author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ron LePAGE, Appellant.
    No. KCD 27513.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Motion for Rehearing and/or Transfer Denied May 3, 1976.
    Application to Transfer Denied June 14, 1976.

      Hendren & Andrae, Alex Bartlett, Jefferson City, for appellant.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Defendant pleaded guilty to a two-count information of selling marijuana and methamphetamine. Following his plea the court assessed punishment at five years on each count. Defendant has filed a direct appeal.

The defendant was charged in the circuit court after a petition had been filed in the juvenile court alleging the charges here in question were committed by defendant pri- or to the time he reached seventeen years of age. Defendant was represented by counsel in the juvenile court. Following a hearing in juvenile court, the court made findings of fact and reached the conclusion the defendant was not a proper subject to be dealt with under the Juvenile Code, Sections 211.011 to 211.431, RSMo 1969. The juvenile court ordered the petition filed in that court dismissed and further ordered that defendant could be prosecuted under the general law.

Thereupon the defendant was charged in magistrate court. The defendant appeared there by the same attorney who represented him in the juvenile proceedings and waived his preliminary hearing and was bound over to circuit court.

Defendant thereafter appeared in circuit court with his same attorney. After being advised the defendant would enter a plea of guilty, the court conducted a hearing to determine the voluntariness of the plea. The court concluded the plea was entered voluntarily and accepted the same. The court ordered a pre-sentence investigation. After receiving such investigation, the defendant and his attorney appeared for sentencing. The court refused to grant probation.

On this appeal defendant seeks to attack the dismissal of the petition in juvenile court on a number of grounds with the ultimate conclusion the circuit court lacked jurisdiction because of the alleged infirmities in the juvenile court proceeding. Defendant also seeks to raise questions concerning the failure of the court to allow his attorney to examine the pre-sentence report and a question of whether one or two charges were actually involved. Finding this court does not have jurisdiction to consider the points raised, the appeal is dismissed.

The scope of review of this direct appeal following a guilty plea is restricted to the question of the jurisdiction of the subject matter and the sufficiency of the criminal charge. This was stated in Kansas City v. Stricklin, 428 S.W.2d 721, 724[8, 9] (Mo. banc 1968): “The question of jurisdiction of the subject matter and the sufficiency of the pleadings in either a civil or criminal action may be raised at any stage of the proceedings, even after a plea of guilty, and for the first time in the appellate court.” See also Rule 28.02.

The defendant does seek to attack the jurisdiction of the circuit court because of the alleged defects in the juvenile court proceeding. However, in Jefferson v. State, 442 S.W.2d 6 (Mo.1969) this precise factual situation was presented. There the defendant had been the subject of a petition filed in the juvenile court but such petition was dismissed and the State was allowed to prosecute him under the general law. The defendant there appeared in circuit court with his attorneys and entered a plea of guilty. The court disposed of the contention there attacking the procedure in the juvenile court by stating at 442 S.W.2d 12[7]: “He waived any objections he might otherwise have had to the proceedings in the juvenile court when, after the appointment of two competent lawyers and the benefit of their advice and counsel, he failed to file a motion in the general criminal division requesting dismissal of the information, or remand to the juvenile division for the conduct of a proper hearing with counsel present and the entry of an order complying with constitutional standards. (citations omitted) ... A further and all-inclusive waiver occurred when at arraignment on the criminal charge, with the advice of competent counsel, defendant made no objection to the regularity and propriety of the proceedings in the juvenile court and instead voluntarily entered a plea of guilty.”

Under this holding in Jefferson, it must be held the defendant waived any objections he had to the juvenile court proceeding when he failed to file any motion in the circuit court to dismiss the charge or to remand to the juvenile division. Further, at the guilty plea, neither defendant nor his counsel made any objection to the juvenile court proceedings and instead voluntarily entered a plea of guilty.

The St. Louis District of this court in a somewhat similar situation in Ford v. State, 534 S.W.2d 111 (Mo.App., 1976) stated defendant should have filed a motion under Rule 25.06 in the circuit court. The defendant waived any objection which he had to the juvenile court proceeding by failing to file such motion. The court in Ford also recognized the binding effect of Jefferson in these situations.

For these reasons this court is unable to consider the proceeding in the juvenile court involving this defendant. Nor, for the same reason, can this court consider the defendant’s attack upon Section 211.071, RSMo 1969 for vagueness.

Defendant’s counsel, who is not the same as appeared with him in the circuit court, attempts to raise an issue concerning the voluntary nature of the plea of guilty, the in camera treatment of the pre-sentence investigation, and that only one five-year sentence can stand because only one offense was in fact involved. It is apparent none of these raise any question concerning the jurisdiction of the subject matter or the sufficiency of the information. Under Stricklin these matters may not be considered on this appeal.

The defendant urges such matters may be considered under State ex rel. Kansas City v. Meyers, 513 S.W.2d 414 (Mo. banc 1974). In that case the court was dealing with an appeal to the circuit court following a guilty plea entered in the municipal court. The basis of the court’s ruling was that a post-conviction collateral attack such as is provided under Rules 25.04, 27.25 and 27.26 is not allowed in municipal court convictions. The court there fashioned a remedy which is available to meet constitutional requirements following a plea of guilty in a municipal court. That case does not control here since the post-conviction remedy provided by the above mentioned Rules is fully applicable to this case. The defendant has full access to the courts for any application for relief he may desire to make under such Rules.

Because the defendant has failed to raise any issue of which this court may take cognizance on a direct appeal, the appeal is dismissed.

All concur.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. XLNT CORPORATION, Appellant.
    No. KCD 27315.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Motion for Rehearing and/or Transfer Denied May 3, 1976.
    Application to Transfer Denied June 14, 1976.

      Thomas W. Tierney, Kansas City, for appellant.
    Ralph L. Martin, Pros. Atty., Robert Frager, Asst. Pros. Atty., Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction of possessing an obscene movie film with intent to circulate same in violation of Section 563.280, RSMo 1969. The questions are whether the information was so fatally defective as to have required its dismissal; and whether proof of defendant’s identity as perpetrator of the alleged crime was insufficient as to have required a directed verdict. Affirmed.

The information charged that “XLNT Corporation, d/b/a Old Chelsea Theatre” on the 10th day of December, 1973, at the County of Jackson, State of Missouri, “did then and there unlawfully, knowingly and intentionally have in its possession with intent to sell, publish and circulate same, a certain obscene movie film, to-wit: THE DEVIL IN MISS JONES.”

Appellant argues that the information is fatally defective because it charges as criminal an act which is beyond those forbidden by the statute in that possession with intent to “publish” is nowhere proscribed, and, since it depends upon interpretation of “the generic term ‘obscene,’ ” it fails to describe the nature of the accusation with sufficient particularity to permit a defendant to defend against the charge.

Section 563.280, supra, provides:

“Every person who knowingly shall * * * have in his possession, with intent to sell or circulate * * * any obscene, lewd, licentious, indecent or lascivious * * * picture, * * * article or other publication of indecent, immoral or scandalous character, * * * shall, on conviction thereof, be fined

Both of appellant’s arguments stem from the proposition in State v. Kesterson, 403 S.W.2d 606, 609[1] (Mo.1966): “Generally, it is permissible and sufficient for an indictment * * * to charge the offense in the language of the statute alleged to be violated if the statute sets forth all the constituent elements of the offense. * * * However, there are qualifications of this rule. * * * ‘Such is not the case if the statute creating the offense uses generic terms in defining the offense and does not individuate the offense with such particularity as to notify the defendant of what he or she is to defend against.’ ” With respect to the qualification, see also State v. Hasler, 449 S.W.2d 881, 884, 885 (Mo.App.1969); Miller v. California, 413 U.S. 15, 23, 24, 25-27, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

A comparison of the charge and the statute demonstrates that the charge is in the language of the statute in compliance with the general rule, State v. Kesterson, supra, and reflects a charge that defendant did have a certain obscene movie film in its possession with intent to sell, publish, or circulate same. “Publish” is synonymous with the statutory words “sell” and “circulate,” e. g., “a book * * * is published only when it is offered for sale, or put into general circulation * * *.” Webster’s New International Dictionary, 2d Ed., p. 2006. Thus, the word “publish” added to this information in context with “sell” and “circulate” is at most surplusage and does not invalidate the information. Rule 24.11, V.A.M.R.; State v. White, 408 S.W.2d 31 (Mo.1966).

As demonstrated, the information is couched in terms of Section 563.280, supra, and, as recognized by appellant, the statute is not overly broad or impermissibly vague. State ex rel. Wampler v. Bird, 499 S.W.2d 780 (Mo.1973); State ex rel. Martin v. XLNT Corp., 525 S.W.2d 616, 620, 621[2] (Mo.App.1975). See Kansas City v. O’Connor, 510 S.W.2d 689 (Mo. banc 1974); S. S. & W., Inc. v. Kansas City, 515 S.W.2d 487 (Mo.1974); S. S. & W., Inc. v. Kansas City, 421 U.S. 925, 95 S.Ct. 1650, 44 L.Ed.2d 83 (1975). “ * * * It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.’ * * * The definition of obscenity, however, is not a question of fact, but one of law; the word ‘obscene,’ * * * is not merely a generic or descriptive term, but a legal term of art. * * * it is a term sufficiently definite in legal meaning to give a defendant notice of the charge against him * * Hamling v. United States, 418 U.S. 87, 117-118, 94 S.Ct. 2887, 2907-2908, 41 L.Ed.2d 590 (1974).

State’s Exhibit 1 showed that XLNT Corporation commenced perpetual existence April 13,1972; and insofar as the transcript in this case shows, such perpetual duration of XLNT Corporation has not been terminated by dissolution, forfeiture, or otherwise. Chapter 351, RSMo 1969, V.A.M.S. State’s Exhibit 15 showed that on April 5, 1972, “XLNT Corp. (Articles Applied For)” applied to the City of Kansas City for a “Theater (Motion Picture)” permit at 1228 Broadway and stated its trade name to be “Old Chelsea Theater.” Deputy Sheriff Rex McGraw and Sheriff William Kenneth Carnes viewed the movie in question shown by Old Chelsea Theater at 1228 Broadway, Kansas City, Missouri, December 10, 1973; and defense witness Carl Crider viewed the movie shown by Old Chelsea Theater February 13, 1974, while trial was in progress. Such evidence was sufficient to identify and permit the jury to find that defendant XLNT Corporation doing business as Old Chelsea Theater possessed “The Devil In Miss Jones” with intent to sell and circulate same on December 10, 1973. (Appellant does not question the factual and legal determination that The Devil In Miss Jones was obscene.)

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri ex rel. John W. DYKE and Dorothy Dyke, Relators-Respondents, v. James R. SPRADLING, Director of Revenue of Missouri, and Dora Dale Mittenberg, State Collector of Revenue of Missouri, Respondents-Appellants.
    No. KCD 27578.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Motion for Rehearing and/or Transfer Denied May 3, 1976.
    Application to Transfer Denied June 14, 1976.

      John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for respondents-appellants.
    Walter D. MeQuie, Jr., Montgomery City, for relators-respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Relators filed application in the court below for a writ of mandamus in the nature of a class suit to compel the respondent Director of Revenue to issue automobile license plates for the year 1974 containing the same numbers accorded to each respective registrant in prior years. Relators had been assigned license number 1-248 in 1948, and plates containing those numbers had been issued to them for each year through 1973.

Sometime prior to 1973, the Director adopted a new plan for license plates on all non-commercial motor vehicles by which each plate would contain a combination of six numbers and letters. The basic reason for this change was that the old system of six digits of just numbers would permit accommodation of only a million automobiles. As the number of registered automobiles in Missouri increased, that became inadequate, as evidenced by the passenger car renewals in 1972 which were slightly in excess of two million. The new system of combining numbers with letters permitted enough combinations to carry the increased volume while still remaining within six digits.

On October 9,1973, respondents told rela-tors’ attorneys that they did not intend to and would not issue license plates bearing numbers previously assigned to relators or to any non-commercial motor vehicle registrant for subsequent registration periods whether or not application therefor was made, required fees paid and all formalities required by law carried out. Upon that statement, relators filed the present proceeding and their petition stated that it was in behalf “of all owners of non commercial vehicles.” However, the trial court on its own initiative reduced the class to those registrants with numbers under 10,000. The testimony was that in 1973 there were 9,500 of these low numbers outstanding, and the Director of Division of Departmental Services of the Missouri Department of Revenue testified that the holders of these low numbers traditionally request the reis-suance of those numbers each year.

The trial court on December 5, 1973, issued its peremptory writ of mandamus by which it directed the respondents “to issue to persons this date holding non-commercial motor vehicle license plates numbered 1 through 9999 who make proper application therefor and pay all required fees under the statutes of Missouri pertaining to reregistration of motor vehicles license plates for the year 1974 numbered as previously assigned.” We reverse.

A writ of mandamus can properly be issued only if the relators show a clear, unequivocal, specific right thereto. In re Marshall, 478 S.W.2d 1 (Mo. banc 1972); State ex rel. Patterson v. Tucker, 519 S.W.2d 22 (Mo.App.1975); Powell v. City of Creve Coeur, 452 S.W.2d 258 (Mo.App.1970). In the present situation there is no statute-ry provision expressly establishing property or personal rights in the license numbers to which relators claim a right. In order to try to establish the existence of such right, relators are forced to an attempt to infer the right by implication from the provisions governing the registration and licensing of motor vehicles, Sections 301.010 to 301.540. In their effort to do so, they point specifically to three statutory sections.

The principal section so relied on is § 301.130-1, which provides:

“Upon the filing of an application for registration * * * the director shall assign a number or numbers to each applicant and without further expense to the applicant shall issue and mail or deliver to him a certificate of registration * * * and * * * a set of license plates bearing the name or the abbreviated name of the state, the month and year of expiration and the number of numbers assigned; except that a set of plates for commercial motor vehicles shall not be assigned on a permanent basis . . .”

A proper understanding of the section just quoted together with the other relevant current statutory provisions requires reference to changes in the automobile licensing system which has occurred over the years. Prior to 1947, the registration statutes provided for assignment of a number to each automobile. § 8369b RSMo 1939. Those statutes further provided that license plates were to be issued to the owner annually. §§ 8376 and 8377 RSMo 1939. Then in 1947, the statutory scheme was radically changed to a system of permanent plates to be issued to and retained by the owner of the vehicle, and for annual registration to be handled under a series of twelve registration periods. To implement this new system, § 301.130 RSMo 1949 provided that the Director should issue to each applicant “a permanent license plate or set of plates” and that upon reregistration “the director of revenue shall * * * mail or deliver a metal tab * * * designating the year of registration, which tab shall be attached to the license plate in the place provided therefor.” Still later, in 1969, the statutes were further amended to create the present system for issuance of licenses. In the current § 301.130, reference to a “permanent” set of plates and annual renewal “tabs” were deleted.

Thus, the present statutory scheme goes back to that which was in effect prior to 1947 insofar as a new set of license plates being issued annually for each vehicle. No express provision now appears anywhere in the statute stating that the numbers which appear on these plates shall be permanent from year to year. The natural expectation is that when the plates change from year to year, so also may the numbers which appear thereon. Since there is no express statement in § 301.130-1 that the number assigned to each registrant is to be permanent, there is no logical reason to force such an addition by implication.

The exception appearing at the end of subsection 1 raises no implication favorable to relators’ position. The specific statement that license plates for commercial vehicles shall not be on a permanent basis cannot mean that plates for non-commercial vehicles shall be, since that would flatly contradict the purposeful deletions and changes in the old statutory scheme already described and the present direct provision of § 301.130-2. The conclusion is compelled that the exception at the end of § 301.130-1 is a vestigial remnant left on the statute books through mere oversight.

Relators next rely upon § 301.150 which provides that upon a sale or transfer of the registered vehicle, the original owner shall remove the plates and may assign them to any replacement vehicle acquired by him. This section then goes on to provide that:

“If application for registration of another motor vehicle is not made to the director of revenue within one year following the sale or transfer of ownership of a motor vehicle, the license plates held by the person who sold or transferred ownership of such motor vehicle shall be declared void, and new license plates bearing the same numbers may be issued to another registrant.”

Relators claim that this section clearly means that the numbers assigned have an ownership life of more than one year. They state in their brief that this provision giving a maximum one year period after transfer to reuse the number clearly indicates “that the right to use the number does not expire at the end of a registration period.”

The fallacy in this argument is that the registration period may actually be longer than a bare twelve months. This matter is covered by § 301.030, which provides that there shall be 12 registration periods, one for each calendar month. If a vehicle is registered for the first time in the first 15 days of any given month, then the applicable registration period will be the first day of the registration month and the total registration period will actually be somewhat less than one full year. However, it is further provided that “motor vehicles * * operated for the first time on the public highways of this state after the fifteenth day of any given month shall be subject to registration and payment of a fee for the twelve-month period commencing the first day of the next following calendar month.” Thus for vehicles falling in this category, the total registration period can be as long as 12½ months. Accordingly, this gives meaning to § 301.150-2 without any implication whatsoever of a continuing ownership right in the license numbers beyond the statutory registration period. This provision is to be read as creating a license life of one year from transfer of the automobile or the end of the registration period, whichever occurs first.

Finally, relators refer to § 301.140 which provides that upon transfer of ownership, the original owner may register another motor vehicle under the same number. However, this section must be read in conjunction with § 301.150 which also provides that an owner may use his old plates on a replacement vehicle if application is made within one year, but this latter section also provides that if the application is not submitted to the Director within that time, then the plates shall be cancelled and “the same numbers may be issued to another registrant.” Section 301.140 must also be read in connection with § 301.030-2 which provides that motor vehicles operated in Missouri for the first time shall be subject to registration for a twelve-month period. Read in combination, these sections mean that license plates containing a given set of numbers may be used by the holder during the twelve-month registration period for which the plates were issued, and that such use may be made either upon the vehicle which the holder owned at the commencement of the registration period or upon any replacement vehicle which he may acquire within that period and for which registration application is made within one year of disposition of the original vehicle. No fair inference can be drawn that a right to this given set of numbers is to remain the property of the holder beyond the twelve-month registration period.

A statute is to be interpreted in such a way as to further its purpose and to permit a reasonable implementation thereof. Household Finance Corporation v. Robertson, 364 S.W.2d 595 (Mo. banc 1963); Hawkins v. Missouri State Employees’ Retire. Sys., 487 S.W.2d 580 (Mo.App.1973); State ex rel. Slinkard v. Grebe, 249 S.W.2d 468 (Mo.App.1952); Roberts v. City of St. Louis, 242 S.W.2d 293 (Mo.App.1951); Memmel v. Thomas, 238 Mo.App. 403, 181 S.W.2d 168 (1944); Browder v. Milla, 296 S.W.2d 502 (Mo.App.1956). The general purpose of statutes pertaining to the licensing and registration of motor vehicles is to exercise control over use of the highways and to place on the public records a means of identifying a vehicle and its owner. See 60 C.J.S. Motor Vehicles § 59, p. 404. In Missouri the registration of motor vehicles is a revenue measure, and the attachment of license plates to the vehicle is prima facie evidence that the fees for the privilege of operating a motor vehicle have been paid. § 301.160. Nothing within these general purposes entails any concept of granting any personal rights to the numbers appearing upon the plates beyond the registration period for which those plates were issued. To recognize a personal right in these numbers, as contended for by relators, would be to exalt the vanity of these holders of low numbers over the public interest and welfare. If relators were correct in their contention here, then not only the holders of low numbers below 10,000 would be entitled to insist on reissuance of their respective numbers, but so also the holder of any other number which happened to appeal to him could likewise insist upon reissuanee of that particular number year after year. Such a situation would result in the State being foreclosed from adopting the reasonable and more efficient system of numbering and lettering in combination on each license plate and would undoubtedly considerably increase the cost of administering the automobile licensing system of this State.

Because of the failure of relators to prove a clear, unequivocal, specific right to the reissuance of the specific license numbers claimed by them, the judgment of the trial court is reversed.

All concur.

      . All statutory references are to RSMo 1969, unless otherwise specifically stated.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Johnnie STERLING, Appellant.
    No. KCD 27781.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Motion for Rehearing and/or Transfer Denied May 3, 1976.
    Application to Transfer Denied June 14, 1976.

      Thomas M. Larson, Public Defender, Richard G. Roth, M. Shelbourne Bryant, Asst. Public Defenders, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Defendant was charged in a three-count indictment with rape, robbery in the first degree, and assault with intent to kill with a deadly weapon with malice aforethought. Having waived a jury, the offenses for which defendant stood charged were tried to the court. At the close of all the evidence the state elected to dismiss counts one (rape) and two (robbery in the first degree) of the indictment and the case was submitted to the court solely under count three of the indictment, assault with intent to kill with a deadly weapon with malice aforethought (Section 559.180, RSMo 1969).

The court entered a verdict finding defendant guilty under count three of the indictment. After a pre-sentence investigation, his punishment was fixed at thirty years confinement in the custody of the Missouri Department of Corrections. Allo-cution was afforded, and judgment was rendered and sentence pronounced and entered accordingly.

On appeal, the brief filed on defendant’s behalf by appointed counsel raises only one claim of error: “The court erred in overruling the motion to suppress defendant’s written confession because it was taken after defendant had invoked his fifth amendment privilege not to incriminate himself and under the totality of circumstances derogated rights guaranteed to defendant by the Fifth and Fourteenth Amendments of the United States Constitution.” Defendant, however, apparently concluding that the brief filed by appointed counsel failed to raise all viable issues, filed four pro se briefs. Read in conjunction with each other, the pro se briefs appear to raise three additional claims of error which may be paraphrased as follows: (1) The verdict returned by the trial court did not find defendant guilty of an offense proscribed by Section 559.180, RSMo 1969, because it failed to include the word “aforethought” after the word “malice”, and, therefore it was a verdict finding him guilty of an offense proscribed by Section 559.190, RSMo 1969, which carries a maximum punishment of five years imprisonment; (2) Prosecution of defendant under Section 559.180, supra, rather than for “attempted murder”, violated his constitutionally guaranteed rights of “due process and equal protection” because the maximum punishment prescribed by Section 559.180, supra, exceeded the maximum punishment prescribed in paragraph (2) of Section 556.150, RSMo 1969, the general “attempt” statute; and (3) The imposed sentence of thirty years confinement in the custody of the Missouri Department of Corrections resulted from the trial court’s improper consideration of the other charges leveled against the defendant which were subsequently dismissed at the close of all the evidence, and was otherwise excessive.

The four pro se briefs referred to were intermittently filed by defendant without leave of court over a period of approximately ten months, the fourth and final one having been filed on the day the case was argued before and submitted to this court on appeal. All but one were untimely filed. With respect to those filed out of time, defendant made no attempt to have them considered by invoking Rule 84.-08. This court is being confronted with a steady progression of instances of accuseds in criminal cases on appeal filing pro se briefs even though their counsel of record have already filed briefs. Understandably, the pro se briefs which are filed rarely comply with the rules governing appellate procedure and, in many instances, infuse the respective appeals with elements of confusion. Appellate courts faced with this situation are placed in the incongruous position of either summarily rejecting such briefs for noncompliance with the rules, thereby giving the appearance of arbitrarily disregarding the rights of those seeking redress before them, or of expending an inordinate amount of time attempting to draw some semblance of meaning from them. In those instances where appellate courts, out of conscience, yield to the latter course, the entire appellate process is reined to almost a complete standstill because of the expenditure of time usually required to ferret out and understand the issues sought to be raised. Time and experience have taught that the administration of justice is best served by adherence to procedural requirements and rules. When procedural requirements and rules are lightly ignored, confusion is most often the result, and if justice then emerges it is more by chance than by design. Pro se briefs in criminal cases filed out of time without leave of court, and which bear little or no resemblance to compliance with appellate procedural requirements and rules, in most instances, confuse rather than aid the appellate process. Unrestrained consideration of them tends to place meaningful appellate consideration of criminal appeals in serious jeopardy. Although this court, with great reluctance, has concluded to review the issues raised by defendant in his pro se briefs for the simple reason that existing case law prevails to support a ready disposition of them, a caveat is sounded with respect to entertaining issues sought to be raised in future criminal appeals by pro se briefs which fail to comply with appellate procedural requirements and rules. If accuseds in criminal appeals represented by counsel insist on representing themselves separate and apart from the efforts of counsel of record, then they must abide by and be bound by the same procedural requirements and rules imposed on counsel and stand ready to suffer the same consequences for noncompliance.

Notwithstanding his contention that the verdict returned by the trial court did not find him guilty of an offense proscribed by Section 559.180, supra, defendant does not question the sufficiency of the evidence to support a verdict for violation of said statute. Therefore, a brief summary of the evidence will suffice. Defendant entered the victim’s home at approximately 11:00 P.M. on the night of May 12, 1974, commenced hitting her with his fists and told her, “I intend to kill you.” After a lapse of time, defendant then picked up a telephone and unmercifully beat the victim into a state of unconsciousness. According to the victim, just before she lapsed into unconsciousness, the defendant tore her robe off and “stuck his penis in [her].” The vicious beating administered by defendant broke the victim’s arm in two places, her jaw in two places, and inflicted cuts “all over” her face and head requiring innumerable stitches. A written confession made by defendant, which was offered and admitted into evidence, corroborated certain portions of the victim’s testimony.

In order to place defendant’s first claim of error in proper dispositional context, it is necessary to review the evidence adduced in connection with his motion to suppress. Defendant was arrested at approximately 2:80 the following morning at his place of abode. He was taken to “police headquarters” of the Kansas City, Missouri, Police Department at 1125 Locust Street. The record is silent as to when he arrived at “police headquarters”. Sometime after his arrest, and more precisely at approximately 4:20 A.M., a detective on the police force removed defendant from the “jail” on the eighth floor of “police headquarters” and took him to the second floor for the “purpose” of “interrogating” him. Two detectives on the police force conducted the interrogation. Prior to any interrogation, defendant was handed a printed “Miranda” warning and asked if he could read. Defendant replied that he could and then proceeded to read the printed “Miranda” warning. After defendant read the printed “Miranda” warning he was asked if he understood it and he replied that he did. The printed “Miranda” warning which was handed to and read by defendant, and which he stated he understood, contained a place for him to sign indicating a waiver of his rights explained therein. Defendant did not sign the printed “Miranda” warning, and, according to one of the detectives present, gave the following reason for not doing so: “He stated he understood his rights, but he just didn’t want to sign any type of report at that time.” Defendant at no time ever requested to contact or have an attorney present. Notwithstanding his refusal to sign the written waiver on the printed “Miranda” warning, the record bears out that almost immediately thereafter defendant “was willing to talk” and did talk to the two detectives regarding the offense for which he had been arrested. According to the record, during this stage of the interrogation, both of the detectives kept stressing to defendant “that he could have an attorney if he wished”, “that he didn’t have to make any statement”, and “that he didn’t have to talk to [them] if he didn’t want to.” Throughout this portion of the interrogation, defendant “wouldn’t give [the detectives] too many facts, but he was willing to talk with [them].” After passage of a brief period of time defendant interrupted the questioning and advised the two detectives that he would like to talk to a “friend” before talking any more with them. Defendant’s request was honored and all questioning ceased at that time. The “friend” with whom defendant wished to talk was a gentleman by the name of Russell Dupree. Mr. Dupree, who was contacted by one of the detectives, arrived at “police headquarters” sometime after 5:00 A.M. Defendant, in an isolated place, conversed with Mr. Dupree for approximately fifteen to twenty minutes. Immediately after concluding his conversation with Mr. Dupree, defendant advised the two detectives that “he was willing to give [them] a statement in regard to the offense that [they] were questioning him about.” However, before proceeding to interrogate defendant further, one of the two detectives again informed defendant of his rights per Miranda. After receiving his additional “Miranda” warning, defendant proceeded to orally relate to the interrogating officers his participation in the events which precipitated his arrest. During the course of doing so, one of the detectives again gave defendant a “Miranda” warning. Throughout the course of the interrogation defendant’s behavior was described by the detectives as “normal”. On the other hand, Russell Dupree, who was produced as a witness at the hearing by defendant, testified that when he talked with defendant at police headquarters he had an “anguished” look on his face and his conversation was sometimes difficult to “follow logically”. The trial court obviously resolved this evidentia-ry conflict in favor of the state. The information which defendant orally related to the detectives on this latter occasion was reduced to writing and signed by defendant at approximately 7:80 A.M.

From the tenor of his argument, defendant’s first claim of error appears to hang on the meaning to be drawn from certain language isolated by him from Miranda v. Arizona, 384 U.S. 436, 473, 474, 86 S.Ct. 1602, 1627, 1628, 16 L.Ed.2d 694, 723 (1966):

“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.”

Using the above as a contentional point of origin, defendant argues that his refusal to sign the waiver portion of the “Miranda” warning which was handed to him conclusively “indicated” that he wished to remain silent and any statement secured thereafter from him could not “be other than the product of compulsion.”

Defendant’s argument emphasizes form over fact. The mechanical approach advocated by defendant is patently fallacious. If refusal to sign a written waiver conclusively indicates that an interrogee is claiming his constitutional right to remain silent, then, by the same logic, it could be argued with equal force that execution of a written waiver conclusively indicates that an interrogee is foregoing his constitutional right to remain silent. The inherent danger of emphasizing form over fact thus emerges with unmistakable clarity. The utilization of printed “Miranda” warnings and companion waiver forms by law enforcement personnel should be viewed for what it actually is — an effort to document their investigative file with written indicia that a “Miranda” warning was given and the interrogee waived the right to remain silent. But the existence of such documentations is by no means conclusive. As pointed out in Miranda v. Arizona, supra, 384 U.S. at 492, 86 S.Ct. at 1637, “[t]he mere fact that he signed a statement which contained a typed-in clause stating that he had ‘full knowledge’ of his ‘legal rights’ does not approach the knowing and intelligent waiver required to relinquish constitutional rights.” Both sides of the proposition are succinctly stated in United States v. Hayes, 385 F.2d 375, 377 (4th Cir. 1967), cert. denied 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968): “Just as the mere signing of a boilerplate statement to the effect that a defendant is knowingly waiving his rights will not discharge the government’s burden, so the mere absence of such a statement will not preclude as a matter of law the possibility of an effective waiver.” Fact prevails over form, not form over fact. Therefore, as noted in United States v. McDaniel, 463 F.2d 129, 135 (5th Cir. 1972), it becomes necessary to look at all the circumstances surrounding the interrogation to ascertain whether defendant’s refusal to sign a waiver demonstrated that he was unwilling to forego his constitutional right to remain silent. The Supreme Court of Missouri in State v. Auger, 434 S.W.2d 1, 5, 6 (Mo.1968), implicitly advanced and adhered to the above composite principle. In Auger, the accused, after being given a “Miranda” warning, declined to sign a waiver of his rights and, by way of explanation, stated “that his attorney had always told him not to sign anything”. However, his declination to sign a waiver was followed, “almost immediately”, with the statement that “he didn’t mind talking about it.” A contention identical to the one here advanced by defendant was rejected by the court, and it proceeded to review the attendant facts and circumstances disclosed by the record in order to determine whether the interrogee’s refusal to sign the waiver indicated that he had chosen to stand mute. After doing so, the court concluded that the interrogee had voluntarily, knowingly and intelligently waived his right to remain silent and that the confession obtained from him was otherwise free of any taint of coercion or duress. Defendant attempts to distinguish Auger from the instant case in two respects: (1) unlike the interrogee in Auger, he did not, “almost immediately” following his refusal to sign the waiver, affirmatively state that he “didn’t mind talking about it”; and (2) unlike the inter-rogee in Auger, he was interrogated in the early hours of the morning and after a considerable period of time had elapsed following his refusal to sign the waiver. Defendant’s first attempt to distinguish this case from Auger, to say the least, is superficial. In legal contemplation it is difficult to perceive any practical distinction between the statement made by the interrogee in Auger that he “didn’t mind talking about it” and the record disclosure here that defendant, almost immediately following his refusal to sign a written waiver, was “willing to talk” to the two interrogating officers and did in fact do so. Defendant’s other attempt to distinguish the two cases is unpersuasive. Although defendant made no inculpatory statements until after he counseled with his friend Russell Dupree, the interrogation commenced shortly after his refusal to sign the waiver in view of his willingness to talk. Defendant has failed to produce any authority, and this court knows of none, holding that his interrogation during the early morning hours ipso facto proves that he did not voluntarily waive his right to remain silent. At best, it was but one of a number of factors to be weighed in proper perspective.

Defendant does not contend that he was not advised of his rights per Miranda. A reasonable explanation for his refusal to sign the waiver, particularly in view of his almost immediate willingness thereafter to talk to the investigating officers, lies in the oft recognized innate reluctance of people to “put pen to paper”.

When all of the circumstances surrounding defendant’s custodial interrogation are viewed in their entirety, they stand to support the trial court’s admission of defendant’s confession — defendant was given the full panoply of rights required by Miranda, not only at the outset, but several times during the overall course of his interrogation; he voluntarily, knowingly and intelligently waived his right to remain silent; his waiver of his right to remain silent was not the product of coercion or duress; his right to cut off interrogation was scrupulously honored; and further interrogation thereafter was voluntarily, knowingly and intelligently initiated by him, again absent coercion or duress. The time of defendant’s arrest, and the passage of a reasonable amount of time to book and process him, suggest that his interrogation chronologically occurred during the ordinary sequence of events that followed his apprehension. Although his interrogation may at first blush appear to have been somewhat protracted, it is readily explained by the record in view of defendant’s request to cut off further interrogation until he consulted and conferred with his friend, Russell Du-pree. At the time, Dupree was working as a security guard for a business concern located some ten blocks from “police headquarters”. Dupree had to be located, come to police headquarters, and then afforded an adequate opportunity to consult with defendant. Although never raised by defendant, resumption of the interrogation after he talked with his friend Russell Du-pree does not appear to have any constitutionally impermissible overtones in view of the recently decided case of Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Defendant cites and places great emphasis on People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625 (1968), to support his claim that his written confession was extracted after he had invoked his Fifth Amendment right not to incriminate himself. A careful reading of People v. Fioritto, supra, discloses that the court, in a decidedly cryptic manner, held that the mere refusal by an interrogee to sign a written waiver of his rights per Miranda, regardless of attendant facts and circumstances, was tantamount to a positive invocation of the right to remain silent. Form rather than fact was accentuated. The logic and reason which cut the template in State v. Auger, supra, underscores fact as opposed to form. The underlying rationale of State v. Auger, supra, also prevails in a number of other jurisdictions. See: State v. Cashaw, 4 Wash.App. 243, 480 P.2d 528 (1971); State v. Carpenter, 211 Kan. 234, 505 P.2d 753 (1973); United States v. Hayes, supra; United States v. McDaniel, supra; United States v. Devall, 462 F.2d 137 (5th Cir. 1972); United States v. Biondo, 483 F.2d 635 (8th Cir. 1973); United States v. Sawyer, 504 F.2d 878 (5th Cir. 1974); and United States v. Reynolds, 496 F.2d 158 (6th Cir. 1974).

Having concluded that the trial court did not err in admitting defendant’s written confession into evidence, attention now turns to the claims of error raised by defendant in his pro se briefs.

The verdict rendered by the trial court reads as follows: “So the Court has no hesitation, and does find, the defendant guilty beyond a reasonable doubt of the charge as made in Count III, Assault with Intent to Kill With a Deadly Weapon with Malice.” Defendant takes the position that the verdict did not find him guilty of violating Section 559.180, supra, and, therefore, the punishment which the court imposed, being the higher range prescribed by Section 559.180, supra, was unlawful. The crux of defendant’s position being that since the word “malice” in the verdict was not followed by the word “aforethought”, the trial court, in fact, found him guilty of an offense proscribed by Section 559.190, supra, and the sentence imposed exceeded the permissible maximum range of punishment. Defendant relies on State v. Mathis, 427 S.W.2d 450 (Mo.1968), and correctly points out that the court therein distinguished “malice” and “malice aforethought” and held that “malice aforethought”, as opposed to “malice”, was an essential elementof an offense charged under Section 559.180. This court expressly refrains from explicating the finely spun distinction between “malice aforethought” and “malice” because it is unnecessary to do so in order to dispose of this point. State v. Johnson, 461 S.W.2d 724, 727 (Mo.1971), is recommended reading for those interested in the legally drawn line of demarcation between “malice aforethought” and “malice” and the subtleties distinguishing them. Cook v. State, 511 S.W.2d 877 (Mo.App.1974), incisively disposes of this point adversely to defendant. In Cook, the movant in a Rule 27.26 motion urged that the sentence pronounced upon him (fifteen years) exceeded the maximum permitted by statute, since the following verdict returned by the jury which tried him found him guilty of an offense proscribed by Section 559.190, supra, rather than an offense proscribed by Section 559.180: “We, the jury in the above entitled cause, find the defendant guilty of Assault with Intent to do Great Bodily Harm with Malice, as charged.” The mov-ant, comparable to the tack here taken by defendant, argued that the verdict necessarily had to be construed as finding him guilty of assault with malice and not assault with malice aforethought. The Missouri Court of Appeals, St. Louis District, rejected movant’s attack on the verdict. After noting that “the controlling object is to learn the intent of the jury”, and in ascertaining the jury’s intent their verdict “should be liberally construed” and should not be tested “by technical rules of construction”, the court looked at the pleadings and instructions to discover the jury’s intent. Since the substituted information under which movant was tried clearly charged him with an assault with malice aforethought and the instructions to the jury posited a verdict of guilty upon a finding by them beyond a reasonable doubt that the assault was committed with malice aforethought, the court held that the verdict returned by the jury should and would be construed as finding movant guilty of an assault in violation of Section 559.180, supra, and, accordingly, the fifteen year sentence imposed was within the permissible maximum statutory range.

This court, in the context of defendant’s point, fails to see any valid distinction between a verdict in a jury tried case and a verdict in a court tried case. Count III of the indictment under which defendant was charged and found guilty alleged facts charging him with assault with intent to kill with a deadly weapon with malice aforethought, and, more specifically, referred three times to the assault as having been committed with “malice aforethought” and never once used “malice” alone. The verdict returned by the trial judge found “defendant guilty beyond a reasonable doubt of the charge as made in Count III.” Moreover, the able trial judge, before rendering the controversial verdict, remarked, as a matter of record, that if defendant were being tried by a jury MAI-CR 6.22(b) would be the required and appropriate verdict directing instruction. The verdict which defendant faults does not have to be tortuously construed to arrive at the conclusion that the trial judge intended to and did find defendant guilty of assault within the purview of Section 599.180, supra. Whatever explanation there may be for the inadvertent omission of the word “aforethought” following the word “malice” in the formal verdict, the omission did not render the verdict defective. The verdict is not rife with doubt since it explicitly finds defendant guilty as charged in Count III of the indictment, and the remarks made by the trial judge with reference to MAI-CR 6.22(b) convincingly demonstrate that his use of the term “malice” in the formal verdict had all the connotations of “malice aforethought”. For reasons stated, the point just addressed fails to afford defendant any relief.

Defendant’s contention that his prosecution under Section 559.180, supra, rather then for “attempted murder”, violated his constitutionally guaranteed rights of “due process and equal protection” because the maximum punishment prescribed for said offense exceeded the maximum punishment prescribed in paragraph (2) of Section 556.150, supra, the general “attempt” statute, was met and answered adversely to defendant in Turnbough v. State, 533 S.W.2d 609, 613 (Mo.App.1975) appl. to transfer denied March 8, 1976: “§ 559.180 defines the crime of assault with intent to kill; it does not come within the purview of the attempt statute; it promulgates a distinct crime and is complete in itself.”

Defendant’s remaining contention is twofold — (1) that the trial court improperly considered the subsequently dismissed charges in fixing his sentence at thirty years confinement, and (2) that said sentence was otherwise excessive. However viewed, it lacks merit. The first aspect of defendant’s remaining contention stands unsupported by the record. Moreover, the basic tenet that a trial judge is justified in taking into account the nature and circumstances of the offense for which a defendant has been found guilty when determining and fixing sentence, State v. Cline, 452 S.W.2d 190, 195 (Mo.1970) rev’d on other grounds; State v. Burton, 355 Mo. 792, 198 S.W.2d 19, 22 (1946), would be substantially eroded if the position advanced by defendant prevails where, as here, it rests on nothing more than mere supposition. The other aspect of defendant’s remaining contention, that the sentence imposed was excessive, was met and answered adversely to defendant in State v. Kennedy, 513 S.W.2d 697, 701 (Mo.App.1974), where the same argument was made concerning the imposition of a one hundred year sentence upon an accused convicted of violating Section 559.180, supra: “A sentence within statutory limits is not, as a matter of law, excessive or cruel and unusual. Garrett v. State, supra [486 S.W.2d 272, 274 (Mo.1974)]. This is particularly so when brutality accompanies the offense, as it does here. A long sentence is appropriate and consequently the punishment imposed was not erroneous. State v. Agee, 474 S.W.2d 817[14] (Mo.1971).”

The offense for which defendant was tried, found guilty and sentenced was permeated with brutality to an unconscionable degree. Perforce, the thirty year sentence imposed upon defendant cannot be said to be excessive.

Judgment affirmed.

All concur.

      . The prescribed punishment for violating Section 559.180, RSMo 1969, being “ . . . imprisonment in the penitentiary not less than two years.”

      . The prescribed punishment for violating Section 559.190, RSMo 1969, being “ . . imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months, or by a fine not less than one hundred dollars and imprisonment in the county jail not less than three months, or by a fine of not less than one hundred dollars.”

      . This court believes that where, as here, an accused is represented by counsel who has already filed a brief on his behalf, cause should be shown and leave of court obtained by an accused wishing to file an additional brief.

      . Which, so far as here pertinent, reads in part: “6.22 Assault with Malice Aforethought . (b) By other means or force likely to produce death or great bodily harm.

      Third, that the assault was made with malice aforethought — that is, intentionally and without just cause or excuse and after thinking about it beforehand for any length of time, and


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Henry Darrell JOHNSON, Defendant-Appellant.
    No. 36554.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 6, 1976.
    Motion for Rehearing or Transfer Denied May 17, 1976.

      Robert G. O’Blennis, Frank Fabbri III, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Banforth, Atty. Gen., Preston Dean, Charles Howard, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas J. Kavanaugh, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

Henry Darrell Johnson, defendant-appellant, (hereinafter referred to as defendant) appeals from a conviction for Robbery First Degree, § 560.120, V.A.M.S. A final sentence of twenty-five (25) years imprisonment was imposed on September 26, 1974, in accordance with the verdict of the jury and the court’s finding defendant guilty of one prior felony conviction. We affirm the judgment of the conviction entered by the trial court.

On April 22, 1973, Kathleen Sengebusch, the manager of the International House of Pancakes restaurant at 4103 Lindell Boulevard, was robbed by a lone, unmasked gunman. The victim had the opportunity to view the robber at close range for a period of approximately five minutes. Mrs. Sen-gebusch was shown hundreds of photographs by the police during the next two weeks without making any identification. On May 6, 1973, she was again robbed by four men, one of whom she recognized as being the robber of April 22. No charges were ever brought concerning this second robbery; the case now before us on appeal concerns only the robbery of April 22, 1973. On May 14 Mrs. Sengebusch made a positive identification of one photograph in a group of several which were being shown to her by the police. The man she identified was the defendant. After this photograph identification the police unsuccessfully attempted to arrest defendant at his last known local address. The St. Louis police were later notified that defendant was being held in Chicago, Illinois. They arranged for Mrs. Sengebusch to accompany them to Chicago on August 20,1973, for the purpose of viewing a lineup. Mrs. Senge-busch made a positive identification of the defendant at the lineup. The defendant was subsequently transported to St. Louis for trial on the one robbery charge.

Prior to trial the court held a hearing and received testimony on defendant’s motion to suppress identification. The motion, based on the allegedly suggestive identification process and the absence of counsel at the lineup, was overruled. Mrs. Senge-busch, the state’s sole identification witness at trial, testified that she recognized defendant as having been a regular customer for a period of five to six months prior to the April 22, 1973, robbery. In addition to Mrs. Sengebusch, the state called three of the police officers who had been involved in the identification process.

The defense at trial was alibi. Defendant’s evidence consisted of two witnesses: Rose Johnson, defendant’s aunt, who testified that defendant resided with her in Chicago from April to July of 1973, and Julia Johnson, defendant’s grandmother, who testified that defendant had lived with her in St. Louis but had left on April 9, 1973. The state was allowed to impeach the testimony of Rose Johnson that defendant had been with her in Chicago all during May by recalling Kathleen Sengebusch to testify that she had seen defendant on May 6 in St. Louis. Defendant did not testify at trial.

Defendant raises five issues on appeal. First, the trial court allegedly erred in overruling the motion to suppress identification and in allowing identification testimony by the state’s witnesses because the identification procedures were so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law, and because the pretrial confrontation at the lineup in Chicago was made without counsel. Second, the court allegedly committed plain error in permitting hearsay testimony from three (3) police officers concerning the identification of defendant prior to trial by Mrs. Sengebusch. Third, the trial court allegedly erred in allowing the state to bring forth rebuttal testimony from Kathleen Sengebusch concerning her identification of defendant at the restaurant on May 6, some two weeks after the event at issue, because the testimony was improper impeachment on a collateral issue and highly prejudicial to defendant. Fourth, the court allegedly erred in allowing the state’s attorney to draw unfavorable inferences from the failure of the defendant to produce certain evidence since such evidence would have been solely cumulative or corroborative in nature and fifth, it was allegedly error for the court to allow the state’s attorney to comment directly on defendant’s failure to testify and to allow the state’s attorney to elicit testimony for the sole purpose of showing defendant’s failure to make a statement while under arrest.

Defendant’s first contention is that the identification procedures utilized prior to trial were so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law. According to defendant, Mrs. Senge-busch initially picked out his photograph not because she recognized him as the robber but because she thought his face was familiar due to his patronage of the restaurant. Then, he asserts, showing her the same photograph prior to the lineup and again prior to trial confirmed the mistaken identification and insured that her in-court identification was based solely on the pretrial identification procedures. Therefore, he contends that her identification testimony was unreliable and should not have been admitted by the trial court.

Defendant raised this issue during a hearing on his motion to suppress identification. As noted earlier, the motion was overruled and the challenged identification was made by Mrs. Sengebusch at trial. Defendant did not object to the introduction of this evidence and made a lengthy cross-examination of the state’s witness on this matter. Defendant then raised the issue again in his motion for a new trial. The rule in Missouri is that, to preserve a matter for appeal, timely objection must be made at trial as well as in the motion for a new trial. State v. Brownridge, 459 S.W.2d 317 (Mo.1970) and State v. Ward, 518 S.W.2d 333 (Mo.App.1975). Defendant’s first contention has not, therefore, been properly preserved for review.

Nor are the matters raised by defendant subject to consideration by the court under the “plain error” rule, Rule 27.20(c), unless the pretrial identification procedures resulted in “manifest injustice” to defendant. The standard by which the admissibility of identification testimony is to be determined has been set out by the courts of our state on several occasions. Procedures which are unnecessarily suggestive and conducive to irreparable mistaken identification constitute a denial of due process. Stovall v. Denno, 388 U.S. 293, 301-2, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) and State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975). However, each case is to be considered on its own facts, and the reliability of the resultant identification is to be determined from the totality of the circumstances. State v. Parker, 458 S.W.2d 241, 243-44 (Mo. 1970) and State v. Ealey, 515 S.W.2d 778, 779-80 (Mo.App.1974). Three factors to be considered in the totality of the circumstances are the presence of an independent basis for identification, the absence of any suggestive influence and the positive in-court identification, State v. Parker, supra, and State v. Ealey, supra. Even where the pretrial procedures are arguably suggestive, it does not inescapably follow that the in-court identification is tainted. United States v. Dailey, 524 F.2d 911, 914 (8th Cir. 1975) and State v. Parker, supra, at 244.

Clearly, the pretrial identification procedures used by the police and the prosecution were ill-advised. They unnecessarily refreshed the witness’ memory as to the photograph she had previously chosen and may have implied she should identify the man whose picture she had already chosen. But, in the present case, any suggestive influence was outweighed by the other two factors. There was a strong independent basis for the identification. The witness testified to having seen the defendant regularly for five to six months prior to the robbery and to viewing the robber at close range for approximately five minutes during the robbery. There was also a positive in-eourt identification. The witness testified that she had no doubt that defendant was the man who had robbed her. Therefore, the pretrial procedures did not undermine the reliability of the in-court identification. The trial court did not err in admitting the identification testimony.

Defendant’s claim that the absence of counsel at the pre-indictment lineup made the identification inadmissible, was not properly preserved for review and is clearly out of line with the decisions of the courts of this state. Morris v. State, 532 S.W.2d 455 (Mo. Banc) handed down Feb. 2, 1976; State v. Walters, 457 S.W.2d 817 (Mo.1970) and Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

The second issue raised by defendant on appeal is that the trial court committed plain error in admitting hearsay testimony from three police officers. In essence, each of the policemen testified as to the process by which Mrs. Sengebusch made her identification and that she had identified the defendant. Defendant now claims that allowing this hearsay testimony had the effect of substantially bolstering the testimony of the state’s sole identification witness, to the prejudice of defendant. State v. Degraffenreid, 477 S.W.2d 57 (Mo. Banc 1972). Defendant acknowledges that this testimony was not objected to at trial or in the motion for a new trial but asks the court to consider the matter as plain error. Rule 27.20(c), Y.A.M.R.

. . The doctrine of plain error is not intended to cover ordinary trial errors, such as the admission or exclusion of evidence where there has been no objection and no assignment in a motion for new trial, unless the error (if any) results in ‘manifest injustice or a miscarriage of justice.’ ” (State v. Taylor, 472 S.W.2d 395, 403 (Mo.1971) citing State v. Patterson, 443 S.W.2d 104 (Mo. Banc 1969)).

It should be noted that the two cases which defendant cites to support the argument that the admission of this evidence was plain error concerned the violation of the Fifth Amendment right to remain silent, State v. Stuart, 456 S.W.2d 19 (Mo. Banc 1970), and the right to be informed of the charges being brought by the state, State v. Negron, 374 S.W.2d 622 (Mo.App.1963). In contrast, the error alleged here is the unchallenged admission of hearsay. In Degraffenreid, supra, the Supreme Court of Missouri found that it was error for the trial court to have admitted over defendant’s objection, the hearsay testimony of a police officer concerning the identification of the defendant by the state’s sole identification witness. The court found that under the circumstances of the case the error was not harmless and could well have tipped the scales against the defendant. The hearsay testimony was both objected to at trial and preserved in the defendant’s motion for a riew trial. While we note that in the present case the identification of the defendant was much more certain, it benefit-ted less from the bolstering effect of the police testimony. In any event, such matters have not been reviewable as plain error when improperly preserved. State v. Gant, 490 S.W.2d 46 (Mo.1973) and State v. Simmons, 500 S.W.2d 325 (Mo.App.1973).

Defendant’s third issue on appeal is that the trial court erred in allowing the state to rebut the testimony of his alibi witness on a collateral matter and that the error worked to the prejudice of defendant as the circumstances precluded cross-examination of the rebuttal witness.

Prior to trial, defendant had requested and received a protective order which precluded the state from introducing in its case in chief evidence of several other crimes in which defendant was allegedly implicated, including a robbery on May 6. At trial, Rose Johnson, defendant’s only witness, stated on direct examination that defendant had stayed at her home beginning on April 9 and through the month of May. On cross-examination she testified that defendant was at her home on May 6,1973. After an extensive hearing outside the presence of the jury, Kathleen Sengebusch was recalled, over defendant’s objection, and testified that she had seen defendant on May 6 at the International House of Pancakes. No evidence was offered as to the circumstances of this encounter, and, although in her earlier testimony Mrs. Sengebusch had inadvertently referred to the April robbery as the “first” robbery, the jury was never made aware of the second robbery on May 6, 1973. Defendant did not cross-examine Mrs. Sengebusch on this matter for fear of introducing the second robbery.

The general rule is that the scope of rebuttal testimony rests within the broad discretion of the trial court. State v. Huff, 454 S.W.2d 920, 923 (Mo.1973) and State v. Kirk, 510 S.W.2d 196, 199 (Mo.App.1974). Reviewing courts will not reverse unless the defendant is prejudiced or the court abused its discretion. State v. Kirk, supra. Rebuttal testimony on a collateral matter has been held inadmissible. State v. Earvin, 510 S.W.2d 419, 421-22 (Mo.1974). However, the courts of Missouri have held that rebuttal may be offered to combat alibi despite the limitation of rebuttal on collateral matters. State v. Huff, supra, at 923 and State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87, 93 (1935). The admission of this rebuttal testimony has been allowed under the theory that evidence offered by the defendant may be rebutted by any competent testimony that tends to counteract or disprove it. State v. Kirk, supra, at 199.

Looking at the rebuttal evidence of the present case in the light of this specific rule and the more general rule that the trial court is to be allowed broad discretion in this area, we do not find that the admission of the rebuttal testimony was error.

Defendant’s fourth point is that the trial court erred in allowing the state to comment on the failure of the defendant to produce evidence since such evidence would have been solely cumulative or corroborative in nature. In its closing argument the state commented on the failure of the defendant to introduce any evidence of the bus schedules from St. Louis to Chicago; it argued that these would have tended to support the testimony of Rose Johnson as to the circumstances of defendant’s arrival in Chicago. When a witness is more available to one party than to another and might reasonably be expected to give testimony in that party’s favor, an unfavorable inference may be drawn from the failure to produce the witness. State v. Wallach, 389 S.W.2d 7, 13 (Mo.1965) and State v. Collins, 350 Mo. 291, 165 S.W.2d 647, 648-9 (Mo.1942). This inference is not permissible where the testimony would be cumulative or where it would have been held inadmissible if offered. State v. Wallach, supra, at 13. This rule extends to documentary evidence, such as bus schedules. State v. Wells, 305 S.W.2d 457 (Mo.1957). The trial court that heard the argument exercised its discretion in determining whether the argument was prejudicial and appellate courts will not interfere with that determination unless it is clear from the record that the trial court abused its discretion. State v. Goff, 516 S.W.2d 818, 822 (Mo.App.1974). In State v. Wallach, supra, where one witness testified to conversations between himself and the defendant, comment on the defendant’s failure to call a second witness whom the first had told of the conversations was error because it was clear that the second witness’ testimony not only would have been merely corroborative but also subject to a hearsay objection. Here, the bus schedules would have been supplementary evidence, not merely cumulative or corroborative of Rose Johnson’s testimony. And they would have been admissible if offered. Therefore, the trial court did not err in allowing the state’s attorney to draw unfavorable inferences from defendant’s failure to produce them.

We note some dispute between defendant and the state as to the mutuality of the application of these rules. The cases, as we understand them, hold that either party may comment on the failure of their adversary to produce evidence which was more available to the adversary. State v. Collins, supra, 350 Mo. 291, 165 S.W.2d at 649.

The fifth issue raised by defendant on appeal concerns the alleged error of the trial court in allowing the state’s attorney to comment on defendant’s failure to testify and in allowing the state to elicit testimony for the sole purpose of showing the defendant’s failure to make a statement while under arrest. The comments and testimony now complained of were not objected to at trial nor were they included in defendant’s motion for a new trial. Defendant acknowledges this failure to preserve the issues and asks us to now consider these matters as plain error. Rule 27.20(e), V.A.M.R.

A direct reference to a defendant’s failure to testify would be a violation of his constitutional rights and, therefore, open to consideration under the plain error rule. State v. Stuart, 456 S.W.2d 19 (Mo. Banc 1970) and State v. Gray, 503 S.W.2d 457 (Mo.App.1973). Likewise, if the prosecution evidence is such that only the defendant could contradict it, characterizing that evidence as “undenied” is an improper reference to defendant’s failure to testify. State v. Hampton, 430 S.W.2d 160, 163 (Mo.1968). However, we do not find such a reference in the record. The comments of the state’s attorney were directed to the failure of the defendant to put on adequate evidence, and this is clearly permissible. State v. Sechrest, 485 S.W.2d 96, 98 (Mo.1972) and Cloud v. State, 507 S.W.2d 667, 669 (Mo.App.1974). Therefore, we find no plain error as to these comments.

The questioning and testimony which defendant now claims should have been excluded by the trial court concerned the giving of the “Miranda” warnings to the defendant both in Chicago and St. Louis. No comment was made by the witness or prosecutor as to whether defendant then remained silent. Testimony that defendant was given his rights is permissible when given without embellishment. State v. Cheatum, 520 S.W.2d 695, 697 (Mo.App.1975). The important aspect of embellishment is any comment that defendant failed to make a response. State v. Cheatum, supra. No such embellishment is apparent from the record. The jury’s knowledge of the fact that defendant was informed of his right to remain silent is not a violation of that right. State v. Cheatum, supra, at 697. We find, therefore, that the trial court did not commit plain error in allowing this questioning and testimony.

For the foregoing reasons we affirm the decision of the trial court.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: RENDLEN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Troy William STARKEY, Defendant-Appellant.
    No. 35409.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 6, 1976.
    Motion for Rehearing or Transfer Denied May 17, 1976.
    Application to Transfer Denied June 14, 1976.

      Gilmore & Gilmore, William Gilmore, Sikeston, Legal Aid Society, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   RENDLEN, Judge.

Defendant appeals his conviction of forcible rape under § 559.260, RSMo.1969, V.A. M.S., and the sentence of thirty years imprisonment. For reasons we shall discuss, the judgment is affirmed.

Appellant contends the court erred in: (1) permitting introduction of statements and photographs of appellant taken by the police without prior constitutional warnings; (2) admitting testimony concerning the mode of extrajudicial identification of appellant; (3) allowing in-court identification of appellant based on previous improper and suggestive extrajudicial identification procedures; (4) failing to grant a continuance on the day of trial or in the alternative to “strike witnesses” whose names had been endorsed two weeks prior to trial; (5) erroneously admitting certain State’s exhibits under the Uniform Business Records Act; (6) improperly instructing as to reasonable doubt and burden of proof; and (7) by overruling appellant’s “post-trial motion in arrest judgment or in the alternative for a new trial.”

From the evidence the jury could find that D_Y_ arrived by air at Lambert-St. Louis International Airport near midnight on the evening of May 10, 1971. At about 4 a. m. on the morning of May 11 while she waited in the passenger lounge area on the top level of the terminal for a flight to Springfield, Missouri, appellant took a seat next to her and touched her buttocks with his hand. Mrs. Y— jumped up immediately, took the down escalator to the middle airport level and went to the ladies’ rest room.

Jacquelyn Johnson, an employee of the Avis Rent A Car Agency who had seen her several times previously that morning, remembered watching Mrs. Y_as she came from the upper level and went to the ladies’ room at the west end of the building. Finding the west rest room closed for cleaning, Mrs. Y_ turned and walked the length of the building to the ladies’ rest room at the east end. As Mrs. Y_passed beyond her range of vision, Mrs. Johnson saw a man, whom she identified as appellant, come down the stairway from the upper level and proceed at a fast walk in the direction Mrs. Y_ had just taken. Mrs. Johnson’s description of appellant substantially matched that given by Mrs. Y_ except she also noticed a pair of tan-colored gloves hanging from his right hip pocket.

Mrs. Y_went to the ladies’ rest room, entered a stall and when she opened the stall door a few minutes later, was confronted by appellant holding a knife. She could smell alcohol on his breath, his speech was slurred and his hair in disarray. As he came toward her, Mrs. Y_ began to scream, and as she did, he put the knife to her throat, rammed the gloved fingers of his other hand in her mouth and threatened to kill her unless she stopped. No one else was in the rest room as he pushed her back into the stall and locked it. Appellant, by threats and force, made the terrified Mrs. Y_perform degrading acts and forcibly raped her. Prior to the rape, the prosecu-trix unavailingly protested she was pregnant; and though in fact she was six months pregnant, appellant forced her to the floor of the stall there performing the crime for which he stood accused. Her lip and hand were cut during her effort to resist the rape; and appellant, when finished, expressed concern for her cut hand, also stating he was sorry if he had hurt her baby. Following this short-lived remorse, appellant warned against calling the police and stated she should not leave for half an hour.

Immediately Mrs. Y_dressed, left the ladies’ room and ran to the first person she saw, an airport maid, screaming she had been raped. The maid notified the authorities and later described the prosecutrix as having blood on the top of her blouse and that she was “shaking and trembling all over, really upset.” Blood was found on the toilet seat, floor and walls of the area where the rape occurred and the medical testimony of Mrs. Y_⅛ condition was corroborative of the fact of rape. A description of the assailant was broadcast to airport officers.

At about 2:30 a. m. the same morning, officer Orson Howell of the airport police, while patrolling the parking area of the lowest level of the airport garage, observed a lime green pickup truck, bearing the name of a fencing company in Hazelwood, with an iron frame rack too tall to clear obstructions in the garage. The driver, later identified as appellant, alighted to pick up a wheelbarrow which had fallen from the truck and spoke to Howell, who noted he was wearing greenish pants and a long-sleeved striped shirt. Howell testified he was “acting kind of funny, I don’t know whether he was drinking or not” and helped appellant back his truck from the driveway. About five minutes later he saw the truck backing into the driveway from the other side of the building. Again he spoke to appellant, noticing then a discoloration around his left eye. Shortly afterward, about 2:45 to 3 o’clock a. m., Howell saw the truck for a third time parked at the top level of the airport garage. When he returned to that area about 5 a. xn., after the broadcast of the rape report, the truck was gone.

Approximately six days later, officers assigned to investigate the crime, while canvassing the Hazelwood area, saw a truck matching the description given by officer Howell parked behind an apartment they later learned was appellant’s residence. Their first efforts to investigate among residents of the building were unsuccessful but two days later appellant answered their knock and when advised they were police officers, invited them into his home. Explaining they were investigating a rape at Lambert Airport, officer Hollandsworth asked appellant if the truck parked outside was his. Appellant admitted the ownership but denied having been at the airport on the date in question. When they stated his appearance matched the description of the rapist, even his discolored left eye, appellant denying involvement made several exculpatory statements. They asked if he would voluntarily come to the police headquarters and have his picture taken to which appellant consented, coming there in his own vehicle with his two minor children. The photographs were taken and appellant left. At no time was he under arrest and officer Hollandsworth testified that he and his partner had not gone to appellant’s residence with the intention of placing him under arrest.

I.

Appellant first contends his statements made during the first meeting with police officers at his home and photographs taken at the station later that day were erroneously admitted at trial because no prior Miranda warnings were given. This contention is without merit. When officer Hollandsworth and his partner knocked on appellant’s door on May 18, appellant answered, invited them in and the following transpired.

“Q (prosecutor): Did you explain to Mr. Starkey why you were there?
A (witness Hollandsworth) Yes, sir.
Q What did you tell him?
A Told him that an offense of rape occurred at the airport on the 11th of May and a truck similar to his was seen at that location about that time, and also that the subject matching his description was being sought.
Q Did one of you mention the truck parked out in the rear?
A We asked him if it was his truck?
Q What did he say?
A Yes, sir, it was.
Q That’s when you told him about the alleged incident?
A True.
Q Did he respond to that?
A He said it couldn’t have been him because he was not at the airport that day.
* * * * * *
Q (by Mr. Westfall): What else did you say to him?
A We brought up the fact that he matches the description, everything, a discolored left eye or black eye and he said, well, I got that a couple of weeks ago in a fight.
Q Did he in fact have a discolored left eye?
A Yes, sir.
Q What was the next thing that you or he said?
A Well, we asked him if he would go to headquarters and have his photograph taken voluntarily.
Q What did he say?
A He said yes.
Q Did this happen?
A Yes, sir.
******
Q Did you meet him back at headquarters?
A Yes, sir.
Q What occurred when you arrived back there?
A His photograph was taken and then he left.
Q He was never that morning placed under arrest?
******
A No, he was not placed under arrest.
Q After the photograph he left?
A True.”

It is significant appellant by his testimony substantiated the officers’ account in all details except he claimed he told them the black eye occurred two days earlier rather than two weeks. More important, neither the statements made nor the photographs taken involved “custodial” interrogation or a situation requiring prior Miranda warnings. The Miranda court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 86 S.Ct. at 1612. In the case at bar appellant was under no compulsion to meet, speak, or remain with police officers. He was not under arrest nor was his freedom of action restrained. As contrasted to Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) in which the officers improperly failed to warn the arrested accused who was not free to leave and questioned him in his bedroom in the early morning hours, the officers here entered appellant’s home at his invitation, no threats, air of compulsion or suggestion of arrest appear from the description of the meeting in his living room. Appellant’s arrest did not take place until two days after the meeting with the officers and the photographs taken at the station. No probable cause for arrest existed until after his photographs were identified by Mrs. Y_and officer Howell.

In United States v. Hall, 421 F.2d 540 (2nd Cir. 1969), cert. den., 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970), FBI agents went to a robbery suspect’s apartment possessing only information that the suspect’s automobile was near the scene at the time of a robbery. The agents knew they could not lawfully arrest him and abstained from threats of arrest. False exculpatory remarks made in response to questioning before any Miranda warnings were ruled properly admissible and the court commenting on the interrogation in the suspect’s home as effected by the mandate of Miranda, stated at 545[4]: “[W]e do think it [Miranda ] suggests that in the absence of actual arrest something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so.” The court went on to point out that the amount of information possessed by the police at the time of the interrog’ation in Hall, which closely parallels that in the case at bar, was not such that it caused the officers to bear down on interrogation and create an atmosphere of significant restraint “that triggers Miranda.” The mild police activities shown here, as in Hall, supra, should not prevent the introduction of the statements made. This court, confronted with a similar problem in State v. Williams, 522 S.W.2d 641, 644[1] (Mo.App.1975), applied and restated the rule of Miranda, noting that no hard and fast rule can be established as to when custodial interrogation begins; instead it must be determined from the surrounding circumstances and the suspect must be in custody or otherwise deprived of action in some “significant way.” In the recent ease United States v. Pohlman, 522 F.2d 974 (8th Cir. 1975), agents went to the office of an income tax evasion suspect and in conversations there, the suspect admitted not having filed the required returns. The court held, noncustodial investigation of this type does not require Miranda warnings. Here we find no inherently compelling pressure which worked to undermine the individual’s will to resist and to compel Starkey to speak where he would not otherwise do so freely. See also United States v. Littlepage, 435 F.2d 498, 499[1] (5th Cir. 1970), in which a suspect, eventually convicted of receiving stolen goods while moving in interstate commerce, was questioned by special agents of the FBI who came to his home and interviewed him in his apartment for approximately one hour, during which damaging admissions were made. The court held the facts did not constitute “custodial interrogation, triggering the requirements of Miranda warnings.” There the suspect answered all questions freely, was not placed under arrest nor told that he would be and no charges were pending. Bolstering the quality of the voluntariness of defendant’s statements was the fact that he voluntarily appeared at the FBI office on the afternoon of the same day. In that regard Littlepage is remarkably similar to the case at bar in which the defendant voluntarily drove to the police station in his own vehicle with his two daughters and there allowed himself to be photographed following the interrogation by the officers at. his home earlier that day. The record here is barren of facts indicating a coercive or compelling atmosphere requiring the giving of Miranda warnings. The point is ruled against appellant.

II.

Appellant next contends the trial court erred in permitting officer Hollands-worth to testify that Mrs. Y_and officer Howell identified appellant’s photograph from a group of 12 such photographs, asserting that such testimony is prejudicial hearsay, citing State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972). The factual statement in appellant’s point is inaccurate. Officer Hollandsworth did not testify that Howell identified appellant’s photograph. Hollandsworth said only that Howell was shown the same 12 pictures that had previously been shown to Mrs. Y_ and that appellant’s was among them.

With respect to the showing of the photographs to Mrs. Y_, Hollandsworth testified:

“Q What transpired while you were with Miss [Y_]?
A We had photographs.
Q How many?
A Twelve photographs with us.
Q What did you do with those photographs?
A We allowed her to view them.
Q And was the photograph that you already identified as State’s Exhibit 13 [appellant’s photograph] one of them?
A Yes, sir, it was.
Q Now, did Miss [Y_] in your presence mark any of those photographs?
A She marked that one (indicating).
Q Let me show you again State’s Exhibit 13 and see if you see her mark on there?
* ⅜ * * * *
A Yes, sir, I do.
Q What is it?
A Her initials, D.Y. and the date, 5/18/71.
Q She did this in your presence?
A Yes, sir.”

We cannot accept the State’s argument that Hollandsworth’s testimony did not necessarily signify to the jury that Mrs. Y_by marking one of the photographs, identified appellant as her assailant. Since only one of the 12 photographs was so marked and Mrs. Y_had already identified appellant in the courtroom, the jury could not have escaped the conclusion that marking the picture was an identification. However, we find that Hollandsworth’s testimony of Mrs. Y_’s extrajudicial identification does not require reversal. It is well-established that the admission of improper evidence is usually harmless if the fact sought to be shown is fully and properly proved by other evidence. State v. Kennedy, 513 S.W.2d 697, 700[4] (Mo.App.1974); State v. Nimrod, 484 S.W.2d 475, 479[3] (Mo.1972). In the present case the identification of appellant as the attacker is abundantly supported by evidence other than Mrs. Y_⅛ identification of appellant’s photograph. Mrs. Johnson positively placed appellant on the middle level of the terminal as he followed Mrs. Y— toward the east rest room immediately before the attack. Mrs. Y_who was in the presence of her assailant in the lounge area and for a prolonged period under grim circumstances in the east ladies’ rest room, positively identified appellant as her attacker. Officer Howell saw, conversed with and assisted appellant at least twice in the airport parking area shortly before the attack. He recognized and described the truck and appellant in detail. This, in addition to the fact that Mrs. Y_’s and Miss Johnson’s description of appellant correspond in all details with the description and identification given by officer Howell, (whom appellant admits meeting) is sufficient to establish appellant’s presence at the scene of the crime as the rapist, thus rendering the purported hearsay testimony harmless. In Degraffenreid, supra, the sole eyewitness to a burglary was a 78-year-old man who allegedly observed defendant from a distance of 75 to 80 feet. The Supreme Court held that the admission of the testimony of a police officer that the witness identified the defendant by a photograph and in a lineup was reversible error. In a concurring opinion joined by five of the six majority judges, Finch, C. J., stated:

“Actually, it [the majority opinion] recognizes that the admission of cumulative evidence may in some cases be harmless error and then finds that Officer Smith’s testimony was not harmless. In so ruling, the opinion, as I understand it, states that the fact that evidence is cumulative does not automatically make its admission harmless. I agree with that viewpoint. Actually, each case must be examined to determine whether the particular cumulative evidence admitted therein was harmless and hence not prejudicial, even though erroneous.
If we were dealing with a situation wherein several eyewitnesses had positively identified the defendant as a participant in the burglary and the state had offered Officer Smith to confirm that Mr. Gaston had identified photographs of defendant and had picked out in a lineup, we might well conclude that such evidence, even though erroneously admitted, did not operate to the prejudice of defendant and was harmless.” (Emphasis supplied.) 477 S.W.2d at 66-67.

It cannot be said here, as it was in Degraffenreid, that the hearsay testimony was such as to “tip the scales against defendant.” 477 S.W.2d at 64. We find here the challenged testimony was cumulative and harmless.

III.

The third point raised on appeal, that the trial court should not have allowed the in-court identification testimony of the accused by the victim and officer Howell, since these identifications were induced by the viewing of “conducive and suggestive photographs,” has not been properly preserved for review. At trial defense counsel failed to object when the identification testimony of Young and Howell was introduced, which is essential to such preservation. State v. Daniels, 487 S.W.2d 465, 468[1] (Mo.1972); State v. May, 479 S.W.2d 451, 453[1] (Mo.1972). Further, his pre-trial motion to suppress in-court identification based solely upon the “taint” of an improper lineup, was insufficient to raise the present issue.

We find no plain error in the trial court’s admission of this testimony; the trial record gives no hint that the photographic identification procedures were “so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.” Simmons v. U. S., 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). In addition, both Mrs. Y_ and officer Howell had ample “independent basis” for their identification. State v. Mentor, 433 S.W.2d 816, 819 (Mo.1968); Mooring v. State, 501 S.W.2d 7, 10[2] (Mo.1973); State v. Carey, 486 S.W.2d 443, 446[2] (Mo.1972).

IV.

Appellant’s remaining four points have not been preserved as they fail to “state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . . .” Rule 84.04(d); State v. Gantt, 504 S.W.2d 295, 297[1] (Mo.App.1973). Appellant’s points are bald assertions of error without explanation why these actions were erroneous. “[Pjoints relied on by any appellant [seeking reversal] should definitely isolate and formulate the precise issues to be reviewed, and if that function is observed at all, it should not be relegated to the argument portion of the brief.” State v. Freeman, 489 S.W.2d 749, 752[1] (Mo.App.1973). “The appellate courts of this State can no longer afford the luxury of searching the Argument section of appellant’s briefs for the purpose of discovering if sufficient particularity might be found therein to enable them to determine why the orders or judgments of a trial court are erroneous.” Griffin v. State, 513 S.W.2d 706, 708 (Mo.App.1974).

We have nonetheless examined these points in detail for plain error under Rule 27.20(c), V.A.M.R. We find no abuse of the trial court’s wide discretion in denying appellant’s motion for a continuance, State v. Thomas, 433 S.W.2d 537, 539[1] (Mo.1968), or in the alternative to strike witnesses (appellant’s point IV) because the witnesses were known and available for interview two weeks before the day of trial. Appellant has failed to meet his burden of showing prejudice from the late endorsement. State v. Goodpaster, 438 S.W.2d 256, 257[1] (Mo.1969). The trial court did not err in admitting State’s Exhibits 15 and 16 (App. point V) as the testimony of the custodian of those records qualified them for admission under the Uniform Business Records as Evidence Law, § 490.680 RSMo. 1969, V.A.M.S. See Rossomanno v. LaClede Cab Co., 328 S.W.2d 677, 681-2[10, 11] (Mo. banc 1959). Point VI alleges error in giving the pre-MAI instruction on burden of proof and reasonable doubt. This contention has been ruled repeatedly and found to be without merit. See State v. Martin, 511 S.W.2d 777, 778[2] (Mo.1974). Appellant’s final point is that the court erred in overruling his post-trial motion in arrest of judgment or in the alternative for a new trial. The point as stated is patently defective but a reading of the argument portion of appellant’s brief reveals the point is based on the alleged insufficiency of the evidence and that the prosecutrix was not a credible witness. We find the evidence sufficient to sustain the verdict and “the credibility of witnesses and the weight of the testimony are within the province of the jury and are not matters for review on appeal.” State v. Tschirner, 504 S.W.2d 302, 308[18] (Mo.App.1973).

Finding no plain error, we affirm.

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

      . The quoted language taken from the “Points and Authorities Relied On” section of appellant’s brief is patently inadequate to preserve the point for review.

      . Victim of the rape shall be referred to herein as D_Y_or Mrs. Y_

      . At the time of the original investigation at Starkey’s house, the truck matched the description of that seen at the airport on the night of the rape with a sign and a metal rack of the type described. Later when officer Howell was taken to Starkey’s residence where he identified the truck as the one seen on the night of the rape, the iron racks and sign had been removed.

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