that a defendant is entitled to two disqualifications as a matter of right. We do not agree. V.A.M.R.Crim.Rule 30.12 states only one disqualification may be filed by a defendant. Read together the rules provide that a defendant may have only one disqualification as a matter of right. State v. Holt, 465 S.W.2d 602 (Mo.1971).

Of course, if a successor judge is in fact “interested or prejudiced”, V.A.M.R. Crim.Rule 30.12, it is his duty to disqualify himself. But, a “successor judge is under a duty to remain as judge in the cause, and this duty is equally as strong as his duty to recuse himself under circumstances requiring it.” State v. Hindman, 543 S.W.2d 278, 283 (Mo.App.1976). It was no doubt this duty, rather than his personal preference, that impelled the successor judge in this case to continue with this difficult case.

The defendant seeks to establish the trial court’s prejudice in fact by citing the court’s alleged tolerance of physical abuse of the defendant at the time of a mistrial. The record of the occurrence at the mistrial is sketchy. However, we can clearly glean from the record that the physical restraint of defendant resulted from his own improper conduct in the courtroom. Defendant also similarly cites an incident that occurred upon trial counsel’s request that, to assist him, a female lay assistant be permitted to be seated at the counsel table, assuming the defendant would sit between them. The trial court observed this might convey to the jury an impression the defendant was not likely to harm a female and the assistant could be of more help if seated on counsel’s side. Trial counsel accepted this arrangement without objection. This action was within the sound discretion of the trial court.

After granting defendant a hearing upon his request for a second disqualification, the trial court’s comments included the following: “I stand ready to give him a fair trial”. Our careful review of the record reveals he did just that. The judgment is affirmed.

BILLINGS, P. J., HOGAN, J., and KEL-SO, Special Judge, concur.

      . A child four years seven months old was competent as a witness to an accident, Hildreth v. Key, 341 S.W.2d 601 (Mo.App.1960); a child of 6 concerning her rape, State v. Parton, 487 S.W.2d 523 (Mo.1972); 6 years 5 months concerning attempted rape, State v. Groves, 295 S.W.2d 169 (Mo.1956); 5 years concerning molestation, State v. Watson, 536 S.W.2d 59 (Mo. App.1976); 6 years concerning enticement, State v. Tillett, 233 S.W.2d 690 (Mo.1950); 5 years 6 months concerning an accident, Burnam v. Chicago Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858 (1936). Additional cases are collected in Hildreth, supra.

      . However, an examination before the jury was not reversible error where no objection was made and the point was not preserved in a motion for new trial. State v. Obie, 501 S.W.2d 513 (Mo.App.1973). For a case where a prosecutor for the apparent • purpose of avoiding comment upon the failure of the victim’s sister to testify called the child before the jury established she was 7 years of age and made no attempt to qualify her, see State v. Tandy, 401 S.W.2d 409 (Mo. 1966).

      .For additional authorities see State v. Cain, 485 S.W.2d 60 (Mo. 1972); State v. Tate, 468 S.W.2d 646 (Mo.1971); State v. Farmer, 536 S.W.2d 748 (Mo.App.1976); State v. Clark, 522 S.W.2d 332 (Mo.App.1975). For cases in which the trial court violated the principle of fairness and impartiality see State v. James, 321 S.W.2d 698 (Mo.1959); State v. Haddix, 566 S.W.2d 266 (Mo.App.1978).

      . Tate, supra, n. 3; State v. Sanderson, 528 S.W.2d 527 (Mo.App.1975). Compare Petty v. Kansas City Public Service Co., 354 Mo. 823, 191 S.W.2d 653 (1945).

      . This court may and also has considered her testimony during the trial. State v. Robertson, 480 S.W.2d 845 (Mo.1972). Any inconsistencies which do not vitiate a child’s testimony go to the question of credibility, rather than competency. State v. Jones, 558 S.W.2d 286 (Mo.App.1977); State v. Sanders, 533 S.W.2d 632 (Mo.App.1976) and State v. Ball, 529 S.W.2d 901 (Mo.App.1975).

      .For a comprehensive analysis of this important aspect see Hildreth, supra, n. 1.

        .People v. Schindler, 273 Cal.App.2d 624, 78 Cal.Rptr. 633 (1969); State v. Wauneka, 560 P.2d 1377 (Utah 1977); People v. White, 401 Mich. 482, 257 N.W.2d 912 (1977); Sallee v. State, 544 P.2d 902 (Okl.Cr.1975); State v. Goodrich, 97 Idaho 472, 546 P.2d 1180 (1976); State v. Radabaugh, 93 Idaho 727, 471 P.2d 582 (1970); State v. Patriarca, 112 R.I. 14, 308 A.2d 300 (1973); Alcala v. State, Wyo., 487 P.2d 448, cert. den. 405 U.S. 997, 92 S.Ct. 1259, 31 L.Ed.2d 466, reh. den. 406 U.S. 911, 92 S.Ct. 1613, 31 L.Ed.2d 823 (1971); State v. Duke, 110 Ariz. 320, 518 P.2d 570 (1974); Commonwealth v. Borodine, 371 Mass. 1, 353 N.E.2d 649 (1976); People v. Perry, 22 Ill.App.3d 738, 318 N.E.2d 17 (1974); Carnes v. Commonwealth, 453 S.W.2d 595 (Ky.1970); State v. Wright, 12 Or.App. 73, 504 P.2d 1065 (1973); State v. Phipps, 224 Kan. 158, 578 P.2d 709 (1978). Also see, State v. McCauley, 8 Or.App. 571, 494 P.2d 438 (1972); State v. Bartolon, 8 Or.App. 538, 495 P.2d 772 (1972).

      . Also see VI Wigmore, Evidence, § 1730, p. 148 (Chadboum rev. 1976).

      . See VI Wigmore, Evidence, §§ 1714 — 1715, pp. 90-100, (Chadboum rev. 1976); Weinstein’s Evidence, § 801(d)(l)[01], p. 801-63.

      . “[T]he distinction is not very important.” United States v. Brown, 160 U.S.App.D.C. 190, 195, 490 F.2d 758, 763 (1973). “Fortunately, a widely recognized exception to the hearsay rule admits declarations of a present state of mind or feelings, and the occasion to make such refined distinctions as to the foregoing is limited largely to the realm of theory.” McCormick on Evidence, § 249, p. 591 (2nd ed. 1972).

      . United States v. Biondo, 483 F.2d 635 (8th Cir. 1973); State v. Walker, 484 S.W.2d 284 (Mo.1972); Terminal R. R. Ass’n. of St. Louis v. Schmidt, 349 Mo. 890, 163 S.W.2d 772 (1942); State v. Blackburn, 273 Mo. 469, 201 S.W.2d 96 (1918); State v. Trotter, 536 S.W.2d 877 (Mo.App.1976).

      . Walker, supra, n. 11; State v. McDaris, 463 S.W.2d 813 (Mo.1971); State v. Hale, 371 S.W.2d 249 (Mo.1963); Grimm v. Gargis, 303 S.W.2d 43, 74 A.L.R.2d 599 (Mo.1957); State v. Gardner, 558 S.W.2d 395 (Mo.App.1977); Trotter, supra, n. 11; State v. Herington, 520 S.W.2d 697 (Mo.App.1975).

      . Brown, supra, n. 10.

      . See Brown, supra, n. 10; State v. Houston, 263 S.W. 219 (Mo.1924); McDaris, supra, n. 12; State v. Gordon, 499 S.W.2d 512 (Mo. 1972). Said to be necessary without request in Goodrich, supra, n. 7; Salle, supra, n. 7. Omission of instruction not error where not requested in civil case. Freeman v. Kansas City Power & Light Company, 502 S.W.2d 277 (Mo.1973). Where a limiting instruction was given at the time of admission of a statement solely admissible for impeachment, it was not error not to give a subsequent similar written instruction. State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974).

      . Schindler, supra, n. 7; Sallee, supra, n. 7; Duke, supra, n. 7.

      . “When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out. Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 26, 78 L.Ed.2d 196 (1933). Also see White, supra, n. 7 and Goodrich, supra, n. 7.

      . In his brief defendant referring to this evidence states: “It went to the heart of the defense, which was based upon the theory of self-defense.”

      . Also see Schindler, supra, n. 7; People v. Atchley, 53 Cal.2d 160, 346 P.2d 764 (1959), cert. dismissed 366 U.S. 207, 81 S.Ct. 1051, 6 L.Ed.2d 233 (1961).


author: SNYDER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Bobbie Joe HODGES, Defendant-Appellant.
    No. 38758.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 14, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      Robert C. Babione, Public Defender, Terry Burnet, Asst. Public Defender, Cynthia S. Holmes, Special Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   SNYDER, Presiding Judge.

Defendant appeals from a judgment of conviction of second degree murder and a sentence of forty years in the Missouri Department of Corrections.

Appellant contends the trial court erred in: (1) failing to grant appellant’s motion for a mistrial when the state in its opening statement said that appellant was given his Miranda rights because it was an improper comment on appellant’s right to remain silent; (2) overruling appellant’s objection to the state’s calling appellant’s wife as a witness; (3) denying appellant’s motion for a mistrial when the appellant’s wife refused to testify after the state outlined her expected testimony in its opening statement; (4) denying appellant’s motion for a mistrial when a deputy sheriff testified, out of the presence of the jury, that appellant’s wife had been subpoenaed, had been told not to leave, but had nonetheless left the courthouse; (5) denying appellant’s motion for a mistrial after the victim’s wife had testified to remarks appellant’s wife had made about threats by appellant; (6) denying appellant’s motion for a mistrial after the state offered to make appellant’s clothing available to appellant if he wanted to offer it in evidence because the offer was an improper comment on the burden of proof; (7) denying appellant’s motion for a mistrial after the state referred to appellant as “that animal” in closing argument; (8) overruling appellant’s objection to the state’s closing argument that the testimony of Oliver Bas-ham was consistent with his grand jury testimony when the grand jury testimony was not in evidence; and, (9) denying appellant’s motion for a judgment of acquittal because all of the evidence was insufficient to meet the state’s burden of proof.

The judgment is affirmed.

On September 11,1975, appellant, Bobbie Joe Hodges, and the victim, Ben Cheever, spent the day drinking beer at appellant’s apartment in St. Louis. Betty Hodges, appellant’s wife, and Ann Cheever, the deceased’s wife, had been with their husbands most of the day, but at approximately 11:30 p. m. the wives left to visit a neighbor’s apartment upstairs. Before going upstairs, the two women stopped by Oliver Basham’s apartment next door, and Mrs. Hodges left a phone number with Basham where she could be reached if necessary.

At approximately 2:00 a. m. Oliver Bas-ham, who was watching television, heard kicking and knocking at his door. Basham recognized appellant Hodges’ voice and told Hodges to go back home and go to bed. Hodges told Basham that he could not go home, that he had shot Ben. Basham let the appellant in. Hodges entered in a nervous state carrying a pistol which he put on a table. Hodges wanted Basham to hide it. Basham picked up the gun with a washrag and placed it in a paper sack. At this time appellant told Basham not to tell anyone what had happened while he went to look for his wife. Appellant then left Basham’s apartment. Basham took the sack containing the washrag and gun to a shed behind his house and left it there.

Basham then called Betty Hodges, told her what had happened and instructed her to call the police. About fifteen minutes later, appellant returned to Basham’s and lay down on Basham’s bed. Shortly after 3:00 a. m., September 12, 1975, Officers William Priest and Sheldon Wight arrived at the scene, took reports from Ann Cheever and Betty Hodges, observed the body of the deceased lying on the kitchen floor of appellant’s apartment, and arrested appellant in Basham’s apartment.

In his first assignment of error, appellant contends the trial court erred in failing to grant his motion for a mistrial after the state in its opening statement said that appellant was arrested and given his Miranda rights. Appellant objected to the remark and the trial court sustained the objection, instructed the jury to disregard the statement and struck it from the record, after which appellant’s motion for a mistrial was denied.

Appellant claims that this statement constituted improper comment upon his right to remain silent. It is true that comments concerning the failure of a defendant to testify violate the defendant’s right against self-incrimination protected by the Fifth Amendment to the United States Constitution. Griffin v. California, 380 U.S. 609, 611, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); § 546.270, RSMo 1978; Rule 26.08.

When statements made by a prosecutor do not contain direct and certain references to the failure of the accused to testify, an appellate court will not interfere unless the record shows that the trial court abused its discretion to the prejudice of the appellant. State v. Rothaus, 530 S.W.2d 235, 237 (Mo. banc 1975); State v. Pruitt, 479 S.W.2d 785, 790 (Mo. banc 1972); State v. Hutchinson, 458 S.W.2d 553, 555 (Mo. banc 1970).

The allegedly offending statement at issue is not a “direct” and “certain” reference to appellant’s failure to be a witness on his own behalf. State v. Hutchinson, supra. In fact, the prosecutor’s statement does not even indirectly refer to the failure of appellant to testify. The remark is directed to the various actions surrounding the arrest of appellant with no specific mention of his unwillingness or hesitation to say anything to anyone. Although the prosecutor’s remarks did not violate appellant’s constitutional rights as declared in Griffin v. California, supra, the trial court sustained appellant’s objection and instructed the jury to disregard the remark.

A motion for mistrial is a request for extraordinary relief. In cases of improper incidents in the course of a trial, the necessity of the drastic remedy of a mistrial is a matter resting in the sound discretion of the trial court. Absent a manifest abuse of that discretion, the appellate court should not interfere. Hoene v. Associated Dry Goods Corporation, 487 S.W.2d 479, 485 (Mo.1972); Yust v. Link, 569 S.W.2d 236, 239 (Mo.App.1978); State ex rel. State Highway Commission v. Drisko, 537 S.W.2d 645, 648 (Mo.App.1976). Here there was no abuse of discretion. The cases cited by appellant to support his opposing contention are distinguishable.

Appellant next argues that the trial court erred in overruling his objection to the state’s calling his wife as a witness for the state because she was unwilling to testify. This argument is without merit.

Until the Missouri Supreme Court handed down State v. Euell, 583 S.W.2d 173 (Mo. banc 1979) the law was that the spouse of a defendant in a criminal case, if willing to testify, was a competent witness except as to confidential communications between the spouses. This was true even though the defendant-husband objected. Section 546.-260, RSMo 1978; State v. Damico, 513 S.W.2d 351, 361 (Mo.1974); State v. Frazier, 550 S.W.2d 590, 596 (Mo.App.1977).

The issue in Euell was the propriety of an ex-wife’s testimony against her ex-husband, a defendant in a criminal case. The court in Euell ruled that: “The holding or pronouncement in State v. Frazier, supra, that during the marriage a spouse may testify for the prosecution, over the objection of the defendant spouse, if the testifying spouse does so voluntarily, is incorrect and should no longer be followed.” (Emphasis supplied at “during the marriage.”) The court further said that language in Damico to the effect that the common law incompetency of a wife to testify against her husband was removed by the enactment of § 546.260, RSMo 1978 seemed to be receiving an overbroad interpretation and was “likely to lead to error.”

The conviction in Euell was nonetheless affirmed because the parties were divorced before the trial. The court held that under those circumstances the reason for the incompetency — the marital relationship — no longer existed. The facts testified to did not involve confidential communications which remain inadmissible even after a marriage is dissolved.

The change in the law does not affect the ruling here. In deciding whether to apply an overruling case prospectively or retrospectively, Missouri courts have adopted a “procedural-substantive” law test. If the overruled decision is one dealing with procedural law, the effect of the subsequent overruling decision is prospective only. Shepherd v. Consumers Cooperative Association, 384 S.W.2d 635 (Mo. banc 1964).

“This rule of privileged communications is not a rule of substantive law, but a mere rule of evidence . . ..” 97 C.J.S. Witnesses § 252, page 739. The Euell decision, therefore, changes procedural law only, is prospective in application, and does not affect the case at bar. State ex rel. May Department Stores Co. v. Haid, 327 Mo. 567, 38 S.W.2d 44, 53[10] (banc 1931); Koebel v. Tieman Coal & Material Co., 337 Mo. 561, 85 S.W.2d 519, 524[3-5] (1935).

The test under the then applicable law was whether the spouse was “willing” to testify. It appears that there was some confusion regarding the wife’s willingness to testify. The prosecutor said she told him she was willing; defense counsel said she told him she was not. The prosecutor called the wife in apparent good faith. After she was sworn, appellant objected to her being called. Although this objection was overruled, the wife did not testify. Before she spoke a word, she was advised by independent counsel of her option to refuse to testify against her husband, after which she decided against testifying.

The cases cited by appellant, State v. Frazier, supra, and State v. Damico, supra, merely delineate the law, as it was when the opinions were published, on the competency of a spouse to testify and lend no support to his claim of error. In each case a willing ex-wife was properly permitted to testify against her ex-husband about occurrences during the marriage and the ex-husband’s conviction was affirmed.

Mrs. Hodges answered no questions after she was sworn as a witness. The objection was not to any testimony but only to her taking the oath, and the objection was made after she was sworn. There was no error in overruling appellant’s tardy objection.

Appellant next charges the trial court with error in denying his motion for mistrial after appellant’s wife decided against testifying because the prosecutor had outlined her expected testimony in his opening remarks. This argument, based on a denial of confrontation, is also without merit.

If evidence referred to is arguably admissible, and if the prosecutor acts in good faith and with reasonable grounds for supposing that he will be able to show the facts stated, it is not error to include the evidence in the opening statement. State v. Thomas, 526 S.W.2d 893, 896 (Mo.App.1975); State v. Horn, 498 S.W.2d 771, 774 (Mo.1973). There is no evidence of bad faith by the prosecutor here; it is apparent that he believed the wife would testify.

The only specific reference in the prosecutor’s opening statement to expected testimony by the wife was, “Betty Hodges will tell you that she did call the police, and shortly thereafter the police arrived. . . .” This and other references to acts of the wife were easily established by other witnesses. It is difficult to see how this statement was prejudicial to appellant. The trial court did not abuse its discretion in denying appellant the drastic remedy of a mistrial. Absent a manifest abuse of that discretion, an appellate court should not interfere. Hoene v. Associated Dry Goods Corporation, supra, 485; Yust v. Link, supra, 239; State ex rel. State Highway Commission v. Drisko, supra, 648.

Appellant next contends that the trial court erred in not granting his motion for mistrial because the deputy sheriff testified, out of the presence of the jury, that appellant’s wife had been advised to remain in the vicinity but had disappeared. Appellant argues that this constituted improper comment on the failure of his wife to testi-' fy. This point is ruled against appellant.

No objection was made by appellant at the time the deputy sheriff testified; hence, nothing is preserved for review. State v. Carter, 478 S.W.2d 358, 361 (Mo.1972); State v. Savage, 522 S.W.2d 144, 146 (Mo.App.1975); State v. Grey, 525 S.W.2d 367, 370 (Mo.App.1975).

Appellant urges that the plain error rule applies. Rule 27.20(c) is applicable only when “there has been a manifest injustice or miscarriage of justice resulting from alleged error at trial.” State v. Hill, 518 S.W.2d 682, 683 (Mo.App.1975). The plain error rule is not applicable here.

Appellant next argues that the trial court erred in failing to grant his motions for mistrial following two allegedly hearsay statements. When questioned by the state, the wife of the victim testified as follows:

Q: What did you do, not what you said, but what did you do when you got up to the neighbor’s house?
A: Woke him up, and he come to the door, and we said could we come in and stay here awhile. I am afraid my husband will come home and kill me.

At this point, defense counsel objected, without grounds, and the court sustained the objection. Appellant’s motion for mistrial was overruled. The second answer under scrutiny follows:

Q: Mrs. Cheever, you left the door open where you were with Betty upstairs?
A: She said he had a set of keys. I don’t know, I didn’t hear Bob kick the door in.

Defense counsel objected to the answer and the jury was instructed to disregard it. Again defense counsel’s motion for mistrial was overruled.

Appellant now contends that these two statements are hearsay and highly prejudicial. At trial, however, he made only general objections. Appellant cannot broaden the scope of his objection on appeal from the precise objection made at the trial. State v. Blockton, 526 S.W.2d 915, 920 (Mo.App.1975); State v. Larkins, 518 S.W.2d 131, 134 (Mo.App.1974). Nor can appellant raise only new grounds of objection on appeal. State v. Davis, 482 S.W.2d 486, 489 (Mo.1972); State v. Cromwell, 509 S.W.2d 144, 147-148 (Mo.App.1974).

Both of these answers were unresponsive to the questions asked. Because only a general objection was made, it appears that unresponsiveness was the ground upon which the objection was sustained. No mention of hearsay was made by defense counsel or the court. Hence, appellant has preserved nothing for review. The motions for mistrial were properly denied.

Appellant next urges that the trial court erred in denying his motion for mistrial after the state told defense counsel that it would make available appellant’s clothing if appellant wanted to offer it as evidence. Appellant claims this was improper comment upon the burden of proof, an implication that he had an obligation to produce evidence.

The offer of the prosecutor was not even an indirect reference to the failure of the accused to testify. Prosecutors are permitted to comment on the failure of a defendant to produce evidence. State v. Sechrest, 485 S.W.2d 96, 98 (Mo.1972); State v. Pruitt, supra, 790. Even so, the state’s offer to make appellant’s clothes available to defense counsel if he wanted to offer them as evidence was only peripherally a comment on failure of the appellant to introduce evidence.

Appellant’s objection was sustained; the comment was stricken from the record and the jury instructed to disregard it. There was little likelihood that it could have created a distorted view of the state’s burden of proof in the minds of the jurors. In addition, the court instructed the jury using the standard criminal instruction on burden of proof (MAI—CR 2.20).

The trial court has broad discretion in deciding whether comments by counsel are improper and whether improper remarks are so prejudicial as to require a mistrial which should be granted only under extraordinary circumstances where the incident is so grievous that the prejudicial effect cannot be removed in any other way. State v. Stapleton, 518 S.W.2d 292, 301 (Mo. banc 1975); Hoene v. Associated Dry Goods Corporation, supra, 485. The trial court did not abuse its discretion here.

Appellant argues that the trial court erred in denying his motion for a mistrial after the state called appellant an “animal” in closing argument, alleging that the comment was highly prejudicial and instrumental in contributing to an “inflamed atmosphere against the defendant [appellant].”

A prosecutor may not apply personal epithets to a criminal defendant or otherwise abuse him. Cloud v. State, 507 S.W.2d 667, 668 (Mo.App.1974). This is so even in closing argument where the prosecutor has wide latitude so long as he stays within the confines of the evidence and reasonable inferences therefrom. Argument cannot go beyond bounds so that it excites, inflames or appeals to prejudice. State v. Nichelson, 546 S.W.2d 539, 543 (Mo.App.1977).

The trial court, however, has broad discretion in deciding whether improper argument necessitates a mistrial. State v. Morris, 470 S.W.2d 467, 471 (Mo.1971). Where the objection was sustained, the comment stricken from the record and the jury instructed to disregard it, the trial court may determine that these remedies have overcome the prejudicial effects. State v. Burnett, 429 S.W.2d 239, 246 (Mo.1968). The trial court here decided that the prejudicial effect was cured by these measures, that a mistrial was not necessary. Appellant cites no authority to support his claim that the prejudicial effect was not cured by the remedial measures taken.

In State v. Wintjen, 500 S.W.2d 39 (Mo.App.1973), a conviction for rape was affirmed even though the state referred to the defendant as “dangerous” in closing argument. The trial court, as it did here, sustained the defense objection but denied the motion for a mistrial. A similar result occurred in State v. Burnett, supra, where the conviction was affirmed. The trial court in Burnett sustained an objection to the state’s calling defendant a “hoodlum,” ordered the statement stricken but denied a request that the jury be discharged.

In the earlier case of State v. Dixon, 253 S.W. 746 (Mo.1923), a judgment of conviction of stealing was reversed and remanded for three reasons. The state in closing argument had referred to the defendant as “some dirty, low-down hound and scoundrel like the defendant.” The trial court instructed the jury in writing to disregard the statement. The supreme court characterized the remark as “grossly unprofessional and prejudicial.” State v. Dixon, supra, 748. The cause was reversed and remanded because of error in admitting evidence of other crimes, error in the trial court’s treatment of prejudicial remarks in the state’s opening statement, in addition to the state’s prejudicial comments in closing argument. Dixon at first reading seems to support appellant’s argument but can be distinguished because of the other error present upon which the court’s decision was based. The trial court here did not abuse its discretion in overruling appellant’s motion for a mistrial.

Appellant’s eighth point relied on claims the trial court erred in overruling appellant’s objection to the state’s comment in closing argument that Oliver Basham’s testimony at trial was consistent with his grand jury testimony because the grand jury testimony was not in evidence. This point is ruled against appellant.

Appellant himself used witness Basham’s grand jury testimony on cross-examination in an apparent attempt to impeach him. Thus, there was arguably an evidentiary basis for the state’s reference to Basham’s grand jury testimony. In cross-examination the appellant referred to at least four questions asked of Basham during his grand jury appearance. The state’s comment in closing argument was allowable.

Control of arguments of counsel is within the discretion of the trial court and the judge’s ruling will not be disturbed on appeal unless there is an abuse of that discretion. State v. Frankoviglia, 514 S.W.2d 536, 539 (Mo.1974). There was no such abuse of discretion here.

Appellant’s final point charges error in denying his motion for acquittal at the close of all the evidence, alleging insufficiency of the evidence to meet the state’s burden of proof. He attacks the credibility of witnesses Basham and Cheever, the results of a gunshot residue test made on appellant’s hands, and the lack of evidence of a motive.

The evidence must be sufficient for the jury to determine, beyond a reasonable doubt, that the appellant shot and killed the victim. The weight of the evidence is for the jury only if this court finds there was substantial evidence of guilt. State v. Talbert, 524 S.W.2d 58, 59 (Mo.App.1975). In determining the sufficiency of the evidence, the facts in evidence and all favorable inferences reasonably to be drawn from the facts must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be ignored. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976).

The evidence adduced was sufficient as to every major element of the offense. Some of the facts in evidence are:

1. The victim had been drinking most of the day with appellant at appellant’s residence.
2. The wives of the victim and appellant spent all day with them but left at 11:30 p. m.
3. At approximately 2:00 a. m., appellant, visibly shaken, arrived at Bas-ham’s apartment and told Basham he had shot “old Ben [Cheever].” He gave Basham a gun which contained one expended and four live .32 caliber cartridges.
4. The victim was found by police some time after 3:00 a. m. lying dead on the floor of appellant’s kitchen.
5. The wound showed powder burns. The gun had been fired close to the victim’s head and the bullet caused his death.
6. There was no sign of a struggle in appellant’s apartment.
7. A ballistics test showed the fatal bullet had been fired from appellant’s revolver.
8. A gunshot residue test administered one to one-and-a-half hours after appellant’s arrest showed appellant had recently handled a firearm.

There was sufficient evidence to submit the case to the jury. The credibility of the witnesses and the weight to be given to their testimony was for the jury to decide under the instructions of the court (MAI-CR 2.01).

Appellant argues that proof of motive is important in a case based on circumstantial evidence when the defendant denies committing the crime. State v. Kirksey, 547 S.W.2d 149, 151 (Mo.App.1977). But it is not an essential element of murder. State v. Stapleton, supra, 296. Appellant here did not take the stand and deny the crime, but relied on his claim that the state failed to meet its burden of proof.

The evidence outlined above diminished the importance of proof of motive. Appellant and the victim had been drinking together for more than twelve hours. The victim was shot and killed in appellant’s apartment, the scene of the drinking bout. Appellant came to Basham’s apartment in a “nervous and shaking” condition and told Basham he had shot Ben. Appellant gave Basham the gun containing an expended cartridge, a gun which was later shown to be the murder weapon. All of this plus the other evidence obviated the need for any further proof of motive.

The judgment is affirmed.

WEIER, C. J., and SMITH, J., concur.

      . Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).