text:
    STATE of Missouri at the relation of CITY OF GOWER, a Municipal Corporation, Respondent, v. Roy GEE, Sid Johnson, George Isaacs, Lawrence Maxey and Rex Deshon, as members of and constituting the Board of Zoning Adjustment of Buchanan County, Missouri, Appellants.
    No. KCD 29647.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Michael A. Insco, Pros. Atty., Buchanan County, St. Joseph, for appellants.
    Lawrence V. Fisher, Frost, Fisher & Poland, Plattsburg, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

The City of Gower, Clinton County, Missouri, is a municipality of the fourth class. It is geographically located adjacent to rural Buchanan County, Missouri, a county of the second class. Following the passage of a bond issue by the voters of Gower to finance the construction of a sewer treatment facility, Gower acquired an option to purchase land outside its municipal corporate limits but within five miles thereof, for that purpose. This land was in Buchanan County and was zoned for agricultural use by the County. Gower made application to the Buchanan County Board of Zoning Adjustment for an exception to that zoning and, after hearing, this application was rejected by the Board. Gower thereupon petitioned the Circuit Court of Buchanan County for a Writ of Certiorari, which was granted. The above facts were stipulated by the parties and there were no disputed factual issues before the court below. That court, based upon its findings of fact and extensive conclusions of law, by its decree of June 28, 1977 declared all proceedings before the Board to be coram non judice and void for want of jurisdiction, under applicable law, and reversed the Board’s order rejecting Gower’s application and remanded the cause to the Board with directions to dismiss the proceedings. This appeal was thereupon taken.

The board raises a single point upon appeal, that the court erred in holding the Board to be without jurisdiction “because the extraterritorial power of eminent domain does not exempt a fourth class City from the zoning laws of a second class County”. On the other hand, Gower asserts that under applicable constitutional, statutory and decisional law, it is exempt from the zoning laws of Buchanan County, restricting the use of the property, upon which it desires to construct its sewage disposal facility, to agricultural purposes.

Thus, the issue here presented is a conflict of jurisdiction between two governmental bodies in the exercise of their police powers and necessitates a determination as to which has overriding and superior power under the facts in this case. This presents a matter of law.

Preliminary to a consideration of the decisive issue here presented, it should be noted that there is no dispute, and indeed, none would be tenable, that the control and disposal of sewage by Gower, on the one hand, and the control of the use of property by Buchanan County by zoning, on the other hand, are governmental as opposed to proprietary functions within the ambit of the proper exercise of police power. State on Information of Dalton v. Metropolitan St. Louis Sewer District, 365 Mo. 1, 275 S.W.2d 225, 230[5] (1955); State ex rel. Askew v. Kopp, 330 S.W.2d 882 (Mo.1960), discussed infra. Rather, Gower, while not challenging the right of Buchanan County to adopt the zoning here in question, claims that it is exempt from its provisions.

The obligation of this Court on this appeal in determination of the issues, thus narrowly confined, necessitates an examination of the constitutional, statutory and de-cisional declarations and the extent of the power of each of the governmental entities here at war on the issue presented.

The basic power of Gower stems from Article IV, Section 37, Constitution of Missouri (1945), which provides:

“The health and general welfare of the people are matters of primary public concern; and to secure them * * * the general assembly may grant power with respect thereto to counties, cities or other political subdivisions of the state.”

Pursuant to this constitutional authority, § 71.680 RSMo 1969 (Laws 1955, p. 305, Sec. 1) provides in part:

“1. In addition to their other powers for the protection of public health, each city of the * * * fourth class of this state * * * may ⅜ SUch other and further acts as are expedient for the protection and preservation of the public health, as the public health may be affected by the accumulation of * * * refuse matter and municipal waste. Such cities may acquire by purchase * * or otherwise, within or without the corporate limits of such cities incinerators for the destruction of * * * refuse matter and municipal waste; acquire * * all equipment necessary or expedient * * *; and acquire by any of such means purification plants or sewage disposal plants for the purification of all sewage accumulating in such cities. * * * ” (Emphasis added)

The regulatory powers conferred by this section do not limit but rather define the sovereign powers inherent in any city within its terms and permits them to exercise such powers with legislative recognition. Section 79.370 RSMo 1969; Campbell v. City of Frontenac, 527 S.W.2d 643, 645[3] (Mo.App.1975).

Further clarification was afforded by Section 79.380 RSMo 1969, under that Chapter of the statutes applying specifically to fourth class cities. This section provides in part:

“ * * * They may purchase or condemn and hold for the city, within or without the city limits, or within five miles therefrom all necessary lands for * * * sewer carriage and outfall * * *" (Emphasis added)

Chapter 64, “County Planning, Zoning and Recreation”, RSMo 1969, sets up a broad and sweeping method whereby counties may adopt a master zoning plan, administer such plan and enforce its provisions. No dispute exists in this case that such law empowered Buchanan County to set up such a plan and to zone the property here involved for agricultural use. However, the provisions of this law are couched in general terms and contain no provision or provisions which prohibit the exercise of the specific constitutional and legislative powers granted to municipalities of the fourth class, such as Gower, to acquire by condemnation or purchase property for the governmental purpose of construction of a sewage disposal plant under §§ 71.680 and 79.380 RSMo, supra.

The power of eminent domain is inherent in sovereignty and exists in the State of Missouri and initially the right to exercise such power “is exclusively a legislative prerogative, subject only to such limitations as are fixed by the constitution itself.” State ex rel. St. Louis Union Trust Company and City of Ladue v. Ferriss, 304 S.W.2d 896, 898[1, 2] (Mo. banc 1957).

As pointed out in Ferriss, supra, the only constitutional restriction placed upon this sovereign power is that “private property shall not be taken * * * for public use without just compensation.” Article I, § 26.

Valid argument cannot be maintained under these facts and applicable law that the City of Gower was not delegated specifically the power to exercise the state’s sovereign right to acquire property by condemnation or purchase for the purposes enumerated under § 71.680 and within the limits of § 79.380. No constitutional provision limits this power (except as above noted) and no contention is made that the proposed use, acquisition and location of the sewage disposal plant by Gower is not within the specific power delegated by these sections.

In the Ferriss case, the City of Ladue under its general zoning plan and ordinances excluded the construction and maintenance of schools within a certain zone. Under a legislative grant of authority, constitutionally derived, empowering it to do so, the School District of Ladue commenced condemnation proceedings to acquire land within that zone for the purpose of constructing a schoolhouse. Prohibition was instituted to prevent the hearing or processing of the condemnation proceedings. The Supreme Court held that the school district under the legislation giving it the power to select, locate and procure sites for public schools had the right to do so and the zoning ordinances of Ladue could not preclude it from the exercise of such right. The preliminary rule in prohibition was quashed.

Obviously, Ferriss involved a conflict between the zoning laws of a municipality and the constitutionally derived power of the municipal school board to establish a schoolhouse on land selected by such board. The case at bar, as previously stated, involves such a dispute as to property use between Buchanan County and Gower. However, the holding in Ferriss, that the exclusive constitutional and statutory powers vested in the school board, could not be limited or restricted by the municipal zoning ordinances, applies with equal force and vigor to the conflict here revealed.

The case of Askew v. Kopp, et al. and City of Raytown, 330 S.W.2d 882 (Mo.1960) is precisely in point and controlling here. There, the City of Raytown, a fourth class city, located in Jackson County, acquired options on land located 2V2 miles outside its boundaries for the purpose of building a sewage disposal plant. This property was in an area of Jackson County zoned for agriculture. Raytown thereupon applied for authorization from the county to construct such facility and, after a public hearing, the Board of Zoning Adjustment entered its order granting the authorization requested. The protestants (adjoining landowners) thereupon filed their petition for a writ of certiorari to the Circuit Court where the order of the Board of Zoning Adjustment was affirmed. The protestants appealed.

In its opinion the court traced the source of Raytown’s power to Article IV, Section 37, of the Constitution of Missouri, as implemented by Section 79.380 and Section 71.680 and stated, l.c. 887[3]:

“No applicable provision of the Constitution relating to zoning is to be found.”

as applicable to counties of the first class. The power of such class of counties to zone property in unincorporated areas of the county is derived solely from § 64.090 RSMo 1969. The court pointed out, however, that such is not the ease for special charter counties. This class of counties enjoys constitutional authority to include in its charter a provision “for the vesting and exercise of legislative power pertaining to public health, * * * planning and zoning, in the part of the county outside incorporated cities.” Article VI, Section 18(c), Constitution of Missouri. However, the court stated “but Jackson County does not operate under a special charter” as, indeed, it did not in 1958 when the Askew litigation occurred. See, Footnote No. 2, p. 887, Askew. The Court further stated, l.c. 888, 890[4-8, 9, 11]:

“A review of these provisions in the light of the decided cases leads to the conclusion that the City of Raytown is not subject to the Zoning Order of Jackson County. Local zoning ordinances are not applicable to public uses of property for which an agency of the government has the power to acquire lands by the exercise of the power of eminent domain. * *
******
The power granted to the county court under the zoning enabling act with respect to the unincorporated areas of the county must yield to the power granted cities of the fourth class to purchase or condemn all necessary lands within five miles of such city for sewer carriage and outfall and for the construction of sewage disposal plants. The right to condemn is superior to property rights, and is limited only by the constitution. * * * The granting to the city of the right to condemn for sewer carriage and outfall, § 79.380, and to acquire sewage disposal plants, § 71.680, either within or without the corporate limits and within five miles thereof, in unconditional language, without any requirement in either section that the city respect or comply with local zoning regulations, together with the fact that the zoning law, § 64.090, does not empower the county court to regulate, or restrict the location of city-owned sewage disposal plants in the unincorporated areas of the county, * * * indicate a legislative intent that the city's right to locate, acquire and establish a sewage disposal plant not be subject to the zoning orders of the county court. * * * (Emphasis added)
******
The fact that the city’s rights in the lands in question were not actually acquired by the exercise of the right of eminent domain, but by private negotiation and agreement with the owners, does not militate against our holding. The important consideration is that the city had the right to condemn private property for the use in question and not whether the city in the particular case actually resorted to condemnation. (Emphasis the Court’s)
⅛ * ⅜ ⅜ ⅜: ⅜
We conclude that in locating the sewage disposal plant the city was not subject to the county zoning order. * * * All of the proceedings before both [County] bodies were coram non judice and void.”

The court in Askew reversed the judgment of the Circuit Court and remanded the cause with directions to that court to reverse the order of the county board of zoning adjustment and to remand the cause to that board with directions to dismiss the proceedings.

The appellants herein place their reliance on the cases of St. Louis County, et al. v. City of Manchester, 360 S.W.2d 638 (Mo. banc 1962) and Appelbaum, et al. v. St. Louis County, 451 S.W.2d 107 (Mo.1970) in their effort to reverse the judgment below. Those decisions are clearly distinguishable and are not authoritative here.

Both of these cases involved St. Louis County, a first class charter county. In Manchester, that municipality sought to establish a sewage treatment plant outside its city limits in an area zoned by the county as residential. The Supreme Court reversed a judgment of the Circuit Court dismissing an action wherein the county sought to enjoin the construction of such facilities and remanded the case with directions to grant the injunction. After discussing the constitutional and statutory enactments, above reviewed in relation to the Askew case, the court said (l.c. 641[3]):

“Contrary to the city’s contention, the grant of municipal powers to charter counties under Section 18, Art. VI is meaningful and vests rights which cannot be taken away or impaired by the general assembly, one of which is to exercise legislative power pertaining to planning and zoning in the part of the county outside of incorporated cities. * * * ” (Emphasis added)

The Manchester court distinguished the Askew decision upon the basis that Jackson County was not (at that time) a home rule charter county to which Article VI, Section 18, was applicable.

In the Appelbaum case, St. Louis County proposed to construct an incinerator and land fill on land within the Villages of St. John and Bel-Ridge in St. Louis County which land was zoned by municipal ordinances for residential and light industrial use. The appellants sought an injunction against the county to halt this project, which was denied at the trial level. The Supreme Court affirmed and, after pointing out that St. Louis County was a first class charter county under Article VI, Section 18 of the Missouri Constitution, and had the statutory power as such, under the provisions of Section 49.303 RSMo 1969, to condemn land for the purposes contemplated where necessary for protection of public health, stated (l.c. 112[3]), quoting from an Ohio decision:

“ * * * ‘To suppose that zoning ordinances may limit or prevent the public use for which land is taken is to invest municipalities with power to restrict the exercise of the power of eminent domain’ * * * >i

The court further held that a charter county was not restricted by the statutes limiting zoning by counties to unincorporated areas. In discussing and distinguishing the Manchester case, not only upon the facts there presented and upon the basis that Jackson County was then not a charter county possessing any power under Article VI, Section 18, of the Missouri Constitution, the court also employed this language (l.c. H3[3]):

“ * * * By contrast, it has been demonstrated that St. Louis County has specific constitutional authority with respect to * * * [the proposed project] * * and the appellant municipalities do not possess any grant of power under which to restrict the County even upon land within those municipalities. * * * ” (Emphasis added)

The Manchester and Appelbaum eases have little factual or legal application to the ease at bar. Rather, this case must be ruled upon the principles of Askew. Accordingly, the City of Gower had the legislative authority to construct its sewage plant as proposed and the Buchanan County zoning restriction on the use of the land site had no application and posed no obstacle to such use by Gower. Neither did the Buchanan County Board of Zoning Adjustment have any jurisdiction over the matter, its proceedings were coram non judice, and the judgment of the Circuit Court must be affirmed.

It is so ordered.

All concur.

      . This section of the statute was amended by Laws 1969, p. 136, § 1, by extending the five mile limitation as to distance to ten miles.


source: Caselaw Access Project

author: SOMERVILLE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. William SYKES, Appellant.
    No. KCD 29680.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Robert A. Simons, Kansas City, for appellant.

      John D. Aschroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant, a second offender, was charged by information with the crime of selling heroin, a Schedule I controlled substance. A jury found him guilty of the charged offense and the trial court fixed his punishment at ten years imprisonment.

Defendant does not question the sufficiency of the evidence to support his conviction. The state’s evidence was simple, direct and straightforward. On June 27, 1975, a female informant called the police and advised that she had arranged a “buy” from defendant. The informant then led two plainclothes police officers to 31st and Prospect in Kansas City, Missouri, where she and one of the officers bought three “caps” from defendant. A subsequent laboratory analysis confirmed that the three “caps” contained heroin.

All of defendant’s efforts on appeal are funnelled into one point of alleged error: “The court erred by allowing the prosecutor during his cross-examination of the appellant to draw the inference that the appellant was under a duty to produce evidence on his own behalf contrary to the requirements of the Fifth and Fourteenth Amendments to the Constitution.” The evidentia-ry background for this single point unfolds as follows: Defendant took the stand in his own behalf and testified, inter alia, that on the occasion in question he was at the corner of 31st and Prospect in the company of three friends — Jeno Lewis, Eddie Lee and Baby Lawrence. He further testified that the informant approached him and his three friends and asked if they had any drugs. Defendant denied he had any drugs, denied that he sold any drugs to informant, and denied that he sold any drugs to anyone else. On cross-examination, the following questions were put to defendant by the state, and the following answers were given by defendant in response:

“Q How long had you known Baby Lawrence and Jeno and Eddie Lee?
A Well, when I was paroled here to Kansas City, ’73, I met them through the program when I was up there six weeks.
Q And this occurred two years ago, right?
A Sure.
Q During the two year period, have you made any effort to contact Eddie Lee, Baby Lawrence or Jeno?
A Baby Lawrence is in Fort Worth and Eddie Lee, he died of an overdose, overdose of drugs last year I think it was. And Jeno, I don’t know where he stays, but if I knew where he stayed, he would probably come and tell you the same thing.
Q My question was did you make any effort to find them.
A Sure.
Q What did you do?
A I didn’t find either one of them.
Q No, I say what efforts did you make to find them.
MR. SIMONS [defense counsel]: Your Honor, I object. May we approach the Bench, please.”

A lengthy discussion outside the presence of the jury then ensued between judge and counsel, the upshot being that the prosecuting attorney withdrew the question which defense counsel had objected to and the general subject matter was dropped and never pursued further by the state. On appeal, defendant appears to take the position that the trial court of its own volition should have stopped the prosecuting attorney from embarking on the presently complained of course of interrogation on the ground that it violated defendant’s constitutional privilege against self-incrimination.

Procedurally, the untimeliness of defendant’s objection, coupled with defendant’s failure to move to strike his preceding testimony, or to have the jury instructed to disregard it, or for declaration of a mistrial, preserved nothing for appellate review. State v. Velanti, 331 S.W.2d 542, 547 (Mo.1960); and State v. Wintjen, 522 S.W.2d 26, 28 (Mo.App.1974).

Substantively, defendant’s single point viewed anent the trial record leaves no doubt that it lacks virility on appeal even if it had been properly preserved. Cases are legion holding that an accused in a criminal case who voluntarily takes the stand as a witness in his own behalf waives his constitutional privilege against self-incrimination and subjects himself to the perils of cross-examination to the extent permitted by law. As representative of such cases, see State v. Graves, 352 Mo. 1102,182 S.W.2d 46 (1944), and State v. Hill, 328 S.W.2d 656 (Mo.1959). Defendant has never claimed, either during trial or on appeal, that the line of cross-examination pursued by the state went beyond the bounds prescribed in Section 546.260, RSMo 1969. Even if it did, it did not go so far as to suggest that the verdict of guilt returned by the jury represented a “manifest injustice or miscarriage of justice” so as to bring the scope of the cross-examination pursued by the state within Rule 27.20(c), the “plain” error rule. Frankly, defendant’s contention on appeal that the cross-examination which he was subjected to violated his constitutional privilege against self-incrimination injects a totally false issue in the case. For reasons stated, defendant’s single point on appeal is found to be totally lacking in merit.

Defendant’s adroit attempt on appeal to raise an unpreserved issue into one of constitutional magnitude having failed, the judgment below is affirmed.

Judgment affirmed.

All concur.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Connie Louise DAVIS, Appellant.
    No. KCD 29702.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Clifford A. Cohen, Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Connie Louise Davis was convicted of stealing property over the value of $50.00, § 560.156, RSMo 1969, and sentenced to ten years imprisonment by the court under the Second Offender Act. On this appeal Davis contends she is entitled to a new trial because of the comment by the prosecutor on her failure to testify. Reversed and remanded.

Davis does not question the sufficiency of the evidence. The jury could reasonably have found that Davis left a Harzfeld’s store in Kansas City with a coat belonging to Harzfeld’s in a plastic bag carried over her arm under a raincoat. When she left the store, Davis was followed by security officers who saw her go about two and one-half blocks and enter an ice cream shop. While in the shop she was observed placing the plastic bag under a machine. When Davis left the store she was arrested and the plastic bag with the coat was retrieved from the shop.

Davis did not testify but called an employee of the ice cream shop to testify that a person observing from outside the shop in the position occupied by the officer could not see anything inside the shop below the armpit level of a person standing.

In his final argument the prosecutor made the following argument:

Look at the facts here. All of the facts tend to show the guilt of the defendant. I don’t see any facts here, and I don’t think the evidence shows any fact, that tend to show any innocence of the defendant.
Mr. Lopez talked about his defense to this. I didn’t really hear it. Maybe you did. He mentioned this last sentence in Court’s Instruction 6. “You should not find the defendant guilty unless the facts and circumstances proved are consistent with each other,” there’s no question that they’re consistent with each other, “and the guilt of the defendant, and inconsistent with any reasonable theory of her innocence.” You have heard no reasonable theory of innocence from this defendant.

Mr. Lopez, who represented Davis, objected to the statement of the prosecutor on the grounds that it was an improper comment on the defendant’s right to testify and requested a mistrial. The court overruled both the objection and the motion for mistrial and further refused to instruct the jury to disregard the comment of the prosecutor. The trial court construed the comment by the prosecutor as a proper argument that there were other witnesses who were not called by the defendant but who could have been called.

Rule 26.08, a verbatim copy of § 546.270, RSMo 1969, provides if an accused shall not avail himself of his right to testify it shall not be referred to by any attorney in the case. Case law is abundant in this State in which the rule and constitutional provisions relating to the right of an accused not to testify have been considered. In State v. Rothaus, 530 S.W.2d 235, 237[1] (Mo. banc 1975) the court stated: “[arguments made by a prosecutor, wherein there are direct and certain references to failure of an accused to testify, constitute reversible error.” In State v. Lindner, 282 S.W.2d 547, 550[2-4] (Mo.1955) the court stated with reference to the prohibition against comment of a failure of an accused to testify: “[t]he ultimate test of whether the prohibition has been violated is whether the jury’s attention was called to the fact that the accused did not testify.”

Of course each case in which this question is raised contains a slightly different statement by the prosecutor so that no two statements can be exactly equated. However, under the tests which require that the comment be direct and certain and that it call the jury’s attention to the fact that the accused did not testify, this court is satisfied the statement in this case falls within the prohibited area of comment. The jury was told directly that they “heard no reasonable theory of innocence from this defendant.” This was unequivocally a direct and certain reference to Davis, the defendant, and to the fact that the jury had heard nothing from this defendant specifically which amounted to a reasonable theory of innocence. The prosecutor could hardly have made a more direct and certain comment on the failure of Davis to testify.

The only case relied on by the State to justify this comment is State v. Busby, 486 S.W.2d 501, 505 (Mo.1972) in which the prosecutor stated, “if he isn’t guilty — [defense counsel] claims to have proved to you he isn’t guilty — ask yourself where is the evidence that he isn’t guilty.” There is no comparison between the argument in the present case which specifically referred to “this defendant” and that approved in Busby, where the prosecutor clearly was only calling attention to the absence of evidence rather than the defendant’s failure to testify-

This court cannot agree the comment was directed at the existence of witnesses not called by Davis. Whether or not the resultant effect was intentional, the statement could only rivet the jury’s attention on the failure of Davis herself to offer some explanation or theory to prove her innocence. There is no room for any other explanation of the impact of this comment on the jury.

The assistant prosecutor who tried the case refused to approve the transcript because he stated he had said in the argument, “you have heard no reasonable theory of innocence from the defense.” However, under Rules 28.08 and 81.12(c) the trial court approved the transcript which contains the statement as first set out. This court, of course, is bound to accept the version contained in the transcript approved by the trial court.

The judgment is reversed and the cause remanded for a new trial.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Dennis C. FULSOM, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29738.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Robert N. Adams, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

      Before HIGGINS, Special Judge, Presiding, and PRITCHARD, J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from denial, without evidentiary hearing, of motion under Rule 27.26 to vacate and set aside judgment and sentence to life imprisonment entered upon verdict of guilty on charge of murder, first degree. The dispositive question is whether the court should have granted movant’s request for change of judge. Reversed and remanded.

Dennis C. Fulsom filed his motion, pro se, July 13,1977, in form provided by Appendix to Rule 27.26. He alleged ten grounds for relief and supporting facts under paragraphs 8 and 9. Immediately preceding the allegations of grounds for relief in paragraph 8 is an “Attachment * * * ” in which, among other things, he requested evidentiary hearing, appointment of counsel, findings of fact and conclusions of law, and “the disqualification of the Honorable James A. Moore for reasons hereinafter described in his attached affidavit to disqualify judge * * He concluded his motion with a list of ten witnesses which included Judge Moore; a “Motion To Recuse the Honorable James A. Moore * * *,” with affidavit in support in which he asserted “Movant cannot have a fair and impartial hearing by reason of the interest and prejudice of the Honorable James A. Moore,” and “Movant desires to call the Honorable Judge Moore as a witness * and a motion to appoint counsel other than the Office of Public Defender on account of his allegations of ineffective assistance of counsel and excessive case loads on the part of the Office of Public Defender.

The court, by Memorandum Opinion and Judgment of August 22, 1977, recited in denial of movant’s request for change of judge, “[tjhere is no indication, much less proof, of any attempt to comply with Rule 51.05 and particularly Rule 51.05(c),” and “Movant’s intention to call the judge as a witness is ill-conceived,” after which the court, without appointment of counsel for movant, overruled the motion on the ground, “[t]he motion and the files and records of the case, including the transcript, conclusively show that the prisoner is entitled to no relief. No issues of fact or questions of law are presented requiring appointment of counsel or an evidentiary hearing. Rule 27.26(e) and (h).”

Appellant contends, justly so, that in these circumstances, the court was required to sustain movant’s application for change of judge, and was disqualified from proceeding further.

As recognized by the court’s memorandum, “This is an independent civil action, Rule 27.26(a); and Rule 51.05 governs disqualification of the judge of ‘the Court which imposed such sentence.’ State ex rel. Reece v. Campbell, 551 S.W.2d 292, 297[6] (Mo.App.1977).”

Rule 51.05(a) provides that a change of judge shall be ordered in a civil action upon the filing of a written application therefor and the application need not allege or prove any cause for such change of judge.

There is no question of timeliness as limited in Rule 51.05(b).

Rule 51.05(c) provides that a copy of the application and notice of the time of presentment to the court shall be served on all parties. Service on the State as the opposing party was accomplished in this case under the requirements of Rule 27.-26(e), which provides that as soon as a motion under the rule is received by the circuit clerk, he shall notify the prosecuting attorney and transmit a copy to him. There is no question of the clerk’s compliance, and the application to disqualify was contained in the motion.

Rule 51.05(e) requires the judge from whom a change is sought to sustain such timely application and secure another judge to try the cause as provided in Rule 51.-05(e)(2).

Accordingly, the judgment is reversed and the cause is remanded.

All concur.

      . The judgment was affirmed State v. Fulsom, 534 S.W.2d 72 (Mo.App.1976).

      . The Committee Note to Rule 51.05 suggests “Plaintiff requests a change of judge” as a sufficient application.


author: DIXON, Judge.

text:
    Rayford M. WILSON, Plaintiff-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri, and the Division of Employment Security of the State of Missouri, and Superior Toy and Novelty Corporation, Defendants-Respondents.
    No. KCD 29746.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Dale K. Irwin, Legal Aid of Western Missouri, Kansas City, for plaintiff-appellant.
    Sharon A. Willis, Kansas City, Rick V. Morris, Jefferson City, for respondent, Division of Employment Sec.

      Charles B. Fain, Jefferson City, for respondent, Labor and Industrial Relations Commission of Missouri.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

This is an appeal from the order of the circuit court affirming the denial by the Labor and Industrial Commission of Missouri of unemployment benefits claimed to be due under Section 288.050 RSMo Supp.1975.

The issue to be determined is whether or not the finding that the employee left his employment voluntarily and without good cause attributable to his work or to his employer is supported by competent and substantial evidence upon the whole record.

The appeals tribunal denied relief to the employee; the Labor and Industrial Commission denied review; and the circuit court affirmed the Commission’s decision.

Rayford Wilson was employed by Superi- or Toy and Novelty Corporation from March, 1975 until August 18, 1976. His primary work was that of a truck driver, but there was evidence that he did other work for the company when he was not needed as a driver. On August 17, Wilson’s supervisor, “Henny,” asked him to help prepare some stuffed toys for packaging. This is referred to in the record as “smashing bear heads.” The job required Wilson to lean into a box that was 5½ feet tall in order to get the toys out. Mr. Wilson testified that this process of leaning into the box hurt his back which he had injured previously while working for Superior Toy. Wilson did not complain about the task on August 17, but when asked to do the same job on the following day, August 18, Wilson refused. Wilson’s testimony is the only direct record of the conversation that followed:

Q. And what did you say to the supervisor?
A. How come — I refused to do it because I hurt — it made me hurt — hurt my back. I told him I didn’t think I should do it because they were hiring to have people from the labor pool come down there, they should let them do it .
Q. What did your supervisor say then?
A. Well, he told me if I didn’t do it, time out. So, I went and timed out cause I think I’m being fire my ownself. So, I went home.

On reporting for work the next day, Wilson was given his termination slips.

Wilson’s supervisor did not testify at the hearing about the incident that led to Wilson’s termination. Rosenberg, the general manager of Superior Toy and Novelty Company, appeared and testified that it was his understanding from talking to the supervisor shortly after the incident, and from his records, that Wilson had refused to work solely on the basis that he thought other workers from the labor pool should have been assigned the work. Although Rosenberg testified that he was aware that Wilson had suffered the original back injury, he had no personal knowledge that Wilson complained or did not complain of the aggravation of that injury at the time of the events on August 17-18.

Upon the close of the hearing, the referee made the following findings:

. He [Mr. Wilson] left his work because he was hired as a delivery truck driver, and on August 17, 1976, he was assigned by the plant manager to another job which required him to lean over into a box to get materials out. This work bothered the claimant’s back because he had injured his back previously. The claimant did not mention any back trouble to his supervisor. On August 18, 1976, the claimant was again told by the plant manager to do the same work he had done the previous day. The claimant refused to do the other work .
The Referee finds the claimant left his work voluntarily on August 18, 1976, when he was given the choice of performing the job assigned to him by the employer’s plant manager or leaving his work, and the claimant left his work. Since the claimant did not complain about his back to his employer’s plant manager, and since he did not file a grievance with his union, the Referee finds that he did not have good cause attributable to his work or to his employer for leaving his work. (Emphasis added).

The process of appeal from a denial of unemployment benefits and the scope of review in such appeals are controlled by Missouri statutes §§ 288.200, 288.210 RSMo 1969. Since the employee’s application for review of the Appeals Tribunal decision was denied, the decision of the Appeals Tribunal is deemed to be the decision of the Industrial Commission for the purpose of judicial review. § 288.200(1).

Missouri cases have repeatedly set out the limits of judicial review in these cases. As to questions of fact, Art. V, § 22 of the Missouri Constitution requires that the findings of the Industrial Commission be supported by competent and substantial evidence upon the whole record. The record is to be reviewed in the light most favorable to the decision of the Industrial Commission, and if it is supported by competent and substantial evidence and if the Commission could have reasonably made its findings from the evidence before it, this court must affirm. Crawford v. Industrial Commission, 482 S.W.2d 739 (Mo.App.1972); Von Hoffman Press, Inc. v. Industrial Commission, 478 S.W.2d 403 (Mo.App.1972); LaPlante v. Industrial Commission, 367 S.W.2d 24 (Mo.App.1963).

There can be no doubt that there was sufficient competent and substantial evidence upon the whole record to support a finding that the employee voluntarily quit his employment. The issue focuses upon the conditions under which the employee voluntarily quit.

It is the contention of the employee that the Commission erred as a matter of law in concluding that the employee did not have good cause for leaving. In the argument portion of his brief, the employee argues that the finding of the referee with respect to a lack of complaint by the employee is not justified by the evidence and that the findings of the referee are contradictory. The employee also asserts that there is no requirement in the Missouri law that a complaint of physical difficulty be made by an employee in order to make out on behalf of the employee a case of voluntary quit with good cause. The posture of this case does not require that this latter contention of a requirement of complaint by the employee be met or decided.

The issue to be first decided is whether there is competent and substantial evidence to support the findings of the referee. This requires an examination of the evidence supporting the referee’s finding that the employee did not complain, which, in the context of the referee’s award, was determinative of his finding that the employee did not have good cause for voluntarily leaving his employment. This is so because the referee found on virtually uncontradiet-ed evidence that the employee was suffering from a back ailment which was aggravated by the tasks assigned.

Reviewing the evidence in the light of this analysis, there was no competent and substantial evidence to find that the employee did not complain. The employee’s testimony recited above is less than clear on this issue; but, given its normal intendment and assuming that it was responsive to the question made, the employee did assert that he had advised his supervisor that the work was hurting his back. On the other hand, the only evidence that in any way conflicts with that evidence is the evidence of the general manager as to what the general manager had been told by the supervisor. As noted, the general manager conceded that he did not know one way or the other whether the employee had complained of his back.

The evidence of the general manager with respect to the conversations between the employee and the supervisor is plainly and unmistakably hearsay. The question then becomes one of whether or not such hearsay testimony can support the finding of the referee that the employee did not complain. In reviewing the effect of hearsay evidence, it has been squarely held that in the review of administrative proceedings an administrative agency may not arbitrarily disregard or ignore the testimony of a witness not shown to have been disbelieved or impeached by the agency. Koplar v. State Tax Commission, 321 S.W.2d 686 (Mo.1959). Only if the agency makes a specific finding that the undisputed or unimpeached evidence is not entitled to credibility and is unworthy of belief may it be said that the evidence may be disregarded. Missouri Church of Scientology v. State Tax Commission, 560 S.W.2d 837 (Mo. banc 1977) cert. den’d. - U.S. -, 99 S.Ct. 57, 58 L.Ed.2d 95 (1978). It is likewise true that hearsay evidence will not qualify as competent and substantial evidence upon the whole record to support a finding of fact by an administrative agency. Bartholomew v. Board of Zoning Adjustment, 307 S.W.2d 730 (Mo.App.1957); State ex rel. De Weese v. Morris, 359 Mo. 194, 221 S.W.2d 206 (1949).

The evidence of the general manager was not directly contradictory of the employee’s assertion that he informed his supervisor of the difficulty the work was causing him. Being of a hearsay nature, it was insufficient to support a finding of fact that the only reason for the employee’s leaving was that others should do the work. This leaves the record devoid of evidence contrary to the employee’s assertion that he left his employment because of the physical difficulty he was undergoing, or of evidence to support a finding that he left because others should do the work. Under the authority of Missouri Church of Scientology, the referee could have disbelieved the employee’s testimony. This the referee did not do. His finding that the employee left without good cause is without evidentiary support by competent and substantial evidence upon the whole record because of this failure of a factual or testimonial basis to refute the employee’s assertion that he left because his back hurt.

Because of the state of this record, it is not appropriate to make a determination of the right of the employee to unemployment compensation, for it may be that the awkward phrasing of the referee’s finding indicates a disbelief of the employee’s testimony as to the notice to the supervisor. It would appear that the only appropriate action to be taken in this case is to remand this case to the circuit court with directions to the circuit court to remand the ease to the Division of Employment Security for a new hearing on the employee’s claim. At the subsequent hearing upon a new record, the disputed issue of good cause may be determined.

Reversed and remanded with directions.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Clifford P. SHELTON, Plaintiff-Appellant, v. MISSOURI BAPTIST FOUNDATION, a Missouri Corporation, and Dr. T. W. Nelson, Executor of the Purported Last Will and Testament of Fannie Shelton Bliss, Defendants-Respondents.
    No. KCD 29752.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      Darwin E. Johnson, Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for plaintiff-appellant.
    Collins & Grimm, Macon, for defendants-respondents.
    Before HIGGINS, Special Judge Presiding, and PRITCHARD, J., and ROBERT R. WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

At trial, in a will contest, plaintiff moved for a continuance and, after the motion was denied, stood on his motion and took no part in the trial. At the close of defendants’ evidence, a directed verdict was entered for defendants. Plaintiff appeals.

Clifford P. Shelton filed suit on July 1, 1975 challenging the will of his sister, Fannie Shelton Bliss. Count I of the petition alleged incompetence of the testator and undue influence by her attorney, who was also president of the defendant, Missouri Baptist Foundation, the principal beneficiary under the will. A second count was dismissed and is not here significant.

A “NOTICE REQUESTING PLACEMENT ON TRIAL DOCKET” was filed October 8, 1976 by defendants. Defendants had attempted, prior to that time, to have the case set for trial, but a setting had been delayed at the request of plaintiff who claimed further discovery was necessary.

Trial was set for May 9, 1977. On May 5, David A. Yarger, attorney for plaintiff, filed a “WITHDRAWAL OF COUNSEL.”

On May 9, conference was held at which respondents opposed the withdrawal largely on the grounds that: this would create a delay; plaintiff had once before caused a delay in the ease by preventing it from being set; the defense had summoned 20 witnesses, at considerable inconvenience to some of them, and a jury panel had also been called. Defendants’ attorney mentioned during this conference that plaintiff’s attorney had stated he had given his client an “ultimatum to talk reasonably” and that if “Clifford [Shelton] wouldn’t talk reasonably [about settlement] he might withdraw.” Both in his filed notice and in the conference, plaintiff’s attorney insisted that the withdrawal was because a lack of communication between attorney and client had made representation impossible, and also that plaintiff was dissatisfied with his representation and wanted another attorney.

The court permitted withdrawal of the attorney and repeatedly advised plaintiff that the matter would not be continued again. Although plaintiff had indicated to the court and to his counsel that he was already talking with other attorneys, he told the court after the announcement of the order continuing the case that he had no attorney. The court advised him, “ * * * you need to get one hired today” and that there would be no more continuances. The judge reset the case for the 21st of June. The costs of summoning the jury and witnesses were assessed against plaintiff.

Plaintiff saw either two or three other attorneys: Will Berry, who refused employment on or about May 16th, Claud T. Wood, who advised plaintiff that a submissive case could not be made on the will contest, and an unnamed St. Louis attorney who also declined employment.

Plaintiff first consulted his present attorney, Mr. Darwin E. Johnson of Kansas City, on June 3,1977. Mr. Johnson reviewed the file completely before accepting employment, although a $500 retainer was paid at their first meeting. On June 7, he reviewed the court file and apparently learned for the first time that the case was set for trial on June 21. On June 8, counsel reviewed all aspects of the case with plaintiff. They discussed counsel’s impending military duty as an officer in the United States Army Reserve to begin on June 18. Counsel advised plaintiff that he would request a continuance and that he thought the court would grant it, but he further advised Shelton that the court would not be obliged to grant a continuance.

On June 8, Mr. Johnson telephoned the trial judge and informed him of his military obligation. The trial judge advised him to get in touch with counsel for defendants regarding a continuance. Plaintiff’s counsel did so, but defendants’ counsel would not consent to a continuance. On June 13, plaintiff’s counsel presented an oral request for continuance via a conference call participated in by counsel for defendants who again opposed the request for continuance. The continuance was denied. On June 16, counsel renewed the request in writing, based upon his obligation to report for military duty on June 18.

On June 21, Paul D. Cowing, a member of Mr. Johnson’s law firm, appeared with plaintiff, stating that his appearance was for the limited purpose of renewing and arguing plaintiff’s motion for continuance, and it was announced that plaintiff and his attorney had agreed that their course of action would be to stand on the motion for continuance and, if denied, take no part in the trial, and appeal solely on the basis of the denial of the motion. The motion was denied and the case went to trial. Defendants’ motion for directed verdict at the close of their evidence was sustained.

In this court, appellant’s sole point relied on is as follows:

“The trial court erred in overruling plaintiff’s oral and written motion for continuance of the trial of this cause because:
“1) The cause had only been set for trial once prior to June 21, 1977, which was May 9,1977, at which time plaintiff’s counsel, David A. Yarger, sought and was granted leave to withdraw on the day of trial, having only notified plaintiff that he would seek such withdrawal on May 5, 1977.
“2) Plaintiff was advised by the court on May 9,1977, the case would be continued to June 21, 1977, and would not be continued again for any reason and that all costs had to be paid within 30 days or his cause would be dismissed.
“3) Plaintiff was only given a 43 day continuance from May 9,1977 to June 21, 1977, within which to obtain other counsel and be prepared for trial.
“4) Plaintiff, from May 9, 1977 until June 3, 1977, contacted three attorneys prior to obtaining the representation of Darwin E. Johnson.
“5) Plaintiff timely paid all the court costs as ordered by the court on May 9, 1977.
“6) The basis for the requested continuance from June 21,1977 to July 19,1977, was because of federal military orders directing plaintiff’s counsel to active duty at Fort Bragg, North Carolina, for the period 19 June to 2 July 1977.
“7) It denied plaintiff the right to counsel of his choice.
“Taken together these facts constituted an abuse of discretion for they indicate: the allowance of plaintiffs counsel, David A. Yarger, to withdraw without first allowing plaintiff to secure other counsel; a prejudicial predisposition to deny a second continuance for any reason; an inadequate allowance of time for plaintiff to secure other counsel and his new counsel to prepare for trial; diligence on the part of plaintiff to secure other counsel and prosecute his case; absence of any intent or motive by plaintiff to hinder or delay the trial of this case; an arbitrary refusal to grant plaintiff a thirty day continuance while plaintiff’s counsel was required to be engaged in federal military service; and the working of an injustice against plaintiff by denying him the opportunity to have counsel of his choice to present his case.”

Appellant acknowledges that, in the matter of granting continuances, “tremendous discretion” is vested in the trial court and that reversible error based upon the denial of a continuance is exceptional. Mo. Public Service Company v. Argenbright, 457 S.W.2d 777, 785[10] (Mo.1970). As appellant points out, such discretion may not be exercised arbitrarily and an abuse of discretion in that regard does provide basis for reversal of the trial court. Mo. Public Service Company v. Argenbright, supra. “A trial court has no right to arbitrarily refuse a continuance to a party to a suit where there has been due diligence in preparing for trial, and when it would work injustice or oppression.” Laun v. Ponath, et al., 105 Mo.App. 203, 79 S.W. 729 (1904). The facts of the particular ease must be examined to ascertain whether or not the trial court’s refusal of a continuance amounted to an abuse of discretion. Harms v. Simkin, 322 S.W.2d 930 (Mo.App.1959).

Appellant’s point marshals the facts which he contends show an abuse of discretion in this case on the part of the trial court. Examination of those facts is, therefore, in order.

Although, as stated by appellant, the case had actually been set for trial only once prior to June 21, 1977, counsel for respondents stated that his effort to obtain a setting prior to that made in December, 1976, had been resisted by then counsel for appellant on the grounds that he needed time for further discovery. Counsel for appellant did not dispute the statement of respondents’ counsel that no effort had been made to accomplish the additional discovery before the May 9, 1977 conference.

Appellant would place the blame for withdrawal of counsel Yarger upon Yar-ger’s “ultimatum” of May 4 to discuss settlement of the case. However, the statements of Yarger, his cocounsel McDorman and of appellant at the May 9 conference, taken as a whole, clearly indicate that the attorney-client relationship had deteriorated to the point that appellant did not wish to go to trial with Yarger as his counsel. Yarger stated that Shelton had been talking to other attorneys about the case and that he wanted “to get another attorney on this case as soon as possible.” Shelton told the court that he wanted the trial setting set aside “until I get a good attorney.”

Obviously, Shelton must share responsibility for Yarger’s withdrawal and the trial court’s action is not to be viewed as if Yarger alone created the situation which resulted in his withdrawal.

Appellant points to the trial court’s admonition to Shelton upon the May 9 continuance that no further continuances would be granted and his assessing of the costs and requiring payment within 30 days on threat of dismissal as evidencing a “prejudicial predisposition” on the part of the trial court against granting further continuance. However, when new counsel first approached the trial court regarding a continuance, the court suggested that he discuss the matter with counsel for respondents. The remarks at the May 9 conference and the requirement of payment of costs were obviously an effort on the part of the trial court to convince Shelton of the necessity of prompt action on his part and that further dilatory behavior would not be tolerated.

Appellant complains that the 43-day period allowed him to obtain new counsel and for such counsel to prepare for trial was inadequate. He complains that, despite diligence on his part, he was unable to meet the trial setting of June 21.

Appellant’s claim of diligence in obtaining new counsel is not to be accepted without question. Appellant’s counsel provided the only evidence on that score in his affidavit in support of the written request for a continuance. According to that affidavit, appellant’s first effort was made on or about May 16, when he asked Will Berry to represent him. This was a delay of about a week, despite the trial court’s admonition to appellant to act promptly. Berry referred appellant to Claud Wood, but plaintiff did not contact Wood until May 20. Wood wrote plaintiff on May 25 that he could not handle the case. There is a vague reference to an unnamed lawyer in St. Louis whom appellant sought. Appellant finally contacted Mr. Johnson on June 3.

Appellant himself offered no explanation for the casual approach which he appears to have taken to the employment of new counsel. Despite the trial court’s admonition, he waited a week before contacting another attorney. A four-day delay ensued before he contacted a second attorney, suggested by the first one. In view of all of the circumstances, appellant is hardly to be credited with due diligence in seeking a new attorney.

Likewise there is no showing that, had appellant acted promptly to obtain new counsel, the trial setting of June 21 could not have been met. The affidavit of counsel in support of the motion for continuance was based solely upon new counsel’s military obligation. Neither it nor the motion for new trial suggested that counsel in any event could not have been prepared to meet the June 21 date.

Appellant asserts that the trial court’s refusal to continue the cause was arbitrary because counsel’s inability to meet the June 21 setting was based upon his military obligation. Appellant acknowledges that there is no express requirement that a case be continued for such reason, but he suggests that he should be treated the same as would have occurred had a legislative continuance been sought under Rule 65.06. In response it may be noted that Rule 65.06 is based upon Section 510.120, RSMo 1969, and represents a rather long-standing policy imposed by the General Assembly. The reason for the adoption of such policy does not exist in this case.

Considered in their entirety, the circumstances do not show that appellant was denied the right to counsel of his choice. He was aware when he employed present counsel of the problem of the attorney’s military obligation and elected to proceed with him despite the trial court’s prior admonition and counsel’s advice that the trial court would not be obliged to grant a continuance because of the military service of his attorney.

None of the Missouri cases cited by appellant are factually close to the situation of this case and need not be distinguished otherwise. Appellant does rely upon two cases from other jurisdictions, but they are not convincing in this case. Leija v. Concha, 39 S.W.2d 948 (Tex.Ct.Civ.App.1931), involved a situation in which plaintiff was first informed of his attorney’s withdrawal the day before trial, new counsel was secured on the day of trial, and a motion for continuance was overruled. This case might have been in point, if in the case now at bar the court had forced plaintiff to go to trial on May 9. In Reecy v. Reecy, 132 Ill.App.2d 1024, 271 N.E.2d 91 (1971), the new counsel was ill and had indicated the need for certain specific discovery procedures which could not be completed prior to trial. The record shows that both sides in this case had made some discovery and plaintiff made no showing of a need for further discovery.

In view of the discretion lodged in the trial court in granting or refusing a continuance and with every intendment in favor of the court’s ruling on appeal (Krieber v. Krieber, 420 S.W.2d 376, 379[1-4] (Mo.App.1967)), this court concludes that no abuse of discretion on the part of the trial court has been demonstrated and the judgment should be affirmed.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent. v. Charles D. WHEAT, Defendant-Appellant.
    No. KCD 29791.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Thomas J. Cox, Jr., Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

This criminal appeal from a two-count conviction for rape and sodomy in a court-tried case raises three issues.

The issues are (one) whether the prosecutor should have been directed to proceed under the Criminal Sexual Psychopath Act § 202.710 RSMo 1969; (two) a claim of involuntary confession being admitted against defendant; and (three) that the defendant’s motion to dismiss should have been sustained because his prior release from probation from the Missouri State Hospital was void for lack of hearing under § 202.740 RSMo 1969.

No detailed factual recital is necessary. The prosecuting witness testified to an act of sodomy per os and to rape. Both were performed at knife point. A variety of sexually oriented indignities, forcibly performed on the witness, exacerbated the offense.

I.

On defendant’s claim that the trial court should have ordered the prosecutor to proceed under § 202.710 RSMo 1969, the statute, despite the use of the word “shall” in directing prosecutorial action, has been interpreted to allow normal prosecutorial discretion in its use. Davis v. State, 482 S.W.2d 468 (Mo.1972); State v. Tartenaar, 371 S.W.2d 192 (Mo.1963); State ex rel. Kirks v. Allen, 255 S.W.2d 144 (Mo.App.1953). These holdings are consistent with the general rule of law on prosecutorial discretion in actions under statutes which use mandatory language in relation to filings of criminal matters. State ex rel. Schultz v. Harper and State ex rel. Mitchell v. Harper, 573 S.W.2d 427 (Mo.App.1978).

II.

Defendant’s claim that his confession was involuntary came only after trial. This tardy claim arose on a post-trial motion claiming statements made by the defendant to the investigating officers were involuntary. The motion asserts that the defendant made the complained of statements only after the arresting officers promised to obtain medical help for the defendant, and that counsel was unaware of this until after trial. The record does not support the assertions of the motion. First, the support for the fact that such promises were made rests upon an offer of proof that the defendant would testify to certain proof. That offer in full is as follows:

“DEFENDANT WHEAT: Well—
MR. COX: Speak up so the judge can hear you.
DEFENDANT WHEAT: There was a promise made and a friend of mine was told over the phone that if I did confess what crime I did, that they would get me help, and so they let me talk to this friend of mine over the phone and she reassured me that — to tell the truth and tell them everything so that I could get help, that that was the only way that was possible of getting help, was to admit all this stuff.
THE COURT: The officer did not — as I gather from what you’re saying, your testimony would be the officer didn’t tell you that so much as he told a friend, female friend of yours?
DEFENDANT WHEAT: Yes.
THE COURT: Then you talked to the female friend?
DEFENDANT WHEAT: Yes.
THE COURT: And she said to you what now?
DEFENDANT WHEAT: To go ahead and tell them everything, that that was the only way I was going to get help, and don’t be scared about telling them what I had done.
THE COURT: Okay. And would that be the extent of your testimony on this point?
DEFENDANT WHEAT: As far as I know, Judge, that’s all.
THE COURT: Okay. Do you—
MR. COX: That would be the offer of proof.”

From this excerpt and the motion, it is clear that the thrust of the defendant’s claim is that there were promises made which prompted the statements. The defendant could and did, in fact, waive the issue of voluntariness by failing to object to the statements at the time they were offered. There is no requirement that the trial court sua sponte provide a hearing on the issue of voluntariness. State v. Jackson, 448 S.W.2d 895 (Mo.1970). Absent timely objection, the constitutional issue is not preserved. State v. Meiers, 412 S.W.2d 478 (Mo.1967). Defendant seeks to avoid the thrust of these rulings by asserting that counsel was unaware of any facts concerning a possible inducement to the defendant in making the statement. This assertion, found only in the motion, is squarely contradicted by the trial record. Defense counsel, in cross-examination of the policeman who testified to the statements, by means of leading questions extracted the information that the policeman had volunteered to the defendant that “he needed help.” With that statement before him, defense counsel could and should have inquired of his client concerning the claim now belatedly raised. No error appears in the trial court’s disposition of the defendant’s post-trial motion.

III.

Defendant’s final claim is that the proceedings releasing him from his probation from the state hospital under his prior commitment as a criminal sexual psychopath were defective and that he should have been returned to the state hospital, ostensibly as a parole violator. Two reasons make this claim patently untenable. First, the proceedings defendant challenges are civil in nature. State ex rel. Sweezer v. Green, 360 Mo. 1249, 232 S.W.2d 897 (banc 1950). The judgment entered on March 14, 1974 became final and immune from attack on March 15, 1977, prior to trial. Section 511.020 RSMo 1969; Section 511.250 RSMo 1969; and Section 511.190 RSMo 1969.

Second, and more importantly, the challenge is only as to the discharge from probation. Thus, if it be said that the defendant is still on probation from his commitment, such status would afford no defense to the crime committed while on conditional release. Smith v. State, 555 S.W.2d 93 (Mo.App.1977); § 202.750 RSMo 1969.

Judgment and conviction affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    RALSTON PURINA COMPANY, Respondent, v. Alfred RYDER, Appellant.
    No. KCD 29794.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      Andrew A. Krohn, Princeton, for appellant.
    Gary L. Busker, Esely & Busker, Bethany, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Plaintiff sues to recover money paid to defendant by mistake. Pursuant to a jury verdict, the trial court entered judgment for plaintiff. Defendant appeals.

The plaintiff’s evidence tended to show the following facts, which the jury obviously accepted. Jerry Russell, an employee of James Rebel, hauled soy beans owned by and on behalf of Consumer Oil to plaintiff’s elevator on March 16, 1973. Through clerical error, a check in payment was sent by plaintiff to defendant instead of Consumer Oil to whom payment was in fact due. When the error was discovered, plaintiff demanded return of the payment. Defendant took the position that he had delivered soy beans to plaintiff and it was for his own soy beans that the check had been sent, and he therefore refused to make repayment.

For his Points on Appeal, defendant contends: (1) that the case was submitted to the jury on a theory different from that pleaded; and (2) that the court improperly admitted two exhibits. We find no merit in either point and therefore affirm.

With respect to defendant’s first point, the petition alleges that plaintiff sent payment by mistake, that defendant was not entitled to the payment, that he nevertheless cashed the check, that plaintiff had made demand for repayment, but that defendant had refused. In addition to those allegations the petition also alleged: “That in view of the above it can be presumed that the defendant has converted the aforesaid sum to his own use.” Defendant claims that the quoted allegation makes the cause of action pleaded one in conversion and that the court erred in submitting an instruction based on money had and received.

The sentence quoted is at most peripheral and could be disregarded as surplusage. More directly to the point, however, an allegation of conversion is not inconsistent with recovery for money had and received. Koontz v. Whitaker, 111 S.W.2d 197 (Mo.App.1937); Dobson v. Winner, 26 Mo.App. 329 (1887). Plaintiff’s proof, unobjected to on the ground now belatedly urged, showed a cause of action for money had and received, did not depart from the petition, and was properly submitted to the jury. Dob son v. Winner, supra; Hoefel v. Hoefel, 533 S.W.2d 704 (Mo.App.1976); Teachers Credit Union v. Olds, 553 S.W.2d 545 (Mo.App.1977).

With respect to defendant’s second point, the exhibits in question are two weight tickets. Two of plaintiff’s supervisory officials testified with respect to the procedures followed in the preparation of such weight tickets. On the arrival of a loaded truck, plaintiff’s employee on duty would take information from the driver and make out a weight ticket such as Exhibits 4 and 5 here in question. These two exhibits were both marked with the stamped signature of William Schwab, who was on duty at plaintiff’s elevator on March 16, 1973. Each ticket showed the driver of the delivering truck as “Jerry” and the seller as J. Rebel; and each showed that the soy beans were being delivered pursuant to Contract No. 7777. Contract No. 7777 was identified by plaintiff’s supervisory personnel as having been entered into by plaintiff with Consumer Oil.

In addition to the information on the exhibits just stated, these exhibits also contained other markings which had been placed thereon at a later time or times. Plaintiff offered the exhibits without reference to the latter markings, and at the court’s suggestion all those subsequent markings (except one) were obliterated by stickers. The single exception consisted of a line through the name and address of J. Rebel as seller, which appears on Exhibit 5; but the court explained to the jury that this line had been made at a time later than the original preparation of the weight ticket.

Defendant objects that these exhibits do not come within the business record exception to the hearsay rule for the reason that the documents were altered after their initial preparation and to that extent were not made in the regular course of business nor were they prepared at or close to the time of the event. It should be noted that the nonqualifying portions were blocked out and thereby effectively eliminated. It should be noted also that at the time the trial judge suggested this blocking out, he asked, “Any objection?”, to which defendant’s counsel answered “No, your Honor. I still would object to No. 5 because of the crossing out of the line, which is not part of the record.”

Then a colloquy took place about the line left on Exhibit 5, and the trial judge stated he would explain that mark through the seller’s name and address was not on the exhibit as originally prepared. The court at that time asked if there was any objection to the proposed explanation. Defendant’s counsel replied: “I object to the explanation but I renew my objection to the Exhibit.” From this, it can be inferred that defendant was registering only a limited objection to only one of the two exhibits.

If general objection to reliability of both exhibits may be said to have been preserved, their admission cannot be held reversibly erroneous. A record containing alteration generally speaking is not ruled out upon such grounds unless the irregularity is gross and palpable. 30 Am.Jur.2d, Evidence, Section 940, p. 63. Where the alterations are deleted, they do not obliterate the original entries, and the alterations are not considered as evidence, the document may be received in evidence under the business record rule. United States v. J. C. Boespflug Construction Co., 325 F.2d 54, 62 (9th Cir. 1963). In any event, whether the document is so prepared and is sufficiently reliable as to justify its admission rests to very large extent for the trial court. Section 490.680, RSMo 1969; Hicks v. Peniston, 480 S.W.2d 522 (Mo.App.1972); Fisher v. Gunn, 270 S.W.2d 869 (Mo.1954).

Defendant points to certain discrepancies with respect to these two exhibits, particularly the listing of Rebel as owner of the soy beans, and argues that in view of conflicts in the evidence, the jury obviously gave great weight to Exhibits 4 and 5, to defendant’s prejudice. The weight to be given evidence and an appraisal of the discrepancies mentioned were matters for the jury, not an appellate court.

Affirmed.

All concur.


text:
    Larry Randall LEE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29804.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    David M. Strauss, Public Defender, Columbia, Marjorie Wholey Haines and Steve Bouchard (Certified Law Interns under Rule 13), for movant-appellant.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Larry Randall Lee pleaded guilty on November 13, 1972, to assault with intent to kill and was sentenced to 15 years imprisonment. On January 18, 1974, he filed a motion to vacate the sentence under Rule 27.26. That motion was denied, from which he pursues this appeal.

The assault in question occurred in Columbia, Missouri, on April 4, 1972. A college student, Vickie Ranson, was stopped by two black males who took her purse and shot her in the face. Both escaped. Vickie’s father then hired David L. Bear III, a private lawyer practicing in Columbia, to assist with the police investigation and prosecution.

As part of the police investigation, Officer Muse showed Vickie a group of mug shots from which she selected the photographs of Lawson and Hickem as her assailants. A line-up was then held on April 14, 1972, at the request of Bear, in which Lawson and Hickem were included as subjects. From this line-up, Vickie made identification of who had assaulted her. There is much contradiction in the testimony given at the 27.26 hearing as to just whom she identified. According to one version, she picked out Lawson and Hickem. According to another version, she picked out Lawson and a subject named Taylor. The greater number of witnesses testified that she picked out Taylor alone. This conflict in testimony might have been resolved by a video tape which was taken of the line-up, but that tape was not available by the time of the 27.26 hearing, because the police had erased that episode in order to reuse the tape for other purposes.

After the line-up, Bear talked to Lawson and had him released from jail so that he could go out on the street and attempt to find out who had in fact committed the assault. Lawson returned with the information that the robbery and assault had been committed by Lee and Quint. Thereupon, Bear prevailed upon the police to pick up Lee for questioning and a confession was procured from him. For reasons unnecessary to be detailed here, that confession was obtained invalidly and was not usable.

Lee was next taken before the Juvenile Court, and after due hearing jurisdiction was waived in favor of prosecution as an adult. A preliminary hearing was set in the magistrate court at which the only witness to appear was Vickie. Before testifying, she inquired of Bear whether she could see a photograph of Lee and Bear did furnish her Lee’s mug shot. Vickie thereupon entered the courtroom and made positive identification of Lee as her assailant.

A conference ensued between the Lee family and defense counsel Marshall, during the course of which Marshall advised the Lees “that in my judgment she was a good witness, she would tell a good story. And at that preliminary hearing, on examination by me, she indicated she could identify the defendant, Larry Randall Lee, because of the strong lighting at the parking lot where she was assaulted. There was no equivocation in her statement, and there was no doubt in my mind she could make the identification on that basis.”

At the time of that conference between Marshall and the Lees, Marshall had been informed by the prosecutor that Lee’s confession was flawed and the prosecutor promised that no attempt would be made to use the confession. However, no disclosure was made to Marshall by the prosecutor or anyone on his staff with respect to the misidentifications which Vickie had made at the line-up, nor was any information given to Marshall by anyone with respect to Vickie’s use of a mug shot immediately before taking the stand at the preliminary hearing. This nondisclosure occurred despite the fact that the prosecutor knew that a false identification had been made at the line-up. The nondisclosure was further in the face of the additional fact that Ms. Timothy Sloan, an assistant prosecutor, had found herself in disagreement with Bear’s activities. Sloan knew from being personally present at the line-up that Vickie had made a misidentification and Sloan testified at the 27.26 hearing: “I did feel that the facts of the misidentification should have been communicated to the defense attorney because I do feel very strongly that the defense cannot recommend a plea of guilty or discuss a plea of guilty with a defendant unless they are aware of factors which might mitigate the case against their clients.”

The discussion between the Lees and attorney Marshall led to a decision that Lee should plead guilty. A hearing was held in open court with respect to the plea entry with all of the customary questions from the court bearing upon whether the plea was being entered voluntarily and with adequate understanding and pursuant to advice of counsel. However, even at this late stage, there was still no disclosure by the prosecutor of the misidentifications made by Vickie.

On this appeal, Lee assigns three points of error: 1) that his guilty plea was equivocal and therefore should not have been accepted; 2) that the employment of and action by Bear was improper, contrary to public policy, and prejudicial; and 3) that Lee’s plea was not knowingly and intelligently entered, in that the prosecutor did not disclose evidence favorable to Lee as to which the prosecutor had a duty of disclosure. Inasmuch as the third point is meritorious and requires reversal, Lee’s first two points need not be discussed nor ruled.

By entering into plea bargaining and agreeing to plead guilty, Lee forwent certain important constitutional rights, including that of putting the State to proof of its case beyond a reasonable doubt. Lee, of course, had a right to waive those constitutional rights, but for the waiver to be effective, he had to make the decision knowingly, intelligently and with competent assistance of legal counsel. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The question for determination here is whether Lee did make a knowing, intelligent choice under circumstances where he was deprived of information to which by law he was entitled.

That Lee was improperly deprived of highly relevant information appears quite clear. A duty rests upon a prosecutor to disclose any exculpatory evidence bearing upon the guilt or innocence of the defendant. Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). That duty extends to disclosing evidence of an impeaching nature which would tend to cast discredit upon a key prosecution witness. State v. Falkins, 356 So.2d 415 (La.1978), cert. denied - U.S. -, 99 S.Ct. 190, 58 L.Ed.2d 175; People v. Ahmed, 20 N.Y.2d 958, 286 N.Y.S.2d 850, 233 N.E.2d 854 (1967); Grant v. Alldredge, 498 F.2d 376 (2nd Cir. 1974); Evans v. Janing, 489 F.2d 470 (8th Cir. 1973); Simos v. Gray, 356 F.Supp. 265 (D.C.Wis.1973); State v. Abernathy, 525 S.W.2d 414 (Mo.App.1975); State v. Koonce, 504 S.W.2d 227 (Mo.App.1973). But see Garrison v. Maggio, 540 F.2d 1271 (5th Cir. 1976). Furthermore, the duty of disclosure exists even in the absence of a request on the part of the defendant. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Abernathy, supra.

Of course the nondisclosure must have been with respect to a material matter and must have resulted in prejudice to defendant’s rights before the defendant will be entitled to any postconviction relief. That Vickie’s misidentification was a material matter and that the nondisclosure resulted in prejudice to Lee were not even challenged by the State on original submission of this case. Furthermore, that disclosure would have prompted and enabled defense counsel to probe further to discover that Vickie had used Lee’s photograph before identifying him at the preliminary hearing. In determining materiality of a nondisclosure, account must be taken not only of the precise evidence suppressed but also of such additional evidence to which a skillful counsel would be led by careful investigation. Grant v. Alldredge, supra. Materiality of and prejudice from the nondisclosure here can hardly be successfully challenged in view of all of the circumstances of this case which were accurately appraised by Assistant Prosecutor Sloan when she said that “the defense cannot recommend a plea of guilty or discuss a plea of guilty with a defendant unless they are aware of factors which might mitigate the case against their clients.”

Although the State does not deny that the prosecution had a duty to disclose and failed in that duty, it does argue strongly and with much plausibility that such breach of duty has become insulated from attack by reason of Lee’s entry of his guilty plea. In making this argument, the State relies basically upon the Brady trilogy [Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970)] and Tollett v. Henderson, supra.

The State lays heavy stress on the following portion of the Tollett opinion:

“[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)].”

The State further calls attention to the fact that in the Brady trilogy there were matters unknown and unknowable to the defendants at the time they pleaded guilty, and in Tollett the post-trial motion alleged that the matter relied upon was unknown to both the defendant and his counsel at the time of the plea; but despite those elements, the United States Supreme Court held the pleas to be binding and not subject to being set aside.

There can be no question but that a guilty plea is effective despite a prior violation of defendant’s constitutional rights, provided the defendant and his counsel knew that the violations had occurred and the violations had ceased to have any coercive effect at the time the quality plea was entered. Also, it cannot be questioned that a guilty plea is binding even though the defendant and his counsel were lacking in some information bearing upon the case, so long as that lack of information was not the result of ineffective legal representation. State v. Nielsen, 547 S.W.2d 153 (Mo.App.1977). However, no case had been cited or found by independent research which has denied the right to set aside a guilty plea under the following combination of circumstances: 1) exculpatory evidence existed at the time of the guilty plea which reasonably would have led the defendant not to so plead if he had known of that evidence; and 2) the exculpatory evidence in question was known to and suppressed by the prosecutor. We hold that when these factors conjoin, the defendant should be entitled to withdraw his guilty plea. These factors are present here, and Lee should therefore be permitted to withdraw his guilty plea and replead.

Reversed and Remanded.

All concur.

      . In a post-argument letter brief, filed with permission of the court respecting the applicability of State v. Falkins, supra, the State argues in passing that Quint’s testimony would have been available at Lee’s trial and so Vickie’s misidentification was not sufficiently material to warrant setting aside the guilty plea. It is to be noted that Quint himself would have been subject to impeachment by reason of his plea bargain. Quint’s testimony would have been particularly vulnerable on the question of which of the two, Lee or Quint, fired the gun— and this matter had a strong bearing on the severity of punishment to be imposed (or that which would be agreed to as a matter of plea bargaining). Note further that in Falkins, the pretrial misidentification was made by only two out of a total of five eyewitnesses who testified and identified the defendant at trial. Note still further that Falkins’ arrest had been based upon the statement of one of the admitted robbers that Falkins had been a co-participant. Nevertheless, Falkins held the nondisclosure of the misidentification there was material and prejudicial.

      . The prosecutor testified at the 27.26 hearing that he had received information concerning the misidentification made by Vickie at the line-up. Even if he had not personally received such information, the State would be charged with the knowledge possessed by Assistant Prosecutor Sloan. State v. Koonce, supra; State v. Allen, 530 S.W.2d 415 (Mo.App.1975).

      . In the Brady trilogy, the defendants sought to gain the benefit of Supreme Court decisions rendered subsequent to their pleas of guilty. The operative facts were known, but what legal rule would be announced by the Supreme Court with respect to those facts was unknown. The Brady trilogy in effect holds only that a defendant and his counsel must make their own best estimate on the legal question and they are bound by that appraisal. Note that the prosecutors were guilty of no suppression or withholding of information bearing on that appraisal to be made.

        Tollett involved a claim that Negroes had been systematically excluded from service on grand juries and that this was unknown to defendant and his counsel. There was no claim that the prosecution had suppressed that fact or in any way hindered defendant from discovering it.
      In Nielsen, defendant complained that his counsel discovered an important witness after conclusion of the guilty plea proceedings. There was no claim that the prosecutor suppressed information about the witness in question or that the prosecutor even knew that such potential testimony existed.


text:
    James E. FARNSWORTH, Appellant, v. DIRECTOR OF REVENUE of the State of Missouri, Respondent.
    No. KCD 29835.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Austin B. Speers, Speers & Slyter, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., J. Kent Lowry, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment which upheld revocation of license to operate a motor vehicle. The question is whether certain proceedings in Arkansas provide grounds upon which to order the revocation. Affirmed.

Appellant contends that a uniform traffic ticket issued to him in Arkansas did not state a punishable offense in Missouri to support assessment of the twelve points necessary to revocation by the Director of Revenue. His argument is that his conviction, if any, was under a county or city ordinance for which only six points could have been assessed, and thus there was no basis for revocation of his license.

On Sunday, May 29, 1977, Uniform Traffic Ticket and Complaint, Arkansas State Police, No. C 218690, was issued to James E. Farnsworth, a resident of Jackson County, Missouri, which charged him with “D.W.I.” in violation of Section 75-1027, on U.S. 62 in the State of Arkansas. “D.W.I.” and “75.1027” were handwritten in blank spaces provided on the complaint. The legend “.16%” accompanied the other handwritten entries. Court appearance was set for (Thursday) June 16, 1977. The issuing officer identified himself by signature and badge number at the foot of the complaint. The reverse side of the complaint shows, under Court Action: “6/16/77 * * * no appearance * * * bond forf. The Court therefore enters the following order: Fine $210.00 Costs $19.25.” All the foregoing was certified as a true abstract of the record in the place provided for signature of the judge or clerk of the court.

On July 9, 1977, James E. Farnsworth was notified by the Director of Revenue of Missouri that his license to drive had been revoked for a period of one year beginning August 5, 1977, for accumulation of twelve points, pursuant to Sections 302.302 and 302.304, RSMo., as a result of the Arkansas proceedings.

The petition for review was heard August 18, 1977, at which time the above Uniform Traffic Ticket and Complaint was placed in evidence. In addition, the parties stipulated that petitioner was arrested by a county officer in Arkansas, taken to the police station in Ash Flat, and “charged with the offense of driving while intoxicated under the applicable statute of the State of Arkansas.”

The foregoing demonstrates a case for the ordered revocation under the applicable law. As in Schuiling v. Scott, 493 S.W.2d 4 (Mo.App.1973), if the Arkansas violation and conviction were pursuant to an Arkansas statute, then the Director was correct in his assessment of twelve points.

Section 75-1027, Arkansas Statutes 1947 Annotated, provides:

“It is unlawful and punishable as provided in [75 — 1029] * * * for any person who is under the influence of intoxicating liquor to drive or be in actual control of any vehicle within this State.” Section 564.440 RSMo. provides:
“No person shall operate a motor vehicle while in an intoxicated condition.”

“ ‘D.W.I.’ is shorthand for driving while intoxicated and the traffic ticket containing the phrase ‘D.W.I.’ was a bona fide attempt to charge the offense of driving while intoxicated.” State v. Ralls, 472 S.W.2d 642, 646 (Mo.App.1971). Cf. City of Raytown v. Roach, 360 S.W.2d 741, 743 (Mo.App.1962), where the court refused to conjecture that “C & I Acc” was intended to represent “careless and imprudent driving — resulting in an accident.”

“Forfeiture of bond * * * is equivalent to conviction” on a charge of driving while intoxicated. Pryor v. David, 436 S.W.2d 3, 5 (Mo.1969).

Section 302.160 RSMo. provides:

“When the director of revenue receives notice of a conviction in another state, which, if committed in this state, would result in the assessment of twelve points, he is authorized to assess the points and revoke the operating privilege as provided in Section 302.304.”

Section 302.302.1 RSMo. provides for assessment of points:

“(7) Driving while in an intoxicated condition * * * 12 points.”

Section 302.304.3 RSMo. provides:

“The director shall revoke * * * the driver’s license * * * of any person when his driving record shows he has obtained or accumulated twelve points in twelve months * * *

Appellant charges also that the complaint is deficient because it is not identified by a proper official. This assertion overlooks the signature and initials which appear in the space provided for certification by judge or clerk. The Director was not obliged to look beyond the notice provided by the Arkansas authorities. Pryor v. David, supra, 436 S.W.2d l.c. 5.

Judgment affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Larry R. LACY, a/k/a Thurman Lacy, Jr., Appellant.
    No. KCD 29899.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John P. Turner, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The defendant was convicted by a jury of common assault and sentenced to confinement in the county jail for six months, imposed consecutively to another sentence then in service. The trial of the misdemeanor was de novo from the judgment of the magistrate who had sentenced the defendant to confinement for ninety days.

The defendant contends that MAI-CR 6.26 [Instruction No. 5] prescribed as the verdict-director for common assault does not submit all the essential elements of the substantive offense and therefore the conviction was unlawful. That contention, in the precise particulars which we do not restate, was presented to and rejected by our Supreme Court en banc in State v. Hammond, 571 S.W.2d 44 (1978). That decision determined authoritatively that MAI-CR 6.26 submits the essential common assault offense according to the definition of § 559.220, RSMo 1969.

The defendant contends also that the trial court erred by failure to instruct on self-defense. The issue of basic self-defense, where raised by the evidence, presents a question of law upon which the court must instruct the jury for their guidance to a proper return of verdict. Rule 26.02(6). That is to say, that the instruction must be given on evidence whether requested or not, otherwise the court commits error which entitles the defendant to a new trial. State v. Boyd, 498 S.W.2d 532, 534[4] (Mo.1973).

The original charge against the defendant was robbery in the first degree. The offense was reduced to common assault and tried on that theory of culpability. The evidence by the State was that the defendant approached the checkout stand of the Skaggs Drug Store with a birthday card in hand. The employee Kies took the card, rang up the sale, and the cash drawer opened. The employee sacked the merchandise and was handed a dollar bill by the defendant. This much of the evidence is not in dispute. Kies related, however, that as he made change, he noticed the hand of defendant reach into the cash register “where the ten dollar bills [were].” Then,

Q. And what did you do then when you saw his hands go into the register?
A. I turned and knocked his hands away and asked what was going on.
Q. And what happened then? Let me ask you this: When you hit his hands away, was there any noise that was made by that action?
A. Well, there was change and the drawer was knocked, you know.
Q. And then what happened?
A. Well, then he swung and hit me a couple times, so I swung back and pushed him away.
Q. Where did he hit you? A. In the face.
Q. And you pushed him, is that right?
A. Yes.
Q. And then what happened?
A. Then he started running for the front door. As he got to the door, there is a metal piece across the door and he tripped and fell, outside the store, and I jumped on top of him.

The defendant recounted a different story. His version was that he selected a card to purchase, went to the checkstand, laid the card down on the counter which employee Kies attended, Kies rang up the sale and picked up the one dollar bill defendant had placed down. Kies delayed the change due, so that the defendant, after he had perused the card, became restive and placed his hand out toward Kies and the cash register to hasten the conclusion of the transaction, and as he did, Kies “just turned around real quick and he grabbed [defendant].” At the time, the defendant made the gesture which prompted Kies to grasp and injure his left hand, the hand of the defendant was about one foot from the cash drawer of the register. The defendant testified he had not intended to take any money from the cash drawer and struck Kies, but only in retaliation for the assault on himself. A scuffle ensued between them during which each struck the other. The defendant then saw another employee about to join the melee, so he ran away, concerned that his involvement might affect his probation status.

A reasonable force used in defense will justify an otherwise criminal conduct. An act done in lawful self-defense, therefore, does not amount to an assault and requires acquittal on the charge. Committee Comments on MAI-CR, Self-defense, pp. 9 et seq. The elements of basic self-defense, as that doctrine has developed in the jurisprudence of this state [and as expounded by the Committee Comments] are submitted by MAI-CR 2.40:

1. Defendant did not provoke the use or threat of force against himself, and
2. Defendant believed that he was in immediate danger of death or serious bodily harm, and
3. Defendant had reasonable cause for that belief, and
4. Defendant believed that it was necessary for him to act as he did to protect himself from such danger, and
5. Defendant had reasonable cause for that belief.

It is the contention of the State that the self-defense submission was properly withheld because the evidence shows that employee Kies merely acted in defense of property given to his charge and so without provocation — that is, that the force employed by Kies was only so much as was necessary to thwart the threatened depredation and so was, as a matter of law, reasonable. State v. Tritch, 175 Mo.App. 262, 157 S.W. 843, 844 (1913). Such a contention becomes tenable, however, only where the evidence allows no dispute that the defendant had the motive to steal from Kies. It was the testimony of the defendant, however, that his intentions were innocent of any criminal purpose — that he meant no threat by his extended hand but only a gesture of impatience.

It is evident from this disputed evidence that the issue of self-defense, and particularly the issue of who was the aggressor [element (1) of MAI-CR 2.40 that “[defendant did not provoke the use or threat of force against himself”] was for the jury. In the face of contradictory proof on the issue of self-defense, it becomes the duty of the court to instruct the jury “upon the assumption of the truth of the testimony for the state as well as the testimony for the defendant, leaving it to the jury to find the facts and determine the guilt or innocence of the defendant.” State v. Bidstrup, 237 Mo. 273, 140 S.W. 904, 908[5, 6] (1911).

The judgment is reversed and remanded for new trial.

All concur.